COURT FILE NO.: 3774/05
DATE: 20180518
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Joseph Gagne
Applicant
– and –
Edith Mendoza (formerly known as Edith Mendoza-Gagne)
Respondent
Self-represented
Nancy Pringle, for the Respondent
HEARD: January 22 and 23, 2018
Raikes J.
Overview
[1] The parties are the biological parents of Teaghan Gagne, born April 21, 1996. Teaghan is presently 22 years old.
[2] The parties entered into Minutes of Settlement on the eve of trial in May 2016. Both parties were assisted by legal counsel.
[3] The Minutes of Settlement were filed with the court. Justice Mitrow granted the order requested, consistent with the terms agreed upon. His order is dated May 30, 2016 although it is agreed that it took considerably longer for the order to be issued and sent to the parties.
[4] The order contains, inter alia, the following provisions:
- a. Effective January 1, 2016, and ongoing, the Applicant, Paul Joseph Gagne, shall pay ongoing child support to the Respondent, Edith Mendoza, for the benefit of the child, Teaghan Gagne born April 21, 1996, in the amount of $921.00 per month based on his disclosed 2015 annual income of $106,581.00 (subtract union dues of $1,364.00), ending April 30, 2016 subject to the provisions below.
b. If the child begins a full-time program of education in September 2016, the ongoing child support obligation shall re-commence September 1, 2016 in the amount of $921.00 per month, subject to paragraph 4(g) herein.
- The Applicant, Paul Joseph Gagne, shall continue to pay to the Respondent, Edith Mendoza, ongoing child support for the benefit of the child, Teaghan Gagne born April 21, 1996, until the earliest of the following:
(d) The child completes her post-secondary education program;
(f) After the age of eighteen (18), the child is no longer enrolled in a full-time program of post-secondary education;
(g) The child no longer qualifies as a “child of the marriage” as defined in the Divorce Act; or
(h) The child attains the age of twenty-two (22) years (April 30, 2018);
(i) April 30, 2016 unless the child Teaghan attends a full-time program of education in September 2016;
(j) April 30, 2017 unless the child Teaghan attends a full-time program of education in September 2017 leading to a university degree other than policing, subject to paragraph 4(g);
(k) The child earns more than $15,000.00 per annum.
[5] The order provides for ongoing disclosure of Teaghan’s income (para. 8), ongoing reciprocal disclosure of the parties’ income tax returns and Notices of Assessment for so long as child support is payable (para. 9 and see para. 15), and reduced child support payments in the summer months (May-August) in 2016 and 2017 provided Teaghan provides proof of enrollment in a full-time program of education in September of that year (para. 10).
[6] The order also expressly states at para. 11:
As a condition of the ongoing child support, it is expected that the child will work full-time during the summer months, and continue part-time employment during the school year, if the hours are available to her, to contribute to her own support.
[7] The Applicant has brought a motion to change for the purpose of terminating child support payable to the Respondent for Teaghan. Although styled as a motion to change, the Applicant advises that he is simply seeking to enforce the provisions of Justice Mitrow’s order of May 30, 2016 because various triggering events in the order have occurred.
[8] The Respondent opposes the termination of child support. She likewise relies upon and seeks to enforce the terms of that order. In addition, she seeks an adjustment to child support based on increases in the Applicant’s income since 2015.
Facts
a. Education Enrollment
[9] Teaghan was enrolled in second year of the Police Foundations program at Lambton College when the parties entered into the Minutes of Settlement. She completed and graduated from that program in June 2016.
[10] Teaghan then enrolled in Contemporary Law Enforcement & Justice, a one year program, at Lambton College for the 2016-2017 school year. She completed that program and applied to Lake Superior State University (“LSSU”) to pursue a Bachelor of Science in Criminal Justice. The credits she obtained from the Police Foundations program and some, if not all, of the credits from Contemporary Law Enforcement & Justice were transferred and applied to the course requirements at LSSU.
[11] The Respondent testified that:
Teaghan was offered a partial scholarship to Faulkner University in the United States when she was still in high school. The scholarship was to play soccer and would have covered a portion of her tuition for the Bachelor of Science in Criminal Justice program.
Teaghan did not take that scholarship as the cost of a university education in the United States was simply too great even with the partial scholarship.
Nevertheless, the plan for Teaghan from high school onward was to obtain that degree.
The Police Foundations program at Lambton College has an affiliation with the Bachelor of Science in Criminal Justice Program at LSSU.
She understood that taking the third year at Lambton College would reduce the time and cost that Teaghan would spend to complete her degree.
She was told and believes that Teaghan had to take the third year at Lambton College for the program at LSSU.
Teaghan has done well academically at both Lambton College and LSSU.
Based on her review of Teaghan’s LSSU transcript, Teaghan was given credit at LSSU for nine of the Contemporary Law Enforcement & Justice courses.
If Teaghan had gone directly from Lambton College to LSSU after she completed Police Foundations, she would have been required to spend 2 years enrolled at LSSU.
She does not believe that Teaghan took this academic route so that she could go into policing. She took this program to gain an education and to give herself a competitive advantage.
Teaghan will complete schooling at LSSU in April 2018.
In 2017, Teaghan accepted an invitation from the Respondent’s cousin to go to Ecuador and stay for three weeks. She was there to learn Spanish and to learn about her mother’s culture. Teaghan also took a week to go to a wedding in the Caribbean the same summer.
[12] I pause to note that Teaghan did not testify nor did anyone from LSSU. Page 108 of Exhibit 2 is an email dated August 17, 2017 from Dr. Paige Gordier, a professor of Criminal Justice at LSSU which was tendered as part of the Applicant’s case. Dr. Gordier wrote:
We have an outstanding program for Canadian students who have a Police Foundations diploma and are interested in earning a Bachelor of Science degree in Criminal Justice. The degree is valued in Canada and graduates have entered the RCMP, OPP and many city police departments. The graduates may also enter other areas of criminal justice such as probation, parole, corrections or other social service programs. We have had Canadian graduates go on to law school and graduate school as well.
I have attached the agreement we currently have with Lambton for your review. If you could send me a student copy of your child’s transcript, I can map out a plan and give you an idea how long the degree will take to complete. Most students can complete the degree with one year of residency at LSSU and then a couple of classes via distance in the summer. … [Italics added]
[13] It is the Applicant’s understanding from his conversations with Teaghan that her career goal was and remains to become a police officer. Because of his background and experience as an OPP officer, he has tried to guide and advise her. As of Christmas 2017, Teaghan was still expressing to the Applicant and his wife her desire to be a police officer.
[14] The Applicant opposed Teaghan taking the Contemporary Law Enforcement & Justice program. Successful completion of that program yields only a certificate, not a diploma or degree. That program is no longer offered at Lambton College. In his view, that program was a waste of a year. It added nothing to her pursuit of a career in policing.
[15] The Applicant testified that:
He advised her of job opportunities with the OPP and RCMP and arranged for her to get a HINTS package. There has been a hiring binge and she missed that window to apply to stay in school taking a program that added nothing to her chances to be hired in policing.
The Contemporary Law Enforcement & Justice program was not necessary to get into the LSSU program.
Teaghan’s Facebook page has many photos of her learning skills at LSSU that are used in policing; eg. shooting and tire track moulds. He has offered to privately teach her to shoot.
He searched “policing” on the LSSU web-site and the Bachelor of Science in Criminal Justice program came up as a 100% match.
He believes that the program at LSSU is a degree in “policing”.
He has two daughters who completed their four year university education in three years through smart planning and being efficient. That is what he wanted Teaghan to do. He has other children who will also be going to post-secondary education.
[16] John Flesher was called as a witness by the Applicant, albeit in reply. Mr. Flesher was a police officer with the OPP for 30 years. He retired in 2015. He taught in the Police Foundations program from 2001 to 2012. He continued after that as an adjunct professor. He was a good witness who gave his evidence in a clear, concise and direct manner.
[17] Mr. Flesher testified that:
Lambton College has a number of articulation agreements with LSSU. He is not able to say when they came into force.
Even before he became aware of the agreements, he was recommending to students that LSSU was a route to policing.
He has seen a number of students who completed the two year Police Foundations program go directly to the Bachelor of Science in Criminal Justice program at LSSU.
Those students have completed their degrees by doing the two years at Lambton College and one year at LSSU.
LSSU builds on the academic knowledge acquired at Lambton College by teaching practical skills.
There are a lot of different fields that the LSSU degree can be used for including the Fire Marshall’s Office, and all areas of law enforcement like policing, border security, and corrections. As he put it, there are a lot of different options for graduates.
b. Teaghan’s Earnings and Work
[18] As at the date the parties entered into the Minutes of Settlement, Teaghan was working as a security guard in the Sarnia area. The Applicant advised her to work in security which would help when she applied for a policing job. He believes that she quit that position to work in retail at Play It Again Sports to avoid surpassing $15,000 in annual income which would trigger the end of his child support although he offered no evidence to support that contention.
[19] Eric McKee, a senior operations supervisor at Lyndon Security was called as a witness by the Applicant. Mr. McKee was good witness. He gave his evidence in a straightforward and measured way. He answered questions directly and there were no inconsistencies nor anything implausible in his evidence.
[20] Mr. McKee testified that Teaghan worked for Lyndon Security as a security guard from April 6, 2016 to June 26, 2017. She did not work any shifts in 2017. She was offered the opportunity to work an Imperial Oil shut-down in April 2017 which could have led to full-time employment. Her hourly wage was $14.77 when hired but some sites paid $15.50 per hour. In his experience, the skills acquired in security are transferrable to policing. During her time with Lyndon Security, Teaghan was a good, reliable employee.
[21] The Applicant also testified that even in her retail position, which pays less than security, she has taken a number of vacations including a month in the summer of 2017. She has not worked “full-time” in the summers as required by the order which again triggers the end of his child support obligations.
[22] Finally, in 2015, Teaghan’s income was calculated for tax purposes as the aggregate of her T4 and T4A. For the 2016 tax year, her income was calculated differently. If the same approach had been used as for 2015, he contends that Teaghan’s income would exceed $15,000 which would terminate his obligation to pay child support.
[23] Exhibit 12 is a summary of Teaghan’s 2015 income tax return. It shows that her line 150 income was $16,288.30 which was comprised of $10,522.30 of employment income and $5,766 of other income.
[24] Tab 5 of Exhibit 1 contains the entire 2015 tax return and Teaghan’s Notice of Assessment for the 2015 tax year. That Notice of Assessment confirms Teaghan’s 2015 income was $16,288. Her tax return discloses that $5,000 of that income came from an RESP held by TD Asset Management.
[25] The Applicant does not contend that having earned more than $15,000 the year before the parties settled, he owes no child support for Teaghan. That would be an absurd contention. Rather, he asserts that for 2016, Teaghan was deliberately underemployed and her tax return was completed in a manner inconsistent with the previous year to avoid going over $15,000 in income.
[26] Teaghan’s 2016 income tax return and Notice of Assessment is also found at Tab 5 of Exhibit 1. Her return reports income of $13,057.35. That amount is the aggregate of her income from Lyndon Security and Play It Again Sports. There are two T4A receipts for $860 and $1300 from the Ministry of advanced Education and Lambton College respectively. If those T4A amounts are added to her T4 income, the amount exceeds $15,000.
[27] The 2016 Notice of Assessment by CRA sets out her income as $13,057, the same amount reported in her income tax return.
c. Applicant’s Increased Income
[28] The Applicant’s line 150 income for the 2016 tax year was $115,589.
[29] Exhibit 21 is a December 31, 2017 pay stub for the Applicant. It does not show his year-end earnings; however, his pay stub to December 17, 2017 (Exhibit 20) shows his YTD gross income was $110,645 and the December 31 pay stub shows income of $4,038.54. Those two amounts total $114,683. That amount is a gross figure which does not account for union dues and uniform dues. A deduction of $1,600 is appropriate given the amounts reflected for same on Exhibit 20.
Applicant’s Position
[30] The Applicant argues that his obligation to pay child support for Teaghan has terminated because various triggers contemplated by the order of Justice Mitrow have occurred. Specifically, he argues that:
a. Each of the events in paragraph 4 (d), (f), (g), (i), (j) and (k) have occurred;
b. His obligation to pay child support for Teaghan ended on the earliest of these triggers;
c. With respect to 4(d), Teaghan finished her Police Foundations Program in the Spring of 2016 and thereby completed her “post-secondary education program”;
d. With respect to 4(f), the Contemporary Law Enforcement & Justice a program of post-secondary education because it yields a certificate only on completion. It is not a degree or diploma program;
e. Teaghan ceased to be a “child of the marriage” when she finished the Police Foundations course;
f. The Contemporary Law Enforcement & Justice program was not a program of education for the same reason given above. To be a full-time program of education, it must be a degree or diploma program. Accordingly, the event in 4(i) is triggered;
g. The third year at Lambton College was a waste of time and money;
h. With respect to 4(j), the Bachelor of Science in Criminal Justice is a “degree in policing”; and
i. Lastly, Teaghan earned more than $15,000 in 2016 and would have earned more than $15,000 had she worked more and taken fewer vacations. Teaghan did not work “full-time” in the summer of 2017 – she took a month off to travel.
Respondent’s Position
[31] The Respondent argues that not only should the Applicant continue to pay child support for Teaghan until April 2018, he should pay child support for 2016 and 2017-18 at a higher monthly amounts given increases to his income. She seeks to fix child support arrears as at December 31, 2016 at $9,036.
[32] Counsel for the Respondent provided an “Amended Orders Sought by the Respondent” which was marked as Exhibit “A”. In addition to the arrears to December 31, 2016, she seeks to have the Applicant pay child support after that date as follows:
a. From January 1, 2017 to April 30, 2017 - $991/month;
b. From May 1, 2017 to August 31, 2017 - $495.50/month;
c. From September 1, 2017 to October 31, 2017 - $991/month;
d. From November 1, 2017 to December 31, 2017 - $1,021/month;
e. From January 1, 2018 to April 21, 2018 - $982/month.
These amounts will be credited by FRO for any child support paid by him.
[33] The Respondent agrees that child support terminates absolutely on Teaghan’s 22nd birthday as the order provides. Her 22nd birthday is April 21, 2018.
[34] She argues that:
a. None of the triggers set out in Justice Mitrow’s order for termination of child support have been met;
b. His child support was established based on his 2015 income. That income has gone up so his child support should too pursuant to paras. 10 and 12 of the order of Mitrow J..
Analysis
[35] I will deal first with each of the triggers raised by the Applicant to terminate child support pursuant to Justice Mitrow’s order.
[36] I find that Teaghan did not complete “her program of education” when she graduated from the Police Foundations program in the Spring of 2016. I find that it was always contemplated by the parties and by the terms of the order that Teaghan might continue her post-secondary education after the Police Foundations program. If it was otherwise, there would be no need for any of the sub-paragraphs that follow para. 4(d) and certainly not (i) and (j).
[37] I find that Teaghan did continue to be enrolled in a full-time program of post-secondary education for the 2016-2017 and 2017-2018 school years. Regardless of the Applicant’s views of the value or merit of the Contemporary Law Enforcement & Justice program, it was a full-time course of study at a recognized post-secondary institution. The credits she earned there were accepted and applied, in part, to Teaghan’s university program at LSSU.
[38] The fact that completion of that program earned only a certificate and not a diploma or degree of its own is irrelevant. If he wanted a full-time program of post-secondary education to be limited to those that provide a degree or diploma, he should have so specified in the Minutes of Settlement and order.
[39] Section 2 of the Divorce Act defines a child of the marriage to mean:
a child of two spouses or former spouses, who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[40] The law is well-settled that an adult child under the age of 24 who is regularly attending school and pursuing an education in the ordinary course designed to fit the child for the future constitutes an “other cause”: Tapson v. Tapson, 1969 541 (ON CA), [1969] O.J. No. 1490 (ON CA). See also Giorno v. Giorno, 1992 2592 (NS CA), [1992] N.S.J. No. 94, 39 R.F.L. (3d) 345 (NS CA)
[41] Teaghan fit within the definition of child of the marriage throughout the period January 2016 - April 30, 2018. Put another way, she did not cease to be a child of the marriage during that period.
[42] The crux of the issue for the 2017-2018 school year is whether the Bachelor of Science in Criminal Justice program at LSSU is a full-time program of education leading to a university degree in policing. There is no question that:
a. It is a full-time program of education;
b. It leads to a university degree; and
c. She was enrolled at LSSU in September 2017.
[43] The degree is not labelled or titled as a degree in policing; however, that does not end the inquiry. The order and Minutes of Settlement offer no assistance in defining what is meant by a “degree in policing”. I am not aware of any such university degree, nor was there any evidence of same.
[44] Exhibit 16 is a transfer guide from LSSU that sets out the courses at Lambton College, their equivalent at LSSU and the remaining courses needed to obtain the degree. To obtain the degree, the student requires 124 credits. Ninety-two of those credits are offset by equivalent courses at Lambton College.
[45] The Applicant points to the skills being taught to Teaghan as reflected on her Facebook pages – firearms and tire track moulds. He also places emphasis on the fact that the credits recognized by LSSU from Lambton College are from the Police Foundations program. The course equivalents at LSSU include Intro. to Criminal Justice, Juvenile Justice, Criminology, Criminal Investigation, Police Process and Crisis Intervention among others. He also relies the 100% match to this degree and program when he searched the LSSU web-site.
[46] He also notes that Teaghan has continued to express an interest in becoming a police officer. Her choice of school programs is consistent with policing – a Police Foundations program, an advanced law enforcement program and a criminal justice degree. If, as the Respondent testified, the Bachelor of Science in Criminal Justice was always the plan and Teaghan has continued to express a desire to be a police officer, this must be regarded as a degree to that end – a degree in policing.
[47] The Respondent relies on the fact that the program and degree have broad application and utility to careers outside of traditional policing. The program and degree are not a degree in policing per se. Further, the Respondent testified that she is not sure that Teaghan wants to be a police officer. (I pause to note that the Respondent was a less than forthright witness; her answers in chief seemed scripted, and cross-examination revealed inconsistencies and answers that struck me as disingenuous.)
[48] Both arguments have some merit. This is a close call. In determining this issue, I am mindful that the terms of the order in question deal with child support which is a right of the child. The Applicant had an unquestionable obligation to pay child support for Teaghan including contribution to s. 7 post-secondary expenses. If he wished to restrict or limit his obligation to do so, it was incumbent on him to use clear and precise language. Ambiguity should be resolved in favour of the child’s interests. I conclude that the wording used in the order, which derives from the Minutes of Settlement between the parties, is vague and imprecise.
[49] In any event, and despite the shortcomings in the Respondent’s evidence, I find that the Bachelor of Science in Criminal Justice is not a degree in policing, although it certainly could assist Teaghan if she opts to pursue that career. The degree and program that underlie it are broader than policing with potential application to other law and administration of justice careers.
[50] I also find that Teaghan’s income did not exceed $15,000 in 2016 or 2017 as evidenced by her Notices of Assessment. I am not satisfied on the evidence that the Respondent and Teaghan conspired or Teaghan acted to reduce her annual income so that the Applicant would continue to pay child support. Mere suspicion is not enough.
[51] Finally, I find that Teaghan did work full-time in the summers of 2016 and 2017. The vacations and travel taken in 2017 do not, in my view, mean that Teaghan worked less than full-time that summer.
[52] Given my findings above, the Applicant’s motion to change to terminate child support is dismissed.
Child Support Adjustment
[53] I turn now to the Respondent’s request that the amount payable by the Applicant for child support for Teaghan should be adjusted to reflect increases in his income since order of Mitrow J..
[54] The order of Mitrow J. contains the following additional terms that bear on this issue:
For so long as the child support obligation continues, the parties shall provide to the other a copy of their income tax return each year by May 31st and a copy of his/her Notice of Assessment within ten days of receiving that document from Revenue Canada.
In the summer months (May – August) of 2016 and 2017, the Applicant, Paul Joseph Gagne, shall pay to the Respondent, Edith Mendoza, ongoing child support if the child, Teaghan Gagne born April 21, 1996, proves that she is in full-time attendance at a program of post-secondary education as set out herein. The child support for the months of May through August of 2016 and/or 2017 shall be payable by September 15th in the amount of $417.00 per month in 2016 and at half the rate payable in 2017 based on his 2016 total income and the Child Support Guidelines.
The payment of ongoing child support, other than the summer months (May – August inclusive), is made pursuant to section 3(2)(a) of the Federal Child Support Guidelines and during the summer months, the order is made pursuant to section 3(2)(b) of the Federal Child Support Guidelines.
[55] The order of Justice Mitrow contemplates that child support payable in 2016 is based on the Applicant’s 2015 income, and in 2017 on his 2016 income. It is silent as to 2018 but it makes sense that his child support obligations would reflect his 2017 income.
[56] Therefore, child support payable by the Applicant to the Respondent for the child Teaghan Gagne born April 21, 1996 is as follows:
2016 (except May – August) - $921/month
2016 (May – August) - $417/month as agreed and ordered
2017 (except May – August) - $991/month based on income of $114,100 net of union dues
2017 (May – August) - $495.50/month
2018 (January – March) - $983/month based on income of $113,100 net of union dues
April 1-21, 2018 - $688.10 ($983 x 21/30).
[57] Calculation of the amount due and owing should be done by FRO with credit to the Applicant for all child support paid pursuant to the order of Justice Mitrow dated May 30, 2016
[58] The Applicant’s obligation to pay child support terminated on April 22, 2018. Thereafter, paras. 8, 9, 11, 12, and 15 of Justice Mitrow’s May 30, 2016 order are vacated.
Conclusion
[59] I order as follows:
The Applicant’s motion to change is dismissed.
Child support payable by the Applicant to the Respondent shall be in amounts set out in para. 56 above.
The amount owing for child support by the Applicant shall be calculated by FRO per para. 57 above.
The order of Justice Mitrow dated May 30, 2016 is varied as set out herein.
Costs
[60] If the parties cannot agree on costs, they may make written submissions not exceeding 3 pages within 15 days hereof.
Original signed by Raikes, J.
Justice R. Raikes
Released: May 18, 2018
COURT FILE NO.: 3774/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Joseph Gagne
Applicant
– and –
Edith Mendoza (formerly known as Edith Mendoza-Gagne)
Respondent
REASONS FOR JUDGMENT
Raikes, J.
Released: May 18, 2018