Court File and Parties

Court File No.: FD669/9-2 Date: June 28, 2018 Ontario Superior Court of Justice Family Court

Between: Inna Ellacott, Applicant And: Maxim Paliy, Respondent

Counsel: Inna Ellacott in person Maxim Paliy in person

Heard: May 15, 16, 2018

Before: Henderson J.

Endorsement

[1] The applicant has brought this motion to change to vary the order of Vogelsang J. dated May 30, 2016 as follows:

1. To terminate child support for the child, Julia Paliy, born June 15, 1999, effective July 31, 2017.
2. Commencing May 1, 2015, to ordering the respondent to repay 50% of Julia’s orthodontic charges in the amount of $1,706.
3. To fix arrears in the amount of $1,100 and having the respondent repay them at the rate of $100 per month.
4. To amending paragraph 1 of the order of Vogelsang J. to reinsert paragraphs 7 and 8 of my order of October 14, 2014.
5. To impute income to the respondent for the purpose of sharing future s. 7 expenses pursuant to the Child Support Guidelines, O. Reg. 391/97.
6. To claim retroactive and prospective child support for the parties’ eldest daughter, Anna Paliy, born April 9, 1993.

[2] In response, the respondent asks that child support be retroactively adjusted in accordance with the applicant’s income back to 2015 and that the applicant pay her proportional share of s. 7 expenses of $2,552.

Background

[3] The applicant is 47 years of age, the respondent 49 years. They were married July 4, 1991 and separated on August 24, 2006 (although the respondent disputes this date, it is the date of separation listed in their joint application for divorce). The parties were divorced July 6, 2009.

[4] As indicated, they have two children, Anna and Julia. The relationship between the parties has been contentious from the time they separated virtually continuously until the present. They were successful in negotiating a separation agreement dated April 22, 2009 and then proceeded with a joint application for divorce shortly after signing the agreement.

[5] To the extent there was peace in 2009, it was broken with the first litigation commenced by the applicant July 23, 2010. She sought sole custody of the children and child support and s. 7 expenses for both.

[6] That litigation resulted in my order dated October 14, 2014, on consent.

[7] This order was in place less than a year when the respondent commenced a motion to change dated June 1, 2015. This action was prompted by Julia’s move to his home in May. He sought to terminate his child support obligation and pursued a child support order against the applicant.

[8] This motion to change resulted in a further consent order of Vogelsang J. dated May 30, 2016.

[9] About a year later, the applicant commenced the present motion to change on April 24, 2017.

[10] I will review my order, the order of Vogelsang J. and an intervening order of Korpan J. dated October 6, 2015 in more detail below.

Issues

[11] There are three main issues:

1. As this is a motion to change, I have to satisfy myself, as a threshold matter, whether there has been a change of circumstances to permit me to vary the order of Vogelsang J.
2. As the parties are requesting child support and/or a sharing of s. 7 expenses, I have to determine their respective incomes.
3. Finally, I have to calculate the s. 7 expenses, including Julia’s post-secondary education costs for the past academic year.

Preliminary Issues

[12] The first issue I have to address is the applicant’s reference in her argument that I am to be guided by the equality provisions of s. 15 of the Charter of Rights and Freedoms. She says that the parties and the children should be treated equally as a matter of principle. She did not suggest that any of the applicable legislation contravened s. 15.

[13] I find s. 15 has no application to the present case and I dismiss the applicant’s argument. While the application of the relevant legislation may not result in equal outcomes in this particular case for a variety of different reasons, the legislation itself applies equally to similarly placed individuals.

[14] The applicant refers to s. 15 specifically to support her claim for retroactive and prospective support claims for the eldest daughter, Anna. She says if Julia is entitled to support, so should Anna.

[15] As I have said, the relevant legislation applies equally to similarly placed individuals. Julia and Anna are not similarly placed.

[16] Anna was included in the applicant’s initial application commenced July 23, 2010 in respect of claims for custody and child support.

[17] She was 17 at that point. Subsequently, Anna completed high school, then her undergraduate degree at Western University, followed by a Master’s degree. She took a year off to work and then commenced her PhD at the University of Toronto in September 2017.

[18] I dismiss any retroactive claim for Anna. First and foremost, it was not pleaded. In fact, Anna does not appear in any pleadings or court orders after October 20, 2010 when G. Campbell J. ordered on a temporary basis the respondent to pay child support for two children in the amount of $629 per month. There were no temporary orders afterwards. There was no mention of support for Anna in my order of October 14, 2014, in the motion to change commenced by the respondent on June 1, 2015 by way of response by the applicant, in any interim orders in that court action, nor, as I have indicated, in the present action.

[19] Even if the claim had been included in the current motion to change, it could not pre-date the order of Vogelsang J. This proceeding is not a trial de novo, nor an appeal. Although, speaking in the context of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], Sopinka J., writing for the Supreme Court in Willick v. Willick, [1994] 3 S.C.R. 670, stated at para. 20:

20 Therefore, in a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding. The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act are properly satisfied. ...

[20] At best, the claim would only have run from May 30, 2016 to when Anna quit school and began work. There does not appear to be a change in circumstances and there is a serious question whether she continues to qualify as a child of the marriage.

[21] Although I am dismissing the retroactive claim, I am not nevertheless precluding a claim for prospective support. That said, I would discourage any additional litigation on this issue. In addition to the concerns regarding a change in circumstances and Anna’s status as a child of the marriage, as a practical matter, if the claims are limited to her s. 7 expenses between her earnings during her year off and the likelihood of income as a teaching assistant, her expenses may be insignificant and not merit further litigation.

[22] The final preliminary issue concerns under what legislation I should consider this motion to change. The divorce the parties obtained was a divorce simpliciter following their separation agreement. When the applicant commenced her application in 2010, she did not make a claim for corollary relief under the Divorce Act. Her only claim was under the Family Law Act, R.S.O. 1990, c. F.3 and the Children's Law Reform Act, R.S.O. 1990, c. C.12. Neither my order of October 14, 2014 nor the order of Vogelsang J. of May 30, 2016 make any reference to specific legislation.

[23] Going back to the original application, therefore, I am going to apply the Family Law Act.

Analysis

[24] While there is only one order to be varied, there are three orders which need to be considered relevant to this motion to change. It is important to follow them in chronological order. There is my order of October 14, 2014 that contained a term of child support for Julia from the respondent in the amount of $469 per month based on the respondent’s income of $51,296. In addition, the parties were to share s. 7 expenses in proportion to income with a finding that the applicant’s income was $88,167.

[25] Pursuant to the respondent’s motion to change commenced June 1, 2015, Korpan J. ordered on October 6, 2015 that the respondent’s obligation to pay support for Julia be terminated and, instead, had the applicant pay child support in the amount of $738 on an income of $82,000. This order was marked “Final” and “Temporary,” although it was not clear which designation applied to which terms. The terms of my order otherwise remained in effect, specifically the term regarding sharing s. 7 expenses.

[26] This order was followed by the order of Vogelsang J., which vacated my order entirely (including the s. 7 term) and rendered the support term of Korpan J. final in the event there was any doubt.

[27] The consequence of this was that, while table support was ordered, there was no provision for the sharing of s. 7 expenses following the order of Vogelsang J.

[28] I make one final observation. Both my order and that of Vogelsang J. contained the standard clause making reference to paragraph 24.1 of the Child Support Guidelines. This paragraph requires the parties to exchange income information annually.

[29] Despite this clause, neither party complied while under an obligation to pay child support.

[30] Against this backdrop, the parties’ claims can be reduced as follows: first, the applicant seeks to terminate her table support obligation and to share Julia’s post-secondary education costs for her first year on an equal basis with the respondent; and, secondly, the respondent is seeking a retroactive claim for table support to 2015. Aside from Julia’s post-secondary expenses, each party has a relatively small claim for s. 7 expenses.

[31] Section 37 of the Family Law Act provides generally for changes in final orders and s. (2.1) specifically speaks to child support. As a threshold for a change, s. 37(2.1) requires “a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available.”

[32] The second part of that statement has no application in the current case. The definition of change in circumstances in the Child Support Guidelines is found in s. 14. The relevant part is set out here:

1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
2. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

[33] I find that, for the purposes of this motion, there is a change of circumstance entitling both parties to have their respective claims considered. As will be seen, the applicant has had a change in income requiring an adjustment according to the tables and Julia has moved onto post-secondary education.

[34] For the purpose of this decision, the relevant sections of the Child Support Guidelines are s. 3(1) and (2) and s. 7:

Presumptive rule

3(1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is, (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and (b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is, (a) the amount determined by applying these guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

Special or extraordinary expenses

7(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities.

Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (d) and (f), “extraordinary expenses” means (a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or (b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account, (i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child, (iv) the overall cost of the programs and activities, and (v) any other similar factors that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

[35] The applicant’s income, taken from her income tax returns, for the purpose of calculating her child support obligation is as follows:

	2015	2016	2017
Line 150 Income	$96,705.38	$97,054.68	$99,158.93
Union Dues	$1,333.58	$1,263.74	$1,389.30
Net Income	$95,371.80	$95,790.94	$97,769.63

[36] The applicant argued that her contributions to her Registered Pension Plan (“RPP”) were deductible from her income for the purposes of calculating child support. She relied on the wording in paragraph 1 of the RPP deduction schedule of her income tax return. It asks for the amount listed in her T4A slips “or from your receipts for union dues that represent RPP contributions.”

[37] To conclude that that statement permits RPP contributions from income for the purposes of calculating child support is incorrect. The statement in the schedule only seeks the amount of RPP from one of two sources, the T4A or union due receipts. The fact that some people have their RPP contributions included in their union dues does not render those deductions permissible for the determination of income under the Child Support Guidelines.

[38] There is a limited category of deductions from total income permitted pursuant to Schedule III of the Child Support Guidelines. Section 1 is titled “Employment Expenses” and refers to certain expense/cost deductions permitted under paragraph 8 of the Income Tax Act, R.S.O. 1990, c. I.2. Paragraph 8 (l)(i) specifies “dues and other expenses of performing duties.” RPP contributions, though likely mandatory, are neither dues nor an expense of performing the duties of a teacher. In fact, far from being an expense, they are a saving from which the applicant will benefit when she retires. Such deductions (along with RRSP contributions) are permitted for the purposes of calculating income under the Income Tax Act pursuant to a different section of the Income Tax Act and serve different policy objectives.

[39] The applicant’s tortured interpretation might explain the fact that her current child support payment initially ordered in 2015 was based on an income of $82,000 when her income for 2014 was in fact $95,099.83, less union dues of $1,162.81, for a net of $93,937.02. In 2015, the net income was $95,371.80.

[40] The respondent seeks retroactive child support back to 2015. I decline to do so as neither party, over time, complied with the s. 24.1 clause of the court orders while each was under an obligation to pay child support.

[41] It is rather my intention to calculate retroactive child support for a period from January 1, 2016 to August 31, 2017.

[42] Based on the applicant’s net income in 2016, she should have paid child support in the amount of $846.01 per month. The total in 2016 is $10,152.12. In the first eight months of 2017, i.e. up to September when Julia commenced university, she should have paid child support in the amount of $862.16 per month based on her net income for 2017. The total for 8 months is $6,897.28 and, for the 20 months, is $17,046.40. The applicant actually paid $14,760 ($738 x 20 months), leaving a deficit of $2,286.40. The applicant owes the respondent the sum of $2,286.40. I will return to this payment later in my decision.

[43] Both parties have also claimed s. 7 expenses for Julia. The applicant claims a total orthodontic bill of $3,413 after insurance reimbursement. Payments went from February 24, 2014 to September 1, 2016.

[44] The respondent claims s. 7 expenses covering the period 2016 to June 2017. These expenses cover a variety of items, all of which would qualify as s. 7 expenses. The only one I would exclude is driver’s education in the amount of $600. I do not find this to be a reasonable expense and would exclude it. The total balance claimed then would be $1,878, after deducting the 2016 tax deduction for medical expenses. Of these expenses, the respondent paid $997 for orthodontic expenses between February 9, 2016 to April 2016. The respondent stated, and which was not disputed by the applicant, that she received $761 reimbursed under her insurance coverage.

[45] I indicated to the parties that I was only going to entertain s. 7 expense claims after the order of Vogelsang J. of May 30, 2016. As I have said already, between my order and that of Vogelsang J., neither party fully complied with the requirements of s. 24.1 of the Child Support Guidelines in order to apportion s. 7 expenses. Secondly, neither party made any claims that should have been included in the order of Vogelsang J. if there were any outstanding s. 7 expenses not paid. Finally, as stated, the order of Vogelsang J., in fact, vacated the s. 7 expense clause contained in my earlier order, rendering any outstanding claims moot as there was then no basis for the claim.

[46] During the trial, I nevertheless told the parties that, although not specifically pleaded, I would interpret the pleadings to amend the order of Vogelsang J. to include s. 7 expenses from his order onward.

[47] As a result, the parties’ respective claims can be significantly pared down. After May 30, 2016, the applicant made four payments of $197 each towards orthodontic work for Julia started in February 2014. Those payments total $788.

[48] The respondent has the following s. 7 expenses incurred for Julia:

• $300 university application January 2017
• $65 hearing August 2016
• $125 orthodontic work May 17, 2017
• $300 York University registration May 21, 2017
• $790

[49] Section 7 of the Child Support Guidelines requires that those expenses that qualify be shared between the parties in proportion to their incomes. I have found that the applicant’s income was $95,790.94 in 2016 and $97,769.63 in 2017.

[50] What is the respondent’s income for the purposes of sharing s. 7 expenses? According to his income tax returns, the respondent’s income was $35,872 and $20,347.63 (which included $5,537 for Employment Insurance benefits) for 2016 and 2017 respectively. The respondent says this year he is receiving income of about $2,400 per month from some tutoring and help from his family.

[51] The applicant believes the respondent is woefully underemployed and asks me to impute income of at least her income to him pursuant to s. 19(1) (a) of the Child Support Guidelines. It reads:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, (a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[52] The Court of Appeal decision in Drygala v. Pauli, 2002 CarswellOnt 3228, 61 O.R. (3d) 711 is the leading case interpreting s. 19(1) (a). Gillese J.A. held there was no need to find a specific intent to evade child support obligations before income can be imputed (paras. 25-26). Further, she held that there is no requirement of bad faith.

[53] The Court of Appeal returned to this section in a recent decision in Lavie v. Lavie, 2018 ONCA 10. In that case, building on its earlier decision in Drygala, the court emphasized that the reasons for underemployment are irrelevant. It noted at para. 28:

28 Section 19(1)(a) also provides that the court must consider if such intentional under-employment is "required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse" [[their] Emphasis added].

[54] In Lavie, the mother was a qualified school teacher, who, prior to separation and with the consent of her husband, opened a daycare. The flexibility it provided was seen as improving their family life.

[55] That may have been so but, post-separation, the Court of Appeal found that this did not elevate the plan to a requirement and ultimately imputed an income equivalent to the mother of a teacher’s salary.

[56] The respondent is 49 years old. He speaks Russian, Ukrainian, French and English. He has a PhD in physics and math, which he obtained by the age of 26. He pursued post-doctoral fellowships in France and Hong Kong. The applicant said the respondent planned to become a full professor as he has “significant skills in computational physics.”

[57] In about 2002, the parties emigrated to Canada and the respondent quickly obtained a post-doctoral fellowship at Western University in the Faculty of Chemistry. He was also teaching a couple of courses at the university.

[58] The applicant believed the respondent was preparing for a full fellowship but never applied because, according to her, he wanted to return to Europe. Ever since, he has worked part-time at the university picking up the occasional teaching contract.

[59] In 2006, both parties obtained their Bachelor of Education from Western University and became licensed through the College of Teachers. The applicant supply taught in 2007 and has been a fulltime high school teacher since. Although he has maintained his license, the respondent has never taught outside of the university setting.

[60] The respondent’s best income years were in 2012, 2013 and 2014 when he earned $53,698, $51,296 and $59,226 respectively. His fortunes have since declined and, in 2016, he had to make a Consumer Proposal to obtain relief from his debt load.

[61] The respondent testified that he planned to move to the GTA soon, where he believes his prospects will be better. He does not want to teach science in high school but believes he still has prospects in his field. He acknowledges that positions are highly competitive and international.

[62] After listening to the respondent, I found his evidence singularly lacking in a rational explanation why a man with his skills, education and experience is earning less than someone far less blessed and earning a minimum wage.

[63] In cross-examination, he was asked how he spends his days if he is not working. He says he is working on his projects and getting ready for a conference presentation. When asked if he would be paid for the conference, he said “no.”

[64] He said he was applying to various colleges and universities in the GTA. So far, he has not been successful. When the applicant asked if he would produce his rejection letters, he declined.

[65] I found the respondent’s evidence to be vague, general and evasive on this issue. I was left with the distinct impression the respondent really did not want to work. Consequently, I see no reason why income should not be imputed to the respondent. If he had applied himself, the respondent could be earning significantly more than the applicant in academia. However, the applicant thinks it reasonable, and I agree, that the respondent should be imputed an income equivalent to hers and I do so. This is based on the assumption that if he had begun teaching high school when the applicant did, he would be making at least as much as she. As this only impacts the sharing of Julia’s s. 7 and post-secondary school expenses, I order they be shared on a 50/50 basis.

[66] In respect of the s. 7 expenses claimed above, I order that they be simply set-off against each other as they are virtually identical.

[67] In 2017, Julia was accepted into a Bachelor of Graphic Design programme at York University in Toronto. At the time she commenced her studies, she was 18 years of age. Commencing July 31, 2017, she rented a room in downtown Toronto and moved in over the course of August.

[68] With reference to s. 3 of the Child Support Guidelines, s. 3(2) applies to children over the age of majority and contains two different approaches. Section 3(2) (a) applies the same principles as with children under the age of majority. Section 3(2)(b), on the other hand, states that “if the court considers that approach to be inappropriate,” a broader approach is required.

[69] With respect to Julia’s post-secondary school costs, the principles set out in the Court of Appeal decision Lewi v. Lewi, 2006 CarswellOnt 2892 are applicable.

[70] Table support is based on the presumption that the child is living at home with the recipient parent. When the child lives away from home to attend a post-secondary institution, “living costs are properly treated as post-secondary education costs” (Lewi, at para. 50; see also Merritt v. Merritt, [1999] O.J. No. 1732 (Ont. S.C.J.) as approved in Park v. Thompson (2005), 252 D.L.R. (4th) 730 (Ont. C.A.), at paras. 28-29).

[71] Instead of applying the table/ s. 7 approach, the court has to determine, according to s. 3(2)(b), an amount of child support “having regard to the condition, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

[72] Heeney J., in Merritt, supra, at para. 73 (cited in Lewi, at para. 50) stated:

73 ... It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks ...

[73] Each party put forward a budget for Julia covering the past academic year.

[74] The applicant calculated Julia’s expenses for September 2017 to April 2018 as follows:

tuition fee	$10,646
books	Included
rent	$8,000
food	$3,200
bus pass	$936
GO Train	$130
Total	$22,912

[75] The respondent produced a more detailed monthly budget (Ex. #23) for Julia, much of which was backed by receipts. The regular monthly expenses totaled $2,372 per month over the eight months. In addition, there were one-time expenses, including tuition $10,647, art supplies, etcetera (including a new laptop) $1,927 and furniture for Julia’s room $711. The total for the eight months was $32,421.

[76] I observe that budgets have proven over time to be unreliable bases for determining support. Child and spousal support guidelines were a response to this unreliability and the litigation it spawned. These guidelines shifted the analysis from an expense to income approach to determine support. To some extent, the analysis required pursuant to s. 3(2)(b) is a regression.

[77] It is not my intention to go over Julia’s budget as put forward by the respondent line by line. Overall, it is not unreasonable, although some items reflect a budget of a person who is working fulltime and not a student.

[78] Clothing, for example, is listed at $126 per month. There is reference to the train at $90 per month. This refers to Julia’s attendance at classes at Sheridan College in Oakville over a week and her need to take the GO train. She only had to attend in the first term, which was interrupted by a five week strike. I find the applicant’s number of $130 for the entire term is more accurate.

[79] The budget has allocated $55 per month for trips home by bus. The respondent testified Julia, in fact, came home only four times.

[80] The most contentious issue is Julia’s rent at $1,000 per month. The applicant bought a condominium apartment in Toronto anticipating both Julia and Anna could live there. Their mother would charge each of them $250 per month to cover the condominium fee and utilities. Anna lives there alone and is paying the full $500. Julia has refused to live there.

[81] On consent, two affidavits of Julia were admitted into evidence. In her affidavit sworn July 31, 2017, she explained why she would not live in her mother’s apartment:

• “I, however, wish to keep my options for residence while living in Toronto flexible.”
• “The space and privacy in this one bedroom condo shared with my sister, Anna Paliy, is uncomfortable.”
• “I do not want to be tied to one living space and need the freedom to move if required.”
• “I have concerns that my mother, Inna Paliy, will revert to her former behaviour and threaten and/or attempt to cause me emotional, physical and/or financial abuse to me.”

[82] Despite Julia’s reluctance to rent the apartment from her mother, the evidence showed she had no hesitation staying with her sister, sometimes overnight. I find this to be disingenuous on Julia’s part.

[83] Her father said she wanted to live downtown and not at the university because there was more going on. He said she applied for residence at the university but was turned down. No evidence of this was produced and, given what Julia said in her affidavit, it seems the issue was more about what Julia wanted and not what may have made more economic sense.

[84] I accept that Julia is estranged from her mother and I will accept that her mother contributed to that but spending $750 more per month may be a luxury she has to assume responsibility for.

[85] Taking all the evidence into account, I find a budget in the amount of $25,000 would be appropriate, inclusive of tuition, supplies and related expenses. This leaves a budget of about $1,500 per month after deducting tuition, supplies and furniture.

[86] On the income side, in the past year, Julia received the following amounts:

OSAP grant	$6,520
OSAP loan	$6,603
scholarship	$2,000
employment earnings	$6,164
Total	$21,287

[87] The respondent stated that he found it “ethically wrong” that Julia should incur any debt pursuing her post-secondary education. There are a number of responses to this statement.

[88] First, there is case law that supports the respondent’s view that students should not be factored into the student’s contributions to their post-secondary education. But the case law is mixed and there are an equal number of cases interpreting the law differently and I see no reason to attribute at least a portion of a student’s loan to the student’s contribution.

[89] Secondly, one might see the fact that the respondent is earning a minimum wage, given his education and skills, as ethically wrong. As a consequence of his lack of effort to earn more, he cannot make his contribution to his daughter’s education and thereby compelling her to incur debt.

[90] Finally, Julia, for her part, seemed quite happy to incur debt because, according to the applicant, she did not include her in her OSAP application. If she had, her mother’s income would be factored in and Julia would likely have received a diminished loan or no loan at all.

[91] There are few children who can avoid a student loan these days, especially if they leave home to pursue their post-secondary education.

[92] That said, I do not believe the entire loan should be attributed to Julia’s contribution. In Corby v. Corby, 2015 ONSC 2700, Mitrow J. attributed 75% of the loans to the child. That case, however, involved children pursuing their post-secondary education from home in London.

[93] I will attribute 50% to Julia. In Corby, Mitrow J. found the family to be of modest means, so a greater share of the expenses was going to fall to the child. That is not the present case.

[94] In addition, I am mindful of the higher costs in Toronto than London. The additional burden should be borne by Julia’s parents.

[95] On a similar rationale, I attribute 50% of Julia’s earnings as her contribution.

[96] For her part, the applicant felt Julia should have applied for more scholarships. She forwarded to Julia information about several. I see no obligation for a child to apply for scholarships in the Child Support Guidelines. The outcome is speculative in any event.

[97] Therefore, Julia’s contribution to her first year is as follows:

OSAP grant	$6,520
OSAP loan – 50%	$3,301
scholarship	$2,000
earnings – 50%	$3,082
Total	$14,903

[98] I am obliged by s. 3(2)(b) to consider the financial ability of each parent to contribute to her education. I see no reason to depart from the equal sharing of the remaining share as I have done above in respect of s. 7 expenses.

[99] Therefore, I calculate each party’s share as follows: $25,000 - $14,903 = $10,097.

[100] Each party’s share is half or $5,048.50. The applicant has paid $6,642 by way of her monthly support payments of $738 over eight months. She is therefore entitled to a credit of $1,593.50, which shall be set-off against her retroactive child support in the amount of $2,286.40. The applicant, therefore, owes the respondent the sum of $692.90.

[101] Moving forward, there are a number of unknowns that render a further order difficult. First, there is an ongoing strike at York University, which is delaying the conclusion of the school year. The respondent could not say if the strike would conclude before the end of June. This has left Julia’s plans uncertain. Regardless, the respondent did not know whether Julia would be returning home to London. To some extent, I suppose, that depends on whether the respondent relocates to the GTA.

[102] If Julia were to return to London, I would order the reinstitution of the monthly child support for the months she is not at school, as Mitrow J. did in Corby. Otherwise, the parties, for the immediate future and in the three remaining years of her degree, should calculate their respective shares of those expenses taking into account such variables as Julia’s employment earnings, OSAP and scholarships.

[103] In conclusion, I order as follows:

1. Paragraph 2 of the order of Vogelsang J. dated May 30, 2016 shall be varied vacating reference to paragraph 2 of the order of Korpan J. dated October 6, 2015, effective May 1, 2018.
2. Both parties have a responsibility to support the child, Julia Paliy, born June 15, 1999, so long as she is a child pursuant to the Family Law Act.
3. The respondent is imputed an income equivalent to the applicant, as may change from time to time, such that the parties’ share of Julia’s post-secondary education costs and other expenses pursuant to s. 7 of the Child Support Guidelines (Ontario), less Julia’s contribution, shall be shared equally.
4. Within 60 days, the applicant shall pay to the respondent the sum of $692.90 in full satisfaction of retroactive child support.
5. All other claims are dismissed.
6. As there has been mixed success, there shall be no order as to costs.

“Justice Paul J. Henderson” Justice Paul J. Henderson Released: June 28, 2018