ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-05-054615

DATE: 2018 06 11

BETWEEN:

HOPE C. UNEGBU

Self-Represented

Applicant

• and -

PHILIPS M. UDOFE

Self-Represented

Respondent

HEARD: September 5,2017

REASONS FOR ORDER

PRICE J.

[1] Mr. Udofe moves to vary the Order of Justice Herold dated July 28, 2006, as varied by the Orders of Justice Fragomeni dated June 21, 2006, and of Justice Van Melle dated October 7, 2011. Mr. Udofe also moves to change the final Order of Fragomeni J., dated June 21, 2007, made with the consent of the parties. Mr. Udofe seeks to end his child support obligations, on the ground that the parties’ children, he says, have ceased to be full-time students. He additionally seeks to rescind the arrears of support. Ms. Unegbu seeks an increase in her child support, on the ground that the children, she says, are still attending school, and she seeks an Order requiring Mr. Udofe to pay $2,580 per month towards the children’s special and extraordinary expenses.

[2] Ms. Unegbu failed to attend for the trial of Mr. Udofe’s motion on June 21, 2017. Justice McSweeney therefore heard the trial on an uncontested basis on June 21 and 22, releasing her Order on July 6, 2017. Mr. Udofe represented himself at that hearing.

[3] On July 25, 2017, Ms. Unegbu moved to set aside McSweeney J.’s Order on the ground that she had not been notified of when the trial would begin. The court found no record that Ms. Unegbu had been notified and, on that basis, set aside McSweeney J.’s Order. It then re-tried Mr. Udofe’s motion on September 5, 2017, after which it reserved judgment. These reasons address the issues in the motion.

BACKGROUND FACTS

The parties’ marriage

[4] Philips Udofe and Hope Unegbu were born in Nigeria. Mr. Udofe is 53 years old (born August 26, 1964); Ms. Unegbu is 53 (born May 1, 1965).

[5] The parties met in Brazil in 1996. Mr. Udofe, who was then 32 years old, was working in Argentina and Brazil as a professional boxer. Ms. Unegbu, who was 31, was studying in Brazil for her Master’s degree in nutrition.

[6] From Argentina, Mr. Udofe obtained a visitor’s visa to enter Canada, and after arriving, he successfully applied for refugee status. Upon becoming a resident, he invited Ms. Unegbu to visit him in Canada. During the visit, she became pregnant with the parties’ first child.

[7] On January 10, 1997, after Ms. Unegbu completed her studies in Brazil, the parties were married in that country. Because Mr. Udofe had applied earlier, in Canada, for a marriage licence to marry another woman, a marriage that he says never, in fact, took place, he told Ms. Unegbu that he could be in jeopardy of a bigamy charge if he married her in Canada. He used the same justification for telling Ms. Unegbu that he was unable to sponsor her immigration to Canada.

[8] Ms. Unegbu therefore returned to Nigeria and successfully applied, from there, to enter Canada as a refugee. In February 1997, Ms. Unegbu, then 8 months pregnant with the parties’ first child, travelled to Canada. Mr. Udofe told her that he was unable to meet her at the airport, so she made her way to a shelter. While there, Mr. Udofe pretended to others that they were not married.

[9] Mr. Udofe and Ms. Unegbu eventually began living together but, according to Ms. Unegbu, Mr. Udofe was physically abusive to her. She separated from him on June 30, 2003, taking the children, then 5 and 6 years old, with her.

The children of the marriage

[10] There are two children of the marriage:

(a) A daughter, Precious Udofe, born March 14, 1997, who is now 21 years old; and

(b) A son, Destiny Udofe, born October 1, 1998, who is now 19 years old.

History of judicial proceedings

(i) Divorce Order by Herold J.

[11] Ms. Unegbu began the present proceeding under the Divorce Act.[^1] On July 28, 2006, the parties consented to a final Order by Herold J., for their divorce. The Order took effect on August 29, 2006.

[12] Justice Herold’s Order required Mr. Udofe to pay to Ms. Unegbu:

(a) child support in the amount of $600 per month for the two children;

(b) $180 per month as his contribution to the children’s child care expenses;

(c) $50 per month as his contribution to the children’s other s. 7 expenses.

(ii) Order of Fragomeni J. varying Herold J.’s Order

[13] On June 21, 2007, Mr. Udofe and Ms. Unegbu consented to an Order by Fragomeni J., varying Herold J.’s Order. Justice Fragomeni’s Order granted Mr. Udofe access to the children, fixed his child support arrears at $8,000 as of June 21, 2007, and required him to continue paying child support in the amount of $600 per month for the two children, beginning July 1, 2007.

(iii) Motion to change Fragomeni J.’s Order

[14] On October 17, 2011, Mr. Udofe moved to vary Fragomeni J.’s Order by reducing his child support. Ms. Unegbu moved for an Order increasing her child support and requiring Mr. Udofe to contribute to the payment of the children’s special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, which had not been addressed by Fragomeni J.’s Order.

[15] At a hearing before Van Melle J., Mr. Udofe produced Notices of Assessment which set out the following incomes:

2007 $5,405.00

2008 $6,905.00

2009 $15,530.00

He asserted that in 2010, his income was $24,000 and that in 2011, it was $26,000.

[16] In her reasons dated October 17, 2011, Justice Van Melle found Mr. Udofe’s evidence not to be credible.[^2] She held that there had not been a change in his circumstances that justified a variation. She made a final Order requiring Mr. Udofe to continue paying child support in the amount of $600 per month, as ordered by Herold J. in 2007 and requiring him to contribute $100 per month to the children’s s. 7 expenses.

[17] Justice Van Melle stated that she could not determine, from the Family Responsibility Office’s (“FRO’s”) Statement of Arrears, whether it reflected the $8,000 arrears fixed by Fragomeni J. on June 21, 2007. She directed that FRO provide a Statement of Arrears reflecting Fragomeni J.’s Order, and advise whether or not it reflected that child support arrears were fixed at $8,000 as of June 21, 2007.

[18] On September 13, 2012, Donohue J. made a final Order that Mr. Udofe’s obligation to pay $100 per month for s. 7 expenses, pursuant to Van Melle J.’s Order dated October 21, 2011, commenced on that date.

(iv) Second motion to change Fragomeni J.’s Order

[19] On February 10, 2015, Mr. Udofe again moved to change the Order of Fragomeni J. He sought the following changes:

(1) Rescinding of his child support arrears, on the ground that they arose during years when his income was less than the income which Fragomeni J. had imputed to him; and

(2) Terminating his obligation to contribute $100 per month to the children’s s. 7 expenses, on the ground that the children were no longer attending school and were not otherwise dependent on their parents for support.

[20] On June 28, 2016, following a second motion by Mr. Udofe to change Fragomeni J.’s Order, Van Melle J. made an order staying FRO’s enforcement of Mr. Udofe’s arrears and directing that “The Respondent, Philips M. Udofe, must continue to pay the monthly child support of $600.00 plus $100 toward special expenses.”

(v) Uncontested trial of Mr. Udofe’s motion

[21] Following an uncontested trial on June 21 to 22, 2017, McSweeney J. made an Order on July 6, 2017, varying Fragomeni J.s Order dated June 21, 2007. Ms. Unegbu later moved to set aside McSweeney J.’s Order on the ground that she had not been notified of when the trial would begin. This Court made an Order dated July 25, 2017, setting aside McSweeney J.’s Order on that ground.

(vi) Re-trial of Mr. Udofe’s motion

[22] The Court re-tried Mr. Udofe’s motion on September 5, 2017. Mr. Udofe again sought to show that there had been a material change in his circumstances since the last variation of Fragomeni J.’s order was made. He asks the court to vary Fragomeni J.’s Order by ending his child support obligation on the ground that the children are no longer attending school, and to rescind the arrears of his child support and his contribution to the payment of the children’s s. 7 expenses on the grounds that they were based on an amount of income that he never earned.

ISSUES

[23] The parties’ motions require the court to determine the following issues:

(1) Has there has been a material change in circumstances since Van Melle J.’s Order dated October 17, 2011, being the last variation of Fragomeni J.’s final Order dated June 21, 2007?

(2) Is Ms. Unegbu entitled to receive child support for the support of Precious and Destiny since the change in circumstances and, if so, what amount of child support is appropriate?

(3) What contribution, if any, Is Mr. Udofe required to make to the children’s special and extraordinary expenses?

a) Has there been a material change of circumstances?

Legal Framework

[24] In order to vary a final order, the court must find that there has been a “material change in circumstances” since the order was made.[^3] If the court finds that there has been a material change, it may make an order increasing, decreasing, or eliminating the amount of support payable pursuant to the Divorce Act, s. 17, and the Federal Child Support Guidelines, s. 14.

[25] The Supreme Court of Canada has provided guidance regarding the meaning of the phrase, “material change in circumstances”. It means a change that, had it been known at the time the order was made, would have led to a different order being made.[^4]

Applying the legal principles to the facts of this case

[26] For the reasons that follow, I find that there have been material changes in the circumstances of Mr. Udofe and the children since Van Melle J. last varied the Order of Fragomeni J. on October 21, 2011. The order for child support and for contribution to the payment of s. 7 expenses will be varied accordingly.

Change in Mr. Udofe’s circumstances:

[27] Mr. Udofe is 53 years old. He was born in Nigeria and completed high school there. As a young man, he became a professional boxer and in 1993, he travelled to Argentina and Brazil for boxing matches. While there, he met Ms. Unegbu, a fellow Nigerian, who was in Brazil studying for her Masters degree in nutrition. In 1997, Mr. Udofe immigrated to Canada. Later that year, Ms. Unegbu, whom he had met while boxing in Brazil, joined him in Canada, and their daughter was born.

[28] Mr. Udofe continued to box intermittently until 2007. With Ms. Unegbu’s encouragement, he completed a Canadian high school program in Etobicoke and later enrolled in a program at Humber College, where he earned a Diploma in June 2004 as a Computer and Network Support Technician. He states that he was unsuccessful in his efforts to secure employment in that field.

[29] On March 22, 2004, Mr. Udofe incorporated a used car business, Phildoff Business Venture Ltd. On August 6, 2004, he registered himself and the business as motor vehicle salespersons under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B. Mr. Udofe was Phildoff’s sole Director. He testified that he had learned about cars growing up in Nigeria, as his father was a mechanic.

[30] In the hearing before this court in September 2017, Mr. Udofe acknowledged that on March 5, 2012, the Registrar appointed under the Motor Vehicle Dealers Act had revoked his registration and that of Phildoff Business Venture Ltd. based on inspections the Registrar had caused to be made between 2008 and 2010. The inspections disclosed Non-Compliant Bills of Sale, and correspondence from the Ministry of Revenue on August 29, 2011, stating that the business was in arrears of tax payments in the amount of $93,102.58. Mr. Udofe appealed unsuccessfully to the Licence Appeal Tribunal. He eventually closed the business in 2012.

[31] Mr. Udofe acknowledged that he once assisted his mother, who owned and operated The Main Beauty Supply Centre, in Toronto. He testified that his mother’s beauty supply business was wound up in 2014. Ms. Unegbu disputes this and claims that Mr. Udofe continues to operate the business, but offered no evidence to support this.

[32] The FRO Statement of Arrears discloses that the majority of Mr. Udofe’s arrears of child support accrued from 2007 to 2014, when he says he was unable to find steady employment.

[33] From 2007 to 2014, Mr. Udofe’s reported annual income averaged $11,565. He produced Notices of Assessment from the Canada Revenue Agency[^5], which disclosed the following Line 150 incomes:

• 2008: $6,905

• 2009: $15,330

• 2010: $8,585

• 2011: $7,055

• 2012: $18,585

• 2013: $14,405

• 2014: $15,367

[34] Mr. Udofe was represented by a lawyer when he consented to the Order of Fragomeni J. in 2007. At the time, he says, he was trying to sell his used car business. He understood from his lawyer that it would be too costly to go to trial and he therefore agreed to pay child support of $600 per month, which was the “table” child support based on income of $40,000 per year. The parties’ children were still in elementary school at the time and Mr. Udofe was optimistic that he would be able to earn $40,000 per year, so the Order was based on that level of expected earnings. Mr. Udofe now states that he was never, in fact, able to earn that amount until 2015.

[35] In her reasons dated October 21, 2011, Van Melle J. found that Mr. Udofe was not credible in his explanation. At paragraph 13 of her reasons, she asks, “Why would he agree to pay $600.00 as child support in 2006 and then again in 2007, if he did not have the income to support such a payment?” I agree with Van Melle J.’s assessment of Mr. Udofe’s explanation.

[36] Mr. Udofe testified that he sought employment through temporary agencies and obtained short term positions at various rates of pay. In October 2014, he was offered his present full-time position at Magna Seating Systems, a company that initially employed him in a temporary capacity. In 2015, his Line 150 income was $58,859;[^6] in 2016, it was $50,145.[^7] The decline from 2015 to 2016 resulted, he says, in the loss of a contract by Magna, which reduced the amount of overtime that was available to him.

[37] The court must consider whether Mr. Udofe’s low income since October 21, 2011, when Van Melle J. made the most recent final Order varying Fragomeni J.’s final Order, is a material change in circumstances.

[38] Mr. Udofe asserts that he was unable to earn $40,000 per year from June 21, 2007, when Fragomeni J. made his final order, to October 21, 2011, when Van Melle J. made her Order. He states that he was not able to earn that amount until 2015. He therefore seeks a variation of support from June 21, 2007, onward.

[39] The Divorce Act states that I must identify whether a material change of circumstances has occurred “since the making of the child support order or the last variation order made in respect of that order.”[^8] (Emphasis added.) Justice Van Melle made the last variation of Fragomeni J.’s Order on October 21, 2011. Mr. Udofe is therefore not entitled to a reduction in child support for 2011 or prior years.

[40] The nature of Mr. Udofe’s employment did not undergo a material change from 2011 until the fall of 2014, when he secured part-time employment at ADP, Mississauga Seating Systems, a Division of Magna, with a base salary of $40,000 and he was able to earn substantially more than that in overtime. That employment became permanent in 2015.

[41] I find that Mr. Udofe’s capacity to earn income did not materially change from 2007, when Fragomeni J. made his Order, until 2015. Notwithstanding that the Line 150 income that he reported to the Canada Revenue Agency from 2012 to 2014 was lower than $40,000, Justice Van Melle, in 2011, found Mr. Udofe’s assertion that he was incapable of earning a greater amount was not credible. For the reasons that follow, I also find that his assertion that he was unable to earn $40,000 from 2012 to 2014 is not credible.

[42] The fact that Mr. Udofe reported income lower than $40,000 from 2012 to 2014 is not, by itself, a basis for finding that there was a material change in circumstances during that period. Mr. Udofe’s capacity to earn income did not materially change. To hold otherwise would, in effect, permit Mr. Udofe to appeal from the Order of Van Melle J. based on the same facts that existed at the time of the hearing before her, and that continued to exist until the fall of 2014, when Mr. Udofe secured his employment with Magna.

[43] In the fall of 2014, Mr. Udofe secured employment with Magna with an annual salary of $40,000.00. He still holds that employment. His income in 2014 was no greater than it was in 2007, when Fragomeni J. made his final Order. It was also no greater than on October 21, 2011, when Van Melle J. found that he was capable of earning $40,000. That change of employment alone therefore did not amount to a material change of circumstances.

[44] Mr. Udofe’s employment at Magna offered him extensive overtime in 2015 and 2016. This resulted in an annual (Line 150) income as follows, as appears from his Notices of Assessment and T4 slips:

(a) His income in 2015 was $58,859

(b) His income in 2016 was $50,145.

[45] Had Mr. Udofe been employed with Magna Seating Systems in 2012, and earned the above amounts of income, the court on October 21, 2011, would have ordered him to pay table child support commensurate with that income. He was clearly capable of earning more than $40,000 per year beginning in 2015. His increase in income in 2015 and 2016 therefore amounts to a material change of circumstances.

Change in the Children’s Circumstances:

(i) Precious

[46] Precious graduated from high school in the spring of 2015. Ms. Unegbu, who played tennis unprofessionally in the past, secured training for Precious during her high school years and then hired an agent to find a University that would offer her a scholarship. Precious received a full scholarship to Coppin State University in Baltimore Maryland, where she began her studies in September 2015. Her scholarship covers tuition as well as room and board. She has completed her second year of a four year program, and is expected to graduate in the spring of 2019. She began her studies in a biology program and is now in a pre-med program.

[47] Precious lived with her mother, Ms. Unegbu, in Brampton until she began attending university. She also lived with Ms. Unegbu for 8 months in 2015, until she left for university. In 2016, she was home for only the four summer months. Mr. Udofe expects that this pattern will continue until Precious graduates in the spring of 2019.

[48] Precious works during the summer and contributes as much as she can to her own school costs.

(ii) Destiny

[49] Destiny graduated from high school in the spring of 2016. Like his sister, he lived with Ms. Unegbu until he began attending university. On August 10, 2016, he began post-secondary studies at Brock University in St. Catharines Ontario. He then transferred to Shaw University, a private liberal arts university in Raleigh, North Carolina, where he was offered a partial scholarship. He began attending at Shaw in the fall of 2017. He is currently in a biology program and expects to graduate in the spring of 2020. Ms. Unegbu testified that Destiny, like Precious, has aspirations of eventually entering medical school.

[50] Like Precious, Destiny lives at home with Ms. Unegbu only during the four summer months. In 2016, he lived with Ms. Unegbu for 8 months. In 2017, he was home for only four months during the summer, and the same is expected in 2018 and 2019.

[51] Destiny works during the summer as much as he can, to contribute to the cost of his studies.

[52] Precious began post-secondary studies in the United States and lived outside the country from the fall of 2015, with the exception of the summer months. Destiny began post-secondary studies at Brock University and lived in St. Catharines from the fall of 2016, with the exception of the summer months. The children’s commencement of post-secondary studies is therefore a material change in their circumstances that justifies a change in the support payable beginning in September 2015.

[53] Having found a material change in circumstances, I now turn to consider whether Ms. Unegbu is entitled to continue receiving child support and, if so, in what amount, for the period from 2015 to the present.

b) Is Ms. Unegbu still entitled to receive child support?

Legal Framework

[54] The issues that need to be addressed here are whether Precious and Destiny continue to be a children of the marriage, within the meaning of s. 2(1) of the Divorce Act[^9], whether using the Table amount under the Child Support Guidelines is the appropriate approach, and if not, what amount of child support is appropriate[^10].

[55] The first question is whether the change in circumstances has ended the obligation to pay child support. Under the Divorce Act, an order may be made requiring one parent to pay child support to the other parent for a child that “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 necessities of life”.[^11]

[56] The operative words here are “under their charge” and “unable by reason of … other cause to withdraw from their charge”. The parent seeking child support must be supporting the child and it must be reasonable for him or her to do so because the child is not able to support him or herself.

[57] The question is whether the parent seeking support remains financially responsible for the adult child and whether or not that is reasonable under all of the circumstances.[^12] The key consideration is dependency.[^13]

[58] The factors often applied in deciding this question are the “Farden factors”. These were first set by Master Joyce (as he then was) in the Supreme Court of British Columbia in 1993.[^14] They have often been cited since in this court.[^15] The factors were set out as follows:

(a) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

(b) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(c) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(d) the ability of the child to contribute to his own support through part-time employment;

(e) the age of the child;

(f) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(g) what plans the parents made for the education of their children particularly where those plans were made during cohabitation;

(h) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated their relationship from the parent from whom support is sought.

[59] The principles applying to the determination of these issues were summarized by the Manitoba Court of Queen’s Bench in Harrison v. Vargek, (2002)[^16] and cited with approval by this Court in Haley v. Haley, (2008)[^17].

• A child who is in regular attendance at school is generally unable to withdraw from his parent’s charge or provide for himself.[^18]

• A child may therefore bring himself within the definition of a “Child of the Marriage” by pursuing the education he needs to equip himself for the future.[^19]

• “Child of the Marriage,” as defined by the Divorce Act, includes children over 16 who are still pursuing their education, now considered a necessary of life.[^20] This includes, in some cases, post-secondary education.[^21]

• A child who has withdrawn from his studies may be reinstated to his support entitlement by bringing themselves back within the definition of Child of the Marriage under the Divorce Act:[^22]

• It is a question of fact, in each case, whether a particular child remains a Child of the Marriage for support purposes.[^23]

• The Child Support Guidelines direct the court, when assessing the amount of support for a Child of the Marriage, whether the child is above or below the age of majority, to use the Tables.

• The presumptive rule is that basic child support for a child over the age of majority, as for minor children, is set in accordance with the Tables.[^24] If the court considers that approach inappropriate, it may quantify support by another means, as it considers appropriate, having regard to the child's condition, means, needs and other circumstances, as well as the financial ability of the spouses to contribute to the child's support. The onus of proving inappropriateness is on the payor[^25].

• In addition to basic child support, the court can order the sharing of a child’s post-secondary education expenses (s. 7(1)(e) of Child Support Guidelines). Such claims are subject to the discretionary tests of necessity and reasonableness.

• Children pursuing post-secondary education are expected to contribute to the cost of their own studies[^26]. While the level of contribution is subject to debate, an adult child must bear some of the responsibility for his or her own support[^27].

Applying the legal principles to the facts of this case

[60] I find that Precious and Destiny are still Children of the Marriage within the meaning of the Divorce Act. They are enrolled in appropriate courses of study suited to their respective talents. The evidence satisfies me that their earnings are not sufficient to meet their respective living expenses. They are still in a position of financial dependency, notwithstanding the scholarship Precious has earned, and both children’s efforts to help support themselves and contribute to the payment of their education expenses. Considering the factors set out in Haley v. Haley, Precious and Destiny will continue to be Children of the Marriage, at least until they receive their first undergraduate degrees.

c) What amount of child support is appropriate?

Legislative Framework

[61] In determining quantum of child support, the court must consider section 3(2) of the Child Support Guidelines which states:

Child the age of majority or over

3. (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child. [Emphasis added].

Jurisprudence

[62] Section 3(2) requires the Court to determine whether the table amount set out in the Guidelines is “inappropriate”. If it is not inappropriate, the table amount should be ordered.

[63] The Supreme Court of Canada, in Francis v. Baker, (1999), held that the onus is on the paying spouse to demonstrate that the table amount of child support for an adult child is no longer appropriate. The case law has made clear that the party seeking a deviation from the guideline amount must establish “clear and compelling evidence” that the deviation is in the child’s best interest. The focus must be on the child’s actual circumstance and all of the statutory factors noted in s. 3(2) must be considered.

[64] The Manitoba Court of Appeal provided a helpful analysis of this issue in Rebenchuk v. Rebenchuk , (2007)[^28] where it stated:

28. …As Bastarache J., for the court, held in Francis v. Baker, 1999 CanLII 659, [1999] 3 S.C.R. 250, "inappropriate" in the context of the Guidelines means "unsuitable" rather than inadequate. This interpretation gives the court a broad discretion to accept or reject the prescribed amount of child support. In the result, while the courts' very broad discretion prior to the introduction of the Guidelines has been reduced, it has not been eliminated. There is still ample room for the "judicial fiat" under the Guidelines.

29. Some courts, such as those in Ontario, have held that there is a presumption that the table amount for minor children will apply with the onus of proving otherwise on the parent so asserting. See, for example, Arnold v. Washburn, 2000 CanLII 22732 (ON SC), [2000] O.J. No. 3653 (Ont. S.C.J.), and MacLennan. The British Columbia Court of Appeal on the other hand (see N. (W.P.) v. N. (B.J.)) has taken the position that the table amounts plus add-ons will normally be inappropriate where an adult child is attending a post-secondary institution. This is because the table amount does not contemplate a child's contribution (which is implicit in sec. 3(2)(b) of the Guidelines and explicit in sec. 7(2)). It would appear that the Family Division in this province generally follows the Ontario approach, at least where the child lives with one of the parents and is attending the first level of post-secondary education. [Citations omitted]

[65] Sanderson J., in Wegler v. Wegler, (2012), summarized the approach set out in Rebenchuk as follows:

68. It can now be safely stated that the following three steps need to be addressed in circumstances such as those before us:

Step 1: Is the person for whom support is sought a “child of the marriage”?

Step 2: Is the table amount in the Guidelines “inappropriate”? If not, then the Guidelines amount should be awarded.

Step 3: If the answer to Step 2 is “yes,” what level of support is "appropriate"?[^29]

[66] Pursuant to section 3(2)(b) of the Guidelines, if the Court considers that approach to be inappropriate, it must fix the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the children, and the financial ability of each parent to contribute to their support.

[67] The Court of Appeal in Lewi v. Lewi, (2006),[^30] made it clear that there is no formulaic approach to the determination of the appropriate monthly support when deviating from the Table amount. S. 3(1)(b) directs the court to consider “the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child”.

[68] In Armaz v. Van Erp, (2000), Perkins J. found no evidence to support the father’s contention that the mother would realize a “windfall” should he continue to pay guideline support as well as his adult daughter’s post-secondary tuition. He stated, at para. 17 and 18:

It is open to the court to depart from the guideline in the case of children over 18, but I am not of the view that this is merited here and I am also not persuaded that the support should be paid entirely to the child. One of the purposes of the child support in this case is to maintain the daughter’s permanent home and to cover the myriad of incidentals that the primary residence parent provides to a child, whether living at home that month or away at school – coverage on car insurance, clothing, spending money and the like. This is what the table amount is intended to fund.

The payment of the s. 7(e) expenses, post-secondary education costs, is quite another matter. There the very purpose of the support add on is to cover additional expenses not related to the provision of a home, food, clothing or recreation, but rather education-related expenses that are generally paid to third parties such as universities, bookstores, railways or airlines. It is accordingly not inappropriate to have the s. 7 expenses paid to the daughter or to those third parties directly.[^31]

[69] In Corby v. Corby, (2015), which referred to the decision of the Court of Appeal in Park v. Thompson, (2005), the Court stated:

When a child attends a post-secondary educational institution, is over the age of majority and is not living at home during the academic school year, then it is not appropriate to use the approach in s. 3(2)(a) because the table amount is premised on the assumption that the recipient parent is providing for the expense of a child who resides with that parent; and accordingly the means and needs analysis set out in s. 3(2)(b) should be used instead.

During the time that each child was attending college or university, I find that the calculation of child support pursuant to the “standard approach” in s. 3(2)(a) is not appropriate and that the child support should be determined pursuant to s. 3(2)(b). During the summer months, however, the “standard approach” to child support, while the child was residing with the respondent, is appropriate, and the applicant should pay the table amount of child support for the four months between academic semesters.[^32]

[70] When the child is over the age of majority, dependency is the key criterion for entitlement to support: McCrea v. McCrea, [2005] O.J. No. 50, at para. 11. In Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.S.C.), at para. 15, the Court found that a number of factors (the “Farden Factors”) are relevant to the question of dependency where the child is pursuing an education:

(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;

(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4) the ability of the child to contribute to his own support through part-time employment;

(5) the age of the child;

(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

The condition, means, needs, and other circumstances of the children

[71] Precious and Destiny are living in the United States while they are attending post-secondary studies. They receive financial assistance at their respective schools, but continue to require financial support from their parents for the balance of their expenses during the academic session and during the summers.

[72] Having regard to the children’s economic circumstances, each is likely to continue returning to Ms. Unegbu’s home during the summer. It is in the children’s best interests that Ms. Unegbu continue to maintain accommodation for them in her home for when they return for Christmas, March break, and during the summers.

[73] Ms. Unegbu realizes only a modest reduction in her expenses from the children’s absence from the home during the school year, including reductions in her expenses for groceries and perhaps water consumption. Those decreases are offset by other costs, for example, their relocation costs, travel costs, local transportation, cell phone charges, etc.

[74] Ms. Unegbu is maintaining a permanent home for the children and she is the parent whom the children turn to if they have problems or incur expenses. In this case, it is only the university expense which is considered extraordinary with the result that all other expenses respecting the children’s needs and activities are paid for by their mother.

The Financial ability of each spouse to contribute to the children’s support

(i) Mr. Udofe’s financial ability

[75] Mr. Udofe continues to be employed at Magna Seating Systems, although beginning in May 2017 and continuing to the time of the trial in September 2017, he had been on medical leave, and was receiving short term disability benefits.

[76] Mr. Udofe’s employment at Magna offered him extensive overtime in 2015 and 2016. This resulted in an annual (Line 150) income as follows, as appears from his Notices of Assessment and T4 slips:

(a) His income in 2015 was $58,859

(b) His income in 2016 was $50,145.

[77] Mr. Udofe’s Notice of Assessment for 2015 discloses that he filed a T4 slip reporting employment from Randstad Interim Inc., a staffing and recruitment agency that provides full-time, temporary, temporary-to-permanent, and permanent hiring services. When the Court asked Mr. Udofe about this, he acknowledged that since 2014, he had sometimes worked for the Agency if he was short on rent.

[78] Mr. Udofe states that he developed arthritis in his joints, which resulted in his taking a medical leave of absence from Magna in May 2017. He states that he has arthritis in his knees, which prevents him from standing for long periods, and in his wrists, which leaves him unable to grip anything.

[79] Mr. Udofe produced a series of Earnings Statements from ADP, Mississauga Seating Systems – a Division of Magna. They show that his year to date income as of May 7, 2017, was $12,987.92.

[80] Mr. Udofe tendered Clinical Notes and Records from his doctors, which were entered as Exhibit 1 C at the trial. They consisted of the following:

• Progress Notes dated May 12, 2016 (2 pages).

• A WSIB (Workplace Safety and Insurance Board of Ontario) Functional Abilities Form dated December 5, 2016, completed by Dr. Dana Jerome, based on an assessment on that date, completed, regarding Early and Safe Return to Work (4 pages).

• A letter dated January 20, 2017, from Dr. Dana Jerome, of the Specialized Medicine Rheumatology Program of Women’s College Hospital in Toronto (1 page).

[81] The Progress Notes from May 12, 2016, reports that Mr. Udofe’s doctor, Abdullahi Alisheikh Berih, referred him to Dr. Dana Jerome, a rheumatologist, for joint pain. The Notes state that Mr. Udofe complained that his hands felt numb and that he thought that his fingers were swollen. He stated that he found that working on the machines at work made his hands worse, and that when he starts working with his hands, they loosen up.

[82] Dr. Jerome conducted a physical examination. He did not think that Mr. Udofe’s suffered from inflammatory arthritis. He thought that more likely his complaints were due to osteoarthritis and a component of carpal tunnel syndrome. Dr. Jerome filled out paperwork for Mr. Udofe’s employer (the WSIB Functional Abilities Form) necessary to ask that Mr. Udofe be relieved of working on machines that required repetitive wrist movements. Dr. Jerome recommended wrist splints and gave Mr. Udofe a requisition for those. He ordered nerve conduction studies and scheduled a follow up visit.

[83] In Dr. Jerome’s final note dated January 20, 2017, he expressed the hope that Mr. Udofe’s symptoms would resolve over time and with rest and splinting. He states that his investigations are ongoing and that it is too early to determine Mr. Udofe’s long term outcome.

[84] Based on the material Mr. Udofe tendered, I accept Dr. Jerome’s opinion dated January 20, 2017, that it was too early at that time to determine Mr. Udofe’s long-term outcome but that his symptoms were likely to resolve over time. Mr. Udofe testified that he was receiving short term disability benefits, which he expected would continue until October 2017.

[85] As noted above, Mr. Udofe’s Earnings Statements from ADP, Mississauga Seating Systems, show that his year to date income as of May 7, 2017, was $12,987.92. His ADP Earnings Statement dated August 3, 2017, shows that his gross pay while receiving short-term disability payments was $462.25 per week. I impute that level of earnings to him for the 26 weeks from May 7 to November 3, 2017. His income for those 26 weeks, at $462.25, amounted to $12,018.50.

[86] Mr. Udofe was in the care of specialists, who were optimistic that his symptoms would resolve long-term. It is therefore likely that he returned to full-time work at the beginning of November 2017. It is likely that in the final 8 weeks of the year, from November 3 to December 31, 2017, he earned the same weekly rate of $964.32 per week that he received during the period up to May 7, 2017, which amounted to a further $7,714.56. I therefore impute a total income of $32,720.98 to Mr. Udofe in 2017, calculated as follows:

$12,987.92 (as of May 7, 2017, as appears from his Earnings Statements from ADP, Mississauga Seating Systems – a Division of Magna)

$12,018.50 ($462.25 per week x 26 weeks from May 7 to Nov. 3, 2017)

$ 7,714.56 ($964.32 per week [$50,145/52 weeks] x 8 weeks from Nov. 6 to December 31, 2017)

$32,720.98 TOTAL

[87] The medical records that Mr. Udofe tendered do not support a conclusion that he is permanently disabled. He was receiving short-term disability benefits. Dr. Jerome was optimistic that his symptoms would resolve long-term. Based on that evidence

[88] I am satisfied that following his period of short-term disability, Mr. Udofe will be capable of earning income at the $50,000.00 level that he earned in 2016. His child support obligation as of October 1, 2017, will be $755 per month, being the table child support amount based on an imputed income of $50,000 per year, without prejudice to his right to move for a further variation in the event that his doctors conclude that he is permanently disabled.

[89] If Mr. Udofe makes a further motion for variation of his child support obligation, he shall be required to produce sufficient evidence to enable the court to determine his income based not only on the income he reports to the Canada Revenue Agency, but whether his spending aligns with his reported income. This includes.

(a) An up-dated Financial Statement in form 13.1;

(b) His complete income tax returns, with all schedules and attachments, for the years from 2015 onward;

(c) His Notices of Assessment and Re-assessment from Canada Revenue Agency, for the years from 2015 onward;

(d) All monthly statements for the period from January 1, 2015, onward, for all bank accounts and credit cards he operated during that period.

(ii) Ms. Unegbu’s financial ability

[90] For the reasons that follow, I impute to Ms. Unegbu an annual income of $24,017.00, being the current minimum wage salary in Ontario.

[91] After the birth of the parties’ second child, Ms. Unegbu underwent a 1 year internship as a nutritionist in Hamilton, Ontario. She later sat for an examination, which she passed successfully, qualifying her as a registered dietician in Ontario. She later secured employment with a diabetes education program in Toronto, where she was employed from 2002 to 2008.

[92] The organization that employed Ms. Unegbu obtained Government funding to open a branch in Brampton. Ms. Unegbu went to work there, as it shortened her commute. A Director was later hired, who combined the roles of a co-ordinator, dietician, and nurse. The Director terminated the employment of the office’s three employees, including Ms. Unegbu. Ms. Unegbu then established her own business, “Nutrition and Fitness with Hope” which she operates from her home in Brampton.

[93] Ms. Unegbu produced her Notices of Assessment for 2013 to 2016 and her Information Returns for those years. They disclose the following total (Line 150) incomes:

• 2013: $13,102.00

• 2014: $11,988.64

• 2015: $12,200.00

• 2016: $13,654.00

[94] Ms. Unegbu’s General Jacket Outline for 2016 discloses that her Gross Business Income that year was $33,053.02 and that her net business income was $13,257.24. Her T1 Jacket for 2015 discloses that her Gross Business Income that year was $33,275.00 and her net business income $11,300.85.[^33] The Schedules for the returns were not filed, with the result that I am unable to determine what expenses she deducted. I infer from the fact that she operates her business from her home that those expenses include some of the expenses of operating the home that would otherwise be regarded as personal expenses.

[95] Mr. Udofe pointed out that Ms. Unegbu purchased a BMW X5 automobile in 2015. In her Financial Statement sworn March 24, 2015, she discloses owning a 2014 BMW X5 that she values at $30,000.00. She testified that she paid that amount for the vehicle in order to have reliable transportation to Kingston where she does presentations. I infer from this that Ms. Unegbu also deducts automobile expenses from her business income.

[96] Based on the foregoing facts, I find that Ms. Unegbu is foregoing a minimum wage income in order to operate her own business, which offers at least equal financial advantages to her. I therefore impute to her an annual income of $24,017.00, for the period from 2015 onward.

(iii) Conclusion

[97] I find that Destiny and Precious continue to be financially dependent on their parents for support and that they are therefore still “children of the marriage” within the meaning of the Divorce Act. I find that Ms. Unegbu requires financial support from Mr. Udofe in order to supplement the financial assistance the children receive from their respective schools, and that Mr. Udofe is capable of providing that support. I further find that Ms. Unegbu requires financial support from Mr. Udofe in order to provide accommodation for the children during their holidays and during the summer months, and that Mr. Udofe is capable of providing that support.

[98] I find that it is appropriate to take the approach set out in the Guidelines for children who are minors for the four summer month when the children are primarily resident with Ms. Unegbu. For the eight months when the children are attending university in the United States, I find that it is appropriate to discount the table amount of support that Ms. Unegbu receives from Mr. Udofe.

[99] Having regard to Ms. Unegbu’s limited means, Mr. Udofe should be paying one third the Table Amount during the eight months when the children are attending school away from home, and at the full table Amount during the four summer months when they are residing with Ms. Unegbu.

What amount of child support should Mr. Udofe pay?

Child support payable in 2015 and 2016

[100] Based on the increase in Mr. Udofe’s income in 2015, and Precious’ attendance at university in the U.S. in September of that year, and Destiny’s attendance at Brock University in St. Catharines in September 2016, and at Shaw University in September 2017, Mr. Udofe’s child support obligation for 2015 and 2016 will be increased to the table support for two children, based on the actual income he earned in those years, and then will be adjusted to take account of the time the children have spent living away from Ms. Unegbu’s residence while they attended university.

(i) Child support in 2015

[101] The amount of Mr. Udofe’s child support payments from January 1 to September 1, 2015, when both children were residing with Ms. Unegbu, will be calculated at $888.77 per month, being the table amount prescribed by the 2011 Guidelines for 2 children based on Mr. Udofe’s annual income of $59,764. I round the amount up to $889. On this basis, Mr. Udofe’s child support obligation for the first 8 months of 2015 is $7,112 ($889 per month x 8 months).

[102] To arrive at the amount of Mr. Udofe’s child support payments from September 1 to December 1, 2015, when only Destiny was with Ms. Unegbu and Precious was away at university, I first calculate child support for one child at the 2011 Guidelines amount of $544 for four months, being $2,176. I next add 1/3 of the difference between the support for one child ($544) and the support for two children ($889), being $345. This amounts to $114.89 ($345 x 33.3%). Which I round up to $115. For four months, this amounts to $460. The total amount of child support for this period is therefore $2,636 ($2,176 + $460).

[103] Based on the foregoing, the total amount of child support for 2015 was $9,748 ($7,112 + $2,636), or a monthly amount of $812.33 ($9,748 ÷ 12), which I round down to $812.

(ii) Child support in 2016

[104] The monthly child support from January to April, 2016, when Precious was attending university in the U.S. and Destiny was living at Ms. Unegbu’s home, will be calculated as $451.45, being the table child support payable for one child ($450 + 1.42), based on Mr. Udofe’s annual income of $50,145, plus $97.82, being one third the $293.73 difference between the table amount of $451.45 for one child and the table child support of $745.20 for two children ($743 + $2.20), based on the same income. On this basis, Mr. Udofe’s monthly child support obligation for the first 4 months of 2016 is $549.27 ($451.45 + $97.82), or a total of $2,197.08, ($549.27 x 4 months).

[105] The amount of Mr. Udofe’s child support payments for the four summer months of May to August will be $2,980.80, based on the table child support payable for two children, being $745.20 per month, at Mr. Udofe’s income of $50,145.

[106] Because Destiny began his post-secondary studies away from home in the fall of 2016, the monthly child support from September to December 2016 will be $248.15, being 1/3 of the table child support of $745.20 for two children. The total child support from September to December will therefore be $992.60 ($248.15 x 4 months).

[107] So as to effect uniform payments, the total child support of $6,170.48 ($2,197.08 + $2,980.80 + $992.60) payable for the year will be divided by 12 months, to produce a monthly child support amount of $514.21, which I round down to $514.

(iii) Child support in 2017

[108] For the reasons stated above, I have imputed an income of $32,720.98 to Mr. Udofe in 2017. That year, both Precious and Destiny were attending school away from home for seven months, from January to April and from September to November. For those months, Mr. Udofe’s monthly child support will be $158.87, being 1/3 of the table child support for two children, being $477.09 ($467 +10.09, being 1.4 % x $720.90) based on that amount of income. The total child support for those seven months will therefore be $1,112.09 ($158.87 x 7 months). For the 4 summer months, Mr. Udofe’s child support will $1,908.36, being $477.09 per month x 4 months. The updated Federal Child Support Tables came into effect on November 22, 2017, whereupon the child support payable for two children became $498.67, based on an income of $32,720.98. 1/3 of that amount is $166.06.

[109] Based on the foregoing, Mr. Udofe’s child support for 2017 was $3,186.51 ($1,112.09 + $1,908.36 + $166.06.). So as to effect uniform payments, the total annual support of $3,186.51 for 2017 will be divided by 12 to produce a monthly child support amount of $265.54, which I round up to $266.

(iv) Child support in 2018

[110] I find it likely that in 2018, Mr. Udofe resumed receiving income of $50,145 per year, as he earned in 2016. His child support for that year will be $5,047.91, calculated as follows:

$2,017.95 Monthly child support of $252.24, being 1/3 of $757.49 per month, the table child support for two children, for the eight months when the children were attending school away from home; and

$3,029.96 Table child support of $757.49 per month for two children for the four summer months.

$5,047.91 TOTAL

[111] So as to effect uniform payments, the total annual support of $5,047.91 will be divided by 12 to produce a monthly child support amount of $420.66, which I round up to $421.

(v) Child support in 2019

[112] For 2019 and 2020, I am making my calculations based on 2018 taxation rates.

[113] I find it likely that in 2019, Mr. Udofe will continue receiving income of $50,145 per year, as he earned in 2016. In 2019, Precious is expected to graduate in the spring. Accordingly, Mr. Udofe’s child support for the year will be $3,473.84, calculated as follows:

$1,008.96 $252.24 per month, being 1/3 of $757.49 per month, the table child support for two children, for January to April;

$1,849.12 $462.28 per month for Destiny alone for the four months of May to August;

$615.76 $153.94, being 1/3 of $462.28 per month, the table child support for Destiny alone, for the four months from September to December.

$3,473.84 TOTAL

[114] So as to effect uniform payments, the total annual support of $3,401.17 will be divided by 12 to produce a monthly child support amount of $289.49, which I round up to $290.

(vi) Child support in 2020

[115] I find it likely that in 2020, Mr. Udofe will continue receiving income of $50,145 per year, as he earned in 2016. Destiny is expected to graduate in the Spring of 2020. Accordingly, Mr. Udofe’s monthly child support, from January to April, shall be $153.94, being 1/3 of $462.28 per month, the table child support for Destiny alone, for the four months from January to April. In order to effect uniform payments, the total support of $615.76 ($153.94 x 4 months) shall be divided by four, resulting in monthly child support of $153.94, which I round up to $154.

What contribution should each parent make to the children’s special and extraordinary expenses?

Legislative framework

[116] The contribution that parents are required to make to their children's education costs is governed by s. 7 of the Guidelines:

7. (1) In a child support order the court may, on either spouse's request, 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 spouses and those of the child and to the family's spending pattern prior to the separation:

(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 and 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.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the 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 paragraph (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 spouse requesting the amount, including the amount that the 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 or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor 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 spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(9) 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.[^34]

[Emphasis added]

Jurisprudence

[117] The well-established test for whether an expense is extraordinary is whether it is "reasonable and necessary", having regard to the parents' individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties' historic spending patterns.

[118] Once having determined that an expense is extraordinary, having regard to the parties' joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, the court must, pursuant to s. 7, apportion responsibility for the expense in proportion to the parties' incomes.

[119] To determine a child’s child support, including s. 7 expenses, during the academic year, it is necessary to embark on an assessment of the child’s needs for the period of the year she or he resides at university, and apportion those needs between the parents, after taking into account the child’s contribution, if any.[^35]

[120] In Titova v. Titov, in 2012, the Court of Appeal for Ontario set out the procedure courts must apply when determining whether to award special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, as follows:[^36]

1. Calculate each party’s income for child support purposes

2. Determine whether the claimed expenses fall within one of the enumerated categories of s. 7

3. Determine whether the claimed expenses are necessary “in relation to the child’s best interests”

4. Determine whether the claimed expenses are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”

5. If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.

6. Consider what amount, if any, the child should reasonably contribute to the payment of these expenses

7. Apply any tax deductions or credits.[^37] [Emphasis added.]

[121] Having completed this exercise, the court must then determine how the balance of the expenses should be apportioned between the parties.[^38]

Factors Relevant to “Reasonableness”

[122] In Terry v. Moyo, in 2013, Justice O`Connell of the Ontario Court of Justice adopted six factors relevant to determining the reasonableness of a s.7 expense, as enunciated by the Manitoba Court of Appeal in 2002. They include:

(1) The combined income of the parties;

(2) The fact that two households must be maintained;

(3) The extent of the expense in relation to the parties' combined level of income;

(4) The debt position of the parties;

(5) Any prospects for a decline or increase in the parties' means in the near future; and

(6) Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.[^39]

The Test for “Extraordinary”

[123] Section 7(1.1) of the Federal Child Support Guidelines provides the following definition of “Extraordinary Expenses”:

DEFINITION OF “EXTRAORDINARY EXPENSES”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the 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 paragraph (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 spouse requesting the amount, including the amount that the 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 or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[Emphasis added]

[124] The test set out in section 7(1.1) takes account of the spouse’s income and the amount of child support to be received. In MacNeil v. MacNeil, in 2013, Gauthier J. succinctly sets out the jurisprudence interpreting “extraordinary”:

The real issue is whether the expenses are “extraordinary.”

The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:

It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 1998 CanLII 5558 (BC CA), 167 D.L.R. (4^th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.

This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts” [emphasis added] (para 13).

“Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 CanLII 14093 (MB CA), [1998] M.J. No. 196, 159 D.L.R. (4th) 665:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.[^40]

[Emphasis added].

[125] In Bordin v. Bordin, (2015), Horkins J. stated the subjective considerations that the court should take into account as follows:

An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course (see Celotti v Celotti, [2007] O.J. No. 2538 (S.C.); Park v Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (C.A.)).[^41]

[126] In Boisvert v. Boisvert, (2007), Whitten J. noted at para. 48:

Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.[^42] [Emphasis added].

Applying the legal principles to the facts of this case

[127] Ms. Unegbu claims the following as the expenses associated with the children from 2015 to the date of the hearing:

1. Expenses incurred for Precious from 2015 to date: $4,618.12

a. Flight tickets from 2016 to the date of the hearing: $3,040.12

b. Kaplan books for SAT, NCAA and SAT fees in 2015: $350.00

c. Agent fees in 2015: $300.00

d. Pocket money in 2015: $645.00

e. Purchase of IPhone in 2015: $1,200.00

f. Purchase of laptop in 2015: $670.00

g. Student SEVIS in 2015: $258

(Student and Exchange Visitor Program)

2. Expenses incurred for Destiny in 2016: $1,405.00

a. House rent for 3 months in 2016: $ 1,260.00

b. NCAA and SAT fee in 2016: $145.00

c. Purchase of iPhone: $1,124.34

[128] Expenses incurred for Destiny in 2017: $6,676.26

a. Scholarship agent’s fees in 2017: $112.50

b. Tuition: $5,150.00 ($4,000 USD)

c. Renewal of Passport: $160.00

d. USA student F-120 Sevis: $258.00

e. Flight ticket: $1,155.76

f. Hotel and car rental including gas for car rental: $779.16

g. Pocket money: $516.00

h. 2 New rackets: $245.00

i. A pair of tennis shoes: $146.00

j. School supplies including bedding: $228.85

k. Park N Fly: $59.00

l. Phone first month fees: $38.70

[129] Ms. Unegbu tendered her credit card statements and receipts for the major expenses, including Destiny’s tuition and the air flights taken to transport the children to their respective schools and get them settled there. I find that the underlined items above, amounting, in total, to $12,699.38, satisfy the test of reasonable and necessary expenses associated with the children’s post-secondary education.

[130] While some of the other expenses were likely also associated with the advancement of their education, especially if their scholarships were based on athletic achievement, there was insufficient evidence at the hearing to establish the nature of the scholarships. Additionally, a number of the expenses, such as the cost of bedding and pocket money, cannot be attributed solely to the academic purpose such as would justify them as “reasonable”, and the amounts, individually, are not sufficiently high as to meet the test of being “extraordinary” in the sense of being beyond what should be covered by regular child support.

[131] For the foregoing reasons, I find that the special and extraordinary expenses incurred for Precious and Destiny from 2015 to the date of the hearing were, in total, $12,699.38.

[132] Because the expenses related to the children’s education, and many of them were concentrated at the points when each of the children was beginning their post-secondary studies, and a constant minimum wage was imputed to Ms. Unegbu for the entire period from 2015 to 2017, I am averaging Mr. Udofe’s income for that period to arrive at the income upon which his proportional contribution to the expenses will be based.

The parties’ proportionate contribution to the children’s s. 7 expenses

Mr. Udofe’s income

[133] Mr. Udofe’s average income from 2015 to 2017 was $47,543 ($59,764 in 2015, + $50,145 in 2016, + $ 32,720.98 in 2017 = $142,629 ÷ 3 years).

The parties’ proportionate share of s. 7 expenses

[134] Based on the income of $24,017 being imputed to Ms. Unegbu, Mr. Udofe’s percentage of the parties’ collective income of $71,560 is 66.44%. He will therefore be ordered to make a 66.44% contribution to the children’s s. 7 expenses. Ms. Unegbu’s contribution will be 33.56%.

The amount of s. 7 expenses

[135] In her reasons dated October 21, 2011, Van Melle J. ordered Mr. Udofe to pay $100.00 per month to Ms. Unegbu as his share of the tutoring expense of $200.00 per month. As those expenses ceased when the children completed high school, Mr. Udofe’s obligation to contribute to them should also cease.

Credits for s. 7 expenses paid

[136] Mr. Udofe testifies that he purchased transit passes for the children. He produced photocopies of receipts, which were entered as exhibit 1 D at the trial, as follows:

• Brampton Transit – Shoppers World dated January 5, 2012, for $100.00 for Jan. 1 to 31, 2012

• Brampton Transit - Shoppers World dated January 31, 2012, for $100.00 for Feb. 1 to 20, 2012

• Brampton Transit – Shoppers World dated March 1, 2012, for $100.00 for March 1 to (illegible) 2012

• Brampton Transit – Shoppers World dated April 2, 2012, for $100.00 for a Monthly Student Pass

• Brampton Transit – Gateway dated May 13, 2012, for $54.00, for Pass May 13 to 19, 2012

• Brampton Transit – Shoppers World dated Sept. 9, 2012, for 49.00 for Sept. 10 to 16, 2012

• Brampton Transit – Shoppers World dated Sept. 27, 2012, for $220.00 for (illegible) to Oct 31, 2012

• Brampton Transit – Shoppers World dated Nov. 27, 2012, for $102.00 for Nov. 26 to Dec 2, 2012, and from Dec. 3 to 9, 2012.

• Brampton Transit – Shoppers World dated Feb. 5, 2013, for $102.00, for Student Transit Pass from Feb. 4 to 10, 2013, and from Feb. 11 to 17, 2013.

• Brampton Transit, Student Pass for Feb. 18 to 24, 2013, for $25.50 for Feb. 18 to 24, 2013, superimposed on receipt for purchase at an auction in the amount of $5,899 ($5,000 plus fees)

• Brampton Transit – Shoppers World dated March 2, 2013, for $200.00 apparently for a Mar Student Pass March 1 to 31, 2013

Total: $1,152.50

[137] Mr. Udofe additionally produced a further series of photocopies of receipts for expenses he says he paid for the children, which were marked Exhibit 1 G. They consist of the following:

• Brampton Transit – Shoppers World: Jan. 5, 2012: $100.00

• Old Navy – Destiny: Dec. 4, 2012: $100.00

• Brampton Transit – Shoppers World: Mar 2, 2013: $200.00

• York Plaza – Precious/Destiny: Sept. 15, 2013 Cash Advance: $20.00

• Brampton Transit Student Pass/Shoppers World – May 13, 2013: $54.00

• Albion P.D. & Carrier Dr. Apr. 2, 2015: Cash Advance $40.00

• Weston Rd. & Toryork Dr. - Cash Advance May 15, 2015 Precious $204.00

• York Plaza – Cash Advance May 25, 2015 Precious $50.00

• York Plaza – Cash Withdrawal: June 11, 2015: $20.00

Total: $788.00

[138] From the above, I deduct the following receipts, which appear to be duplicates:

(a) January 5, 2012: $100

(b) March 2. 2013: $200

[139] Mr. Udofe tendered a receipt from Sirens Store, which he says is a women’s clothing store, dated Dec. 16, 2011, for $100.00, marked as Exhibit 1 E. He stated that the clothes were for his daughter, one of two children. Given the lack of detail regarding these payments, Mr. Udofe’s relationships with other women, and the weakness of his credibility, I am not prepared to find that the above amounts, apart from the $1,152.50 paid for transit passes, were reasonable and necessary expenses incurred for the benefit of the children.

[140] Ms. Unegbu’s contribution of $386.78, being 33.56% of $1,152.50, will be credited to Mr. Udofe against his obligation to contribute to the children’s s. 7 expenses.

[141] Ms. Unegbu asked the court at the hearing of Mr. Udofe’s motion to enforce Justice Fragomeni’s Order. After reviewing the Statement of Arrears issued by the Family Responsibility Office, she had concluded that the $8,000 that Mr. Udofe owed after his share of the house was deducted from the arrears was never reflected in the arrears attributed to him.

[142] Justice Van Melle, in her decision on October 21, 2011, stated that she was unable to determine, from the statement of arrears, whether or not Fragomeni J.’s order of June 21, 2007, fixing Mr. Udofe’s arrears at $8,000, was reflected in the Statement. She therefore ordered the Family Responsibility to provide a fresh Statement of Arrears reflecting Justice Fragomeni’s Order, and to advise whether it properly reflected the fact that Fragomeni J. had fixed child support arrears at $8,000.00 on that date.

[143] I have reviewed the Statement of Arrears dated June 12, 2017, that was entered as Exhibit 1 at the trial on September 5, 2017. It discloses that on April 24, 2008, the amounts of $17,160.00 and $6,022.00 were credited to the account, both marked “CO 210607 SET ARR” which I interpret as “Settlement of Arrears”. On June 7, 2007, the last dated entry before June 21, 2007, the balance of arrears is shown as $31,182.00. The crediting of $17,160.00 to the account on April 24, 2008, would have reduced the balance to $14,022, and the crediting of $6,022.00 on the same date would have reduced the balance to $8,000.00.

[144] Based on the foregoing, I am satisfied that the Family Responsibility Office, on April 24, 2008, properly adjusted the balance of Mr. Udofe’s arrears to reflect both the credit owing to him from the matrimonial home and the difference between the arrears shown on June 21, 2007 and the $8,000.00 amount at which Justice Fragomeni fixed the arrears on that date.

Mr. Udofe’s claim of hardship

[145] Mr. Udofe did not specifically plead s. 10 of the Federal Child Support Guidelines in his motion to change. However, he raised the issue of the financial hardship that he alleged his child support obligation imposed on him sufficiently that I will address that claim here. Mr. Udofe testified about his education and work background, his income since 2008, his current health issues, and the children’s current circumstances.

Divergence in the parties’ evidence

[146] The evidence of Mr. Udofe and of Ms. Unegbu differs in many respects. For example, Ms. Unegbu asserts that Mr. Udofe told her that he would do everything he could to avoid paying support, which is denied by Mr. Udofe. Mr. Udofe claims, in his affidavit sworn May 26, 2016, at paragraph 15, that Ms. Unegbu told him that by the time she is done with him, he will have no choice but to leave the country, which is denied by Ms. Unegbu. Mr. Udofe claims to be disabled by osteoarthritis; Ms. Unegbu, who also has suffered from osteoarthritis for several years, denies that he is genuinely disabled. Ms. Unegbu alleges that Mr. Udofe has sources of income that he is not disclosing, which Mr. Udofe denies. Mr. Udofe says that his son and mother are dependent on him, which Ms. Unegbu denies.

[147] The parties did not cross-examine each other on their respective affidavits. Nevertheless, their evidence cannot be given equal weight as there is undisputed evidence that casts serious doubt on Mr. Udofe’s credibility.

Evidence of Mr. Udofe’s lack of credibility

(i) Mr. Udofe’s deception regarding his biographical information

[148] Mr. Udofe made his debut as a boxer on March 20, 1994. During his testimony, he admitted that he registered with the Boxing Commission with a date of birth of August 26, 1970, which would have made him 24 years old at the time, whereas, in reality, he was 29, with a date of birth of August 26, 1964. He attributes this discrepancy to an error on the part of his manager. He offered no evidence in support of this explanation, and no details as to how the error could have been made. I find it likely that Mr. Udofe lied about his age.

(ii) Mr. Udofe’s deception regarding his previous marriage

[149] After meeting Ms. Unegbu in Brazil in 1996, Mr. Udofe moved to Canada. After over a year, when his refugee claim was accepted, Mr. Udofe re-connected with Ms. Unegbu, and invited her to come to Canada to visit him. During the visit, she became pregnant with the parties’ first child.

[150] Ms. Unegbu returned to Brazil, and in 1996, she and Mr. Udofe planned a wedding. Mr. Udofe told her at that time that they could not be married in Canada, because he was already legally married in Canada, a fact that he had omitted to disclose to her earlier. A wedding in Canada would have exposed him to criminal liability for bigamy. Mr. Udofe therefore travelled to Brazil, where he and Ms. Unegbu were married on January 10, 1997.

[151] Based on Mr. Udofe’s alleged previous marriage, he told Ms. Unegbu that he could not sponsor her for permanent residence in Canada. She therefore came to Canada on her own, arriving in February 1997, when she was 8 months pregnant. Mr. Udofe told her that he was unable to come to the airport to meet her. Therefore, at his direction, Ms. Unegbu went to a women’s shelter.

[152] It was only after Mr. Udofe had allegedly “divorced” his previous wife that he underwent a second wedding ceremony with Ms. Unegbu and sponsored her residence in Canada. It strains credulity for Mr. Udofe now to say that he had not married the woman with whom he had had a relationship before Ms. Unegbu arrived in Canada in February 1997. At the trial before this court, he denied having actually married that woman, explaining that he had merely obtained a marriage licence. I do not believe that Mr. Udofe was unaware that the licence he had been issued expired in 90 days if it was not acted upon, or that he genuinely believed that marrying Ms. Unegbu in Canada would expose him to liability for bigamy.

(iii) Mr. Udofe’s deception regarding his marriage to Ms. Unegbu

[153] Ms. Unegbu states that Mr. Udofe visited her at the shelter, pretending not to be her husband. Ms. Unegbu was still living at the shelter a month later, when she gave birth to the parties’ eldest child, Precious Udofe, on March 14, 1997. Before Ms. Unegbu left the shelter, she applied for social assistance.

[154] Mr. Udofe later told Ms. Unegbu that he had divorced his first wife, , and he and Ms. Unegbu decided to have another wedding, which was performed in 1998. Ms. Unegbu later gave birth to their second child, Destiny Udofe, on October 1, 1998.

(iv) Mr. Udofe’s deception of the Toronto Licensing Tribunal

[155] On June 5, 2008, the Toronto Licensing Tribunal issued a taxicab driver’s licence to Mr. Udofe, requiring that he provide a police record and driver’s abstract prior to the next two annual renewals of his license. When it came time for Mr. Udofe to renew his licence in June 2009, he failed to file a driver’s abstract, apparently to conceal the fact that he had been convicted of speeding in 2008.

[156] Mr. Udofe was later convicted of two further speeding offences, in 2010 and 2011. The Toronto Licensing Tribunal eventually charged him with violating the terms of his license, which led to the temporary suspension of his taxicab license on June 16, 2011.

[157] At Mr. Udofe’s license reinstatement hearing before the Licensing Tribunal in 2013, he stated that his driver’s licence had been suspended three times from 2005 to 2011 because he had been unable to pay his child support. He told the Tribunal that after his taxi-cab license was suspended in June 2011, he had worked as a used car salesman, which did not pay very well. By 2013, his driver’s license had been reinstated and he reported that he was up-to-date with his child support payments. On June 6, 2013, the Toronto Licensing Tribunal reinstated his taxicab license.

(v) Mr. Udofe’s failure to disclose his income as a taxi driver

[158] Mr. Udofe failed to disclose to Ms. Unegbu, or to this court, that he had been licensed as a taxi driver, or the income he had earned in that occupation.

(vi) Mr. Udofe’s failure to disclose his income as a car dealer

[159] In her reasons dated October 21, 2011, Van Melle J. notes in paragraph 12 that Mr. Udofe deposed that he had set up the Phildoff business with a long-time friend. Mr. Udofe stated that the business was registered in his name because his friend lacked the legal documents to own a business. He stated that the friend agreed to provide $20,000.00 provided that Mr. Udofe manage the business for $12.50 per hour. In the following paragraph of her reasons, Justice Van Melle found that Mr. Udofe was not credible.

[160] At a hearing on June 30, 2016, the Immigration and Refugee Board of Canada heard Mr. Udofe’s appeal from the refusal of his application to sponsor his second wife, Joy Godwill Udofe, and his adopted daughter, Hope Arogimhe Udofe.

[161] Mr. Udofe told the Board that he and Ms. Unegbu had met in 1985, when they were children. Mr. Udofe was, in fact, 21 in 1985. He said that they had reconnected in 2005, and that he had proposed to Ms. Unegbu in December 2005. I note that this was two years after he had separated from Ms. Unegbu and two years before the divorce Order was made by Herold J. on June 29, 2007.

[162] Mr. Udofe said that he and Joy Unegbu had married in a traditional wedding ceremony in 2007. At that time, he was given a list of items to be provided as a dowry. As he was unable to finance the items at that time, the formal wedding was postponed until he could do so. From 2007 to 2012, he had returned to Nigeria three or four times a year, and had established a used car dealership in Legos, which Ms. Unegbu managed in his absence.

[163] The business failed sometime between 2010 and 2014.

[164] Mr. Udofe also failed to disclose to Ms. Unegbu, or to this court, the income he had earned from his used car sales business, Phildoff business Venture Ltd. In response to Ms. Unegbu’s assertion that he was operating such a business, and in order to prove that the business had closed in 2012, Mr. Udofe produced a Notice of Proposal to Phildoff Business Venture Ltd. and Philips Monday Udofe dated March 5, 2012, under the Motor Vehicle Dealers Act, 2002, S.O. 2002, chapter 30, to revoke their registration. The Notice, which was entered as Exhibit 1 H at the trial, records the following:

(a) Terms and conditions were signed August 16, 2004;

(b) Inspections were made from September 27, 2004, to June 23, 2008;

(c) New Terms and Conditions were signed on March 19, 2010;

(d) Further inspections were made on March 19, Oct. 28, and November 12, 2010;

(e) There were a number of Non-Compliant Bills of Sale found in 2010;

(f) There was a finding that the business was non-compliant;

(g) Correspondence from the Ministry of Revenue on August 29, 2011, showed that the business was in arrears of tax payments in the amount of $93,102.58;

(h) Mr. Udofe was notified that the dealer was entitled to a hearing before the Licence Appeal Tribunal if he filed an appeal within 15 days.

[165] Mr. Udofe testified that he filed an appeal, which was unsuccessful.

[166] It can be inferred from the fact that Mr. Udofe’s business owed $93,102.58 for arrears of HST that it earned income of $716,173.50, as 13% of that amount is $93,102.56. None of that income was disclosed by Mr. Udofe in this proceeding. Ms. Unegbu points out that Mr. Udofe drove a Mercedes automobile and denied that he owned it until she confronted him with his business’ Corporate profile. I note that a number of the vehicles which the Registrar describes in his Proposal to wind up Mr. Udofe’s business were Mercedes cars.

(vii) Mr. Udofe’s deception of the Immigration and Refugee Board

[167] In the present proceeding, Mr. Udofe denied Ms. Unegbu’s assertion that he was now married to a third wife.

[168] Nevertheless, Mr. Udofe and Joy Udofe had a traditional wedding in 2012. Afterward, Mr. Udofe returned to Nigeria in 2013, and again in April 2016. The couple then lived together in Mr. Udofe’s home in Legos. He stated that he regularly sent Ms. Unegbu between $200 and $300 per month to support her and his adopted child, who lived with her.

[169] Mr. Udofe told the Refugee Board that he had three children from previous relationships and one adopted child. The adopted child lived with his wife in Nigeria and had been raised by her. Mr. Udofe said that it was his hope that Ms. Unegbu would come to Canada and they would live together with Mr. Udofe’s four children.

(viii) Summary

[170] Based on the foregoing, I find that Mr. Udofe deceived the Boxing Commission about his age, deceived Ms. Unegbu by not disclosing to her until she was pregnant that he had applied for a marriage license in contemplation of marriage to another woman, by failing to disclose to her or to the court that he had been employed as a taxi driver, or that he had earned substantial income as a used car salesman. He also deceived Justice Van Melle when he asserted that he was a mere employee of his used car business, and denying that he had ever operated a used car business in Nigeria.

[171] I find that Mr. Udofe has actively concealed his income from Ms. Unegbu in an effort to shield himself from her legitimate claim for child support. I reject his evidence that imposing the child support obligation that the Guidelines prescribe based on his income will impose a financial hardship on him.

Order

[172] For the foregoing reasons, it's is ordered that:

1. The Order of Justice Herold dated July 28, 2006, as varied by the Orders of Justice Fragomeni dated June 21, 2007, and of Justice Van Melle dated October 17, 2011, is hereby further varied as follows.

2. The Family Responsibility Office shall resume enforcing Mr. Udofe’s arrears of child support.

3. Mr. Udofe shall pay child support to Ms. Unegbu in the following amounts on the 1^st of each month for the support of Precious Udofe and Destiny Udofe, and the final Order of Fragomeni J. dated June 21, 2007, is amended accordingly:

(a) From January 1 to December 1, 2015, inclusive, he shall pay $812 per month;

(b) From January 1 to December 1, 2016, inclusive, he shall pay $514 per month;

(c) From January 1 to December 1, 2017, inclusive, he shall pay $266 per month;

(d) From January 1 to December 1, 2018, inclusive, he shall pay $421 per month;

(e) From January 1 to December 1, 2019, inclusive, he shall pay $290 per month;

(f) From January 1 to April 1, 2020, inclusive, he shall pay $154 per month.

4. From September 1, 2015, Mr. Udofe shall pay to Ms. Unegbu $8,437.47, being his 66.44% of the $12,699.38 in s. 7 expenses that Ms. Unegbu incurred for the children from January 1, 2015, to September 5, 2017. Mr. Udofe shall be credited with $1,200, being the $100 per month that he paid toward the tutoring expense for the children from August 31, 2016, when both children had started university, to September 5, 2017, and $386.78, being Ms. Unegbu’s 33.56% of the transit passes Mr. Udofe purchased for the children in 2015 and 2016.

5. Ms. Unegbu has leave to apply for an Order quantifying the children’s s. 7 expenses from September 5, 2017, onward, and the amount of their ongoing s. 7 expenses, to which Mr. Udofe should contribute at the rate of 66.44%.

6. By May 1 of each year beginning in 2019, the parties shall exchange the following financial information:

(a) An up-dated Financial Statement in form 13.1;

(b) Their complete income tax returns, with all schedules and attachments, for the years from 2017 onward;

(c) Their Notices of Assessment and Re-assessment from Canada Revenue Agency, for the years from 2017 onward;

(d) Their monthly statements for the period from January 1, 2018, onward, for all bank accounts and credit cards they operated at any time during that period.

(e) The financial statements for the periods from January 1, 2017, onward, for any business they have operated at any time during that period.

(f) Their applications for credit, or a print-out from the financial institution of the information they provided in support of their application, for any credit facility, including mortgage, line of credit, personal loan, business loan or line of credit, or credit card, that was made available to them at any time from January 1, 2017 onward.

(g) The documentation in their possession, power, or control regarding any special and extraordinary expenses incurred for the children’s benefit at any time from January 1, 2017, onward.

7. The parties may apply to the court for a review of this order after June 1, 2019, provided the moving party has complied with the disclosure requirements set out above. The parties shall only apply to the court to review the order provided there has been more than 5% increase or decrease in Mr. Udofe’s imputed employment income of $50,145 (i.e. provided his income is less than $47,500 or greater than $52,500), or Ms. Unegbu’s imputed income of $24,017 (i.e. her income is less than $22,816 or greater than $25,218).

8. Support Deduction Order to issue. The Trial Office shall send a copy of this Order to the Family Responsibility Office, which is directed to re-calculate Mr. Udofe’s obligations accordingly. Any overpayment shall be credited to future support obligations.

9. If the parties are unable to agree on the costs of this motion, they may submit written arguments, not to exceed 4 pages, and a Bill of Costs, by June 30, 2018.

Price J.

Released: June 11, 2018

COURT FILE NO.: FS-05-054615

DATE: 2018 06 11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HOPE C. UNEGBU

Applicant

– and –

PHILIPS M. UDOFE

Respondent

REASONS FOR JUDGMENT

Price J.

Released: June 11, 2018

[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[^2]: See 2011 ONSC 6283.

[^3]: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370, at p. 688.

[^4]: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 31-35.

[^5]: Exhibit 1 F at the trial.

[^6]: Notice of Reassessment for 2015, Exhibit 1 F at the trial

[^7]: Notice of Assessment for 2016, Exhibit 1 F at the trial

[^8]: Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), as amended, s. 17(4).

[^9]: Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), as amended.

[^10]: Albert v. Albert, (2007) 2007 CanLII 29972 (ON SC), 40 R.F.L. (6^th) 203 (Ont. S.C.), at para. 48.

[^11]: Divorce Act, RSC 1985, c. 3 (2d supp) as amended, ss. 2 (1) and 15.1.

[^12]: Morissette v. Ball [2000] O.J. No. 73 (SCJ) ; upheld but varied [2000] O.J. No. 4307 (CA).

[^13]: Haist v. Haist 2010 ONSC 1283, Berger v. Berger 2016 ONCA 884, at para. 64.

[^14]: Farden v. Farden (1993) 1993 CanLII 2570 (BC SC), 48 RFL (3d) 60 (SCBC – Master).

[^15]: Makdissi v. Masson, 2017 ONSC 6498, para. 27; Warsh v. Warsh, 2012 ONSC 6903, para. 35.

[^16]: Harrison v. Vargek (2002), 2002 MBQB 97, 28 R.F.L. (5^th) 176 (Man. Q.B.).

[^17]: Haley v. Haley, 2008 CanLII 2607 (ON S.C.).

[^18]: Tapson v. Tapson, 1969 CanLII 541 (ON CA), [1969] O.J. No. 1490 (C.A.); Jackson v. Jackson, [1986] O.J. No. 1761 (Prov. Ct.); Farden v. Farden, 1993 CanLII 2570, 48 R.F.L. (3d) 60 (B.C.S.C.), Martin v. Martin, 1988 CanLII 2837, 26 B.C.L.R. (2d) 390 (C.A.), Grini v. Grini (1969), 1969 CanLII 784 (MB QB), 5 D.L.R. (3d) 640 (Man.Q.B.).

[^19]: Ciardullo v. Ciardullo, 1995 CanLII 304, 15 R.F.L. (4th) 121 (B.C. S.C.).

[^20]: Martin v. Martin, above at 393.

[^21]: Budyk v. Sol (1998), 1998 CanLII 28014 (MB CA), 40 R.F.L. (4th) 348 (Man. C.A.); Oswald v. Oswald, 2001 MBQB 47, [2001] M.J. No. 73 (Man. Q.B.); Janzen v. Janzen 1981 CanLII 449 (BC C.A.), 28 B.C.L.R. 63 (B.C. C.A.); Van de Pol v. Van de Pol, above.

[^22]: Gray v. Gray (1992), 1992 CanLII 13067 (MB QB), 39 R.F.L. (3d) 127 (Man. Q.B.); Bain v. Bain, [1994] CarswellMan 46 (Man. Q.B.)] (28 July 1994), FD 92-01-31883 [unreported]; Wahl v. Wahl 2000 CanLII 10 (AB.Q.B.).

[^23]: Jackson v. Jackson, above; Grini v. Grini, above.

[^24]: Holtby v. Holtby (1997), 1997 CanLII 24470 (ON CJ), 30 R.F.L. (4th) 70 (Ont. Fam. Ct.); Oswald v. Oswald, above.

[^25]: Glen v. Glen, 1997 CanLII 1026, 34 R.F.L. (4th) 13 (B.C. S.C.); Oswald v. Oswald, above.

[^26]: Carnall v. Carnall, 1998 CanLII 13446 (SK Q.B.), 37 R.F.L. (4th) 392 (Sask. Q.B.), supp. reasons 1998 CarswellSask 459 (Sask. Q.B.).

[^27]: Guillemette v. Horne (1993), 1993 CanLII 14921 (MB CA), 48 R.F.L. (3d) 229 (Man. C.A.); Wesemann v. Wesemann, 1999 CanLII 5873, 49 R.F.L. (4th) 435 (B.C. S.C.).

[^28]: Rebenchuk v. Rebenchuk, (2007), 2007 MBCA 22, 35 R.F.L. (6^th) 239 (Man. C.A.).

[^29]: Wegler v. Wegler, 2012 ONSC 5982, [2012] O.J. No. 5129, at para. 68, referencing Rebenchuk v. Rebenchuk, 2007 MBCA 22, [2005] M.J. No. 201.

[^30]: Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 80 OR (3d) 321(ON.C.A.), para. 159.

[^31]: Armaz v. Van Erp, 2000 CanLII 22585 (ON SC), [2000] O.J. No. 1544 (Sup. Ct. Fam. Ct.)

[^32]: Corby v. Corby, 2015 CarswellOnt 8294, para. 27 and 29 [referring to Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.)

[^33]: The most important pages of the income tax return are the T1 jacket (4 pages) and the Federal and Provincial Tax Credit Schedules. Page 1 of the T1 Jacket is the information page which requires information about the taxpayer and his or her spouse. The 2^nd page of the T1 Jacket is the income page where all the taxpayer’s sources of income are recorded. The sum of all income on that page is Total Income (Line 150).

[^34]: Federal Child Support Guidelines, s. 7

[^35]: Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.) at para. 28

[^36]:Titova v. Titov, 2012 ONCA 864, at para. 23.

[^37]: In Wawzonek v. Page, 2015 ONSC 4374, at para. 198 that the tax considerations should come before consideration of the child’s contribution.

[^38]: Wawzonek v. Page, at para. 198.

[^39]: Terry v. Moyo, 2013 ONCJ 364, at para. 29.

[^40]: MacNeil v. MacNeil, 2013 ONSC 7012, paras. 31 to 34.

[^41]:Bordin v. Bordin, 2015 ONSC 3730, at para. 116.

[^42]: Boisvert v. Boisvert, 2007 CanLII 24073 (ON SC), 40 R.F.L. (6th) 158 (Ont. S.C.), para. 48.