COURT FILE NO.: FC-03-3014-2
DATE: 2018/06/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wendy Hilhorst, Applicant
AND:
Emanuel Amaral, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Wendy Hilhorst, Applicant, acting in person
Emanuel Amaral, Respondent, acting in person
HEARD: April 19, 2018
Reasons for decision
Introduction
[1] This is a motion to adjust child support. The issues may be summarized as follows. One issue is the obligation of the father to pay child support for the period after the daughter completed high school and until she completes her post-secondary education. The second is whether there should be a retroactive adjustment back to 2010 because of failure by the respondent to make financial disclosure, underreporting of his income or other circumstances which make imputation of income appropriate.
[2] For the reasons that follow, on the basis of the affidavit evidence, the court determines that there is an ongoing obligation to pay support until the child completes her post-secondary education. There is also sufficient evidence to determine that the level of support set out in the existing order has been inadequate for several years. A retroactive support adjustment is warranted based on the respondent’s declared income and his CRA Notices of Assessment.
[3] The evidence before the court does not allow the court to determine questions of credibility regarding the accuracy of the respondent’s reported income. It would be inappropriate to impute income or to infer that the figures are inaccurate in the face of previous judicial determinations that the respondent was credible, was disabled from working and was “not a malingerer”.
[4] If the applicant wishes to pursue those questions, it will require trial of an issue.
Background
[5] Briefly, the facts are these. The parties have lived separately for the past 18 years. They had one child together, Deanna Hilhorst-Amaral, born May 22, 1997.
[6] The income of the respondent and the amount of his child support was an issue from the outset. On April 25th, 2001, Justice Dunbar ordered support of $258.00 per month based on income of $29,000.00. On March 1st, 2004, Justice Belch reduced the support to $78.00 per month based on income of $9,183.00. On January 20th, 2009 following a motion and supplementary evidence ordered by the court, Justice Power found the income of the respondent for 2007 and 2008 to be $13,206.00 and $10,000.00 respectively and he set the child support going forwards at the table amount based on an income of $10,000.00 at $28.00 per month.
[7] At the time of the motion in 2008 and 2009, Justice Power found that the respondent was not purposefully underemployed and he was “not underreporting his income”. He accepted the evidence of the respondent that he was self-employed as a result of injuries he sustained in a car accident and could only work on “good days”. He found that the respondent was “not a malingerer and that, indeed, his back injury is genuine and absolutely impacts his ability to earn an income.” He did order the respondent to pay 25% of the cost of health coverage and orthodontic work. He ordered the respondent to keep proper records of his income and earnings and to comply with his obligation to provide annual disclosure of any change in his financial status.
[8] Over the intervening years, the respondent has paid the support in accordance with the order and has contributed to orthodontic expenses. The support has never been adjusted and according to the applicant, the respondent has never made financial disclosure.
[9] In June of 2016, Deanna completed high school. At that time, the respondent father unilaterally terminated child support. Subsequently, the daughter enrolled in a program at Algonquin College and attended full time from May 1st, 2017 to February 1st, 2018. The respondent acknowledges a support obligation for the period of time his daughter was enrolled in her first diploma program at college but he does not believe it is his responsibility to pay child support to the applicant in the hiatus between high school and college nor should it continue during a second diploma program. Her first diploma was a single year Veterinary Sciences Program. She has now enrolled in a program in Community Studies.
[10] This motion to change was started on May 30th, 2017. It focused on quantification and continuation of child support during the period of post-secondary education. At the first appearance and case conference, the applicant amended the motion to seek retroactive adjustments of support back to 2009. She argues that the respondent failed to keep proper records and make annual disclosure as he was ordered to do, that even his declared taxable income during the period in question was higher than the income forming the basis of the existing order and in any event income should be imputed.
[11] As of the date of the case conference in July of 2017 when Deanna was attending the Veterinary Technician Program, the respondent was working and acknowledged that his daughter was entitled to support. At that time, he agreed to pay $100.00 per month and a temporary order was made for that amount.
Analysis
[12] Dealing firstly with the continuity of the child support obligation, it is not the case that the obligation to pay support ceases automatically on the day a child finishes high school. The test under the Family Law Act is set out in s. 31 (1). Parents are obligated to pay support for children who are minors, who are enrolled in a full time program of education or who are unable because of illness, disability or other cause to withdraw from parental care. This language is easily broad enough to cover a period of time between high school and college unless the child is actually self-sufficient. It is also broad enough to re-trigger an obligation to pay support if the child takes time off and then returns to school to pursue further education.
[13] The question is not whether there is an absolute cut-off date or event for support but whether or not the child remains dependant on the parent to whom support is paid and whether or not that dependency remains reasonable under all of the circumstances.[^1] In this case, the child took what amounts to a “gap year” during which she was working and saving money for college and travel. During that time, she was paying modest rent to the applicant and was able to travel to Europe. The applicant is not seeking support for the period of July 2016 to April 2017 and is not entitled to it. The applicant is seeking support for the period of time the child was enrolled at Algonquin College pursuing a diploma as a veterinary assistant. She also seeks to have that support continue during the time when the child is pursuing a second diploma in community studies.
[14] Based on the evidence, I do not consider it unreasonable for the child to pursue a second diploma to enhance the education she has already obtained. She has a plan for her career and believes the Community Studies Program will enhance the value of the diploma she has already earned.
[15] In considering what contribution parents should be making to the support of an adult child who is pursuing post-secondary education, the child support tables are not always appropriate although they may well remain an appropriate base for a child who is living at home while attending school.[^2] Other considerations include the costs associated with the post-secondary education, the child’s own ability to contribute through earnings and student loans, the means of the parents and the child’s academic potential.[^3]
[16] With a child living at home, it may be appropriate to continue the table amount of support and to treat all of the costs of tuition, books and supplies as s.7 expenses but net of a reasonable contribution by the child. I lack specific evidence of the costs of education and the contribution by the child to adopt this approach. It is implicit in the applicant’s affidavit that Deanna is currently able to cover the costs of her program through a combination of earnings and OSAP.
[17] Consequently, it is my determination that the respondent should continue to pay table support until the child has completed her current program of studies. In the event that Deanna is not able to cover the costs of education through earnings and student loans during the next academic year, the respondent should also be making a proportionate contribution to the unfunded costs of the education program.
[18] Turning to the question of the respondent’s income, he has deposed that his income for 2017 was $38,628.95. This is certainly a material change from the $10,000.00 annual income which Justice Power found he was earning when he made the original order. This level of income would generate a monthly child support obligation of $342.00.
[19] In 2016, he earned $34,666. Under the Guidelines in force at that time, the monthly amount would have been $292.00.
[20] In 2015, the respondent attests that he earned $17,551.00 which would have generated a support obligation of $135.00 per month. In the previous year he claims to have earned less than the $10,000.00 assessed by Justice Power.
[21] I do not have specific evidence of the respondent’s income from 2010–2013. The applicant advocates that income should be imputed because the respondent did not follow the disclosure requirements as ordered by Justice Power.
[22] She also asks that the court conclude that his tax returns are misleading, that he has underreported his income and in any event he has higher income earning capacity so that income should be imputed. The applicant has gone to great lengths in examining the respondent’s bank records and other material. She has prepared detailed tables and charts purporting to show earnings greatly in excess of what he has declared for tax purposes. The respondent disputes the applicant’s analysis and she is not qualified to give opinion evidence. She did not hire an expert.
[23] I am not prepared to impute income beyond what is disclosed in the tax returns or to guess at the years for which tax returns have not been produced. It is not appropriate to make credibility findings on the basis of the evidentiary record before me. It must be recalled that there have been previous hearings and previous judicial findings. Justice Belch accepted reduced income figures for the respondent. Justice Power specifically found that the respondent was credible and was not malingering. It would not be reasonable to guess at the respondent’s earning capacity, to accept the applicant’s interpretation of disputed evidence or to draw a negative inference against the respondent when the court has rejected similar allegations made by the applicant on earlier occasions.
[24] On the other hand, it would not be just to simply dismiss that aspect of the motion. The respondent should have produced all of his tax returns and other proof of income back to 2009. Even on the basis of his declared income, he has been underpaying support. Just because he was found not to be understating his income on previous occasions does not mean the same finding would be made again. I will therefore give the applicant the option of proceeding with a trial of an issue. Of course she will have to evaluate whether that is a worthwhile exercise and whether she wishes to run the risk of an adverse costs award if she is unsuccessful.
Conclusion
[25] On the basis of the evidence before me, I make the following determinations.
a. The child support owing for January 2015 to December 2015 is $135.00 per month.
b. The child support owing for the months of January 2016 to April 2016 is $292.00 per month for those four months. There is no support owing for the months of May 2016 to April 2017.
c. The support owing for the months of May 2017 to December 2017 is $342.00 per month.
d. The respondent shall continue to pay table amount of support of $342.00 per month commencing January 1st, 2018 and continuing until Deanna completes her course of studies at Algonquin College.
e. In the event that Deanna cannot cover all of her education costs for the current or future academic year, then the respondent shall pay his proportionate share of the shortfall as s. 7 expenses.
[26] If the applicant wishes to pursue further retroactive adjustments based on income earned by the respondent in the years 2010-2013 or if she wishes to attempt to prove that the respondent was underemployed during the years 2010-2017 as alleged, she may request a trial of an issue. The two issues will be what the respondent’s income was during those years and whether or not the court should make any further retroactive adjustment. Those questions require an assessment of credibility and evidentiary findings that cannot be determined on the basis of the affidavit evidence.
Costs
[27] The applicant is entitled to costs of the motion to change. I fix those costs at $1,500.00. The costs award may be enforced as support by the Family Responsibility Office.
Mr. Justice Calum MacLeod
Date: June 20, 2018
COURT FILE NO.: FC-03-3014-2
DATE: 2018/06/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Wendy Hilhorst, Applicant
AND:
Emanuel Amaral, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Wendy Hilhorst, for the Applicant, acting in person
Emanuel Amaral, for the Respondent, acting in person
HEARD: April 19, 2018
Reasons for decision
Mr. Justice Calum MacLeod
Released: June 20, 2018
[^1]: See Makdissi v. Masson, 2017 ONSC 6498
[^2]: See s. 3 (2) of the Guidelines which provides two options for calculating support for adult children
[^3]: See Aubert v. Cipriani, 2015 ONSC 6103