Court File and Parties

Court File No.: 02-DV-33997-01 Date: 2019-03-01 Ontario Superior Court of Justice

Between: David Charles Chittle, Applicant – and – Annette Marie Chittle, Respondent

Counsel: David Charles Chittle, acting in person Peter D. Eberlie, for the Respondent

Heard: August 29 and 31, 2018, in addition to written submissions

Ruling on Motion

Hebner J.:

[1] The applicant, Mr. Chittle, and the respondent, Mrs. Chittle, were married on October 27, 1984. They separated in July 2001 and were divorced on December 16, 2002. They have two children, Nicole born June 25, 1991, and Rachelle born September 6, 1993. Rachelle is permanently disabled. She has a number of medical problems, including spina bifida, hydrocephalus and Arnold Chiari Malformation. Her ability to communicate is limited. She is in a wheelchair full time. She continues to reside with Mrs. Chittle.

[2] On July 15, 2005, a final order was made by Patterson J. granting Mrs. Chittle custody of the two children of the marriage. Nicole was 14 years of age and Rachelle was 11 years of age at the time. The order provided that Mr. Chittle pay child support in the sum of $1,500 per month plus a further sum of $300 per month for extraordinary expenses, totaling $1,800 per month. The child support was "based on an attributed employment income to the applicant, David Charles Chittle of $80,000 CDN per year."

[3] On December 11, 2017, Mr. Chittle commenced a motion to change the order of Patterson J. He requested that the support order be terminated for both Nicole and Rachelle as "both children reached the age of majority and were no longer children of the marriage". He also requested that "the amount of any and all child support arrears be set at $0, or in the alternative be set in an amount to be determined based on the payor's income for the years in question and the child support guidelines".

[4] The respondent, Mrs. Chittle, brought a motion for summary judgment. She requests:

1. An order dismissing the applicant's motion to change;
2. An order terminating child support for Nicole effective December 31, 2014.
3. An order fixing the child support arrears and section 7 expenses in arrears to August 31, 2018, at $172,615.83.
4. An order that, commencing September 1, 2018, the applicant pay to the respondent child support for Rachelle in the sum of $1,302 per month based on imputed income of $115,000 USD ($150,428 CAD), along with his proportionate share of section 7 expenses.

[5] This is my ruling on the respondent's motion for summary judgment

Background Facts

[6] The applicant is an accountant by trade. He owned his own accounting practice until November 2, 2003, when he sold the business. He has since remarried and divorced twice. He relocated initially to Alberta in 2005, then to North Carolina and to Colorado. At the time the motion was heard, the applicant resided in Colorado. He has two children, aged 3 and 8, from his third marriage, which ended in divorce in February 2017.

[7] The respondent was a full-time nurse. She left her employment on June 5, 2001, to care for Rachelle full time. At the time the motion was heard both Nicole and Rachelle continued to live with the respondent in Belle River, Ontario. The respondent continues to care for Rachelle on a full-time basis.

[8] The applicant did not pay the child support and section 7 expenses as ordered. According to the respondent's affidavit evidence, the applicant stopped paying child support as of December 31, 2009. He did not make any payments in 2010. He paid $5,400 in 2011. He paid $600 and $3,820.17 in 2012 and has paid nothing since. The applicant provided a calculation of child support arrears from 2010 forward.

[9] The most recent statement of arrears from the Family Responsibility Office ("FRO") is dated July 16, 2018. The arrears outstanding as at that date, based on a required monthly payment of $1,800, was $181,226.38.

[10] In 2014, FRO caught up with the applicant in Colorado. The arrears at that time were over $96,000. On August 14, 2014, the District Court in Douglas County, Colorado filed a Registration of Foreign Support Order on behalf of FRO in an attempt to enforce the child support arrears. On June 14, 2017, the Colorado court signed an order to hold in trust $84,216 USD from the applicant's share of the proceeds of sale of the applicant's home with his third wife. I understand that that amount has now been transferred to FRO in Ontario. FRO is holding that amount (converted into Canadian dollars) pending the release of this decision.

The Issues

[11] The issues arising on the motion for summary judgment are as follows:

1. Should the child support payable by the applicant to the respondent for Nicole be terminated effective December 31, 2014, or some earlier date?
2. Should the child support payable by the applicant to the respondent for Rachelle be terminated and, if so, at what date?
3. What is the income of the applicant for support purposes from 2010 forward?
4. What is the guideline table amount payable by the applicant from 2010 forward, if any?
5. What is the amount for special or extraordinary expenses payable by the applicant from 2010 forward, if any?
6. What are the total arrears owing by the applicant to the respondent for child support and extraordinary expenses, if any?
7. What is the appropriate amount of child support payable on a go forward basis, if any?

Child Support

[12] The applicable legislation respecting child support in this case is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. Under that Act, a court may order a spouse or former spouse to pay child support for a "child of the marriage". Entitlement to support is dependent on the child coming within that definition. The term is defined in s. 2(1) as follows:

"Child of the marriage" means a child of two spouses or former spouses who, at the material time,

a) is under the age of majority and who has not withdrawn from their charge, or

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[13] For adult children, the question of whether a child is entitled to support depends on a number of factors. It is a question to be answered based on the circumstances of the child during the time support is claimed. It is a fact driven exercise. There is considerable judicial discretion both as to entitlement and as to quantum (see s. 3(2) of the Child Support Guidelines, O. Reg. 391/97, as amended, discussed below).

[14] According to the applicant's materials, his relationship with both children deteriorated by 2009 to the point where there has been very little contact. Accordingly, the evidence on the children's circumstances has been provided by the respondent mother.

Nicole

[15] Nicole turned 18 years of age on June 25, 2009. She attended the Vancouver Film School for a short time and then the University of Windsor where she obtained her bachelor's degree. According to the respondent, Nicole struggled with mental illness during her undergraduate years. She also had to contend with her mother having a heart attack in December 2010 and a disabled sister. The respondent mother said "due to these challenges, Nicole was not always able to take a full-time course load, and it took her 6 years to obtain her bachelor degree". Nicole obtained her Master's degree in October 2016.

[16] According to the respondent, Nicole's post-secondary education expenses for her bachelor's degree total $32,380. She lists six years that those expenses were incurred, namely from 2009 to and including 2014. She sets out the tuition that was paid for each of those years. The evidence is consistent with Nicole continuing to attend post-secondary education for six years in a bachelor program following her 18th birthday. The evidence is that Nicole lived at home while she did so and obtained a cost-effective post-secondary education at the local university.

[17] The respondent mother is seeking child support for Nicole until December 31, 2014. She is not seeking to continue child support until Nicole completed her Master's degree in October 2016. She also asks that the applicant be required to pay $10,000 being approximately one third of Nicole's total tuition costs.

[18] If an adult child is undertaking educational studies, that fact may constitute "other cause" within the meaning of s. 2(1)(b) of the Divorce Act but it is not determinative of the issue of entitlement to support (Laramie v. Laramie, 2018 ONSC 4740, para. 43). A child's overall condition, means, needs and circumstances must be considered. The ultimate question is whether they are "unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child" (Geran v. Geran, 2011 SKCA 55, 97 R.F.L. (6th) 68, at para. 15). There are a number of factors to consider, summarized by Chappel J. in Laramie, at para. 43. They include: whether the child is enrolled full time or part time in a course of studies; is the child's primary focus on completing their education; is the education and career plan appropriate; the reasons for any extension in a child's educational path; the aptitude and abilities of the child; and the means, needs and circumstances of the child and the parents.

[19] The evidence filed on the motion is that it took Nicole an extra two years to finish her undergraduate degree. She suffered from mental health issues, she lived at home with her mother and disabled sister, and while she was involved in her studies, her mother had a heart attack. During this time Nicole and her sister received little in the way of support from the applicant. One can only imagine the stress that these three women were contending with. The fact that Nicole completed her degree and went on to earn a Master's degree in the face of these challenges is a testament to the strength of character this young woman must have. Under these circumstances, I find the extra time that Nicole took to obtain her education to be reasonable.

[20] Where a child is living at home and attending a local university, it is appropriate that the support payor pay the table amount of child support for that child (see Lewi v. Lewi (2006), 2006 ONCA 15446, 80 O.R. (3d) 321 (C.A.), at para. 52).

[21] As for Nicole's post-secondary expenses, as a general rule, an adult child should be required to make a reasonable and meaningful contribution towards their own post-secondary education expenses (Lewi, at para. 42). The submission of the respondent mother is that the applicant pay the total sum of $10,000 towards those expenses. That leaves the balance of the expenses, just over $22,000, to be borne by the respondent mother and by Nicole herself. I find this to be a reasonable suggestion.

[22] For these reasons, I find that the applicant ought to continue to pay child support for Nicole until December 31, 2014. I will address the amounts that ought to be paid and the contribution towards post-secondary expenses after I determine the applicant's income for support purposes.

Rachelle

[23] Rachelle is permanently disabled. She is completely dependent on her mother to take care of all of her physical, emotional, health and financial needs. She will remain dependent for the rest of her life. According to the respondent mother's affidavit, Nicole has difficulty communicating. When she tries to talk it comes out garbled. She can only manage to say the odd word here and there. She has never been able to work, and it is very unlikely that she ever will be able to work.

[24] There is no cut-off age for entitlement to support for adult children with disabilities (Laramie, at para. 42). Rachelle remains under her mother's charge. She is unable to withdraw from her mother's charge. She is unable to obtain the necessaries of life on her own. Rachelle remains a "child of the marriage" within the meaning of the Divorce Act. I agree with the respondent mother that the applicant is required to continue to pay child support for Rachelle.

[25] Rachelle is entitled to an ODSP payment of $860 per month. The question then becomes, how does that factor into the child support analysis? As Rachelle is over the age of 18, the operative section under the Child Support Guidelines is s. 3(2). That section reads as follows:

Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is:

a) the amount determined by applying these guidelines as if the child were under the age of majority; or

b) if the court considers that approach to be inappropriate, the amount that it considers to be appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[26] In Senos v. Karez, 2014 ONCA 459, 120 O.R. (3d) 321, the Court of Appeal addressed the impact of an adult child's receipt of ODSP on child support. The court held that the ODSP regime enshrines the objective of a shared responsibility between government and families in supporting and caring for disabled adult children. The corollary is that the receipt of ODSP does not automatically disentitle a disabled child to support.

[27] Rachelle's ODSP payments factor into the analysis of quantum under s. 3(2)(b). They come into play only if the court considers the guideline support to be inappropriate. I am satisfied that Rachelle has severe and permanent disabilities. She requires daily full time caregiving and monitoring by her mother due to her challenges. In addition, there is sufficient evidence that Rachelle has significant health related expenses, including prescription drugs, optometric, chiropractic, transportation to Toronto for attendances at Sick Kids and various therapies. Many of these expenses are paid by ODSP. There are some expenses that are not paid by ODSP including some medications. Any uncovered expenses are paid by the respondent mother.

Applicant's Income for Child Support Purposes from 2010 Forward

[28] As previously indicated, the applicant is an accountant by profession. The order of Patterson J., made July 15, 2005, was based on imputed income of $80,000 per year. The applicant's 2005 income tax return disclosed total income of $54,651. His 2006 income tax return disclosed income of $124,504. In that tax return, he also claims moving expenses of $47,882. Presumably, that was the year that the applicant moved to Alberta. According to the applicant's materials, in Alberta between 2006 and 2009 he worked as a self-employed professional accountant for several companies of a chartered accounting firm in Edmonton in various capacities. In 2007, the applicant had line 150 income of $145,274. In 2008, the applicant had line 150 income of $56,227. In 2009, the applicant had total income of $26,042. There is no explanation for the reduction.

[29] According to the applicant's affidavit, in 2009 he earned less income and eventually decided to relocate to Waxhaw, North Carolina with his then wife, Sharon, and his baby daughter, Nadia. His 2010 tax return discloses line 150 income "reported" of $101,042 in Canada but line 150 income "processed" of $12,376. I suspect the discrepancy is the money earned in the United States.

[30] During the period of February 2010 to June 2013, he was employed in North Carolina as controller for a small company, Carolina Seal Inc. This employment appears to have been lucrative and stable for the applicant. He began to invest in real estate and corporations. He provided his 2010 US income tax return that disclosed total income of $91,613 USD. The applicant provided a 2011 income tax return that disclosed income from employment of $130,211 USD. After some capital gain and corporate deductions, his total income is reported as $108,423 USD.

[31] The applicant's 2012 US tax return discloses total income from employment of $132,402 USD. After deductions for real estate, partnerships and S corporations, he discloses a total income of $54,428 USD.

[32] During the years 2009 to 2014, Mr. Chittle pursued a reduction in child support. It was his view that he was paying too much. It was his view that he ought not to be paying guideline child support for Nicole as she had turned 18 years of age. He took steps to avoid making payments. He retained counsel to advise him. In para. 28 of his affidavit, Mr. Chittle states:

In 2011 my ex-wife, Sharon Chittle [his wife at the time], was very concerned about the litigious matter over child support with the Respondent and wanted protection of the family assets. Sharon wanted to have the house transferred into her name. I contacted Mr. Martini and based on his advice the Waxhaw, NC home was transferred into her name. Mr. Martini also suggested that until the child support issues were resolved do not maintain any bank accounts, assets or businesses in my personal name alone. I followed the legal advice of Mr. Martini.

[33] In 2013, Mr. Chittle's income from employment was reduced to $80,020. He only worked half of the year. He voluntarily left his lucrative job as a controller and decided not to work. In para. 29 of his affidavit he states:

In June, 2013 I relocated to Parker, CO with my ex-wife Sharon and daughter, Nadia. We sold our home in Waxhaw, NC for $1,211,324 cash…. We realized a huge windfall as we had purchased the house during the bottom of the depressed housing market. The proceeds of the house enabled my family to live comfortably over the next several years even though I earned little. … The funds allowed the family to sustain a comfortable living even though I was earning very little income after relocating to Colorado. The net proceeds available decreased over time as we used the funds to live.

[34] The applicant bought and sold a home in 2013 and 2015. He then purchased a home in Castle Rock for $920,000. Selling that home in June 2017 resulted in the funds now held by FRO.

[35] It appears from his affidavit filed that Mr. Chittle took steps to ensure that there were not any assets in his name. He voluntarily left his lucrative employment in North Carolina and moved to Colorado with his then wife. From that point forward, he earned little income. He chose, instead, to live off of the "windfall" he received from the sale of his home.

[36] In 2014, the applicant's tax return discloses no income. He filed an affidavit dated April 9, 2018. In that affidavit he said he received $26,362.43 Canadian from Sun Life Financial in July 2014 as he was the beneficiary on an insurance policy. He also received funds from RBC Dominion securities in the amount of $35,240.08 Canadian as he was the beneficiary of a RRIF account.

[37] On June 3, 2014, Mr. Chittle had another child, Elijah. In December 2014, Mr. Chittle obtained his Colorado real estate associate broker's licence. He incorporated what he described as S corporations and began to earn money through a corporate structure.

[38] Mr. Chittle and Sharon separated in December 2016. Their divorce matter came before a judge in Castle Rock, Colorado on February 21, 2017. The transcript of the proceedings was filed by the respondent in this case. The transcript contains that court's ruling on the issue of support. That court determined the appropriate income for support to be $7,173 USD per month, or $86,076 USD per annum. It appears as though the amount was imputed by the court. That court called Mr. Chittle's income an "ever changing target". The court said "when it came to finances, the court was absolutely astounded with a number of examples to question father's credibility in this case. The court began making a list because it became so upsetting and disturbing to the court." The Court said one item on the list was "the acknowledgement that he has effectively dodged his child support obligation in Canada for years, if not over a decade." Another item on the list was "the lifestyle of the marriage". One item that that judge found particularly troubling was "acknowledging that he had, at some point, 4 or $500,000 in cash, paying nothing of child support to a prior relationship." The judge said "the court can't even consider this one financial statement".

[39] Support was ordered in the amount of $1,778 USD child and spousal support. The judge in the Colorado case ordered the sum of $175,000 from the sale of the Castle Rock home be held in escrow as security for child support and spousal support for Sharon Chittle. The sum of $84,216 USD was paid to FRO in response to the child support garnishment in this case. It is those funds that are currently being held by FRO.

[40] Mr. Chittle's most recent financial statement, sworn January 29, 2018, discloses self-employment income from three separate sources. He claims an annual income totaling approximately $20,000. Against that he claims annual expenses of $141,834.24, including over $24,000 for dental implants and $3,239.68 per month for rent. His only claim of property ownership is a 2012 Ford truck. He claims significant debts.

[41] In September 2017, Mr. Chittle signed a lease for a three-bedroom apartment. The rent is $2,531 USD per month.

[42] Sharon Chittle obtained a vocational assessment on Mr. Chittle. The vocational assessment is dated May 29, 2018. Apparently the respondent and Sharon Chittle are exchanging information. A copy of the assessment was included in the respondent's materials.

[43] It does not appear as though Mr. Chittle was cooperative with the assessor. At page 14 of the assessment, the assessor said "when I asked him about his resume, he stated he had several versions. He would not provide me with a copy, stating it was already done in previous disclosures.… He made it clear he has no intention of making further efforts to search for financial related work." The conclusion of the vocational assessor is contained at para. 16. She says:

Based on the wage statistics, it is my opinion Mr. Chittle's earning capacity is in the range of $100,000 to $130,000 or more per year. He had been within that range while working in the financial industry and returning to that field is his best chance of maximizing his earning capacity.… Given his reported financial situation, it is unclear why he recently moved into a luxury apartment complex and decided to cease all efforts to secure permanent, full-time employment or another contract assignment as a controller.

[44] Turning back to the question then, what is the applicant's income for support purposes from 2010 forward?

[45] In 2010, 2011 and 2012 Mr. Chittle enjoyed lucrative employment in North Carolina. He made the voluntary decision to leave that employment and relocate to Colorado after he received what he termed a "windfall" on the sale of a property. I note that any capital gain on that property would be included in income for support purposes under the Child Support Guidelines. I have insufficient information to determine the amount but given Mr. Chittle's evidence outlined above, it appears to have been substantial.

[46] Mr. Eberlie, acting for the respondent mother, urges me to impute income to Mr. Chittle for child support purposes under s. 19 of the Child Support Guidelines. That section reads, in pertinent part, as follows:

19 (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally underemployed or unemployed, other than where the underemployment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[47] The Court of Appeal, in the oft quoted case of Drygala v. Pauli (2002), 2002 ONCA 41868, 61 O.R. (3d) 711 (C.A.), deals with this section. At para. 28 the court said:

Read in context and given its ordinary meeting, "intentionally" means a voluntary act. The parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[48] At para. 32, the Court said "imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning."

[49] On the evidence before me, it is clear that Mr. Chittle chose to leave his lucrative employment in 2013. He became intentionally unemployed. He continues to be intentionally underemployed in that he is not earning what he is capable of earning, based on at the vocational evaluation that was filed with the court and based on his historical income earning capacity.

[50] I point out that there are significant issues with Mr. Chittle's income disclosure. His lifestyle seems to belie his claim of poverty. He earns income through corporations such that it is impossible to determine the income that is available to him. The judge in Colorado, based on the comments outlined above, was satisfied that Mr. Chittle took steps to hide his income from the court. Indeed, in Mr. Chittle's own affidavit evidence, he admits to taking steps to ensure that the order of child support here in Ontario made by Patterson J. could not be enforced against him.

[51] Mr. Eberlie has calculated the child support over the years from 2010. In 2010, he used the income of $80,000, the amount imputed by Patterson J. In 2011, he used the income of $130,356.69 USD which he converted to $128,961.87 CAN based on an average historical exchange rate of .9893 at the time. In 2012, Mr. Eberlie used the figure of $132,402 based on an even exchange rate at the time. In 2013, Mr. Eberlie used the figure of $80,020 USD which he converted to $82,420.60 CAN based on an average historical exchange rate of 1.03 at the time. I accept Mr. Eberlie's submissions on Mr. Chittle's income for the years 2010 to 2013.

[52] Mr. Eberlie submits that the support ought to be based on imputed income of $115,000 USD from 2014 forward. This is the midpoint of the income that Mr. Chittle is capable of earning according to the vocational assessment that was filed. Mr. Eberlie suggests the figure in Canadian funds is $150,428 at an average exchange rate of 1.3065. The current exchange rate according to the Bank of Canada website is 1.3169.

[53] Mr. Chittle has not earned income since 2014. He claims to have no assets and minimal income. At this point, I do not think it can be said that Mr. Chittle is capable of earning the income he earned in 2011 and 2012, his highest income earning years. In 2013, he earned $80,020 USD, albeit for one-half the year. I choose to use that income to determine child support from 2014 forward. Based on his historical income, Mr. Chittle should at least be able to earn that much. Moreover, this amount is more consistent with both the income figure imputed by Patterson J. and the income figure imputed by the court in Colorado. Based on an exchange rate of $1.3065, the income for support purposes is $104,546.13.

Amount Payable for 2010 to 2018

[54] In 2010 the child support payable was $1,159 per month for two children based on income of $80,000 for a 12 month total of $13,908. The applicant paid nothing. Accordingly, the applicant owes $13,908 for 2010.

[55] In 2011 the child support payable was $1,748 per month for two children based on income of $128,961 for a 12 month total of $20,976. Based on records from FRO, the applicant paid $5,400. Accordingly, the applicant owes $15,576 for 2011.

[56] In 2012 the child support payable was $1,809 per month for two children based on income of $132,402. The 12 month total is $21,708. Based on records from FRO, the applicant paid $4,420.17. Accordingly, the applicant owes $17,287.83 for 2012.

[57] In 2013 the child support payable was $1,201 per month for two children based on an income of $82,420.60. The 12 month total is $14,412. The applicant paid nothing. Accordingly, the applicant owes $14,412 for 2013.

[58] In 2014 the child support payable was $1,472 per month for two children based on imputed income of $104,546. The 12 month total is $17,664. The applicant paid nothing. Accordingly, the applicant owes $17,664 for 2014.

[59] In 2015 the child support payable was $915 per month for one child based on imputed income of $104,546. The 12 month total is $10,980. The applicant paid nothing. Accordingly, the applicant owes $10,980 for 2015.

[60] The calculation for 2016 is identical to 2015. The applicant paid nothing and therefore owes $10,980 for 2016.

[61] In 2017, for the first 11 months the child support payable was $915 per month for an 11 month total of $10,065. In December the tables were amended such that the amount payable was $946 based on imputed income of $104,546. The total owing for 2017 is $11,011. The applicant paid nothing and accordingly owes $11,011.

[62] In 2018 the amount payable was $946 per month for one child based on imputed income of $104,546 for a 12 month total of $11,352. The applicant paid nothing and therefor owes $11,352 for 2018.

[63] The total payable for 2010 to 2018 is $13,908 + $15,576 + $17,287.83 + $14,412 + $17,664 + $10,980 + $10,980 + $11,011 + $11,352 for a total of $123,170.83.

Is the Guideline Support Amount Inappropriate?

[64] Nicole was a student in post-secondary education until October 2016. Rachelle is a special needs child who will most likely never be able to work and live independently given her disabilities. The respondent mother has left her employment in order to care for Rachelle. The financial statement of the respondent mother is dated February 13, 2018. It discloses the following:

1. The respondent mother's source of income is pension income and RRSP withdrawals. She discloses a monthly income of $1,687.72 for an annual income of $20,252.64.
2. The expenses listed by the respondent mother are frugal. They total $2,736.15 per month, for a total of $32,833.80 per annum.
3. The respondent mother owns a modest home, which she values at $351,000. She drives a 2008 Dodge Caravan. She has limited investments. She has a mortgage and a line of credit on her home totaling approximately $185,000.

[65] I take into account the circumstances listed in s. 3(2)(b) of the Child Support Guidelines. The children's needs, particularly Rachelle's needs, are substantial. The respondent mother has limited financial ability to contribute to her support. Rachelle's own means in the form of her ODSP payments are very helpful to the respondent mother in caring for Rachelle. But, they are insufficient to meet all of her needs. She still needs financial assistance from her parents. Given my determination on the income that ought to be imputed to the applicant father, if he was continuing to earn income to capacity, he would have sufficient means to contribute to children support. Under these circumstances, I cannot find that the application of the child-support guidelines would be inappropriate. In my view, the applicant father ought to pay guideline child support for both children until December 31, 2014, and then guideline child support for Rachelle on a go forward basis.

Extraordinary Expenses for 2010 to 2018

[66] Given the means of the respondent mother outlined above, and the income earning ability of the applicant father, I find that the respondent mother's suggestion that the applicant father contribute $10,000 towards Nicole's post-secondary expenses is a reasonable suggestion. The applicant deposes that he contributed the sum of $1,800 paid directly to Nicole towards her tuition expenses. I will give the applicant the benefit of that amount, leaving $8,200 owing.

[67] The respondent, in her affidavit evidence, has outlined Nicole and Rachelle's medical expenses. The total for 2006 to 2017 is $34,259.43. She requests a proportionate contribution towards those expenses from the applicant father. However, the respondent mother agrees that the order of Patterson J. dated July 15, 2005, para. 3, that requires a payment of $300 per month for extraordinary expenses is a duplication of the request for a contribution towards the medical expenses. Accordingly, it seems to me that the Patterson J. order ought to continue in terms of the section 7 expenses as opposed to a calculation of proportionate sharing. The respondent mother has agreed that the bulk of Rachelle's expenses are covered by ODSP.

[68] Given the termination of support for Nicole as at December 31, 2014, and the fact that many of Rachelle's medical expenses are covered, and given the operation of s. 3(2) of the Child Support Guidelines, it seems to me that the contribution of $300 per month towards s. 7 expenses ought to continue until December 31, 2014 and then terminate. The total owing for 2010 to 2014 is $3,600 per year for five years for a total of $18,000.

Ongoing Child Support

[69] On a go-forward basis from January 1, 2019, based on imputed income of $104,546, the applicant should pay to the respondent child support in the sum of $946 per month for Rachelle.

Gates Order

[70] The order of Gates J. dated June 29, 2007, required that the applicant reimburse the respondent for health-care expenses in the sum of $6,046.55 plus costs of $7,500. Those amounts remain unpaid. Together with interest earned, the current amount is $22,632.02. They need to be added to the arrears owing.

Life Insurance

[71] The order of Patterson J. required that the applicant maintain the respondent on a life insurance policy having a face value of at least $300,000. According to Mr. Chittle's most recent financial statement, he has a term policy in the face amount of $250,000 with Transamerica Life. The beneficiary is the Estate of David Chittle. Mr. Chittle does not appear to have complied with the order of Patterson J. I order that the applicant maintain the respondent as irrevocable beneficiary of that Transamerica Life policy or such other policy with a minimum face amount of $250,000 for so long as he is required to pay child support for Rachelle.

Disposition

[72] I am granting the respondent's motion for summary judgment and I make the following order:

1. The applicant father shall pay to the respondent mother the sum of $123,170.83 being the quantum of table child support arrears owing for the time period from January 1, 2010 to December 31, 2018.
2. The applicant father shall pay to the respondent mother the sum of $18,000 being the s. 7 expenses owing to December 31, 2014 under the Patterson J. order of July 15, 2005.
3. The applicant father shall pay to the respondent mother the sum of $8,200 being his contribution towards Nicole's tuition expenses.
4. The applicant father shall pay to the respondent mother the amount of $22,632.02 being the amount owing to date pursuant to the order of Gates J. dated June 29, 2007.
5. Commencing January 1, 2019 and on the first of each month thereafter the applicant shall pay to the respondent child support for one child, Rachelle, in the sum of $946 per month based on the applicant's imputed income of $104,546 per annum.
6. The applicant shall not be required to contribute towards any s. 7 expenses for Rachelle from January 1, 2015 forward.
7. The applicant shall maintain the respondent as the irrevocable beneficiary of his Transamerica Life policy in the sum of $250,000 or such other policy in that sum for so long as he is required to pay child support to the respondent for Rachelle.
8. The parties may make written submissions on costs to include a costs outline and any relevant offers to settle according to the following timeline:

a) The respondent within 20 days;

b) The applicant within 20 days thereafter;

c) The respondent may provide any reply submissions within 10 days thereafter.

Pamela L. Hebner Justice

Released: March 1, 2019