Court File and Parties

COURT FILE NO.: 02-FP-281138-002 DATE: 20190426 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Teresa Zaffino-Sanza, Applicant AND: Santo Sanza, Respondent

BEFORE: Kristjanson, J.

COUNSEL: Karen Ballantyne for the Applicant Santo Sanza, self-represented

HEARD: February 6, 2019

Endorsement

[1] This is a motion to change the child support provisions in a final order dated February 5, 2009 and to quantify the child support arrears payable by the respondent father, Mr. Sanza. The applicant mother, Ms. Zaffino-Sanza, initially brought the April 26, 2018 motion to adjust monthly table support based on Mr. Sanza’s actual income from 2009 to the present, a period of nine years. Mr. Sanza, in response, sought to terminate child support for the eldest child as of 2014 in accordance with the 2009 Order, to fix a reduced amount of arrears and to pay child support for the younger child at a level below the table amount in light of his retirement and his obligation to support his second family. Ms. Zaffino-Sanza amended her motion to change in December 2018 to add a claim for section 7 expenses retroactive to 2015.

[2] Mr. Sanza is 69 years old and he retired in 2016. Ms. Zaffino-Sanza is 61 years old and she is still working. They have two children, AB, born in March 1992, and CD born in June 1998. At the time the final order was issued, the eldest child was almost 17 and the youngest child was almost 11. When the application was commenced in 2018, AB was twenty-six years old and had been living independently since January 2017. The younger child was nineteen years old, living with his mother and attending university.

The 2009 Order

[3] The key provisions of the 2009 Order are:

(1) Monthly ongoing child support in the total amount of $799 per month for both children was set “based on the husband’s annual income of $58,000 subject to a material change in circumstances .”

(2) Mutual disclosure obligations: “The parties shall exchange income tax returns in June of each year so that the [father’s] support obligations can be recalculated .”

(3) Termination of Child Support: Paragraph six of the 2009 Order requires the husband to pay “ongoing support” for the children until the earlier of seven triggering events occur, including:

(a) the child completes one post-secondary degree, or

(b) the child becomes twenty-two years of age.

(4) Section 7 expenses regarding private school tuition, daycare, and summer camp expenses were allocated 50/50.

(5) The 2009 Order provided that “In the event the parties cannot agree on any different or new extraordinary expenses in the future, they shall go to arbitration . . .”

Events After the 2009 Order

[4] Mr. Sanza did not provide Ms. Zaffino-Sanza with updated income tax returns after the 2009 Order. Despite the fact that his income increased, he did not increase his child support payments. Ms. Zaffino-Sanza also did not exchange tax returns as required by the Order. Mr. Sanza continued to pay child support of $799.00 for two children in accordance with the 2009 Order even after the eldest child turned 22 in 2014, although the Order provided that ongoing support would cease at age 22. No steps were taken by Ms. Zaffino-Sanza to compel the annual provision of updated income tax returns, or to end the payment of child support for the eldest child after he turned 22 and was no longer eligible under the final Order.

[5] The parties did not discuss or agree on the payment of section 7 expenses related to high school tutoring, driver’s education lessons, or post-secondary education related expenses. No claim for such expenses was made until December 2018, when Ms. Zaffino-Sanza amended her motion to change to claim these as section 7 expenses. Prior to the amendment to the motion to change, Ms. Zaffino-Sanza did not provide receipts or seek agreement to the section 7 expenses, and neither party sought arbitration as required by the 2009 Order.

[6] Mr. Sanza remarried in 2013. He retired from his position as an electrician in 2016, and began collecting his pension in 2016. He began collecting CPP in 2013. He also began driving a school bus to earn part-time income in July 2017. Mr. Sanza has re-partnered and has a young stepson, age 13. His wife does not work outside the home. According to his 2019 Financial Statement, he claims current income of $69,955. Mr. Sanza has RRSPs of just over $70,000, and a house with a large mortgage. He has substantially fewer assets and lower income than Ms. Zaffino-Sanza based on the evidence filed. Mr. Sanza’s financial statement shows a net worth of (-$46,194.14). Ms. Zaffino-Sanza’s net worth is stated to be $905,895.00, which does not include the value of her pension with a local school board, which amount is stated to be determined (“TBD”).

[7] On May 8, 2017, the Family Responsibility Office (“FRO”) advised Mr. Sanza that AB was no longer eligible for support as he had reached the age of twenty-two in 2014. Mr. Sanza advised FRO of his pension income. He did not inform FRO that his income had increased between 2009 and 2016. When he obtained a job earning part-time income driving a school bus in July 2017, he did not inform FRO. FRO adjusted the support payments back to January 1, 2017, based on Mr. Sanza’s retirement income. FRO did not adjust for Mr. Sanza’s increased income in the years prior to 2017. As a result, FRO ceased deducting.

[8] The parties attended mediation in 2017. They did not reach a final agreement, and Ms. Zaffino-Sanza commenced the motion to change in April 2018, seeking retroactive and ongoing table child support. She amended the motion in December 2018 to claim retroactive and prospective section 7 expenses.

[9] There were two case conferences prior to trial where orders were made with respect to Mr. Sanza’s financial disclosure. I have reviewed all the disclosure filed; Mr. Sanza has substantially complied with the orders. On December 17, 2018 Justice Paisley ordered Mr. Sanza to produce a breakdown and supporting documentation for all deposits made into his account from January 1, 2016 to present. Ms. Zaffino-Sanzo takes the position that some of the supporting documentation for the deposits is missing, but has not indicated what supporting documentation is missing.

[10] In closing argument, Ms. Zaffino-Sanza took the position that an adverse inference should be drawn against Mr. Sanza for failure to provide his real estate lawyer’s reporting letter regarding the sale of his previous home. However, the Case Conference Endorsement of August 31, 2018 indicates that although Ms. Zaffino-Sanza sought an order that the respondent provide the real estate lawyer’s reporting letter and trust statements with respect to the sale of two properties, the Case Conference judge declined to order that disclosure. As such, I draw no such inference.

[11] Ms. Zaffino-Sanza seeks support based on the income set out in Mr. Sanza’s tax returns, notices of assessment, and current Financial Statement, and is not asking that greater income be imputed. Her position is that Mr. Sanza owes her a total of $56,002 for combined table support and special expenses, to be paid in instalments of $1000 per month.

[12] Mr. Sanza has not paid a $3,000 costs award made against him on December 17, 2018, and Ms. Zaffino-Sanza seeks to have the order made an incident of support so it can be collected by FRO, and I so order, unless (as discussed below) Mr. Sanza chooses to make a lump sum payment to Ms. Zaffino-Sanza.

Variation of Child Support

[13] The governing legislation is the Divorce Act, RSC 1985, c. 3. Sections 17(1) and 17(4) of the Divorce Act provide that:

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses…

17(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

[14] Section 14 of the Federal Child Support Guidelines, SOR/97-175, provides that for the purposes of section 17(4) of the Divorce Act, the following circumstances give rise to varying a child support order:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof.

[15] In determining whether there has been a material change in circumstance justifying a variation in child support, I must consider whether the change is material - one that “if known at the time, would likely have resulted in different terms,” and is a change with some degree of continuity, and not merely a temporary set of circumstances: L.M.P. v. L.S., 2011 SCC 64, at paras. 32 and 35; Gray v. Rizzi, 2016 ONCA 152, at para. 39.

1. Material Change - Father’s Increased Income

[16] Ms. Zaffino-Sanza seeks to vary the order for material change in two aspects. The first is Mr. Sanza’s income. Mr. Sanza’s change in income between 2009 and 2018 is a material change in circumstances.

[17] It is uncontroverted that Mr. Sanza did not advise Ms. Zaffino-Sanza of his increases in income, and he did not comply with the court ordered provision requiring annual exchange of income tax returns. Mr. Sanza acknowledged that he should have produced disclosure to adjust child support payments, and states in his affidavit form 15 B:

[H]e has no excuse or reason as to why this was not provided. This was never discussed between the parties as the Applicant never mentioned this until 2017. His intentions were never to avoid his support obligations as he continued to pay support in the amount of $799/month, even though [AB] was no longer eligible for support in 2014.

[18] CD is now over the age of majority, which is 18 in Ontario. The amount of child support for a child over the age of majority is to be determined pursuant to s. 3(2) of the Guidelines. Section 3 provides:

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is:

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

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.

[19] Section 3(2) provides two ways of determining the amount of child support for a child of majority age such as CD. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age: Lewi v. Lewi, 80 O.R. (3d) 321, 2006 ONCA 409, para. 127.

[20] Even though he is over the age of majority, I find that the table amount of child support for CD is appropriate. He is living at home with his mother while he is at university, and his expenses would be very similar to those incurred when he was under the age of majority.

2. No Material Change - Termination of Support

[21] Ms. Zaffino-Sanza also seeks a variation to the termination of support provisions set out in paragraph 6 of the 2009 Order – that support ceases the earlier of seven specified events, including the child attaining the age of 22 or completing a first post-secondary degree. Ms. Zaffino-Sanza seeks to extend the period of time for AB’s support. Ms. Zaffino-Sanza has not established that the termination of support terms in paragraph 6 of the 2009 Order should be varied on the grounds of a material change in circumstances. It was specifically contemplated by the order that a child might still be a child of the marriage at age 22, and might not have completed their post-secondary education, since the order specifically contemplated termination of support at the earlier of the events listed. AB turned twenty-two in March 2014. I find there is no material change and thus no claim for child support with respect to AB following March 2014, when he turned twenty-two.

[22] CD will turn twenty-two in June 2020. He is presently enrolled full-time in postsecondary education, and is eligible for continuing child support until one of the triggering events in paragraph 6 of the 2009 Order takes place. Ms. Zaffino-Sanza seeks to extend child support for CD until he completes his first post-secondary degree. However, I find that there is no material change which would justify setting aside paragraph 6, and CD will cease to be eligible for child support in accordance with the terms of paragraph 6, when he turns 22 in June 2020 or earlier if another event in the final order is triggered.

[23] There is jurisdiction under section 17 of the Divorce Act to vary child support even after the children are no longer children of the marriage as defined in section 2(1) at the time of the application, and this court has jurisdiction to order a retroactive variation for both AB (who is an adult) and CD (who remains a child of the marriage): Colucci v. Colucci, 2017 ONCA 892, at paras. 13, 14 and 19. Therefore I find that the wife could bring this motion in respect of AB, even though he was no longer a child of the marriage at the time the application was commenced.

Retroactive Table Support and Section 7 Expenses

[24] The next issue is the start date for retroactive child support. In determining the question of retroactivity, the court must balance the payor’s interest in certainty with the need for fairness and flexibility.

[25] The leading case on the issue of retroactive child support is the Supreme Court of Canada decision in S. (D.B.) v. G. (S.R.), 2006 SCC 37 (“DBS”). DBS articulated four main factors the court should consider when ordering retroactive child support, (1) the reasonableness of the delay in seeking support; (2) the conduct of the payor; (3) the circumstances of the child or children; and (4) the hardship the retroactive award might entail. No one factor is decisive, and the court must take a holistic view: see para. 133.

1. The Reasonableness of the Delay

[26] In DBS the Court held that delay in seeking child support is not presumptively justifiable, although the reason for the delay may provide an excuse: at para. 101. The recipient parent “must act promptly and responsibly in monitoring the child support paid”: at para. 103. In this case, the period of delay is 9 years.

[27] I did not find the applicant’s reasons for the delay in seeking to increase the amount of child support justifiable. There is a positive duty on both parties under the final Order to exchange tax returns. Ms. Zaffino-Sanza failed to provide her income tax returns as required by the Order. Ms. Zaffino-Sanza made a bald assertion that she raised the prospect of Mr. Sanza’s increased income multiple times prior to 2017. However, there are no dates (or even years) given, no letters, e-mails or written documents, nor any description of how and when any earlier demands for income tax returns were made. Mr. Sanza denies that disclosure was ever raised prior to 2017. I give no weight to the wife’s bald statements relating to pre-2017 requests and find that at no time prior to 2017 did Ms. Zaffino-Sanza seek to enforce the obligation arising under the 2009 Order that income tax returns be exchanged annually.

[28] In 2017, FRO announced it would no longer enforce the order of support in respect of AB as it had terminated in 2014, and recalculated support giving Mr. Sanza credit for payments made after 2014, resulting in a cessation of monthly payments. I find this to be the triggering event for the motion to change.

[29] I also find that the 2009 Order directed mutual financial disclosure, thus contemplating review and variation based on material changes in income, and it specifically referred to recalculation of the respondent’s support obligations. However, there was no provision for automatic or annual adjustments. This distinguishes this case from those involving automatic readjustment provisions, where the issue is not a retroactivity analysis, but a question of enforcement. For example, the readjustment provision in the agreement considered in Meyer v. Content, 2014 ONSC 6001, required the respondent to deliver a copy of his Income Tax Return and Notice of Assessment for the previous year by April 30th each year, and further provided that child support would be adjusted in accordance with the Guidelines annually on May 1st: at para. 9.

[30] The automatic readjustment provision in the order in Mackenzie v. Mackenzie, 2018 ONSC 3090, was even more clear and directive as to the roles of the parties. It provided that:

• Each year by June 25th, the parties were to sign a Form 15D Consent Motion to Change Child Support and any other required supporting documentation that reflected the adjusted amount of table child support payable to the applicant and the adjustment to each party’s proportionate share of section 7 expenses.
• The respondent was to file the Form 15D with the Ontario Court, take out the amending order arising from it, and file the amending order and support deduction order with the Family Responsibility Office when there was a decrease in child support.
• The applicant was to file the Form 15D with the Ontario Court, take out the amending order arising from it, and file the amending order and support deduction order with the Family responsibility Office when there had been an increase in child support.

[31] I find Ms. Zaffino-Sanza did not seek agreement on section 7 expenses, nor ask for a contribution or proceed to arbitration as required under the 2009 Order. The first time she requested section 7 expenses was in her Amended Motion to Change, issued in December 2018.

[32] Ms. Zaffino-Sanza’s income is over $100,000, and she was receiving child support until 2017. Ms. Zaffino-Sanza states in her Amended Motion to Change Information Form and Affidavit that she had to “pinch pennies” and incur debt, and that she did not have the funds to pursue Mr. Sanza in court while also struggling to provide financially for her children. In fact, her financial statement reveals little debt and a significant net worth.

[33] Ms. Zaffino-Sanza took no steps to enforce the obligation of Mr. Sanza to produce his income tax returns between 2009 and 2017, and she gave no evidence that she herself provided income tax returns as required under the 2009 Order. She states that Mr. Sanza told her that he would stop paying support if she kept bothering him about disclosure. He denies that she ever asked for disclosure. She states that she had no extra funds to pursue the matter in court, and did not know that his income had increased so much, or she would have pursued the matter further. Of course, had she provided her tax returns each year as she was obliged to, and each year requested his returns in accordance with the Order, the matter would not have lingered in abeyance for 9 years. She has no reasonable excuse for failing to comply with her obligation to provide her tax returns, or to act promptly to secure the payment of support.

[34] Even if she did not have the funds to take the father to court, she was able to write letters requesting compliance with the mutual income disclosure obligation, and requesting agreement and contribution to section 7 expenses, which she failed to do. She continued to accept the full sum of child support for AB for three years after she should have known he was no longer eligible under the terms of the 2009 Order.

2. Conduct of the Payor Parent

[35] The Supreme Court held in DBS:

(1) Blameworthy conduct is anything that privileges the payor’s own interests over his children’s right to an appropriate amount of support (para. 106),

(2) Even where a payor parent does nothing active to avoid his obligations, he may still be acting in a blameworthy manner if he “consciously chooses to ignore them” (para. 107), and

(3) A payor parent who knowingly avoids or diminishes his support obligations to his children should not be allowed to profit from such conduct (para. 107).

[36] Mr. Sanza’s conduct is blameworthy in respect of the table child support. He had an obligation to provide income tax information annually, and cannot rely on the fact that Ms. Zaffino-Sanza neither provided her income tax information nor requested his. As the Court stated in DBS at para. 125:

The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

[37] Mr. Sanza paid child support under the 2009 Order, and continued to do so for three years after AB was no longer eligible. Mr. Sanza’s income increased, but the dramatic income increase commenced when he began to receive CPP and then OAS while continuing to work, starting in 2013. He is now 69 years old, in receipt of a pension, OAS and CPP, with approximately $72,000 in RRSPs. While he works part-time, given his age, there is no certainty that he will be able to continue to work part-time.

[38] I find no blameworthy conduct in respect of the section 7 expenses. Although Ms. Zaffino-Sanza asserts that the information was provided, this is a bald assertion without details as to what was provided, when, or how: and there is no e-mail, letter, or other documentation indicating any receipts were provided, or that Mr. Sanza was ever asked to contribute to section 7 expenses.

3. Circumstances of the Children

[39] AB is living independently, and has not qualified for support for four years. As a result, he is not in a position to achieve benefit from a retroactive award. CD, who is presently attending school, will benefit from such an award. Mr. Sanza has provided some assistance with AB’s line of credit by rolling it into a line of credit under Mr. Sanza’s name; part of AB’s debt related to AB’s post-secondary education.

[40] There is no evidence that AB or CD suffered any hardship as a result of the respondent not increasing his support payments, or that they were denied or deprived of any opportunities available to them.

[41] The Court in DBS cautioned against making retroactive awards that will solely compensate a recipient parent for hardship they experienced providing for the child. The court wrote, “hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child”, as child support is a right of the child and belongs to the child: at para 113.

4. Hardship Occasioned by a Retroactive Award

[42] In DBS the Supreme Court held that retroactive awards disrupt the management by payors of their financial affairs in ways that prospective awards do not, since retroactive awards are based on past income rather than present income. Unlike prospective awards, the calculation of retroactive awards is not linked to what the payor or parent can currently afford.

[43] Mr. Sarza is 69 years old. He retired in 2016, and has commenced receiving his pension/CPP/OAS. While he has some RRSPs, he is not wealthy. The section 7 claims were first advanced after his retirement. Given his age, and the reduction of his income since retirement, the late notice deprived Mr. Sarza of a potential choice to delay retirement or delay the commencement of CPP/OAS, for example. While he is working part-time to supplement his income now, as he gets older, it may be more difficult to work part-time. Given his age, fixed income and assets, a large retroactive award would constitute hardship.

5. Conclusion on Date of retroactivity

[44] In this case, effective notice with respect to table child support was given in 2017. Formal and effective notice on section 7 expenses was given in December 2018. Having considered balancing fairness, certainty and predictability, and the four DBS factors discussed above, I find that the support claims should be retroactive to three years prior to effective notice. This is reasonable given the unmet obligations on both parties, unjustifiable delay in seeking an increase in support, blameworthy conduct by Mr. Sanza in failing to advise of his increased income, the age and circumstances of the children, and the hardship caused by the retroactive claim in light of Mr. Sanza’s retirement, fixed income and age. This means that the table support claim is retroactive to 2014 and the section 7 expenses claim is retroactive to December 2015.

Income of Father

[45] Mr. Stanza retired in December 2016, and is currently in receipt of a pension, OAS and CPP. Since June 2017 he has been employed part-time as a school bus driver. The relevant calculations are set out below:

Year	Line 150 income	Child support paid	Table child support – adjusted to income	Table support owing
2018	$69,555	$821.64	$635x12=$7620	$6798.00
2017	$57,671	$2,117	$533.3x12=$6,396; shortfall =4,279	$4279.00
2016	94,687 (earnings 74,597; OAS $6,878; CPP $11,879; RRSP $1,333)	$799x12=$9,588.00	$837.22x12= $10,046.64	$459.00
2015	96,121 (earnings 78,299, OAS 5,095; CPP $11,394; RRSP $1,333)	$799x12=$9,588.00	$848.94x12=$10,187	$599.00
2014	95,638 (earnings 83,295; CPP 10, 884;RRSP 1,333)	$843.93x9=$7,595.32 $1361.41x3=$4,084.23	$843.93x9=7595.37 $1361.41x3=4084.23 =$11,676.60	$2,092.00

The total table child support arrears owing for the period the period of 2014 to 2018 are $14,227.00.

Income of the Mother

[46] Ms. Zaffino-Sanza’s income in 2018 is $108,000; $105,000 for 2017; and $103,459 for 2016. I do not have her earlier income tax information in the record.

Section 7 expenses

[47] The 2009 Order provided for the sharing of costs relating to private school tuition, daycare, and summer camp expenses. The 2009 Order also provided that: “In the event the parties cannot agree on any different or new extraordinary expenses in the future, they shall go to arbitration pursuant to paragraph 7 above.” Mr. Sanza’s evidence is that Ms. Zaffino-Sanza did not ask for a contribution, remit expenses for payment, or even inform him that the children were enrolled in post-secondary education. It is uncontroverted that neither party sought arbitration.

[48] The initial application did not claim section 7 expenses. The Amended Change Information Form 15A, dated December 3, 2018, is the first time that Ms. Zaffino-Sanza advanced a claim for a contribution to special and extraordinary expenses since the order of February, 2009. The claims for AB related to the period 2014 through May 2017 (including insurance for AB, presumably automobile). The claim includes an Excel chart setting out cash advances to AB’s student line of credit from November 2014 through May 2017 in the amount of $10,767.07, with no detail identifying whether the cash advances are for eligible section 7 expenses.

[49] There is also an Excel chart claiming $7,800.00 for section 7, including expenses for AB’s flights and driving trips to Thunder Bay. Other expenses included in the claim such as a flight for AB’s uncle to Thunder Bay to pick up AB’s car for the summer in Toronto; flights for the mother to Thunder Bay; and “cash flow assistance”; are not eligible section 7 expenses.

[50] The section 7 claim for CD in the period February 2015 to present includes tutoring and driver’s license lessons while in high school in the sum of $4,197.38. University related expenses include a charge for the university application process, tuition, a computer and software, in the total amount of $6,381.57. There is also a claim for usage by CD on a line of credit in the amount of $3,000.00; however, this is not a valid section 7 claim as there are no details as to usage.

Retroactive Section 7 expenses

[51] These are the issues to be determined regarding the s. 7 expenses claimed by the applicant:

a) Is the applicant entitled to claim s. 7 expenses on a retroactive basis, and if so, starting when?

b) Do all the expenses claimed properly qualify as s. 7 expenses?

c) Is the applicant entitled to reimbursement for the full amounts she has claimed?

d) What contribution is the child expected to make to these expenses?

e) What is the respondent’s proper proportionate share of the s. 7 amounts?

[52] The relevant portions of section 7 of the Federal Child Support Guidelines provides:

Special or extraordinary expenses

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….

(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.

[53] The guiding principle in determining the amount of special and extraordinary expenses 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.

[54] All special expenses must meet the tests of necessity and reasonableness set out in s. 7(1) of the Guidelines. To be allowed as s. 7 expense, the amounts claimed must be necessary in relation to the child’s best interests, and reasonable in relation to the means of the parents. The onus falls on the applicant who seeks special or extraordinary expenses under s. 7 of the Guidelines to prove that the claimed expenses fall within one of the categories, and that the expenses are necessary in relation to the child’s best interests, and reasonable having regard to the parental financial circumstances: Park v. Thompson (2005), 77 O.R. (3d) 601 (Ont. C.A.), at para. 21.

[55] In addition, in Menegaldo v. Menegaldo, 2012 ONSC 2915 at para. 157, Chappel J. sets out a comprehensive list of factors identified in the case law as relevant to the eligibility of support for adult children attending post-secondary education. There is little to no information about most of these factors in the information provided by the applicant, in particular proof of full-time enrolment, information about the ability of the child to contribute to their own support (tax returns of the children); their student loan, grant and bursary history, the children’s education and career plans, their academic performance, and the willingness of the children to remain accountable to the parents.

[56] As noted above, the final order required the applicant to seek the approval of the respondent for new categories of post-secondary expenses, and to proceed to arbitration if unable to achieve agreement. The first time any request was made was December 2018. Ms. Zaffino-Sanza seeks an order that Mr. Sanza pay retroactive section 7 expenses of $18,687 up to December 2018, and $1,000 per semester for CD until he receives one post-secondary degree.

AB’s Post-Secondary Expenses

[57] After high school, AB attended a university in Toronto for the 2010/2011 academic year. He then attended Humber College, from September 2011 until June 2014, when he graduated with Civil Engineering Technology Diploma. At the age of 22 he went to Lakehead University in Thunder Bay.

[58] I dismiss the claim for AB’s section 7 expenses advanced by the applicant. The claim was first advanced in December 2018. I find that in balancing fairness, certainty and predictability, the retroactive claim should be considered from December 2015 to December 2018. By this time AB had completed four years of post-secondary education, and had obtained a diploma. The 2009 Order contemplated ongoing support for the duration of the first post-secondary degree, or until age 22. I find that the retroactive claim was not advanced in time.

CD’s Section 7 Expenses

[59] For the same reason, I only consider claims for CD’s section 7 expenses from December 2015.

[60] The information in the record is deficient regarding CD’s post-secondary education expenses. The chart indicates that post-December 3, 2015 post-secondary expenses claimed for CD are 2017 - tuition ($3,012); software ($1,000); and 2018 – a computer ($2,069.57). These are all eligible section 7 expenses, which amount to $6,082.00. The car insurance is not an eligible section 7 expense, as CD was living with his mother and attending university in Toronto. There is a claim for a student line of credit, with no indication of whether any charges on the line of credit are eligible section 7 expenses. The amount of $4,012.00 is to be allocated 35% to Mr. Sanza in 2017 which is $1,404.20, and 39% of $2,069.57 in 2018 which is $807.13, for a total owing of $2,211.33.

[61] Mr. Sanza paid $1,200 to the University on September 26, 2018.

[62] Ms. Zaffino-Sanza’s Form 15A Change Information Form amended December 3, 2018 to claim for section 7 expenses indicates that CD is in his third year of university, and CD “currently works part-time and makes reasonable contribution towards his tuition and supplies.” The amount of the contribution made by CD is not specified, and there is no information as to CD’s income. At the same time, Ms. Zaffino-Sanza seeks only a contribution of $1,000 per semester for CD’s ongoing section 7 expenses, which is reasonable. Upon proof of full-time enrollment by CD each semester, and the tuition owing each semester, Mr. Sanza shall pay $1,000 toward the tuition until CD graduates from his first degree or turns 22.

Ratio of Income for Section 7 Expenses

[63] The 2009 Order did not provide for a 50/50 allocation of all future section 7 expenses; that matter was to proceed to arbitration. In accordance with the Federal Child Support Guidelines, the expenses will be allocated by income.

[64] The ratio is as follows:

Year	His Income	Her Income	Ratio
2018	$69,555	$108,000	39:61
2017	$57,671	$105,000	35:65
2016	$94,687	$103,459	48:52

[65] If any prospective section 7 expenses are sought other than a contribution of $1,000.00 toward tuition costs each semester, then reasonable expenses are to be paid by the parties in accordance with their incomes, after deducting CD’s share.

[66] The parties are to exchange income tax returns in June of each year and Notices of Assessment as they are received, until CD completes a first degree or attains the age of 22, whichever is earlier. If the applicant seeks a contribution to section 7 expenses other than $1,000.00 towards tuition each semester, the applicant is to provide notice of and a receipt or invoice for the expense for which contribution is sought. In addition, the applicant is to provide CD’s income tax return and Notices of Assessment, evidence of full-time enrollment, evidence of CD’s bursaries, grants and loans, his marks, his statement of tuition and the proposed contribution to be made by CD. Mr. Sanza is to contribute to reasonable and necessary section 7 expenses.

No Basis to Pay Less than Table Support

[67] Mr. Sanza has requested that he pay less than table support for CD, on the grounds that he is on a fixed income and is supporting his stepson; the child’s father is deceased, and the child’s mother does not work. I see no reason why Mr. Sanza should pay less than table support for CD until the age of 22.

[68] The courts generally recognize a “first-family-first” principle. The obligation to a second family, if any, must be considered in context: Fisher v. Fisher, 2008 ONCA 11, at para. 39-40. Mr. Sanza married in 2013. He has been supporting his stepson and his wife since then. As the Court of Appeal held in Fisher, at para. 41: “the respondent voluntarily assumed significant responsibility for his second family when he knew, or should have known, of his pre-existing obligation to his first family.” There is no evidence that Mr. Sanza’s obligations to CD will impoverish his second family. As the Court of Appeal held in para 41 of Fisher: “the respondent’s endorsement of his second wife’s preference to remain at home cannot be relied upon to reduce his support obligation to his first family.”

Payment of Arrears

[69] Ms. Zaffino-Sanza asks that arrears be paid at the rate of $1,000 per month, to be enforced by FRO.

[70] Mr. Sanza has indicated that he is prepared to pay a lump sum by withdrawing from his RRSPs, so long as the RRSP withdrawal is not included as income for 2019, thus increasing his monthly child support and section 7 obligations. In this case, the entirety of the withdrawal will be for the purposes of paying child support arrears, and I order that for the purposes of calculating income for child support and section 7 purposes in 2019, the RRSP withdrawals be excluded from income for 2019.

[71] Mr. Sanza has 14 days from receipt of this endorsement to advise Ms. Zaffino-Sanza if he will pay the lump sum by May 30, 2019, failing which the arrears will be paid at the rate of $1,000 per month.

Order

[72] The order is as follows, anonymized for the purposes of publication:

(1) Mr. Sanza is to pay Ms. Zaffino-Sanza retroactive table child support arrears of $14,227.00 for the period up to December 31, 2018.

(2) In 2019, Mr. Sanza is to pay Ms. Zaffino-Sanza table child support of $635 per month for one child, [name and date of birth omitted], based on 2018 income of $69,555 until the earliest of an event set out in paragraph 6 of the Final Order, and a Support Deduction Order shall issue.

(3) Mr. Sanza is to pay the $3,000.00 costs award made against him on December 17, 2018, which is to be enforced as an incident of support.

(4) Mr. Sanza is to pay retroactive section 7 expenses to December 31, 2018 of $2,211.33.

(5) Mr. Sanza is to pay $1,000.00 per semester for CD’s tuition, upon Ms. Zaffino-Sanza providing proof of CD’s full-time enrollment and a statement of tuition, until CD obtains his first diploma or degree.

(6) If contribution to additional section 7 expenses is sought by Ms. Saffino-Sanza, reasonable and necessary section 7 expenses are to be paid by the parties, after deducting CD’s share and bursaries and grants, in accordance with their incomes.

(7) The parties are to exchange income tax returns in June of each year and Notices of Assessment as they are received, until CD completes a first degree or attains the age of 22, whichever is earlier.

(8) If the applicant seeks a contribution to section 7 expenses other than $1,000.00 towards tuition each semester, the applicant is to provide notice of and a receipt or invoice for the expense for which contribution is sought. In addition, the applicant is to provide CD’s income tax return and Notices of Assessment, evidence of full-time enrollment, evidence of CD’s bursaries, grants and loans, his marks, his statement of tuition and the proposed contribution to be made by CD.

(9) Arrears owing to the end of April, 2019 are $21,978.33, including retroactive table support of $14,227.00, retroactive section 7 expenses of $2211.33, 2019 table support from January to April of $2,540.00 and the December, 2018 costs award of $3,000.00. Mr. Sanza has until May 10, 2019 to advise Ms. Zaffino-Sanza if he will pay this in a lump sum on or before May 30, 2019, failing which the arrears are to be paid at the rate of $1,000 per month and a support deduction order will issue with respect to arrears.

(10) If the arrears set out in paragraph 9 are paid by way of a lump sum through withdrawals from Mr. Sanza’s RRSP, then for the purposes of calculating Mr. Sanza’s income for child support and section 7 purposes in 2019, the RRSP withdrawals are to be excluded from income for 2019.

(11) Mr. Sanza is to provide proof that the lump sum amount was obtained through withdrawals from his RRSP.

(12) All other claims are dismissed.

(13) Counsel for the applicant is to prepare the Order and a Support Deduction Order using the child’s name and date of birth, and Mr. Sanza’s approval of the Order is dispensed with.

Costs

[73] The parties are encouraged to agree on costs. If they are unable to do so, Ms. Zaffino-Sanza is to make costs submission (3 pages plus costs outline and offers to settle) by May 6, 2019. Mr. Sanza is to make responding costs submissions, subject to the same restrictions, by May 15, 2019. Since Mr. Sanza is self-represented, it would be of assistance if Ms. Zaffino-Sanza’s counsel could provide all offers to settle.

Kristjanson, J. Released: April 26, 2019