Court File and Parties
COURT FILE NO.: 384/07 (St. Catharines) DATE: 20190611 ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT
BETWEEN: Catherine M c Quat Bruni Applicant (Responding Party) – and – Larry Bruni Respondent (Moving Party)
Counsel: Catherine Bruni, acting in person Larry Bruni, acting in person.
HEARD: May 14-15, 2019
R. A. Lococo J.
REASONS FOR JUDGMENT
I. Introduction
1The Respondent Larry Bruni has brought a motion to change, seeking termination of his obligation to pay child support to his former wife, the Applicant Catherine Bruni. Catherine disagrees, arguing that Larry has an ongoing support obligation. She also seeks Larry’s contribution to payment of certain expenses incurred for the children’s benefit.
2Larry and Catherine separated in 2006 after 11 years of marriage. Their divorce was final in 2008. Larry and Catherine have both re-partnered, each now residing with his or her current spouse. At the time of the motion hearing, Larry was employed full time as a truck driver. His total income (Line 150) in 2018 was $60,004. Catherine worked part-time as a school caretaker. Her total income (Line 150) in 2018 was $19,375.
3The parties have two children together, Taylor, who is now 22 years old, and Brandon, who is 19, turning 20 this summer. Both of them attended Niagara College in Welland in the winter semester completed in April 2019. Catherine says that both children currently reside with her and her spouse Sam. Larry disputes that Taylor continues to do so.
4The parties entered into a Separation Agreement in 2007. Under the Separation Agreement, Catherine received sole custody of the children, with reasonable access to Larry on reasonable notice. Larry was required to pay child support to Catherine, to be adjusted annually based on annual disclosure of Larry’s income. The Separation Agreement also addressed contribution to expenses incurred for the children’s benefit, as outlined later in these Reasons.
5Larry’s obligation to pay child support to Catherine has been varied twice by court order. Justice Quinn’s final order dated November 29, 2010 varied the amount of child support payable in 2008, 2009 and 2010, based on Larry’s actual income in those years. The amount of ongoing child support Quinn J. ordered was $1,171 per month based on Larry’s 2010 income of $81,000.
6The amount of child support payable was further varied effective January 1, 2014, by the final order of Tucker J. dated March 24, 2014. That order was made on consent at a case conference relating to Larry’s previous motion to change, and remains in effect. Larry was ordered to pay child support of $862 per month based on an annual income of $58,000. That order also provided that (i) extraordinary expenses for the children shall be paid proportionate to the parties’ incomes, and (ii) any overpayment of child support up to December 31, 2013 shall be applied to extraordinary expenses Catherine incurred prior to that date.
7Larry continues to pay $862 per month in child support to Catherine through the Family Responsibility Office (or FRO) by way of deduction from his pay cheque. Larry has been generally current in making child support payments, except for short periods when he was changing employers and FRO was catching up with the paperwork. It is common ground that since the 2014 order of Tucker J., Larry has not contributed any amount toward expenses incurred for the children’s benefit. It is also common ground that during that time, Larry has had no contact with the children, in accordance with their wishes. Larry’s last contact with either of them was by telephone with Brandon in early 2011.
8Larry brought his current motion to change in September 2018, acting on his own behalf. I heard the motion over a period of two days in May 2019. Neither Larry nor Catherine have been represented by counsel throughout these proceedings.
9In his motion to change, Larry is seeking termination of his obligation to pay child support to Catherine. He also seeks repayment of net child support overpayments for the period from 2014 going forward, taking into account, (i) periods of time in which he says Catherine was not entitled to receive child support for one or both children, and (ii) his actual income in each year.
10In particular, Larry disputes that Catherine is entitled to child support for Taylor after June 2015 when she finished high school, given (among other things) the gap in time before she started her course of study in Early Childhood Education at Niagara College in September 2017. He also disputes that Taylor has lived with Catherine since at least August 2017.
11Larry also contests Catherine’s entitlement to child support for Brandon after the end of his most recent semester at Niagara College in April 2019. As well, Larry disputes her entitlement to support for Brandon for the period from September 2017 until the end of that year. In November 2017, Brandon took the option of withdrawing from his first semester at Niagara College after a five week strike by college personnel, during which classes were cancelled. Brandon returned to Niagara College in January 2018 and effectively made up the missed time by attending classes during the spring/summer semester from May to August 2018.
12In response to Larry’s motion to change, Catherine disputes that there has been any gap in entitlement to child support for either Taylor or Brandon. She says that monthly child support payments for both of them should continue to be paid until April 2020, when Taylor and Brandon are scheduled to complete their Niagara College programs. Catherine also seeks retroactive child support for the period from 2014 forward, based on Larry’s actual income in each of those years. As well, Catherine seeks contribution from Larry for past and future expenses incurred for the children’s benefit, including Niagara College registration fees, based on a 60/40 split. Larry’s share would be 60 percent, given his higher income.
13Larry does not agree that he should have any responsibility for past or future expenses incurred for the children’s benefit. In support of that position, he notes the following factors (among others). He has had no input with respect to expenses incurred. He has no contact with the children in accordance with their wishes. With respect to Niagara College registration fees, he understands that the children are able to pay their own expenses by part-time work and financial assistance through the Ontario Student Assistance Program (OSAP).
14During their closing submissions, both parties indicated their agreement that the amount of child support payable to Catherine should be adjusted each year from 2014 to 2018 based on Larry’s income for that year, to the extent that Catherine is entitled to child support in that period. As well, as indicated further below, the parties agree on the amount of Larry’s income for support purposes for each year from 2014 to 2018.
15Therefore, the outstanding issues to be determined are as follows:
- Child support for Brandon: For what period is Catherine entitled to child support for Brandon?
- Child support for Taylor: For what period is Catherine entitled to child support for Taylor?
- Amount of ongoing child support: If Catherine is entitled to ongoing child support, how much should it be?
- Adjustment of child support for prior periods: To the extent that adjustment of child support for prior periods is required, what is the net adjustment amount?
- Contribution to the children’s expenses: What amount (if any) does Larry owe to Catherine as his contribution for expenses incurred for the children’s benefit?
16In the balance of these reasons, I will address each of those issues in turn.
II. Child support for Brandon
17During what period is Catherine entitled to child support for Brandon?
18In proceedings under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the court may make an order requiring a spouse to pay for the support of a child of the marriage. Under s. 2, a “child of the marriage” includes a child 18 years old or older who is under the parents’ charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. The courts have interpreted the words “other cause” to include attendance at school pursuing an education in the ordinary course designed to fit the child for the future: see Tapson v. Tapson, [1970] 1 O.R. 521 (C.A.), at p. 522; see also Whitton v. Whitton (1989), 34 O.A.C. 31 (C.A.), relating specifically to post-secondary education. Similarly, s. 31 of the Family Law Act, R.S.O. 1990, c. F.3, imposes an obligation on a parent to provide support for an unmarried child who is enrolled in a full-time program of education, to the extent that the parent is capable of doing so.
19As Larry indicated during closing submissions, he does not dispute that Brandon lived with Catherine during the entire period from 2014 to the present time. Brandon is currently 19 years old, turning 20 later this summer. However, Larry says that his obligation to pay child support for Brandon should terminate as of April 2019, when Brandon completed his most recent semester at Niagara College. Larry also contests his obligation to pay child support for the period from September 2017 until Brandon started the Police Foundations program at Niagara College in January 2018.
20Dealing first with the latter point, I am satisfied that Larry was required to pay child support for Brandon for the period from September 2017 and continuing through to the end of that year and beyond. Brandon completed high school in June 2017, turning 18 later that summer. The documentary evidence from Niagara College confirms that in August 2017, Brandon enrolled to attend the Humanities/Social Science program at Niagara College during the Fall 2017 Term (September to December) and that the required registration fees were paid. However, Brandon withdrew without completing that semester, receiving a refund of the registration fees. It is common ground that there was a five-week strike by college personnel during that semester, which resulted in the suspension of classes. Consistent with the documentary evidence from Niagara College, I accept Catherine’s testimony that in November 2017, Brandon took up the offer available to students that allowed them to withdraw from courses without financial penalty because of the disruption the strike caused. Brandon returned to Niagara College the next semester in January 2018 (enrolled in the Police Foundations program), and also attended classes for the spring/ summer semester from May to August 2018 rather than taking the summer off. He continued to reside with his mother during that period, as he continues to do so today. I am satisfied that Brandon continued to be a child of the marriage through what would have been his first semester at Niagara College, and that Catherine was entitled to receive child support payments for him during that period.
21As previously indicated, Larry accepts that he was required to pay child support for Brandon throughout 2018 and continuing into 2019. However, during closing submissions, Larry took the position that his obligation to provide child support for Brandon came to an end in April 2019, when Brandon completed his most recent semester at Niagara College. While Larry provided no evidence on this point during his testimony, he based his submission on his understanding (from the Niagara College website) that the Police Foundations program was a two-year program that should have been completed by April 2019. The only evidence I have before me on that point is Catherine’s testimony (which I accept) that Brandon’s has a year remaining in his program, running to April 2020, and that he is combining Police Foundations courses with Customs Border Security courses in order to pursue a career in the latter field. That testimony is consistent with the documentary evidence from Niagara College, which indicates that Brandon was enrolled in two semesters of the Police Foundations program (January to August 2018) and two semesters in the Customs Border Services Program (September 2018 to April 2019).
22Accordingly, I am satisfied that Larry’s obligation to pay child support should continue, terminating as of April 30, 2020. As indicating further below, the final order also requires that by September 30, 2019, Catherine shall provide Larry with the following documents from Niagara College relating to Brandon: (i) a confirmation of enrolment for the 2019 Fall Term (ending December 2019), and (ii) student account information setting out the fees paid to Niagara College for that semester. By January 31, 2020, Catherine is also required to provide Larry with the same documents relating to the 2020 Winter Term (ending April 2020). Should Catherine fail to provide those documents to Larry, it would be open to him to apply to move for earlier termination of his child support obligation for Brandon.
III. Child support for Taylor
23During what period is Catherine entitled to child support for Taylor?
24Larry disputes that Catherine is entitled to child support for Taylor after June 2015 when she finished high school, given the gap in time before she started her course of study in Early Childhood Education at Niagara College in September 2017. He also disputes that Taylor has lived with Catherine since at least the summer of 2017.
25Since Larry has not been in contact with Taylor for several years, he asked me to make findings of fact in support of his position by drawing inferences from documents he placed in evidence. In particular, he provided a letter from Niagara College setting out credits Taylor obtained for completed courses at Niagara College. That letter indicates that Taylor was registered for a number of Business Administration courses in the fall of 2015, but received no credits for those courses. The Niagara College letter also indicates that Taylor received credits for a number of courses in the Early Childhood Education program in the 2017 Fall Term, 2018 Winter Term and 2018 Fall Term. Larry also produced a letter from “Cappa School of Hairstyling & Aesthetics”, indicating that Taylor attended that school from February to May 2016, and paid $1,600 in fees, but missed a significant number of hours and withdrew before completing the course. He also testified as to his understanding that Taylor had at least two part-time jobs during that period, which he says casts doubt on whether she in fact attended hairdressing school. He also produced print-outs of Facebook pages to support his position that Taylor was engaged in her boyfriend by August 2017 and living with him by November 2017.
26During her testimony, Catherine placed in evidence a number of documents from Niagara College relating to Taylor. Those documents were consistent with Catherine’s testimony that Taylor attended Niagara College full time during the 2015 Fall Term but failed her courses and did not return the next semester. Instead, at her mother’s urging, Taylor attended Cappa School of Hairstyling & Aesthetics, a private hairdressing school, starting in February 2016. However, Taylor did not thrive in that environment either, withdrawing in May 2016. Catherine also testified that Taylor was adversely affected during that period by the death of her maternal grandfather, who lived with Catherine and her spouse. As well, Catherine testified that Taylor continued to work at various part-time jobs but wanted to resume her education. She returned to Niagara College in September 2017 in the Early Childhood Education program. She completed two semesters of that program from September 2017 to April 2018 and two semesters from September 2018 to April 2019. According to Catherine, Taylor is scheduled to complete her course of study in April 2020, after completing unpaid co-op placements.
27Catherine also testified that Taylor lived at home with Catherine until returning to Niagara College in September 2017, except for two months in March and April 2017, when she lived with friends. Taylor again lived with friends during the school terms from September 2017 to April 2018 and from September to December 2018, spending the summer from May to August 2018 living with Catherine. Catherine also testified that as of January 2019, Taylor has returned to live with Catherine, intending to continue doing so until she completes her Niagara College program in April 2020.
28In general terms, I accept Catherine’s testimony relating to the time that Taylor resided with Catherine (including at the present time) and the time that Taylor spent in school. Based on that testimony and the documentary evidence before the court, I find that Taylor continued to meet the definition of “child of the marriage” in the Divorce Act after she graduated from high school in June 2015 until the end of 2015 (when she completed her unsuccessful first semester at Niagara College), and that she also met the definition from September 2017 (when she returned to Niagara College) and continuing to the present time. I also find that her status as a child of the marriage would continue until the scheduled completion of her current program of study at Niagara College in April 2020, assuming that she remains in that program during that time. However, I also find that Taylor did not meet the definition of “child of the marriage” for the balance of the time since 2015, that is, from the beginning of January 2016 to the end of August 2017.
29In that regard, I recognize that in order to find a child who is 18 or older to be a “child of the marriage”, the Divorce Act does not require that child be attending a post-secondary education program on a full-time basis. However, consistent with previous case law, I consider that factor to be an important consideration in determining whether the child continues to be in the charge of the parent and entitled to support, taking into account other relevant considerations, including those referred to by the Ontario Court of Appeal in Whitton. I also note that Taylor was enrolled in classes at a privately-run hairdressing school for part of that period, but the evidence indicated issues with Taylor’s attendance that were not consistent with a full-time course of study. As well, there is no indication that the hairdressing program was of any assistance to Taylor for her future career prospects. During that period and continuing after she was no longer attending classes, she continued to live at home for most but not all of that time, while working part-time. In all the circumstances, the evidence taken as a whole does not support a finding Taylor met the definition of a “child of the marriage” during that period.
30As already indicated, however, I have also concluded that Taylor again met the definition of a child of the marriage once she resumed attendance at Niagara College in September 2017. In reaching that conclusion, I considered Larry’s position that the gap in time since her previous full-time educational courses in 2015 disqualified her from further parental support. I agree that the gap in time is a relevant consideration in making that determination. However, the evidence indicates that after false starts in 2015 and 2016 in Business Administration and hairdressing, Taylor appears to have found her stride in Early Childhood Education. At the time she started that program, she was still a relatively young 20 years old. Consistent with the decisions in Whitton and Tapson, the appropriateness of the course for her future career prospects is a relevant consideration in favour of finding a child support obligation once she resumed her education.
31That being said, a finding that a child meets the definition of a “child of the marriage” does not automatically mean that one parent should be ordered to make periodic child support payments to the other parent for any particular period of time. When a child is living away from home while attending a post-secondary education program and living with one parent during the summer months, it is often appropriate for regular child support payments to be ordered only for the periods in which the child is actually residing with the recipient parent. The payments are intended to assist in defraying the additional costs associated with the child’s residing at home. In the circumstances of this case, including Taylor’s record of living at times away from home with friends and at times with her mother, I have concluded that a periodic child support obligation should apply only in those periods in which Taylor actually resides with her mother while at Niagara College or in the summer months between semesters.
32In his submissions, Larry also submitted that one of the factors I should take into account relating to his child support obligation is the lack of contact between Taylor and him, as well as Catherine’s role in fostering Taylor’s alienation. In the 2010 decision relating to Catherine’s previous motion to change [1] (referred to in these Reasons as Bruni 2010), the trial judge took into account Catherine’s conduct as a significant factor justifying the effective denial of spousal support to her. However, the same analysis would not necessarily apply where the matter in issue is child support, rather than spousal support. Support from a non-residential parent is the right of the child, not of the other parent. That being said, previous case law indicates that a mature child’s unilateral termination of a relationship with the payor parent without apparent reasons is a factor that the court may consider in determining whether child support should continue to be paid, but the threshold is high for the termination of the relationship to be an overriding factor to defeat entitlement where the child would otherwise be entitled to support: see Turner v. Ansell, 2012 ONSC 2598, 20 R.F.L (7th) 287, at paras. 12-13. In all the circumstances, I have concluded that the evidence in this case does not meet the threshold that would be required to defeat Taylor’s entitlement to support from Larry on that basis.
33Accordingly, as indicated further below, I have concluded that the only periods of time in which Larry should be required to pay periodic child support for Taylor after December 2015 are as follows: (i) from May to August 2018, and (ii) from January 2019 going forward. The evidence indicates that those are the only periods after December 2015 in which Taylor was both (i) living with her mother, and (ii) attending Niagara College full-time or on summer break between semesters.
34With respect to Larry’s ongoing child support obligations relating to Taylor, the final order also imposes the same terms with respect to proof of Taylor’s status as a student at Niagara College continuing through to April 2020 as apply with respect to Brandon. Should Catherine fail to provide those documents to Larry, it would be open to him to apply to move for earlier termination of his child support obligation for Taylor.
IV. Amount of ongoing child support
35How much child support should Larry be ordered to pay?
36In the previous two sections of these Reasons, I have already found that Larry has an ongoing child support obligation for both children until April 2020 unless otherwise terminated by court order. As previously indicated, the parties agree that to the extent that Larry has an ongoing child support obligation, the amount payable should be adjusted to reflect his current income.
37According to the Notice of Assessment for Larry’s 2018 income tax return, Larry’s 2018 total income (Line 150) was $60,004. The parties are agree that this amount was Larry’s income for support purposes in 2018, consistent with s. 16 of the Federal Child Support Guidelines, SOR/97-175. As is often the case with child support orders, I will use that amount to calculate Larry’s monthly ongoing child support payments. Therefore, effective June 1, 2019, the final order will set ongoing child support at $915 per month, being the table amount of child support for two children under the Guidelines. The monthly amount that Catherine suggested during her closing submissions was slightly lower than that amount, based on an earlier version of the child support tables (which were revised for periods after October 23, 2017). Since Larry’s Notice of Assessment for his 2019 income will not be available before the expected support termination date in April 2020, the final order does not contemplate prospective recalculation of child support in 2020 based on Larry’s actual 2019 income, as is sometimes the case with child support orders.
V. Adjustment of past child support payments
38To the extent that adjustment of child support for prior periods is required, what is the net adjustment amount?
39As previously indicated, the parties agree that the amount of child support payable to Catherine should be adjusted each year from 2014 to 2018 based on Larry’s income for that year, to the extent that Catherine is entitled to child support that year.
40Based on Larry’s notices of assessment for 2014 to 2018 and as agreed between the parties, Larry’s income for support purposes in those years was as follows: $61,293 in 2014; $64,913 in 2015; $59,794 in 2016; $65,964 in 2017; and $60,004 in 2018. The amount of child support he actually paid in the period January 1, 2014 to May 31, 2019 was $862 per month, being $10,344 on an annual basis.
41Based the findings of fact and legal conclusions I have already outlined and applying the table amount of Guidelines support that applied at the relevant time, I find that Larry’s child support payments should have been as follows:
a. In 2014, for both children, $910 per month, for a total of $10,920, based on Larry’s income that year of $61,293. b. In 2015, for both children, $964 per month, for a total of $11,568, based on Larry’s income that year of $64,913. c. In 2016, for Brandon only, $544 per month, for a total of $6,528, based on Larry’s income that year of $59,794. d. In 2017, for Brandon only, a total of $7,260, based on Larry’s income that year of $65,964, calculated as follows: i. $603 per month for 10 months (January to October), and ii. $615 for 2 months (November and December). e. In 2018, a total of $8,108, based on Larry’s income that year of $60,004, calculated as follows: i. For Brandon only, $556 per month for 8 months (January to April, and September to December), and ii. For both children, $915 per month for 4 months (May to August). f. In 2019, for both children, $915 per month for 5 months (January to May), based on Larry’s 2018 income of $60,004, for a total of $4,575.
42As a result, Larry underpaid child support to Catherine by $576 in 2014, $1,224 in 2015, and $265 in 2019, but overpaid by $3,816 in 2016, $3,084 in 2017 and $2,236 in 2018. Offsetting underpayments against overpayments, the net result is that Larry overpaid child support to Catherine by a total of $7,071. The final order provides that this amount is to be offset against other amounts I have found that Larry owes to Catherine as his contribution to payment of expenses incurred for the children’s benefit, as indicated further below.
VI. Contribution to the children’s expenses
A. Introduction
43What amount (if any) does Larry owe to Catherine for expenses incurred for the children’s benefit?
44Catherine seeks contribution from Larry for 60 percent of certain past and future expenses incurred for the children’s benefit. Larry does not agree that he should have any responsibility for such expenses.
45As previously noted, the issue of contribution to the children’s expenses was addressed in the 2007 Separation Agreement. The Separation Agreement provides that special or extraordinary expenses for the children are to be shared by the parties on a proportionate basis. Such expenses are be discussed between the parties before being incurred. The children’s expenses for sports, dance and music are to be divided equally. Expenses for post-secondary education are to be shared on a proportionate basis, after taking into consideration scholarships, summer employment or other third party income received by the children.
46Larry’s contribution to the children’s expenses was an issue in previous proceedings between the parties. In Bruni 2010, at para. 150, the trial judge dismissed Catherine’s claim for contribution from Larry toward special or extraordinary expenses for the period 2007 to 2010, noting that there was no evidence that Catherine had followed the requirement in the Separation Agreement that such expenses be discussed between the parties before they are incurred.
47Contribution to the children’s expenses was also an issue in Larry’s previous motion to change. In the consent final order dated March 24, 2014, Tucker J. reduced Larry’s monthly child support payment effective January 1, 2014 to reflect his then-current income. The consent order also provides that (i) extraordinary expenses for the children shall be paid proportionate to the parties’ respective incomes, and (ii) any prior overpayment of child support shall be applied to extraordinary expenses that Catherine incurred prior to December 31, 2013.
48It is common ground that subsequent to the 2014 final order, Larry has not contributed any amount toward the children’s expenses. Catherine testified that she sent a registered letter to Larry in May 2015, seeking contribution for expenses incurred for the children’s benefit in 2014 totalling over $4,000. At the motion hearing, she placed in evidence copies of the covering letter and attached receipts together with the original envelope in they were sent. Canada Post’s notation on the envelope indicates that the envelope had been returned as “undeliverable” to the intended recipient. In his testimony, Larry denied any knowledge of the letter prior to these proceedings.
49The most significant category of expenses for which Catherine now seeks contribution relates to the children’s post-secondary education. In particular, Catherine requests contribution toward past educational expenses totalling $22,293.84, consisting of $13,513.92 for Taylor and $8,779.92 for Brandon. She also seeks Larry’s contribution toward other categories of expenses totalling $6,713.42 to date.
B. Post-secondary education expenses
50I will address post-secondary education expenses first, given their size relative to other expense categories in issue. Subject to one exception noted below, the post-secondary education expenses for which Catherine seeks contribution consist of the registration fees for the children at Niagara College, typically in the range of $2,000 to $2,500 per semester. No claim was made with respect to other education expenses.
51For Taylor, Catherine seeks contribution toward $13,513.92 in college registration fees for (i) courses in Business Administration in the 2015 Fall Term (September to December), and (ii) courses in Early Childhood Education for four semesters from September 2017 to April 2019. Catherine also seeks contribution for the registration fees to be incurred for Taylor’s two remaining semesters, ending in April 2020. As well, Catherine is seeking contribution toward the registration fee of $1,600 for Taylor’s hairdressing course starting in February 2016 until her withdrawal in May that year.
52For Brandon, Catherine seeks contribution toward $8,779.92 in college registration fees for courses in Police Foundations and Customs Border Services over four semesters from January 2018 to April 2019, including the “make-up” spring/summer semester in 2018. No amount is claimed for Brandon’s 2017 Fall Term (September to December), since a full refund was received for the fees paid when Brandon withdrew after the strike. Catherine also seeks contribution for the registration fees to be incurred for Brandon’s two remaining semesters ending in April 2020.
53Subsection 7(1) of the Guidelines provides that when making a child support order, the court may, at the request of either spouse, order the payment of an amount to cover all or any portion of certain specified expenses, 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”. The list of specified expenses includes “expenses of post-secondary education”: para. 7(1)(e). In determining the amount ordered, the guiding principle is that the expense is shared by the spouses in proportion to their respective incomes after deducting the contribution, if any, from the child: Guidelines, s. 7(2). The court is also required to take into account any subsidies, benefits or income tax deductions or credits relating to the expense: Guidelines, s. 7(3).
54I will first address the claim for the $1,600 registration fee for Taylor’s hairdressing course in the period from February to May 2016. It is clear that the final order should not include any amount relating to the payment of that fee. I have already found that Taylor was not a “child of the marriage” during the period from January 2016 to August 2017. Under s. 7 of the Guidelines, the court does not have the authority to order payment for expenses incurred during a period in which Taylor was not a dependent child for support purposes: see Osterlund-Lenahan v. Lenahan, 2014 ONSC 7074, 55 R.F.L. (7th) 385, at paras. 19-21.
55Turning now to the children’s Niagara College registration fees, Catherine argues that Larry’s contribution of 60 percent of those fees would be a fair allocation of the expenses between the parties, reflecting the fact that Larry’s income is higher than Catherine’s. In fact, based on the parties’ 2018 incomes, a proportionate sharing between them would be more like 75/25, but Catherine has requested a 60/40 split.
56Catherine recognizes that s. 7(2) of the Guidelines (as well as the terms of the Separation Agreement) contemplate that the children should contribute to their education expenses to the extent they are able. Catherine notes, however, that she is not seeking Larry’s contribution for other expenses incident to the children’s studies (including books, supplies, and automobile expenses for transportation to college). Catherine says that the children are covering those expenses in part from their own earnings from part-time jobs. On that basis, the children should not be required to contribute to payment of the college registration fees as well, according to Catherine.
57Catherine also recognizes that any financial assistance that the children received from OSAP would need to be considered. In her testimony, she indicated that (depending on the year) the OSAP assistance the children received was either entirely or mostly in the form of a loan that had to be repaid once the children completed their education. However, Catherine did not provide any details as to the amounts received in any year, except to indicate that they were generally sufficient to cover the registration fees each year.
58Based on the evidence before me, I have concluded that there should be a sharing of the children’s college registration fees between Larry, Catherine and the children, consistent with s. 7(2) of the Guidelines and the Separation Agreement. In doing so, I am rejecting Larry’s contention that his contribution should be nothing, leaving it to the children and Catherine to bear the burden of those expenses. I recognize that the Separation Agreement contemplates prior consultation with Larry regarding the children’s proposed expenses, which did not occur. However, consistent with the approach taken in the 2014 order of Tucker J. and in light of the difficulties inherent in the historical absence of communication between the parties, I do not consider any lack of prior consultation to be fatal to the claim for Larry’s contribution to payment for those expenses.
59That being said, I am also rejecting Catherine’s position that the children should not be required to contribute anything to college registration fees. While I do not doubt that other expenses were incurred in furtherance of the children’s education, those expenses were neither claimed nor quantified in the evidence before the court. The fact that such expenses occurred may reasonably be taking into account in determining what the children’s contribution to college registration fees should be, but I do not agree that it would be appropriate to reduce the children’s required contribution to zero on the evidence before the court.
60In all the circumstances, I have concluded that it would be fair to require the children to be responsible for a third of the college registration fees. In making that determination, I recognize that the children likely received some modest grant assistance under OSAP but also incurred other expenses in furtherance of their education. I have also concluded that the balance of the college registration fees should be shared between Larry and Catherine based on the 60/40 split that Catherine proposed. As a result, the college registration fees for each child would be shared are follows: (i) 40 percent for Larry; (ii) 26.67 percent for Catherine; and (iii) 33.33 percent for the child.
61Based on the trial evidence, the total amount incurred for the children’s college registration fees up to April 30, 2019 was $20,693.84. Under the final order, Larry will be responsible 40 percent of that amount, or $8,277.54.
62The final order also requires Larry to pay 40 percent of the Niagara College registration fees for the 2019 Fall Term (September to December) and the 2020 Winter Term (January to April), within 30 days of receiving the college documentation confirming such payment, as outlined previously. The final order also provides that payment of such amounts shall be in full satisfaction of the Larry’s obligation to pay post-secondary education expenses for the children. Given the continuing acrimony between the parties and their previous litigation history, I consider it appropriate to limit the opportunity for further areas of dispute to the extent possible.
C. Other expenses
63Catherine also seeks contribution from Larry for 60 percent of certain other past and future expenses incurred for the children’s benefit. Catherine says that for the period 2014 to date, those expenses totalled $6,713.42. The expenses incurred fell into the following categories: (i) premiums on insurance policies on the children’s lives; (ii) driver’s education; (iii) dentist/orthodontist; (iv) school trip; (v) ball hockey.
64For the reasons below, the final order will require Larry to contribute 60 percent of the expenses set out in the following chart totalling $4,548.77. Larry’s share of those expenses would therefore be $2,729.26.
| Driver’s education | ||
|---|---|---|
| Taylor, 2014 | $ 460.00 | |
| Brandon, 2016 | 560.00 | $ 1,020.00 |
| Dentist | ||
| Taylor, 2014 | 1,029.49 | |
| Orthodontist | ||
| Taylor, 2014 | 196.00 | |
| School trip | ||
| Taylor, 2014 (New York City) | 704.00 | |
| Ball hockey | ||
| Taylor, 2014 | 463.62 | |
| Brandon, 2014-2017 | 1,135.66 | 1,599.28 |
| Total | $4,548.77 |
65All the expenses in the above chart were incurred while the relevant child was under 18 years old and still in high school. In these circumstances, I do not consider it appropriate to require the children to contribute to payment of those expenses. As well, as in the case of post-secondary education expenses, I do not consider any lack of prior consultation to be fatal to the claim for Larry’s contribution to payment for those expenses. Further explanation relating to the expenses Catherine claimed is set out below.
a. Life insurance premiums: Catherine provided receipts for premiums paid on whole life policies (in the face amount of $10,000 each) taken out for the children as infants. To be clear, the policies are on the lives of the children, not the parents. The premiums for both children from 2014 to 2018 totalled $774.10. Catherine says that she and Larry jointly made the decision to take out these insurance policies before they separated. The final order does not required Larry to contribute to payment of those premiums. Expenses of that nature are not included in the list of expenses set out in s. 7(1) of the Guidelines, nor was sharing of that expense contemplated by the Separation Agreement. b. Driver’s education: Catherine claimed contribution from Larry toward driver’s education for the children in the amount of $1,025.00. The receipts she provided totalled $1,020.00. The final order requires Larry to contribute to payment of those expenses in the latter amount. I consider that expense to be justified as an educational program that meet’s the children’s particular needs: see Guidelines, para. 7(1)(d). c. Dentist/orthodontist: Catherine provided receipts for dentist and orthodontist services for Taylor to the extent that they were not covered by an insurance plan. The parties’ proportionate contribution for expenses of this nature is contemplated in the Separation Agreement, and is included in the list of expenses set out in the Guidelines, para. 7(1)(c). The final order requires Larry to contribute to payment of those expenses in the amounts Catherine claimed, with the exception of $200.00 for orthodontist services incurred in 2016 when Taylor was not a child of the marriage for support purposes. d. School trip: Catherine provided receipts supporting the payment of $704.00 for a school trip to New York City for Taylor while she was still in high school, together with a program of activities. Catherine testified that the amount Taylor paid was discounted based on her participation in fundraising. The final order requires Larry to contribute to payment of that amount as an extraordinary expense for secondary school education: Guidelines, para. 7(1)(d). e. Ball hockey: Catherine submitted receipts for ball hockey registration and equipment for Taylor and Brandon. The sharing of expenses of this nature was contemplated in the Separation Agreement, as well as by para. 7(1)(f) of the Guidelines (extraordinary expenses for extracurricular activities). The final order requires Larry to contribute to contribute the amount claimed for Taylor in 2014 totalling $463.62. f. Ball hockey (Brandon): The final order requires also requires Larry to contribute to payment for ball hockey expenses incurred for Brandon in 2014, 2015 and 2017 totalling $1,135.66, reduced from the amount of $2,320.91 that Catherine claimed. In that regard, I have not included $915.25 for goalie equipment in 2014 since an acceptable receipt was not provided. In any case, I did not consider the quantum of that expense to meet the reasonableness standard required in s. 7(1) of the Guidelines. As well, I have reduced the amounts allowed for registration fees by $135.00 in each of 2014 and 2015 because the receipts provided were either duplicative or did not support the amount claimed in the relevant period.
VII. Disposition
66Accordingly, a final order will issue as follows, amending the Separation Agreement between the parties dated May 24, 2007, as amended by the final order of Quinn J. dated November 29, 2010 and the final order of Tucker J. dated March 24, 2014:
- Commencing June 1, 2019, the Respondent father shall pay child support to the Applicant mother for the children Taylor, born [ insert birth date ], and Brandon, born [ insert birth date ] in the amount of $915.00 per month, based on the Respondent father’s 2018 income of $60,004.00.
- The Respondent father’s obligation to make periodic child support payments to the Applicant mother shall terminate as of April 30, 2020 unless otherwise provided by court order.
- Subject to paragraph 5, the Applicant mother shall pay the sum of $7,071.00 to the Respondent father with respect to adjustment of amounts payable to the Applicant mother for child support prior to June 1, 2019.
- Subject to paragraph 5, the Respondent father shall pay the sum of $11,006.80 to the Applicant mother with respect to special or extraordinary expenses incurred for the children’s benefit prior to May 15, 2019, consisting of (i) $8,277.54 for post-secondary education expenses, and (ii) $4,548.77 for other expenses.
- Within 60 days, the Respondent father shall pay to the Applicant mother the sum of $3,935.80 in full satisfaction of: (i) the Respondent father’s obligation to pay to the Applicant mother the sum of $11,006.80 for special or extraordinary expenses in accordance with paragraph 4, offset by (ii) the Applicant mother’s obligation to pay to the Respondent father the sum of $7,071.00 with respect to adjustment of amounts previously payable for child support in accordance with paragraph 3.
- The Respondent father shall be responsible for paying 40 percent of the college registration fees incurred for each of the children for the 2019 Fall Term (September to December) and the 2020 Winter Term (January to April). Payment of such amounts shall be in full satisfaction of the Respondent father’s obligation to pay post-secondary education expenses for the children.
- By September 30, 2019, the Applicant mother shall provide the Respondent father with the following documents from Niagara College with respect to each of the children: (i) a confirmation of enrolment for the 2019 Fall Term; and (ii) student account information setting out the registration fees paid to the college for that semester. Within 30 days of receipt of those documents, the Respondent father shall provide the Applicant mother with 40 percent of the amount paid for such fees.
- By January 31, 2020, the Applicant mother shall provide the Respondent father with the following documents from Niagara College with respect to each of the children: (i) a confirmation of enrolment for the 2020 Winter Term; and (ii) student account information setting out the registration fees paid to the college for that semester. Within 30 days of receipt of those documents, the Respondent father shall provide the Applicant mother with 40 percent of the amount paid for such fees.
- Subject to my comments below relating to costs, all other claims made by the parties in these proceedings are dismissed.
- Support deduction order to issue.
67Since the parties have had mixed success relating to this motion to change, it does not appear to me to be appropriate to make an order requiring one party to pay the other’s costs. If either party nonetheless wishes to seek costs from the other, that party may serve and file brief written submissions (not to exceed three pages) together with a bill of costs within 21 days. The other party may respond by brief written submissions within 14 days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.
The Honourable Mr. Justice R. A. Lococo
Released: June 11, 2019
COURT FILE NO.: 384/07 (St. Catharines) DATE: 20190611 ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT BETWEEN: Catherine m c quat bruni Applicant – and – larry bruni Respondent REASONS FOR JUDGMENT R. A. LOCOCO J.
Released: June 11, 2019
1Bruni v. Bruni, 2010 ONSC 6568, 104 O.R. (3d) 254, at paras. 210-212.