COURT FILE NO.: 478/16
DATE: 20190816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jason Reginald Leonard
Lindall S. McDonald, for the Applicant
Applicant
- and -
Nichole Marie Leonard
Michael D. Swindley, for the Respondent
Respondent
HEARD: May 24, 2019
ENDORSEMENT ON MOTION TO CHANGE AND CROSS-MOTION TO CHANGE
TROUSDALE J.
[1] This is a Motion to Change brought by the Applicant father (herein “the father”) for an order varying the parties’ Amending Agreement made July 30, 2018 by terminating child support payable to the Respondent mother (herein “the mother”) for two adult children of the marriage, a son, C. age 21 years (born in 1998), and a daughter, M. age 18 years (born in 2000) effective October 19, 2018. The mother brings a Counter-Motion to Change the Amending Agreement by changing the child support effective November 1, 2018 as the child, M. ceased to reside in a shared parenting arrangement as of November 1, 2018 and for increased support as the father’s income increased substantially in 2018. This Motion to Change and Counter-Motion to Change were heard by me on affidavit evidence and on oral submissions from counsel.
Relief requested by the father
[2] At the hearing of this matter, the father sought the following relief:
(1) That the terms of the Amending Agreement between the parties dated July 30, 2018 be varied to provide that base child support for C. and M. be terminated effective October 19, 2018 when M. turned 18 and C. was 20 years of age.
(2) In the alternative, varying child support for C. and M. pursuant to s. 3(2)(b) of the Guidelines, so that the father’s base child support is nil.
(3) Costs of this motion on a full recovery basis.
Relief requested by the mother
[3] At the hearing of this motion, the mother sought the following relief:
(1) That the father pay to the mother ongoing support for the two children, C. and M. in the sum of $2,089.00 per month based on the father’s 2018 income of $210,306.00 payable effective June 1, 2019 and payable until May 1, 2020.
(2) The father’s child support obligation for C. shall be terminated effective June 1, 2020.
(3) The father shall pay to the mother ongoing child support for M. in a quantum to be determined, based on the father’s 2019 income pro-rated for four months of Guideline support, payable on the first day of the month effective June 1, 2020, and on the first day of the month thereinafter for so long as M. continues to be enrolled in a post secondary program of study.
(4) The father shall pay to the mother arrears of child support totaling $10,393.00 for the period preceding June 1, 2019.
(5) Costs to be determined.
[4] The father commenced his Motion to change on January 31, 2019 with a first court date of March 6, 2019.
[5] The father brought a motion for a stay of enforcement on January 31, 2019 with a return date of February 20, 2019.
[6] The parties had a case conference on February 25, 2019. At that time, a date was set for the hearing of the Motion to Change and Cross-Motion to Change for May 24, 2019 with a litigation schedule. In addition, on consent and without prejudice, the parties agreed that:
(a) they would file a notice of withdrawal from FRO effective March 5, 2019,
(b) The father would pay $1000.00 to the mother on each of April 4, 2019 and May 4, 2019; and
(c) The father’s motion to stay was withdrawn without costs.
Preliminary Matter
[7] The father sought that the mother’s Response and Cross-Motion to Change be struck as he alleged that the mother had refused to produce her T1 General Income Tax Return for 2018 until May 21, 2019. Alternatively, the father sought that there be an adverse inference against the mother that she should have income of $50,000.00 imputed to her for her failure to produce that return until 4 days prior to the hearing.
[8] The mother argues that her income did not become an issue nor did the father ask for disclosure of the mother’s income tax return for 2018 until his reply affidavit dated May 6, 2019. The mother points out that her T1 General income tax return for 2018 was only due April 30, 2019. Further she points out that pursuant to the Amending Agreement between the parties dated July 30, 2018 the parties are required to exchange their respective income information for the 2018 calendar year no later than May 15, 2018. The mother did provide her income tax information on May 21, 2019 which is when she received the information from Canada Revenue Agency as can be seen from the fax date on the copies of her income tax return.
[9] I am not prepared to strike the Mother’s Response to the father’s Motion to Change, nor am I prepared to strike the mother’s Cross-Motion to Change, nor I am prepared to impute $50,000.00 income to the mother on the facts and circumstances I have just reviewed.
Agreed Statement of Facts
[10] The following facts (as modified by me to remove some identifying information) are agreed upon by the parties as per an Agreed Statement of Facts signed and filed by the parties at the opening of the hearing.
[11] The father and the mother were married in July, 1998 and separated in 2008.
[12] The father and mother have two children born of their marriage, namely C. who was 21 years old at the date of this hearing, and M. who was 18 years old at the date of this hearing.
[13] The father and the mother entered into a Separation Agreement (“First Agreement”) dealing with support issues dated January 31, 2017. They entered into an Amending Separation Agreement (“Amending Agreement”) dated July 30, 2018, which was filed by the mother with the court on November 13, 2018. The terms of the First Agreement are not in dispute.
[14] Paragraph 1d of the Amending Agreement states:
d. Jason shall pay to Nichole the sum of $1,552.00 per month in ongoing child support commencing June 1, 2018, on the basis of C. residing primarily with Nichole; of M. residing with both parties; and his obligations pursuant to the Child Support Guidelines ($1,674.00 per month), evidence of such is attached hereto as Schedule “D” with a slight discount recognizing that Jason pays 100% of C.’s post-secondary expenses.
[15] Paragraph 1g of the Amending Agreement states:
g. Ongoing child support will continue to be paid in the sum of $1,552.00 per month until otherwise adjusted by Court Order or Agreement as between the parties, provided that support for C. shall end when he obtains his first post-secondary diploma, which the parties anticipate will occur on or about April 30, 2010, or upon a material change in circumstances which would otherwise dictate that support for C. is no longer payable;
[16] The parties agree that the date April 30, 2010 was a typographical error which should have read April 30, 2020. The bolding in the aforesaid clauses was contained in the Amending Agreement.
[17] C. moved out of the mother’s house on or August 1, 2018 and into a rental house pursuant to a Residential Tenancy Agreement signed on May 30, 2018.
[18] Since in or about September, 2017, C. has been attending Community College in the location where his parents were residing. There is both a two year program and a three year option offered with his program with the first two years being common to all students in that program. Students can choose to graduate with the two year diploma or continue with the third year to explore more deeply the full breadth and scope of the field which is a field with strong job prospects across all industries.
[19] The three year option would normally end for C. on or about April 30, 2020, with an expected graduation date on or about June 14, 2020.
Background
[20] On August 30, 2018, the father through his counsel, advised the mother that since C. was no longer residing with her, the table amount of monthly support payable would be $1,090.00 per month rather than $1,552.00 per month. However, the father offered to pay $1,552.00 per month until October 1, 2018 at which time he would begin paying $1,090 per month to the mother for the support of M. only. The mother declined to accept this offer and filed the Amending Agreement with the Court and with the Office of Family Responsibility for enforcement as the father ceased paying any child support directly to the mother after October, 2018.
[21] The mother alleges that the parties agreed to the terms of the Amending Agreement with the knowledge and expectation that C. would move out of the mother’s home and would live on his own.
[22] The father disputes this and argues that the terms of the Amending Agreement were negotiated and agreed to well before C. moved out on August 1, 2018. The father states terms of the Amending Agreement were offered by the father and accepted by the mother on May 31, 2018 but were negotiated for weeks prior to that date.
[23] The mother alleges that C. has moved back into the mother’s home on April 20, 2019 and that C. has sublet his rental house. The father disputes this as on Saturday, May 4, 2019, C. posted a photo on Facebook of a BBQ that C. hosted at the rental house where the mother, M., C.’s girlfriend and C.’s step-brother were all in attendance.
[24] The mother disputes the father’s request to terminate monthly child support for C. as C. will be in full time attendance at Community College for the 2019/2020 academic year and will be residing with the mother during that academic year.
[25] The father states that in addition to the monthly child support paid by the father to the mother, the father continues to pay for all or nearly all of C.’s college expenses, including his tuition, rent and spending money. The father alleges that he has made payments to or on behalf of C. from April, 2018 to the hearing of the motion that total approximately $16,430.00 in addition to the monthly child support paid by the father to the mother.
[26] M. completed high school in June of 2018. She turned age 18 in October, 2018. M. decided not to attend post secondary education in the 2018/2019 academic year and was not in school at all during that academic year.
[27] M. worked approximately 30 hours per week at a restaurant. After turning 18, M. also took a trip to British Columbia for 8 days and to Europe for 14 days, to which trips the father contributed.
[28] The father alleges that from April, 2018 to the hearing of the motion, the father made payments to or for the benefit of M. totaling approximately $13,284.55 in addition to the monthly child support payments paid to the mother.
[29] The mother states that M. intends to start university out-of-town in September, 2019. The father states that he anticipates that he will be paying for M.’s post secondary expenses himself, just as he has done for C., and that he will do so voluntarily and not because of any legal obligation to do so.
[30] The mother alleges that the parties agreed to support M. during her year off school. In addition, the mother anticipates that M. will be residing with her during her breaks from school and the mother is therefore opposing the father’s request to terminate monthly support for M.
[31] The father is a transient construction worker with income that varies from year to year. The father states that he works long hours for 6 to 7 days per week for months at a time so he can cover the children’s tuition and expenses. The father’s income for the years 2014 to 2018 was as follows:
2014 $77,591.00
2015 $103,392.00
2016 $90,025.00
2017 $122,852.00
2018 $210,305.89
[32] At the time of the hearing, the father stated that he was unemployed and has no income other than employment insurance.
[33] The mother is self-employed and operates a day care business out of her home. The mother’s income for the years 2015 to 2018 was as follows:
2015 $5,726.00
2016 $13,119.00
2017 $14,911.20
2018 $10,655.00
[34] The father alleges that the mother is intentionally underemployed pursuant to S.19(1)(a) of the Federal Child Support Guidelines and that income should be imputed to the mother. The father has never made this claim before this time. He did not make this claim when the parties negotiated the Amending Agreement.
Issues
(1) Should child support be terminated for C. or for M. effective October 19, 2018?
(2) If not, what child support should be payable for C. and/or for M., and for what period?
(3) What, if any, arrears of child support are owing by the father to the mother?
[35] The First Agreement made between the parties in January, 2017 provided that based on a shared custody agreement and the father’s approximate annual income of $103,392.00, the father shall pay to the mother the sum of $500.00 per month commencing January 1, 2017 for the support of the two children.
[36] In actual fact, the child C. did not reside half time with the father after January, 2017 but rather resided with the mother full-time.
[37] The First Agreement provided that so long as the children are entitled to support, the parties were to exchange by July 15 in each year income information including his and her income tax return for the preceding year and notices of assessment.
[38] The mother complains that the father did not produce his 2016 income tax return to the mother by July 15, 2017. There is no evidence as to whether the mother produced her 2016 income tax return to the father by July 15, 2017.
[39] The mother alleges that in the first part of 2018 she did try to negotiate a new child support agreement with the father for retroactive and ongoing child support because the child C. had not resided and was not residing in shared time with the father. However, her evidence is that the father refused to do so.
[40] Negotiations then took place between counsel for the parties. The evidence is that on May 28, 2018, the father’s counsel sent a proposal to the mother’s counsel to resolve matters with an Amending Agreement which apparently was on the terms eventually put into the Amending Agreement signed by the parties. The mother’s counsel accepted this proposal on behalf of the mother on May 31, 2018 at 5:27 p.m.
[41] On May 30, 2018, the child C. signed and the father co-signed with him a lease agreement for the rental house for C. commencing August 1, 2018 to July 31, 2019.
[42] The mother signed the Amending Agreement on June 28, 2018. The father signed the Amending Agreement on July 30, 2018.
[43] The Amending Agreement provided that the father pay ongoing child support of $1,552.00 per month commencing June 1, 2018 based on the father’s income for 2017 of $122,852.00 and the mother’s income for 2017 of $14,991.20, on the basis of C. residing primarily with the mother and of M. equally residing with both parties, resulting in the father’s child support obligation being $1,674.00 per month less a slight discount recognizing that the father pays 100% of C.’s post secondary expenses.
[44] Obviously, as of May 30, 2019, the father knew that C. was moving into his own premises on August 1, 2018 as the father co-signed the lease that day with C. The father may well have known before then that C’s intention was to move out into his own premises for the next school year as it is unlikely that C. telling his father of his intentions and the signing of the lease all took place on the same day, May 30, 2018.
[45] The mother’s evidence is that the fact that C. was moving out to a rental house was already taken into account into the terms of the Amending Agreement as the Amending Agreement gave a slight discount in the child support to be paid by the father to the mother to recognize that the father pays 100% of C.’s post secondary expenses. The mother alleges that “post secondary expenses” included the rent that the father was paying for C.’s separate accommodation. By the mother’s own evidence then, she must have known prior to signing the Amending Agreement on June 28, 2018 that C. was moving into his own accommodation.
[46] The mother alleges that even though C. moved out to a rental house, he continued to come to her home two or three nights per week, and that she cooked meals for him and provided groceries, car insurance, cell phone and other funds to C.
[47] The father alleges that the parties did not agree to the terms of the Amending Agreement with the knowledge and expectation that C. would live on his own as the terms of the Amending Agreement were offered and accepted well before C. moved out on August 1, 2018.
[48] I have difficulty accepting the father’s argument in that regard as by May 30, 2018 when he co-signed the lease he knew that C. would be moving out of the mother’s home. If things had changed between his offer of May 28, 2018, and before the acceptance of his offer on May 31, 2018, I would have expected the father to withdraw his offer and negotiate other terms to take into account that C. was moving out and that the father would be paying C’s rent.
[49] The Amending Agreement states that the support figure is based on C. residing primarily with the mother, and of M. equally residing with both parties. The Amending Agreement does not expressly state that C. would be moving into his own rental accommodation on August 1, 2018.
[50] Similarly, both parties would have known by the time that the Amending Agreement was signed by each of them that M. had no intention of attending school for the 2018/2019 academic school year. She had made no applications for September, 2018 even though on the evidence M. is a good student, but she did plan on attending university for the 2019/2020 year. However, the Amending Agreement says nothing about M. not being in school for September, 2018 or that her support would be ending in October 2018 when she would be turning 18.
[51] With these two factors being known by both parties before either of them signed the Amending Agreement, I find it very difficult to understand why the parties would not have expressly clarified those points in the Amending Agreement if either of those factors was to result in a material change of circumstances.
[52] The only conclusion I can come to is that either one or both parties misunderstood the effect of the terms of the agreement (even though they each had counsel representing them) resulting in each of the parties having a different interpretation of what was intended, or one or the other or both of them was taking advantage of the other by taking a chance that the vague wording would be interpreted in his or her favour when both of these known factors came into play.
[53] In fact, by August 30, 2018, within only a month of the father signing the Amending Agreement, he was already requesting a variation of child support because C. had moved out of the mother’s home on August 1, 2019. By October, 2018, only 2 ½ months after the father signed the Amending Agreement the father had terminated child support for M. on the basis that she was now of the age of majority and not in attendance at an educational program.
[54] On balance, on reviewing the chronology of the negotiations from the spring of 2018 forward, I put far more responsibility on the father for failing to deal up front in the agreement with those two known matters of which he was very aware when he signed the Amending Agreement on July 30, 2019. This is especially so where the father was planning on relying on those two known factors as his reasons for terminating all child support to the mother almost immediately after the Amending Agreement was signed.
Should child support be paid for M. for the period of July 1, 2018 to August 1, 2019 inclusive?
[55] M. completed high school in June, 2018. She had decided that she was not going to start her post secondary education in September, 2018 but was going to wait until September, 2019 to start her post secondary education. She made two university applications for September, 2019. At the date of the hearing of the motion, M. was accepted at one of the universities she had applied for, and had received a scholarship offer of $2,000.00 per year for 4 years. She was going to be going to a personal interview at the other university she had applied to. I find M. was moving forward with serious plans to attend university in a program in a professional facility for September, 2019.
[56] M. wrote a letter dated February 28, 2019 which was attached as an exhibit to the mother’s affidavit. The letter stated that both of her parents were aware in her 12th year of high school (2017/2018) that she intended to take a year off before attending post secondary school. M. stated that she discussed this many times with both and that she intends on attending post secondary school in the fall of 2019.
[57] As M. had not applied for admission to post secondary school for September, 2018, both parents would have been aware that M. was not intending to go to school that fall when they signed the Amending Agreement on July 30, 2018. Nevertheless the parties agreed in the Amending Agreement that the father would pay to the mother ongoing child support in the sum of $1,552.00 per month commencing June 1, 2018, on the basis of C. residing primarily with the mother and on the basis of M. equally residing with both parties. There was no mention of what would happen when M. did not go to post secondary school in September, 2018, which was only one month away, or when she turned 18 in October, 2018 which was only two and a half months away.
[58] The onus is on the mother to prove that M. is a child of the marriage and qualifies for child support. In my view there is no question that M. continued to be a child of the marriage until her 18th Birthday in October, 2018 as she was under the age of majority, residing half time with the mother, was dependent on the mother for her support, and had not withdrawn from parental control. I find that M. in accordance with the Amending Agreement should be entitled to child support for M. from the period July 1, 2018 to October 1, 2018 inclusive, with credit to the father for amounts he has paid during that period.
[59] The next issue is whether M. remained a child of the marriage from the period November 1, 2018 to August 1, 2019 inclusive and whether she was entitled to child support during a “gap year” or a “transition year”. That determination depends on the circumstances of each case.
[60] I find that M. formulated a reasonable plan for her post secondary education. She discussed her plans with both the mother and with the father and they were supportive of M. taking a year off school prior to starting her university program out of town in 2019. During that time off from school, M. worked for most of the time. M. will be expected to contribute some of her own income made during the year to the costs of her post secondary education, which will be of assistance to the father as he has stated in his affidavit that he expects to be responsible for M.’s post secondary education costs, just as he has been responsible for C.’s post secondary education costs.
[61] Other than an 8 day trip to British Columbia and a 14 day trip to Europe, M. resided with the mother full time since November 1, 2018. The father’s evidence is that he contributed to the cost of M.’s trips so he was not opposed to M. taking those trips.
[62] I do note that the father has paid for M.’s cell phone as well as he purchased her a used vehicle for $2,000.00 plus safety, registration and transfer tax. The father also pays the insurance for M.’s vehicle, and has purchased tires for M.’s vehicle.
[63] However, from November 1, 2018, M. was residing full time with the mother who was responsible for providing shelter and utilities, food, clothing and other expenses for M, who was unable to withdraw from the charge of the mother as M. was dependent on the mother for her support. If the father is not required to pay any child support to the mother during this period as requested by the father, the mother will be obliged to bear the burden of those expenses even though the mother makes substantially less income than the father.
[64] I also take into account the failure of the father to raise this issue at the time that the Amending Agreement was negotiated and signed which left the mother believing that the father would be paying child support for M. during the year M. was working in preparation for starting university in September, 2019 as planned with her parents.
[65] The facts of M. not going to school in September, 2018 and the fact M. was turning 18 in October, 2019, were known to both parties when the Amending Agreement was signed. Accordingly, I find that those facts are not material changes in circumstances. I do however, find that M. residing full time with the mother as of November 1, 2018 is a material change in circumstances and that the child support commencing November 1, 2018 to August 1, 2019 shall be full child support for M. with no set-off as M. is no longer residing equally with both parents.
[66] For the period of November 1, 2018 to August 1, 2019 inclusive, I find that the father shall be required to pay monthly child support to the mother for M. For the period commencing November 1, 2018 to April 30, 2019, the monthly child support shall be based on the father’s gross income for 2017 of $122,852.00.
[67] For the period commencing May 1, 2019 to August 1, 2019 inclusive, the monthly child support payable by the father for M. shall be based on the father’s gross income for 2018 of $210,305.00
Has C. completed his first post secondary diploma at April, 2019?
[68] C. is enrolled at St. Lawrence College in a program which has a two year option or a three year option. I find that C. has chosen to take the three year option and has continued at full time attendance at post secondary education in this program. On the evidence, I find that this option is a reasonable choice for C as it will give him more depth in his subject area and will very likely lead to better job prospects after his graduation.
[69] I find that C. has not completed his first post secondary diploma at April 2019. He did not graduate nor receive a two year diploma in 2019. The evidence of both parties is that C. is expected to complete his first post secondary diploma in April, 2020 and that he is expected to graduate in June, 2020. The parties agreed in the Amending Agreement that C. was anticipated to complete his first post secondary diploma on or about April 30, 2020.
[70] I find that C. is still a child of the marriage within the meaning of the Divorce Act and is entitled to child support.
Should child support be payable for C. for the period from August 1, 2018 to April 1, 2019?
[71] C. moved out of the mother’s home into a rental house on August 1, 2018. His rent is $500.00 per month. The father is giving C. the money each month for that rental payment. The father also paid for C.’s tuition for the 2018/2019 academic year which I calculate on the documentary evidence provided to be $5,860.00. The father pays C.’s car insurance. From August, 2018 to March 29, 2019, the father has transferred funds to C. in the amount of $3,500.00 not including rent, Christmas gift, money for a passport, and payment of a dental bill.
[72] The mother’s evidence is that she too has been paying car insurance for C. in the sum of $1,266.15 from August, 2018 to April, 2019. It appears to be that both parties are paying car insurance for C. which they may on inquiry perhaps find is not necessary for both to incur this expense. The mother’s evidence is that she has also been transferring money to C. towards his school and living expenses in his rental apartment. By my calculations on the documentary evidence of money transfers by the mother to C., the mother has from August, 2018 to April 2, 2019, transferred $9,900.00 cash to C. towards his expenses, not including her payment of car insurance for C., payment of his dog’s vet bills and payment for his cell phone.
[73] On the basis of the evidence before me, I find that the father’s contributions to C.’s tuition and school year living expenses including tuition, cash, and rent from August 1, 2019 to April 30, 2019, but not including car insurance, passport, Christmas gift money and a dental payment, total approximately $13,860.00.
[74] On the basis of the evidence before me, I find that the mother’s contributions of cash towards C.’s school and living expenses, not including her payment of C’s cell phone ($783.00), car insurance, or vet bills total approximately $9,900.00 for the period August 1, 2019 to April 30, 2019.
[75] This does not include the meals that the mother provided for C. two to three times per week nor the amount she states that she paid for C.’s furniture for his rental accommodation nor a large outlay she made at Costco in August, 2018 to get C. started in his apartment, as there was no documentary proof provided for those items.
[76] In 2018, C. earned $7,670.03. It may have actually been slightly higher as there was apparently another T4 slip.
[77] Moving out of the mother’s home turned out to be a poor financial experience for C. as he found it was too expensive to live away from home while going to school. In a letter dated April 17, 2019, attached as an exhibit to the mother’s affidavit, C. indicates he is moving home with his mother to help him save money to pay off debts and expected to be moved home by April 20. He indicated his plan was to stay at home for a year to get himself back on his feet. He also stated that he has someone taking over his share of the lease until August 1, 2019.
[78] The father does not believe that C. has moved home to live with the mother as C. held a BBQ, apparently on May 4, 2019, for some of his family including the mother, but not the father at his former rental house, and posted a picture of it on C’s Facebook. Perhaps C.’s former housemates allowed C. to use the house for the BBQ. On the basis of the evidence before me, however, I am satisfied that C. has moved out of his rental accommodation into the mother’s home by the end of April, 2019.
[79] The father states that he pays for 100% of C’s post secondary expenses. It is true that the father generously paid for all of C.’s tuition and did pay for C.’s rent, as well as providing C. with some cash. However, there are many other expenses such as books, utilities, food, clothing, gas for C’s vehicle, spending money, and so on, towards which the mother as well contributed a substantial sum of money for C. during the 2018/2019 academic year and which she could ill afford.
[80] The mother’s evidence is that she had to borrow money from her mother and that she and her children have had to move out of her home into the maternal grandmother’s home as the mother could not afford to stay where they were residing.
[81] On the evidence before me, including the Amending Agreement completed on July 30, 2018, I find that the fact that C. was temporarily moving out of the mother’s home into a rental house was known to both parties at the time the Amending Agreement was signed by the parties. Accordingly, I find that there was no material change in circumstances. I find that C. continued to reside primarily with the mother within the meaning of this Amending Agreement. In the circumstances of this particular case, I find that C. continued to be a child of the marriage, as he continued to be dependent on his parents for his support while he was in full time attendance at school. I find that the father shall pay child support to the mother for C. commencing July 1, 2018 based on the father’s 2017 income of $122, 852.00 to and including April 30, 2019. Commencing May 1, 2019, the father shall pay child support to the mother for C. based on the father’s 2018 income of $210,306.00 with such child support to terminate effective April 30, 2020 when C. is anticipated to have completed his first post secondary diploma.
C.’s post secondary expenses for the 2019/2020 academic year
[82] The father states that he intends to continue paying for C’s post secondary expenses as he has done in the past, and he argues that there is no necessity for an order to be made in that regard, as he will do so voluntarily and not because of any legal obligation to do so.
[83] The mother does not oppose the father paying C’s. post secondary expenses directly to C.
[84] Accordingly, as the parties are content with this arrangement, I make no order at this time regarding the father’s payment of C’s post secondary expenses, without prejudice to C. or either of the parties bringing the issue of the father’s contribution to C’s post secondary expenses back to the court for determination in the future, if necessary.
M’s post secondary expenses commencing the 2019/2020 academic year and following years
[85] The father states in his Affidavit that he expects that he alone will be paying for M.’s post secondary expenses, as was the case with C., and that there is no necessity for an order to be made in that regard, as he will do so voluntarily and not because of any legal obligation to do so.
[86] The mother does not oppose the father paying M.’s post secondary expenses directly to M.
[87] The cost of M’s post secondary expenses will be substantial as tuition at university is high, and she will be living away from home in another location away from the parties.
[88] Accordingly, as the parties are content with this arrangement, I make no order at this time regarding the payment of M’s post secondary expenses, without prejudice to M. or to either of the parties bringing the issue of the father’s contributions to M’s post secondary expenses back to court for determination in the future, if necessary.
Should child support be payable by the father for M. while M. is away at University?
[89] The mother seeks that child support be paid by the father to the mother for four months in the summer months of 2020 when M. will likely return to the home of the mother for the summer. The mother requests that this support be calculated now based on the father’s 2018 income of $210,306.00 for four months and that it be pro-rated and paid by the father to her over the period of 12 months from June 1, 2019 to May 1, 2020, inclusive.
[90] I decline to do that this year. Firstly, it is not known for sure that M. will return to reside with the mother for the summer months in 2020. She may decide to stay where she is at university for the summer or live elsewhere. Secondly, the father will already have substantial expenses to pay in the 2019/2020 academic year with payment of post secondary expenses for C.’s last year of post secondary education, payment of monthly child support for C. until April 30, 2020, and payment of M.’s post secondary expenses.
[91] If M. returns to live with the mother for the summer of 2020, the father shall pay child support to the mother for four months calculated in accordance with the Child Support Guideline Tables based on the father’s 2019 income.
Similarly, in future summers prior to M.’s first post secondary degree being completed, if M. returns to live with the mother for the summer, the father shall pay to the mother monthly support for M. for four months calculated on the father’s income for the year prior.
The father’s income for child support purposes
[92] At the date of the hearing of this matter, the father advised the court that he was unemployed as of April 12, 2019 and had no income other than employment income due to shortage of work/end of contract or season according to his Record of Employment. Hopefully, the father has been able to obtain employment since the hearing.
[93] In this matter, I have continued to follow the pattern that the parties have generally previously followed in determining each party’s income for child support on the basis of that party’s income for the prior year as per their prior year’s income tax return, with the new amount of support to commence on June 1st in each year.
[94] Therefore, for the period prior to June 1, 2019, I have used the father’s income for 2017 of $122,852.00 as the income for calculating the child support to be paid by the father.
[95] On the same basis, therefore, commencing June 1, 2019, I have used the father’s 2018 income of $210,306.00 to calculate the child support as the father received that income in 2018 and has not yet had to pay child support on the basis of that income.
[96] I also note that this is in accordance with the Amending Agreement which provides that the parties will adjust ongoing child support effective June 1, 2019 based on their respective Line 150 incomes from 2018.
[97] Accordingly, I do not find it appropriate to average the father’s last three years of income as requested by the father.
Summary of Child Support Variation
[98] The father’s request to terminate the child support for C. and M. effective October 19, 2018 is dismissed.
[99] Paragraph 1d of the Amending Agreement made July 30, 2018 with respect to child support shall remain in effect to and including October 1, 2018 and thereafter it shall be varied as follows:
(a) Commencing November 1, 2018 to and including April 30, 2019, the father shall pay to the mother for child support for C. and M. the sum of $1,751.00 per month based on the father’s 2017 income of $122,852.00, with credit for any payments made by the father.
(b) Commencing May 1, 2019 to and including August 31, 2019, the father shall pay to the mother for child support for C. and M. the sum of $2,801.00 per month based on the father’s 2018 income of $210,305.00, with credit for any payments made by the father.
(c) Commencing September 1, 2019 to and including April 30, 2020, the father shall pay to the mother for child support for C. the sum of $1,733.00 per month at which time the child support for C. shall terminate.
(d) Commencing the summer of 2020 and the summers following, while M. is in post secondary education until she completes her first post secondary diploma or degree, the father shall pay to the mother table child support for M. for any of the four summer months M. is residing with the mother, based on the father’s income for the prior year.
Arrears
[100] It is quite likely that the father will owe arrears of child support to the mother pursuant to this order. However, I am not prepared to calculate those arrears as various payments have been made by the father for which he should receive credit, and I may not be aware of all those payments.
[101] I would note that pursuant to paragraph 1e of the Amending Agreement, the father was to pay to the mother the sum of $2,250.00 on or before April 1, 2019 which will also have to be taken into account.
[102] Pursuant to the Amending Agreement, the parties have agreed that there are no arrears or overpayments of child support for the period preceding June 1, 2018.
[103] The parties shall calculate and agree upon by August 30, 2019 the amount of the arrears owing by the father to the mother from June 1, 2018 to August 31, 2019 and this figure shall be inserted in the draft Final Order submitted to the Court which shall include a paragraph that states:
“The arrears of child support owed by the father to the mother from June 1, 2018 to and including August 31, 2019 are fixed at $_______ as of August 31, 2019.”
Order
[104] Final Order to go accordingly.
Costs
[105] If the parties are unable to agree on the issue of costs between themselves, the Respondent may serve and file written submissions as to costs of no more than 3 typewritten pages plus a Bill of Costs and any offers to settle by September 5, 2019. The Applicant shall have 14 days after receipt of the Respondent’s submissions to serve and file written submissions of no more than 3 typewritten pages plus a Bill of Costs and any offers to settle. The Respondent shall have 7 days after receipt of the Applicant’s response to file written reply submissions of no more than two typewritten pages. If no submissions are served and filed within this timeframe, there shall be deemed to be no order as to costs.
Justice A.C. Trousdale
Released: August 16, 2019
COURT FILE NO.: 478/16
DATE: 20190816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jason Reginald Leonard
Applicant
- and -
Nichole Marie Leonard
Respondent
ENDORSEMENT ON MOTION TO CHANGE AND CROSS-MOTION TO CHANGE
Madam Justice A.C. Trousdale
Released: August 16, 2019