COURT FILE NO.: FC-11-1333-1 DATE: 2020/02/05 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: Paul Makdissi, Applicant AND: Suzanne Masson, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Julius Dawn, for the Applicant Meagan LePage, for the Respondent
HEARD: September 12, 2019 – updated financial information received January 16, 2020
Amended Decision and Reasons
The text of the original endorsement dated January 20, 2020 was amended on February 5, 2020 and the description of the amendment is appended
[1] This is the continuation of a motion to vary the support provisions of a divorce judgment. The motion was the subject of reasons released in November of 2017. The issue was the continuing obligation of the respondent mother to pay child support for adult children pursuing advanced post-secondary education. As set out in the decision, I found that based on the high combined income of the parents, the proportionately higher income of the mother, the commitment of the family to post-secondary education and the undoubted academic ability of the children, continuing child support was warranted. [1]
[2] For reasons set out in the previous decision, it was not possible to adjudicate precisely what was owing in 2017 due to gaps in the evidence and calculations that would most appropriately have been completed by the parties and their counsel. In the previous decision, the parties and their lawyers had been directed to assemble the necessary data and to finalize matters in accordance with the rulings. I had indicated they could return to court if they were unable to do so. [2] I had not anticipated reattendance in 2019.
[3] There have now been additional material changes since the motion was first argued and an amended notice of motion has been served. As discussed below, at my request financial information was also updated so that current numbers could be used prior to my final ruling.
[4] The task on this motion became twofold. Firstly, it was necessary to decide questions that remained in dispute as a consequence of the November 2017 decision. Secondly, it was necessary to update the decision to capture events that had taken place in 2018 and 2019.
The Facts
[5] By way of context, the parties were married in June of 1993 and separated in March of 2002. They have two children, Étienne, born in November of 1993 and Jeanne, born in July of 1995. A divorce judgment was issued in Quebec on March 28, 2004. The support provisions of the divorce judgment were the subject of a variation application argued before Parfett J. of this court in 2011. [3]
[6] When this matter came before the court in 2017, the framework of support was that set out in Justice Parfett’s decision and it was that decision which was the subject of the new “motion to change”. The task in 2017 was to determine what further variation was justified by the material changes that had occurred in the interim. It was not to recast the framework or consider the issue de novo. [4]
[7] I will not repeat all of the background summarized in the previous decision. Suffice to say that the mother is a medical specialist living in Drummondville, Québec and the father is a university professor living in Ottawa. At the time of the previous decision, the mother consistently earned over $600,000.00 per year and the father earned over $150,000.00. Both of the children were pursuing higher education and both intended to complete PhDs.
[8] At the time of the previous motion Étienne was just turning 24 and was living in Toronto attending U. of T. Jeanne was 22 and was still living in Ottawa completing her master’s degree at U. of O. It was anticipated that Étienne would complete his PhD and that Jeanne would also go to Toronto to pursue hers.
[9] In the decision, I applied the well known “Farden factors” to the facts as I found them and reached the conclusion that the obligation of the mother to pay support was a continuing obligation. It was however an obligation that was to be adjusted to take into account the changed and changing circumstances. In particular the income of the children and their decision to pursue studies in Toronto should have resulted in the support being reduced to a proportionate share of the shortfall, if any. There were also to be retroactive adjustments once all of the income figures could be established. I anticipated that would be largely a mathematical exercise.
[10] The Income Tax Returns and Notices of Assessment for each of the parents for each of the years 2012 – 2018 have now been produced so that the income in those years has been verified. I now have what the parties advise is their income for 2019 derived from their final pay stubs and given the nature of their compensation, those figures should be reasonably accurate. I have been provided with estimates for 2020 which may or may not have to be adjusted at the end of the year if something unanticipated occurs. The father is paid pursuant to a collective agreement and his income is predictable with reasonable accuracy. The mother on the other hand has experienced fluctuations in income although at this point she advises that her 2020 income is likely to be similar to 2019.
[11] The main significance of this is not the ability to foresee the future but the question of establishing the mother’s income for support purposes and adjusting the proportion of extraordinary expenses. At the time of the previous hearing, I had accepted the mother’s argument that due to artificial spikes in her income in certain years, a three year average should be used for her income.
[12] The mother’s income for 2012 – 2014 was previously averaged at $687,393.00 per year and her income for 2015 – 2017 can now be averaged at $624,132.00. As I now have a verified figure for 2018, a year end figure for 2019 and an estimate for 2020, I have used those numbers to derive an average income for 2018 – 2020 of $589,830.00. This represents a decrease in the mother’s income of roughly $35,000.00 per year which was anticipated and explained in her earlier evidence.
[13] The father has now provided income figures for the children for each of the years 2012 – 2019. I have accepted those figures but to be consistent with the parent’s incomes I have used the “total income” and not “net income” numbers where available. This produces a small difference from the totals contained in the father’s affidavit.
[14] Schedule A to these reasons contains the income numbers for each of the children and the parents for each of the years in question and indicates whether or not the number is subject to further verification or recalculation. While the actual incomes for 2020 may prove to be different from the estimates and that would affect support calculations, I regard it as insignificant if the variation from the estimate turns out to be 1% or less. As I will come to, given the history of this matter, it is my intention that a final order should issue and this particular proceeding brought to a conclusion.
Delay
[15] The delay between starting this motion to change and the final adjudication has been extraordinary. There is no need to delve into this in detail or to assign blame but I think it is important to record the passage of time. As discussed, the motion to change was brought in 2016 by the mother who was seeing to terminate child support. In response the father sought a retroactive increase in support back to 2012.
[16] The motion was argued in September of 2017 and reasons were released in November of 2017. Almost a year elapsed before counsel contacted my office to request a case conference. The reason for the request was to advise that they had been unable to finalize the outstanding issues and to advise that counsel believed a further full day of argument was required. That date was set for early February of 2019 but unfortunately one of the counsel became ill and the motion could not proceed. Ultimately, it was rescheduled for September of 2019.
[17] Time marches on and of course by the time the motion was heard and I was able to review all of the material, the 2019 numbers were available. In accordance with Family Rule 2 (1.1) and the objective of dealing with cases justly, it would not have made sense to simply rule on matters as they existed in 2017. I therefore allowed the parties to file additional material and I specifically requested updated financial information at the time of drafting the reasons.
[18] As I will come to, it is my expectation that this ongoing dispute now be resolved.
[19] At the December of 2018 case conference, in anticipation of this matter being argued in early 2019, and in light of the inability of the parties to finalize the issues themselves, the issues for adjudication were defined. Since then, there have been some further changes in circumstances and each of the parties have sought to tweak the issues. Based on the case conference direction and the factums of the parties, the issues to be decided are as follows:
a. Due to changes in the parents’ incomes or legitimate changes to the budget used by Justice Parfett when she made her order, what amount of basic support should have been paid for the period when both children still lived at home? That is for 2012, 2013, 2014 and until August 2015. b. What expenses should have been considered for the year when the children were both living in Australia with the applicant and attending university in Australia? That occurred in 2013. c. What amount of basic support should have been paid for Jeanne after Étienne left home and up until she left home? That is from September 2015 until August 2018. d. What amount should have been paid as support for Étienne when he was pursuing his PhD in Toronto? That is from September 2015 until 2019. A subsidiary issue is for how long the support should continue? e. What amount should have been paid as support for Jeanne after she began pursuing her PhD in Toronto? That is from September 2018 until 2019. f. What overpayment or underpayment results from these calculations?
[20] Since the motion was originally argued in 2017, other than the changes in income, by the time this matter was argued in September of 2019, the following events had occurred.
a. Jeanne completed her master’s degree in Ottawa and moved to Toronto where she is enrolled in the PhD program. She relocated in July of 2018. b. Étienne had begun his PhD studies in 2015. They were to have consisted of two years course work followed by a thesis. He continued in the program and had not yet graduated. c. In 2018 both Étienne and Jeanne earned in excess of $43,000.00. Their incomes for 2019 had not been calculated. d. Volumes 6, 7, 8 & 9 had been added to the continuing record.
[21] In January of 2020 I was provided with the 2019 proof of income, estimates for 2020, particulars of academic process and an agreed upon list of the support actually paid by the mother for each of the years in question.
Issues and Findings
a) Incomes of the Parents and the Children
[22] In order to complete any of the necessary calculations, it was first necessary to establish the incomes of the parents and of the children. As noted above, only some of those figures were available at the time of the previous rulings. At that time, I was confident that given the appropriate rulings and directions, the parties would be able to obtain the missing figures and to make the necessary calculations and adjustments without coming back to court. That proved to be misplaced confidence and for that reason I am reluctant to leave loose ends. At the same time, what has now become an ongoing rolling motion must be brought to a conclusion.
[23] Schedule A attached to these reasons updates the chart developed in 2017 and contains my findings regarding the incomes of the parties and the income of the children during the relevant years. As indicated in the chart and as discussed earlier in these reasons, the 2020 figures are estimates that may require adjustment and recalculation. Given the impact it would have on the overall calculations, I would consider a variation from the estimates of up to 1% to be insignificant. Subject to that caveat and the impact that a significant change in the mother’s income for 2020 would have on the three year average, the income numbers set out in Schedule A may now be stated with confidence.
[24] As mentioned, in 2017 I had agreed with the submission that the fairest approach to the mother’s income was to use a three year average. I used this approach for the years 2012 – 2014 and with the benefit of the numbers now available, this approach can be used for the years 2015 – 2017. It creates a potential problem for the income to be used for the years 2018 – 2020 because while 2018 is an established number, 2019 is derived from paystubs and 2020 is an estimate.
[25] I have completed the calculation of support based on the numbers contained in the evidence and the assumptions set out in these reasons.
b) Base Support 2012 - 2018
[26] The original order made by Parfett J. fixed the support for the two children at $4,000.00 per month. This was pursuant to a finding that the child support tables were not of assistance. The amount was calculated on the basis of a budget and on the basis of the incomes of the parents. At the time, all of Étienne’s post-secondary expenses were covered by a financial package and the free tuition available at the University of Ottawa. Jeanne’s extraordinary expense was her private school fees. The mother was to pay 82% of the fees.
[27] At the time of that hearing, the court found that the mother’s income was $583,700.00 and the father’s income was $127,000.00. Schedule A to these reasons shows the actual incomes of the parents in each of the years 2012 – 2018. In my view, those changes were significant and would constitute material changes in relation to child support.
[28] The first question is whether there should have been an adjustment to the base amount of support for the years 2012 – 2105 when both of the children were still living at home and how the support should have changed when Étienne left for Toronto. When the father responded to this motion to change in June of 2016, he requested a variation retroactive to January 1, 2012. The court has discretion to make a retroactive award and also has discretion concerning the extent of retroactivity. [5]
[29] The mother did not disclose her increase in income following the original order. In deference to her argument that there were fluctuations in her income and windfall incidental income, at the previous hearing I ruled that was appropriate to use a three year average for her income. The three year average for 2012 – 2014 is $687,393.00. If the base support is increased simply by the proportion that this income had increased over the income found by the court at the time of the original order, the support for the two children should increase to $4,600.00. I appreciate that the father also argues the budget for the children should be indexed for inflation but having regard to all of the circumstances discussed in my previous reasons, a proportionate increase seems fair. The father’s income also increased during this period of time.
[30] In 2015 the mother’s average income (using 2015 – 2018 as the three year average) decreased to $624,132.00 and if I use the same proportion (which happens to be .67% of her total annual income per month) this would generate a figure of $4,200.00 per month for the two children. That would be the base amount of support until Étienne moved to Toronto. I would reduce the support as of the September 1 payment to provide base support for only one child. It should not be cut by 50% as there is some economy of scale built into the Child Support Guidelines. Support for one child is more than 50% of the support for two children. In my view, a reasonable number would be $2,500.00 per month for the support of one child. This is approximately .4 % of her annual income per month.
[31] I note these percentages not because these are percentages that should be used to calculate child support but because they reflect changes that appear to be consistent with the original order. I do not for a moment suggest that these percentages are scientific or are of broader application.
[32] I recognize that the Federal Child Support Guidelines for Québec [6] for incomes of more than $150,000.00 for one child generate a number of $1,231.00 per month plus 64% of the income over $150,000. If that formula was blindly applied then the amount of support for one child would be closer to $4,300.00 per month. But the Guidelines recognize that support for high income earners may not be appropriately calculated in this manner particularly where the support recipient is also a high income earner.
[33] Justice Parfett dealt with this question in the original hearing. As I ruled at the time of the previous hearing, the objective in a variation application is only to adjust the original order to take into account the changed circumstances. So, I am varying the base amount of support to $4,600.00 per month for the years 2012 – 2014 and to $4,200.00 per month from January 1, 2015 until August 1, 2015. Support is reduced to $2,500.00 per month for the period when Jeanne was the only child at home from September 1, 2015 until December 31, 2017. Support is further reduced due to a reduction of the support payor’s income from January 1, 2018 until August 1 of 2018. Support during those months should have been $2,359.00 per month based on an income of $589,830.00
[34] These findings and the adjusted amounts for base child support are set out in Schedule B to these reasons.
c) Australian Educational Expenses
[35] In 2013, the father taught in Australia and the children went with him. They attended the University of Queensland. I have previously ruled that the basic support should have continued during that time and the educational expenses of attending university overseas during that year should be shared proportionately as extra expenses. Again, this is consistent with the structure adopted by Justice Parfett. All educational expenses were to be treated as extra expenses and shared proportionately whereas the base support was to cover the budget for day to day living.
[36] I found that notwithstanding it meant giving up the free tuition available at the University of Ottawa during that year and other additional expenses involved in attending university overseas, the benefit to the children of taking advantage of that opportunity was justified and in their best interests. The parents benefitted in other years from the availability of free tuition, it was not unreasonable to go to university in Australia. I ordered that the education costs be treated as extraordinary expenses and shared proportionately.
[37] The father now seeks to have various expenses of living in Australia and travel to and from Australia included as extra expenses. This goes well beyond the intent of my ruling. For example, the father chose to leave the house in Ottawa empty and to rent accommodation in Australia. The mother continues to be liable for the base support for that year as well as a proportionate share of all reasonable expenses associated with attending university.
[38] I will include the cost of a single return flight for the children but I regard it as inappropriate to add any additional living expenses incurred because of the arrangements the father made without consulting the mother. All fees, tuition, books and other educational expenses as well as one return flight shall be calculated as educational expenses and shared proportionately. I disallow the claim for rent or any other expense associated with living in Australia because that was the purpose of the base support.
[39] For that year 83% of the educational expenses should be paid by the mother and 17% by the father.
[40] The same proportionate share shall apply for Jeanne’s attendance at the University of Athabasca. In that case there are travel costs and living costs which should be extra expenses and shared in the same proportion. This is because Jeanne had to travel to Athabasca to take one course and all expenses associated with that requirement are extraordinary. It was not a trip accompanying a parent.
d) Support for Étienne while pursuing his PhD
[41] It is extremely unusual to require child support to continue beyond a single post-secondary degree let alone at the PhD level. In 2017, the mother argued against this result for a number of reasons including the age of the children, their ability to earn income or qualify for financial incentives and assistance, and the strained relationship between the children and their mother. While prepared to assist the children directly on a voluntary basis, the mother resisted the idea that she should be legally obligated to pay support to the father under the circumstances.
[42] I am not prepared to revisit the rulings made in 2017. I determined that the base amount of support paid to fund the household budget when the children were living at home with the father should cease once the children moved to Toronto. Thereafter any shortfall between their own resources and their reasonable needs as university students would be funded by the parents in proportion to their incomes. I did not deal with the question of how long such support should continue nor did I fix the amount of the reasonable expenses. The parties have been unable to resolve either question.
[43] It is one thing to order support for an adult child in 2017 when he was two years into a PhD program and when the court did not have the information about the earnings of the children or the parents for the years in question. It may be another to order the continuation of support when that child is now 26, has been pursuing his doctoral degree for four years and has demonstrated a capacity to earn or qualify for income of over $40,000.00 per year.
[44] It is important to recall that what is in issue is the legal obligation of the mother to pay child support to the father in light of his own legal obligation to support his adult children in their pursuit of post-secondary education. The children themselves are not party to this proceeding although at the request of the father, they have provided affidavit evidence.
[45] It is also important to remember that the formula adopted by Parfett J. as modified by my ruling was to treat as extraordinary or s. 7 expenses the shortfall between the reasonable expenses of education and the children’s own resources. Three questions define the support obligation. Firstly, what is the reasonable cost of education during the period in question? Secondly, what was the amount earned by the children? Thirdly, what is the shortfall that must be funded?
[46] A fourth question, which I declined to answer in 2017 but continues to be part of the relief sought in the notice of motion, is for how long the obligation should continue. It is more appropriate to answer that question in 2019 than it would have been in 2017.
[47] The father has submitted proposed budgets for the children of approximately $75,000.00 per child. In support of this, he has provided affidavits and lists of expenditures. Living in Toronto and attending U. of T. is certainly expensive but the suggestion that this budget is in any way reasonable for support purposes is extravagant to say the least. The breakdown of the budgets shows that it includes 100% of extensive discretionary spending including cable, Netflix, gym memberships, bars and restaurants, coffee shops, grooming, travel and costs incurred in Ottawa as well as Toronto.
[48] These numbers show no attempt to live within the means available to the children. They are far from demonstrating a legitimate shortfall between their resources and their needs that should be funded through child support. No doubt a reasonable budget would include some amount for entertainment, meals outside the home, socializing, travel and the other categories of expense but these budgets are higher than most people could afford even with full time employment.
[49] A reasonable budget for students from a wealthy family would include some discretionary expenditures but the proposed level of expenditure should not be recognized for support purposes. Without attempting a line by line analysis of the budgets, in my view an annual budget of $49,000.00 would be more than generous even in Toronto and even accepting that they are each paying $1,750 per month in rent.
[50] I am calculating support for Étienne’s expenses once he moved to Toronto based on a budget of $49,000.00 per year. It follows that the support for Étienne for the months of September to December 2015 should be zero. He had income of $16,582.00 in 2015 and that should have fully covered his expenses for four months.
[51] In 2016, Étienne had earnings and financial support worth $32,524.00. The shortfall would have been $16,476.00 of which the mother’s share should have been 80% or $13,181.00. Similarly, in 2017, the shortfall between $49,000.00 and Étienne’s own earnings would have been $13,056.00 and the mother’s share should have been 79% or $10,314.00. In 2017, the shortfall was only $5,570.00 and as described earlier I have calculated the mother’s percentage at 77% which in this case is $4,289.00. Étienne’s income in 2019 was lower but the father’s income had risen. The mother should have been responsible for 77% of the shortfall of $12,606.00 which is a support payment of $9,707.00.
[52] These calculations are set out in Schedule C to these reasons and the amounts in the right hand column are the amounts I find should have been paid to the father for support of Étienne during the years 2015 - 2019
[53] It remains to consider whether the obligation to pay child support to the father for the support of Étienne should continue beyond the date of this motion. As discussed, this question is concerned with a legal obligation as between the parents and does not in any way preclude either parent from voluntarily continuing to assist Étienne directly. The mother has always indicated a willingness to discuss this with Étienne.
[54] In my view, however, the time has now come when child support for Étienne should cease. At the time of the previous motion in 2017 the evidence was that Étienne had begun his PhD in 2015 and was hoping to complete it within four years. He has apparently not yet done so. I am advised he does not now expect to be done his thesis until 2022.
[55] Funding post-secondary education at the PhD level through the mechanism of child support is very much an exceptional situation. In 2017 it was justified by the application of the Farden factors under the circumstances which prevailed at that time. The application of those factors over two years later does not drive me to the same conclusion.
[56] In my view, there is no further legal obligation of the parents to pay support for Étienne after four years in the PhD program. Either or both parents may obviously assist him if they choose to do so but I am not ordering the mother to pay any further child support to the father for the support of Étienne after December of 2019.
[57] In Schedule C I have shown a transitional payment of $6,000.00 for support for Étienne in 2020. This is to be paid by the mother to provide a slight cushion for the termination of support which of course will only come to the attention of the parties when they receive this decision.
e) Support for Jeanne while pursuing her PhD
[58] Jeanne should be entitled to the same level of support as Étienne. Once she started living in Toronto and was accepted into the PhD program, the base support previously paid on a monthly basis was to terminate. After that point, all of the reasonable expenses of living and attending school in Toronto are to be considered as extraordinary expenses and to the extent those expenses exceed the funds available from Jeanne’s own resources, they are to be paid by the parents in proportion to their incomes.
[59] Although there should have been some economies of scale brought about by the fact that Étienne and Jeanne are sharing accommodation and some expenses, Jeanne also has higher costs in certain categories such as grooming and clothing. It is reasonable to estimate Jeanne’s costs at the same amount as Étienne and use the figure of $49,000.00. This still provides a combined budget of $98,000.00 for the two adult children.
[60] As in the case of Étienne, and based on the factors discussed in the 2017 decision as well as these reasons, the mother is to pay child support for Jeanne while she pursues up to four years of a PhD program. It is her current intention to finish her program in 2022 in any event.
[61] As with Étienne, based on the available evidence, I have set the budget at $49,000.00 per year and I have deducted the funds earned by or awarded to Jeanne. Those calculations are set out at Schedule D.
[62] I have calculated the support obligation for 2020 on the basis of the estimated compensation numbers for each of the parents and on the assumption that Jeanne will earn or qualify for the same amount as in 2019. If any of these assumptions prove to be incorrect then the following adjustments may be required:
a. The average income for the mother for the years 2018 – 2020 may have to be recalculated. b. The percentage contribution of the mother and the father for the years 2018 – 2020 may have to be recalculated. c. The shortfall for Jeanne’s education for 2020 may have to be recalculated.
[63] Of course the parties will also have to work out the contribution for support for Jeanne for 2021 and 2022 based on the same methodology.
[64] As I will discuss in the next section, on the basis of the numbers provided to me, the mother has now overpaid support. This credit owing to the mother by the father will provide a mechanism by which future support can be adjusted and offset against the credit.
f) Calculation of Overpayment
[65] It is evident from the calculations set out above and reflected in the attached schedules that there has been a significant overpayment of child support. That is because notwithstanding the launching of this motion in 2016, the father has continued FRO enforcement of the 2011 support order that is under review.
[66] As discussed at the previous motion, despite the dispute and the need to perform calculations, FRO has apparently also been enforcing lists of extraordinary expenses provided by the father. Although the father ceased enforcing extraordinary expenses in the past two years, he has continued to enforce the base support of $4,000.00 per month.
[67] Counsel have prepared a list of support actually paid and they agree that it is accurate. Those amounts are set out in Schedule E attached. That schedule also includes the amount of the overpayment which is generated by applying the amount of support payable in each year against the amount actually paid. For this purpose, I have treated the estimated amount of support payable for 2020 as accruing in January of this year and I have taken into account the one support payment already paid for January 1 of 2020. Obviously if the February 1st payment is also collected before FRO can be notified of this decision then the amount of the overpayment will increase by $4,000.
[68] After deducting the amount of the Australian rent and making the adjustments to base support and to extraordinary expenses discussed above and shown in the charts, and using the estimates for 2020, the overpayment to the date of these reasons is $82,531.00
[69] That is a significant number but it is not nearly as high as the number suggested by counsel for the mother.
[70] Ordinarily, a finding of overpayment would result in an immediate judgment against the father. In this case, however, a better approach appears to me to be to use the amount owing by the father to the mother as a credit against her support obligation for the next two years and against any readjustment of support that may result if she has underestimated her 2020 income.
[71] This credit (the overpayment) is more than the probable support obligation of the mother to the end of 2022 because her obligation for Jeanne for 2019 and her presumptive obligation for 2020 has been calculated at approximately $12,000 per year. Consequently, as a result of these adjustments and calculations, all support payments should cease immediately. The remaining support obligation will be satisfied by the overpayment of support that has already taken place.
Conclusion and Summary
[72] The amount of base support should have been adjusted to reflect the changing income of the mother and the number of children who remained at home in Ottawa. Base support should have ceased when the adult children left home to pursue tertiary post-secondary degrees in Toronto. There will be a variation of base support for each of the years 2012 – 2018 as set out in Schedule B. As of August 31, 2018, no further monthly child support is payable.
[73] The amount of support to pay for the cost of post-secondary education for Étienne shall be calculated as set out in Schedule C and shall cease effective December 31, 2019 except for the one time transition and cushion of $6,000.00 which I have included in the 2020 calculations.
[74] The amount of support to pay for the cost of post-secondary education for Jeanne shall be calculated as set out in Schedule D. The mother shall continue to pay her proportionate share of any shortfall between Jeanne’s own resources and $49,000.00 per year until Jeanne completes her PhD program or until December 31, 2022 whichever is earliest.
[75] I find that the mother (support payor) has overpaid child support by $82,531.00 to this date. This is a debt due to the mother from the father and is more than the support she is likely to be obliged to pay for Jeanne over the next two years.
[76] Consequently, there will be an order that the support ordered by Justice Parfett cease immediately. There will be an order declaring that the mother has overpaid her support obligations to the date of this decision, including the estimated support obligation for 2020 in the amount of $82,531.00.
[77] Rather than issuing judgment against the father, given the ongoing support obligation for Jeanne, and the possibility of recalculation of support that should have been paid in 2018, 2019 and 2020, this debt may be set off against the mother’s future support obligations. The net amount due to the mother from the father, if any, may be reviewed at the end of 2022.
Form of the Order
[78] If counsel are unable to agree on the form of the order or if more than one order is required in order that it may be effectively enforced, they may contact my office to obtain an appointment for that purpose. Counsel are to co-operate to avoid the complications that will arise if FRO enforcement of the original order and support deduction order is not halted immediately.
Costs
[79] I have no doubt there will be issues about costs. The mother initiated the motion to change and the father sought a retroactive variation in response. Both parties have enjoyed some success but in order to do so they have been litigating these questions since 2016. I would not be surprised if the costs actually incurred are disproportionate to the net result. I do not know if there were formal offers to settle.
[80] On the surface, it appears the father has behaved in an irresponsible manner by continuing enforcement of a judgment he knew would be the subject of variation. While I have found that the level of base support should have increased in the years following the original order, the basis for calculating the support should have changed thereafter. The amount of support once the children both left home and were attending university in Toronto should have been only a proportionate share of any shortfall between a reasonable budget and the amount earned by each child. [7]
[81] On the other hand, the father blames the mother for intransigence and delay in providing information mandated by the court and the rules. While there is reference to these positions in the materials, I have not heard submissions on costs.
[82] Naturally I encourage counsel to consult and to reach agreement about how the costs should be allocated but otherwise counsel are to contact my office within 30 days to obtain further direction about costs submissions.
Mr. Justice C. MacLeod Date: February 5, 2020
SCHEDULE A – Resources of the Parents and Children
| Year | Mother’s income | Mother’s income based on 3 year average | Father’s income | Étienne | Jeanne |
|---|---|---|---|---|---|
| 2012 | $740,575.00 | $687,393.00 | $128,378.00 | 0 | 0 |
| 2013 | $612,574.00 | $687,393.00 | $144,584.00 | $4,319.00 | $4,833.00 |
| 2014 | $709,031.00 | $687,393.00 | $144,813.00 | $12,302.00 | $8,923.00 |
| 2015 | $631,202.00 | $624,132.00 | $152,390.00 | $16,582.00 | $15,975.00 |
| 2016 | $684,281.00 | $624,132.00 | $158,399.00 | $32,524.00 | $24,201.00 |
| 2017 | $556,813.00 | $624,132.00 | $164,935.00 | $35,944.00 | $21,370.00 |
| 2018 | $557,754.00 | $589,830.00* | $172,056.00 | $43,430.00 | $44,061.00 |
| 2019 | $605,868.00 | $589,830.00* | $179,632.00 | $36,394.00 | $33,575.00 |
| 2020 | $605,868.00* | $589,830.00* | $185,645.00* | N/A | $33,575.00* |
- Estimates - subject to verification and possible adjustment – Étienne & Jeanne’s income to include all tuition rebates, scholarships, bursaries and earned income from all sources.
Schedule B – Adjusted Base Support Payable
| Year | Support Payor’s Income | Base Monthly child support Payable |
|---|---|---|
| 2012 | $687,393.00 | $4,600.00 |
| 2013 | $687,393.00 | $4,600.00 |
| 2014 | $687,393.00 | $4,600.00 |
| 2015 | $624,132.00 | $4,200.00 and then $2,500.00 from Sept 1, 2015 |
| 2016 | $624,132.00 | $2,500.00 |
| 2017 | $624,132.00 | $2,500.00 |
| 2018 | $589,830.00* | $2,359.00 to August 1st, 2018 and then $0 from Sept.1, 2018 |
| 2019 | $589,830.00* | $0 |
| 2020 | $589,830.00* | $0 |
Note – Étienne moved to Toronto July 2015 and Jeanne moved to Toronto in July 2018. I have changed the support levels beginning with the September 1st payment in each year.
Schedule C – Contribution to Étienne’s Extraordinary Expenses at U of T
| Year | Mother’s Income | Mother’s % | Father’s Income | Father’s % | Étienne Income | Étienne Extraordinary expenses | Shortfall | Mother’s Share |
|---|---|---|---|---|---|---|---|---|
| 2012 | $687,393 | 84% | $128,378 | 16% | 0 | |||
| 2013 | $687,393 | 83% | $144,584 | 17% | $4,319 | |||
| 2014 | $687,393 | 83% | $144,813 | 17% | $12,302 | |||
| 2015 | $624,132 | 80% | $152,390 | 20% | $16,582 | $16,333 | 0 | 0 |
| 2016 | $624,132 | 80% | $158,400 | 20% | $32,524 | $49,000 | $16,476 | $13,181 |
| 2017 | $624,132 | 79% | $164,935 | 21% | $35,944 | $49,000 | $13,056 | $10,314 |
| 2018 | $589,830 * | 77%* | $172,056 | 23%* | $43,430 | $49,000 | $10,314 | $4,289* |
| 2019 | $589,830 * | 77%* | $179,632 | 23%* | $36,394 | $49,000 | $12,606 | $9,707* |
| 2020 | $589,830 * | 76%* | $185,645* | 24%* | N/A | N/A | N/A | $6,000 |
- Subject to verification and possible adjustment
Schedule D – Contribution to Jeanne’s Extraordinary Expenses at U of T
| Year | Mother’s Income | Mother’s % | Father’s Income | Father’s % | Jeanne Income | Jeanne Extraordinary expenses | Shortfall | Mother’s Share |
|---|---|---|---|---|---|---|---|---|
| 2012 | $687,393 | 84% | $128,378 | 16% | 0 | |||
| 2013 | $687,393 | 83% | $144,584 | 17% | $4,833 | |||
| 2014 | $687,393 | 83% | $144,813 | 17% | $8,923 | |||
| 2015 | $624,132 | 80% | $152,390 | 20% | $15,975 | |||
| 2016 | $624,132 | 80% | $158,400 | 20% | $24,201 | |||
| 2017 | $624,132 | 79% | $164,935 | 21% | $21,371 | |||
| 2018 | $589,830 * | 77%* | $172,056 | 23%* | $44,061 | $16,333 | 0 | 0 |
| 2019 | $589,830 * | 77%* | $179,632 | 23%* | $33,575 | $49,000 | $15,425 | $11,877 |
| 2020 | $589,830 * | 76%* | $185,645* | 24%* | $33,575* | $49,000 | $15,425 | $11,723* |
- Estimate - subject to verification and possible adjustment
Schedule E – Overpayment of Support
| Year | Support Paid | Extra Expenses Paid | Total Paid | Correct Support | Correct Extra Expenses | Overpayment / (Underpayment) |
|---|---|---|---|---|---|---|
| 2012 | $48,000 | $2,213 | $50,213 | $55,200 | $2,213 | ($7,200) |
| 2013 | $48,000 | $18,469 | $66,469 | $55,200 | $10,261 | $1,008 |
| 2014 | $48,000 | $3,918 | $51,918 | $55,200 | $3,918 | ($7,200) |
| 2015 | $48,000 | $15,078 | $63,078 | $43,600 | $0 | $19,478 |
| 2016 | $48,000 | $8,993 | $56,993 | $30,000 | $13,181 | $13,812 |
| 2017 | $48,000 | $17,415 | $65,415 | $30,000 | $10,314 | $25,101 |
| 2018 | $48,000 | $0 | $48,000 | $18,872 | $4,289 | $24,839 |
| 2019 | $48,000 | $0 | $48,000 | $0 | $21,584 | $26,416 |
| 2020 | $4,000 | $0 | $4,000 | $0 | $17,723* | ($13,723) |
| TOTALS | $388,000 | $66,086 | $454,086 | $288,072 | $83,483 | $82,531 |
*Estimate – depends
Appendix
- This amendment corrects a typo in paragraph 30. It should read: (which happens to be .67% of her total annual income per month. Later in the paragraph it should read: which is .4 % of her annual income per month.
COURT FILE NO.: FC-11-1333-1 DATE: 2020/02/05 ONTARIO SUPERIOR COURT OF JUSTICE, FAMILY COURT RE: Paul Makdissi, Applicant AND: Suzanne Masson, Respondent BEFORE: Mr. Justice Calum MacLeod COUNSEL: Julius Dawn, for the Applicant Meagan LePage, for the Respondent amended Decision and reasons Mr. Justice C. MacLeod
Released: February 5, 2020
[1] See Makdissi v. Masson, 2017 ONSC 6498 – the “previous decision”
[2] Previous decision – para. 49 & Schedule A
[3] Makdissi v. Masson, 2011 ONSC 7484 – “the original decision”
[4] See previous decision, para. 23 citing Droit de la famille – 091889, 2011 SCC 64, [2011] 3 SCR 775
[5] D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 SCR 231
[6] Federal Child Support Guidelines, SOR/97-175, as am.
[7] See previous decision, para. 34