COURT FILE NO.: 41469-08 (01)
DATE: 2020-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KELLY LYN TAYLOR
- and –
JOHN ROBERT SCHULTZ
Ms. Anamaria Pasc, for the Applicant
Mr. Schultz, Self-represented
HEARD: September 30, 2019; October 1, 2, 2019; July 23, 24, 2020; October 1, 2020
The Honourable Justice Catrina D. Braid
REASONS FOR JUDGMENT
Corrected decision: The correction was made on October 16, 2020.
A typographical error was made on page 21, paragraph 86 1.
The date was inserted as February 2, 2017 and this has now
been changed to read February 2, 2016.
I. OVERVIEW
[1] Kelly Lyn Taylor and John Robert Schultz were married and subsequently divorced. The parties have three children together. They resolved all issues arising from their separation, and a consent final order was signed on February 2, 2016.
[2] Two years later, the mother commenced a Motion to Change. The following issues arose on the hearing of the Motion to Change:
A. Should child support be terminated?
B. Should the court grant a retroactive adjustment of child support?
C. What is the father’s income?
D. How should the parties share post-secondary expenses?
E. What order should be made regarding braces for Ryan (one of the parties’ sons)?
[3] These are my reasons on the Motion to Change.
II. BACKGROUND AND PROCEDURAL HISTORY
[4] The parties were married on May 8, 1999. They separated in November 2008 and were divorced on November 9, 2011. In these reasons, I shall refer to the parties as the mother and the father.
[5] The parties have three children together. James Robert Schultz was born October 4, 1999 and is currently 20 years of age. Cooper Jason Schultz and Ryan Alexander Schultz are twin brothers born February 10, 2002 and are currently 18 years of age. The children have resided with the father full-time since before the 2016 order was made, except when they were attending post-secondary school or when they were working at summer camp.
[6] On February 2, 2016, Broad J. signed a consent final order. Notably, the 2016 final order was silent regarding s. 7 post-secondary expenses under the Federal Child Support Guidelines, S.O.R./97-175 (“Guidelines”). The following terms of the 2016 final order are relevant to this Motion to Change:
i. Paragraph 13: The Respondent [father] shall pay to the Applicant [mother] the sum of $10,000 within 30 days.
ii. Paragraph 14: The parties release each other of all claims of any kind whatsoever including retroactive table and s. 7 child support … save and except for paragraph 15 only.
iii. Paragraph 15: The Applicant [mother] shall pay to the Respondent [father] table child support only in the current amount of $870 per month commencing February 1, 2017 [one year after the date of the order] and monthly thereafter; the Respondent shall release the Applicant from any share of future s. 7 expenses relating to recreational activities.
iv. Paragraph 16: For as long as child support is paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s. 24.1 of the Guidelines.
[7] In June of 2018, the mother brought a Motion to Change, seeking the following:
i. That child support for James be terminated effective July 1, 2018;
ii. That child support be reduced to $806 per month for Cooper and Ryan commencing July 1, 2018;
iii. That the mother receive a credit for overpayment of child support;
iv. An order setting out when the mother’s obligation to pay child support terminates; and
v. An order that the parties contribute their proportionate share towards the children’s s. 7 post-secondary expenses, with annual financial disclosure obligations. The mother also asked that the parties contribute to the educational institution directly and provide proof of the contribution made.
[8] The father advanced the following claims in his response to the Motion to Change:
i. That James continues to be eligible to receive child support;
ii. That the mother’s child support obligations be retroactively increased, based on her actual annual income;
iii. That the mother provide an accounting of accounts held in trust by her for the children’s post-secondary education expenses;
iv. That the mother contribute $5,000 to each of the children’s accounts to cover her share of all future post-secondary expenses, with the accounts to be held in trust by the father to be used for the children at his discretion; and
v. An order terminating the father’s obligation to pay $750 in costs from an interim motion.
[9] On January 21, 2019, Broad J. made a temporary order, on consent, directing the father to do the following:
i. File his 2016 and 2017 Income Tax Returns within 45 days;
ii. Disclose copies of his 2016 and 2017 Income Tax Return and Notice of Assessment within 30 days; and
iii. Disclose copies of all T4s from all sources of income for 2018 within 30 days.
[10] On June 19, 2019, Breithaupt Smith J. made a temporary order directing the father to do the following:
i. Produce his complete Income Tax Returns, together with all attachments, for the years 2016, 2017 and 2018 within 30 days.
ii. Produce his Notices of Assessment for 2016, 2017 and 2018 within 5 business days of receipt.
iii. If the father fails to produce those items, his pleadings shall be struck with respect to all financial issues touching upon the years 2016, 2017 and 2018 pursuant to Rule 1(8)(c) of the Family Law Rules, O. Reg. 114/99 (“Rules”).
[11] Despite these court orders, the father has not provided proof that he filed his 2016, 2017 and 2018 Tax Returns. He has not produced Notices of Assessment for those years. The father insisted that his income was irrelevant, even though the courts have repeatedly told him otherwise. In addition, the costs orders imposed on him in July 2018 ($750) and June 2019 ($2,500) remain unpaid as of the last day of trial on July 24, 2020.
[12] To the extent that the father asks that all prior costs orders be dismissed, I decline to grant such an order. No appeal was launched to challenge those costs orders. In addition, as set out below, the father has a substantial income and assets, and has failed to produce any evidence of hardship.
III. ANALYSIS
A. Should Child Support be Terminated?
[13] The court may retroactively vary or terminate child support pursuant to s. 17(1) of the Divorce Act (R.S.C., 1985, c.3 (2nd Supp.) and s. 37(2) of the Family Law Act, R.S.O. 1990, c. F.3. On a Motion to Change a final order, the onus is on the moving party to prove both the changes in circumstances they are relying on to justify the requested variations and the appropriateness of the relief that they are seeking: Punzo v. Punzo, 2016 ONCA 957, 90 R.F.L. (7th) 304.
[14] The parties agree that there has been a material change in circumstances with respect to child support in that James was no longer entitled to child support as of April 1, 2019 at the latest. However, they disagree as to when James was no longer a child of the marriage, and whether Cooper and Ryan are still children of the marriage.
[15] In addition, the mother argues that she should not have been required to pay child support when the children were working full-time at a camp in Ottawa for the summer months, even though they returned to live with their father to attend high school in September. I do not accept this submission. Child support is not calculated by month, but is generally deemed payable when a child spends more than 40% of their time with one parent over a year. Child support should be consistently paid throughout the year, despite a child’s temporary absence during the summer months.
i. Child Support for James
[16] In June of 2018, James completed his last year of high school. In July and August, he lived away from home on a full-time basis at a summer camp in the Ottawa area. In September of 2018, he began the Pre-Service Firefighter Education and Training Program at Algonquin College in Ottawa. James did not complete the first year of the program and returned home to live with the father as of March 27, 2019.
[17] The father submits that he is entitled to receive fifty percent of the table child support for James when he was in school. He states that support for James should end April 1, 2019 when he returned home from school. The mother submits that it should end July 1, 2018, when James left to work at camp and then attend college.
[18] In cases involving children who are 18 years of age or older, s. 3(2) of the Guidelines directs the court to determine whether the standard Guidelines approach to calculating child support as set out in s. 3(1)(a) of the Guidelines is inappropriate. The court has discretion to order no child support when a child is over the age of 18 and moves away for post-secondary education, especially if the parties are sharing s.7 post-secondary expenses: Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.).
[19] In this case, the standard Guidelines approach is inappropriate once James moved out of the father’s home after completing high school. When James was at college, the mother contributed to his residence, meal plan and tuition costs. The father did not provide evidence of any extra expenses paid on behalf of James while he was attending college in Ottawa, or even details of what specific expenses he incurred. In these circumstances, the mother’s contribution to s. 7 post-secondary expenses satisfied her child support obligations for James when he was not living with the father.
[20] Table child support for James shall terminate effective June 30, 2018. Commencing July 1, 2018, the mother’s child support shall retroactively be adjusted to the amount of support payable for two children, namely Cooper and Ryan, in accordance with the Guidelines.
ii. Child Support for Cooper and Ryan
[21] The mother is seeking to terminate child support for Cooper and Ryan, effective June 30, 2020. Cooper and Ryan turned 18 years old on February 10, 2020. Ryan has completed all of his required high school credits and is eligible to graduate, and Cooper is one credit short. Both boys are eligible to return to high school for a fifth year or an additional semester, although it would not necessarily be full-time.
[22] The father opposes an order terminating support for Cooper and Ryan and states that they will both be returning to full-time high school in the fall. However, the father failed to provide any proof of their full-time enrollment. When asked about Cooper and Ryan’s post-secondary plans, the father could not provide any particulars.
[23] In addition, there was no evidence that Cooper and Ryan lived with the father in July and August of 2020. The only evidence on this point was that the children usually lived and worked at a camp during the summer months. Even if Cooper and Ryan were living at home with the father during the summer, they were over 18 years of age and there was no evidence that they would be returning to school in September.
[24] The father asserts that his evidence regarding Cooper and Ryan returning to school in the fall should be believed by the court. However, I have numerous concerns regarding the father’s credibility:
i. When giving evidence, the father refused to concede even the most basic points. For example, the mother provided proof of a payment that she made to Algonquin College by providing a copy of the cheque and the account statement from the College showing that a payment was made in the same amount. However, he would not accept that she had made the payment and questioned whether that was actual proof.
ii. The father frequently made bald statements while providing no evidentiary support whatsoever. For example, he claimed that he had complied with court orders requiring him to file his tax returns but was unable to produce any proof that the returns had been filed. When the court gave him time to obtain proof, he gave excuses as to why he could not provide it. Even when the trial was adjourned for months, he never provided proof that the returns had been filed.
iii. The father made numerous excuses for failing to follow court orders to file his tax returns. He repeatedly said it was never his intention to disobey the court orders, but then stated that his accountant advised him not to file the returns because it would jeopardize his assessment for a prior year. He insisted that the order of Breithaupt Smith J. only required him to produce his tax returns, not to file them. He took a skewed interpretation of the court order because he thought it benefited his interests.
iv. His evidence was often self-serving but absent of any independent support for his assertions. For example, on the last day of trial, he complained about suffering from significant health issues and stated that he would never be able to return to work. However, he was unable to produce any documents to establish his diagnosis, treatment, or how this condition may impact his ability to work.
v. After an interim motion was argued, the father posted a photo on Facebook of the mother’s former counsel seated in the courtroom, with the caption “Dark Forces.” Taking a photo during court proceedings is prohibited, and the posting of the photo and the caption were obviously designed to malign the mother and her counsel. The father frequently attempted to paint the mother in a negative light, which permeated and tainted his evidence.
vi. The father testified that the mother “corrupted” James by paying money directly to the school and blames the mother for James getting kicked out of the program in the spring of 2019. However, by October of 2018, the father already knew that the mother had made payments directly to the college to help fund James’ tuition and residence. He took no steps to monitor the Line of Credit account or to confirm that James was making payments to the college as they were required. The father refused to take responsibility for his own shortcomings but was very quick to assign blame to the mother.
[25] Absent proof from an educational institution to establish that Cooper and Ryan are enrolled in a full-time educational program for September 2020, I do not accept the father’s evidence on this issue.
[26] The onus is on the father to establish that the adult children continue to be entitled to support past their eighteenth birthday: Motiram v. Latchman (2009), 2009 CanLII 23875 (ON SC), 70 R.F.L. (6th) 332 (Ont. S.C.). In this case, the father has not satisfied that onus. In these circumstances, I find that it is appropriate that child support terminate on June 30, 2020.
[27] If a child continues to live with the recipient parent while undergoing their post-secondary studies, the courts are more likely to follow the usual Guidelines approach: MacEachern v. Bell, 2019 ONSC 4720. If Cooper and/or Ryan resume full-time studies and the father provides proof of full-time enrolment from an educational institution and they continue to reside with the father, table support will become payable until they have completed their first degree or diploma. If the father provides proof that one or both of them are attending school full-time and do not live with the father, the mother shall contribute to s.7 post-secondary expenses (as set out later in these reasons).
B. Should the Court Grant a Retroactive Adjustment of Child Support?
[28] The mother’s income has steadily increased over the past few years. The 2016 order did not have an automatic child support adjustment clause. The father asks that child support be retroactively adjusted as a result.
[29] The mother’s income was as follows:
a. 2015 income: $47,926.40;
b. 2016 income: $49,780.28;
c. 2017 income: $52,981.52;
d. 2018 income: $54,853.56;
e. 2019 income: $57,038.58.
[30] The father states that child support was ordered based on the mother’s estimated annual income for 2016 of $45,600. He states that she actually earned $48,700 that year, so support was underpaid.
[31] The mother states that, at the time of the 2016 order, the father was in arrears of child support of approximately $20,000. The father paid $10,000 towards those arrears. She states that the consent order contemplated that she would have a one-year break from paying child support, and that ongoing support after one year was reduced to $870 per month to compensate for the remainder of the arrears.
[32] Although the mother may have interpreted the lesser amount of child support as some sort of compensation for the father’s substantial arrears, the one-year child support holiday from the date of the order effectively wiped out the remaining arrears that she was owed. There is no evidence to support the mother’s stated belief that the parties agreed she would pay less child support as a deliberate gesture to compensate for the arrears. Child support is the right of the child, and the mother should have adjusted support when her income increased each year.
[33] The mother’s increased income is a material change in circumstances. The mother brought her Motion to Change seeking to set child support and the father sought to adjust the support retroactively in his Answer. Thus, both parties placed the table support amount in issue and adjustments are reasonable.
[34] During submissions, counsel for the mother submitted that retroactive child support should be based on the previous year’s income. I do not agree. Where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for that year. The most current information must be used: Vanos v. Vanos, 2010 ONCA 876.
[35] The parties agree that the mother has paid $870 per month in child support at the end of each month for more than two years, and continues to do so. The table child support should be retroactively adjusted, as follows:
| Time Period | # of Children | # of Months | Annual Income | Monthly Child Support Payable | Child Support Paid | Overpayment or Deficit |
|---|---|---|---|---|---|---|
| Feb – Nov 2017 | 3 | 10 | $52,981.52 (2017) | $1,024x10=10,240 | 9,569.98 | -670.02 deficit |
| Dec 2017 | 3 | 1 | $52,981.52 (2017) | $1,040 (Nov22/17 table amt) | 870 | -170 deficit |
| Jan - June 2018 | 3 | 6 | $54,853.56 (2018) | $1,078x6=6468 | 5,220 | -1248 deficit |
| July - Dec 2018 | 2 | 6 | $54,853.56 (2018) | $837x6=5,022 | 5,220 | + 198 overpayment |
| Jan 2019 -June 2020 | 2 | 18 | $57,038.58 (2019) | 870x18=15,660 | 15,660 | 0 |
| July - Sept 2020 | 0 | 3 | ________ | 0 | 2,610 | +2,610 overpayment |
| Total = +719.98 overpayment |
[36] Therefore, the mother overpaid table child support, from February 2017 to October 1, 2020, in the amount of $719.98.
C. What is the Father’s Income?
i. The Father’s Employment
[37] The father works on commission as a financial and mortgage advisor at CIBC. His T4 Statements of Remuneration from CIBC state that his income was as follows:
i. 2017 income: $253,767.47;
ii. 2018 income: $187,316.65.
[38] During the trial, the father produced a year to date paystub, showing that he earned commission income of $95,542.14 to August 24, 2019.
[39] In 2018, the father made several demands, by email, that the mother pay half of James’ post-secondary expenses. As stated previously, the 2016 order was silent regarding post-secondary expenses, so the father’s demands that the mother pay half was without merit. He accused the mother of failing to meet her obligations and “pay her share.” In response, she asked him for his Income Tax Returns and Notices of Assessment. He failed to provide proper financial disclosure, which prevented the mother from determining her proportionate share of these expenses.
[40] As set out above, even after the mother commenced the Motion to Change, the father failed to follow the legal requirements for income disclosure. He breached numerous court orders requiring production of his Income Tax Returns and Notices of Assessment. He has never provided proof that these returns were even filed.
ii. The Father’s Consent to Impute Income
[41] At the start of the trial, the mother brought a motion to strike the father’s pleadings. The father opposed that motion, and stated that he would pay for all of the post-secondary expenses, which (according to the father) would make his income irrelevant. The court advised the father that this position was not satisfactory, as the court had found his income to be relevant.
[42] At that point, and on his own volition, the father suggested that the court could impute his income at $300,000 per year. He made this concession at the start of the trial and stated that he would consent to the imputation of his income at that figure. As a result of this suggestion raised by the father, and with the consent of the mother, the court made a final order as follows:
The court imputes the Respondent’s [father’s] income at $300,000 for the 2016, 2017 and 2018 taxation years.
The parties shall share in the health, dental and post-secondary s. 7 expenses, proportionate to income, for the three children...The Respondent’s [father’s] income is imputed at $300,000 and the Applicant’s [mother’s] income is $54,853. For purposes of retroactive (commencing in 2018) and ongoing expenses, the Respondent [father] shall pay 85% and the Applicant [mother] shall pay 15% of those expenses.
The Respondent’s [father’s] income shall continue to be imputed at $300,000 commencing in 2019 and ongoing, until such time as the Respondent provides a full tax return and attachments (with proof that it has been filed) and all Notices of Assessment and Reassessment for 2019 and subsequent years.
[43] The father’s concession regarding imputation of income and the consent final order that was made should have brought an end to any discussion about his income level and the sharing of post-secondary expenses. However, as discussed below, the father later sought to revisit this order.
iii. The Father’s Changed Position Regarding Imputation of Income
[44] The trial did not finish during the scheduled time and was adjourned. A short time before the return date in November of 2019, the father emailed the court and stated that he was being treated for pneumonia and heart failure, and needed an adjournment. At the court’s request, the father provided a medical note dated November 25, 2019, stating that he was admitted to the hospital under the care of cardiology services. The letter stated that he would require hospitalization for several days to undergo medical therapies and diagnostic investigations. This is the only doctor’s note that the father ever provided to the court.
[45] The trial was adjourned and was set to recommence in July of 2020. Shortly before the return date, the father requested an adjournment stating that he had an upcoming heart procedure. The court requested a doctor’s note, but none was ever provided and the trial proceeded on the scheduled dates.
[46] On the last day of trial in July 2020, the father objected to the imputation of income and sought to withdraw his consent to that order. The father did not bring a motion to set aside or vary the consent order which imputed income.
[47] The father stated that he was on disability and was unable to work because of congestive heart failure. However, he provided no proof of his current health issues, except for a document from his employer stating that he had been absent from work for more than five consecutive business days and that he had received Short-Term Disability benefits for a few weeks in June of 2020. The father stated that he was undergoing a heart catheterization on August 11, 2020, and he brought an email from a health-care provider asking him to get blood work done prior to his “cath”. There is no documentation explaining what a “cath” is, what the recovery time might be for that procedure, or any other explanation regarding his health condition.
[48] Since the father now objects to the imputation of income, I shall consider the legal principles regarding imputation in more detail.
iv. Legal Principles Regarding Imputation of Income
[49] A parent who is served with an application seeking child support and whose income information is necessary to determine the amount of the order must provide the court and the other parent with copies of their personal Income Tax Returns, including attachments, for each of the three most recent taxation years; and copies of every Notice of Assessment and Reassessment issued to the parent for each of those years: Guidelines, s.21. When a parent is under a legal obligation to provide income information and fails to do so, the court may impute income to the parent as it considers appropriate: Guidelines, s.19(1).
[50] It is critically important that parties disclose relevant financial information in family law cases. The duty to disclose is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras. 11-12.
[51] When imputation of income is raised, a party has a positive obligation to respond to reasonable inquiries by disclosing information and evidence in support of their position respecting their income, including why income should not be imputed to them. This obligation is implicit in and flows from s. 19(1) of the Guidelines. It also arises from the general obligation in all cases to disclose information that is relevant and material: R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 (Ont. C.A.).
[52] The imputation of income is a fact-driven exercise that turns on the unique circumstances of the case. Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. In carrying out this exercise, the court must take into consideration the purposes of the Guidelines and must arrive at a figure that is reasonable based on the evidence before the court: Fraser v. Fraser, 2013 ONCA 715, 311 O.A.C. 351.
[53] The process of imputing income is not an exact science, particularly when the evidence before the court is imprecise or incomplete: Valley v. Hay, 2019 ONCA 770.
[54] A party seeking to impute income must provide an evidentiary basis for the imputation and quantum of income sought to be imputed. Here, the evidentiary basis is the father’s own admission at the start of the trial that $300,000 was appropriate.
[55] If a party alleges that their health needs impact their ability to earn income, that party must adduce credible evidence of both the health-related challenge and its impact on their ability to earn income. The fact that the party is in receipt of disability benefits will not necessarily in and of itself be sufficient to avoid the imputation of income, as the court must carry out its own assessment based on all the evidence before it: Kandola v. Kandola, 2016 BCSC 1443, aff’d 2017 BCCA 235; Coad v. Coad, 2017 ONCA 173.
v. Imputation of the Father’s Income
[56] The mother’s motion to strike the father’s pleadings was dismissed. The court drew an adverse inference against the father because he had not served and filed his 2016, 2017 and 2018 Tax Returns and Notices of Assessment, contrary to both the Rules and previous court orders. The adverse inference is that the taxation information would not be favourable to the father’s position.
[57] At the outset of trial, the father suggested that the court impute his income and volunteered the amount of $300,000. Presumably, he believed there was a valid basis for imputing that amount. This raises more questions for the court in terms of the financial disclosure that he has failed to provide. The father’s income was substantial and it fluctuated because it was commission income. He earned more than $250,000 at CIBC in 2017.
[58] In light of the adverse inference drawn and the evidence before the court, it is reasonable and appropriate to impute income of $300,000 to the father.
[59] As set out above, the court has concerns regarding the father’s credibility. Although the father now challenges the imputation of income, he has failed to provide adequate evidence of his health issue and how it might restrict his ability to earn income. The document dealing with the Short-Term Disability Benefits does not establish that he has been assessed as having a long-term disability, nor is it sufficient evidence that the father is unable to work because of a medical condition. The court has repeatedly told the father about his obligation to provide evidence to support his case. The documents regarding his purported health issue were wholly deficient. I decline to set aside or vary the consent order imputing income.
D. How Should the Parties Share Post-Secondary Expenses?
i. Legal Principles Regarding Section 7 Expenses
[60] The mother wishes to financially support the children for their post-secondary education, and seeks an order setting out how the parties are to determine s. 7 post-secondary expenses.
[61] In a child support order, the court may, on either spouse’s request, provide for an amount to cover post-secondary 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: Guidelines, s.7.
[62] Child support is the right of the child. Although the father stated (at the start of the trial) that he does not want any contribution from the mother, it is entirely appropriate for the court to determine how the parties are to share the post-secondary expenses. The court has already made an order regarding the parties’ proportionate share of post-secondary expenses pursuant to s. 7.
[63] The parties agree that the children’s summer earnings were not substantial. Neither party seeks contribution from the children to calculate post-secondary expenses.
ii. The Alleged “Children’s Account”
[64] The father testified that the mother had control of a trust account for the children that represented monetary gifts from friends and family received since the children were babies. He estimates that, in 2007, the account had at least $6,000 in it. The father did not know what type of account it was, nor did he look at the bank books to confirm that the account was in the mother’s name. He seeks an accounting for this account.
[65] The mother testified that she did not have an account in trust for the children. She stated that her aunt Barbara set up a bank account for the children in her own name and made $25 deposits at birthdays and Christmas. When the children decided to live with the father, Barbara cashed out the account and gave $3,500 to the mother. The mother states that she deposited the money into the children’s RESP account, and divided it into equal portions for each child.
[66] The mother produced account statements for an RESP account that she set up for the children, which shows that a $3,500 deposit was made in December 2016 and divided three ways. From March 2014 to December 2018, the mother paid $100 per month into this RESP account.
[67] As set out above, I have concerns regarding the father’s credibility. Where the evidence of the parties differs, I prefer the evidence of the mother. I do not accept the father’s evidence regarding the children’s account and I decline to make any order for accounting.
iii. Father’s Request for Lump Sum Payment by the Mother
[68] In his response to the Motion to Change, the father asks the court to order the mother to pay a lump sum of $5,000 for each child’s post-secondary education, to be used as his discretion. He did not make any submissions with respect to this request at trial. I presume that this payment is intended to replace the usual sharing of expenses contemplated by s. 7.
[69] To the extent that the father still seeks this order, I decline to grant it. The calculation of each parent’s proportionate share pursuant to s. 7 is appropriate and, in this case, should not be replaced by lump sum payments made from one parent to another.
iv. Contributions Made by the Parties to James’ Post-Secondary Expenses
[70] The mother made significant payments toward James’ schooling, and made those payments directly to Algonquin College.
[71] On August 31, 2018, the father and James opened a joint CIBC Education Line of Credit of $15,000. The father and James are jointly liable for the balance on the Line of Credit. As of March 6, 2019, the balance on that Line of Credit exceeded $15,000. The father states that he has been making minimum payments. It is unclear where all the money went.
[72] According to Algonquin College records, the parties made total payments of $13,577.57 to the College, which can be broken down as follows:
i. Mother - $6,380 (including money from the RESP fund); and
ii. Father - $7,197.57 (the father paid a $500 deposit, and the rest of the money came from Line of Credit or unknown sources).
The Algonquin College records state that James still owes $2,555 in residence fees and $790 in parking fees.
[73] At the outset of the trial, and on consent, I determined that the mother’s proportionate share of s. 7 post-secondary expenses was 15% and the father’s share was 85%. In dollars, the mother’s share of James’ post-secondary expenses is $2,036.64 and the father’s share is $11,540.93. The mother has therefore overpaid post-secondary expenses for James in the amount of $4,343.36.
[74] As set out above, the mother has overpaid $719.98 in table child support and $4,343.36 in post-secondary expenses. When added together, the total amount of her overpayment is $5,063.34.
[75] The mother is seeking that the amount of the overpayment be ordered to be credited toward her future child support obligations, if any. The following factors are relevant considerations in a case where a parent claims an overpayment:
The amount of the overpayment;
The overall financial situation of the parties, including their incomes and net worth;
Whether an order requiring repayment of all or part of the overpayment would cause hardship, including any impact on the child;
Whether an order releasing the recipient from repaying the overpayment would result in hardship for the other party; and
Any evidence of blameworthy conduct on the part of either party relevant to the overpayment issue.
Meyer v. Content, 2014 ONSC 6001, at para. 100.
[76] Prior to making payments directly to Algonquin College, the mother sent numerous emails to the father seeking financial information in order to determine her share of James’ post-secondary expenses. When she did not receive the information that she required, she brought a Motion to Change. She made the payments to Algonquin College in good faith to allow James to continue his chosen field of study.
[77] The father has consistently made significant earnings. His unsworn financial statement from February 2019 discloses that he owns several significant assets including a luxury vehicle and a boat, in addition to accounts and a pension, with a total value of $275,000.
[78] An order that the mother be credited for an overpayment would not cause hardship. The mother did not delay in seeking a child support amendment: James started attending Algonquin College in September of 2018, and the mother’s Motion to Change was issued on June 13, 2018. The father has engaged in blameworthy behaviour by failing to abide by multiple court orders and disclosure obligations generally. An order that the overpayment be credited toward future child support payments is appropriate and just in the circumstances.
v. Outstanding Line of Credit Balance
[79] Co-signing a joint line of credit does not satisfy a parent’s obligation to contribute to s.7 post-secondary expenses. By doing so, the father effectively offloaded his financial obligation onto the child. At trial, he did not propose a plan to repay the $15,000 balance owed.
[80] The father is capable of paying off a portion of the line of credit so that James would not be burdened with this debt. The father’s portion of James’ post-secondary expenses is $11,540.93. I have directed the father to repay $4,343.36 for the mother’s overpayment. The father shall pay down $7,197.57 on the outstanding line of credit balance as his contribution to James’ s.7 post-secondary expenses.
E. What Order Should Be Made Regarding Ryan’s Braces?
[81] In April 2018, it was recommended that Ryan undergo significant orthodontic work. Although the parties agree that Ryan wants the dental work done, they disagree about the procedure for making such a claim to their health benefits providers. The father has taken no steps to obtain braces for Ryan.
[82] The mother asked the father to claim the dental expense on his benefits plan first, since his birthday fell earlier in the year. She submitted that she would claim it on her own benefits next, and whatever was left over would be divided on a pro rata basis. In response, the father stated that she must participate in a “joint claim”. The father has provided no evidence (or explanation) of what a joint claim is or whether it even exists. It appears that he simply wanted assurance that the mother would make a claim on her own health plan for the difference.
[83] The father shall submit the claim and provide the mother with the paperwork so she can then submit the claim. The parties thereafter will share the remaining cost as a s. 7 expense proportionate to their incomes, with the father paying 85% and the mother paying 15% of the expense.
IV. COSTS
[84] In the event that the parties cannot agree as to costs, they are directed to provide written submissions. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle. The mother shall provide costs submissions by October 16, 2020; and the father shall provide any response by October 30, 2020.
[85] In the event that submissions are not received from either party by October 30, 2020, costs shall be deemed settled. Costs submissions shall be filed by email to Kitchener.Superior.Court@ontario.ca, and marked for the attention of Justice Braid.
V. ORDERS
[86] For all these reasons, the court makes the following orders on a final basis:
- The first portion of Paragraph 15 of the Order of Broad J. dated February 2, 2016, which states:
The Applicant shall pay to the Respondent table child support only in the current amount of $870 per month commencing February 1, 2017 and monthly thereafter;
Is varied as follows:
i. Effective June 30, 2018, the Applicant mother’s obligation to pay child support for the child James Robert Schultz (“James”), born October 4, 1999, is terminated.
ii. From July 1, 2018 until December 1, 2018, on the first day of each month, the Applicant mother shall pay child support to the Respondent father for two children, Cooper Schultz (“Cooper”) and Ryan Schultz (“Ryan”), both born February 10, 2002, in the amount of $837.00 per month, based on her 2018 income of $54,853.00 and in accordance with the Child Support Guidelines.
iii. From January 1, 2019 until June 1, 2020, on the first day of each month, the Applicant mother shall pay child support to the Respondent father for two children, Cooper and Ryan, in the amount of $870.00 per month, based on her 2019 income of $57,038.58 and in accordance with the Child Support Guidelines.
iv. Effective June 30, 2020, the mother’s obligation to pay child support to the father for Cooper and Ryan is terminated.
v. Child support will become payable for Cooper and/or Ryan if the following occurs:
a. Cooper and/or Ryan resume full time studies; and
b. The father provides the mother with proof from an educational institution that Cooper and/or Ryan are enrolled in full-time studies; and
c. Cooper and/or Ryan continue to reside with the father.
vi. If the father provides evidence that Cooper and/or Ryan is enrolled in school full-time and residing with the father, the mother shall pay Child Support Guidelines support for each child until he has completed his first degree or diploma, in accordance with the Guidelines amount based on her 2019 income of $57,038.58.
The mother’s overpayment of support, as at October 1, 2020, shall be set at $5,063.34, which shall be credited to the mother’s future child support obligations.
The father shall pay $7,197.57 towards the CIBC line of credit bearing account number 04252-18-92533, and shall arrange for the credit available on the line of credit to be reduced by that amount.
The father shall immediately advise the mother in writing if any of the children become enrolled in a full-time post secondary program in the future, and he shall further provide full particulars to the mother in writing including the name of the school, duration of the program, and whether the child will reside with the father during the course of studies. In addition, the father shall provide proof of full-time enrollment to the mother forthwith upon the child’s enrollment in such program.
Commencing May 1, 2018, the parties shall be proportionately responsible for any post-secondary expenses related to the children, set out as follows:
a. “Post-secondary expenses” shall be limited to the children’s tuition, meal plan, books and reasonable residence fees not covered through the child’s scholarships, bursaries, OSAP, or grants;
b. It is presumed that these expenses will only be covered by the parties for the duration of the 8 months of the academic year, unless the child also enrolls in a summer semester on a full-time basis;
c. Before calculating each party’s share, the father shall disclose all information regarding the child’s receipt or entitlement to any scholarships, bursaries, OSAP, or grants; and
d. Thereafter, the parties shall calculate their proportionate share for the remaining portion of the post-secondary expenses, based on their incomes in the preceding year as outlined in the line 150 income on their Notices of Assessment, or in the event that the father fails to provide his income disclosure (defined as Notice of Assessment, Income Tax Return and most recent Paystub), then the father’s share shall be calculated based on an imputed income of $300,000 as set out in the Order of Braid J. dated October 1, 2019.
e. The parties may contribute their share to the educational institution directly, rather than to the other party. If they do so, they must provide proof of the contribution to the other party and to the child.
The father shall initiate the process for Ryan to receive orthodontic treatment no later than 30 days from today’s date. The father shall cooperate with submitting the expense of such orthodontic treatment to his medical benefits carrier first, and thereafter, provide all necessary information for the mother to submit the remainder of the expense through her medical benefits carrier. Whatever amount is not covered through either parties’ benefits shall be apportioned based on the Order of Braid J. dated October 1, 2019, with the mother being responsible for 15% and the father being responsible for 85% of the orthodontic costs.
All other claims are dismissed.
The parties shall exchange their Notices of Assessment via email by no later than June 1st of each year, while the children are still children of the marriage, including while the children have post-secondary expenses. In the event that the father fails to abide by this term of the Order, income shall be imputed to him in the amount of $300,000 annually pursuant to the Order of Braid J. dated October 2, 2019.
The costs orders owing by the father to the mother, including the Orders of July 20, 2018, June 19, 2019 and October 1, 2019, shall be paid to the mother by October 30, 2020, failing which such costs shall be enforced by the Family Responsibility Office.
A Support Deduction Order shall be issued.
Approval of the Order by the father is hereby waived.
_______________________________
Braid, J.
Released: October 1, 2020
COURT FILE NO.: 41469-08 (01)
DATE: 2020-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KELLY LYN TAYLOR
- and –
JOHN ROBERT SCHULTZ
spondent
JUDGMENT
CDB
Released: October 1, 2020