COURT FILE NO.: 299/14 DATE: 2021-03-12

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Jane Anne Cervi Applicant – and – Iain Ross Buchanan McDonald Respondent

Counsel: Virginia Workman, for the Applicant Christopher Hiebert, for the Respondent

HEARD: February 16, 17, 18, & 19, 2021

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR JUDGMENT

INTRODUCTION

[1] Both the applicant and the respondent brought motions to change the final order in this proceeding. This is my decision after a trial of the issues raised by the motions.

[2] The motions collectively relate to the respondent’s obligation to pay child support to the applicant for the parties’ two children, Alexandrea Jane McDonald (“Alex”) born September 30, 2000, and Abigail Leigh McDonald (“Abi”) born November 3, 2001. The broad issues are the respondent’s obligation to contribute to the education expenses for both children, and the respondent’s obligation to pay monthly child support.

BACKGROUND FACTS

[3] The applicant and the respondent were married in June 1999 and separated in 2004. They were divorced in 2006, and both parties have re-partnered.

[4] The parties initially resolved their matrimonial issues by way of a separation agreement. In 2014 the applicant commenced court proceedings that resulted in two separate final orders.

[5] The final order of Reid J. dated May 23, 2017 (“the 2017 Order”), made on consent pursuant to minutes of settlement, dealt with the parenting issues. The 2017 Order provides that the parties shall have joint custody of the two children and that the children’s primary residence shall be with the applicant. The respondent was granted access to the children on alternate weekends.

[6] In fact, the respondent has not exercised access to the children on alternate weekends. The respondent has generally seen the children three or four times per year over dinner, and there have been communications between the respondent and the children by way of text messages and phone calls. In the present motions, the parties do not request any change to the 2017 Order.

[7] The order that is the subject of these motions to change is the final order of MacPherson J. regarding the financial issues, dated October 19, 2016, (“the 2016 Order”), which was also made on consent pursuant to minutes of settlement. The 2016 Order provides that the respondent shall pay monthly child support for the two children in the amount of $1,714 per month, based on his 2015 income of $124,448.

[8] The 2016 Order further provides that monthly child support is to be adjusted annually on June 1st each year and will be based on the parties’ incomes for the preceding calendar year. Since 2016 the monthly child support payments have been adjusted annually, although the parties now disagree about several aspects of the adjustments.

[9] The 2016 Order also contains provisions with respect to s. 7 expenses. Paragraph 4 of the 2016 Order reads, in part, as follows:

Based on the above disclosure, the Respondent’s obligation to contribute to Section 7 expenses of the children would be 80%. Notwithstanding this calculation, in 2016 the parties shall share equally the children’s extra-ordinary Section 7 expenses … This obligation including the issue of the percentage of each parties (sic) contribution shall be reviewed annually de novo at the time that the obligation to contribute to table support is reviewed.

[10] Since the 2016 Order was made, the more routine s. 7 expenses for the children, such as expenses for extracurricular activities, have been divided equally between the parties. The percentage contribution of each party to s. 7 expenses has not been reviewed or changed since the 2016 Order was made.

[11] The 2016 Order, at para. 8, also contains provisions for the children’s education expenses. The first part of para. 8 reads as follows:

If either child moves away from home in order to obtain a post-secondary education or each party is contributing to the child’s post-secondary educational expenses, the Table amount of child support shall be reviewed. In determining the amount of the expense for the child’s post-secondary educational costs, the eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense shall be taken into account. The subsidy shall include scholarships and grants. The Applicant and Respondent shall then share the remaining expense after a deduction from the expense is made for a reasonable contribution by the child for their post-secondary expenses.

[12] A dispute arose when the oldest child, Alex, chose to attend Merrimack College (“Merrimack”) in Massachusetts for her post-secondary education. Alex graduated from Beamsville District Secondary School in the spring of 2018 and accepted an offer to attend Merrimack commencing in September 2018. Based on her involvement in field hockey, Merrimack offered Alex a scholarship of $25,000 per year, but the remaining expenses for tuition, meals, residence and incidentals at Merrimack exceeded the costs of attending an Ontario university. In general terms, after accounting for the scholarship, Alex’s education expenses for attending Merrimack amounted to approximately another $30,000 (U.S.) per year.

[13] Alex played field hockey on her high school field hockey team during grades 10, 11, and 12. During the same time period Alex also played on an elite field hockey team at A&C Field Hockey Academy in Brampton. A&C Academy is a preparatory program designed to assist athletes who wish to play field hockey at a higher level, or on a university field hockey team.

[14] Alex’s participation in the A&C Academy program required her to attend in Brampton or Oakville approximately twice per week for training and on weekends for games. Through A&C Academy, she also attended several showcase tournaments, one of which was in Florida, which were designed to attract the attention of NCAA schools in the United States. It was through her participation in field hockey that Alex came to the attention of Merrimack.

[15] Despite applying to some Ontario universities and colleges, I accept Alex’s evidence that she was determined to pursue her post-secondary education at a U.S. school at which she could play field hockey. Alex ultimately accepted Merrimack’s offer to enrol in Merrimack’s psychology program, which will lead to a Bachelor of Arts degree. Her scholarship was conditional on Alex playing field hockey for the school team.

[16] The respondent was aware of Alex’s field hockey activities and her desire to attend a post-secondary school in the United States where she could play field hockey. However, the respondent was opposed to Alex attending school outside of Ontario and he conveyed this message to Alex and to the applicant. It was the respondent’s position that the cost of attending a U.S. school was prohibitive. I find that the respondent specifically informed the applicant that he could not afford to pay for Alex’s education at a U.S. school unless Alex achieved a full scholarship.

[17] On these motions, in order to allow for the respondent’s position that the costs of attending a U.S. school were prohibitive, the parties have agreed that the respondent’s contribution to Alex’s education expenses at Merrimack would be based on the notional expenses that would have been incurred if Alex had decided to attend an Ontario university. The parties have chosen York University as a suitable comparator for this purpose. Therefore, the court received evidence as to the expected education expenses of a student attending the undergraduate psychology program at York University. Despite this concession, there is still some dispute as to the notional expenses of attending an Ontario university.

[18] Alex has continued to attend Merrimack and is now in her third year of the psychology program. She returned to live with the applicant in Ontario during the summers after each of her first and second years. During those summer months Alex obtained some modest summer employment, but she also spent considerable time playing competitive field hockey, which limited her employability.

[19] Complicating matters, in March 2020 the Covid-19 pandemic disrupted Alex’s schooling. At March Break in 2020 Alex returned to the applicant’s home and thereafter remained living with the applicant rather than return to the Merrimack campus. She completed the balance of her spring term at Merrimack on-line. Alex physically returned to Merrimack in late August 2020, but difficulties relating to the Covid-19 pandemic eventually forced her to again return to live at the applicant’s home in November 2020. Alex continues to live with the applicant and has not returned to the Merrimack campus. Alex continues to do all of her courses at Merrimack on-line.

[20] The parties’ youngest child, Abi, graduated from high school in the spring of 2019. She initially accepted an offer to attend Guelph University in September 2019, but she later decided to not attend university that fall. Instead, in September 2019 Abi returned to high school for a second grade 12 year; however, by the end of October 2019, Abi decided to leave high school permanently. Thereafter, Abi was employed as a cashier on a full-time basis for approximately one year. The parties refer to this hiatus as Abi’s “gap year.” At all relevant times Abi lived at home with the applicant.

[21] Abi accepted an offer to attend Brock University (“Brock”) starting in September 2020 in the concurrent education program. She is now in her first year in that program. She continues to live at home with the applicant, and she continues to work part-time as a cashier. During 2020, Abi earned approximately $16,151 gross.

[22] The respondent has made some payments toward the education expenses of both children, but the applicant submits that the respondent’s financial contributions do not fulfil his obligations. Therefore, the applicant requests an order that the respondent reimburse the applicant for his proportionate share of the children’s education expenses, with credit for payments already made by the respondent, retroactive to September 2018.

[23] Regarding monthly child support, there are disputes that relate to both Alex and Abi. When Alex was living away from home while attending school at Merrimack from September to May the respondent did not pay any monthly child support for Alex; however, the respondent did paid “summer support” for the four summer months while Alex was living with the applicant. In addition, the respondent did not pay any child support for Abi from November 2019 to August 2020, while Abi was not in school. The applicant submits that the respondent has underpaid monthly child support for both children, but the respondent submits that he has in fact overpaid monthly child support.

THE POSITIONS OF THE PARTIES

[24] Regarding Alex’s education expenses, the parties agree on the general concept that the respondent’s proportionate share should be based on the notional education expenses that would have been incurred if Alex had attended York University.

[25] However, the parties do not agree on the specific amount of the notional expenses of attending York University. In particular, they disagree on the costs of a meal plan, and they disagree as to whether Alex’s personal expenses, for items such as snacks, toiletries, and incidentals, should be included as education expenses.

[26] The parties agree that Alex would have been eligible for OSAP grants in her first two years at York University, and they agree that those amounts should be deducted from the notional expenses of attending York University. The parties disagree as to whether Alex’s eligibility for OSAP loans should be deducted from the total education expenses before the expenses are apportioned.

[27] The parties further disagree as to the extent of the financial contribution to her own education expenses that should be expected from Alex.

[28] Finally, on this point, once Alex’s net education expense has been calculated, the parties disagree as to how that expense should be divided between them. The parties now agree that the education expense should be divided on a pro rata basis in accordance with income, and that this will necessitate a change to the 2016 Order. The parties, however, do not agree on the amount of their proportionate shares, primarily because they disagree on the applicant’s income for the purpose of calculating apportionment.

[29] Regarding Abi’s education expenses, there is no need for a notional comparator because the expenses for her education at Brock are actual expenses, not notional expenses. However, the parties disagree on many of the same issues that relate to Alex’s education expenses, including the financial contribution that should be expected from Abi and the pro rata shares of the parties.

[30] Regarding monthly support for the children, the parties acknowledge that adjustments should be made annually because of fluctuations in the respondent’s income. The parties have attempted to make these adjustments, but there are still some disagreements.

[31] The applicant submits that the respondent should have paid monthly child support for Abi during her gap year, and she submits that the respondent should have paid some support for Alex while Alex attended school at Merrimack. The respondent submits that he was not obliged to pay monthly child support for Abi’s gap year, or for the time during which Alex was attending school at Merrimack.

[32] Furthermore, both parties reference the interplay between education expenses and monthly child support. For example, if a child’s personal expenses form part of her education expenses, then there is a reduced need for monthly child support payments. Conversely, if a child’s personal expenses are not covered as an education expense, then there may be a need for greater monthly child support during the school year.

ANALYSIS

The Respondent’s Income

[33] The 2016 Order provides that any adjustment to monthly child support or s. 7 expenses is to be effective as of June 1st each year based upon the parties’ incomes for the preceding calendar year.

[34] The parties have agreed that the respondent’s income for the relevant calendar years is as follows:

2017 - $128,610 2018 - $109,095 2019 - $102,884 2020 - $ 90,220

The Applicant’s Income

[35] The applicant has been self-employed operating a successful daycare business from her home for many years. Every year the applicant properly filed her income tax return and included a Statement of Business Activities that set out the income and expenses for her daycare business.

[36] The parties agree that the net business income shown in the applicant’s tax returns does not accurately reflect the financial benefit that the applicant received from her daycare business. Therefore, the parties agree that this court should exercise its discretion under s. 19 of the Child Support Guidelines (Ontario) to impute an income to the applicant by adding back certain business expenses that were deducted for tax purposes.

[37] Although these business expenses were lawfully deducted from the gross income of the daycare business for tax purposes, the usual approach is that, for child support purposes, certain business expense deductions should be added back to the party’s net income if the business expense is not an out-of-pocket expense or if the party derives a personal benefit from that expense. I accept that this approach should be applied in the present case.

[38] In her 2017 tax return, the applicant declared net business income from her daycare business, as well as a net loss from another business known as Just Wrecks.

[39] Regarding the daycare business, the Statement of Business Activities shows gross income of $36,391, with business expense deductions in excess of $20,000, leaving net business income for the daycare business of $16,249.

[40] I accept that many of the business expenses shown on the Statement of Business Activities are actual expenses that were necessary for the operation of the applicant’s daycare, including groceries for meals that she provided for the children; general supplies such as cleaning products, hygiene products and diapers; business taxes and licences; and office supplies such as stationery, ink and crafts. These expenses should not be added back to the applicant’s net income.

[41] I will also not add back the clothing expense for 2017. Although clothing may be perceived to be a personal benefit, I find that the applicant only claimed a clothing expense in one year, and that was for outdoor clothing that the applicant testified she required when she spent time outdoors with the children. This is an acceptable one-time expense for child support purposes.

[42] Therefore, in 2017 I will add back the business expense deductions for property taxes, utilities, and fuel, which total $4,798. I will also add back the deduction of 40 per cent of the maintenance and mortgage interest costs associated with the home in the total amount of $5,693. If I add these amounts to the taxable net income from the daycare business, I find that the applicant’s income from the daycare business for child support purposes for 2017 is $26,740.

[43] Also, in 2017 and in other years, the applicant was involved as a 50 per cent owner of the business known as Just Wrecks. Just Wrecks buys vehicles and trailers that had been written off by insurance companies and resells them. It is a modest business that is primarily operated by the applicant’s partner. I accept that the applicant has little knowledge of this business, but, as a 50 per cent owner, she is required to declare the income or loss from that business on her income tax returns. In her 2017 income tax return the applicant declared a net loss of $3,160, which represents 50 per cent of the net loss of Just Wrecks.

[44] I find that the applicant was not out-of-pocket because of her involvement with Just Wrecks. Therefore, for child support purposes I will not allow the applicant to set off the Just Wrecks’ loss against her income from the daycare. Therefore, I find that the applicant’s total income for child support purposes for 2017 is $26,740.

[45] In her 2018 tax return, the applicant also declared net business income from the daycare business and a net loss from Just Wrecks. Again, I will not permit the loss from Just Wrecks to be set off against other income for child support purposes.

[46] Regarding the 2018 daycare business, the applicant declared gross income of $32,545 and net income of $6,428. I will add back the business expense deductions for property tax, other utilities, and repairs in the total amount of $4,418. Also, I find that the office expense that is claimed in two different parts of the Statement of Business Activities is excessively high, and therefore I will add back 50 per cent of the office expense otherwise deducted in the total amount of $2,510. I also add back the deduction of 40 per cent of the costs of the home that in 2018 included heat, electricity, maintenance, insurance, and mortgage interest in the total amount of $13,175.

[47] In total for 2018, I will add back business expense deductions of $20,103. Therefore, I find that the applicant’s net income for child support purposes in 2018 is $26,531.

[48] In her 2019 tax return, the applicant did not declare any income or loss from the daycare business as she closed the business in December 2018. In January 2019 the applicant took a temporary job as an early childhood educator with the local school board. She worked for the school board for the entire calendar year, except for the summer months.

[49] In 2019 the applicant’s tax return showed income from employment of $29,079, employment insurance benefits of $3,131, and net business income from Just Wrecks of $6,462. All of these amounts will be included in her income for 2019 for child support purposes in the total amount of $38,672.

[50] In summary, I find that the applicant’s income for child support purposes for the relevant calendar years is as follows:

2017 - $26,740 2018 - $26,531 2019 - $38,672

Education Expenses – General Principles

[51] Section 7 of the Child Support Guidelines (Ontario) reads as follows:

7 (1) In an order for the support of a child, the court may, on the request of either parent or spouse, … provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(e) expenses for post-secondary education; and

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[52] The 2016 Order makes it clear that the parties had contemplated that both children would attend a post-secondary institution, that the parties would each contribute money toward the education expenses of the children, that certain deductions would be made from the overall education expenses, and that the children would contribute to their own education expenses. In my view, the 2016 Order establishes a general method for calculating contributions to the education expenses, but it is not a specific formula. Therefore, the 2016 Order will be interpreted in accordance with the present case law regarding s. 7 expenses.

[53] The first step in any s. 7 analysis for education expenses is to calculate the total costs of the proposed education. Determining the hard costs such as tuition and fees is a relatively easy task, but the court must also consider more subjective expenses such as the costs of accommodations, groceries, meal plans, books, computing equipment, supplies, transportation, and other incidentals.

[54] The next step is to reduce the gross education expenses by the amount of any grants, bursaries, or scholarships that may apply. Section 7 contemplates a financial contribution from the spouses toward the actual out-of-pocket education expenses, and therefore contributions in the form of grants, for example, that will not be repaid will not form part of the education expenses that are shared by the parties.

[55] I find that student loans should not be deducted from the gross education expenses at this stage as there is an obligation on the student to repay a student loan. A loan cannot be equated with a grant or scholarship. See Coghill v. Coghill, [2006] O.J. No. 2602, 30 R.F.L. (6th) 398, at para. 44 (12).

[56] After determining the out-of-pocket education expenses, the court must then assess “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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation.” [Emphasis added]

[57] In most cases, there will be no dispute to the view that a post-secondary education is a necessary expense in the best interests of the child. See Roth v. Roth, 2010 ONSC 2532 at para. 16. In the present case, the parties agree that a post-secondary education is a necessary expense that is in the best interests of the children.

[58] Regarding the reasonableness of the expense, I find that the court is required to consider and balance the means, needs and circumstances of both spouses and the child, and the spending pattern in respect of the child. See the decisions in Lewi v. Lewi, [2006] O.J. No. 1847 (Ont.C.A.) at para. 39, and McMahon v. Hodgson (2002), 25 R.F.L. (5th) 102 at para. 53. In the present case, in light of the parties’ agreement to use the notional expenses that would have been incurred if Alex had attended York University, I find that there is no real dispute about the reasonableness of the post-secondary education expense for either child.

[59] The next step is to consider the obligation of the child to contribute to his/her own education expenses. This is usually a difficult stage of the analysis as there is no precise formula to calculate the child’s contribution. Rather, the court must engage in a balancing act that takes into account the means of both spouses, the means of the child, the family’s spending patterns, the family’s priorities, the nature of the specific education program, and the educational goals of the child.

[60] It is clear that a child will not always be required to contribute to his/her own education expenses. See Lewi at para. 40. It is also clear that a student loan may constitute some or all of a child’s contribution to his/her education expenses; however, it would be an error to compel a child to take out a loan in all cases. See Coghill at para. 44 (12), and Roth at para. 16.

[61] The general rule is stated in Lewi at para. 42 as follows:

As a general rule, an adult child should be required to make a reasonable and meaningful contribution towards post-secondary education expenses. The amount of that contribution will depend on all of the circumstances but must include a consideration of the "means" of the parents and the children.

[62] The final step of the analysis is to apportion the net education expenses, after deducting the grants, bursaries, and scholarships, and after deducting the child’s contribution, between the contributing spouses. Invariably the remaining expense is apportioned pro rata in accordance with the spouses’ respective incomes.

Alex’s Education Expenses

[63] In the present case the court has been asked to determine the respondent’s obligation to contribute to Alex’s education expenses based on the notional expenses that would have been incurred if Alex had attended York University in Toronto. It is clear that Alex’s actual education expenses at Merrimack far exceed her notional expenses for York University, but in order to acknowledge the respondent’s position that a U.S. college education for Alex was financially prohibitive, the applicant has agreed to assess Alex’s education expenses as if Alex had attended York University. In my view, this is a significant concession by the applicant as the excess expense has been borne primarily by the applicant, and in part by Alex through student loans.

[64] Regarding Alex’s first year of post-secondary education (2018/19), the parties rely upon the York University Student Guide for the expected education expenses of a York University student. The parties agree that if Alex had enrolled at York University in the psychology program and had lived in residence, Alex would have incurred education expenses for tuition of $7,743, books of $1,500, and residence fees of $5,713.

[65] The parties disagree with respect to the costs of a meal plan. In my view, given that Alex was a student athlete and would be living away from home for the first time, I will use the figure for the most expensive meal for that year, namely $4,600.

[66] The only other disagreement in Alex’s first year is with respect to Alex’s personal expenses. The York University Student Guide suggests that students should expect to incur approximately $2,500 in personal expenses for what is described as “entertainment and other”. In my view, this expense category would include snacks outside of the meal plan, school supplies, clothing, toiletries, modest entertainment, and incidentals. It would also include the partial costs of a cell phone as I accept that a cell phone is a necessary personal expense for a child living away from home.

[67] Based on this evidence, the applicant submits that $2,500 should be included as an education expense for the purpose of calculating the respondent’s pro rata share. The respondent submits that no amount should be included for the child’s personal expenses because the child should pay for her own personal expenses, or in the alternative, because the respondent’s monthly child support payments constitute his contribution toward this expense.

[68] I acknowledge that a child will incur actual personal expenses while away at university, and that $2,500 for an eight-month school year is a fairly accurate estimate. However, the court must be careful to avoid duplication between the payor’s contribution to s. 7 expenses and the payor’s obligation to make monthly child support payments.

[69] In my view, there are two possible approaches to deal with this issue. In the first approach the court could treat these personal expenses as part of the total education expenses. If so, when a court contemplates the amount of the monthly child support payments, the court must recognize that these personal expenses for the child have already been accounted for in the education expenses. As an alternative, the court could exclude all of the child’s personal expenses from education expenses, and then order monthly child support in an amount that will include an appropriate contribution to these expenses.

[70] In the present case, because of the way in which this family has dealt with child support for the two children, I believe that it is more logical to treat Alex’s personal expenses as education expenses for Alex’s first two school years. Therefore, I will add $2,500 for personal expenses to the total education expenses for Alex for both of those years. As discussed above, I will take this calculation into account when I consider the amount of monthly child support payments.

[71] Therefore, the total education expenses for Alex’s first year are $22,056, which the parties agree should be adjusted downward because the applicant was able to take advantage of the tuition tax deduction. The net amount after adjustment is $21,306.

[72] An OSAP grant would have been available to Alex in her first year in the amount of $4,400, and therefore the amount of Alex’s education expenses should be reduced to $16,906.

[73] Next, the court must consider Alex’s financial contribution. Alex had very limited income from summer employment in both 2018 and 2019. In 2018 her income was approximately $950 and in 2019 it was approximately $1,375. Alex acknowledged that her income was less than it otherwise would have been because she played field hockey in both summers. The evidence suggests, and I accept, that Alex was capable of earning approximately $4,000 each summer as she earned that amount in the summer of 2020 when she was not playing field hockey.

[74] The applicant submits that Alex should not be required to contribute to her own education expenses in her first year in these circumstances. I disagree. If Alex chose to play field hockey and not work full-time during the summers, I will not criticize her decision, but it is a decision that kept Alex from earning money that she could have contributed to her education expenses. In my view, Alex should still be expected to contribute to her own education expenses. If Alex chose not to work significantly in the summers, Alex could have taken out a small student loan in order to make a modest contribution to her own expenses.

[75] Therefore, I find that Alex should be able to contribute $3,000 to her education expenses in her first year. If she had worked in the summer and lived at home, I find that she could have saved most or all of that $3,000. In the alternative, a modest student loan would be reasonable in the circumstances.

[76] Consequently, after deducting the OSAP grant and Alex’s contribution, the net education expense to be shared for Alex’s first year is $13,906. The respondent should contribute 83 per cent (rounded) of this amount on a pro rata basis, in the total amount of $11,541. The respondent has already paid $4,003, leaving a balance owed by the respondent of $7,538.

[77] Regarding Alex’s second year of post-secondary education (2019/20), the parties again agree to use York University as a reasonable comparator. The parties also agree that it is likely that Alex would have lived off campus in her second and third years. The York University Student Guide estimates the costs of living off campus, including rent and groceries, to be $11,000, and that figure was not significantly disputed.

[78] Therefore, Alex’s total education expense in her second year amounts to tuition of $6,981, fees of $86, books of $1,500, living off campus in the amount of $11,000, and personal expenses of $2,500 for a total of $22,067. This amount should be adjusted downward for the tuition tax deduction leaving a net expense of $21,317.

[79] An OSAP grant in the amount of $6,100 was available in Alex’s second year, and I again find that Alex should have contributed $3,000. Thus, the net amount to be shared is $12,217.

[80] The respondent should have paid a pro rata share of 80 per cent for Alex’s second year in the total amount of $9,773. The respondent has already paid $5,011, leaving a balance owed by the respondent of $4,762.

[81] Regarding Alex’s third year of post-secondary education (2020/21), the basic figures are very similar to her second year, with one exception. In retrospect, I must treat Alex’s personal expenses differently for her third year because it appears as if Alex will spend most of her third year living at home with the applicant and attending school on-line. The parties generally agree that full Guideline table support is payable for Alex while she is in this situation. Accordingly, for Alex’s third school year it is more appropriate to remove her personal expenses from her total education expenses and provide support for Alex by way of monthly child support payments.

[82] The total of tuition, books, and living off campus for Alex’s third year is $19,537. Adjusting downward for the tuition tax deduction leaves a total of $18,787. No OSAP grants were available to Alex that year, and again Alex could contribute $3,000, leaving a net amount of $15,787 to be shared.

[83] The respondent should have paid a pro rata share of 73 per cent for Alex’s third year in the total amount of $11,524. The respondent has already paid $5,084, leaving a balance owed by the respondent of $6,440.

Abi’s Education Expenses

[84] Regarding Abi’s education expenses for her first year of post secondary education (2020/21), the evidence is that Abi lives at home with the applicant while attending Brock. She travels to Brock by car for her classes, but she also attends some of her classes on-line from home.

[85] The applicant purchased a car for Abi to use. Abi and Alex share the use of that car, and the applicant pays for the insurance. Abi pays for gas and maintenance for her use of the vehicle.

[86] Abi’s financial situation is different from that of Alex as Abi was employed full-time for a year while she did not attend school. Abi earned gross income in 2020 of $16,150, and to date in 2021 she has earned $1,560. The applicant testified that while Abi was living at home and working full-time, the applicant did not charge her rent, but she told Abi to save $4,000 toward her education expenses, which she did.

[87] The parties agree that the total fees and tuition for Brock amounts to $7,726. There is no evidence that the applicant will be entitled to claim a further tuition tax deduction for Abi’s tuition if the applicant uses the tuition tax deduction for Alex’s tuition. Therefore, I will not make any notional adjustment to this figure for a tuition tax benefit. Abi was not eligible for any grants or scholarships.

[88] Abi testified that during her school year she has been paying for gas and maintenance on the car that she uses, as well as paying for her books and school incidentals. As with Alex, it is appropriate to exclude Abi’s personal expenses from her education expenses for the 2020/21 school year and provide for Abi through monthly child support payments.

[89] Because of her work history, I find that Abi is able to contribute the additional amount of $4,000 toward her fees and tuition expenses, as directed by the applicant. Therefore, I will reduce the total education expenses after the contribution from Abi to $3,726.

[90] The respondent’s pro rata share of this amount is 73 percent or $2,719. He has already paid $500, leaving a balance owed by the respondent of $2,219.

Monthly Child Support

[91] Both parties are requesting adjustments to the monthly child support payments payable by the respondent retroactive to June 1, 2018. The respondent has made monthly child support payments throughout the period in question, and the amounts have been adjusted each year. However, the applicant submits that the respondent has underpaid monthly child support over these years, whereas the respondent submits that he has overpaid.

[92] There are two central issues that relate to monthly child support. The first issue is whether support is payable for Abi during her gap year. The respondent terminated support for Abi in November 2019 when she turned 18 and was not in school. He did not pay any monthly support for Abi until he resumed paying Guideline table support in September 2020.

[93] The second issue is whether support is payable for Alex while Alex was away at school. For each year that Alex was away at school the respondent paid no monthly child support for the eight months of the school year, although he paid child support for the four summer months while Alex was living at home.

[94] Regarding Abi’s gap year, some courts have accepted that if a child is out of school for a short period of time, monthly child support should still continue if the gap or hiatus is part of a reasonable plan of education. The gap in education has been referred to as a “transitional period” in several court decisions. See the decisions in Musgrave v. Musgrave, 2013 ONSC 7481, Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291, and Nikita v. Nikita.

[95] In the Musgrave decision at para. 39 the court found that one of the children should not be penalized for taking off one semester to determine an educational path. Therefore, the court held that monthly support payments were to be continuous through the transitional period.

[96] However, not every hiatus from school can be construed as part of an educational plan. I adopt the statement made in Nikita at para. 12 in reference to the transitional period that “it is transitional only if the hiatus results from a reasonable education plan that has been thought out and put in place prior to the commencement of the transitional period”.

[97] In my view, Abi needed some time to determine her educational path. She initially had a plan to attend Guelph University in September 2019, but she changed that plan and returned to grade 12 that September. Then, Abi changed that plan by the end of October 2019, when she left grade 12. By January 2020, Abi was considering the possibility of attending Brock and living at home. By that point I accept that she was not able to start the concurrent education program at Brock until September 2020.

[98] Given the several changes made by Abi, I accept that it was wise for her to take time off of school, but it cannot be said that the hiatus was part of a well thought out plan that had been put in place prior to leaving school. In my view, taking a full year away from school usually means that the child has broken the chain of dependency that is the basis for child support payments.

[99] I find that Abi made decisions that caused her to leave school, and then to later return to school. Once Abi established that she would be out of school and participating full-time in the workforce, the respondent’s obligation to pay monthly child support ceased. This result is more obvious when one considers the possibility of an overpayment of child support if Abi had chosen not to return to school in September 2020.

[100] That does not mean that the respondent’s obligation to pay monthly child support should terminate immediately at the end of October 2019, as a short adjustment period is appropriate. In these circumstances, I find that the respondent should have continued monthly child support for Abi to and including December 2019. Thereafter, there should be no monthly child support payable for Abi from January 2020 until she returned to school in September 2020.

[101] Regarding child support for Alex while she was away at school, as discussed earlier, I will take into account the fact that the personal expenses for Alex for the eight-month school year have been included in her education expenses for her first two school years, and that the respondent is making a contribution toward Alex’s personal expenses through his pro rata share of the education expenses for those two years.

[102] The respondent accepts that he was obliged to pay full Guideline table support for Alex for the four summer months each year. I find that the respondent was also obliged to make modest monthly support payments while Alex was away at school because the applicant had continuing expenses for Alex during those eight-month periods. Specifically, the applicant had to maintain a room at home for Alex, pay for utilities for portions of the home occupied by Alex, provide for Alex on her return visits from school on holidays and school breaks, and provide other incidentals for Alex. Thus, the respondent is obliged to make some contribution toward those additional expenses that are not associated with Alex’s personal expenses at school.

[103] I note that if the respondent is required to pay a pro rata share in the approximate amount of 80 percent of Alex’s education expenses and if Alex’s education personal expenses are approximately $2,500 per school year, the respondent will in fact be paying a total of $2,000 for Alex’s personal expenses in a school year. Over the eight-month school year, this is the equivalent of $250 per month.

[104] Having reviewed the Child Support Guidelines (Ontario), I find that it would be appropriate for the respondent to pay additional monthly support for Alex at the rate of 25 percent of the Guideline table amounts for the eight months of each of Alex’s first two school years. This partial payment of Guideline table support in combination with a s. 7 contribution toward Alex’s personal expenses at school is reasonable under the circumstances.

[105] In addition, because Alex returned to live at home in mid-March 2020, the respondent should be required to pay full Guideline table support for Alex commencing April 2020. I note that this would create some duplication for the month of April 2020 as the respondent is making a s. 7 contribution to Alex’s personal expenses for the school year that ended in April 2020. Therefore, I will allow a credit to the respondent for his monthly child support payment so that the respondent will pay only 75 percent of the Guideline table amount for Alex in the month of April 2020.

[106] I also note that Alex attempted to return to Merrimack in September 2020, but ultimately returned to live at home in November 2020. Because Alex’s personal expenses were not included in her third year education expenses for s. 7 purposes, it is appropriate for full Guideline table support to be paid for Alex’s entire third school year.

[107] There is no dispute that full Guideline table support is payable for Abi commencing September 2020.

[108] Given my findings, the parties will likely want to use computer software to calculate the proper amount of child support payable since June 1, 2018, and compare it to the actual amount paid. Therefore, I will not perform a month by month calculation of the monthly child support for the children. Instead, I will provide the following directions for the calculation of proper monthly child support retroactive to June 1, 2018:

For the year 2018, full table support is payable for Abi from June to December. For Alex full table support is payable from June to August, and 25 percent is payable for September to December.

For 2019, full table support is payable for Abi from January to December. For Alex full table support is payable from May to August, and 25 percent is payable from January to April and from September to December.

For 2020, no table support is payable for Abi from January to August and full table support is payable from September to December. For Alex 25 percent is payable from January to March, 75 percent is payable for April, and full table support is payable from May to December.

For 2021, full table support is payable for both children.

[109] The parties are to calculate the monthly child support payable in accordance with the aforementioned directions, and the amount determined to be owed by one party to the other will be included in my order. If the parties cannot agree on the amount owed in this respect, they may arrange to return to court to make submissions on this issue.

Other Matters

[110] Both parties made submissions with respect to credit that they should receive for RESP accounts that were used to fund the children’s education. In this case the applicant and the respondent set up separate RESPs, and used the money in those RESPs for the children’s educations. The contributions to the applicant’s RESPs came from the applicant and her family, and the contributions to the respondent’s RESPs came from the respondent and his family.

[111] In the circumstances, I find that any payment out of a RESP will be deemed to be a contribution towards the children’s education from the party who held the RESP account. Therefore, if the respondent made a contribution to the education expenses of one of the children by using the RESP account that he had set up, this will form part of the respondent’s personal contribution to the education expenses of that child.

[112] The respondent also asks for an order that terminates his obligation to contribute to the education expenses of each child four years after that child graduates from high school. There is no reference to a termination date in the 2016 Order, and a termination date was not requested in the pleadings in this matter. Therefore, the respondent’s request for a termination date is dismissed.

CONCLUSION

[113] In summary, an order will go in accordance with the reasons set out herein. The parties may draft a formal order. If there is a dispute as to the wording of the formal order, the parties may arrange to appear before me to make submissions.

[114] If there are any issues arising out of this decision, including costs, I direct that the party seeking relief shall deliver written submissions to the trial coordinator at St. Catharines within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.

J. R. Henderson J. Released: March 12, 2021