COURT FILE NO.: FS-01-1819-02
DATE: 2021 04 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RONALD COX
Applicant
Self-Represented Applicant
- and -
HOLLY STEPHEN (WEBER)
Respondent
Lyle Belkin, for the Respondent
HEARD: October 19-23, 2020
REASONS FOR DECISION
Shaw J.
Overview
[1] The applicant/father, Dr. Cox, seeks an order that he be refunded some of the child support he paid to the respondent/mother, Ms. Webber, for their son’s post-secondary education costs. Their son, Nathan, officially graduated from Guelph University in October 2018, although he completed his course work by the end of August and began to work full time for his current employer in July 2018.
[2] Dr. Cox works full-time as a family doctor at a clinic. Ms. Webber was a nurse and is now retired. They had a five-year relationship but never married or lived together in a common law relationship. Their son was born on January 31, 1996 and is now 24 years of age. He commenced university in September 2014, graduated with a business/marketing degree, and now works full-time. Unfortunately, Nathan and Dr. Cox do not have a relationship and did not speak during the four years that Nathan was at university.
[3] Ms. Webber commenced an application for child support after Nathan was born. That application resulted in a final order dated October 17, 1996, which ordered that Dr. Cox pay child support of $2,100 per month commencing November 1, 1996. The order also set out a number of events that would trigger termination of the support, including a provision that the support would terminate if Nathan was 18 and not in full-time attendance at an educational institution.
[4] The parties each sought to vary that order a number of years later. Those applications were resolved on consent resulting in a second order dated July 12, 2013. The wording of the second order is the focus of this dispute. According to paragraph two of the order, commencing July 1, 2013, Dr. Cox was to pay the table amount of child support calculated at $1,600 per month based on his income of $195,000. As per paragraph four of the order, in addition to the table amount of support, Dr. Cox was to pay 60% of Nathan’s future s. 7 expenses, “including the cost of Nathan’s post-secondary education, future orthodontics, tutoring and ruby and football…” The parties reached this settlement just one year before Nathan started to attend university.
[5] The July 2013 order was silent with respect to what was to be considered a s. 7 expense and how Nathan was to contribute to his education. The heart of this dispute is a determination of what constitutes a s. 7 expense for post-secondary education when Dr. Cox continued to pay the full table amount of support to Ms. Webber, even during the months that Nathan was not living with her while he attended school. There is also an issue with respect to whether Nathan was required to contribute to his own education expenses and, if so, how those contributions were to be applied in calculating Dr. Cox’s share of the post-secondary education expenses.
[6] The second dispute is whether child support should have terminated prior to October 2018, as Dr. Cox claims that evidence disclosed during the course of this litigation suggests that Nathan was no longer living with Ms. Webber after July 2017. Alternatively, Dr. Cox claims that the support should have ended in April 2018 and not in October 2018, as Nathan was only in part-time attendance at school between May and August 2018 and, thus, no longer entitled to child support as per the October 17, 1996 order.
[7] This is not an application where the court is being asked to consider if there was a material change in circumstances enabling Dr. Cox to seek a variation of the existing order. Rather, this is an application that focuses on the interpretation of the existing order and what constitutes s. 7 education expenses when the full table amount of support is being paid for a child living away from home to attend university.
Review of the Evidence
[8] Dr. Cox works at a medical clinic as a general practitioner. He does not have any other children or spouse that he supports.
[9] Dr. Cox testified that he sees patients 3.5 days per week and the other 1.5 days is spent on notes and referrals. According to his most recent financial statement sworn October 14, 2020, he earned $168,539 for the year. He has savings of $563,402. His holding company, through which he is paid, has retained earnings of $822,542. The holding company has $75,000 in its bank account. He also owns another company, which owns commercial property that he purchased in 2005 or 2006 for $575,000. The property is rented to a commercial tenant. He has shares with a value of $103,262. He has no debts. His net worth is approximately $2.8 million.
[10] There is no dispute that Dr. Cox was paying $1,600 per month as table support for Nathan throughout the time that he attended university. He testified that this support was based on income of $195,000, although he denies he earned that level of income. Having said that, there is no application before me to readjust support based on a different income. Based on Dr. Cox’s financial circumstances, there is clearly no issue that he had the ability to pay the child support that he did pay.
[11] Ms. Webber’s financial circumstances are far more precarious. She has four children. She is currently married, and her spouse works. According to her financial statement and based on her evidence, she and her husband have no assets, other than a car, and debts that total $34,000. Ms. Webber worked as a nurse for 40 years and retired in October 2019 at the age of 60. She had been on stress leave for the last 6 months before she retied and her WSIB claim was denied. She relied on credit cards to support herself before she received a settlement from her employer.
[12] According to her income tax returns, Ms. Webber earned between $89,000 and $92,000 when Nathan attended university. She currently receives pension income and CPP for a total income of $36,141 per annum. She testified that she is also looking for some work.
[13] According to Ms. Webber, when Nathan was at university, she told him to pay for his expenses on his credit card and to forward the receipts to her for reimbursement. Ms. Webber would prepare a spreadsheet that she sent to Dr. Cox setting out his 60% share of the expenses and request payment.
[14] According to Ms. Webber, Dr. Cox would send her cheques for the s. 7 expenses, though the cheques were never for the full amount she requested from him. He never identified what expenses he either was or was not agreeing to pay. For example, at the end of August 2014, she requested payment of $7,716.54, but Dr. Cox only sent her a cheque for $7,040.57. She testified that the last payment she received from him was on October 1, 2017 in the sum of $4,113.10 and she did not receive any other s. 7 payments.
[15] The table amount of support was enforced by the Family Responsibility Office (“FRO”) and was deducted directly from Dr. Cox’ employment income. Dr. Cox paid the s. 7 expenses directly to Ms. Webber.
[16] Dr. Cox testified that he reviewed each of the receipts Ms. Webber submitted to him as a s. 7 expense. His position was that a number of the items claimed were not s. 7 expenses and so he did not pay them.
[17] Nathan would have graduated in April 2018 had he taken a full course load each year. In order to improve his marks, he chose to take fewer courses starting in second year and then take a course during the summer months. He also played on the varsity rugby team in his first two years, which would have placed additional demand on his time. As a result, when he finished the school term in April 2018, he needed to take two more courses in order to graduate in 2018. He took those two courses online and the last exam was on August 31, 2018. He obtained his final marks in September 2018 confirming he passed and then he applied to graduate in October 2018.
[18] Dr. Cox testified that in April 2018, in anticipation of Nathan completing his school year, he emailed Ms. Webber saying that that they should talk about ending the child support payments. In response, Ms. Webber told him that he owed her $20,000 as he had not paid all the s. 7 expenses that she requested from him since Nathan commenced university. As Dr. Cox was of the view that he overpaid s. 7 expenses and did not owe anything further, he commenced this application in October 2018.
[19] According to Ms. Webber, she agreed to terminate the table amount of support in October 2018, when Nathan graduated. She contacted FRO and directed the agency to stop collecting the table amount of support from Dr. Cox. At that time, while she was agreeing to terminate the ongoing table support, Ms. Webber’s position was that Dr. Cox was in arrears on the s. 7 expenses, which she wanted FRO to collect.
[20] Ms. Webber testified that, in order for FRO to collect the arrears owing for the s. 7 expenses that she was seeking from Dr. Cox, she had to send to FRO all of the particulars of what was not paid. She did this after this application was commenced. In a letter from FRO dated May 24, 2019, it indicated that it would collect $11,544 as arrears of s. 7 expenses owing from Dr. Cox. FRO collected this amount by continuing to garnish Dr. Cox’s wages at the rate of $1,600 per month. Some confusion arose as FRO continued to deduct payments from Dr. Cox when all support was paid. FRO ultimately refunded the overpayments to Dr. Cox.
[21] According to Ms. Webber, FRO collected the outstanding amounts owing for s. 7 expenses and she received the last payment in December 2019.
[22] Ms. Webber maintained detailed records, including all receipts, regarding the s. 7 expenses she was claiming from Dr. Cox. The total amount for the four years of university was $81,833.30. The following is a break-down of the s. 7 expenses that Ms. Webber claims were incurred for Nathan’s post-secondary education and for which she was seeking Dr. Cox to contribute 60%:
| EXPENSE | AMOUNT ($) |
|---|---|
| Tuition & Fees | 50,178.94 |
| Rent | 18,900.00 |
| Food | 3,960.23 |
| Books | 1,858.59 |
| Computer & Repair | 972.31 |
| Athletics | 706.03 |
| Physio/Chiropractic | 1,195.42 |
| CBESA | 1,866.30 |
| Utilities (Hydro/Reliance) | 383.12 |
| School Supplies | 763.53 |
| House Supplies/Linens | 297.34 |
| Mont Tremblant | 457.58 |
| School Project | 55.60 |
| Pharma | 238.31 |
| TOTAL | 81,833.30 |
[23] According to Dr. Cox, he paid $47,856.98 as his share of Nathan’s post-secondary education expenses ,which was in addition to the table amount he paid to Ms. Webber. According to Ms. Webber, she and Nathan contributed $33,976.32 for his education expenses.
[24] Dr. Cox’s position is that he overpaid s. 7 expenses by approximately $24,000. He disputes the amounts claimed for items such as clothing, physiotherapy treatments, summer rent and utilities, grooming supplies, meals, and groceries. He also took issue with a duplicate claim for tuition. Ms. Webber confirmed that she submitted for reimbursement from Dr. Cox two tuition statements for the fall of 2016 in error rather than one for 2016 and one for 2017, and she also noted that no claim was submitted for 2017. Although Dr. Cox alleges that Ms. Webber deliberately submitted additional or duplicate claims as s. 7 expenses, I accept her evidence that any such claims were errors and not a deliberate attempt to secure additional support from Dr. Cox. Ms. Webber kept meticulous records and receipts and each amount she claimed from Dr. Cox was documented. I found her to be a credible witness who answered questions in a very direct manner. There is no evidence suggesting her actions were fraudulent or deliberately deceitful.
[25] During the course of this litigation, Dr. Cox received disclosure that he says indicates that Nathan was not living with Ms. Webber after July 2017. This included Nathan’s driver’s license, which listed his address as being his apartment in Guelph, and then his OSAP and school tuition documents which listed his address as his step-father’s address. According to Dr. Cox, he was also first made aware of Nathan’s OSAP loan, summer earnings, and financial aid he received from the university during the course of this litigation. He was not informed of any of this while Nathan was at school.
[26] Nathan testified at this trial. His evidence was that he lived with Ms. Webber each summer after first and second year and went home on some weekends and holidays. He lived and worked in Guelph after third year. He also lived with his mother when he took the two online courses in the summer of 2018 to complete his degree.
[27] In July 2018, Nathan was hired by his current employer, Meridian. He works in the field of equipment financing. He was on probation with the company until October 2018. He was paid while on probation. His salary was $30,000 plus a commission of up to $5,000. According to his 2018 Income Tax Return, his earnings that year were $40,096.
[28] Nathan testified that when he attended university, it was his understanding that Dr. Cox was to pay 60% of his expenses and he and his mother had to fund the remaining 40%. He applied for and received $10,000 per year from OSAP. He had to repay 80% of that amount. The remaining 20% or $2,000 per annum was a grant.
[29] In his first year, he lived in residence and there was a meal plan.
[30] During his first year, he went home to his mother’s home in Mississauga every second weekend. He also spent holidays with his mother. He played varsity rugby in his first and second year. After his first and second year, he worked for a company erecting fencing and earned about $5,000 each summer. He lived with his mother both summers.
[31] In his second year, he moved into an apartment with roommates. He was required to sign a lease for 12 months. He lived in the same apartment for the balance of his time at Guelph. He did not sublet it during the summer months.
[32] In his second year, he went home to spend some weekends with his mother. Ms. Webber gave him a car to use. She paid the insurance and he paid for gas from his summer job. He also returned home for holidays. During his second year, he decided to take four rather than five courses each year. He took two courses during the summer.
[33] In his third year, he again took four rather than five courses. He would still go home on some weekends but less frequently. He received a grant/aid from the university in the sum of $1,550 in third year. He stopped playing varsity rugby due to a shoulder injury. In third year, he joined an economic club (“CBESA”). He explained how the club was geared to business students to teach additional skills. He also competed in business competitions and travelled to conferences with the club. He was involved with this club during his third and fourth year. His fees to travel and attend conferences were not paid by the university. Based on his evidence, which I accept, his membership with this club assisted by networking and developing his business skills. His success is obvious as he was hired even before he graduated and continues to work full-time for the company that hired him.
[34] Nathan was asked about his driver’s license, which showed that in March 2017, while he was in his third year, he changed his address to his apartment in Guelph. His evidence was that it made sense for him to do that as that was where he was living. In addition, his mother moved from their home in Mississauga and was planning on moving again. According to Ms. Webber, she and her husband were to buy a new home that was not yet constructed. They moved to a condominium as a temporary living arrangement. Nathan still had his own bedroom and had his own key to gain access to the condominium.
[35] After third year, Nathan took courses during the summer and remained in Guelph working. He worked for the City of Guelph and earned approximately $8,698. That summer, while he lived in Guelph, his mother would give him between $100 and $300 per month.
[36] In his fourth year, Nathan testified that he received a $1,500 grant from the university. The tuition statement from the university for that year had a line item for student aid of $3,870. While Nathan recalled receiving $1,500, he did not recall receiving $3,870. While Nathan may not have recalled the amount he received in fourth year, the tuition statement is clear that he received $3,870 to assist with his tuition that year. Nathan continued to travel home on some weekends and even some weeknights to play hockey. He stayed with his mother. In his fourth year, he travelled to Mexico for a school trip. Nathan testified that he paid for that trip, but Ms. Webber said she paid it at a cost of $4,000. That amount is not being sought as a s. 7 expense.
[37] In the summer of 2018, Nathan took two online courses to complete his degree. He returned to live with his mother when he took these courses. He also started to work for his current employer in July 2018. In October 2018, he moved in with his step-father and brother who live at 1945 Truscott Street in Mississauga. Nathan testified that he and his mother previously lived at that address until she separated from his step-father. He and his mother then lived at 2675 Truscott Street in Mississauga before his mother moved when he was in third year.
[38] According to Nathan, he used his step-father’s address at 1945 Truscott Street on certain documents such as his income tax returns and student loan documents. Nathan explained that when his mother moved from 2675 Truscott Street when he was his third year, she was waiting for her new home to be built. He therefore decided to use his step-father’s address as it was a more permanent address. His evidence was that he nonetheless continued to return to his mother’s home on weekends, for holidays, and during the summer months (other than after third year). He did not live with his step-father until after he graduated.
[39] Nathan was asked about the receipts that Ms. Webber forwarded to Dr. Cox for his education expenses. According to Nathan, each one of those receipts was for expenses he incurred when he was at Guelph. He testified that he would pay the expense and his mother would reimburse him.
[40] I will not review all of the receipts Nathan gave to his mother but will give a general overview. Included were receipts for items such as linens he purchased for his apartment, supplies such as ink for his computer, a gym membership, receipts for a trip to Mont Tremblant, rent for his apartment, food expenses, utilities for his apartment, a receipt for a suit he purchased to go to his business competitions, athletic gear for rugby, and various toiletries.
[41] Ms. Webber testified that before Nathan left for Guelph, he was living with her and her current spouse at 2625 Truscott Street in a house she owed in Mississauga. She sold the home in January 2017 and moved into a two-bedroom condominium. This was a temporary living arrangement as she and her husband were waiting for another property to be built. Unfortunately, that transaction was not completed and she then moved to another apartment in Etobicoke in December 2017. Nathan had a bedroom in that apartment as well. In January 2019, she and her husband moved back to live with Nathan’s step-father, her ex-spouse, at 1945 Truscott Street. She testified that Nathan asked her to do this as her ex-spouse’s health was failing. As Ms. Webber is a retired nurse, she and her husband agreed.
[42] According to Ms. Webber, her understanding of the July 2013 child support order was that in addition to the table amount of support, Dr. Cox was to pay 60% of Nathan’s s. 7 expenses associated with his post-secondary education and that she and Nathan would fund the balance. She was aware that Nathan obtained $40,000 from OSAP ($10,000 per year) and that 80% of that was a loan that Nathan is still repaying. She had an RESP of $5,000 that she used to contribute to Nathan’s education expenses.
Issues and Position of the Parties
[43] There are three issues to resolve. The first is the date of termination of child support. Various dates are proposed by Dr. Cox. The first is July 2017 on the basis that Nathan was no longer living with his mother as reflected in the different addresses he used for his driver’s license, income tax returns, and student loan documents. Alternatively, Dr. Cox argues that support ought to have terminated at the end of April 2018 when Nathan last attended school full time as he was only taking two courses that summer and therefore only a part-time student. The last date proposed is July 2018 when Nathan started to work full-time, although he was still taking a course and had not yet officially graduated.
[44] Ms. Webber’s position is that child support terminated when Nathan officially graduated in October 2018.
[45] The second issue is whether Dr. Cox should have paid for all the expenses that Ms. Webber claimed as s. 7 post-secondary education expenses when he was still paying her the table amount of support.
[46] The third issue is whether Nathan should have contributed to his own education expenses by way of a portion of his summer earnings, the financial aid he received from Guelph and his loan and grant from OSAP.
[47] Dr. Cox’s position is that Nathan’s contributions should first be deducted from the s. 7 expenses and the net amount then shared on a 60/40 basis as per the July 12, 2013 order. Ms. Webber’s position is that she and Nathan were responsible for funding 40% of Nathan’s education expenses and any of Nathan’s contributions were not to be considered in calculating Dr. Cox’s 60% share.
Analysis
[48] Ms. Webber’s position is that Dr. Cox is seeking a retroactive variation of support. As there were no material change in circumstances, she asserts that there is no basis to grant a variation.
[49] In my view, this is not an issue about variation of support. The issue relates to what s. 7 expenses were to be included as post-secondary education expenses, as the order was silent in that regard. The dispute existed from the outset as Dr. Cox did not pay the full amount that Ms. Webber requested and there were ongoing letters between the parties disputing what amount he was to pay. Either party could have brough an application sooner to clarify the ongoing dispute.
[50] With respect to Nathan’s contributions, it was not necessary for the order to state that those amounts were to considered first in determining the net s. 7 expenses that were to be shared by the parties. The legislation specifically contemplates such contributions. According to the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) an adult child is expected to contribute to his or her s. 7 expenses: s. 7(2).
[51] The starting point is to consider the wording of the Guidelines as it relates to child support payable for a child over the age of 18 who is attending post-secondary education. The sections to consider include ss. 3(2) and 7(1)(c), 7(1.1), and 7(2) as set out below:
Child the age of majority or over
3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
7 (1) In a child support order the court may, on either spouse’s request, 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 spouses and those of the child and to the family’s spending pattern prior to the separation:
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
Definition of “extraordinary expenses”
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
[52] It is also important to consider the objectives of the Guidelines which are set out in s. 1. Those objectives include establishing a fair standard of support that ensures that a child benefits from the financial means of their parents and to reduce conflict and tension between spouses by making the calculation of support more objective. According to Ms. Webber when she consented to the 2013 order, her goal was to eliminate the conflict between herself and Dr. Cox.
[53] Unfortunately, the conflict was not resolved, primarily because the order did not specify what expenses were to be included as post-secondary education expenses. It was only after Nathan finished his studies and this application was commenced that Ms. Webber then completed forms that she submitted to FRO to request that it collect the outstanding s. 7 expenses that she said Dr. Cox refused to pay.
[54] Section 3(2) of the Guidelines governs how child support should be calculated when dealing with a child over the age of majority attending post-secondary education away from school. According to s. 3(2)(a), the support would be the table amount, including s. 7 expenses. If that is considered inappropriate, then the amount of child support is determined based on the conditions, means, needs and other circumstances of the child, and the financial ability of each parent to contribute.
[55] In Corby v. Corby, 2015 ONSC 2700, the court held that, when a child is over 18 and is living away from home to attend school, it is not appropriate to use the approach set out in s. 3(2)(a) to determine support, as the table amount is premised on the assumption that the parent receiving the child support is providing for the expenses of a child who lives with that parent. When a child is away at school, the means and needs analysis set out in s. 3(2)(b) should be used: at para. 27. If the child lives at home during the summer months then the table amount can be used during that time.
[56] This dispute is not about what approach to use as the parties already agreed on the approach. Based on the wording of the July 2013 order, the parties agreed to use the approach set out in s. 3(2)(a), even though Nathan lived away from home while he attended university, as the order states Dr. Cox is to pay the table amount of support plus his share of specific s. 7 expenses. This dispute focuses on what those s. 7 expenses were when table support continued to be paid to Ms. Webber and whether Nathan, given all of the circumstances, should have been obligated to contribute to his own education costs.
[57] Before addressing the issue of what s. 7 expenses were to be paid, I will summarize the support that Dr. Cox paid during the four years that Nathan was in school. During the four years that Nathan attended Guelph, Dr. Cox paid table amount of $1,600 per month or $19,200 per year to Ms. Webber. Over a four-year period, that totalled $76,800. He also paid $47,856.98 for Nathan’s education expenses. Accordingly, over the four years, he paid $124,656.98 in child support.
a) What Amount, if any Should Nathan Contribute to his Education?
[58] I will deal first with Nathan’s contributions towards his education expenses, as the evidence is clear that he did contribute though the student loans, grants, student aid, and his summer employment after each school year.
[59] According to s. 7(2), the guiding principle is that the s. 7 expense, in this case post-secondary education, is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child.
[60] An adult child is expected to contribute to the cost of attending post-secondary education. This can be in the form of student loans, scholarships, bursaries, summer employment, and savings; MacPherson v. MacPherson, 2005 CarswellOnt 3638 (S.C.), at para. 38. The case law is unsettled, however, with respect to what amount a child is expected to contribute from these various sources. It depends on the facts and circumstances of each case. There is no specific formula that is applied and there is also no express stipulation in the Guidelines regarding the amount a child should contribute. The court has broad discretion to determine that amount and will consider the means of the child and each parent in making that determination.
[61] The Court of Appeal for Ontario addressed this issue in Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321. In that case, the court held that there was discretion under both s. 3(2) and s. 7 of the Guidelines in determining the amount a child should be expected to contribute: at para. 154. In Lewi, the court found that it would be appropriate in the case for a child who elected to go to school away from home to pay 50% of his educational expenses: at paras. 177-78.
[62] According to Ms. Webber, she understood that Dr. Cox’s contribution of 60% of the education expenses was to be calculated before considering Nathan’s contributions. Her view is that Nathan’s contributions were part of her 40% contribution. Her evidence is that the total cost for Nathan’s four years of university was $81,833.30 and her 40% share was $33,976.32. When you consider Nathan’s OSAP funding of $40,000 for the four years, of which $8,000 was a grant, Ms. Webber did not contribute to her son’s education. Her 40% share was completely funded by Nathan’s contributions. While there was some evidence of other amounts Ms. Webber paid during the four years for which she did not seek any contribution from Dr. Cox, when you also take into account the tax credit she claimed and received, she funded a very modest amount, if any, for Nathan’s education.
[63] Dr. Cox earns a significant income and has sizeable assets. The 2013 order states that the support was based on his annual earnings of $195,000. There were no submissions made during this trial that a higher income ought to be imputed to him although the financial statements from his holding company through which he is paid suggests he perhaps earned a greater income. That issue was not in dispute before me and so this analysis is based on Dr. Cox earning $195,000 per annum
[64] Ms. Webber was earning between $89,000 and $92,0000 per year while Nathan was in school.
[65] Based on Dr. Cox’s and Ms. Webber’s earnings and financial circumstances, in my view, a 50% contribution from Nathan is not reasonable. Had his parents been of more modest means, it would be expected that he contribute a higher amount to his education.
[66] In my view, what is reasonable, given the totality of the circumstances, including the means of Dr. Cox and Ms. Webber is that a portion of his summer employment income, the grant portion of his OSAP loan, and the student aid he received from Guelph should be considered as his contributions. His summer earnings after his first and second year were approximately $5,000. After third year, he earned just over $8,000. In my view, a contribution of $6,000 in total from these earnings is appropriate, fair and reasonable. In addition, the $2,000 he received each year as a grant from OSAP for a total of $8,000 should be deducted before calculating his parents’ share of his education costs. Lastly, according to his tuition statements from Guelph he received $1,550 in student aid in third year and $3,870 in his fourth year. These amounts should also be deducted before calculating his parents’ share of his education costs
[67] These amounts total $19,420. In my view, that is a fair amount to consider as Nathan’s contribution for the four years he attended school which ought to be deducted from the total post-secondary education expenses before calculating the proportionate share that Dr. Cox and Ms. Webber were to pay.
[68] Given the earnings and financial circumstances of Dr. Cox and Ms. Webber, I am not prepared to deduct the amount Nathan received as a loan from OSAP as his contribution. He is currently repaying that loan.
b) What are s. 7 Expenses for Post-Secondary Education?
[69] The next issue is what are s. 7 expenses for post-secondary education when the full table amount is still being paid? According to s. 7(1) of the Guidelines, when dealing with post-secondary education expenses, the court must consider the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the parents and those of the child.
[70] In my view, a number of the expenses Ms. Webber was claiming were covered by the table amount Dr. Cox was paying her. The table amount of child support is to contribute towards expenses such as accommodations, clothing, toiletries, food, and school supplies. In this matter, there was what I would consider “double-dipping”, as Ms. Webber requested payment for items that were already covered by the table amount that she received each month. By paying table amount to Ms. Webber while Nathan was away at school, Dr. Cox was already contributing to such items as Nathans’ clothing, food, toiletries, school supplies, and utilities.
[71] Dr. Cox disputes $24,894.42 of the s. 7 expenses that Ms. Webber claimed. This included $3,909 for Nathan’s first year meal plan, $2,376.14 in food expenses for the remaining three years, and $18,609.16 in other expenses, which included amounts for school supplies, books, physiotherapy treatment, a trip to Mont Tremblant for reading week in third year, summer rent expenses, toiletries, and some clothing items.
[72] I will start with the amounts claim by M.s Webber which were clearly s. 7 expenses for post-secondary education. Those include the amounts claimed for tuition, student fees, books and computer expenses. I also consider the expenses Nathan incurred to be part of the CBESA club were necessary and reasonable as it was a club that developed Nathan’s business skills. I also consider the amount claimed for athletics as reasonable and necessary.
[73] In my view, the amount Ms. Webber claimed as s. 7 expenses for food, utilities, school supplies, house supplies, school project, and toiletries incurred by Nathan when he was at school were covered in the table amount of support paid by Dr. Cox. I also do not consider the cost incurred for a reading week trip to Mont Tremblant to be an education expense even though Nathan said he was able to do some networking for business purposes on the trip.
[74] These items totalled $6,155.71, and were not s. 7 expenses for which Dr. Cox was to contribute 60%.
[75] The amount claimed for rent expense totals $18,900 over the three years that Nathan lived in an apartment during the school year. Dr. Cox’s assertion that Nathan should have sublet the apartment during the summer months or signed a lease for only 8 of the 12 months is not reasonable. Most students are required to sign 12-month leases. Had Dr. Cox and Ms. Webber been of modest means, subletting during the summer months may be considered reasonable and necessary. Given their financial means, I do find that Nathan ought to have sublet his apartment after his first and second year.
[76] The table amount of support would include some amount for Nathan’s accommodations with his mother as she was required to have a home that Nathan returned to on weekends, holidays, and during the summer months. Nathan was paying approximately $525 per month in rent in Guelph. Given the means of the parties, in my view, a reasonable assessment is that 75% of the rent Nathan incurred while he attended school should be included in the s. 7 expenses. This reduces the rental claim from $18,900 over four years to $14,175.
[77] With respect to Nathan’s first year at school when he lived in residence, the documentation filed from Guelph University indicates that the total for the meal plan in first year was $6,515 and his residence was $5,718. Dr. Cox only disputes the 60% he paid for the meal plan ($3,909). In my view, a reasonable approach to take is to include 75% of the meal plan as a reasonable and necessary s. 7 expense. This reduces the total tuition and fees claimed to $48,550.19.
[78] Based on these figures, the total amount of s. 7 post-secondary education expenses incurred over four years are as follows:
| Expense | Amount |
|---|---|
| Tuition and fees | $48,550.14 |
| Rent | $14,175.00 |
| Books | $1,858.59 |
| Computer | $972.31 |
| Athletics | $706.03 |
| CBESA | $1,866.30 |
| TOTAL: | $68,148.37 |
[79] When Nathan’s contributions of $19,420 are deducted, the net amount to be shared between Dr. Cox and Ms. Webber is $48,728.37. Dr. Cox’s 60% share is $29,237.02.
[80] I have removed the physiotherapy treatments as those are a medical expense and Dr. Cox was required to pay his share of that expense. The amount claimed was $1,195.42 so Dr. Cox owes $717.25 for that expense which he has already paid.
[81] Dr. Cox paid $47,876.98 for s. 7 education expenses. When I deduct from that the physiotherapy treatment of $717.25, the total he paid for education was $46,859.73. As he was only required to pay $29,237.02, he overpaid $17,622.71 for s. 7 post-secondary education expenses. That amount must be repaid by Ms. Webber.
c) When Should Child Support Terminate?
[82] I will next address the date on which child support ought to have been terminated.
[83] I am not satisfied, based on the evidence, that support should have been terminated in July 2017 as claimed by Dr. Cox. Nathan’s evidence, which I accept and which was not challenged as Dr. Cox chose not to cross-examine him, is that he lived with his mother after first and second year and stayed in Guelph to work after his third year. During that time, his mother moved and she planned on moving again. Given those circumstances, it was not unreasonable for Nathan to use his step-father’s address as his address on important documents such as his loan documents and income tax returns as it was a more permanent address than Ms. Webber’s address as she moved a couple of times while Nathan was at Guelph. Had he used his mother’s address Nathan would have had to change his address on these forms more than once. The same is true with respect to his driver’s license. While he changed his address to his residence in Guelph, in my view, that was not unreasonable given the changes in his mother’s address while he was away at school.
[84] I found Nathan to be a credible and reliable witness who answered all questions in a direct and forthright manner. I therefore accept his unchallenged evidence about where he lived and his explanation for the use of other addresses on his driver’s license and other documents.
[85] Nathan took courses each summer. After his fourth year ended in April 2018, he took two more courses. While Dr. Cox’s position is that child support ought to have ended at the end of April, in my view, it ought to have ended in July 2018 when Nathan began working full time. Although he was still taking a course and had not yet officially graduated, he was earning employment income as a full-time employee. The fact that he was on probation is not relevant as he was working full-time and earning an income. In fact, he earned $40,000 in 2018, the year he graduated. Accordingly, Dr. Cox should not have paid child support for the months of August and September when Nathan was working full time. His support obligation ended at the end of July 2018. He therefore overpaid $3,200 for those two months. (It is not clear to me if he paid support in October 2018. If he did, then he is owed a total of $4,800 by Ms. Webber.)
Conclusion
[86] Dr. Cox is owed $20,822.73 by Ms. Webber. This includes $3,200 with respect to the earlier date on which child support ought to have terminated, and the overpayment of $17,622,73 in s. 7 education expenses.
[87] I am mindful of Ms. Webber’s financial circumstances and the hardship this finding will have on her as she is living on a fixed pension income and has no assets. Accordingly, the amount is to be paid to Dr. Cox over a five-year period at the rate of $347 per month.
[88] If the parties cannot reach an agreement on costs, they are to file their cost outline and submissions, of no more than two pages (double-spaced, 12-point font), and any relevant offers to settle by May 15, 2021.
L. Shaw J
Released: April 13, 2021
COURT FILE NO.: FS-01-1819-02
DATE: 2021 04 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RONALD COX,
Plaintiff
- and -
HOLLY WEBBER,
Defendant
REASONS FOR DECISION
L. Shaw J.
Released: April 13, 2021