Court File and Parties
COURT FILE NO.: FS-19-55
DATE: 2022-08-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephanie Pyne, Applicant (Responding Party)
AND:
Mauricio Landaverde, Respondent (Moving Party)
BEFORE: Chozik J.
COUNSEL: Alex Ferguson, for the Applicant
Margaret Teixeira, as agent for counsel Frankie Wood, for the Respondent,
HEARD: February 14, 2022
REASONS FOR DECISION ON MOTION TO CHANGE
Overview:
[1] The Respondent (“Father”) brought a Motion to Change the Final Order, dated October 7, 2011. The primary issues to be decided were retroactive, retrospective, and continuing child support and section 7 expenses, and the parties’ contributions to post-secondary expenses for their 21-year-old child, Jessica.
[2] The Final Order is from almost 11 years ago. It granted “sole custody” of Jessica to the Applicant (“Mother”). It provided that Jessica’s primary residence would be with the Mother. The Mother was permitted to relocate internationally, and she moved with Jessica to Trinidad and Tobago (“Trinidad”) for two years in 2007 and again in 2012. It is not disputed that Jessica lived with her Mother in Trinidad until 2018. She visited her Father during the summers and holidays in accordance with the Final Order.
[3] The Final Order required the Father to pay monthly child support of $939, plus $165 per month for daycare (until Jessica turned 14), and a further $1,000 annually for section 7 expenses, which he paid at a rate of $83.13 per month. These support obligations were based on his income of $108,000 and the Mother’s income of $75,000. The Final Order required the parties to exchange updated financial information annually. Since March 2012, the Final Order was enforced through the Family Responsibility Office (“FRO”). For more than 10 years, the Father paid the support as set out above. He continued to do so to date.
[4] In September 2018, instead of returning to Trinidad after the summer holiday as she usually did, Jessica stayed in Burlington, Ontario, with the Father. She attended school in Burlington and completed her high school diploma in Ontario. She lived with him from September 1, 2018, until June 30, 2019. She spent part of July and August with each parent. In September 2019, Jessica began her post-secondary studies at the University of Toronto.
[5] In the fall of 2018, when Jessica was living with him, the Father asked the Mother to agree to terminate the support payable through FRO. She refused.
[6] The Father brought this Motion to Change in May of 2019. He asked for an Order that:
a. The table amount of child support he pays terminate as of August 31, 2018;
b. The Mother pay him table amount child support for the period from September 1, 2018 to June 30, 2019;
c. For the purposes of child support calculations, the Mother’s annual income be imputed to be $75,000;
d. A budget be set for Jessica’s post-secondary education not exceeding $28,000 per year, and that the parties contribute to that budget proportionate to their incomes, after deducting Jessica’s annual contribution of $6,000.
[7] The Mother opposed the Motion to Change.
[8] In her Response to the Motion to Change dated June 27, 2019, the Mother claimed that the Father did not comply with the Final Order and, for the first time, sought a retroactive recalculation of support and section 7 expenses back to 2011.
[9] For the Reasons that follow, the Motion to Change is allowed, the Mother’s retroactive claims are dismissed, and the Order sought by the Father is granted.
BACKGROUND:
[10] The parties were married three and a half years, from November 2000 until March 2004. Jessica was born in 2001. Their divorce took seven years to finalize.
[11] Prior to and during the parties’ marriage, the Mother worked internationally. The Father immigrated to Canada from Mexico during the relationship. Shortly after their separation in 2004, and over the objections of the Father, the Mother relocated with Jessica, then three years old, to Trinidad to pursue a two year work contract. Initially, the relocation was captured in a temporary Order, but later, when the Mother decided to relocate to Trinidad permanently, it formed part of the Final Order.
[12] The Mother remains primarily resident in Trinidad to date, though she is not eligible to work there. She maintains Canadian citizenship and spends time during the summers at her cottage near Ottawa, Ontario. It is not disputed that Jessica lived primarily with the Mother in Trinidad up to September 1, 2018.
[13] When the Mother first relocated to Trinidad, Jessica was 3 years old. When the Final Order was made in 2011, Jessica was 10 years old. She is now 21 years old. When I heard this motion, she was in third year of university. Both parents anticipated that Jessica will graduate with a four-year degree in social sciences in April, 2023 and that she is likely to pursue further post-graduate education like her parents.
[14] It is not disputed that the child support obligations set out in the Final Order were based on the Mother being the primary parent, and Jessica’s primary residence being with her. The Final Order provided that Jessica would spend five weeks of the summer and ten days of holidays with the Father if the Mother was not in Ontario, or half the summer and half the holidays with the Father if the Mother was in Ontario.
[15] In 2018, Jessica spent her summer holidays with the Father, as usual. At the end of the summer, however, she did not return to Trinidad. Rather, she remained in Burlington, Ontario, with the Father in his home with his common-law spouse and their three children. Jessica attended high school in Burlington the entire 2018/2019 academic year. She got a part-time job on weekends in a local bakery. She did not return to Trinidad until June 2019, when she went there for two weeks at the start of the summer holidays. The Mother was not in Trinidad at the time, but in Ottawa. Jessica then spent some time during the summer of 2019 with the Mother and some time with the Father. At the end of August 2019, she moved into residence at the university. She has not lived in Trinidad since the spring of 2018.
[16] In the fall of 2018, the Father asked the Mother to agree to stop the table amount of support. The Mother refused. She reasoned that that Jessica had spent 60% of 2018 with her at that point and viewed Jessica’s relocation to Burlington as temporary.
[17] In September 2019, Jessica began her studies at the University of Toronto. She moved to residence on campus. The Father would have preferred for her to live in Burlington with him, to save money on accommodations, but he supported and encouraged Jessica regardless.
[18] When instruction at the university changed to online in March 2020 due to the Covid-19 pandemic, Jessica moved back to her Father’s home in Burlington. She lived there until the end of June 2020. She then spent July and August with the Mother and grandmother in the Ottawa area. She received CERB during those two months. At the end of August or early September 2020, Jessica moved into off-campus accommodations in downtown Toronto, which she shares with roommates. She continues to live away from both parents.
POSITIONS OF THE PARTIES:
[19] The Father argued that his child support obligations should have terminated in September 2018. He submitted that there was a material change in circumstances when Jessica stayed to live with him in Burlington in order to attend grade twelve in Ontario. From September 1, 2018, until June 30, 2019, the Mother should have paid him child support. She refused to consent to the termination of support. As a result, FRO continued to enforce his support obligations pursuant to the Final Order. He calculated that from September 2018 to May 2021, he overpaid table support by $33,254.06 and paid $3,507.58 twice for earlier arrears. In addition, the Mother should have paid him $7,000 (or $700 per month) in support for ten months in 2018 and 2019.
[20] The Father also argued that Jessica ceased being a child of the marriage when she started her post-secondary education in September 2019 and stopped living with either parent. He asked that a budget be set for her post-secondary expenses pursuant to section 3(2) of the Federal Child Support Guidelines, SOR/97-175. According to the Father, a reasonable annual budget was $28,000.
[21] The Mother disputed that there was a material change in circumstances in September 2018 when Jessica stayed in Burlington. She argued that it was ‘a temporary relocation of a student to travel abroad to study’ and that the intention was for Jessica to return to live in Trinidad. The Mother argued that Jessica continued to be primarily resident with her.
[22] The Mother further argued that Jessica continues to be dependent on her parents while in university and that she remains a child of the marriage who is entitled to table amount child support for the duration of her post-secondary studies. The Mother argued that Jessica’s primary residence during post-secondary studies remained with her in Trinidad or Ottawa, and hence table support was payable.
[23] The Mother argued that, in addition to table support, Jessica’s post-secondary education should be treated as a section 3(2)(b) expense under the Guidelines. She submitted that a reasonable annual budget for Jessica was $34,000 for 2021 and $34,500 for 2022, and not $28,000 as suggested by the Father. She accused the Father of not supporting Jessica’s choices about her education.
[24] The parties agreed that Jessica’s contribution to this budget should be $6,000 per year, and that the balance should be shared by them proportionate to their incomes.
[25] The Father argued that his share should be approximately 65% and the Mother’s share should be 35% , based on her imputed annual income of $75,000. He also asked to be credited for $83.13 a month he paid for s.7 expenses under the Final Order since September 2018. To May, 2021 these payments added up to $2,666.56. As well, he asked to be credited for other s.7 expenses he paid in 2019/2020 including tuition and costs to ready Jessica for residence/apartment. These totalled contributions $9,514. He also paid for Jessica’s cell phone and car insurance, but did not seek credit or reimbursement for those.
[26] The Mother argued that the income imputed to her should be no more than $30,000 and that the proportionate sharing of the post-secondary or s.7 expenses should be 74.3% by the Father and 24.7% by her.
[27] In response to this Motion to Change, the Mother claimed that the Father had not complied with the original terms of the Final Order. She claimed that he had not made a $10,000 transfer from an RRSP that he was supposed to make in November 2011. She claimed that he had not paid $7 per day for daycare or for a nanny/housekeeper in Trinidad (he paid $165 per month for daycare as set out in the Final Order). She also claimed that he had not provided his Notices of Assessment as required under the Final Order. She submitted that no changes to the Final Order ought to be made until the Father complied with those terms.
[28] At the hearing of this motion, the Mother did not pursue those arguments. Rather, she argued that the Father underpaid child support from 2011 to 2018 by $17,489.
[29] Also for the first time in response to this Motion to Change, the Mother claimed that she incurred over $72,000 as section 7 expenses from 2011 to July 2019. She had not asked the Father to contribute to these expenses until he commenced the Motion to Change. At the hearing of the Motion, she abandoned her claim for the private school tuition which totalled $65,294, but maintained that she was entitled to be reimbursed for the other expenses, which totalled $7,000.
[30] The Father conceded that in light of his increased income, he underpaid table support prior to 2018 by $12,842.76. He calculated the underpayment as follows:
2011: $242
2012: $1,782
2013: $264
2014: $399
2015: $1,962
2016: $2,687.16
2017: $2,991.24
2018: $2,515.36
He argued, however, that his overpayment of support since September 1, 2018 plus the support owed to him by the Mother exceeded any arrears by $12,139.34 up to and including August 31, 2019.
ANALYSIS:
Material Change in Circumstances:
[31] The threshold issue is whether there was a material change in circumstances in September 2018, when Jessica stayed with the Father in Burlington in order to attend school in Ontario.
[32] In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 12, the Supreme Court explained that a material change is one that
“altered the child's needs or the ability of the parents to meet those needs in a fundamental way. The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.”
[33] The analytical test outlined by the Supreme Court in Gordon has remained unaltered for more than 25 years. As the Court of Appeal for Ontario explained in L. v. S., 2022 ONCA 270, at para. 21, the judge hearing an application for a variation of a final order due to a material change in circumstance must be satisfied that there was:
a. A change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
b. The change must materially affect the child; and,
c. The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[34] Applying these factors, I am satisfied that a material change in circumstances occurred when Jessica chose not to return to Trinidad in September 2018. Her needs and circumstances changed materially. She no longer lived in Trinidad. She no longer lived with the Mother. She lived with the Father and his wife and children in Burlington. The parents’ ability to meet her needs changed fundamentally. The Father became the primary parent. Not only was Jessica living with him, he became responsible for her day-to-day care and e-mails between the parties satisfy me that he took on the responsibility of making decisions regarding her education and healthcare. These changes materially affected Jessica. These changes were not contemplated when the Final Order was made. There was a material change in circumstances affecting this child.
[35] The Mother argued that during her grade 12 year, Jessica was “a student travelling abroad to her secondary home”, but that her primary home remained with the Mother in Trinidad. The Mother intended Jessica to return to Trinidad after the first semester. It was only because the Mother had to go to Ottawa in November 2018 that Jessica stayed on in Burlington past the first semester.
[36] A short term one will generally not qualify as a material change in circumstances. A material change in circumstances must have some degree of continuity: Colucci v. Colucci 2021 SCC 24, at para. 61. Here the change was not short term. Jessica never returned to live in Trinidad. The move to Burlington fundamentally shifted Jessica’s circumstances and needs. The Mother’s and Father’s roles changed and so did their ability to meet Jessica’s needs.
[37] Even on the Mother’s evidence, from September 1, 2018 to August 31, 2019, Jessica spent 99 days with her including holidays, but 266 days – or most of the academic year –with the Father in Burlington. Regardless of the initial intention, Jessica lived with the Father the entire 2018/2019 school year, and spent holidays with the Mother. It was a complete reversal of arrangement under the Final Order for an entire year.
[38] I do not accept the Mother’s evidence that in 2018/2019 Jessica’s permanent home remained in Trinidad or otherwise with the Mother. Jessica could not have attended school in Burlington while “living” in Trinidad. There is no evidence that she paid or was admitted to high school in Ontario as a foreign student. Jessica’s visits with the Mother in Trinidad and the Ottawa area were just that – visits. The Mother does not have a permanent home in Ottawa. Her evidence was that Trinidad is her permanent residence. The Father had a permanent home in Burlington. Jessica had a permanent space in that home, where she spent most of her time that year. Jessica got a part-time job on weekends working in a bakery in Burlington. From September 1, 2018, until June 30, 2019, I find that Jessica’s permanent home was with the Father.
[39] In the summer of 2019, the Mother gave Jessica with a plane ticket to visit Trinidad on her own for two weeks (the Mother was in Ontario at the time). For three weeks that summer Jessica travelled with the Mother to Europe. She also spent a bit of time with the Mother at her cottage. I accept the Father’s unchallenged evidence that when she went to that cottage, Jessica took only a suitcase. She did not move there to live. Nor has Jessica returned to live with the Mother in Trinidad. Rather, Jessica started university in September 2019 and moved into residence on campus. She is now living independently, with roommates, away from both parents, in downtown Toronto.
[40] This evidence persuades me that Jessica’s primary residence from September 2018 until she started university in September 2019 was not in Trinidad or elsewhere with the Mother. Until she started university, her primary residence was with the Father in his home in Burlington. Her primary residence continued to be with the Father well into 2020. She came home to Burlington some weekends and when Covid hit, and school went on-line, she returned to Burlington and lived there from March until the end of June 2020.
[41] I am satisfied that there was a material change in circumstances in September 2018. As a result of the material change, the table amount of child support should have terminated as of August 31, 2018. The Mother ought to have paid child support to the Father for the period of September 1, 2018 to June 30, 2019.
[42] Instead, the Father paid the Mother, through FRO, table child support and s.7 expenses. He did so while Jessica was living with him full time. He was responsible for her upkeep most of that year. As a result, the Father has overpaid child support since September 1, 2018. I accept his calculations of the overpayment of support as set out in Exhibit H to his affidavit dated June 3, 2021. As of that date, the overpayment totaled $36,791.64
[43] As part of this calculation, I accept that the Father twice paid $3,507.58 for arrears of child support in 2018. He paid this amount to the Mother directly, and then again through FRO when she refused to acknowledge the payment. The overpayment is included in the $36,791.64 sum.
[44] The question of how much support the Mother should have paid from September 1, 2018 to June 30, 2019 turns on how much income ought to be imputed to her.
Imputation of Income to the Mother:
[45] Section 19(1) of the Guidelines provides that a court may impute income to a parent where that parent is intentionally under-employed or unemployed. “Intentionally” means as a result of a voluntary act. Where evidence establishes that the payor has made a personal choice to earn less than he or she is capable of earning, income may be imputed to him or her. There is no requirement of any bad faith: Drygala v. Paulie, (2002) 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.), at paras. 29-30.
[46] There is a duty to seek employment where a parent is healthy and there is no reason why they cannot work. When imputing income because of intentional unemployment, a court must consider what is reasonable in the circumstances. The age, education, work experience, skills, and health of the parent are factors to be considered, in additional to such matters as availability of work, freedom to relocate and other obligations: Drygala, at para. 45. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
[47] The burden of showing that a parent is intentionally unemployed or underemployed lies with the claimant. Once it has been established that a parent is intentionally unemployed, the burden shifts to that parent to establish that the reason for the unemployment is reasonable: Drygala, at para. 38; Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 28; Dewan v. Dewan, 2012 ONSC 503, at para. 88.
[48] The Father argued that the Mother was intentionally unemployed, and that since 2018 she should be imputed an annual income of $75,000 for child support purposes. The Mother argued that there was a reasonable explanation for her unemployment, but if income was imputed to her it should be $30,000. Having considered all of the evidence, the various principles and factors set out above, I find that the Mother is intentionally unemployed and that a reasonable minimum income to be imputed to her is $75,000 per year.
[49] The Mother lost her job in Trinidad in June 2018. At the time this Motion was heard, she had been unemployed for almost four years. She argued that her unemployment was explained by two facts. First, she was providing full time care for her elderly mother (the grandmother) in Ottawa. Second, as a non-resident of Trinidad, she is not entitled to work there. Obtaining residence status requires her to marry her common law spouse and apply for residency, which will take approximately five more years to obtain.
[50] I find that the Mother is intentionally unemployed. Choosing to care for an elderly parent rather than work in order to financially provide for a child is still a choice: a voluntary act. Not working in these circumstances is intentional unemployment within the meaning of the Guidelines. Choosing to live in country where one is not legally entitled to work is also a voluntary act.
[51] I do not accept the Mother’s explanations for her unemployment as reasonable.
[52] The grandmother resided in a retirement home. The Mother has siblings who are also able to care to the grandmother. The Mother returned to Trinidad for an extensive period in 2020 while the grandmother remained in Ontario. The Mother clearly stated in her response to this Motion to Change that Trinidad is her permanent home. She intended to return there when the grandmother’s situation stabilized.
[53] There was no explanation in the Mother’s evidence why private care or other alternatives could not provide care to the grandmother. There was no explanation of what exactly the Mother did that took up 40 hours per week and prevented her from working. There was no explanation for how the Mother could provide 40 hours of care while at the same travelling to Belgium for three to four weeks one summer, or spending time at her cottage or in Trinidad at other times. Having regard to all of the evidence, I do not accept the Mother’s claim that she has been unable to work because her full-time presence was required in order to care for the grandmother.
[54] I also do not accept that her lack of immigration status in Trinidad is a reasonable explanation for why she is unemployed. Her voluntary choice to live there does not absolve her of the financial responsibility to support the child.
[55] The Mother argued that she has made reasonable efforts to find employment. She filed a grievance as a result of losing her job in 2018, but it does not seem likely that it will result in her getting another job. I accept that she has applied for other jobs at some points, but there is no detailed information about those jobs. I cannot tell from the information provided whether those were suitable jobs or what the salary was. What is clear is that she is not eligible to work in Trinidad. She chose to live there. The doors for working there are closed.
[56] I accept that the Mother has made some effort in response to this Motion to Change to apply for work, but I find that those efforts have been minimal at best. I am of the view that the Mother does not really intend to work. She appears to have significant assets and savings. She claims to have an income of $3,600 yet claims expenses of over $135,000. She claims to “borrow” heavily from her common law spouse who lives in Trinidad, yet there is evidence that she transferred over $250,000 USD to him a month after this Motion to Change was commenced. She seems to spend the winter in Trinidad, the summer at her cottage near Ottawa and travel extensively.
[57] The Mother is not intending to work: her position about work is internally inconsistent. On the one hand, she says she is unable to work due to her commitments to the grandmother and lack of status in Trinidad. On the other hand, she claims that she actively looked for work. I struggle to see how both can be true: how can a person genuinely intend to work when they are unavailable for it? I do not accept that the Mother has made genuine or adequate efforts to find work. Nor do I accept that she is unable to work.
[58] In my view, the Mother has made a series of choices that resulted in her unemployment. She lives a semi-retired lifestyle. I find that she is intentionally unemployed within the meaning of the Guidelines. Income should be imputed to her.
[59] In terms of a reasonable income to be imputed to her, I am satisfied that the Mother was capable of earning at least $75,000 a year.
[60] The Mother is 59 years old. She has a Civil Engineering degree from Queen’s University and a Teaching degree from the University of Ottawa. She had extensive engineering work experience in Canada and internationally, having worked in the United Sates, the Ukraine, Mexico, and Trinidad. The Mother would not have been hired for the projects in Trinidad she described unless she had significant and valuable work experience.
[61] Historically, her income has been significantly higher than $75,000 annually. When she worked, her income was as follows:
2012: $119,651.11 (grossed up: $155,391.05)
2013: $0.00
2014: $58,725.37 (for July to December only; grossed up $76,266.71)
2015: $121,508.93 (grossed up: $157,896.66)
2016: $131,234.07 (grossed up: $170,433.86)
2017: $115,731.11 (grossed up: $150,300.14)
2018: $45,177.41 (January to June only; grossed up $58,671.96)
[62] In 2011, when the Final Order was made, the Mother’s annual income was $75,000. Since then, she gained significant additional work experience. I find that $75,000 a year is the least that the Mother can reasonably be expected to earn had she chosen to actively look for and work full time.
[63] I recognize that she is now 59 years old and that she has been out of the workforce for almost four years. I accept that the passage of time may be a hurdle to her getting a job or earning what she used to. This is, however, of her own doing. It would not be fair to allow the passage of time to reduce imputed income when the passage of time is the result of someone’s choice not to work. Had the Mother chosen to look for work four years ago, when she had just lost her job and was 55, (in a country where she is legally allowed to work), she would have been in a much better position to secure suitable employment with an income comparable to what she was accustomed to earning.
[64] I am satisfied that in all the circumstances the Mother is intentionally unemployed. Reasonable income to be imputed to the Mother for child support purposes is $75,000 annually.
The Father’s Income:
[65] The parties agree for the most part that the Father’s income for support purposes is his employment income as set out in his Notices of Assessment. The only dispute is whether his RRSP withdrawals and Homebuyer’s Plan income should be included in his income for support purposes.
[66] I am of the view that the RRSP income should not be included. He made these withdrawals for a couple of years when his financial circumstances where strained as a result of his mother’s passing and the birth of his fourth child, but the withdrawals were not a regular occurrence.
[67] The question of whether money he received under his Homebuyer’s Plan was income for support purposes is not a question I have to resolve. Whether his income was $153,857 or $152,825 makes no difference to the monthly support calculation. According to the Divorce Mate calculations, the payment owed by the Mother to the Father in 2018 and 2019 is $700 per month, regardless.
[68] Based on the Father’s income of $152,825 or $153,857 and the Mother’s income of $75,000, I find that the table amount of child support the Mother should have paid for September 1, 2018 to June 30, 2019 is $7,000.00 ($700.00 x 10 months).
Support and Post-Secondary Expenses:
[69] The parties do not dispute that Jessica is dependent on her parents for support during her post-secondary studies. Rather, the dispute is about (i) whether she is also entitled to table amount of child support under the Guidelines, (ii) what a reasonable annual budget for her should be and (iii) what the proportionate contribution of each parent towards that budget should be.
[70] The Mother argued that the Father’s obligation to pay table amount of support ought to continue for the duration of Jessica’s post-secondary education, regardless of whether she lives on campus or off-campus. I disagree.
[71] Table support may be appropriate for an adult child who is attending post-secondary school where the custodial parent is providing a home for that child. This is not such a case. For the reasons I have already set out, I find that Jessica’s primary residence is not with the Mother. I find that Jessica is no longer living with either parent. She lives independently, in downtown Toronto. She has, and is capable of working, to contribute towards her education.
[72] The parties agree to contribute their proportionate share to a reasonable budget. They disagree on what the budget should be. To determine a reasonable budget towards post-secondary education, the court must have regard to whether the expenses were necessary and whether the expenses were reasonable in light of the parties’ means and the nature of the post-secondary pursuits.
[73] In this case, the parties agree that Jessica is pursing a reasonable program for which she shows aptitude. She is applying herself reasonably and diligently to her studies. The dispute is in respect of the budget. The Father says a reasonable budget is $28,000 per year, while the Mother submits that $34,000 or $34,500 is a reasonable budget.
[74] Not all expenses incurred by an adult child while attending post-secondary studies are considered section 7 expenses. Only those necessary for the pursuit of education should be included. In this case, I agree that the budget proposed by the Father, is reasonable to meet Jessica’s needs. It is also reasonable in light of the parties’ respective means: the Mother does not work while the Father has three younger children to support.
[75] The biggest discrepancies between the Mother’s and the Father’s budget for Jessica related to three items: housing ($7,000), flights to Trinidad ($2,000), and pet care ($1,000). The Mother budgeted $1,400 a month for Jessica’s rent, whereas Jessica paid between $810 and $950 per month in rent.
[76] I find that there is no justification for the increased figure for rent in the Mother’s budget. The figures proposed by the Father already exceed the budget proposed on the University of Toronto Financial Planning Calculator. Using this planner, the Father calculated that a basic annual budget for a 3rd year student living in Toronto and using public transit is $21,084. The rent Jessica pays is therefore in line with what is reasonable and expected for a student like her living in downtown Toronto.
[77] I also agree with the Father that flights to Trinidad should not be included in Jessica’s school budget. Neither Jessica nor her Mother were residing there when this motion was heard. The Final Order also makes clear that the Mother is the one responsible for the cost of two flights per year to Trinidad because she chose to live there. Flights to Trinidad are not necessary for the pursuit of education.
[78] Similarly, pet care is not a necessary expense for the pursuit of education. I have no evidence to explain why $1,000 a year is a reasonable or necessary expense for Jessica for pets. Clearly, the $1,000 a year for pet-care included by the Mother in her proposed budget does not relate to education.
[79] For these reasons, I am satisfied that a reasonable budget for Jessica’s post-secondary education is $28,000 annually.
[80] It is not disputed that Jessica was able to contribute towards her own education. In particular, she saved over $7,000 in the past year and received over $6,000 in refunds from the university in 2020 and in 2021 which she deposited into her own bank account. She is also capable of earning an income, has, in fact, earned an income. The parties agree that she should contribute $6,000 per year towards her overall budget. Any refunds she received should be applied towards her tuition prior to any contribution by her parents.
[81] Assuming an annual expense of $28,000 and a $6,000 annual contribution from Jessica, the total to be shared by the parties is $22,000 annually. Based on my findings as to income, the Father’s contribution should be approximately 65% (or $14,300), while the Mother’s contribution should be approximately $35% (or $7,700).
[82] I am satisfied that the money the Father has paid towards s.7 expenses since September 2018 and Jessica’s post-secondary education should be credited towards his proportionate share under this budget in 2019, 2020, 2021 and on-going.
The Mother’s Retroactive Support and s.7 Expenses Claim:
[83] As I have set out above, the Mother claimed increased table amount support and section 7 expenses retroactive to 2011. The Mother argued that father owes her a total of $21,426.30 in retroactive child support payments; $16,651.75 in aggregate for underpayments of child support going back to 2011 and $4,774.55 for lost interest on these monies, calculated at a 5% rate. She also claimed section 7 expenses from 2011 to July 2019, which she said totalled $7,553.00 The first time she gave notice to the Father of these claims was in her Response to the Motion to Change dated June 27, 2019.
[84] In D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court outlined four factors to consider when determining whether to award retroactive child support. These are:
a. the payee’s excuse for why support was not sought earlier;
b. the conduct of the payor;
c. the past and present circumstance of the child; and
d. any hardship occasioned by a retroactive award.
[85] These factors were recently affirmed by the Supreme Court in its decision in Colucci v. Colucci. Justice Martin, writing for the court, noted that ultimate consideration informing the analysis of the aforementioned factors is to ensure that the child in question receives what they are owed and that the circumstances of the child at present must be considered. The start date for support is ordinarily the date “formal notice” of the claim is given, unless there is reason to order otherwise: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 311; Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, at para. 114(c). Formal notice is the date a claim is issued.
[86] The start date can also be when “effective notice” of a claim for support is given. Effective notice is any indication by the recipient that support should be paid, or if it already is, that the current amount needs to be renegotiated. For effective notice, all that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair: D.B.S., at paras. 5 and 121-22; Colucci, at para. 114.
[87] An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given: D.B.S., at para. 123; Colucci, at para. 93.
[88] The ultimate decision to order retroactive support is discretionary. A court may depart from the presumptive date to prevent unfairness: Colucci, at para. 114(d). In Kerr, at para. 211, the court said that the decision to order a retroactive award should be “the product of the exercise of judicial discretion in light of the particular circumstances.” Ultimately, the decision to order retroactive support is concerned with fairness.
[89] In determining whether to award retroactive child support, I must consider what is fair to the Father and Jessica’s current needs. In this case, I find that:
a. The Mother has not adequately explained the delay in asking for the retroactive support or section 7 expenses;
b. There was no blameworthy conduct by the Father;
c. Jessica’s current circumstances do not demonstrate need for the retroactive support.
In this case, the Mother gave formal notice of the retroactive claim in June 2019 when the Mother filed her Response to the Motion to Change. There is no evidence that the Mother broached the subject any earlier. I do not accept her position that the retroactive support should be recalculated more than the three years conceded by the Father.
[90] The only explanation the Mother has offered for her failure to seek retroactive increased table support and section 7 expenses earlier is that Father did not disclose the increases in his income over the years. I do not accept her explanation in this regard.
[91] The table support should have been adjusted every year. Under the Final Order, the parties were required to exchange income information by July 1 of each year. They did not. The Mother, in her affidavit, claims that the Father deliberately hid his income and refused to provide financial disclosure in bad faith. I find her evidence to be exaggerated.
[92] The obligation to provide financial disclosure did not rest with the Father alone. The Mother was obliged to provide her income information also. I note that her income 2012 to 2018 was significant. She also experienced increases in income. Most of those years, her income was significantly more than $75,000 imputed to her at the time the Final Order was made. In some years, it was nearly twice that amount.
[93] The Mother asked the Father for his income tax disclosure, in passing, in an email, in 2013, 2015 and 2018. She did not pursue the exchange of financial information with any diligence. Most importantly, she did not comply with her obligation to disclose her income. Her obligation to disclose her financial information was not dependent on his disclosure.
[94] Although the Father did not provide the required annual financial disclosure, I do not find that his conduct was any more blameworthy or deliberate than the Mother’s. I reject the Mother’s claims that he deliberately set out to hide his income from her in order to avoid his support obligations to Jessica. I accept his evidence that he did not fully appreciate the disclosure obligation, but in the meantime provided support required under the Final Order through FRO.
[95] In November 2018, the Father provided his Notices of Assessment for 2017, 2016 and 2015. From these, it was evident that he had underpaid support in those years. Yet there is nothing before me that established that the Mother made any claim or gave notice of her claim for retroactive support then. She did not make this claim until he formally asked to terminate support by commencing this Motion to Change.
[96] There is no basis to make an award for retroactive section 7 expenses. None of the section 7 expenses the Mother claimed are supported by any receipts. The Father was given no notice that these section 7 expenses were incurred or that his contribution was expected or requested. The Final Order set out his contribution to section 7 expenses: it was $1,000 per year. He paid that amount. The Mother did not ask him to make any additional contributions to any of the expenses she now claims.
[97] I found the Mother’s affidavit replete with unfair and exaggerated accusations against the Father. For example, she claimed that the Father preferred to support his new family, rather than his first child and that he deliberately refused to pay child support and post-secondary expenses for Jessica. This is simply not borne out by his actions. The Father has paid the required child support, daycare expense and section 7 expenses for Jessica under the Final Order for more than 10 years. He continued to pay this support even when Jessica was clearly living with him, and he was also responsible for her day-to-day expenses and needs. He continued to pay table support even when Jessica was living away in residence at university, and clearly not living with the Mother. He has made significant contribution to Jessica’s post-secondary expenses.
[98] The Mother more than once referenced the Father spending money to take expensive vacations with his “family of 6”: his family of six clearly included Jessica (the Father, his wife and their three children plus Jessica equals 6). I find that the Mother’s accusations against the Father were unfair, unnecessary and exaggerated. Such accusations detracted from the overall credibility and reliability of the Mother’s evidence. Where her evidence conflicted with that of the Father, I did not accept her evidence.
[99] Both parties were obliged to exchange financial information so long as support was payable. Neither party did. I do not accept the Mother’s allegation that the Father failed to provide his income disclosure deliberately, and in bad faith, to deprive Jessica of her rightful entitlement to support as she claims. I find that he has made significant contributions towards Jessica’s post-secondary expenses. On this Motion to Change, he asked not to bear the cost of her post-secondary education alone. He has not engaged in any blameworthy conduct.
[100] For these reasons, I decline to exercise my discretion to order any retroactive support beyond the three years prior to the formal notice. I decline to order any contribution to the additional section 7 expenses sought by the Mother for the first time in response to the Motion to Change. In my view, it would not be fair to make a retroactive award in these circumstances.
[101] However, in his calculations of his overpayment of support contained in Exhibit H, the Father deducted $5,872.76 he underpaid for support in 2011 to 2017 from the $36,791.64 he overpaid from 2018 to 2021, leaving a total owing to him of $30,918.88. In effect, it appears by his calculations that he has conceded that the Mother receive the retroactive support to 2011. I do not agree, but I will give effect to his calculations.
Conclusions:
[102] I am satisfied that there was a material change in circumstance in September 2018 when Jessica came to live with the Father in Burlington. Table support should have terminated then. The Mother should have paid child support to the Father from September 1, 2018 until June 30, 2019. Based on an imputed income of $75,000 per year, her support obligation was $7,000 for that time period. I am also satisfied that up to May 2021, the Father overpaid support by $30,918.88.
[103] The overpayment of $30,918.88 is based on the Father’s calculations. His calculations take into account the underpayment of support the Mother claimed for 2011 to 2015. I accept his calculations.
[104] The Order requested by the Father provides that the Mother owes him $12,139.34 for arrears and overpayment of support. It is not clear to me how this sum is arrived at. I will adopt that number unless I hear from the parties within 7 days that there is a mistake in my calculations. If there is a mistake in my calculations, the parties may make written submissions not exceeding two pages.
[105] A reasonable budget for Jessica’s post-secondary expenses commencing in September 2019 is $28,000 per year. Jessica can reasonably contribute $6,000 per year towards these expenses, and the rest is to be shared by the parents proportionate to their incomes, with the Father paying 65% (or $14,300 for the school year commencing in September 2019, 2020, 2021 and 2022) and the Mother paying 35% ($7,700)
[106] The Father is entitled to a credit of $9,514 plus any other amounts he has paid directly towards Jessica’s post-secondary expenses since 2019 towards his share of her post-secondary expenses. He is also entitled to a credit for the section 7 expenses he has paid through FRO from September 1, 2018 to the present. This credit shall also be applied against his share of Jessica’s post-secondary expenses.
[107] The Mother’s claim for retroactive payment of section 7 expenses is dismissed. Her claim for retroactive table support is allowed, in part, to the extent that it forms part of the Father’s calculations of the child support overpayment.
Order to Issue:
[108] In all the circumstances, I am satisfied that the Order sought by the Father shall issue. It is as follows:
[109] Paragraph 3 of the Final Order shall be deleted and replaced with the following paragraphs:
a. The Mother shall pay the Father $12,139.34 in arrears of child support and/or overpayments of child support up to and including August 31, 2019 plus any amounts the Father paid through FRO for child support since September 1, 2019 to the present.
b. The Father shall be credited with the amount he has contributed to Jessica’s section 7 expenses through FRO since September 1, 2018;
c. The Father shall be credited $9,514, which is the amount he contributed towards Jessica’s section 7 expenses in post-secondary school for the years 2019/2020 and 2020/2021;
d. The Mother’s income for support purposes shall be imputed at $75,000 per year commencing 2018;
e. For the 4 years of Jessica’s post-secondary studies, ending April 2023, the parties shall be obliged to contribute their proportionate shares to a budget not exceeding $28,000 per year as follows:
f. Jessica’s contribution towards the $28,000 post-secondary expenses budget shall be $6,000 per year;
g. The parties shall share the net post-secondary expenses after Jessica’s contribution as follows: the Father shall contribute 65% and the Mother shall contribute 35%;
h. No table child support shall be paid by either party. All support payments made by the Father from September 1, 2019 to date shall be credited against his obligations as set out in “g” above;
i. The Mother shall cooperate in advising the Family Responsibility Office that the Support Deduction Order based on the Final Order is varied, effective the date of this Order.
j. The Mother shall forthwith reimburse to the Father all child support amounts she receives pursuant to the Final Order between the date of this order and the date that FRO ceases to collect child support from the father pursuant to the Final Order.
Costs:
[110] The parties are encouraged to agree upon appropriate costs for this Motion to Change. If the parties are not able to agree on costs, each may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs) by 4:30 pm on August 26, 2022.
[111] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
[112] If I have not received submissions by 4:30 pm on August 26, 2022, from either party, I will infer that the party who did not submit does not wish to make submissions and I will decide on the basis of the material that I have.
Chozik J.
Date: August 2, 2022