COURT FILE NO.: FC-11-887-5
DATE: August 18, 2022
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: Wayne Lisk v. Nadine Cheryl Lindenback
BEFORE: Honourable Mr. Justice Martin James
COUNSEL: M. Peter Sammon, Counsel for the Applicant Self-Represented Respondent
DATE HEARD: April 22, 2022
REASONS FOR DECISION
James J
[1] The applicant has brought a motion for the enforcement of a previous order made in 2019 regarding the respondent’s contributions to the university expenses of their son Branden.
[2] Branden is the second of two children and he is in his last year of University. This is the latest of a series of disputes regarding the education costs of their children.
[3] Branden is a gifted student. He is enrolled in the co-op engineering program at the University of Waterloo. The applicant says he recently placed third in his class. The respondent would have preferred that Branden obtain his engineering degree at another university at less cost but the applicant supported his preference to attend the University of Waterloo and this was endorsed by Justice McNamara in 2019. Justice McNamara provided a template to assist the parties in apportioning Branden’s education costs. Both parties contend that the other has failed to follow the template.
[4] In Branden’s first year (2018-19) his expenses were fixed at $45,000.00. He contributed $21,388.00. Each parent’s share was about $11,800.00. The respondent says she paid part of her contribution in cash ($2,000.00) in July 2018 but this is disputed by the applicant who attached to his affidavit a note from Branden wherein Branden says he didn’t receive a cash payment of $2,000.00 from the respondent in July. Based on information supplied by Branden, the applicant took the position that the respondent’s contribution for Branden’s first year was underpaid by $2,028.00.
[5] In his second year (2019-20) Branden’s total expenses were much less than the previous year and came in at $32,972.00. Branden was able to contribute $28,481.00 and the total parental contribution was $4,491.00 or $2,245.00 from each parent.
[6] The respondent says that in August 2019 she contributed $10,000.00, anticipating that Branden’s second year expenses would be similar to his first year. This payment resulted in a significant overpayment although it is not clear when the true (reduced) cost of Branden’s second year became apparent to the parties.
[7] The respondent says that the applicant deceived her by not disclosing that the parental contributions in year two would be much lower than year one.
[8] The applicant disputes that he “deceived” the respondent by not telling her about her overpayment. He says he advised the respondent that she had overpaid her share of the second year expenses and relies on an email he sent to the respondent that refers to the overpayment. I note, however, that the “overpayment” was made in August 2019 and the applicant’s email to the respondent is dated almost two years later. There is no evidence that the respondent was provided with timely information that she had overpaid.
[9] The applicant says that he recommended to Branden that he “hang on” to the overpayment due to concern that the respondent would not pay her share in the future. In my view, this was an error in judgment. It would have been more appropriate to disclose the overpayment when it became known. The respondent’s mistrustfulness appears to have increased significantly when she learned that her share of the second year expenses was actually only $2,245.00 after she had paid $10,000.00.
[10] The applicant says that Branden’s third year expenses (2020-2021) were $44,533.88. Branden’s contribution was $26,582.00 leaving $17,951.88 to be shared by the parties. He says that the respondent underpaid her share of the third year expenses by $4,976.00. In the applicant’s view of the situation, by applying the respondent’s overpayment in year two to her shortfalls in year one and year three, the respondent was in a net overpayment position of $751.00 at the end of year three.
[11] The respondent says that she suspects that the budget for Branden’s year three expenses was inflated. She says the budget provided to her differs from the budget that the applicant attached to his affidavit for Branden’s year three expenses. It is true that the two budgets appear to be different. She says that by her calculation she was in a net overpayment position of $3,779.00 at the end of the year three.
[12] The applicant says that Branden’s fourth year (2021-22) expenses were estimated to be $44,869.79 and the respondent has not made any contribution towards the partial contribution of $21,917.79 or $10,958.90 each.
[13] The respondent questions several expenses in the budget and requests that all budget items be verified.
[14] The applicant says that Branden’s fifth year budget (2022-23) can reasonably be projected to be the same as his fourth year and that the parental share should be about $10,959.00 each.
Position of the Applicant
[15] The applicant says that the respondent wishes to “re-litigate” Justice McNamara’s order from 2019 and has made excessive and unreasonable demands for information that amount to harassment.
[16] The applicant says that Branden has provided the respondent with all information necessary to address her concerns.
[17] He says that following Justice McNamara’s determination that $45,000.00 was a reasonable estimate for Branden’s first year, it is reasonable to assume that the following years would cost about the same amount. The reason the respondent has not paid her share is that she was opposed to Branden attending the University of Waterloo and will never be satisfied with the amount of disclosure provided to her.
[18] The applicant has requested an order requiring the respondent to pay $10,208.00 forthwith for Branden’s fourth year expenses and the further sum of $10,959.00 by September 30th, 2022 for his fifth year expenses.
Position of the Respondent
[19] The respondent says that Justice McNamara’s order anticipated the need for flexibility and discussion. He implied that all parties should agree to the budget. It is only reasonable to assume that if she is expected to “generally share” in the expenses that she would have equal input to the expenses.
[20] It is reasonable to infer that a student who has placed third in his program would be eligible for scholarships and bursaries. The respondent believes that Branden has received scholarships that he has not disclosed to her.
[21] The respondent alleges that the applicant and Branden have conspired together to defraud her with inflated budgets and undisclosed sources of revenue. Also, they failed to include the full value of a bursary from his secondary school in the calculations. She requests that the applicant be required to verify the amounts contained in the budgets.
[22] The respondent requests that one third of the tuition tax credits be allocated to her.
[23] In her factum the respondent has included some “evidence” to support her contention that Branden has withdrawn from the respondent’s parental control and has unilaterally terminated his relationship with her.
Discussion and Analysis
[24] The parties disagree on several important points and it is difficult to discern what information is correct and what information is incorrect. For example, they disagree on whether the respondent made a $2,000.00 cash payment in July, 2018 and the extent to which the respondent has been provided with documentation that substantiates Branden’s actual expenses.
[25] The difficulties associated with making credibility findings based on affidavit evidence, without the benefit of questioning under oath or oral testimony in the presence of the fact finder with contemporaneous cross-examination, are well known (see Ierullo v. Ierullo (2006), 23 R.F.L. (6th) 246 (Ont. C.A.). In Ierullo, the Court of Appeal criticized the trial judge for making credibility findings based on untested affidavit evidence and directed that the issues be tried with oral testimony.
[26] I note the absence of primary source documentation in the evidentiary record in support of the applicant’s contention that all necessary information was supplied to the respondent. The budgets attached to the applicant’s affidavit, standing alone without supporting documentation, are not particularly persuasive. The missing evidence might reasonably include printouts of Branden’s student loan history and documentation from the University about tuition costs and other student fees, how much was paid and when. There is likely information from the University’s financial aid office regarding whether Branden received any scholarships or bursaries. It is not clear what information was supplied to the respondent regarding Branden’s income from his work terms or other sources of revenue.
[27] It is understandable that the apparent lack of timely disclosure of the respondent’s overpayment of her share of Branden’s second year expenses prompted a lack of trust on her part. Perhaps this contributed to excessive requests for verification. The respondent is entitled to a reasonable amount of disclosure in support of requests for her contributions. Whether this disclosure has been provided or is sufficient, or whether the respondent is overreaching in her requests for information, cannot be determined on the available evidentiary record.
[28] I do not agree with the respondent’s contention that “if one is expected to “equally share” in the expenses they would have “equal” input to the said expenses”. Firstly, the respondent’s contributions have been significantly less than Branden’s. Secondly, due to the parties’ disagreements about school funding, the court was asked to provide a template for how Branden’s education is to be paid for. The respondent was opposed to Branden’s choice to attend the University of Waterloo and would have preferred that Branden attend Carleton University where he had a been offered a scholarship. There is a risk in granting decision-making power to a parent who is opposed to the student’s plan in the first place. I agree that consultation is desirable, but this can be difficult when the parties are experiencing communication difficulties. I would re-frame the respondent’s assertion to say that consultation and input is desirable and at a minimum, disclosure and some means of verification are required.
[29] It is not sufficient for the applicant to suggest that because Branden’s first year costs amounted to about $45,000.00 and the respondent’s share was $11,800.00, it is rational or logical that these amounts ought to carry over into subsequent years. The reality is that the amounts changed significantly in Branden’s second year and there are various reasons why the amounts could fluctuate from year to year.
[30] I do not accept the respondent’s suggestion that Branden has unilaterally terminated his relationship with the respondent on the evidentiary record as it currently exists and more importantly, it is not an issue that is properly before the court on this motion. The case of Law v. Law (1986), 2 R.F.L. (3d) referred to by the respondent is an old case that is factually quite different. In Nicholson v. Nicholson, FC-20-25, May 13, 2021, unreported, I referred to the case of Misener v. Misener [2010], O.J. No. 1793 (Ont. S.C.) where the estrangement between a father and daughter did not disentitle the child to support for her education and went on to provide that:
In most cases, disruptions in the parent-child relationship have complicated and multi-faceted causes. The sparse available evidence does not satisfy the high onus of proof required to establish that Madeleine has unilaterally terminated her relationship with the Respondent for no good reason.
[31] It is improper for the applicant to have included a settlement offer in the evidence to be used on the motion. The last two paragraphs of Exhibit D to the affidavit of March 28, 2022 are struck out and the applicant shall re-file the affidavit by September 16, 2022 with the last two paragraphs redacted from the exhibit. The time to discuss offers to settle is after there has been a ruling and in conjunction with determining who should pay legal costs and on what scale.
[32] I am not aware of the legal basis upon which the respondent claims to be entitled to some of or all the tuition tax credits. This issue does not appear to have been mentioned by Justice McNamara and is not in an issue addressed in a notice of motion before the court at this time.
[33] Rule 2 of the Family Law Rules says that the primary objective of the rules of court is to deal with cases justly. Dealing with cases justly includes ensuring that the procedure is fair, that the case is dealt with in ways that are appropriate to its importance and complexity and with a view to saving time and expense. It also provides that the court ought to actively manage cases to accomplish these objectives. I have determined that this matter cannot be dealt with justly based on the affidavits currently before the court and the available evidentiary record. Accordingly, I am directing that there be a focused hearing on the issue of Branden’s university expenses and the appropriate allocation of these expenses consistent with the court’s previous order.
Disposition
[34] The trial coordinator shall schedule a hearing for directions before the judge appointed to conduct the focused hearing at which time the following matters shall be addressed:
a. The precise issues to be determined;
b. The manner in which the hearing is to be conducted including the amount of time to be set aside for the hearing;
c. What additional affidavit evidence will be permitted;
d. A timetable for the completion of the hearing, and
e. Such other matters as the presiding judge may permit.
[35] The last two paragraphs of Exhibit D to the affidavit of the applicant dated March 28, 2022 are struck out and the affidavit shall be re-filed by September 16, 2022 with the offending portions redacted.
[36] The costs of the proceeding to date shall be in the discretion of the judge conducting the focused hearing.
Justice M.S. James
DATE: August 18, 2022