COURT FILE NO.: 3324/15

DATE: 2022/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALLYSON CHRISTIE CRAIG

Applicant

– and –

DOMENICO NIRO

Respondent

Self-represented

Self-represented

HEARD: November 30, 2021, and August 12, 2022; further written submissions received on August 23, 2022

REASONS FOR DECISION

Ellies R.S.J.

INTRODUCTION

[1] The respondent, Mr. Niro, brings two motions. In the first, he seeks a contribution under s. 7 of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines") from the applicant, Ms. Craig, for expenses relating to both their children. In the second, he seeks to vary a final monthly support order as it relates to their son, who is now in university.

[2] For the following reasons, the motion regarding s. 7 expenses is allowed in part and the motion regarding the variation is dismissed, with leave to renew the motion on a proper evidentiary record.

BACKGROUND

[3] The parties separated in 2014 after being married for more than 13 years. They have been litigating with one another over family matters ever since.

[4] There are two children of the marriage: a boy aged 20 and a girl aged 17.

[5] On July 3, 2019, Gareau J. made a final order regarding decision making, parenting time, and child support. The order required that the children reside equally with both parents on a fixed schedule and that Mr. Niro, whose income is higher, pay child support to Ms. Craig in the amount of $898 per month. The order also required that Ms. Craig pay 36 percent and that Mr. Niro pay 64 percent of s. 7 expenses and that each parent only be required to contribute that parent's pro rata share of expenses if the parent consented in writing to the expenses in advance.

[6] In October 2020, at the request of Ms. Craig, Gareau J. varied the child support portion of the July 2019 order. He ordered that Mr. Niro pay child support in the amount of $1,330 per month for the two children, based on Mr. Niro’s income of $215,247 per year and Ms. Craig’s income of $104,813 per year.

Section 7 Expenses

[7] The parties’ son began his first year at Brock University in the fall of 2020. However, due to COVID-19, he did not have to move away from home and was able to learn remotely that year, instead.

[8] In the fall of 2021, Brock University resumed in-person learning and the son was required to move to St. Catherines to attend his second year. Ms. Craig had collected a number of items to furnish the son's apartment, including a mattress, a bed frame, a dresser, a chair, a lamp, and a small fridge. Mr. Niro had also collected items for him, including a number of small appliances.

[9] Until mid-August, the arrangements were that the son would travel to St. Catherines on August 31, 2021, with a friend, whose family was to transport the items Ms. Craig had collected for him. I assume that the two young men were to live together. Mr. Niro had planned to bring what he had accumulated using his own father’s truck the following week.

[10] However, that plan changed. It is hard to determine from the evidence exactly why. I will return to this evidence later in my reasons. For now, it is sufficient to note that Mr. Niro ended up taking the son to university and incurred expenses totalling $2,733.94. Those expenses included the costs of purchasing many of the items Ms. Craig had set aside for the son. Mr. Niro now seeks Ms. Craig’s 36 percent contribution to those expenses in the amount of $984.22.

[11] Ms. Craig submits that she should not be required to pay for things she already had for the son and that Mr. Niro refused to bring. She also deposes that her son had a gift certificate for furniture for which Mr. Niro has not accounted.

[12] With respect to the daughter, Mr. Niro seeks Ms. Craig’s pro rata share for hockey equipment, including knee pads, a cage, and a new hockey stick. The hockey stick alone cost approximately $320. The total bill was $570.48. Mr. Niro seeks Ms. Craig’s pro rata share in the amount of $129.77.

[13] With respect to these expenses and those of her son, Ms. Craig argues that the expenses are not extraordinary and that she has paid for many things and given the children money towards other things for which she has not sought a contribution from Mr. Niro or been successful in obtaining one.

Motion to Change

[14] Regarding the Motion to Change, Mr. Niro submits that, as the son is now away from both parents’ homes for eight months of the year, the monthly child support he is paying should be reduced proportionately.

[15] Using the incomes for the parties upon which Gareau J. based his child support order of October 2020, Mr. Niro calculates the new amount as follows:

• support for one child (the daughter) = $819/month

• difference between table support for two children v. one child ($1,330 - $819) = $511/month

• $511/month x 4 (the number of months the son resides with both parties) = $2,044

• $2044 ÷ 12 = $170/month for the son

• Total support ($819 + $170) = $989/month.

[16] In response, Ms. Craig submits that the son still requires support. She deposes that she has e-transferred to him $1,550 during the 2021-22 school year to the date of her affidavit and that she believes she gives him about $500 per month while he is away.

[17] Ms. Craig also submits that because she did not seek any more than the table amount of child support for a payor earning $150,000 per year from Mr. Niro when the present amount was ordered, it would be inappropriate to reduce it any further.

ISSUES

[18] These arguments give rise to the following issues:

(1) What, if anything, should Ms. Craig be required to contribute to the son's moving expenses?

(2) What, if anything, should Ms. Craig be required to contribute to the daughter’s hockey equipment expenses?

(3) Should the monthly child support be varied?

(4) If so, what amount of monthly support should be ordered?

ANALYSIS

What, if anything, should Ms. Craig be required to contribute to the son's moving expenses?

[19] In Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), a majority of the court held that a motion judge asked to apportion an adult child's post-secondary education expenses between parents should do so under s. 3(2)(b) of the Guidelines, rather than under s. 7: at para. 139. However, as the majority in Lewi also noted, where an adult child of the marriage resides away from home during the school year, as the son does in this case, apportioning the post-secondary expenses first under s. 7 will often yield the same result. This is because both s. 3(2)(b) and s. 7 require the court to consider whether an adult child of the marriage is able to contribute to those costs and, if so, to what extent: Lewi, at para. 141.

[20] As I will explain, I am unable to determine what contribution the son should make to ongoing expenses in this case because of the quality of the evidence. However, even if I was able to do that, I would not require him to contribute to the moving expenses at issue in this motion because of the way in which they arose, as I will also explain. For that reason, I can deal with the son's s. 7 expenses first.

[21] Section 7 of the Guidelines defines “special or extraordinary expenses”. The relevant portions of the section provide:

(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:

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[22] In Titova v. Titov, 2012 ONCA 864, at para. 23, Rouleau J.A. set out the correct approach to be taken by a court under s. 7:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[23] No issue has been raised by Ms. Craig with Mr. Niro's position that the parties' pro rata shares should be the same as those set out in the July 2019 order or that anything other than the incomes upon which the October 2020 order was based should be used to decide the s. 7 issues.

[24] Rather, Ms. Craig submits that neither the son's moving expenses nor the daughter's hockey expenses are extraordinary. With respect to the son's expenses, however, this is irrelevant. As s. 7 itself and the excerpt set out above make clear, there is no requirement that post-secondary education expenses be extraordinary. Nonetheless, to qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. In my view, that can only be true where the expense in question is not one that would otherwise have been incurred.

[25] On this basis, I have no difficulty concluding that the expenses associated with the purchase of furniture, appliances, food, toiletries and even "shower flip flops" are all properly characterized as post-secondary education expenses for a temporary residence being shared with someone else while at university. The same can be said for the cost of a hotel room for a night or two while a student's belongings are being moved into a temporary residence and for restaurant meals while this is being done.

[26] However, I do have difficulty concluding that Ms. Craig should be required to pay a portion of Mr. Niro's restaurant meals, as requested. Had everything gone according to plan, both he and Ms. Craig would have made trips to St. Catherines to bring items down for their son. I would not have considered the cost of restaurant meals for either one of them to be a proper post-secondary education expense and I do not accept that Mr. Niro's meals should be paid in part by Ms. Craig simply because he had to rearrange his travel plans. Because I have no information as to what portion of the restaurant expenses are attributable to the son, I would simply divide the amount sought ($166.91) in half and deduct that sum ($83.46) from the total of $2,733.94, leaving $2,650.48. Ms. Craig's 36 percent share of this sum is $954.17.

[27] Turning to the remaining requirements of s. 7, I believe that those expenses that are properly characterized as post-secondary education expenses were both necessary, having regard to the son's best interests, and reasonable, having regard to the means of the parties. While I have no information as to the parties' spending habits prior to the separation or about tax credits, the amounts at issue are small enough and the incomes of the parties are large enough that the importance of this information is diminished to the point of insignificance.

[28] With respect to Ms. Craig's allegation that Mr. Niro has failed to account for a gift certificate for furniture, I find the evidence about this to be too vague to be persuasive. For reasons I will come to, I also find it very unlikely that Mr. Niro would not try to reduce the amount that he himself had to contribute to his son's expenses by failing to use such a certificate, if one actually existed.

[29] This leaves one issue still to be considered under s. 7: the son's ability to contribute. In my view, the resolution of this issue turns on the way in which the expenses at issue arose.

[30] The July 2019 order provided that each parent is to pay his or her pro rata share only of those s. 7 expenses with respect to which that parent had consented in advance. Ms. Craig clearly did not consent to the son's s. 7 expenses now being sought by Mr. Niro. However, the order also required that each parent was not to withhold his or her consent unreasonably. For reasons I will explain, I have concluded that Ms. Craig unreasonably withheld her consent in this case.

[31] Mr. Niro wrote to Ms. Craig about the son's move on August 20, 2021. In that email, he alleged that Ms. Craig was supposed to bring their son to St. Catherines on September 2, but that Ms. Craig backed out at the last minute. Mr. Niro had planned to go down the following weekend. He wrote that he was required to rearrange his holidays so that he could take their son down earlier, but that he could not fit all of the things Ms. Craig had for the son in the truck he was planning to use. Accordingly, he asked her to contribute to the cost of a rented cargo van and hotel accommodations.

[32] Ms. Craig wrote back on August 21. I understand from her email that her son was supposed to travel to university with the family of his roommate. She alleged that Mr. Niro told the son to cancel a U-Haul that I assume was to be rented for the purpose of moving both her son's and his roommate's things down. She alleged that Mr. Niro suggested, instead, that Ms. Craig drive the son down on September 2. Mr. Niro denied this in a later message.

[33] Ms. Craig also wrote on August 21 that it was ridiculous for Mr. Niro to request that she contribute to the cost of a rental vehicle when he was the one that caused the son to cancel the rental that had been in place. She wrote that it was unreasonable to expect her to drive their son on September 2 with a bed, only to have him wait for two days for his father to bring the rest of his things down.

[34] As I mentioned earlier, Mr. Niro ultimately did take the son to school, but without renting anything to transport the larger items. Instead, he bought the son a dresser, a mattress, a bed frame, lamps, and other things for which he seeks partial reimbursement. Ms. Craig submits that it is unreasonable to make her contribute to the cost of things she already had for the son. However, it is clear from the evidence that she had an opportunity to avoid this expense and failed to do so.

[35] In his message of August 20, Mr. Niro offered to transport the items Ms. Craig had for the son and asked her to drop them off at his home on September 1 so that he could pack them into the van. Ms. Craig refused to do so, even though there is no evidence that she had any other plan to get the items to St. Catherines. In my view, it did not matter how or why the original plan changed. Even if Ms. Craig was correct that Mr. Niro had caused the change, she still had to get the items she had to her son. One way or the other, it was going to cost her something. Further, even on the original plan, the son was going to have to wait for Mr. Niro to come down before getting the rest of his things.

[36] For these reasons, it was unreasonable for Ms. Craig to refuse to at least drop the items off at Mr. Niro's. It was also unreasonable not to agree to contribute something to the cost of getting them to St. Catherines.

[37] While I believe Ms. Craig's refusal was unreasonable, it was not incomprehensible. Things have been very acrimonious between the parties since they separated. This is at least the second s. 7 motion brought by Mr. Niro. The last one was brought in April 2021. It was entirely unsuccessful. So, too, was a contempt motion he brought in the fall of 2020, which was based, in part, on another s. 7 claim. Notwithstanding his substantial yearly income, Mr. Niro appears to be focused on the financial consequences to him of the parties' separation. Both in his written materials and in his oral submissions, he referred to the fact that he believes he is suffering financially while Ms. Craig and her new partner (ironically, the former spouse of Mr. Niro's new partner) have been able to afford home renovations.

[38] I can understand Ms. Craig's frustration with Mr. Niro. However, she cannot adopt a policy of blanket refusals. She must consider the necessity and reasonableness of the proposed expenses, just as this court must do under s. 7. Had she done so, she ought to have concluded, as I have, that the expenses were both necessary and reasonable. Her refusal, therefore, was unreasonable.

[39] What contribution, then, should the son be expected to make to these expenses?

[40] Like the evidence about the other issues in these motions, I have only vague evidence about the overall cost of the son's post-secondary education in 2021-2022. Mr. Niro submits that the cost of the 2021-2022 school year was $22,879.32. He bases this submission on the fact that Ms. Craig took $16,757 out of the son's RESP and that the son contributed another $6,122.32 from his 2021 summer earnings. However, Mr. Niro also complains that the son is spending more than he needs to because he is bearing the costs of operating a 16-year-old vehicle that his mother gave him to use for school. Ms. Craig submits that the overall post-secondary education expense for the 2021-2022 school year was closer to $20,000.

[41] Section 7 permits me to estimate expenses and I am prepared to do so for the 2021-2022 school year. Given Mr. Niro's submission that money was spent on the vehicle, I accept that the expenses for 2021-2022 are approximately $20,000. Given the more specific evidence about the son's 2021 earnings, I also accept that he contributed at least $6,122.32 from his summer earnings.

[42] Based on this evidence, it would not be unreasonable to expect the son to contribute to the expenses at issue here. However, given my conclusion that many of these expenses were incurred because of Ms. Craig's unreasonable refusal, and because neither party has suggested that the son contribute anything, I have decided that it would not be fair to expect the son to make any contribution to the expenses in question. Instead, I conclude that Ms. Craig should pay her pro rata share in the amount of $954.77, as calculated above.

Should Ms. Craig be required to contribute to the daughter’s hockey equipment expenses?

[43] Unlike post-secondary education expenses, expenses for extracurricular activities like hockey must be "extraordinary" under s. 7. Section 7(1.1) of the Guidelines defines "extraordinary expenses" as being:

(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;

(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.

[44] Taking these factors into consideration, I conclude that the expenses for the daughter's hockey equipment are not extraordinary.

[45] It must be remembered that, although Mr. Niro is the parent paying child support, the amount of that support is calculated on the basis of a set-off under s. 9 of the Guidelines, as mentioned in Gareau J.'s reasons of October 5, 2020, at paras. 2 and 8. As Gillese J.A. held in her dissent in Lewi, at para. 79 (on a point that was not rejected by the majority), "modest expenses arising from a child's participation in extracurricular activities are to be covered by basic child support." See also Park v. Thompson (2005), 2005 CanLII 14132 (ON CA), 77 O.R. (3d) 601 (C.A.), at para. 24.

[46] Again, much of the evidence about the hockey expenses comes from emails exchanged between the parties. Based on those messages, I conclude that Ms. Craig gave the daughter $100 towards her hockey equipment and that the daughter contributed $210 of her own money towards the stick.

[47] I would not ordinarily consider a $320 hockey stick to be a modest expense. However, given Mr. Niro's income and the contributions of Ms. Craig and the daughter, I consider the remaining expense to be modest and within the amount of child support being set off against the amount that Mr. Niro would otherwise pay. Those costs can be reasonably covered by Mr. Niro and therefore do not fall under s. 7(1.1)(a) of the Guidelines. Further, I have very little evidence from Mr. Niro as to the factors set out in s. 7(1.1)(b)(ii) to (v) and, therefore, little reason to conclude that Ms. Craig should be required to contribute to those costs notwithstanding Mr. Niro's ability to cover them.

[48] For these reasons, Mr. Niro's motion as it relates to the daughter's hockey equipment is dismissed.

Should the monthly support be varied?

[49] Mr. Niro seeks to vary the monthly child support order of October 2020 to account for the fact that the son is now residing away from both parents' homes for eight months of the year. There is no issue that the son's move constitutes a change in circumstances sufficient to vary the order. Instead, Ms. Craig submits: (1) that Mr. Niro was already paying too little support before the son moved away and (2) that she still needs child support for the son, as evidenced by the money she keeps having to send him.

[50] Ms. Craig's first argument cannot succeed. The amount currently being paid by Mr. Niro for child support was decided by Gareau J. in October 2020 based on the evidence before him and the positions of the parties at the time. To permit Ms. Craig's first argument to succeed would be tantamount to permitting a retroactive variation upwards in circumstances where none of the legal or factual grounds exist for doing so, such as might be the case with subsequently discovered undisclosed income, for example.

[51] Ms. Craig's second argument is, in reality, an argument that the son's present post-secondary expenses are not being fully covered. That may be true, but I cannot make that determination on the evidence before me, as I will explain.

If so, what amount of monthly support should be ordered?

[52] As I mentioned earlier, child support for an adult child must be determined under s. 3 of the Guidelines. This section provides as follows:

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

(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.

[53] As the section makes clear, a child support order is comprised of both ongoing support, as determined by the table, as well as additional expenses, as determined under s. 7. While Mr. Niro asks me to consider only the former, I must consider both.

[54] The proper approach to determining support for an adult child who is attending school away from home was set out by Wright J. in Coghill v. Coghill, 2006 CanLII 28734 (Ont. S.C.). It was summarized succinctly by Price J. in Liscio v. Avram, 2009 CanLII 43640(Ont. S.C.), at para. 36:

The proper approach, in these circumstances, is the one taken by this Court in Coghill v. Coghill, at paras. 44 to 53. In that case, Justice Wright calculated the child’s expenses during the eight months the child was at university, deducted the contribution the child was able to make from summer earnings, apportioned the net expenses between the parents in proportion to their respective incomes and required them to pay their respective shares directly to the child. He then calculated the table amount of the non-residential parent’s obligation to pay child support for the four summer months, when the child was living with the residential parent, as if the child were a minor, based on the income imputed to the non-residential parent and required him to pay that amount to the residential parent. He then required the non-residential parent to pay one third of the table amount to the residential parent for the eight months when the child was at university to help defray that parent’s costs of maintaining a home for the child to return to on holidays and during the summer. [Citations omitted.]

[55] In a case such as this, where the child resides with both parents equally during the summer, it is not accurate to refer to either of them as the non-residential parent. Instead, the identity of the payor is determined by the set-off formula in s. 9 of the Guidelines, rather than on the basis of residence.

[56] While the approach summarized above is similar to that suggested by Mr. Niro, it is not exactly the same. In addition to calculating the support payable for the adult child during the four months of the summer break and making that amount payable over twelve months, the courts in both Coghill and Liscio ordered that a further sum be paid to the recipient parent each month towards the cost of maintaining the home to which the child would return.

[57] However, Coghill and Liscio were cases in which support was being paid for only one child. The situation is different where support is being paid for two children and where only one child is away during the school year, which is the case here. In such a case, it can reasonably be argued that the costs of maintaining the home during the absence of the one child are being covered by the support paid for the other. Thus, in Lewi, no additional monthly child support was awarded by the motion judge and none was ordered by the Court of Appeal. Therefore, I find the approach suggested by Mr. Niro to be appropriate. However, I do not have enough evidence to apply it for the 2022-2023 school year. I am missing evidence both with respect to post-secondary education expenses and the son's ability to contribute to those expenses.

[58] Once again, the evidence about this issue is indirect, taking the form of emails attached to affidavits, none of it sworn and most of it inconclusive. For example, there is information sprinkled throughout a series of emails to and from the financial advisor managing the son's RESP in which rent in the monthly amount of $640 is mentioned. However, elsewhere, the figure for rent is $609 per month. Tuition is also mentioned. However, in one message the figure was $2,700 and in another it was $3,600. Books were also mentioned. However, in one message the figure was $1,000 and in another it was $1,500.

[59] The quality of the evidence is just as bad with respect to the son's ability to contribute to his post-secondary education expenses. Mr. Niro says that, during the summer of 2022, the son will earn between $14,000 and $23,000 working, depending upon the amount of the bonus he receives. That is a significant swing. He also submits that, between the son's earnings and the amount left in the RESP there could well be enough to pay for the remainder of the son's post-secondary education. However, in one message from the financial advisor dated July 9, 2021, the value of the RESP is said to be $34,071.33. In a message dated October 27, 2021, it is said to be $23,117.86. Of course, this may be explained on the basis that funds were withdrawn for school, but it has not been. Nor does it account for income earned on the investments in the RESP since October 2021.

[60] These shortcomings in the evidence make it impossible for me to determine what the son's post-secondary expenses are and, therefore, what the child support order should be under s. 3(2) of the Guidelines.

CONCLUSION

[61] For the foregoing reasons, Mr. Niro's motion for a contribution to the son's moving expenses under s. 7 of the Guidelines is allowed to the extent that Ms. Craig is ordered to pay him the sum of $954.17.

[62] Mr. Niro's motion relating to the daughter's hockey expenses is dismissed.

[63] Mr. Niro's motion to vary ongoing support under s. 3 of the Guidelines is also dismissed. However, Mr. Niro is given leave to renew the motion on further and better evidence relating to the post-secondary expenses, the RESP, and the son's income. Of course, Ms. Craig is entitled to provide further evidence in response.

[64] As both parties are self-represented and neither party has foregone any income-earning opportunity to bring or to respond to these motions, there will be no order as to costs.

M.G. Ellies R.S.J.

Released: September 28, 2022

COURT FILE NO.: 3324/15

DATE: 2022/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

ALLYSON CHRISTIE CRAIG

– and –

DOMENICO NIRO

REASONS FOR DECISION

M.G. Ellies R.S.J.

Released: September 28, 2022