COURT FILE NO.: FS-14-82159-00 DATE: 2022 10 21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Sonya Hristovski Applicant
– and –
William Hristovski Respondent
Michael Stangarone and Aria MacEachern, for the Applicant
Avra Rosen and Kelly Eckert, for the Respondent
HEARD: September 19, 2022
ENDORSEMENT
Justice Ranjan K. Agarwal
I. INTRODUCTION
[1] This case presents a unique problem that engages the law on interim variations of support orders, family arbitrations, “summer support”, and the presumptive rule for child support when the child is an adult. The respondent William Hristovski asks the court to temporarily change a child support award made by an arbitrator because the children of the marriage are attending post-secondary schools away from home.
[2] William says this court must change the award because the arbitrator’s approach (applying the Federal Child Support Guidelines as if the children were minors) is now inappropriate. He says he should only pay summer support, and then only if the children live at home during the summer. The applicant Sonya Hristovski opposes the motion. She also cross-moves for an order changing the spousal support awarded by the arbitrator if William’s motion is granted.
[3] These motions were brought in a preexisting case as motions for temporary orders under Rule 14 of the Family Law Rules. Neither party has asked the court to make an order in the same terms as the award. There is no motion to change a final order. The motions do not expressly seek an interim variation of a final support order or a stay of an order.
[4] At any rate, William is effectively asking for an interim variation of a final support order. Thus, he must prove: (a) a strong prima facie case for a variation of the arbitrator’s child support award; (b) a clear case of hardship; (c) urgency; and (d) that he has come to court with “clean hands”.
[5] As discussed below, William has not shown, on the evidence, a strong prima facie case that it is inappropriate to apply the Guidelines as if the children were minors. Thus, I dismiss William’s motion. There is no need to decide Sonya’s motion.
II. BACKGROUND FACTS
[6] Sonya and William were married in June 2000. They separated in September 2014. They have three children together: Michelle (age 19), Marcie (age 18), and Mark (age 16). Sonya lives in Bolton.
[7] In September 2021, Michelle moved to Ottawa for university. She lived in Ottawa during the Summer 2022 term to do coursework. William says Michelle will be taking Summer classes in Ottawa in 2023 again. Sonya says Michelle will be home in Summer 2023. Michelle’s plans for Summer 2024 are unknown. She is expected to graduate in April 2025. There is no evidence of Michelle’s plans for Summer 2023 or Summer 2024.
[8] In September 2022, Marcie moved to Vancouver to study at the University of British Columbia. There is no evidence on her plans for Summer 2023.
[9] Mark is in Grade 12 at a secondary school in Bolton. William anticipates Mark will move away for post-secondary studies. Sonya says Mark may go to school in Toronto so that he will come home every weekend. There is no evidence of Mark’s plans.
[10] William says that he has paid over $60,000 for Michelle’s and Marcie’s university expenses in 2021 and 2022 (inclusive of tuition). Sonya says she too has paid for school-related expenses, including travel, health and dental costs, and for a car for Michelle.
III. LEGAL PROCEEDINGS TO DATE
[11] Sonya started an application in the Superior Court of Justice in November 2014. William filed an answer in February 2015.
[12] The parties submitted several issues to mediation/arbitration with Alfred Mamo in March 2017. They settled parenting, disclosure, and process. They arbitrated the issue of the validity of the parties’ marriage contract before Arbitrator Mamo. In December 2017, he dismissed Sonya’s application to set aside the marriage contract.
[13] The remaining issues in the application were child support and spousal support. The parties submitted these issues to arbitration with the Honourable Emile Kruzick. The arbitration hearing was in October and December 2020. In March 2021, Arbitrator Kruzick awarded spousal support and child support:
- Commencing on January 1, 2021 and on the first day of each month thereafter, William shall pay to Sonya $10,363 a month in child support for the three children of the marriage based on William’s income of $675,00. Child support shall terminate upon the earliest of any of the following:
a) The child is no longer residing with Sonya
b) The child attains the age of 18 years and is not attending a full-time educational program
c) The child marries, or
d) The child dies.
William shall be responsible for 100% of all reasonable section 7 expenses provided that his consent is obtained in advance of the expense being incurred. His consent shall not be unreasonably withheld. In addition, William shall entirely pay for each child’s first post-secondary degree or diploma and associated expenses not to exceed $30,000 a year unless his consent to exceed that amount has been obtained in writing. The payments shall be made within 30 days after William has been provided with invoices.
Commencing on January 1, 2021, and on the first day of each month William shall pay to Sonya periodic spousal support in the amount of $10,000 each month terminating on October 1, 2028.
There will be an adjustment for retroactive spousal support payable by William to Sonya fixed in the amount of $145,000 and payable within 60 days.
William shall maintain life insurance policy of $1,000,000 designating Sonya the beneficiary for as long as child and spousal support is payable, failing which the obligation shall be a charge on his estate.
[14] William now moves for orders regarding the child support award:
(a) he should not have had to pay Sonya table child support for Michelle since Michelle moved to Ottawa in September 2021;
(b) Sonya should repay him the child support he paid following Michelle’s move to Ottawa;
(c) starting September 1, 2022, he should pay “summer support” to Sonya instead of full table child support for Marcie, and full table support for Mark;
(d) if Marcie lives year-round in Vancouver, William asks for an automatic adjustment so he no longer pays any table child support for Marcie and only full table support for Mark; and
(e) if Mark chooses to attend a university or college that requires him to move away from home, William asks for an automatic adjustment to summer support instead of full table child support or no child support if Mark chooses to live away from home year-round.
[15] William concedes that if Michelle or Marcie resume living with Sonya while continuing their current studies, Sonya will get full table child support. He also concedes that if Michelle moves home during the Summer term, Sonya would be entitled to table child support for the four months that Michelle lives with her.
[16] Sonya moves for an order increasing her spousal support and for retroactive spousal support only if William’s motion is granted.
[17] The arbitration hearing was in late 2020. There was no evidence about the children’s plans for their post-secondary studies. The award was released in March 2021. On the date of the award, Michelle had just turned 18. On William’s argument, the child support award was rendered almost immediately inappropriate once Michelle decided to go away for school (presumably around when the award was released).
[18] William’s notice of motion doesn’t seek an order for variation, rescission, or suspension. He doesn’t plead section 17(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp). He just asserts a request for an order that he pay child support differently than awarded by Arbitrator Kruzick. That said, William’s affidavit evidence describes the request as a “variation” of the award. Similarly, Sonya does not plead the Divorce Act. But, in her factum, she relies on sections 15.1 and 17(6.1) of the Divorce Act.
[19] These motions were brought under Rule 14 of the Family Law Rules. Neither party has asked the court yet to make an order in the same terms as Arbitrator Kruzick’s award under the Family Law Act, RSO 1990, c F.3, s 59.8(4). The motions are complicated by the fact that William has moved to amend his answer but Sonya refuses to consent to the amendment because she says he is withdrawing an admission. As a result, I don’t have amended pleadings before me. The pleadings I do have pleaded claims and issues that have since been decided by Arbitrator Mamo and Arbitrator Kruzick. Though William tried to argue at the oral hearing that the lack of an amended pleading was fatal to Sonya’s motion, that argument applies equally to William’s motion.
[20] The parties have filed three affidavits each. The parties were not questioned on their affidavits. The affidavits are from August 2022, so they don’t discuss events since then.
IV. ANALYSIS
A. Issue #1: Does the court have jurisdiction to grant William’s and Sonya’s motions?
[21] Section 17(1) of the Divorce Act is the starting point for the determination of a child support variation case: “A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively…a support order or any provision of one on application by either or both former spouses….”
[22] There is no support order here. Again, neither party has asked the court to make a final order on the same terms as Arbitrator Kruzick’s award.
[23] At the oral hearing of these motions, I asked the parties whether they should be, instead, arbitrating these issues before Arbitrator Kruzick or another arbitral tribunal. The parties advised me, jointly, that Arbitrator Kruzick had terminated the arbitration. The parties said there is no arbitration agreement between them that governs the relief they are seeking on these motions.
[24] William argues that these motions are governed by section 3(2)(b) of the Federal Child Support Guidelines, SOR/97-175. The amount of child support for a child over the age of majority is to be determined under section 3(2) of the Guidelines. Section 3(2) can be understood only by reference to section 3(1):
3 (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….
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.
[25] The “child of the marriage” includes a child of two former spouses who, at the material time, is the age of majority or over and under their charge but cannot withdraw from their charge or to obtain the necessaries of life (Divorce Act, s 2(1)).
[26] In essence, William says that if I find Arbitrator Kruzick’s approach is inappropriate now that Michelle and Marcie are living away from home for school and Mark may do so, I can make the child support orders he requests. He relies on Park v Thompson, 2005 CanLII 14132 (Ont CA). In that case, the application judge ordered that the father pay the full table amount for child support even though the child was 18 and attending university in another city. The Court of Appeal held that the application judge erred in disregarding whether the table amount was inappropriate within the meaning of section 3(2)(b) before making the order. The Court of Appeal remanded the matter to the application judge.
[27] In contrast, Sonya argues that these motions are under sections 15.1(3) and 17(6.1) of the Divorce Act:
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.
17 (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
[28] In essence, Sonia argues that William is asking for an interim order pending the determination of her application. Sonia does not dispute that my decision must be in accordance with the Guidelines, including section 3(2).
[29] I disagree with William’s view. Section 3(2) of the Guidelines is the legal test I need to apply when making a child support order for an adult child. But it doesn’t give me jurisdiction for his motion or provide me a procedural framework for the legal test I must apply on a motion for a temporary order in these circumstances.
[30] I agree with Sonya’s view, insofar that the parties are asking for an interim order pending the determination of the claims in Sonya’s amended application. But section 15.1(2) of the Divorce Act deals with motions in an original application, not motions to change a final order. It presumes there is no support order.
[31] William and Sonya are really asking this court to make a temporary order varying Arbitrator Kruzick’s award. Though Arbitrator Kruzick’s award has not yet been made into an order and there is no motion to change, the effect of my order on these motions would be the same—it would temporarily vary the binding determination about child support made on the parties.
[32] Though I could dismiss the parties’ motions, require them to ask the court to make an order in the same terms as Arbitrator Kruzick’s award, request they start a motion to change, and then they could move for a temporary order in the motion to change proceeding, I decline to do so.
[33] Instead, I will consider these motions as if they were motions for a temporary order properly brought in a proceeding to change a final order. William and Sonya have evinced an intention to make the award into a final order. Sonya did not argue that I should dismiss William’s motion on jurisdiction grounds. Both parties filed extensive evidence and briefed the issued. In my view, that is the best way of dealing with this case justly, which is the primary objective of the Family Law Rules (rule 2(2)). By dealing with the motions now, it will save the parties expense and time and avoiding wasting court resources.
B. Issue #2: What is the Legal Test for these Motions?
1. Support Variation Orders Generally
[34] Section 17(4) of the Divorce Act stipulates that before making a child support variation order, the court must satisfy itself that there has been a “change of circumstances” as provided for in the Guidelines since making the original order or an existing order.
[35] First, the court must determine whether there has been a “material” change of circumstances as provided for in the Guidelines. See Willick v Willick, 1994 CanLII 28 (SCC), [1994] 3 SCR 670 at 688, and Punzo v Punzo, 2016 ONCA 957 at para 43.
[36] In conducting an inquiry into whether there is a material change in circumstances, the party seeking the variation must demonstrate a change of circumstances that was not contemplated by the parties when the initial order was made and that, if such a change had been known, “would likely have resulted in different terms” (LMP v LS, 2011 SCC 64 at para 32, and Licata v Shure, 2022 ONCA 270 at para 21).
[37] Section 14(a) of the Guidelines stipulates that if a child support order is based on the table amount, any change in circumstances that would result in a different child support order will satisfy the threshold test in a variation proceeding.
[38] Second, if the court concludes that the requisite change has occurred, it must then decide what variation, if any, should be made to the order given the change. Again, see Willick, at 688, and Punzo, at para 43.
[39] Here, section 3(2) of the Guidelines is engaged by William’s argument that the Michelle and Marcie are now 18. The approach under section 3(2) of the Guidelines is explained in Lewi v Lewi, 2006 CanLII 15446 at paras 124-32. Under section 3(2)(a), the amount of support for a child over the age of majority is calculated in the same way as that for a minor child. The opening words of section 3(2)(b) indicate that the amount determined by applying section 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency, and efficiency in resolving disputes over the amount of support for children of majority age.
[40] Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. The words “that approach” refer to the technique dictated by section 3(2)(a)—namely applying the Guidelines “as if the child were under the age of majority”. Before resorting to its discretion under section 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the adult child were a minor. The court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under section 3(2)(a) (the table amount or additional expenses under section 7) to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate—clearly an “exceptional situation” rather than the rule. This approach further promotes predictability, consistency, and efficiency in family law litigation.
[41] In Park, at para 28, the Court of Appeal quoted Justice Heeney’s decision in Merritt v Merritt, [1999] OJ no 1732 (Sup Ct) discussing “summer support”:
Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child's own ability to contribute.
[42] That said, the Court of Appeal in Park did not opine on whether summer support is always more appropriate under the Guidelines when an adult child is attending post-secondary school away from home. It remanded the matter back to the application judge to consider whether summer support was more appropriate, in part because there was “very little evidence” on this issue.
[43] The Guidelines do not say that the amount of child support should be different just because a child is 18 years old. The presumptive order is the table amount. It is only where the payor, who has the onus of proof, convinces the court that the table amount is inappropriate, that a different amount may be ordered. See Merritt, at para 55.
[44] The parties have identified no precedents that involve similar facts. Several parts of the Willick test (materiality and variation) are answered by the analysis under section 3(2)(b) of the Guidelines.
2. Interim Variation of Support
[45] An interim variation for support is not provided for in the relevant legislation. It is a common law tool developed to respond to “a clear case of hardship” pending disposition of a motion to change. See Rogers v Rogers, 1990 CanLII 12231 (Ont Sup Ct), French v Woods, 1992 CanLII 7797 (Ont Sup Ct) at para 8, and Hayes v Hayes, 2010 ONSC 3650 at para 38.
[46] In Hayes, Justice Spies said that an interim variation of a final support order is “the most drastic intervention” a court can make pending a final hearing of a motion to change. The caselaw discloses that the court should maintain the status quo created by a final order (which was in the child’s best interest) unless doing so would be “incongruous” or “absurd”, or would impose “undue financial hardship”.
[47] Sonya’s position is that William’s motion is effectively for an interim variation of a final order for support, pending a final order on her application. Thus, she says William must show: (a) a strong prima facie case; (b) a clear case of hardship; (c) urgency; and (d) that the moving party has come to court with “clean hands”. See Berta v Berta, 2019 ONSC 505 at para 40.
[48] William responds that this motion is not for an interim variation of a final order for support because there is no final order. He re-emphasizes that the court must make a new child support order if the arbitrator’s approach is inappropriate.
[49] I agree with Sonya. In my view, the Berta test applies here. The parties have created a procedural gap by failing to make Arbitrator Kruzick’s award an order of this court. If they had done so, then William’s motion would have been plainly under the Berta test. William used the preexisting application to start this motion. But I don’t believe that procedural work-around should change the legal framework for deciding these motions.
[50] The policy reasons for creating a high bar for an interim variation apply here. The Guidelines seek to establish fair levels of support for children from both parents upon marriage breakdown, in a predictable and consistent manner (Baker v Francis, 1999 CanLII 659 (SCC), [1999] 3 SCR 250 at para 39). A final support order is presumptively correct (LMP, at para 39). Support recipients have the right to rely on support orders once they are made (Berta, at para 39).
[51] The children have been operating under the status quo of a final determination since March 2021. Arbitrator Kruzick made that determination after a robust hearing, including four days of oral evidence from the parties and their expert witnesses. The parties litigated for almost 7 years before his decision. Under William’s argument, the arbitrator’s approach was rendered “inappropriate” less than 6 months after it was made. He wants this court to vary the award on a motion, based only on affidavit evidence. If I were to adopt William’s view, it would convert this motion for a temporary order into a summary judgment motion in a motion to change proceeding. Or I would be conducting a focused hearing on child support without oral evidence or cross-examination.
[52] William may have an argument for a change to the award at a trial of a motion to change. But, until then, the award should remain in place unless he can show why “drastic intervention” is necessary now.
[53] Thus, to succeed on this motion, William must show a strong prima facie case that:
a. there has been a change of circumstances not contemplated by the parties at the time of Arbitrator Kruzick’s award;
b. whether the standard Guidelines approach to calculating child support under section 3(2)(a) is inappropriate; and
c. “summer support” is the appropriate amount of support, having regard for the conditions, means, needs, and circumstances of the children and William’s and Sonya’s financial ability to contribute to the support of the children.
C. Issue #3: Has William Shown a Strong Prima Facie Case for a Material Change?
[54] William has a strong prima facie case for a change in circumstances. Both Michelle and Marcie are now in university and living away from home for at least part of the year. Marcie has turned 18 since the award. There is nothing in Arbitrator Kruzick’s award that shows he contemplated Michelle or Marcie living away from home to pursue post-secondary studies. See also Chow v Rider, 2015 ONCJ 1 at para 20.
[55] But a finding of a change in circumstances does not end the analysis. The court must also consider the appropriate change in support justified by the change. See Punzo, at para 43.
[56] Arbitrator Kruzick found the appropriate amount of child support based on an imputed income to William of $675,000, “given William’s means and the needs of the children…” (at para 234). That is the presumptive amount.
[57] Arbitrator Kruzick’s approach to fixing the amount of child support is disclosed by his reasons:
• the family’s lifestyle was “at the high end of comfortable” (at para 231)
• he should not award child support that is a “wealth transfer or de facto spousal support” (at para 232)
• he imputed income to William of $675,000 (using a Halliwell reduction), which is above the Guidelines threshold (para 232)
• Sonya’s budget showed monthly expenses of around $18,000 (para 233)
• using $300,000 as William’s income for child support “would hurt the children economically (para 234)
• using $675,000 preserves “the lifestyle close to that the children had when the family was intact and certainly since separation” (para 234)
• alternatively, he rejected attributing income at the highest level suggested by Sonya because would have resulted in a redistribution of wealth (para 234)
[58] Arbitrator Kruzick applied the framework under section 3(2). At para 235 of his reasons, he expressly turned his mind to whether table support was inappropriate. He knew that Michelle had turned 18 since the arbitration hearing. He was not “convinced” that the resulting Guidelines amount was “excessive or inappropriate”.
[59] It is presumed that Arbitrator Kruzick “knew and applied the law” and thus the support order met the objectives set out in the Divorce Act (LMP, at para 33).
[60] In arguing that the section 3(2)(a) approach is now inappropriate given that Michelle and Marcie have moved away for school, William makes four arguments: (a) under the award, child support must terminate if a child “is no longer residing with Sonya”; (b) the law adopts a “summer support” approach where children of the marriage go to school away from home; (c) William is “generously” paying Michelle’s and Marcie’s post-secondary expenses in excess of the $30,000 per year he agreed to; and (d) Michelle and Marcie are living away so there is “extremely minimal costs or expenses”.
[61] First, I don’t read Arbitrator Kruzick’s award like William. In paragraphs 3(1)(a) and (b) of the award, he said child support must terminate upon the earliest of the child “no longer residing with Sonya” or the “child attains the age of 18 years and is not attending a full-time educational program”. He knew that Michelle was over 18 and Marcie was almost 18. He understood they would be going to university or college (given William’s concession to pay their post-secondary expenses). I read paragraph 3(1)(a) of the award as meaning that child support will end if a minor child declares independence by, for example, moving out and becoming financially self-sufficient. If I adopted William’s interpretation, it means that if Michael, for example, moved away from Bolton to attend secondary or post-secondary school before he turned 18, William could terminate child support, which would go against the Guidelines. I don’t believe that is what Arbitrator Kruzick intended.
[62] Second, the caselaw is not as absolute as William suggests. Each case must be examined on its own facts. It’s true that courts have found the section 3(2)(a) approach inappropriate when a child attends school out-of-town and only returns home during the summer and school breaks. As a result, courts have ordered the full table amount in the months the child is living at home with a lesser amount when the child is away at school (i.e., summer support). See Coghill v Coghill, 2006 CanLII 28734 at para 6 (Ont Sup Ct), Bond v Bond, [2007] OJ no 3677 (Div Ct), and Chow, at para 65.
[63] That said, courts have also maintained robust support obligations even during periods when the child is living away from home. See Jordan v Stewart, 2013 ONSC 902 at para 151, Birch v Birch, 2010 ONSC 2915 at paras 21-22, and Armaz v Van Erp, 2000 CanLII 22585 at para 15 (Ont Sup Ct). This continued support obligation is based on the “reality” that while the recipient parent will have modest reductions in expenses when the child is away at school, maintaining a permanent home for the child leads to incidental expenses that continue even in the child's temporary absence.
[64] In Merritt, which William largely relies on, Justice Heeney asked himself whether the children “do and will continue to maintain a household with their mother” (at para 87). He noted they “need a family home to come to” and the family home should be maintained “commensurate with the standard of living that they enjoyed before the separation” (at paras 86-7).
[65] Third, I don’t believe William’s contribution to Michelle’s and Marcie’s post-secondary expenses is relevant to this analysis. At the arbitration, he agreed to pay those expenses (see paras 237-9). He can’t now rely on that concession (or his alleged “generosity” since) to turn around and argue that child support should be reduced. These are section 7 expenses that are added on to his child support obligations.
[66] Finally, is Sonya getting some sort of windfall from William now that Michelle and Marcie don’t live at home? This question is at the heart of William’s motion. His thesis, in short, is that if he’s paying for the children to live in Ottawa and B.C., anything he’s paying to Sonya as child support is excess.
[67] There is a marked lack of evidence on this issue. Neither party filed any evidence on Sonya’s household expenses. For me to determine whether William has a strong prima facie case, he needs to show that the reduction in Sonya’s expenses is more than modest now that Michelle and Marcie live away. That is his evidentiary burden. Without that evidence, I don’t have any basis to find that the section 3(2)(a) approach is inappropriate.
[68] Further, the evidence before me is that Michelle maintains a household with Sonya. Michelle came home for Christmas, Fall, and Winter breaks; three long weekends; and her birthday. She also came home for two weeks when she had COVID. She may be living in Ottawa but home is with Sonya. As in Merritt, she is entitled to expect to come home to a family home maintained at the standard of living before William and Sonya separated. For Marcie, who just started school a month ago, there is no evidence one way or the other. The onus is on William to show “a strong likelihood on the law and the evidence” presented that, at trial, he will be “ultimately successful in proving the allegations” in the notice of motion (R v Canadian Broadcasting Corp., 2018 SCC 5 at para 18).
[69] In Armaz, Justice Perkins observed, at para 15, about the facts of that case:
I do not have any evidence that the requested monthly guideline table figure produces a windfall, or to put it another way, I do not see why I should presume that whatever savings are realized by the mother in utilities and food while the daughter is away at school would be allocated to the lifestyle of the mother and not be used to benefit the daughter in some other way. In a case where the father made less money the impact on him could be more of a factor, but here we have a father who quite commendably is willing to devote over $20,000 a year to his daughter’s support.
[70] So too here. There is no evidence that the table amount is producing a windfall for Sonya. I can’t presume that any savings realized by Sonya because Michelle and Marcie are away for school is being used for her lifestyle rather than to benefit the children. As a result, William has not proven a strong prima face case that the section 3(2)(a) approach is inappropriate. Given that finding, I don’t need to consider whether there is a clear case of hardship, urgency, and clean hands.
V. DISPOSITION
[71] I endorse an order dismissing William’s motion. The parties agreed that Sonya’s motion was relevant only if William’s motion is granted. Thus, I need not consider Sonya’s motion.
IV. COSTS
[72] The parties should attempt to resolve the issue of costs on their own. If they cannot do so, Sonya may file her costs submissions (three pages, double-spaced, one-inch margins), costs outline, and any offers to settle on or before November 15, 2022. William may respond on or before November 30, 2022 (three pages, double-spaced, one-inch margins), costs outline, and any offers to settle. If I have received no submissions within these time limits, I will assume that the parties have resolved the issue and make no costs order.
[73] I am not otherwise seized.
Agarwal J.
Released: October 21, 2022
COURT FILE NO.: FS-14-82159-00 DATE: 2022 10 21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Sonya Hristovski Applicant
– and –
William Hristovski Respondent
ENDORSEMENT
Agarwal J.
Released: October 21, 2022