NEWMARKET COURT FILE NO.: FC-19-58981-00
DATE: 20220209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daneisy Leon
Applicant
– AND –
Rafik Yeghnazari
Respondent
Self-Represented
Self-Represented
HEARD: November 15, 2021 and January 31, 2022.
ISOA Ruling (FRO case # 191727)
JARVIS J.
[1] This Ruling deals with the support of a child who resides with the applicant (“the mother”) in British Columbia. The respondent (“the father”) resides in Markham Ontario. The claim is made pursuant to the Interjurisdictional Support Orders Act (“the Act”).[^1]
[2] A Preliminary ruling (“the Preliminary Ruling”) was made on January 6, 2021.[^2] That ruling set out the procedural history and gave next-step directions. A calculation noted as being presumptive only suggested that the father owed child support from 2016 to 2019 totalling $36,433. Since additional information was needed from both parties, the matter was adjourned. The father then requested a hearing. That was held on November 15, 2021. Both parties testified. The Court noted that there remained outstanding, relevant disclosure from each party that impacted the Court’s ability to reach a fair outcome. Further directions were given with respect to evidence, a deadline was set for the delivery of that evidence (November 26, 2021) and the parties were advised that upon the Court’s review of the material provided the hearing would continue.
[3] Both parties filed further material with the Court.
[4] The hearing continued on January 31, 2022. Both parties gave evidence and confirmed the information submitted to the Court after the November 2021 mid-hearing adjournment.
Evidence
[5] Paragraph 2 and those parts of paragraph 3 of the Preliminary Ruling relevant to this hearing merit being repeated.
[2] In this case the parties are the parents of CDY (“the child”) born February 27, 2000. She has been living with the applicant mother (“the mother”) in British Columbia since mid-August 2016. There is no written agreement or support Order although the respondent father (“the father”) has alleged (and the mother denies) that there was an oral agreement between the parties that no support would be paid for five years because he supported the child for five years before she moved to live with her mother. Since then the child has spent time with her father in Ontario during the summer (2017-2019), he says that he paid certain expenses for her and sent her money on a more or less regular basis, depositing funds directly into the child’s bank account. Excepting the bank statements, the father’s allegations are general, unsupported by any corroborative documentation.
[3] The following procedural history is relevant:
(a) On October 30, 2018 the mother started this Application in British Columbia;
(b) The mother sought child support retroactive to August 19, 2016 in the amount of $783 a month based on an annual income that the mother asked the court to impute to the father of $84,000;
(e) The father filed an Answer sworn August 22, 2019 and a financial statement dated August 21, 2019. These pleadings were served on the Director (Family Responsibility Office) on August 22, 2019. The father denied liability for child support. He disclosed a 2018 income of $103,845.32;
(f) The hearing came before Douglas J. on October 21, 2019 as a Chambers matter, thus explaining why there is no event recorded for September 24th;
(g) Douglas J. reviewed the father’s Answer and observed that as his allegations about an agreement between the parties dealing with the child’s support had not been answered by the mother, a response from her would be useful. Court administration was ordered to request further information from the mother pursuant to s. 11(2)(a) of the Act. The hearing was adjourned to a date to be scheduled by the trial coordinator;
(h) Douglas J.’s endorsement and the prescribed request form were served on the mother by mail on November 19, 2019. The mother responded by affidavit sworn January 6, 2020 but it was not forwarded to the court by the Director until February 18, 2020 (marked as received on February 21, 2020). Her affidavit purported to refute the father’s allegation about an oral support agreement between the parties, provided a more expansive (and documented) narrative of the child’s residency with each parent since the parties separated in March 2008 and added a claim for s. 7 expenses for the child because she had begun attending university since the Application had been initiated;
[6] Paragraphs 4 to 6 of the Preliminary Ruling set out some of the evidence.
[4] It is common ground that no child support is being paid.
[5] The father attached to his Answer copies of the child’s bank statements for the period from January 2017 to November 2019. These disclose deposits to an account in the daughter’s name of $2,200 (2017), $1,850 (2018) and $1,300 (to November 2019). None of the statements shows anything the father claims as having deposited for the months of June to September in any of those years (except for $150 deposited in June 2019) when some part (or possibly most of) the child’s summer was spent with him in Ontario. T4 Statements of Remuneration Paid for 2016 to 2018 disclose income (after deducting union dues) of $62,225.23 (2016), $89,777.24 (2017) and $110,050,84 (2018).
[6] The father did not comply with the March 2, 2020 Order that he file complete copies of his income tax returns with the court. Instead he chose to file tax summaries for 2016 to 2019. The 2016 summary disclosed a net income of $76,391.41 (not $62,225.23 as per the T4 statement); the 2017 and 2018 summaries conformed to the T4 statements. The father provided his 2019 T4 statement and a tax summary for that year disclosing employment earnings of $113,467.15 and union dues of $393.75. Unlike 2016 and 2017, for 2018 and 2019 the T4 statements and tax summaries also included Registered Pension Plan contributions of $6,790.52 (2018) and $9,176.63 (2019). These are not Schedule III deductions. The father’s 2019 child support income appears to be $113,073.44.
[7] The mother filed copies of her 2021 earnings as a realtor to November 29, 2021 (-$744), cellular phone charges attributable to the child and copies of Air Canada receipts for the child’s travel between Victoria and Toronto in 2015, 2016, 2017, 2019 and 2021.
[8] The father filed an affidavit sworn November 29, 2021 which contained as exhibits his 2019 Income Tax Returns and Notices of Assessment for 2019 ($113,467) and 2020 ($110,488), two consecutive paystubs for the periods ending November 5 and 19, 2021, four bank receipts for cash withdrawals totalling $1,800 between February 13, 2020 and October 25, 2021, an Air Canada ticket receipt for the child’s travel from Toronto to Victoria in 2020 ($462.21) and two baggage receipts for 2020 and 2021 totalling $63.00 for the child. He also provided his year-end pay statement from one employer ($93,829.56) and an earning statement from another employer for whom he also worked in 2021 ($35,044.91). Since 2018 the father has worked two jobs.
[9] Without determining whether there was any oral agreement between the parties as alleged by the father, whether there are credits to which the father might be entitled or what expenses might qualify for s. 7 child support, the Court prepared calculations of the mother’s claim for the period September 1, 2016 to December 31, 2021.
Law and discussion
[10] Sections 13.1 and 14 (1) to (3.1) of the Act provide as follows:
Choice of law rules
The following rules apply with respect to determining entitlement to support and the amount of support:
In determining a child’s entitlement to support, the Ontario court shall first apply Ontario law, but if the child is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the child is habitually resident.
In determining the claimant’s entitlement to support, the Ontario court shall first apply Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence.
In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law. 2002, c. 13, s. 13; 2017, c. 20, Sched. 2, s. 12.
Order
14 (1) On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,
(a) make a support order;
(b) make a temporary support order and adjourn the hearing to a specified date;
(c) adjourn the hearing to a specified date without making a temporary support order; or
(d) refuse to make a support order. 2002, c. 13, s. 14 (1).
Retroactivity
(2) The Ontario court may make a retroactive support order. 2002, c. 13, s. 14 (2).
Periodic payments or lump sum
(3) A support order may require support to be paid in periodic payments, as a lump sum, or both. 2002, c. 13, s. 14 (3).
Choice of law
(3.1) A support order shall specify the law applied in making the order, and if the order does not specify the law applied, the order is deemed to have been made under Ontario law. 2017, c. 20, Sched. 2, s. 13.
[11] “Child” is defined by s. 1 of the Act as having the same meaning as in the Family Law Act.[^3] There is no issue that the parties are the child’s parents.
[12] Section 31 of the Family Law Act sets out a parent’s obligation to support their child.
Obligation of parent to support child
- (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.
Same
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).
[13] There is no dispute that the child ever withdrew from her mother’s control. She is entitled to support.
[14] Based on the additional evidence filed by the parties and their testimony, the Court makes these findings:
(a) At all material times since August 2016, the child has primarily resided with her mother in British Columbia. She has visited her father in Ontario for about two months every summer starting in 2017 (between March and July in 2020). She has been continually enrolled in a full-time education, in high school and university. This includes completing her secondary schooling (June 2019) and pursuing a three-year paralegal university program (from September 1, 2019 with an expected completion date in April 2022);
(b) The child resided away from her home with her mother to attend university from September 1, 2019 until shortly after the COVID-19 pandemic was declared in March 2020. She continued her studies for the balance of 2020 and all 2021 on-line, living with her mother. The child has returned to in-person learning at university for one day a week starting January 31, 2022 and is expected to graduate in April 2022. This will conclude her paralegal studies;
(c) The child turned nineteen years of age on February 27, 2019[^4];
(d) The mother’s income for 2016 to 2018 is not relevant as she is not claiming s. 7 expenses for the child for those years. Her income for 2019 to 2022 (to date) is relevant because she is claiming a contribution to the child’s post-secondary expenses;
(e) The father is a licenced mechanic. His income for each of the years for which the mother is claiming support is $76,392 (2016), $89,641 (2017), $103,260 (2018), $113,073 (2019), $124,312 (2020) and $128,285 (2021)[^5];
(f) The basic, or table, monthly support for a payor earning the incomes set out in (e) above are $694 (2016), $799 and $832 (for the first eleven months and last month, respectively, for 2017), $989 (2018), $1,014 (2019), $1,101 (2020) and $1,132 (2021);
(g) In 2019 the child earned $4,175.63 working for a business essentials company and had other income of $5,000 from a Registered Education Savings Plan (“RESP”) the contributions to which were made by the mother. As of January 1, 2019, the balance in that plan was $40,350.29[^6]. In 2019 the mother withdrew $36,215.20 representing her capital contributions and interest accrued on those contributions. In 2020 the mother withdrew $8,413.75. In 2021 the $4,318.85 balance was withdrawn (although the mother told the Court that about $200 remained in the account afterwards). The funds withdrawn in 2019 (in part) and 2020 and 2021 were used to pay the child’s s.7 expenses at university;
(h) The father suggested (and the mother disputed) that he had contributed to the RESP. The only evidence before the Court indicates that it was the mother who made the monthly contributions and monitored the account. The subscriber is shown as being the mother;
(i) The child neer worked during any summer period. She visited her father in the summers (excepting 2020). For the 2021 summer, she took summer courses at university;
(j) The child incurred tuition costs in 2019 ($2,357), 2020 ($4,773) and 2021, winter/spring and summer ($3,812). No supporting documents were tendered for Fall 2021 but as the annual cost appears to be about $4,733, that amount will be attributed to 2021. Consistent with term cost for the earlier years, an amount of $2,387 will be attributed to the final 2022 term. These tuition expenses total $14,290 and are inclusive, for example, of dental and health plans and university levies. There was no evidence that any of the charges incurred was discretionary;
(k) The mother estimated that the child’s textbooks cost $1,400 per academic year. For 2019, receipts totalling $737 were provided. The mother testified that the child acquired used textbooks, but no receipts were provided. The Court is prepared to accept an admittedly arbitrary figure of $500 per year for the last two years of university, bringing the total book and related supply expenses to $1,737;
(l) The mother paid $8,000 (i.e. $1,000 monthly) for the child’s rent in 2019/2020 until the pandemic was declared. Nothing was paid for rent for the Fall term in 2020 and nothing was paid in 2021. There are no out-of-home rental expenses in 2022 as the child is attending university on a 1-day per week basis returning home at the end of the day, although there may be days where she may be required to find overnight lodgings due to next-day exams or weather conditions;
(m) The Court is not prepared to accept as a s. 7 expense the cost of return air travel (including baggage charges) between Victoria and Toronto. The mother and daughter contributed to these expenses as did the father. Cellular phone charges are not a s. 7 expense.
The Guidelines
[15] Sections 3(1) to (3)(a) of the Child Support Guidelines[^7] (the “Guidelines”) deal with child support.
Presumptive rule
- (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child 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 parent or spouse against whom the order is sought
(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).
Child the age of majority or over
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child. O. Reg. 391/97, s. 3 (2).
Applicable table
(3) The applicable table is
(a) if the spouse against whom an order is sought resides in Canada,
(i) the table for the province in which that spouse habitually resides at the time the application for the child support order or for a variation order in respect of the child support order is made,
[16] Different considerations apply where there are special or extraordinary child expenses claimed. Sections 7(1)(e), (2) and (3) of the Guidelines apply.
Special or extraordinary expenses
- (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(e) expenses for post-secondary education
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2).
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.
[17] In Meszen v. Meszen[^8], the Court adverted to the approach to be adopted when considering a s. 7 expense contributory claim and the principles guiding the exercise of the Court’s discretion.
In Titova v. Titov, 2012 ONCA 864, [2012] O.J. No. 5808 (Ont.C.A.) at paragraph 23 Justice Rouleau for the Court set out the principles governing the recognition of s. 7 expenses:
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.
In Hawkins v. Hawkins, 2019 ONSC 7149 Justice Gregson at paragraphs 73 and 74 elaborated on those principles:
The onus is on the parent seeking the special or extraordinary expense to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 14132 (ON CA), [2005] O.J. 1695, (Ont. C.A.).
To determine reasonable and necessary the court in Piwek v. Jagiello, 2011 ABCA 303, [2011] A.J. No. 1074 (C.A.) and Correia v. Co-rreia, 2002 MBQB 236 stated the following factors should be taken into consideration:
1.The combined income of the parties;
2.The fact that two households must be maintained;
3.The extent of the expense in relation to their combined income;
4.The debt of the parties;
5.Any prospect for a decline or increase in the parties’ means in the near future; and
6.Whether the non-custodial parent was consulted about the expenses before they were incurred.
Calculation of presumptive support
[18] In the January 2021 Preliminary Ruling the Court calculated the father’s presumptive child support obligations for each of 2016 to 2018. Adjusted for minor calculation errors, the father should have paid table support for the child as follows:
(a) 2016-$2,776 (i.e. 4 months x $694) based on a $76,391.41 income;
(b) 2017-$9,609 (i.e. [11 months x $798] plus 1 month at $831) based on a $89,641 income[^9];
(c) 2018-$11,232 (i.e. 12 months x $936) based on a $103,260 income.[^10]
[19] In calculating the father’s support obligations for 2019 to April 30, 2022, several observations are relevant. The first is that the child turned nineteen years of age in February 2019, before she attended university later that Fall. Pursuant to s. 3(2) of the Guidelines the Court may, in appropriate circumstances, depart from the mandatory application of the table amount for child support when considering the financial situation of the child and her parents. In this case, apart from her part-time employment between February to June 2019, the child never worked afterwards. But while she had an obligation to contribute something to her university expenses (apart from her RESP) the Court accepts that this was a joint decision of her parents so as to maintain her relationship with her father in Ontario. This only happened in 2019 (before university started). The mother disclosed no positive 2019-2021 income. She testified that in 2019 she was diagnosed with Lyme disease[^11] and, while she had tried to assist her husband in selling real estate, she was unable to work. Her Notice of Assessment for that year showed an income loss (-$1,242). Her 2020 tax return and Notice of Assessment showed no income being earned. Her husband’s 2020 tax return disclosed only a $12,922 income, mostly comprising commission. The mother testified that she had earned nothing in 2021. No medical evidence was tendered in support of her inability to work.
[20] The father’s evidence is that he has always been prepared to pay child support and that the parties agreed when the child went to live with her mother that he would contribute $250 a month by direct deposit to the daughter’s bank account. In paragraph 5 of the Preliminary Ruling the aggregate deposits total $5,350 comprising $2,200 (2017), $1,850 (2018) and $1,300 (2019). No further bank deposit evidence was provided to the Court: the father said that he wasn’t sending any money because the mother had started these proceedings. He also said that he supported the child during the 2017-2021 summer months when she spent time with him (anywhere from six to eight weeks), provided her with yearly back-to-school supplies and bought her clothing. He was also the sole financial support for his family in Ontario (his wife doesn’t work) and was significantly in debt. He denied the mother’s allegation that he earned income from gambling or that he intended to relocate to Cuba.
[21] It is also clear from the evidence that the mother used most of the child’s RESP in 2019 for purposes not related to her s. 7 expenses. A total of $36,215.20 was withdrawn from the RESP that year but the child’s total s.7 expenses were $7,094 (i.e. tuition, books and rent). In 2020 $8,413.75 was withdrawn from the RESP and it was mostly exhausted by a $4,318.85 withdrawal in 2021.
[22] Neither party provided the Court with any software support calculations for 2019 to 2021, thus requiring the Court to undertake their preparation. Copies of the calculations will be forward to the parties with this Ruling.[^12]
2019
[23] The father’s income was $113,073. The monthly table amount for this level of income is $1,014. The child’s s. 7 expenses in 2019 totalled $7,094 all of which were funded from the RESP. The following considerations are relevant to calculating the father’s presumptive support obligation:
(a) The child attained her age of majority at the end of February 2019 while she was living with her mother and finishing her last year of high school;
(b) The child earned $4,175.63, say $4.176, working part-time;
(c) The child spent the summer with her father in Ontario. She did not work;
(d) The total s.7 expenses were $7,094 (i.e. tuition, rent and books) which were paid from the RESP;
(e) There is no evidence that the father deposited anything more than $1,300 into the daughter’s bank account and there is no documentary evidence that he paid anything for her university books.
[24] The Court is not persuaded that the table amount would be inappropriate for the first six months of 2019. The balance of the year must be adjusted to account for the child’s residency with her father and later at university. In Yaccoub v. Yaccoub[^13] this Court reviewed the general approach of Ontario courts in adjusting the table amount of support in circumstances where a child attended university away from home and concluded that allocating a one-third table amount would not be inappropriate. This approach should apply too to the two months when the child spent time with her father in Ontario because the mother would have had continuing housing and shelter costs. Therefore, the presumptive table support payable by the father for 2019 is $8,112 (i.e. [ 6 x $ 1,014] plus [ ($1,014/3) x 6]), rounded.
[25] The father contributed nothing to his daughter’s s. 7 university expenses. Had there not been a RESP, his monthly payment would have been $591. Since the mother withdrew her contributions (with interest) in 2019, the balance remaining comprised the CESG and interest earned on the invested funds.
[26] The father should have contributed to his daughter’s university expenses. The amount to be attributed to him will be addressed below (Father’s s. 7 contribution).
2020
[27] The presumptive monthly table amount for a parent earning $124,312 is $1,101. The following considerations are relevant:
(a) The child resided away from home from January to March. There was no evidence that after the pandemic was declared that the mother was required to pay for room and board in April or for the balance of the year;
(b) The child spent the summer with her father (July/August) then returned home and resided there for the balance of the year, taking her course on-line;
(c) The s. 7 expenses total $8,233 (i.e. tuition, rent and books);
(d) The sum of $8, 413.75 was disbursed from the RESP;
(e) The father made no deposits to the child’s bank account and contributed nothing to her university expenses.
[28] Presumptively, the father should pay support at one-third the table amount for January to March 2020 and for the two summer months when the child was with her father, and table support for the other seven months of the year that the child resided with her mother, or $9,540 (i.e. [ 5 x ($1,101/3)] plus [7 x $1,101]), rounded. His share of his daughter’s university expenses will be addressed below.
2021
[29] The father earned $128,285. The table amount is $1,132 a month. The following considerations are relevant:
(a) The child resided with her mother attending university on-line from January to the end of March when she went to live with her father, returning on or about July 18th to attend summer school of the year, continuing into the Fall session;
(b) The s. 7 expenses are $5,233 (i.e. tuition of $4,733 and $500 for books);
(c) Except for about $200 remaining by the end of the year, $4,318.85 was withdrawn from the RESP;
(d) The child did not work during 2021;
(e) There is no evidence that the father made any deposits to the child’s bank account or contributed to her university expenses.
[30] The presumptive table amount for child support that the father should have paid in 2021 is $11,318. (i.e. [3 x $1,132/3] plus [9 x $1,132]) rounded. His s. 7 expense contribution is addressed below.
2022
[31] As observed by the Court of Appeal in Vanos v. Vanos[^14] “[w]hen calculating prospective child support, income form the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination”. In the case, the father’s 2021 income will be used to calculate his 2022 child support. The following is relevant:
(a) The child continues to reside with her mother but attends university one day a week;
(b) There are no rental expenses;
(c) The s. 7 expense is $3,083 (i.e. tuition and $250 for books);
(d) The balance in the RESP account is assumed to be $200;
(e) The child’s education, and the father’s obligation to contribute to her support, is expected to end with the completion of her studies at the end of April;
(f) There is no evidence that the father made any deposits to the child’s bank account or contributed to her university expenses.
[32] Using the father’s 2021 income, the presumptive amount payable for the January to April period is $4,528. His s. 7 contribution obligation is addressed next.
Father’s s. 7 contribution
[33] The facts and the challenges presented by the parties in this proceeding do not easily lend themselves to the standard software calculations dealing, particularly, with s. 7 expenses. The mother contributed to the child’s RESP and it grew with the CSEG and interest/distributions associated with the plan but she withdrew her contributed funds at or shortly around the time that the child began to attend university and access to those funds was needed. The pandemic impacted the child’s living expenses, away and at home. While the parties tried as best as they could, neither presented their material in a comprehensively intelligible fashion, deferring that task to the Court. They should have considered legal assistance. The passage of time since the child moved to British Columbia and when the mother started this proceeding was unfortunate as it may have impacted the parties’ abilities to collect and organize their evidence better.
[34] The evidence indicates that the child’s total s. 7 expenses were, and will be, $23,643 from September 2019 to April 30, 2022.[^15] During those years the RESP paid out $20,027.[^16] The shortfall is $3,616. Given that the mother had the foresight and commitment to the RESP, this amount should be payable by the father.
Summary
[35] The total of the presumptive table support payable by the father from September 2016 to April 30, 2022 is $57,115 which, together with his contribution to the s. 7 expenses shortfall of $3,616 results in $60,731 being presumptively owed. But should he be required to pay that, or some lesser amount, and what credits, if any, should he be allowed and how might those payments be structured?
[36] A few observations:
(a) Child support is the right of the child[^17];
(b) “When a payor parent fails to pay the appropriate amount of child support the recipient parent is left to shoulder the burden”[^18];
(c) The father made direct deposits to the daughter’s bank account between 2017 and 2019 totalling $5,350;
(d) The mother started this proceeding in July 2019;
(e) The father says that he transferred $500 to the daughter in mid-June 2019 but, apart from a $150 transfer to the daughter in early November 2019, he paid nothing after he was served with a Notice of Hearing in this proceeding on July 26, 2019. He made no further deposits and told the Court that he was not sending anything to the mother because she wanted to deal with matters in Court.
[37] The parties dispute whether there was an agreement that the father would be relieved of his child support obligations and that the mother would assume sole responsibility for the child’s support for five years after the move because the child had lived with him for that period of time before then without support from the mother. There is nothing in writing evidencing any such agreement. If the agreement required that the father pay $250 a month, it is clear that he never fully complied with it from the outset: he sent $2,200 in 2017, $1,800 in 2018 and $1,300 in 2019 and nothing afterwards. Why? The Court finds the father’s excuse that the mother started this proceeding and wanted the issues determined by the Court as his explanation for not paying support unpersuasive and revealing more about his refusal to recognize his lawful parental support obligation despite his assurance to the Court that he was always willing to pay support. It was clear from the hearing that there remained considerable animosity between the parties. The mother also challenged any credit being given to the father because she said that she also incurred daily (and some undocumented s. 7) expenses for the child not reflected in what she had provided to the Court. Irrespective of what the parties may have agreed (and this Court finds there was never any such arrangement as suggested by the father), no such agreement can bind this Court anyway.
[38] Putting this matter into perspective, for the 2016 to 2021 six year period the father earned $635,548 and yet he only provided $5,350 to the daughter, some of which was used by her to fund the air travel ticket costs between Victoria and Toronto. He also supported her when she spent several months each summer with him.
[39] Applying the Guidelines, this Court finds that the father owes $60,731 for child support arrears and up to and including April 30, 2022. There should be deducted from this amount an, admittedly arbitrary, amount of $500 for each of the 2019-2021 summers for any additional expenses he incurred for her then (total $1,500).[^19] The resulting figure is $59,231, say $59,230.
[40] The average monthly table payment over the seven years under review is $972. The three- year average for his s. 7 expense obligation (i.e. $3,616) is $1205 a year (rounded), or about $100 a month. The resulting figure $1,072 but should be reduced to $900 monthly to take into consideration that the father has another family to support and that he has significant debt (but no evidence as to how or why such debt was incurred).
Disposition
[41] The following is ordered:
(a) The Court finds that the father owes child support to the mother in the amount of $59,230 for the period September 1, 2016 to April 30, 2022;
(b) The father shall pay $900 a month toward the support ordered in (a) above starting March 1, 2022;
(c) The child’s entitlement to support shall end on April 30, 2022 but the father’s obligation to pay the amount set out in (a) and (b) above shall continue after that date until the amount is fully paid.
[42] A Support Deduction Order shall issue.
[43] Court Administration is directed to prepare and have issued the Order in this matter and to forward the issued copy to the Director, the mother and the father.
Justice David A. Jarvis
Date: February 9, 2022
[^1]: S.O. 2002, c. 13. [^2]: 2021 ONSC 136. [^3]: R.S.O. 1990, c. F.3, as am. [^4]: Pursuant to the Age of Majority Act [RSBC 1996] Chapter 7, the age of majority in British Columbia is nineteen. It is eighteen in Ontario. [^5]: These calculations deduct union dues. [^6]: Page 3 of an unaudited statement dated March 23, 2021 from Global Educational Trust Foundation indicates that the total amount invested as of that date was $43,568.25 but refers back to the opening balance for 2020 and 2021 on page 1 of the statement. The court will use the January 1, 2019 opening balance shown on that page and its summary of withdrawals. [^7]: O.R eg, 391/97 as am. [^8]: 2021 ONSC 224 at paras 115-116. [^9]: The amount is marginally different from the Ruling ($9,621). [^10]: The Ruling used a $110,050.84 income: the amount payable was calculated to be $11,868. [^11]: The mother testified that the diagnosis was later not confirmed but that further testing suspected fibromyalgia. Whatever the diagnosis, she complained of headaches and constant exhaustion. [^12]: Tuition tax credits to which the child was entitled were not considered because, even if assigned to the mother, she earned no income for the years involved. [^13]: 2015 ONSC 6589, at paras 42-49. [^14]: 2010 ONCA 876, at para 14. [^15]: This comprises $$7,094 (2019), $8,233 (2020), $5,233 (2021) and $3,083 (2022). [^16]: This comprises the $7,904 fully paid in 2019 and $8, 413.75 (2020), $4,318.85 (2021) and $200 (2022). [^17]: Richardson v. Richardson, 1987 58 (SCC), [1987] 1 S.C.R. 857 at p. 869. [^18]: Michel v. Graydon, 2020 SCC 24 at para. 31. [^19]: Taking into account two months of Guideline support payable for 2017 to 2021 results in a figure of $10,028 of which 67% totals $6,718.79. Adding $2,500 for five summers at $500 per summer results in a total of $9,218.79, rounded to $9,200.