COURT FILE NO.: 3324/15 DATE: 2023/06/26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ALLYSON CHRISTIE CRAIG Applicant – and – DOMENICO NIRO Respondent

Self-represented Self-represented

HEARD: April 6, 2023

REASONS FOR DECISION Ellies R.S.J.

OVERVIEW

1In September 2022, I dismissed Mr. Niro’s motion to vary monthly child support for the parties’ son, N., and granted part of his motion for reimbursement of expenses incurred in bringing N. to university: Craig v. Niro, 2022 ONSC 5178. I granted Mr. Niro leave to renew the variation motion on further and better evidence, which he has done. These are my reasons on the renewed motion.

2As I will explain, although I agree that the monthly child support should be varied retroactive to the date N. began attending university away from home, Mr. Niro will not be getting a full refund. Based on my calculations, Mr. Niro has not been contributing his proportionate share of N.’s post-secondary educational expenses and, therefore, he has some catching up to do.

BACKGROUND

3I set out the background facts in detail in my earlier decision and I will not repeat them all here.

4The parties have two children, N. and D., who reside with them equally. Mr. Niro earns significantly more money than Ms. Craig and, therefore, pays set-off support to Ms. Craig in the amount of $1,330.00 per month for the two children.

5N. began university in the fall of 2020. However, because of the COVID-19 pandemic, he did not attend classes in person that year and, instead, was able to live at home and learn remotely.

6N. began to attend university in person in the fall of 2021. That September, he began to live in St. Catherines for eight months of the year. As a result, Mr. Niro moved to vary the child support for N. based on decisions such as Coghill v. Coghill and Liscio v. Avram. The approach in those cases was summarized by Price J. in Liscio, 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. [Citations omitted.]

7Based on this approach, Mr. Niro seeks to reduce the monthly child support payments as follows:

• support for one child (D.) = $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 N. resides with both parties) = $2,044
• $2,044 ÷ 12 = $170/month for N.
• total support ($819 + $170) = $989/month.

8Varied retroactively to September 2021, Mr. Niro submits that Ms. Craig owes him the sum of $8,176.00. He requests that an order go directing the Family Responsibility Office (“FRO”) to credit him this amount towards ongoing child support.

9The problem is that Mr. Niro has significantly underestimated what it costs for N. to attend university and, therefore, what he should be contributing to those costs under s. 7 of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines").

ANALYSIS

10Section 7 of the Guidelines defines “special or extraordinary expenses” to include post-secondary education 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

11The court order under which Mr. Niro's child support payments are being made requires that he pay 64 percent and that Ms. Craig pay 36 percent of N.'s s. 7 Guidelines expenses.

12Section 3 of the Guidelines provides that a child support order consists of both the monthly table amount and the s. 7 expenses. Therefore, I must consider not only the fact that N. is residing away from home for part of the year, but also the expenses associated with doing so. I will begin by briefly dealing with the monthly support before moving on to consider the s. 7 post-secondary education expenses.

Monthly Support

13As I indicated in my September 2022 reasons, I agree with Mr. Niro that the monthly support should be varied in accordance with the jurisprudence in Coghill, Liscio, and similar cases. I also agree that the variation should be made retroactive to September 1, 2021, when N. began living away from home. As Mr. Niro submits, he attempted to negotiate a variation with Ms. Craig even before N. moved away and brought his motion to change as soon as he realized that they could not agree.

14However, I do not agree with Mr. Niro's calculation regarding the amount he will be entitled to be reimbursed once the retroactive variation takes effect. Mr. Niro submits that he will be entitled to be reimbursed for 16 months (8 months for two school years) at the rate of $511 per month, for a total of $8,176. However, Mr. Niro is using the wrong monthly multiplier. The difference in monthly child support is not $511. As the calculation set out above shows, the additional $511 that Mr. Niro must pay while N. is at home for the 4 months of the summer must be divided by 12 to arrive at the amount of child support payable each month. The result of that division is then added to the monthly support payable for one child. As the calculation set out above makes clear, the difference in monthly child support is $341 ($1,330 – $989). For the period from September 1, 2021, to July 1, 2023, when the variation takes effect, the amount that Mr. Niro will have overpaid is $7,502 ($341 x 22 months), not $8,176.

15I now turn to the s. 7 expenses.

Actual Post-Secondary Education Expenses

16Mr. Niro has provided a detailed spreadsheet which incorporates data taken from N.’s bank account and various other sources. As the evidence relates to everything other than Ms. Craig's contributions to N.'s post-secondary education expenses, I have relied on that spreadsheet in the analysis that follows.

17Mr. Niro submits that N.’s expenses for university for the 2021-2022 school year were $19,381.39 and that the expenses for the 2022-2023 school year are $20,670.43. These figures are based on Mr. Niro’s evidence that the total costs for the 2021-2022 and 2022-2023 school years are as follows:

For 2021-2022:

• Tuition for two semesters: $7,840.60
• Rent (11 months x $609/month): $6,699
• Utilities ($100/month x 12 months): $1,200.00
• Books: $41.79
• Food and entertainment: $3,600.00 ($450/month x 8 months) Total = $19,381.39

For 2022-2023:

• First semester tuition: $4,022.14
• Second semester tuition: $3,391.53
• Rent ($616.30/month x 12 months): $7,395
• Utilities ($100/month x 12 months): $1,200.00
• Books: $330.58
• Food and entertainment: $4,000.00 ($500/month x 8 months) Total = $20,670.43

18However, the evidence of both parties reveals that their son's education expenses significantly exceed Mr. Niro's calculations. I will begin with Mr. Niro's evidence.

19Mr. Niro complains that N. spends too much money while he is away at school on things like transportation, alcohol, and eating out. In the last motion, he complained that N. was spending too much money ($511.45) on the operating costs of a vehicle Ms. Craig allowed him to use before she needed it to go back to in-person employment. In this motion, he complains that N. is also spending too much on UBER rides ($1,494.64), trips to the LCBO ($851.95), and eating out ($2,512.69). These expenses total $5,370.73. Mr. Niro contends that these expenses are excessive. I will return to the question of how reasonable these expenses are later in these reasons, when I discuss what the post-secondary education expenses should be. For now, I mention them only to demonstrate that the actual costs for N.'s post-secondary education are higher than Mr. Niro suggests. His calculations do not appear to contemplate all of these costs. He has included nothing for transportation, for example.

20Based on his own evidence, there are other expenses that have not been included in Mr. Niro's calculations. In the last motion, for example, Mr. Niro sought and obtained an order for reimbursement for part of the costs of taking N. to university for the first time. Those costs were found by me to be $2,650.48. Although he gave no notice that he would be seeking to do so in this motion, in addition to asking to change the amount of monthly support he pays for his children, Mr. Niro also asks that Ms. Craig be ordered to pay her proportionate share of the costs of a tutor for N. and for his flights home. The total of these expenses is $2,918.60. Again, none of these are included in Mr. Niro's calculations.

21Ms. Craig has also incurred expenses for N. that are not reflected in Mr. Niro's calculations. She deposes that she has spent $8,268.29 on items directly related to N.'s education. [1] The list of expenses (Exhibit "E") includes a new laptop computer ($2,145.87). Mr. Niro takes issue with the computer purchase. He argues that N. already had a perfectly good laptop. I will also deal with the reasonableness of this expense later in these reasons.

22However, several other items on the list in Exhibit "E" should be addressed now. One item on the list is not related to N.'s education and is, instead, related to that of his sister: a $200 fee for her university application. This expense must be removed from the list. So, too, must the expenses that appear to be unrelated to the school years in question ($625.45), as well as the money that Ms. Craig transferred to N. that has already been accounted for by Mr. Niro in his spreadsheet. However, accounting for this money is not easy to do. Some of the entries on Exhibit "E" correspond closely to the data taken by Mr. Niro from N.'s bank account. This is the case, for example, with the expenses listed by Ms. Craig in September and October 2021, such as the weekend spending money, the lab coat, and gas money. Other entries do not correspond so well, or at all. For example, there is a $500 transfer on February 2, 2021, that does not seem to correspond to any entry on Exhibit "E".

23For this reason, I have deducted the full amount of the e-transfers from Ms. Craig accounted for by Mr. Niro for the school years in question ($2,006.67) and I will add them back in, below, as part of my calculation of N.'s actual expenses.

24Removing D.'s university expense, N.'s 2020-2021 expenses, and the e-transfers from Ms. Craig leaves the sum of $5,436.17 on the list in Exhibit "E".

25In addition, Ms. Craig deposes that she incurred costs for other things, not all of which are directly related to N.'s education. The list of these expenses (Exhibit "H") includes school clothes, groceries, and items for N.'s bedroom. It also includes a contribution towards a trip N. took to Barbados just before the 2022-2023 school year began ($270). Mr. Niro takes issue with this expense, arguing that N. not only spent money he did not need to spend, but gave up an opportunity to make some. Like the expenses associated with transportation and the LCBO, I will return to this expense when I discuss what N.'s post-secondary education expenses should be.

26Removing expenditures made before the 2021-2022 school year and those relating to D. from the list in Exhibit "H" leaves a total of $2,460.30. Adding these expenses to those listed in Exhibit "E" gives a total of $7,896.47 spent by Ms. Craig for N.'s benefit that have not been accounted for by Mr. Niro.

27Ms. Craig also deposes that she has spent over $16,000 on trips with N. to Toronto for treatment of a medical condition with which he was diagnosed 11 years ago, for which she has not been reimbursed by the Northern Travel Grant. Clearly, these expenses cannot be considered as educational expenses under s. 7 of the Guidelines and, therefore, they are not relevant to my decision on this motion. If Ms. Craig wishes to pursue Mr. Niro for his proportionate share of those expenses, she is free to bring her own motion.

28In addition to the amounts that I have considered above in determining the actual cost of N.'s post-secondary education, the parties have each also given N. money. Mr. Niro transfers the cash directly between accounts because he is a joint accountholder with N.. Ms. Craig has given N. money both by e-transfer and by providing him with cash. Mr. Niro deposes that he transferred $1,475 in 2021 and $1,400 in 2022 to N.. In addition, he paid $604.28 for books and utility costs in 2022, for a total of $3,479.28. He admits that Ms. Craig has e-transferred $2,006.67 to N. in those years.

29Leaving aside the medical and other unrelated expenses, the unaccounted-for expenses referred to above total $21,222.77 for the 2021-2022 and 2022-2023 school years. The calculation is as follows:

$2,650.48 (setting up at school)

• $5,370.73 (transportation, LCBO, eating out)
• $2,918.60 (tutor and flights)
• $5,436.17 (Exhibit "E": laptop, etc.)
• $2,460.30 (Exhibit "H": rugs, drapes, groceries, etc.)
• $3,479.82 (Mr. Niro's cash contributions)
• $2,006.67 (Ms. Craig's cash contributions) Total = $21,222.77

30Based on this evidence, I conclude that N.'s post-secondary education costs for 2021-2022 and 2022-2023 are roughly $61,274.59 ($19,381.39 + $20,670.43 + $21,222.77), an amount that exceeds Mr. Niro's figures by about $10,000 per year.

Reasonable Post-Secondary Education Expenses

31I turn now to the question of whether N.'s post-secondary education expenses are reasonable.

32Section 7(1) of the Guidelines requires the court to consider the necessity and reasonableness of this expense and N.'s ability to contribute to it before apportioning it between the parents: Titova v. Titov, 2012 ONCA 864, at para. 23.

33Mr. Niro takes issue with the following expenses:

• gas money;
• UBER fares;
• LCBO;
• laptop;
• August vacation; and
• eating out.

34I am satisfied that all but one of these expenses were reasonable and necessary.

35Regarding the gas money and UBER fares, as I pointed out earlier, Mr. Niro has not included any amount for transportation in his calculations. Certainly, transportation is a necessity. Mr. Niro argues that N. should be relying on his friends for transportation. I find that suggestion to be unreasonable. At the very least, N. would be expected to contribute to his friend's expenses. In the absence of some evidence as to what N. otherwise might have spent on transportation, I am not persuaded that it is unreasonable for him to take an UBER or put gas into his mother's vehicle, rather than taking advantage of his friends.

36I would also point out with respect to the costs of transportation and the expenses dealt with below that these expenses span a period of time beginning in January 2020 and ending in April 2022. This is the reason that I do not find the LCBO expense to be unreasonable and, as Mr. Niro himself acknowledges by including at least some amount for "entertainment" in his calculations, it is also not unnecessary.

37As for the laptop, I find it perfectly reasonable that N. should begin what the parties suggest will be six years of post-secondary education with a new laptop. I have no evidence as to the age of the computer it replaced, but I do know that it would have been at least five years old before N. finished school, which is too old for modern technology to stay modern.

38Finally, I see nothing unreasonable in N. taking a vacation after working for the summer and before going back to school. As Mr. Niro said repeatedly during his submissions, N. did very well by his employer during the summer. He also worked during the Christmas break for another employer. The expense for a tutor shows that he is also working hard at school, as do his marks. I do not find Ms. Craig's contribution of $270 to be particularly high and see it as an indication that the trip was not an expensive one.

39Unfortunately, I cannot say the same thing about the money N. has spent eating out. It seems high, even spread out over two-plus years. It is hard to say what it should be, however. I do not know how often N. finds himself at class around mealtimes, for example, and therefore unable to eat at home. For that reason, I would only trim about $1,000 off of the $2,512.69 to arrive at a reasonable amount for meals outside the home of about $750 per year.

40For these reasons, I am satisfied that N.'s necessary and reasonable yearly post-secondary expenses are in the $30,000 range. I will use this figure when I arrive at the task of determining what the parties should have contributed to N.'s post-secondary education expenses. First, however, I must determine what the parties' actual contributions were.

Contributions

41Contributions to N.'s post-secondary education expenses have been made by the RESP, N., scholastic awards, and the parties.

42According to Mr. Niro, the contributions have been as follows:

Year Dom's Contributions Ally's Contributions Gov't Programs N.s pay YMCA/City N.'s pay Algoma Steel / YMCA RESP Money (tuition / books) RESP (Rent) Total Monies for N. Status 2020 $2,015.00 $100.00 $5,750.00 $668.59 $0.00 $4,000.00 $0.00 $12,533.59 Home 2021 $1,475.00 $1,380.00 $694.74 $7,919.01 $0.00 $4,224.00 $2,436.00 $18,128.75 Away 2022 $2,004.28 $626.67 $1,008.59 $0.00 $16,179.88 $4,200.00 $4,263.00 $28,282.42 Away Total $5,494.28 $2,106.67 $7,453.33 $8,587.60 $16,179.88 $12,424.00 $6,699.00 $58,944.76

RESP Contributions

43The table above comes directly from Mr. Niro's materials Although it is not obvious to me from the table, according to Mr. Niro, a total of $28,152.00 has been withdrawn from the RRSP to contribute to N.’s education expenses. The sum of $4,000.00 was paid towards the expenses for 2020-2021. To determine what contributions have been made to the 2021-2022 and 2022-2023 expenses, this amount must be deducted. The total RESP contribution for the years in question, therefore, is $24,152.00.

N.'s Contributions

44According to the table set out above, N. contributed the sum of $24,098.89 from earnings for the 2021-2022 and 2022-2023 school years. Subsequent to the preparation of the table from which the figures set out above were taken, however, N. was paid his bonus from his summer employer and salary from his Christmas employer. This additional $5,568.58 brings the total amount contributed by N. to $29,667.47 over the two years. As I understand it, however, this amount represents all of N.’s net earnings. N. still has $4,200.00 in the bank, according to his father. Therefore, that amount must be deducted from N.’s contributions to date. Doing so results in a figure for contributions by N. in the amount of $25,467.47 over the past two school years.

45In addition to the contributions he has made from his earnings, Mr. Niro deposes that N. received a $1,000.00 scholastic award last year, bringing N.’s total contributions to $ 26,467.47 for the school years in question.

46Finally, as the contributions relate to N., I am unable to determine from the evidence whether the "Government Programs" referred to in Mr. Niro's table are related to the scholastic awards referred to immediately above. For that reason, I have excluded the amount set out in the table for such programs from my calculations.

The Parties' Contributions

47In the calculations I performed above, I simply gathered together from the evidence the additional expenses that were not reflected in Mr. Niro's evidence. However, it must be remembered that Mr. Niro moved for and was granted an order that Ms. Craig pay her proportionate share of one of those expenses: namely, N.'s moving expenses. These expenses must, therefore, be allocated proportionately between the parties in considering their contributions. There is an issue about Ms. Craig's payment of her share of the moving expenses, with which I will deal below.

48Based on the foregoing analysis, the parties' contributions are as follows:

Mr. Niro: $2,650.48 - $954.17 (Ms. Craig's proportionate share) = $1,696.31 (setting up at school)

• $3,479.28 (as per the spreadsheet)
• $2,918.60 (tutor and flights) Total = $8,094.19

Ms. Craig; $954.17 (proportionate share of setting up at school)

• $2,006.67 (as per spreadsheet)
• $5,436.17 (Exhibit "E"))
• $2,460.30 (Exhibit "H") Total = $ 10,857.31

Total Contributions

49To recap, the following contributions have been made to N.'s post-secondary education expenses for the 2021-2022 and 2022-2023 school years:

• RESP: $24,152
• N.: $26,467.47
• Mr. Niro: $8,094.19
• Ms. Craig: $10,857.31 Total: $69,570.97

50It will be seen that the total amount contributed exceeds the amount that I have calculated as the actual cost for these two years ($ 61,274.59 ). However, it must be borne in mind that the purpose of the exercise undertaken earlier was to demonstrate that N.'s post-secondary expenses are higher than Mr. Niro says they are, not to account for all the money spent.

Proportionate Shares

51I come now to what the contributions should have been in this case, based on my finding that it should have cost approximately $60,000 ($30,000 per year) for N. to attend university the past two school years. I will begin with the RESP.

RESP

52Of course, all of the RESP money must ultimately go towards N.'s education. However, I question whether too much has already been spent.

53N. is currently in his third year at university. I am advised by Mr. Niro, and Ms. Craig takes no issue with the fact, that N. wishes to complete a four-year undergraduate degree and then to attend two years of teachers’ college. Mr. Niro indicates that there is only $9,789 left in the RESP. There is not enough to get N. through his remaining years debt-free, as Mr. Niro suggests, unless more contributions are made by N. and his parents.

N.'s Contributions

54During argument, I asked both parties if they agreed that it was too much to expect N. to spend all of his earnings on school. They both agreed and said that N. should be expected to contribute 60 percent of his earnings towards his post-secondary education costs.

55I believe that N. should be expected to contribute a greater percentage of his earnings to the costs of his own education. I would expect, instead, a seventy-five percent contribution. Applying this percentage to what he has actually contributed for the years in question results in the following calculation with respect to what N. should have contributed to his post-secondary education expenses:

$26,467.47 x .75 = $19,850.60

56Based on this calculation, N. has overcontributed by roughly $6,616.87. However, I need not determine where this money was spent or whether N. should be reimbursed for his overcontribution. My task is to determine what the reasonable costs of N.'s post-secondary education are and what the contributions from the parents should have been under s. 7, taking into account contributions from other sources, including N..

Mr. Niro's Contributions

57To calculate what each party should have contributed to N.'s post-secondary expenses, it is necessary to deduct the amount contributed already by the RESP for the years in question and the amount that N. should have contributed from the $60,000 reasonable two-year cost, leaving the balance that must be borne proportionately by the parties. This calculation is as follows:

$60,000

• $24,152 (RESP)
• $19,850.60 (the amount N. should have contributed) Balance = $15,997.40

58Mr. Niro's proportionate share of this amount is calculated as: $15,997.40 x .64 = $10,238.34.

59Ms. Craig's proportionate share is: $15,997.40 x .36 = $5,759.06.

60Mr. Niro has thus under-contributed by the sum of $2,144.15 ($10,238.34 – $8,094.19).

61Ms. Craig has over-contributed by the sum of $5,098.25 ($5,759.06 – $10,857.31).

62These calculations show that a redistribution is necessary as between the parties.

Redistribution

63As explained above, the contributions to N.'s post-secondary education costs for 2021-2022 and 2022-2023 should have been:

• RESP: $24,152
• N.: $19,850.60
• Mr. Niro: $10,238.34
• Ms. Craig: $5,759.06 Total: $60,000

64As I mentioned earlier, Mr. Niro seeks reimbursement for overpayment of monthly child support since N. moved away. I have calculated the amount of overpayment at $7,502, assuming the variation takes effect July 1, 2023. Mr. Niro seeks an order that FRO be advised of the amount of overpayment and that he be credited accordingly with respect to ongoing support. However, in my view, the amount that Ms. Craig has paid beyond what her proportionate share of N.'s expenses were should be deducted from this amount, because she effectively paid $2,144.15 of Mr. Niro's share of N.'s post-secondary education expenses. This leaves the sum of $5,357.85 ($7,502 – $2,144.15) owing to Mr. Niro from Ms. Craig.

65As I mentioned above, in September 2022 I ordered that Ms. Craig pay Mr. Niro her proportionate share of the expenses Mr. Niro incurred in bringing N. to school in 2021, in the amount of $954.17. Mr. Niro deposes that he did receive a cheque for that amount in December 2022, but he did not cash it. The cheque arrived in an envelope mailed from Ms. Craig's sister's address in Southern Ontario. Mr. Niro says he did not cash the cheque because he knew that Ms. Craig's sister was just trying to keep Ms. Craig from being found in contempt of court.

66In my view, it was unreasonable for Mr. Niro to refuse to cash the cheque. He had no doubt what the cheque was for or on whose behalf it was being sent. For this reason, I would add the sum of $954.17 to the amount owed by Ms. Craig for retroactive overpayment of money child support and order that the total ($6,312.02) be repaid by Ms. Craig to Mr. Niro at the rate of $200 per month, payable on the first day of each month, commencing on July 1, 2023, until repaid in full. Interest at the prescribed rate will run only on the sum of $5,357.85, representing the amount of the overpayment, from July 1, 2023, forward.

Moving Forward

67Mr. Niro asked the court to make an order that would govern the remaining years of N.'s post-secondary education. I cannot do that. I do not know how much money N. will make each year and, therefore, how much he should contribute at 75 percent of his earnings. Nor can I be sure that he will go to school for as long as is presently predicted or that the yearly costs will always stay in the $30,000 range.

68However, I can see no reason why the parties cannot use this decision as a guide in determining their respective contributions in the coming years.

CONCLUSION

69For the foregoing reasons, Mr. Niro's motion to change is allowed. Gareau J.'s order dated October 5, 2020, will be varied to provide that, commencing September 1, 2021, Mr. Niro shall pay monthly support for the children in the amount of $989 per month, payable on the first day of each and every month.

70Ms. Craig shall pay Mr. Niro the sum of $5,357.85, representing the amount Mr. Niro has overpaid in monthly child support since September 1, 2021. This amount shall be added to the amount Ms. Craig was previously ordered to pay to Mr. Niro for her proportionate share of N.'s moving expenses ($954.17), bringing the total amount owing to Mr. Niro to $6,312.02. This amount shall be repaid by Ms. Craig at the rate of $200 per month, on the terms set out above.

COSTS

71The parties are self-represented. Neither one of them has foregone any income-earning opportunity to prepare for or appear at the motion. Therefore, there shall be no order as to costs: Fong v. Chan (1999), 181 D.L.R. (4th) 614 (Ont. C.A.).

M.G. Ellies R.S.J. Released: June 26, 2023

1Ms. Craig stated during argument that she incurred a further expense of $700 for a plane ticket for Nick to come home in November 2022. As this evidence is not in affidavit form, I have not considered it.