COURT FILE NO.: 06-FL-800-4 DATE: 2023/07/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gilles Levesque, Applicant AND Kristy Sorel, Respondent

BEFORE: Justice Engelking

COUNSEL: Kellie Stewart, for the Applicant Rachelle Laforge, for the Respondent

HEARD: April 20, 2023

Endorsement on Motion to Change

[1] This is the fourth Motion to Change on this file. The original Final Order in this matter was made on consent of the parties by Justice Mackinnon dated December 10, 2007. The second was made on June 3, 2008, by Justice McLean, also on consent. The third variation order was made by Justice Kane on August 21, 2013. The fourth order was granted by Justice Phillips on August 28, 2018.

[2] Mr. Levesque now brings a Motion to Change the Final Order of Justice Phillips dated August 28, 2018, seeking an order for: a) retroactive adjustments to child support from 2018 to the present, b) correction of a 2017 error, c) termination of ongoing child support for the child S., d) certain disclosure from the Respondent, Ms. Sorel, e) proportionate sharing of S.’s post-secondary schooling expenses, both retroactive and prospective, f) some relief with respect to RESPs held by the parties, and g) that the Respondent pay S.’s share of a CPP-D benefit towards his post secondary education expenses.

[3] The issues of child support adjustments for 2018 to 2020, and a jointly held RESP have been resolved. The outstanding issues for determination on the motion are:

(1) Correction of the 2017 error; (2) Child support adjustments from January 1, 2021; (3) Ongoing child support; (4) Retroactive proportionate sharing of s. 7 expenses; (5) Ongoing proportionate sharing of s. 7 expenses; (6) The appropriate treatment of Ms. Sorel’s CPP-D benefit; (7) The appropriate treatment of a COVID benefit, and (8) The appropriate treatment of a previously jointly held RESP.

Background Facts

[4] The parties were in a relationship between 2001 and 2005. One child, S. was born in October of 2003. S. has lived with both of his parents on a 50/50 schedule.

[5] S. is currently engaged in a Bachelor of Accounting program at Brock University in St. Catherine’s Ontario. In the 2022/23 school year, S. was in his second year of the program.

[6] S. struggled during his first year at Brock. He was at school for the months of September to December 2021, and again from January 22, 2022, to April 17, 2022. He left school early to address his struggles. However, he was able to come up with a plan to continue and did return to school in September of 2022. S. has chosen a co-op option for his program. He is scheduled to be in school continuously through his first co-op term to January 1, 2024.

[7] Based on the parties’ changes of incomes, as well as that S. is now engaged in a post secondary schooling, I find that there has been a material change in circumstances affecting the child (young adult).

Issue #1 - Error in 2018 Final Order

[8] With respect to the issue of the 2017 error, paragraph 1 of the Final Order of Justice Phillips dated August 28, 2018, provides that the Applicant was to pay the Respondent $682 per month in set-off support from January to December of 2017, however this was premised on the 2017 Federal Child Support Guidelines, O.Reg. 391/97 tables. In fact, child support for January to October ought to have been on the 2011 tables, as they only changed effective November 1, 2017. Therefore, the amount of retroactive child support ought to have been calculated with this in mind.

[9] The Applicant’s then counsel attempted to rectify this error with the Respondent’s counsel in a September 2018 email exchange, however, it appears to have never been corrected. There is nothing controversial about this request, in my mind, and the error, which it clearly was, ought to be rectified. The difference from what the Applicant paid and what he ought to have paid is $242, which he will be reimbursed by the Respondent.

Issue #2 - Child Support Adjustments for 2021 and 2022

[10] Pursuant to the Final Order of Justice Phillips of August 28, 2018, the Applicant has continued to pay $658 per month in set off child support to the Respondent. The parties’ incomes in 2021 were $126,390 for the Applicant and $48,439 for the Respondent. The Applicant submits that he ought to have been paying table support only for the months that S. was not away at university. His submission is that he ought to have paid eight months of support at $670 per month, while he actually paid twelve months of support at $658 per month. The Applicant is seeking that $2,536 of overpayment be reimbursed to him by the Respondent.

[11] The Respondent’s position is that although S. does live away from home during the school year while attending Brock University, he spent much more time than the summer months at home. She submits that in 2021, S. was in St. Catherine’s from mid-September to mid-December, for a total of three months. She submits that the Applicant owed her $670 per month for nine months rather than eight. Her calculation of the overpayment is $1,866.

[12] The Applicant seeks to adjust child support for 2022 as well. At the time of the motion, his Income Tax Return was not yet completed. However, included in his materials was a T4 for 2022 indicating that his income was $134,799.59. A T4 for the Respondent placed her income at $47,338.32. The result is set off support payable by the Applicant of $745 per month. The Applicant submits that because S. left school early in April of 2022, he was at St. Catherine’s for all but 4 and ½ months in 2022. Again, he has paid $658 per month for 12 months, when in his view he ought to have paid $745 for 4 and ½ months. In his calculation, this results in an over payment of $4,543.50 for 2022.

[13] The Respondent’s position is that child support for 2022 should not be adjusted until the Applicant’s Income Tax is done and his Notice of Assessment has been received. If it is adjusted, however, it is again her position that S. was in Ottawa in 2022 for more than just the summer months. First, he did not return to Brock until January 22, 2022, and he left on April 17, 2022, when she went to retrieve him and bring him back to Ottawa. S. then returned to St. Catherine’s in September but spent a week at Thanksgiving and another three weeks over Christmas in Ottawa. The Respondent submits that those times should be included in the calculation of his time “at home”, and that support should be payable for them. She submits that S. lives at home a total of five months of the year – two reading weeks, two weeks over Christmas and four months over the summer. This would result in the Applicant having made an overpayment in 2022 (on the parties’ incomes as they were known at the time of the motion) of $4171.

[14] Notwithstanding the Respondent’s reticence, I am of the view that the adjustment for 2022 can also be made based on the parties’ income information as provided in their respective T4 slips.

[15] The Applicant submits that only child support should be payable only for those times when the child is living at home, not when he is visiting. This approach is, in my view, consistent with the case law on this issue.

[16] Therefore, the Applicant should be required to pay table support of $670 per month for 8 months in 2021, and $745 per month for 4 and ½ months in 2022.

Issue #3 – Ongoing Child Support

[17] The Applicant seeks an order that no table child support be payable by either party on a go forward basis. This is based on his contention that S. will be away at school for the remainder of his program, which he is anticipated to finish in April of 2026.

[18] The Respondent opposes this request, based on the uncertainty around whether S. can maintain the grades necessary to remain in the co-op program, and alternatively whether he may, in fact, find a co-op placement in Ottawa, which would again see him living at home.

[19] On this issue, I agree with the Respondent. There are several factors which play into the question of whether table support is appropriate. First, although S. has done better in the 2022/23 school year, he struggled with mental health and addictions issues in 2021/22, to the extent that he was unable to finish his year. S. continues to see or speak to a psychologist, and his mental health may be somewhat fragile. Second, S. may or may not keep up the grades to continue in the co-op portion of his program. Third, if he can stay in the co-op portion of the program, he may find a placement in Ottawa. For all these reasons, I am of the view that table support should continue while S. is living at home. Therefore, commencing January 1, 2023, the Applicant shall pay ongoing set off child support of $745 per month to the Respondent for the months that S. is not living outside of the parents’ homes.

Issue #4 – Retroactive s. 7 expense contributions

[20] With respect to S.’s section 7 expenses for post secondary schooling, the Applicant asserts that the summary of how his expenses have been paid for his first two years, those being the 2021/22 and 2022/23 school years are as follows:

• Joint RESP - $12,494.54
• OSAP grants - $8,000
• Scholarship - $2,500
• Father - $20,575.73
• Mother - $0

[21] However, in January of 2023, the Respondent agreed to the release of the remaining $19,267.03 in the joint RESP account for S. to the Applicant to reimburse him for the expenses he has paid. The difference, therefore, between what the Applicant has paid, and the reimbursement is $1,308.70. The Applicant submits that the Respondent’s proportionate share of that amount owed to him is $366.44.

[22] While the Respondent agrees that she will owe her proportionate share of that balance, she is unsure of what that is given that the parties’ incomes have changed. The Applicant has combined S.’s post secondary expenses for the school years of 2021/22 and 2022/23 in the balance owing. Phillips J.’s Final Order set out at paragraph. 4 that the Applicant’s proportionate share of S.’ section 7 expenses was 73%, resulting in the Respondent’s share of $1308.70 being $353.35. If the figure is adjusted for the parties’ 2022 incomes, the Applicant’s proportionate share would be 74%, resulting in the Respondent’s share of $1308.70 being $340.26.

[23] It seems to me that if adjustments are to be made in relation to child support in 2022, then they too should be made for s.7 expense contributions based on the same incomes. The Respondent should, therefore, be responsible for 26% of the remaining $1308.70, that sum being $340.26.

Issue #5 – Ongoing s.7 expense contributions

[24] The Applicant has calculated that S.’s future expenses for post secondary education will be $25,000 annually. He states that S.’s contribution towards his expenses is $8000 per year in OSAP grants, which contribution is outside of his estimate of $25,000, which he has based on S.’s past expenses. The Applicant states that he is the one who has historically made the payments to S.’s university and/or for his supplies, and that he has had to recover the Respondent’s share from her, which is taxing, and never timely. To streamline, he seeks an order for monthly contribution to be paid to him by the Respondent for her proportionate share of the expenses.

[25] The Respondent opposes paying the Applicant monthly. She believes payments for post secondary expenses should be made to S. or to the university directly. She objects, moreover, to the Applicant’s estimate. Unlike the Applicant, the Respondent has not provided any evidence of payments made by her directly to S. or to the University for his fees and/or books/supplies. The Respondent also appears to suggest that there should be a contribution by S. to his own expenses, beyond the OSAP grants he receives, though she is not clear as to what that should be. She has not provided her own estimate for what S.’s ongoing future post secondary expenses are expected to be. The Respondent has, however, provided payment to the Applicant for s. 7 expenses, most recently by way of release to him of the funds remaining in the RESP.

[26] I have no evidence to suggest that the Respondent will not pay the Applicant her proportional share of S.’s post secondary expenses, once she has received an accounting of what they are. While it may not be as in timely a manner as the Applicant would like, I also have no evidence of financial hardship suffered by him by making the payments and requesting reimbursement. Rather than require an upfront monthly payment being made to him, I will make an order that either parent shall pay their proportionate share of a section 7 within 30 days of having been provided the receipts/proof of expenditures made by the other parent.

Issue #6 - CPP-D Benefit

[27] The Respondent has been in receipt of a disability pension from the Canada Pension Plan for some time. A portion of that pension was for the benefit of S. while in her care as a minor. After S. turned 18 on October 19, 2022, he was able to receive it directly. The Applicant calculates that the Respondent received $9,373.32 “on behalf of S.” prior to him receiving it directly after his 18th birthday. The Applicant seeks an order requiring the Respondent to pay this amount to S.

[28] The Respondent’s position is that there is absolutely no requirement in law that she do so. She relies both upon Schedule I of the Federal Child Support Guidelines, SOR/97-175 (“FCSG”)’s (which defines in paragraph 6 what is included in income for the purposes of the formula) and the Ontario Court of Appeal case of Sipos v. Sipos, 2007 ONCA 126, in support of the proposition that the benefit did not form part of her income for child support purposes prior to it being provided directly to S.

[29] With this proposition, I agree. The Respondent will not be required to provide $9,373.32 to S. as reimbursement for the benefit she received on behalf of S. while he was a minor.

Issue #7 – COVID grant received

[30] The Applicant applied for a COVID grant in support of S. in 2021, from which $600 was received. In April of 2021, the parties were communicating about the possibility of buying a computer for S. with those funds. However, they did not ultimately do so. The Respondent has requested that the grant be shared between the parties on a 50/50 basis. The Applicant’s position is that it should be split based on their proportional percentage contributions to s. 7 expenses. I have no evidence before me, however, that the money was applied to S.’s s.7 expenses. As S.’s parents, I find that the Applicant and the Respondent are equally entitled to share in the grant. The Respondent is, therefore, entitled to $300 from the grant.

Issue #8 - Discontinued RESP Account

[31] Paragraph 25 of the Final Order of Justice Mackinnon dated December 10, 2007 provided:

25.The parties are currently the joint account holders of a Registered Educational Savings Plan for the child, which is invested with the CIBC. The current balance in this account is approximately $4,000.00. The Applicant agrees to relinquish his position as a joint account holder and to have the Respondent appointed as the sole account holder. The Respondent agrees to continue to hold and invest these monies solely for the benefit of [S.]. In the event that [S.] does not attend a post secondary education institution, these monies, including all accrued interest, shall be transferred to a Registered Retirement Savings Plan or other appropriate investment account, in the sole name of S.L.

[32] However, paragraph 1. c. of the Final Order of Justice McLean dated June 3, 2008, added a paragraph 26(b) to Justice Mackinnon’s Final Order which varied the Applicant’s child support obligation and provided: “In addition to the foregoing, commencing May 1, 2008, the Applicant shall make a monthly contribution to a Registered Educational Saving Plan for the benefit of the child. [S.L.]. The Applicant shall continue to make a monthly contribution to this amount on the 1st day of each successive month.”

[33] In October of 2008, the CIBC RESP ending in account number 769 referred to in Justice Mackinnon’s order held a balance of $4,183.16. This balance was divided between the Applicant and the Respondent, and the account was closed. The Respondent put her one-half share of this account into a new “family” RESP. Based on the language in Justice Mackinnon’s order that it was to be held “solely for the benefit of [S.]”, the Applicant now seeks an order requiring the Respondent to pay that money to S. or to put it towards his post secondary expenses.

[34] The Respondent submits that the changes made to Justice Mackinnon’s order by paragraph 1. c. of the Final Order of Justice McLean dated June 3, 2008, changed this obligation. A new RESP into which the Applicant’s contributions were to be made was set up by the parties, after which they divided the balance of the old RESP and closed the account. The Respondent transferred her half of the proceeds into what she refers to as “family RESP account”, in other words, for the potential benefit of other children of her family. Indeed, the Respondent states that the Applicant transferred his share of the balance into his own RESP account. Whether his share ended up in the RESP account for S. is unknown, but also irrelevant.

[35] Once the Final Order of Justice Mackinnon was varied, and the balance of the original RESP account with CIBC was paid out to the parties, it ceased, in my view, to be subject to Justice Mackinnon’s direction to be dedicated towards the sole benefit of S. Rather, each party had control over their respective share and could do with it as they each pleased. I decline, therefore, to make the order requested by the Applicant.

[36] The Applicant has also made some submissions with respect to disclosure he would want to receive from the Respondent with respect to her knitting “business”, suggesting that she may be in receipt of additional income. The Respondent has provided evidence that her knitting is therapeutic for her physical and mental health issues, and that while she has sold an item from time to time, for which she receives negligible profit, she usually gifts the fruits of her labour. This activity does not, in view, merit much attention and I will not make a further disclosure order in this regard.

Order

[37] For the reasons outlined above, there shall be a Final Order as follows:

1. Paragraph 1 of the Final Order of Justice Phillips shall be corrected to read as follows: “Retroactive child support shall be awarded to the Respondent Ms. Sorel, for the period of January 1, 2017 to October 31, 2017 in the amount of $660 per month and for November 1, 2017 to December 31, 2017 in the amount of $682.00 per month, based upon the parties 2017 annual income levels of $121,654.00 for the Applicant father and $43,321.32 for the Respondent mother.”
2. For the calendar year of 2021, the Applicant shall pay to the Respondent $670 per month in FCSG’s table support for 8 months based on annual incomes of $126,390 for the Applicant and $48,439 for the Respondent.
3. For the calendar year of 2022, the Applicant shall pay to the Respondent $745 per month in FCSG’s table support for 4 and ½ months based on annual incomes of $134,799.59 for the Applicant and $47,338.32 for the Respondent.
4. Commencing January 1, 2023, the Applicant shall pay to the Respondent $745 per month in FCSG’s table support for every month that S. is not living away from home based on the parties 2022 incomes of $134,799.59 for the Applicant and $47,338.32 for the Respondent.
5. The Respondent shall pay to the Applicant the sum of $340.26 as her proportional share of S.’s outstanding s. 7 expenses of $1308.70 for the 2021/22 school year.
6. The Applicant and the Respondent shall proportionally share S.’s ongoing s. 7 expenses. Based on their 2022 incomes of $134,799.59 for the Applicant and $47,338.32 for the Respondent, those shares are 74% for the Applicant and 26% for the Respondent. The parent paying a section 7 expense for S. shall provide proof of such payment to the other, and the receiving parent shall pay their proportionate share of the expense within 30 days of receiving such proof.
7. The Applicant shall pay to the Respondent $300 as her share of the COVID grant applied for on behalf of S.
8. The remainder of the Applicant’s motion is dismissed.

Costs

[38] Success on this motion has been mixed. While the Applicant has obtained some requested adjustments to child support for 2021 and 2022, and to have the 2017 error corrected, he has not been successful on certain other requests for relief. It is my sincere hope that the parties can come to some agreement on the issue of the costs of the MTC. If they are unable to do so by August 18, 2023, they may provide written submissions at 10-day intervals from that date of no more than three double-spaced, 12-point font pages, along with Bills of Costs and Offers to Settle, and I will make a decision.

Engelking J. Date: July 27, 2023

COURT FILE NO.: 06-FL-800-4 DATE: 2023/07/27 ONTARIO SUPERIOR COURT OF JUSTICE RE: Gilles Levesque, Applicant AND Kristy Sorel, Respondent BEFORE: Justice Engelking COUNSEL: Kellie Stewart, for the Applicant Rachelle Laforge, for the Respondent ENDORSEMENT on motion to change Engelking J. Released: July 27, 2023