Court File and Parties

COURT FILE NO.: 3442/15 DATE: 2023/10/23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MONICA ANNE CAMPBELL Applicant

– and –

DAVID WILLIAM CAMPBELL Respondent

Counsel: Self-represented Self-represented

HEARD: October 17, 2023

REASONS FOR DECISION

Ellies R.S.J.

INTRODUCTION

[1] Ms. Campbell moves to change the order of Gareau J. dated October 5, 2020, as it relates to child support for the parties’ son, David. David finished playing junior hockey in April 2023 and began attending Nipissing University in September. He is enrolled in a four-year program there. The OHL will pay his tuition, books, and ancillary expenses for two years. However, he must pay for his own housing, food, and accommodation costs. Ms. Campbell seeks ongoing monthly child support and a contribution towards David’s post-secondary education expenses.

[2] Mr. Campbell opposes the motion. In response to the motion, he filed a financial statement and supporting financial documents, including his employment contract, pay stubs, and T4s for 2022. As a result of the financial documents filed by Mr. Campbell, Ms. Campbell filed a second motion to change, seeking not only increased child support, but also increased spousal support based on her belief that Mr. Campbell was earning more money than he had been previously.

[3] At the outset of the hearing, it was determined that Ms. Campbell had misinterpreted the income information provided by Mr. Campbell and it was agreed that he is currently earning only $100,000 per year, not $238,000. Ms. Campbell, therefore, abandoned her second motion.

[4] For the following reasons, Ms. Campbell’s original motion is allowed in part.

BACKGROUND

[5] The parties were married in 1989 and separated in 2014. They have been before the court many times since they separated. For a recent recitation of the background facts, see Campbell v. Campbell, 2022 ONSC 5816.

[6] In the present motion, Ms. Campbell seeks child support in the form of both monthly support payments and a contribution towards David’s post-secondary education expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines"). On a monthly basis, Ms. Campbell seeks $1,049 per month for the months when David is home, namely May, June, July, and August. For the 2023 year, she asks that the support start on April 18, the day that David returned home from playing hockey.

[7] Ms. Campbell also seeks an order that Mr. Campbell pay one-third of the monthly amount of $1,049 for the other eight months of the year, to help maintain the cost of a home for David to return to in the summer, as per the decision in Coghill v. Coghill, 2006 28734 (Ont. S.C.).

[8] By way of s. 7 expenses, Ms. Campbell seeks to recover Mr. Campbell's proportionate share of the costs of David’s university application in the amount of $216, as well as the costs of moving to North Bay and setting up a residence there in the amount of $2,447.98, for a total of $2,663.98.

[9] As it relates to ongoing monthly support, Mr. Campbell opposes the motion for three reasons. First, he submits that David was not a child of the marriage after hockey finished and before he started university. Second, he contends that the Guidelines call for monthly support payments of only one-half the amount sought by Ms. Campbell, being $572 per month. Third, he submits that the $2,000 per month in spousal support he is currently paying pursuant to the order of Gareau J. dated September 27, 2019, is more than adequate to maintain Ms. Campbell’s household, especially if one considers the income of her partner, Mr. Niro.

[10] As it relates to the costs of moving, Mr. Campbell submits that he should not be required to pay anything because he bought David a new computer, has given him the sum of $4,000 by way of e-transfers since the end of February 2023, and will be giving him another $1,000 soon.

ISSUES

[11] The issues in the motion are:

(1) Was David a child of the marriage after he finished playing hockey in April and before he started university in September?

(2) If so, what child support should Mr. Campbell pay for that period?

(3) What ongoing child support, if any, should Mr. Campbell pay for the months while David is away at university?

(4) What share, if any, should Mr. Campbell pay of David’s university application and moving costs?

ANALYSIS

Was David a child of the marriage after he finished playing hockey in April and before he started university in September?

[12] Mr. Campbell makes the same argument he made in the 2022 motion, referred to above, that David was not a child of the marriage after he finished playing hockey and before he started university. This argument must fail for the same reason it did in the earlier motion.

[13] As I explained in my reasons in the 2022 motion, the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), defines a "child of the marriage" in s. 2 as follows:

child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[14] Under the Divorce Act, the age of majority is defined by provincial legislation, where it exists: Divorce Act, s. 2. In Ontario, the age of majority is 18: Age of Majority and Accountability Act, R.S.O. 1990, c. A.7, s. 1. David is over the age of majority. However, he was still a child of the marriage in the April to September period because he was going to be going to school in September. He was no different than any other post-secondary student during that period. As a student, he was unable to withdraw from his parents’ charge.

[15] Mr. Campbell is therefore liable to pay child support for David for the period from April 18, 2023, to September 1, 2023, a period of four and one-half months.

What child support should Mr. Campbell pay for the period from April to September?

[16] Mr. Campbell does not dispute the applicability of the decision in Coghill as it relates to child support for what I will call “the summer months” of May, June, July, and August. Instead, two other issues arise within the larger question of how much child support Mr. Campbell should be required to pay during these months.

[17] The first relates to Mr. Campbell’s income. Pursuant to the terms of his present employment, Mr. Campbell earns $100,000 per year, paid at the rate of $8,333.34 per month. His income for 2022 was slightly higher than that, at $117,000. However, this amount included six months salary from his former employer and a car allowance paid monthly by his current employer in the amount of $833.34 per month.

[18] While Mr. Campbell was prepared to proceed on the basis that his income is $117,000 per year, I do not believe that is appropriate. The child support being requested relates to expenses incurred in 2023 and to be incurred in 2024. There is no reason to have any child support order based on 2022 income. Nor do I believe that the car allowance should be included in Mr. Campbell's income. Mr. Campbell is paid that amount monthly in lieu of a detailed claim by him for the expenses incurred in using his own vehicle for work purposes. It is not income but, rather, expense reimbursement on a fixed basis.

[19] For these reasons, I have considered Ms. Campbell’s requests based on income for Mr. Campbell in the amount of $100,000 per year.

[20] The second issue relating to monthly child support arises from Mr. Campbell’s suggestion that the Guidelines only require him to pay one-half of the amount being sought by Ms. Campbell. The problem with this suggestion is that it is based on a shared parenting regime when the parenting time in this case is not shared. David resides with Ms. Campbell, not with both Ms. Campbell and Mr. Campbell. When this was pointed out to him during the hearing, Mr. Campbell responded that David could live with him on a shared parenting regime, if he wanted to. But he does not appear to want to. Even if he might want to in the future, that is not the reality now. Therefore, there should be no set-off of child support, as suggested by Mr. Campbell.

[21] On this basis, the Guidelines provide that Mr. Campbell should be paying monthly child support for David during the summer period in the amount of $910. For the sake of clarity, he shall be required to pay the sum of $455 for the month of April 2023, and thereafter the sum of $910 for the summer months in each year, including 2023, until David is finished university in April 2027.

What ongoing child support, if any, should Mr. Campbell pay for the months while David is away at university?

[22] In addition to requiring the non-custodial parent to pay Guidelines support for the summer months, the court in Coghill required the non-custodial parent to pay one-third of that amount for the months the child was away at school (the “school months”) to help defray the costs of maintaining the custodial parent’s home as a place for the child to return to during the summer months and extended school breaks.

[23] Mr. Campbell resists paying such support on the basis that the $2,000 per month Ms. Campbell is receiving for spousal support, combined with her partner’s income, is enough. I disagree.

[24] Spousal support and child support are two very different things. They have different rationales underlying each. Whereas a former spouse may not be entitled to any support for one reason or another, a child of the marriage will almost always be entitled to support. Where a payor cannot afford to pay both spousal and child support, child support will come first. For that reason, it is not appropriate to suggest, as Mr. Campbell does, that there is no need to pay child support because he is already paying spousal support.

[25] If there were other children of the marriage residing with Ms. Campbell, I might be persuaded that Mr. Campbell is paying enough child support for the children left at home to avoid having to pay anything further to maintain the home. But that is not the case. David is the last child left at home. Therefore, Mr. Campbell will be required to pay one-third of $910 per month ($303) for the school months (September to April, inclusive), commencing on September 1, 2023, and continuing until and including April 2027, for David’s support. For ease of enforcement, commencing on September 1, 2023, the amounts paid for the summer months ($910 x 4 = $3,640) and those paid for the school months ($303 x 8 = $2,424) should be combined and paid in equal monthly amounts of $505.33.

What share, if any, should Mr. Campbell pay of David’s moving costs?

[26] Ms. Campbell seeks reimbursement of Mr. Campbell’s proportionate share of David’s moving and application costs in the amount of $2,663.98 under s. 7 of the Guidelines, the relevant portions of which 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;

[27] As the court explained in Coghill and as I explained Craig v. Niro, 2022 ONSC 5178, the exercise of apportioning a child’s post-secondary expenses requires that the court determine the reasonable costs of the child’s post-secondary education and how much the child can reasonably contribute to those costs. I have some information in this regard, but not enough.

[28] Ms. Campbell deposes that David started working for the City of Sault Ste. Marie on May 11, 2023, “at minimum wage”. I am not sure how much that is, nor am I told how many hours he works a week or whether he works any overtime. I have no pay slips for David.

[29] Ms. Campbell also deposes that David was paying rent of $620 per month for his residence in North Bay and $250 per month for his trainer, but I am not told when he started to pay these amounts. She says he should be able to save about $1,000 per month towards school, but I am not given enough information to know if this is reasonable or not, or if this goal was met or exceeded this past summer.

[30] Ms. Campbell advised during the hearing of the motion that David had just recently qualified for $10,200 of government financial assistance, $6,200 of which was a grant and $4,000 of which was a loan. I also understand that this is a yearly award. However, I have no information about David’s monthly unpaid-for expenses apart from his rent. Therefore, I cannot be sure that the government assistance will cover them all.

[31] Finally, Mr. Campbell has demonstrated that he has given David $4,000, but I have no idea what that was used for. Some of it may not have been used for post-secondary education expenses at all, given that it was transferred beginning in February, before David even finished playing hockey.

[32] Thus, I need more information about David’s income and expenses before I can apportion David’s post-secondary expenses. For that reason, the claim by Ms. Campbell for a proportionate share of David’s application and moving expenses is dismissed, without prejudice to the motion being renewed, as detailed below.

[33] I would add one comment before leaving this issue. In her affidavit materials, Ms. Campbell deposes that she only earned $38,202 last year. However, her 2022 Notice of Assessment shows that her total income for the year was $62,202. The difference between these two amounts is accounted for by the spousal support Ms. Campbell is receiving. For the purposes of apportioning s. 7 expenses, Ms. Campbell’s income must include this spousal support: Guidelines, s. 16; Marquez v. Zapiola, 2013 BCCA 433, at para. 54.

CONCLUSION

[34] For the foregoing reasons, Mr. Campbell shall pay Ms. Campbell the sum of $4,095 as child support owing for the months of April, May, June, July, and August, 2023, inclusive. Commencing September 1, 2023, he shall pay the sum of $505.33 per month for the support of the adult child, David, on the first day of each and every month up to and including the month of April 2027.

COSTS

[35] Ms. Campbell was at least partly successful on the motion. Ordinarily, the successful party is entitled to her costs. As I explained in my reasons on the 2022 motion, while a successful self-represented litigant may be entitled to costs where she has foregone an income-earning opportunity, those costs do not generally include the time the litigant would have spent if she was represented by a lawyer, such as the time spent attending a court hearing: Tran v. Financial Debt Recovery Ltd., 2000 22621 (ON SC), 193 DLR (4th) 168(Ont. S.C.), at para. 51.

[36] Nonetheless, costs have an additional purpose beyond merely indemnifying a successful party. They are also a means by which a party’s inappropriate conduct may be sanctioned: Serra v. Serra, 2009 ONCA 395, at para. 8. Mr. Campbell admits he refused to respond to Ms. Campbell’s requests for child support for David, made beginning in February. He says that he has been told by his health professionals that he must be “careful” because of the trauma he has suffered surrounding the parties’ very acrimonious separation. So, instead of responding, he sent David money directly, without advising Ms. Campbell, as far as I can tell. He had to know that he was forcing Ms. Campbell to bring yet another proceeding because of the need for ongoing child support and the uncertainty as to what Mr. Campbell’s money was being used to pay for. That, in turn, obviously causes Ms. Campbell stress and must be causing Mr. Campbell at least some of the same. Parties have a duty to make all reasonable efforts to settle their litigation: Serra, at para. 6. Mr. Campbell failed in that duty.

[37] Perhaps equally importantly, Mr. and Ms. Campbell’s frequent trips to court have another cost. Our court is now having to dismiss serious criminal cases because we cannot keep up with the backlog caused by the pandemic and the severe shortages of judicial resources. In my view, this motion could have been avoided had Mr. Campbell simply responded to Ms. Campbell. They are both aware of the law of child support as it relates to adult children and post-secondary education expenses because I explained it in detail in Craig v. Niro, a case with which I am certain they are familiar because it involved their present partners.

[38] For this reason, I am awarding costs against Mr. Campbell in favour of Ms. Campbell in the amount of $250, which amount is enforceable as part of a child support order under s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

[39] It is my hope that, armed with the knowledge of the law and the numbers, Mr. and Ms. Campbell will now be able to agree on what David should be expected to contribute to his own post-secondary expenses, what remaining expenses should be apportioned between them, and on what those proportions should be. However, if my hope is misplaced, either party may bring this motion back before me by notice in writing sent to the other party and the Sault Ste. Marie trial coordinator, who will arrange a date for the motion to be continued via Zoom.

M.G. Ellies R.S.J.

Released: October 23, 2023