COURT FILE NO.: FS-05-000188

DATE: 2023/01/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rita Giovanna Trecroce, Applicant

AND:

Craig William Chorney, Respondent

BEFORE: Justice S.K. Stothart

COUNSEL: T. Simpson, Counsel, for the Applicant

J. Gassi Harnden, Counsel, for the Respondent

HEARD: June 8, 2021

ENDORSEMENT

BACKGROUND

1The Applicant, Rita Giovanna Trecroce and the Respondent, Craig William Chorney were married on August 4, 1994. They separated on June 1, 2003 and were subsequently divorced.

2The parties have one child, Annina Chorney (known legally as Annina Trecroce) who was born November 1, 2000 (hereinafter referred to as “Annina”). Following their separation, Annina lived primarily with her mother.

3These motions relate to requests by the parties to change the final order of Justice W.L. Whalen dated August 22, 2006 as it relates to child support and the need for the Respondent to maintain life insurance.

HISTORY OF PROCEEDINGS

4Shortly after Annina’s graduation from high school in 2018, the Respondent brought a motion to change Justice W.L. Whalen’s final order pursuant to section 17(1)(a) of the Divorce Act, R.S.C., 1985, c.3 (2^nd supp.). Following this, the Respondent filed three further motions to change in September, 2020, December, 2020 and May, 2021.

5The Applicant brought a cross-motion on February 12, 2021.

6On June 8, 2021, all of the above noted motions were before Justice R. Riopelle. At that time the parties advised the court that they were only proceeding with the Respondent’s last motion to change, dated May 31, 2021 and the Applicant’s February 12, 2021 cross-motion.

7The Applicant advised the court that they would be making submissions with respect to costs as they related to the Respondent’s three other motions.

8Both parties filed factums, casebooks and made oral submissions before Justice R. Riopelle. The parties also relied on the affidavits that they had filed between 2018 and 2021.

9Following submissions, Justice R. Riopelle reserved his decision, noting that he would need to review the continuing record in this matter which included the affidavits that had been filed as part of the Respondent’s first, second and third motions to change.

10Justice Riopelle retired as a sitting Judge in 2022 without releasing his decision in this matter. As a result, and at the direction of Regional Senior Justice Ellies, I was asked to continue with these motions and the parties agreed that I could decide the motions based on the motion record and a transcript of the proceedings. I received those materials on June 21, 2022.

11On September 19, 2022, I received a copy of the transcript of proceedings. Upon reading the transcript it became apparent that I needed the continuing record as well as additional information from the parties about their respective incomes, information about the status of the RESP and further information with respect to expenses incurred in 2021/2022 and projected expenses.

12On November 10, 2022, I received further affidavit materials from the parties responding to my request for further information.

POSITION OF THE PARTIES

The Position of the Respondent

13In his May 31, 2021 motion to change the Respondent seeks the following:

a. An order that the Respondent pay $846.28 per month commencing July 1, 2021 through to April 1, 2024, directly to Annina or third parties;

b. An order that child support cease to be effective June 30, 2021;

c. An order that the Respondent be permitted to amend his life insurance and name Annina Chorney as a revocable beneficiary until May 1, 2024, in the face amount of $50,000; and

d. An order for costs on a substantial indemnity basis.

14The Respondent submits that:

a. He should be permitted to pay Annina directly for her post-secondary expenses or pay directly to a third party. He submits that this is appropriate because of Annina’s age, her level of maturity and because there has been conflict between the Applicant and Annina which has caused Annina to become anxious about her expenses;

b. The parties should share the cost of Annina’s post-secondary expenses on a 50/50 basis because his base salary and the Applicant’s salary are almost the same. He submits that the court should use his base salary as opposed to his total yearly income because his total yearly income includes bonuses that are dependent on extraneous factors;

c. That Annina should be required to contribute to her post-secondary education by contributing ½ of her summer earnings, in addition to any other earnings she may receive;

d. The Respondent does not accept the Applicant’s position with respect to the cost of Annina’s post-secondary education. He believes the Applicant has inflated the cost and worries that she will benefit personally by keeping the excess amount he pays; and

e. The Respondent wishes to amend his life insurance policy to note his daughter as a revocable beneficiary in the amount of $50,000.

The Position of the Applicant

15In her February 12, 2021 cross-motion the Applicant seeks the following:

a. An order that the Respondent pay $1,201.31 per month in child support commencing March 1, 2021, to be credited towards Annina’s post-secondary expenses;

b. Or in the alternative, an order that the Respondent pay an amount monthly as determined by the court as a portion of his contribution towards the total cost of Annina’s post-secondary expenses;

c. An order dismissing the Respondent’s motion (which at that time referred to his December 4, 2020 motion); and

d. Costs on a full recovery basis

16The Applicant submits that:

a. There has been no material change in circumstances that would warrant a change in the way the Respondent pays child support, through FRO. The Applicant submits that there is no evidence that she has ever failed to apply the Respondent’s payments towards Annina’s post-secondary education expenses. As such, the status quo should continue;

b. The parties should pay for Annina’s post-secondary expenses proportionate to their respective incomes as per Justice Whelan’s order. The Applicant submits that their respective proportions should be calculated based on the parties’ income as reported on line 150 of their Notices of Assessment. Based on this, the Respondent should contribute to 55% of the expenses and she should contribute 45%:

c. That Annina has already contributed enough towards her post-secondary education and should not have to contribute anything further;

d. That the Respondent should pay tabled child support for the months of September, October and November, 2018 because Annina was under the age of 18 at that time; and

e. That her estimates with respect to the cost of Annina’s post-secondary education expenses are reasonable. The Applicant submits that the Respondent has not paid his proportionate share of these expenses and should be ordered to do so.

THE LAW

General principles

17Section 15.1 of the Divorce Act provides that a court may make an order requiring a spouse to pay for the support of any or all children of the marriage.

18A 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.

19The fact that an adult child is still undertaking educational studies may constitute “other cause” within the meaning of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support. The entitlement analysis is a fact-driven undertaking in each case. Favero v. Favero, 2013 ONSC at para. 75.

20The amount of child support to be paid for a child of the marriage is a combination of that ordered pursuant to sections 3 and 7 of the Federal Child Support Guidelines, SOR/97-175.

21Pursuant to s.3(2) the Guidelines, for children who are the age of majority or over, the amount of child support is,

(a) the amount determined by applying the guidelines as if the child were under the age of majority (the standard Guidelines approach); or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

22It is presumed that the court will apply the standard Guidelines approach in determining child support. Resort to s. 3(2)(b) will only arise in exceptional situations where the court is satisfied that it would be inappropriate to rely on the standard guidelines approach. Lewi v. Lewi, 2006 15446 (ON CA), 2006 CarswellOnt 2892, at para. 129.

23It may be that the standard Guidelines approach is not appropriate in circumstances where a child attends post-secondary education away from home. Lewi v. Lewi, at para. 138, Coghill v. Coghill, 2006 21778 (ON SC), 2006 CarswellOnt 3890, at para. 6.

24Pursuant to section 7 of the Guidelines, upon the request of a spouse, the court may provide for an amount to cover all or any portion of certain expenses, which 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 separation. These types of expenses include expenses for post-secondary education and extraordinary expenses for extracurricular activities.

25The test for awarding section 7 special or extraordinary expenses is set out in Titova v. Titova, 2012 ONCA 864, at para. 23:

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.

26Section 7(2) of the Guidelines states that the guiding principle in determining the amount of an expense under section 7(1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

27An adult child with means is expected to contribute something towards post-secondary education expenses. The extent of the contribution depends on the particular circumstances of each case. This applies to both section 3 and section 7 of the Guidelines. Lewi v. Lewi, at para. 159.

Material change in circumstances

28Section 17 of the Divorce Act outlines the principles that apply on an application to change an existing child support order. Section 17(4) provides that before varying a child support order, the court must satisfy itself that there has been a change in circumstances as provided for in the Federal Child Support Guidelines, SOR/97-175 since the making of the existing order.

29Section 14 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different child support order or any provision thereof constitutes a change that gives rise to the making of a variation order.

30The fact that a child of the marriage reaches the age of majority does not, in and of itself, amount to a material change in circumstances warranting the variation of a child support order. However, where a child of the marriage, who is over the age of majority, attends a post-secondary educational institution and does not live at home during the academic school year, it may not be appropriate to use the Guidelines approach set out in s.3(2)(a). Corby v. Corby, 2015 ONSC 2700 at para. 27.

FACTS RELEVANT TO THESE MOTIONS

Justice W.L. Whalen’s final order

31On August 22, 2006, Justice W.L. Whalen issued a final order with respect to custody, decision making, access, child support, section 7 expenses, life insurance and RESP contributions with respect to Annina. The final order was the result of Minutes of Settlement and Amended Minutes of Settlement executed by both parties.

32The parties seek to vary paragraphs 11,15 and 23 of Justice W.L. Whalen’s order. The portions of Justice W.L. Whalen’s final order that are relevant to these proceedings are as follows:

Paragraph 11 – The Respondent shall pay to the Applicant, the sum of $620 per month for the period of February 1, 2006 to and including April 1, 2006 and then $697 per month commencing May 1, 2006, and monthly thereafter, based on the revised Child Support Guideline tables which came into effect on May 1, 2006 as support for the child, Annina Chorney, born November 1, 2000, pursuant to s.3(1)(a) of the Child Support Guidelines, based on the Respondent’s annual Income of $77,100.49. Either party may call for a review of child support four months before Annina enters post-secondary education and child support shall then be determined de novo.

Paragraph 12 – The parties shall share Annina’s post-secondary education costs, including tuition, books and living expenses, proportionate to their incomes, pursuant to s.7 of the Child Support Guidelines.

Paragraph 14 – Each party shall provide to the other by April 30^th of each year, a copy of his or her annual income tax return and notice of assessment when received so that any adjustment can be made with respect to the Respondent’s child support obligation and the sharing of s.7 expenses.

Paragraph 15 – The Respondent shall designate the Applicant as irrevocable beneficiary of a life insurance policy on the Respondent’s life having a death benefit of $250,000, for so long as the Respondent is obligated to pay child support and/or s.7 expenses. The Respondent shall maintain the policy in good standing at all material times.

Paragraph 21 – The Applicant and the Respondent are joint contributors to an RESP with their daughter Annina as beneficiary. Neither party shall collapse or withdraw any funds from the current Scotia Bank Registered Education Saving Plan other than to pay post-secondary costs of Annina. While Annina is in elementary or secondary school, the parties shall contribute equally up to the maximum amount permitted by law to a Registered Education Saving Plan and shall, if permitted by Canada Customs and Revenue Agency, share any tax relief. Should Annina predecease her parents before the benefits of the RESP are exhausted, or choose not to enroll in post-secondary education, the remaining balance of the joint RESP shall be divided equally between the Applicant and the Respondent.

Paragraph 23 – Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Circumstances prior to September, 2018

33Prior to completing her high school degree, Annina resided primarily with her mother. During this time the Applicant received child support through FRO as per Justice W.L. Whalen’s order.

34The Applicant states that she would pay for any s.7 expenses up-front and then submit them to the Respondent along with receipts. It was expected that the Respondent would then pay his portion of the s.7 expenses.

35The Applicant says that in the summer of 2018, she organized the extra-curricular expenses for Annina’s final year of high school and provided the Respondent with the calculations and receipts to show his contribution, as she has done every year since 2003. The Respondent refused to pay his contribution, which was $2,080.67.

36As a result, the Applicant applied the funds she subsequently received from FRO towards the outstanding section 7 expenses, child support owing and towards Annina’s post-secondary costs.

37When Annina began university there was approximately $62,000 to $62,700 in RESP savings.

Annina’s post-secondary education expenses – September, 2018 to present

38Following her graduation from high school in June, 2018, Annina was accepted into a six-year combined Bachelor of Arts and Juris Doctor program at the University of Ottawa. The parties agree that this program is in the best interest of Annina as it will allow her to obtain a dual degree and will permit her to pursue a legal career.

39Annina has been attending the University of Ottawa since September, 2018. She is currently in her fifth year. Recently Annina advised her parents that she did not perform well in her first year of law school (year three of the program) which will delay the completion of her program by one year. As such, she plans to attend a seventh year of university.

40Throughout her post-secondary studies, Annina has lived in Ottawa twelve months of the year, returning to Sault Ste. Marie to visit with her parents throughout the year. Sault Ste. Marie is approximately 800 kms away from Ottawa and as such Annina has usually flown home for visits.

41The parties agree that there is currently $6,670 remaining in the joint RESP account.

42Given the manner in which this matter proceeded between 2018 and 2021, there have been multiple estimates with respect to the post-secondary education expenses incurred and to be incurred. These are found in the sworn financial statement of the Applicant and the affidavits of the parties.

Evidence provided by the Applicant:

43The Applicant sets out the cost of Annina’s post-secondary expenses in her affidavit materials as follows:

(a) First Year – 2018 to 2019

44According to the Applicant, the total cost of post-secondary education for the first year of University was $38,200. This amount was covered as follows:

(1) $10,500 was taken from the joint RESP;

(2) $9,300 was contributed by Annina. This amount reflected all of her high school savings;

(3) $3,300 was contributed by Annina in the form of an OSAP loan;

(4) $2,300 was contributed by Annina in the form of a student grant;

(5) $9,500 was contributed by the Applicant; and

(6) $3,200 was contributed by the Respondent.

45The Applicant states that she received $8364 in child support through FRO between September, 2018 and August, 2019. Of this she deducted $2,100 (for the outstanding s.7 expenses owing from 2017/2018) and $3,060 for s. 3 table child support owed to her for September, October and November (Annina turned 18 on November 1^st). This left a remainder of $3,204 received by the Respondent which was used to pay post-secondary expenses.

46This resulted in an over contribution by the Applicant towards the cost of the first year of university.

(b) Second Year – 2019 to 2020

47According to the Applicant, the total cost of post-secondary education for the second year of University was $38,200. This amount was covered as follows:

(1) $10,000 was taken from the joint RESP;

(2) $6,200 was contributed by Annina in the form of an OSAP loan;

(3) $1,000 was contributed by Annina in the form of a French Bursary;

(4) $6000 was contributed by the Applicant; and

(5) $8,300 was contributed by the Respondent.

48I have assumed that the cost of summer 2019 is included in this amount.

49This resulted in a shortfall for the second year of university that she was required to cover.

(c) Third Year – 2020-2021

50In her February 11, 2021 affidavit, the Applicant projected that the total cost for Annina’s third year of University would be $42,500 (rounded). This reflected the fact that this would be Annina’s first year of law school and tuition would be higher.

51Based on this projection, the Applicant submitted that the cost would be covered as follows:

(1) $12,000 from the joint RESP;

(2) $7,100 contributed by Annina in the form of an OSAP loan;

(3) $1,000 contributed by Annina in the form of a French Bursary;

(4) $8,300 contribution from the Applicant; and

(5) $8,300 contribution from the Respondent.

52I have assumed that the cost of summer 2020 is included in this amount.

53According to the Applicant, based on this projection, it was expected that there would be a short fall which she would be required to cover.

(d) Fourth Year – 2021 to 2022

54In her November 8, 2022 affidavit, the Applicant has provided a monthly outline of expenses incurred by Annina between April, 2021 and November, 2022. This outline sets out, in detail, the actual amounts spent for tuition, rent, utilities, food, phone bill, car insurance, textbooks/school supplies, hygiene/personal car, gym membership, transportation, clothing and miscellaneous spending.

55Based on this outline, Annina’s post-secondary expenses for September, 2021 to April, 2022 (including tuition) were $39,132.97. Annina’s costs for the summer of 2021 (May, June/July/August) were $10,866.46. The total cost for 12 months was $47,550 (rounded).

56I note that the outline indicates that Annina flew home in May, June, July and August, 2021, for a total cost of $1,591.83. I have not received evidence as to why she would have flown home so often during the summer of 2021. In my view it would have been appropriate to fly home once during the summer. As such, I have deducted the average cost of three flights ($1193.87) from the overall cost of the summer of 2021, for a total cost of $9672.59 for the summer. This reduces the cost for year four to $48,800 (rounded)

(e) Fifth Year –- 2022 to 2023

57The Applicant relies on the detailed budget to project the cost of year five.

58The Applicant has provided a monthly outline of Annina’s current monthly expenses from September to part way into November, 2022. This includes tuition for the first semester which was $9,366.17.

59Deducting the cost of tuition and flights, the average monthly expense for September and October was $3123.90. (September = $3317.96 and October = $2929.84).

60Included in the September, October and November expenses were two flights home, one for the fall break and one for Christmas. The average cost of these two flights was $624.12 (Fall = $650.12 and Christmas = $598.12).

61Assuming tuition for the fifth year is the same as the fourth year ($18,338.38), assuming four flights home (Fall, Christmas, March break, Summer at the average cost of $624.12), and the average monthly expenses ($3123.90), it is projected that the cost of the school year will be: $45,826.06. I have calculated this amount as follows: $24,991.20 (monthly average of $3123.90 x 8); $18,338.38 (tuition); and $2496.48 (average flight cost $624.12 x 4).

62The projected cost for the summer of 2022 would be $12,495.60. I have calculated this amount as follows: $3123.90 (average monthly expenses) x 4.

63Therefore the projected cost for 12 months would be: $58,321 (rounded)

64I note that these expenses reflect that fact that in June, 2022, Annina’s rent increased from $1000 per month to $1450 per month.

(f) Sixth Year – 2023 to 2024.

65The Applicant relies on the detailed budget to project the cost of year six.

66Given that Annina will be repeating a year of law school, the budget is expected to be similar to 2022/2023, $58,321 (rounded).

(g) Seventh Year – 2024 to 2025

67The Applicant relies on the detailed budget to project the cost of year seven.

68Given the change in Annina’s education plan, the seventh year of university is expected to be an undergraduate degree. As such, tuition will be lower. The Applicant projects that tuition will be approximately $8000. This is approximately $10,000 lower than law school tuition.

69In addition, I have considered that it is expected that Annina will complete the program in April, 2025. As such, I have only projected expenses to the end of April, 2025.

70I have calculated the expenses for the eight months of school as follows: Tuition $8,000, $24,991.20 (monthly average of $3123.90 x 8); and $2496.48 (average flight cost $624.12 x 4), for a total: $35,487.68.

71I have included in this calculation the expenses for the summer of 2024, using the same amount as the year before, $12,495.

72This provides an estimate cost for year seven of $47,983 (rounded)

Evidence provided by the Respondent

73The Respondent began contributing $697 per month in September, 2018. He has continued to contribute this amount each month thereafter. This totals $8,364 per year (excluding 2018 where the Respondent contributed $1020 for eight months and $697 for four months, for a total of $10,948).

74The Respondent states in his September 12, 2019 affidavit that Annina received $1,600 from high school graduation awards and a $4000 entrance scholarship from the University of Ottawa which should be contributed to the cost of her post-secondary education.

75In his May 28, 2021 affidavit the Respondent proposes a budget, relying on the Applicant’s prior budgets, as follows:

Year 4 – total budget of $43,500 (assuming law school tuition to be $21,000)

Year 5 – total budget of $43,500 (assuming law school tuition to be $21,000)

Year 6 – total budget of $34,200 (assuming undergrad tuition to be $9,500)

76In his May 28, 2021 affidavit, the Respondent proposes that Annina should contribute $25,000 from summer employment for years 4, 5 and 6. He bases his proposal on the assumption that Annina work full-time for thirteen weeks over the summer at a minimum wage of $16 per hour, which would amount to $8,320 per summer ($24,900 in total for three summers).

77In his November 9, 2022 affidavit, the Respondent states that he has advised Annina that he will not financially support her seventh year of university.

ANALYSIS

Has there been a material change in circumstances impacting child support

78Both the Applicant and Respondent agree that there has been a material change in circumstances such that the Court should re-visit the issue of amount of child support that should be paid.

79Based on all of the circumstances in this case, I am satisfied that there has been a material change in circumstances. Particularly, those changes are: (1) the increase in the Respondent’s income since Justice Whalen’s order in 2006; and (2) the fact that Annina is now attending post-secondary education and no longer lives with the Applicant.

80In any event, Justice W.L. Whalen’s order specifically provided that the parties could re-visit the issue of child support four months prior to Annina entering post-secondary education and that child support could be considered de novo. I find that the Respondent’s first motion to change, filed July 3, 2018, commenced such a review.

How should child support be calculated in the circumstances of this case

81As set out by the Ontario Court of Appeal in Lewi v. Lewi, it is presumed that the court will apply the standard Guidelines approach in determining child support. Resort to s. 3(2)(b) will only arise in exceptional situations where the court is satisfied that it would be inappropriate to rely on the standard guidelines approach.

82Based on the circumstances in this case, I am satisfied that it would be inappropriate to rely on the standard guidelines approach. In my view the Guidelines approach is geared more appropriately to circumstances where the child continues to reside at home while they attend university. In this case, Annina has resided in Ottawa for 12 months of the year since she began her post-secondary education.

83As a result, I must now turn my mind to what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child pursuant to s.3(2)(b).

84In my analysis I have considered that “child support” includes both support pursuant to s.3(2)(b) of the Guidelines and any “add on” support ordered pursuant to s.7 for post-secondary expenses. In my view it makes sense to assess “child support” globally for the eight months that Annina attends university and for the four months that she remains in Ottawa. While most of the “child support” would fall under s.3(2)(b), I have added reasonable expenses for tuition, books, school supplies and other s.7 expenses related to post-secondary education to arrive at a total amount for child support.

85In Coghill v. Coghill, Justice J. Wright approached a similar circumstance where the child of the marriage attended University out of town and anticipated remaining at that location during the summer months. In Coghill, Justice Wright calculated child support by first determining the needs of the child and then deducting what would be a reasonable contribution by the child having regard to her means. Once this amount was calculated, the court went on to calculate the amount each parent would be expected to contribute to child support in proportion to their respective income. In addition, Justice Wright provided for an amount to reflect the fact that the child returned home to her mother’s residence on weekends and holidays.

86In my view the approach taken by Justice J. Wright in Coghill v. Coghill applies aptly to this case and I will follow it.

What are Annina’s needs

Years One to Five

87Based on the materials provided to me, I accept that the cost of Annina’s post-secondary education for the years 1,2, 3, and 4 were as follows (the amounts are rounded off):

Year One (Academic year 2018/2019) = $38,200

Year Two (Academic year 2019/2020) = $38,200

Year Three (Academic year 2020/2021) = $42,500

Year Four (Academic year 2021/2022) = $48,800

88I accept that the estimates provided by the Applicant were reasonable. Indeed, in the Respondent’s more recent affidavits he now appears to accept these amounts.

89I note that there is also an increase between years three, four and five that reflects an increase in rent payable each month as well as a general increase in some expenses. I find that this is reasonable. I take judicial notice that following the COVID pandemic prices have increased due to inflation. Further, I have received no evidence that a rent of $1450 in Ottawa is unreasonable.

90I have calculated the expected expenses for year five based on the detailed expenses provided by the Applicant in her November 8, 2022 affidavit. My calculations are contained in paragraphs 59 to 63 of this decision.

91Having reviewed the breakdown of the monthly expenses claimed, the only expense I would question is that of a monthly gym membership. The Respondent has not specifically objected to the cost of a gym membership in these proceedings, so I have inferred that he accepts that a gym membership is in Annina’s best interests and is reasonable in relation to the means of the spouses and those of the child.

92The Respondent has not provided any evidence that would suggest that the expenses outlined in the November 8, 2022 affidavit are unreasonable. For example, it would have been open to the Respondent to provide evidence that the tuition amounts claimed were not the actual tuition rates in place at the time. Tuition rates are available to members of the public and the Respondent could easily have contacted the university to obtain the applicable tuition rates in this case. The same would apply to his ability to provide evidence as to the average cost of an apartment in Ottawa.

93Both parties state that Annina has taken on expenses that they disagree with. These have included the purchase of Peleton stationary bicycle and trips to Halifax. I note that these expenses do not appear in the estimated budgets. Had they appeared I would have deducted them.

94During the summer of 2021, Annina returned home four times during the summer. In my view this was excessive, and I have deducted three of those trips from my estimate as to reasonable expenses in 2021/2022. In my view it is reasonable that Annina would return home four times a year.

95With respect to year five, I conclude that it is reasonable to expect that the expenses will be $58,321.

Years Six and Seven

(a) Is Annina entitled to child support for the seventh year of her program

96In calculating the cost of years six and seven, I must first resolve the issue of whether the parties would be expected to contribute to year seven of Annina’s post-secondary education, which has been necessitated by her poor performance in her first year of law school and the need to repeat that year.

97The Respondent takes the position that he should not have to pay for year seven of Annina’s program. In his November, 2022 affidavit he states that he has communicated his view that he will not be responsible for year seven to Annina.

98As such, I understand the Respondent’s position to be that he should pay the amount that was expected for year six, which was supposed to be the final year of Annina’s undergraduate degree. Based on this analysis, he submits that it would be reasonable to conclude that her expenses for year six would have been $34,200.

99In the case of Martell v. Height (1994), 1994 NSCA 65, 113 D.L.R. (4^th) 54 (N.S.C.A.), Freeman J.A. of the Nova Scotia Court of Appeal stated at pp. 56-57:

As a general rule, parents of a bone fide student will remain responsible until the child has reached a level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry-level employment in an appropriate field.

100In the case of Geran v. Geran, 2011 SKCA 55, the Saskatchewan Court of Appeal noted that in deciding entitlement for an adult child, the court must determine whether the child is unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the prospects of the child.

101In Mengaldo v. Menegaldo, 2012 ONSC 2915, at para. 157, Justice Chappel, relying on Geran, set out a comprehensive list of factors identified in the jurisprudence as being relevant to the eligibility for child support of adult children attending post-secondary education. Those are factors are:

1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

3. The ability of the child to contribute to their own support through part time employment.

4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

5. In reviewing the child's education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

6. The child's academic performance, and whether the child is demonstrating success in the chosen course of studies.

7. The age, qualifications and experience of the child.

8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

9. Whether the child is performing well in the chosen course of studies.

10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

11. The means, needs and other circumstances of the parents and the child.

12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

102More recently, in Winsor v. Winsor, 2017 NLCA 54, at para. 23, the Newfoundland Court of Appeal Court held:

What is pursuit of reasonable education involves considering all of the circumstances at play in a case, including the Farden and Menegaldo factors, as they relate to the adult child in issue. The "adult child" in section 37(7) of the FLA is not necessarily the healthy adult child with a part-time job, perfect full-time attendance, and high academic standing. Rather, that adult child is the particular child in issue, whose health, personal characteristics, abilities, and living circumstances inform what is pursuit of reasonable education in his or her case. A rigid requirement that nothing short of enrollment in five courses each semester of the year would fail to recognize the realities of the human condition, and therefore set too high a bar. In this regard I refer to Sullivan v. Sullivan (1999), 1999 14997 (ON SC), 50 R.F.L. (4th) 326 (Ont. Div. Ct.) in which a trial judge's award of child support to a 22-year-old unwell child engaged in a part-time course of study was upheld. Although Sullivan was based on Ontario legislation that is differently worded than section 37 of the FLA, it is apparent from the decision that the court was motivated to an appropriate result in consideration of the child's illness and inability to undertake full-time studies.

103Applying the factors in Menegaldo to this case, I find as follows:

a. Annina has been enrolled in a full-time course of studies;

b. Annina has applied for and received student loans, bursaries and scholarships;

c. Annina has contributed to her own support through part time employment;

d. Annina has a reasonable and appropriate career plan, which will result in the ability to pursue full time employment;

e. The nature and quality of Annina’s career plan is reasonable. The prospects of her succeeding in the program appear to be high, and the potential benefit of the studies are that they will likely result in a career in law;

f. According to the parties Annina has been doing well in the program, with the exception of her first year of law school;

g. The parties had planned for and accepted that they would assist Annina in receiving her joint B.A./J.D.;

h. Annina is the only child of the parties. There is no suggestion that either party is unable to financially support Annina in her post-secondary education; and

i. Annina continues to have a relationship with both of her parents.

104In my view, the fact that Annina did not do well in her first year of law school (year three) and her need to take an additional year of university to complete the planned B.A./J.D. program should not disentitle her to child support in her seventh year, in the circumstances of this case.

105I agree with the Newfoundland Court of Appeal’s comments in Winsor, that the court should not expect a child to be “perfect” when pursuing their post-secondary education. Issues such as mental or physical health may impact an adult child’s ability to complete a program in the time expected. One “difficult year” of university should not necessarily mean that parents no longer have to support an adult child during the completion of their post-secondary education program.

106I note that Annina’s first year of law school was during the 2020/2021 academic year. I take judicial notice that this was during the first full academic year of the Covid pandemic and prior to the release of a vaccine. I take judicial notice that most, if not all, post-secondary education programs were delivered virtually during the 2020/2021 academic year. I find it to be reasonable that Annina may have struggled in her first year of law school in this type of environment.

107Based on the materials provided to me, it appears that Annina has gone on to improve her performance in law school and is expected to complete that portion of her program.

108Based on all of the factors as outlined above, I conclude that the Respondent should be responsible for child support for Annina’s sixth and seventh year of university.

(b) The cost of year six and seven

109Given my analysis for years one to five, in my view it would be reasonable to expect that Annina’s expenses for year six to be the same as year five. This would be $58,321 (rounded).

110With respect to year seven, I find it reasonable to conclude that the cost of this year will be somewhat less than years three, four, five and six, given that this will be the final year of an undergraduate degree.

111In addition, Annina will have completed her program in April, 2025.

112I have calculated projected expenses for the 2024/2025 years as follows: Tuition, which the Applicant has estimated to be $8000, four flights home estimated at $2496.48, 8 months of living expenses at the same projected cost as the year before estimated at $24,991.12 and living costs for the summer of 2024 at the same projected cost as the year before at 12,495. Based on these projected amounts, I conclude that it is reasonable to expect the cost of year seven to be $47,983 (rounded).

How much should Annina reasonably contribute

113I received some evidence with respect to Annina’s ability to financially contribute to her education however there are some gaps in the evidence. For example, I have not received any direct evidence with respect to how much Annina earned during the summers of 2019, 2020, 2021 and 2022. Where there are gaps in the evidence, I have estimated a reasonable contribution.

114The Applicant has stated that Annina received CERB during the summers of 2020 and 2021, however I do not have any evidence as to how much Annina received and for how long. It is also unclear if she received CERB or CESB which was the benefit available to students.

115In his November 9, 2022 affidavit, the Respondent states that Annina worked full time with the Supreme Court of Canada over the summer of 2022 and earned $15,000. Further, she is expected to earn an additional $8,400 working for the court through the year. He submits that based on this Annina can contribute up to $23,400 towards her post-secondary education this year.

116I have received evidence that Annina received OSAP loans as follows: 2018/2019 - $3,300; 2019/2020 - $6,200; 2020/2021 -$7,140; and 2021/2022 – $7,140. I have received evidence that Annina received an OSAP “grant” for term 1 of 2022/2023 in the amount of $2,943.

117I have received evidence that Annina contributed $9,343 in savings/scholarships and received a grant in the amount of $2,320 for her first year of university. Thereafter she has received a French Bursary in years 2, 3 and 4, in the amount of $1000 each year.

118Pursuant to the Canada Emergency Student Benefit Act, S.C. 2020, c.7, students could apply for the Canada Emergency Student Benefit (CESB) if they were enrolled full time in a post-secondary educational program. Under this program a student (without dependents and without a disability) could receive $1,250 a month for the months of May, June, July and August, 2020. As such I am prepared to attribute an income of $5000 to Annina for the summers of 2020 and 2021.

119The Respondent submits that despite the lockdown, Annina should have been able to obtain employment in a law office and that the court should impute a higher income to Annina for the summer of 2020. I have received no evidence that summer employment positions at law firms existed during this time or what the average rate of pay would be for such a position, as such I am unable to accept this submission.

120The Respondent submits that Annina should have been able to earn $8,320 per summer, working full time at 40 hours per week, at a wage of $16 per hour, for thirteen weeks. I note that the minimum wage in Ontario between 2020 and 2022 was between $14 and $15 per hour. In October, 2022 it was raised to $15.50 per hour.

121Based on the materials I have been provided, I find that Annina has had or should have had the following means available to her during her post-secondary education:

a. Summer 2018 (to be applied to year one) = $14,900 (rounded) (this consists of $9,300 in savings and scholarships, $2,300 student grant and $3300 OSAP loan);

b. Summer 2019 (to be applied to year two) = $15,000 (this consists of $1000 French Bursary, $6,200 OSAP and an assumption that she could have earned $7,800 in the summer applying a wage of $15 per hour to full time employment for 13 weeks);

c. Summer 2020 (to be applied to year three) = $13,140 (this consists of $1000 French Bursary, $7,140 OSAP and $5000 in CESB benefits);

d. Summer 2021 (to be applied to year four) = $13,140 (this consists of $1000 French Bursary, $7,140 OSAP, and $5000 in CESB benefits); and

e. Summer 2022 (to be applied to year five) = $26,343 (this consists of $2943 OSAP grant, and employment with the SCC (summer/school year) in the amount of $23,400).

122With respect to the summer of 2023 (to be applied to year six) and summer of 2024 (to be applied to year seven), I find it is reasonable to estimate that Annina will be able to contribute at least $9,000 in summer employment earnings and $7000 in OSAP loans, for a total of $16,000 each year. I base this on the history of OSAP loans (approximately $7000) and assuming full time summer employment at slightly above minimum wage given her age and experience (approximately $9000).

123I appreciate that Annina may secure summer employment at a higher rate of pay given the program she is enrolled in. Despite this, I have chosen not to estimate a higher amount for summer employment for these two summers because I have also balanced the fact that Annina has taken on personal debt as part of her contribution towards her post-secondary education.

124Courts do not generally expect dependent adult children to contribute all of their summer earnings towards their post-secondary education. It is reasonable that they be permitted to use some of the money they earn for their own personal purposes.

125Both the Applicant and Respondent earn significant incomes and neither has indicated that they have experienced any hardship in supporting their only daughter during her post-secondary education. As such, I find that it is reasonable that Annina should be permitted to use some of the money she earns towards personal spending.

126However, given that Annina has chosen to live in Ottawa twelve months of the year, as opposed to returning home during the summer, I find that she should contribute most of her earnings towards her expenses including post-secondary expenses. In my view it is reasonable that she contribute 80% of her available income towards the expense of attending post-secondary education.

127Based on my calculations above, Annina should be expected to contribute $91,618 (in income earned and student loans) towards the total seven year combined program (80% of $114,523).

How much should each parent be expected to contribute to child support in proportion to their respective income.

The Respondent’s income

128The Respondent submits that the court should use his base salary for income purposes in determining child support. He submits that his actual income reported to the CRA includes his base salary and his end of year incentive. The end of year incentive is not guaranteed from year to year and depends on his performance at work.

129The Applicant submits that the court should use the Respondents “line 150” total income reported in the Applicant’s Notice of Assessment each year to determine child support.

130Pursuant to section 16 of the Guidelines, a parent’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

131The Respondent’s “total income” in his T1 General form has always been the total amount he has earned each year, not his base salary.

132Section 17(1) of the Guidelines provides that if a court is of the opinion that the determination of a spouse’s income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

133Section 17 applies in circumstances where the payor of support experiences fluctuations in income and there may be a need to obtain a means or average income. Lorimer v. Lorimer, 2017 ONSC 4467 at para. 9.

134The rational for judicial discretion in determining an average income is to allow the court to assess the amount of income that a payor spouse actually has available for child support payments. Lorimer v. Lorimer, at para. 11.

135If I were to resort to section 17(1) of the Guidelines, the Respondent’s reported “total income” for the last three years has been $124,109, $123,312 and $111,894. While the amount of the Respondent’s year end incentives may have fluctuated over the past three years, they have always formed part of the Respondent’s total income and have been available for child support payments.

136Having reviewed the Respondent’s Notices of Assessment for 2016, 2017, 2018, 2019, 2020 and 2021, I note that the Respondent has received a year end incentive each and every year. I have received no evidence to indicate that there is any expectation that the Respondent’s performance at work is expected to decline in the near future. Further, I have received no evidence that the Respondent’s total income (which has included the employee incentive) is not fully available for child support purposes.

137As such, I conclude that the appropriate amount of income to be considered for the purposes of child support in this case is the line 150, or “total income” reported by the Respondent.

138For the purposes of my decision, I have calculated the average income earned by the parties between 2018 and 2021, and then calculated the appropriate proportion they should each pay. The following chart sets out my calculations:

Year	Applicant	Respondent
2017	103,189	113,842
2018	97,478.40	112,206
2019	No information provided	111,894
2020	102,949	123,312
2021	106,220	124,109
Average Salary	$102,459.10	117,072.60

Total of both average incomes = $219,531.70

Proportion: 47% (Applicant) | 53% (Respondent)

139Based on my calculations, the Respondent should pay 53% of the child support expenses and the Applicant should pay 47% of the child support expenses.

Child Support for the months of September, October and November, 2018

140The Applicant submits that the Respondent should have paid Guideline support for the months of September, October and November, 2018 because Annina turned 18 on November 1, 2018.

141Pursuant to section 3(1) of the Guidelines, unless otherwise provided under the Guidelines, the amount of a child support order for children under the age of majority is that as set out in the applicable table based on the payor’s income.

142Based on the Respondent’s income in 2018, the tabled support would have been 1,006.73 per month.

143Given that Annina turned 18 on November 1, 2018, I conclude that the Respondent should have paid child support in the amount of $1006.73 for the months of September and October. This leaves $619.46 owing for those two months.

144I will account for this underpayment in my final calculations below.

Outstanding section 7 expenses from 2017/2018

145The Applicant submits that she was owed $2100 in section 7 expenses for the 2017/2018 year. She says that she collected all of her receipts for Annina’s final year of high school, as was the standard practice between the parties, and provided the Respondent with the calculations and receipts. She says that the Respondent should have paid $2,100 out of those expenses based on Justice Whalen’s order.

146The Respondent submits that the section 7 expenses from 2018 were the result of bully tactics by the Applicant. He agrees that the section 7 expenses related to the child’s scheduled dance competitions, however he points out that the expenses submitted to him included money spent on food, a drink purchased for another parent and snacks at a gas station. He says that in August, 2018, the Applicant showed up at his place of employment with an envelope addressed to him indicating “Child Support Arrears, Please Pay: $2,080.67 Now – Urgent”. He felt this was an effort to bully, harass and embarrass him at work.

147The Applicant replies that she purchased a couple of drinks for two parents who had covered the child’s dance competition expenses a month prior as a gesture of thanks. She considers the two drinks to be in lieu of the hotel and travel costs that the parties would have had to share for the competition the month prior. She says that she did drop off the envelope at the Respondent’s place of work, but this was at his request.

148In my view the most fair and reasonable approach to this dispute is to simply deduct a reasonable amount to reflect the disputed drinks and snacks. Affording a generous approach to the Respondent with respect to these costs, I would estimate those costs to be $80 leaving $2,000 owing for the 2017/2018 year. I will deal with this amount in my final calculation below

Final Calculation:

149My final calculations with respect to child support/section 7 expenses as they relate to Annina’s post-secondary education and the proportion each party should pay each year is set out in the table below.

150For years five, six and seven, I have used what I conclude are reasonable estimations for the amounts each party should be expected to pay.

Academic Year	Total Cost	Annina’s contribution (80%)	Remaining Cost to be covered by parents	Amount (53/47)
1. 2018/2019	$38,200	$11,920 (80% of 14,900)	$26,280	Respondent: $13,928. Applicant: $12,352.
2. 2019/2020	$38,200	$12,000 (80% of 15,000)	$26,200	Respondent: $13,886 Applicant: $12,314
3. 2020/2021	$42,500	$10,512 (80% of 13,140)	$31,988	Respondent: $16,954 Applicant: $15,034
4. 2021/2022	$48,800	$10,512 (80% of 13,140)	$38,288	Respondent: $20,293 Applicant: $17,995
5. 2022/2023	$58,321	$21,074 (80% of 26,343)	$37,247	Respondent: $19,741 Applicant: $17,506
6. 2023/2024	$58,321	$12,800 (80% of 16,000)	$45,521	Respondent: $24,126 Applicant: $21,395
7. 2024/2025	$47,983	$12,800 (80% of 16,000)	$35,183	Respondent: $18,647 Applicant: $16,536

151Based on the calculations below, I conclude that the Applicant is owed $34,224 in outstanding child support for years one to four of Annina’s post-secondary education.

Year	Proportion	Adjustments	Total owing:
2018/2019	$13,928	Added $619 additional child support for September and October Added $2000 in s.7 expenses owed from 2017/2018 Deducted $8364 paid	$8183
2019/2020	$13,886	Deducted $8364 paid	$5,522
2020/2021	$16,954	Deducted $8364 paid	$8,590
2021/2022	$20,293	Deducted $8364 paid	$11,929
2022/2023	$19,741	Deducted $2788 paid for September to December, 2022. $16,953 for the remaining of the academic year. Respondent to pay $2119.13 per month commencing January 1, 2023 until August 31, 2023.
2023/2024	$24,126	To pay $2010.50 per month commencing September 1, 2023 to August 31, 2024.
2024/2025 (for 8 months - September 1, 2024 to April 30, 2025)	$18,647	To pay $2330.88 per month commencing September 1, 2024 to April 30, 2025.

Has there been a material change in circumstances warranting a change in the way child support is paid

152I am not satisfied that there has been a material change in circumstances that would warrant changing the way child support is paid between the parties.

153The Respondent has provided no evidence that the Applicant has used the money he has paid through FRO inappropriately.

154At its highest, the evidence demonstrates that there have been disagreements between the Applicant and Annina about finances and the way Annina was spending money. I note that the Respondent has also raised many of the same concerns about the way Annina has spent money (i.e. the purchase of a Peleton stationary bicycle and flights to Halifax).

155In my view, it is perfectly normal for disagreements to arise between parents and their adult children when they are financially supporting them. Parenting does not necessarily end at the age of 18. Parents may attempt to educate their adult children about how to manage their finances and may express their disagreement about the choices their adult children make. I do not see how this reflects a material change in circumstances such that the court should change the way child support is paid in this case.

156In my view it would not be in Annina’s best interests to receive child support directly. Based on the history between the parties, this would only serve to involve Annina in what has been protracted conflict surrounding child support and could impact her relationship with the Respondent in a negative fashion.

157Based on my calculations above, the Respondent has been consistently underpaying child support for the last four years. If the court were to order that the Respondent pay Annina directly, she may be placed in a position where she has to pursue her father for child support. As noted in Armaz v. van Erp, 2000 2255, at para. 19, the Family Responsibility Office will not generally enforce third party payments if they are not made.

158Given the parties’ inability to agree on the amount of child support owing, that there are claimed child support arrears and there is no evidence of non-payment of expenses by the Applicant, it is my view that it is appropriate to maintain the status quo and require the Respondent to pay child support through FRO.

Life Insurance

159Both parties have agreed that the Respondent may amend his life insurance coverage removing Rita Trecroce as beneficiary and naming Aninna Trecroce as the revocable beneficiary in the amount of $50,000. Given my findings with respect to year seven, this insurance coverage should remain in place until May, 2025.

CONCLUSION AND ORDERS

160For the reasons set out above, I grant the Respondent’s request that paragraph 15 of Justice W.L. Whalen’s order shall be varied such that the Respondent shall be permitted to amend his life insurance and name Annina Trecroce (Chorney) as a revocable beneficiary until May, 2025 in the face amount of $50,000.

161For the reasons set out above, I grant both parties’ motions to vary paragraph 11 of Justice W.L. Whalen’s final order with respect to child support.

162I order that paragraph 11 of Justice W.L. Whalen’s final order dated August 22, 2006 shall be deleted and replaced with the following:

a. The Respondent shall to the Applicant, child support arrears in the amount of $34,224 within ninety (90) days of the release of this decision to reflect amounts owing for the academic years 2018/2019, 2019/2020, 2020/2021 and 2021/2022,

b. Commencing January 1, 2023, the Respondent shall pay to the Applicant, child support in the amount of $2119.13 per month until August 31, 2023;

c. Commencing September 1, 2023, the Respondent shall pay to the Applicant, child support in the amount of $2010.50 per month until August 31, 2024;

d. Commencing September 1, 2024, the Respondent shall pay to the Applicant, child support in the amount of $2330.80 per month until April 30, 2025; and

e. The Respondent shall cease to be responsible for child support for the child Annina Trecroce as of May 1, 2025.

163With respect to the remaining orders sought by the Respondent, I am dismissing his claim that he pay $846.28 per month commencing July 1, 2021 through to April 1, 2024, directly to Annina or third parties.

164I am dismissing the Respondent’s request to cease child support effective June 30, 2021.

165I am dismissing the Respondent’s request to pay child support directly to the child, Annina Trecroce or to third parties.

166I am granting the Applicant’s request that the Respondent to pay an amount monthly that reflects his contribution towards the total cost of Annina’s post-secondary education, which I have set out above.

COSTS

167If the parties are unable to reach an agreement with respect to the costs of this motion, the parties shall provide written submissions on this issue.

168The Applicant shall provide written submissions with respect to costs within ten days of the release of this decision. The Applicant’s costs submissions shall be no longer than three pages in length, exclusive of attachments.

169The Respondent shall have ten days from the receipt of the Applicant’s costs submissions to provide responding written submissions. The Respondent’s costs submissions shall be no longer than three pages in length, exclusive of attachments.