Court File and Parties
Court File No.: FS-16-407644-0001
Date: 2025-02-21
Ontario Superior Court of Justice
Between:
Pasquale Giovanni Mancuso (Applicant)
and
Silvana Logullo (Respondent)
Applicant Counsel: Self-represented
Respondent Counsel: Self-represented
Heard: January 6-10, 2025
Judge: Sherry Mathen
Introduction
1The Applicant, Pasquale Mancuso, brings a motion to change a final order from 2016. The Respondent, Silvana Logullo, objects, and requests relief of her own.
2After marrying in 1991 and separating in 2014, the parties divorced in 2016. Mr. Mancuso has remarried.
3The parties have two adult children, Alissa and Daniel. When the couple separated, only Daniel was a dependent child of the marriage. At the time of this trial, Daniel was twenty-five years old. He has always lived with his mother.
4On August 24, 2016, the parties settled their dispute via a consent order which included the following terms:
a. Income set at $89,191.00 for the Applicant and $20,000.00 for the Respondent.
b. Monthly spousal support to the Respondent of $1400, “calculated at [Spousal Support Advisory Guidelines (SSAG)] mid-range…plus 75% of the difference between SSAG mid-range and SSAG high-range.”
c. Table child support of $794 per month.
d. Proportionate sharing of section 7 expenses including Daniel’s monthly tutoring of approximately $200 per month. With respect to his post-secondary education, Daniel would be responsible for half, and his parents would be responsible for the other half in proportion to their respective incomes, after exhausting an amount held in an educational trust. [1]
e. If the Respondent’s income changed by more than $5,000 in any given year, that would be deemed “a material change in circumstances entitling either Party to make a Motion to Change the quantum of Spousal Support.”
f. For as long as child support is paid, the parties must provide income disclosure within thirty days of the date of the Order, every year.
g. A post-judgment interest award of 2% per annum, to be applied to any default in payment from the date of default.
5The Applicant filed a motion to change on November 16, 2022.
6Both parties attack the other’s credibility and, as a result, ask the court to draw separate adverse inferences.
7The parties are self-represented. They worked diligently throughout the trial. Despite the difficult topics covered, they were professional and cooperative.
8Due to a hearing disability, the Respondent was assisted by captioners. The court thanks them for their work.
Party Positions
Applicant
9Mr. Mancuso wishes to change the spousal support provisions. He denies he is in arrears of child support or section 7 expenses.
10Mr. Mancuso says he has been denied information about Ms. Logullo and Daniel. He has paid support faithfully in accordance with the original order. He has not paid section 7 expenses because, despite numerous requests, he never received adequate information.
11Mr. Mancuso acknowledges that his income has increased. In 2023 he earned $167,939.64. He claims he provided evidence of his income every year. He says that Ms. Logullo never sought to change the support provisions until he reached out in 2021 seeking to confirm Daniel’s post-secondary expenses.
12Mr. Mancuso objects to paying for special math courses that Daniel took in high school, instead of the monthly tutoring specifically mentioned in the order.
13Mr. Mancuso argues that Daniel’s post-secondary expenses have been improperly calculated. He says that Daniel’s tuition tax credits must be subtracted from any amount he has to pay. He objects to paying for courses from which Daniel withdrew too late for a refund or needed to repeat.
14Mr. Mancuso suffers from atrial fibrillation and is currently under the care of a cardiologist. During the trial, this condition caused him to be short of breath and dizzy. Mr. Mancuso says his deteriorating health makes it necessary for him to begin planning for retirement.
15Mr. Mancuso denies that Ms. Logullo has a compensatory spousal support claim; and says that because she has masked her financial situation, her need is impossible to determine.
16Mr. Mancuso believes that Ms. Logullo has had and continues to have unreported income. He asks that income be imputed to her for the purpose of calculating any ongoing spousal support.
17Mr. Mancuso says that Ms. Logullo has falsely accused him of abuse, harassment, and invasion of privacy.
18Finally, Mr. Mancuso claims that Ms. Logullo has engaged in “the tort of conspiracy” because of the way she has structured ownership of her house as a co-tenancy between her and Daniel. This allegation, for which he does not seek damages, is not raised in his motion to change. Nor is it listed in the Trial Schedule Endorsement Form. As it is not properly before the court, this claim shall not be considered.
Respondent
19Ms. Logullo seeks retroactive and ongoing spousal support, and child support arrears. Initially, she also sought a restraining order but appeared to abandon that request at trial. In any event, Ms. Logullo did not make sufficient arguments for a restraining order. I decline to consider it further.
20Ms. Logullo has been hamstrung in her efforts to get information from the Applicant. She denies that he sent her annual income tax returns. She seeks retroactive support reflecting his increased income.
21Ms. Logullo acknowledges that her own income improved after the Final Order. She uses her T1 reported income to calculate support under the SSAG.
22Ms. Logullo believes that Mr. Mancuso has not fully reported his own income, and asks that this be taken into account when determining any support. For the purposes of this trial, I treat this as a request to impute income to him.
23Ms. Logullo has her own health challenges. Ms. Logullo has been hearing impaired (“complete diagnosed deafness”) for over twenty years. Due to her condition, she was placed on short-term leave from her position as a developmental support worker with the York Regional District School Board. She has since been approved for long-term disability which she expects to garner her an income of $45,000 per year.
24Ms. Logullo is amenable to terminating spousal support on January 1, 2031. She asks for ongoing spousal support consistent with the formula outlined in the Final Order.
25Ms. Logullo agrees that Daniel withdrew from university in April 2022, and is no longer a dependent child of the marriage. She says the Applicant owes retroactive section 7 expenses from the date of the Final Order until Daniel’s withdrawal from university.
26Ms. Logullo believes that the Applicant invaded her privacy by discovering where she lived when she had sought to keep that information from him. She alleges “emotional and financial abuse” throughout the marriage.
Issues and Brief Conclusion
27Mr. Mancuso brought this case as a motion to change, seeking to terminate spousal support when he turns 63 so that he can retire.
28Ms. Logullo originally sought increased spousal support to compensate for the termination of child support. She seeks retroactive spousal support based on Mr. Mancuso’s income in the relevant years, and arrears for section 7 expenses.
29Over the course of the trial, the parties agreed on the following:
a. Spousal support shall end January 1, 2031.
b. Daniel ceased to be a dependent child of the marriage on or about April 30, 2022.
30As a result, it is not necessary to determine whether the Applicant’s health represents a material change of circumstances.
31Both parties made arguments and introduced evidence about numerous events prior to the Final Order. Since neither made a motion to change the order under Rule 25(19) of the Family Law Rules – for example, based on fraud or a mistake – these arguments and materials are mostly irrelevant.
32Therefore, the issues to be decided are:
a. Should income be imputed to either party?
b. What, if any, retroactive child support is owing?
c. What, if any, retroactive section 7 expenses are owing?
d. What, if any, retroactive spousal support is owing?
e. What, if any, ongoing spousal support is owing, and under what formula?
f. Does either party owe costs?
33My conclusions are as follows:
a. I decline to impute income to either party.
b. The Applicant owes retroactive child support to which shall be added prejudgment interest dating back to the date of each default.
c. The Applicant owes retroactive section 7 expenses to which shall be added prejudgment interest dating back to the Respondent’s reply to the motion.
d. The Applicant owes retroactive spousal support owing to the increase in his income. Given the circumstances, I fault both parties for the difficulties in their communication. As a result, I find that the retroactive support does not reflect a “default in payment” and decline to award prejudgment interest.
e. As the parties have agreed to ongoing spousal support until 2031, an order shall issue based on the parties’ income in 2023. The formula in the Final Order remains appropriate. The parties must adjust spousal support based on their annual notices of assessment.
f. Both parties have failed to make full and frank disclosures of their situation. However, I am persuaded that this resulted from their dysfunctional relationship and misunderstandings about the Final Order. I do not find that they deliberately tried to deceive each other or the court. Given that I decline to find bad faith, and have not awarded either party everything they requested, this is a case of “divided success”. The parties shall bear their own costs.
Analysis
Credibility and Reliability
Overview
35Credibility is a primary vehicle for determining the truth of alleged facts. This task can be rendered “unenviably difficult” depending on the narrative put forward by the parties: Konstan v. Berkovits, 2023 ONSC 497, para 8.
36In R. v. Gagnon, 2006 SCC 17, para 20, the Supreme Court of Canada cautioned that evaluating witness credibility is not “a science.”
37Traditional criteria used to assess witness evidence include witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, [2000] O.T.C. 237, at para. 46 per Justice Cameron.
38Witness credibility is critical to the burden of proof: Konstan. Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of “the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact”: Konstan at para. 9.
39It is necessary to distinguish credibility from reliability. Credibility has to do with whether parties’ testimony is honest, while reliability concerns whether testimony is accurate: R. v. Sanichar, 2013 SCC 4, para 19. One may find a witness generally credible yet doubt their reliability. Conversely, a witness who is not credible may nonetheless offer reliable testimony.
The Witnesses
40Both parties were credible. They gave their testimony in a straightforward manner. While they made reasonable concessions on cross-examination, their testimony remained consistent throughout the trial. Generally, they were not evasive.
41In contrast, and as discussed further in these reasons, I do not always find the parties reliable.
42In this case, the issues come down to the sufficiency of the evidence and the degree to which that evidence meets the relevant legal tests. Understandably, although they did make efforts, the parties were less equipped to present legal arguments.
Lead Up to this Motion
43After the 2016 final order, Mr. Mancuso appears to have first reached out to Ms. Logullo for some information in September of 2017. It appears that nothing was provided until January of 2018 when Ms. Logullo’s then lawyer, Peter Smith, emailed Mr. Mancuso about Daniel’s section 7 expenses.
44Mr. Mancuso spent some time documenting this exchange, which shows that Mr. Smith had a tenuous grasp of the parties’ situation. For example, he was under the impression that a final order had not been taken out. He also did not initially credit Daniel’s OSAP grants in his section 7 expenses, something he later acknowledged made a “large difference” to Mr. Mancuso’s obligations.
45Based on the emails between the two, and Mr. Mancuso’s testimony, I am persuaded of the following:
a. Mr. Mancuso asked for details about Daniel’s university expenses.
b. Mr. Mancuso was provided with piecemeal information that changed over the course of the correspondence.
c. Ms. Logullo’s lawyer provided calculations based on Mr. Mancuso’s 2016 income. Mr. Mancuso obviously knew that his income had increased. He did not alert the lawyer to this, he says, because he viewed their correspondence as an initial negotiation. I am not persuaded by this explanation. I think that Mr. Mancuso was irritated at what he viewed as withholding information from him, and inaccuracies in some of the calculations. He did not wish to distract from those issues by pointing out that his share of the section 7 expenses might be greater.
d. The final chain in this correspondence is an email from Mr. Mancuso to Mr. Smith in April, 2018. Mr. Mancuso disputes some of the claimed section 7 expenses, and reiterated his complaint about “being kept in the dark and all of a sudden being asked for funds [which] does not allow for budgeting of the expenses.”
46There was no further communication between the parties until October 19, 2021, when Mr. Mancuso emailed Ms. Logullo directly to “respectfully ask for an update on Daniel’s progression through post-secondary education.” He ended this short message with the sentence: “Please note that we have enjoyed some years of peace and I would hope that we can continue to do so.”
47Ms. Logullo says she took the above sentence as a “threat”. I am not persuaded that it was. However, both parties were suspicious of the other and, thus, not inclined to negotiate directly. Ms. Logullo responded in January 2022, reiterating her claim for Daniel’s section 7 expenses. She also advised Mr. Mancuso that “due to personal safety concerns, I will not be disclosing or sharing mine/Daniel’s home address.”
48Mr. Mancuso filed his motion to change in 2023.
49Because each believed the other was not operating in good faith, the parties were unable to communicate productively. Mr. Mancuso was upset about his estrangement from Daniel. Ms. Logullo felt she was being shortchanged, and that Mr. Mancuso was prying into her private life.
Alleged Abuse
50Ms. Logullo characterizes the marriage as abusive, especially after she suffered profound bi-lateral sensorineural hearing loss with tinnitus and vertigo. I appreciate that the relationship was fraught for many years prior to separation. I believe that Ms. Logullo felt unsupported and isolated. After listening carefully to her arguments, I am not persuaded that the relationship was abusive. Nor did it feature “family violence” as that term is defined in the Divorce Act.
51Ms. Logullo made a police complaint in August 2024. There is no evidence that this ever resulted in charges. I believe Mr. Mancuso’s testimony that the police never approached him about this incident.
52I am persuaded that Ms. Logullo went to the police in 2024 because she was unsettled by the idea that Mr. Mancuso knew where she lived.
53I am not persuaded that Mr. Mancuso acted wrongly in trying to verify Ms. Logullo’s address – something she had refused to disclose. By 2024, Ms. Logullo had responded to Mr. Mancuso’s motion to change by making a claim for extended spousal support. She also filed a Financial Statement in which she reported owning a house in a tenancy-in-common with Daniel in which he had a 99% interest. Given her spousal support claim, it was not unreasonable for Mr. Logullo to try to verify the nature of the residence in which she was claiming only a 1% interest.
Issue One: Should income be imputed to either party?
54Neither party addressed the legal test for imputation, but both allege that the other has hidden income. They each bear the burden of proving their allegations on a balance of probabilities.
55Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
Ms. Logullo’s income
56Ms. Logullo has a college diploma in social work. Until July 2022 she was a member of the Ontario College of Social Workers and Social Service Workers. She has since resigned from the College. Most recently, Ms. Logullo has been employed by the York Region District School Board as a developmental support worker.
57Mr. Mancuso makes three principal allegations against Ms. Logullo.
58First, based on what he calls “non payroll deposits” into her bank account, Mr. Mancuso seeks to impute 50 percent of the following amounts to Ms. Logullo’s income:
a. 2021: $84,993
b. 2022: $97,472
c. 2023: $26,952
59Second, Mr. Mancuso alleges that Ms. Logullo failed to disclose a lip-reading business called Speechread.com that she had started prior to 2015. He introduced a news article dated February 19, 2015, from the online news site YorkRegion.com that, he says, substantiates his claim that Ms. Logullo had a thriving business. He alleges that Speechread.com’s website was only taken down a month after a divorce application was filed.
60Mr. Mancuso introduced screenshots from the website LinkedIn that, he says, he downloaded “sometime in 2021”. He claims that they show Ms. Logullo initially had an entry for Speechread.com that she later removed. He claims that all of this is highly suspicious. The dates on which this information was actually posted to LinkedIn could not be verified.
61Third, Mr. Mancuso invites the court to draw an adverse inference from how Ms. Logullo treats her residence located at 11 Crieff Avenue:
a. Ms. Logullo refused to disclose her address in her sworn financial statements.
b. Ms. Logullo says her interest in this property is 1 percent.
c. Ms. Logullo purchased the property for $1,032,000 and claims that its current estimated value is $950,000.
62Ms. Logullo says the following in response.
63First, the bank account from which Mr. Mancuso has pulled what he deems suspicious deposits is shared with Daniel. Because of that, Ms. Logullo redacted information about deposits that Daniel made.
64Second, Ms. Logullo testified that she has always reported all income, including business income, to Revenue Canada. As an example, she pointed to a Statement of Business or Professional Activities in her 2019 tax return showing income of $1200.
65Third, with respect to her residence, Ms. Logullo denied that she is hiding assets. She did not disclose her home address because she is uncomfortable with Mr. Mancuso having that knowledge. She said that she decided to give Daniel a 99 percent interest in the home as a personal decision. At trial, Ms. Logullo acknowledged that she is the primary contributor to the home. She also acknowledged that she had not obtained a current professional assessment of its value.
66Under cross-examination, Ms. Logullo said:
a. Speechread.com was an online business that was never registered with the Canada Revenue Agency. Throughout its existence she had only one client.
b. Speechread.com never had a commercial lease.
c. Ms. Logullo decided not to renew the company’s website because she had only one client in four years.
d. The York Region article was as a result of an interview prior to separation. By the date of separation, Ms. Logullo was no longer operating Speechread.com.
67My findings are as follows:
a. I understand why Mr. Mancuso would be suspicious of Ms. Logullo’s bank statements, which she should not have redacted. However, having listened to both parties’ testimony I am not persuaded that the alleged “nonpayroll deposits” substantiates the claim that Ms. Logullo has undisclosed income.
b. Nor am I persuaded that Ms. Logullo was deriving income from Speechread.com after separation. The online news article is a human interest story focusing on Ms. Logullo’s reaction to her devastating hearing loss. One might call it a “puff piece”. I do not find it probative of her income.
c. I accept Ms. Logullo’s testimony that she has always reported her income to the Canada Revenue Agency. I am therefore not persuaded on a balance of probabilities that Ms. Logullo’s income is different from what is reflected in her Notices of Assessment.
d. Finally, with respect to the residence, I can appreciate Mr. Mancuso’s suspicions about this as well. Ms. Logullo’s explanation for creating a co-tenancy with her son in which he has a 99% interest is puzzling. However, I am not persuaded that she engaged in any deceit. I accept that Ms. Logullo believed she was entitled to deal with this property, which she purchased after separation, as she wished. I therefore do not draw an adverse inference from her description of the home to her statements about her income.
Mr. Mancuso’s income
68During the marriage Mr. Mancuso was an automotive technician. He was exposed to toxic substances and suffered health effects.
69Ms. Logullo says that this proceeding has been characterized by the Applicant’s chronic refusal to disclose information. She points to what she says are discrepancies in his pay stubs, namely, high taxable benefits that appear on his monthly pay stubs which are not reflected in his year-end salary statement. She alleges that his financial statement inflates his expenditures, such as an average of $850 a month on groceries that cannot be verified from his credit cards. Finally, she argues that she has no information about Mr. Mancuso’s wife’s finances with whom he owns various investments.
70Under cross-examination, Mr. Mancuso testified as follows:
a. Mr. Mancuso’s chief taxable benefit is a company demo car he is assigned by his employer Toyota Canada. The make and model of the demo assignment is variable. Mr. Mancuso’s pay stubs reflect the assigned demo car or cars as a 100% taxable benefit for personal use. The amounts are calculated according to a formula created by Toyota into which Mr. Mancuso has no input. It is only at the end of the year, upon filing a reconciliation, that Mr. Mancuso’s actual taxable benefits can be determined.
b. Mr. Mancuso is a salaried employee of Toyota Canada and has no other employment.
c. Mr. Mancuso summarized his monthly expenses to the best of his ability. Mr. Mancuso objected to Ms. Logullo’s analysis of his credit card statements. For example, he said, she discounted purchases at certain business that she assumed did not sell groceries or household items. One such business, “Princess Auto Parts”, does indeed sell household supplies.
d. Mr. Mancuso said that his wife has refused to disclose her financial information and he cannot override her wishes. Mr. Mancuso did say that his wife does not work and has two children to whom she contributes financially.
71I find as follows:
a. The demo car does not appreciably increase Mr. Mancuso’s income. I accept his explanation that a reconciliation of the taxable benefits can only be done at the end of the year. Therefore, Mr. Mancuso’s employment income is accurately captured in his Notices of Assessment.
b. There is no evidence that Mr. Mancuso’s monthly expenditures are inflated.
c. Mr. Mancuso’s limited disclosure with respect to his wife’s finances is more troubling. It is ironic that both parties justify redacting their financial information in order to protect third party privacy. However, I find it plausible that his current wife objected to disclosing her information. Ms. Logullo could have brought a motion for third party disclosure. She did not. In any event, I am not persuaded that Mr. Mancuso’s joint investments with his wife appreciably affect his income for the purpose of spousal support.
72As neither party has proven their claim against the other on a balance of probabilities, their respective requests to impute income are dismissed.
73For clarity, the parties’ income, based on their respective notices of assessment, is as follows:
| Year | Mancuso | Logullo |
|---|---|---|
| 2017 | $111,569 | $56,476 |
| 2018 | $137,031 | $62,557 |
| 2019 | $143,691 | $62,427 |
| 2020 | $152,305 | $61,854 |
| 2021 | $152,328 | $65,529 |
| 2022 | $171,192 | $82,862 |
| 2023 | $167,939 | $101,531 |
Issue Two: What, if any, retroactive child support is owing?
74The parties agree that Daniel was a dependent child of the marriage until April 30, 2022. Mr. Mancuso was obligated to pay table child support until that date. I did not understand Mr. Mancuso to dispute this. Rather, he argues that Ms. Logullo’s refusal to deal directly with him made it impossible for him to update their financial arrangements. He also claims that he has overpaid her spousal support which should be set off against any arrears.
75Mr. Mancuso’s argument about overpayment of spousal support is partly based on his claim of undisclosed income and partly based on the change in Ms. Logullo’s income. In Issue One, I dismissed the argument for imputed income. I also fault both parties for the failures in communication over the years. Consequently, I do not accept that Mr. Mancuso is owed a credit for any potential overpayment of spousal support.
76Mr. Mancuso did not offer any other information about his child support arrears. Having reviewed her calculations, on a balance of probabilities I accept Ms. Logullo’s submissions as to the amounts owing, which are set out below and include credit for overpayments after April, 2022:
| Year | Income | CS Payable | Paid | Owing |
|---|---|---|---|---|
| 2017 | $111,569 | $1,002x2=$2,004 $971x10=$9,210 Total: $11,214 | $9,528 | $1,686 |
| 2018 | $137,031 | $1,201x12=$14,412 | $9,528 | $4,884 |
| 2019 | $143,691 | $1,252x12=$15,024 | $9,528 | $5,946 |
| 2020 | $152,305 | $1,316x12=$15,762 | $9,528 | $6,234 |
| 2021 | $152,328 | $1,316x12=$15,762 | $9,528 | $6,234 |
| 2022 | $171,192 | $1,452x4=$5,808 | $7,146 | ($1,338) |
77As a result, Mr. Mancuso owes the following amounts:
a. $1,686 for the period January 1, 2017, to December 31, 2017;
b. $4,884 for the period January 1, 2018, to December 31, 2018;
c. $5,496 for the period January 1, 2019, to December 31, 2019;
d. $6,234 for the period January 1, 2020, to December 31, 2020;
e. $6,234 for the period January 1, 2021, to December 31, 2021;
78Mr. Mancuso testified that he provided proof of his income every year. Nevertheless, he was aware that his income had increased. He had an obligation to ensure that his child support payments – which are the right of the child, not the recipient spouse – were up to date. I find he did not make sufficient efforts in this regard.
79I therefore find that Mr. Mancuso has been in default of this obligation. He shall pay 2% interest on the above-noted amounts from the final date on which each amount was owing, ie., December 31 of the relevant year.
Issue Three: What, if any, retroactive section 7 expenses are owing?
80Under the Final Order Mr. Mancuso must pay his proportionate share of “the Special and Extraordinary Expenses of the child”. At the time, this expense was “a Tutor of approximately $200 per month.” In addition, the parties were responsible for 50% of post-secondary expenses in proportion to their incomes.
81Section 7(3) of the Federal Child Support Guidelines states that “in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.”
82Ms. Logullo claims the following categories of section 7 expenses:
a. Private math courses at Canadian Top Science Academy in the 2016-2017 academic year: Applicant’s share $792.
b. Tuition, books and a laptop purchase for the period from 2017-2021 during which Daniel was enrolled in York University: Applicant’s share $9,220.12.
83Ms. Logullo provided the following chart for item (b), immediately above:
| Year | Tuition | Health/Dental | Textbook and Supplies | Grants | Scholarship | Net |
|---|---|---|---|---|---|---|
| 2017/2018 | $10,074.30 | $254.52 | $2,248.35 | ($6,520.00) | $500.00 | $5,557.17 |
| 2018/2019 | $9,513.06 | $254.52 | $1,220.04 | ($4,282.00) | $6,705.62 | |
| 2019/2020 | $11,532.00 | $257.54 | $84.33 | ($2,069.00) | $9,804.87 | |
| 2020/2021 | $7,705.56 | $262.40 | ($53.52) | $0.00 | $7,914.44 | |
| 2021/2022 | $5,691.63 | $262.76 | ($0.99) | $0.00 | $5,953.40 |
84An unfortunate aspect of this case is that Mr. Mancuso is estranged from Daniel. I accept that this has made it challenging for him to get information about Daniel’s expenses.
85Mr. Mancuso admits that he has not paid any section 7 expenses for Daniel since separation.
86Mr. Mancuso says that he paid child support for years “in a complete vacuum of information”. As detailed earlier, in 2018 Mr. Mancuso corresponded with a lawyer retained by Ms. Logullo to follow up on section 7 expenses. He says that the lawyer’s calculations “were riddled with mistakes and information”. As a result, he became “frustrated”, in addition to being “consumed” by the death of his father.
87Mr. Mancuso introduced a chart, prepared by him, showing the various amounts Daniel paid in tuition and books. In those calculations:
a. Mr. Mancuso deducts any income tax credits Daniel received: $5,797.94
b. He notes any course fees for which Daniel could have obtained a refund had he withdrawn in time: $13,619.34
c. He objects to paying for courses which Daniel was forced to repeat.
88As a result, Mr. Mancuso argues that Daniel has had no net post-secondary expenses and, therefore, there are no arrears.
89In order to decide whether to accept Mr. Mancuso’s calculations, it is necessary to determine whether he is entitled to subtract from his share of expenses, Daniel’s tuition tax credits, course refunds Daniel should have but did not receive due to his own inadvertence or carelessness, and fees for failed or repeated courses.
90The Final Order does not speak to this question.
Tax Credits
91Mr. Mancuso says that under section 7(3) of the CSG he is entitled to deduct any tuition tax credits Daniel received. As noted above, that subsection states that in determining the amount of an expense a court “must” consider any income tax deductions or credits.
92Mr. Mancuso did not, however, mention section 3 of the CSG which states in part:
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(b) the amount, if any, determined under section 7.Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [emphasis added]
93In other words, while section 7(3) of the CSG provides a presumptive rule for calculating section 7 expenses, section 3(2) gives the court the discretion to depart from that rule if the court finds that applying the rule is inappropriate.
94For the following reasons, I find that it would be inappropriate to reduce the amount of Mr. Mancuso’s section 7 expenses by the amount that Daniel received in tuition credits:
a. Under the terms of the Final Order, Daniel was already responsible for paying half of his post-secondary expenses.
b. According to Ms. Logullo, whose testimony on this point I accept, Daniel worked long hours to pay for university.
c. I acknowledge that Mr. Mancuso and Daniel are estranged; and that Mr. Mancuso was frustrated by what he perceived as a dearth of information about Daniel’s education. Nevertheless, Mr. Mancuso made no contributions to Daniel’s post-secondary expenses for five years.
d. There is no evidence that having to share in Daniel’s university education would pose a hardship for Mr. Mancuso.
e. Ms. Logullo subsidized Daniel’s education during the years that Mr. Mancuso should have been contributing to those expenses. Given the family dynamics, I doubt that Ms. Logullo would try to recoup Daniel’s tax credits from him. Therefore, reducing Mr. Mancuso’s arrears as he suggests would reduce the amount payable to Ms. Logullo and the parties would not have shared in the cost proportionate to their incomes.
Other reductions
95Mr. Mancuso does not want to contribute to courses that Daniel withdrew from too late to secure a refund. At various points during the trial, he also suggested that he should not contribute to courses that Daniel had to repeat and/or failed, although his calculations on this point are not entirely clear. I will deal with these claims together.
96One can understand Mr. Mancuso’s frustration at having to pay for expenses that he regards as thrown away. However, his argument essentially is that a parent’s share of post-secondary expenses should decrease if their child encounters difficulties. There is no caselaw before this court to support this position, which I find unacceptably narrow in any event. The suggested approach promotes an analysis that is backward-looking, injects uncertainty into parents’ proportionate sharing of section 7 expenses, and, quite possibly, incentivizes litigation.
97While any parent reasonably hopes that their child will succeed at university, success is never guaranteed.
98For all these reasons, I do not accept Mr. Mancuso’s calculations that he owes nothing towards Daniel’s university education.
Conclusion
99I am persuaded on a balance of probabilities that Mr. Mancuso has an obligation to share in the following section 7 expenses:
a. Private math courses at Canadian Top Science Academy in the 2016-2017 academic year. I am persuaded by Ms. Logullo’s evidence that this replaced the math tutor Daniel was using at the time of the Final Order. I accept that these courses were necessary expenses to further Daniel’s high school education and are captured either under (a) the category of “tutoring” included in the Final Order or (b) the definition of “extraordinary expense” under section 7(d) of the federal Child Support Guidelines. Mr. Mancuso says he was not consulted about these courses. While this may be true, I find that Ms. Logullo was acting in Daniel’s best interests at the time. I find, as well, that the total cost of these courses is comparable to the monthly amount for tutoring contemplated in the Final Order. I therefore accept Ms. Logullo’s calculation that that Mr. Mancuso proportionate share of this expense is $792.
b. Daniel’s 2017 laptop purchase. I am persuaded that the laptop was necessary for Daniel’s post-secondary studies. The laptop is therefore a section 7 expense for that year.
c. Daniel’s post-secondary expenses in general. On a balance of probabilities, I accept Ms. Logullo’s calculations that Mr. Mancuso’s proportionate share of these expenses is $9,220.12.
100Ms. Logullo says that Mr. Mancuso owes 2% interest on all these amounts from the moment they were owing.
101Here, it is important to note the following:
a. Over the years, both parties contributed to a dysfunction in communication.
b. Owing to the strained relationship between Daniel and Mr. Mancuso, it was difficult for Mr. Mancuso to obtain timely information about Daniel’s university expenses. While I have not accepted his calculations, he was not wrong to seek clarification.
c. Mr. Mancuso was first approached about section 7 expenses in 2018 by Ms. Logullo’s former lawyer. At that time, Mr. Mancuso raised reasonable questions, and even corrected some of that lawyer’s initial calculations. There is no evidence of a response from the lawyer to Mr. Mancuso’s final email; and all communications ceased until Mr. Mancuso approached Ms. Logullo in 2021. Ms. Logullo included the section 7 expenses in her response to the motion to change which she filed on March 13, 2023.
102In the circumstances, I am not persuaded that it is appropriate to award any prejudgment interest for the period before Ms. Mancuso filed her response to the motion to change.
103Mr. Mancuso therefore owes $10,012.12 plus prejudgment interest of 2% as of March 13, 2023.
Issue Four: What, if any, retroactive spousal support does the Applicant owe to the Respondent?
104The Respondent argues that she is owed retroactive spousal support for the years 2017 onwards. She makes this claim because of the Applicant’s increased income.
105The Applicant objects because he thinks the Respondent has undisclosed income. In Issue One, above, I rejected this claim.
The Law
106In determining whether an award of retroactive spousal support is owing, I rely on the Supreme Court of Canada’s framework in DBS v. SRG, 2006 SCC 37. While that case specifically dealt with retroactive child support, its analysis has been applied to retroactive spousal support. In determining whether retroactive support is warranted, a court must consider:
a. The reason why support was not sought earlier
b. Any blameworthy conduct of the payor
c. Past and present circumstances of the recipient
d. Potential hardship on the payor flowing from a retroactive award
107Ms. Logullo first sought increased spousal support in 2023, in response to Mr. Mancuso’s motion to change. She claims she did not do so earlier, because he had not disclosed his income. I am persuaded that Mr. Mancuso was sending his income information every year to the coordinates he had on file for Ms. Logullo. I am further persuaded that Ms. Logullo was not comfortable receiving mail from Mr. Mancuso at her home. At one point, she directed that Mr. Mancuso use a post office box. It is plausible that his mail did not reach her even though he was following her instructions.
108At the time of the Final Order, Ms. Logullo’s income was set at $20,000. Under that order, if her income increased by $5,000, that would be a material change under which either party could seek a change to spousal support.
109Ms. Logullo’s income improved significantly after the Final Order. To be sure, some of this was as a result of her spousal support payments. But some of it was due to a better employment situation.
110As noted earlier in these reasons, I find that both parties were at fault for their lack of communication. While I do not believe that Ms. Logullo intentionally hid her financial situation from Mr. Mancuso, I find that she did not want to communicate with him. Under cross-examination she acknowledged that the parties had not communicated between April 2018 and October 2021, because Mr. Mancuso “was not the easiest person to deal with.”
111I find that Ms. Logullo’s financial circumstances improved somewhat over the years. She purchased a home for over 1 million dollars. She lives with her son, who works and is able to contribute at least somewhat to household expenses.
112I do not find that a retroactive order would work a particular hardship on Mr. Mancuso.
113However, having regard to all of the circumstances, including both parties’ blame for their strained communications, I find that a retroactive spousal support award is not appropriate in this case.
Issue Five: What, if any, ongoing spousal support is owing?
114At the end of the trial, the parties agreed that spousal support shall terminate on January 1, 2031.
115Given that I have already declined to impute income to either party, spousal support shall be based on their incomes as noted in their Notices of Assessment. For 2023, those amounts are $167,939 for the Applicant and (excluding her spousal support) $88,450 for Ms. Logullo.
116The Final Order prescribes a formula of SSAG mid-range spousal support plus 75% of the difference between SSAG mid-range and SSAG high-range. The parties could not speak to the intention behind this formula. It could have been prompted by concern about income disparity, the Applicant’s nominal income, or something else. As neither party made submissions about this, I have no basis to depart from the formula. Therefore, for 2023, spousal support is $2,618 ($2,715 + (.75 x $2,715-2,327)).
117Ms. Logullo wishes to have spousal support calculated on an assumed income for her of $45,000 for 2024. However, she does not yet have a Notice of Assessment for 2024. Neither, for that matter, does Mr. Mancuso. I decline to set spousal support in advance. The parties will have to exchange Notices of Assessment every year and adjust spousal support accordingly. For clarity, should Ms. Logullo’s income decrease to $45,000, based on Mr. Mancuso’s 2023 income, monthly support would be $4,466.
Issue Six: Does either party owe costs?
118The parties were self-represented at trial. Neither acted in bad faith, but both contributed in different ways to the inability to settle this matter. No offers to settle were beaten. My decision does not completely vindicate either party. They shall bear their own costs.
Order
119In conclusion, I make the following order:
a. Paragraph 12 of the Final Order dated November 8, 2016, is struck out and replaced with the following: The Applicant, Pasquale Giovanni Mancuso, shall pay Spousal Support that is calculated at SSAG midrange Spousal Support, plus 75% of the difference between SSAG mid-range and SSAG high-range Spousal Support, which is $2,618 per month, commencing March 1, 2025.
b. On consent, spousal support shall terminate on January 1, 2031.
c. The Applicant shall pay the Respondent the following amounts in retroactive child support, plus 2% prejudgment interest from December 31 of each year that arrears are owing:
i. $1,686 for the period January 1, 2017 to December 31, 2017;
ii. $4,884 for the period January 1, 2018 to December 31, 2018;
iii. $5,496 for the period January 1, 2019 to December 31, 2019;
iv. $6,234 for the period January 1, 2020 to December 31, 2020;
v. $6,234 for the period January 1, 2021 to December 31, 2021.
d. The Applicant shall pay to the Respondent section 7 arrears of $10,012.12 plus prejudgment interest of 2% as of March 13, 2023.
e. For so long as spousal support is payable, the parties shall provide income disclosure to each other on July 1 of every year.
f. The parties shall bear their own costs.
g. The parties may incorporate the provisions of this Order, including any required calculations, into a draft Order for my signature. The draft order may be sent to me care of Linda.Bunoza@scj-csj.ca. Parties may not otherwise communicate with the court through this address.
Sherry Mathen
Released: February 21, 2025
1The order says that the trust amount is $7,500. The parties agree that this was an error and in fact the amount was $6,608.15.