This motion to change involved retroactive and prospective claims for child support and section 7 special and extraordinary expenses.
The applicant sought retroactive increases in child support effective May 2020 and reimbursement for cheer, tutoring, and post-secondary education expenses.
The respondent counterclaimed for retroactive decreases in child support from January 2016, arguing he had overpaid.
The court found a material change in circumstances in May 2020 when the children's parenting time shifted to more than 60% with the applicant.
The court calculated net retroactive child support owed by the respondent at $480.
The court rejected the applicant's claim for cheer expenses as unreasonable and discretionary, awarded partial reimbursement for tutoring expenses, and calculated the respondent's share of post-secondary education expenses based on household income rather than personal income.
Prospectively, the respondent's obligation to support the older child ended upon obtaining her first diploma in April 2025, and his ongoing support for the younger child was set at $869 monthly effective May 1, 2025.
interesting_citations_summary: >
The decision provides important guidance on retroactive child support claims under the Colucci framework, including the application of the three-year rule and discretionary departures based on payor conduct and recipient delay.
The court addressed the calculation of parenting time using an hourly basis rather than overnight counting, and the allocation of school time to the parent responsible for the child during school hours.
The decision clarifies that section 7 expenses must be necessary and reasonable relative to the parties' means and pre-separation spending patterns, and that consent requirements in separation agreements are enforceable.
Notably, the court departed from the statutory presumption in the Federal Child Support Guidelines by using household income rather than personal income to calculate proportionate contributions to post-secondary education expenses, following the reasoning in Zhao v. Xiao.
The decision also addresses the termination of child support obligations upon obtaining a first post-secondary diploma, even where the child continues to further post-secondary studies.
final_judgement: >
The respondent shall pay the applicant: (1) $480 as retroactive child support for January 1, 2016 to April 30, 2025; (2) $2,982 as reimbursement for tutoring expenses; (3) $9,998 as reimbursement for post-secondary education expenses; and (4) $869 monthly effective May 1, 2025 for child support for the younger child, inclusive of contributions to post-secondary education expenses.
The respondent has no obligation to support the older child beyond April 30, 2025.
Any overpayment of child support since May 1, 2025 shall be offset against retroactive amounts owed.
The respondent is presumptively entitled to costs, subject to resolution through negotiation or written submissions.
keywords:
- Child support
- Motion to change
- Retroactive child support
- Section 7 expenses
- Post-secondary education
- Parenting time calculation
- Household income
- Material change in circumstances
- Separation agreement
- Federal Child Support Guidelines
areas_of_law:
- Family Law
- Child Support
- Separation Agreements
- Post-Secondary Education Expenses
- Parenting Time
legislation:
- title: "Federal Child Support Guidelines, SOR/97-175"
url: "https://laws-lois.justice.gc.ca/eng/regulations/970175/index.html"
- title: "Family Law Rules, O. Reg. 114/99"
url: "https://www.ontario.ca/laws/regulation/990114"
case_law:
- title: "D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231"
url: "https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html"
- title: "Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3"
url: "https://www.canlii.org/en/ca/scc/doc/2021/2021scc24/2021scc24.html"
- title: "Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763"
url: "https://www.canlii.org/en/ca/scc/doc/2020/2020scc24/2020scc24.html"
- title: "Simioni v. Simioni, 74 RFL (6th) 202"
url: "https://www.canlii.org/en/on/onsc/doc/2009/2009canlii934/2009canlii934.html"
- title: "Dirks v. Dirks, 2025 BCSC 900"
url: "https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc900/2025bcsc900.html"
- title: "Froom v. Froom, 194 OAC 227"
url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii3362/2005canlii3362.html"
- title: "L.L. v. M.C., 2013 ONSC 1801"
url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1801/2013onsc1801.html"
- title: "Khairzad v. McFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436"
url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc7148/2015onsc7148.html"
- title: "Nderitu v. Kamoji, 2017 ONSC 2617"
url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2617/2017onsc2617.html"
- title: "Skaljac v. Skaljac, 2018 ONSC 3519"
url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3519/2018onsc3519.html"
- title: "Evans v. Evans, 2023 ONSC 3919"
url: "https://www.canlii.org/en/on/onsc/doc/2023/2023onsc3919/2023onsc3919.html"
- title: "Sirdevan v. Sirdevan, 2010 ONSC 2375, 99 O.R. (3d) 424"
url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2375/2010onsc2375.html"
- title: "Law v. Law, 2011 ONSC 2140"
url: "https://www.canlii.org/en/on/onsc/doc/2011/2011onsc2140/2011onsc2140.html"
- title: "Ferguson v. Ferguson, 2005 PESCTD 16, 246 Nfld. & P.E.I.R. 204"
url: "https://www.canlii.org/en/pe/pescad/doc/2005/2005pesctd16/2005pesctd16.html"
- title: "Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215"
url: "https://www.canlii.org/en/on/onca/doc/2012/2012onca864/2012onca864.html"
- title: "Zhao v. Xiao, 2023 ONCA 453, 92 R.F.L. (8th) 265"
url: "https://www.canlii.org/en/on/onca/doc/2023/2023onca453/2023onca453.html"
- title: "M.A.L. v. R.H.M., 2018 ONSC 2542"
url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2542/2018onsc2542.html"
---
# Court File and Parties
**Court File No.:** FS-15-00000521-0001
**Date:** September 25, 2025
**Ontario Superior Court of Justice**
**Between:**
**DINA LEMIEUX**
Applicant
**- and -**
**MARC LEMIEUX**
Respondent
**Counsel:**
Matthew Kelly, for the Applicant
Self-represented, for the Respondent
**Heard:** May 12-16, 2025
---
# Reasons for Judgment
**Justice Petersen**
---
## Table of Contents
- INTRODUCTION
- BACKGROUND FACTS
- PRELIMINARY ISSUE
- RETROACTIVE CLAIMS
- PROSPECTIVE CLAIMS
- SUMMARY OF FINDINGS AND ORDERS
- COSTS
---
# Introduction
[1] Dina and Marc Lemieux started living together in September 1993 and married in June 1996.
They are the parents of two girls, Nyah and YaQi, who were 8 and 5 years old when they separated in February 2012.
Their daughters are now adults enrolled in full-time post-secondary studies.
[2] Both parties have re-partnered.
Ms. Lemieux lives with her common law spouse, Jason Haupt.
Mr. Lemieux lives with his wife, Chunhong Cai, and his stepdaughter.
Currently, Nyah and YaQi live away from home during the academic school year (September through April) and live with Ms. Lemieux and Mr. Haupt during the summer months.
They spend time at their father's house in accordance with their own preferences.
[3] This trial deals with issues of retroactive and prospective child support and contributions to the children's special and extraordinary expenses pursuant to s.7 of the [Federal Child Support Guidelines, SOR/97-175](https://laws-lois.justice.gc.ca/eng/regulations/970175/index.html) ("s.7 expenses").
The proceeding was commenced by Ms. Lemieux as a Motion to Change a Final Court Order, but it also involves interpretation and enforcement of a Separation Agreement that pre-dates and survives the Final Order.
The validity and enforceability of the agreement are not in dispute.
[4] Ms. Lemieux is seeking an Order for Mr. Lemieux to pay her a total of $101,305 in retroactive child support and arrears in contributions to s.7 expenses.
Mr. Lemieux disputes his obligation to contribute to many of the expenses incurred by Ms. Lemieux.
He also disputes the claim that he owes her retroactive child support.
He takes the position that he has overpaid $36,630 in child support.
He asks the Court to apply that amount to the arrears in his share of the children's reasonable s.7 expenses and to declare those arrears fully discharged.
He submits that a Court Order for the payment of any greater amount would create undue hardship for him.
[5] Going forward, Ms. Lemieux asks the Court to order Mr. Lemieux to pay her a monthly amount of $3,500, effective June 1, 2025.
This represents a combination of child support for the two children during the summer months and a 67% contribution to their anticipated s.7 expenses, prorated over twelve months.
Mr. Lemieux argues that the Court should instead order him to pay $1,500 monthly, as a combination of child support for YaQi and a 50% contribution to YaQi's post-secondary education expenses, prorated over twelve months.
He seeks an Order that his obligation to support Nyah and to contribute toward her ongoing university expenses ended on April 30, 2025.
---
# Background Facts
## Separation Agreement dated June 6, 2012
[6] The parties executed a domestic contract on June 6, 2012.
It is a comprehensive agreement that covers distribution of property, equalization of net family property, allocation of the proceeds of sale of the matrimonial home, parental decision-making, parenting time, spousal support, child support, contributions to the children's s.7 expenses, life insurance, and health and dental benefits coverage ("the Separation Agreement").
[7] The Separation Agreement calls for an annual review of support payments and contemplates variation or termination of support if certain triggering events occur.
It requires the parties to attempt to resolve any dispute about a reviewable or variable term of the agreement through negotiations.
If negotiations fail to achieve a resolution within 30 days, the agreement stipulates that the parties "will try mediation first" before initiating a Court Application ("the Dispute Resolution Process").
[8] The Separation Agreement states that the children's principal residence will be with Ms. Lemieux, but Mr. Lemieux will have "physical custody of the children not less than 40% of the year." The parties negotiated an equal time-sharing parenting schedule that they attached to the agreement.
It specifies that the children will be with each parent on alternate weekends, with their father on Mondays and Tuesdays, and with their mother on Wednesdays and Thursdays.
[9] The Separation Agreement stipulates that"to satisfy each party's obligation to pay child support in accordance with the Guidelines", Mr. Lemieux will pay Ms. Lemieux "off-set child support" in the amount of $828 monthly.
The parties used the Ontario Table in the Federal Child Support Guidelines ("FCSG") to arrive at this amount.
They calculated the difference between the Table amounts corresponding to their respective annual incomes at that time.
They agreed to use Mr. Lemieux's "base income" (not including bonuses) to calculate the Table amount he owed.
[10] Mr. Lemieux was then earning $176,000 (a base salary of $112,000 plus bonuses) and Ms. Lemieux was earning $49,400.
The Separation Agreement stipulates that, for the purpose of determining child and spousal support, any income or loss generated by Mr. Lemieux renting a portion of his residence would be excluded from his income.
He was, at that time, renting his basement to a tenant.
[11] In addition to monthly child support, the Separation Agreement obligates Mr. Lemieux to pay a proportionate 65% share of the children's s.7 expenses, including a fixed amount of $569 per month for after-school childcare.
It requires the parties to use the Dispute Resolution Process if they cannot agree on a s.7 expense.
[12] In addition to the payment of monthly child support and contributions to s.7 expenses, the Separation Agreement requires Mr. Lemieux to pay Ms. Lemieux $852 per month in spousal support.
[13] The Separation Agreement requires Mr. Lemieux to provide Ms. Lemieux with a copy of his T4 year-end income statement by January 31st of the next year each year.
It stipulates that his spousal support, child support and s.7 contributions will then be adjusted retroactively to reflect the amounts he should have paid the previous year based on his total employment income.
The agreement states that Mr. Lemieux will pay any shortfall to Ms. Lemieux by February 28th of each year, and that he may deduct any overpayment from his ongoing support payments over the next six months in equal instalments.
The agreement specifies that the Dispute Resolution mechanism will be used if the parties cannot agree on the adjustment that needs to be made.
[14] In addition to the yearly review of support obligations, the Separation Agreement states that either party can seek a change in the child support amount if there is a material change in circumstances.
The agreement also specifies"Child support will change when a child moves away from home to attend a post-secondary educational institution." It contemplates that, when such a move occurs, the parties will review and reduce the amount of child support payable by Mr. Lemieux"taking into account the reduced costs to Ms. Lemieux and the fact that Mr. Lemieux will be contributing to the children's tuition, residency costs, and other post-secondary expenses."
[15] The Separation Agreement states that, prior to determining their respective contributions to a child's post-secondary education expenses, the parties shall deduct a reasonable amount to be contributed by the child herself.
The agreement requires them to use the Dispute Resolution Process if they cannot agree on the amount of the child's contribution, or on their respective contributions to the remaining expenses.
## Final Court Order dated December 14, 2015
[16] Ms. Lemieux commenced a Court Application approximately three years after the Separation Agreement was executed because Mr. Lemieux fell behind in making his spousal support and child support payments.
He testified that, when his stepdaughter arrived from China to live with him and his wife, he was required to evict his basement tenant and renovate the basement to make space for Nyah and YaQi to have bedrooms.
There are only two bedrooms on the main floor of his bungalow.
Until that point, his daughters had been sharing one of them.
He decided that his stepdaughter would use that main-floor bedroom because she was living with him full-time.
The cost of the basement renovations and the loss of rental income made it difficult for him to keep up his support payments, so he started paying less than the amounts set out in the Separation Agreement.
[17] After Ms. Lemieux initiated a Court Application, the parties settled with a $20,000 lump sum payment by Mr. Lemieux to discharge all arrears ($10,000 in child support and $10,000 in spousal support).
He mortgaged his house to be able to make that payment.
The terms of their Minutes of Settlement were incorporated on consent into a Final Order issued by Justice Edwards on December 14, 2015 ("the Final Order").
[18] The Final Order reduced Mr. Lemieux's ongoing spousal support payments to $450 per month and imposed a termination date of August 31, 2016 on his spousal support obligation.
The Final Order also changed the parties' parenting schedule to a 2-2-3-day rotation, but it remained an equal shared parenting arrangement.
The set-off amount of child support payable by Mr. Lemieux was increased to $872 per month based on the parties' respective 2015 incomes.
[19] The Final Order amended the provision of the Separation Agreement that requires an annual review of Mr. Lemieux's child support obligation.
It imposed a mutual disclosure obligation with respect to the parties' respective T4 employment income in January of each year.
The original agreement had required only Mr. Lemieux to disclose his T4 income annually.
[20] The Final Order stipulated that all other terms of the Separation Agreement would remain in full force and effect, except for the requirement that Mr. Lemieux pay $569 monthly toward childcare costs, because the children had aged out of childcare.
---
# Preliminary Issue
## Does the Dispute Resolution Process Oust the Court's Jurisdiction?
[21] Although the parties tried to negotiate a resolution to their disputes about child support and s. 7 expenses, neither sought mediation when their negotiations failed.
The Separation Agreement stipulates that, after an unsuccessful attempt to resolve a dispute through negotiations, the parties "will try mediation first and then by court application."
[22] Mr. Lemieux argues that Ms. Lemieux violated the agreement by invoking the court process before attempting mediation.
Ironically, he is advancing a claim for retroactive compensation of overpaid child support, without first having attempted to resolve that issue through mediation.
However, he submits that he brought his counterclaim only because Ms. Lemieux's claims for retroactive child support and s.7 expenses were proceeding before the court.
I accept that explanation as satisfactory in the circumstances.
[23] A mandatory mediation clause in a valid separation agreement can oust the Court's jurisdiction in favour of that alternative dispute resolution process: [Simioni v. Simioni, 74 RFL (6th) 202](https://www.canlii.org/en/on/onsc/doc/2009/2009canlii934/2009canlii934.html), at para. 19.
However, there are circumstances when the court will adjudicate a claim despite the parties not having first attempted mediation as required by their separation agreement: [Dirks v. Dirks, 2025 BCSC 900](https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc900/2025bcsc900.html), at para. 12.
[24] Having expended significant resources on a trial of the issues in dispute, it would not be in the interests of justice for me to decline jurisdiction and refer the parties back to mediation without deciding the issues.
Neither party argued that the Court did not have jurisdiction to adjudicate their claims.
Although they did not explicitly waive the Dispute Resolution provision in their Separation Agreement, they both effectively attorned to the Court's jurisdiction.
[25] The failure to comply with the mandatory mediation provision in the Separation Agreement therefore does not bar either party's claims.
---
# Retroactive Claims
[26] The parties are both making retroactive claims in this proceeding.
Ms. Lemieux is seeking an order for an increase in the amount of child support paid by Mr. Lemieux retroactive to May 1, 2020.
She is also seeking orders for him to reimburse her for various s.7 expenses retroactive to January 1, 2016 and January 1, 2020.
Mr. Lemieux seeks an order for a reduction in the amount of child support he paid retroactive to January 1, 2016.
[27] I will deal with the parties' reciprocal retroactive child support claims first, then Ms. Lemieux's retroactive s.7 claims.
The framework for analyzing retroactive child support claims differs somewhat depending on whether the claimant is the recipient parent or the payor parent.
I will review each of the applicable frameworks before analyzing the parties' specific child support claims in this case.
## Analytical Framework for Retroactive Increase in Child Support
[28] Child support is the right of the child.
However, when child support is not paid, or a sufficient amount of child support is not paid, entitlement to a retroactive payment is not a given.
In [D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231](https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html), at para. 95, the Supreme Court of Canada stated the following:
> It will not always be appropriate for a retroactive award to be ordered.
Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award.
Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not.
In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.
[29] When a parent who is in receipt of court-ordered child support brings a motion to change the Order by retroactively increasing the amount of support, the trial judge must follow a three-step framework for deciding the issue.
[30] The first step is to determine whether the recipient parent has established a past material change in circumstances that occurred after the existing court Order was made: [Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3](https://www.canlii.org/en/ca/scc/doc/2021/2021scc24/2021scc24.html), at para. 114 (a).
This is a threshold question.
The claim will be dismissed if there is no proof of a material change in circumstances.
Where a material change in circumstances is established, a presumption arises in favour of a retroactive increase in child support: Colucci, at paras. 71-73.
[31] The next step is for the trial judge to decide the date to which the retroactive Order should be made.
The retroactivity date will usually be the date of effective notice to the payor parent: [D.B.S., at para. 118](https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html); [Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763](https://www.canlii.org/en/ca/scc/doc/2020/2020scc24/2020scc24.html), at para. 127.
This does not refer to formal notice of a court proceeding. "Effective notice" in this context means any indication by the recipient parent that the current amount of child support needs to be re-negotiated: D.B.S., at paras. 118 and 121; Michel, at para. 130.
[32] Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice of the court proceeding: Colucci, at para. 114 (c).
In other words, there will usually be no retroactivity to the award in those circumstances.
[33] Where effective notice is given, the date of retroactivity will not normally precede the date of formal notice of the court application by more than three years: D.B.S., at para. 123; Colucci, at paras. 91 and 114 (b).
However, the trial judge retains discretion to depart from the presumptive date of retroactivity and the "three-year rule", where the result would otherwise be unfair.
[34] The following four factors govern the exercise of this discretion: (1) the recipient parent's reason for delaying their application; (2) the payor parent's conduct; (3) the children's past and present circumstances; and (4) any hardship that a retroactive award might entail for the payor parent: D.B.S., at paras. 94-116; Colucci, at para. 38 and 114 (d); Michel, at para. 29 (per Brown J.) and 109 (per Martin J.).
[35] For example, if the payor parent engaged in blameworthy conduct by concealing a significant increase in their income, the trial judge may conclude that the date of retroactivity should be the date of the material change in circumstances (i.e. the date of the increase in income), even if that date precedes the formal date of notice by more than three years: D.B.S., at para. 124.
Otherwise, the payor parent's blameworthy conduct would effectively be rewarded and condoned.
[36] Conversely, if the recipient parent delays unreasonably in bringing an application after giving the payor parent effective notice of a claim for increased support, the Court may decide to exclude the period of delay in setting the retroactivity date: D.B.S., at para. 130.
Otherwise, the payor parent could be misled into believing that the status quo is satisfactory, only to be met later with a substantial retroactive payment obligation.
[37] Once the trial judge fixes the retroactivity date, the final step is to determine the amount of support that would adequately quantify the payor parent's deficient obligations during the retroactivity period: D.B.S., at para. 117; Colucci, at para. 114 (e).
This determination must be made in a manner that is "consistent with the statutory scheme that applies to the award being ordered": D.B.S., at para. 126; Colucci, at para. 109.
[38] The FCSG must be followed in quantifying a retroactive award.
However"blind adherence to the amounts set out in the applicable Tables is not required": D.B.S., at para. 128.
There is judicial discretion built into s.10(2) of the FCSG; where undue hardship would otherwise result, the trial judge may order support in an amount less than the prescribed Table amount.
Proof of undue hardship is a high threshold to meet.
However, it will generally be easier for a payor parent to show that a retroactive award causes undue hardship than to show that a prospective one does: D.B.S., at para. 129.
## Analytical Framework for Retroactive Decrease in Child Support
[39] Like any applicant who seeks to vary a court order, a payor parent who requests a downward retroactive change in the amount of child support paid must first establish a past material change in circumstances that occurred after the existing court Order was issued: Colucci, at paras. 59-60.
[40] Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor parent gave the recipient parent effective notice, up to three years before formal notice of the application to vary.
In the decrease context"effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation": Colucci, at para. 113 (2).
[41] Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or to a later date if the payor has delayed making complete disclosure in the course of the proceedings: Colucci, at para. 113 (3).
In other words, no retroactivity will apply in these circumstances, and the effective date of the order to decrease child support may be as late as the date of the order itself if the payor parent has failed to comply with disclosure obligations.
[42] As in cases where a retroactive increase in child support is sought, the trial judge retains discretion to depart from the presumptive date of retroactivity for a decrease in child support (and to depart from the "three-year rule") where the result would otherwise be unfair.
The following four factors govern the exercise of this discretion: (i) the payor's reason for the delay in seeking a decrease; (ii) the payor's conduct; (iii) the child's circumstances; and (iv) hardship to the payor if support is not decreased, viewed in context of hardship to the child and recipient if support is decreased: Colucci, at para. 113 (4).
[43] Finally, once the trial judge determines that child support should be retroactively decreased to a particular date, the overpayment must be quantified.
The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the FCSG Tables: Colucci, at para. 113 (5).
## Issue 1: Should there be a retroactive change to the amount of monthly child support paid by Mr. Lemieux?
### Mr. Lemieux's claim to decrease child support retroactively
[44] Mr. Lemieux paid $872 monthly in child support, in accordance with the Final Order, from January 1, 2016 until August 1, 2023.
He asks this court to find that he overpaid child support during that period and to credit him with the overpayment.
[45] Mr. Lemieux is effectively asking for a retroactive decrease in the amount of child support he was required to pay.
He is not, however, seeking to vary the Final Order.
Rather, he is seeking to enforce the child support review mechanism set out in the parties' Separation Agreement, which the Final Order upheld.
Mr. Lemieux is therefore not required to prove a material change in circumstances as a threshold step to advancing his claim.
[46] The record establishes that Mr. Lemieux attempted to engage the review process in a timely way.
The parties exchanged their 2016 T4s in or about January 2017, pursuant to the Final Order.
These documents revealed that in 2016, Mr. Lemieux's income had decreased (from $135,000 in 2015) to $132,538, and Ms. Lemieux income had increased (from $65,000 in 2015) to $67,446.
[47] Mr. Lemieux then wrote to Ms. Lemieux asserting that he overpaid child support in 2016 and asking her whether she agreed that his 2017 set-off child support payments should be reduced to $807 monthly based on their 2016 employment incomes.
In subsequent email correspondence, Ms. Lemieux acknowledged that his monthly child support payments ought to have been $807 in 2016.
She stated that she would refund him $780 of overpaid child support.
There is, however, no evidence that she ever refunded him that amount.
He did not unilaterally deduct the overpayment from his 2017 monthly child support payments, as permitted by the Separation Agreement.
[48] Ms. Lemieux did not agree to reduce the 2017 child support payments to $807.
She took the position that Mr. Lemieux should continue to pay $872 monthly for child support despite the changes in their respective incomes.
Mr. Lemieux did not agree, but he continued to pay $872 and did not request mediation to resolve the issue.
[49] The parties exchanged information about their annual employment incomes in January each successive year, as required by the Final Order.
In 2017, Mr. Lemieux's income decreased again to $125,812 and Ms. Lemieux's income increased again to $68,148.
The same pattern repeated itself in 2018, when Mr. Lemieux earned an income of $124,544 and Ms. Lemieux earned $69,466.
There is no suggestion that Mr. Lemieux was intentionally underemployed or that he was somehow to blame for the drop in his income.
[50] Mr. Lemieux wrote to Ms. Lemieux on several occasions over these years, asserting that he was overpaying child support based on the changes in their incomes.
After Ms. Lemieux quit her job in 2019, Mr. Lemieux put her on notice (in an email dated April 17, 2020) that he would be considering her last full year of employment as the benchmark for her income for child support purposes.
He repeatedly requested that an adjustment be made to the amount of child support that he was paying (both retrospectively and prospectively), but Ms. Lemieux would not agree.
He did not unilaterally reduce his child support payments.
[51] Ms. Lemieux raised the prospect of going to mediation to resolve this issue, per the Dispute Resolution Process in the Separation Agreement.
In an email dated April 17, 2020, she invited Mr. Lemieux to "go ahead and call a mediator".
He did not pursue that option.
He testified that he decided not to force the issue.
However, when Ms. Lemieux later initiated this court proceeding in August 2022, he counter-claimed to receive retroactive credit for the child support overpayments.
[52] Based on the above, I find that Ms. Lemieux was put on notice of Mr. Lemieux's claim in January 2017.
Mr. Lemieux could not have raised the issue sooner, because that was the first opportunity to review the amount of child support in the Final Order issued December 14, 2015.
Mr. Lemieux immediately put Ms. Lemieux on notice that he had been overpaying since January 2016 and that his payments in 2017 should be decreased to reflect the changes to their incomes.
She acknowledged the overpayments but did nothing to correct them.
For several years, as her income gradually increased and his income decreased, she refused to agree to a reduction in the monthly amount he was paying, despite recognizing that the amount exceeded what the FCSG and their Separation Agreement required him to pay.
[53] Mr. Lemieux could have invoked the Dispute Resolution Process, but he elected not to do so.
His decision in that regard was understandable in the circumstances.
In January 2017, he calculated that he had overpaid $780 in child support the previous year.
While that is not a trivial sum of money, it would have cost him more than that to mediate the issue when Ms. Lemieux failed to reimburse him and refused to agree to a reduction in his monthly payments.
As detailed later in these Reasons for Judgment, the overpayments made by Mr. Lemieux in each of 2017, 2018, and 2019 were $2,000 or less annually.
The cost of private mediation to resolve this dispute was prohibitive given the relatively small sums of money at stake.
[54] Mr. Lemieux has provided a satisfactory reason for his delay in bringing this claim.
When Ms. Lemieux commenced this Court proceeding, seeking a retroactive increase in the amount of child support he paid, Mr. Lemieux was forced to incur the cost of responding.
Given that the expense of litigation was unavoidable at that point, he reasonably countered her claim with his own claim that he had overpaid child support for many years.
This did not come as a surprise to Ms. Lemieux, because Mr. Lemieux had repeatedly raised the issue with her over the years.
[55] Mr. Lemieux's conduct in the circumstances was impeccable.
He provided Ms. Lemieux with full disclosure of his income annually as required by the Final Order.
He did not unilaterally reduce the amount of support that he was paying, even though it clearly exceeded what the FCSG Tables required him to pay.
He exercised sound judgment in not pursuing costly litigation (or private mediation) to resolve the dispute, but he did not acquiesce or give Ms. Lemieux the impression that he agreed with the amount he was paying.
He consistently asserted his position that it was an overpayment.
[56] Neither Ms. Lemieux nor the children will suffer any hardship if the amount of Mr. Lemieux's payments is decreased retroactively.
As explained below, the amount of overpayment owed to him for the period from January 1, 2016 to August 1, 2020 will be offset by a shortfall in the amount of child support that he paid from September 2020 to December 2022.
Consequently, Ms. Lemieux will not be required to repay him any money.
There will be no impact on the children.
[57] In the circumstances, I will exercise my discretion to depart from the presumptive "three-year rule" that would fix October 4, 2019 as the retroactivity date for Mr. Lemieux's claim (i.e., three years prior to the filing of his Response to Motion to Change dated October 4, 2022).
Fairness dictates that the retroactivity date be set at January 1, 2016.
[58] Before quantifying the amount of the overpayment that must be credited to Mr. Lemieux, I will address the issues raised by Ms. Lemieux's claim for a retroactive increase in child support.
### Ms. Lemieux's claim to increase child support retroactively
[59] Ms. Lemieux asks the court to order an increase in the amount of child support that Mr. Lemieux was required to pay, retroactive to May 1, 2020.
She is seeking to vary the terms of the Final Order and must therefore demonstrate that there was a material change in circumstances in May 2020.
[60] She asserts that the children ceased to follow a shared parenting schedule effective May 2020.
She testified that their schedule became "ad hoc" and they consistently resided with her for more than 60% of the time thereafter.
She argues that the set-off amount of child support paid by Mr. Lemieux should therefore have been increased to the full FCSG Table amount of support for two children.
Mr. Lemieux disputes this claim.
[61] As noted earlier in these Reasons for Judgment, the parties' Separation Agreement stipulates that Mr. Lemieux will have "physical custody of the children not less than 40% of the year." The Final Order sets out a 2-2-3 equal shared parenting arrangement.
The parties agreed to a formal change in the parenting schedule effective January 1, 2023.
However, there was no agreement to change the children's parenting schedule in May 2020 or at any time prior to January 2023.
[62] Paragraphs 5.20 and 5.21(e) of the Separation Agreement provide that either party may seek a change in child support if there is a material change in circumstances, including "a change in the child's residence that affects the amount of child support under the Guidelines." Under s. 9 of the FCSG, set-off child support generally applies where "each spouse exercises not less than 40% of parenting time with a child over the course of a year." A change from equal shared parenting to a child spending more than 60% of their time with one parent therefore constitutes a change in residence that affects the amount of child support under the Guidelines.
Ms. Lemieux bears the onus of proving that such a change occurred in this case.
[63] There is no dispute that, in 2020, the children spent more than 60% of their time at her residence.
The parties followed the regular parenting schedule for the first couple of months, but the children's routine was disrupted by the onset of the COVID-19 pandemic.
Nyah and YaQi were on vacation with their father in Cuba when the pandemic was first declared in Ontario in March 2020.
They were required to quarantine at his home when they returned to Canada in April 2020.
Shortly thereafter, their schooling transformed to online learning.
Public health guidelines directed people to isolate in small social "bubbles." Ms. Lemieux told the girls, who were then 13 and 16 years old, that they could choose how much time to spend at each of the parties' residences.
She told them they did not need to adhere to the 2-2-3 parenting schedule.
This was not discussed with Mr. Lemieux beforehand.
[64] The children elected to do their remote schooling from their mother's residence.
On nights when they slept at their father's house, he brought them to their mother's home the next morning, where they participated in their online classes during the day.
[65] The children's decision to do their online learning from Ms. Lemieux's home was likely influenced by the fact that she was retired and home most of the time, whereas Mr. Lemieux and Ms. Cai continued to work throughout the pandemic.
Mr. Lemieux's house was therefore empty during the day.
Moreover, Ms. Lemieux lives in Mr. Haupt's 6,000 sq ft house, with a pool, on 2.5 acres of land.
Mr. Lemieux lives in a comfortable 1,350 sq ft bungalow with Ms. Cai and her daughter.
Given the government lockdowns in effect, Nyah and YaQi's decision to spend more time at their mother's residence during the pandemic may also have been influenced by the relative luxury of Mr. Haupt's home.
[66] Mr. Lemieux did not pressure the children to do their remote learning from his residence on days when he was scheduled to have them in his care.
Nor did he pressure them to strictly maintain the 2-2-3 parenting schedule during the pandemic.
[67] In the latter part of 2020, Mr. Haupt needed to be extra vigilant about avoiding exposure to the COVID-19 virus because he was immunocompromised.
He was diagnosed with cancer in September 2020, had surgery in October 2020, and underwent treatments from November 2020 to February 2021.
Mr. Lemieux was considerate of his circumstances and agreed to be flexible about Nyah and YaQi not going back and forth often between their homes during that time.
Mr. Lemieux did not, however, agree to a formal change in their parenting schedule.
Nor did he agree to pay the full Table amount of child support for two children.
Instead, he continued to pay the set-off amount of $872 monthly per Justice Edwards's Final Order.
He argues that he was overpaying because, based on the parties' incomes at that time, the set-off amount of child support was only $815.
[68] By his own calculation, Mr. Lemieux admits that the children spent less than 30% of their time in his care in 2020.
However, he argues that he should not be "punished" by having to pay an increased amount of child support given the exceptional circumstances that were outside of his control.
[69] The parties' Separation Agreement does not make allowance for "exceptional circumstances." It stipulates that the set-off amount of child support will change if there is a change in the children's residence "that affects the amount of child support under the Guidelines." The children spending more than 60% of their time at their mother's house amounts to such a change.
The reasons for the change are not relevant under the FCSG or the Separation Agreement.
The fact remains that Nyah and YaQi spent more than 60% of their time at their mother's residence in 2020.
[70] Based on the above, I conclude that Ms. Lemieux has established a material change in circumstances effective May 1, 2020, which lasted at least until the end of that calendar year.
[71] After Mr. Haupt completed his cancer treatments in or about February 2021, Mr. Lemieux wanted to resume the regular 2-2-3 parenting schedule set out in the Final Order.
Ms. Lemieux's view was that the children should continue to decide their own schedule.
[72] The children had some online schooling and some in-class schooling during 2021.
When they were online, they did their remote learning from their mother's house, regardless of where they were sleeping.
On days when they were attending school in person, they were bused to school from near their mother's residence.
If they slept at Mr. Lemieux's residence on a school night, he drove them to Ms. Lemieux's home in the morning on his way to work, and they spent time there until the school bus picked them up.
Similarly, they usually spent time at their mother's house after school, even on days when they were going to sleep at their father's residence.
He picked them up after he finished work, either at their mother's house or at the location where they were training for cheerleading.
[73] There were periods when Mr. Lemieux had to travel for work or chose to travel for personal reasons, and the children stayed with Ms. Lemieux.
There were periods when the children travelled together with Ms. Lemieux to New Brunswick.
In addition, there was a two-week period in December 2021 and a 10-day period in June 2022 when Mr. Lemieux was ill with COVID-19 and the children therefore stayed at their mother's residence.
[74] Mr. Lemieux argues that the weeks he had COVID should not be counted against him because there were exceptional circumstances preventing him from exercising his parenting time.
He also argues that the weeks when the children were in New Brunswick with their mother should not be counted against him because they were not available to spend time with him, even though he was available and willing to parent them.
He further argues that he maintained a residence with bedrooms for the two girls throughout the entire period at issue.
[75] These arguments are not consistent with the terms of the parties' Separation Agreement, which does not allow for exceptional circumstances to override the 40% threshold.
The fact remains that the children were in their mother's care during those "exceptional" periods, and that time should therefore be allocated to her in the calculation of parenting time.
[76] I must determine, based on the evidence, the percentage of time that the children spent with each parent in 2021 and 2022.
Mr. Haupt testified that the girls spent between 2/3 and ¾ of their time at his house (when Nyah was not away at University), but he conceded that was just "a guess." I am not prepared to make a finding based on a guess.
I therefore give this evidence no weight.
[77] Ms. Lemieux testified that, over the course of the year, the children spent 69% of their time in her care in 2021, and 72% of their time in her care in 2022.
She calculated these percentages based on hours.
She produced a spreadsheet on which she recorded the children's parenting time.
She explained that she checked the security camera on her home to confirm the times that Mr. Lemieux picked them up and dropped them off and used that information to calculate the total amount of his parenting time.
She allocated school time to herself, both when the children were doing remote learning online from her house, and when they were in-class and were bused to and from school from near her home.
[78] Mr. Lemieux argues that in-class school time should not be allocated to either parent.
He calculates the parties' respective parenting time differently, based on overnights instead of hours, and he arrives at a different result.
He reviewed the text messages he exchanged with his children to confirm the days when he picked them up to stay at his home.
His chart shows that, even considering the time the children spent with their mother in New Brunswick or at their mother's residence while Mr. Lemieux had COVID-19, they spent 43% of their time in his care in 2021 and 38% of their time in his care in 2022.
[79] Consequently, using either of the parties' methods for calculating parenting time, there is no dispute that the children were in Mr. Lemieux's care for less than 40% of the time in 2022.
It is therefore unnecessary for me to determine the precise amount of time the girls spent with each parent that year.
[80] However, for 2021, the issue needs to be decided.
Ms. Lemieux submits that the court should find the children were in her care 69% of the time, whereas Mr. Lemieux submits the court should find they were in his care 43% of the time.
[81] There is no set formula in the jurisprudence for calculating the 40% threshold: [Froom v. Froom, 194 OAC 227](https://www.canlii.org/en/on/onca/doc/2005/2005canlii3362/2005canlii3362.html), at para. 2; [L.L. v. M.C., 2013 ONSC 1801](https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1801/2013onsc1801.html), at para. 23; [Khairzad v. McFarlane, 2015 ONSC 7148, 72 R.F.L. (7th) 436](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc7148/2015onsc7148.html), at para. 68; [Nderitu v. Kamoji, 2017 ONSC 2617](/on/scj/2017/2617), at para. 82 (c).
Different methods have been used in different cases, including counting days or counting hours: [Skaljac v. Skaljac, 2018 ONSC 3519](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3519/2018onsc3519.html), at paras. 70-73; Nderitu, at paras. 83-90.
Which method is appropriate is a discretionary decision having regard to the circumstances of each case.
However, the weight of authority in Ontario prefers to calculate parenting time on an hourly basis: L.L., at para. 31; Nderitu, para. 82 (e); Khairzad, at para. 68; [Evans v. Evans, 2023 ONSC 3919](https://www.canlii.org/en/on/onsc/doc/2023/2023onsc3919/2023onsc3919.html), at para. 76.
[82] In the circumstances of this case, parenting time should be calculated on an hourly basis.
The correct approach is to determine the amount of time that a child is in the general care and control of the parent, and not the time that the parent is physically present with the child: Nderitu, at para. 82 (f).
The time attributed to a parent encompasses all time during which the parent is the one who is responsible for their well-being.
This can include, for example, time the child spends at swimming lessons or with a nanny: [Sirdevan v. Sirdevan, 2010 ONSC 2375, 99 O.R. (3d) 424](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2375/2010onsc2375.html), at paras. 10-16; L.L., at para. 38.
[83] Parental responsibility is the primary consideration.
Time sleeping and time at school cannot be ignored: [Law v. Law, 2011 ONSC 2140](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc2140/2011onsc2140.html), at para. 67; Nderitu, at para. 82 (i).
In determining who is responsible for the children during school time, the court may consider which parent is on the contact list at the school and is proximate and available during school hours: [Ferguson v. Ferguson, 2005 PESCTD 16, 246 Nfld. & P.E.I.R. 204](https://www.canlii.org/en/pe/pescad/doc/2005/2005pesctd16/2005pesctd16.html); Nderitu, at para. 82 (h).
[84] In this case, the children were physically in Ms. Lemieux's care for an hour or more before and after school every weekday.
Those hours should be calculated as parenting time with her.
Moreover, she was retired and living closer to the school, whereas Mr. Lemieux was working in Kitchener.
As the parent who was proximate and available during school hours, the hours the children spent at school are properly allocated to her.
[85] Using an hourly calculation, I conclude that the children spent more than 60% of their time in Ms. Lemieux's care in 2021, as well as in 2022.
[86] I can appreciate Mr. Lemieux's frustration because he did not agree to change the parenting schedule that was ordered by Justice Edwards on consent, nor did he agree to amend the parenting provisions in the Separation Agreement in 2021 or 2022.
He argues that Ms. Lemieux breached the agreement, which states explicitly that he "will have physical custody of the children not less than 40% of the year." He submits that she should not be rewarded for that breach.
[87] The problem with Mr. Lemieux's argument is that he did not take steps in 2021 or 2022 to enforce the Final Order and parenting terms of the Separation Agreement.
He did not seek mediation or commence a court application to ensure that the children were in his care at least 40% of the time during those two years.
Instead, he acquiesced to the arrangement.
He dropped the children off at Ms. Lemieux's house before school and picked them up there after school.
Ms. Lemieux had parental responsibility for them for more than 60% of the time, despite the fact that there was no formal agreement for that to happen.
This constitutes a material change in circumstances that triggers a change in child support.
[88] The proof of a material change in circumstances gives rise to a presumptive entitlement to a retroactive increase in child support.
The next step is for me to determine the appropriate retroactivity date.
[89] As discussed earlier in these Reasons for Judgment, the presumptive retroactivity date is the date of effective notice to Mr. Lemieux, up to three years prior to the commencement of Ms. Lemieux's Motion to Change on August 29, 2022.
Ms. Lemieux's lawyer wrote to Mr. Lemieux on August 26, 2020, addressing Mr. Lemieux's contention that he was overpaying child support.
The lawyer conveyed Ms. Lemieux's position that Mr. Lemieux was at that point underpaying child support because Nyah and YaQi had been residing primarily with her since April 2020.
The lawyer asserted that Mr. Lemieux should be paying the full Table amount of child support for two children, rather than a set-off amount premised on a shared parenting arrangement.
[90] The August 26, 2020 letter constitutes effective notice of Ms. Lemieux's claim.
Mr. Lemieux acknowledged, during his cross-examination, that he may have received an email directly from Ms. Lemieux prior to August 26, 2020, advising him of her position that he was underpaying child support.
However, no such email was adduced by Ms. Lemieux as evidence.
Mr. Lemieux was not asked the date when he first learned of her position.
The only evidence of effective notice is the lawyer's August 26, 2020 letter, which was sent less than three years prior to formal notice of this court proceeding.
The date of the lawyer's letter is therefore the presumptive retroactivity date for Ms. Lemieux's claim.
[91] There is no basis, in my view, to exercise my discretion to depart from this presumptive date and order an increase in child support back to May 1, 2020.
Ms. Lemieux provided no proof that she raised the issue with Mr. Lemieux sooner and no explanation for why she failed to do so.
Mr. Lemieux did not behave in a blameworthy fashion.
He consistently provided full disclosure of his income.
He acted in good faith by continuing to pay the amount of child support required by the Final Order, even though he sincerely believed that it was an overpayment based on his income.
He had not agreed to a change in the parenting schedule and therefore understood (incorrectly) that he was not required to increase his monthly payments.
[92] Consequently, I conclude that the retroactivity date for Ms. Lemieux's claim for increased child support is September 1, 2020 (i.e., the first day of the month following effective notice of her claim on August 26, 2020).
[93] The next issue for me to determine is the amount of increased retroactive support Mr. Lemieux should be required to pay.
## Issue 2: How much retroactive child support is owed by Mr. Lemieux?
[94] The calculation of the amount that would adequately redress Mr. Lemieux's deficient past child support payments (from September 1, 2020 onward) must take into consideration the credit he is owed for the overpayments that he made starting in January 2016.
The calculation must be based on the parties' incomes and the corresponding FCSG Table amounts of support, unless I determine that undue hardship would result to Mr. Lemieux.
[95] The calculation of the quantum of retroactive support must also take into consideration further material changes in circumstances that occurred when the parties' daughters commenced post-secondary studies.
Nyah started university in the fall of 2021.
She lived away from home during the academic year.
The parties agreed at that time that Mr. Lemieux was only required to pay child support for YaQi during the months that Nyah was away (from September through April), provided that he contributed proportionately to Nyah's post-secondary education expenses, in accordance with the terms of their Separation Agreement.
[96] The parties could not agree on the amount that Mr. Lemieux should contribute to Nyah's education expenses, nor could they agree on whether he should continue to pay a set-off amount of child support for YaQi, or the full Table amount for one child.
In the absence of an agreement, Mr. Lemieux continued to make his child support payments of $872 per month per the Final Order.
[97] In January 2023, the parties reached an agreement that YaQi would reside primarily with Ms. Lemieux, that Nyah would also live with Ms. Lemieux during her summer breaks between academic years, and that both daughters could spend time with Mr. Lemieux in accordance with their own wishes and preferences.
The parties agree that, from that point forward, the set-off amount of child support stipulated in their Separation Agreement no longer applied.
[98] There is no dispute that, from January 1, 2023 onward, Mr. Lemieux was obligated to pay the full Table amount of child support for one child (YaQi) during the academic year, up until YaQi moved away to commence university studies in September 2024.
They also agree that, effective 2023, Mr. Lemieux was obligated to pay the full amount of child support for two children during the summer breaks.
[99] In September 2023, approximately one year after Ms. Lemieux commenced this Application, Mr. Lemieux decided to pay her a lump sum of $10,000 and he unilaterally increased his monthly payments from $872 to $2,000.
He testified that he did so to contribute to Nyah's post-secondary education expenses, which until then had been fully funded by Mr. Haupt because the parties could not agree on the amount of Mr. Lemieux's proportionate contribution.
Mr. Lemieux depleted his RRSP savings to finance the lump sum payment.
[100] Mr. Lemieux did not make the intended purpose of these payments clear to Ms. Lemieux.
She assumed that he was paying arrears in child support for May 2020 to December 2022, although there is no evidence that he ever conceded that he was underpaying child support during that period.
[101] Mr. Lemieux has continuously paid $2,000 monthly since September 1, 2023.
It matters not how these payments are characterized (as child support or contributions to post-secondary education expenses), provided that Mr. Lemieux is credited with having made them.
[102] Earlier in these Reasons for Judgment, I reviewed the downward trajectory of Mr. Lemieux's income and the upward trajectory or Ms. Lemieux's income from 2015 to 2018.
Mr. Lemieux's income fell again in 2019, then it began to increase year over year thereafter.
Ms. Lemieux quit her job in 2019 and has not sought new employment since then.
Mr. Haupt is a high-income business owner and, together, they have decided that she does not need to work outside the home.
[103] For the purpose of calculating child support and apportionment of s. 7 expenses, the parties agreed to impute an income of $69,466 to Ms. Lemieux for each year from 2019 onward.
That is the amount she earned in the last full year of her employment.
This constitutes a reasonable concession by Ms. Lemieux, given her intentional unemployment.
It represents a generous compromise by Mr. Lemieux, because Ms. Lemieux's income likely would have continued to increase over time had she continued to work.
The Court therefore could have imputed higher income amounts to her from 2019 onward.
[104] The parties' respective gross employment incomes for child support purposes are not in dispute and may be summarized as follows:
| Year | Mr. Lemieux's Income | Ms. Lemieux's Income |
|------|---------------------|---------------------|
| 2016 | $132,538 | $67,446 |
| 2017 | $125,812 | $68,148 |
| 2018 | $124,544 | $69,466 |
| 2019 | $123,489 | $69,466 |
| 2020 | $132,768 | $69,466 |
| 2021 | $135,598 | $69,466 |
| 2022 | $142,420 | $69,466 |
| 2023 | $153,625 | $69,466 |
| 2024 | $158,168 | $69,466 |
[105] Under the FCSG, the Table amounts of child support corresponding to the parties' respective incomes are as follows:
| Dates | A Mr. Lemieux's Table child support obligation | B Ms. Lemieux's Table child support obligation | C Difference (A - B) |
|-------|-----------------------------------------------|-----------------------------------------------|---------------------|
| Jan. to Dec. 2016 | $1,810 | $1,002 | $808 |
| Jan. to Nov. 2017 [1] | $1,731 | $1,012 | $719 |
| December 2017 | $1,787 | $1,038 | $749 |
| Jan. to Dec. 2018 | $1,772 | $1,058 | $714 |
| Jan. to Dec. 2019 | $1,759 | $1,058 | $701 |
| Jan. to Dec. 2020 | $1,873 | $1,058 | $815 |
| Jan. to August 2021 (two children) | $1,907 | n/a | n/a |
| Sept. to Dec. 2021 (one child) | $1,190 | n/a | n/a |
| Jan. to April 2022 (one child) | $1,243 | n/a | n/a |
| May to Aug. 2022 (two children) | $1,989 | n/a | n/a |
| Sept. to Dec. 2022 (one child) | $1,243 | n/a | n/a |
| Jan. to April 2023 (one child) | $1,325 | n/a | n/a |
| May to August 2023 (two children) | $2,120 | n/a | n/a |
| Sept. to Dec. 2023 (one child) | $1,325 | n/a | n/a |
| Jan. to April 2024 (one child) | $1,358 | n/a | n/a |
| May to Aug. 2024 (two children) | $2,175 | n/a | n/a |
| Sept. to Dec. 2024 (no children) | n/a | n/a | n/a |
| Jan. to April 2025 (no children) | n/a | n/a | n/a |
[106] Column C in the chart above represents the set-off amounts of child support payable based on the parties' respective incomes.
Based on my findings above, those set-off amounts apply from January 1, 2016 to August 26, 2020.
The full Table amounts of support in Column A apply from September 1, 2020 onward.
[107] Using the above figures, I calculate the retroactive amount of child support owed by Mr. Lemieux as follows.
### January 1, 2016 to April 1, 2020
[108] From January 1, 2016 to April 1, 2020, instead of paying the set-off amounts in column C above, Mr. Lemieux actually paid $872 monthly.
He therefore overpaid child support as follows:
| Dates | D Set-Off Amount Owed (from column C) | E Actual Amount Paid | F Amount Overpaid (E – D) |
|-------|--------------------------------------|---------------------|-------------------------|
| Jan. to Dec. 2016 | $808 x 12 months = $9,696 | $872 x 12 months = $10,464 | $768 |
| Jan. to Nov. 2017 | $719 x 11 months = $7,909 | $872 x 11 months = $9,592 | $1,683 |
| December 2017 [2] | $749 | $872 | $123 |
| Jan. to Dec. 2018 | $714 x 12 months = $8,568 | $872 x 12 months = $10,464 | $1,896 |
| Jan. to Dec. 2019 | $701 x 12 months = $8,412 | $872 x 12 months = $10,464 | $2,052 |
| Jan. to April 2020 | $815 x 4 months = $3,260 | $872 x 4 months = $3,488 | $228 |
| TOTALS | $38,594 | $45,344 | $6,750 |
### May 1, 2020 to August 1, 2020
[109] As discussed earlier in these Reasons for Judgment, there was a material change in circumstances on May 1, 2020, such that Mr. Lemieux ought to have started paying the full Table amount of child support for two children, instead of a set-off amount.
However, I have determined that Mr. Lemieux is not required to pay increased support retroactive to May 1, 2020 because Ms. Lemieux did not give him effective notice of her claim until August 26, 2020.
The amount of support ($872 monthly) that Mr. Lemieux paid during these four months (May to August 2020) will therefore not be adjusted (up or down) in my calculation.
### September 1, 2020 to December 1, 2020
[110] Mr. Lemieux continued to pay $872 monthly from September 1, 2020 to December 1, 2020 pursuant to the Final Order.
He ought to have been paying $1,873, which is the full Table amount of child support for two children (in column A above).
The chart below shows the shortfall in the amount he paid:
| Dates | G Table Amount Owed (from Column A) | H Actual Amount Paid | I Amount Underpaid (G – H) |
|-------|-------------------------------------|---------------------|--------------------------|
| Sept. 1 to Dec. 1, 2020 | $1,873 x 4 months = $7,492 | $872 x 4 months = $3,488 | $4,004 |
### January 1, 2021 to December 1, 2022
[111] The following chart shows the amount of support paid by Mr. Lemieux pursuant to the Final Order and the full Table amounts of support that he should have paid in 2021 and 2022.
| Dates | J Table Amount Owed (from Column A) | K Actual Amount Paid | L Amount Underpaid (J – K) |
|-------|-------------------------------------|---------------------|--------------------------|
| Jan. to Aug. 2021 (two children) | $1,907 x 8 months = $15,256 | $872 x 8 months = $6,976 | $8,280 |
| Sept. to Dec. 2021 (one child) | $1,190 x 4 months = $4,760 | $872 x 4 months = $3,488 | $1,272 |
| Jan. to April 2022 (one child) | $1,243 x 4 months = $4,972 | $872 x 4 months = $3,488 | $1,484 |
| May to Aug. 2022 (two children) | $1,989 x 4 months = $7,956 | $872 x 4 months = $3,488 | $4,468 |
| Sept. to Dec. 2022 (one child) | $1,243 x 4 months = $4,972 | $872 x 4 months = $3,488 | $1,484 |
| Totals | $37,916 | $20,928 | $16,988 |
### January 1, 2023 to August 1, 2023
[112] The parties agree that, based on Mr. Lemieux's 2023 income ($153,625), for the period of January to April 2023, he should have paid the Table amount of $1,325 per month (for one child), instead of the $872 amount that he continued to pay.
[113] They also agree that, for the period of May to August 2023, he should have been paying the Table amount of $2,121 per month (for two children), instead of the $872 amount that he continued to pay.
[114] They agree that his total cumulative underpayment of child support for the first eight months of 2023 is therefore $6,806.
### September 1, 2023 to April 1, 2025
[115] In September 2023, Nyah withdrew from her university program and enrolled in a different course of study at a college.
She continued to live away from home during the academic year.
She returned to Ms. Lemieux's house to live during the summers.
[116] As mentioned above, in September 2023, Mr. Lemieux unilaterally decided to start paying Ms. Lemieux $2,000 per month.
He has made those monthly payments consistently since then.
[117] YaQi moved away from home and started attending university in September 2024.
Nyah was still pursuing a diploma at college.
The parties agree that Mr. Lemieux owed no child support during the months when both children were living away from home for post-secondary education, and that he owed the Table amount of child support for two children during the summer months when they returned.
[118] The following chart demonstrates the amounts of child support paid by Mr. Lemieux, the Table amounts he should have paid, and the difference for each month from September 1, 2023 to April 1, 2025 inclusive.
| Dates | M Table Amount Owed (from Column A) | N Actual Amount Paid | O Difference |
|-------|-------------------------------------|---------------------|--------------|
| Sept. to Dec. 2023 (1 child) | $1,325 x 4 months = $5,300 | $2,000 x 4 months = $8,000 | $2,700 overpaid |
| Jan. to April 2024 (1 child) | $1,358 x 4 months = $5,432 | $2,000 x 4 months = $8,000 | $2,568 overpaid |
| May to Aug. 2024 (two children) | $2,175 x 4 months = $8,700 | $2,000 x 4 months = $8,000 | ($700) underpaid |
| Sept. 2024-April 2025 (both children away) | n/a | $2,000 x 8 months = $16,000 | $16,000 overpaid |
| Totals | $19,432 | $40,000 | $20,568 overpaid |
### Conclusion
[119] The following chart summarizes my findings above regarding Mr. Lemieux's child support payments:
| Date | Amount Overpaid | Amount Underpaid |
|------|-----------------|------------------|
| Jan. 2016 to April 2020 | $6,750 (column F) | |
| May to Aug. 2020 | Nil (para. 109) | Nil (para. 109) |
| Sept. 2020 to Dec. 2020 | | $4,004 (column I) |
| Jan. 2021 to Dec. 2022 | | $16,988 (column L) |
| Jan. 2023 to Aug. 2023 | | $6,806 (para. 114) |
| Sept. 2023 to April 2025 | $20,568 (column O) | |
| Totals | $27,318 | $27,798 |
[120] In conclusion, I calculate that, for the entire period from January 1, 2016 to April 30, 2025 inclusive, Mr. Lemieux made a net underpayment of child support in the total amount of $480 ($27,798- $27,318).
[121] There are no grounds upon which I could reasonably conclude that a retroactive child support payment of $480 would cause Mr. Lemieux undue financial hardship.
I therefore order Mr. Lemieux to pay Ms. Lemieux a lump sum of $480 as retroactive child support for the period from January 1, 2016 to April 30, 2025 inclusive.
## Issue 3: Does Mr. Lemieux owe Ms. Lemieux retroactive reimbursement for any s. 7 expenses and if so, how much?
### Analytical framework for s.7 claims
[122] Ms. Lemieux asks the Court to order Mr. Lemieux to reimburse her between 65% and 69% of expenses she incurred for the children's extra-curricular activities, tutoring, and post-secondary education costs.
She is seeking reimbursement of tutoring costs retroactive to January 1, 2016, costs for cheer activities retroactive to January 1, 2020, and costs related to the children's post-secondary education retroactive to the dates when they each applied for university.
Ms. Lemieux calculates Mr. Lemieux's proportionate contributions based on his actual income and her actual or imputed income in the relevant years.
[123] Ms. Lemieux's claims are made pursuant to the parties' Separation Agreement, which stipulates (at para. 5.5):
> Dina and Marc shall share the children's special and extraordinary expenses such as daycare, extracurricular activities, and any dental, medical and extended health care costs over and above the coverage of their plans on a pro rata basis of 65% for Marc and 35% for Dina.
[124] It is unclear from the record how the parties calculated these percentages.
The Separation Agreement (paras. 5.2 and 5.19) states that Mr. Lemieux's "base income" (without bonuses and excluding rental income) would be used to calculate the amount of his immediate child support obligations, and his "total employment income" would be used to make annual adjustments to his monthly payment amount.
However, his base income at the time was $112,000, and Ms. Lemieux's income was $49,400.
These numbers do not translate into 65%-35% pro rata contributions.
I infer that the parties must have used Mr. Lemieux's total employment income to determine their proportionate contributions to s. 7 expenses.
[125] The Separation Agreement (at para. 5.1(b)) adopts the statutory definition of "special or extraordinary expenses" in s. 7(1) of the FCSG, which reads as follows:
> 7 (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: . . .
>
> (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;
>
> (e) expenses for post-secondary education; and
>
> (f) extraordinary expenses for extracurricular activities.
[126] A parent who claims reimbursement of a s. 7 expense bears the onus of demonstrating that the expense in question (i) falls within one of the categories of expenses enumerated therein, (ii) is a necessary expense in relation to the child's best interests and (iii) is a reasonable expense in relation to the means of the parties and the family's pre-separation spending pattern.
[127] Expenses incurred for children's extracurricular activities are included in the list of s.7 expenses but only if they are "extraordinary": s.7(1)(f).
The claimant parent bears the burden or proving the extraordinary nature of the expense at issue, in accordance with s.7(1.1) of the FCSG:
> (1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
>
> (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
>
> (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
>
> (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
>
> (ii) the nature and number of the educational programs and extracurricular activities,
>
> (iii) any special needs and talents of the child or children,
>
> (iv) the overall cost of the programs and activities, and
>
> (v) any other similar factor that the court considers relevant.
[128] The framework for analyzing retroactive s. 7 claims is the same as the framework that applies to a recipient parent's retroactive claim for increased child support: [Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215](https://www.canlii.org/en/on/onca/doc/2012/2012onca864/2012onca864.html), at paras. 37-44.
However, in this case, the first step in the analysis does not apply because Ms. Lemieux's s.7 claims are based on the parties' Separation Agreement and do not involve a request for variation of the Final Order.
The success of her s.7 claims is therefore not contingent on proof of a material change in circumstances.
However, the remaining steps in the analysis apply: (1) determine the retroactivity date, which is presumptively the date of effective notice (up to three years prior to the filing of the court application), and (2) calculate the amount, if any, to be paid in accordance with the FCSG.
### Ms. Lemieux's retroactive claim for reimbursement of cheer expenses
[129] For the first few years after the Separation Agreement was executed, Mr. Lemieux paid 65% of expenses related to the children's extracurricular activities.
These expenses included fees for gymnastics, karate, soccer and swimming.
The children participated in these sports recreationally and the fees were modest.
The parties agreed to the expenses before they were incurred.
[130] Both girls eventually developed an interest in and an aptitude for cheerleading.
Nyah started cheer in 2015 and YaQi started in 2016.
They quickly became passionate about the sport, and they engaged in it at an elite competitive level.
[131] The fees associated with competitive cheer were substantially higher than the cost of their previous recreational sporting activities.
There were fees for registration, camps, training sessions, competitions, equipment, and team uniforms.
There were also travel and accommodation expenses related to participation in out-of-town tournaments, including travel to the United States for international competitions.
[132] When the girls started doing cheer, Ms. Lemieux reached out to Mr. Lemieux and provided him with a package showing the anticipated fees.
He did not agree to contribute to the expense because he considered it to be beyond his financial means.
He did not oppose the girls participating in cheer if Ms. Lemieux wanted to pay for it, and he agreed to take them to their practices on the days that they were with him.
[133] The girls continued with cheer for many years, including after Nyah enrolled in university.
Mr. Lemieux incurred some expenses driving them to and from their practice sessions and out-of-town competitions, including one competition for YaQi in Buffalo.
Ms. Lemieux travelled with the girls to most of their competitions and paid the fees associated with the activity, with assistance from Mr. Haupt.
After Ms. Lemieux quit her job in mid 2019, Mr. Haupt covered virtually all the cheer expenses.
[134] Ms. Lemieux did not invoke the Dispute Resolution process to address the issue of Mr. Lemieux's refusal to contribute to the cheer fees.
She did not press the issue with him.
However, when her lawyer wrote to Mr. Lemieux on August 26, 2020, he proposed that they attempt to negotiate several issues, including Mr. Lemieux's proportionate contribution to "the children's special and extraordinary expenses (including when the time comes, any post-secondary expenses)." The lawyer's letter did not specifically refer to cheer expenses, but Mr. Lemieux was aware that the girls were extensively involved in cheer and that he was not paying a proportionate share of the cheer expenses.
In the circumstances, the lawyer's letter was sufficient to give him effective notice of Ms. Lemieux's position that he was not satisfying his obligation to pay a proportionate share of s. 7 expenses.
[135] As part of this court proceeding, which was commenced in August 2022, Ms. Lemieux is seeking an order for Mr. Lemieux to reimburse her a proportionate share of the cheer-related expenses retroactive to January 2020, including all her travel and accommodation expenses.
She is not seeking to be reimbursed a share of the cheer expenses she incurred between 2015 and 2019 (which averaged over $10,000 annually).
[136] The record establishes that Mr. Haupt (on Ms. Lemieux's behalf) incurred the following cheer-related expenses in the following years:
| Year | Amount |
|------|--------|
| 2020 | $6,405 |
| 2021 | $4,758 |
| 2022 | $12,276 |
| 2023 | $17,602 |
| 2024 | $11,550 |
| 2025 (6 months) | $30 |
[137] The cheer expenses were relatively lower in 2020 and 2021 because the COVID-19 pandemic resulted in competitions being cancelled.
The total amount of these expenses is $52,621.
[138] The presumptive retroactivity date for Ms. Lemieux's claim is August 26, 2020, the date when Mr. Lemieux received effective notice of her position that he was not meeting his obligation to make a proportionate contribution to s. 7 expenses.
Ms. Lemieux has provided no evidence and has articulated no basis upon which I should exercise my discretion to set January 1, 2020 as the retroactivity date instead of the presumptive date of August 26, 2020.
I will therefore evaluate her claim for reimbursement of cheer expenses based on the retroactivity period of August 26, 2020 to April 30, 2025.
[139] For the reasons set out below, I have concluded that Mr. Lemieux is not required to reimburse Ms. Lemieux for any cheer expenses.
Ms. Lemieux has failed to persuade me that the cheer expenses were necessary in relation to the children's best interests, or reasonable in relation to the parties' means and their family pre-separation spending pattern.
[140] I accept that the cheer activities benefitted the children.
Nyah and YaQi were both committed to the sport and had the skill and talent to compete at a high level.
However, many of the cheer-related expenses claimed by Ms. Lemieux amount to discretionary spending that she and Mr. Haupt decided to incur.
These include her and Mr. Haupt's mileage to travel to and from out-of-town tournaments (calculated at $0.59/km), airline tickets to attend international competitions, the cost of overnight hotel stays for the family, the cost of Ubers between airports and hotels at out-of-town competitions, and the cost of a car rental to travel between a hotel and competition sites at a foreign destination.
There is no evidence that Ms. Lemieux inquired about the possibility of the girls car-pooling or sharing hotel rooms with teammates to reduce these costs.
The necessity of these costs has not been established.
[141] Moreover, the cheer expenses are not reasonable.
The children's extra-curricular expenses prior to separation, and for the first few years after separation, were moderate and within the parties' means.
The competitive cheer expenses that began in or about 2015 are considerably higher.
They exceed $11,000 annually (except during the height of the pandemic years).
They are only affordable to Ms. Lemieux because her common law spouse has a high income and is willing to fund the activity.
Without Mr. Haupt's financial assistance, she would not have been able to pay her 35% share of the cheer expenses.
It is unreasonable for her to expect Mr. Lemieux to pay 65% given his income ($135,000 annually in 2015), family circumstances, and child support obligations.
Mr. Lemieux did not have the means to pay a 65% share of the cheer expenses in addition to monthly child support, while also maintaining a residence for his two daughters to live in half-time.
[142] Since Ms. Lemieux failed to demonstrate that the cheer expenses are necessary and reasonable, I do not need to determine whether they constitute "extraordinary" expenses within the meaning of s. 7(1.1) of the FCSG.
The expenses do not qualify for reimbursement under s. 7(1).
[143] There is another reason why I reject Ms. Lemieux's claim for reimbursement of cheer expenses, namely that Mr. Lemieux did not consent to incurring the expense.
Paragraph 5.7 of their Separation Agreement stipulates: "The parties will only contribute to a child's special or extraordinary expenses if the parties consent to the expenses in advance, in writing.
Neither party will unreasonably withhold consent." Mr. Lemieux's refusal to consent to the cheer expenses was based on the high cost of the activity and his limited financial means.
It was reasonable for him to withhold his consent in the circumstances.
[144] For the above reasons, I dismiss Ms. Lemieux's claim for reimbursement of a proportionate share of the children's cheer expenses incurred between 2020 and 2025.
### Ms. Lemieux's retroactive claim for reimbursement of tutoring expenses
[145] Ms. Lemieux is also seeking reimbursement of between 65% and 69% of tutoring expenses she incurred for the children from 2016 to date.
She calculates these percentages annually, based on the parties' respective incomes.
[146] YaQi struggled academically at a young age, so Ms. Lemieux advocated for her to get an Individual Education Plan ("IEP") at her school.
An assessment was conducted in January 2016.
It identified areas of weakness, including that YaQi's level of reading comprehension was two years below her peers.
[147] Ms. Lemieux investigated the availability of tutoring resources for YaQi and located Sylvan Learning.
She approached Mr. Lemieux to discuss sharing the cost.
Mr. Lemieux refused to contribute because he thought it was too expensive.
He believed that the school should provide additional support to YaQi given her IEP, and he offered to provide her with extra help at the library on his parenting days.
He testified that he would have liked to pay for tutoring, but he simply could not afford it at the time.
[148] Ms. Lemieux was convinced that YaQi required professional tutoring, so she registered YaQi for lessons at Sylvan twice weekly for two hours.
Mr. Lemieux did not object, so long as he was not required to contribute to the cost.
He ensured that YaQi attended her tutoring sessions on days when she was in his care.
[149] YaQi's reading skills and overall academic performance began to improve.
She continued with Sylvan tutoring lessons throughout elementary and high school.
She also had a private tutor assist her with chemistry in high school.
She benefitted greatly from this academic support, graduated high school with honours, and was accepted to university.
[150] Nyah needed help with math in high school, so Ms. Lemieux also registered her for some Sylvan tutoring lessons in 2019 and 2020.
[151] In total, the tutoring expenses amounted to $24,271 from January 1, 2016 to April 30, 2025 inclusive.
Mr. Lemieux did not contribute anything to these costs.
Ms. Lemieux paid the tutoring fees, with Mr. Haupt's assistance, up until she quit her job in 2019, after which Mr. Haupt paid them.
[152] Ms. Lemieux did not invoke the Dispute Resolution Process to address this issue.
For several years, she did not pursue Mr. Lemieux for a contribution to the tutoring expenses.
The trial record contains text messages between them, in which she reminded Mr. Lemieux, in April 2017, that she and Mr. Haupt were paying for the tutoring ("Do you know how much we just pay for Sylvan a month?").
However, there is no evidence that she conveyed to him her position that he should be paying a proportionate share of that expense until her lawyer wrote to him on August 26, 2020, proposing negotiations with respect to his contribution to the children's special and extraordinary expenses.
[153] Ms. Lemieux did not explain why she is seeking reimbursement of tutoring expenses retroactive to January 1, 2016, while seeking reimbursement of cheer expenses retroactive only to January 1, 2020.
The presumptive date of retroactivity for both claims is the same (i.e., August 26, 2020).
[154] Ms. Lemieux has adduced no evidence and has articulated no reason why I should exercise my discretion to depart from the presumptive retroactivity date and require Mr. Lemieux to pay a proportionate contribution to the tutoring retroactive to January 1, 2016.
She provided no reason why she did not pursue a claim earlier.
Mr. Lemieux did not behave in a blameworthy fashion.
The children were able to benefit from the tutoring without Mr. Lemieux's contribution because of Mr. Haupt's generosity.
Their current circumstances will not be adversely affected if Mr. Lemieux is not required to reimburse Ms. Lemieux for a share of the tutoring expenses all the way back to January 2016.
[155] I will therefore assess this s. 7 claim based on a retroactivity period of August 26, 2020 to April 30, 2025.
The total amount of tutoring expenses incurred during this period may be summarized as follows:
| Dates | Amount of Tutoring Fees |
|-------|------------------------|
| Aug. 26 to Dec. 30, 2020 | $474 [3] (Sylvan) |
| 2021 | $460 (Sylvan) |
| 2022 | $644 (Sylvan) |
| 2023 | $1,610 (Sylvan) |
| 2024 | $588 (Sylvan) + $675 (private chemistry tutoring for YaQi) |
| Jan. 1 to Apr. 30, 2025 | $0 |
| TOTAL | $4,451 |
[156] The next issue for me to decide is whether Mr. Lemieux should be ordered to pay a proportionate share of these tutoring expenses.
The expenses fall within the category of special and extraordinary expenses in s. 7(1)(d) of the FCSG because Nyah and YaQi both had particular educational needs, and the tutoring met those needs.
[157] Mr. Lemieux concedes that the tutoring was necessary in relation to the children's best interests, and the cost was reasonable in relation to Ms. Lemieux's means.
However, he submits that the cost was not reasonable relative to his means and the parties' pre-separation spending patterns.
Moreover, he argues that it was reasonable for him to withhold his consent to paying 65% of the tutoring fees because he did not have the financial ability to afford it.
[158] The record shows that the tutoring expenses were higher in 2016-2019 than they were in 2020-2025.
Ms. Lemieux (and Mr. Haupt) paid more than $6,250 for YaQi's tutoring in each of 2016, 2017 and 2018, whereas they paid a total of less than $4,000 for both children's tutoring in 2021-2024 combined.
[159] I accept Mr. Lemieux's contention that it was initially reasonable for him to withhold his consent to paying 65% of the tutoring costs because he did not have the financial means to afford the expense of twice weekly two-hour professional tutoring sessions.
However, given the necessity of the tutoring in relation to the children's best interests, the decrease in tutoring costs over time, and the fact that he was not contributing to the cheer fees, it was unreasonable for him to refuse to contribute to the tutoring costs on an ongoing basis beyond August 2020.
[160] I conclude that Ms. Lemieux is entitled to be reimbursed a portion of the $4,451 in tutoring expenses she (and Mr. Haupt) incurred during the retroactivity period.
Mr. Lemieux's proportionate share of these expenses (based on the parties' annual incomes in 2020-2024) ranges from 65% to 69% annually.
I therefore order him to pay Ms. Lemieux 67% of $4,451 in a lump sum of $2,982.
There is no evidence that this payment will cause Mr. Lemieux to incur undue financial hardship.
### Ms. Lemieux's retroactive claim for reimbursement of post-secondary education expenses
[161] During the parties' marriage, they made contributions to a Registered Education Savings Plan ("RESP") for their children.
By the time Nyah started university in September 2021, the balance of that account had grown to $15,205.
Those funds were used by Ms. Lemieux to pay some of Nyah's education expenses in 2021 and 2022.
[162] During Nyah's two years at the University of Ottawa, she received an admissions scholarship, a French studies bursary, and grants and loans from the Ontario Student Assistance Plan ("OSAP").
She also received OSAP loans during her first year of studies at Fanshawe College in 2023-2024.
When YaQi started attending university in September 2024, she received an entrance scholarship.
The scholarships, bursaries and OSAP loans were used to pay some of the children's university fees.
The parties agree that these funds should be treated as a contribution by the children to their own education expenses.
[163] Ms. Lemieux claims that she and Mr. Haupt incurred a total of $72,436.67 in post-secondary education expenses for Nyah and YaQi between September 2020 (when Nyah applied to university) and April 30, 2025, over and above the expenses paid by OSAP funds, scholarships and bursaries, and after applying the RESP funds.
She takes the position that the Court should order Mr. Lemieux to reimburse her between 65% and 69% of that amount.
Her claim is based on the parties' Separation Agreement, which includes the following provisions:
> 5.11 When a child begins to live away from home for educational purposes, the parties will review the amount of child support payable by Marc under section 5.16 in order to take into account the reduced costs to Dina and the fact that Marc is contributing to tuition and residency costs.
>
> 5.12 Child support will change when a child moves away from home to attend a post- secondary educational institution.
In addition to a reduced amount of Table support, Marc will also pay his proportionate share of the child's post-secondary educational expenses, including tuition, residence or equivalent shelter and food costs, books and supplies .
If Dina and Marc cannot agree on their post-secondary educational expense contributions, they will use the section of this Agreement entitled "Dispute Resolution" to resolve the issue.
>
> 5.13 Prior to determining each party's obligation to the child's post-secondary educational costs, Dina and Marc shall first deduct a reasonable contribution to these expenses expected from the child.
In the event that Dina and Marc cannot agree on the child's reasonable contribution to these expenses, they will use the section of this Agreement entitled "Dispute Resolution" to resolve the issue.
[164] There is no issue about the retroactivity date for Ms. Lemieux's claim for reimbursement of post-secondary education expenses.
The parties agree that Mr. Lemieux's obligation to contribute to these expenses dates back to August 26, 2020, when Ms. Lemieux's lawyer wrote to him and put him on notice that she expected him to pay 65% of post-secondary education costs when Nyah commenced university studies the following year.
Ms. Lemieux initiated this Court proceeding two years later, in August 2022.
YaQi started university two years after that, in September 2024, when the legal proceeding was already underway.
[165] Mr. Lemieux's only contribution to the children's post-secondary education costs to-date is the $10,000 lump sum that he paid to Ms. Lemieux in September 2023.
He acknowledges his obligation to contribute to their education expenses, but he disputes the reasonableness and necessity of many of the expenses incurred by Ms. Lemieux, argues that he did not consent to some of the expenses incurred, submits that the children should be making a greater contribution to their own education costs, and argues that the Separation Agreement does not require him to pay 65% (or more) of these expenses.
He submits that the parties' household incomes (including their spouses' incomes) should be considered in determining the proportion of post-secondary expenses that he is obligated to pay.
[166] Ms. Lemieux bears the onus of establishing that the claimed expenses qualify for reimbursement pursuant to the parties' Separation Agreement.
Paragraph 5.12 of the agreement states that "post-secondary educational expenses includ[e] tuition, residence or equivalent shelter and food costs, books and supplies." Ms. Lemieux must not only show that the claimed expenses meet this definition of post-secondary educational expenses, but also that they are reasonable and necessary, as set out in s. 7(1) of the FCSG.
The latter onus arises because the parties adopted the definition of "special and extraordinary expenses" from s. 7(1) of the FCSG in their Separation Agreement.
[167] Ms. Lemieux maintained meticulous records of the expenses she incurred when each of their daughters left home for university, including receipts for all her purchases.
Based on her testimony, I conclude that many of the claimed expenses are not education-related, and are discretionary rather than necessary, or are unreasonable.
[168] Specifically, during Nyah's first year at the University of Ottawa (2021-2022), Ms. Lemieux incurred the following expenses without discussing them with Mr. Lemieux beforehand:
a) She purchased groceries and food containers for Nyah.
This is a discretionary expense because Nyah was living in residence and had a 7-day/week meal plan.
b) She purchased decorative items for Nyah's residence room, and personal items such as a needlework kit, a "nail kit" and make-up for Nyah.
These are discretionary expenses that are not education-related.
c) She purchased accessories for Nyah's room, such as towels, pillows and bedding.
These are discretionary items because both Ms. Lemieux and Mr. Lemieux could have provided such items from their homes.
d) She purchased airline tickets to fly Nyah home from school during breaks.
Her claimed travel expenses include the cost of the flight tickets and transportation to and from the airport by Uber.
These are not reasonable expenses relative to the parties' pre-separation family spending pattern.
Less expensive means of transportation could have been used (e.g. ride share, bus).
e) Ms. Lemieux and Mr. Haupt drove Nyah to Ottawa when she started school in September 2021.
Ms. Lemieux seeks an order for Mr. Lemieux to reimburse her 65% of $608.88, a figure she arrived at by calculating $0.59/km for her mileage to and from Ottawa.
The claim for reimbursement of this expense is unreasonable, given that Mr. Lemieux drove to Ottawa in the spring of 2022, helped Nyah move from residence to an apartment, then drove her home.
[169] During Nyah's second year at university (2022-2023):
a) Ms. Lemieux paid rent for a vacant Ottawa apartment for Nyah during the months of May through August 2022 (when Nyah was living with her in Puslinch).
It was unreasonable to incur this cost without making any effort to sublet the apartment.
b) Ms. Lemieux paid a security deposit equal to one month's rent ($840) when the one-year lease was signed for Nyah's Ottawa apartment in or about April 2022.
She later paid rent for the month of April 2023 at the end of the lease, rather than asking to have the security deposit applied to the last month's rent.
This was an unnecessary and avoidable expense.
c) Ms. Lemieux purchased new bedroom furniture and other items for Nyah's off-campus apartment.
These were not necessary expenses because Mr. Lemieux had a fully furnished bedroom for Nyah in his basement, which was not being used.
He could have provided a bed, dresser, lamps, etc. to furnish the apartment at no cost.
He was not consulted and did not consent to incurring these expenses.
d) Ms. Lemieux incurred expenses for train tickets for Nyah to travel from university to her home and back on long weekends and school breaks.
These expenses are discretionary, incurred voluntarily by Ms. Lemieux so that she could spend time with Nyah.
They are not education related.
Mr. Lemieux was not consulted and did not consent to incurring these expenses.
The children did not stay with him when Nyah returned from school on breaks.
[170] During Nyah's second year at Fanshawe College and YaQi's first year at Laurier University (2024-2025):
a) Ms. Lemieux purchased decorative items and accessories for YaQi's residence room.
These were discretionary expenses.
The items were either unnecessary or could have been provided from home.
Mr. Lemieux was not consulted and did not consent to incurring these expenses.
b) Ms. Lemieux bought groceries for YaQi, and a small refrigerator for her residence room.
These were discretionary expenses because YaQi was on a meal plan.
Mr. Lemieux did not consent to incurring these expenses.
c) Ms. Lemieux unreasonably paid summer rent for a vacant London apartment for Nyah, without making any effort to try to sublet it.
[171] Ms. Lemieux also paid premiums for student health and dental insurance coverage for Nyah (at the University of Ottawa) and YaQi (at Laurier University), even though both children are covered by Mr. Lemieux's health and dental insurance plans, as well as Mr. Haupt's health and dental insurance plans.
These are unnecessary and unreasonable expenses.
[172] The necessary education-related expenses include the children's application fees, tuition and student fees, residence fees, rent during the academic year, meal plan fees, grocery costs (when not on a meal plan), books and study-related supplies, and reasonable costs for travel between their home and school at the beginning and end of each academic year.
The parties have already shared the cost of transporting the girls to and from school.
Mr. Lemieux is not required to contribute to all the other expenses that were discretionary in nature, unrelated to education, or unreasonable.
[173] Subsection 7(3) of the FCSG stipulates that, in determining the amount of a s. 7 expense"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." However, paragraph 5.6 of the parties' Separation Agreement stipulates that Mr. Lemieux "may deduct any income tax benefit or other subsidy received" by Ms. Lemieux in calculating his contribution to a s. 7 expense.
The parties therefore limited consideration of tax benefits to those that are received by Ms. Lemieux (as opposed to those for which either party is eligible to apply).
[174] Ms. Lemieux has not received any tax benefits related to the children's education expenses.
She testified that the children have not transferred their education tax credits to her.
She prefers to let them carry forward the unused amounts of the credits.
Consequently, my calculation of the post-secondary education expenses will not be reduced by any tax benefits.
[175] Based on the totality of the evidence in the trial record, I estimate that Ms. Lemieux and Mr. Haupt incurred the following reasonable and necessary post-secondary education-related expenses for the children (over and above the expenses financed by scholarships, bursaries, and OSAP funds):
| Year | Expenses | Amount | Subtotals |
|------|----------|--------|-----------|
| 2020 | Nyah's application fee | $150 | $150 (2020) |
| Sept-Dec 2021 | Nyah's tuition, residence fee, meal plan fee and student fees (less student dental and health insurance premiums fee) | $4,327 | $4,571 (2021) |
| | Nyah's books and school supplies | $244 | |
| 2022 | Nyah's tuition, residence fee, meal plan fee, and student fees (less student dental and health insurance premiums fee) | $9,882 | $14,578 (2022) |
| | Nyah's books | $185 | |
| | Nyah's groceries | $311 | |
| | Nyah's rent (September to December) plus security deposit | $4,200 | |
| 2023 | Nyah's tuition and student fees at University of Ottawa (January to April) and at Fanshawe College (September to December), less student dental and health insurance premiums fee | $2,030 | $9,671 (2023) |
| | Nyah's books | $226 | |
| | Nyah's groceries | $225 | |
| | Nyah's rent (January to April in Ottawa, minus security deposit; September to December in London, plus deposit) and utilities | $7,190 | |
| 2024 | Nyah's tuition and student fees at Fanshawe College; YaQi's application fee; YaQi's tuition fees, residence fee, meal plan fee, and student fees at Laurier University (minus health care and dental care insurance fee) | $12,623 | $22,124 (2024) |
| | Books and supplies for both children | $336 | |
| | Groceries for Nyah (YaQi on a meal plan) | $654 | |
| | Nyah's rent and utilities in London (minus security deposit) January to April and September to December | $7,636 | |
| | Deposit for YaQi's apartment | $875 | |
| Jan-April 2025 | Both children's tuition and student fees | $15,450 | $19,258 (2025) |
| | Both children's books and school supplies | $58 | |
| | Nyah's rent and utilities | $3,750 | |
| Subtotal | | $70,352 | |
| Minus RESP funds | | ($15,205) | |
| TOTAL | | $55,147 | $55,147 |
[176] Mr. Lemieux takes the position that Nyah and YaQi should be required to pay for 1/3 of their own post-secondary education costs.
He points to the fact that both he and Ms. Lemieux worked part-time during their university years to supplement their OSAP funds and finance their own education.
Ms. Lemieux's position is that the children should each contribute whatever scholarships, bursaries, grants and loans they receive, but no more.
She argues that summer jobs are hard to obtain, and that she and Mr. Lemieux can afford to finance the children's education without requiring them to work part-time during their studies.
[177] During Nyah's first few years of post-secondary studies, Mr. Lemieux completed her OSAP application.
He disclosed his income and Ms. Lemieux's income on the application form.
Nyah qualified for grants and student loans.
In the spring of 2024, Ms. Lemieux completed the OSAP application forms for both children.
She disclosed her income and Mr. Haupt's income on the forms.
Mr. Haupt's 2023 income was $1,144,006.
Based on his high earnings, both children were denied OSAP funding for that year.
[178] In her first year at University, Nyah contributed the following amounts toward her post-secondary education costs: $2,000 from an entrance scholarship, $1,000 from a French studies bursary, $578 from an OSAP grant and $7,975 from an OSAP loan.
In her second year at university, she contributed $1,000 from a French studies bursary and $9,230 from an OSAP loan.
In her third year of post-secondary studies (first year at Fanshawe College), she contributed $2,139 in OSAP grants and $6,122 in OSAP loans.
She therefore paid for more than 1/3 of her own post-secondary education expenses in each of these three years.
[179] Nyah worked during summer breaks at a variety of part-time jobs.
She used her employment income to contribute toward her grocery bills and spending money while away at university.
She continued to do so during the 2024-2025 academic year.
The exact amount of her contribution is not in evidence, but I am confident, based on the evidence, that she contributed what she was able to pay toward her daily living expenses while away at university.
[180] The parties' Separation Agreement states that the children will each be required to make a "reasonable contribution" to their education expenses.
Nyah accumulated significant debt from student loans during her first three years of post-secondary studies.
I am therefore not prepared to require her to pay 1/3 of her education expenses in 2024-2025, without any OSAP funding.
The evidence establishes that over four years, she already made a reasonable contribution to the cost of obtaining her first post-secondary diploma.
[181] YaQi, on the other hand, did not work during the summer between high school and her first year of university.
Instead, she took a vacation to Spain and a European cruise with a friend and her friend's family.
She therefore had no employment income to contribute toward her education expenses in 2024-2025.
She received a $2,500 entrance scholarship at Laurier University, which she put toward her tuition fees.
[182] Mr. Lemieux disapproves of Ms. Lemieux's decision to allow YaQi to travel in Europe rather than work during the summer months before starting university.
He submits that the expenses incurred by Ms. Lemieux and Mr. Haupt for YaQi's first year at university should be reduced by an amount that ought to have been contributed by YaQi, before calculating his proportionate contribution to the expenses.
[183] I agree.
The total of YaQi's tuition and student fees during her first year at Laurier University (including residence fee and meal plan fee) was approximately $23,000.
In my view, without OSAP funding, it would be onerous to require YaQi to pay for 1/3 of her education costs, but ¼ of the costs ($5,750) is a reasonable contribution to expect from her (based on either summer employment or part-time employment during the academic year).
She contributed $2,500 from her scholarship.
The amount paid by Ms. Lemieux will therefore be reduced by $3,250 to reflect a reasonable contribution from YaQi before Mr. Lemieux's share is calculated.
[184] The total amount of post-secondary education expenses to be apportioned between the parties (for the period from August 2020 to April 2025) is therefore $51,897 ($55,147 - $3,250).
[185] The only remaining issue is whether Mr. Lemieux should be ordered to pay Ms. Lemieux between 65% and 69% of that amount, based on the parties' respective incomes from 2021 to 2025, or whether a different percentage should apply to calculate his proportionate share.
Mr. Lemieux argues that his proportionate contribution should be calculated based on the parties' respective household incomes.
[186] Mr. Lemieux's wife, Ms. Cai is employed as a dental assistant.
She works many overtime hours so she can finance her daughter's post-secondary education.
Her daughter is studying to become a dental hygienist, and the education costs are high.
Ms. Cai also sends money to China monthly to support her mother.
She makes her own car payments, and shares the cost of family vacations, but she contributes only $300-$400 monthly toward the joint household expenses with Mr. Lemieux, because she has these other financial commitments.
[187] Based on the evidence in the trial record, the approximate combined household income for Mr. Lemieux and Ms. Cai was as follows for the past five years:
| Year | Amount |
|------|--------|
| 2020 | $178,000 |
| 2021 | $182,000 |
| 2022 | $191,000 |
| 2023 | $211,000 |
| 2024 | $236,000 |
[188] Mr. Lemieux and Ms. Cai enjoy a comfortable upper-middle income lifestyle.
Ms. Lemieux and Mr. Haupt live at a much higher standard of living, despite the fact that Ms. Lemieux chooses not to work outside the home.
Mr. Haupt owns a total of eight properties.
He and Ms. Lemieux reside at one of the properties, in an estate home on 2.5 acres of land.
It is over 6,000 sq ft and has an underground hockey rink.
He purchased the home for almost $2 million years ago and spent more than $1 million on renovations in 2021.
He owns a Rivian, which he purchased for $102,000, a pick-up truck valued at $101,000, and a Chrysler Pacifica van valued at over $50,000.
[189] The luxurious lifestyle enjoyed by Mr. Haupt and Ms. Lemieux is exemplified by Ms. Lemieux's testimony regarding why she did not buy Nyah an inexpensive bus ticket to bring her home from university, instead of paying for flights and Ubers.
She said she never even considered a bus.
She added that Nyah "had never experienced a bus before" but had experienced being on a plane, so flying was more familiar and comfortable for her.
In other words, Nyah had become accustomed to a wealthier lifestyle.
[190] Similarly, the fact that Ms. Lemieux purchased all new furniture, décor and supplies for the children when they moved away for university, without consulting Mr. Lemieux to see what he could contribute, and without considering sending them to university with items from her own home, is indicative of a lack of frugality that comes from enjoying a higher standard of living.
[191] It is difficult to calculate Ms. Lemieux's and Mr. Haupt's combined household income because Mr. Lemieux does not declare most of his income on his tax returns.
His Notices of Assessment show that he declared a total income of between $114,000 and $144,000 for each of the 2021, 2022 and 2024 tax years.
He declared $1,144,000 in 2023.
He explained that he sold shares from one of his corporations to another corporation that year, which generated over $1,000,000 in capital gains.
[192] During cross-examination, Mr. Haupt was asked to explain how he can afford his lifestyle on such a modest income (putting aside the capital gains in 2023).
He gave a vague explanation about how his lifestyle is funded through profits from his business, stating that his accountant performed a "goodwill strip" in 2017"prepaying tax corporately so shareholders could draw down without paying tax".
He admitted that he receives substantial income that does not show up on his T1 personal tax return.
He said he gets "hundreds of thousands of dollars" annually.
[193] I infer, from the totality of the evidence, that Mr. Haupt earns at minimum $500,000 annually, including his declared income, and his undeclared tax-free income (grossed up).
I therefore impute to Ms. Lemieux a household income of $500,000 for 2020, 2021, 2022 and 2024.
I believe this is a conservative estimate.
[194] If the parties' household incomes were used to calculate their respective contributions to the children's post-secondary education expenses, their proportionate contributions would be as follows:
| Year | Ms. Lemieux's household income | Mr. Lemieux's household income | Ms. Lemieux's proportionate contribution | Mr. Lemieux's proportionate contribution |
|------|-------------------------------|-------------------------------|----------------------------------------|----------------------------------------|
| 2020 | $500,000 | $178,000 | 74% | 26% |
| 2021 | $500,000 | $182,000 | 73% | 27% |
| 2022 | $500,000 | $191,000 | 73% | 27% |
| 2023 | $1,114,000 | $211,000 | 84% | 16% |
| 2024 | $500,000 | $236,000 | 68% | 32% |
[195] Ms. Lemieux argues that Mr. Lemieux should be ordered to pay 65% to 69% of the children's post-secondary education expenses during these years based on the parties' Separation Agreement, which calculates their pro rata contributions based on their personal incomes, not their household incomes.
[196] Paragraph 5.5 of the Separation Agreement states that the parties "shall share the children's special or extraordinary expenses such as daycare, extracurricular activities and any dental, medical and extended health care costs" on a "pro rata basis of 65% for Marc and 35% for Dina." Post-secondary education expenses are not mentioned in that paragraph, but rather are addressed in separate paragraphs (5.11 to 5.13) later in the agreement.
The latter paragraphs refer to Mr. Lemieux's "proportionate share" of the post-secondary education costs, but do not state that he is required to pay 65%.
Nowhere in the Separation Agreement do the parties stipulate that Mr. Lemieux's proportionate contribution to post-secondary education expenses will be based on the parties' incomes.
[197] The parties did not specify a percentage for the post-secondary expenses when they executed the Separation Agreement in 2015 because they intended to calculate their proportionate contributions at a later date, when the children were old enough to pursue post-secondary studies.
The parties intended this calculation to be governed by the FCSG.
Subsection 7(2) of the FCSG states:
> The guiding principle in determining the amount of an expense referred to in subsection (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.
[198] This "guiding principle" is not a mandatory rule.
Although parents' respective incomes are typically used to calculate their proportionate contributions to s.7 expenses, in certain circumstances, it may be more appropriate to use their household incomes.
This issue was addressed in [Zhao v. Xiao, 2023 ONCA 453, 92 R.F.L. (8th) 265](/on/onca/2023/453), where the Court of Appeal for Ontario ruled (at para. 17):
> The respondent has remarried and is the sole supporter of his children and wife, who cannot work due to illness.
By contrast, the application judge found that the appellant mother has been able to work in paid employment since 2008 but has decided not to, and that the children have been listed as her second husband's dependents for benefits purposes.
The record showed that her second husband has covered all of the oldest child's educational expenses through his benefits as a university employee, along with the vast majority of medical and dental expenses.
In these circumstances, the application judge decided to set each party's share of s. 7 expenses based on their respective household income.
While the guiding principle is that s. 7 expenses are to be shared by the parties in proportion to their own income, it was not unreasonable for the application judge to apportion the s. 7 expenses based on each party's household income given the facts of this case.
[199] In the case before me, the parties' children are listed as dependents on Mr. Haupt's health and dental benefits plans.
They were denied OSAP funding because Mr. Haupt's high income was taken into consideration in assessing their eligibility.
Mr. Haupt testified that he has paid between 95% and 98% of all their tutoring, cheer, and post-secondary education expenses since 2020, because he and Ms. Lemieux decided that Ms. Lemieux does not need to work due to his earnings.
During cross-examination, he was asked whether these expenses "move the needle" in terms of his financial position.
He responded"no, they make no significant difference."
[200] Mr. Lemieux earns an above-average income.
He shares household expenses with his wife, but her contribution is limited because she has her own dependants (daughter and mother) whom she supports.
His financial situation is therefore more constrained than Ms. Lemieux's financial situation, which is fully subsidized by Mr. Haupt's wealth.
Mr. Lemieux has not accumulated significant debt, but he does have monthly car payments and a substantial mortgage still owing on his modest home.
In the circumstances, it would be unfair to require him to pay 65% to 69% of post-secondary education expenses, especially those that could have been substantially subsidized by OSAP funding, but for Mr. Haupt's high income.
[201] It is appropriate, based on the facts of this case, to use the parties' respective household incomes to calculate their proportionate contributions to the children's post-secondary education expenses.
Mr. Lemieux's share may be calculated as follows:
| Year | Amount of education expenses (para. 175) | Mr. Lemieux's proportionate contribution (para. 194) | Mr. Lemieux's share of the expenses |
|------|------------------------------------------|-----------------------------------------------------|-----------------------------------|
| 2020 | $150 | 26% | $39 |
| 2021 | $4,571 | 27% | $1,234 |
| 2022 | $14,578 | 27% | $3,936 |
| 2023 | $9,671 | 16% | $1,547 |
| 2024 | $22,124 | 32% | $7,080 |
| 2025 | $19,258 | 32% | $6,162 |
| TOTAL | | | $19,998 |
[202] Mr. Lemieux already paid Ms. Lemieux $10,000 toward these post-secondary education expenses (in September 2023).
He therefore owes her $9,998 for the retroactivity period of September 1, 2020 to April 30, 2025 inclusive.
[203] The only issues left for me to decide are Mr. Lemieux's child support and s. 7 obligations going forward.
---
# Prospective Claims
## Issue 4: Does Mr. Lemieux still owe child support for Nyah?
[204] Paragraph 5.1(c) of the parties' Separation Agreement defines "child support" as "the monthly amount upon which the parties have agreed and may include both Table support and special or extraordinary expenses." Paragraph 5.9 of the agreement stipulates"Child support ends for each child when: … (e) the child obtains one post-secondary degree or diploma."
[205] Mr. Lemieux relies on this contractual provision to argue that his obligation to pay both Table support and s.7 expenses for Nyah ended on April 30, 2025, when she obtained her Fanshaw College diploma.
As mentioned previously, Nyah started her undergraduate studies at the University of Ottawa in September 2021.
She was pursuing an Honours Bachelor degree in French, with a plan to later enrol in teacher's college.
She completed two years at the university, then decided to withdraw from that degree program and enrolled in an Early Childhood Education ("ECE") diploma program at Fanshawe College.
She started her studies at Fanshawe in September 2023 and completed the two-year program in April 2025.
[206] Nyah has decided to continue her post-secondary studies at Fanshawe to obtain an Honours Bachelor degree in Early Childhood Leadership, because she requires a degree to get into teacher's college, which remains her ultimate goal.
It is a four-year program, but the College will give her credit for the courses she completed in her ECE diploma program, so she will only be required to do two more years of study to obtain the degree.
She is, however, required to complete a part-time online spring/summer bridging program from mid-May to mid-August 2025.
At the time of trial (in May 2025), she was enrolled in the bridging program and had been accepted by Fanshawe to return to full time study in September 2025 for two more years.
[207] Ms. Lemieux argues that Nyah is still working toward her first post-secondary degree, and that she is effectively in the same program of study as last year because Fanshawe College is giving her credit for her previous courses.
Ms. Lemieux submits that the child support termination clause in the Separation Agreement was not intended to apply in these circumstances.
[208] The language of the Separation Agreement unambiguously expresses the parties' intention to terminate child support when a child obtains either a post-secondary diploma or a post-secondary degree.
The parties contemplated the possibility of one of their daughters deciding to continue post-secondary studies beyond her first diploma or degree.
They agreed that child support and contributions to s.7 expenses would stop after one diploma or degree.
Mr. Lemieux's obligation to pay support for Nyah therefore ended when she obtained her ECE diploma in April 2025.
His obligation to contribute to her post-secondary education expenses (or other s.7 expenses) similarly terminated on April 30, 2025.
## Issue 5: How much monthly child support must Mr. Lemieux pay for YaQi going forward?
[209] Mr. Lemieux is still obligated to pay support for YaQi.
The final issue for me to determine is how much.
Determining the amount of a parent's child support obligation is governed by s. 3 of the FCSG, which states:
> **Amount of Child Support**
>
> **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
>
> (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
>
> (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.
[210] Both parties asked me to calculate a monthly amount to be paid by Mr. Lemieux pursuant to s. 3(2)(b).
I agree that this is an appropriate case in which to do so.
[211] Mr. Lemieux's monthly support payment should include the Table amount for one child during the four months that YaQi resides with Ms. Lemieux each summer.
Based on his most recent (2024) income tax return, his gross income is $158,168.
The Table amount of child support corresponding to that income is $1,358.
Prorated over 12 months, the amount is $453 monthly ($1,358 x 4 = $5,432 ÷ 12).
[212] Mr. Lemieux's monthly support payment should also include a contribution to YaQi's post-secondary education expenses, proportionate to the parties' household incomes.
Based on the most recent (2024) income information, Mr. Lemieux should pay 32% of reasonable and necessary post-secondary expenses for YaQi, after deducting a 25% contribution by YaQi to her own expenses.
[213] Based on the Wilfred Laurier Invoices from YaQi's first year at university, I estimate that her annual tuition and student fees will be $3,822 per semester. (This does not include meal plan fees, dormitory fees, housing activity fees, or undergraduate health and dental plan fees.) The total projected annual expense for tuition and student fees is therefore $7,644.
I will add to that $600/year for the cost of textbooks.
[214] Based on the evidence at trial, YaQi's rent will be $905 per month.
Ms. Lemieux has committed to a renewable 12-month lease for YaQi's apartment.
She testified that the rent will not increase.
If she does not want to make an effort to sublet the apartment during the summer months, then she should bear the full cost of the apartment from May to August each year.
Mr. Lemieux should not be forced to incur a share of the cost of vacant accommodations at the same time as he pays the Table amount of child support to Ms. Lemieux for housing YaQi during the summer months.
The total projected annual expense for YaQi's accommodations is therefore $7,240 ($905 x 8 months).
[215] With respect to the remainder of YaQi's living expenses, Ms. Lemieux submitted a budget that she and Mr. Haupt prepared for YaQi's future expenses while attending university.
It includes $840 annually for utilities, which is neither itemized, nor supported by any documentation.
There is no evidence about whether the $905 in rent includes Wi-Fi, hydro, water, heat etc. I am not prepared to speculate on these amounts without evidence.
[216] Ms. Lemieux's budget also includes $2,000 for furniture for YaQi's apartment, the necessity of which has not been established.
It includes $5,400 annually for food/social and $1,800 annually for laundry and other incidentals (i.e., $900/month), which is a bit high for a student budget.
A more reasonable monthly budget for the costs of YaQi's daily living would be $670.
I arrive at this amount as follows: $480 for groceries, $40 for laundry, $50 for toiletries, $100 for social entertainment and incidentals.
YaQi's school fees include the cost of a transit pass, so local transportation need not be included in the budget.
The total projected annual cost of YaQi's daily living expenses is therefore $5,360 ($670 x 8 months).
[217] Ms. Lemieux's budget of projected expenses includes $800 annually for travel to and from university and home, which is excessive considering that Wilfred Laurier university is located in Waterloo and Ms. Lemieux lives with Mr. Haupt in nearby Puslinch, Ontario.
Ms. Lemieux testified that YaQi comes home every weekend.
Transportation every weekend is a discretionary expense incurred by Ms. Lemieux, not a necessary education-related expense.
Given the proximity of the school to Ms. Lemieux's residence, I am not prepared to allocate any amount for transportation costs.
[218] Ms. Lemieux's budget also includes $1,800 for tutoring costs, but the evidence at trial is that YaQi is not receiving tutoring while at university.
[219] In summary, I estimate YaQi's annual projected post-secondary education expenses to be as follows:
| Expense | Annual Budget Amount (Sept. to April) |
|---------|--------------------------------------|
| Tuition and student fees | $7,644 |
| Books | $600 |
| Rent | $7,240 |
| Daily living expenses | $5,360 |
| TOTAL | $20,844 |
[220] Before calculating the parties' proportionate contributions to these expenses, I will deduct $5,211, which is the 25% contribution that YaQi is expected to make to her own university expenses.
Ms. Lemieux indicated that she intended to apply for OSAP funding again and hoped that YaQi would qualify because Mr. Haupt's declared income in 2024 was substantially lower than his declared income in 2023.
If YaQi does not qualify for OSAP, she can still reasonably be expected to contribute to her own education expenses by working part-time or during the summer.
[221] The total annual expense to which Mr. Haupt must contribute is therefore $15,633 ($20,844 - $5,211).
His 32% contribution amounts to $5,002 annually.
Pro rated over 12 months, this equates to $416.
An amount of $453 monthly must be added to this to account for the Table amount of child support that Mr. Lemieux must pay.
I therefore calculate his current and ongoing child support payments as $869 monthly, inclusive of his contribution to YaQi's post-secondary education expenses.
In my view, this is a fair and appropriate amount for him to pay, taking into consideration YaQi's own means, needs and circumstances and the financial ability of each party to contribute to her support while she completes her undergraduate degree.
[222] This monthly amount of child support comes into effect on May 1, 2025.
If Mr. Lemieux has continued to pay $2,000 monthly in child support since the trial, then he will be entitled to credit for the overpayment he made since May 1, 2025.
Any overpayment shall be offset against the retroactive amounts that he owes Ms. Lemieux for child support and s. 7 expenses.
[223] I note that the FCSG Tables have recently been amended.
The changes will come into effect on October 1, 2025.
If the applicable Table amount of support payable for one child changes, Mr. Lemieux's monthly child support payment should increase or decrease accordingly, effective October 1, 2025.
---
# Summary of Findings and Orders
[224] For the reasons articulated above, I make the following findings and Orders.
[225] Mr. Lemieux owes Ms. Lemieux a lump sum of $480 as retroactive child support based on the applicable FCSG Table.
This amount fully satisfies his child support obligations up to and including April 30, 2025.
[226] Mr. Lemieux is not required to contribute to the children's cheer expenses, either retrospectively or prospectively.
[227] Mr. Lemieux owes Ms. Lemieux $2,982 as his proportionate contribution to the children's past tutoring expenses, up to and including April 30, 2025.
[228] Mr. Lemieux owes Ms. Lemieux $9,998 as his proportionate contribution to the children's past post-secondary education expenses, up to and including April 30, 2025.
[229] Mr. Lemieux has no obligation to continue paying child support for Nyah or to contribute to Nyah's post-secondary education expenses (or other s.7 expenses) beyond April 30, 2025.
[230] Effective May 1, 2025, Mr. Lemieux shall pay Ms. Lemieux $869 monthly as child support for YaQi, which includes his proportionate contribution to her ongoing post-secondary education expenses, as well as Table support during the summer months.
The amount of this payment may be adjusted on October 1, 2025 when the new amended FCSG Tables come into effect.
[231] If Mr. Lemieux has overpaid child support since May 1, 2025, the amount of any overpayment shall be set off against the amount he owes Ms. Lemieux in retroactive child support and s.7 expenses as set out in paras. 225, 227 and 228 above.
[232] Mr. Lemieux must pay the total amount outstanding to Ms. Lemieux.
However, he is not required to do so until after the issue of costs is resolved in this proceeding.
[233] Although there was some divided success at trial, Mr. Lemieux was overwhelmingly successful, so he is presumptively entitled to his costs, subject to any Offers to Settle or other circumstances that may rebut this presumption.
The amount he owes Ms. Lemieux may therefore be offset against costs awarded in his favour.
---
# Costs
[234] If the parties are unable to resolve the issue of costs through negotiations, they may make written submissions about costs, and I will decide the issue.
[235] Mr. Lemieux shall serve and file his written submissions first, and upload them to Case Centre, by no later than October 17, 2025.
Ms. Lemieux shall serve and file her responding costs submissions, and upload them to Case Centre, by no later than October 31, 2025.
The length of each party's costs submissions shall not exceed 3 pages, exclusive of any Offers to Settle and Bills of Costs.
[236] Given that Mr. Lemieux is a self-represented litigant, I recommend that he read paragraphs 9 to 16 of the decision of this Court in [M.A.L. v. R.H.M., 2018 ONSC 2542](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2542/2018onsc2542.html), which summarizes the principles applicable to costs decisions in cases involving successful self-represented litigants.
This decision may be found on the website (https://www.canlii.org/) by entering the citation ("2018 ONSC 2542") on the "case name, document title, file number, author or citation" search line.
[237] I also recommend that Mr. Lemieux read [Rules 18 and 24 of the Family Law Rules](https://www.ontario.ca/laws/regulation/990114).
These resources should assist him in formulating his position on costs and in preparing his written submissions.
[238] If neither party files costs submissions by the deadlines noted above, I will assume that the issue was settled and there shall be no order for costs.
---
**Petersen J.**
**Released: September 25, 2025**
---
**Footnotes:**
[1] The Tables under the FCSG were updated on November 22, 2017.
I have used the 2011 Ontario Table to calculate child support obligations up to November 2017, and the current Ontario Table to calculate child support obligations thereafter.
[2] The month of December is isolated because of the change to the FCSG Tables on November 22, 2017.
[3] The documentary record shows that Ms. Lemieux paid a total of $4,299 to Sylvan learning in 2020.
She testified that a total of $1,029 of that amount was for YaQi ($123) and Nyah ($906).
The remainder (about 76%) was for tutoring for Mr. Haupt's children.
The receipt from Sylvan shows that she paid a total of $1,976 between September and December 2020.
I calculated 24% of $1,976 to arrive at this amount of tutoring fees for the parties' two girls.
