Stewart v. Turner, 2017 ONCJ 601

ONTARIO COURT OF JUSTICE CITATION: Stewart v. Turner , 2017 ONCJ 601 DATE: 2017 09 01 Brampton 408/10 BETWEEN: CHRISTINE ELIZABETH STEWART Applicant — AND — NEILL STANDON TURNER Respondent Before Justice Philip J. Clay Heard on August 25, 2017 Reasons for Judgment released on September 1, 2017 The Applicant represented herself The Respondent represented himself CLAY J.: FOCUSED HEARING GENERAL BACKGROUND [ 1 ] T his matter concerns the financial obligations of the parties to their daughter Allison Turner who was born on November 29, 1999 (“Allison”).

Allison will be attending Lakehead University in September 2017. [ 2 ] The Applicant mother (“mother”) brought a motion to change the final order of Justice S.R. Clark dated August 29, 2014. She sought to retroactively change the s.7 provisions of the final order and to obtain an order for post-secondary expense sharing that is consistent with the party’s separation agreement of March 10, 2009. The Respondent father (“father”) filed a Response to Motion to Change.

He sought a termination of table child support as of Allison’s 18 th birthday on November 29, 2017 and a 50% contribution to the post-secondary expense of the child for a total period of 3 years. [ 3 ] The parties conceded that a material change in circumstances had occurred as the final order did not specifically contemplate post-secondary education and Allison was about to attend a university that was a great distance from her home.

PROCEDURAL BACKGROUND [ 4 ] The first case conference was held on February 14, 2017. A disclosure order was made. The mother filed a document brief as required. The matter was adjourned to a continued case conference on May 29, 2017. At that time there was a review of the outstanding issues and some agreements were reached. The agreements were;

a) The father’s payment of the table support amount of $782 per month was to be suspended effective August 31, 2017 and re-instated May 1, 2018 and this pattern was to continue for so long as Allison is in her full time program of education at Lakehead University.

b) The father was to continue to make his payments of $300 towards the child support arrears previously ordered.

c) The father was to reimburse the mother for one half of the tuition and residence deposits that she had made. The deposits were $700 and the father was to pay $350 by June 30, 2017. I was advised today that this was not done.

d) Allison should contribute 50% of her 2017 summer job earnings to her post-secondary education which was done.

e) Allison should contribute to her own post-secondary education costs. The mother said she should pay 20% and the father said she should pay 34%. [ 5 ] The father’s Response set out that Justice Clark had made calculation errors when determining the arrears that were set out in his order of August 29, 2014. The mother did not agree that errors were made. The father sought a recalculation of the arrears in the Motion to Change proceeding. My endorsement stated that as no appeal had been taken that issue was not before this court.

I inadvertently did not reproduce that restriction in the body of the order itself but the parties had a copy of the typed endorsement. [ 6 ] At the conference further disclosure was ordered and this matter was scheduled for a focused hearing today. It was agreed that this hearing would be based upon affidavit evidence subject to the right of cross-examination. All of the sworn material in the Motion to Change is considered to be evidence at this hearing (subject to the fact that there would be no consideration of the arrears recalculation claim).

It was agreed that this hearing would lead to a final order that would dispose of all issues raised in this Motion to Change proceeding. The mother was permitted to file a supplementary affidavit, the father a responding affidavit and the mother a reply affidavit. All of the affidavits were filed.

ISSUES 1) What are the father’s arrears, if any, for the payment of non-post - secondary s.7 expenses since the final order? 2) What are Allison’s reasonable post-secondary expenses? 3) What proportion of those post-secondary expenses should be paid directly by Allison? 4) What proportion of those post-secondary expenses should be paid by each party? THE LAW [ 7 ] Motions to change child support are governed by s. 37 (2.1) of the Family Law Act which provides as follows; Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the court could make on an application under

section 33. 1997, c. 20, s. 6.

The sub-sections of the CSG have are relevant to a determination of this matter are as follows; Child the age of majority or over 3.

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child. O. Reg. 391/97, s. 3 (2) . Special or extraordinary expenses 7.

(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under

section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (

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. O. Reg. 391/97, s.7 (1) ; O. Reg. 446/01, s. 2. Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (

d) and (f), “extraordinary expenses” means (

a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or 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 clause (

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 parent or spouse requesting the amount, including the amount that the parent or 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, (iv) the overall cost of the programs and activities, and (

v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1. CONSENT: TABLE CHILD SUPPORT [ 8 ] The father advised at the outset of trial that he was prepared to pay the correct table amount of child support pursuant to the Child support Guidelines upon his income for each year after the final order. A change in child support based upon a change in the father’s income is contemplated by the CSG and the final order mandated income disclosure for that purpose. The amount being enforced by the FRO is the amount set in 2014 on 2013 final income.

It will increase effective May 1 of each year to the income reported in the previous calendar year. In 2014 the father earned $84,656, in 2015 $85,991 and in 2016 $87,631. [ 9 ] The parties also agreed that there should be a suspension of the payment of table child support during the months that Allison

will reside in Thunder Bay while attending Lakehead University. This means that table child support will be suspended effective August 31 in each and shall resume on May 1 in each year. That pattern will continue until the mother acknowledges in writing to the FRO that Allison has ended her full time post-secondary education. EVIDENCE [ 10 ] The mother filed affidavits dated April 23 and April 27 (Tabs 8 and 9 Volume 4) July 12, 2017 (Volume 5) and August 8, 2017 (Volume 7). There were two different claims set out.

The first was for s.7 expenses that she claims were not paid by the father between the time of the final order and the time of this hearing. She sought an order that the father pay 50% of those costs in accordance with the provisions of the final order. The second is for the post-secondary expenses that Allison has incurred and will incur upon her attendance at Lakehead University. She sought an order that Allison be required to pay 20% of her post-secondary costs and that each parent should pay their share proportional to income of the balance of the costs.

She asked the court to determine the annual costs so that the parties would not be required to negotiate the costs every semester. [ 11 ] The father filed an affidavit dated July 2015 with numerous exhibits (Volume 6). He objected to paying any of the s.7 costs although in his submissions he reluctantly agreed to some costs as are set out below. He stated that he would only contribute to Allison obtaining a three year bachelor’s degree as that is what he felt he was required to do by law and as he said he could not afford to pay for anything more.

Although his Answer stated that he was only prepared to pay 50% of the costs his three year proposal was to divide the parental portion of post-secondary costs in a manner that was proportionate to what he considered to be available “income”.

Non-post-secondary costs [ 12 ] Although the separation agreement had provided that s.7 costs were to be shared proportionally to each party’s income paragraph 4 of the final order reads: 4) Commencing September 1, 2014, the Parties shall evenly split any s.7 expenses for activities agreed upon in advance and upon being presented with proper receipts of invoices for the costs of same. [ 13 ] The mother prepared a chart which was attached as Exhibit “A” to her affidavit of April 27, 2017. It set out the expenses that she claimed in the years 2014, 2015 and 2016 respectively.

In the course of submissions I noted that the parties had agreed in their separation agreement that any expense that was less than $50 was not a s.7 cost. In reviewing the chart there were a number of expenses that were in that range and some others that were less than $100. The mother stated that she was prepared to withdraw her claim to a sharing of those costs. This left s.7 expense that could be grouped into the following categories; 1) Prescription glasses and dental care. 2) University application costs. 3) Activities, courses and school trip.

Prescription glasses and dental care [ 14 ] The mother stated that she had told the father about the costs by e-mail and he had failed or refused to make any payments. She said that she had provided the receipts to the father but did not have a specific e-mail to prove this (the father denied receiving them). The mother included the receipts in her April 27 affidavit. She said she did not know that the father had an extended health plan that would cover the costs. Her pattern had been to submit Allison’s extended health costs to her insurer and when she no longer had insurance to her husband’s insurer.

She only claimed costs from the father when she had exceeded the limits of her husband’s insurer’s plan. The total costs were;

a) Lenscrafters $367.50

b) Hawthorne Village Dental $237.40

c) Hawthorne Village Dental $115.00 Total $719.90 [ 15 ] The father filed an e-mail from 2013 which showed that he did have coverage for eyeglasses. He said that he lost the opportunity to put the claims through his plan. He said the mother did not comply with the order by sending him a timely receipt. That said, the father was prepared to pay his share of these costs. University application costs. [ 16 ] The mother showed she had paid the $150 that every student must pay to apply to three universities, a further $200 for $50 each to 4 more schools and $50 for the York University entry fee in 2017.

This totaled $400. The father had queried whether Allison needed to apply to seven universities but ultimately he conceded an obligation to pay his share of these costs. Activities, courses and school trip [ 17 ] The mother had sent the father an e-mail requesting contribution to the items in this category. Her detailed e-mails described the expenses, why she thought it was reasonable that they be paid and set out the costs and time for payment. The father said he would not contribute and in some cases provided some explanation for his decision. She then made the decision to incur the expenses.

She had no proof that she had sent the invoices or receipts for these expenses to the father prior to the costs being incurred. She did attach the receipts to her April 27 affidavit. [ 18 ] Allison had taken dance courses since she was a little child. The father was well aware of the approximate costs. The mother sent e-mails asking him to contribute in 2015 and 2016. He failed or refused to do so. The costs incurred by the mother were $484.92 in 2015 and $738.71 in 2016. I will not count the $33 expended before Allison left the dance program in 2017.

The total costs sought are $1,223.63. [ 19 ] The mother sought a contribution to Allison’s G-1 licence, driver’s education training and G-2 driver’s test. The costs were $101.70, $587.60 and $148.75 respectively. The mother paid the costs but the father said that Allison should be paying these expenses. [ 20 ] In 2016 the mother paid for Allison to take an enrichment studies course at Queen’s University for students who might be interested in studying law. The cost was $795.00.

The father refused to pay as he did not agree to the expense and in the end result Allison chose not to study law but instead decided to become a teacher. [ 21 ] The largest contested s.7 expense was Allison’s student trip to Vimy Ridge on the 100 th anniversary of that famous battle. The mother sent the father detailed information about the trip and encouraged him to attend the parent education night. He did not attend and said that trip was not mandatory and that he could not afford to contribute.

Allison was going to contribute $1,000 towards the trip but when she ultimately gave her mother $3,700 to contribute directly to her RESP her mother chose not to require her to pay for it. The mother said it was an excellent learning experience for Allison. The trip cost $3,969. Post-secondary costs [ 22 ] The mother provided a copy of the acceptance letter Allison received from Lakehead University. She was accepted into a double degree program with a B.A in French and a B.Ed. The mother said that this was a concurrent B.A./B.Ed. Program.

The father took the position that he had received no written confirmation that this was a “concurrent” program. He said it was a “double degree” program. This

interpretation fit with the father’s position that he should only be paying for one university degree. He said that after 3 years Allison would have a three year B.A. and his obligation to contribute to her education would be over.

[ 23 ] The mother also filed a letter from the Simcoe County Board of Education that addressed the demand for French teachers. She said that Allison had decided to be a French teacher and to undertake a plan of education that would allow her to be qualified to teach within 5 years.

She did all of her planning on the basis that Allison would be attending Lakehead University for 5 years. [ 24 ] At the time of the hearing the parties did not have Allison’s specific courses and it was not clear whether Lakehead program simply meant that after a 3 year degree the student would have automatic acceptance to their Faculty of Education Program or whether it meant that in the course of the 5 years the student would take courses that counted towards the B.A. and other courses that counted toward the B.Ed.

There was no doubt however that Allison intended to become a French teacher and intended to spend 5 years at Lakehead University to become qualified to apply to the Ontario College of Teachers. [ 25 ] Both parties had separate R.E.S.P’s to apply towards Allison’s education costs. The father had $15,971 and the mother originally had $16,166.77. Allison then contributed $3,700 from her savings to her mother’s RESP so that the money could receive the government contribution of 20%.

This meant that Allison had effectively contributed $4,400 to the costs of her education. [ 26 ] The mother had spent the sum of $9,524 in 2017 in paying Allison’s tuition and residence deposits of $700 and the first instalment of Allison’s tuition and residence costs. On May 27, 2017 the father was ordered to pay the mother $350 by June 30, 2017. This was to be a without prejudice payment of one half of the $700 the mother had expended for the deposits. The father refused to make that payment. He submitted that the order interfered with his custodial rights.

He said that as a joint custodial parent he had to be involved in the choice of the university and the program. He said that if he complied with the order and made the payment he would be conceding that the mother could make post-secondary decisions without him. [ 27 ] The mother submitted that Allison should be required to contribute to her post-secondary costs and that contribution should be 20% of the total. She said that Allison had an entrance scholarship of $1,250 and that if she maintained an 80% average each year she would receive $750 in subsequent years.

She filed proof that said that Allison would receive an OSAP grant of $1,960 for the 2017/18 academic year and a loan of $6,100. This meant that Allison had the total sum of $9,310 directly available to her for the 2017/18 year. The loan portion of her OSAP would have to be repaid though. [ 28 ] The mother’s amended spreadsheet contained what might be described as both “hard” and “soft” numbers. The hard numbers included the cost of tuition, ancillary fees and residence. They came to a total of $18,254.75. ($6,719.87 + $989.88 + $10,545) The “soft” numbers are still for legitimate expenses.

Those expenses are subject to change though depending on the changing nature of the costs themselves and decisions that Allison will need to make. For instance the mother had budgeted for $1,000 for books and to her credit Allison had obtained used books for a cost of $339.88. The mother had budgeted $1,573 in airfare to Thunder Bay. This was made up of one way air travel in September and April and return travel in October (Thanksgiving), December (Christmas) and February (Reading Week).

The father accepted the frequency of trips and the budgeted amount. [ 29 ] Both parents wanted to have some certainty with respect to future post-secondary costs. Both acknowledged that there would be some changes to the expenses but they wanted to know what their obligations would be. The mother submitted that any expenses “sanctioned” by the university should be considered a post-secondary expense to which the parties had to contribute. I suggested that I might consider an order that set out clearly the annual financial obligations of the parties.

Allison would be responsible for a fixed percentage of the total costs determined and she could use her discretion in determining how to spend the money available to her. Budgeting her money might be a good life skill for her to acquire while she is away at university. Both parents endorsed the idea in principle. [ 30 ] The father had also prepared a spreadsheet of anticipated costs and the party’s respective contributions. It is found at Exhibit “AA” to his affidavit of July 25, 2017 (Volume 6). He had based it on his contribution to three years of post-secondary education.

He had approached the matter from the perspective of trying to determine what he could pay without adding any more money to his existing monthly budget. He was prepared to apply over the three year period the RESP funds that he had saved. [ 31 ] The father’s spreadsheet accepts that the parental contribution should be by way of a sharing proportionate to income. However he does not define “income” as the amount shown on line 150 of a Notice of Assessment.

The father’s position is that the “income” available for contribution to post-secondary expenses is the amount he would “save” from not paying table child support for the eight months that Allison was living in Thunder Bay. This was $781.80 for 8 months or $6,254. He even tried to show how the mother could afford her share of the costs by setting out a notional child support that she should pay on her income. In the end result for three years he submitted that Allison should pay 34% of her costs, he should pay 39% and the mother should pay 27%.

[ 32 ] In his proposal he attributed all of Allison’s OSAP loan monies to her. In this way he found that as her 34% should be able to be covered without accessing all of the loan money she would have additional money to spend on discretionary expenses. ANALYSIS Non-post-secondary costs Prescription glasses and dental care [ 33 ] I have reviewed the voluminous amount of e-mails attached to the affidavits and filed in the document brief. I note that the tone and the substance of the father’s messages to the mother was both demanding and dismissive.

I find that the mother did communicate extensively with the father and provided him with the information that he sought. She did give him notice of upcoming expenses and she did set out the particular costs and when the money was due. In almost every case the father stated that he refused to pay the cost. Ideally the mother should have sent a message with a scanned copy of the receipt once she had actually incurred the expense.

In all of the circumstances I can fully understand why the mother did not do that as the father had made his refusal to pay quite clear. [ 34 ] It is unfortunate that the father’s plan was not accessed for the eyeglass and dental expenses. I find that the mother did not delay sending receipts in order for that to happen as alleged by the father. The result though is that the total cost is higher for both parties as they have to pay 50% of the full expense as opposed to 50% of the uninsured portion. I find that the father should pay for his 50% share of these costs. This amounts to $359.50.

University application costs [ 35 ] The father complained in his material that Allison had unnecessarily applied to 7 universities thereby incurring $400 in application costs rather than the mandatory $150 for three schools. This is a good example of the father taking a rigid costs based approach to his daughter’s post-secondary plans. He should be pleased that Allison attained an average of 85% in high school and had the choice of so many universities. He should be happy that she is focused in her education and career goals and has chosen a plan that will allow her to obtain in a B.Ed. in 5 rather than 6 years.

Allison clearly took some time to consider her options and then made a decision that is well supported. [ 36 ] I find that the father should pay $200 for the application costs. Activities, courses and school trip [ 37 ] As stated above all of the expenses that are under $100 per year are denied as s.7 expenses. [ 38 ] The dance costs are allowed. The father admitted that he paid for the dance costs in 2014 and it appears in the first part of 2015. He said he would only pay for one more session. He seemed to feel that as a joint custodial parent he could simply refuse to agree to any cost at any time.

When the mother provided all of the details to him in an e-mail on September 12, 2016 he responded on September 13 with; I do not agree with these costs. You have no right to act unilaterally. I will not be paying these fees.

[39] The father’s failure to pay the costs sought was unreasonable. It is clear that Allison had participated in dance for some time. Itwas her only ongoing activity. The costs were quite reasonable in relation to the income of the parties. The father shall pay 50% of thecost which is $612. [40] The mother sent an e-mail on September 19, 2016 to the father providing the details of driver education training and asking himto pay 50% of the costs of same. His response the next day read: Christine I do not agree to this cost. Allison needs to take the responsibility for this cost herself.

Driving is a privilege not a right. [41] The mother paid for the cost. The father filed the case of Kase v. Bazinet, 2011 ONCJ 718 in support of his argumentthat driving lessons were not s.7 expenses. That decision did not state why the driving lessons was not allowed. In fact the father in thatcase had already paid his share of the driving lessons. The case dealt with retroactive support and the trial judge referred to manyexpenses already paid by the father for which she was prepared to give him a credit against arrears.

There are numerous cases on specifics.7 cases that are not always easily reconcilable because they are fact driven decisions. Some cases hold that the driving lessons fallwithin the category of expenses that should be paid for by the recipient of child support. For example in Zimmerman v. Doe, (ON SC), [2007] O.J. No. 2896 (Ont. S.C.

J) driving lessons were disallowed without further comment in a case that likethis one dealt with many claims for s.7 expenses. I note that in Zimmerman the father was paying table child support of $2,500 per monthwhereas in the case before me the mother was receiving $759 per month. The cost of the licenses and driving lessons were more than onemonth’s support. Driving lessons were allowed in Lepine v. Lepine, [2012] O.J. No. 3411 (Ont. S.C.J.). In Booth v. Howser, [2012] O.J.No. 3356, the $650 driving lessons were allowed but the $125 to issue the driver’s license was not allowed.

In this case the father earned$85,991 in 2015 and the mother earned $51,377. Allison was not yet 17 years old. It was not reasonable for the father to expect Allisonto pay for her driving lessons. I will follow Booth and not require him the father to contribute to the G-1 license or G-2 test but he mustpay 50% of the $587.60 for the driving lessons which is $294. [42] There are many cases that allow school trips as s.7 expenses and many that do not. The father refused to contribute solely on thebasis that the trip was not a mandatory part of Allison’s school year.

The s.7 test set out in detail above can be summarized in thisinstance as to whether the trip is reasonable for the child given her skills and interests and whether it is reasonable for the parents tocontribute given their combined income. [43] I find it was more than reasonable for Allison to go on this very special trip. Quite apart from the obvious benefits that anyCanadian could derive from this educational experience Allison is a young woman who had an A average in school and a particularfacility in the French language. The trip involved completing an educational assignment.

I note that the mother has made no claim forany other s.7 expense in the 2016/17 academic year (with the possible exception of some of the dance classes that may have been in thefall of 2016). There was no evidence of any other significant school trip that Allison had taken during her high school years. [44] There are two questions that need to be determined. They are; whether the expense was “extraordinary” as that word is defined ins.7 of the CSG and whether the father can be required to pay his share of the expense despite the fact that he did not agree to it.

Thewording of paragraph 4 of the final order requires an agreement for s.7 expenses to be paid. I have already found that the father shouldpay for driver’s lessons even though he did not agree to them and that he should pay for dance even though he refused to pay in 2015 and2016. When the response to a detailed request is to simply state that no payment will be made without any proper explanation I find thatthe court can look at whether the refusal is reasonable in light of the factors enumerated in s.7 of the CSG.

To hold otherwise would be tomean that a parent could agree to a court order to pay his share of agreed s.7 costs and then simply refuse to agree to anything therebynegating the s.7 clause entirely. I find that the purpose for limiting s.7 expenses to agreed costs is to ensure that decisions are not madeunilaterally without any request for, or consideration of, the other parent’s view.

Where a parent makes a reasonable, detailed request forcontribution to a s.7 expense well in advance and the other parent simply says that he will not contribute the child will miss experiencesthat her parents should be providing to her given the considerations in s.7 of the CSG. [45] The combined parental income was $139,368. The father earned 66.7% of that income. The father and mother have only onechild together. I find that parents with this level of income would at least assist their child in having a school trip in her graduation year.

Ifind that Allison should notionally be expected to contribute $1,000 to the cost, leaving a net amount of $2,969 of which the father’s50% share amounts to $1,484.50. [46] I will not allow the $795 cost for the ESU course at Queen’s University. It also appeared to be an excellent program and it maybe that in February 2016 Allison was considering a career in law. I find though that this course is much narrower in interest and focus

than a school trip that involved her classmates in her graduating year. Unlike 2017, where the only activity to which the father is asked to contribute is the Vimy trip, I have found that in 2016 the father should contribute to Allison’s dance costs. His decision to not consent to this course was not completely unreasonable. Post-secondary costs Reasonable costs [ 47 ] The mother prepared a detailed spreadsheet of what she anticipated to be the costs for Allison’s 5 year program at Lakehead University.

She provided an updated spreadsheet at the hearing as the one in her April 27 affidavit was prepared before some information was known. [ 48 ] The mother stated that the father never co-operated with any requests for s.7 expenses. The parties had endured a trial in 2014 that was supposed to make future financial arrangements between them easier. Since the final order, with one minor exception, the father had not contributed anything to Allison’s s.7 costs.

The mother said, in effect, that she was exhausted by her efforts to get the father to meet his financial obligations to his daughter. [ 49 ] The mother recognized that she would have to ensure that the father received proof that Allison was still attending university each year and she was prepared to encourage Allison to provide her father with her transcripts after each semester. What the mother did not want to do was to negotiate with the father every semester as to whether each item of the total university costs was an expense to which he must contribute.

She wanted a final order that made very clear the exact amount that the father was to pay. [ 50 ] The father also wanted some cost certainty so that he could budget for it and determine how he could pay his share. In point of fact as further explained below he had already decided what he could pay and when. [ 51 ] I note that the mother anticipates costs of $23,065.36 and the father $24,461.75 in the 2017/18 year (he had provided for a $1,500 a year contingency fund which largely explains the difference in the numbers).

I have reviewed the numbers and determined that a reasonable amount to set as Allison’s annual post-secondary costs is the sum of $23,000. The mother said that Allison should contribute to 20% of her costs and the father thought his daughter should pay 34%. The amount to be contributed is not easy to determine as the amount to be earned from part-time and summer work changes each year and the availability of scholarships, and grants changes as well. In the academic year of 2017/18 we now know that Allison will have $1,250 in scholarships and $1,960 in an OSAP grant.

We also know that Allison has $6,100 available to her in OSAP loans. I find that Allison should not have to incur loans each year to fund her education. She should continue to apply for OSAP funding in order to access any grant monies. It is also important that she has loan money available to her to cover any contingencies and to use if necessary as she budgets her more discretionary expenses. [ 52 ] Allison may choose to spend more than the $1,600 in personal expenses allotted to her in the spreadsheet calculations.

In future years she may spend less on housing due to cost sharing a house or apartment with other students. The best way for all three adults in this situation to appropriately budget is to effectively fix the parental share and let Allison determine how to meet her other expenses. This means that if she earns a continuation of her entrance scholarship, or finds a good summer job or saves money on her books and other education costs she is the one who will directly benefit.

Conversely if she spends more than the allotted personal expenses amount of $1,600 in an academic year or if she chooses to live in more expensive housing she bears the consequences of her spending decisions. [ 53 ] It may well be that Allison will incur some modest debt to earn her teaching degree. However the law is clear that where the parents can afford to financially assist, and the child is paying a reasonable portion of her income to her education, the child should not be left with significant debt at the end of the process. The parents had a combined annual income in 2016 of $131,291.

If the parents were together I find that they would financially assist their daughter to the point where she would not be left with a major debt. [ 54 ] Allison made the decision to attend Lakehead which meant that due to airfare her costs would be higher than at some other universities. It may work out to be a financially sound decision as she will have a teaching degree in five years rather than the 6 years that would be required if she took a four year bachelor’s degree and a two year teaching degree.

Allison has already contributed $3,700 in employment income (not quite one half of her 2016 income) to her mother’s RESP. This was a wise action as it increased her ability to contribute from $3,700 to $4,400 because of the government contribution of 20%.

[ 55 ] As a financial professional the father is clearly good with working with numbers. He has set out a way to fund his daughter’s education that makes sense to him. In his approach he would not be able to pay anything other than RESP monies in the 2017/18 year as he has not saved “income” yet. While quite clever his approach is not in compliance with the law. My responsibility is to determine the percentage amount each parent should pay for Allison’s post-secondary education expenses based upon the provisions of s. 7 of the CSG . How the parents find the money to pay their share is not for the court to order.

I cannot accept the father’s calculations that result in him paying only 39% of Allison’s costs. I find that having determined the reasonable costs of this post-secondary education I must then determine a reasonable share to be paid by Allison and order each parent to pay their proportionate share of the remaining balance. Allison’s contribution [ 56 ] I find in all of the circumstances that Allison should be required to contribute to 25% of her $23,000 post-secondary costs which is the sum of $5,750.

I find this to be reasonable because Allison is eligible to receive $750 in a continued scholarship in future years and may well be eligible for an OSAP grant in the approximate amount of $1,960 per year. This would leave her with approximately $3,040 to contribute annually from her own resources. She will have four month summers to find work to earn this money. Parent’s contributions [ 57 ] The parties will then have to divide between them 75% of the $23,000 in fixed post-secondary expenses. This amounts to $17,250 per academic year. The father’s 2016 income was $87,631 and the mother’s income was $43,660.

In 2016 the father earned 66.7% of the combined parental income. The father’s share is therefore $11,506. Ability to enforce [ 58 ] The father ignored a court order requiring him to pay $350 by June 30. Despite nine separate e-mail requests the father refused to contribute to the first instalment payments. On Aug. 3 the mother had to make a decision to obtain funds and she received $10,500 from her RESP. In order to qualify for the government contribution the money had to go to her daughter and the documents filed show that Allison spent $10,882 on post-secondary costs.

The mother was forced to pay the entire cost by the August 15 deadline or a $100 late fee would be assessed. The father knew that Allison and the mother needed his contributions yet he stubbornly refused to pay until this hearing determined the exact amount that he was to pay. It was very clear that he had decided what his contribution should be and he would not pay until his view was accepted by the court. He did not see his proposal as a submission as to what the court could do in this hotly contested matter, he saw it as what the court must do. He was adamant that his plan was the only one he could afford.

He said he had considered all of the factors and his proposal was the way it had to be. [ 59 ] For the above noted reasons I accept the mother’s submission that there must be some enforcement mechanism to any order that I make. Neither party wants the post-secondary costs to be collected by the FRO at first instance. It is preferable that the father pay his share directly to the mother or the adult child. However if the father fails to do so by the due date the mother may send this order together with a statement that no funds have been received and the amount shall be added to the father’s FRO account.

Payment terms [ 60 ] The father made submissions about his inability to pay more than the amount set out in his proposal. I find though that he has the ability to pay his 2017/18 share from his RESP and there should be no delay in him making his payment which is already well overdue. [ 61 ] The father shall pay $5,753 by September 22 (this sum includes the $350 deposit monies that were not paid previously). The money shall be paid directly to Allison as a payment to the student is required to access the government portion at the time of RESP redemption.

It shall not be paid directly to the university as the first semester costs have already been paid. If Allison does not receive it the mother shall collect through the FRO. The father may pay to Allison or directly to the university the second semester amount of $5,753 by December 8, 2017. This date is selected so that the money is paid before it is due so that if it is not paid the FRO can seek enforcement sooner rather than later. Future disclosure and adjustment

[ 62 ] The parties are required to exchange their Notices of Assessment each year. This disclosure will be used to set the father’s table support amount for the May to September payments and to determine the appropriate proportion of each parent’s contribution to the post-secondary costs. The father shall use the CRA support adjustment program each year to change the amount that FRO accrues (the program is only for T-4 statement employees so that if either party has other income they may have to do a Consent Motion to Change).

The mother shall calculate the appropriate percentage of the $17,250 parental contribution to post-secondary costs that the father shall pay and advise the father of the amount immediately by e-mail. The payments must be made to Allison at least three weeks before each semester’s tuition is due. [ 63 ] The mother has advised the court that Allison will share her transcripts with the father. She shall ensure that Allison provides to the father each semester’s transcripts and any significant information received from Lakehead University concerning Allison’s education plan.

FINAL ORDER [ 64 ] The order of the Honourable Justice S.R. Clark dated August 29, 2014 and the Separation Agreement of the parties dated March 10, 2009 shall be changed where they are inconsistent with this order. 1. The Respondent shall pay to the Applicant for the support of the Allison Turner born on November 29, 1999 the following;

a) Beginning May 1, 2015 and on the first day of every month until April 30, 2016 the sum of $759 per month bases upon his income in 2014 of $84,656.

b) Beginning May 1, 2016 and on the first day of every month until April 30, 2017 the sum of $770 per month based upon his 2015 income of $85,991.

c) Beginning May 1, 2017 and on the first day of every month until August, 31, 2017 the sum of $782 per month based upon his 2016 income of $87,631.

d) Provided that the child continues to be a full time student in a post-secondary educational program the Respondent shall pay the correct child support in accordance with the CSG tables from May 1 to August 31 every year.

e) The said support shall terminate at the earliest of the end of the month in which Allison terminates her post-secondary education or April 30, 2022.

f) Support deduction order to issue. 2.

a) The Respondent shall pay to the child the sum of $5,753 by September 22, 2017 and shall pay to the child or directly to the university the second semester amount of $5,753 by December 8, 2017.

b) If the said payments are not received on time the Applicant may send this order together with a statement that no funds have been received to the FRO, by correspondence copied to the Respondent, and the FRO shall add the amount to the Respondent’s account. 3. The Applicant shall ensure that the adult child provides to the Respondent all communications received from Lakehead University including but not limited to tuition invoices, information about her degree programs and transcripts of her marks. The Respondent shall be copied on the information sent and she shall ensure that it is sent in a timely manner. 4.

a) The parties shall exchange their Notices of Assessment each year when received.

b) This disclosure will be used to set the father’s table support amount for the May to September payments and to determine the appropriate proportion of each parent’s contribution to the post-secondary costs of the next academic year.

c) The Respondent shall use the CRA support adjustment program each year to change the amount that FRO accrues for table child support. The change shall be effective on May 1, in each year and shall be based upon the previous year’s income.

d) The Applicant shall calculate the appropriate percentage of the $17,250 parental contribution to post-secondary costs that the Respondent shall pay and advise the father of the amount immediately by e-mail.

e) The Respondent’s share shall be divided into two equal payments which must be must be made to the adult child by correspondence copied to the Applicant at least three weeks before each semester’s tuition is due.

f) If the said payments are not made as described in sub-paragraph (

e) above the Applicant may enforce the payments in the manner set out in paragraph 2 (b). 5.

a) The Respondent shall pay the sum of $2,950 towards non-post-secondary s.7 expenses.

b) The said sum shall be added to the Respondent’s account with the FRO.

c) The Respondent’s payment towards arrears shall continue to be $300 per month and he shall pay that sum on the first day of each and every month until all arrears are paid. Released: September 1, 2017 Justice Philip J. Clay