Lough v. Bannan, 2011 ONCJ 526

Dryden Registry No. FO-06-000071-01 DATE: 2011·IX·27 CITATION: Lough v. Bannan, 2011 ONCJ 526 ONTARIO COURT OF JUSTICE BETWEEN: LORRIE LOUGH, Applicant (Responding party), — AND — MARK BANNAN, Respondent (Moving party). Before Justice Peter T. Bishop Heard on 22 August 2011 Reasons for Judgment released on 27 September 2011 SUPPORT ORDERS — Form of order — Payments to agency for enforcement of support orders — Consequences of withdrawal oforder from agency — Court dismissed payor father’s request to make his share of special expenses under

section 7 of Child SupportGuidelines directly to college-age child rather than through Director of Family Responsibility Office — Under father’s scheme, childwould be put in unenviable position of constantly asking parents for support and put in middle of any future child support dispute. STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 7 and

section 24.1. CASES CITED Lewi v. Lewi, , 80 O.R. (3d) 321, 209 O.A.C. 344, 267 D.L.R. (4th) 193, 28 R.F.L. (6th) 250, [2006] O.J. No. 1847,2006 Cars​well​Ont 2892 (Ont. C.A.). Louise v. Scheuer, , 15 B.C.L.R. (3d) 270, [1995] B.C.J. No. 2510, 1995 Cars​well​BC 1030 (B.C.S.C.). W.P.N. v. B.J.N., 2004 BCSC 880, 5 R.F.L. (6th) 135, [2004] B.C.J. No. 1351, 2004 Cars​well​BC 1520 (B.C.S.C.). Sarah S.

Trach ................................................. counsel for the applicant mother (responding party) Respondent father (moving party), Mark Bannan ................................................. on his own behalf [1] JUSTICE P.T.

BISHOP:— This matter comes before me by way of a motion to change the order of Justice Peter T.Bishop of 28 February 2007 by the respondent father, Mark Bannan, so that he pay the child less than the table amount and that the childcontribute to her post-secondary education of up to 30% of her savings and that he pay 60% of the costs thereafter and the mother pay40% of the child’s education costs.

He wishes to pay the child directly and not involve the Family Responsibility Office. 1: BACKGROUND [2] The applicant Lorrie Lough (respondent in this motion) is the mother of the child, Christa Marie Bannan (born on 5August 1992). The respondent (applicant in this motion) is the father of the child.

[3] The parties were married on 7 November 1987, separated in April of 1994 and were divorced in 1997. [4] The order of Justice Peter T. Bishop of 28 February 2007 is as follows: 1. The respondent, Mark Bannan, shall pay retroactive child support to the applicant, LorrieLough, in the amount of $6,554.00. 2. The arrears are to be paid at a minimum of $200.00 per month commencing on 15 February2007 and continuing on the 15th day of each month thereafter until the total arrears areextinguished. 3.

The respondent, Mark Bannan, shall pay child support to the applicant, Lorrie Lough, in theamount of $834.00, commencing on 1 January 2007 and continuing on the first day of eachmonth thereafter. 4. There shall be no order as to costs. 5. The income of the respondent is $94,590.84 and the guideline amount of support for one childat that income is $834.00. 6. A support deduction order shall issue. 7.

Unless the support order is withdrawn from the Director’s Office, it shall be enforced by theDirector and the amounts owing under the support order shall be paid to the Director, who shallpay to the person to whom they are owed. Payments are to be made to: Director, FamilyResponsibility Office, P.O. Box 2204, Station P, Toronto, ON M5S 3E9. [5] The father’s 2009 income was $98,216 and the mother’s income was $69,800. [6] The mother’s position is as follows:

(1) The child’s educational costs for the 2010-2011 academic year amounted to $22,359.82 of which the father’sproportionate share is 60% or $13,192.29. The mother’s share is 40% or $9,167.53.

(2) The mother has taken into account the child’s bursaries and contributions to those uncovered costs. The father haspaid $834.00 per month pursuant to the order of 28 February 2007 in the amount of $10,008.00 which leads to ashortfall of $3,192.29.

(3) The child’s estimated uncovered costs for the academic year September 2011 to August 2012 was approximately$20,000 with the father’s proportionate share being 60% or $12,000 and the mother’s proportionate share being$8,000 taking into account the contribution by the child. [7] The child is in a co-op program at Fanshaw College in London, Ontario and is required to work during the summer fourmonths and receives no income for that placement.

The child has worked part-time at a shoe store and earned minimum wage for 8 to 12hours per week. [8] The father wishes the child to contribute substantially to her post-secondary education costs and exhaust her part-timeincome and apply for government assistance through OSAP loans and other bursaries, which would have to be paid back. [9] The parties agreed that the child is in a program of education and is entitled to support. 2: DECISION [10] The issue of contribution by adult children was addressed in Lewi v. Lewi, , 80 O.R. (3d) 321, 209O.A.C. 344, 267 D.L.R. (4th) 193, 28 R.F.L. (6th) 250, [2006] O.J.

No. 1847, 2006 Cars​well​Ont 2892 (Ont. C.A.), wherein at paragraph[40], the court stated: [40] . . . as a “guiding principle”, that parents are to share post-secondary expenses “afterdeducting from the expense, the contribution, if any, of the child” [emphasis added]. On a plainreading, the words “if any” are an express contemplation that a child may be required to contributenothing toward such expenses. Every child will have access to some type of financial resources,whether savings, earnings from part-time or summer employment or loans.

If a child need not make anycontribution toward his or her post-secondary education expenses, there can be no implied requirementthat a child must fully exhaust his or her financial resources before the court can order parental support. . . . And further at paragraph [42]: [42] . . . As a general rule, an adult child should be required to make a reasonable and meaningfulcontribution towards post-secondary education expenses. The amount of that contribution will dependon all of the circumstances but must include a consideration of the “means” of the parents and thechildren. . . . And at paragraph [47]: [47] . . .

However, that obligation does not rise to the level of requiring the child to pay for all ofhis or her post-secondary education expenses where the parents have the ability to contribute to thoseexpenses. . . . They should be pursuant to

section 7 of the Child Support Guidelines, O. Reg. 391/97, as amended.

[11] In the case of W.P.N. v. B.J.N., 2004 BCSC 880, 5 R.F.L. (6th) 135, [2004] B.C.J. No. 1351, 2004 Cars​well​BC 1520(B.C.S.C.), the Supreme Court of British Columbia stated at paragraph [15] (quoting from paragraph [23] of Louise v. Scheuer, , 15 B.C.L.R. (3d) 270, [1995] B.C.J.

No. 2510, 1995 Cars​well​BC 1030 (B.C.S.C.)): (iv) A young person in these very difficult times of employment should not be required as a firstpriority to turn to student loans in order to preserve a parental standard of living where thatparent is able reasonably to pay support which would reduce or make unnecessary futureindebtedness for that young person. This does not deny the validity of the father’s call for self-reliance and diligence.

What it does is recognize the facts of life for young people today. [12] The mother has been the primary care giver for this child and has attended to her post-secondary school needs. She wasthe one who travelled twice to London, Ontario to set the child up at Fanshaw College. She is the one who paid $1,400.21 for dentalexpenses without any contribution from the father.

She is the one who set up a RESP joint account accessible by the child to payeducational expenses. [13] The father has made his child support payments in accordance with the order of 28 February 2007 and must be given fullcredit for those payments as well as the $2,000 that he paid directly to the child. [14] The main difficulty or major stumbling block with this case is that the parties do not communicate effectively eitherthrough e-mail or through counsel.

An example of this was the father’s alleging that the mother misrepresented his contributions whenhe did not tell her that he paid the child $2,000.00 directly.

The mother has satisfied the court with respect to the appropriateness of theincome and expenses for this child. [15] If child support is paid directly to the child without the involvement of the Family Responsibility Office, the child will beput in the unenviable position of constantly asking parents for support and put in the middle of any child support dispute. [16] For the academic year, September 2010 through August 2011, the uncovered educational post-secondary educational costfor the child is $22,359.80 less the $2,000 payment made directly by the father, less the $10,800.00 child support paid by the father.

Itherefore fix

section 7 extraordinary expenses arrears payable by the father to the mother for the academic year 2010- 2011 at $2,188.00payable at the rate of $200.00 per month until paid in full. [17] With respect to the academic year September 2011 through August 2012, I estimate that the same amount of expenseswill incur, although the child has used all of her bursaries and loans and requires some money for her personal needs, which can beobtained through part-time employment and I therefore impute the uncovered

section 7 extraordinary expenses costs at approximately$20,000 with the father’s contribution being $12,000 per annum and the mother’s $8,000 per annum. [18] The father’s annual income for 2011 is $96,120.00. The table amount for one child is $846.00. Commencing on 1September 2011 and payable on the first day of each month thereafter, he shall pay the mother child support of $846.00. As well, heshall pay the mother

section 7 extraordinary expenses his proportionate share of $154.00 per month. In

summary his monthly childsupport obligation commencing on 1 September 2011 is as follows: Table Amount $846.00 2010-2011

section 7 arrears $200.00 2011-2012

section 7 contribution $154.00 Total $1200.00 [19] Unless this order is withdrawn from the Director’s Office, at the Family Responsibility Office, it shall be enforced by theDirector and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. [20] This order bears post-judgment interest at the rate of 3% per annum effective from the date of this order.

Where there is adefault in payment, the payment in default shall bear interest only from the date of default. [21] For as long as child support is paid, the payor and recipient must provide updated income disclosure to the other partyeach year, within 30 days of the anniversary of this order, in accordance with

section 24.1 of the Child Support Guidelines. [22] As the child’s post-secondary

section 7 expenses are not totally known for the academic year 2011 through 2012, thisorder may be varied at the conclusion of the academic second year and may continue if the child is further engaged in educationalpursuits in the third or fourth year. [23] If costs are an issue, I will receive submissions.