Willcocks v. Lien, 2011 ONCJ 433

Orangeville Registry No. 7/2011 DATE: 2011·VII·11 CITATION: Willcocks v. Lien , 2011 ONCJ 433 ONTARIO COURT OF JUSTICE BETWEEN: DEBRA ANN WILLCOCKS, Applicant, — AND — BRYAN RAYMOND LIEN, Respondent. Before Justice Bruce E.

Pugsley Heard on 29 June 2011 Reasons for Judgment released on 11 July 2011 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Adult child — Application of guidelines as if child still minor — Payor father became suspicious of school attendance of daughter (now 19 years old) after school refused to disclose girl’s attendance records once she turned 18 — He stopped support payments when he learned that, during second term of grade XII, she was taking only one credit at high school — Mother applied to court for order to re-start support payments — Court drew following conclusions: 1.

Father offered nothing to justify departure from subsection 3(2) of Child support Guidelines with its presumption of propriety of table amount of support for adult child; 2. Child was certainly in full-time attendance to end of first term of grade XII and was entitled to full table amount of support until end of first term; 3.

Court treated second term of grade XII as no different than summer holiday interval between academic years, during which child support was not suspended but child would be expected to seek out part-time job until classes started in autumn — In this case, mother and child lived in very small town without public transit where prospect of finding time-limited and part-time job was extremely difficult for young adult who had to compete with non-adult teenagers who could be paid lower scale of minimum wage 4.

Since child was living at mother’s home until start of college, mother was entitled to receive support payments SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Adult child — Attendance at post-secondary education facility away from home — Residual child-care costs of custodial parent — At motion for interim support, court agreed with custodial mother that, once child (now 19 years old) started college (about 1-hour drive from home), mother’s child-care expenses at home would be greatly reduced, but would not drop to nil — It would be reasonable for child to return home on school breaks and holidays and perhaps on weekends, which meant that, even as adult, child would still be partly dependant on accommodations offered by mother — Father would be responsible for paying his share of child’s educational costs under

section 7 of Child Support Guidelines but he should also pay some child support to mother for ongoing costs associated with child’s care — For purposes of this interim ruling, court estimated mother’s costs at 20% of table amount under guidelines. STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended], subsection 3(2) , clause 3(2)( a ), clause 3(2)(

b) and

section 7 . Family Law Act , R.S.O. 1990, c. F-3 [as amended],

section 56 . Douglas J. King ............................................................................. counsel for the applicant mother Respondent father, Bryan Raymond Lien ............................................................. on his own behalf

[ 1 ] JUSTICE B.E. PUGSLEY:— The applicant (mother) (the moving party) seeks an order that the respondent (father) re- commence paying child support for the adult child of the parties, Jessica Lien (born on 8 April 1992). The applicant states that the child was in full-time attendance at high school until the end of the first term in January 2011, picked up the last credit that she needed to graduate high school in the spring of 2011 and intends to go on to college this fall.

The respondent states that Jessica had poor attendance at high school and that, as of February 2011, was only taking one credit at high school and so could hardly be said to be attending school full-time. If the child goes on to college, then the respondent states that he would be happy to help with the cost of college as long as the child is in a position of dependency. He does not accept that this is necessarily so, however. [ 2 ] The parties past relationship with respect to their separation is governed by a separation agreement entered into on 15 July 2002, after a twenty-year cohabitation.

Both parties had legal advice at the time of the agreement. Jessica is their youngest child and the subject of this motion to change by the applicant.

The applicant decided to come to court when the respondent unilaterally stopped paying support for Jessica at the end of 2010, citing a terminating event under the agreement. [ 3 ] The applicant wants child support to continue for the final term of grade XII and that some support be payable to her on account of Jessica after the child moves out to go to college, on the basis that the child’s home is with the applicant and so the applicant will have some ongoing costs associated with Jessica’s care even while the child resides elsewhere for school. [ 4 ] The respondent was obviously concerned with what he saw as Jessica’s lack of application during her final couple of years at high school.

He had periodically obtained her attendance records directly from the school until the child turned 18, after which the school refused to disclose this information citing the child’s privacy as an adult. Presumably, this new factor suggested to the respondent that the applicant and child were hiding something from him.

When he learned that the child was only going to take one credit starting in the second term of grade XII, he read the agreement, saw that it provided that child support ended when the child ceased to be in full-time attendance at school (paragraph 5(f)(iii)), determined that taking one credit was not “full-time” and so stopped support. [ 5 ] The respondent’s suspicions about post-secondary school were further aroused when he saw (in one of the exhibits attached to the applicant’s affidavit) an apparent “smoking gun”.

Attempting to estimate for the court the cost of Jessica’s accommodation during college, the applicant provided an e-mail exchange with a perspective landlord as to the cost of accommodation. Unfortunately, Jessica’s reply stated that she was going to reside in the apartment with her “fiancé”, who was employed. The applicant explains by way of submission that Jessica was lying to the landlord about a co-tenant boyfriend because the landlord wanted to rent to a couple. In fact, there is no fiancé and Jessica plans to live alone.

Of course, this only adds to the respondent’s suspicions that the applicant and the child are conspiring to get support from him that he is no longer obliged to pay. Arguably as well living in such a relationship could be a terminating event under paragraph 5(f)(ii) of the separation agreement (“ceases to reside full time with the applicant”). [ 6 ] The source of this dispute appears to be a general lack of communication between the parties and the respondent’s failure to obtain legal advice.

The respondent in his submissions stated that Jessica and the applicant only communicate with him “when they want something”. He does not think that he should pay support at the full rate if the child is only taking one credit, and not to the applicant at all when Jessica moves out to college. He is fine with helping pay for college. [ 7 ] The first issue with which I will deal is the nature of this motion: it is brought for a temporary order dealing with: (

a) continued child support, (

b) payment of arrears since the respondent stopped support, and (

c) a contribution under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended (“the guidelines”), with regard to the child’s college expenses. I am not deciding the final order here. [ 8 ] Next, I note that Jessica’s support, although initially stipulated in the separation agreement dated 15 July 2002, is subject to the overriding authority of the guidelines pursuant to

section 56 of the Family Law Act , R.S.O. 1990, c. F-3, as amended. [ 9 ] Finally I note that the guidelines themselves deal with child support for an adult child at subsection 3(2) . This subsection requires that a court apply the guidelines as if the child is under the age of majority, or, in the court’s discretion, fix an appropriate amount considering the factors set out in clause 3(2) ( b ). [ 10 ] I turn then to the specific facts of this case.

In 2002, the parties agreed that support for Jessica (and her older siblings) would end if Jessica was older than the age of majority and no longer in full-time attendance at an educational institution. Jessica turned 18 on 8 April 2010. No doubt, she was then in high school. The respondent takes no issue with the time before the end of 2010 even though he was not happy with what he saw as Jessica’s failure to apply herself in school.

I take it as agreed between the parties that the issue of Jessica’s school status only applies after the end of the first term of the 2010-2011 school year when she found that she needed another high school credit and continued in grade XII until this past June. [ 11 ] I note that the first term of grade XII ended at the end of January 2011, not at the start of that month, but that the respondent’s child support was stopped at the end of December 2010.

I take it as settled then that the respondent even on his view of the facts had to pay child support for January 2011. [ 12 ] The applicant seeks chart child support under the guidelines from January 2011, to September 2011, and then a lesser amount to acknowledge that she must maintain a home for the child for the times when Jessica is not going to college. At worst, the respondent suggests that he should not pay full chart support during the high school term given that the child was only taking one course.

Further in his view, there should be no support payable at all to the applicant after Jessica starts college. Both parties acknowledge, in part, the application of subsection 3(2) of the guidelines since neither party seeks full-time chart support all the time.

[ 13 ] From my perspective, the fact that Jessica took only one credit in the second term of 2010-2011 only effects her eligibility for regular chart support to the extent that she, as an adult, could have contributed to her own expenses by part-time employment when she was not in class. Child support for public school children — even teens — under the age of majority is not suspended during the summer if they work or while they are on holiday. The policy of the guidelines is that the chart amount is presumptive but is subject to adjustment where the child is an adult.

In my view, the focus of the court with regard to the time when Jessica’s schooling was reduced and over the summer months before college, should be on her position of dependency as a student between high school and college. As an adult, Jessica, too, has an obligation to try to provide for her own needs to a reasonable extent. What is reasonable depends on the circumstances of each case and on the evidence presented. [ 14 ] No information is provided by the applicant as to Jessica’s attempt to find work other than her statement that temporary work has been difficult to find.

When the child attends college full-time in the fall it is not unreasonable to expect her to concentrate on her studies rather than emphasize her ability to find part-time employment, but the applicant is seeking chart support for the months before college, a time when I can properly consider the child’s own resources, even, in the appropriate circumstances, to the extent of imputing an income to her. [ 15 ] With regard to the applicant’s request to enforce full chart support from January 2001, until the start of college in September of this year, I intend to follow the following process. [ 16 ] First, subsection 3(2) of the guidelines presumes a chart support figure unless I consider that approach to be inappropriate in the facts of this case. [ 17 ] Second, as Jessica was in full-time school for the month of January 2011, full chart support is payable for that month. [ 18 ] Third, as Jessica was in school, but only taking one class, from February 2011 until June 2011 inclusive, she could have had a part-time job.

Shelburne, where the child lives, is a town of some 4,500 persons and there is no public transit. There are limited jobs available for young persons such as the child who cannot commit to being available to work into the fall of the year. As an adult, the child is entitled to a minimum wage of $10.25 per hour. Students (the main group against whom the child is competing for a part- time job) are entitled to a minimum wage of $9.60 per hour. It is scarcely a surprise then that the applicant describes the child’s job search as being difficult.

Further, Jessica is committed to helping to fund her own college education. Any money that she has (or could have) made since February, and can make over this summer, will be money properly used by her towards her own college expenses this fall. I will not consider offsetting the child’s potential income against child support for the period between February and September by some nominal sum that she “could have made”.

Any money she has made will be used to help with her fall expenses, to the benefit of both parents. [ 19 ] Fourth, the applicant’s presumptive right to the payment of chart child support by the respondent was not lessened between February and September as the child was (and is) still living with her on a full-time basis. [ 20 ] I observe that the guidelines are not intended to be a perfect and fine-tuned means by which a fully considered and fair child support amount is reached on a case-by-case basis.

The policy under which the guidelines were created aims at the replacement of a complex, lengthy and uncertain case-by-case model, with the certainty of fixed and rarely departed from chart support numbers. The guidelines do not therefore represent perfection, but are aimed at a speedy and certain resolution of a common issue between separating parents. [ 21 ] I have not been convinced by the respondent that the chart amount presumptively continued by clause 3(2)(

a) of the guidelines ought to be departed from in the time frame under consideration here. In other words, I find on the facts before me that the chart amount payable by the respondent for Jessica should continue to be paid up until the start of September of this year. [ 22 ] One point that must be considered before I continue to deal with the issues between the parties is whether the respondent’s obligation to continue to pay child support when the child is in college is ended by evidence that the child will then be living with her “fiancé” and thus no longer dependent on her parents.

The respondent points to the e-mail communication between Jessica and a potential landlord wherein Jessica tells the landlord just that: that she will be living with her fiancé who works in the daytime. The applicant states that there is no fiancé, that Jessica will be living alone and, in submission, that Jessica was lying to the prospective landlord in a clumsy way in order to try to fit that landlord’s qualifications to be a tenant in that home ( i.e. , “couples only”). Read in the latter context, the e-mail could have that meaning.

In any event, I accept the sworn evidence of the applicant that the child will not be forming her own family unit independently of her parents. Should this change, the parties are reminded that this is only an interim order. [ 23 ] The next issue to which I turn here is whether the applicant ought to continue to receive child support from the respondent while Jessica is in college.

The applicant seeks a reduced sum and the respondent seeks to pay no such support. [ 24 ] While Jessica will be staying out of the home to go to college, it does not follow that the applicant has no expenses related to the child during the year. Jessica will be going to college in Brampton Ontario, about a one-hour drive from home. Without a doubt, she will be returning home on school breaks and holidays and perhaps on weekends.

As an adult, she will still be partly dependant on the accommodations offered by the applicant and funded in part by child support payable by the respondent. [ 25 ] No budget has been filed with respect to the child’s expenses in the applicant’s home on a yearly basis after the child has started college, nor has the actual expense of the child’s college accommodation been determined.

Clearly, while the child is at college, the applicant’s child-care expenses at home will be greatly reduced, but I am not satisfied that they will be fully non-existent. [ 26 ] I have already commented that it is reasonable to allow the child to concentrate on her studies at college without presuming an ability to earn any income from employment during the school year other than a nominal sum.

Any money earned by the child after 1 September 2011 until the end of college ought to be considered when dealing with the child’s overall contribution to her college expenses from all sources available to her, including capital, income and loans. I do not consider the adult child’s potential income in my resolution of the issue of the amount of child support properly paid by the respondent to the applicant starting in

September 2011. [ 27 ] In the absence of detailed evidence here, I will decide this issue based on a reasonable percentage of the regular chart support amount that the respondent would have paid had the child remained living at home. In my view, it is reasonable that the applicant’s child related expenses on a yearly basis should be twenty percent of the regular chart amount under the guidelines for the period commencing on 1 September 2011.

Had more evidence been provided, this figure might have been higher. [ 28 ] The final issue before me is the allocation of Jessica’s reasonable college expenses between the applicant, the respondent and Jessica. The figures posited by the applicant are essentially unanswered by the respondent and, frankly, seem to be a reasonable estimate of the costs associated with living away from home to attend college.

As the summer progresses, the numbers will become more solid — for example as accommodation is secured — but, for the purpose of this motion, I find the applicant’s figures compelling. [ 29 ] The applicant’s annual income is $39,000.00. The respondent’s annual income is $67,249.82. The cost of first year college is $14,200.00. I agree that Jessica, from all sources, ought to be responsible for 40 percent ($5,680.00) of her college expenses. This leaves 60 percent ($8,520.00) to be divided pro rata between the parties.

Currently, this would be on the basis of the applicant’s paying 36.7% of the parents’ share and the respondent paying 63.3% of the parents’ share. The result is that for first year the respondent’s share of the child’s

section 7 guideline expense (for college) would amount to $5,393.16 over and above regular child support as adjusted in paragraph [27], above, or $449.43 per month on a yearly basis starting on 1 September 2011, and continuing until the payment due on 1 August 2012. [ 30 ] I observe that this order substantially gives effect to what the parties agreed to when they executed the separation agreement here in 2002.

Had communication been enhanced and suspicion been reduced, this motion would not have been needed. [ 31 ] I have not yet heard any submissions from the parties with respect to costs, nor was I given any offers to settle.

If the parties are unable to agree upon the costs of this motion, submissions in writing shall be served and then filed through the court office on this basis: the applicant within ten days of the receipt of this decision; the respondent within five days of his receipt of the applicant’s costs submission; and reply if any within five days of the applicant’s receiving the respondent’s costs submission.

Submissions shall not be longer than one double-spaced page and shall attach any offers to settle or any document needed to support the costs submission. [ 32 ] In the result, I make the following temporary order here (not on consent): 1. Commencing on 1 January 2011 and on the first day of each month up to and including 1 August 2011, the respondent shall pay to the applicant for the support of the child of the parties Jessica Lien (F) (born on 8 April 1992) the monthly sum of $623.00 per month. 2.

Commencing on 1 September 2011 and continuing on the first day of each month thereafter until this order is varied by further court order or by the written agreement of the parties, the respondent shall pay to the applicant for the support of the said child the monthly sum of $124.60 per month. 3. In addition, commencing on 1 September 2011 and continuing on the first day of each month thereafter until this order is varied by further court order or by the written agreement of the parties, the respondent shall pay to the applicant as his share of the said child’s college expenses under

section 7 of the Child Support Guidelines the further sum of $449.43 per month. 4. This order is based upon the applicant’s annual income of $39,000.00 and the respondent’s annual income of $67,249.82, applied to the said guidelines as adjusted by these reasons to consider the status of the child as an adult. 5. A support deduction order shall issue. 6. Costs are reserved as aforesaid. 7. Adjourned to 7 September 2011, to be spoken to, as previously ordered.