Clark v. Clark, 2014 ONCJ 493

COURT FILE No.: D149/12 DATE: 2014-08-29 Citation: Clark v. Clark , 2014 ONCJ 493 ONTARIO COURT OF JUSTICE BETWEEN: KIMBERLY SUE CLARK Applicant — AND — DAVID J. CLARK Respondent Before Justice M.A. McSorley Heard on July 24, 2014 Reasons for Judgment released on August 29, 2014 Mr. C. Potter ......................................................................................................... for the applicant Mr. D. Ashford .................................................................................................... for the respondent M. A.

McSorley J.: Introduction: [ 1 ] The matter before the court involved a motion to change a separation agreement dated May 8, 2008, brought by the applicant mother for child support and contribution from the respondent father toward s. 7 expenses incurred by the children to attend post secondary school. Background: [ 2 ] The parties were married to each other on June 29, 1991 and separated on June 2, 2007.

They are the biological parents of the children, Meghan Lyndsay Clark, born November 21, 1991, Timothy James Clark born October 5, 1993, and Tara Lee Michelle Clark born October 14, 1994. [ 3 ] The parties entered into a separation agreement on May 8, 2008. The agreement provided, in part, that:

a) the parents would have joint custody of the children, with the children residing primarily with the mother;

b) the father would have reasonable access to the children;

c) commencing February 1, 2008, the father would pay to the mother for the support of the children, the sum of $1,747.00 per month based on the Child Support Guidelines and the father’s annual income of $95,000.00;

d) the father would maintain the children as beneficiaries of his group health insurance program offered by his employer;

e) the father would pay to the mother for her support the sum of $400.00 per month commencing January 1, 2008;

f) the father would maintain the mother on his group health insurance program offered through his employer for so long as he was permitted to do so under the terms of the program; and

g) the quantum of spousal support was reviewable upon one of the children ceasing to be a dependent and the support was to be adjusted based on the financial circumstances of the parties at the said time. [ 4 ] All of the children have entered post secondary education. There was nothing in the agreement that dealt with contribution to s. 7 expenses and the father has provided nothing to the mother or the children to assist in these expenses.

[ 5 ] At the time of the agreement the father was employed full time at Electro-Motive in London Ontario. In January 2012 the employees of Electro-Motive were locked out of their employment. In March 2012, the plant was closed permanently. Mr. Clark was terminated from his position effective March 1, 2012. In April 2012, he received a severance package of $79,856.00. In April 2013, he obtained a job at the Cami plant in Ingersoll, where he continues to be employed to the present. [ 6 ] At the time of the agreement, the mother was not employed.

The mother suffers from secondary, progressive Multiple Sclerosis and had been diagnosed with this disease during the marriage. She is unable to work as a result and will never be in a position to maintain employment. Her only source of income is CPP disability in the amount of approximately $9,000 per year and spousal support. [ 7 ] The father continued to pay the mother $1,747.00 in child support and $400.00 in spousal support (total $2,147.00) per month until May 31, 2012. At that time he reduced the total support to $2,000.00 per month.

On January 29, 2013 an interim without prejudice order was made that the father pay to the mother for the support of the child Tara Lee the sum of $723.00 per month and $1,427.00 in spousal support, for a total of $2,150.00 per month. Although there was a termination date in the interim order, that termination date was extended and then made indefinite. [ 8 ] In September 2011, Meghan entered a two year Recreation and Leisure Program at Conestoga College. She completed this program in April 2013.

In her motion, the mother sought only a 67% proportionate share of Meghan’s 2012 – 2013 college costs. [ 9 ] In September 2012, Timothy entered a Police Foundations Program at Niagara College. The mother sought a 67% share of Tim’s net college costs for the 2012-2013 school year; 2013 – 2014 school year; 2014-2015 school year; and four months child support for Timothy for the months May to August 2013 inclusive that Timothy lived with his mother between first and second year at college [ 10 ] In September 2013, Tara Lee entered a two year Television Broadcasting program at Fanshawe College.

The mother sought a 67% contribution to the net college costs for Tara Lee for the years 2013-2014 and 2014- 2015. She also sought continued child support for Tara Lee. Position of the Parties: [ 11 ] The applicant mother’s position was that she is both entitled to and in need of spousal support from the respondent father. She also submitted that Tara Lee continues to be a child as defined by the Family Law Reform Act and is in need of child support and assistance with her post secondary school expenses.

With respect to the older children, the mother sought only assistance with their post secondary school expenses and a four month period of child support for Timothy when he resided with her between first and second year of his college courses.The mother submitted that income should be imputed to the respondent father in the amount of approximately $80,000.00 each year since 2012 and spousal and child support be determined on that amount. [ 12 ] The father agreed that Tara Lee continued to be a ‘child’ for the purposes of child support.

His position regarding s. 7 expenses was that he had always advised his children that he could not afford to pay for post secondary education and that they ‘were on their own’ when it came to those expenses. He further took the position that his income in 2013 was not $80,000 but closer to $60,000 and that the child and spousal support should be based on that number for 2013.

He also submitted that there should be no child support for Timothy for the four months that he lived with his mother during the summer of 2013, because he had overpaid child support for many years when the amount was based on an income of $95,000.00 per year, which he never earned. The Issues: [ 13 ] The issues before the court are:

a) Has there been a material change in circumstances that would result in a change in the amount of support and a contribution to s.7 expenses;

b) What income should be attributed to the respondent father;

c) What monthly child support should the respondent father pay for Tara Lee;

d) Should there be a retroactive amount of child support payable by the father to the mother for Timothy for the months May to August 2013;

e) For which s.7 expenses should the respondent father be liable and in what amount;

f) How should retroactive support be paid; and

g) What is the appropriate quantum of spousal support? The Law: [ 14 ] Pursuant to the variation provisions in s. 37 of the Family Law Act both spousal and child support may be varied if there has been a material change in circumstances. Section 37(2) indicates that where the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances 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 under

section 34 that the court considers appropriate in the circumstances referred to in s. 33 [15] Section 37(2.1), states that if the court is satisfied there has been a change in circumstances within the meaning of thechild support guidelines, 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. [16] Pursuant to s. 37(2.2.), if the court makes an order under subsection 37 (2.1), it shall do so in accordance with the childsupport guidelines. The court is directed to s. 14 of the Child Support Guidelines to determine what constitutes a change incircumstances.

Section 14 states the following: “14. Circumstances for variation. -- For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act(Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

a) In the case where the amount of child support includes a determination made in accordance with the table, any change incircumstances that would result in a different order for the support of a child or any provision thereof.”

b) In the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

c) In the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, enacted by

section 2 of chapter1 of the Statutes of Canada. (1977).

d) In the case of an order made under the Act, the coming into force of subsection 33(11) of the Act. [17] The presumptive rule regarding child support for a child who is under the age of majority, is that the child support will bebased on the applicable table and the amount, if any, for s. 7 expenses. Section 3(2) deals with support for a child who is over the age ofmajority (18). In that circumstance, the amount of child support is:

i) the amount determined by applying the Guideline as if the child were under the age ofmajority; or ii) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard tothe condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support ofthe child. [18]

Section 7(

e) makes it clear that the court may order an amount to cover all or any portion of post-secondary educationexpenses, which may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and thereasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior tothe separation.

The guiding principle in determining the amount of the shared expense is that it should be in proportion to theirrespective incomes, after deducting from the expense, the contribution from the child. [19] Both parties provided case law on the issues to be determined by the court. The mother referred to the case of Thompsonv. Thompson 2013 ONSC 5500, a decision of Chappel J. of the Superior Court of Justice. In paragraph 84, Chappel J. refers to s. 16 ofthe CSG which provides that a spouse’s annual income is to be determined by sections 17 to 20 of the Act.

She goes on to state thatsection 16 does not require the court to ‘blindly’ use the previous year’s income for determining child support, but that the court shoulddetermine the current income of the payor spouse. In determining current income, the court should rely on the most current informationavailable. [20] The case of Coghill v. Coghill , a decision of Wright J. of the Superior Court of Justice, the sameconclusion was reached regarding the means by which a court should determine income for the purposes of support.

At paragraph 27,Wright J. indicated that while counsel may use the income shown on the previous year’s income tax return as a tool for negotiatingsupport, the court is bound by s. 16 of the CSG, and should consider all income from all sources in order to determine current income.

Wright J. referred to Payne’s Handbook on the Guidelines and indicated, (in part) that the court may consider the spouse’s annualincome by reference to the obligor’s last income tax return or by extrapolation from the year to date earnings or pay stubs. [21] It was certainly the mother’s position that while retroactive support could be determined based on the father’s previousincome tax returns; current support should be based on his history of earnings along with an extrapolation of pay stubs provided for2014. [22] On the issue of the contribution to be made by the children themselves to their post-secondary educations, the motherreferred to the case of R.P.S. v.

K.J.S. a decision of Stevenson J. of the Superior Court of Justice. Justice Stevenson considered the caseof Roth v. Roth, 2010 ONSC, in which Justice Ricchetti set out the principles applicable to post-secondary expenses as follows:

a) Generally, post- secondary education is considered a necessary expense in the best interests of the children. Certainly there was noargument to the contrary in this case.

b) The reasonableness of the expense considers the means of the spouses or former spouses and the means of the child.

c) Children have an obligation to make a reasonable contribution to their own post-secondary education or training. This does notmean that all of a child’s income should necessarily be applied to the costs of the child’s further education. The court should considerwhether the child should be entitled to some personal benefit from the fruits of his or her labours.

d) Grants, scholarships and bursaries are generally treated as a reduction of the education expense as they involve a net transfer ofresources to the child without any obligation of repayment.

e) A student loan is not a ‘‘benefit’’, within the meaning of section 7(3) of the Guidelines that must be automatically taken intoaccount in determining the amount to be ordered in respect of s. 7 expenses. A student loan may constitute, in whole or in part, a‘‘contribution …from the child’’ to post-secondary education expenses within the meaning of section 7(2) of the Guidelines and therebyexclude or reduce the need for any parental contribution. This turns on the reasonableness of taking account of any such loans in thecircumstances of the case.

f) In determining the amount of an expense or the contribution thereto under

section 7 of the Federal Child Support Guidelines, theguiding principle is that, once the court has determined the appropriate amount of contribution by the spouses or former spouses, thespouses or former spouses should share the expense in proportion to their respective incomes after deducting any contribution from thechild, or other liable parent.” [23] Stevenson J. also referred to the case of Jordan v.

Stewart, 2013 ONSC 902 , where Czutrin J. stated atparagraph 239: “ Most courts are reluctant to allow the payor parent to avoid child support obligations by requiring that the child rely on student loanssince student loans are just costs that must be repaid when the child finishes school (Caterini v. Zaccaria, 2010 ONSC 6473 (CanLII,[2010] O.J. No 5291, at par. 203) [24] A similar result was reached in the case of S. (M.) v. A. (D.M.), 2012 CarswellNB 413, a decision of the New BrunswickCourt of Appeal.

In that case the father submitted that the daughter should be required to obtain student loans in order to contribute toher education. The court held that “student loans ought to be required only when the means of the child combined with the means of theparents leave a shortfall.” The court also noted that a student debt only delays the cost of education and that it is not a reduction. Whena student funds his/her entire university costs through student loans, the parents have effectively contributed nothing to thechild’s education. (Emphasis mine) [25] The father filed a case brief for use on the motion.

The first case in his book of authorities was the decision of theOntario Court of Appeal in 1999 in Andrews v. Andrews (ON CA), 45 O.R. (3d) 577, [1999] O.J. No 3578. In thatcase, the s.7 educational expenses related to private school costs for three children. At paragraph 24, the court indicated that the orderfor s.7 expenses had to satisfy three criteria:

a) The educational expenses must be extraordinary;

b) The order must take into account the necessity of the expense in relation to the best interests of the children; and

c) The order must also take into account the reasonableness of the expense, having regard to the means of Mr. and Mrs.Andrews and their spending patterns for the children during cohabitation. [26] The Court of Appeal held that the educational expenses were extraordinary; that the expenses were necessary for the bestinterests of the children; and that given Mr. Andrews’ means, the expense met the reasonable criterion. [27] It should be noted that there is a distinct difference between the necessity and reasonableness of post-secondary educationcompared to private elementary or high school.

A family who cannot afford private elementary or high school for their children can stillbe assured that their children will receive a good education through the public school system. Post-secondary school is not availablethrough a free public system; it must be funded by the students and their families; and has become a necessity in today’s economicmarket. [28] The second case in the father’s book of authorities also considered the issue of ‘reasonableness’ in relation to s. 7expenses. Neither the pages nor the paragraphs of the decision are numbered.

However on the last page of the judgment, the court notesthe following: “When assessing the reasonableness of the “extraordinary” expense taking into account the means of the parties, the judge will considerfactors such as capital, income distribution, debt load, third party resources which impact upon a parent’s ability to pay, access costs,obligations to pay spousal or other child support orders, spousal support received and any other relevant factors. The exercise is akin tothe conventional “ability to pay” approach.

For these “add on” expenses, the Guidelines do not presume an ability to pay.” [29] The case at Tab 6 of the father’s book of authorities stands for the proposition that the court has some discretion indisallowing certain expenses claimed as s.7 expenses. In that case, D’Urzo v. D’Urzo (ON SC), [2002] O.J. No. 2415, [2002] O.T.C. 419, 30 R.F.L. (5th) 277, the court found that the child’s driving training expense was not an “extraordinaryexpense” contemplated by s.7(1) of the Guidelines and that the child’s tutoring expense would not be allowed because there was no

evidence of the circumstances in which the expense was incurred, of any discussion between the parents as to its desirability, or of the“necessity of the expense in relation to the child’s best interests. [30] The case at Tab 5, Fisher v. Fisher, 2008 ONCA 11 , 88 O.R. (3d) 241 and the

article by Professor RollieThompson at Tab 7 dealt with the issue of spousal support. Specifically the case and the

article stressed the symbiotic relationshipbetween amount and duration of spousal support. At paragraph 109 of the Fisher decision, the Ontario Court of Appeal noted that usingone part of the formula without the other would undermine its integrity and coherence. It was suggested that when restructuring spousalsupport, duration can be extended by lowering the monthly amount of support. [31] The balance of the cases in the father’s book of authorities were neither referred to nor highlighted in any way.

Analysis: [32] The court intends to deal with the issues in the order set out at paragraph 13. [33] Has there been a material change in circumstances? [34] There is no question that a material change in circumstances has occurred since the parties entered into the separationagreement. The children are all older. Two of them are living away from home to attend post-secondary education. The youngest childis also in post-secondary school but continues to live with her mother. They are all incurring costs of education. The children and themother are all contributing to those costs.

The mother has only been able to assist the children with their post-secondary costs by cashingin RRSPs, which will affect her retirement income in the future. This is notable because when the father retires from his employment,there is no doubt that he will seek to reduce the amount of spousal support in accordance with his retirement income. The mother’sability to contribute to her own support when the father retires has been significantly reduced because she has used part of her retirementincome to assist the children with their education costs.

While she has been assisting the children, the father has provided nothing to thechildren to assist them with their education. [35] A further significant change in circumstances is that the father was terminated from his employment along with all otheremployees of Electro-Motive in January 2012. He was provided with a severance package in April 2012 and in April 2013 he found newemployment at the Cami Automotive plant in Ingersoll, where he continues to be employed. As a result, he has experienced a change inhis income.

At no time since 2012 has the father earned $95,000.00, the amount on which child support was based. These changesrepresent a material change in circumstances that requires the court to examine the issues of spousal and child support and contribution tos.7 expenses. [36] What income should be attributed to the father? [37] Before quantum of support and s.7 expenses can be determined, the court must ascertain the level of income received bythe father for the years 2012, 2013 and 2014.

It is necessary to deal with 2012 and 2013 together because the majority of the changes tothe father’s income occurred during those years. [38] The father was terminated from his position permanently when the plant shut down in March 2012. In April 2012, hereceived a severance package of $79,856.00. It was not until April 2013 that the father was able to once again secure full timeemployment. In 2013, after obtaining full time employment, the father earned $60,380.00.

The mother argued that since the severancepackage was obtained in April the court should add part of that severance package to the first three months in 2013. Such a calculationwould bring the father’s 2013 income up to just over $80,000.00. [39] At first glance, this seems like a reasonable attribution of income for Mr. Clark in 2013. This would be especially truehad Mr. Clark been earning an income in January, February and March of 2012. However, Mr. Clark was locked out of his employmentin January 2012. He had no other income during the first three months of 2012.

During that time he continued to pay the spousal andchild support that had been agreed upon. When he received the severance package, he had to pay bills that he had incurred during thefirst three months of 2012. The court must attribute the $80,000.00 to the entire year of 2012 only, because that amount represents hissalary for the year. [40] No part of the $80,000.00 severance package received in 2012 can be considered in 2013. To do so would mean that the$80,000.00 severance package was being spread over a period of 15 months.

This would result in an income of approximately$64,000.00 in 2012 and $76,000.00 in 2013. [41] Another method of looking at this issue is to add the actual income received in 2012 and 2013 and then dividing it bytwo. The total income for that two year period was $140,000.00. When divided by two, income of $70,000.00 per year would beattributed to Mr. Clark. [42] Mr. Clark did not earn more than $140,000.00 in the years 2012 and 2013. The court cannot attribute $80,000.00 to himin each of those years, as this would suggest that he had earned $160,000.00 in the two year period, which is not the case.

The courtcould average the amounts and attribute $70,000.00 in each year, or simply use the amounts shown on his income tax returns for thoseyears. Regardless of the method used, the result is the same. [43] The income for 2014 is slightly more problematic. Mr. Clark has not yet earned a full year’s income. His 2013 incomeonly covered nine months of employment. If the amount is divided by nine and then multiplied by twelve, it would produce the sum of$80,506.00 for a full year’s work. Based on a pay stub filed with the material covering the period January 1 to June 21, 2014, Mr.

Clarkhad earned $36,720.35 in the first 24 weeks of 2014. That amount is $1,530.00 per week. Multiplied over 52 weeks of the year, Mr.Clark is on track to earn $79,560.00 in 2014. Applying the case law noted above and looking at the history and extrapolation of his payreceived for part of 2014, it is evident that Mr. Clark should earn approximately $80,000.00 in 2014.

[ 44 ] Having regard to the severance package Mr. Clark received for the year 2012, the amount he would have earned had he been able to work a full year in 2013, and his current income, it is evident that Mr. Clark’s income for 2012 and 2014 was and will be approximately $80,000.00. However, he only worked for nine months in 2013 and as such his income was lower than his average pay at $60,000.00. As such, the court will attribute the sum of $80,000.00 to Mr.

Clark in 2012 and 2014 and $60,000.00 in 2013 for the purposes of spousal and child support. [ 45 ] What should the father pay for the ongoing child support for Tara Lee? [ 46 ] The father acknowledged that Tara Lee remains eligible for child support. She lives with her mother and is in full time attendance at an educational institution. Her support should be based on the father’s income in each of the years since 2012.

Based on the attribution of income set out in paragraph 44 above, the father should have paid child support to the mother for the child Tara Lee Michelle Clark, born October 14, 1994 in the amount of $724.00 each month in the year 2012 based on $80,000.00; $546.00 each month in the year 2013; and $724.00 per month from January 1, 2014, based on $80,000.00, until she is no longer entitled to child support. [ 47 ] Should there be a retroactive child support amount paid by the father to the mother for the child Timothy for the months May to August 2013? [ 48 ] The mother sought monthly child support for Timothy during the summer that he returned home from school and lived with her from May to August 2013.

There is no question that at that time Timothy remained a child entitled to support in that he was in full time attendance at school and was living with his mother during those months. However, there was no evidence about the increased costs of having Timothy live at home. There were no changes to the household. One could speculate that there would have been an increase in food costs, hydro costs and perhaps automobile costs.

These costs were not presented to the court. [ 49 ] The months for which the mother seeks additional child support occurred in 2013 at a time when the father’s income had been significantly reduced as a result of only working for nine months during that year. Support for one child (Tara Lee) on $60,000.00 was $546.00 per month. Adding support for Timothy for those months would mean a further payment of approximately $350 per month. There was no evidence that having Timothy home for the summer cost an additional $350 per month.

Further, having regard to the fact that the father has paid support for several years based on an income of $95,000.00 per annum, an amount he has never earned, and having regard to the fact that the court does not intend to adjust support back to 2008 to give credit for any overpayment of child support, it is not unreasonable that no additional child support be paid by the father to the mother for Timothy for the months May to August 2013. [ 50 ] For which s. 7 expenses should the respondent father be liable and in what amount? [ 51 ] This was the most contested issue on the motion to change.

As indicated earlier, the father deposed that he had always told the children he would not be able to afford post-secondary education and that they were on their own when it came to those expenses. Despite this, the court is obliged to determine if the expenses meet the definition of ‘extraordinary’, whether they are necessary in the best interests of the children and if they are reasonable. [ 52 ] There was no dispute that the costs being incurred by the children to attend post-secondary institutions were extraordinary costs or that these costs were not being incurred for the best interests of the children.

The father did not dispute the fact that obtaining a post-secondary education would be beneficial to the children and would assist them in becoming self-sufficient. He did argue that the costs were not reasonable given his income. His position was basically that if the children wanted to attend post-secondary education, they would have to pay for it through employment income earned during the summer months, bursaries, grants and student loans. [ 53 ] The court does not agree that the children should be obliged to fund 100% of their education with their incomes and with student loans.

The court agrees with Czutrin J. in Jordan v. Stewart , (noted above) that courts are reluctant to allow a payor parent to avoid child support obligations by requiring the child to rely on student loans that will have to be paid by the child when he or she finishes school. The court also agrees with the statement made by the New Brunswick Court of Appeal in S.(M.) v.

A.(D.M.) , (noted above) that “student loans ought to be required only when the means of the child combined with the means of the parents leave a shortfall and that when a student funds his/her entire university costs through student loans, the parents have effectively contributed nothing to the child’s education. [ 54 ] There is no question that the children are doing everything they can to contribute to their own education.

The mother has assisted them where she could; they have worked during the summer months and they have applied for student loans and received some part of those loans as grants that do not have to be repaid. The mother submitted that it was not unreasonable that the children be required to contribute to one third of the costs of their education. The court agrees that this amount is a reasonable contribution by the children to their education. Additionally, both Tara Lee and Timothy received a $1,300 grant through Mr.

Clark’s employment that was acknowledged by the mother and has reduced the costs of their education. [ 55 ] It is also important to point out that all of the children have or are attending Community Colleges where their costs are significantly lower than they would be if the children attended University. Tuition is lower and courses are shorter, thereby reducing the expense and the contribution needed from the father. In reviewing all of the educational expenses of the children, they are both necessary and reasonable. [ 56 ] Each of the children has different expenses related to their education.

Although the father did not agree to pay s.7 expenses, the material filed by both parties puts the father’s share of any s.7 expenses determined to be necessary and reasonable at 67%. The court intends to deal with each child separately. [ 57 ] Meghan: The mother sought contribution to only Meghan’s last year of college, that being from September 2012 to

April 2013. During that period, Meghan lived in residence at Conestoga College for the majority of the school year and returned to her mother’s home every weekend and on holidays. Meghan filed an affidavit indicating that her mother paid her car insurance, gas and transportation costs to and from Ingersoll, OSAP deferral fees, first and last month’s rent, a mandatory CPR/First Aid Certification course, extra college fees and moving expenses and provided groceries from time to time. The applicant mother is seeking only contribution to tuition and rental costs for Meghan for the year 2012 – 2013.

All of the figures presented have been rounded off. [ 58 ] In 2012-2013, Meghan’s educational costs were as follows: Tuition: $3,546.00 Rent: $3,600.00 Total: $7,146.00 Less 1/3 from Meghan: $2,382.00 Net Cost: $4,764.00 Father’s 67% Share: $3,192.00 [ 59 ] Timothy: In September 2012, Timothy enrolled in the Police Foundations in Niagara. He has finished two years of that course, but has not received all of his credits and must continue in the fall of 2014 to the spring of 2015. The mother sought contribution from the father to Timothy’s tuition, rent and books.

Timothy’s educational costs were as follows: 2012 – 2013 Tuition: $3,824.00 Rent: $5,000.00 Total: $8,824.00 Less 1/3 from Timothy $2,941.00 Net Costs: $5,883.00 Father’s 67% Share: $3,941.00 2013 – 2014 Tuition: $3,867.00 Rent: $3,600.00 Books: $ 769.00 Total: $8,236.00 Less 1/3 from Timothy: $2,745.00 Less Grant Received: $1,300.00 Net Costs: $4,191.00 Father’s 67% Share: $2,808.00 Estimated 2014 – 2015: Tuition: $3,902.00 Books: $ 400.00 Total: $4,302.00 Less 1/3 from Timothy: $1,434.00 Net Costs: $2,868.00 Father’s 67% Share: $1,922.00 Tim’s rent had not been established at the time of the motion.

In addition to the $1,922.00 share payable by the father, the father will also pay to Timothy 67% of Tim’s rent as proven in writing from his landlord for the months September 1, 2014 to April 30, 2015 inclusive. [ 60 ] Tara Lee: Tara Lee enrolled in her college program in September 2013 and attended for the full year. She is returning for her second year in September 2014. She will be finished her program in April 2015. There was some evidence that she might switch

programs, but having completed the program of her choosing, the issue of whether the father needs to continue to contribute to her educational costs remains an open one.

For now the court will deal only with her first and second year educational costs. 2013 – 2014: Tuition: $5,984.00 Books and additional costs: $1,578.00 Total: $7,562.00 Less 1/3 from Tara Lee: $2,521.00 Less Grant received: $1,300.00 Net Costs: $3,741.00 Father’s 67% Share: $2,506.00 Estimated 2014 – 2015 Tuition: $6125.00 Books and additional costs: $2,345.00 Total: $8,470.00 Less 1/3 from Tara Lee: $2,823.00 Net Costs: $5,647.00 Father’s 67% Share: $3,783.00 [ 61 ] Both Tim and Tara Lee are in their last year of College. Most of the expenses set out above relate to expenses already incurred and paid for.

Therefore, there is no urgency in meeting those expenses at this time. There is more urgency for the father to contribute to the college costs of both children in the coming school year and deal with arrears of s.7 expenses later. This will also allow the father to better budget for these expenses. It is highly unlikely that he could pay all of the arrears immediately along with his child and spousal support and contribute to this year’s school costs. [ 62 ] For the upcoming year, the father’s 67% contribution to Tim’s post-secondary costs is $1,922.00. Tim is likely able to pay tuition in two installments.

The father will pay to Tim the sum of $961.00 on September 15, 2014 and $961.00 on January 15, 2015 be applied to Tim’s educational expenses. In addition, once Tim has proof of his rental costs, the father will pay 67% of those costs to Tim from September 1, 2014 to April 30, 2015 inclusive. [ 63 ] With respect to Tara Lee, the father is obliged to continue to pay to the mother for the support of Tara Lee, the sum of $724.00 per month. The father’s 67% share of Tara Lee’s estimated net educational expenses for the year 2014 – 2015 is $3,783.00.

In addition to the monthly child support payable to the mother, the father is to pay to Tara Lee the sum of $1,891.50 on September 15, 2014 and $1,891.50 on January 15, 2015, to be applied by Tara Lee to her educational costs. [ 64 ] How should the retroactive s.7 expenses be paid? [ 65 ] The past amounts due are: For Meghan: $3,192.00 For Timothy: $3,941.00 and $2,808.00 For Tara Lee: $2,506.00 Total: $12,447.00 .

This amount will be designated as arrears of s.7 expenses and will be dealt with separately. [ 66 ] The arrears of s.7 expenses created by this order shall be paid commencing the first month that the father is no longer obliged to pay either child support or s.7 expenses for the children.

The monthly amount of $750 per month will be paid by the father to the mother and she will use the funds to refund her RRSPs and/or to provide the money to each of the children as she deems appropriate to assist them with their student loans. [ 67 ] What is the appropriate quantum of spousal support? [ 68 ] The final question for determination is the quantum of spousal support. The respondent father acknowledged that the applicant mother is unable to work and will never be in a position to support herself. He is aware that he will be paying spousal support indefinitely.

The separation agreement provided that the support should be reviewed when there is no further child support payable to

the mother by the father. Since January 2013, he has been paying $1,427.00 for spousal support and $723.00 in child support for Tara Lee, each month. He continued to pay this amount despite the fact that in 2013 he did not earn the $80,000.00 that he had earned in previous years. [ 69 ] The father argued that having regard to the fact that he will have to pay spousal support indefinitely, the amount should be lowered to take into consideration the length of time he will have to pay. Certainly, some of the case law and

article by Professor Thompson suggests that this is the method that should be used by the court. [ 70 ] According to the Divorce Mate calculations provided by the parties, spousal support with child support, based on the respondent’s income of $80,000.00 per annum suggested the following amounts: Low: $1,512.00 Mid: $1,727.00 High: $1,941.00 [ 71 ] The Divorce Mate calculations for spousal support with no child support, based on an annual income of $80,000.00 suggested the following amounts: Low: $1,440.00 Mid: $1,680.00 High: $1,920.00 [ 72 ] Having regard to the length of marriage, the recommended period for payment of spousal support is 8 to 16 years.

In this case, however, spousal support will be paid indefinitely. The separation agreement did not impose a limitation on the time period for spousal support and in the circumstances of this case, neither will the court. It is also notable that when the father agreed to pay the current amount of spousal support, he was aware that these payments would be necessary indefinitely.

It is necessary to at least consider both quantum and duration in order to ensure that both parties are treated fairly. [ 73 ] The respondent father also produced Divorce Mate calculations for the amount that is suggested should be paid with child support, when the payor’s income is $60,000.00 per annum. In that case the suggested amounts were as follows: Low: $621.00 Mid: $780.00 High: $951.00 [ 74 ] For the years 2012 and 2014, the court has attributed income to the father at the rate of $80,000.00 per annum. For the year 2013, the court has attributed the sum of $60,000.00 per annum.

Having regard to the fact that in the years, 2012, 2014 and 2015, the father is required to pay both spousal and child support along with monthly amounts to Timothy and Tara Lee for their education and considering that the spousal support will be indefinite, the court finds that the fair amount of spousal support should be in the mid-range of $1,727.00 per month. [ 75 ] For the year 2013, the spousal support will be in the high-range of $951.00 per month based on the father’s income of $60,000.00. This is due to the fact that the spousal support is the mother’s only income.

As a result of the reduction in the father’s income, she too must accept a reduced income, but anything less than the $951.00 per month would not allow her to maintain herself and her home for the children. [ 76 ] When the father no longer has to pay monthly child support or make contributions to ongoing s. 7 expenses (excluding the arrears), the spousal support should be varied to the high range of $1,941.00 per month, assuming the father continues to earn $80,000.00 per annum. If the father’s income changes materially, then the spousal support will have to be adjusted up or down in accordance with his income.

At that time, however, the mother will not have the benefit of receiving any child support and therefore should be paid a reasonable amount of support in order to meet her needs. It is also important to note that 100% of all support she receives at that time will be taxable in her hands and deductible to the father, which will increase his ability to pay. [ 77 ] For the reasons above, the following final order will issue: 1) The respondent father, David Clark shall pay child support to the applicant mother, Kimberly Clark, for the support of the child Tara Lee Clark born October 14, 1994 as follows:

a) For the months January 1 to December 31, 2012, inclusive, the sum of $724.00 per month based on his annual income of $80,000.00;

b) For the months January 1 to December 31, 2013 inclusive, the sum of $546.00 per month based on his annual income of $60,000.00; and,

c) Commencing January 1, 2014 and on the first day of each month thereafter, the sum of $724.00 per month based on his annual estimated income of $80,000.00 per annum, until the child is no longer entitled to support. 2) The respondent father, David Clark shall pay spousal support to the applicant mother, Kimberly Clark, as follows:

a) For the months January 1, 2012 to December 31, 2012, inclusive, the sum of $1,727.00 per month;

b) For the months January 1, 2013 to December 31, 2013 inclusive, the sum of $951.00 per month;

c) Commencing January 1, 2014 and payable on the first day of each month thereafter until he no longer is obliged to pay child support and/or ongoing s. 7 expenses, the sum of $1,727.00 per month; and

d) In the 1 st day of the month following the termination of all ongoing child support and s.7 expenses for the children, (excluding payment of s. 7 arrears, and on the first day of each month thereafter, the respondent father will pay to the applicant mother

for her support the sum of $1,941.00 per month, so long as he continues to earn approximately $80,000.00 per annum. 3) The respondent father will contribute 67% to the post-secondary costs of Timothy and Tara Lee for the school year 2014 – 2015 as follows:

a) The respondent father will pay to the child Timothy Clark born October 5, 1993, the sum of $961.00. on September 15, 2014 and January 15, 2015 to be applied by Timothy to his educational costs.

b) The respondent father will pay to the child Timothy Clark born October 5, 1993 67% of Timothy’s rental costs as proven in writing from Timothy’s landlord, payable on the 1 st day of each month from September 1, 2014 to April 30, 2014, inclusive.

c) The respondent father will pay to Tara Lee Clark the sum of $1,891.00 on September 30, 2014 and January 30, 2015 to be applied by Tara Lee to her educational costs. 4) The amount set out in paragraph 65 above totalling $12,447.00 is not payable at this time and shall not be enforced until the father’s obligation to pay ongoing child support and educational expenses for the children has ended.

Commencing on the first day of the month following the completion of college programs by Timothy and Tara Lee, to which the father is contributing , whichever occurs last, and on the first day of each month thereafter, the respondent father, David Clark shall pay to the applicant mother, Kimberly Clark, the sum of $500.00 per month until the amount of $12,447.00 is paid in full.

If Timothy and Tara Lee continue in school after completion of their current programs and no further contribution is being made by the father, he will commence payment of the arrears on the first day of the month following the cessation of his child support payments or s. 7 contributions. 5) As a result of the recalculation of spousal and child support in the year 2013, the father may have a credit for overpayment during that year.

Any such credit is to be applied to reduce the amount of s.7 arrears noted in subparagraph (4) above and is not to be used to reduce his obligation to pay ongoing child support and/or s.7 expenses. [ 78 ] In this case, success on the motion was divided. Under the circumstances I am not inclined to order costs for either party. However, if either of the parties has made an offer to settle that is better than or equal to the order made above, they may make submissions for costs, in writing, limited to 5 pages.

The applicant mother shall serve and file her submissions on or before September 26, 2014 and the respondent father shall serve and file his submissions on or before October 10, 2014. Reply submission, (if necessary) by the applicant mother are to be filed no later than October 20, 2014. If no offers to settle were made or if the offers are not better or equal to the order made above, the court will not order costs. Released: August 29, 2014 Signed: “Justice M.A. McSorley”