MacLean v. Taylor, 2014 ONCJ 449

COURT FILE NO. D70791/14 DATE: 2014-09-02 Citation: MacLean v. Taylor , 2014 ONCJ 449 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) DAVID MACLEAN ) ) ) Acting in person ) APPLICANT ) ) - and - ) JACQUELINE TAYLOR ) Acting in person RESPONDENT ) ) ) ) ) ) HEARD: August 25, 2014 JUSTICE S.B. SHERR ENDORSEMENT Part One – Introduction [ 1 ] Both parties have brought motions to change the child support provisions contained in the April 8, 2013 order of Justice Philip

Clay (the existing order). [ 2 ] The existing order (reached on consent) provided that support for the parties’ 21-year-old daughter (Shannon) be suspended effective September 1, 2012, as Shannon was no longer in full-time attendance in school. It also provided a mechanism for the respondent (the mother) to repay the applicant (the father) for his overpayment of support for the time Shannon was not in full-time attendance at school. The total overpayment ordered to be reimbursed was $10,382.50. The mother was ordered to pay $6,382.50 to the father in 3 equal instalments in 2013.

The sum of $4,000 was ordered to be retained by the mother to be applied to the father’s “initial contribution to Shannon’s tuition and other expenses related to school”, if she returned to school on or before September of 2014, failing which the mother would pay the $4,000 to the father on or before September 15, 2014. [ 3 ] Shannon returned to school full-time on January 6, 2014.

She will complete her course of study on October 3, 2014. [ 4 ] The mother seeks orders lifting the suspension of support, and requiring the father to pay child support, including a contribution to Shannon’s post-secondary school expenses for the period she will have been in school in 2014 (9 months).

She also seeks an order deferring the repayment of the $4,000 credit ordered by Justice Clay. [ 5 ] The father seeks orders that his child support obligation be terminated as of January 1, 2014 and that the mother be required to pay him the $4,000 overpayment of child support set out in the existing order. [ 6 ] This case was scheduled for a case conference on August 25, 2014. It quickly became apparent at the case conference that the material facts of the case were not in dispute.

The parties agreed to conclude the case conference and have the motions to change heard the same day based on their affidavits, financial statements filed and their submissions. The court did not express any opinion on the issues during the case conference. [ 7 ] The issues for this court to determine on these motions are:

a) Has there been a change of circumstances that supports changing the existing order?

b) Is the mother entitled to receive child support for Shannon for the period from January 6, 2014 until October 3, 2014?

c) If so, what amount of child support should the father should pay pursuant to the Child Support Guidelines (the guidelines)? In particular:

i) In calculating the presumptive guidelines amount what should Shannon’s contribution be to her post-secondary expenses, pursuant to

section 7 of the guidelines? and, ii) What amount, if any, should the father contribute to Shannon’s post-secondary expenses, pursuant to

section 7 of the guidelines? iii) Is the guidelines amount inappropriate due to Shannon being over the age of majority or the father earning in excess of $150,000 per annum? iv) If so, what child support payment would be appropriate?

d) What credits, if any, should the father receive towards his child support obligation? Part Two – Factual background

[ 8 ] The parties agreed on the following facts:

a) The mother is 51 years old. The father is 52 years old.

b) They lived together from 1991 to 1997. They did not marry.

c) They had two children together, Shannon, and an older daughter, who is now 23 years old.

d) They entered into a comprehensive separation agreement on October 13, 2000, resolving all issues between them.

e) On November 26, 2009, they consented to an order in the Ontario Court of Justice in Brampton. The order terminated child support for their older daughter. The father was also credited for overpayment of child support for a period of time that the older daughter lived with him. Child support continued for Shannon.

f) Shannon graduated from high school in June of 2012. She lives with her mother.

g) Shannon worked part-time from June of 2012 until December 31, 2013, earning gross income of about $1,000 per month.

h) Shannon returned to college full-time on January 6, 2014. She is taking an Advanced Therapist Course that will end on October 3, 2014. Shannon will have completed her education at that time.

i) The course is a worthwhile endeavor and is supported by both of them.

j) The total costs for the course are $12,700.

k) The costs for the course have already been paid. Shannon paid $1,700, the mother $1,500 and the balance of $9,500 was paid as a gift to Shannon from her older sister (whose partner’s extended family had won the lottery).

l) The father subsequently offered to pay his proportionate share of the $1,500 post-secondary school costs paid by the mother if the $4,000 payment ordered by Justice Clay was returned to him. The mother did not agree to do this, so the father has not paid this amount.

m) The father has employed Shannon part-time since January 1, 2014 and is paying her between $350-400 per month.

n) The father earns $178,000 per annum.

o) The mother earns $53,427 per annum.

p) The mother has repaid $6,382.50 to the father as ordered by Justice Clay in the existing order. She has not repaid the remaining $4,000.

[9] The father deposed that he has paid Shannon the sum of $2,200 directly in 2014 towards her living expenses. The mother had noknowledge of these payments. The court finds that the payments were made as stated by the father. [10] Both parties presented as loving, caring and responsible parents. They just disagree about the father’s support obligations. Part Three – Entitlement to child support [11] Subsection 37 (2.1) of the Family Law Act (the Act) permits the court to change a support order prospectively or retroactively ifthere has been a change in circumstances since the last order was made.

The fact that Shannon returned to school on a full-time basis is asufficient change in circumstances to assess whether the existing order should be changed. The other change in circumstances is thatmost of Shannon’s post-secondary costs were paid, as a gift to her, by her older sister. This was not anticipated when the partiesconsented to the existing order. [12]

Section 31 of the Act reads as follows: Obligation of parent to support child 31.

(1) Every parent has an obligation to provide support, for his or her unmarried child who is a minor or is enrolled in a full timeprogram of education, to the extent that the parent is capable of doing so. Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parentalcontrol. [13] The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchuk v.Rebenchuk, 2007 MBCA 22. [14] The father submits that his child support should be terminated effective January 1, 2014. He believes that Shannon’s absencefrom school for 18 months, together with the fact that she has worked part-time since she left school, is sufficient cause to end thesupport obligation. [15] The court disagrees.

The case law is clear that child support can be revived if a child takes a hiatus from their school studies.Each fact situation must be analyzed carefully and the time that the child was out of school must be considered. See: Lawless v. Asaro, (Ont. S.C.). Child support was revived for a child who had been out of school for a comparable amount of time toShannon in Haley v. Haley, , (Ont. Fam. Ct.). [16] In his paper, “Child Support for Adult Children: When Does Economic Childhood End?”, Professor Nicholas Bala suggests thatwhen the question of reinstatement arises, the courts should consider:

a) The time spent independently by the child. He suggests that time over two years may result in an unsuccessful attempt to bereinstated.

b) The child’s living arrangements while independent. If the child is living in a common-law relationship then it will become moredifficult to be reinstated.

c) The child’s employment while independent. If the child can be considered to be reasonably supporting themselves, then

reinstatement is more difficult.

d) Intentions while independent. If it seems that the child has made a clear choice about their future that does not include education,then they will have more difficulty obtaining parental support. [17] The case law has set out a variety of factors for the court to consider when determining the issue of entitlement to child supportfor an adult child.

These factors include: the reasonableness of the child's course of education and career plans, the age of the child, theability of the child to contribute to their own support, the availability of student loans, the child's past academic performance, the plansthe parents have made for the child's education and whether an adult child has unjustifiably and unilaterally terminated his or herrelationship with the payor. See: Farden v. Farden, (B.C. Master). [18] Shannon is still young and has a reasonable and practical education plan that is supported by both parents.

She is making somecontribution to her education through her employment income. Her plan is focused and she will be in school for a short period of time.She has never been fully independent, as she primarily lived with her mother while she was out of school. At no time did she make aclear choice about her future that did not include education. [19] The court further finds that the parties agreed that the child support obligation for Shannon would revive, at least in some form,if Shannon returned to school.

This is implicit in their consent to the existing order where they agreed that the $4,000 credit would beapplied to post-secondary school costs if Shannon returned to school prior to September of 2014. Further, the father acknowledged thathe had proposed to pay a share of Shannon’s tuition (his proportionate share of the $1,500 paid by the mother) in March of 2014,provided the $4,000 overpayment was returned to him.

The father wasn’t taking the position at that time that support shouldn’t revive.Rather, he was taking the position that the revival should be limited to a contribution to post-secondary expenses - not to the payment ofthe table amount of support. [20] The court finds that the support revival should not be limited to a contribution to Shannon’s post-secondary costs. The mother hasprovided a home for Shannon while she has attended full-time at school.

Shannon has been dependent on her mother for housing, food,clothing and transportation. [21] The child support obligation will be revived for the period from January 6, 2014 to October 3, 2014 (9 months). Part Four – The amount of support payable 4.1 Exceptions to the guidelines calculation [22] Subsection 3 (1) of the guidelines sets out the presumptive rule for the calculation of child support for children under the age ofmajority as follows: Presumptive rule 3.

(1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age ofmajority is, (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relatesand the income of the parent or spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. [23] In this case there are two potential exceptions for the court to consider in determining whether to deviate from the presumptiveguideline amount set out in subsection 3 (1). The first exception arises because Shannon is over the age of majority. Subsection 3 (2) ofthe guidelines reads as follows:

3(2) Child the age of majority or over.- Unless otherwise provided in these guidelines, where a child to whom an order for the support ofa 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 thechild. [24] The onus is on the party alleging that the guidelines are inappropriate to establish this on a balance of probabilities. See:MacLennan v. MacLennan, 2003 NSCA 9, at paragraph 48. [25] Subsection 3(2) is presumptive and must be used unless the court considers that approach would beinappropriate. See: Lewi v. Lewi, (ON CA), [2006] O.J.

No. 1847 (C.A.). [26] The closer the circumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is thatthe usual guidelines calculation will be found to be inappropriate. See: Rebenchuk v. Rebenchuk, supra, at paragraph 30. For instance,when an adult child attends school out of town, the guidelines calculation will usually be inappropriate. See: Park v. Thompson (2005), (ON CA), 77 O.R. (3d) 601 (Ont. C.A.). [27] The second exception arises from the father earning over $150,000 per annum.

Section 4 of the guidelines reads as follows: Incomes over $150,000 4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000,the amount of an order for the support of a child is, (

a) the amount determined under

section 3; or (

b) if the court considers that amount to be inappropriate, (

i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number ofchildren under the age of majority to whom the order relates, (ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, havingregard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of eachparent or spouse to contribute to the support of the children, and (iii) the amount, if any, determined under

section 7. [28] The father did not explicitly ask the court to apply this

section in his favour, but since he has argued that no child support shouldbe payable, the court has considered it. [29] In determining a claim under

section 4, the presumption is that the table amount will apply. The onus is on the person seeking todeviate from the table amount to rebut this presumption. See: Francis v. Baker (SCC), [1999] 3 SCR 250. 4.2 The guidelines calculation [30] The court must first determine the guidelines amount to determine if it is inappropriate.

[ 31 ] The mother seeks an order that the father pay the table amount of child support for Shannon based on his income of $178,000 per annum. This comes to $1,470 per month. She also seeks an order that, pursuant to

section 7 of the guidelines, that the father pay his proportionate share of the $1,500 ($1,155) that she has already paid towards Shannon’s post-secondary expenses. She is not seeking any additional contribution from the father to the post-secondary expenses, as Shannon has paid $1,700 towards these costs and Shannon’s sister gifted $9,500 towards these costs. The father submitted that Shannon should contribute more to her education costs. [ 32 ] Subsection 7 (2) of the guidelines reads as follows: Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [ 33 ] The mother submits that the father agreed to pay his proportionate share of the $1,500 that she paid for Shannon’s post- secondary costs and he should be bound by that agreement.

However, the court finds that this offer by the father was premised on the mother not seeking the table amount of child support and returning the $4,000 overpayment to him. The court does not find that the father’s proposal binds him to pay a proportionate share of the $1,500. [ 34 ] The court has discretion to determine what contribution a child should make to a

section 7 expense. In paragraph 42 of Lewi v. Lewi , supra , the court wrote: [42] In short, I accept neither of the extreme positions advanced by the parties, namely, that an adult child of the marriage with savings is required to contribute all of those savings towards his or her post-secondary education before the parents are called on to contribute or that such a child need contribute none of his or her savings. As a general rule, an adult child should be required to make a reasonable and meaningful contribution towards post-secondary education expenses.

The amount of that contribution will depend on all of the circumstances but must include a consideration of the "means" of the parents and the children. In such a consideration, it is appropriate to consider income and savings of both the parents and the child.

In fairness, when a child has savings that are being looked to for the purpose of determining the amount of his or her contribution, the [page333] savings and comparable assets of each of the parents ought also to be considered. [ 35 ] In this case, there is no question that the parties have the means to contribute to the balance of the post-secondary costs. However, the ability of the parents to pay these costs is not the only factor to consider. The family is fortunate that Shannon’s sister gifted to Shannon the sum of $9,500 towards the cost of this course.

Shannon’s contribution to her post-secondary expenses of $12,700 is $11,200 (the gift plus her own earnings of $1,700). At first blush, this appears to be a reasonable contribution. It would be more than reasonable, if it had come entirely from Shannon’s own savings. Shannon earned about $18,000 while she was not in school and has been earning part-time income, while in school. While some of that money went to her living expenses, it is reasonable to expect that she should contribute more than $1,700 from this income to her education.

The court finds that it is appropriate that she contribute the balance of $1,500 to her post-secondary school costs. 4.3 Is the guideline amount inappropriate? [ 36 ] The father did not meet his onus to establish that the guidelines amount is inappropriate for the purposes of either subsection 3 (2) or

section 4 of the guidelines. [ 37 ] Shannon’s circumstances: being a 21-year-old, living at home and attending college in Toronto are very similar to a minor child living at home and attending high school. See: Park v. Thompson , supra . This order will create a short-term support obligation that the father can easily afford. The mother has provided a home for Shannon while she has attended at school and is entitled to appropriate support to ensure that Shannon is supported at a lifestyle consistent with the parties’ joint incomes for this discrete period of time.

The father’s argument that Shannon should contribute more towards her expenses was adequately addressed in requiring her to pay the balance of her post-secondary costs without further contribution by him. [ 38 ] There will be an order that the father pay the mother the sum of $1,470 per month for 9 months for the period from January 6, 2014 until October 3, 2014.

4.4 Credits to the father [ 39 ] The father will receive two credits. He will receive a credit of $2,200 for the amounts he’s paid directly to Shannon in 2014 and he will receive the credit of $4,000 previously ordered by Justice Clay.

There is no reason to defer applying this latter credit as requested by the mother. [ 40 ] While the parties agreed in the existing order that the $4,000 credit should be applied towards Shannon’s post-secondary school expenses, there has been a change in circumstances (Shannon’s sister gifting most of these expenses) that dictates changing the existing order to have the credit applied to the father’s guideline table support obligations instead. [ 41 ] Accordingly, the father shall pay support to the mother of $7,030 calculated as follows: a) 9 months @ $1,470 per month = $13,230

b) Less: Credits set out in paragraph 35 above = (6,200) Balance owing: $7,030 [ 42 ] The father has 45 days to make this payment to the mother. His child support obligations for Shannon will then be terminated. Part Five – Conclusion [ 43 ] A final order will go changing the April 8, 2013 order of Justice Clay on the following terms:

a) The father shall pay the mother the sum of $7,030 for child support (as calculated in paragraph 41 above) within 45 days. This takes into account all credits for child support for the father.

b) The father’s ongoing child support obligation for Shannon will terminate after this payment. [ 44 ] If either party seeks costs, they are to serve and file written submissions by September 16, 2014. The other party will then have until September 30, 2014 to make written response. The submissions should not exceed two pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse. ___________________________ Justice S.B. Sherr Released: September 2, 2014