Clancy v. Hansman, 2013 ONCJ 622

COURT FILE NO. D60791-13 DATE: 2013-11-19 Citation: Clancy v. Hansman , 2013 ONCJ 622 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) DAVID GORDON CLANCY ) ) ) ACTING IN PERSON ) APPLICANT ) ) - and - ) ELIZABETH LYNNE HANSMAN ) DOUGLAS J. GREEN, for the RESPONDENT RESPONDENT ) ) ) ) ) ) HEARD: NOVEMBER 15, 2013 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] The applicant (the father) has brought a Motion to Change the child support terms of a separation agreement (the agreement) entered into with the respondent (the mother) dated December 11, 2006.

This agreement was filed with this court on May 6, 2008. The father seeks a variety of orders, including:

a) Termination of his child support obligations for the parties’ three children (Elizabeth, Kathryn and Johnathan).

b) The rescission of his child support arrears reflected in the records of the Family Responsibility Office.

c) An award of retroactive support of $138,200.

d) Reimbursement of special expenses in the amount of $116,693.

e) Interest on the assessed sums. [ 2 ] The mother filed a Response to Motion to Change seeking a dismissal of the father’s Motion to Change. She asked the court to fix the father’s support arrears at $146,018.58 as of April 1, 2013 and order him to repay these arrears at the rate of $5,000 per month. [ 3 ] The mother amended her position by the close of the hearing. She was agreeable to a termination of child support for Elizabeth and Kathryn. She still sought child support for Johnathan. She claimed that the father owed her about $53,000 in special expenses pursuant to the terms of the agreement.

She conceded that there should be adjustments to the table amount of child support the father had been required to pay in the agreement, based on changes in circumstances. She submitted that the father had overpaid $2,654, after making these adjustments, and this amount should be offset against the special expenses owed. [ 4 ] This court read the father’s Motion to Change, Change Information Form, Financial Statement and his affidavits sworn on June 26, 2013 and November 4 and 8, 2013.

It also read the mother’s Response to Motion to Change and her affidavits sworn on August 28, 2013, October 29, 2013 and November 12, 2013. The court read the binders of exhibits attached to these affidavits. The court also read the transcript of the out-of-court questioning of the father and heard oral evidence from Elizabeth and Kathryn. The parties also gave limited oral testimony and were cross-examined. [ 5 ] The material facts in this case were not seriously in dispute.

The parties disagreed on what orders the court should make based on these facts. [ 6 ] There were a number of issues for the court to determine, including:

a) When did Elizabeth’s entitlement to child support end?

b) Did Elizabeth’s entitlement to child support revive at any time, and if so, for how long?

c) When did Kathryn’s entitlement to child support end?

d) What was the father’s child support obligation for the remaining children once his child support obligation for each of Elizabeth and Kathryn ended?

e) Does the father continue to have a child support obligation for Johnathan? And if so, how much is this obligation?

f) Was the child support guideline table amount (table amount) appropriate when the children attended university outside of Toronto?

g) Is the father entitled to claim child support for a fourth child of the parties (Gordon), who was not a child eligible for support when the agreement was executed?

h) Are the parties entitled to claim special expenses for any time prior to April 1, 2006?

i) To what extent has the father complied with his obligation to pay special expenses for Elizabeth, Kathryn and Johnathan as required in the agreement?

j) Should the court require the mother to repay monies to Elizabeth, Kathryn and Johnathan, as sought by the father? Part Two – Background facts 2.1 Preliminary facts [ 7 ] The parties married on December 27, 1982. They separated on January 8, 1997. [ 8 ] The parties have four children: Gordon, who is now 28 years old, Elizabeth, who is now 25 years old, Kathryn, who is now 23 years old and Johnathan, who is now 19 years old. [ 9 ] The father is self-employed as a chartered accountant. He also runs a horse-breeding business and has an interest in a restaurant.

The mother has worked for a major computer company for close to 30 years. She was a senior development manager in a software development lab for the company. She has been on long-term disability since 2010. 2.2 The agreement [ 10 ] The parties both advised the court that they engaged in a protracted legal dispute after their separation. They eventually reached a comprehensive settlement of their affairs in the agreement. The agreement addressed parenting, property and child support issues.

The parties released all other claims they had against the other up until the date of the agreement. [ 11 ] The agreement provided that for the purpose of determining the table amount of child support, the father’s annual income would be imputed at approximately $200,000. [ 12 ] The agreement provided that starting on October 1, 2006, the father would pay the mother child support of $3,000 per month. The parties also agreed that the father would pay two-thirds and the mother would pay one-third of any special expenses of the children.

The agreement defined specific categories of special expenses that would not require the prior consent of the other party to qualify for reimbursement. [ 13 ] The parties agreed to promptly reimburse the other for special expenses paid by the other. The agreement provided that, in the event of disagreement, either party may apply to court for a determination of the special expenses owed. [ 14 ] The parties agreed that for a period of two years, neither could change the child support amount unless a child changed residence from the mother to the father.

This moratorium also applied if a child attended university outside of Toronto. [ 15 ] The agreement permitted either parent to seek a review or variation in child support if there was a material change in circumstances.

This was defined to include a change in the number of children entitled to receive support, a change in a child’s residence or a change to a child’s special expenses. [ 16 ] The agreement provides that the parties will pay the other interest at 6% per annum on any payments in default. [ 17 ] Gordon was not included in the agreement as he was not attending school and was not eligible for child support at the time the agreement was executed.

[ 18 ] The parties were represented by senior family law counsel when they negotiated and executed the agreement. 2.3 Elizabeth [ 19 ] Elizabeth, Kathryn and Johnathan all lived with the mother at the start of 2007. In September of 2007, Elizabeth started her post- secondary education at Ryerson University in Toronto and remained at home. [ 20 ] In November of 2007, Elizabeth moved out of the mother’s home and into an apartment with her boyfriend. Elizabeth became pregnant. Her child was born in March of 2008. Elizabeth testified that she and her boyfriend supported themselves.

Elizabeth said that she had two part-time jobs and attended school. Her boyfriend was in receipt of social assistance payments. The parties continued to pay for her tuition and books. [ 21 ] In June of 2008, Elizabeth, her child and her boyfriend moved into her boyfriend’s parents’ home. [ 22 ] In September of 2008, Elizabeth, her boyfriend and their child moved into a home owned by the father (the father lived elsewhere). They paid the father rent of $800 per month. Elizabeth’s boyfriend left the home in December of 2008. Elizabeth has not reconciled with him.

Elizabeth and her child continued to live by themselves in the father’s home until the end of 2009 (when the father put the house up for sale). Elizabeth paid her father rent of $400 per month in 2009. Elizabeth went to school full-time and worked part- time for her father during that year. [ 23 ] Elizabeth and her child moved into the mother’s home (a finished basement) at the end of 2009. She paid the mother rent of $800 per month. Elizabeth worked part-time and started to access Ontario Student Loans (OSAP). Elizabeth finished her undergraduate degree in April of 2011. She then attended Teacher’s College.

The parents continued to pay their proportionate shares of her tuition and books. Elizabeth testified that otherwise, she supported herself and her child, with her part-time earnings, OSAP loans and savings. [ 24 ] Elizabeth and her child resided in the basement of the mother’s home until August of 2011, when they moved into their own apartment in Mississauga. [ 25 ] Elizabeth completed Teacher’s College in June of 2012. 2.4 Kathryn [ 26 ] In September of 2008, Kathryn began her undergraduate program at the University of Guelph. She lived in residence.

She kept her belongings in her mother’s home and would visit her monthly and on holidays. She would also spend time with her father on holidays. Kathryn spent the summer of 2009 at her mother’s home and worked part-time in a laboratory at a Toronto hospital. She returned to Guelph for the fall semester in 2009. She did not work at this time. [ 27 ] From January of 2010 to April of 2010, Kathryn was working in a co-op program in Ottawa. She testified that she was working full-time and was self-supporting at this time. She said that she did not receive any money from her parents.

Kathryn returned to Guelph for the summer session from April of 2010 until August of 2010 and the fall session from September of 2010 until the end of 2010. She did not work during these sessions. Her parents continued to pay their proportionate shares of her tuition, books and room and board. [ 28 ] From January to August of 2011, Kathryn returned to Ottawa for her co-op program. She worked full-time and testified that she was self-supporting during this time – she said that she did not receive any money from her parents. Kathryn returned to Guelph from September of 2011 to April of 2012.

She did not work during this period and her parents paid their proportionate shares of her tuition, books and room and board. [ 29 ] In April of 2012 Kathryn travelled to France for a summer co-op program. She received a scholarship of $2,500. She returned to Guelph for her final term in September of 2012. This ended at the end of 2012.

[ 30 ] Kathryn lived with the mother from January 1, 2013 until the end of August of 2013. She worked full-time during this entire time at a Toronto hospital earning $14 per hour. She returned to school in Montreal, in September of 2013, for her post-graduate degree. She will be paid over $21,000 per annum to participate in this program. 2.5 Johnathan [ 31 ] In September of 2013, Johnathan moved into residence at Brock University.

The mother has paid all of his school and residence expenses for the 2013/14 school year (approximately $19,000). 2.6 Remaining background facts [ 32 ] The parties began arguing about the agreement in 2007. The mother claimed that the father was underpaying the table amount of support and not indemnifying her for special expenses. The father felt that child support should have terminated for Elizabeth at the end of 2007 and for Kathryn as of September of 2008. The parties sent demand letters to the other over the years setting out their respective positions.

Neither started a court proceeding. [ 33 ] The mother filed the separation agreement in this court on May 6, 2008. She subsequently sought to have the Family Responsibility Office enforce the agreement. [ 34 ] On April 19, 2013, the father brought a refraining motion in this court to prevent the Family Responsibility Office from suspending his driver’s license.

The child support arrears as of March 21, 2013 (as indicated in the records of the Family Responsibility Office) were $14,996.13 The refraining motion was granted, with the father being required to bring his Motion to Change and to pay the mother $3,200 per month. [ 35 ] The father issued his Motion to Change on May 16, 2013. [ 36 ] On June 12, 2013, the mother swore another statement of arrears for the Family Responsibility Office stating that the arrears were $46,569.64.

It appears that the mother was now including her claim for special expenses she felt were owed pursuant to the agreement. [ 37 ] The parties agreed that, with the exception of Kathryn’s last term at Guelph in 2012 and Johnathan’s current post-secondary costs (and subject to some minor university application costs that are set out in the mother’s special expense

summary), they have each paid their proportionate share of the children’s post-secondary school expenses. [ 38 ] The parties also agreed that, as of the date of this hearing, the father had paid a total of $207,097 of support (exclusive of special expenses) since the beginning of 2007. [ 39 ] The parties agreed, for the purpose of this calculation, that the father’s income will continue to be imputed at $200,000 per annum. [ 40 ] The parties also agreed that, for the purpose of this calculation, the parties’ proportionate shares of the special expenses should remain at two-thirds of the total for the father and one-third of the total for the mother.

Part Three – Legal framework [ 41 ] Justice Barry Tobin recently set out the jurisdiction of the court to vary a support provision of a separation agreement in paragraphs 3-5 of Lowther v. Lowther , ONCJ 582 Canlii, as follows:

[3] The jurisdiction of a court to vary a support provision contained in a separation agreement is found in s. 35 of the Family LawAct. [4] The relevant provisions of s. 35 are as follows: 35.

(1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the FamilyCourt of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside orcarried by a court or agreement.

(2) A provision for support or maintenance contained in a contract that is filed in this manner, (

b) may be varied under

section 37; as if it were an order of the court where it filed. [5] In Jasen v. Karassik, 2009 ONCA 245 , [2009] O.J. No. 1175 (Ont. C.A.) the court held at paras. 24 and 33: [24] … Section 35(1) enables a party to a “domestic contract” to file the contract with an Ontario court. Section 35(2) provides thatwhen a contract is filed under subsection (1), a provision for support or maintenance in the contract may be enforced or varied under s.37 of the FLA as if it were an order of the court where it is filed. [33] …

Section 35 simply provides a

summary procedure which enables a party to file a contract with the court to seek enforcement orvariation of a provision as if that provision were an order of the court. This procedure allows parties to take advantage of a variety ofstatutory processes designed to facilitate recovery of support and maintenance payments. [42] The father’s motion to change support and rescind the support arrears is governed by subsection 37 (2.1) of the Family Law Actthat reads as follows: Powers of court: child support

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

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

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

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

section 33. [43] The court has jurisdiction to entertain the father’s motion, even if his request to rescind arrears applies to a child whose eligibilityfor support has terminated prior to the case starting. See: Mondino v. Mondino, 2013 ONSC 7051 Canlii, paragraphs 55-58. [44] Subsection 8 (4) of the Family Responsibility and Support Arrears Enforcement Act requires a support recipient to notify theDirector of the Family Responsibility Office when support for a child has terminated. [45] Subsection 8.4 (4) of the Family Responsibility and Support Arrears Enforcement Act reads as follows: Order to repay

(4) A court that finds that a support obligation has terminated may order repayment in whole or in part from a person who receivedsupport after the obligation was terminated if the court is of the opinion that the person ought to have notified the Director that thesupport obligation had terminated. [46] The authority for the mother to enforce her claim for special expenses is contained in clause (

b) of subsection 35 (2) of theFamily Law Act.

This clause permits her to enforce a provision for support contained in an agreement, filed with the court, as if it were anorder of the court Part Four – Elizabeth’s entitlement to child support 4.1 Legal considerations [47] Subsection 31(1) of the Family Law Act, provides that each parent has an obligation to provide support for his or her unmarriedchild who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so. [48] The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchukv.

Rebenchuk, 2007 MBCA 22. [49] It is necessary to have withdrawn from the control of both parents in order to be disentitled to support under subsection 31(2).See: Oates v. Oates, , (Ont. S.C.); Lyttle v. Lyttle, , (Ont. Prov. Div). [50] A child is entitled to support, unless he or she voluntarily withdraws from parental authority. The defence of withdrawal fromparental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control. See: Edwardsv. Edwards, 1998 CarswellOnt 555 (Ont. Prov. Div.); and Haskell v. Haskell and Letourneau, (ON SC), 1979CarswellOnt 101 (Ont. Co.

Ct.). [51] 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, (BCSC); Rebenchuk v. Rebenchuk, supra. [52] The law is clear that support can be reinstated for an adult child after a hiatus in entitlement. See: R.L.F. v. S.F. (ON SC), [1996] O.J. No. 4178 (Ont. Gen. Div.); MacLennan v. MacLennan, 2003 NSCA 9. [53] In his paper, “Child Support for Adult Children: When Does Economic Childhood End?” Professor Nicholas Bala suggests whenthe 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, thenreinstatement 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. [54] When a child moves in with a boyfriend this has sometimes been a factor in disentitling the child to support. See: Vandervort

v. Brettler, (ON SC), 1989 CarswellOnt 284 (Ont. H.C.); and Bailey v. Bailey, (ON SC), 2005CarswellOnt 1992 (Ont. Fam. Ct.). However, this is not an absolute rule. The court must examine the entire situation carefully (See mycomments in Ball v. Broger, 2010 ONCJ 557 Canlii. Also see: Rothenburg v. Rothenburg, (2003), (ON SC), 40 R.F.L. (5th) 363 (Ont. S.C.J.); Karol v. Karol (2005), 2005 SKQB 250 , 264 Sask. R. 290). [55] If a child has their own child, this can be evidence of withdrawal from parental control, but if the child continues to attend school, he or she may continue to be entitled to support.

See: Reidy v. Reidy, (2005), (ON SC), 25 R.F.L. (6th) 225 (Ont.S.C.J.); Sandor v. Sandor, [2004] O.J. No. 2741 (Ont. S.C.J.); Gervais v. Tongue, (ON SC), [2000] O.J. No. 529(Ont. S.C.J.). 4.2 Analysis [56] In closing submissions, the mother conceded that Elizabeth was not eligible for support in 2008 and 2009. This was a sensibleadmission. While the parents were helping Elizabeth out by paying her tuition and books, Elizabeth was very independent. She hadchosen to move out of her mother’s home in November of 2007 and live with her boyfriend. They had a baby together.

Elizabeth and herboyfriend supported themselves through Elizabeth’s earnings and social assistance payments. Elizabeth chose to move in with herboyfriend’s parents in June of 2008. Elizabeth and her boyfriend then moved into the home owned by the father in September of 2008.Elizabeth and her child remained there until near the end of 2009.

They paid rent to the father, who lived elsewhere. [57] The mother also conceded that the father’s support obligation for Elizabeth should terminate when Elizabeth left her home at theend of August of 2011. [58] The critical issue then becomes, should the court reinstate Elizabeth’s entitlement to support for the period from January of 2010until August of 2011, when she resided with her child in the mother’s basement? [59] The following factors support reinstatement of support for Elizabeth for this period:

a) Elizabeth was in school full-time. She was on a reasonable career path.

b) The parties continued to pay for Elizabeth’s tuition and books. She was not fully financially independent.

c) The mother would babysit for Elizabeth once or twice per week.

d) The mother paid for one-half of Elizabeth’s legal fees in obtaining custody of her child. [60] Notwithstanding these factors, a close examination of the facts dictates against a reinstatement of support. In particular:

a) Elizabeth had been disentitled to support for just over two years. She had started her own family and was making independentdecisions.

b) Elizabeth was primarily supporting herself through a combination of student loans and part-time employment income.

c) Most importantly, the mother was charging Elizabeth a market rate ($800 per month) to rent the basement of her house. She was

essentially treating her as an independent tenant. She did not subsidize Elizabeth’s living expenses, as the father did in 2009. The mother did not refute the father’s evidence that she owns a home worth in excess of one million dollars with no mortgage. She had considerable savings and a good income. She was collecting substantial child support from the father. In these circumstances, it would be unjust to permit the mother to collect both the table amount of child support from the father and market rent from Elizabeth.

d) Elizabeth and her child lived in a self-contained portion of the home. She continued to make independent decisions for herself and the child during this period. It was clear from Elizabeth’s evidence that she subjectively considered herself independent of parental control.

e) Elizabeth deposed that she received minimal benefit from the support paid by the father to the mother during this period. This appears to be the case. She now has over $50,000 in student loans – a surprising amount given that her parents have considerable financial means. Elizabeth expressed shock when she learned that her mother was receiving support from her father and rent from her. She felt that she and her child had been misused by the mother.

f) Elizabeth testified that her mother babysat occasionally, but she usually used other babysitters. She deposed that her mother had promised to put $400 per month of her rent towards repaying her student loans. She deposed that when she learned that her mother wasn’t doing this, she chose to move out of her home. She testified that she would not have stayed in her mother’s home as long as she did if not for this promise. [ 61 ] This court finds that the father’s child support obligation for Elizabeth terminated as of November 30, 2007.

Any money that either party paid to Elizabeth, or on her behalf after that date, was voluntary, and not subject to any claim for indemnification. [ 62 ] The mother failed to meet her statutory obligation to notify the Director of the Family Responsibility Office that the father’s obligation to pay support for Elizabeth had terminated. Accordingly, the arrears reflected in the records of the Family Responsibility Office were overstated. [ 63 ] The termination of support for Elizabeth was a material change in circumstances, as defined in the agreement.

Part Five – Kathryn’s entitlement to support [ 64 ] The father asks to terminate his obligation to pay child support for Kathryn as of September 1, 2008. This is when Kathryn began her undergraduate degree at the University of Guelph. The mother’s position is that support for Kathryn should terminate as of December 31, 2012 – when Kathryn completed her undergraduate degree. [ 65 ] The court agrees with the mother’s submission.

Kathryn was consistently in full-time attendance at school until the end of December of 2012, had not withdrawn from parental control and was eligible for support pursuant to the Family Law Act. [ 66 ] However, the discussion does not end there.

The father argues in the alternative that he should not have been required to pay the full table amount for Kathryn and two-thirds of her post-secondary school expenses while she attended university outside of Toronto. [ 67 ] The mother, in closing argument, agreed that the father’s child support obligation for Kathryn (exclusive of his obligation towards her special expenses) should be reduced for the period of time she attended university outside of Toronto. She prepared a chart, claiming only the table amount of child support for 4 months each year from 2009-2012.

The mother deposed that Kathryn had lived with her 30% of the time during this period. The evidence did not support this contention. [ 68 ] Kathryn’s change in living arrangements was a material change in circumstances as defined in the agreement. [ 69 ] Subsection 3(2) of the Child Support Guidelines (the guidelines) states:

(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. [70] The onus is on the party alleging that the guidelines are inappropriate to establish this on a balance of probabilities. The closer thecircumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelinescalculation will be found to be inappropriate. See: Rebenchuk v.

Rebenchuk, supra, at paragraph 30. [71] Most courts now find the guideline amount inappropriate when a child attends university out-of-town and only returns homeduring the summer and school breaks. Although each case must be examined on its own facts, most courts will order the full tableamount in the months the child is living at home with a lesser amount when the child is away at school. See: Park v. Thompson, (ONCA); Coghill v. Coghill, (Ont. S.C.J.). [72] Courts will ordinarily give considerable deference to the parties’ intentions as expressed in their agreements.

Such agreementsput an end to the financial cost and emotional drain of ongoing matrimonial disputes. The conclusion of the matter allows the partiescertainty, finality and autonomy. See: Miglin v. Miglin, 2003 SCC 24 , [2003] 1 S.C.R. 303; Bogue v. Bogue (1999), (ON CA), 46 O.R. (3d) 1, (O.C.A.). The agreement is the starting point to determine if the amount provided for in theguidelines was appropriate for Kathryn. [73] Paragraph 4.9 of the agreement states that a child residing away from home for education purposes will not affect the amount ofchild support for a period of two years.

It is understandable why the parties agreed to this provision. They were both exhausted fromtheir protracted dispute and wanted cost certainty, at least for two years. This court will respect that intention. I find that the guidelineamount is appropriate for Kathryn until the end of 2008. [74] However, the court finds that the guideline amount is not appropriate for subsequent years. The father should not be expected topay the full amount of table support to the mother and pay for two-thirds of the child’s post-secondary school expenses, when the child isspending most of her time away from home.

The agreement contemplates changing the support obligation in such circumstances and thefather, in 2008, put the mother on notice that he was seeking a support adjustment. [75] The evidence indicates that in 2009, Kathryn spent 4 months at her mother’s home, plus some weekends and holidays, totalingabout another month. In 2010, she spent 4 months in Ottawa in the co-op program and with the exception of some weekends andholidays, the balance of her time in Guelph. It appears that Kathryn spent a maximum of 2 months at her mother’s home in 2010.

In2011, Kathryn spent 8 months in Ottawa and the balance of her time in Guelph. She spent some weekends and holidays with her mother,but likely no more than one month (she also spent holiday time with her father during these years). Kathryn deposed that she was onlycoming home once every other month in 2011. In 2012, Kathryn spent the first four months in Guelph, the next four months in Franceand the final four months in Guelph. Similar to 2011, she might have spent one month at her mother’s home.

This evidence (that wascredibly provided by Kathryn) contradicted the mother’s evidence that Kathryn spent 30% of her time at her home between 2010 and2012. [76] I find that from the fall of 2008 to the end of 2012 (52 months), Kathryn spent a total of 9 months with her mother.

The fathershould only pay the full table amount for these nine months. [77] The next question for this court to determine is what level of support (exclusive of his contribution to special expenses) the fathershould have paid to the mother in the months that Kathryn was not living with her mother each year. [78] In paragraph 151 of Jordan v. Stewart, 2013 ONSC 902 , the court observed that many courts have maintained robust

support obligations even during periods when the child is residing away from the recipient parent's home (citing: Birch v. Birch, 2010ONSC 2915 and Armaz v. Van Erp, (ON SC), [2000] O.J. No. 1544 (Ont. S.C.J.)). The courtin Jordan observed that this continued support obligation is based on the reality that while the recipient parent will realize modestreductions in expenses when the child is away at school, maintaining a permanent home for the child results in incidental expenses thatsubsist even in the child's temporary absence.

In the circumstances of that case, the court saw no reason to change the guideline amountof support while the child was away at university. [79] Providing the court with evidence of the costs required to maintain a home for a child who is away at university is important incases of this nature. [80] In Albert v. Albert, (Ont. S.C.J.), in the absence of specific evidence of the costs to maintain a room for thechild at home for the full year, the court ordered the payor to pay $250 per month during these periods, on the basis that there is anobvious cost for doing this. I followed this approach in Padua v.

Gordon, 2008 ONCJ 421 (Ont. C.J.) and ordered monthly support of$200 per month while the child was away at university. In Douglas v. Douglas, [2013] O.J. No. 2089 (Ont. C.J.), I fixed this amount at$150 per month. [81] Similar to the cases of Albert, Padua and Douglas, this court received little evidence of additional costs to the mother ofmaintaining a home for Kathryn while she was away at school. The court heard that a separate room in the home was maintained forKathryn and her personal belongings were stored there.

The court appreciates that Kathryn had evolving plans during this four-yearperiod and the mother provided her with a “home base”. However, she spent relatively little time in her mother’s home during theseyears.

Given the lifestyle of the parties, I will adjust the father’s support obligations, by fixing his support obligation at $300 per month(exclusive of his obligations for special expenses) for the 43 months that Kathryn was not living at home during these four years. [82] The mother failed to meet her statutory obligation to notify the Director of the Family Responsibility Office that the father’sobligation to pay support for Kathryn had terminated. Accordingly, the arrears reflected in the records of the Family ResponsibilityOffice were overstated.

Part Six – Johnathan [83] The father asked the court to terminate his child support obligation to Johnathan as of August 31, 2013. There is no merit to thisclaim. Johnathan remains eligible for child support pursuant to the Family Law Act as he is in full-time attendance at university. He hasnot withdrawn from parental control. [84] The ongoing child support for Johnathan should be adjusted as of September 1, 2013 for the same reasons that the court adjustedsupport for Kathryn when she attended university outside of Toronto.

There has been a material change in circumstances, as defined inthe agreement. [85] Johnathan will likely be out of town for 8 months each year for school. He will likely spend the summer and most holidays withthe mother. The father will be required to pay the full table amount for one child for the months Johnathan is at his mother’s home andpay $300 per month to the mother for the months he is not living with her.

It is important for these parties to have cost certainty.Accordingly, pending further order, the court will assume that Johnathan will spend 5 months with his mother each year (the 4 summermonths, plus one month of holidays and weekends). The total support for the year (separate from the father’s obligations to Johnathan’sspecial expenses) will be spread out evenly over a 12-month period as follows: Table amount of $1,633 per month for 5 months = $8,165 $300 per month for 7 months = $2,100 Total: $10,265 Total of $10,625 divided by 12 months = $855 per month (rounded to the closest dollar)

[ 86 ] The court will also require the parties to continue to maintain their existing proportionate contributions to Johnathan’s post- secondary expenses and other special expenses. The parties both place considerable importance on their children’s educations. Despite their disputes, they have, for the most part, contributed their respective shares to the children’s post-secondary costs.

It appeared to the court that the father’s objection to paying for Johnathan’s 2013-2014 post-secondary expenses had more to do with his concern that he had already overpaid support for the other two children and was entitled to credits that offset his obligations to Johnathan. [ 87 ] Courts have the discretion to reduce the parents’ contributions to post-secondary expenses by amounts it finds the children should contribute to them.

In this case, the parties’ agreement does not contemplate such a contribution by the children and the parents’ financial circumstances indicate that they are more than financially capable of paying the full amount of these expenses without further contribution from Johnathan. They paid these expenses, without offset, for both Elizabeth and Kathryn.

Johnathan shouldn’t be treated any differently, unless both parties agree otherwise in writing. [ 88 ] The mother did not seek an order to change the existing proportionate shares of the special expenses despite a drop in her actual income (she says her annual income is now $71,000 per annum). Both parties are financially comfortable and neither wanted to engage in an exercise of whether further income should be imputed to the other.

Part Seven – Special Expenses [ 89 ] The mother prepared a detailed chart of special expenses that she claims the father has not paid, as required by the agreement, since April 1, 2006. The court accepts her evidence that she has made demands for payment of the special expenses since 2007 and has provided the father, in a timely manner, with her special expense receipts claimed. [ 90 ] The father claimed that the mother did not acknowledge his payment of some of the special expenses in her

summary. He provided no evidence of these payments. The mother’s evidence about payment will be accepted. [ 91 ] The father disputed many of the alleged claims, stating that they were not special expenses as defined in the agreement. He countered with his own detailed list of special expense claims since 1997, including claims for Gordon.

The mother then prepared another list of special expense claims since 1997 for the court to consider, if it chose to go behind the date of the agreement (her position was that the court should not go behind the date of the agreement). [ 92 ] Neither party will be awarded special expenses prior to April 1, 2006. The time to have dealt with these claims was when the parties negotiated their separation agreement. They have delayed far too long for the court to award these amounts at this time. No valid explanation was given for the delay in making these claims. See: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v.

Henry; Hiemstra v. Hiemstra , 2006 SCC 37 . It was apparent from the father’s evidence that he was dissatisfied with the terms of the original agreement and was trying to cover ground that the agreement resolved. [ 93 ] In his response to the mother’s

summary (Exhibit 1, Tab N-4), the father set out the special expenses he agreed that he should pay for. The court will allow the mother these special expenses without further analysis. The father also set out in this response the claimed expenses that he objected to. [ 94 ] The agreement clearly set out many of the eligible special expenses. They included summer programs, camp, major school trips, medical and dental expenses and tutoring (the children all went for private tutoring and to programs at the Sylvan Learning Centre). No consent was required by the other parent to incur these expenses.

The mother made several claims for expenses in these categories. These claims were well documented and will be allowed. [ 95 ] In particular, the father objected to contributing for Johnathan’s school trips to New York and Scotland (I accept the mother’s evidence that the Scotland trip was a school trip). These were major school trips anticipated by the agreement and the mother did not require the father’s consent to send Johnathan on these trips. The father will be required to contribute his share towards these expenses.

[ 96 ] The agreement provides that neither party will incur special expenses, not listed, without the prior consent of the other parent. It also provides for a dispute resolution process that was never followed. Many of the claimed expenses fell within this category. To determine if they qualified as special expenses under

section 7 of the guidelines, the court considered the following:

a) The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under

section 7 of the child support guidelines and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson , supra .

b) The list of special and extraordinary expenses under clauses 7(1) (

a) to (

f) is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed. See: Kilrea v. Kilrea 1998 CarswellOnt 3652 (Ont. Gen. Div) .

c) Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See Smith v. Smith [1997] O.J. No. 4833 (Ont. Gen. Div.), paragraphs 14 and 16 ; Park v. Thompson , supra ; Kase v. Bazinet , [2011], ONCJ 718.

d) Unlike

section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for

section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the guidelines, including clause 1( a ), which reads as follows: 1(a) "to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;"

e) The relevant provisions of the guidelines read as follows: 7.

(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (

f) extraordinary expenses for extracurricular activities.

f) The guidelines define "extraordinary" as follows:

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

d) and ( f ), the term "extraordinary expenses" means, (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account; (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant.

[97] Applying these considerations, many of the expenses claimed by the mother were not special expenses as defined in

section 7 ofthe guidelines. I disallowed expenses (by both parents) claimed for regular (not extraordinary) extracurricular activities of the children.These included skating, art, debating, scouts and kickboxing programs. These are expenses that the mother could reasonably cover, basedon her income and the table amount of child support paid by the father. I disallowed claims made for babysitting and daycare programsfor the children. There was no indication why, given the ages of the children, these expenses were reasonable or necessary.

I disallowed aclaim for scuba diving equipment as the mother did not establish that this expense was necessary or reasonable. I disallowed claims forminor school fees and programs and bus passes. These expenses are covered by the table amount of child support. For the same reason I did not permit claims for driving lessons. See: D’Urzo v. D’Urzo (2002) (ON SC), 30 R.F.L. (5th) 277 (Ont. S.C.);Zimmerman v. Doe (ON SC), [2007] O.J. No. 2896 (Ont.S.C.)).

I did not permit claims for appliances bought for thechildren and a computer bought by the mother for Johnathan (and subsequently anti-virus software) for his birthday. These are notspecial expenses. I did not permit the mother’s claim for gas money (apparently to take the children to school).

Both parents incurredthese expenses. [98] I did permit the mother’s claims for camps for Johnathan and university applications for the children, as these are expensesconsistent with those shared proportionally elsewhere in the agreement. [99] The vast majority of the father’s claims for special expenses pre-dated April 1, 2006 and will not be granted for that reason. Thefew expenses claimed after April 1, 2006, were ordinary - not extraordinary - expenses for extra-curricular activities (skating andhouse league hockey) and will not be granted.

The father included a claim for tutoring in 2006 for Gordon and Elizabeth, but did notbreak down the expense between the children, indicate if it post-dated April 1, 2006 or provide receipts. This claim will not be allowed. [100] I will also not award compensation for special expenses claimed for Elizabeth and Kathryn (these claims were minor) after theywere ineligible for support. The father has met his support obligations to them. [101] The parties both decided to pay their proportionate share of post-secondary expenses for Elizabeth, even after the child supportobligation for her terminated.

They both had the means to provide this assistance. No one sought an adjustment for these payments andnone will be made. [102] I have set out the special expenses that the mother will be credited for below. These are broken down by reference to the

summaryin Exhibit 1, Tab N-4, referred to above. The calculation is as follows: JohnathanKathrynElizabeth Total 2006 Medical $254 $53 $317 $624Other $1,249 $614 $2,558 $4,421Total $1,503 $667 $2,875 $5,045 2007 Medical $158 $485 $66 $709Other 0 $1,214 $653 $1,867Total $158 $1,699 $719 $2,576 2008 Medical $782 $41 0 $823Other $162 $859 0 $1,021Total $944 $900 0 $1,844 2009 Medical $2,790 $355 0 $3,145Other $313 $107 0 $420Total $3,103 $462 0 $3,565 2010 Medical $2,170 $149 0 $2,319Other $2,063 0 0 $2,063Total $4,233 $149 0 $4,382 2011 Medical -13 $338 0 $325Other $2,819 $37 0 $2,856Total $2,806 $375 0 $3,181 2012 Medical $64 $392 0 $456Other $867 0 0 $867Total $931 $392 0 $1,323

2013 Medical $60 0 0 $60 Other $982 0 0 $982 Total $1,042 0 0 $1,042 Total

Section 7 credits to mother: $22,958 [ 103 ] The father has also not paid his share of Johnathan’s post-secondary expenses for the 2013-2014 school year (approximately $19,000, after taking into consideration his scholarship of $1,000). The mother has paid all of these expenses. The father owes the mother $12,730 for his share of these expenses. [ 104 ] The total amount owing by the father to the mother for special expenses is $35,688 ($22,958 plus $12,730). Part Eight – Father’s other claims [ 105 ] The father made a substantial retroactive claim for child support for Gordon. There was no merit to this claim.

Gordon was not a child eligible for support at the time the agreement was executed and did not subsequently obtain this eligibility. This court’s jurisdiction to make orders is restricted to children who meet the definition of child in the Family Law Act at the time of the commencement of the application. See: D.B.S. v. S.R.G. , supra, paragraph 89 . [ 106 ] The father also asked that the court order the mother to repay the sum of $8,950 taken out of trust funds he said were established in 1997 for the children. These trust funds were not specifically addressed in the parties’ agreement.

The mother deposed that most of these funds were spent on the children prior to the separation of the parties in 1997 and the remaining $3,900 was spent on the children over a period of time. I accept her evidence. This claim could and should have been addressed when the parties negotiated the agreement. The parties released all existing claims when they executed the agreement.

The court sees no basis to make any adjustments to the father’s support obligations at this time. [ 107 ] The father also seeks a $2,800 credit based on the mother’s failure to pay her share of Kathryn’s 2012 fall term tuition, books and room and board. If the father had paid these expenses, I would have granted this request (similar to how I granted the mother’s request for indemnification for paying Johnathan’s 2013/14 university costs). However, this is not the case. The court also notes that Kathryn received the benefit of free room and board at her mother’s home from January to August of 2013.

There will be no adjustment for this claim. Part Nine – Support calculations [ 108 ] The father argued that while the agreement imputed annual income of $200,000 to him, he never earned that amount of money and the compromise was that he only had to pay table child support of $3,000 per month (based on an income of about $178,500 per annum). He asks that any recalculation of support be based on the lower income level. The court disagrees.

Once he asked for the child support provisions of the agreement to be changed, support should be based on his agreed imputed income. [ 109 ] No evidence was produced that would satisfy the court that there has been any downward change in the father’s earning capacity. Based on the little evidence provided, it appears that the father is fortunate that the mother did not actively pursue the issue of his actual ability to earn income. The father declares income to Revenue Canada of about $130,000 per annum, with gross income of close to $860,000 per annum.

His business pays a management fee of $50,000 per annum to another business he controls. He runs a business breeding horses, owns a farm, obtains rental income and has an interest in a bar and restaurant. He is very comfortable financially. The court has no reluctance whatsoever recalculating his support obligations based on an annual income of $200,000. Given his financial resources, the court considers the guideline amount in

section 3 to be appropriate. [ 110 ] The father’s ongoing child support obligation (exclusive of his obligation to pay two-thirds of special expenses) for Johnathan will be $855 per month (as calculated in paragraph 85 above), starting on September 1, 2013. [ 111 ] The readjusted amount of child support the father should have paid to the mother (exclusive of his obligation towards special expenses), starting on January 1, 2007, is calculated as follows:

2007Table amount for 3 children – $3,000 per month for 11 months $33,000Table amount for 2 children - $2,572 per month for 1 month $2,572Total $35,572 2008Table amount for 2 children - $2,572 per month for 8 months $20,576Table amount for 1 child - $1,624 per month for 4 months $6,496Kathryn – 4 months @ $300 per month $1,200Total $28,272 2009Table amount for 2 children - $2,572 per month for 5 months $12,860Table amount for 1 child - $1,624 per month for 7 months $11,368Kathryn – 7 months @ $300 per month $2,100Total $26,328 2010Table amount for 2 children - $2,572 per month for 2 months $5,144Table amount for 1 child - $1,624 per month for 10 months $16,240Kathryn – 10 months @300 per month $3,000Total $24,384 2011Table amount for 2 children -$2,572 per month for 1 month $2,572Table amount for 1 child - $1,624 per month for 11 months $17,864Kathryn – 11 months @300 per month $3,300Total $23,736 2012Table amount for 2 children - $2,582 per month for 1month $2,582Table amount for 1 child -$1,633 per month for 11months $17,963Kathryn – 11 months @300 per month $3,300Total $23,845 2013Table amount for 1 child - $1,633 per month for 8 months $13,0643 months for 1 child @ $855 per month $2,565Total $15,629 Total table support owed to end of November, 2013 $177,766Total table support paid to end of November, 2013 $207,097 Credit to Father $29,331 [112] The father delayed several years in bringing the issue of his overpayment of support to court.

The mother did not argue that thereadjustment should be disallowed for this reason or limited to a three-year-adjustment. See: Galloway v. Cassino (Barrett), 2008 Cars​-well​Ont 6740 (Ont. C.J.); Fornal v. Fornal, 2007 ONCJ 170 , [2007] O.J. No. 1498 (Ont. C.J.), Grala v. Grala, 2008 ONCJ556; Corcios v. Burgos, 2011 ONSC 3326, [2011] O.J. No. 2422 and Caine v. Ferguson, 2012 ONCJ 139 (where the retroactivityprinciples in D.B.S. v. S.R.G., supra, were applied to requests to lower support retroactively by payors).

This was understandable, as themother was also asking the court to go back to 2006 to determine the special expenses owed by the father. While she had filed theagreement with the court, the mother had not brought a court application to determine the disputed special expenses until the fatherstarted this case. It was unclear when she first asked the Family Responsibility Office to enforce the agreement, but the first notice ofintention to suspend the father’s driver’s licence was sent by the Family Responsibility Office to the father on March 21, 2013.

It appearsfrom the arrears claimed, that it did not include (or only partially included) the mother’s claim for special expenses (as only $14,996 wasclaimed to be in arrears). It appears that the mother did not claim that the special expenses were in arrears until she swore her statementof arrears, on June 12, 2013, filed with the Family Responsibility Office, claiming arrears of $46,570. Fairness dictates that the sameapproach be taken with respect to the claims of both parties, in how far back the court goes in calculating their respective supportobligations.

The parties had been aware of their respective positions for several years. Neither party was taken by surprise by theirrespective claims. [113] The court finds that the father owes the mother $35,688 for special expenses and the mother owes the father $29,331 for supportoverpayment (exclusive of special expenses). The net result is that the father owes the mother $6,357. The agreement provides that theparties shall indemnify the other for special expenses incurred within 5 days of the receipts being produced. The father easily has theability to pay these arrears.

He shall pay them to the mother within 10 days from the release of this decision. [114] I have not included the 6% interest figures claimed by the mother on the father’s default of special expense payments. To a large

extent, the parties’ claims offset one another. The father did not pay the special expenses on a timely basis, but the mother had the benefit of the support overpayments by the father. The final balance owing by the father is mostly reflective of his failure to pay anything towards Johnathan’s post-secondary expenses this fall. Part Ten – Conclusion [ 115 ] A final order shall go on the following terms:

a) The father’s child support arrears shall be fixed at $6,357. The father shall pay these outstanding arrears in 10 days. The Director of the Family Responsibility Office is asked to amend its records accordingly.

b) The parties’ child support obligations for Elizabeth and Kathryn are terminated.

c) The agreement shall be varied to provide that:

i) The father shall pay the mother child support for Johnathan in the sum of $855 per month, starting on December 1, 2013. ii) The father shall not be required to make any further contribution to Johnathan’s post-secondary expenses for the 2013-14 school year. The parties shall continue to pay their proportionate shares of his post-secondary education (starting again for the 2014-15 school year) on the terms set out in the agreement.

d) The parties’ obligation to pay their proportionate shares of Johnathan’s special expenses shall continue on the terms set out in the agreement.

e) The parties shall annually exchange financial disclosure as set out in the agreement.

f) A support deduction order shall issue.

g) The balance of claims made by the parties are dismissed. [ 116 ] Either party may serve and file written costs submissions by November 29, 2013. The other will then have until December 10, 2013 to serve and file a written response. The written submissions are not to exceed three pages, not including any bill of costs, itemization of time spent on the case by the father, 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: November 19, 2013