ONTARIO COURT OF JUSTICE
DATE: 2016 08 26
COURT FILE No.: Brampton 1156-15
CITATION: Fernandez v. Fernandez, 2016 ONCJ 529
BETWEEN:
MARION AUSTIN FERNANDEZ
Applicant
— AND —
MARIO FERNANDO FERNANDEZ
CYNTHIA ANN GALLUP
Respondents
Before Justice Philip J. Clay
Heard on August 19, 2016
Reasons for Judgement released on August 26, 2016
All parties were self-represented
CLAY J.:
SUMMARY HEARING
PROCEDURAL BACKGROUND
[1] The Applicant Mario Austin Fernandez (“Austin”) is the Respondent’s son.
[2] Austin resided with his mother, the Respondent Gallup, (“the mother”), from the Respondent’s separation until 2012. He then lived with his father, the Respondent Fernandez (“the father”) until August 2015. Austin then moved in with a friend’s mother, Ms. Holly Stephen.
[3] Austin issued an Application in which he claimed support from each of his parents. He sought the table amount under s. 3 and post-secondary expenses under s. 7 of the Child Support Guidelines (CSG).
[4] The matter was addressed at a Case Conference on March 29, 2016. Further financial disclosure was ordered. The matter was adjourned to a summary hearing on affidavit evidence today. Timelines were set for the delivery of affidavits attaching disclosure.
ISSUES
(1) Has Austin withdrawn from parental control such that his parents have no obligation for his financial support?
(2) What amount, if any, should the Respondent’s pay for table child support in the period September 1, 2015 to August 31, 2016?
(3) What amount, if any, should the Respondent’s pay for Austin’s s.7 expenses in the period September 1, 2015 to August 31, 2016?
(4) What are Austin’s annual post-secondary expenses?
(5) How should those expenses be shared between Austin and his parents?
ANALYSIS
Withdrawal from parental control?
[5] The Family Law Act section that is relevant to this matter is s. 31 (2) which reads as follows:
Obligation of parent to support child
- (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 time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.
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(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).
[6] The Applicant son stated that he could no longer live in his father’s home. He said that his father was emotionally abusive. He essentially stated that his father had a very rigid parenting style. In August 2015 he made arrangements to live with his best friend’s mother. His own mother supported the move and provided him with some monies to pay to Ms. Stephen for his room and board. His father’s position was that he should not have moved out. The father said that his son could have stayed with him. He said his son had made a poor choices of friends and that as a result he began to use marijuana. The father had a written list of house rules with which his son did not fully comply. The father refused to financially support his son in residing elsewhere.
[7] The evidence was that Austin felt that he was not emotionally supported in his mother’s home and that, together with other some other issues, was why he chose to move into his father’s home to start high school. Therefore, when he felt that he needed to move out of his father’s home he did not feel that moving back to his mother’s residence was an option. His mother did not disagree with that.
[8] Austin kept up a good relationship with his mother while he was residing with Ms. Stephen. The mother and son agreed that the mother had provided monies to Austin for his support. They agreed that he received $2,030 between March 14 and July 15, 2016.
[9] Sadly there has been no contact between the father and Austin since Austin left his home. Both parties were quite emotional about this. The father stated that he loved his son and wanted to support him in pursuing post-secondary education. However, he did not think that he should have to pay any monies to or for the benefit of his son in the period September 1, 2015 to August 31, 2016. His position is that his son chose not to live with him and he did not support that choice.
[10] Section 31 (2) of the Family Law Act operates as a defence to a claim for child support and therefore is to be narrowly construed. In the absence of compelling evidence that the withdrawal was voluntary, the defence will fail (see Lyttle v. Lyttle, 1992 CanLII 6381 (ON CJ), [1992] O.J. No. 1608, Erb v. Erb, 2003 CanLII 2112 (ON SC), [2003] O.J. No. 1527 and Figueiredo v. Figueiredo, 1991 CanLII 4204 (ON SC), [1991] O.J. No. 953).
[11] Once it has been established that a child has withdrawn from parental control, the onus shifts to the child to establish that the withdrawal was not voluntary; that he or she had little choice in the matter. Belanger v. Belanger, 2005 CanLII 25110 (ON SC), [2005] O.J. No. 3033 (SCJ- Family Court).
[12] In this matter the evidence was that Austin moved into his friend’s home at the start of his Grade 12 year. He obtained his high school diploma. He applied to and was accepted at college. He looked for summer employment and began working part-time in March 2016 to ensure that he had that same job for the summer.
[13] I did not receive much evidence as to the reasons that Austin felt compelled to move out of his father’s home. It might be that the details of the breakdown in the father-son relationship were relevant to whether Austin’s decision to move was as a result of emotional abuse as he saw it or as a result of firm but fair parenting as his father saw it. I concluded that it would not be helpful to the future relationship between father and son for me to make findings as to which one of them was more or less at fault for the breakdown. The evidence was that Austin was a serious responsible young man who had no difficulty in residing with Ms. Stephen and pursuing his high school education. The father was a hard-working man who believed that teenagers required very strict parenting or they would lose their way. It is not difficult to see why the father and son would clash.
[14] In most cases where an older teenage child feels that they cannot live with one parent they decide to live with the other. I accept that this was not possible in this case. The mother did not suggest that her son should have lived with her. She knew that living with Ms. Stephen was a better option. She supported her son both emotionally and financially with the move.
[15] I find that Austin did not choose to withdraw from the control of his parents. He welcomed the assistance that his mother was prepared to provide. He wanted his father’s emotional and financial support also. His transition to living with Ms. Stephen was successful. He is now ready to begin college and he again looks to both of his parents for emotional and financial support. Both parents are prepared to financially support their son. It is to be hoped that the emotional relationship between father-son will improve with time.
CHILD SUPPORT
[16] Austin is seeking support from his parents under both s.3 and s.7 of the Child Support Guidelines (CSG). There are two distinct periods involved here. The first is the period between September 1, 2015 and August 31, 2016 when Austin resided with Ms. Stephen. He claims table child support from both of his parents in this time. Austin also has some s.7 claims.
[17] The second period is the period that begins on or about September 1, 2016. Austin will be attending Fanshawe College in London and staying in residence. He is seeking child support pursuant to s. 7 of the CSG at this time. There is no claim for s. 3 or table child support after August 31, 2016. Austin recognizes that as an adult he is responsible for contributing a reasonable amount to his post-secondary education. He is seeking an order that his parents contribute proportionately to their income to the balance.
What table child support is owed up to August 31, 2016?
[18] The mother’s financial statement attached her 2012 to 2014 Notices of Assessment. In 2014 she earned $43,632. She did not file her 2015 Notice of Assessment (there was no specific order made for her to do so). The mother said she lost her job in 2015 and earned less than $25,000 on Employment Insurance. She obtained another job on or about January 1, 2016 and she will earn $36,800 this year. She filed a 2016 pay statements.
[19] The father’s 2015 Notice of Assessment showed income of $53,386. He also filed 2016 pay statements but he maintained that he would earn approximately the same incoming in 2016 as 2015 notwithstanding that his year to date income suggests that he would earn more. He said that overtime was over for the year.
[20] The table amount of child support on the father’s income is $482 per month. The amount on the mother’s 2015 income of $25,000 is $200 a month and on her 2016 income of $36,800 is $323 per month.
[21] I have no evidence before me that Austin directly paid any monies to Ms. Stephen for his room and board. However, I accept that he recognizes an obligation to do so and he may well have paid to her some of the money he received from his mother in 2016 (to the extent that he did not use if directly for s.7 expenses-see below). I cannot order child support to be paid to a non-party. Any order that I make for child support in this period will be paid to Austin and he will have to meet all of his financial obligations directly.
[22] I find that table child support should not begin until November 1, 2015. While Austin left his father’s home near the end of August 2015 his father was not sure that he would not return imminently as he took the position that his door was always open to his son. Austin received no direct financial support from his mother until March 2016 presumably due to her precarious financial position in the fall of 2015 due to her job loss.
[23] I find that the mother should pay $200 in child support for each of November and December 2015 for a total of $400. I find that the father should pay child support in the amount of $482 per month for those two months for a total of $964.
[24] Beginning in January and continuing until the end of August, 2016 the mother should have paid $323 each month for a total of $2,584. The father should have paid $482 per month for a total of $3,856.
[25] The total owed by the mother for arrears of child support is ($200 +$2,584) $2,784. The mother shall be credited with her payments of $2,030 leaving a balance owing by her as at August 31, 2016 of $754. The total owed by the father for arrears of child support is ($964 +$3,856) $4,820.
What are the s. 7 costs before August 31, 2016?
[26] Austin made a claim for s.7 costs that he incurred after September 1, 2015. He filed proof of those costs with his affidavit. They included;
$563.87 ……………………………………………………………………… for Driver’s Education classes
$ 84.60 ……………………………………………. for the non-insured portion (20%) of dental costs
$ 58.80 …………………………………………………………………………………………… for dental costs
$ 95.00 ………………………………………………………………………………… for college applications
$160.00 ……………………………………………………………………………………………….. for passport
$526.04 …………………………………………………………………………………………………… for laptop
$1,488.67……………………………………………………………………………………………………….. Total
[27] There is no corresponding invoice explaining the treatment and no statement from the father’s insurer with respect to the dental cost of $58.80 so it is disallowed. The passport is not a reasonable s.7 expense and the cost should be absorbed by Austin. The college applications and the laptop will be considered as post-secondary expenses to which Austin will have to contribute. The estimate for future dental work does not need to be the subject of a specific order as the father has extended health insurance that will cover Austin until he is 21 if he remains a student.
[28] The s.7 costs after September 1, 2015 that the parents should pay amount to ($563.87 +$84.60) $648.67. The father earns 59% of the parent’s total income so he shall pay 59% of those expenses and he mother shall pay 41%. This results in the father being required to pay $382.71 and the mother $265.95.
What are the post-secondary costs?
[29] I reviewed Austin’s education plan. He has been accepted into a business program at Fanshawe College in London, Ontario. He plans to do 2 years at Fanshawe and then transfer to a university program for a further three years with the goal of obtaining a university degree in business studies or some related program. I find that this is a reasonable plan and that Austin’s parents are required to provide him with financial support while he attends college and university. That financial support should continue for a maximum of five academic years beginning in September 2016. Austin must keep his parents apprised of all of the important particulars of his studies including courses taken and marks achieved.
[30] I find that with a total parental income of $89,800 that Austin must contribute to his own education even if in doing so he incurs some debt. Austin has borrowed $6,000 from his maternal grandmother and another $1,000 from a friend.
[31] Given the state of the relationship between Austin and his father and the mistrust that the father still has of the mother I find that a final order must be very clear as to each party’s financial responsibility. The best way to ensure that Austin will have a steady flow of funds to support his studies is to work out a budget for the year and then have each parent pay the appropriate amount to the Family Responsibility Office (FRO) on a monthly basis.
[32] In his first year Austin will stay in residence and purchase a meal plan. Those costs are known. If the residence is paid for by June 17, 2016 the cost is reduced to $7,510. The meal plan is $1,200 for the first term and there is a $250 security deposit. The second term meal plan is $1,200. The tuition is a total of $4,000 for both terms. In the first year costs I would include the $95 application fee and the $526.04 for the laptop. This calculation does not include any monies for books and supplies, so I include $500 for same. I will not include the usual transportation costs to and from campus on some weekends and holidays as I have no evidence that Austin will incur that expense. The total for the first academic year is therefore;
$7,510 ……………………………………………………………………………………………………. residence
$250 ………………………………………………………………………………………………. security deposit
$2,400 ………………………………………………………………… meal plan for first and second term
$4,000 …………………………………………………………………………………….. tuition for both terms
$95 ………………………………………………………………………………………………….. application fee
$526 ……………………………………………………………………………………………………………. laptop
$500 …………………………………………………………………………………………. books and supplies
$15,281 …………………………………………………………………………………………………………. Total
[33] In subsequent years it may be that Austin will be able to find some cost savings by way of off campus shared housing and less expensive food. On the other hand tuition costs are likely to increase and university tuition may be close to double college tuition. Rather than re-calculating the costs every year and perhaps inviting disagreement on the reasonable of Austin’s housing and other choices I find that the first year budget, which is largely corroborated by invoices should be used as the budget for all subsequent years. In Austin’s second year of college it may be a bit high as housing costs may decrease but in his third to fifth years of education it is likely to be too low. While I will set Austin’s contribution at a fixed percentage I note that he will have a four month summer to work in all subsequent years whereas he only had a two month summer this year. The father raised an issue with the minimum wage retail job Austin worked this year given that he could have got a job for his son at his company for more pay. That issue will be blunted by the fact that Austin will be required to contribute the same percentage each year. If Austin did not earn as much as he could have in 2016 that was as a result of his choice and his parents will not be paying more money as a result of his decision.
[34] While Austin will be earning money each summer he will also be incurring costs for 4 months for housing, food etc. that are not in the budget above. I find that Austin’s monthly costs in the summer should be set at $750 a month.
[35] I find that Austin’s post-secondary costs during the September to April academic year shall be set at $15,000 and his costs for May through August shall be set at $3,000 for a total of $18,000 per year.
How should the costs be shared?
[36] The next issue is how to fairly divide Austin’s costs. I begin by looking at s.7 (2) of the CSG which provides 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 spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
[37] All parties agree that Austin should contribute to his own post-secondary education. The father’s position is that all parties should pay one third of the costs. The mother and Austin argue that the parent’s should pay proportionally to the parental share. I accept the latter view with respect to the parental share as that is the approach set out in s.7 (2).
[38] With respect to the percentage to be paid by Austin I have taken into consideration that the total parental income is $89,800 and that Austin will be able to earn money in the summers most of which should be applied to his education costs as his parents will also be contributing to his summer costs. I find that Austin should be able to apply any monies that he received for scholarships, bursaries or any grants from OSAP to his share of the costs. Notwithstanding Austin’s very modest income I find that he should pay one third of his post-secondary expenses.
[39] The sharing of the expenses is as follows;
- Austin 33% of total $6,000
- Father 59% of $12,000 parental share $7,080
- Mother 41% of $12,000 parental share $4,920
[40] The parents shares shall be divided into 12 payments to be made through the FRO. The mother’s monthly share is $410 per month and the father’s $590.
ORDER
(1) The Respondent father shall pay to the Applicant the following;
(a) The sum of $3,856.00 for arrears of table child support;
(b) The sum of $382.71 for arrears of s.7 costs other than post-secondary;
(c) The sum of $590.00 per month for child support including s.7 expenses beginning September 1, 2016 and continuing on the first day of each and every month until the earlier of;
(i) The Applicant ends his program of education, or
(ii) April 30, 2021; and
(d) The Respondent father shall pay the arrears in sub-paragraph a) and b) above at the rate of $200 per month beginning September 1, 2016 and continuing until the said arrears are fully paid.
(2) The Respondent mother shall pay to the Applicant the following;
(a) The sum of $754.00 for arrears of table child support;
(b) The sum of $265.95 for arrears of s.7 costs other than post-secondary;
(c) The sum of $410 per month for child support including s.7 expenses beginning September 1, 2016 and continuing on the first day of each and every month until the earlier of;
(i) The Applicant ending his program of education, or
(ii) April 30, 2021; and
(d) The Respondent mother shall pay the arrears in sub-paragraph a) and b) above at the rate of $25.00 per month beginning September 1, 2016 and continuing until the said arrears are fully paid.
(3) The Respondent father shall keep the Applicant as a beneficiary under his plan of extended health and dental expenses and shall promptly submit claims and remit funds to the Applicant. The Applicant shall be solely responsible for any uninsured health and dental costs after September 1, 2016.
(4) The Applicant shall provide the Respondents with the following;
(a) a list of courses for which he is registered every semester;
(b) his transcripts every semester; and
(c) copies of all invoices received from his college or university and proof of payment of same.
(5) Support Deduction order to issue.
(6) All claims made that are not included in this order are dismissed.
Released: August 26, 2016
Justice P.J. Clay