DATE: 20060511
DOCKET: C43423
B E T W E E N : |
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DEBORAH ESTHER LEWI |
Philip M. Epstein, Q.C. and |
- and - |
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HARVEY LEWI |
D. Smith |
Heard: October 25, 2005 |
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On appeal from the orders of Justice Margaret Eberhard of the Superior Court of Justice dated February 14, 2005, and March 30, 2005.
[1] To what extent are adult children required to use their own funds to pay for post-secondary education expenses? This question lies at the heart of this appeal.
[2] Harvey Lewi, the appellant, and Deborah Lewi, the respondent, were married on December 25, 1983. They separated in October 1996. They have two children, Darren and Brandon. At the time of this appeal, Darren was 20 years of age and Brandon was 18 years old.
[3] Following separation, there was protracted litigation with respect to financial matters and child support in particular. After a trial in April 2002, the parties settled the matrimonial matters that divided them. That settlement gave rise to a consent order dated April 10, 2002 (“the Order”). The Order required Mr. Lewi to pay the following amounts of monthly support to Ms. Lewi: child support in the table amount of $2,073 based on the appellant’s annual income of $180,000[1]; special expenses of $200 for computer and computer-related expenses for both children and car insurance for Darren; and, spousal support of $3,700 for the first year and $3,500 thereafter. Although the Order was silent in respect of post-secondary education expenses, Mr. Lewi contributed $1,500 to Darren’s post‑secondary education costs for each of the 2003/2004 and 2004/2005 school years.
[4] Darren was born on February 9, 1985. He began university in the fall of 2003 and is currently in his third year of post-secondary studies at the University of Toronto, Scarborough campus. His claimed expenses for tuition, fees, books and parking were approximately $6,100 per academic year. For the 2003/2004 school year, he received a scholarship of $500. He continues to live at home with his mother in Thornhill, Ontario. By all accounts, Darren is a healthy, bright young man and an excellent student.
[5] Brandon was born on April 15, 1987. Brandon was in high school when the motion was brought but it was expected that he would attend the University of Western Ontario starting in the fall of 2005 with the goal of proceeding to the Ivey School of Business at Western. By the time of the appeal, he had begun his post-secondary studies as planned and was living in residence. Brandon is also an excellent student. His costs, including residence, were anticipated to be between $15,000 and $17,000 per year while at the University of Western Ontario but will rise to $30,000 per year if he is accepted into the Ivey School of Business. While the record is not perfectly clear on this point, it appears that Brandon hopes to take the third and fourth years of his undergraduate degree at the Ivey School of Business.
[6] The appellant is a senior executive with IBM. According to his sworn financial statement, he earns in excess of $181,000 per year. He has remarried and his spouse earns $80,000 per year. He estimates the value of his unencumbered home to be $600,000.
[7] The respondent is unemployed and has been since 1999 when she was constructively dismissed from her position at IBM, a job that she had held for twelve years. The children have lived with her since the time the parties separated. She deposes that she has no income apart from the spousal support she receives from the appellant and that significant health problems have inhibited her capacity to return to work. She also deposes that, since separation, she has had to sell the matrimonial home and then downsize again to a more modest house, she has used her equity to meet her and the children’s needs, and she has incurred substantial debt.
[8] In March 2004, Ms. Lewi brought a motion to vary the Order. She sought an increased contribution from Mr. Lewi for expenses pursuant to s. 7 of the Federal Child Support Guidelines, S.O.R./1997-175 (the “Guidelines”), including post-secondary education expenses for undergraduate and graduate programs of study. She asked for an order that the children’s university expenses be shared by the parties in proportion to their respective incomes.
[9] Mr. Lewi resisted the motion on the grounds that both children have substantial funds of their own and those funds should be used to pay for post-secondary education expenses before any parental contribution is ordered, particularly as the children have no relationship with him. Although he defended the motion to vary, he did not file any pleading instituting a claim for relief nor did he seek any relief.
[10] During the marriage, the parties established a savings plan for each child. Gifts of money to the children were placed into Canada Savings Bonds in the children’s names. Their paternal grandfather gave the children a total of $110,000 over an eleven-year span, beginning with Darren’s birth.
[11] Following separation, the respondent cashed in the children’s Canada Savings Bonds for approximately $134,000, or $67,000 per child. For each child, approximately $54,000 was transferred into a mutual fund and $10,000 into a money market fund. Approximately $8,000 was deposited into an RESP in Darren and Brandon’s joint names. The mutual fund investments subsequently lost money due to market conditions.
[12] There is no dispute that the funds belong to the children.
[13] Ms. Lewi used the funds in the money market accounts to purchase a car for Darren at a cost of $20,000. The car enables Darren to get to and from university in Scarborough while living at home in Thornhill.
[14] On December 12, 2003, Darren had the car and investments valued at $41,821.07. Brandon had investments worth $41,822.28. The RESP in the children’s joint names was valued at $7,140.35.
[15] Justice Eberhard heard the motion. Based on Mr. Lewi’s annual income of $182,000, in addition to Mr. Lewi’s continuing obligation to pay spousal support of $3,500 per month, she ordered Mr. Lewi to pay the table amount of child support of $2,094 per month if both children lived at home while pursuing post-secondary education.
[16] While there is some question as to what the motion judge intended to order in the event that Brandon lives away from home while attending university, para. 7 of the order under appeal provides that in such circumstances, child support is reduced to the table amount for one child plus one-third of the difference between the table amount for one child and the table amount for two children. In light of the calculations given by the motion judge in her reasons for decision, I conclude that the motion judge intended the appellant to pay table support for one child throughout the year and table support for the two children during the four summer months when both are living at home with the respondent. Four out of twelve months is one-third of a year. In order to set child support payable on a monthly basis, the motion judge ordered that such child support was to be the table amount for one child plus one-third of the difference between the table amount for one child and the table amount for two children.
[17] The motion judge determined that each child should contribute to his university education, from summer employment earnings or his funds, the following amounts:
(a) Before first year: The greater of actual earnings minus $2,000 or $1,000.
(b) Before second year: The greater of actual earnings minus $2,000 or $2,000.
(c) Before third year: The greater of actual earnings minus $2,000 or $3,000.
(d) Before fourth year: The greater of actual earnings minus $2,000 or $4,000.
[18] The motion judge ordered the parties to pay the balance of undergraduate post-secondary expenses in proportion to their incomes with the result that Mr. Lewi is to pay 77% of such expenses and Ms. Lewi is to pay 23%.
[19] The order specifically leaves open the matter of post-graduate expenses and entitlement. It also specifies that if the annual costs of attending a post-secondary program of education and living away from home fall outside the range of $15,000 to $17,000, such a change “would constitute an unforeseen circumstance that could trigger a reconsideration”.
[20] Mr. Lewi appeals. He asks this court to reduce the amount of child support that he is to pay and to order that the children use their own funds for their post-secondary education. Ms. Lewi cross-appeals, seeking an order for unreduced child support and increased support for s. 7 expenses.
[21] For the reasons that follow, I would allow the appeal in part and dismiss the cross-appeal.
[22] After determining that the gifts to the children from their paternal grandfather had not been specified to be solely for their education, the motion judge considered the question of parental contribution to the children’s post-secondary education expenses under s. 7 of the Guidelines. She noted that there was little evidence before her of the ability of the boys to contribute to their undergraduate post-secondary education costs from their own earnings and stated that “some contribution” from their own effort should be required. She found that requiring the parents to contribute to the boys’ post-secondary education expenses would not result in hardship to the parents and that the family would have made the necessary sacrifices to contribute to their sons’ post-secondary education expense had the family remained intact.
[23] The motion judge then set out a formula for each child’s contributions to his university education which, generally speaking, amounted to a minimum of $1,000 for the first year, $2,000 for the second year, $3,000 for the third year and $4,000 for the fourth year. The money could come from summer employment or their funds.
[24] The motion judge stated that the decision to attend university away from home was “within the range of normal for students who can afford the choice”. She held that, in light of the family’s spending pattern prior to separation and family income, such a decision was not unreasonable. After setting out the education expenses that were to be funded, the motion judge observed that it would result in some personal sacrifice for the parents but that such a burden is common to all parents with children who continue on to post-secondary education.
[25] If both children remained at home during their post‑secondary studies, the parties were to share, as post-secondary education expenses, the cost of tuition, books, supplies, commuting costs (including parking) and any other school-related fees. If one child attended university away from home, in addition to those expenses, the cost of residence or other accommodation, meal plan and/or food costs and other living expenses were to be included. Government contributions to the RESP and interest earned by the RESP[2]; scholarships, grants and bursaries; and the imputed contribution of the child were to be deducted from such expenses and the remaining cost was to be shared by the parents with Mr. Lewi paying 77% and Ms. Lewi paying 23%.
[26] With respect to periodic child support, the motion judge ordered continued full Guideline table support if both boys were to live at home during their post-secondary studies of $2,094 per month, based on Mr. Lewi’s annual income of $182,000. However, if a child lived away from home while attending university, table support was ordered for only that period in which the child lived with the respondent, that is, during the four month “summer” vacation. Child support, in such an event, was to be paid on a monthly basis but the amount was calculated as the table amount for one child, plus one third of the difference between table support for one child and two children.
[27] In terms of other s. 7 expenses, the motion judge continued computer and car insurance expenses because “they facilitate the ongoing education needs”. However, the motion judge noted that some of the computer costs related to one-time purchases that would not be repeated and that “the choice of car ownership as the means of transportation includes in it a component that goes beyond necessity”. She therefore fixed the appellant’s contribution for ongoing computer and car insurance expenses at $300 per month. The motion judge held that Brandon’s sports costs were appropriate while he was in high school and “nicely replace the costs of camp” in the Order. She found that they were no longer reasonable and necessary once “the expensive priority of post-secondary education expenses appears”. She ordered the appellant to pay 77% of the hockey costs for Brandon’s final two years at high school, fixed at $1,000 per year.
[28] Mr. Lewi’s appeal raises three issues. Did the motion judge err in:
a) her determination of s. 7 expenses by :
(i) failing to require that Darren and Brandon exhaust their own funds before requiring contribution from their parents for post-secondary education expenses; and
(ii) finding hockey, car and computer expenses to be legitimate s. 7 expenses;
b) failing to properly consider s. 3(2) of the Guidelines when determining the amount of child support; and
c) failing to impute income to Ms. Lewi when deciding apportionment of s. 7 expenses.
[29] In addition, it is necessary to decide Ms. Lewi’s cross-appeal in which she seeks an order for unreduced table support and requiring Mr. Lewi to pay additional support for the children’s post-secondary expenses.
[30] Before considering the issues, it is useful to recall the relevant legislative provisions.
[31] The court’s power to order a parent to pay child support arises from s. 15.1(1) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 (the “Act”), which reads as follows:
15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
[32] Section 15.1(1) makes it clear that the obligation to pay child support depends upon a child being a “child of the marriage”. The definition of “child of the marriage” in s. 2(1) of the Act reads as follows:
2. (1) In this Act,
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but is unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
[33] The amount of child support to be paid for a child of the marriage is a combination of that ordered pursuant to ss. 3 and 7 of the Guidelines. The amount that a payor is ordered to pay for special or extraordinary expenses pursuant to s. 7 is to be “added on” to the child support order made pursuant to s. 3, as s. 7 expenses are not covered by the child support order. See Andrews v. Andrews (1999), 45 O.R. (3d) 577 (C.A.) at para. 25.
[34] Section 3 and the relevant parts of s. 7 read as follows:
3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority 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 relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.
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:
. . .
(d) extraordinary expenses for primary and secondary school education or for any educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
(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.
[35] The appellant argues that parents are required to contribute to their children’s post-secondary education expenses only after the children have first used their own funds to pay for such expenses. As support for this proposition, he points to the guiding principle in s. 7(2) that an expense under s. 7 is to be shared by the parents in proportion to their respective incomes after deducting the children’s contributions. Consequently, the appellant says, the motion judge erred in requiring him to contribute to the children’s post-secondary education expenses and other s. 7 expenses before their own funds had been exhausted. Furthermore, he says that requiring the children to contribute only between $1,000 and $4,000 per year to their education costs is unreasonable, in light of the amount of funds available to them. In his written material, he requests an order that the children pay university expenses out of their own funds, that he contribute $1,500 per year to each child for each year of their first post-secondary degrees and that the parties share equally all additional s. 7 expenses. In his oral submissions (and in his written calculations showing various cost scenarios), I understand him to request an order that the children bear all s. 7 expenses.
[36] The respondent argues that the children ought not to be required to use any of their savings for their post-secondary education. She contends that parents bear the primary obligation to pay for adult children’s post-secondary education expenses and that the motion judge erred in assuming that children have an obligation to draw on their own savings to reduce parental contribution. She points out that the motion judge found the money to have been gifts to the children and that, as gifts, the money belongs to the children and they are free to deal with it as they choose. She says that the money was put aside for the children “to give them a start in life”. In her cross-appeal, she seeks an order requiring the appellant to contribute to the children’s post-secondary education expenses in proportion to his income, without contribution by the children.
[37] In making this argument, the respondent relies on a combination of the wording of s. 7(1) of the Guidelines and the findings of the motion judge. Section 7(1) requires the court, when making an order for s. 7 expenses, to take into account “the family’s spending pattern prior to the separation”. The motion judge found that the parties would have made the necessary sacrifices to contribute to their sons’ post‑secondary education expenses had the family remained intact and that it would be contrary to the family’s spending pattern prior to separation to now require the boys to draw upon their savings to fund their post-secondary education.
[38] The respondent also argues that the motion judge erred in treating accommodation and meal costs as post-secondary education expenses, saying that such costs should be covered by child support paid pursuant to s. 3.
[39] I begin by considering the appellant’s contention that the motion judge was obliged to require the children to exhaust their funds before requiring parental support. In my view, the wording of s. 7 does not support such an interpretation. Had the legislature intended such a requirement, there would be language to that effect. There is none. Rather, s. 7(1) directs the court to take a balancing approach - to set the amount of parental support taking into account “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 separation”. As Blishen J. said at para. 53 of McMahon v. Hodgson (2002), 25 R.F.L. (5th) 102 (Ont. Sup.Ct.), “in considering the post-secondary education expenses, it is necessary to consider the means, needs and circumstances of both the spouses and the children”. I would add that s. 7(1) requires such a consideration to be undertaken within the context of the family’s spending pattern prior to separation.
[40] Moreover, s. 7(2) states, as a “guiding principle”, that parents are to share post-secondary expenses “after deducting from the expense, the contribution, if any, of the child” [emphasis added]. On a plain reading, the words “if any” are an express contemplation that a child may be required to contribute nothing toward such expenses. Every child will have access to some type of financial resources, whether savings, earnings from part-time or summer employment or loans. If a child need not make any contribution toward his or her post-secondary education expenses, there can be no implied requirement that a child must fully exhaust his or her financial resources before the court can order parental support. Having said this, I do not wish to be taken as suggesting that the intent is that the child make no contribution. On the contrary, it appears to me that the intent is that the child is to make a contribution; however, the words “if any” are an express contemplation that, in appropriate circumstances, the child may contribute nothing.
[41] On the other hand, I do not accept the respondent’s submission that it is an error to require the children to use some of their savings as a contribution towards their post-secondary education expenses. Section 7(1) directs the court to set the amount of child support for s. 7 expenses after taking into account the “means” of the child. “Means” must include a full consideration of the funds available to the child for his or her post-secondary education, including savings.
[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 savings and comparable assets of each of the parents ought also to be considered.
[43] To the extent that Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440 (Ont. Sup.Ct.) can be read as support for the proposition that an adult child of the marriage must contribute as much as possible to his or her support and expenses before parents are required to provide child support, I disagree. Section 3(2)(a) of the Guidelines provides that, presumptively, child support for an adult child of the marriage is to be the amount determined as if the child were under the age of majority. That presumption includes both child support for living expenses (i.e. Table support) and child support for special or extraordinary expenses pursuant to s. 7.
[44] I note that the motion judge in Rosenberg v. Rosenberg relies on Fraser v. Jones (1995), 17 R.F.L. (4th) 218 (Sask. Q.B.) and Bradley v. Zaba (1996), 137 Sask. R. 295 (C.A.). In my view, neither case supports the proposition that an adult child of the marriage is obliged to contribute as much as possible to his or her own support and expenses.
[45] Bradley v. Zaba addresses the question of when an adult child in university remains a child of the marriage. The ability of a child to contribute to his or her support is discussed at para. 10 of the reasons for decision. There, the Saskatchewan Court of Appeal says that in deciding whether an adult child remains a child of the marriage, a court may wish to consider such factors as “the ability of the child to contribute to his or her own support through part-time employment”. That does not amount to holding that the child has an obligation to contribute as much as possible to his or her support or expenses.
[46] In Fraser v. Jones, at para. 11, the application judge states that the finding that an adult child in attendance at a post-secondary institution is a child of the marriage which
… does not relieve the child of all responsibility. She has an obligation, insofar as possible and reasonable, to take action to at least contribute towards her needs.
[47] I agree with that statement. An adult child of the marriage has the obligation to reasonably contribute to his or her post-secondary education expenses. However, that obligation does not rise to the level of requiring the child to pay for all of his or her post-secondary education expenses where the parents have the ability to contribute to those expenses. The parental obligation to pay child support, including child support under s. 7 of the Guidelines, arises from s. 15.1(1) of the Act and continues so long as the child remains a “child of the marriage”. Quantification of that obligation is done pursuant to the Guidelines; the Guidelines cannot obviate the parental support obligation.
[48] I consider next the respondent’s contention that the motion judge erred in treating living expenses for children living away from home while attending a post-secondary institution as s. 7(1)(e) expenses. In my view, the motion judge made no error in her treatment of the post-secondary education expenses.
[49] In so concluding, it is important to bear in mind that the recipient of funds under s. 3 is different than the ultimate recipient of funds under s. 7. Table support paid to a recipient parent pursuant to s. 3 is partial compensation for the cost of the child residing with them. A child support payment for s. 7 expenses, on the other hand, is not intended to be a payment into the recipient parent’s hands for his or her own use. It is not a contribution to costs borne by the parent with whom the child is residing. Rather, it is a contribution toward the cost of specified expenses. If such monies flow through the recipient parent, he or she is to act as a conduit and ensure that the money is used for the specified s. 7 expense. Consequently, s. 7 child support is specified separately from child support for living expenses (typically, table support) in child support orders.
[50] The view that table support is based on the assumption that the child is residing in the same household as the recipient parent and that living costs are properly treated as post-secondary education expenses when the child lives away from home to attend a post-secondary institution, was articulated by Heeney J. in Merritt v. Merritt, [1999] O.J. No. 1732 (Sup.Ct.) at para. 73:
Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks, where appropriate, and apportion that between the spouses on a Paras approach after considering the child’s own ability to contribute.
[51] This court quoted the above, with approval, in Park v. Thompson (2005), 252 D.L.R. (4th) 730 at paras. 28-29.
[52] Thus, for Darren, as a child attending a post-secondary education program and living at home, the motion judge properly treated the costs of tuition, books, supplies, commuting (including parking) and other school-related fees as his post‑secondary education requires. For Brandon, as a child attending a post-secondary education program and living away from home, in addition to those costs, there are the added expenses of residence or other accommodation, meal plans and/or food costs, and living expenses.
[53] It remains to consider the appellant’s argument that the amount of the children’s contribution is unreasonable. I will consider each child in turn.
[54] In my view, the appellant is mistaken in his view that Darren is required to contribute between only $1,000 and $4,000 per year towards his post-secondary education. I say this for two reasons.
[55] First, the formula for contribution fashioned by the motion judge makes it clear that for each year of Darren’s undergraduate program, he is to contribute all of his summer earnings, less $2,000, towards the cost of his education. Thus, depending upon the amount he earns in the summers, Darren may contribute more than the specified minimum amounts of $1,000 before first year, $2,000 before second year, $3,000 before third year and $4,000 before fourth year. Those specified minimum contributions, however, ensure that Darren will contribute to his post-secondary education expenses even if he does not have summer jobs or if he receives minimal pay for the work he does obtain.
[56] The second reason relates to Darren’s purchase of a car, at a cost of $20,000, from his savings[3]. Darren’s purchase of a car enabled him to live at home while attending university. The cost of living at home to attend university is significantly less than the cost of living away while attending university. A review of Darren and Brandon’s respective expenses make this clear: Darren’s annual post-secondary costs are estimated at $6,100 whereas Brandon’s annual costs are estimated at between $15,000 and $17,000, unless he goes to the Ivey School of Business for his last two years of his undergraduate degree, at which point his expenses are anticipated to be approximately $30,000 per year.
[57] The evidence on the record is that Darren would have considered going away to university but for the fact that the cost was “prohibitive”, in light of the respondent’s circumstances. Darren’s decision to live at home and commute by car resulted in a much-reduced level of post-secondary expenses. Viewed in this way, Darren has already contributed $20,000 of his savings towards the cost of his post-secondary education. Ignoring the cost of interest on the $20,000 capital outlay and the residual value of the car at the end of Darren’s first post-secondary degree, on this view, over the course of the four years of the program, Darren will have contributed $5,000 annually in addition to the contribution contemplated by the motion judge.
[58] I note, also, that even ignoring the purchase of the car, in his senior years, Darren will contribute a significant portion of his post-secondary expenses. In his fourth year, for example, he must contribute at least $4,000 towards anticipated expenses of $6,100.
[59] In establishing Darren’s level of contribution, the motion judge considered his post-secondary education expenses[4] in relation to the means of the parties and the family’s spending pattern prior to separation. To the extent that the motion judge failed to take into consideration the funds held for Darren, in my view, she erred. However, for the reasons given, I would not alter the motion judge’s determination of Darren’s contribution to his post-secondary education expenses.
[60] As previously stated, s. 7(1) requires the court to consider, among other things, the child’s “means”. In my view, the word “means” encompasses all of the child’s financial resources. In this case, that would include the funds held for Brandon (“Brandon’s savings”). Although the motion judge refers to Brandon’s savings when deciding whether they were impressed with a trust, it does not appear that she considered Brandon’s savings when setting the amount he was to contribute to his post-secondary education expenses. By way of contrast, she expressly discusses the children’s obligation to contribute based on summer employment.[5] Failure to consider Brandon’s savings when determining the amount of his contribution to post-secondary education expenses is an error in principle. Thus, it falls to this court to determine Brandon’s contribution to his post‑secondary education expenses.
[61] Provided that his annual post-secondary education expenses remain in the range of $15,000 to $17,000, in addition to the contribution determined by the motion judge, in my view it would be appropriate for Brandon to contribute $20,000 to such expenses, payable at the rate of $5,000 per year. My reasons for so concluding follow.
[62] The appellant does not take issue with the necessity of post-secondary education expenses. Thus, pursuant to s. 7(1), the task of the court is to determine the amount of support to be ordered based on a consideration of three things: (1) the reasonableness of the expense in relation to (2) the means of the parents and the child and (3) the family’s spending pattern prior to separation.
[63] The motion judge found that, based on the family pattern of spending and family income of $182,000, it was not unreasonable for Brandon to attend university away from home.[6] From that, I understand the motion judge to have found that Brandon’s post-secondary education expenses, based on attendance at an institution while living away from home, were reasonable when considered within the context of the parents’ means and the family’s spending pattern prior to separation.
[64] In relation to the parties’ means, at para. 17 of the reasons, the motion judge found that imposing a contribution on the appellant would not “result in hardship to an impoverished parent” and, at para. 32, she acknowledges that all of the parties’ contributions will come from the appellant’s income, partly through spousal support to the respondent. She also found that had the family remained intact, it would have made the necessary sacrifices to contribute to the children’s post-secondary education[7] and, based on family pattern, that both parents would have promoted post-secondary education.[8]
[65] In considering Brandon’s means, I note three things. First, although not expressly stated, the motion judge found the expenditure of $20,000 of Darren’s savings in furtherance of his university education to be an appropriate contribution by Darren to his post-secondary education expenses. Second, the family spending pattern prior to separation (and, indeed, afterwards) in relation to the children’s savings was to ensure that the children maintained the same amount of savings. Third, Brandon’s savings were the same as Darren’s, prior to Darren’s purchase of a car.
[66] I recognise that it can be argued that Brandon ought to contribute more given that his post-secondary education expenses are significantly greater than are those of Darren. In my view, if Brandon contributes $20,000 from his savings, he will have contributed more than Darren because Darren will have a car at the end of his undergraduate education as a result of his contribution, whereas Brandon will have no such tangible asset as a result of his contribution.
[67] In any event, the real question is what contribution ought to be required of Brandon in light of his means and those of his parents, and the family’s pattern of spending prior to separation. Given that it was appropriate for Darren to use $20,000 of his savings in furtherance of his post-secondary education, that Darren and Brandon are similarly situated in terms of family means and background, and the family pattern of keeping Darren and Brandon’s savings at the same level, a contribution of $20,000 from Brandon’s savings, in addition to the contribution determined by the motion judge, appears fair and appropriate. It also means that Brandon will make a reasonable and meaningful contribution to the overall cost of his first undergraduate degree. For example, if Brandon’s expenses remain at between $15,000 and $17,000, in his fourth year, Brandon will contribute at least $9,000[9], an amount that exceeds 50% of the total expenses for that year.
[68] Such a contribution is consistent with objectives (a) and (d) of the Guidelines. These are set out in s. 1 and read as follows:
1. The objectives of these Guidelines are,
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; …
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
[69] This level of contribution is consonant with objective (a) in that it requires Brandon to make a substantial contribution but also allows him to benefit from the appellant’s financial means, which are considerable. It is consonant with objective (d) as both children will be treated consistently in respect of the amount of their contributions.
[70] In setting the amount of Brandon’s contribution, I have been influenced also by his educational plan. As mentioned earlier, while the record is not entirely clear, it appears that Brandon hopes to take his third and fourth years of university at the Ivey School of Business. Brandon is an exceptional young man and there is every reason to believe that he will be accepted into the Ivey business program as he hopes. If that comes to pass, his post-secondary expenses will rise to $30,000 per year. In accordance with para. 8 of the order under appeal, such a change could trigger a reconsideration of s. 7(1)(e) expenses. In such an event, it is likely that Brandon will be required to make a greater contribution to the costs of his education. If Brandon contributes $5,000 per year from his savings for each of the first two years of his undergraduate education, in addition to the amount he is to contribute from summer employment, he will have sufficient remaining savings to take his third and fourth years at the Ivey School of Business even if ordered to make a substantially greater contribution for those years of undergrad education.
[71] Put another way, in light of the parties’ means and the family’s historic approach to spending on education, I have set Brandon’s contribution at a level that will not so seriously deplete his savings as to put at risk his ability to pursue his educational dreams.
[72] I have had the benefit of reading the reasons of Juriansz J.A. who is of the view that Darren should pay for the entirety of his university education expenses and that Brandon should pay, in addition to the contributions determined by the motion judge, one-half of his post-secondary education expenses. With respect, I disagree that those amounts are warranted for four reasons.
1. In light of the motion judge’s findings of fact, the amounts are contrary to the legislative intent as expressed in s. 7. Section 7 states that the amount of child support for the stated expense is to reflect, among other things, the spending pattern of the parents in respect of the child during cohabitation. The motion judge made an unchallenged finding of fact that had the family remained intact, they would have made the necessary sacrifices to contribute to their sons post-secondary education expenses. Therefore, as the parents have the capacity to contribute financially, the parents should make some contribution to those expenses. Indeed, both parties are prepared to do so. Mr. Lewi’s position throughout is that he has paid $1,500 each year towards the cost of Darren’s post-secondary education expenses and is prepared to continue paying that sum.[10] Requiring Darren to pay all such expenses is to require his parents to contribute nothing directly towards such expenses, this despite their willingness to contribute and despite the motion judge’s finding that the spending pattern of the parents, prior to separation, was such that they would have contributed to such expenses had the family remained intact.
2. In my view, those amounts are inconsistent with the evidentiary record. One of the reasons given for requiring the children to make such contributions is that Ms. Lewi has far less discretionary income that she had prior to separation. I see no evidence to that effect on the record. Even assuming that to be the case, however, Ms. Lewi’s express position is that she is prepared to pay a proportionate amount of the boys’ post-secondary education expenses. As she is willing to use her income in that fashion, I would not presume otherwise. Similarly, I see nothing in the record to support the statement that Mr. Lewi’s financial ability to contribute to such expenses has been affected. In fact, the contrary appears to be the case in that his financial position, as far as it is disclosed on this record, is extremely good. His financial statement indicates that he owns an unencumbered home worth $600,000, that his income exceeds his expenses each month and that he has substantial savings and other assets. He earns in excess of $180,000 per year and lives with his new spouse who earns a substantial income and who pays for a third of the household expenses. He pays for their annual vacations. He has no other dependents.
3. Those amounts are unfair to the children in two ways. First, the children are being required to use their capital (i.e. savings) when the record indicates that the parents could make the necessary contributions from income and neither party has maintained that they would be forced to use savings to pay such amounts. Second, they are unfair from a procedural perspective. The children were not parties to the proceeding; they have never been heard on this matter and yet their rights are being seriously impacted. It may seem that the same criticism could be levelled against the contribution that I would have them make but there is a fundamental difference. The children have already explicitly agreed to use $20,000 of savings in furtherance of Darren’s post-secondary education by virtue of having bought a car for him to use to get to and from university. There is no reason to think they would not be prepared to use an equivalent amount in furtherance of Brandon’s post-secondary education. In that sense, there is implicit consent to that amount of contribution by Brandon.
4. In the circumstances, the amounts create a disincentive for children to save gifts of money.
[73] The appellant challenges the motion judge’s treatment of hockey, car and computer expenses as s. 7 expenses. He maintains that there was no evidence that the expenses are reasonable or necessary. He also contends that computer and travel expenses are not extraordinary expenses and are covered by the payment of periodic child support.
[74] The motion judge held that computer and car insurance remain appropriate s. 7 expenses “because they facilitate the [children’s] ongoing education needs”. I see no basis on which to interfere with the exercise of her discretion in that regard. I do not think it can be seriously contended that she erred in exercising her discretion to include such expenses as post-secondary expenses. Given the distances involved, it is not unreasonable for Darren to have a car in order to attend university in Scarborough while living in Thornhill and both children, as university students, require computers for their education.
[75] Indeed, the parties treated computer and car expenses as expenses separate and apart from those covered by periodic child support. It will be recalled that the Order that governed child support for a number of years was based on a settlement that the parties had reached. Among other things, the Order provided that in addition to periodic child support, Mr. Lewi would pay “section 7 expenses of $200 per month” for computer expenses for both children and car insurance for Darren.
[76] To the extent that the appellant argues that only post-secondary expenses found to be “extraordinary” can qualify as s. 7 expenses, I disagree. Section 7(1)(e) refers to “expenses for post-secondary education”. In categories (d) and (f) of s. 7, the expenses are explicitly qualified by the word “extraordinary”. Had the legislature intended that only extraordinary post-secondary education expenses were to be considered for the purposes of s. 7(1)(e), it would have said so. See McLaughlin v. McLaughlin (1998), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 82 to the same effect. I do not read Park v. Thompson, supra, as suggesting anything to the contrary. The expenses in question in Park v. Thompson included a trip to England, a ski trip to Whistler, clothing for the ski trip, and a cell phone. They did not relate to post-secondary education expenses under s. 7(1)(e). Read in context, it is clear that this court’s determination of whether the expenses in Park v. Thompson were extraordinary arose because the expenses were considered as potentially falling within ss. 7(1)(d) and (f). As noted above, ss. 7(1)(d) and (f) explicitly require the expenses to be “extraordinary”.
[77] In relation to hockey expenses, I note that the Order required Mr. Lewi to share the cost of Brandon’s attendance at summer camp as a specified extracurricular expense. The Order makes no reference to Brandon’s hockey expenses because at the time the Order was made, the respondent accepted sole responsibility for such expenses given their modest cost. Through the motion, the respondent sought a contribution from Mr. Lewi for Brandon’s hockey expense because that expense had increased from a few hundred dollars a year to approximately $1,700 per year, excluding the cost of equipment. The appellant filed no evidence in response to this claim.
[78] The appellant’s financial contribution for extraordinary extracurricular activities under the Order has been reduced because Brandon no longer attends camp. The motion judge noted that the costs of camp were “nicely replaced” by the cost of Brandon’s sports activities and ordered the appellant to pay his proportionate share of those expenses while Brandon was in high school but not beyond. Although not explicitly stated, in my view, the motion judge was exercising her discretion to treat sports expenses as falling within s. 7(1)(f) “extraordinary expenses for extracurricular activities”.
[79] I see no error in the motion judge’s treatment of hockey as an extracurricular activity or in her implicit determination that the expenses in question are extraordinary. While modest expenses arising from a child’s participation in extracurricular activities are to be covered by basic child support, it was within the motion judge’s discretion to find that Brandon’s hockey expenses had risen beyond the ordinary expenses associated with a child’s participation in a sport.
[80] I turn next to the appellant’s submission that the motion judge’s determinations in respect of s. 7 expenses ought to be set aside because there was no evidence before her that the expenses were reasonable or necessary. The motion judge was clearly alive to the requirement in s. 7 that an expense is to be estimated taking into account its necessity and reasonableness; she makes explicit reference to those considerations in her reasons.
[81] The motion judge considered the nature and amount of the putative expenses in light of the amounts on which the parties had previously agreed for the purpose of sharing of expenses. She was clearly aware of the financial positions of both parties and the children. She refused to order additional support for sports expenses when Brandon reached university as “once the expensive priority of post-secondary education expense appears, sports costs must give way as no longer reasonable and necessary”. She reduced the expense claimed for computer costs on the basis that it related to purchases that “need not be repeated” and reduced the expense claimed in respect of the car as it included “a component that goes beyond necessity”.
[82] In considering the submission that there was no evidence that these expenses were reasonable or necessary, it is important also to keep in mind the circumstances in which the motion below was decided. In para. 5 of the reasons, the motion judge notes that this was the third time since separation that issues had reached the trial stage and that each time had been preceded by protracted, expensive litigation. In para. 8 of the reasons, the motion judge states:
Despite this lack of specific evidence, I intend a determination. The parties were set for trial but agreed, for expedience, to seek adjudication by way of motion. Inherent in that agreement is an understanding that they will obtain a judgment circumscribed by the limitations of a motion.
[83] The appellant filed no pleadings on the motion and he gave no evidence in response to the claims for computer or car insurance expenses other than to object to the purchase of the car from the children’s savings. In the circumstances, it is not surprising that the evidence before the motion judge was sparse.
[84] In any event, it cannot be said that there was no evidence before the motion judge that the expenses were reasonable or necessary. The Order under review in the motion below provided that the appellant’s obligation to contribute to the children’s support could be reviewed and adjusted annually and specifically noted that the review was to include a determination of s. 7 expenses. The respondent gave uncontradicted evidence in respect of these matters, including updated information on expenses. The motion judge considered the respondent’s evidence in the context of the full record, including prior court orders and the absence of contrary evidence.
[85] The motion judge had the discretion to award additional support pursuant to s. 7. She properly assessed whether the expenses were reasonable and necessary and was entitled to exercise her discretion based on the respondent’s uncontradicted evidence. I see no error in the approach taken by the motion judge or in the principles that she applied in respect of hockey, computer and car expenses. There is no basis for interfering with her determination of those matters.
[86] The motion judge dealt with the matter of s. 7 expenses at length. She then stated that if both children lived at home while pursuing their post-secondary education that Table support should continue. However, having recognised that living and accommodation expenses would be covered as part of post-secondary education expenses were Brandon to live away from home while attending university, she ordered that in such an event, Table support in relation to Brandon would be payable only for the months in which Brandon lived at home with the respondent.[11] The motion judge makes no reference to any statutory or other authority when discussing Table support.
[87] On appeal, both parties have raised a number of broad ranging and fundamental issues in respect of child support ordered pursuant to s. 3(2) of the Guidelines. In addition, at the oral hearing of the appeal for the first time, the appellant advanced the argument that the children are no longer children of the marriage within the meaning of s. 2 of the Act.
[88] With respect, it is inappropriate to raise such issues for the first time on appeal. It will be recalled that the respondent brought the motion below for a single reason: to seek an increased contribution from the appellant towards s. 7 expenses. The issue of child support pursuant to s. 3(2) was not raised by either party below on the pleadings nor was it argued. Indeed, the appellant filed no pleadings whatsoever below and sought no relief. He defended the motion solely on the basis that the children should be required to exhaust their own funds before he was required to contribute to their post-secondary education expenses. It is not open to him to now argue that the children are no longer children of the marriage or that he ought not to pay child support pursuant to s. 3(2) of the Guidelines.
[89] The problems associated with deciding issues outside the boundaries of the pleadings are well known. See Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.) at para. 60. At its core, the problems arise from the fact that the parties have been denied the opportunity to make and meet the case. Consequently, this court is deprived not only of the benefit of the findings and reasons of the judge at first instance in relation to such issues but also of a record that contains the evidence necessary to properly consider and decide those issues. That problem is magnified in the current case given the paucity of evidence before the motion judge, a matter discussed above.
[90] Accordingly, in my view, there is but one issue to be decided on appeal regarding the motion judge’s order in respect of table support: did she err in varying the Order by requiring the appellant to pay table support for Brandon only for the period in which he lived at home with the respondent? In my view, she did not.
[91] The Order that governed child support for many years was based on a settlement reached between the parties. It provides that the appellant is to pay table support for the children while they live with the respondent. The motion judge’s order is fully consistent with that.
[92] Moreover, it is consistent with the spirit and intent of this court’s decision in Park v. Thompson, supra. At para. 29 of that decision, Rosenberg J.A., writing for the court, held that the application judge had erred because he failed to consider whether table support was inappropriate given that the adult child was living away from home while attending university. In the case at bar, while not stated expressly, it is clear that the motion judge did exactly that: she considered whether table support was appropriate given that Brandon intended to live away from home while attending university. Although not stated explicitly, it appears that she concluded that because she was ordering the appellant to contribute to Brandon’s living costs as part of his post-secondary education expenses, it was appropriate that he pay table support only for the period during which Brandon lived at home with the respondent.
[93] Neither party asked the motion judge to consider the issue of child support pursuant to s. 3(2)(b) of the Guidelines. She cannot be faulted for failing to undertake such an inquiry which would, of necessity, require a great deal more information than that which was before her.
[94] With respect, I do not share Juriansz J.A.’s view that the motion judge determined Brandon’s contribution pursuant to s. 3(2)(b) of the Guidelines as I hold a different view of the relationship between s. 3(2)(b) and s. 7 of the Guidelines. In addition, such a determination is unfair to the parties as they are precluded from bringing a s. 3(2)(b) motion in the future, a matter on which I say more below.
[95] The Guidelines have been enormously beneficial to all those involved with child support issues, be they parents, children or courts. That is due, in large part, to the fact that the amount of child support can be determined quickly and consistently. Section 3(1) of the Guidelines provides that child support for a child under the age of majority is to be (a) the table amount plus (b) an amount for s. 7 expenses. Very often, parties need not have recourse to the courts because once the payor parent’s income is known, the amount of table support can be determined and special expenses are shared in proportion to the parents’ respective incomes.
[96] Section 3(2) of the Guidelines dictates that the amount of child support for an adult child of the marriage is to be the amount determined as if the child were under the age of majority, unless that “approach” is inappropriate, in which case the court is to set the amount it considers appropriate. Based on the structure and wording of s. 3, in my view, the presumptive amount of child support for an adult child of the marriage is the same as that for a child under the age of majority. As Heeney J. wrote in Merritt v. Merritt, supra, at para. 55:
As written, the Guidelines do not say that the amount of child support should be different just because a child is 18 years old. Quite the reverse. The presumptive order is the table amount. It is only where the payor, who has the onus of proof, convinces the court that the table amount is inappropriate, that a different amount may be ordered [emphasis in the original].
[97] Section 3(2)(b) provides that the court may order a different amount for an adult child of the marriage only if the “approach” is inappropriate. What does the word “approach” mean in s. 3(2)(b)? In my view, it refers to the approach set out in s. 3(1), namely, setting child support for living expenses based on the table and setting child support for special expenses based on s. 7. Thus, the court is to follow the table approach to setting child support for living expenses of an adult child of the marriage unless that approach is inappropriate. If it is, the court may order the amount it considers appropriate based on a consideration of the “condition, means, needs and other circumstances of the child” and the financial ability of each parent to contribute to the child’s support. Similarly, the court is to follow the approach to special or extraordinary expenses provided by s. 7 unless that approach is inappropriate. Only if the approach mandated by s. 7 is inappropriate is the court to set an appropriate amount for such expenses, for an adult child of the marriage, based on s. 3(2)(b).
[98] Arnold v. Washburn (2001), 57 O.R. (3d) 287 (C.A.) follows this approach to the setting of s. 7 and s. 3 child support. It does not collapse the two but, rather, for adult children of the marriage, the court considered special expenses under s. 7 separately from child support for living expenses.
[99] Moreover, I do not share Juriansz J.A.’s view that the information required for a s. 7 determination is the same as that required by s. 3(2)(b). Section 7 is largely focussed on income, as opposed to the parents’ full financial situations. The intent of s. 7 is to set out the kinds of expenses that can justify an order for support in addition to that ordered under s. 3, the criteria which the court is to consider in determining whether the expense is justified and, if so, what the amount of the s. 7 expense should be and how the parents and child are to share the expense. The inquiry under s. 7(1) is focussed on the special expense – whether it is necessary and reasonable in light of the means of the child and the parents and the spending pattern of the family while intact. Section 7(2) deals with the amount that each parent is to contribute to that expense by stipulating that, after deducting the child’s contribution, the expense is to be shared by the parents in proportion to their “respective incomes”. It can be seen that just as the amount of child support ordered pursuant to s. 3 depends on the payor’s income, the payor’s income is central to the question of the amount of additional child support ordered under s. 7.
[100] While it is true that s. 7(1) requires a wider consideration than simply income, in that the “means” of the parents and child are to be considered, it is important to contrast that with the wording of s. 3(2)(b) which requires a consideration of the “condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child”. Whatever the word “means” encompasses in s. 7(1), the inquiry must be broader in s. 3(2)(b) as “means” is but one in a list of considerations to which the court must have regard.
[101] Not only is the inquiry under s. 7 more limited in nature than is that under s. 3(2)(b), the discretionary nature of the amount of support ordered under s. 7 is far more restricted than the discretion conferred under s. 3(2)(b). Thus, amounts ordered pursuant to s. 7 are more predictable as they are largely a function of the parties’ respective incomes. Not so child support pursuant to s. 3(2)(b) where there are no criteria circumscribing the expense and there is no guiding principle on the allocation of expenses as between the parents.
[102] Furthermore, collapsing s. 7 into s. 3(2)(b) ignores the fact that the ultimate recipient of the funds is different under the two sections, as explained above. It results in two children in the same family being subject to different legislative provisions in respect of post-secondary education expenses solely because one child lives away from home while attending university. As s. 7 specifically applies to post-secondary education expenses, in my view, the fact that he attends university away from home is insufficient to make the approach mandated by s. 7 to the setting of such expenses inappropriate, such that recourse to s. 3(2)(b) is necessary. Most children attending post-secondary education are the age of majority or older. And, by moving from the defined criteria in s. 7 to the open-ended type of discretion in s. 3(2)(b), it runs contrary to objective 1(b) of the Guidelines which is to increase objectivity in child support calculations.
[103] The difference between the evidence required for a s. 7 determination and that required by s. 3(2)(b) is well illustrated by the case at bar. Ms. Lewi sought an increased contribution for s. 7 expenses. The materials filed in support of the motion were limited. Those filed by the appellant, as respondent to the motion, were extremely abbreviated. Nonetheless, the motion judge was able to determine what the post-secondary expenses were, whether they were necessary and reasonable, and what amount each party ought to contribute to those expenses.
[104] On my view of the order below, if Ms. Lewi feels that it is inappropriate that she receive table support for Brandon only for the months when he lives with her on a full time basis, she would be free to return to the courts and argue, pursuant to s. 3(2)(b) of the Guidelines, that setting support based on the table approach is inappropriate and that she ought to receive some other amount that recognises the on-going costs she bears because she maintains a home sufficiently large that it can accommodate Brandon when he returns from university on weekends, holidays and during the summer recess. However, she will make the decision whether to undertake that litigation knowing that she would bear the burden of proof of demonstrating that the table approach to child support is inappropriate. At a minimum, in my view, s. 3(2)(b) dictates that she would have to provide evidence on three matters in addition to evidence of income.
[105] First, in order to show that the table approach is inappropriate, she would have to address the costs associated with maintaining a home for Brandon to return to from university. This evidence would include information on the size of the mortgage on her home; what portion of the mortgage is attributable to maintaining a residence large enough to accommodate Brandon when he lives with her for any length of time; the cost of utilities, water and taxes and what part of those ongoing costs are properly attributable to providing Brandon with accommodation when he is not at university; and, the living expenses associated with Brandon’s weekend and holiday visits home.
[106] The second type of evidence would be directed towards meeting the requirement in s. 3(2)(b) that the court have regard to the “financial ability of each parent to contribute to the support of the child[ren]”. This type of financial information goes far beyond the information required to show the “means” and “income” of the parties in s. 7. It suggests an examination of the full extent of the parents’ financial situations, including a consideration of their assets and savings and what has happened to their respective financial positions since separation. Arguably, the reasons for any significant changes in the parties’ financial positions will be relevant to their ability to contribute to the child’s support.
[107] Even the limited record in this case reveals the complexity likely to arise when such matters are before the court. Ms. Lewi says that her financial position has deteriorated since separation because she has borne the bulk of costs associated with raising the children. Mr. Lewi says the decline is a result of her inappropriate spending and failure to obtain employment. Obtaining the requisite financial information is likely to be costly and time consuming. The process of each party challenging the other’s information is likely not only to be protracted but also highly conflicted, as well as costly and time consuming.
[108] The third type of evidence that would have to be led relates to the child’s situation. As noted above, s. 7(1) requires the court to consider the reasonableness of a proposed expense in relation to, among other things, the “means” of the child whereas s. 3(2)(b) requires the court to have regard to the “condition, means, needs and other circumstances of the child”. Whatever the word “means” encompasses for the purposes of s. 7(1), it must necessarily be less fulsome in nature than the inquiry into the child’s situation is pursuant to s. 3(2)(b). For one thing, the issue of the child’s means in s. 7(1) is for the limited purpose of determining the reasonableness of a particular expense.
[109] Similarly, on my view that the order below was made pursuant to s. 3(2)(a), Mr. Lewi has the right to return to court to argue that the table approach for either or both of the children is inappropriate given the extent of their resources and that some other amount should be ordered pursuant to s. 3(2)(b). Again, however, if he chooses to engage in such litigation, he will do so knowing that he bears the burden of proof and that s. 3(2)(b) requires much evidence in order to discharge that burden.
[110] In the circumstances of this case for the reasons already given, there is no basis on which to interfere with the motion judge’s order in respect of table support on the assumption that it was made pursuant to s. 3(2)(a). Neither party requested that she make an order pursuant to s. 3(2)(b). The evidence necessary to make such a determination was not before her nor is it before us. Furthermore, to uphold her order on the basis of s. 3(2)(a) preserves the right of both parties to return to the court to litigate the appropriateness of table support pursuant to s. 3(2)(b). As such, it respects the fairness principle that underpins the adversarial process in that both parties will be free to make and meet the case of the appropriateness of table support. Accordingly, I have assumed that the motion judge acted pursuant to s. 3(2)(a) in relation to both Darren and Brandon and would leave undisturbed her order in that regard.
[111] The appellant argues that if the court finds that there are valid s. 7 expenses and that the children do not have an obligation to pay all such expenses, income should be imputed to the respondent for the purpose of determining the parties’ respective contributions to the s. 7 expenses. He contends that although the respondent struggles with depression, she could find some measure of employment and that it is not unreasonable for her to be in a position now to achieve some self-sufficiency and contribute to the support of the children. He points to s. 1 of the Guidelines which states that one of the objectives is “to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation.” He asks for an order that all s. 7 expenses be shared equally between the parents.
[112] As has been noted, the appellant filed no pleadings in the motion below. He did not seek to have spousal support varied nor did he make a claim for an order imputing income to the respondent. The respondent submits that in those circumstances, and in light of the appellant’s acknowledgement of the respondent’s continued dependency and the respondent’s evidence with respect to her dependency, the motion judge’s determination of the parties’ relative capacities to pay was correct.
[113] I agree and would, therefore, dismiss this ground of appeal.
[114] In the cross-appeal, the respondent asks that the appellant be required to pay unreduced table support for twelve months of the year and increased support for s. 7 expenses. For the reasons given in the main appeal, I would dismiss the cross-appeal.
[115] Accordingly, I would allow the appeal in part and order that para. 6 of the order dated February 14, 2005, be varied to reflect these reasons requiring an increased contribution by Brandon to the costs of his post-secondary education expenses. I would dismiss the cross-appeal. In light of all of the circumstances including the appellant’s limited success, I would make no award as to costs.
“E. E. Gillese J.A.”
[116] I have read the reasons of Gillese J.A. I, too, would allow the appeal in part and dismiss the cross-appeal. However, I take a different view of the motion judge’s decision and the provisions of the Guidelines she was required to consider. This leads me to undertake a different analysis. I, too, would allow the appeal in part and dismiss the cross-appeal, but reach a somewhat different result regarding the contributions expected of the children to their own education expenses.
[117] Gillese J.A. limits her consideration of the issues to s. 7 of the Federal Child Support Guidelines, S.O.R./1997-175 (the “Guidelines”) as the order under appeal was made on Ms. Lewi’s motion for increased child support pursuant to s. 7. I, however, am of the view that account must be taken of s. 3(2) of the Guidelines as the motion concerned children over the age of majority. As I explain, this case raises the issue of children’s contribution to their post-secondary education both under s. 7 and s. 3(2)(b) of the Guidelines, though on the facts of this case, I see no difference in the analysis to be employed or the conclusion that would result. I would find that the motion judge erred by failing to require the children to make a contribution to their post-secondary expenses out of their capital.
[118] I rely on the complete rendition of the facts provided by Gillese J.A. and repeat only those facts essential to my reasons.
[119] The separated parents have two sons, Darren born February 9, 1985, and Brandon born April 15, 1987, who live with the respondent. In March of 2004, the respondent brought a motion to vary the child support order then in place, seeking an increase in the appellant’s contribution to s. 7 expenses including post-secondary education expenses. Darren was then attending his first year at the University of Toronto Scarborough campus, while residing with his mother. Brandon was in high school but planned to attend the University of Western Ontario in the fall of 2005 and live in residence. Darren is now in his third year at the University of Toronto. Brandon is in his first year at the University of Western Ontario.
[120] The appellant earns $182,000 per year, is remarried to a spouse earning $80,000 per year, lives in an unencumbered home valued at $600,000, and has no other children to support.
[121] The respondent is unemployed and receives spousal support of $3,500 a month from the appellant. She lives in a home she values at $600,000 with a mortgage of $291,500.
[122] During the boys’ childhood, before the parties separated, the paternal grandfather gave the boys gifts of money that at the date of separation amounted to $67,000 per child. The information before the motion judge at the time of the application was that Darren had investments of $41,821.07 and a car purchased for $20,000. Brandon had investments worth $41,822.28. In addition there was a RESP in the children’s joint names in the amount of $7,140.35. The reduction in the boys’ assets, which were administered by the respondent, was not due to expenditures but to investment losses.
[123] I agree with Gillese J.A. that the appellant cannot raise for the first time on appeal the question whether the boys are children of the marriage. This appeal and cross-appeal is about the amount of child support ordered. Whether children of majority age are “children of the marriage” under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 (the “Act”) determines the threshold issue whether they are eligible for support. That is an analytically distinct question from the quantum of support to be ordered for them, which involves different considerations and the application of different provisions.
[124] A brief discussion of s. 3(2) of the Guidelines is necessary for me to indicate why I consider it implicit that the motion judge considered it, and to explain why it was necessary for her to do so.
[125] While the motion was brought when Brandon was still a minor, it was prospective in nature in that it sought contribution for the boys’ post-secondary education expenses when they both would be over the age of majority. The amount of child support for a child over the age of majority is to be determined pursuant to s. 3(2) of the Guidelines. Section 3(2) can only be understood in the context of s. 3(1). Section 3 provides:
3.(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority 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 relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.
[126] Section 3(1) provides that the “amount of a child support order” for a minor child is composed of two components: the amount set out in the applicable table and the amount, if any, under s. 7. The tables referred to in s. 3(1)(a) are the Federal Child Support Tables set out in Schedule I of the Guidelines. Section 7 allows a court to provide for an amount to cover all or any portion of special or extraordinary expenses. As I read s. 3(1), expenses ordered under s. 7 are not added to the amount of a child support order, but are part of it. I understand Laskin J.A.’s comment at para. 25 of Andrews v. Andrews (1999), 45 O.R. (3d) 577 (C.A.) to describe an expense under s. 7 as an “add-on” to the table amount. While the application of s. 3(1) is subject to the exception “unless otherwise provided under these Guidelines,” there is a presumption in favour of the amount determined by s. 3(1): Francis v. Baker, [1999] 3 S.C.R. 250 at para. 42.
[127] Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.
[128] Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. It is apparent that the word “approach” was chosen with care, as the word “amount” is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the “amount” determined under s. 3 where it considers that amount to be inappropriate. The words “that approach” refer to the technique dictated by s. 3(2)(a)—namely applying the Guidelines “as if the child were under the age of majority”. I will refer to that technique as the “standard Guidelines approach”. Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.
[129] The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.
[130] In two earlier decisions of this court, Arnold v. Washburn (2001), 57 O.R. (3d) 287 (C.A.) and Park v. Thomson (2005), 77 O.R. (3d) 601 (C.A.), this court has referred to the issue of the “amount” determined under the Guidelines being inappropriate in the context of s. 3(2)(b). In both those cases, the court’s discussion makes it apparent that the issue raised was whether applying the standard Guidelines approach to a child of majority age was inappropriate in the particular circumstances. In my view, neither case decided that a court may resort to its discretion under s. 3(2)(b) merely because it considers the “amount” that results from the standard Guidelines approach to be unsuitable.
[131] I have already indicated my view that the appeal cannot be confined to a consideration of s. 7 of the Guidelines alone. That Ms. Lewi’s motion materials mentioned only s. 7 and neither party expressly relied on s. 3(2)(b) did not restrict the motion judge from considering other provisions of the Guidelines that might be pertinent. Ms. Lewi brought a motion to vary an earlier child support order. As s. 2(4) provides, the order sought is governed by the whole of the Guidelines. The motion concerned child support for children of majority age and required consideration of s. 3(2) of the Guidelines.
[132] It is worth noting that in Park v. Thompson, supra, this court found the application judge had erred by failing to consider s. 3(2)(b) even though it had not been pursued. In Arnold v. Washburn, supra, Carthy J.A. noted (at para. 10) that “the trial judge never did turn to s. 3(2) of the Guidelines to determine if the amount otherwise indicated by the Guidelines was appropriate for children of the age of majority.” On appeal, Carthy J.A. nonetheless considered and applied s. 3(2)(b).
[133] The motion judge, however, did not expressly refer to s. 3(2) of the Guidelines. I consider it apparent, however, that she implicitly considered that section. She varied the amount of table support payable by Mr. Lewi, a matter that is dealt with under s. 3 of the Guidelines and not s. 7. I have already stated that the motion judge was required to consider s. 3(2) as the motion before her concerned child support for children of majority age.
[134] It is a reasonable inference that the motion judge determined child support for Darren under s. 3(2)(a). For Brandon, under the scenario that he would go away to university, the motion judge determined support under s. 3(2)(b).
[135] In her reasons, the motion judge stated that, “Darren has chosen to remain at home. His undergraduate university expenses are therefore moderate and his living expenses are addressed through table Guideline support”. This indicates that she was not persuaded that it was inappropriate to apply the Guidelines as if Darren were a minor and proceeded to determine child support for him under s. 3(2)(a).
[136] I see no basis to interfere with the motion judge’s approaching Darren’s support as if he were a child under the age of majority and concluding his living expenses were to be addressed through table Guideline support.
[137] In respect of Brandon, the motion judge said,
[I]f one boy attends university away from home Table support is reduced from support for 2 children to support for 1 plus 1/3 the difference between one and two. This amount is to be paid monthly throughout the year but reflects that one child is only home for 1/3 the year.
[138] No matter what view one takes of this statement, it indicates the motion judge considered it inappropriate to apply the Guidelines as if Brandon were a minor throughout the year. Under the standard Guidelines approach of s. 3(1), a child support order for a minor child must include the amount stipulated by the tables (unless ss. 4, 9, or 10 apply). In my view, the motion judge considered it inappropriate to treat Brandon as a minor because he would be living away from home for eight months of the year. There is no other basis upon which she had discretion to depart from the standard Guidelines approach.
[139] It seems the motion judge went on to deal with Brandon’s special expenses, which would be incurred during or in respect of the eight months he lived away from home, under s. 7. In my view, having concluded it was inappropriate to treat Brandon as a minor, she should have dealt with child support for him under s. 3(2)(b). However, this is of no consequence as, in the circumstances of this case, I see no difference in analysis or result.
[140] Thus, this case raises the issue of children’s contribution to post-secondary education expenses under both s. 7 (for Darren) and s. 3(2)(b) (for Brandon). I would find that the motion judge erred in the way she dealt with the contribution expected of each of them.
[141] Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses.
[142] Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. (Whether credit is within the ambit of “means” does not arise on this appeal.) The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child.
[143] There are several indicators in s. 7 that the court is required to consider the child’s ability to make a contribution toward post-secondary education expenses. First, s. 7 requires the court to take into account the necessity and reasonableness of the expense in relation to the “means of the spouses and those of the child” (emphasis added). The phrase “all or any portion” in s. 7 (1) allows the court to provide an amount to cover only a portion of the expense at issue. Most apparent is s. 7 (2), which provides that amount of the expense to be shared by the parents is arrived at “after deducting…the contribution, if any, from the child”.
[144] I agree with Gillese J.A. that the motion judge did not consider whether Darren and Brandon should make a contribution to their post-secondary education expenses out of their capital assets. The contribution she expected them to make was from summer earnings she imputed to them. Her remark about the money coming from the trust is simply an observation of the consequence if the imputed income was not earned and contributed.
[145] In my view, the motion judge did not consider the purchase of Darren’s car to be a capital contribution towards his education expenses. The car had already been purchased and she found that, “[t]he choice of car ownership as the means of transportation includes in it a component that goes beyond necessity”, and allowed only a portion of its insurance cost as a s. 7 expense.
[146] No doubt because of the way the matter was argued before her, the motion judge focused on whether the gifts from the grandfather were in trust for the boys’ education. She found that there was no designated education fund. In finding that the boys were not required to use the gifted money for their education, she said “I am not satisfied that there is a term [that the money be used for education] that could be enforced even if I find that was the settlor’s intention.”
[147] Respondent’s counsel argued that the money was given to the boys as gifts and they could use it in any way they wished. That is true. The issue, however, is not whether there was a legal requirement that the money be used for the boys’ education, but rather, whether the boys should be expected to contribute to their education expenses out of their own money.
[148] It is worth noting that the motion judge could not, and was not called upon to make an order requiring the boys to expend their funds as the court directed. The issue before the motion judge was the amount of child support to be paid by one spouse to the other. In deciding that question, the court was obliged to consider the means of the children and the contribution they should be expected to make to their post-secondary education. The order made on the motion for child support could affect the legal rights and obligations only of the parents and not of the children. For this reason, I consider the question whether Darren owes Brandon $10,000 for the purchase of the car to be beyond the ambit of this proceeding.
[149] The motion judge did consider the effect of her order on the parents. She found that the order would place a significant financial burden on both parents that would require some personal sacrifice. She found that the expenses were of a type that both parents would have promoted had the family remained intact. In her order, she sought to preserve the existing proportion of net disposable income between them. These are all proper concerns whether the analysis is performed under s. 7 or s. 3(2)(b).
[150] The error of the motion judge was in failing to include the boys’ capital assets in the analysis. In fact, in her reasons she did not even state what those capital assets are. The fact that Darren has $41,821.07 and Brandon has $41,822.28 is found in the record, but was not mentioned in the motion judge’s decision. Counsel for the mother conceded that there is no place in the motion judge’s reasons where the means of the children and the means of the parents are considered together and balanced.
[151] The motion judge noted that her disposition requires the mother to contribute $945.72 to the special expenses in the school year 2003/2004 increasing to $4,189.95 in 2005/2006, which will be Darren’s fourth year and Brandon’s second year. The mother’s sole income is $3,500 month in spousal support.
[152] The four scenarios set out by the motion judge have the father’s income increasing from $180,000 to $182,000. She calculates his total child support obligation as being $28,042 in the 2003/2004 school year, with the amount of $1,666 still owing. That obligation increases to $33,332 in 2005/2006. In addition, the father was ordered to pay $300 a month or $3,600 per year in other s. 7 expenses. The father also pays spousal support in the amount of $42,000 per year.
[153] In the context of this level of sacrifice by his parents, the motion judge’s order would leave Darren with $45,653.50 and a four-year-old car upon graduation. The motion judge’s order would leave Brandon with $45,822,28 upon graduation.
[154] Neither s. 3(2)(b) nor s. 7 contain any indication whatsoever of the level of contribution a child of majority age with funds should be expected to make to his or her own post-secondary education expenses. Under both provisions, the question is largely a matter of discretion for the trial judge.
[155] Section 3(2)(b) simply specifies general criteria to which the court must have regard. As Carthy J.A. observed at para. 22 in Arnold v. Washburn, supra, the focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support”.
[156] Section 7 also specifies some general criteria and leaves it to the court’s discretion to decide:
1. whether the court should provide an amount to cover all or a part of an expense;
2. the reasonableness of the expense;
3. the means of the spouses;
4. the means of the child;
5. the family’s spending pattern prior to separation;
6. the amount of the contribution of the child, if any; and
7. whether the court should depart from the guiding principle that the spouses should share the expense in proportion to their incomes.
[157] It seems to me that the court, in order to exercise its discretion properly under either section 3(2)(b) or section 7, when parties dispute the amount of contribution expected of a child, requires the same kind of information regarding the needs of the child and the means of the child and parents. Nor would the contribution the child is expected to make and the support the parent is obliged to provide necessarily be different under the two provisions. In my view, in fashioning an order applying the broad criteria in 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would, I think, be the same under both provisions.
[158] I agree with Gillese J.A. that the all or nothing positions advanced by each of the parents in this case must be rejected. There is nothing in the Guidelines that implies that children of majority age with capital assets should be required to contribute all of their assets towards their post-secondary education before their parents are called upon to provide support, or that such children should not have to make any contribution out of their capital.
[159] Both s. 3(2)(b) and s. 7 of the Guidelines require that the means of the child must be considered along with the means of the parents. Section 7, in addition, refers to the contribution of the child, if any. I do not understand this to indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute. In my view, the amount of child support that a parent is ordered to pay should be determined, as a general rule, on the expectation that a child with means, in this case independent assets, will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b).
[160] As the motion judge did not consider the extent to which the children should be expected to contribute to their own education expenses out of their capital assets, her disposition cannot stand and must be set aside. As discretion to decide the amount of that contribution is the motion judge’s, the usual disposition would be to remit the matter. This would cause additional expense and inconvenience to the parties. I note that the parties agreed to avoid a trial and have the issues determined by way of motion on a limited record. That limited record is before us and I would decide the matter in the summary fashion the parties elected. Before doing so, it is necessary to deal with Ms. Lewi’s cross-appeal, as the amount of the child support order to be made in respect of education expenses will depend on other amounts ordered.
[161] In the cross-appeal, Ms. Lewi asks that Mr. Lewi be required to pay unreduced table support for twelve months of the year and to contribute to the children’s post-secondary education expenses in proportion to his income without contribution by the children. For the reasons just given above I would dismiss the second aspect of the cross-appeal.
[162] Counsel for Ms. Lewi submitted that the motion judge erred by failing to determine child support for children according to the presumed approach of s. 3(2)(a) of the Guidelines. She submitted that unreduced table support throughout the year is consistent with the principles articulated in Francis v. Baker, supra and would promote the objectives of the Guidelines stated in s. 1. She described the approach set out in Merritt v. Merritt, [1999] O.J. No. 1732 (S.C.J.) as formulaic and pointed out that the living expenses covered by table support would still be incurred even though the child was away at university. For example, the child would not be eating at home, but table support could be applied to the meal plan of the university’s residence. Stating the obvious, she observed that costs go up, not down, when children go away to university. The proper approach, she submitted, is to order unreduced table support, apply that table support to as much of the living expenses of the child at university as possible, and resort to s. 7 for the additional costs of post-secondary education. This approach, she submitted, would preserve the objective and predictable calculation of child support pursuant to the Guidelines and reserve the bulk of discretion to the application of s. 7. This approach, she submitted, must be used unless the husband establishes, with clear and compelling evidence, that it is inappropriate.
[163] In my view, it would have been open to the motion judge to proceed in this way. However, the decision of this court in Park v. Thompson, supra, makes it clear she did not err by concluding it would be inappropriate to apply the Guidelines to Brandon as if he were a minor because he would be attending a university out of town.
[164] It may also be observed that having taken this view, she could have used a different analysis to arrive at the reduced table support for Brandon. For example, she could have regarded the portion of table support for Brandon as one half of the table support for two children, rather than the increment in table support for one child to two children. It may also be said that one-third table support for Brandon, while reflecting that he would be living at home only one-third of the year, fails to recognize the ongoing costs of maintaining a home for him to return to during the summers and other holidays.
[165] Nevertheless, the reduced table amount must be considered in the context of the entire child support order. The motion judge was entitled to exercise her discretion to reduce table support for Brandon in ordering, in total, an amount she considered appropriate having regard to the criteria in s. 3(2)(b).
[166] Regarding the motion judge’s reduction of the table amount for Brandon as an exercise of discretion under s. 3(2)(b), I would dismiss the cross-appeal. If I viewed the motion as limited to the application of s. 7 alone, I would have allowed the cross-appeal on the basis that the motion judge had no discretion to depart from the table amount.
[167] Though Darren’s contribution is to be determined under s. 7 and Brandon’s under s. 3(2)(b), I would analyze the contribution to be expected of each child in the same way.
[168] In addition to the evidence regarding the amount of the children’s anticipated post-secondary expenses, their assets, and the means of the parents set out above, I would consider the evidence regarding the source of the funds and the parents’ intentions regarding post-secondary expenses before separation.
[169] I agree with the motion judge’s finding that the evidence did not establish the grandfather constituted an educational trust. However, I would bear in mind his evidence that he made the gifts of money to the children for their education. I would not attach great weight to the fact the parents paid the private school fees of the children when they were minors. They are no longer minors in elementary or high school. In my view, a spending pattern deserving of weight would be where the parents had paid the post-secondary education expenses of older siblings before separation.
[170] At the same time, I would heed the unchallenged affidavit of Ms. Lewi that prior to separation,
There was never any discussion about an education fund for the children as there appeared to be no need for one. At that time we were both working and had a significant family income. The monies gifted to the children were always viewed by us as a nest egg for them to get a start in life, i.e. to help buy their first home, a car, etc.
[171] It is fundamental that the lifestyle of children should suffer as little as possible as a consequence of their parents separating. If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated. That proposition applies to this case. However, regrettably, circumstances have changed. The major difference is that it is no longer the case that both parents are working and earning a significant family income. At the present time, the source of the child support contributions of both parents is the employment income of Mr. Lewi. While he is a relatively high-income earner, his financial ability to contribute, and the reasonableness of the entire expense in relation to the parents’ and the children’s means has been affected. Ms. Lewi has less discretionary income than she had prior to separation. She deposed that her “circumstances changed dramatically” after she became unemployed and she has had to downsize her home twice.
[172] The motion judge found the children’s education expenses would be a “significant financial burden” on the parents, but one they could afford by making “personal sacrifice”. The money the grandfather gave to the children for their education is available. As the motion judge’s order of table support for Darren remains in place and he is living with his mother, both parents continue to make significant contributions to his support while he attends university.
[173] Finally, I observe that the structure of the motion judge’s order may be regarded as a disincentive to earn more than the income she imputed to them. Under her order, any amounts they earn above the minimums she set must be contributed to their expenses. If they do not earn more than the minimum, their parents must pay for the remaining expenses. As the order I make would leave the boys with assets even if they do not work, it is possible and preferable to simply set the amount they are expected to contribute and leave it to them to earn as much as they can during the summers.
[174] Considering these matters, in the case of Darren, I would determine the amount of child support on the expectation that he will pay his entire educational expenses for tuition, books, supplies, parking and orientation. The motion judge’s order that he make a contribution out of imputed summer earnings becomes redundant and I would set it aside. Darren is simply responsible for his own education expenses.
[175] I would also set aside the term of the motion judge’s order requiring the parents to restore to this capital the contribution made to the RESP out of it. The money in the RESP must be directed to education expenses in accordance with the requirements of the government programme that governs it. A remedy for any misallocation of the children’s money to the RESP at an earlier time is beyond the scope of a motion regarding child support. This comment should not be taken as a suggestion there was any misallocation in this case.
[176] Darren’s share of the RESP will reduce the total of his undergraduate expenses, as estimated by the trial judge at $24,167.57, to about $20,000. Assuming that there is no change in his assets of $41,167.57 and that he applies $10,000 of his summer earnings to his expenses as the motion judge considered he should, he would be left with more than $30,000 in capital assets on graduation. [$41,821.07 –$24,167.57 + $10,000 + $3,500 from the RESP].
[177] Brandon’s situation is more complex and his expenses are much higher. Yet Brandon, though a child of the marriage for the purposes of the Divorce Act, is an adult who is responsible for the choices he has made. He has chosen to go to university out of town at much greater cost. I would order an amount of child support for him that expects a commensurately greater contribution from him, while still leaving him with assets on graduation that are roughly comparable to those Darren will be left with. I would order an amount of child support based on the expectation that he will contribute one-half of his educational expenses. I would set aside the order that he contribute $10,000 out of summer earnings. For the reasons given, I would also set aside the term of the order that the parents restore the contribution to his capital made to the RESP.
[178] Using $16,000 as the average estimate of the motion judge of his yearly undergraduate expenses, Brandon’s total expenses would $64,000. His share of the RESP would reduce that to about $60,000. Ignoring any scholarships or bursaries he might receive, the order that he pay one-half of his expenses would require him to contribute an additional $30,000. Assuming no change in his capital of $41,821.07, and that he applies $10,000 of summer earnings to his expenses as the motion judge expected, he can expect to have almost $22,000 in assets on graduation. [$41,822.28-(50% of $60,000= $30,000) + $10,000 = $21,822.28]. I would not consider the scenario where his expenses rise to $30,000 per year in his third and fourth years. The motion judge proceeded on the basis that a claim for post-secondary education expenses outside the range of $15,000 to $17,000 would constitute unforeseen circumstances that would trigger a reconsideration.
[179] The motion judge did not order any contribution to Brandon’s hockey expenses after he completed high school. He was a minor at the time.
[180] The principle that, as a general rule, support for children of majority age with capital assets should be determined on the expectation that they will make some contribution to their special expenses applies to the computer and car expenses as well.
[181] The motion judge did not order the whole of the amount claimed for computer and care expenses. I would regard the shortfall as the expected contribution of the child concerned to the expense. Understood in this way, I would not interfere with the motion judge’s disposition in regard to these matters for the reasons provided by Gillese J.A.
[182] As Gillese J.A. points out, the appellant did not seek to have spousal support varied. I would not entertain his argument on appeal that income should be imputed to the respondent.
[183] For these reasons I would allow the appeal in part, and make the modifications to the child support order I have indicated. I would dismiss the cross-appeal.
“R. G. Juriansz J.A.”
“I agree R. A. Blair J.A.”
[1] The Order erroneously stated that child support was $1,873. On consent of the parties, Eberhard J. made an order on March 30, 2005, correcting that amount so that the figure was $2,073.
[2] The motion judge was careful to ensure that funds in the RESP were properly used and accounted for. See paras. 18 to 21 of the reasons.
[3] To the extent that Brandon’s funds were used to pay for part of the purchase price of Darren’s car, it would seem that steps should be taken to ensure that those monies are repaid to Brandon. If the car belongs to Darren, it is Darren who ought properly to bear the cost of its purchase.
[4] Which the motion judge found to be “moderate”.
[5] See paras. 7, 22 and 23 of the reasons.
[6] At para. 27.
[7] At para. 17.
[8] At para. 32.
[9] $5,000 contribution from savings plus at least $4,000 from summer employment earnings.
[10] I recognise that it is possible to argue that counsel for Mr. Lewi appeared to resile from that position during oral argument. However, in all written documentation, he maintains his willingness to continue to pay $1,500 per year towards Darren’s post-secondary education expenses.
[11] Although Table support was ordered for Brandon for only four months of the years in which he lived away while attending university, it was made payable on a monthly basis. See para. 16 above.