Oczkowski v. New – an analysis
familylawcanada.org
by Susanne Hallan
Related:
My intent was to research a case in Ontario Family Law, where a Justice had made an innovative ruling, with special attention to the background history of said case, making a determination of pivotal aspects of the case, and ultimately to express the case in lay terms.
For this, I chose the ruling of Madam Justice Cheryl Robertson (Superior Court of Justice – Ontario) in the case of Oczkowski v. New. Full disclosure – I accessed all the documentation, direct and secondary, dealing with the history of this case, but did not connect directly or indirectly with either of the litigants. While researching, I found the online article first listed above. The second listed article contains numerous links to additional writings on estrangement.
I broke the research into five areas.
1) History of the case
2) 2006 History of shared expenses
3) 2011 Appropriate application of funding
4) 2011 Meeting required amounts under S.7
5) 2011 Findings of the Court
The documentation for this case was somewhat copious, including numerous e-mail exchanges. Justice Robertson’s innovative and perhaps precedent-setting ruling reflected the confusion and lack of clarity that existed between the two parties’ respective positions.
The inserted references are my selection of what I felt was relevant to understanding this case and the decisions. The italicized passages are direct quotes from the decision (citation and order) of Justice Cheryl Robertson. (citation and order at bottom)
History of the case
The mother and father, Yolanda Oczkowski and David New, had separated in the early 1990s. This was not the first court appearance between these litigants. In 1998, there was litigation initiated by the mother, the mother seeking full custody of the two children, Karl and Kelly. Her motion was dismissed after a brief appearance.
In 2006, the mother (Oczkowski) commenced a second action against the father (New). This action was to establish support for the son, who had recently begun residing with the mother full time. The mother had already been receiving support for the daughter for several months. Up until this time, the children had been living equal amounts with both parents, and no support was involved.
History of shared expenses
In the 2006 submissions, the mother presented that the father had been irresponsible in previous years when it came to mutual expenses for the children, claiming she had paid or would end up paying for most extra expenses.
From the 1998 litigation, the mother claimed that a joint account set up for mutual child expenses had been on occasion “left short” by the father’s irresponsibility. In response, documentation showed that the cumulative shortfall in the father’s contribution was between $50 and $100 over the entire six year span. The father further claimed in 2006 that the mother, for a period of six years after the initial separation, had not “shared” the monthly government child benefit with him, despite the residential arrangements being 50/50 between households. The father revealed that during the entire history of this joint account, both parties were depositing $50 a month into the joint account, but that he had discovered after 6 years that the mother was receiving over $100 a month from the government child benefit, of which she had neither informed him, nor applied the funds mutually. He claimed this omission on the mother’s part resulted in his out-of-pocket expenditure over 6 years of $3600, while the mother’s contribution of $3600 was not out-of-pocket, but from the child benefit, and she had retained the additional roughly $4000 for herself as well. He presented that if the mother had applied the $100-125 monthly child benefit appropriately on behalf of both parents, all mutual expenses would have been covered for all 6 years without any disagreement or conflict. He had brought this forward to challenge the mother’s propriety in allocation of mutual expenses.
The father never sought redress on the issue of the mother’s appropriation of the entire child benefit. In the 1998 litigation, the father as well did not seek “equalization” payments from the mother to accommodate the disparity between his single-income household, and the mother’s double income household, a disparity exacerbated by the mother’s actions surrounding the child tax credit.
A further example from the 2006 litigation, where the mother referred to both children’s orthodontia as an expense for which she was responsible.
It is surprising the mother would raise orthodontia as an issue. In the father’s response, he supplied documentation establishing that he had paid out of pocket 50% of the cost of the orthodontia. The mother’s 50% had actually been covered by her workplace insurance.
Parents are required by the Guidelines to contribute to Special or Extraordinary Expenses in proportion to their respective incomes after deducting the reimbursement or payment from any insurance benefits.
Reference: (bolding mine) Ontario Family Law Act 7.1. -Parents are to “provide for an amount to cover all or any portion of the following expenses” – 7.1.c “health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;”
The process in such situations where a child’s health-related expense, in this case orthodontia, was covered by insurance, is that, regardless of which parent holds the policy, it is the child who is “covered”, not the parent. Any remaining uncovered portion is divided proportionately between the two parents. In this case, specifically, half of the children’s orthodontia was covered by insurance, leaving the remaining 50% to be covered proportionately by both parents, yet the father covered the entire remaining 50%, or roughly$4000.
Therefore, despite the cost of orthodontia being one of the areas the mother put forth as an example of the father’s irresponsibility, the mother made no out-of -pocket expenditures towards orthodontia, while documentation showed the father contributed the full $4000 amount that remained after insurance, despite the requirement that this portion should have been a shared expense.
In 2006, there was little dispute as to the amount of support, nor the entitlement for support to be paid for both children. The issue brought forth by the father to the Court was that, as the son was of age and leaving for university the following fall, and as he had concerns about proper allocation of funds, the father desired to pay the support directly to the son. In resolution, Justice Robertson applied the standard approach, ruling that support for the children would be paid to the mother. She also awarded costs to the mother.
What is most fascinating about this particular case, is that the same Justice would find it necessary to rule in a diametrically opposite and innovative manner with the same litigants four years later.
Appropriate application of funding
The children had apparently terminated their relationship with their father. One of Justice Robertson’s intended goals with this ruling was to, in her words, ” maximize (the daughter’s) emancipation“. This is a curious statement, as the daughter had already “emancipated” herself from her father, there remained only one situation from which the daughter would need “emancipation”.
Reference: Nick Bala – “The Guidelines approach may be inappropriate where the custodial parent continues to have a negative influence over the child in undermining the child’s relationship to the payor parent. In these cases the court can divert the needed support from going to the custodial parent instead allow the payor parent to contribute by paying directly for tuition or special expenses. This effectively cuts off the alienating parent from any direct benefit from the payor parent. In Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (BC. S.C.) at para. 44 – 46Martinson J. ordered that the payor parent make support payment directly to the child.” (Nick Bala, Frontenac Law Association Legal Conference, Gananoque, Oct. 3, 2008)
In the 2011 action, (first filed in 2010) the mother, initially self-represented, claimed that the father had not met the requirements of support for the children’s Section 7 post-secondary expenses.
She also had involved the children in the exchanges with the father through e-mails, claiming that this was done for “transparency”. This sort of behaviour is traditionally frowned upon by the court, and was subsequently labeled by Justice Robertson as a “pretext”. This involvement resulted in a number of contentious exchanges between the children and their father.
The mother, in e-mails which she chose to share with the children, criticized “inconsistencies” in the father’s regular monthly support payments. The father was paying support through the Family Responsibility Office, by garnishment of his pay. These “inconsistencies” are actually a frequent complaint of support recipients, but are a result of the logistical clash of the FRO’s monthly payment system, and the common bi-weekly pay schedule of many payors. Support payors, in this case the father, have no control over the garnishment and payment schedule applied by the FRO. An aside: a large portion of support payors will register “in arrears” in the early part of each month, again a quirk of the garnishment system.
In reference to S.7 expenses, documentation established that both the father and the mother had proportionately covered initial tuition, residence and related expenses as outlined in an accounting of the expenses prepared by the children and the mother. Ultimately, as illustrated in a number of e-mail exchanges, the disconnect seemingly stemmed from the application of the ongoing monthly base support payments of just over $1000 made by the father. The mother was entitled to apply the full support payment to household expenses, but this entitlement should have only been during the summer months, while the children were living at home. During the academic year, however, the full $1000 should have been directly forwarded/applied to the children. However, it was claimed by the mother in an e-mail to the father (and shared with the children) that in addition to the full payments during the summer months, she was entitled to keep half, or just over $500 of the base support payments each of the 8 months of the academic year to apply to her household expenses. This position was accepted by the children, rationalized in an e-mail as “numerous expenses that cannot be turned on and off “
The mother stated in the e-mail that she took this position “after consultation”. The mother’s e-mail (bolding mine) – “Sorry for the delay but consultation took longer than anticipated. The support is not tied to the time frame the children are actually living in the house as there are numerous expenses that cannot be turned on and off i.e. insurance. In addition as you know support is to maintain the residence while they are absent. The required amount is 1/2 of the amount you pay as per the federal guidelines, hence $537.50 per month”
The mother was demonstrably incorrect. As per precedent established in Lewi v. Lewi, support is very clearly tied to the “time frame the children are actually living in the house”. As well, again as clearly decided in Lewi v. Lewi, support is definitively not to be used “to maintain the residence while they (the children) are absent.”
Reference: Nick Bala – (bolding mine) “If the Guidelines approach is followed when the child is away much of the year, this would result in the payor parent essentially paying for the upkeep of the custodial parent’s home instead of going towards support for the child. Typically, as in Lewi, if a child is only spending three or four months of the year with the residential parent, that parent will only receive 1/3 or 1/4 the Table amount for that child, while the payor will also be required to pay a portion, or all, of the costs of post-secondary education.” (Nick Bala, Frontenac Law Association Legal Conference, Gananoque, Oct. 3, 2008)
It has been firmly established in precedent (Lewi v. Lewi) that the residential parent is not entitled to apply any of the base support payments for upkeep of the residential parent’s home while children reside away at university – the entire amount of base support payments should be applied directly to the children’s expenses while away at post-secondary institutions. This can be handled two ways – either apply the full amount of base support for the summer months to household expenses, with the full amount of academic-year payments going directly through the recipient to the children, or by having the 4-month summer entitlement amortized over 12 months with the 8-month child entitlement also being amortized to the children over 12 months.
In her go-forward order, Justice Robertson clearly speaks to the correct application of monthly support in that the daughter will receive support that “should include 4 months base guideline support for the summer months to be amortized and payable over 12 months.” . This ultimately confirms the application of Lewi v. Lewi, that a residential parent only receive the amount of base support for the months the children are at the home, and must apply the full amount of monthly support to the children’s direct expenses while the children are away at post-secondary.
In this case, however, the mother applied the full amount of the father’s monthly payments ($1017) to household expenses as entitled during the 4 month summer break, but seemed to have further retained half the amount of the father’s monthly payments ($500+) during the school year, a time when all funds should have been applied directly to the children, and nothing should have been retained.
It is therefore unclear with whom the mother “consulted”, as these protocols are standard knowledge in family law. Again, with the mother involving the children in exchanges, it seems that the children accepted the mother’s erroneous position.
Every expense for the children, even automobile insurance, was included in the budget submitted by the mother for S.7 expenditures, as noted below. The mother maintained that the father had not met his proportional share, but it seems that that claim (as explained above) was based on the mother’s contention that she was allowed to keep the half of the father’s school-year payments to “maintain the residence”. Therefore it seemed clear that this $500 amount being retained was applied solely to the mother’s own house expenses.
As support payments are direct support for the children, during the 8-month school year, a portion of the father’s ongoing monthly payments became a de facto deduction by the mother from the children’s entitlement, a monthly amount of slightly over $500 inappropriately retained by her to maintain her residence for when they would return.
Retention of this monthly amount of $500 to apply to the mother’s household expenses rather than S.7 expenses would add up to over $4000 a year ($500 times the 8 month academic year) that should have been directed to the children, in addition to the $4000 that the mother credited the father with applying, through forwarding only half of his monthly payment. Coupled with the expected proportionally equal contribution from the mother, and understanding that tuition and residence had already been paid by both parents, there should have been over $2300 a month, (the father’s $1017/month and the mother’s proportional amount of $1348/month) or $18,920 over the 8-month school year period made available to the children. That would mean each child should have received almost $1200 each and every month from both parents combined, even after tuition, fees and residence had been paid by both parents. As he was paying through the FRO, the father had no way to get his portion directly to the children.
There is nothing in the transcript to suggest any court discussion of the mother’s claim and practice of retaining half of the school year monthly payments for maintenance of her home. As the Justice may not have been aware of the mother’s retention of these amounts, it would explain the Justice’s portrayal of the mother as “generous”. The mother may have been generous, but it could be argued that she was generous with the father’s payments.
Meeting required amounts under S.7
The appropriate application of support directly received by the mother would have been more than sufficient to cover the much smaller mid-academic-year tuition installments on behalf of both parents, although up until the year of litigation, the father had covered his portion of the initial and the mid-year payment for the son above and outside of his regular monthly support payments. With the father’s monthly payments, and the mother’s contribution, any mid-academic-year payments should have been easily covered, leaving a substantial amount remaining to apply to the children’s living expenses and unexpected costs, enough to cover all the expenses as listed by the mother.
Prior to the mother’s filing, the father consulted a lawyer to clarify and confirm the expectations and protocols, confirming his position that he would “not pay twice”, and requested that the mother apply the accumulated funds appropriately to cover smaller mid-year tuition installments. Both the mother and the children rejected the concept that there had been an accumulation of funds, seemingly accepting the mother’s position of an entitlement to keep over $500 a month for her household expenses. Indeed, given that the base amounts of tuition and residence had already been paid by both parents, and considering that continued monthly payments from the father should have been proportionately matched by the mother, with appropriate management on the mother’s part, the children should always have had a reserve for sudden expenses.
The mother submitted to the court a budget for both children of $22,000/yr each, (noticeably above the commonly accepted average cost of $18-19,000) for a total of $44,000. These budgets were quite comprehensive and included tuition, residence fees in the case of one child, living expenses, travel costs, car insurance, books, spending money, computers, a replacement computer for the son, summer rent for houses in the cities where universities were located, moving expenses, and furniture. By the time the case was heard, there were actually two years of finances on which to base a finding. Justice Robertson found that the father has met and exceeded his proportionate share of all the expenses listed and as submitted by the mother. The Justice noted that she historically “would have ordered less” for the father’s payments if payments had been previously settled by a court.
In the year initially used as the basis for litigation, the father had paid a total of $23,800 in support/tuition/S.7 expenses, with only just over $4000 of which the mother was entitled to keep for household expenses during the summer. (again as noted by Justice Robertson – “4 months base guideline support for the summer months to be amortized and payable over 12 months”). This left the father’s contribution of $19,600 to the overall budget of $44,000 as submitted by the mother, close to $1000 over his required proportional contribution of 43% of S.7 expenses. Again, however, it seems the mother kept an additional $4000 to which she was not entitled during each academic year.
This was interestingly played out in an exchange of e-mails. The mother further claimed to the father, in an e-mail again shared with the children: “You have no legal right, nor do you have any personal privledge (sic) to instruct me on how much money I am to send … per month let alone, even comment on how I deal with this” The father actually did have a right to expect that existing legal precedent and established legal protocol would be followed. The father erred in not pursuing this in court earlier in the children’s education, only responding once litigation had been initiated by the mother.
The father inquired to the mother as to what amount she was sending to the son each month while he was away at university. The mother responded that the son “received 950.00 per month and some months in the latter half more”. When the father pointed this claim out to the son, the son, contradicting his mother, responded to the father very clearly and angrily that he did not receive $950 a month, and “never had”. As explained above, the son should have been receiving over $1200 a month total from both parents collectively.
The son had also mentioned that his mother and her partner had frequently given him money when his “money ran out”. It is puzzling how either child could ever “run out” of money. While possibly redundant, it is important to again clarify the process. Keeping in mind that initial tuition and academic expenses, as well as residence for one child, had already been covered proportionately by both parents, and the father’s portion of those expenses was paid by him outside and above his scheduled monthly FRO payments, the mother had already used her full annual entitlement for her household expenses by applying the full monthly support payments from the father during the four summer months. Therefore, as outlined above, during the academic year each child should have been receiving $520 a month each from their father’s payments and the larger proportionate amount of $715 each from their mother . Collectively, each child should have received a total of roughly $1200/mth, (beyond the already-paid tuition, residence, and other S.7 expenses) each and every month in which they attended university. (again understanding that the mother had already used her full entitlement of the father’s payments during the summer) Considering that, in addition to both children’s tuition, the daughter’s residence costs had already been covered by both parents, above and beyond the father’s ongoing monthly payments, the daughter may not have needed $1200/month. which meant a proportionately larger monthly amount might have been appropriate for the son. Regardless, since the shared expenses of tuition and residence had been covered by both parents, there should have been over $2400 a month collectively ( $1200 each child) being made directly available to these two children, (again, after tuition, fees and residence had been covered) – the over $1000 that their father was providing, and a proportionately higher “matching” amount that their mother should have been providing. Even without the mother’s contribution, the father, having already met requirements for maintenance of the mother’s home during the summer months, further provided $8000 through support payments during the 8-month academic year for direct support of the children. There is no documentation as to precisely how much the children did receive each month. Again, the father had no mechanism to ensure that his payments were forwarded directly to the children, and had no accounting of the mother’s monthly contribution to the children.
The mother deposed she contributed over $3,200 to the daughter over 1 ½ years for supplies, food, books, and spending money when the daughter “ran out” of funds. It is unclear whether this $3200 contribution was in addition to the expected $1180 per school month ($6000 total over 1 ½ school years) that the mother, as manager of all funds, should have been forwarding to each child every month during the school year. And again, as explained above, neither child should have “run out of money” if the father’s payments had been applied appropriately, and his payments appropriately and proportionately matched by the mother.
In the summer before the academic year in question, the son had reported an income of roughly $8500, the daughter $3400, for a total close to $12,000. There is no question that the father met and surpassed his proportional contribution, as noted by Justice Robertson. With the father’s required contribution to the mother’s submitted budget being met and exceeded, even excluding the children’s claimed contribution to their own expenses, and with whatever amount the mother did contribute, neither child should have ever “run out of money”, and neither child should graduate with any debt.
As well, as the court found that the father had fully met his portion of the $44,000 budget (again, a budget itemized and submitted by the mother), logic indicates that if the mother had fully met her remaining portion of her submitted budget, neither child should actually have had to use any of their own funds.
Further, as the father’s portion was clearly covered by him, and the children’s income considered, any contribution to the children’s expenses by the mother’s partner, any provincial tuition grant, or any tax reductions received by the mother would have simply been of benefit to the mother, reducing her portion, but not “covering” any of the father’s or children’s portion. This is acknowledged by the Justice – ‘‘ The father has not benefited from any tax credit transfer from either child. I have taken into account that the mother, Karl and Kelly will negotiate between them the transfer of any income tax credit that may be consequential to their academic programs.” and further illustrated by Justice Robertson’s go-forward position that “any contribution to (the daughter’s) support by the step-parent is a bonus to (the daughter) and will not reduce the payments by either parent”.
Summation
Succinctly, for the years in question, documentation showed that through a number of avenues (FRO, direct payment to universities, etc. ) the father contributed on average just under $24,000 in each of the two years: roughly $12,000 in direct payments for tuition, residence and other school expenses, and a further $12,000 through his monthly support payments through the FRO. The mother was only entitled to apply $4000 of the father’s contribution to her household expenses (for the summer months), but by her own statements, appears to have applied up to $8000 to those expenses.
Subtracting the mother’s household entitlement of $4000 from the $23,800, there was roughly $19,500 paid by the father each year both directly and through the FRO that should have been applied to S.7 expenses. For clarity, a reminder that the budget submitted by the mother was comprehensive, and included all items (insurance, replacement computers, etc.) that the mother repeatedly claimed through e-mails to the children that the father had made no contribution. Example: “Once again we will come through for the children. WE WILL PAY FOR (the son’s) COMPUTER – BE CLEAR YOU HAVE MADE NO CONTRIBUTION.” (capitalization hers). In analysis, it is clear the father had indeed made his proportionate contribution to all expenses, including this computer.
It is interesting to note that the mother sought approximately $4000 in support “arrears” from the father. It seems in analysis that over the two years in question, the mother inappropriately retained twice that amount from the father’s payments.
2011 Findings of the Court
Succinctly, the mother submitted a comprehensive, all-encompassing budget. Justice Robertson noted that the mother’s motivation was that “She just wants the father to pay his fair share of the children’s expenses.” Justice Robertson found that the father had paid his “fair share”, having met and surpassed his full portion of the S.7 expenses outlined in the budget submitted by the mother, and additionally having met requirements for support and maintenance of the mother’s home, which, as indicated in Lewi, was an entitlement only for the 4 months of the summer when the children were at her house. Based on the amounts submitted by the mother, Justice Robertson found that there were no arrears owed by the father.
Succinctly, the Justice found that each child had been receiving (or should have received) equivalence of “parental support of $1,823 per month (note: this figure was calculated by amortizing the tuition payments over 12 months) or $21,879 annually” coming directly from both parents, before consideration of any third party benefit or contribution. This amount, quite simply, matches the extensive comprehensive $22,000 budget that the mother submitted for each child. That budget had been and will be met by the two parents alone, before any contribution from either child or any third party. Each child has and should have previously had close to $22,000 each solely for any and all expenses surrounding their education.
As the father’s contribution through the FRO was determined and fixed, any contribution to their own expenses by the children from their own earnings would have provided a saving to the mother, and any contribution to the children’s expenses by the mother’s partner would have provided a saving to the mother. Any governmental source, such as provincial grants, tax reductions or refunds, would have provided a saving to the mother. The father gained no benefit or saving from any third party contribution. Justice Robertson suggested that the mother ensure that the children receive either the credit or the funds from any tax benefit. “The father has not benefited from any tax credit transfer from either child. I have taken into account that the mother (and the children) will negotiate between them the transfer of any income tax credit that may be consequential to their academic programs”.
It is not clear if the Justice had considered whether there had been appropriate application of the father’s monthly payments, as well as the issue of what matching contributions the mother made to the children during the school-year month.
Justice Robertson’s description of the mother as generous in providing $3200 when the daughter’s money ran out is somewhat inconsistent with the above explanation of how neither child should have run out of money, and does suggest the Justice was unaware of the retention of funds ($500/month during the school year) by the mother.
The mother claimed the father was “difficult” in financial discussions. The father repeatedly stated that he “would not pay twice”. It is of note in the citation that Justice Robertson said of the father (bolding mine) “I do find he has not sought to shirk his financial responsibilities to his children” She further writes “ The father did not ask the court to consider any legal arguments to reduce his child support.” The Justice continues by listing the numerous legal arguments the father could have made to reduce or eliminate his payments, none of which the father pursued. “He did not raise issues about the children’s ongoing legal entitlement to support. He did not ask his payments be terminated or discounted because the children have unilaterally withdrawn from their relationship with him. He did not ask that the long term step-parent contribute towards the children’s costs ….”
The father made no effort to reduce or eliminate his support. The father met and surpassed his required contribution, again based on the budget submitted by the mother. In analysis, the father’s continued position that he “would not pay twice” most likely had validity.
It is also of note that the Justice found that the mother had disrespected her daughter’s privacy by bringing forward counseling costs but not seeking compensation. The Justice stated “The mother’s choice to raise it without relevant financial claim invades the child’s privacy and serves no legitimate purpose.”
Again, it is puzzling why the mother would reference this. As Justice Robertson outlined in her citation, inclusion of the coverage provided by the father’s workplace benefits would have covered his portion of the cost of this counseling, yet would not have entitled him to any participation in, nor information about the counseling. Given that, it is puzzling why the mother chose to first, not inform him, (especially as the counselling began while the child was a minor in a joint custody scenario) and second, not seek to have him cover his portion through his benefits, but then subsequently bring this issue to the court’s attention as somehow negatively reflective of the father.
It would be hoped that the financial issues would not have been the basis for, or even contributed to, the children’s distance from their father. Contrary to the mother’s claims, the father fulfilled and surpassed his requirement for S.7 expenses, and also met his required contribution to the mother’s home expenses. In addition, as noted by the Justice, the father would have actually been required to contribute less if an order for S.7 expenses had been established earlier. As well, the court recognized that the father made no effort whatsoever to shirk his responsibility.
Illustrative of this is the reality that Justice Robertson’s go-forward amount to cover the father’s portion of a substantial all-inclusive $22,000 annual budget for the one child still requiring support is $784 per month, substantially less than the averaged $914 per child per month ($1827/mth total, documented regular support payments plus documented lump sum payments) that the father had previously being paying towards the $44,000 budget for two children. Yet the lesser $784 ordered from the father, along with the mother’s suggested contribution, will still provide a $22,000 income for the child, identical to the budget the mother suggested had not been met by the father. This again indicates that the father’s previous contributions had easily met his required portion.
The Justice had already directly compensated the mother for the summer during which the decision was rendered (2011), by allowing full support amount (for two children) to continue for two months of the summer, thereby balancing out the entire summer for the one child still eligible for support. “By continuing the ongoing $1,017 payment for part of this summer after (the son’s) graduation, I have factored in that (the daughter) is living with her mother this summer”. Therefore, as of July 1, 2011, the mother would not receive any further funds from the father, having already been compensated by the father for that summer, and hence, from July 1st, 2011, all the funds from the father would go directly to the daughter. (an unusual and innovative resolution)
While many laypersons do not understand why settlement offers must be made, both parties made the requisite offers to settle. Neither party accepted the other’s offer to settle.
Reference: Mary-Jo Maur – “Ultimately, it is the Judge in Family Court who decides when to order costs. There are, however, some general principles to keep in mind. The winner of a contested step in a court case (for example, a motion or a trial) is more likely to get costs. ……. If the other party behaved “unreasonably” in the case, you are more likely to get court costs” (ontariofamilylawblog)
The father was awarded costs.
Conclusion
In its simplest terms, the issues in this case are relatively straightforward:
1) The mother, by her own statements, seems to have kept twice as much of the father’s school-year monthly support payments to which she was entitled, for maintenance of her home. It seems she did not apply the father’s monthly support payments appropriately to S.7 expenses as required.
2) The father paid and surpassed his appropriate contribution to all expenses, through both regular monthly support payments and lump-sum payments, again those expenses as calculated in the mother’s comprehensive budget (maintenance of the mother’s house when the children lived there, S.7 expenses, and additional living and education expenses for the children.)
3) The total budget. as submitted by the mother, was met by the combined contribution of both parents, before any child or third party contribution. Given possible transfer of tuition claims to the mother and the subsequent tax refund, given the mother made it clear in her correspondence and submission to the court that her partner had contributed to S.7 expenses, and given that the children and mother both claimed that the children contributed extensively to their own S.7 expenses, it would be interesting to determine if the mother in actuality contributed substantially less “out of pocket” than the father.
4) Given the father’s appropriate contributions, given that tuition, fees and residence were provided above and separate from the father’s monthly payments, and coupled with what the mother should have contributed, there were sufficient funds to the extent that neither child should have run out of money. There were sufficient funds to cover monthly, term, year and unexpected expenses. There were sufficient funds that neither child should graduate with any debt.
5) Justice Robertson allowed the father to make payments directly to his daughter, removing the mother as manager of at least his funds. She also suggested that the mother contribute a proportionally appropriate amount to the daughter every month.
6) By doing so, and by allowing the daughter to decide the format of payment, rather than ordering payment through the FRO, the Justice displayed a certainty that the father was reliable and would meet his share of contribution to S.7 expenses, as he had previously.
In this case, both parties possibly erred by not seeking counsel earlier: The mother, in not seeking confirmation or clarification of the father’s claim that she was not entitled to keep any portion of the academic year payments, and the father, in not sooner approaching the court to clarify and establish correct protocols to ensure that the money he was paying was applied correctly where it directly supported the children. The conflict between the parties, including the children, might not have occurred.
Link to Justice Robertson’s Citation and Order
Update, September 2014
In October of 2011, the father received a communication from his daughter questioning why he had made no contribution to her expenses since July 1st of that year. Correspondence showed that the father had made offers to his daughter immediately after the release of the ruling to start direct deposits to her account every two weeks, even knowing that it would take the FRO several months to process the end of payments to the mother. The daughter chose to receive her funds through the FRO. After July 1, 2011, as the process slowly wound through the FRO, the father continued to pay the FRO over $1000 a month, which was still being deposited in the mother’s account.
The Justice’s order was very clear. Full payments 0f $1017 during May and June of 2011 (after the son graduated, and was no longer eligible for support) would fully pay the mother’s entitlement for the daughter for the summer of 2011. As of July 1st, the mother was to receive no further funds from the father, and all his subsequent support would be payed directly to his daughter.
Despite this very clear ruling, the correspondence from the daughter indicated that the mother, for reasons unknown, had failed to forward any of the payments she received after July 1st to the daughter. The mother was not entitled to any funds after, July 1, 2011, yet, despite continuing to receive funds as the FRO processed the court order, at no time forwarded those funds to her daughter, or at least acknowledged the source of funds, consistent with the intent of Justice Robertson’s order.
The correspondence from the daughter also accused the father of somehow thwarting application of the order by not granting “consent”. Consent was not required, so it is unclear on what information the daughter based this accusation.
Interestingly, however, the processing of the ruling was delayed by the technicality that the daughter had not initially been named as an applicant in the litigation, and therefore could not be directly “awarded” any support. Her name needed to be added to the proceedings, so that she could be named recipient of the funds. This did take about 6 months.
Regardless, during that time, the father continued to fully pay his ordered support through the FRO, and provided bridge funding until such time as the revised order was processed by the FRO. Unfortunately, in the early stages, a good portion of the father’s support was not forwarded by the mother to the daughter. The daughter did eventually (or should have) received these funds.
In many ways, this failure to forward support funds to the daughter (or acknowledge their source) may have been illustrative of the father’s concerns of an historical misapplication of funds.
Oczkowski v. New, 2011 ONSC 3932
2011-06-22
CITATION: OCZKOWSKI v. NEW, 2011 ONSC 3932
COURT FILE NO.:607/05
DATE: June 22, 2011
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: YOLANDA KATHARINE OCZKOWSKI, Applicant
– and –
DAVID FOSTER NEW, Respondent
BEFORE: MADAM JUSTICE CHERYL ROBERTSON
HEARD MARCH 30, 2011
COUNSEL: DEBORAH SWARTZ for the Applicant
MARK S. LAFRANCE for the Respondent
ENDORSEMENT ON MOTION
[1] By motion to change, the parties seek to determine the correct support and section 7 contributions for their two university aged children, Karl, now 23, born February 8, 1988 and Kelly, almost 20, born June 26, 1991. The mother requests additional help. The father submits he overpaid but does not ask for a refund. Both parents concede material changes in circumstances. At the time of the 2007 order, Kelly was a high school student living with her mother. Karl was in university. Karl graduates in May 2011. Kelly is going into her third year of university.
LAW
[2] When children are over the age of majority and attending post secondary school full time, Section 3(2) of the Federal Child Support Guidelines governs the calculations of child support. Section 3.2(a) states that support should be the table amount, (including section 7 special expenses), unless it is deemed inappropriate in which case support is dictated by section 3(2)(b) and will be the amount the Court considers appropriate, having a 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. No criteria accompany the word “appropriate” in the legislation. Generally, when applying section 3(2) (b), Courts take a budget driven approach. Child support is usually just about money and math.
[3] I find the full table amount plus S. 7 expenses is inappropriate for this family. As set out in Lewi v. Lewi 2006 15446 (ON CA), (2006), 80 O.R. (3d) 321, 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”. Blishen J. noted [page332] at para. 53 of McMahon v. Hodgson, 2002 49552 (ON SC), [2002] O.J. No. 555, 25 R.F.L. (5th) 102 (S.C.J.), “in considering the post-secondary education expenses, it is necessary to consider the means, needs and circumstances of both the spouses and the children”.
FACTS
[4] When these parties separated in 1992 or 1993, the children were preschool aged. There is little evidence of the family’s spending pattern prior to separation and it would be of little help given the length of separation.
[5] The parents agreed on some facts:
(a) The Respondent father’s current income for support purposes is $74,201.00;
(b) The Applicant mother’s income for the purposes of this motion is $101,075.00;
(c) The father’s proportionate share is 43%; the mother’s share is 57%;
(d) Kelly will live at her mother’s home this summer. For this year, support should include 4 months base guideline support for the summer months to be amortized and payable over 12 months.
[6] These are hard working, successful parents with hard working, and successful children in appropriate programs. This motion is heard at the sunset of their economic childhood. The stated objectives of the guidelines include a reduction in conflict and tension between the parents and an objective calculation of support while establishing fair support from both parents. [1]
[7] In this family, money issues have crept into the relationships. These parties have fought between themselves about proper support and S. 7 contributions for years. The conflict is chronic and passionate.
[8] Both parties are extremely well represented. They have tested many strategies for resolution, including a partial consent in 2010. Each parent believes they are fair and reasonable. I do not criticize either parent for their belief. They have different expectations arising from their family experience although they share values of higher education for their children.
[9] The mother describes the father as aggressive and argumentative. She is frustrated by the process and financial arrangements. She just wants the father to pay his fair share of the children’s expenses.
[10] The mother copied the now adult children with emails to the father under the pretext of transparency and information. The children responded to him directly with inappropriate emails. The mother voices support to the father as a parent but he feels vilified by her in the eyes of the children. She denies denigrating him to the children. Regardless of the cause, the relationship between the father and these two adult children is broken. The children terminated their relationship from the father except for financial payments by him. This is very sad for him and for them. He struggles to determine the cause and to fix it. He has taken a therapeutic personal path to figure out what went wrong. He engaged in counseling.
“in order to sort out my feelings in terms of how our children were treating me, and the best manner in which to respond to the children when issues were raised. I have learned that my love for them cannot be conditional upon these feelings being reciprocated. Over time, I truly hope that our children will understand that I have supported them throughout their academic careers, and I am, as is their mother, truly proud of their accomplishments.”
[11] The mother is fed up as well. She does not want to be blamed for the father’s problems with the children. It is unclear how the estrangement happened from the initial joint custody arrangement. No one has identified a single, sinister event at the root of the conflict.
[12] I cannot comment about whether the father is difficult. I do find he has not sought to shirk his financial responsibilities to his children. The father did not ask the court to consider any legal arguments to reduce his child support. He did not raise issues about the children’s ongoing legal entitlement to support. He did not ask his payments be terminated or discounted because the children have unilaterally withdrawn from their relationship with him. He did not ask that the long term step-parent contribute towards the children’s costs or raise a hardship issue given the disparity of income in the two homes. According to the mother’s financial statement, the step-parent earns $96,000 per year.
[13] I find the father’s payments are appropriate, and declare there are no arrears for either child. I would have ordered less.
[14] Detailed budgets were prepared by the children and submitted by the mother on their behalf. The father does not dispute the education costs. The father proposes a total budget for Kelly of $17,716 with an expectation she will contribute $2,000 from earnings. The mother’s budget is higher.
[15] I find the children’s lifestyle budgets very liberal but not lavish. There is no indication if the children’s apartments are sublet in the summer months when they return to the mother. This family cannot afford two vacant apartments.
[16] I find their entertainment and transportation expenses are high given the family resources. For example, both children’s monthly transportation expenses total $585.00. This consists of:
(a) Karl’s transportation expenses at $350.00 per month- car insurance of $155.00, return train to Kingston $160.00 general other transportation costs $35;
(b) Kelly’s transportation is less, at $235.00 per month mostly because her car insurance rates are less at $75.00, train $125.00 and other transportation of $35.
[17] Karl’s entertainment expense is $150 month, and Kelly’s is $100. The mother’s budget is $100. The father’s budget is $50.
[18] The mother claims a variety of small capital expenses including new bar fridges, moving expenses, dishes, kitchen appliances, linens and computer related expenses. Karl had some bad computer luck resulting in extra expense. His first computer was damaged in an accidental beer spill. This was eventually rectified by the other student’s parents but the mother fronted the cost of replacement. Then Karl’s hard drive crashed resulting in a substantial cost. The mother deposed she contributed over $3,200 to Kelly over the last 1 ½ years for supplies, food, books, and spending money when she ran out of funds. She is a very generous parent. That is her right and hopefully the children will recognize her exceptional contributions. The law, however, does not require the father to match her liberal standard.
MEANS
[19] The children’s tax returns are attached to the materials. In 2009 Kelly’s earnings were $3,439 and Karl earned $8,192. There was no indication of their 2010 incomes. Both children had summer jobs and I find they have contributed about one half of their earnings to some of the costs which exceeded their budgeted amounts. The father is wrong in his assumption that the children’s earnings were not factored into their budget. I accept the mother’s submissions in this regard. In essence, she states they contribute to gas, school supplies, utilities, lifestyle, books etc. The result is their actual expenses exceed their filed budgets.
[20] Although the parties earn respectable incomes, [mother: $101,075, father $74,201.00], their asset base is minimal and their lifestyles are modest. The mother forthrightly disclosed her shared expenses with her partner.
[21] Though courts do not generally guess, it may be that the costly pursuit of determining best interests over the years eroded their financial positions. There are no deep pockets to reach into. Regardless of the cause, the reality is two parents with good jobs, sensible lifestyle expenses, lots of debt and few assets. Their investments are their children.
[22] The mother’s current financial statement indicates she has a 2003 Toyota and a 2000 Buick, a home valued at $175,000 and a line of credit at $170,000. Factoring in her other assets and debts, her current net worth is $41,426. The father’s financial statement shows a 1999 Dodge Caravan, and no real estate, savings or business assets besides his teacher’s pension. He has debts of $34,540 for a negative net worth of ($32,990). In 2005, their financial statements showed the father’s net worth to be -$22,010 and the mother’s to be +$18,415. Her current position seems to be improved only by the increase in the value of her house. Her current debts are $173,000 compared to 2005 when her debts were $128,085. Her house is now valued at $175,000 compared to its value in 2005 at $135,000.
[23] Kelly has engaged in long term extensive therapy. The mother chose not to include the significant $6,500 cost in the calculation of S. 7 expenses but raised the issue of the expenditure in her material. The mother’s choice to raise it without relevant financial claim invades the child’s privacy and serves no legitimate purpose. While she has a right to not claim it, I accept and find the father would have gladly accessed his employee assistance plan to meet that need. The mother’s decision to pay the therapy costs without his contribution diminishes her resources to help the child in other ways. It was a bad financial choice for her to make personally and for Kelly. This would have netted about $100 per month extra for the child or for that matter, the mother. Her choice to exclude the father from even accessing his impersonal benefits, something that in reality forms part of his ability to pay, diminished the father’s opportunity to fix the problems, whatever they are. He and Kelly do not see things the same way. It is clear however he would like to be part of the solution to her angst, even if it is only empowering her to seek therapeutic help.
[24] The father will continue to provide medical benefit coverage for Kelly. If presented with invoices, he shall forward them to his plan. For the benefit of Kelly, if the father accesses his insurance for the therapy, this does not entitle him to any information about the nature of her therapy. It is a vehicle of payment only. If asked to contribute to any deficit, he shall take it under advisement. I have not dealt with it here as an order out of courtesy to Kelly’s wishes.
[25] I find the father’s child support for Kelly should be $784 per month inclusive of section 7 expenses, effective July 1, 2011, paid directly to Kelly. That annualizes his support at $9,408. The mother should pay a comparable proportionate amount of $1,039 per month to Kelly, or $12,468 per year. This results in Kelly’s parental support of $1,823 per month or $21,879 annually plus whatever earnings she has plus whatever contribution her step- parent makes. Assuming her ongoing pattern of $2,000 summer earnings, this is a generous budget of $23,879 for Kelly. It is less than the parents are paying right now. From this money, I expect Kelly to pay all her expenses including tuition, books, car insurance and transportation. If she lives with her mother in the four summer months, or drives her mother’s car, she will negotiate with her mother directly to reimburse her for those expenses. This has already been factored into the quantum. If either parent chooses to contribute beyond these amounts, that is their prerogative but not their legal obligation.
[26] This amount of $784.00 shall be payable by the father each month until May 1, 2013 when I anticipate Kelly will complete her education. Unless there is another order, support for Kelly ends May 1, 2013. If her program requires five years, then support will be extended for an additional year until May 1, 2014, upon proof of the program requirements and Kelly’s enrolment. Should Kelly continue to graduate school, the issue of any contribution toward her educational costs can be reviewed then.
[27] The father has not benefited from any tax credit transfer from either child. I have taken into account that the mother, Karl and Kelly will negotiate between them the transfer of any income tax credit that may be consequential to their academic programs.
[28] Currently the father pays $1017 per month through the Family Responsibility Office. Additionally, his financial statement shows an education expense for them of $810/month. He has not disputed the budget for the children in the range of $44,000 annually in 2009 and 2010. His affidavit deposes he contributed $19,658 for the children’s support last year.
[29] As of June 30, 2011, I find that there are no arrears owing by the father with respect to either child. I find the father’s past child support payments were reasonable and appropriate. By continuing the ongoing $1,017 payment for part of this summer after Karl’s graduation, I have factored in that Kelly is living with her mother this summer.
[30] The mother shall advise the father of Kelly’s continued enrollment in a full time academic program by September 15th each year. If Kelly fails to provide confirmation of her academic progress and enrolment to her mother so she can do so, then Kelly’s support will be terminated pending a different order. It is unreasonable for a parent to pay a large sum of support without so much as proof of continuing enrolment or progress.
[31] Kelly attends university away of home and is over the age of majority. By all accounts, Kelly is a responsible young adult.
[32] While it may be preferable for the parties as initially submitted to pay the tuition directly to the university, I find in these circumstances, it would exacerbate the level of conflict. A detailed accounting of section 7 expenses is inappropriate for this family. I have amortized the father’s support to a monthly amount. While this may create a cash flow hardship, seem arbitrary or imprecise, I find it to be the fairest and most appropriate solution for this family. This order will minimize the bookkeeping and conflict. It should stop ongoing litigation costs. Because of the chronic arguments between the parents regarding money, I find it is reasonable that the child support payments be directed to Kelly. Payment through FRO offers a neutral payment vehicle. She has chosen to end a parental relationship. Managing her money is a less onerous responsibility to entrust her with. She can choose to live with either or neither parent without financial consequence.
[33] The direct payments are intended to minimize conflict, and maximize Kelly’s emancipation into adulthood. There was no formal claim to determine and order direct payment of the mother’s share of Kelly’s support. Therefore, I am only ordering the direct payment by the father but urge the mother to pay $1039 monthly directly to Kelly as well.
[34] For the balance of Kelly’s economic childhood, if both parents pay their support to her, independent of each other, she will be empowered to focus on her studies and make financial decisions without parental pressure. The father will be unable to cast blame on the mother anymore and the mother will be severed from any financial ties to the father. I conclude that if each parent paid Kelly directly, the objectives of the guidelines would be promoted. Financial interaction and disclosure between the parents will be reduced and the fair contribution by both parents is clearly identified.
[35] It will be up to Kelly to manage her funds. Both parents and Kelly’s step-parent have employee assistance plans who likely offer budgeting advice. She may decide to opt out of FRO, set up a direct deposit or ask the father to prepay some support to cover tuition as had been suggested. This would ease Kelly’s cash flow burden this September but result in a smaller monthly payment. That will be up to them.
RESULT:
[36] Support for Karl terminates May 1, 2011.
[37] The current order of $1,017.00 shall continue until June 1, 2011.
[38] Effective July 1, 2011, the Respondent father shall pay to Kelly support inclusive of section 7 expenses in the amount of $784.00 per month based on the Respondent’s income for support purposes of $74,201.00.
[39] The Applicant mother is urged but not ordered to pay to Kelly support inclusive of section 7 expenses in the amount of $1,039 per month, based on the Applicant’s income for support purposes of $101,075.00.
[40] Any contribution to Kelly’s support by the step-parent is a bonus to Kelly and will not reduce the payments by either parent.
[41] Support for Kelly shall terminate May 1, 2013. If her program requires five years, then it will be extended for an additional year until May 1, 2014, upon proof of the program requirements and Kelly’s enrolment. For clarity, unless there is another order, support for Kelly ends May 1, 2013.
[42] The Applicant shall provide proof to the Respondent of Kelly’s continued enrollment and academic progress in a full time academic program by September 15th each year. If the Applicant fails to provide this disclosure, the support will terminate pending any new order made by a court. If Kelly chooses not to provide information to the Applicant of her academic status and progress so the Applicant can comply with this provision, then Kelly forfeits her support from the Respondent.
[43] This Court declares there are no arrears of support owing by the Respondent for Karl or Kelly on account of baseline or S. 7 expenses provided the $1,017.00 is paid until June 1, 2011.
[44] Support Deduction Order to issue.
[45] Costs may be addressed if required by setting a date through the trial co-ordinator.
___________________________
Madam Justice C. Robertson
DATE: June 22, 2011
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