Susan Hallan
ontariofamilylawanalyses
Osgoode Hall, June 2014
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 Justice Robertson 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 this online article, (http://www.lawtimesnews.com/201107148567/Headline-News/Judge-orders-dad-to-make-support-payments-directly-to-child.
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. 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 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: Ontario Family Law Act 7.1. (bolding mine) – 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 – “… 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 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 her e-mail suggests that she may 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 for lawyers in Family Court proceedings. Again, with the mother involving the children in exchanges, it seems that the children accepted this 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 possible 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. 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, 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.
Meeting required amounts under S.7
The appropriate application of support directly received by the mother should 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. 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 were 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 based on the budget 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.
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 precedent and established protocol would be followed. The father may have 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. In one of the very few e-mails she did not share with the children, 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 that he did not receive $950 a month, and “never had”. As explained above, the son should have been receiving over $1100 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 unclear 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 was paid by him outside and above his scheduled monthly FRO payments. The mother received her full annual entitlement for her household expenses through 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 . If the mother chose to apply her “household entitlement” of $4000 through amortization over a twelve month period, that would mean roughly $350 a month to each child over twelve months. Either way, the children were entitled to roughly $8000 from their father’s monthly FRO payments to be applied to Section 7 expenses, above and after the other lump sum payments he had already made for tuition/residence. Each child, after tuition, residence, and initial payments had been made, should have received the equivalent of a total of almost $1200/mth, each and every month of the 8 month school year (amortization would change the 8 month to a lesser 12 month amount, but totals would have remained the same) Considering that both children’s tuition, and 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 $1180/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 $2300 a month collectively (almost $1200 each) 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 an exoected proportionately higher “matching” amount that their mother would have been providing. Leaving aside 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 during the school year. And again, as explained above, neither child should have “run out of money” if the father’s payments were applied appropriately, and his contribution 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 by the mother), logic indicates that with the mother fully meeting 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 just under $24,000: roughly $11,600 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). Yet, again, she had stated “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”
Subtracting the mother’s household entitlement of roughly $4000 from the $23,800, there was roughly $19,500 paid by the father either directly or 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 made his proportionate contribution to all expenses, including this computer, as outlined in the budget submitted by the mother.
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 he had paid his “fair share”, having met his full portion of the S.7 expenses outlined in the mother’s budget, 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. Indeed, she noted that she “would have ordered less”. Based on the amounts submitted by the mother, Justice Robertson found that there were no arrears owed by the father.
Succinctly, the Justice provided that each child historically received (or should have received) equivalence of “parental support of $1,823 per month (each) 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”.
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.”
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 unknown 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 it to the court’s attention as somehow negatively reflective of the father. It seems more reflective of a level of disrespect of the father as the child’s other parent .
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) 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. If the $784/month go-forward contribution by the father fulfills his portion of, and provides for, a $22,000 budget for one child, then it surely indicates that his previous contribution of $1827/month combined for two children 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.
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 …….” (ontariofamilylawblog)
The father was awarded costs.
Conclusion
In its simplest terms, the issues covered are fairly straightforward:
1) Support recipients are entitled to apply the monthly support payments to household expenses in proportion to the months the child is home, and must apply directly to Section 7 expenses the payments received for the months children are away at university.
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. Considering 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 compare the amounts actually contributed.
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 the mother’s expected contribution, 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.
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, October 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 litigation 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 indirectly 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, according to the daughter’s correspondence, forwarded those funds to her daughter 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 validated the father’s concerns of an historical misapplication of funds.
ontariofamilylawanalyses 