co-authored by Hilary Linton
We often work with parties who are unrepresented or whose counsel do not attend the mediation. This places added pressure on mediators to remain current with the law.
The recent case of Craig v Niro (2022 ONSC 5178) is an instructive primer on the law of child support and s. 7 expenses for a child attending university away from home. It is also helpful to see how judges craft their decisions with unrepresented parties in mind.
In this case, the two children resided equally with their parents. One of the children had left home to attend university. Mr. Niro wanted to vary child support from set-off child support to a lower amount given the child was not living primarily with either parent.
Ellies RSJ sets out the applicable law, noting that child support has two components: ongoing table support and s. 7 expenses. Although Mr. Niro was requesting a variation of table child support, the court noted that both components must be taken into account.
Citing Price J. in Liscio v Avram (2009 Canlii 43640), the court noted that the correct approach is to calculate the child’s expenses during the eight months that the child is at university, deduct the child’s contributions if any, apportion those expenses in accordance with the parents’ incomes and then pay those amounts directly to the child. The parent in whose home the child resides for the four summer months would receive the appropriate table amount for those months, usually amortized over the full year. An added top-up is typically paid to help the residential parent defray costs of maintaining a home for the child to return to, set at one-third of the monthly table support by the court in Liscio. These amounts are subject to the usual set-off if the child lives equally with both parents in the summer months.
(Where the parents have a pre-existing agreement setting out their proportionate shares of s. 7 expenses, that will govern the proportionate sharing of the child’s expenses.)
The court distinguished cases where there is more than one child and full table support or set-off child support is being paid for the other children. In those cases, Justice Ellies noted that it may not be appropriate for a top up amount to be paid to maintain a home for the university student during the balance of the year, on the basis that the support for the child remaining at home will be sufficient to defray costs for that parent.
Finally, the court notes the importance of receiving clear evidence. In this case, the judge was unable to rule on the correct amount of child support payable for the university student as there was insufficient evidence about that child’s summer earnings, rent, tuition and other expenses.
This is a helpful case for mediators and arbitrators to have on hand. Contact one of our mediator-arbitrators for more information:
|Cliff Nelson:||[email protected]|
|Borzou Tabrizi:||[email protected]|
|Avagene Skervin||[email protected]|
|Hilary Linton||[email protected]|