[1]              Mr. Cartwright applied on June 30, 2009 to vary an Order that Justice O’Connell made on December 6, 2007, to terminate his obligation to pay child support for his son, Devon Cartwright.  Devon is now 20 years old and attending post-secondary studies to become a teacher.

[2]              Ms. Cartwright moved on October 2, 2009, for an interim order requiring Mr. Cartwright to contribute to Devon’s post-secondary education expenses.

[3]              Mr. Cartwright is 54 years old (born October 6, 1955); Ms. Cartwright is 47 (born August 24, 1962).  They were married April 13, 1988, and separated after thirteen years together, on January 29, 2001. 

[4]              The parties have three children.  Two are now adults and living independently.  The third, Devon John Nikolaus Cartwright, is now 20 years old (born June 28, 1989,) and enrolled in post-secondary studies leading to a Bachelor of Education degree.  The costs of that program are the subject of Ms. Cartwright’s response to her husband’s application.

[5]              On September 10, 2002, the parties entered into a Separation Agreement (“the Agreement”).  The Agreement gave Ms. Cartwright sole custody of the children, subject to liberal and reasonable access by Mr. Cartwright.  It required Mr. Cartwright to make an equalization payment to Ms. Cartwright, to pay child and spousal support, and to make a proportionate contribution to the children’s special or extraordinary expenses as defined by section 7 of the Federal Child support Guidelines[1].  It also required Ms. Cartwright to pay $7,500.00 to her husband within two years if she remained in the matrimonial home.

[6]              The Agreement made the following provision regarding post-secondary education costs:

[7]              On December 6, 2007, O’Connell J. made a final Order varying the amount of support by requiring Mr. Cartwright to pay child support of $185.00 per week and spousal support of $452.96 per week, based on a Guidelines income of $91,000.00 per year.  With the annual adjustments provided for in the Order, Mr. Cartwright’s current support obligations amount to $199.08 per week for Devon and $473.57 per week for Ms. Cartwright.

[8]              Paragraph 9 of Justice O’Connell’s Order states that the provisions of the Agreement regarding post-secondary education costs are to remain in full force and effect. 

[9]              Mr. Cartwright has been a unionized employee of Bruce Power for the past 35 years.  His line 150 income in 2008 was $98,164.37, or $97,245.00 net of union dues.  He has stated that he intends to take early retirement, effective February 1, 2010.

[10]        Ms. Cartwright is self-employed trying to develop a research business banding birds in the hope that she will eventually attain self-sufficiency.  Her line 150 income in 2008 was $5,497.88.  

[11]        Devon was accepted by St. Clair College in Windsor on May 27, 2009, for admission into the College’s program of post-secondary studies toward a Bachelor of Education degree.  Devon is now enrolled in his first of a five year program there.  Ms. Cartwright seeks an order requiring Mr. Cartwright to contribute his proportional share of the costs of that program.

[12]        Mr. Cartwright does not dispute his obligation to contribute his proportional share to Devon’s section 7 expenses.  However, he asks the Court, in determining the amount of his obligation, to address the following issues:

[13]        Mr. Cartwright acknowledges that he and his wife signed a Separation Agreement on September 10, 2002, which fixed child support at $125.00 per week for each of the parties’ two children, Katie and Devon, and spousal support at $300.00 per week, based on Mr. Cartwright’s projected income of $85,000.00, and subject to an annual Cost of Living adjustment.  He and Ms. Cartwright later amended their Separation Agreement by Minutes of Settlement dated June 25, 2003, to increase his child support (for Devon) to 163.00 per week and his spousal support to $414.00 per week based on his increased income, then projected to be $91,000.00 (for 2003).  The Minutes of Settlement fixed his arrears at $2,074.00 and incorporated a schedule for their repayment.

[14]        The matter returned to Court on December 6, 2007, when O’Connell J. made an Order further varying Devon’s support to $185.00 per week and $452.96 per week spousal support.  Mr. Cartwright submits that Family Responsibility Office (FRO), which had not implemented his wife’s Cost of Living Increase for several years, also did not implement the changes made by Justice O’Connell’s Order until August 29, 2008.  More importantly, he says, FRO did not reduce his arrears to nil as of the date of the Order, although, he argues, that is what the Order obviously intended.  

[15]        Mr. Cartwright submits that O’Connell J. offset the amount that Ms. Cartwright owed him as his share of their equity in the former matrimonial home pursuant to the Separation Agreement against the arrears that Mr. Cartwright owed Ms. Cartwright for support, to arrive at the net amount which the Order required Mr. Cartwright to pay his wife.  Mr. Cartwright’s solicitor, Ms. McClelland, set out the reasoning behind his position in a letter dated March 12, 2009, to Ms. Cartwright:

[16]        Mr. Cartwright submits, then, that $2,308.00, which had been deducted from his pay, was in transit from his employer to FRO on or before the date O’Connell J. made his order and that this payment should either have cleared any arrears that he owed as of that date or resulted in a credit to Mr. Cartwright.  Instead, FRO continued to show that Mr. Cartwright owed arrears of $934.19 as of December 12, 2007, and later collected this amount from him, as appears from their Statement of Arrears sworn October 8, 2008.

[17]        Ms. Cartwright sees the situation differently.  She performed all of her calculations based on the weekly amounts of support set out in the parties’ Separation Agreement of September 10, 2002, and their later Minutes of Settlement of June 25, 2003.  She states that FRO also based its calculations on the weekly amounts.  She submits that in October 2004, Mr. Cartwright began receiving bi-weekly pay cheques, with the result that his remittances of support, derived from payroll deductions, also became bi-weekly.  The payments did not revert to weekly payments until June 2009.

[18]        Ms. Cartwright states that her husband’s support arrears as of November 30, 2007, were deducted from the amount she owed him for his share of the equity in the matrimonial home, with the result that he owed no arrears on that date.  However, she attributes the arrears that FRO shows as owing as of December 6, 2007, to the support he was required to make from November 30, 2007, onward, and on the payments it received from him after that date.  She calculates those arrears to the date of her affidavit, sworn August 13, 2009, and supports them with the printout of the payments she received from her Credit Union, where FRO deposited them directly to her account.

[19]        Ms. Cartwright’s calculations show that $1,275.92 was due but only $1,154.00 was received, on each of December 7 and 14, 2007, which left $243.84 still owing from those two payment dates.  

[20]        Mr. Cartwright states that FRO continued to collect the support due by making deductions from his income.  He states that the support deducted in 2008 included $31,101.28 for ongoing support and $1,950.28 for arrears.

[21]        Mr. Cartwright states that he had paid $16,548.32 in ongoing support that year and $2,751.49 on account of arrears, as of June 4, 2009.  In addition, $419.85 was remitted to FRO from his 2008 tax rebate.  FRO’s Statement of Arrears dated May 14, 2009, shows arrears of $668.95 still owing.  His Notice of Assessment dated June 11, 2009, shows $419.85 as having been transferred to FRO, which would have left a balance of $249.10, only $5.26 more than the balance owing on December 14, 2007.

[22]        Mr. Cartwright acknowledges that Justice O’Connell’s Order assumed that his income for 2007 would be $91,000.00 and that it was, in fact, $97,123.00 ($98,005.00 less $882.00 in union dues).  He calculates that the difference between the Table Support payable on $91,000.00 (being $806.00 per month) and that which was payable on $97,123.00 (being $854.00 per month), was $48.00 per month, for a difference of $576.00 that he owed for 2008.  He deducts this amount from the arrears he says FRO erroneously collected from him (owing to its failure to reduce his arrears to nil as of December 7, 2007), which he says should result in a credit of $4,643.06 owed to him by the end of 2008.

[23]        Again, Ms. Cartwright sees the situation differently.  She calculates that, according to paragraphs 2 and 5 of the December 2007 Order, Mr. Cartwright should have paid $34,256.33 in 2008 but paid only $33,051.54, leaving arrears of $1,204.79 owing for 2008.  She supports her statement as to the amount Mr. Cartwright paid by reference to line 230 of his 2008 Tax Return Summary.  She says that the reason Mr. Cartwright arrives at a lower amount of support owed by him is that he bases his calculation on the monthly Table Support, whereas the Separation Agreement, Minutes of Settlement, and Order of O’Connell J. ordered support in a weekly amount arrived at either through negotiation, (in the case of the Separation Agreement and Minutes of Settlement), or a consideration of multiple factors, not simply the monthly amount prescribed by the Guidelines.

[24]        Similarly, Ms. Cartwright calculates that her husband owed her support of $15,957.80 from January 1 to June 5, 2009, and paid $17,332.30, including the payment received on June 9, 2009.  On June 12, 2009, she states, Mr. Cartwright’s payments became erratic, and from that date until the date she swore her affidavit on August 13, 2009, she applied his payments against Devon’s post-secondary expenses.

[25]        Mr. Cartwright asserts that he has almost no contact with Devon, which he says is by Devon’s choice.   He states: 

[26]        Devon’s Provincial Report Card dated February 9, 2009, which Mr. Cartwright attaches to his affidavit, shows that Devon was enrolled in the first semester of two courses, one in Dramatic Arts and one in English.  He achieved an average of 87 percent in these courses.  It states that he had also successfully completed his cooperative education placement with the Saugeen District Secondary School Drama Department.

[27]        Ms. Cartwright states that Devon lives with her.  She explains Devon’s lack of contact with his father by observing that Mr. Cartwright rarely initiated contact with the children and that the children spent very little time with him while they were minors.  Following the separation, Mr. Cartwright and his common-law spouse directed negative comments toward Ms. Cartwright which she says upset Devon.  As a result, he does not initiate contact with his father as an adult.

[28]        Ms. Cartwright denies that she refused to provide proof of Devon’s school attendance.  She states that Mr. Cartwright requested proof on March 12, 2009, that Devon had been a full-time student since June 2009.  She provided a copy of Devon’s most recent report card, which was for the first semester of the 2008-2009 school year.  Ms. Cartwright adds that a copy of Devon’s report card for the second semester was sent to Mr. Cartwright after Devon received it in early August.  She has attached a copy of that report card, dated June 26, 2009.   She has also provided a letter from St. Clair College in Windsor, where Devon was enrolled for studies to begin in the fall of 2009, his tuition payment form, enrolment verification, statement of account for tuition and Devon’s class schedule.

[29]        Ms. Cartwright has provided affidavit evidence indicating that she has no post-secondary education or transferable skills that apply to jobs other than minimum wage positions.  She states that she is not able to upgrade her own education as she cannot afford to stop working while she has responsibility for Devon.  She is self-employed and trying to build her research business to the point of self-sufficiency and believes that, without interference or distractions, she can reach a point of earning over $40,000.00 yearly.  She submits that this is preferable to earning minimum wage until she reaches the age of 65.

[30]        Mr. Cartwright complains that his wife “did not suggest any amount that Devon would be contributing himself” toward the costs of his post-secondary studies.  He states that he does not have a relationship with Devon such that he could make direct inquiries of him.

[31]        Ms. Cartwright has submitted affidavit evidence indicating that Devon has worked three jobs for the past year in an effort to save for his post-secondary school costs.  The economy forced the closure of one restaurant where he worked and his hours were decreased at the other two.  As a result, Devon earned only $3,000.00 in 2008 and has been unable to save money for school.

[32]        Ms. Cartwright explains that Devon was to receive $6,300.00 from OSAP when school began and approximately $4,800.00 from OSAP in January 2010.

[33]        Ms. Cartwright states that Devon had applied for jobs in the Windsor area, where his school is located but had not had a positive response yet.  She notes that the unemployment rate in Windsor, which was 15.2% in July was almost double the provincial average and that the unemployment rate for students, at 20.9% in July, 2009, was the highest in over 20 years.  She also attaches an e-mail from the Artistic Director for the Performing Arts Programmes at St. Clair College, which recommends that students do not maintain employment during the school year. 

[34]        Ms. Cartwright has noted that her net worth decreased significantly since the September 2002 Separation Agreement was entered into as a result of her covering her daughter Sarah’s post-secondary costs and support until June 2004 without Mr. Cartwright’s assistance, selling assets to meet financial obligations, and the legal expenses for the 2003 and 2007 court proceedings to enforce the 2002 Separation Agreement.

[35]        Ms. Cartwright further notes that loss of child or spousal support would result in her household income dropping to or below the poverty line and that she would not be able to meet her financial obligations, maintain a permanent residence for Devon for summer months and vacation, or assist Devon with his post-secondary education expenses.

[36]        It is clear from O’Connell J.’s Order that what was intended to be offset against the $7,500.00 payment that Ms. Cartwright was to have paid in September 2004 (two years after the parties signed their Separation Agreement) to compensate her husband for his share of the equity in the matrimonial home was the amount he owed to Ms. Cartwright for COLA increases and not arrears that had accumulated from unadjusted and unpaid support.  The Order states:

[37]        I reject Mr. Cartwright’s argument that the Order was intended to eliminate any arrears that he owed on December 6, 2007.   Mr. Cartwright’s lawyer, Ms. McClelland, gave her understanding of how the $1,432.37 amount referred to in O’Connell J.’s Order was arrived at in a letter which she wrote to Ms. Cartwright on March 12, 2009:

[38]        Ms. McClelland was reasoning as follows:

[39]        Mr. Cartwright argues from this premise that $2,308.00, which was deducted from his pay before December 6, 2007, but had not yet been received by FRO as of December 6, 2007, either paid off the maximum arrears of $2,124.71 that he must have owed on that date, or resulted in a positive credit to him.  He submits that, instead of expunging his arrears, FRO continue to show arrears of $934.19 owed by him as of that date.  

[40]        Ms. Cartwright replies that:

[41]        What both Ms. Cartwright’s calculations and those contained in the FRO Statements of Arrears show is that, even counting from the date of the Order made on December 6, 2007, the amounts being remitted from the deductions made from Mr. Cartwright’s payroll were not sufficient to pay the support amounts required by O’Connell J.’s Order.  These shortfalls caused arrears to accrue from December 7, 2007 onward, as shown in Ms. Cartwright’s calculations, which begin on December 7^th. 

[42]        Accordingly, based on Ms. Cartwright’s calculations and the admission in her affidavit, there were no arrears of support owing as of December 6, 2007.  

[43]        For the same reasons mentioned above, I accept Ms. Cartwright’s calculation of the arrears that followed the Order of December 6, 2007.  Her calculation is fully supported by the Order of O’Connell J. as to the amounts owing, the documentation from FRO, and her own banking records as to what amounts were received from Mr. Cartwright.  Ms. Cartwright does not claim for any arrears prior to December 7, 2007.

[44]        As for FRO’s delay in adjusting the amounts it was collecting from Mr. Cartwright, I agree with Ms. Cartwright that her husband was fully aware of the amount of his support obligations and was aware that FRO was not collecting the correct amount beginning January 1, 2008.  He allowed these arrears to accumulate without making any effort to rectify the situation.  

[45]        On Ms. Cartwright’s calculation, her husband owed arrears of support in the amount of $218.08 as of July 31, 2009.

[46]        Ms. Cartwright’s assertion that she provided Devon’s report card to her husband shortly after he requested proof of Devon’s full time attendance in school is borne out by the report card that Mr. Cartwright has attached to his affidavit. His report card for second semester, dated June 26, 2009, shows that Devon attended a course entitled “Exploring the Arts” and another in Philosophy and achieved an average of 76.5 in these courses.  A note from his teacher on the report card congratulates him on a great performance as a character in a play.  The report card indicates that he missed 32 classes out of a total of 268.

[47]        Ms. Cartwright provided affidavit evidence indicating that Devon had the minimum number of credits needed to obtain a high school diploma in June 2007 but did not have the prerequisite credits to apply to university to pursue his chosen career in teaching.  She states that her husband was aware at the time of O’Connell J.’s Order of December 6, 2007 that Devon had returned to secondary school for the 2008-09 school year to obtain the credits he required.

[48]        One of Devon’s high school teachers also provided a letter confirming that the co-op program that Devon had attended was a great opportunity for students to explore the teaching field while trying to decide their options for post-secondary studies.  He states that by the end of the semester, Devon seemed to have a clearer idea of his career goals.  He adds:  “It is my belief that it was a valuable experience for Devon to stay in high school the extra year.  He gained a great deal of confidence and experience.”

[49]        Ms. Cartwright has provided a letter from St. Clair College dated May 27, 2009, confirming Devon’s acceptance into the program in Music Theatre - Performance for the fall 2009 semester.  She has also provided a Verification of Devon’s enrolment as of August 7, 2009 for full time attendance in the semester to begin September 8, 2009 and the semester to begin January 11, 2010.

[50]        Based on the evidence his wife has provided, Mr. Cartwright states that he does not dispute that as of September 2009, Devon was enrolled in a full-time programme of post-secondary education at St. Clair College in Windsor.  I am satisfied that Devon was in full-time attendance, within the meaning of the Act, from January 2008, to the date of the hearing.

[51]        I am satisfied on the affidavit evidence submitted that there is merit in the recommendation of the Artistic Director at Devon’s school that students not seek to maintain employment during the school year. 

[52]        I will deal with this issue in my discussion of the proportionate contribution of each of the parties to Devon’s post-secondary education costs.

[53]        The issues that need to be addressed here are whether Devon continues to be a Child of the Marriage within the meaning of s. 2(1) of the Divorce Act[2], whether using the Table amount under the Child Support Guidelines is the appropriate approach, and if not, what amount of child support is appropriate[3].   

[54]        The principles applying to the determination of these issues are summarized by the Manitoba Court of Queen’s Bench in Harrison v. Vargek[4] and cited with approval by this Court in Haley v. Haley[5].

[55]        There is no real issue that Devon remains a child of the marriage.  He is enrolled in an appropriate course of study suited to his talents.  Ms. Cartwright has provided compelling evidence that his earnings are not sufficient to meet his expenses.  He is still in a position of financial dependency, notwithstanding his efforts to help support himself and contribute to the payment of his education expenses.  Considering the factors set out in Haley v. Haley, I find that Devon remains a child of the marriage while he is pursuing his degree.  That status will continue at least until he graduates. 

[56]        In determining quantum of child support, the court must consider section 3(2) of the Child Support Guidelines which states:

[57]        Accordingly, having determined that Devon is a “child of the marriage”, section 3(2) requires the Court to determine whether the table amount set out in the Guidelines is “inappropriate”.   If it is not inappropriate, the table amount should be ordered.  The Manitoba Court of Appeal provided a very helpful analysis of this issue in Rebenchuk v. Rebenchuk ,[16] where it stated:

[58]        Pursuant to section 3(2)(b) of the Guidelines, if the Court considers that approach to be inappropriate, it must fix the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the support of the child.

[59]        The Court of Appeal in Lewi v. Lewi[17] has made it clear that there is no formulaic approach to the determination of the appropriate monthly support when deviating from the Table amount. S. 3(1)(b) directs the court to consider “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”.

[60]        In the present case, I take into account that Devon is living in Windsor while he is attending his post-secondary studies but that, having regard to the economic conditions in Windsor, he is likely to be returning home during the summer.  I therefore consider it to be in Devon’s interests that Ms. Cartwright maintain a residence for him in her home for when he returns for Christmas, March break, and during the summer.  Having regard to Ms. Cartwright’s limited means, it is my view that Mr. Cartwright should be paying one half the Table Amount during the eight months when Devon attends school in Windsor, and the full table Amount during the four Summer months when he is residing with his mother.

[61]         Section 7 of the Guidelines must also be considered in relation to special or extraordinary expenses:

[62]        Section 7 reads:

[63]        This factor requires that I consider Mr. Cartwright’s income, especially in relation to that of his wife, in determining the proportionate contribution each should make to Devon’s section 7 expenses.  This is required in order to address the imbalance in the parties’ economic resources, which may be operating unfairly to the parent who has the care of their children.

[64]        Mr. Cartwright’s 2008 Tax Return Summary shows a line 150 income of $98,164.37.  After deducting annual union dues, as required by Schedule III s. 1(g) of the Federal Child Support Guidelines, his income for that year was $97,245.00.  Mr. Cartwright estimated that his income in 2009 would be $100,000.00.  For the purposes of the present order, I am basing his income on his current assessed income, less the spousal support of $24,625.64 ($473.57 per week) that he pays to Ms. Cartwright.  That is, I impute an income of $72,619.36 to him for purposes of determining his proportionate contribution toward the payment Devon’s education expenses.

[65]        Section 3.1 of Schedule III of the Guidelines provides that in order to calculate income for the purpose of sharing s.7 expenses, I: “deduct the spousal support paid to the other spouse.”  In practice, as the Ontario Court of Appeal noted in Ostapchuk v. Ostapchuk[18], the Court also adds this amount to the income of the spouse who receives the spousal support.

[66]        Ms. Cartwright’s Notice of Assessment for 2008 shows a line 150 income of $5,498.00 that year.  According to her most recent Financial Statement (sworn September 24, 2009), she derives her income from support ($2,052.14, being the monthly equivalent of $24,625.64 per year), earnings from her research business involving banding birds ($1,500.00 per month), and rents she receives from a tenant ($1,400.00 per month).

[67]        Based on the affidavit evidence before me, I consider that Ms. Cartwright is making her best effort to contribute to her own support while assisting her children until they achieve financial independence.  I accept her evidence that she is trying to build her research business to the point of self-sufficiency and believe that, without interference or distractions, she can reach a point of earning over $40,000.00 yearly.  I also agree with her reasoning that this is preferable to earning minimum wage until she reaches the age of 65

[68]        Ms. Cartwright’s assessed income in 2008 was derived from the following income which she reported on her 2008 T-1 Income Tax Return:

[69]        I impute an income of $33,364.64 to Ms. Cartwright, consisting of the following:

[70]        The other factors relevant to determining an appropriate amount of support under s. 3(2) are the conditions, means, needs and other circumstances of the children. One of the few points of reference available to the court in assessing these factors is the budget of the child’s expenses.  Apart from considering the cost of items in the budget, it is important for the Court to consider the appropriateness of them, having regard to the parties’ present and past circumstances.

[71]        Ms. Cartwright claims the following as the expenses associated with Devon’s current year of studies:

[72]        I find that all of these expenses are reasonable and consistent with the parties’ collective means.  I do not find Mr. Cartwright’s arguments for a lower budget for Devon to be persuasive.  In particular:

[73]        I have considered the fact that the cost of furnishing Devon’s apartment (an annual amount of $2,000.00) and his moving costs (an annual amount of $500.00) are one-time expenses.  I suspect that Devon may have to maintain his apartment over the summer in order to be assured of accommodation in the fall and that this expense or, in the alternative, the expense of securing a new apartment, may offset the absence of the one-time expenses of $2,500.00 from his budget.  However, I do not have sufficient evidence to justify simply continuing this expense.  I am therefore reducing Devon’s education costs by this amount after his first year of studies.

[74]        I have considered taking into account Devon’s capacity to contribute to his own education.  Both section 7 and section 3(2) require the Court to consider whether the child is to make a contribution to his post-secondary school education[20].  However, as J. Wright, J. rightly observed in Coghill v. Coghill, “It is not appropriate to require a child to pursue part-time employment during the academic year where that would interfere with the child’s academic progress.”[21] As noted above, I accept the recommendation of the Artistic Director at St. Clair College that students not seek to maintain employment during the school year.

[75]        Based on the affidavit evidence of Ms. Cartwright as to the results of Devon’s efforts to earn income last summer, I assess his potential earnings during the Summer months at $3,000.00.  I also adopt, in this regard, J. Wright, J.’s remarks concerning a child’s summer earnings in Coghill v. Coghill:

[76]         I consider that a reasonable contribution from Devon from his Summer earnings to his education expenses would be $1,000.00.  This will allow him $2,000.00 from his potential earnings for his automobile expenses and spending money for recreation and entertainment.

[77]        The amount of Devon’s OSAP loan should also be considered as a contribution Devon can make toward the costs of his own education.     As noted above, Ms. Cartwright has indicated that Devon would receive $6,300.00 from OSAP when school began and approximately $4,800.00 from OSAP in January 2010.  Accordingly, $11,100.00 from this source and Devon’s $1,000.00 from his summer earnings, for a total of $12,100.00 will be deducted from his overall education expenses of $30,678.08 to leave net education expenses of $18,578.08 to be met by the parties for the current year, and $16,078.08 for future years until Devon graduates.

[78]        Mr. Cartwright’s net income (after union dues), based on his 2008 Notice of Assessment, is $97,255.00.  Deducting from that amount his current spousal support payment of $24,625.64, based on the Order of O’Connell, J., leaves him with a Net Disposable Income of $72,629.36.  Ms. Cartwright’s Income, as I have calculated it, amounts to a total of $33,364.64.  Thus, their collective income is $105,994.00 ($72,629.36 plus $33,364.64).  Of this amount, Mr. Cartwright’s share is 68.5% and Ms. Cartwright’s share is 31.5%.  These, then, are the proportionate shares they should pay of Devon’s net post-secondary education expenses, which I have calculated to be $18,578.08 in the first year and $16,078.08 in the remaining years of Devon’s program.  Mr. Cartwright’s 68.5% contribution to these expenses will be $12,726.00, or $1,060.50 per month during the current academic year, and $11,014.0 or $917.83 per month, in the remaining years of the program. 

[79]        The current Table Child Support for Devon, based on the Order of O’Connell J., is $10,352.16 per year ($199.08 per week x 52 weeks).  On a monthly basis, this amounts to $862.68.  Mr. Cartwright will continue to pay during the months of May through August, beginning May 1, 2010.  He will also pay $431.34, being one half of this amount, during the academic year, retroactive to September 1, 2009.  In addition, he will pay his proportionate share of $1,060.50 per month for Devon’s net education expenses, retroactive to September 1, 2009 through August 2010.  Thereafter, his proportionate share of Devon’s net education expenses will be $917.83 per month.

[80]        When the parties’ proportionate contributions to Devon’s educational expenses are factored in, these support payments will leave Ms. Cartwright with 46.7% of the parties’ Net Disposable Income in the current year and Mr. Cartwright with 53.3%.

[81]        Mr. Cartwright is 54 years old.  Ms. Cartwright has given evidence that he and his partner maintain a household whose collective income currently exceeds $160,000.00.  This evidence is uncontradicted and I have no reason to doubt its truth.

[82]        Mr. Cartwright has stated that he intends to take early retirement from Bruce Power effective February 1, 2010.  Ms. Cartwright has pointed out in her affidavit of August 13, 2009 that the parties’ September 2002 agreement was based on Mr. Cartwright’s claim that he would work until age 65.  She states that all discussions, decisions and agreements were based on this claim. 

[83]        Ms. Cartwright has also given evidence that many employees at Bruce Power take early retirement and then return to the job as contract workers.  They collect both their pension and a pay cheque, and earn over $200,000.00 per year.  As she notes, there is no reason to believe that Mr. Cartwright will not do the same thing.  I accept this evidence, which is also uncontradicted, but it would be speculative for me to try to predict exactly what impact Mr. Cartwright’s retirement, if it occurs, will have on his ability to pay support.

[84]        It is not in Devon’s best interests that the parties continue returning to court to re-litigate Mr. Cartwright’s support obligation.  As Ms. Cartwright has pointed out, Mr. Cartwright has been continuously in arrears on his support obligations since the parties entered into their first agreement in September 2002.  His refusal to co-operate in the payment of his children’s post-secondary education expenses apparently contributed to the parties’ daughter Sarah abandoning her chosen university program when together, she and Ms. Cartwright were unable to meet all the expenses associated with it. 

[85]        In Devon’s case, Ms. Cartwright has stated that he is suffering excessive emotional stress and has broken down crying on many occasions as a result of his father’s failure to contribute the amount Devon needs for his education.  Devon has expressed concern that he and his mother will not be able to afford his post-secondary expenses and that he will not be able to continue attending college.  As Ms. Cartwright has correctly observed, this is a reasonable concern, having regard to Sarah’s experience.

[86]        I am not prepared to vary or terminate spousal support for Ms. Cartwright at the present time in the circumstances that prevailed at the time this motion was heard.  I am inclined to suspect that the Court would impute an income equal to Mr. Cartwright’s present income if he voluntarily reduced it by early retirement, especially if he is capable of earning similar or greater income through contract work with his current employer.  That determination will have to wait until there is a proper evidentiary record upon which to make it.

[87]        In the absence of a material change of circumstances, the obligations set out in this Order shall continue at least until Devon completes his first undergraduate degree, subject to cost of living increases in Ms. Cartwright’s spousal support of $473.57 per week and the Table Amount of Child Support payable for Devon of $862.68 per month (from May to August) and $431.34 per month (from September to April).

[88]        Based on the foregoing, it is ordered that:

[89]        Ms. Cartwright has been substantially successful in these motions.  Although she was self-represented at the hearing, I expect that she had legal assistance in the preparation of her material.  In any event, there was much in the way of solicitor’s work that was done in connection with the motions.  Accordingly, if the parties are unable to agree, Ms. Cartwright shall deliver written submissions on the costs issue, not to exceed four pages, together with a Costs Outline, by February 19, 2010.  Mr. Cartwright shall reply with submissions, also not to exceed four pages, by February 26, 2010, and Ms. Cartwright may reply, in no more than two pages, by March 5, 2010.