Beissner v. Matheusik

2014 BCSC 1785 Beissner v. Matheusik IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Beissner v. Matheusik, 2014 BCSC 1785 Date: 20140829 Docket: E074023 Registry: Vancouver Between: Nicole Gisela Beissner Claimant And Mick Eric Matheusik Respondent Before: The Honourable Mr. Justice Fitch Oral Reasons for Judgment The Claimant: Appeared on her own behalf The Respondent: Appeared on his own behalf Place and Date of Hearing: Vancouver, B.C. June 6, 2014 Place and Date of Judgment: Vancouver, B.C. August 29, 2014 [1] The applicant, Nicole Beissner, applies for a judicial determination of the total amount of base child support and s. 7 expenses the respondent, Mick Matheusik, owes from October 1, 2012 to the present day. Further, she seeks a determination of the respondent's obligation to pay base child support and s. 7 expenses moving forward. [2] For convenience only, I will refer to the parties and their children by their given names. [3] Nicole and Mick were married on September 7, 1991. They have two children: Brigitte (born March 1, 1994); and Andre (born November 24, 1996). They separated on December 1, 2006 and were pronounced divorced on July 7, 2008. [4] The parties entered into a post-separation agreement, which was reduced to Minutes of Settlement dated November 9, 2007. They divided their fairly sizeable assets and settled matters relating to custody, guardianship and access. In addition, they resolved issues relating to child and spousal support. Both parties were represented at the time by experienced family law practitioners and had the benefit of independent legal advice. [5] With respect to child support, Mick agreed to Federal Child Support Guidelines income of $65,000 and to pay $982 per month (the Table amount at the time) commencing December 1, 2007 and continuing thereafter on the first day of each month for so long as the children remained "children of the marriage" under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The parties specifically agreed on what would be a qualifying s. 7 expense. Other than the items agreed to be s. 7 expenses, the parties mutually agreed not to incur s. 7 expenses without the other's prior consent, except in the case of emergency medical or dental expenses. The parties agreed to equally split responsibility for s. 7 expenses. Moving forward, the parties agreed to exchange income tax returns annually in November at which time their Guidelines incomes would be determined for the purposes of establishing base child support and each party's proportionate share of s. 7 expenses. The parties also agreed to perform a quarterly accounting to ensure that each had paid their share of s. 7 expenses for the previous three months. [6] Difficulties the parties have in communicating with and trusting one another to fully disclose their financial affairs has frustrated realization of what the Minutes of Settlement were designed to achieve. Naturally, each party has their own perspective on why they have not been able to adhere to the sensible path set out for them in the Minutes of Settlement. I need not go into the details of that disagreement or assign responsibility for why the parties have not been able to resolve their differences in order to resolve this application. [7] The positions of the parties can be briefly stated. [8] Mick says that he earns substantially less than $65,000/year and that while he would like to support his children to the extent he is able, he cannot do so by continuing to make monthly payments that approach $1,000/month. He says he does not believe he should be responsible for either of the children's university educations. He says such an order would require him to cash in more RRSPs or sell assets he currently holds. He has communicated his position on this issue to Nicole and to the children. From his perspective, the issue is not a willingness to pay continuing child support and s. 7 expenses, but an inability on his part to continue doing so based on a Guidelines income of $65,000. He says that enforcement and maintenance of an order from October 1, 2012 onward obliging him to pay close to $1,000/month is not justified based on his actual earnings and would impose upon him an undue hardship. He further says that there has been a material change in circumstance respecting his income earning capacity since October 1, 2012. He says that, despite his best efforts, he has not been able to generate income in his field and has been required to resort to new ventures, the particulars of which I will describe later, to re-establish himself. As I understand Mick's position, he should be obliged to pay nothing in child support or special expenses from October 1, 2012. Alternatively, he seeks a "waiver", which I take to mean a suspension of payments in relation to whatever award, past or future, the court determines to make on account of base child support and s. 7 expenses. [9] Nicole says that imputing an income to Mick of $65,000/year is, if anything, generous to him and that he has an obligation to continue supporting his children based on this income while they are engaged in full-time studies in university. She seeks an order imputing to Mick annual income of $65,000/year from October 1, 2012 and a corresponding monthly child support order of $986/month (the adjustment from $982/month is to reflect an adjustment in the Table amount that became effective January 1, 2012). In essence, she seeks a judicial determination that Mick owes to the end of August, 2014 a total of $22,678 in child support. She seeks a further order that Mick reimburse her the sum of $5,434.18, representing a one-half share of s. 7 expenses incurred since July 2012 - the last date upon which s. 7 expenses were reconciled. Moving forward, she seeks an order that Mick continue to pay $986/month plus his proportionate share of s. 7 expenses, including a contribution to the cost of each child's university education. [10] With respect to the background of the parties, Mick holds a Bachelor's degree in urban planning from the University of Waterloo and a Masters in Tourism, Recreational Development and Marketing from Texas A&M. He has a 35-year working career as a professional certified urban planner, certified management consultant and licensed realtor, specializing in recreational properties. He is the president of TREC International Inc., which is his own management consulting business. He is also a Vice President, Resort and Leisure, of NAI Commercial. He is, I believe, 60 or 61 years of age. [11] Nicole was the primary caregiver as the children were growing up. After the separation, she established a home-based business as a consultant. She seems to receive substantial financial support from her parents. [12] Some time ago, Nicole's parents established trust accounts for both children. The trust accounts are in the name of Nicole's parents and are to be managed by Nicole's father until such time as the children reach the age of majority. The 2007 Minutes of Settlement reflect Nicole's parents' wishes that the funds set aside for the children in trust be applied to their post-secondary educations, or to purchase property if they did not attend college or university. The terms of the Minutes of Settlement require the parties not to disclose to the children the amounts being held for them in trust. The means of the children, their ability to contribute to the cost of their post-secondary educations, and the ability of each parent to contribute to the support of the child are factors to be considered on this application under sections 3(2) and 7 of the Guidelines. I do not know if the children are aware of the particulars of the trust funds and I wish to respect the intent of Nicole's parents and the privacy of the parties in this matter. Accordingly, while I have factored in the means of the children to support their own post-secondary educations as an aspect of the order I am making today, I prefer to deal with their ability to do so in these reasons in more general terms than would otherwise be the case. [13] Brigitte is now 20 years of age and has completed her second year at the University of Western Ontario. As I understand it, Brigitte will be attending the University of Queensland in Brisbane, Australia for the semester commencing August 1, 2014 to November 30, 2014. She will continue to pay her regular University of Western tuition. She will live in Brisbane with a friend of Nicole's. She is in receipt of a scholarship from the University of Western to cover some of her expenses. Other expenses will be paid by Brigitte through her own earnings. Although the material is not clear on this point, I take it that Brigitte will resume her studies at the University of Western Ontario after the completion of her semester of studies in Australia. [14] Andre has been accepted for admission at several universities outside of British Columbia and, as I understand it, will enter his first year of post-secondary studies at McGill University this fall. He will reach the age of majority on November 24, 2015. [15] Mick paid child support of $982/month based on a Guidelines income of $65,000/year until May 2012, inclusive. He stopped making base child support payments at that time. [16] It appears that Mick had not reimbursed Nicole for claimed s. 7 expenses since about October 2008. As I understand it, when efforts were made to reconcile s. 7 expenditures as contemplated by the Minutes of Settlement, Mick took the position that he was overpaying in base child support and that the amount of this overpayment offset what was owed by him on account of s. 7 expenses. [17] In July 2012 Mick made application to this Court for a retroactive "reimbursement" or "adjustment" in both base child support and his proportionate share of s. 7 expenses. The application rested on Mick's contention that the recession of 2008 had substantially impaired his earning capacity and that he continued to pay child support for a substantial period on an income exceeding his actual earnings. [18] Mick's application was heard and disposed of by the Honourable Madam Justice Russell on September 24, 2012. The application for a "retroactive reimbursement" for previously paid base child support and s. 7 expenses was dismissed. Mick was ordered to pay arrears of four months' base child support (from June to September, 2012) at $982/month for a total of $3,928. That order reflects a judicial determination that Mick's Guidelines income of $65,000/year for the determination of base child support continued to be appropriate as of September 2012. [19] In addition, Mick was ordered to pay $10,552.13 in s. 7 arrears. The amount of arrears Mick was ordered to pay was based on an itemized list of expenditures submitted a Nicole current to July 7, 2012. That list of expenditures is referenced as Exhibit "E" in the order of Madam Justice Russell dated September 24, 2012. There has been no reconciliation of s. 7 expenses since. [20] Mick was also ordered to pay costs in the amount of $1,445. [21] The total amount determined to be due and owing by Mick as of October 1, 2012 was $15,925.13. This amount was ordered to be paid by Mick to Nicole on or before October 1, 2013. [22] Effective October 1, 2012 through to October 1, 2013, Mick's ongoing obligation to pay base child support and s. 7 expenses was suspended to enable him to bring the arrears up-to-date and engage in a collaborative process with Nicole to determine the base child support and proportion of s. 7 expenses he should pay from October 1, 2012 forward. Justice Russell directed the parties to meet, with a third-party neutral if necessary, to make efforts to mutually agree on the amount of monthly child support and percentage sharing of s. 7 expenses to be paid by Mick from October 1, 2012 forward. [23] Mick paid nothing towards the total amount due before October 1, 2013 as contemplated by the order of Madam Justice Russell. [24] He has, since that date, made payments of about $10,000 to the Family Maintenance Enforcement Program. Of the total amount found to be due as of October 1, 2012, it is my understanding that approximately $6,000 remains outstanding. [25] This application is the product of the parties' inability to agree on what Mick should pay in s. 7 expenses from July 7, 2012 and in base child support from October 1, 2012. [26] Nicole's income for 2011, 2012 and 2013 as reported on her income tax returns is $84,927, $87,068 and $89,091, respectively. Nicole derives income from her home based business and from a per diem of $25-$30/day she receives from students who live in her home. She says that in each of the years between 2011 and 2013 she received $60,000-$75,000 of her total reported income in dividends from a private company controlled by her father. She deposes that these dividends were not actually paid out to her in cash as the company credits the dividends to individual shareholders' accounts for further investment in the company. She says that her father pays back to her, from his personal funds, the difference in income tax she has to pay as a consequence of declaring the dividends as income, compared to the tax she would have paid on the income she actually earns. I can find no independent confirmation for Nicole's position in relation to this issue in any of the material put before me on this application. [27] Mick's income for 2011, 2012 and 2013, as reported on his income tax returns, is as follows: · For 2011, he claimed a total income of $9,755 based on employment income of $20,500 and $9,944 of RRSP income, which was offset by a claimed net rental loss of $20,688. · For 2012, Mick claimed a total income of $20,290 based on employment income of $6,500 and RRSP income of $52,276, which was offset by a claimed net rental loss of $38,485. · In 2013, Mick claimed no employment income but $30,000 in dividends offset by a net rental loss of $6,395. His total income claimed for 2013 is, therefore, $23,605. Mick was unable to explain to the court at the time of the oral hearing the source of the $30,000 dividend payment. [28] At the conclusion of the oral hearing, the parties were given leave to file further, brief written submissions. Both did so. Mick took that opportunity to adduce additional evidence respecting the source of the $30,000 dividend. Specifically, he attached an email from his accountant stating that the dividend was not actually paid to him, but funded out of debt he now owes to TREC. [29] Most of Mick's rental income is derived from renting out a portion of his home in West Vancouver. He owns two other investment properties: a condo at Mount Washington on Vancouver Island and a property in Prince Rupert. It would appear that the income and net rental losses claimed by Mick are attributable to all three properties. [30] In 2011, Mick claimed gross rental income of over $32,000 but a net rental loss of over $20,000. In 2012 he claimed gross rental income of close to $30,000 but a net rental loss of close to $38,500. In 2013 he claimed gross rental income of over $46,000 but a net rental loss of $6,400. [31] In November 2012, less than two months after the order of Madam Justice Russell suspending Mick's ongoing obligations for a year to enable him to clean up his then existing arrears, he embarked on a new financial venture, forming a company named Wholly Noggin Foods. Wholly Noggin makes and distributes health food bars. Mick acknowledges that he launched this business recognizing the market for health food bars was crowded, the profit margins were low, and launching the business would mean incurring a substantial debt. [32] Determining the Guidelines income of these two parties on the basis of the material they have decided to put before me is a challenge. The information is incomplete, occasionally unsupported, and sometimes unreliable. [33] With respect to Mick's current situation, I have no information respecting the financial affairs of Wholly Noggin, and no detailed information respecting the financial affairs of TREC. For example, I have no information respecting whether there are retained earnings in TREC, a company that has been in operation for a substantial time. Further, I have very little information before me supporting the expenses Mick has written off against the income he has earned on his rental properties. Those expenses are unreliable for present purposes. Even accepting that Mick renovated his primary residence in West Vancouver in the years between 2011 and 2013, he deposes that much of those renovations were done by himself and his friends. On the face of it, the figures he provides would strongly suggest unreported income. [34] At the same time, I have no detailed information as to what Nicole makes in rent from students. She has not declared this income in past years, apparently reasoning that she is not required to do so if her expenses exceed the income she takes in. I do not know what Nicole's consultancy business is. I have no confirmatory evidence that dividends from the private company controlled by her father and reported as income in the past three years have not actually been received by her. Further, there are aspects of her affidavit evidence that are, like Mick's, troubling. For example, she contends in her fifth affidavit filed in support of this application that the trust funds set aside for her children were intended to assist them in making a down payment towards a home purchase in the future, not towards tuition for post-secondary education. Nicole's perspective appears to me to be at odds with the provisions of the Minutes of Settlement that memorialize the preference of her parents that the trust funds be used for the children's post-secondary educations, or to purchase property if they decided not to pursue a post-secondary education. [35] I do not accept that Mick's income has declined from a high of $97,653 in 2008 (the year of the divorce) to essentially nothing in 2013, nor do I accept on the evidence before me the extent to which Mick has written off expenses against income, including rental income. In addition, it is apparent that Mick has made a long-standing practice of bartering for services and has obtained "incomes worth" in kind which is not reflected in his filings and not readily estimated. In my view, Mick's actual income and his earning capacity far exceeds the income he reports for tax purposes. [36] I turn, therefore, to consider the amount of income that should be imputed to Mick under s. 19 of the Guidelines. Clearly, Russell J. felt that as of September 2012, it was fair to impute to Mick a Guidelines income of $65,000/year. The monthly child support order she made for the period between June and September 2012 reflects that determination. Further, Mick's financial situation was known to the court at the time of his September 2012 application. It has not materially changed since. [37] Imputing income for underemployment does not require a finding of bad faith on the part of the payor or deliberate avoidance of child support responsibilities, but only that the payor is not earning to capacity. To determine if a parent is earning to capacity, the following considerations must be taken into account: that parent's age; education; experience; skills; health; and the job opportunities reasonably available. Persistence in unremunerated employment will not be regarded as an excuse. Similarly, a self-induced reduction in income does not justify the avoidance of child support obligations. [38] In the case at bar, Mick is a well-educated, experienced and capable businessman with substantial earning capacity. He is clearly respected in his field. In the material he provided me in support of this application, I note that he was the program committee member and speaker at the Urban Land Institute's April 2014 meetings in Vancouver. He was featured on the panel focusing on the initiatives of successful resort developers. While I accept for the purposes of this application that the recession of 2008 had its strongest impact on the development and marketing of recreational properties, and that this sector has taken longer than residential and commercial properties to recover, Mick's skills are transferable and I am satisfied he is making well below what his actual earning capacity is. As noted above, I am also satisfied that Mick is unreasonably deducting expenses from rental income thereby reducing his income for tax purposes. Further, I am not satisfied that Mick has made full disclosure of all financial information required. Finally, Mick made a determination to embark on a high risk, low income yield venture in 2012, immediately after being given an opportunity by this Court to be relieved of the immediate obligation to pay child support for a period of one year so he could catch up on arrears. His decision to do so is a curious one in light of what he knew about the nature and extent of his past and probable future child support obligations at that time. It is a factor I have considered in determining the amount of income to be imputed to him. [39] In my view, $65,000/year continues, from the date of the order of Russell J. and into the future, to be an appropriate income to impute to Mick and I do so for both base child support and s. 7 purposes. [40] On the basis of the information before me, I would, for the purposes of determining each party's proportionate share of s. 7 expenses, fix Nicole's Guidelines income at $87,000/year. [41] From July 7, 2012 onward (the date of the last s. 7 expense reconciliation) the parties will share in s. 7 expenditures proportionate to their respective incomes as I have determined them to be. For certainty and ease of calculation, I have slightly rounded these figures off so that Nicole will pay 60% of s.7 expenses from July 7, 2012 onward while Nick will pay 40% of those expenses. [42] For clarity, what Mick owes for child support from October 1, 2012 and for s. 7 expenses from July 7, 2012 will be addressed and explained in stages. [43] Nicole has submitted a lengthy itemized list of s. 7 expenses she incurred since July 7, 2012. The list separates out expenses relating to Brigette's attendance at university. [44] Mick takes issue with many of these expenses, saying that some are extravagant or were unnecessarily incurred, others the product of unilateral decision-making by Nicole, and still others (particularly some extracurricular high school-related costs attributable to Andre's activities) not properly characterized as extraordinary expenses. [45] Nicole's list of s. 7 expenditures (apart from those relating to the attendance of Brigitte at university) include substantial amounts for math tutoring and educational consultancy services for Andre (totaling about $2,150) plus expenses Brigitte incurred in a flight from New York City to Toronto ($200). [46] While I can appreciate the desire of a parent to ensure that their child receives every educational advantage by way of additional tutoring that may position them for university entrance, I must consider the necessity of the claimed expense in relation to the best interests of the child and the means of the spouses. I have no information before me confirming the necessity of these expenditures. In addition, tutoring services were not jointly agreed by the parties as eligible s. 7 expenses in the Minutes of Settlement. I would not allow them or costs in relation to Brigitte's flight from New York City to Toronto. In addition, I would back out the cost of Brigitte's return airfare from London, Ontario to Vancouver for Christmas in 2013 ($280). I do so as I will deal with the university costs of Brigitte separately. The rest of the expenses are, in my view, proper s. 7 expenses and in line with what was allowed by Russell J. in September 2012. [47] I would estimate the total of s. 7 expenses incurred by Nicole attributable to the period between July 7, 2012 and the date of this order (not including university expenses in relation to Brigitte) to be approximately $8,500. Mick owes Nicole 40% of this amount, or $3,400 for non-university related s. 7 expenses during this period. [48] Mick has his own itemized list of s. 7 expenses he says he incurred between 2010 and September 2013. Most relate to Brigitte's university expenses. I will deal with those expenses later in these reasons. Having reviewed Mick's statement, I will credit him $1,177 in s. 7 expenses he incurred during this time not attributable to Brigitte's post-secondary educational pursuits. Nicole owes Mick 60% of this amount, or $706. [49] I would offset these two amounts such that Mick owes Nicole $2,694 for s. 7 expenses not attributable to Brigette's attendance at university to the date of this order. [50] With respect to base child support from October 1, 2012 onward, Mick's Guidelines income will be deemed to be $65,000. [51] Brigitte began attending university in September 2012. She attained the age of majority on March 1, 2013. [52] Andre will begin attending university in September 2014. He will attain the age of majority on November 24, 2015. [53] By the terms of the Minutes of Settlement, the trust funds established in their names are to be managed by Nicole's father until the children reach the age of majority. Plainly, it was the intention of Nicole's parents at the time of the creation of these funds to enable their grandchildren to contribute to their own educational pursuits at a time when they were mature enough to begin assuming responsibility for their financial affairs. [54] The order the court makes today must take account of s. 3(2) of the Guidelines and the condition, means, needs and other circumstances of the children once they become adults, as well as the financial ability of their parents to contribute to their support upon them attaining the age of majority. [55] There is no question that the full-time educational pursuits of both children are reasonable and that it is appropriate for both parents, given their means, to contribute toward the cost of their children's education. [56] It would appear that both children work during the summer months. Consequently, both of them are in a position to offset at least a small portion of the cost of their educational pursuits from their own savings. [57] It is also appropriate to factor in the funds that are, or will be, available to the children on attaining the age of majority for their post-secondary educations through the generosity of Nicole's parents. At that time, both children will have the means to meaningfully contribute to the cost of their own education and should do so. [58] Brigitte moved out of Nicole's house in September 2012 to pursue her educational studies at the University of Western Ontario. Except for portions of the summer months in 2013 and 2014, she has lived away from home since. On the material put before me by Nicole in support of her application, a very conservative estimate of the average annual cost of Brigitte's post-secondary studies for 2012/2013 and 2013/2014 (tuition, books, residence, meal plan and travel) is $17,500. I expect that the actual cost is higher than this but I will be guided in this matter by the material Nicole filed on this application. [59] Brigitte attained the age of majority on March 1, 2013 during her first year in university. Given the funds that became available to her at that time, as well as what she might reasonably be expected to contribute from her own savings, I find that Brigitte should be expected to contribute $7,500 to her first year of university studies, with the remaining $10,000 to be paid for by Mick and Nicole proportionate to their respective incomes. For the academic year 2012/2013, Mick owes Nicole $4,000 for his proportionate share of Brigitte's post-secondary educational expenses. [60] For the academic year 2013/2014, it is reasonable to expect Brigitte, given that the trust fund money is available to her for the full academic year, to personally pay for slightly more than half of her educational costs. Assuming those costs to be approximately $17,500, Brigitte will pay $10,000. The remaining $7,500 in costs associated with Brigitte's second-year university will be shared by Mick and Nicole proportionate to their incomes. For the academic year 2013/2014, Mick owes Nicole $3,000. [61] I find that Mick owes Nicole a subtotal of $7,000 on account of university expenses incurred by Brigitte in 2012/2013 and 2013/2014. [62] Based on the material Mick filed, I would deduct from this subtotal $1,171 representing the estimated contributions Mick has made that are attributable to the cost of Brigitte's university education for these two academic years. [63] Setting off these two amounts, I find that Mick owes Nicole $5,829 in s. 7 expenses attributable to Brigitte's first two years in university. [64] Although the annual cost of Brigitte's attendance at university might reasonably be expected to rise for the academic year 2014/2015, this will be offset by the fact that her studies at Western will not commence until December 2014 to accommodate her exchange opportunity with the University of Queensland between the summer and late fall. While the exchange program will undoubtedly prove to be an exceptional learning and life experience for Brigitte, any additional costs associated of her attendance in Australia should not be borne by Mick. Accordingly, I would not vary the formula for Brigitte for the academic year 2014/2015. Upon the submission to Mick of receipts documenting Brigitte's attendance as a full-time student at the University of Western Ontario for the academic year 2014/2015, Mick will pay Nicole $3,000 in contributions towards Brigitte's educational studies in quarterly installments. [65] So long as Brigitte remains enrolled in full-time post-secondary educational pursuits (including for the academic year 2014/2015) she will be expected to personally contribute $10,000/year to her educational costs, plus any scholarship or grant funds she is in receipt of for that academic year. The total cost associated with Brigitte's attendance at university for undergraduate studies shall not exceed $25,000 in any academic year. The balance, representing the difference between Brigitte's actual costs (capped at $25,000) less Brigitte's personal contributions and scholarship or grant monies, will be paid for by Mick (40%) and Nicole (60%). [66] As with all future s. 7 expenses, the parties will perform a quarterly accounting to ensure that each party has paid their appropriate share of s. 7 expenses for the previous three months. Moving forward, this will apply to both Brigitte and Andre. [67] In addition, Mick should contribute to Brigitte's base child support when she and Andre resided with their mother in June, July and August 2013 and in June and July 2014 (as I understand it, Brigitte did not live with her mother in August 2014 as she participated in the exchange opportunity at the University of Queensland in Brisbane). For these five months, Mick will pay Nicole $986/month, for a total of $4,930. These child support payments take account of both children during these months. For August, 2014 (when Andre was the only child staying with Nicole) Mick will pay Nicole an additional $605 for child support for Andre. [68] For the period between October 1, 2012 and August 31, 2014, Andre lived at home with his mother. This is a total of 23 months. Six of those months have already been taken into account (June-August, 2013 and June-August 2014). Mick will pay to Nicole base child support for Andre for the remaining 17 months in an amount totaling $10,285 (17 months x $605/month, based on a Guidelines income of $65,000). [69] Andre will commence his studies at McGill in September 2014. He will not reach the age of majority until his second academic year. At that time he will have access to the trust fund that has been established by his maternal grandparents for his education and should be expected to contribute more substantially to the cost of his education. [70] For the academic year 2014/2015, it is reasonable to expect Andre to personally contribute $5,000 of his own savings to his post-secondary education. I recognize that I have decided Brigitte should pay $7,500 toward the cost of her first year of university studies. The difference is attributable to the fact that Andre will not be able to access money set aside for him in the trust fund until he attains the age of majority in the second year of his studies. Those funds became available to Brigitte in the latter part of her first year of university. Should Andre be in receipt of scholarship or grant funds, his expected contribution for the academic year 2014/2015 will increase to $5,000 plus the amount of his scholarship and/or grant funds. Upon the submission to Mick of receipts documenting Andre's full-time attendance at McGill (or such other institution as Andre determines to attend) for the academic year 2014/2015 and the costs associated with that attendance, Mick will pay to Nicole in quarterly installments his proportionate share (40%) of the balance. [71] For the academic year 2015/2016, should Andre continue to attend university, he will have attained the age of majority and should be expected to access funds being held in trust for him for the specific purpose of his education. As with Brigitte, Andre will, for the academic year 2015/2016 and following, be expected to contribute $10,000/year to his educational costs plus any scholarship and/or grant funds he is in receipt of for that academic year. [72] For clarity, and as with Brigette, the total cost associated with Andre's attendance at university for undergraduate studies shall not exceed $25,000 in any academic year. The balance, representing the difference between Andre's actual costs (capped at $25,000) and his personal contributions ($10,000 plus any scholarship and grant monies) will be paid for by Mick (40%) and Nicole (60%). [73] For the future guidance of the parties, for the summer months in which Brigitte and Andre reside with their mother while continuing to pursue full-time post-secondary academic studies, Mick will pay Nicole $500/month in base child support. In the event that only one child who continues to be in a course of full-time post-secondary study resides with Nicole during the summer months, Mick will pay Nicole $300/month in base child support. While this is a departure from the Guidelines, I consider it to be justified on grounds that the two children are capable of working during the summer months and offsetting the cost Nicole has traditionally borne to support them. [74] By way of summary, Mick owes Nicole $15,820 in base child support for the period between October 1, 2012 and August 31, 2014 ($4,930 + $605 + $10,285 = $15,820). [75] He further owes her a total of $8,523 ($2,694 + $5,829 = $8,523) for special expenses incurred between July 7, 2012 and June 6, 2014, the date of this application. This sum is inclusive of Mick's contribution to the cost of Brigitte's attendance at university in 2012/2013 and 2013/2014. [76] Accordingly, Mick owes Nicole a total amount $24,343 ($15,820 + $8,523 = $24,343). For clarity, this amount is in addition to the amount that remains outstanding and owed by Mick to Nicole pursuant to the order of Justice Russell made on September 24, 2012. [77] The parties will make best efforts to agree on future child support and s. 7 expenses owing from June 6, 2014 onward using this judgment as a template to resolve those issues. [78] The parties will seek to mediate and resolve any dispute that may arise respecting amounts owing in the future. The cost of such mediation will be borne equally by them. [79] I will remain seized of this matter for a period of one year should judicial determination of issues the parties cannot resolve on their own or through mediation be required. [80] To assist the parties I have prepared the order that gives effect to these reasons, this Court orders as follows: UPON THE APPLICATION of the Claimant, Nicole Beissner, dated April 14, 2014 COMING ON FOR HEARING on the 6th day of June 2014 at the Courthouse at 800 Smithe Street, Vancouver B.C.; AND UPON HEARING Nicole Beissner and Mick Matheusik, both of whom appeared on their own behalf; AND UPON HEARING the submissions of the parties and reviewing the materials filed, including the supplementary written submissions filed by both parties on the 13th day of June 2014; AND UPON JUDGMENT BEING RESERVED TO THIS DAY; AND UPON there being two children of the marriage, BRIGITTE MATHEUSIK (born March 1, 1994) and ANDRE MATHEUSIK (born November 24, 1996), hereinafter "Brigitte" and "Andre"); THIS COURT ORDERS THAT: 1. For the purposes of calculating base child support and his proportionate share of s. 7 expenses, the Respondent, Mick Matheusik, shall have imputed to him a Guidelines income of $65,000. This order will be in effect from October 1, 2012 until such time as it is varied by agreement between the parties or by further order of this Court; 2. For the purpose of calculating the parties' proportionate share of s. 7 expenses, the Claimant, Nicole Beissner's annual income is $87,000 from October 1, 2012 until such time as it is varied by agreement between the parties or by further order of this Court; 3. The Respondent shall pay to the Claimant base child support covering the period October 1, 2012 to August 31, 2014 in the total amount of $15,820; 4. The Respondent shall pay to the Claimant s. 7 expenses relating to Brigitte and Andre for the period covering July 7, 2012 (the date of the last reconciliation of such expenses) to June 6, 2014 (the date this application was made) in the total amount of $8,523; 5. The total amount owing by the Respondent for base child support (from October 1, 2012 to August 31, 2014) and s. 7 expenses (from July 7, 2012 to June 6, 2014) is $24,343; 6. If the full amount of the base child support and s. 7 expenses owing pursuant to this judgment is not fully paid by the Respondent within 90 days of the date of this judgment, the Claimant shall be at liberty to have the full amount of the funds then owed to her enforced by the Family Maintenance Enforcement Program; 7. For the academic year 2014/2015, and upon proof being shown that Brigitte is enrolled in full-time studies at a post-secondary institution, the Respondent will contribute to the cost of Brigitte's studies. That contribution will be determined by the following formula: Total actual cost of Brigitte's attendance at the University of Western Ontario (not to exceed $25,000 in any undergraduate academic year) less $10,000 to be personally contributed by Brigitte, less the amount of any scholarship or grant funds Brigitte receives for that academic year = the "remaining balance" of the cost of Brigitte's studies. The "remaining balance" is to be shared 40% by the Respondent and 60% by the Claimant; 8. For the academic year 2014/2015, and upon proof being shown that Andre is enrolled in full-time studies at a post-secondary institution, the Respondent will contribute to the cost of Andre's studies. That contribution will be determined by the following formula: Total actual cost of Andre's studies (not to exceed $25,000 in any undergraduate academic year) less $5,000 to be contributed by Andre, less the amount of any scholarship or grant funds Andre receives for that academic year = the "remaining balance" of the cost of Andre's studies. The "remaining balance" of is to be shared 40% by the Respondent and 60% by the Claimant; 9. For the academic year 2015/2016, and upon proof being shown that Andre is enrolled in full-time studies at a post-secondary institution, the Respondent will contribute to the cost of Andre's studies. That contribution will be determined by the following formula: Total actual cost of Andre's studies (not to exceed $25,000 in any undergraduate academic year) less $10,000 to be contributed by Andre, less the amount of any scholarship or grant funds Andre receives for that academic year = the "remaining balance" of the cost of Andre's studies. The "remaining balance" is to be shared 40% by the Respondent and 60% by the Claimant; 10. For any year not specifically addressed in this order in which Andre and Brigitte are enrolled in full-time studies undergraduate studies at a post-secondary institution, the Respondent shall contribute to the cost of that special expense using the following formula: Total actual cost of each child's studies (not to exceed $25,000 per/child in any undergraduate academic year) less $10,000 to be contributed by each child, less the amount of any scholarship or grant funds the child receives for that academic year = the "remaining balance" of the cost of the child's studies. The "remaining balance" will be shared 40% by the Respondent and 60% by the Claimant; 11. The parties shall, by September 30, 2014, make best efforts to agree on the sharing of s. 7 expenses from July 7, 2014 to August 31, 2014. Section 7 expenses incurred between these dates will be paid 40% by Mick and 60% by Nicole. In the absence of agreement, either party may apply to the Court for directions after September 30, 2014 concerning the allocation of s. 7 expenses for this period; 12. From September 1, 2014 the parties will, on a quarterly basis, exchange an itemized list of s. 7 expenses with receipts attached. Unless their Guidelines incomes as reflected in paragraphs 1 and 2 of this order are changed by agreement or by further order of this Court, the parties will share future s. 7 expenses proportionate to their incomes (the Respondent at 40% and the Claimant at 60%); 13. The Claimant's application for the production of further financial documents from the Respondent, or entities to which he is related, is dismissed as abandoned; 14. The Claimant's application for disclosure of the respondent's air mile and/or travel bonus mile points balance is dismissed; 15. The Claimant's application for a lien to be placed on properties owned by the Respondent as security for the payment of child support and s. 7 expenses owed by the Respondent is adjourned generally; 16. The Honourable Mr. Justice Fitch is seized of this matter for a period of one year to resolve any disagreements that may arise between the parties concerning the implementation of this order; 17. The order of The Honourable Madam Justice Russell made September 24, 2012 shall be appended to this order; 18. The parties will bear their own costs in relation to this application. [81] For the convenience of the parties, I have prepared and will now distribute to both of them a copy of the order. The original order will be submitted to the Registry for entry, by Nicole. I dispense with the requirement that the parties approve the form of the order. "FITCH J."