Pot v. Pot

2008 BCSC 1619 Pot v. Pot

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Pot v. Pot, 2008 BCSC 1619 Date: 20081126 Docket: F993280 Registry: Vancouver Between: Antonia Johanna Elisabeth Pot, also know as Annelies Pot Plaintiff And Cornelis Hendricus Pot, also known as Kees Pot Defendant Before: The Honourable Madam Justice H. Holmes Reasons for Judgment Counsel for the Plaintiff: M.C. de Guzman Counsel for the Defendant: S.M. Kinney Date and Place of Hearing: October 15-16, 2008 November 10, 2008 Vancouver, B.C.

INTRODUCTION [1] The parties in their respective notices of motion seek orders concerning a total of approximately nineteen matters. Most of these concern financial support for the parties' three children, now aged 21, 19, and 16.

BACKGROUND [2] Ms. Pot lives in Delta, B.C. She works two to three days per week as an emergency recovery nurse, and also works for her new husband's business. She declares her total annual income to be approximately $58,000. [3] Mr. Pot is a medical laboratory technician. He has lived since late 2003 in Michigan, U.S.A., when he moved there after his position with the B.C. Cancer Agency ended in September 2003. [4] The parties married in March 1977, separated in December 1998, and divorced in May 2002. [5] There was some sharing of and changes in the children's primary residence, in the first few years after the separation. However, since Mr. Pot moved to Michigan, all three children have lived with Ms. Pot and, now, her new husband in Delta. [6] An order of Hutchinson J. on June 6, 2002 gave the parties joint responsibility for the children's guardianship and custody. [7] On November 21, 2003, after Mr. Pot's move to Michigan, Ms. Pot applied for orders for child support. In proceedings in which Mr. Pot did not participate, Baker J. imputed to him an annual income of $70,000, and ordered monthly support for the three children of $1,202 beginning September 1, 2003. The order said nothing about s. 7 special or extraordinary expenses. [8] Mr. Pot paid the ordered amount of $1,202 until September 2006, when representatives of the Family Maintenance Enforcement Program (FMEP) advised him of their determination that the parties' oldest child, Nicholas, was no longer a child of the marriage. Since then, Mr. Pot has paid $1,053 as the Child Support Guidelines support for two children.

THE POSITIONS OF THE PARTIES [9] Ms. Pot seeks retroactive adjustment of child support payable from the time of Baker J.'s order. She says that in most of the years since then, Mr. Pot's income has exceeded the $70,000 income Baker J. imputed to him, if his income, which he receives in U.S. dollars, is converted into its Canadian dollar equivalent. [10] Ms. Pot also seeks an order that Mr. Pot pay a proportionate share of certain expenses she has incurred for the children since 2003, for tutoring, medical and dental expenses, and post-secondary education. She contends that these are reasonable and necessary extraordinary expenses which Mr. Pot should share, both retroactively and in the future. [11] Mr. Pot disputes most of Ms. Pot's claims. He contends that certainly Nicholas, at 21, and likely Marlise, at 19, are each no longer a "child of the marriage". He submits that in any event, both Nicholas and Marlise are able to contribute very substantially to their own post-secondary educational expenses. He submits that these expenses and the other claimed s. 7 expenses are insufficiently documented or explained in the evidence, and that Ms. Pot made little if any effort to consult him before incurring many of them.

THE ISSUES [12] The positions of the parties require determination of the following main issues: 1. Should Mr. Pot's child support obligation be retroactively adjusted (to 2003, the date of the order) to reflect (a) Mr. Pot's actual income (in Canadian Dollars) each year, and (b) changes to the Guidelines tables in 2006?

2. What is Mr. Pot's present income for Guidelines purposes?

3. Is Marlise, who at the age of 19 is attending post-secondary education, a "child of the marriage"?

4. Is Nicholas, who at the age of 21 has given up his full-time employment of recent years to attend a seven-month training course, a "child of the marriage"?

5. To what s. 7 extraordinary expenses, past or ongoing, should Mr. Pot be required to contribute?

DISCUSSION 1. Should Basic Child Support be Retroactively Adjusted to 2003? [13] Ms. Pot submits that in several of the years since 2003, Mr. Pot's annual income significantly exceeded $70,000, and in only a few years fell below $70,000 by relatively minor amounts. Her counsel tenders calculations to support Ms. Pot's position that Mr. Pot's payment of child support on the basis of the $70,000 income imputed to him has resulted in an aggregate underpayment of basic child support. [14] Counsel agree that in the determination whether Mr. Pot has "underpaid" or "overpaid" basic child support, the 2006 increase in the Guidelines amounts should be given effect. [15] Counsel agree also that, in this analysis, Mr. Pot's income, which is received in U.S. funds, should be converted to Canadian funds, by reference to the Bank of Canada exchange rate. Mr. Pot also submits, and Ms. Pot does not seriously dispute, that a two percent deduction should be applied in this process, because of the costs to Mr. Pot of exchanging his income so as to pay child support in Canadian funds. [16] Mr. Pot agrees that in the year 2004 he earned the equivalent of $77,157 CAD, and thus more than the imputed $70,000 income. However, he submits that in all other years his income was less than the $70,000 CAD imputed to him, and that the aggregate discrepancy resulted in overpayment, not underpayment. [17] I

agree. Ms. Pot's different calculations are explained by two main errors. For 2003, her calculation overlooks the fact that most of Mr. Pot's income was earned in Canadian funds. For 2008, her extrapolation from the income Mr. Pot has earned to date is mathematically inaccurate. [18] Expressed in Canadian funds, and allowing for a two percent loss in the course of currency exchange, Mr. Pot's annual incomes are thus as follows: 2003: $64,109 2004: $77,157 2005: $66,659 2006: $64,539 2007: $69,588 2008: $58,840 [19] Even allowing for the 2006 increase in the Guidelines amounts, Mr. Pot has not "underpaid" child support in the aggregate since 2003. Rather, and depending on the determination of whether and when Nicholas and Marlise each ceased to be a "child of the marriage", he has "overpaid" by up to $6,631. [20] Mr. Pot does not seek retroactive repayment of any overpayment, but rather that any overpayment be deducted from child support otherwise ordered to be payable. In light of determinations I will make below, I conclude that the child support history to date is more fairly left undisturbed.

2. What is Mr. Pot's present Guidelines income? [21] Mr. Pot submits that, for the purposes of prospective child support, his income for Guidelines purposes should now be determined to be $58,840, based on an extrapolation from his year-to-date 2008 income, converted to Canadian funds on the basis I described above. [22] Ms. Pot submits that Mr. Pot's ongoing income should be based on the higher income (USD $69,588) he achieved in 2007. Mr. Pot responds that he worked an unusual amount of paid overtime that year, because of a situation unlikely to recur. He submits that $58,000 is a more realistic income in his future. [23] That may turn out to be so, but, for the purposes of the Guidelines, income is generally based on the preceding tax year, and that is 2007. [24] For Guidelines purposes, Mr. Pot's income therefore continues to be $70,000, which is a rounded version of $69,588. I consider that for simplicity and convenience, rounding is appropriate where, as here, certain adjustments and assumptions have been applied to Mr. Pot's U.S. income to render it in Canadian dollars. [25] If Mr. Pot's income changes, the parties may either agree to a change in the monthly amount of basic support, or may apply. [26] The parties are to exchange copies of their tax returns annually.

3. Is Marlise Still a "Child of the Marriage"? [27] Marlise is 19 years of age. She graduated from high school in June 2007, and enrolled in a full-time program at Kwantlen University College in September 2007. Her program is transferable to Simon Fraser University. Ms. Pot advises that Marlise hopes to obtain a B.A. and a teaching certification from S.F.U. Marlise herself provides no evidence. [28] Marlise lives with Ms. Pot, but also works toward her own support. In the summer of 2007, she earned more than $10,000 as a lifeguard. Ms. Pot deposes that she believes that Marlise, during the school year, works up to eight hours per week earning $19.50 per hour. [29] The evidence concerning Marlise's educational plans is sparse, and is offered only second-hand through Ms. Pot. There is no evidence concerning Marlise's success to date or her likely success in the future in the plans as described by Ms. Pot. [30] Mr. Pot submits that Ms. Pot has failed to establish, as she must, that Marlise remains a "child of the marriage", because she has failed to provide evidence that Marlise is financially unable to withdraw from her parents' charge, as the applicable portion of the definition requires. Section 2(1)(b) of the Divorce Act defines "child of the marriage" as a child of two spouses or former spouses who, at the material time (b) is the age of majority or over and under their

charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. It is common ground that the party alleging that an adult child remains a "child of the marriage" has the burden of so proving: Darlington v. Darlington, [1997] B.C.J. No. 2543, 99 B.C.A.C. 134, at para. 15. [31] I have some sympathy for Mr. Pot's position. The evidence concerning Marlise's financial situation is minimal. Although it discloses that her earnings have been substantial, for a recent graduate from high school, it fails to indicate whether Marlise may expect similar earnings in future summer breaks, or whether her present part-time earnings will continue or increase. There is evidence that Marlise has had the benefit of $1,920 from a RESP account, but there is no evidence as to whether there are further funds in the account that may provide her some support. There is little admissible evidence as to the costs of Marlise's post-secondary education; Ms. Pot tenders only her own statement of the aggregate amount (approximately $8,000) paid thus far, and copious VISA statements appended to a legal assistant's affidavit, within which are presumably to be found records of such expenses. Finally, there is little evidence of whether and how Marlise has spent her past and present earnings; the little evidence that is available suggests that

Marlise's financial contribution to her post-secondary education has been relatively minimal (a total of $812.71 for her transit passes and books in 2007). [32] The paucity of the evidence, and its failure to address key issues of importance to the analysis the court must undertake, lend some force also to Mr. Pot's position, which I will discuss later, that he has been insufficiently consulted about Marlise's post-secondary education and the other extraordinary expenses now claimed. [33] However, despite the weaknesses in the case Ms. Pot presents in this area, the simple fact is that Marlise is embarked on a program of post-secondary education, which is likely reasonable, given her parents' educational background and their incomes, and which, the court may reasonably conclude, is outside her own ability to finance. [34] I therefore conclude that Marlise is financially unable to withdraw from her parents' charge, and requires some ongoing financial support. I will discuss the amount of that support later in these reasons.

4. Is Nicholas Once Again a "Child of the Marriage"? [35] After his graduation from high school in June 2005, Nicholas worked in construction and for some welding companies, part-time at first, and then on a full-time basis. In 2006, he earned $18,000, and in 2007 he earned $24,000. [36] Nicholas turned 19, the age of majority, in January 2006. He has lived with Ms. Pot throughout, and continues to live with her now. [37] Ms. Pot agrees that Nicholas was no longer a "child of the marriage" while he was in the work force, earning sufficient for his own support. She identifies that time as beginning on September 1, 2006. However, the reasoning underlying Ms. Pot's position applies equally as of January 2006 when Nicholas turned 19 (the age of majority) and was working full-time. I conclude that Nicholas ceased to be a "child of the marriage as of February 1, 2006. [38] Ms. Pot contends that Nicholas resumed status as a "child of the marriage" when in September 2008 he enrolled in a full-time, seven-month program at BCIT to upgrade his welding skills to Level "C". Ms. Pot advises that in addition to attending the full-time program, Nicholas also works between sixteen and twenty hours per week, earning, Ms. Pot believes, $14 per hour, to provide for the financial support Mr. Pot has thus far failed to contribute. [39] There is little evidence about Nicolas' educational expenses,

except that the fee for his seven-month program is said to be approximately $3,300 "estimate only". [40] There is no evidence concerning how Nicholas spent or spends his past and present earnings. Nor is there evidence of Nicolas' savings, or other funds available to him, or of the value of his assets, which include a high-performance motorcycle as well as an older car. [41] Some of the factors that a court will consider when determining whether a young adult who is engaged in post-secondary education remains a "child of the marriage" were outlined by Master Joyce, as he then was, in Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C.S.C.) at para.15, and were recently repeated by the Court of Appeal in N.(W.P.) v. N.(B.J.), 2005 BCCA 7, 36 B.C.L.R. (4th) 330 [Neufeld], at para. 20: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success

in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. [42] As the court in Neufeld emphasized, the factors are not exhaustive; the determination is fact-specific (at para. 22). [43] I have much sympathy for Mr. Pot's submission that Nicholas left the "charge" of his parents when, after his graduation from high school, he entered the full-time work force with considerable financial success, and -- by all appearances -- determined his own future, including by maintaining expensive hobbies. There is some basis for concluding that the second factor described by McEwan J. in Robertson v. Hibbs, [1997] B.C.J. No. 1305 (S.C.), at para. 18, may apply: 2. The degree to which the child by his or her own choices has created needs or expenses that are unreasonable in the circumstances, such that maintaining those choices will amount to a declaration of independence the child will be expected to finance on his or her own. [44] But other factors weigh in the other direction. First, Nicholas has never established a separate home away from a parent. Second, and in my view more importantly here,

until his registration in the Level C welding program, Nicholas pursued no post-secondary education. As I have already indicated, in this family's circumstances, post-secondary education for each of the children is reasonable and likely. That Nicholas chose to delay his post-secondary education should not of itself indicate a permanent removal from his parents' financial "charge". [45] I conclude that Nicholas ceased to be a "child of the marriage" in January 2006, when he reached the age of majority and was engaged in relatively well-paying full-time work. He resumed his status as a "child of the marriage" in September 2008, when he took up full-time education in a welding program. That status will end when he completes the seven-month program.

5. Should Mr. Pot Contribute Retroactively to Extraordinary Expenses? [46] Ms. Pot claims a contribution, proportionate to Mr. Pot's income each year, of what she says are the extraordinary expenses incurred since Baker J.'s order in November 2003. [47] Ms. Pot initially claimed a very wide range of expenses, including for the children's clothing and for numerous expenses related to high school graduations. She has refined her application to now claim expenses in the following areas: (1) medical and dental expenses, including insurance premiums, routine dentistry, teeth extraction, contact lenses, and orthotics, totalling approximately $7,661; (2) math tutoring for Brandon totalling approximately $1,586; and (3) post-secondary education for Nicholas and Marlise, totalling approximately $7,469. [48] The order of November 2003 was relatively detailed, with ten paragraphs, but included no provision for s. 7 special or extraordinary expenses. Ms. Pot's application therefore amounts to an application for variation of Baker J.'s order. [49] The Divorce Act in s. 17 allows a court to retroactively vary a child support order where a change of circumstances has occurred since the order was made: 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either

or both former spouses . (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [50] The Child Support Guidelines in s. 14 set out the circumstances that will justify a variation: 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997). [51] Each of the parties seeks a variation of the order of Baker J., but is hard-pressed to identify a change of

circumstances within the meaning of s. 17(4) of the Divorce Act as illuminated by s. 14(a) of the Guidelines, particularly a material change. [52] Mr. Pot contends that such a change is found in his annual income since 2003, which in the aggregate amounts to less than an average of the imputed $70,000 per year. As I have already discussed, from the present perspective, the previous variations in his annual income are minor. [53] Ms. Pot contends that the incurring of extraordinary expenses for the children's reasonable needs amounts to a material change of circumstance. None of the expenses now claimed are unusual, or the type of expense that the parties and the court would not have foreseen as likely, at the time of the November 2003 order. However, there is no suggestion that in failing to provide for extraordinary expenses, the order contemplated that Ms. Pot would on her own, with the assistance of basic child support on the imputed $70,000 income, provide for all of the children's needs. Indeed, Mr. Pot makes no such suggestion, and his email correspondence in November 2006 -- to which I will turn later in these reasons -- indicates his expectation to share (with some exceptions) in the funding of extraordinary expenses that he agrees to be reasonable and necessary. [54] Despite certain misgivings, I will therefore assume that with the passage of some considerable time

since the 2003 order and the incurring of some fairly large expenses for particular needs of the children, there is a basis for the court to consider a variation under s. 17 of the Divorce Act. [55] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, Bastarache J. for the majority of the Supreme Court of Canada discussed in detail the principles that apply on an application for retroactive support, including where there has already been a court order for child support to be paid. [56] Bastarache J. noted that, unlike prospective child support awards, "retroactive awards implicate the delicate balance between certainty and flexibility" (para. 2). The ultimate goal is to ensure that children benefit from the support they are owed at the time when they are owed it. [57] Where a court order has provided for child support, over the period for which additional support is retroactively sought, the payor parent's interest in certainty is strong, particularly where he or she has been complying with the court order (para. 63). Nonetheless, he or she has -- with the recipient parent -- an ongoing obligation to ensure that the children receive the appropriate amount of support (paras. 56 and 64). [58] Courts will consider a myriad of factors before determining whether to make an order for retroactive support. Each case will be determined on the basis of its particular factual matrix

(para. 99). However, four key factors emerge. [59] First, the court will consider the reasons for the recipient parent's delay in bringing the application. Where there is unreasonable delay, without blameworthy conduct on the part of the payor parent, the interest in certainty will generally prevail. This approach responds to the concern to discourage delay, because a retroactive award is, for the child, a poor substitute for proper support at the time (paras. 102-103). [60] Second, blameworthy conduct on the payor parent's part tends to disentitle him or her from relying on the certainty and predictability of the status quo. Blameworthy conduct will include anything that privileges the payor parent's own interests over those of the children to an appropriate amount of support (paras. 105-106). [61] Third, the court will consider the present circumstances of the child, as well as the child's past circumstances. This is because a retroactive award is a poor substitute for appropriate support at the earlier time (paras. 110-111). [62] Fourth, the court will consider any hardship that a retroactive award would create, mindful that retroactive awards disrupt payor parents' management of their financial affairs in ways that prospective awards do not (paras. 114-115). [63] In brief overview, application of the four factors discussed in D.B.S. v. S.R.G. weighs against Ms. Pot's

application. Ms. Pot has no real explanation for her delay in bringing her application for a retroactive contribution to extraordinary expenses. There is no blameworthy conduct on Mr. Pot's part: he has always paid the court-ordered amount of child support, except to the extent that FMEP advised him that Nicholas was no longer a child of the marriage. There is no evidence that the children suffer any hardship as a result of Baker J.'s order as it now stands; indeed the children are fairly well off. Although Ms. Pot now relies on changes in circumstances which she says arise in part from variations in Mr. Pot's income, those variations are relatively minor; moreover, since the time of the order, Ms. Pot has made no requests for disclosure of Mr. Pot's income, except in connection with this application. And finally, there is no evidence that Mr. Pot is in a position to pay the substantial lump sum amount of retroactive support Ms. Pot seeks; rather, the evidence suggests that this would create considerable hardship for him. I will explain some of these conclusions in greater detail. [64] Ms. Pot did not contact Mr. Pot about any of the expenses she now claims until November 2006. In first a telephone conversation and then a series of emails, she advised Mr. Pot that Brandon was not doing well in mathematics class, and required tutoring assistance at $36 per hour. She also used

the opportunity to tell Mr. Pot that she expected him to share in various other expenses, including Marlise's graduation expenses, Marlise's college and related expenses, and Nicholas' wisdom teeth extractions. Mr. Pot immediately responded that Nicholas was no longer a "child of the marriage", that certain expenses (Brandon's tutoring and Marlise's graduation) were not extraordinary, and that he would like further information about and involvement in decisions about Marlise's post-secondary education. In subsequent emails, the parties each reiterated and developed their respective positions about these expenses. [65] The parties clearly did not communicate well. Ms. Pot evidently felt challenged and harassed about questions concerning expenses that, from her perspective, were reasonable and unavoidable. Mr. Pot evidently felt excluded from his decision-making role, as joint guardian, and instead subject to demands for contribution to largely unexplained expenses Ms. Pot unilaterally incurred on the children's behalf. Mr. Pot's perspective cannot have been improved by emails in which Marlise, evidently called on by her mother to answer Mr. Pot's questions, answered dismissively and disrespectfully, with a clear underlying assumption that her father was obliged to fund her chosen course of education, no questions asked. [66] Mr. Pot clearly has a keen and intelligent interest in

Marlise's educational future. It is clear that while email communication may work well for the relaying of brief details concerning the children, it does not allow for a developed and nuanced discussion concerning such a significant life step as post-secondary education. I recommend that the parties find some other way of discussing this type of matter. [67] The cost of math tutoring for Brandon, the proposed expense of which started the email exchange, was in my view reasonable and necessary at the time. Although Mr. Pot never gave his approval to the expense, the parties had discussed it and alternative forms of assistance at some length in their email exchange, and had essentially met an impasse. Given that Brandon was failing his mathematics course at the time, it was reasonable for Ms. Pot to exercise her final decision-making authority under the joint guardianship arrangement to incur those expenses. [68] Mr. Pot will therefore pay one-half of the expenses of Brandon's tutoring in 2006-2007. [69] Children's medical and dental expenses are often undisputedly reasonable and necessary, but that is not entirely the case here. As I noted earlier, it was not until November 2006 that Ms. Pot drew to Mr. Pot's attention the fact of many of the expenses incurred since 2003, and the fact that she would be claiming reimbursement from him. Some -- certainly not all -- of the larger

expenses appear somewhat discretionary; Mr. Pot's agreement to them was never sought or obtained, and, indeed, the reasons for the expenses were never explained to him. Ms. Pot has an extended health plan which covers many of the children's medical and dental expenses. The plan, however, denied coverage of many of the disputed expenses, for reasons such as that the expenses were incurred too frequently, or were unsupported by physician's prescription or recommendation. No further explanation of the expenses was provided to Mr. Pot or is provided on this application. [70] Of the retroactive medical and dental expenses Ms. Pot now claims, the largest is for the extraction of Nicholas' wisdom teeth. However, this expense, which pre-dated the beginning of notice, in November 2006, to Mr. Pot, was incurred some nine months after Nicholas ceased to be a child of the marriage. [71] In all the circumstances, Mr. Pot is not responsible for the medical and dental expenses claimed retroactively to 2003. [72] As to Nicholas' and Marlise's post-secondary educational expenses, several principles apply. Section 7(1) of the Guidelines expressly recognizes, in (e), "expenses for post-secondary education" as a "special and extraordinary expense. In making an order for payment for such an expense, the court is to consider " the necessity of the expense in relation to the child's best interests

and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation". [73] The Court of Appeal in Neufeld, at para. 42, made clear that support for a young adult who is a child of the marriage because of post-secondary education will usually be determined under s. 3(2)(b) of the Guidelines, rather than by the addition of basic child support and s. 7 special or extraordinary expenses. Section 3(2)(b) provides: the amount that [the court] considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [74] Applying that approach here, I note on the available evidence -- which is sparse, particularly on Ms. Pot's side -- that the parties' respective means are roughly equivalent and their financial ability to contribute therefore also so. As I have already discussed, the evidence concerning Nicholas' and Marlise's respective financial means is far from complete; so too is the evidence concerning their respective contributions to their own financial support and the cost of their post-secondary education. [75] Nonetheless, I am satisfied that Mr. Pot should make a financial contribution to Nicholas' and Marlise's post-secondary educational expenses and their support

during that education. Because Nicholas and Marlise both live with Ms. Pot, in my view their support, as best determined according to s. 3(2)(b), is best achieved though a combination of monthly support and a sharing of the lump sum costs associated with their post-secondary education. Although I make this determination according to s. 3(2)(b), and not according to s. 3(1), I order monthly support according to the Guidelines, plus one-quarter of the costs of each child's post-secondary registration fees and books and materials. On the available evidence, both Nicholas and Marlise are more than capable of reasonably contributing at least one-half of their expenses of their fees and books and materials. The remaining one-quarter falls to Ms. Pot's responsibility. [76] I make this determination according to s. 3(2)(b) on the basis that Nicholas and Marlise live with Ms. Pot. If either chooses to live separately, or to undertake a more costly post-secondary educational program, the reasonable allocation of those additional costs may fall more to Nicholas and Marlise than to their parents. [77] Child support should be paid to Ms. Pot, and not, as Mr. Pot requests, directly to Nicholas and Marlise.

CONCLUSION [78] There will be no retroactive adjustment of the child support Mr. Pot has paid since November 2003. [79] Mr. Pot's present Guidelines income is $70,000. If Mr. Pot's income changes, the parties may either agree to a change in the monthly amount of basic support, or may apply. The parties are to exchange copies of their tax returns annually. [80] Marlise is a "child of the marriage" while engaged in her present program of post-secondary education. [81] Nicholas ceased to be a "child of the marriage" on February 1, 2006, and resumed his status as a "child of the marriage" in September 2008, when he took up full-time education in a welding program. That status will end when he completes the seven-month program. [82] Mr. Pot will pay one-half of the expenses of Brandon's tutoring in 2006-2007. [83] In all the circumstances, Mr. Pot is not responsible for the medical and dental expenses claimed retroactively to 2003. [84] Mr. Pot will pay basic support according to the Guidelines tables, plus one-quarter of the costs of each child's fees and materials for post-secondary education. [85] Mr. Pot will also pay one-half of any other reasonable extraordinary expenses as the parties agree in advance. [86] If any matters are unaddressed in these reasons or require clarification, the parties should apply at their earlier convenience. Otherwise, the order reflecting these reasons is to be filed within thirty days of the issuing of these reasons. "H. Holmes, J." The Honourable Madam Justice H. Holmes