The recent Ontario court case called Dover v. Timbers provides an important lesson to separated parents to make sure they have a clear, documented agreement that reflects the child support and expenses for which they are willing to be liable.
The parents had four children together. When they decided to separate after a 26-year traditional marriage, they negotiated a separation agreement which provided that they would share certain extraordinary expenses related to the children in a proportion that was commensurate with their respective incomes. Other unforeseen extraordinary expenses – which were shared between them – were to be agreed upon by both parties in advance of either of them paying.
One of the expenses related to more than $30,000 in tuition and expenses to allow their son – who had been in trouble with the law – to attend Film School for one year. The father had paid the tuition, but later claimed $9,000 from the mother by way of contribution (which under the agreement was apportioned based on the parties’ respective income). However, a dispute quickly arose as to whether the father had notified the mother in advance of this outlay, and more particularly whether she had agreed to it.
The father claimed that he had phoned the mother shortly before school started, to advise her of this expense, and that she agreed to the cost. He also claimed that he later e-mailed her requesting her share of the actual $32,500 that had been spent. However, he conceded that the email was sent only after the son had graduated.
The mother, on the other hand, denied there was ever a phone call and said that it was the son who told her about his attending Film School; however he indicated that the father was paying for it. It was only when she received the e-mail setting out the full expenses that she understood that the father was looking for her to contribute in any way.
The father according applied to the court to settle the matter.
The court disallowed the father’s application. First of all, even accepting the father’s claim that he had phoned the mother, the court concluded that this “hardly qualifies as attempting to ‘discuss in advanced and agree upon’ the expenditure as required by the Agreement.” The agreement also required the parents to consider what (if any) contribution the son could make to his own post-secondary education costs, which the father admitted did not occur. Finally, the court also pointed out that the level of discussion that is required by the agreement could not reasonably take place by phone only a few days before the course was about to start.
(Incidentally, the court also addressed the father’s alternative argument, that the Film School tuition was part of the son’s “post-secondary education” as defined in another section of their negotiated agreement, and that the mother had an obligation to contribution in any event, whether she agreed or not. However, the court observed that if the father had viewed the tuition expenses in this manner, the agreement provided that he was entitled to apply to the court for its approval, which he chose not to do. The fact that he did not pursue this available option was suggestive of the fact that the father considered the tuition expense to be his alone).
The father was accordingly ordered to bear the costs of the son’s Film School; the mother was not legally obliged to contribute.
For the full text of the decision, see:
Dover v. Timbers 2012 ONSC 3230 http://canlii.ca/t/frjzk
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