Turner (Ansell) v. Ansell, 2011 ONCJ 839

Sault Ste. Marie Registry No. 95/2007 DATE: 2011·V·16 CITATION: Turner (Ansell) v. Ansell , 2011 ONCJ 839 ONTARIO COURT OF JUSTICE BETWEEN: ) ) LEE-ANN TURNER (formerly Lee-Ann Ansell), Applicant ) ) ) Lee-Ann Turner, on her own behalf — AND — ) ) DANIEL TERRANCE ANSELL, Respondent ) ) Michael Walz, for the responder father, Daniel Terrance Ansell ) ) ) ) HEARD: 13, 15 and 16 October 2009; 4 January 2010; 19 February 2010; 8 March 2010; and 17 June 2010 [ 1 ] JUSTICE J. KUKURIN:— This is a decision on motions to change brought by both parties in this case.

The changes sought relate to child support for the child Jocelyn. Jocelyn was born on 1 April 1989. She turned 18 on 1 April 2007. She had her 22nd birthday on 1 April 2011. claims of the mother [ 2 ] This case was started by a motion to change filed by the applicant mother Lee-Ann, on 8 May 2007. It is four years old. Her claims in this motion were for orders requiring the father Daniel: (

a) to pay the table amount of $877 per month under the Child Support Guidelines , O. Reg. 391/97, as amended, based on the father’s annual income of $100,000, retroactively to 1 January 2007; and (

b) to pay as extracurricular expenses child support, without the requirement of any accounting, the sum of $200 per month retroactive to 1 January 2007; and (

c) to pay, as replacement for a Ministry of Children’s Services (Children with Severe Disabilities Branch) pension benefit that terminated on Jocelyn’s 18th birthday, the amount of $400 per month, commencing on 1 April 2007; and (

d) to pay seventy (70%) percent of the expenses in connection with Jocelyn’s education related books, tuition and other fees, to start upon her enrolment in a post-secondary institution, and to continue until she ceases to be a student; and (

e) to continue paying the support in paragraphs (

a) to (

d) above until the happening of any of certain listed contingencies; and (

f) to provide copies of his income statements for 2003, 2004, 2005 and 2006; and (

g) in the event the father’s annual income exceeded $88,000 in any of the years 2003 to 2006, to pay any deficiency or “amount due” [1] for such years, as a lump sum, with interest, payable by 15 June 2007; and (

h) to provide by 28 February annually, to the mother, Lee-Ann, a statement of his annual income for the preceding year, together with a lump sum for the amount over and above the “amount due”. [ 3 ] By the date of the case conference (17 September 2007), the mother, Lee-Ann, had tempered her initial claims. She accepted that the father’s annual income for 2006 was $92,718, and the Child Support Guideline table amount of support that she was seeking was $819 per month commencing on 1 June 2007.

She was also seeking special expenses [2] under clause 7(1)( c ) (health related) of the guidelines or clause 7(1)( f ) (extraordinary expenses for extracurricular activities), or both. She withdrew all other claims made in her motion to change. [ 4 ] By the date of the first trial management conference (4 September 2008), the mother, Lee-Ann, had abandoned her claim for (variation of)

section 7 special expenses. She was prepared to continue to rely on a support provision in a prior order (of Justice Theo Wolder dated 13 July 2005) under which she was entitled to $100 per month for “extracurricular and extraordinary expenses” without any obligation to provide to the father, Daniel, any accounting. [ 5 ] In

summary, the only claim of the mother that remained unresolved by 4 September 2008 and that was proceeding to a hearing was for a prospective variation of the Child Support Guideline table amount of child support commencing from 1 June 2007, roughly the time of application.

claims of the father [ 6 ] There are four motions in this case brought by the respondent father, Daniel. Of some significance, with respect to these four motions, besides what was claimed, is when they were brought. [ 7 ] His motion at tab 4 was filed on 14 June 2007, relatively early in the case. It contained ten claims plus a claim for costs. The 10 claims fall into different categories. (

a) Response to Motion to Change of the Mother (paragraph 1): This claim was for an order dismissing the mother’s claim for variation of table amount of child support to $877 per month based on an alleged paternal income of $100,000. (

b) Change of Support Claims (paragraphs 2, 3, 4): Although the father does not identify the specific child-support-related document that he wants changed, he clearly has change claims in this motion. He, too, wishes to change the provision relating to Child Support Guideline table amount of child support, but as claimed by himself, namely $822 per month on an annual income of $93,000, not as claimed by the mother.

He also has a claim for an order requiring the mother to provide documentation ( i.e. , receipts) for extraordinary expenses and extracurricular activities, and that any future claims for these be subject to his consent or court approval. This is a clear change from the “$100 per month, no accounting” provision that was in place at the time. The third claim in this category was for an order imputing to the mother an annual income of $80,000 retroactive to 2002. Presumably, this was to establish a ratio for allocating the proper degree of responsibility for any special (section 7) expenses.

Why this claim extended back to 2002 is unknown as the mother’s claim for variation of the special expenses portion of child support did not, at any time, go back farther than 1 January 2007. Nor, so far as can be inferred, did the father’s. (

c) Claim for Production (paragraphs 4, 5, 7, 9): These paragraphs are concerned with production of documents related to the issue of child support in some way. These claims are for orders that the mother provide these documents to the father. [3] The documents in question related to special expenses (section 7) claims, to educational records relating to Jocelyn, to the mother’s notices of assessment from Canada Revenue Agency from 2002 to 2006, and to all medical records relating to Jocelyn, and to her disabilities. Production sought was not only to existing documents; it extended to future documents as well. (

d) Claim for Medical Examination of the Child (paragraph 10): Included in this motion is a claim for Jocelyn to attend with a physician for the purpose of an assessment of her disabilities. (

e) Claim to Vary Access Arrangements (paragraph 8): The father’s motion included a claim whereby future access between him and Jocelyn would be arranged between themselves, and not by him with the mother. What was sought in this claim was an obvious change from what was then in place. (

f) Undue Hardship Claim (paragraph 8): Although the words “undue hardship” are not used specifically, the father’s claim for a reduction of child support otherwise appropriate to be payable by him, because of the costs of his exercising access, is clearly a claim for undue hardship, and specifically under clause 10(2)( b ) [4] of the guidelines. (

g) Claim for Suspension of Child Support (paragraph 6): This claim of the father was contingent on default of the mother in providing ongoing proof of full-time enrolment of Jocelyn in an educational program, her attendance records, and transcripts, and the mother’s signed authorization for the father to receive such information directly from the child’s education institution. [ 8 ] The father’s second motion, at tab 14, was filed on 23 October 2008, 16 months after his motion at tab 4. This motion, at tab 14, had three claims, plus a claim for costs.

This motion was brought after the trial management conference of 4 September 2008 at which the mother withdrew all variation claims except for prospective variation of table amount of child support. [ 9 ] The main claim of the father was for a termination of his own obligation to pay special expenses (section 7) child support.

The father sought this by variation of provisions for such child support in a separation agreement and in a subsequent court order. [ 10 ] A second claim was for judicial leave to have viva voce evidence at the hearing of this case, or alternatively, for cross- examination on trial affidavits. [ 11 ] The final claim in this motion, excluding that for costs, was for an order requiring the mother to produce a sworn financial statement for the child Jocelyn. [ 12 ] The father’s third motion, at tab 17, contained four claims plus a claim for costs. It was filed on 14 September 2009, almost a year later: (

a) Claim to Terminate Ongoing Child Support (paragraph 1): This claim was actually for an order to amend the Tab 4 motion to include this additional claim. What this claim sought was variation of child support provisions in a separation agreement, and in a subsequent child support order, which would put an end to the father’s obligation to pay Child Support Guideline table support for Jocelyn. (

c) Adding Jocelyn as a Party (paragraph 2): The father wanted the child, who was at that point, age 20, to made a party by court order. The motivation was primarily to impress the child with party status and with responsibilities for financial disclosure and production. (

c) Claim for Child’s Sworn Financial Statement (paragraph 3): This claim was for an order directed at the child Jocelyn, rather than at the mother. (

d) Claim for Educational Documents (paragraph 4): This was for an order requiring production by either the mother or by the child of a copy of the child’s 2009-2010 school agenda, as well as proof of payment of tuition for that academic year. [ 13 ] The father’s final motion was filed on 15 April 2010 after the hearing of the case was completed, and before any decision was rendered. This motion essentially sought to reopen the case to permit more evidence to be introduced. This motion was contested and argued. Written reasons were provided that gave the father the choice of being allowed to adduce further evidence but only if he

produced Jocelyn for cross-examination, or having this motion claim dismissed. He chose the latter. The motion was then dismissed, without costs, on agreement of the parties. [ 14 ] In

summary, the father initially wanted to change the table amount of child support, but in an amount that he wanted, not in the amount that the mother wanted. He opposed the change sought by the mother initially for special expenses (section 7) child support. When she withdrew her claim for variation of special expenses, the father commenced his own claim for variation of these special expenses by terminating them.

Finally, the father changed his position on table amount of child support and sought a variation that would terminate such child support as well. the issues [ 15 ] How does a case that essentially involves claims to change child support manage to span four years of litigation? Why did this case end up in a trial with viva voce evidence that took six days?

Why indeed, when the main issue relevant to the final claims of both parties was the relatively simple determination of whether the child Jocelyn continued to qualify as a dependent for purposes of child support? [ 16 ] It is always much easier to ask these rhetorical questions with the benefit of hindsight. It is much more difficult for the parties, while they are in the litigation process, to zoom out to get a handle on the bigger picture.

In fact, there is an ever changing set of circumstances when litigation continues over years, and such changes often impact on the issues and how the parties react. [ 17 ] Notwithstanding the relative simplicity of the main issue, there were many complicating aspects to this case that prolonged the litigation. Among them: (

a) the child Jocelyn became an adult; (

c) the child Jocelyn lost some disability-related funding on attaining adulthood; (

c) the child Jocelyn applied for disability benefits as an adult, and her entitlement to these became the subject of administrative and judicial determinations made by tribunals making their decisions contemporaneously with the case in this court; (

d) the child Jocelyn, while pursuing both high school and post-secondary education, was not in a regular program and, her academic curriculum was, at any given time, fairly atypical; (

e) there were difficulties with production of information and documentation in the litigation context for a number of reasons; (

f) the parties in this case were very polarized, had very little communication inter se , and the mother was self-represented. [ 18 ] Perhaps one of the greatest complicating factors in this case arose from the history of the father’s child support obligations. The parties entered into a domestic contract (separation agreement) on 1 March 2002. At that time, there were two children, a son Christopher and a daughter Jocelyn, for whom child support was to be paid by the father. This agreement had 45 paragraphs. [ 19 ] Two years later, on 27 June 2003, a court order was made by Justice P.H.

Marjoh Agro in this court at Milton. That order had 12 paragraphs. It was made pursuant to minutes of settlement of the parties in a proceeding which I infer was a motion to change started by the mother, as she was the named applicant. It dealt with several matters: custody, access, table amount of child support. However, it did not deal with everything that the separation agreement had dealt with.

In fact, this order clearly stated “. . . the balance of the separation agreement dated March 1, 2002 shall remain in full force and effect except as varied herein ”. [ 20 ] Two years after that, on 13 July 2005, a further order was made by Justice Theo Wolder in the Milton court. I assume that this proceeding was another motion to change brought by the mother Lee-Ann. This order was also made pursuant to minutes of settlement of the parties.

A review of the provisions of this order confirms that it varied not only portions of the order of Justice Agro made in 2003 but also some, but not all, of the terms of the separation agreement made in March 2002. [5] [ 21 ] This is the chronological contextual background in which the mother started the present variation proceeding with her motion to change filed in May 2007.

Her plethora of claims, almost all of which she abandoned, sought court orders to change provisions in the orders of both Justice Agro and Justice Wolder, as well as provisions in the separation agreement that were still valid and subsisting when she started this latest case. [ 22 ] Not to be outdone, the father responded by presenting his own change claims, albeit over a two-to-three-year period. Like the mother, he sought changes to the orders of Justice Agro and Justice Wolder and to the March 2002 separation agreement.

He also brought claims that he formally withdrew, or simply did not pursue. [ 23 ] All of the foregoing complicated the litigation process. It also prevents the decision in this case from being concise and succinct. [ 24 ] There are some major factual determinations that are required in order to come to a decision on the major claims in this case. These include: • Did the child Jocelyn become disentitled to child support? • If so, (

a) When did she become disentitled? (

b) Why did she become disentitled? • If no, what is the proper quantum of (

a) Child Support Guideline table child support? (

b) Child Support Guideline special expense child support? (

c) Child support not under the Child Support Guidelines , if any?

entitlement to child support — the test [ 25 ] There is no statutorily established entitlement to child support in favour of a child. What has been statutorily enacted in Ontario’s Family Law Act , R.S.O. 1990, c. F-3, as amended, is the obligation of parents to provide support for their children. [6] However, this is not a forever obligation.

There are statutory qualifications that impose limits and restrictions to that obligation. [7] Entitlement of the child is the obverse of the obligation of the parent. [ 26 ] While the parental support obligation exists, it remains statutorily unspecified and unspecific in terms of the extent or quantum of this obligation. The closest this obligation comes to statutory quantification is in the words “. . . to the extent that the parent is capable of doing so ”. [ 27 ] It is clear that this obligation is a joint obligation of each of the child’s parents.

This poses few problems while the parents are living together. However, the separation of parents almost invariably results in a separation of their respective financial means. Where a child of separated parents resides (at least primarily) with one of them, issues sometimes arise as to how, and how much, the other parent should be contributing to the child’s needs. [ 28 ] Fortunately, a great deal of the guesswork about this has been obviated by the Child Support Guidelines .

These establish quanta of monthly child support that are commensurate with the annual income amount of the parent who is to pay this support. These guidelines contain a number of tables from which child support based on annual income is readily determinable. In addition to this “table” amount, the Guidelines provide for other child support categorized as “special expenses” child support. [8] This may be ordered in addition to table amount of child support. An order for special expenses child support is discretionary. There are criteria in the Guidelines that relate to the exercise of this discretion.

There are several subcategories of special expenses. It appears to me that these subcategories constitute an exhaustive list of the types of special expenses that qualify for a special expense child support order. [ 29 ] In the present case, the separation agreement required the father to contribute to the cost of the children’s extracurricular activities. The order of Justice Argo required him to pay for “extracurricular activities”. The order of Justice Wolder referred to “extraordinary or extracurricular expenses”.

It is a fair inference that the category of special expenses that he was paying was that described in clause 7(1) (

f) of the Child Support Guidelines , namely: “extraordinary expenses for extracurricular activities”. Termination of paternal support obligation [ 30 ] The main legal issue underlying the majority of the motion claims in this case was whether the obligation of the father to continue paying child support had ended. This legal issue was, in turn, reliant on the outcome of a factual issue, namely, whether Jocelyn was still enrolled in a full-time program of education. [ 31 ] Paragraph 12(6) of the separation agreement contained a list of contingencies, in the event of any one of which, child support would end.

The only one of the nine circumstances in issue in this case was that in clause (i). [9] [ 32 ] Paragraph 12 of the separation agreement was not affected by the order of Justice Agro in June 2003. Her order contained no term that terminated or varied anything in paragraph 12. [ 33 ] The order of Justice Wolder in July 2005, however, contained in paragraph 5 thereof, a list of contingencies for termination of the father’s obligation to pay child support. This list is not identical to, but is very similar to the list of contingencies in the separation agreement.

With respect to education after attaining the age of majority, the wording was identical in both his order and in the separation agreement. [ 34 ] Where a provision of a domestic contract has been superseded by a provision of a court order, it is the court order that is in effect. In this case, since the relevant contingency condition was identically worded, it makes no real difference. [ 35 ] However, there is a wrinkle that may have some significance.

The wording of this contingency in both the separation agreement and the order of Justice Wolder is qualitatively different than the statutory contingency contained in

section 31 of the Family Law Act . The statutory wording for continuation of the obligation to pay child support uses the words “ enrolled in a full-time program of education ”. It does not refer to “ full time attendance at an educational institution ”. [ 36 ] This is not a case of splitting hairs, especially in a case that was consumed primarily with this child’s schooling. There is clearly a big difference between “full-time attendance” and “full-time program of education”. [ 37 ] In this case, the preliminary question is what contingency applies.

My conclusion is that the statutory wording does. [ 38 ] Parents are free to insert whatever they wish in their domestic contracts. That does not necessarily mean that the law will uphold their agreements. For example, they could agree that support for a child will continue until the child develops freckles. This is not a condition that they should expect any court to honour or to enforce. [ 39 ] In this case, the limiting contingency condition was imported into the court order of Justice Wolder. Does this give it any more legitimacy and enforceability? The answer is yes — and no.

The inclusion of a domestic contract term as a term of a court order does enhance the status of that condition considerably. It endows it with a judicial pronouncement that gives it the force of law. This is substantially different than being simply one of the terms of a legal document that the parties have agreed will bind each of them. [ 40 ] In this case, the parents sought in their agreement to change a support limitation contingency from one that was enshrined in statute. Probably they did not even realize this at the time — or maybe they did.

The incorporation of the identical term in a court order was on consent of these same parents and was contained in minutes of settlement filed with the court in 2005. How should the

court treat that condition in the context of the present case? [ 41 ] My reasoning on this issue is the following. Notwithstanding that separation agreements or court orders dealing with child support may require one parent to pay money to another parent, the right to be supported is the right of the child.

A parent cannot bargain away that right, nor can a parent, by entering into an agreement, limit the child’s entitlement either temporally, or on a contingency that is different than that provided by statute. [ 42 ] The fact that a court order may contain the identical limitations as in a separation agreement does not change my view.

Courts ought not condone the limitations sought to be imposed by parents when they curtail the rights given to their children by statute. [ 43 ] Accordingly, in reviewing the multitude of evidence in this case relating to Jocelyn’s education, the benchmark that I utilize is the statutory one: enrolment in a full-time program of education. Was criterion for termination of child support met [ 44 ] In employing this criterion, I am less concerned with the extent of her actual attendance record in classes within her program of education.

Of more concern, in this respect, is whether the participation of this child in the program is meaningful and consistent with the program’s purposes and objectives. [10] [ 45 ] It would have been simpler had the parties, especially the mother, simply provided a table setting out the grade, dates of attendance, school, program (where applicable), and any explanatory comments. In absence of this, I infer the following chronology (which includes substantially more detail following the move of the child to the District of Algoma).

Grade Date School Program/Comment Location Primary Holy Rosary 7 Aldershot Junior High Burlington 8 Aldershot Junior High Burlington 9 Aldershot High School Burlington 9 E.C. Drury High School Milton 9-10 Bateman High School — specialized Burlington Move to Algoma District 10 Jan to June 2005 CASS High School Thessalon 11 Sept to Dec 2005 CASS High School Thessalon 11 Jan to June 2006 CASS High School Thessalon 12 Sept to Dec 2006 Bawating High School Sault Ste. Marie 12 Jan to Apr 2007 Bawating High School Sault Ste. Marie 12 Apr to June 2007 Genesis 8 week rotation program Sault Ste.

Marie 12 Sept to 24 Nov 2007 Genesis Same — Received 1.5 credits Sault Ste. Marie 12 27 Nov to 14 Dec 2007 Bawating Late school Sault Ste. Marie 12 Jan to4 Feb 2008 Alwood Residential treatment program Ottawa area 12 7 Feb to June 2008 Sault College College Connections Program Sault Ste. Marie 12-College Sept to Dec 2008 Sault College College Connections Program Sault Ste. Marie 12-College January 2009 Sault College Graduated grade 12 Sault Ste. Marie College January 2009 Sault College Arts & Science — pre-trades program Sault Ste.

Marie [ 46 ] Even a superficial review of the foregoing chart will show that Jocelyn did not have a normal and regular academic life. Two major relocations (Burlington to Thessalon in late 2004 or early 2005; Thessalon to Sault Ste. Marie in summer 2006) meant changes in schools and school boards. Jocelyn had been identified as an exceptional student. Her individual education plan (IEP) for 2006-2007 indicates a communication and learning disability.

Evidence from her family physician indicated that Jocelyn had been diagnosed with Asperger’s Syndrome (related to autistic behaviour), depression, borderline personality disorder and substance abuse disorder. In addition, she had been hospitalized for suicidal ideation following a drug overdose.

It is little wonder that her academic pathway was substantially skewed from the normal. [ 47 ] Despite these significant mental health and learning disorder challenges, Jocelyn demonstrated a commendable degree of resiliency and commitment in pursuing her academic career. [ 48 ] I am satisfied that Jocelyn was a full-time student enrolled in a full-time program of education in Burlington, then in Thessalon, up to completion of grade 11 at CASS in June 2006. There does not seem to be any great issue to this point in time. [ 49 ] It is in 2007 that some question arose as to her academic progress.

Her January 2007 semester at the Bawating High School was interrupted by a period of time in the Genesis Program. [ 50 ] The Genesis Program is an intensive eight-week rotation program addressing the needs of young persons with concurrent disorders (substance abuse issues and mental health issues). This program includes a

section 20 classroom with a school board certified teacher on staff. Jocelyn attended a spring rotation in April to June 2007 and a fall rotation in September to November 2007. She had near perfect attendance in the first rotation and did acquire 1.5 credits in the fall. I do not consider Jocelyn’s involvement with the Genesis Program to constitute a time when she was no longer enrolled in a full-time program of education.

[ 51 ] Following her discharge from Genesis, Jocelyn returned to Bawating where she was enrolled in late school. This was not a regular high school program but was certainly a full-time program of education. [ 52 ] The other major period of time during which some question arose as to Jocelyn’s academic career was in 2008. It is clear that Jocelyn had some substance abuse problems that necessitated a residential treatment program. She went to Alwood, near Ottawa, for about a month. She left Alwood on 4 February 2008.

By 7 February 2008, she was back enrolled at Sault College in a “Connections Program” that started on 11 February 2008. This Connections Program provided dual credits, part for her high school and part for college. It was a flexible and individualized program designed as an alternative education program to meet the needs of students at risk of not completing high school. Jocelyn had had more than one referral to this program. [ 53 ] The best evidence of Jocelyn’s involvement with Connections came, ironically, from Ms. Heather Whitfield, who was called as a witness by the father. Ms. Whitfield confirmed: (

a) that the program was a full-time educational program; (

c) that educational credits would be applied to high school graduation requirements as well as to college credits; (

c) that Jocelyn was registered in this program for four courses in the fall of 2008, one of which (Introduction to Psychology) she dropped, apparently with instructor approval; (

d) that three courses is considered full-time; (

e) that Jocelyn did make up sufficient high school credits in Connections to graduate grade 12 by January 2009. [ 54 ] Accordingly, I conclude that Jocelyn remained enrolled in full-time program of education continuously and through to at least January 2009 when she was registered in a pre-trades program at Sault College.

She did not become disentitled to the right of financial support from her father on the basis of termination of enrolment in a full-time program of education either before or after acquiring the age of majority. variation of quantum of child support — table amount [ 55 ] The father’s obligation to pay guideline table child support when this present case commenced was set out in the order of Justice Wolder dated July 13, 2005.

It required him to pay $700 per month for Jocelyn based on the Child Support Guideline tables and based on his annual income, at the time of that order, of $88,000. [ 56 ] The father’s annual income, based on the evidence in this case, is as set out below. 2005 $93,971 2006 $92,718 2007 $109,427 2008 $105,469 2009 not provided 2010 not provided [ 57 ] Case conferences are intended, among other things, to identify the issues that are in dispute and those that are not. [11] At a case conference in this case held on 17 September 2007, the mother tempered her claims for retroactive child support variation.

She was seeking a change only from 1 June 2007 (date of her motion to change). She was also conceding that the father’s annual income for 2006 was $92,718 as disclosed by him, and she was seeking child support variation to be commensurate with this amount ($819 per month). [ 58 ] While parties can agree on child support amounts less than those determined under the Child Support Guidelines , the court cannot so order.

Courts are stuck with making orders in accordance with these guidelines. [12] Accordingly, regardless of what the father and mother may have been agreeable to at the case conference, the court is bound to order only what the Child Support Guidelines tables dictate should be paid based on the annual income of the payor as determined on the evidence presented. [ 59 ] In this case, the father’s income for 2007 was $109,427 in fact (see exhibit 7).

The Child Support Guideline table amount he must pay for one child commensurate with this income is $950 per month. [ 60 ] The mother’s submissions at the hearing asked for variation back to 25 July 2005. I am not inclined to order retroactive support back to July 2005. The mother clearly abandoned many of her initial claims and equally clearly indicated that she wanted variation only back to 1 June 2007. This was documented in the case conference memo of 17 September 2007 and repeated in the trial management conference memo of 24 September 2008.

She cannot be permitted to vacillate in her claims like this, the fact that she may have been self-represented notwithstanding. Accordingly, the variation of table amount of child support will be effective only as of 1 June 2007. [ 61 ] For the year 2008, the father’s income was $105,469. The Child Support Guideline table amount of child support based on this annual is $920 per month.

His support should therefore be set at $920 per month commencing on 1 January 2008. [ 62 ] As there is no evidence of his annual income for 2009 or thereafter, the court cannot do anything but continue an amount based on his 2008 income. [ 63 ] The result is that the father will receive a bit of a child support holiday for 2005, 2006 and part of 2007 where his guideline table amount of support should rightly have been: Year Annual Income Proper Table Amount Ordered Amount 2005 $93,971 $829/month $700/month

2006 $92,718 $819/month $700/month Jan to May 2007 $109,427 $950/month $700/month special expenses child support [ 64 ] The mother initially sought, in this case, to change the provision in paragraph 3(

b) of the order of Justice Wolder. That provision required the father to pay $100 per month to the mother, in addition to the Child Support Guideline table amount, for the “extracurricular and extraordinary expenses” of the child Jocelyn. Pursuant to that order, that payment was to start on 1 September 2005. The order included a provision that the mother “shall not provide an accounting of these funds”. The mother was to be responsible for any such expenses for Jocelyn over and above this $100 per month. The mother’s claim initially was to increase the amount to $200 per month.

However, she subsequently abandoned this claim and was content with the continuation of the relevant provision of existing order. [ 65 ] The father was not. He initially sought a change in the prior order that would require the mother to provide documentation (in the form of receipts, quotes or otherwise) to him with respect to these extraordinary and/or extracurricular expenses. He also sought a provision that any future such expenses be subject to his prior consent, or court approval.

Somewhat related to this was his claim for a judicial imputation of an annual income of $80,000 to the mother, presumably so that the appropriate ratio of parental contribution to these expenses could be established pursuant to subsection 7(2) of the Child Support Guidelines . [13] Also associated with his initial claim with respect to these expenses was a claim for production of other financial documents, not only with respect to Jocelyn, but also of the mother, and this claim extended to future documents as well. [ 66 ] Ultimately, and without abandoning the foregoing claims relating to such expenses, he made a final claim and this was for termination of the provision of Justice Wolder’s order that required him to pay such expenses at all.

He did not set out in his claim the date at which he sought termination to be effective. [14] [ 67 ] Accordingly, at the hearing, the primary issue was whether the father’s obligation to pay this $100 per month should end and, if so, as of what date?

Moreover, if he was unsuccessful in his termination claim, there were issues with respect to what the subsection 7(2) ratio should apply to these expenses, what amount should be paid, and whether the existing terms (maternal waiver of accountability) should continue or not, and whether new terms (prior paternal consent or court approval/production of documented details of expenses) should be included. The mother was not seeking any change by this time. She was, however, contesting the changes sought by the father. [ 68 ] It may be trite to state what should clearly be obvious in claims to vary any order.

That is, there is a threshold of demonstrating a material change in circumstances. The onus for meeting this threshold is on the person who is seeking the change. In this case, it is the father on whom this onus falls.

Even where this threshold is met, the onus continues and it is to satisfy the court that the change that is sought is the appropriate change to be made based on the evidence. [ 69 ] The first and obvious question with respect to this $100 per month payment towards Jocelyn’s extraordinary or extracurricular expenses is “what is the material change that has taken place?” [ 70 ] The conclusion at which I arrive after a multi-day trial with viva voce evidence is that I do not know. I do not know what were these extracurricular or extraordinary expenses that Jocelyn had in July 2005. I do not know the amount of these.

I do not know what they were for. I do not know if the $100 per month this father was to pay reflected a proper ratio pursuant to subsection 7(2) of the guidelines. In short, there was no evidence with respect of the circumstances relating to these expenses when the order was made for payment. [ 71 ] It is a significant challenge to persuade a court that a change has taken place since 2005 when there is really no evidence as to the “special expenses” circumstances that existed in 2005.

It is even more of a challenge when there really was no evidence as to the “special expenses” circumstances at present, or in the intervening years. While the challenge was significant, it was not insurmountable. I note that the parents agreed to the inclusion of this provision in the order of Justice Wolder. Surely the father must have known what his $100 per month was supposed to be for at that time. [ 72 ] The claim by the father to terminate the provisions in paragraph 3(

b) of the order of Justice Wolder is dismissed based on the submissions and the evidence of the father as to why it should be terminated. It is not that there exists no reason for such termination. It is rather that he has failed to meet the evidentiary threshold to satisfy the court of that reason. [ 73 ] This dismissal applies also to the claim to terminate the waiver of maternal non-accountability. It applies equally to the claim for paternal or court approval of items of extraordinary expense or extracurricular activities.

In absence of any order changing the current order obligation, I decline to make any order changing the supplementary terms or conditions. effect of child’s entitlement to disability benefits [ 74 ] Prior to Jocelyn’s 18th birthday, her mother received assistance from Children with Severe Disabilities (ACSD) through the Ontario Ministry for Children and Youth. It is not known from the evidence how long this financial assistance had been received.

However, by Jocelyn’s 18th birthday, on 1 April 2007, the amount of the assistance was $400 per month. [ 75 ] It is not known from the evidence whether the father was aware of this ACSD assistance. He was certainly aware of it when the mother started this case, as one of her initial claims, since abandoned, was for the father paying an additional $400 per month as child support to replace this assistance that ended when Jocelyn turned 18. [ 76 ] It is of some passing interest that the father did not bring a motion to reduce the child support he was paying because of

this $400 per month ACSD assistance. Perhaps he did not know about it. However, once he did know about it, he did not seek retroactive variation on account of it. [ 77 ] It was not this assistance that has been an issue in this case. Rather, it has been Ontario Disability Support Program (ODSP) benefits for which Jocelyn applied on turning age 18 that have created an issue in this case. [ 78 ] To further complicate matters, this ODSP issue arose only after this variation case was commenced.

The ODSP issue has taken on the guise of a subplot in this case, mainly because of its chequered history, which is worth reviewing. [ 79 ] Only adults are eligible for ODSP. Jocelyn applied for ODSP benefits in anticipation of her 18th birthday. Her application was refused by the Director, Income Maintenance Branch (ODSP) because her father’s child support payments to her mother were considered to be income attributed to Jocelyn. This decision was made on 2 March 2007. [ 80 ] Jocelyn appealed this decision to the Social Benefits Tribunal.

It granted her appeal on 17 December 2007, overturned the Director’s refusal and ordered him to reimburse Jocelyn for any outstanding payments of income support. [ 81 ] The Director, in turn, appealed the Tribunal’s decision to the Divisional Court. This appeal was not heard until 14 October 2009, and the decision was reserved. It was released on 1 February 2010. The Divisional Court decision dismissed the Director’s appeal with one of the three justices dissenting.

The relevant part of this decision was that, in Jocelyn’s case at any rate, child support was not considered income for purposes of section 37(1) of Ontario Regulation 222/98 made under the Ontario Disability Support Program Act, 1997 , being

Schedule B to the S ocial Assistance Reform Act, 1997 , S.O. 1997, c. 25 . [ 82 ] The Director further appealed the decision of the Divisional Court to the Ontario Court of Appeal. As of the conclusion of this motion to vary before me, the decision of the Ontario Court of Appeal had not been released. [15] [ 83 ] The result of this parallel litigation between Jocelyn and the Director was a source of some complication in the present case, mainly because it was unsettled whether Jocelyn would or would not be entitled to ODSP benefits.

From the father’s point of view, however, his argument was that Jocelyn’s entitlement to ODSP was a material change in circumstances that was relevant to his claim to terminate his child support obligation totally. If this was his claim, it would have logically have included a termination date identical to the date from which Jocelyn’s ODSP benefits started.

This would have been 1 April 2007, her 18th birthday. [ 84 ] The mother opposed the father’s claim to terminate based on Jocelyn’s entitlement to ODSP benefits. [ 85 ] Somewhat ironically, considering the basis for the appellate decisions relating to Jocelyn’s ODSP entitlement, there is case law that addresses the issue of entitlement to child support when an adult child receives social or similar benefits. [ 86 ] Where a child is a minor and otherwise entitled to financial support pursuant to

section 31 of the Family Law Act , the means of the child are not all that relevant to the determination of the child support amount that a parent must pay. The quantum is determined by the payor parent’s annual income and the Child Support Guideline tables. These tables are publicly stated to establish support amounts based on economic studies of average spending on children and families at different income levels in Canada. [16] [ 87 ] As a child grows older, the table amount of support may become less appropriate for myriad reasons.

The Child Support Guidelines acknowledged this in subsection 3(2) , [17] and have drawn a line at the age of majority, leaving the court to decide beyond that line if the prior application of the guidelines should continue, or whether that is inappropriate. If the latter, the Child Support Guidelines provides some guidance in terms of what it should consider in setting an appropriate amount of child support. Included in these considerations are the condition, means, needs and other circumstances of the (over 18) child.

Another, not to be lightly cast aside, is the financial ability of each parent to support the child. [ 88 ] In Cossette v Cossette , [18] the court dismissed an application for interim child support made by a mother against the father of their 20-year-old disabled daughter who was receiving ODSP benefits of $816 per month. The court concluded that the expenses relating to the child were $810 per month based on the evidence. The father’s table amount of child support at his annual income level would have been $673 per month.

The rationale for the dismissal was the ODSP benefit amount was sufficient to meet the daughter’s financial needs. The court very clearly took the ODSP benefits into consideration as means of the child. [ 89 ] In Liscio v. Avram , [19] the court similarly took into account the ODSP pension received by the 22-year-old daughter in dismissing the mother’s claim for “basic” child support.

However, the court awarded to the mother, despite the ODSP payments to the daughter, amounts for the daughter’s medical expenses and therapeutic program costs, including an ongoing (prospective) amount for her therapeutic program expenses. [20] [ 90 ] In the present case, the major problem with the application of clause 3(2) (

b) of the Child Support Guidelines to the father’s claim for termination is the lack of evidence with respect to: (

a) the needs of the child; (

c) condition of the child; (

c) other circumstances of the child; (

d) financial ability of the mother to contribute to the support of the child. [ 91 ] There seems to be no disagreement that Jocelyn’s ODSP benefits are $762 per month. Her entitlement to this “pension” was made notwithstanding that she was residing with her mother. [21] [ 92 ] What is unknown are the financial needs of Jocelyn. For the father to say that she gets $762 per month that she never got before and that, therefore she does not need the $800 that he pays every month, is completely inadequate. This is opinion or conclusion.

It does not allow the court to take into consideration, on any reasonable basis, the child’s actual needs. It is the father who, as the person seeking a change ( i.e. , termination), must present the evidence as to those needs and that they are fully met without his financial

support. [ 93 ] The condition and other circumstances of Jocelyn are also relatively unknown. There is some dispute between the mother and father as to her condition. In that regard, I prefer the mother’s evidence which is supported by information from various professionals. These satisfy me that Jocelyn’s condition includes: • learning disabilities; • communication problems; • difficulties in socializing; • Aspergers Syndrome, on the Autistic Spectrum; • depression (diagnosed); • borderline personality disorder (diagnosed); • substance abuse disorder (diagnosed).

She is very clearly a special needs adult child. [ 94 ] There is sufficient evidence that Jocelyn is involved with horses as a therapeutic activity. The acquisition, care and management of these horses on her mother’s property entails numerous expenses. These are mentioned but not quantified for any particular period. This is an appropriate consideration with respect to Jocelyn’s needs having regard to her condition. Unfortunately, the quantification of any expenses related to those animals is not available through the evidence.

The father does not argue that this is an inappropriate need or that the related expenses are inappropriate. [ 95 ] There are also Jocelyn’s circumstances. She has been a full-time student, most recently at the college level. This entails expenses for tuition, books, school fees, et cetera that are normal for most college students. For Jocelyn, who is a considerable distance from normal in most respects, there are additional expenses that fall within the consideration of her educational needs. [ 96 ] The end result of applying clause 3(2)(

b) of the guidelines is that I cannot, having regard to the mandatory considerations under this subsection, conclude that the approach under clause 3(2)(

a) is inappropriate. I do not have the evidence to come up with an amount of child support that I would consider appropriate in applying clause 3(2)( b ). [ 97 ] I cannot determine what amount the mother spends, or should spend, of her own resources that would be attributable to meeting Jocelyn’s needs.

It is evident that she does spend some amounts and that these are significant. [ 98 ] I also would have difficulty arriving at a conclusion that the father should, at a current annual income level of $100,000, pay nothing by way of child support for his daughter Jocelyn who is still (as of the conclusion of the evidence in this case) pursuing a legitimate course of studies. [ 99 ] I do sympathize to some extent with the father who has been frustrated by the lack of information forthcoming from the mother with respect to Jocelyn.

However, I also sympathize with the mother who has a difficult child who, sometimes capriciously, has cut off the mother’s ability to obtain information about her. [22] [ 100 ] In

summary, the father has not provided the evidence to enable the court to arrive at an appropriate amount of paternal child support by applying clause 3(2)(

b) of the guidelines. He has certainly not satisfied me that the ODSP benefits that Jocelyn receives are in an amount sufficient to meet her needs, thereby justifying extinguishing his support obligation entirely. [ 101 ] Accordingly, clause 3(2)(

a) will apply as the appropriate manner of determining his child support. He will pay table amount of support, as I have indicated, based on his annual incomes from the date of 1 June 2007. His claim to vary the special expenses provision of the existing order is dismissed. [ 102 ] The father has a claim for variation of access. He wishes to arrange access directly with Jocelyn. There is nothing that prevents him from doing so that I can see. The father’s access to Jocelyn is subject to her wishes by order of Justice Wolder. That presumably remains in force. The father has not sought to vary that provision.

Other terms relating to access contained in the separation agreement, and in the order of Justice Agro are still technically in effect as they have not been superseded nor varied. However, they are, to a large extent, meaningless having regard to the passage of time and the present age and circumstances of Jocelyn. [ 103 ] There are other claims of the father that he did not pursue with any fervour. For example, for Jocelyn to be added as a party, for her to undergo a medical examination and for her to produce certain documentation.

I appreciate the difficulty of both parents in trying to shield their special needs, but nevertheless difficult, child from involvement in this litigation. [ 104 ] These reasons are to explain the decision on the manifold claims made in this case. However, they do not resolve the problems of these parties. The child support orders in this case have been filed with the Director, Family Responsibility Office for enforcement. So far as can be determined, the father continues to be support deducted.

However, following a motion by the father to reopen this case for additional evidence, I ordered that the Director FRO hold any support money in his hands or subsequently received until further order of the court. The reason for doing so was because of an affidavit sworn by Jocelyn and filed by the father in support of this motion. The essential information from that affidavit was that Jocelyn was no longer, and had not been for several months, residing with her mother, but was living with her boyfriend. Moreover, Jocelyn’s plans were to relocate with her boyfriend to western Canada.

The mother had responded to the father’s motion, denied that Jocelyn had not been living with her for several months and suggested that Jocelyn had been known to be untruthful. [ 105 ] Because of the contradictory evidence, I was prepared to allow the case to be re-opened only if Jocelyn was going to be produced to give viva voce evidence in cross-examination. The father was not prepared to force her to attend, and the case was not re- opened. This leaves an untenable situation. The father is still paying support to FRO. The mother is not getting it from FRO.

I am not sure at this point whether Jocelyn is still living with her mother, whether she has withdrawn from parental control and, more importantly, whether she is enrolled in a full-time program of education. It may well be that she is now disqualified from being entitled to parental

support. If so, I am not able to determine as of which date. That would be extremely important in terms of whether the support order should now be terminated, and what money should be refunded by FRO to the father, and what money should be released to the mother. [ 106 ] While I cannot resolve this problem, I can recommend that the parties try to at least agree that, if Jocelyn no longer qualifies for continued support, the support order be terminate on consent, with the issue of determining the proper date for such termination left for further negotiation or for a judicial decision on additional evidence. Released: 16 May 2011 Justice John Kukurin

(2) Circumstances that may cause undue hardship.— Circumstances that may cause a parent, spouse or child to suffer undue hardship include, . . . (

b) the parent or spouse has unusually high expenses in relation to exercising access to a child; . . . 31. Obligation of parent to support child.—

(1) Every parent has an obligation to provide support, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) Idem.— The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. 7. Special or extraordinary expenses.—

(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under

section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. (

i) the child becomes 18 years of age and ceases to be in full-time attendance at an educational institution.

(4) Purposes of case conference.— The purposes of a case conference include, . . . (

b) identifying the issues that are in dispute and those that are not in dispute; . . .

(11) Application of child support guidelines.— A court making an order for the support of a child shall do so in accordance with the child support guidelines.

(2) Sharing of expense.— The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. 4. The amounts in the tables are based on economic studies of average spending on children in families at different income levels in Canada. They are calculated on the basis that child support payments are no longer taxable in the hands of the receiving parent and no longer deductible by the paying parent. They are calculated using a mathematical formula and generated by a computer program.

(2) Child the age of majority or over.— Unless otherwise provided in these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is, (

a) the amount determined by applying these guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, 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 or spouse to contribute to the support of the child.