M.P.A.N. v. J.N., 2018 ONCJ 769

ONTARIO COURT OF JUSTICE CITATION: M.P.A.N. v. J.N. , 2018 ONCJ 769 DATE: 2018 11 01 COURT FILE No.: Toronto D1499/93 B1 BETWEEN: M.P.A.N. Applicant (Responding Party) — AND — J.N. Respondent (Moving Party) Before Justice Alex Finlayson Heard on May 28, September 20 and October 1, 2018 Reasons for Judgment released on November 1, 2018 Maureen Bennett Henry................................................ counsel for the applicant Anthony Colangelo................................................... counsel for the respondent ALEX FINLAYSON J.:

PART I: NATURE OF THIS CASE [ 1 ] This is my judgment following the trial of the Respondent father’s (the moving party’

s) Motion to Change and the Applicant mother’s Response to the Motion to Change respecting child support for their 29 year old daughter, J.K.N. This case calls upon the Court to decide: (

a) Whether child support ought to have ended for J.K.N., up to as many as 10 years ago; (

b) If so, whether the father overpaid child support; (

c) If so, whether the father should recover any of those overpayments from the mother; (

d) If so, whether the Court should set-off two old costs orders, with accrued interest charged for more than a decade, that the mother claims the father did not pay to her; (

e) To complicate matters further, the issued and entered version of one of the costs orders was improperly prepared, and omits the standard post-judgment interest rate clause; and (

f) Finally, if as the mother says, the father underpaid support at times in the past, including by not contributing to J.K.N.’s post- secondary expenses, whether this should be taken into account in the analysis.

PART II: BACKGROUND AND THE PARTIES’ POSITIONS [ 2 ] J.K.N. was born on […], 1989. She lives with her mother. That has been the case for all of the years during which child support is in dispute in this case. She essentially has no relationship with her father. [ 3 ] The governing Order that the father seeks to have terminated retroactively is that of Justice Debra Paulseth dated March 31, 2006.

On that date, Paulseth J. dismissed the father’s motion to set aside a prior order made on an uncontested basis, fixed additional child support arrears, and ordered the father to pay child support of $583 per month commencing January 1, 2006 for J.K.N. She also ordered the father to provide his “current income tax assessment each year by May 15, commencing in 2006, along with other relevant disclosure” and to pay costs of $8,000.00, plus “applicable GST”.

At the time of Paulseth J.’s Order, J.K.N. was 16 years old. [ 4 ] The father continued to make payments pursuant to this Order until April of 2017, when he succeeded in having the FRO discontinue enforcement. Rather than returning to Court earlier, the father regularly asked the FRO to ask the mother to confirm whether J.K.N. was still entitled to support. As I will explain, the mother regularly disagreed.

The FRO eventually agreed to discontinue support enforcement in 2017, when J.K.N. was 28 years old, only after the father involved an FRO manager and his Member of Parliament. [ 5 ] The father commenced this proceeding on August 4, 2017, 11 years after Paulseth J. made the March 31, 2006 Order. When he launched his Motion to Change, he still did not have all of the necessary information to formulate a final position about when J.K.N.’s entitlement to child support ought to have ended.

He subsequently obtained disclosure at the interim stages of this case. [ 6 ] As a result of obtaining disclosure, the father amended his position for trial and asks the Court to terminate child support retroactively as of June 26, 2008, the date that J.K.N. graduated high school. The disclosure the father obtained reveals that J.K.N. enrolled in 6 different college programs in 3 different schools over the years since high school.

In fact, in the year that the father launched this proceeding to terminate support, J.K.N., at age 28, enrolled in her 6 th college program, after having been out of school for at least 4 years. Her transcripts reveal that she has earned only 1 credit, ever, in these various programs. [ 7 ] The mother’s Response to Motion to Change includes a claim for continued child support, which she abandoned a few months prior to trial.

Specifically, she withdrew that claim on or around January 22, 2018, although at trial she testified that if the Court thought child support should continue to be paid, then I should order it. [ 8 ] Notwithstanding that J.K.N. enrolled in various college programs after high school, the father nevertheless argues that J.K.N.’s child support should have ended as of her high school graduation. He argues that J.K.N. did not apply herself at college when she was enrolled, and at times, she was enrolled part-time or not at all.

He argues that she switched programs multiple times, she earned very low grades or no grades at all, she failed to attend classes, she withdrew from courses, and she never obtained a degree or diploma. [ 9 ] The father says that his proposed termination date results in the mother owing him $66,233.66. [ 10 ] Her claim for continued child support that she abandoned aside, the mother’s revised position is that the Court should terminate child support retroactively to January 1, 2014 only. But as I will explain, this date is arbitrary in part, in that it is not entirely connected to any terminating event per se.

Rather, the mother says that this Court should not go back any further, because to do so would exceed 3 years and she says this would be inconsistent with the Supreme Court’s decision in D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”) . Incidentally, I note that the proposed January 1, 2014 termination date is actually 3 years and 8 months prior to the commencement of this proceeding. [ 11 ] Although she now agrees that child support should terminate retroactively, the mother disputes that she owes the father any money back, or at least as much money as the father says.

Although she did not plead this relief, the mother has asked that the Court set-off the two aforementioned costs orders that she says are owing to her, plus interest, against any money that might be found to be owing to the father. Specifically, she says the father owes her $23,273.76 as of May 26, 2018 on account of those unpaid costs and interest. (Exclusive of interest, the costs orders total $14,932.72). But as I will explain, the mother’s calculations contain errors. [ 12 ] In response to this, the father says he did in fact pay the prior costs orders.

Moreover, he tendered an Order of the Ontario Court (General Division) Small Claims Court, dated August 1, 1996 granting him judgment against the mother of $2,284.65, plus interests and costs that he says the mother never paid. He is not asking for any relief in connection with this Small Claims Court Order.

But he has filed it to make the point that he too was unpaid, and he isn’t asking to enforce that Order now, so why should she. [ 13 ] Further or alternatively, the mother also argues that the father failed to provide annual disclosure as he was required to do in the years after Paulseth J.’s Order, that he failed to adjust his child support upwards when his income increased, and that he failed to contribute towards the cost of J.K.N.’s college courses.

She argues this is blameworthy behaviour that should be taken into account. [ 14 ] In response to this alternative submission, the father says the mother never asked for increased support or his contribution to J.K.N.’s post-secondary expenses.

And he says that she chose to ‘lie low’ and not ‘rock the boat’, while continuing to collect support to which she was not entitled. [ 15 ] As will be seen in these reasons, what should have been a more straightforward case about child support ending as a child aged into adulthood became much more complex when the parents failed to communicate with each other, when the mother failed to be honest and cooperative with the FRO, because whoever prepared one of the costs orders to be issued and entered didn’t pay attention to detail and follow the statute, and because of various delays in this case on both sides.

As such, the Court is now presented with arguments and counter arguments, respecting how much money, if any, is owing, and on what basis it should be paid or repaid.

PART III:

SUMMARY OF THIS RULING [ 16 ] For the reasons that follow, I find:

(1) Child support for J.K.N. is terminated retroactively as of April 30, 2010;

(2) As a result, the father overpaid the mother $40,947.39 and I find he is entitled to be repaid this sum from the mother ; but

(3) I also find that the father did not pay the two costs orders of Justice Bean dated February 17, 2004 and Justice Paulseth dated March 31, 2006. [ 17 ] These three findings themselves do not dictate the end result in this case. Ultimately, the Court must make an Order that is fair, guided by the applicable legal principles. Prior to and during closing submissions, the Court invited submissions from counsel on specific points to assist me to craft a just result.

In some instances, the lawyers did not provide case law or authorities to answer the submissions that the Court requested. [ 18 ] The Court still has a number of questions of counsel about the final order that should be imposed in light of the ruling on the three points that I am making. I continue to require additional submissions on certain points. It is the Court’s expectation that counsel will provide case law and authorities to answer the Court’s questions, which I will map out. If no such cases or authorities exist, then counsel should research relevant authorities and make arguments by analogy.

Counsel should not re-attend to tell the Court that it has jurisdiction to make certain orders without coming with authorities. Below, I will set out what is required and a process for the Court to receive the additional submissions.

PART IV: IMPORTANT FACTS ABOUT THE PARTIES AND THE CHILD A. The Father [ 19 ] The father is almost 57 years old. He is an officer with the Canada Border Services Agency. He has been with the CBSA since 2001. He teaches new recruits and also does enforcement work out of the Toronto Pearson Airport. [ 20 ] The father’s base salary is $70,000 per year. Sometimes, as part of the teaching aspect of his job, he must travel to other parts of Canada. He earns additional money when traveling for this purpose, as he is paid at a higher pay grade for that work. [ 21 ] The father does not have other income.

In about 1998, he used to work as a teaching assistant at York University. Based on this prior work experience, he said he was able to read and interpret certain codes on J.K.N. transcripts once he received them. B. The Mother [ 22 ] The mother is 52 years old. Until 2015, she worked as a nursing attendant and an instrument technician at Humber Regional Hospital.

I do not know for how long she held this job, but I do know that she is a union member, she is a member of a pension plan, and she has various benefits, including private disability insurance through her work. [ 23 ] She stopped working in 2015 for reasons that were not properly explained to the Court. In cross-examination, the mother testified that she is not retired. She said she is “sick” and “can’t work”. She did not explain her illness.

But she also said that she is still currently employed and that her employer must hold her job for 2 ½ years. [ 24 ] The mother’s ability to repay an overpayment is a relevant factor to consider in this case. But by the end of the trial, I was left without a complete picture about how the mother is supporting either herself, or J.K.N., whom she said remains financially dependent upon her. I did not have a clear picture of the mother’s income or financial circumstances. There was certain information that she specifically did not wish to share with the Court.

I found the mother to be evasive when testifying about her income and financial circumstances. C. The Adult Child, J.K.N. [ 25 ] As set out above, J.K.N. is now 29 years old. [ 26 ] Commencing in the fall of September 2017, J.K.N. is once again enrolled at Humber College. This is the 6 th college program into which she has enrolled since high school. [ 27 ] Until this current academic year, J.K.N. did not apply for or receive any scholarships or bursaries.

For the 2017-2018 year, J.K.N. received a student grant of $4,679.00 and a student loan of $1,956.00. [ 28 ] Both the mother and J.K.N. testified that J.K.N. is financially dependent on the mother. J.K.N. added that she is also emotionally dependent on her mother. [ 29 ] The mother testified that she pays for J.K.N.’s food, clothing and shelter. She has also paid for J.K.N.’s college tuition and J.K.N. transferred her tuition tax credits to her mother. [ 30 ] J.K.N. testified that she has been unable to move out of her mother’s home because she is not financially stable.

She said that her mother helps her if she needs bus tickets, gas money, clothing, food and shelter. Regarding the emotional support she receives, J.K.N. relied on her mother when her grandmother died in 2008. [ 31 ] J.K.N. is not currently working. She has not worked on a full-time basis since she graduated from high school. While she was enrolled in college in some years, in the years she was not, she did not work full-time either. She has worked part-time at times, holding jobs with the Canadian National Exhibition, working at the Pan Am Games held in Toronto in 2015, and at Harvey’s Restaurant.

I did not hear evidence about why she could not have worked on a full-time basis in the years since high school.

D. Prior Legal Proceedings Concerning Child Support [ 32 ] The parties have referred me to a number of Orders that they say are relevant to the issues now before the Court. I will summarize those Orders:

(1) On February 17, 2014, Justice Bean ordered the father to pay child support to the mother in the amount of $543 per month commencing January 1, 2004 based on an income of $65,000 per year. Justice Bean fixed child support arrears owing at $39,830 as of February 1, 2014 and he ordered the father to pay costs of $6,372.74. The post-judgment interest rate specified in that Order is 4%. Bean J.’s Order was made as a result of an uncontested trial;

(2) The father apparently moved to set aside Bean J.’s February 17, 2004 Order. I do not know on what basis he did that, but as I said earlier, on March 31, 2006, Paulseth J. dismissed that motion. Again, Paulseth J. ordered the father to pay child support of $583 per month commencing January 1, 2006 based on his 2005 income of $71,189.00, she ordered him to provide certain annual disclosure going forward, and she ordered him to pay costs of $8,000 plus GST to the mother. Paulseth J. also made certain retroactive adjustments to child support between the date of Bean J.’s Order and her Order.

Specifically, she increased the father’s child support to $610 per month for the 12 months of 2005, based on his 2004 income of $75,716.00. The FRO Statement of Arrears tendered at this trial reflects that the FRO did in fact update its records to account for these adjustments. I was not told who prepared Paulseth J.’s Order to be issued and entered. I do note though that at the time the mother was represented, and the father was not. In any case, whoever prepared it neglected to include the standard interest clause in it that specifies the post- judgment interest rate to be charged on any amounts owing.

As a result, the Order was issued and entered without that standard interest clause; and

(3) As set out above, the father tendered an Order of the Ontario Court (General Division) Small Claims Court, dated August 1, 1996 awarding him “judgment for $2,284.65 plus pre and post-judgment interest in accordance with the Courts of Justice Act, plus the costs of issuing & serving claim.” As I said, the father is not seeking to enforce this Order. Rather, he argues that the mother’s “decades-old claims for costs are not properly before this Honourable Court”. He has filed the Small Claims Court judgment as an example of a Court Order that he says the mother never paid either.

Incidentally, the interest rates and the costs that the Small Claims Court awarded, referred to in the Order, are not specified or quantified either. [ 33 ] Prior to this trial, both Justice Ellen Murray and I had made interim disclosure and Trial Management Orders dated December 6 and 15, 2017, and April 9, 2018. I need not summarize these orders in full, except I will mention that on December 15, 2017, Murray J. ordered the father to provide proof of payment of past costs orders.

I will come back to the significance of this term of Murray J.’s Order later when dealing with questions of proof regarding the mother’s claim to set off unpaid costs orders from the money I have found her to be owing to the father.

PART V: APPLICABLE STATUTORY PROVISIONS [ 34 ] This is a variation proceeding governed by the Family Law Act, R.S.O. 1990, c. F.3 , as amended (the “ FLA” ) and the Child Support Guidelines, O. Reg 391/97 , as amended (the “Guidelines”). This is also the father’s request for repayment of an overpayment, which is governed by the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 , as amended (the “FRSAEA”) . Finally, the mother’s request to set off any repayment ordered against the costs owing to her is governed by the Court of Justice Act, R.S.O. 1990, c.

C. 43 , as amended. [ 35 ] Various other legal principles apply to the multiple arguments that I heard . A. The Family Law Act [ 36 ] I begin with the entitlement sections of the FLA . They are sections 29 and 31. The relevant portions of those sections read:

Definitions 29 In this Part, “dependant” means a person to whom another has an obligation to provide support under this Part; [ 37 ] The current version of

section 31 of the FLA that sets out a parent’s obligation to support his or her child has only been in force since December 14, 2017. The predecessor to

section 31 was amended following a constitutional challenge to it in Coates v. Watson, 2017 ONCJ 454 , in which Justice A.W.J. Sullivan ruled that the former version of

section 31 violated the applicant’s and the child’s

section 15 Charter rights. The current version of

section 31 reads: Obligation of parent to support child 31

(1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who, (

a) is a minor;

(

b) is enrolled in a full-time program of education; or (

c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. Idem 31

(2) 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. [ 38 ] The previous version of

section 31 read: Obligation of parent to support child 31

(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. Idem 31

(2) 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. [ 39 ] Other applicable provisions of the FLA are: Order for Support 33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support. Purposes of order for support of child 33

(7) An order for the support of a child should, (

a) recognize that each parent has an obligation to provide support for the child; (

b) apportion the obligation according to the child support guidelines. Powers of court 34

(1) In an application under

section 33 , the court may make an interim or final order, (

a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; ………… (

f) requiring that support be paid in respect of any period before the date of the order; Application for variation 37

(1) An application to the court for variation of an order made or confirmed under this Part may be made by, (

a) a dependant or respondent named in the order; (

b) a parent of a dependant referred to in clause (a); ............ Powers of court: child support 37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the court could make on an application under

section 33 . Application of child support guidelines 37(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. B. The Child Support Guidelines [ 40 ] The Child Support Guidelines, O.Reg. 391/97 , as amended also govern this case. The relevant sections are: Child the age of majority or over 3(2) Unless otherwise provided under 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. Special or extraordinary expenses 7(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: ............ (

e) expenses for post-secondary education; Sharing of expense 7(2) 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.

Subsidies, tax deductions, etc. 7(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Circumstances for variation 14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order: 1.

In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof. C. The Family Responsibility and Support Arrears Enforcement Act [ 41 ] The father’s request for an order that the mother repay him any overpayment of child support is governed by the FRSAEA . The relevant sections read:

Interpretation

Definitions 1

(1) In this Act, “support deduction order” means a support deduction order made or deemed to have been made under this Act or its predecessor; “support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(

a) the payment of an amount periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event, (

b) a lump sum to be paid or held in trust, (

c) payment of support or maintenance in respect of a period before the date of the order, (

d) payment to an agency of an amount in reimbursement for a benefit or assistance provided to a party under a statute, including a benefit or assistance provided before the date of the order, (

e) payment of expenses in respect of a child’s prenatal care and birth, (e.1) payment of expenses in respect of DNA testing to establish parentage, (

f) the irrevocable designation, by a spouse who has a policy of life insurance or an interest in a benefit plan, of the other spouse or a child as the beneficiary, or (

g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance, and includes such a provision in, (

h) a domestic contract that is enforceable under

section 35 of the Family Law Act , or (

i) a notice of calculation that is enforceable under

section 39 of the Family Law Act . Duty of Director 5

(1) It is the duty of the Director to enforce support orders where the support order and the related support deduction order, if any, are filed in the Director’s office and to pay the amounts collected to the person to whom they are owed. Director to cease enforcement Termination of support obligation 8

(1) Subject to

section 8.3 , the Director shall cease enforcement of a support obligation provided for in a support order or support deduction order filed in the Director’s office if the support obligation has terminated. How termination is determined 8(2) For the purpose of subsection (1), a support obligation is terminated if, (

a) the parties to the support order or support deduction order agree, in the manner prescribed by the regulations, that the support obligation has terminated; (

b) the support order or support deduction order states that the support obligation terminates on a set calendar date, and that date arrives; (

c) a court orders that the obligation has terminated; or (

d) in the case of an obligation for the support of a child, the Director receives notice, in accordance with the regulations, of the child’s death. Notice to Director 8(4) For the purposes of clause (2) (a), if a support order or related support deduction order is filed in the Director’s office, each party to the support order shall give the Director notice of a termination of a support obligation under the order, in the manner and at the time prescribed by the regulations. Disputes 8.4

(1) If the parties to a support order do not agree that a support obligation has terminated or if the agency referred to in

section 8.3 does not provide its consent under that section, the court that made the support order shall, on the motion of a party to the support order or of the agency, (

a) decide whether the support obligation has terminated; and (

b) make an order to that effect. Same 8.4(2) If the support order was not made by a court, the order described in subsection (1) shall be made by the Ontario Court of Justice or the Family Court. Same

8.4(3) If an issue as to whether the support obligation has terminated arises within an application between the parties, it is not necessary to make a separate motion under subsection (1). Order to repay 8.4(4) A court that finds that a support obligation has terminated may order repayment in whole or in part from a person who received support after the obligation was terminated if the court is of the opinion that the person ought to have notified the Director that the support obligation had terminated.

Same 8.4(5) In determining whether to make an order under subsection (4), the court shall consider the circumstances of each of the parties to the support order. Role of Director 8.4(6) An order under subsection (4) is not a support order and shall not be enforced by the Director. ………… Same 8.4(8) Despite the termination of a support obligation, the Director shall continue to enforce the support obligation in respect of any arrears that have accrued. Director not a party 8.4(9) The Director is not a party to, (

a) a proceeding to determine a person’s entitlement to support under a support order; or (

b) a motion to decide whether a support obligation has terminated. [ 42 ] Certain sections of O. Reg. 167/97 , as amended, made under the FRSAEA , are relevant in this case. Those sections read: 3. For the purposes of clause 8 (2) (

a) of the Act (agreement re termination), the matters agreed upon by the recipient and the payor shall be set out in writing, (

a) in a single document signed by both of them; or (

b) in separate documents, one signed by the recipient and the other signed by the payor. 4(1) For the purposes of subsection 8 (4) of the Act (notice of termination), notice that a support obligation under a support order or support deduction order has terminated shall be in writing and shall contain the following information: 1. The case number assigned to the support order by the Director’s office. 2. The payor’s full name. 3. The recipient’s full name. 4. The address and telephone numbers of the party submitting the notice. 5.

If applicable, the fax number, e-mail address and work address of the party submitting the notice. 6. The address and telephone numbers of the other party, if known. 7. Information sufficient to identify the specific support obligation that has terminated, including the date of the support order and the name of the dependant to which the support obligation relates. 8. The reason for the termination. 9.

The date of the termination. 4(2) The notice shall be given as soon as possible after the support obligation has terminated and may be given before the support obligation has terminated. 5(1) Subject to subsection (2), the Director shall notify the recipient if the Director receives notice under subsection 8 (4) of the Act from a payor that a support obligation has terminated, and shall request that the recipient confirm or deny that the support obligation has terminated. 5(2) Subsection (1) does not apply if the support obligation terminates on a set calendar date specified in the support order. 5(3) A recipient shall respond in writing to a request from the Director to confirm or deny that a support obligation has terminated. 5(4) If the recipient confirms part, but not all, of the payor’s notice of termination, the parties are considered to have agreed that the

support obligation has terminated to the extent of the confirmation. 5(5) If the recipient denies all or part of the payor’s notice of termination, the Director shall notify the payor of the denial. 5(6) The Director is not required to notify the payor on receiving notice under subsection 8 (4) of the Act from a recipient that asupport obligation has terminated. D. The Courts of Justice Act [43] And finally, the mother’s request to set-off the costs that are owing to her against any child support overpayment is governed bysection 111 of the Courts of Justice Act. It reads: Set off 111

(1) In an action for payment of a debt, the defendant may, by way of defence, claim the right to set off against the plaintiff’sclaim a debt owed by the plaintiff to the defendant. Same 111(2) Mutual debts may be set off against each other even if they are of a different nature. Judgment for defendant 111(3) Where, on a defence of set off, a larger sum is found to be due from the plaintiff to the defendant than is found to be duefrom the defendant to the plaintiff, the defendant is entitled to judgment for the balance.

PART VI: LAW AND ANALYSIS [44] As this is a statutory Court, the jurisdiction to order the mother to repay the father, or to deal with the mother’s competing claimsmust emanate from a statute. A. The Court’s Discretion to Order the Repayment of Child Support [45] Beginning with the father’s claim to recover a child support overpayment, as I have set out, there is limited statutory authority tomake such an order flowing from the FRSAEA, specifically sections 8.4(4) and (5). The decision about whether to make a repaymentorder under these sections is discretionary.

The statute offers only some guidance about how the Court should exercise that discretion. [46] In Meyer v. Content, 2014 ONSC 6001, Justice Deborah Chappel canvassed these sections, as well as a myriad of other issuessimilar to those raised in this case, and mapped out a number of criteria that are helpful in explaining how a Court ought to exercise itsdiscretion in a repayment case under the FRSAEA. I have followed the approach in Meyer v. Content. [47] As Chappell J. said at ¶ 94-96, there is no automatic entitlement to be reimbursed for an overpayment of child support.

Rather,the determination about whether the Court should order the repayment of support involves a three step analysis, namely:

(1) First, the Court must make a finding respecting when child support terminated;

(2) Second, the Court must ask whether a reasonable litigant who has made reasonable efforts to become informed about theirsupport entitlement would have advised the FRO that support had terminated; and

(3) Third, even if the Court determines that the recipient should have taken steps to stop enforcement, the Court maintains adiscretion as to whether or not to order the recipient to reimburse the payor for all or part of the overpayment. This step requires theCourt to consider “the circumstances of each of the parties to the support order”. [48] I begin with the question of when J.K.N.’s entitlement to support terminated.

(1) The Termination of Child Support [49] In a variation proceeding such as this, section 37(2.1) of the FLA requires that there be a “change in circumstances within themeaning of the child support guidelines” in order for the Court to terminate support. There is no question that there has been such a“change in circumstances”. J.K.N. became an adult after Paulseth J.’s support order was made. The table amount of child support wasthen no longer presumptive according to section 3(1) of the Guidelines.

At that point, section 3(2) of the Guidelines became applicable. [50] Moreover, both parents agree that there has been a change in circumstances and that child support should end. The dispute in thiscase is about when and on what terms. [51] As there has been a change in circumstances when J.K.N. turned 18, the mother bears the onus to demonstrate J.K.N.’s continuedentitlement to support. See Whitton v. Whitton (1989), (ON CA), 21 R.F.L. (3d) 261 (C.A.); see also Meyer v.Content at ¶ 29. This analysis is complicated somewhat in a retroactive case as a result of the recent amendment to

section 31 of theFLA. I - Which Version of

Section 31 Applies? [52] The parties are asking the Court to retroactively terminate support and between the time of each party’s proposed terminationdate and now, the law regarding entitlement to child support changed.

[ 53 ] As set out above,

section 31 of the FLA was amended in 2017 following a constitutional challenge to its predecessor. The amendments had the effect of broadening the entitlement to child support under provincial legislation by more or less incorporating the definition of “child of the marriage” from the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), as amended (the “ Divorce Act ”) into

section 31 of the FLA. [ 54 ] The previous version of

section 31 of the FLA was in force on April 30, 2010, when I have decided child support should terminate. Had an application to terminate support for J.K.N. been heard at any point prior to 2017, the Court would have been restricted to deciding whether she was then enrolled “in a full time program of education”, and even if so, whether she had withdrawn from parental control. The Court would have also considered the parents abilities’ to provide support under that previous section. Had entitlement been established on any such hypothetical application, then the Court would have had to determine whether to order table support or another amount in accordance with section 3(2) (

b) of the Guidelines . [ 55 ] But now, the current version of

section 31 is in force today is broader. If it is the current

section 31 that should apply to the Court’s retroactive determination, then the end date might theoretically be different from a date selected under old

section 31 . For example, if J.K.N. was “unable by reason of illness, disability or other cause to withdraw from the charge” of her parents, regardless of this Court’s ruling about her enrollment in “a full time program of education” on a specific date, then support might be extended beyond that date. [ 56 ] Given this recent change to the legal landscape, I invited submissions from counsel regarding which version of

section 31 should apply to the decision that I must make now. Neither counsel submitted case law or any statutory authorities on this point to assist the Court, although the father’s counsel submitted that the termination date would not change regardless of which version applies. [ 57 ] The answer to a similar question was dealt with by Benotto J. (as she then was) in S.(R.) v. H.(R.), 2000 CarswellOnt 1994 (S.C.J.) . In S.(R.) v. H.(R.) , Benotto J. considered whether the amendment to the definition of spouse in

section 29 of the FLA that extended spousal support to “same-sex partners” (as the legislation then defined gay and lesbian spouses) following the constitutional challenge in M v. H. applied retroactively, notwithstanding that the specific Bill that enacted the changes did not specifically provide for its retroactive application.

Nevertheless, Benotto J. concluded that the amendment did apply both retroactively and retrospectively [1] . [ 58 ] Although there is a presumption that new legislation is not intended to have a retroactive or retrospective application, Benotto J. held that the definition of “same-sex partner”, then in the FLA , was itself backward looking. It required the Court to consider whether two persons had cohabited in the past. And more particularly, section 34(1) (

f) of the FLA gave the Court the power to make a retroactive support order. As such, she interpreted the amendment to apply retroactively, in part because the spousal support of the FLA as a whole applied retroactively. She said the Bill, which enacted the changes, did not need to have a specific retroactive provision because the FLA already did. [ 59 ] Bennotto J. also relied on

section 10 of the

Interpretation Act ( now section 64(1) of the Legislation Act, 2006, SO 2006, c 21, Sch F ). The current section 64(1) of the Legislation Act provides that legislation is to be interpreted as being remedial. It is to be given such “fair, large and liberal

interpretation as best ensures the attainment of its objects”. T he legislation that extended spousal support to gay and lesbian spouses following M. v. H. was passed to remedy an unconstitutional wrong. As remedial legislation, Benotto J. held that it must be interpreted broadly. [ 60 ] Similarly in the case of entitlement to child support, the FLA has a retroactive and a retrospective application. I note that in S.(R.) v. H.(R.), Benotto J. had before her an initial application for retroactive spousal support. As she noted, initial applications may have retroactive application pursuant to section 34(1) (

f) of the FLA. Thus she applied the new, then current definition of “same-sex partner”, to the case before her and decided whether to retroactively grant the spouses support pursuant to section 34(1) (f). As this case is a motion to retroactively vary child support, section 37(2.1) (

a) empowers the court to “discharge, vary or suspend a term of the order, prospectively or retroactively”. I read the statute as telling me that the current bases of entitlement under

section 31 must apply, but I am directed to apply those bases retroactively when considering a retroactive variation under section 37(2.1) (a). The

section does not tell me to apply a previous statutory provision, which may have been previously in force, but is no longer so. [ 61 ] Furthermore, I also note that the amendment to

section 31 was also introduced to remedy a wrong. The amendment was initially introduced in the Ontario legislature by way of a private member’s Bill 113. At that point, the Bill had passed only the first reading.

In the Hansard Debate relating to Bill 113 on March 29, 2017, MPP Peggy Sattler stated the bill was introduced to address “the discrimination against unmarried parents in the current Family Law Act ” and to amend “the Family Law Act so that parents must provide support for their adult child if the child has an illness, disability or other issue that makes them unable to support themselves”. [ 62 ] The final version was later enacted, with little debate, as part of omnibus Bill 177 that received Royal Assent on December 14, 2017. [ 63 ] This is not a case where a court has already decided a termination date and the Court is being asked to allow a party to re-litigate that finding based on a subsequent change to the law.

Rather, the question of when a previously ordered support order should terminate has not yet been decided. In my view, there is no impediment to deciding the issue and I must apply the now existing

section 31 , enacted to remedy a legal wrong, to the retroactive decision that I am being asked to now make. To do otherwise might result in the Court unfairly applying an old statutory provision that has been ruled unconstitutional, to deny a child support to which she is entitled. [ 64 ] I am further of the view that this approach is consistent with the broad approach to entitlement to child support that has been adopted in the case law, which I deal with next. II – The Approach to Entitlement Under

Section 31 of the FLA [ 65 ] To determine when J.K.N.’s entitlement to support ended pursuant to

section 31 of the FLA , I begin with the principle that I should take a broad look at the question of J.K.N.’s entitlement. I note this was the approach taken by Berger J. in Baker v. Baker, 1994

8899 (Q.B.) at ¶ 6, albeit in his

interpretation of the definition of “child of the marriage” under the Divorce Act. But the caselaw has established the same broad approach to entitlement under the FLA. [66] Taking a broad approach is consistent with both the purposes of a child support order set out in the FLA and some of theobjectives of the Guidelines. For example, the purposes set out in section 33(7) of the FLA are to recognize that each parent has anobligation to provide child support and to apportion that obligation according to the Guidelines. And the objectives listed in

section 1 ofthe Guidelines include to establish a fair standard of support for J.K.N. to ensure that she benefits from the financial means of bothparents, and to ensure consistent treatment of parents and children in similar circumstances. [67] I note that even under the previous, more narrow version of

section 31 of the FLA, the case law developed so as not to apply anoverly rigid application of “enrollment in a full time program of education” to prematurely cut off adult, but still dependant children,from support. See Meyer v. Content at ¶ 29-31. [68] And regardless of which version of the FLA applies in this case, I heard arguments that mostly centered around whether J.K.N.was enrolled in a “full time program of education” anyway. Both parents argued that J.K.N.’s dependency was related to her status as acollege student.

But I did also hear some evidence about J.K.N.’s ability or inability to achieve independence, apart from the question ofher school attendance. That evidence, tendered by the mother, is relevant to whether J.K.N. was “unable by reason of illness, disabilityor other cause to withdraw from the charge” of her parents, so I will deal with both arguments. [69] Beginning with the question of J.K.N.’s school enrollment, in a very comprehensive fashion, at ¶ 29-33 of Meyer v.

Content,Chappel J. sets out the law respecting what is required for child support to be ordered based on an adult child’s enrollment in a “full timeprogram of education”. While the new

section 31 broadens the bases of entitlement to child support, I note that the amendment did notabandon the old statutory language about enrollment in a full time program of education in the predecessor to

section 31. Therefore, thecase law decided under the previous

section remains applicable in cases where dependency flows from an adult child’s continuededucational path. [70] I reproduce most of ¶ 29-33 of Meyer v. Content as follows: [29] …….Where the claim for ongoing support under the Family Law Act is based on the child’s enrolment in a full time program ofeducation, the party seeking support must provide tangible evidence of the child’s enrolment and attendance in the program, and has theonus of satisfying the court that the child’s level of participation in the program meets the requirements of section 31(1) of the Act(Vohra v. Vohra, 2009 ONCJ 135 [2009] O.J.

No. 1446 (Ont. C.J.)). Enrolment in a full time program of education requiresmore from the child than simply being registered in a full time program (Figueiredo v. Figueiredo (1991), (ON SC),33 R.F.L. (3d) 72 (Ont. Gen. Div.)). Furthermore, the policy of the applicable educational institution as to what constitutes enrolment in afull time program is not determinative of whether the child’s involvement in the program meets the requirements of section 31(1) of theAct (Cava v. Cava, (ON SC), 139 A.C.W.S. (3d) 904, [2005] O.J.

No. 2316, [2005] O.T.C.430, 2005 CarswellOnt 2287 (S.C.J.)). [30] The word “enrolled” refers to the child’s participation in the program. In order to remain eligible for support, the child’sparticipation in the program must be meaningful from both a quantitative and qualitative standpoint, and must be “consistent with theprogram’s purposes and objectives” (Giess v. Upper, (ON SC), 1996] O.J. No. 5600 (Gen.

Div.)) From a quantitativestandpoint, while a child need not have stellar attendance in programming in order to meet the test, there must be a reasonable degree ofattendance taking into consideration the child’s particular needs and challenges. From a qualitative perspective, the child mustdemonstrate a reasonable degree of involvement, engagement and success in the program taking into account their overall level offunctioning.

The determination of whether a child’s participation in an educational program in question is sufficiently meaningful tosecure ongoing entitlement to support must take into consideration the particular circumstances of the child. A standard of perfection interms of attendance and success in the program is not required. The wording of section 31(1) must be construed flexibly and for thebenefit of children, so as to ensure that children enrolled in an educational program have “easy access to the fruits of this section”(Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Wilson v.

Wilson, (ON SC), 117 A.C.W.S.(3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (S.C.J.)). Accordingly, a child may remain entitled tosupport on the basis of enrolment in an educational program even if their participation and achievement levels are problematic, providedthat the effort which the child is putting forth is within their capability given their particular circumstances. (Copeland v. Copeland,Supra; Vohra v. Vohra, Supra.; Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999CarswellOnt 3340 (Div. Ct.); Styles v.

Styles, 2011 CarswellOnt 1134 (S.C.J.); Vivian v. Courtney (November 17, 2010), Doc.D3067/93 (Ont. S.C.J.); Gillesse v. Earl, 2011 CarswellOnt 826 (S.C.J.)). [31] A finding that a child over the age of majority is enrolled in a full time program of education does not end the entitlement analysis. By virtue of section 31(2) of the Family Law Act, an adult child of the relationship who is involved in a full time program of educationmay nonetheless have no child support entitlement if they have withdrawn from parental control.

Ongoing eligibility for support istherefore also dependent on the court finding that the child is unable to withdraw from parental control. A child will be found to beunable to withdraw from parental control if their overall circumstances are such that they remain financially and emotionally dependenton one or both of their parents (Martin v. Taylor, 2007 CarswellOnt 8863 (S.C.J.); Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J)). Theanalysis of this issue must be undertaken from a broad and objective standpoint.

The judge must scratch beneath the surface of outwardappearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they areindependent or reasonably capable of being so. [32] Where, as in this case, it is alleged that the child cannot withdraw from parental control due to enrolment in an educationalprogram, the court must carefully consider the child’s overall financial and daily living circumstances, and whether the child’sparticipation in the program is reasonably necessary in order for the child to achieve a level of self-sufficiency that is commensurate with the child’s interests and aptitude.

The case-law respecting entitlement to child support under the Divorce Act (R.S.C. 1985 c. 3 (2nd Supp.), as am.) provides valuable guidance respecting the factors that the court should take into account in deciding entitlement for adultchildren involved in ongoing studies. Under the Divorce Act, a child of the relationship who is eighteen years of age or older andenrolled in post-secondary studies may be entitled to support if they are under parental charge and unable to withdraw from that charge

or to obtain the necessaries of life. The case-law has clarified that in order to establish that a child is unable to withdraw from parentalcharge due to enrolment in ongoing educational studies, the court must be satisfied that the child’s educational plan is reasonable takinginto account the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and theneeds and means of the child and the parents. As the Saskatchewan Court of Appeal stated in Geran v.

Geran, 2011 SKCA 552011 CarswellSask 333 (C.A.) at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whetherthe child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondaryeducation to the end of bettering the future prospects of the child.” The courts have outlined a number of factors which should beconsidered in answering this question. The following is a collective list of some of the factors, as derived from the cases of Whitton v.Whitton (1989), (ON CA), 21 R.F.L. (3d) 261 (Ont.

C.A.), Farden v. Farden (1993), (BC SC), 48 R.F.L. (3d) 60 (B.C. Master), Darlington v. Darlington (1997), (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A.) Bradley v. Zaba (1996), (SK CA), 18 R.F.L. (4th) 1 (Sask. C.A.), Geran v. Geran, Supra., Rebenchuk v. Rebenchuk, Supra., Haist v. Haist 2010 ONSC 1283 2010 83 R.F.L. (6th) 147 (Ont. S.C.J.) and Caterini v. Zaccaria, 2010 ONSC 64732010 CarswellOnt 9344 (S.C.J.): 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 the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries orscholarships, and if so, the amounts received. 3. The ability of the child to contribute to their own support through part time employment. 4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoingeducational program because there is nothing better to do. 5.

In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of theproposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost ofthe course of study. 6. The age, qualifications and experience of the child. 7. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility. 8. Whether the child is performing well in the chosen course of studies. 9.

What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. Inconsidering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of theirchildren comparatively equally. 10. The means, needs and other circumstances of the parents and the child. 11. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans andprogress.

If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with aparent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education. [33] The courts have held that it is not necessary to address all of the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, Supra.; Wesemann v. Wesemann (1999), (BC SC), 49 R.F.L. (4th) 435 (B.C.

S.C.)at para. 11). [71] Sometimes delays in bringing lawsuits to the Court result in important evidence not being available. In regards to J.K.N.’sacademic performance, the delay in bringing this case to the Court has resulted in me having better evidence in certain respects. Thefather argues that I have the benefit of years of transcripts, and the transcripts as a whole show that the child did not apply herself andthat her educational plan was not reasonable.

Armed with years of transcripts, he argues that the Court should order a cut-off right afterhigh school. [72] While tempting, I have cautioned myself against taking this approach, even with the years of transcripts and the benefit ofhindsight. I do not think J.K.N. should not be denied support back to such an early date. [73] Had the parties returned to Court concerning child support around the time that J.K.N. graduated from high school and had J.K.N.presented a post-secondary plan, the Court would not yet have had any evidence of her poor post-secondary academic performance.

It ishighly likely that a judge would have continued child support at that time. It is also my view that had the parties returned to Court earlyon as J.K.N. started to perform poorly, she would have been given some additional latitude. Thus, I have difficulty with the father’sassertion that there should be a different and more rigid result now after the fact. [74] However, I also agree with Chappel J.’s comments at ¶ 42 of Meyer v.

Content, where she said, “[a]lthough enrollment in a fulltime program of education is a concept that must be interpreted through a lens that is sensitive to the child’s challenged and needs, theflexibility of the context can only stretch so far.” The child must engage in the program in a meaningful way, despite any issues that thechild is dealing with. With these principles in mind, I turn to the evidence to determine when J.K.N.’s academic pursuits became nolonger reasonable.

III – The Court’s Analysis Respecting a Termination Date [75] I find that J.K.N.’s entitlement to child support terminated as of April 30, 2010. I say this for the following reasons.

[ 76 ] As set out above, J.K.N. graduated high school in June of 2008. J.K.N.’s transcripts covering the period from the fall semester in 2008 through to the 2017-2018 academic year, were filed with the Court. In cross-examination, J.K.N. testified that a passing grade meant 60%. [ 77 ] I summarize J.K.N.’s transcripts in the following chart: Year College & Program Comments About J.K.N.’s Performance Fall 2008-Winter 2009 Humber College – Fitness and Health Promotion J.K.N. enrolled in 8 courses in the fall term for a total of 23 credit hours.

She barely passed Introduction to Software Applications scoring 61% and earning 1 credit hours. Otherwise, her grades ranged between 21 and 54 in the other courses she signed up for. In one of the courses she took called College Writing Skills, her grade was 21%. J.K.N. did not pass any courses in the winter term. Her average grade was 38.4%. J.K.N. was placed on academic probation. Fall 2009 – Winter 2010 Humber College – GAS Special Topics J.K.N. enrolled in 5 courses per term this year. Her average grade was 9% in the fall term and 16.4% in the winter term.

She earned 0’s in 5 of the 10 courses that she took this year, one of which was College Writing Skills, a course she enrolled in for the second time. In the result, she earned no credit hours at all this year. Her academic standing was “academic withdraw” by the end of this year. Fall 2010 Humber College – GAS Special Topics J.K.N. took only 3 courses per term this year. Her average grade was 34% in the first term and 0% in the second term. She scored 0’s in all three courses in the second term. Winter 2011 Humber College – Community and Justice Services J.K.N. enrolled in 3 courses this term.

She earned 0’s in all three. Once again, her academic standing became “academic withdraw” by the end of this year. Fall 2012 Sheridan College – Business Accounting J.K.N. enrolled in 6 courses the fall term. Her transcript reveals that she earned four F’s, and there is one withdrawal. The grade for Introduction to Sociology says “NE”, the meaning of which was not explained to the Court. Nevertheless, the transcript reveals that she did not earn any credits for the Sociology course.

Winter 2013 No transcript provided No transcript provided Fall 2013 Centennial College – Business Accounting J.K.N. enrolled in business accounting again, this time at Centennial College. She enrolled in 6 courses, and earned 3 F’s and 3 “FNA’s”. The father testified that this means “Fail Not Attend”. Winter 2014 through to Winter of 2017 J.K.N. was out of school J.K.N. was out of school Fall 2017 to Current Humber College – Healthy Lifestyle and Food Management J.K.N. enrolled in 12 courses in the 2017-2018 school year. However, incomplete disclosure of J.K.N.’s academic progress was provided.

The transcript supplied reveals only one grade, and J.K.N. earned 49% in that course. No details about her performance in the other courses have been supplied. [ 78 ] As the transcripts reveal, J.K.N. enrolled in the first college program, Fitness and Health Promotion, after high school. I heard very little evidence from J.K.N. about the goals she had at the time she enrolled in this, or about what the program’s objectives were.

In any case, she only passed one course, and just barely. [ 79 ] That said, I am also mindful that the standard of perfection is not the test that I must apply, and I did hear some evidence to explain J.K.N.’s past poor performance. I am only prepared to accept some of this evidence though. I will explain. [ 80 ] I accept that J.K.N.’s early poor performance at school may have been impacted by the death of her grandmother. J.K.N. testified that she maintained a very close relationship with her grandmother, who passed away in the months before she started college. On this point, I find that J.K.N. was credible.

I accept that J.K.N.’s relationship with her grandmother was an important one to her and her grandmother’s death impacted her. [ 81 ] However, the second explanation that J.K.N. seems to offer up to explain her poor performance is that it was her father’s fault. In her affidavit sworn January 24, 2018, J.K.N. says that her past poor academic performance stemmed perhaps in part from the “serious

emotional trauma” she says she experienced during the period 2003 to 2008 due to “false allegations and innuendos made by [her] father” and that she has suffered from the “residual impact” of that litigation. [ 82 ] It is common ground that J.K.N. and her father do not have a relationship with one another. They do not speak to each other. This has been the case at least since Paulseth J.’s March 31, 2006 Order, although likely earlier than that.

On this topic, when talking about the emotional support she receives from her mother, J.K.N. also told the Court that her father “didn’t give [her] any emotional support”. [ 83 ] It was clear from all of three witnesses’ testimony that this relationship is estranged, although none of the witnesses really explained why that is.

Perhaps if the parties had provided more detail, I would have a better understanding about why the relationship was estranged, what impact that might have had on J.K.N., and perhaps why the parties’ did not directly discuss the support termination issues that are now before the Court, before coming to Court years later.

But the parties did not get into this history, perhaps wisely to spare themselves the agony of further digging up and airing at trial what is obviously painful history. [ 84 ] Given the paucity of evidence on this point, I cannot place any weight on J.K.N.’s bald statement that her past poor academic performance may stem from the “serious emotional trauma” that she says she experienced without proper evidence to support such a statement.

But nevertheless, having heard both explanations, and taking a broad approach, I would not terminate child support during J.K.N.’s first year. [ 85 ] In her second year, J.K.N. switched programs and enrolled in “GAS Special Topics”. J.K.N. explained that for her second year, she switched programs to see if she could do better and lessen her course load. Once again, I heard very little evidence from J.K.N. about the goals she had at the time she enrolled in this, or about what this second program’s objectives were. Although she took fewer courses, she performed worse.

As I will explain, even in one course that she repeated, she earned a lower grade. [ 86 ] This notwithstanding, I am still prepared to find it was reasonable for J.K.N. to switch gears and to try again.

I would not terminate child support during the second year. [ 87 ] However, and while I am sympathetic to J.K.N.’s loss of her grandmother, I cannot accept that there ought to have been continued child support payments after the end of her second year, particularly in light of the evidence I heard about J.K.N.’s failure to take steps to address any suffering that she says she was experiencing, nor to address her poor academic performance.

As I will explain, her academic performance continued to decline and neither she nor the mother did really anything to remedy the situation. [ 88 ] The mother would have the Court give J.K.N. more leeway than what I have found to be appropriate and asks the Court to continue child support for another 3 ½ years, up to the beginning of 2014.

In her affidavit sworn January 24, 2018, the mother deposed, “[w]hile J.K.N. was not a stellar student, it is evidence from her unofficial transcript for both Humber College and Sheridan College, attached hereto respectively as Exhibit J1, Exhibit J2 and Exhibit J3, that she attended full-time post-secondary education and applied herself to her studies as best as she could”. In her affidavit sworn January 24, 2018, J.K.N. similarly deposed that, “[b]ased on [her] ability to function, [she] gave her programs best efforts”. [ 89 ] I cannot accept either of these statements. [ 90 ] As set out in Meyer v.

Content , I must consider the question of J.K.N.’s enrollment in school from both a quantitative and qualitative perspective. Quantitative means that J.K.N. must have actually attended school. Qualitative means that there must have been a sufficient degree of actual involvement and participation. In short, J.K.N.’s participation in school must have been meaningful. [ 91 ] Qualitative and quantitative evidence is lacking by the end of her second year.

I find J.K.N. lacked credibility on these subjects. [ 92 ] In her evidence in chief, J.K.N. explained that in her first year, she went to all of the classes and did all of her assignments. She says she talked to her professors and worked hard to get her assignments done in an attempt to get out of academic probation. As I have said, she did not do well in her first year and she did worse in her second year.

By the end of her second year, her academic status was changed from “academic probation” to “academic withdraw”. [ 93 ] J.K.N. denied having withdrawn at the end of her second year (even though her transcript says this), saying more than once that she never went into an office to drop courses or announce she was withdrawing. She testified rather that the school recorded her academic status as withdrawn on its own initiative. [ 94 ] I accept J.K.N.’s evidence that the school does not maintain attendance records and so she could not provide a record to show that she actually attended.

I am prepared to accept that she attended school some of the time during her first two years, and perhaps even into her third semester. I am prepared to accept that she made some effort at the beginning. [ 95 ] But the evidence does not support those assertions thereafter. J.K.N. explained that each semester she attended all of her classes, took notes, did work and asked for help when needed. She said this was the case for her entire academic career.

In cross-examination, J.K.N. testified that she attended 95% of her classes, and persisted in claiming that she completed all of her assignments. [ 96 ] Frankly, I find this evidence lacks an air of reality. I have difficulty accepting this to be true commencing in her second year and certainly into her third year. Her transcript reveals that she started to score 0’s in her second year. I find that it is more probable than not that after 2010, J.K.N. attended college infrequently and made an insufficient effort. [ 97 ] I begin with the evidence regarding her quantitative school attendance after that point.

Other than J.K.N.’s say-so, the only other evidence I heard on this point was from J.K.N.’s mother. The mother said she believed that J.K.N. was attending classes. She said that she sometimes drove J.K.N. to school, but obviously she did not follow J.K.N. into the school and ensure that she actually went to classes. [ 98 ] The mother’s evidence about how much she drove J.K.N. to school was not definitive. Indeed, the mother admitted that

sometimes J.K.N. went to school on her own. And to a certain degree, this doesn’t really matter as the transcripts speak for themselves. [ 99 ] Regardless of the extent to which she attended, from a qualitative perspective, the evidence is problematic. J.K.N. consistently earned 0’s, F’s or FNA’s starting in 2010.

Had J.K.N. actually submitted all assignments and course work as she said she had, then for her to score certain of the results on her transcripts, she would have had to have earned absolutely no grade at all on any of those assignments. [ 100 ] A specific example of this in the evidence that I have difficulty accepting is J.K.N.’s explanation about what happened with the “College Writing Skills” course that she took twice. J.K.N. took this course for the first time in her first semester.

She testified that even though she got a low grade the first time, she found the College Writing Skills course to have been a valuable learning experience. Then she took it again. Despite claiming to have done all the assignments, the second time she scored a 0. When asked how that was possible, she said she wasn’t doing the essays properly. Although she earned this 0 in the period of time that I am granting her leeway, I cannot accept that she scored a 0 on all of her classwork in that course.

I find that the grade means she did not submit the work at all. [ 101 ] I also have difficulty with the lack of evidence about any remedial steps J.K.N. took to address the academic problems she was experiencing. The mother testified that she tried to talk to J.K.N. about her academic performance when she saw J.K.N. withdrawing to her room. The mother also went to talk to her own doctor about what she observed, and her pastor.

But J.K.N. would not go to counselling. [ 102 ] The mother testified that she encouraged J.K.N. to try harder and to focus more as she learned about J.K.N.’s poor academic performance, but there was almost no evidence about what J.K.N. did in this respect to try harder. J.K.N. explained that she “freezes” when taking tests. But other than making a general statement that she talked to her teachers and tried harder after each fail, I did not hear any concrete evidence about what J.K.N. actually did to improve her grades.

She never sought mental health assistance, or counselling, to address the emotional and academic issues she told the Court she was experiencing. She did not access the services of a tutor. Nor did she take advantage of any of the academic counselling services available at any of the schools. [ 103 ] In re-examination, J.K.N. tried to explain that she was embarrassed to seek assistance.

However, this evidence was obtained through very leading questions from the mother’s counsel, and I place little weight on this evidence. [ 104 ] At the trial, I was not given any medical evidence to support an argument that J.K.N. was suffering from any mental health issue or learning issue that would explain her poor academic performance or justify her continued dependence on her parents. [ 105 ] After changing schools twice, and programs of study three more times after the end of her second year, J.K.N. testified that she took time off school to work and to see what might inspire her to choose a proper career.

This happened at the end of 2013. It is at that point that the mother says that child support for J.K.N. should end, but as I have explained above, her selection of January 1, 2014 seemed to have more to do with the so-called 3 year rule for retroactive child support, which I will come back to. [ 106 ] To defend against the mother’s argument that support should end at the beginning of 2014, the father argued that J.K.N. devoted time to sports that she ought to have devoted to studying. It is common ground that J.K.N. is a talented athlete.

When she was in high school, J.K.N. played soccer, basketball, volleyball and softball, and she participated in track and field. J.K.N. returned to high school for an extra year to upgrade her credits before going to college. [ 107 ] Through his cross-examination of J.K.N., the father’s counsel suggested that J.K.N. both took an extra year of high school, and that she later enrolled in college for the purpose of continuing to play sports, or at least that she devoted too much time to this, rather than studying.

J.K.N. denied both of these assertions. [ 108 ] I am not prepared to find that J.K.N. enrolled in college only to play sports and given that I have decided that support ought to terminate in 2010, whether she devoted time to sports as opposed to studying in 2013 is moot. [ 109 ] I say this because between 2008 and 2010, J.K.N. did not play sports. She actually had tried out for sports teams between 2008 through 2012, but did not get onto any of the colleges’ sports teams. She only eventually got onto a sports team in 2013 when she was at Centennial College. While there, she played soccer and basketball.

By this point, J.K.N. had struggled for a number of semesters. Although she claimed she still had time to study, three of the courses she took at Centennial are reflected on her transcript as fails for not attending, and she failed the other three courses. [ 110 ] J.K.N. testified while at Centennial College, she had sports’ practices or games four times per week. She also travelled for games as far away as Quebec and Ottawa. In my view, if obtaining a diploma or degree was the goal, which she said it was, then it was not reasonable that she focused on sports given that her academic situation was so tenuous.

So had I been inclined to continue child support up until the end of 2013, then there may have been some merit to the father’s lawyer’s assertion that J.K.N. devoted time to sports that might have been better redirected to academic pursuits. But in the result, nothing turns on the fact that J.K.N. played sports in 2013 as I am finding that J.K.N.’s entitlement to support terminated in 2010. Notwithstanding that her transcripts show she was officially enrolled in schools between the end of her second year into 2013, I have not found this to be sufficient enrollment for the purposes of entitlement under

section 31 . [ 111 ] Before leaving the question of J.K.N.’s academic pursuits, I intend to comment briefly about J.K.N.’s current academic pursuits, as in my view this is a matter of credibility that reflects poorly on both the mother and J.K.N. [ 112 ] J.K.N. testified that after she took time off school starting at the end of 2013, she discovered that she likes the food industry, which influenced her most recent choice of academic program. But I note that she only enrolled in school again in the year that the father launched this proceeding to ask for a termination.

Again, the mother’s initial position included a claim for continued support based on her enrollment in this new program. [ 113 ] J.K.N.’s transcripts for the 2017-2018 school year, which would have been available when J.K.N. testified in September 2018, were not filed with the Court. This may be because the mother had withdrawn her claim for ongoing support by the time the trial

started. Nevertheless, in her affidavit sworn January 24, 2018, J.K.N. talked about her current academic pursuits. She deposed that she is now diligently engaged in a three year program. She said that after several failed attempts she has found a career path that she is passionate about. She is excited about the career opportunities that she will be able to explore at the end of her studies.

She also said that the marks she has been able to obtain since September [2017] “are a testament to [her] diligent participation in the program” and that she is “putting forth the best efforts that [she] can based on [her] natural abilities and in light of [her] particular circumstances.” [ 114 ] J.K.N.’s affidavit was unnecessarily critical of the father when talking about her current program.

She went on to say that her graduation in 2020 will be a “grand occasion of celebration” and that it will “end the sneers [she] has endured so far.” And, “[w]hile [her] baby steps to recovery are not celebrated or supported by [her] father, [she knows] that [she] will be a success.” [ 115 ] But again, neither the mother, nor J.K.N. herself supplied J.K.N.’s transcript for the 2017-2018 academic year to the Court for this trial. I note however that J.K.N.’s historic Humber College “unofficial transcript” that she did provide to show her past performance at Humber was printed on January 22, 2018.

As summarized in the chart above, it details J.K.N.’s performance there between 2008 and 2011. But it also resumes in 2017. While there are no grades for most of her courses for the 2017-2018 year given it was printed mid- year, there was one grade. At the time she printed it (two days before she swore her affidavit of January 24, 2018), the transcript revealed that J.K.N. had received one grade.

That grade was 49%; a fail. [ 116 ] While I appreciate that the mother was no longer claiming ongoing support for J.K.N. at the time J.K.N. swore her affidavit for this trial, as I have explained, J.K.N. made a number of statements both in her trial affidavit and orally at the trial about the reasons for her poor academic performance historically, and she now says she has turned a corner, despite the lack of her father’s support.

Her current academic performance might have shed light on the veracity of her explanations as to her prior performance if in fact she has turned a corner, but I do not know one way or the other in the absence of the transcript. And I find the timing of the re-enrollment in tandem with the mother’s continued claim for child support in the Response to Motion to Change to be suspect. [ 117 ] I further find that J.K.N. was reasonably capable of becoming financially independent after the end of her second year. I was given evidence of J.K.N.’s part-time income from 2012 to 2016.

Apparently she did not file income tax returns for the years 2006 through 2011.

The income information that I was given reveals: (a) 2012: $1,680 – Line 150 Income per Notice of Assessment; (b) 2013: $6,730 - Line 150 Income per Notice of Assessment; (c) 2014: $14,001 - Line 150 Income per Notice of Assessment; (d) 2015: $18,552 - Line 150 Income per Notice of Assessment; (e) 2016: $19,225 - Line 150 Income per Notice of Assessment; and (f) 2017: Not provided. [ 118 ] Given the findings I have made about the effort she devoted to her studies and the lack of evidence about any inability to earn income, it is my view that J.K.N. could have taken steps to earn and income and start supporting herself after the end of her second year. [ 119 ] I heard absolutely no evidence why J.K.N. was unable to work after that point, or unable to work more during the times she worked only part-time.

For example, I note that in the years 2014 to 2016, she worked only part-time, but in two of those years, she earned almost $20,000. I fail to see why she could not have earned at least a minimum wage income, something that many child support payors who come before this Court are expected to earn.

I find that she could have done more to increase her income. [ 120 ] In the result, I am prepared to accept, to a limited extent that J.K.N. was impacted by the death of her grandmother, that she tried to succeed at school at the outset of her college studies and that she changed courses after her first year in a reasonable attempt to try to do better. I am prepared to give J.K.N. some leeway for those two years. I reject the father’s argument that child support terminated at the end of high school, which I find to be too rigid and too heavily reliant on hindsight.

But in my view, the evidence does not warrant continued child support thereafter. IV – The Expanded Bases of Entitlement Under

Section 31 [ 121 ] I will briefly address the argument that J.K.N. was unable to withdraw from the charge of her parents by reason of “by reason of illness, disability or other cause”. [ 122 ] As I have explained, there was an unsupported assertion from J.K.N. that she suffered from trauma in the past that impacted her performance at school. As part of my analysis respecting her school performance, I have already found that there was inadequate evidence to support c

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