Samuel v. Cox, 2025 ONCJ 149

Samuel v. Cox, 2025 ONCJ 149

DATE: March 17, 2025
COURT FILE NO.: D43857/23
ONTARIO COURT OF JUSTICE

Between:

Sacha Patricia Samuel and Sharya Samuel-Cox
Applicant
Represented by Stephanie Johnson (for Sacha Patricia Samuel and agent for Sharya Samuel-Cox)

• and -

Doran Cox
Respondent
Self-represented

Heard: January 13, February 18 and 25, 2025
Justice: Stanley B. Sherr

Reasons for Decision

Part One – Introduction

1This was an uncontested hearing of the applicants’ application to change the child support terms in the September 29, 2006 order of Justice Patrick Dunn (the existing order). The existing order requires the respondent (the father) to pay child support to the applicant Sacha Patricia Samuel (the mother) of $180 each month, for their child, the applicant Sharya Samuel-Cox (Sharya), based on his annual income of $21,300. The existing order sets out that the father shall annually provide the mother with proof of his income.

2The applicants seek an order that the father pay child support retroactive to January 1, 2017, based on an imputed annual income to him starting at $66,192 and increasing to $86,365 on January 1, 2022.

3The applicants ask that child support accrued until August 31, 2023 be paid to the mother and that child support after September 1, 2023 be paid directly to Sharya.

4The father was found in default on March 18, 2024. The trial was adjourned several times at the applicants’ request so that they could provide their trial evidence.

5The father did not attend the first day of trial on January 13, 2025, although served with the applicants’ trial material. The court heard oral evidence that day from Sharya. The trial was adjourned for the applicants to file further evidence. The court directed them to serve any supplementary affidavits on the father. They did.

6The father attended court on February 18, 2025, the second day of trial. On that day, the applicants both gave oral evidence. The court gave the father limited rights of participation at the trial despite being in default – he was permitted to make closing submissions.

7The closing submissions were made on February 25, 2025. The father asked that the application be dismissed. He took the position that there has been no material change in his income. He also submitted that Sharya had withdrawn from parental control as of August 31, 2023, and was no longer eligible for child support.

8The parties were given permission and timelines to serve and file Statements of Fact and Law. The father used this as an opportunity to make factual assertions and allegations that were not in evidence. The court disregarded them.

9The issues for the court to determine are:

a) Has the father’s income materially changed since the existing order was made?
b) If so, when is the presumptive start date that child support should be changed?
c) Should the court depart from the presumptive start date, and if so, when should the change in child support start?
d) Did the father’s support obligation for Sharya end, and if so, when?
e) If the father’s child support obligation for Sharya ended, has it been revived, and if so, when? In particular:
    i) Has Sharya withdrawn from parental control?
    ii) If not, is she in a full-time program of education?
f) How much child support should the father pay for every year that Sharya is found eligible for support since the start date? In particular:
    i) What, if any, income should be imputed to him each year for the purpose of the calculation?
    ii) Is the Child Support Guidelines (the guidelines) approach¹ to calculating child support inappropriate, since Sharya is over 18 years of age and receiving Ontario Disability Support Plan (ODSP) payments and student grants?
    iii) If the answer to ii) above is yes, what amount of support should the father pay Sharya for child support?
g) Who should the child support be paid to?
h) How should any child support arrears be paid?

Part Two – Background facts

10The mother is 39 years old. The father is 42 years old.

11Sharya is 19 years old.

12The mother and the father separated in 2005. Sharya lived with the mother.

13The existing order was made on September 29, 2006.

14In August 2013, the mother had an aneurysmal intraventricular hemorrhage and hydrocephalus. She required several surgeries. She was in a coma for one year. Sharya lived with her grandmother (the maternal grandmother).

15The father had moved to Alberta prior to this incident. The applicants had no contact information for him.

16The mother was discharged from the hospital in December 2014 and began living with Sharya and the maternal grandmother.

17The mother is significantly disabled. She is in a wheelchair and requires assistance with dressing, cleaning, transportation, her medication and shopping. She has some memory issues. In 2015, she began receiving ODSP. She expressed herself clearly when she testified.

18In August 2023, the mother moved to an Assisted Care Facility. In October 2024, she moved to her current Assisted Care Facility.

19Sharya has been diagnosed with ADHD. She takes medication for it. She has also been diagnosed with anxiety and depression. Sharya’s schools have provided accommodations for her disabilities. She had an Individual Education Plan during high school. She completed high school in June 2023.

20Sharya started attending Humber College in September 2023. At the time, she was living with the maternal grandmother. They did not get along and Sharya left her home that month. She also left school that month and did not return for the 2023/2024 school year.

21Sharya initially lived with friends in Barrie, Ontario. Since approximately April 2024, she has been living in a homeless shelter in Toronto. She is working with a social worker at the shelter to find transitional housing. She is on a wait list for geared-to-income housing.

22Sharya turned 18 years old in May 2024 and started receiving ODSP.

23Sharya returned to Humber College in February 2025. She is taking a General Arts and Sciences Course. She testified that this will be a 4-year course. She seeks a career in Animation.

24Sharya has been approved for student grants, including a grant for students with disabilities.

25The applicants issued their application for child support on April 28, 2023.

26The father was served with the application on June 27, 2023.

27The father did not attend at First Appearance Court on August 16, 2023.

28The father attended at court on October 26, 2023. He sought an extension of time to serve and file his Answer/Claim. The applicants opposed this. The court granted the father one last adjournment until November 27, 2023 to serve and file his Answer/Claim and Financial Statement. He was ordered to provide the mother with specified financial disclosure. On a temporary basis, the court ordered him to pay the mother child support of $556 each month, starting on May 1, 2023, based on an imputed annual income of $60,000. Starting on September 1, 2023, the court ordered that these support payments be paid to Sharya.

29The court also ordered the father to pay costs of $1,800 to the applicants.

30The matter returned to court on December 19, 2023. The father was represented by counsel on a limited scope retainer. He made an oral motion seeking another extension to serve and file his Answer/Claim. The applicants opposed the request. The court adjourned the oral motion and endorsed that if the father hoped to be successful on his extension request, he needed to comply with the financial disclosure and costs orders made on October 26, 2023. The court found that the applicants were entitled to the costs of the appearance, to be determined at a subsequent court date.

31The father and his limited scope retainer counsel did not attend court on the March 18, 2024 return date. The father had not complied with the financial disclosure and costs orders. The court dismissed his extension motion and found him in default. The court directed the applicants to serve and file a Form 23C affidavit for an uncontested hearing.

32On May 30, 2024, both applicants filed Form 4 Notices of Change in Representation. They indicated they were going to act in person.

33The uncontested trial started on January 13, 2025. The father did not attend, although served with notice of the appearance. At that hearing, the court learned that Sharya had been out of school since September 2023, but had enrolled again for February 2025. The case was adjourned for Sharya to provide the court with proof that she had enrolled at Humber College.

34Sharya provided the required information and evidence was completed on February 18, 2025. Closing submissions were made by the parties on February 25, 2025 and the filing of the parties’ Statements of Facts and Law were completed on March 11, 2025.

Part Three – Retroactive support

3.1 Legal considerations

35The applicants’ application to change the terms in the existing support order is governed by subsection 37 (2.1) of the Family Law Act (the Act).

36Any support claimed after an application is issued is prospective support, not retroactive support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). That presumption was not rebutted by the father.

37In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors² continue to guide this exercise of discretion, as described in Michel³. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

38Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, para. 25.

39Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., para. 97.

40In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

3.2 Has there been a material change in circumstances regarding child support?

41The first step in the Colucci framework is to determine if there has been a material change in circumstances regarding child support.

42The court finds that the father’s income has significantly increased since the existing order was made. This finding will be reviewed in more detail below when the court discusses the issue of the imputation of his income.

3.3 What is the presumptive start date when child support should be changed?

43The mother testified that she frequently asked the father to increase support, starting shortly after the existing order was made. She said the father would respond that he didn’t have the money.

44The court found the mother to be a credible witness. It finds the date of effective notice was June 1, 2007, at the latest.

45The date of formal notice was the date of the application – April 28, 2023. In the Colucci framework, the presumptive start date cannot be more than three years before the date of formal notice. This means that the presumptive start date for support to change is April 28, 2020.

3.4 Should the court depart from the presumptive start date?

46The mother asks to depart from the presumptive start date. She asks that child support be changed in accordance with the annual income the court imputes to the father starting on January 1, 2017.

47The father opposed any change to the existing order.

3.4.1 Reasons for delay

48In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, para. 121.

49A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, para. 113.

50Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.:

a) Fear of reprisal/violence from the other parent.
b) Prohibitive costs of litigation or fear of protracted litigation.
c) Lack of information or misinformation over the payor parent’s income.
d) Fear of counter-application for custody.
e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
f) Illness/disability of a child or the custodian.
g) Lack of emotional means.
h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
j) The deliberate delay of the application or the trial by the payor.

These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger. See: Michel, para. 86.

51The mother provided understandable reasons for delaying in bringing her application to change child support, being:

a) The existing order required the father to provide her with annual financial disclosure. He did not comply with the order. She had little basis to assess if she should seek increased child support.
b) The father did not increase his support payments even though his income materially increased.
c) The father moved to Alberta and did not provide her with his contact information.
d) The father perpetrated significant family violence against her. She was reluctant to engage in further litigation with him.
e) She suffered serious medical issues. She was in coma for a year. She has struggled with significant disabilities since 2013.
f) Sharya also has special needs. The mother focused on her and not litigation with the father.

3.4.2 Blameworthy conduct

52Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., para. 106.

53Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., para. 106.

54The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, para. 34.

55The father has engaged in blameworthy conduct as follows:

a) He breached the existing order by failing to provide the mother with required annual financial disclosure.
b) He failed to advise the mother about his increases in annual income.
c) He failed to increase his child support payments in accordance with his annual income. He knew or should have known he was underpaying child support to the mother.
d) He moved to Alberta and did not provide the mother with contact information.
e) He failed to provide meaningful financial disclosure to the applicants in this case, despite multiple court orders to do so. He is self-employed. He failed to provide the applicants with any schedules, worksheets and slip attachments that would have been attached to his income tax returns. He provided no evidence of his business income and expenses. He did not file a sworn financial statement with the court.

3.4.3 Sharya’s circumstances

56There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. See: Michel, para. 123.

57The mother provided evidence that Sharya’s circumstances were disadvantaged by the failure of the father to pay the appropriate amount of support. The mother struggled to support herself and Sharya on ODSP. She could not afford supportive services to assist with Sharya’s disabilities.

3.4.4 Hardship

58If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, para. 124.

59While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel, para. 125.

60The father provided no evidence that a retroactive support award would cause him hardship that cannot be addressed with a reasonable payment order. The mother would suffer financial hardship if a retroactive support order was not made.

3.4.5 Start date to change support

61The dominant factor in this case is the father’s blameworthy conduct. He failed to comply with the existing order to provide annual financial disclosure and he failed to increase his support in accordance with his income. He did not provide meaningful financial disclosure in this case. The mother provided very understandable reasons for her delay in coming to court. She established that Sharya’s circumstances were disadvantaged by the father’s failure to pay fair child support. The mother will suffer hardship if a retroactive support order is not made.

62The court finds that it is fair in these circumstances to depart from the presumptive start date and to retroactively change support starting on January 1, 2017, as requested by the mother.

Part Four – Imputation of the father’s income

4.1 Positions of the parties

63The final step in the Colucci framework is to quantify the support payable for every year from the start date support is changed.

64This requires the determination of three issues:

a) What income, if any, should be imputed to the father starting on January 1, 2017?
b) What years is Sharya eligible to receive support?
c) Did the guidelines approach become inappropriate when Sharya turned 18 years old, and, if so, what support is appropriate?

4.2 Legal principles for imputing income

65Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

66The mother is not seeking to impute income to the father based on his intentional unemployment or underemployment. Rather, she is asking the court to determine his actual income for support purposes. She claims that he has hidden income sources, earns unreported cash income and has likely deducted personal expenses from his business income.

67The jurisprudence for imputation of income in these circumstances sets out the following:

a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

b) The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 , [2009] O.J. No. 1552 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

c) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

d) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O’Connor, [2006] O.J. No. 1660 (Ont. Fam. Ct.).

e) The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur expense to understand it. See: Reyes v. Rollo.

f) A review of the caselaw respecting business deduction claims reveals a general theme that in determining whether expenses should be added back into a parent’s income for child support purposes, an important consideration is whether there is a benefit derived from the business expenses that employed people would have to cover from their personal income. See: Izyuk v. Langley, 2015 ONSC 2409.

g) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583; Drummond v. Richardson, 2024 ONCJ 547.

h) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Prillo v. Homer, 2023 ONCJ 8.

i) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.

j) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373; Prillo v. Homer, supra.

68The above is a non-exhaustive list and as such, the court has discretion to impute income based on other circumstances.

4.3 The evidence and imputation of the father’s income

69The father submits that no income should be imputed to him.

70The father filed his notices of assessment showing the following income:[4]

• 2016 - $7,221
• 2018 - $6,981
• 2021 - $12,327
• 2022 - $11,230

71The applicants asked to impute the father’s annual income at $66,192, starting on January 1, 2017, increasing to $86,365 as of January 1, 2022.

72The mother deposed that the father graduated from an engineering program at Sheridan College in 2005. She said that the father has operated his own business as a satellite dish installer for Bell Canada for many years.

73The mother testified that the father provided her with his bank statements from an RBC account from December 1, 2020 until October 31, 2023. She said the accounts showed deposits as follows:

• 2021 - $66,192
• 2022 - $86,365
• 2023 - $82,301 (for 10 months)

74The mother filed Government of Canada Job Bank listings for lineman technician - telecommunications near Toronto for between $23.40 and $36 each hour. The annual income range for 50 weeks is between $46,800 and $103,680.

75The applicants seek to impute the father’s income, based on his gross bank deposits. This does not take into consideration that the father likely has business expenses.

76The father should have assisted the court by providing meaningful disclosure about these expenses. An adverse inference is drawn against him arising from his failure to do so. In the absence of this disclosure, the court will discount the father’s bank deposits by approximately 33% for expenses, to calculate his net income.

77The court will impute net income of $44,000 to the father starting on January 1, 2017, based on his 2021 deposits. It will increase the imputation of his net income to $58,000 starting on January 1, 2022, based on his higher deposits that year.

78The analysis of the father’s income does not end with this net income determination. It is appropriate in these circumstances to gross-up the father’s income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (Ont. S.C.); Prillo v. Homer, 2023 ONCJ 8.

79The father has reported nominal income to the Canada Revenue Agency (the CRA). This is not credible evidence of his actual income. The father would not continue to operate his business for so many years with such paltry income. He could earn far more as an employee. This informs the court that he is either earning unreported cash income or he is deducting significant personal expenses from his business income.

80The court will gross up the father’s net income based on him declaring net annual income of approximately $12,000. There is no reason to believe that the father will change this pattern of underreporting his income to the CRA.

81Software calculations show that the father’s grossed-up annual income starting on January 1, 2017 is $53,838. The guidelines table amount for one child at this income was $487 each month, starting on January 1, 2017, increasing to $497 each month, starting on November 1, 2017.[5]

82The father’s grossed-up annual income starting on January 1, 2022 is $73,479. The guidelines table amount for one child at this income is $686 each month.

83This imputed income is within the range of what persons in the father’s line of work are earning.

Part Five – Entitlement to child support

5.1 Positions of the parties

84The applicants submit that Sharya has remained eligible for support under the Act, even when she was out of school from September 2023 until February 2025, because she was unable to withdraw from her parents’ charge by reason of disability.

85The father submits that his child support obligation for Sharya terminated as of August 31, 2023 because this is when she withdrew from parental control by leaving the home of the maternal grandmother. Sharya was 18 years old at that time.

86These are two different issues. The first asks whether Sharya has the ability to withdraw from her parents’ charge – is she capable of doing this? The second asks if she has actually voluntarily done this.

87Section 31 of the Act sets out a parent’s obligation to support a child as follows:

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.

(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.

88The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22.

5.2 Was Sharya unable to withdraw from the charge of her parents by reason of disability or other cause?

89The answer to this question is no.

90In Karnes v. Reid, 2023 ONCJ 167, the court made the following observations about entitlement for support for an adult child:

1. In Jefic v. Jefic (Grujicic), 2022 ONSC 7240, Madsen, J reviewed the jurisprudence relating to adult children unable to withdraw from parental charge as a result of disability or illness. The court noted that being under parental charge includes consideration of whether the child remains financially dependent on a parent. It also includes consideration of whether the child is unable to manage daily living without the consistent and direct monitoring, care and support of a parent.

2. There must be evidence regarding the nature of the disability or illness and specifically, how that results in an inability to withdraw from parental charge or to obtain the necessities of life. That an adult child is in receipt of disability benefits through government or other assistance may be relevant to whether the child is able to withdraw or obtain the necessities, but it is not determinative. However, a child who can meet his or her economic needs may remain eligible for support if he or she continues to require daily caregiving of a parent. In that circumstance, entitlement to child support will be shown and the question is the quantification of child support, if any, in the circumstances.

3. A party who wishes to have her medical condition taken into account as a basis that she cannot work bears the onus to establish material disability. That goes beyond testifying that she suffers from depression and anxiety: she must establish the extent of her condition disables her from work. This onus cannot ordinarily be discharged solely on the basis of the party’s testimony. See: Geishardt v. Ahmed, 2017 ONSC 5513.

4. The adult child has an obligation of remediation – to use their best efforts to become self-supporting.

91In Sheridan v. Schultz, 2024 ONSC 4393, the court set out that just because an adult child receives a disability tax credit does not mean they are unable by reason of their disability to withdraw from the charge of their parents. It is just a factor to consider.

92The same reasoning should apply when a child receives ODSP. It is just a factor for the court to consider.

93Here, Sharya is attending Humber College. She has a career goal. By necessity, she is not living with her parents. She is living in a shelter, going to school and stated that she visits her mother in the Assisted Living Facility almost daily. It is a two-hour round trip. She is capable of withdrawing from the charge of her parents and living independently.

94Sharya’s claim for continued entitlement based on being unable to withdraw from the charge of her parents due to her disability or other cause fails. Clause 31 (1) (c) of the Act does not apply to her.

95Sharya’s education at Humber College for the 2023/2024 school term never got off the ground. She left school very shortly after the school term started. The court finds that Sharya’s claim for entitlement for support, even for September 2023, does not fit within clause 31 (1) (b) of the Act – she was not enrolled in a full-time program of education.

96The court will terminate the existing support order effective August 31, 2023.

97However, the support analysis does not end there. The applicants submit that Sharya’s entitlement to support revived when she returned to school in February 2025. The father argued that it has not revived, as Sharya has voluntarily withdrawn from parental control. In the alternative, he submitted that Sharya is not in a full-time program of education.

5.3 Has Sharya voluntarily withdrawn from parental control?

98The answer to this question is no.

99A child is entitled to support, unless he or she voluntarily withdraws from parental authority. The defence of withdrawal from parental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control. See: Haskell v. Haskell and Letourneau; Ball v. Broger, 2010 ONCJ 557; Williams v. Archer, 2024 ONSC 4370.

100Courts have noted that family dynamics are complex and have often been cautious in finding that a child has voluntarily withdrawn from parental control. See: Jamieson v. Bolton and Bolton, 1994); Ball v. Broger, supra; Williams v. Archer, supra.

103The court finds that Sharya has not voluntarily withdrawn from parental control for the following reasons:

a) She would still be living with the mother, if not for the mother’s severe disabilities that have required her to live in an Assisted Living Facility. Sharya is now living in a homeless shelter. This is involuntary.
b) She left the maternal grandmother’s home shortly after her mother was moved into the Assisted Living Facility due to what she described as a toxic relationship with the maternal grandmother. She claimed the maternal grandmother was physically and emotionally abusive to her. The maternal grandmother told her she could no longer live there.
c) She is estranged from the father. He has not provided her with emotional or financial support. Living with him is not a viable alternative.
d) She remains very close with her mother. It is admirable that she travels two hours daily to spend time with her. They eat dinner together. She is a secondary caregiver for the mother.
e) The mother provides emotional support for her. This is very important given Sharya’s disabilities and emotional challenges and the turmoil in her life.
f) The mother has also continued to financially support Sharya to the best of her ability. She paid for her application to Humber College.

5.4 Was Sharya’s entitlement to support revived when she returned to school in February 2025?

[104] In their paper, Child Support for Adult Children in Canada: When Does Childhood End? 2023) Entitlement to support was suspended and revived after a 16-month school hiatus by this court in MacLean v. Taylor, 2014 ONCJ 449.
b) Entitlement to support was terminated and revived after a 14-month school hiatus in Stephenson v. Thomas, 2014 ONCJ 669.
c) In Bishop v. McKinney, 2015 ONSC 5565, the father’s obligation to pay child support was suspended following the daughter’s graduation from high school but resumed following her enrollment at university a year and a half later.
d) In R.J. v. T.J., 2021 ONCJ 137, the adult child had an 8-month hiatus from school. It was agreed that there should be no support payable for that period.
e) Support was revived when there was a two-year gap for a 21-year-old child in Haley v. Haley, [2008] O.J. No. 293 (SCJ).
f) In Rodriguez v. Bell, 2024 ONCJ 3012, this court terminated child support for a 20-year-old child who had left school and revived it when she returned to school 15 months later.

107Each fact situation must be analyzed carefully. Specifically, the time that the adult child was out of school must be considered. See: Lawless v. Asaro.

108The court does not have to make a binary choice between approach number one and approach number two. The court has the discretion with an adult child to determine that the guidelines approach is inappropriate and order a different amount if it finds the adult child remains eligible for support during a gap year. This would be approach number three.[6] The authority to do this is set out in subsection 3 (2) of the guidelines that reads as follows:

Child the age of majority or over

(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.

109The court finds in the particular circumstances of this case that the fairest approach to take is approach number two for the following reasons:

a) As of August 31, 2023, Sharya was no longer eligible for support pursuant to subsection 31 (1) of the Act. She was not a minor, not enrolled in a full-time program of education and she had no illness, disability or other cause that made her unable to withdraw from the charge of her parents.
b) Sharya was going through a tumultuous period in her life. She is very close with her mother. Her mother had just been moved into an Assisted Living Facility. She was distressed by this. This was exacerbated by her very poor relationship with the maternal grandmother. The maternal grandmother required her to leave her home.
c) Sharya could no longer go to school. She had little support. She moved to Barrie and then to a homeless shelter. She had to deal with her own emotional issues and this court case.
d) The gap period in Sharya’s schooling (about 16 months) is within the range of other cases where support has been revived for adult children.
e) Sharya should be encouraged to follow through with her career plan. She needs financial support from her parents to do this. Sharya needs stable housing.
f) The father has been derelict in his support obligations for Sharya. This is a time for him to step up as a parent and assist her.

110The father submitted for the first time in his Statement of Fact and Law that Sharya is not entitled to support because she is not in a full-time program of education. The court disagrees. Most courts take a flexible view of what constitutes a full-time program of education. A full-time program does not necessarily mean full-time attendance at school. A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program’s purposes and objectives. See this court’s review of the jurisprudence in Vohra v. Vohra, 2009 ONCJ 135; Simone v. Van Nuys, 2021 ONCJ 652; MacEachern v. Bell, 2019 ONSC 4720.

111Sharya is taking a course load that takes into account her disabilities. She attends school for half-days on Mondays and Thursdays and for the full day on Wednesdays. Given her circumstances, the court finds that Sharya’s participation in her education program is meaningful and consistent with the program’s purposes and objectives. She is commended for returning to school. She should be supported in this endeavour by her father, including financially. The court finds that she is in a full-time program of education.

112Sharya’s entitlement to child support is revived effective February 1, 2025.

Part Six – Is the guidelines approach inappropriate for Sharya?

113The court must consider subsection 3 (2) of the guidelines and determine whether the guidelines approach is inappropriate.

114An adult child’s receipt of ODSP in itself is sufficient to find that the guidelines approach is inappropriate. The Ontario Disability Support Program reflects society’s commitment to sharing financial responsibility for adults with disabilities. The assumption of some responsibility by the state and the child’s receipt of income supports make the table approach inappropriate. These circumstances change the equation and call for the calculation to be based on the child’s unique condition, means, needs and other circumstances, including their receipt of ODSP and the ability of the parents to contribute to their support. See: Senos v. Karcz, 2014 ONCA 459.

115The court finds that the guidelines approach in this case is inappropriate. Sharya is in receipt of ODSP of $8,400 per annum and student grants of $4,617.

116Sharya did not work when she was out of school. Ordinarily, the court expects adult children to work and contribute to their support. However, this case has unique circumstances. Sharya is a secondary caregiver for the mother. Her love and devotion to the mother is commendable. This is time well spent and a good reason not to be working. Further, Sharya also has disabilities and has been through emotional turmoil. At this point, the court has no expectation that she be employed. She should concentrate on her education and her mother.

117Sharya set out that her tuition and books will cost about $2,500 this year. She stated that her monthly expenses are about $400 for food, $120 for transportation, $50 for internet and $35 for phone. She should also have monthly expenses for clothing and supplies. The court estimates her present monthly expenses are about $1,000.

118On the surface, it appears Sharya’s monthly financial needs are being met by her ODSP payments and student grants. However, this does not account for her housing. She has had to live in a homeless shelter because she cannot afford housing. Sharya hopes to obtain rent-to-geared income housing. However, it is unknown when, or if, she can obtain this. She is only permitted to stay in the homeless shelter for one year. That time is coming to an end. Sharya requires financial support to assist her in obtaining housing and some stability.

119In these circumstances, the court will order that the father pay Sharya $600 each month for support. He will not be required to pay any additional expenses for her.

Part Seven – Who should the support be paid to?

120The applicants jointly request that support found owing prior to September 1, 2023 be paid to the mother and that support ordered after that date be paid directly to Sharya.

121The court has the authority to order that support payments be made directly to an adult child. See: Douglas v. Douglas, [2013] O.J. No. 2089 (OCJ); MacEachern v. MacLeod, 2014 CarswellNS 499 (S.C.).

122Requests for direct payments to a child are usually made by payors. Here, we have the applicants jointly requesting this. The unusual circumstances of this case have been set out. There is a clear demarcation point, being September 1, 2023, when the mother went into an Assisted Living Facility, where it makes sense to grant the relief requested by the applicants.

Part Eight – How should arrears be paid?

123The arrears arising from this decision will be substantial.[7] The court will permit the father to pay these arrears at the rate of $400 each month, starting on April 1, 2025. However, if he is more than 30 days late in making any arrears payments or ongoing support payments, the entire amount of arrears then owing shall immediately become due and payable.

Part Nine – Conclusion

124A final order shall go on the following terms:

a) The existing order shall be changed as follows:
    i) Starting on January 1, 2017, the father shall pay the mother child support of $487 each month, increasing to $497 each month, starting on November 1, 2017. These are the guidelines table amounts for one child, based on the father’s imputed annual income of $53,858.
    ii) Starting on January 1, 2022, the father shall pay the mother child support of $687 each month. This is the guidelines table amount for one child, based on the father’s imputed annual income of $73,470.
    iii) The child support payments terminate as of August 31, 2023.

b) Starting on February 1, 2025, the father shall directly pay Sharya child support of $600 each month. He shall not be required to contribute to any of her other expenses.

c) The father shall pay the arrears created by this order at $400 each month, starting on April 1, 2025. The arrears owing to Sharya shall be paid first.

d) If the father is more than 30 days late in making any arrears payments or ongoing support payments, the entire amount of arrears then owing shall immediately become due and payable.

e) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or GST/HST refunds), lottery or prize winnings or inheritances.

f) Sharya shall advise both the father and the Director of the Family Responsibility Office when she stops attending full-time post-secondary education.

g) The Director of the Family Responsibility Office is asked to adjust its records in accordance with this order. The father is to only be credited with support payments made as reflected in its records.

h) A support deduction order shall issue.

125The applicants are entitled to their costs. If they seek costs, they are to serve and file written submissions by March 31, 2025. They should clearly set out how they want the court to apportion costs between them. They should also advise the court if they want the costs to be enforced by the Director of the Family Responsibility Office.

126The father will have until April 14, 2025 to serve and file any written response.

127The submissions should not exceed three pages, not including any bill of costs or offer to settle.

128The submissions should either be delivered to the trial coordinator’s office on the second floor of the courthouse or emailed to the trial coordinator.

Released: March 17, 2025

Justice Stanley B. Sherr

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.

Footnotes

1. 1Subsection 3 (1) of the guidelines sets out that the guidelines approach is the table amount plus the amount, if any, determined under section 7.
2. 2See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:
3. 3See: Michel v. Graydon, 2020 SCC 25.
4. 4The court did not receive the father’s notices of assessment for 2017, 2019, 2020 and 2023.
5. 5The software calculations will be attached to this decision. The guidelines table amounts changed on November 1, 2017.
6. 6The court will not take this approach in this case. However, it is an option for lawyers and courts to consider in the appropriate circumstances.
7. 7The applicants did not provide the court with a Statement of Arrears from the Director of the Family Responsibility Office. The court cannot do a precise calculation of the arrears owing resulting from the terms of this order.