ONTARIO COURT OF JUSTICE
BETWEEN:
Geraldine Tan
Applicant
— and —
Jean Paul Sanchez Rondilla
Respondent
Before Justice Sheilagh O’Connell
Heard: August 25 and September 19, 2025
Reasons for Judgment: February 19, 2026
Geraldine Tan.................................................................................................. Acting in person
Jean Paul Sanchez Rondilla………………………………………….... Acting in person
1. Introduction:
1This focused hearing is about the applicant mother’s claims for a retroactive contribution to the children’s special and extraordinary expenses under section 7 of the Child Support Guidelines (the “section 7 expenses”) as well as ongoing child support and section 7 expenses for one adult child.
2The parties had three children. Their youngest child (Juan) died tragically in July of 2022 when he was 17 years old. The oldest child (Jan) is 25 years old and completed her first university undergraduate degree in 2022. She is now working full-time and no longer entitled to ongoing child support. The middle child (Jian) age 21, is currently a full-time student and completing her final year of a four-year undergraduate university degree.
3On January 31, 2023, following the mother’s motion to change an earlier final order, Justice Jennifer Hoshizaki made a final order on consent of the parties that the father pay ongoing child support for Jian. Retroactive child support arrears owed by the father for all three children were fixed at $29,099.00 as of January 31, 2023.
4The parties were unable to resolve the issues of the father’s retroactive and ongoing contribution toward the children’s section 7 expenses. At a subsequent hearing before Justice Evelyn Baxter, the court dismissed the mother’s claims but gave the mother an opportunity to bring a fresh application regarding the issues, leading to this trial.
The Orders Sought by the Mother:
5In addition to the usual orders such as costs, pre-judgment and post-judgment interest, the mother seeks the following orders, as summarized below:
a. an order requiring the father to pay the mother the amount of $146,241.36 in retroactive section 7 expenses, which she submits is the father’s proportionate share of the retroactive section 7 expenses that she paid for the children from the years 2015 to 20241. She requests that the amount owing be paid in instalments of $2,008.34 each month until paid in full, commencing forthwith.
b. an order that the father pay the mother a lump sum of $15,703.19, for their youngest child’s funeral expenses as a section 7 expense, to be payable within 60 days of any order, which she states is his proportional share of the expenses paid.
c. an order that the father continue to pay the ongoing table amount of child support to the mother for Jian under the Final Order of January 21, 2023, but adjusted to his current income.
d. in addition to the ongoing child support above, an order that the father pay the mother the ongoing section 7 expenses towards Jian’s post-secondary education until graduation in June of 2026. The mother requests that the father’s contribution be paid in instalments in the amount of $1,786.00 per month, according to the mother’s calculations.
e. an order directing the father to maintain an independent health plan for so long as child support is owing and that he direct his insurance provider to issue any reimbursement for health expenses directly to the mother.
f. the mother also requests an order that the father irrevocably designate and maintain the Jian as the sole beneficiary of the father’s life insurance policy for so long as he is obligated to pay child support and arrears.
g. an order directing that the surviving children receive any retroactive and prospective child support owing if the mother predeceases the father before any amounts are paid in full.
The Orders Sought by the Father:
6In his answer-claim, the father requests that the mother’s claim for retroactive section 7 expenses to the year 2015 be dismissed. He asserts that the expenses claimed by the mother are not valid section 7 expenses and were already denied by previous courts.
7Alternatively, should the father be ordered to pay any section 7 expenses, including Jian’s ongoing post-secondary expenses, then he seeks an order that the table amount of ongoing child support for Jian be terminated because she is now an adult and is no longer residing with the mother.
8The father also claims undue hardship. He asserts that he cannot reasonably afford to pay both ongoing child support and any contribution towards section 7 expenses given his financial circumstances.
9The father further requests that if he is ordered to pay any section 7 expenses, then any order should only be retroactive to September of 2023, and payable at a rate of $100.00 per month.
10Regarding the children’s post-secondary expenses, it is the father’s position that the children received considerable grants, student loans and other sources of income that were sufficiently substantial to meet the children’s post-secondary expenses.
11Finally, the father seeks an order that any child support or section 7 expense payments should be directly deposited to the adult child’s personal bank account.
2. Issues:
12The issues in this hearing are:
a. Does the father owe the mother any retroactive contribution to the children’s section 7 expenses?
b. If the father does owe the mother any retroactive payment towards section 7 expenses for the children, what is the presumptive start date for the contribution? In determining this date, the court must determine the dates of formal notice and effective notice of the mother’s claims.
c. If the father is ordered to make a retroactive contribution to the children’s section 7 expenses, how should this be calculated, in particular, any contribution to the children’s post-secondary expenses?
d. Should funeral expenses for a child be considered a section 7 expense? If so, what, if any, should the father’s contribution to those expenses be?
e. Should the father contribute to the Jian’s current and ongoing section 7 expenses, in particular, her post-secondary expenses, and if so, how should this be calculated?
f. Should the ongoing table amount of child support under the existing order for Jian be terminated if the father is ordered to contribute to her post-secondary expenses?
g. Is the level of child support under the existing order inappropriate for any year that Jian is eligible for child support as an adult child attending university?
h. Does the father have an undue hardship claim that would reduce or eliminate any arrears that may be owing?
3. Brief Background Facts:
13The parties were married in the Philippines in 1999. Their three children were born there in 2000, 2004, and 2005. The parties and the children immigrated to Canada in 2012 and settled in Kenora, Ontario. The children were 12, 7, and 6 years old when they arrived in Canada.
14The mother was a medical doctor in the Philippines. The father was a teacher with a Ph.D. in philosophy.
15Following their arrival in Canada, both parents found employment and enrolled in college diploma courses to become trained as personal support workers (“PSWs”).
16In 2012, they both obtained employment as PSWs in the District of Kenora Home for the Aged, a long-term care home, where the mother continues to be employed today.
17The parties separated in March of 2013, less than one year after their arrival in Canada. The father left the family home in Kenora and re-located to Toronto to cohabit with Ms Alma Reyes, his current spouse.
18The mother was the primary caregiver for all three children after the separation. The father saw the children sporadically when he visited Kenora after the separation and when the children visited their father in Toronto when they were older.
19The mother is now 51 years old. She became a Registered Practical Nurse (RPN), having re-trained and upgraded her Canadian qualifications in 2016. She continues to live in Kenora. The mother’s current employment income as an RPN is $65,58.68, according to her most recent sworn Financial Statement filed shortly before trial.
20The mother was on a medical leave in 2017 for a work-place injury, and her income was significantly reduced during that time while she received WSIB benefits.
21The mother had further serious medical health issues in 2018 and 2019 requiring surgery and rehabilitation. She was on an unpaid bereavement leave in 2022 following the death of the parties’ son. The mother worked modified hours during this time and continues to receive some workplace accommodation, although at the time of trial, she was moving to full-time hours.
22The father is also 51 years old. He is now a manager of baggage system operators for the Greater Toronto Airports Authority (“GTAA”) at Pearson International Airport. His current employment income is $82,608.96, according to his most recent sworn Financial Statement filed shortly before trial.
23After relocating to Toronto, the father worked at a number of different positions before becoming permanently employed by the GTAA at Pearson Airport. The father started in entry level positions before moving into his current managerial position.
24The father continues to live in Toronto with his spouse Ms Alma Reyes, who is employed at the Maple Leaf Lounge for Air Canada, also at the Pearson airport. According to the father’s sworn financial statements filed, Ms Reyes’ yearly income has been between $49,805.25 and $42,062.34 between 2015 and 2023. Her income at the time of trial was approximately the same, according to the father.
25During the trial, the father admitted that he and his spouse also receive room and board income from the daughter of a friend, who rents a room in their apartment. The father was not able to provide the exact amount that he and Ms Reyes receive but stated that it was approximately $500.00 per month. He stated that his spouse takes care of these arrangements. The father has no other dependants.
26The mother has not re-partnered. The parties’ oldest daughter Jan, now 25 years old, lives with the mother in Kenora and is working full time, having obtained her first undergraduate degree in 2022 at the University of Toronto. Although Jan is employed, the mother permits Jan to live rent free so that she can focus on repaying her accumulated student loans and saving for post-graduate studies.
27The parties second child, Jian, is 21 years old. She is in her final year of a four-year nursing degree at Trent University in Peterborough, Ontario. According to the mother, Jian continues to live at home in Kenora during the school breaks, while maintaining her rented room in Peterborough for the school year. Jian also intends to eventually pursue post-graduate studies after repaying student loans and saving for future tuition.
28On July 5, 2022, the parties’ youngest son tragically drowned. He was 17 years old at the time. Jian’s death understandably has had a profound and lasting impact on both parents and their surviving children. It was very evident during the trial that both parties continue to deeply grieve the loss of their son.
4. Court History:
29The parties have been engaged in litigation since 2013. There have been three family court proceedings: the mother’s first application for custody and child support in 2013; the mother’s motion to change the final order in 2022; and this application commenced by the mother in 2023.
30The litigation history is important as it is relevant to the issues of effective and formal notice under Colucci when considering the mother’s retroactive claim for section 7 expenses.
The Mother’s First Application:
31On April 4, 2013, the mother commenced her original application for custody (as it was then known) and child support after the parties were unable to resolve their issues by way of a separation agreement.
32On July 17, 2013, Justice Donald Fraser made temporary orders granting the mother sole custody of the children and ordered the father to pay temporary child support based on an income imputed to him of $30,000.00.
33On November 12, 2023, Justice David Gibson made final orders on consent granting the mother sole custody of the children and the father unsupervised day access in Kenora, on 30 days’ notice. Justice Gibson also ordered the father to provide financial disclosure and adjourned the issues of child and spousal support to trial.
34On March 25, 2014, Justice Jennifer Hoshizaki presided over the trial of the issues of child and spousal support. Both parents testified and Justice Hoshizaki released her written Judgment on May 1, 2014.
35At trial, on a final basis, Justice Hoshizaki imputed annual income to the father in the amount of $30,000.00 for the purpose of determining child and spousal support. As set out in her written reasons, the court determined this income based on the father’s employment income as a Personal Support Worker in the Kenora long-term care home, a position that the father voluntarily left when he moved to Toronto to reside with Ms Reyes.
36Justice Hoshizaki therefore ordered that the father pay ongoing child support to the mother in the amount of $591.00 per month, which is the table amount for three children under the Child Support Guidelines based on the income imputed.
37Justice Hoshizaki also ordered that the father pay spousal support to the mother in the nominal amount of $50.00 per month until the mother obtained full-time employment or until December 31, 2015, whichever comes first. According to her reasons, Justice Hoshizaki made the nominal order if the father’s financial situation changed in the future.
38At trial, Justice Hoshizaki also considered the mother’s claim for the children’s section 7 expenses. In considering the section 7 claim, Justice Hoshizaki found the following at paragraph 11 of her Judgment:
“[11] The request for a contribution to the extra-curricular activities of the children is denied. These are not s. 7 extraordinary expenses considering the cost of the expense, the activities themselves, and the financial means of the parties.”
39Justice Hoshizaki also made an order for annual financial disclosure that provided that “the payor and the recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 25.1 of the Child Support Guidelines.”
The Mother’s Motion to Change dated January 4, 2022:
40On January 4, 2022, almost eight years later, the mother commenced her motion to change the support and section 7 provisions of the May 1, 2014 Final Order granted by Justice Hoshizaki. By this time, Jan and Jian, the two older children, were now attending university and Juan was finishing high school.
41The mother sought among other relief, increased table amount of child support, both retroactive and ongoing, one-half of the retroactive and ongoing section 7 expenses for the children retroactive to 2015, as itemized in her motion to change, including contribution to the retroactive and ongoing post-secondary expenses for Jan and Jian.
42The mother’s calculation of the father’s retroactive contribution to the children’s section 7 extraordinary expenses at that time was $47,506.71, which she calculated as one-half of the after-tax costs of extraordinary expenses for the children from January 1, 2015 to May 31, 2022.
43Based on the notices of assessments provided by the father during the motion to change hearing, it was clear that his income had significantly increased following the May 2014 Final Order, although there was no corresponding increase in child support paid. The FRO Statement of Arrears filed as an exhibit in this trial also demonstrated that in addition to any retroactive adjustment to table support owed by the father, he was also in significant arrears of the support owed under the 2014 Order for several years.
44The first substantive case conference on the motion to change did not occur until September 21, 2022. This delay was understandably due to the tragic death of the parties’ youngest child in July of that year. At the September case conference, on consent of the parties, Justice Peter Bishop adjusted the table amount of ongoing child support to reflect the increase in the father’s income.
45On October 4, 2022, Justice Pieter Joubert ordered that the father make complete financial disclosure from 2015 to present, to be served and filed no later than November 24, 2022. He further ordered, on consent, that the father pay $200.00 per month to the Family Responsibility Office towards child support arrears, with “the money to be held by the Director pending a final determination of the child support arrears” owing.
46On December 21, 2022, the mother brought a motion seeking a temporary order that the father contribute to the section 7 post-secondary expenses for the two older children, Jan and Jian, now both in university. The motion did not proceed. However, according to the Endorsement dated December 21, 2022, Justice Lawrence Klein provided instructions to the mother on how to frame her section 7 claims moving forward.
47On January 31, 2023, the matter returned before Justice Hoshizaki for a settlement conference. On consent of the parties, Justice Hoshizaki made a final order fixing the ongoing table amount of child support for Jian at $727.00 per month, effective January 1, 2023, based on an imputed income to the father of $78,000.00, in accordance with the Child Support Guidelines.
48The parties also consented to a final order fixing the table amount of retroactive child support and arrears owed by the father for all three children at $29,099.00 as of January 21, 2023, payable at a rate of $200.00 per month.
49Justice Hoshizaki directed that the outstanding issues of section 7 expenses, the manner of the re-payment of the arrears of child support owing, and spousal support shall be scheduled for a one-day focused hearing to be set by the trial coordinator.
50On April 21, 2023, Justice Evelyn Baxter presided over the focused hearing of the remaining issues in the motion to change. Following the hearing on that day, Justice Baxter made the following final order:
The final order of Justice Hoshizaki dated May 1, 2014 shall be vacated and replaced with the final order of Justice Hoshizaki dated January 31, 2023.
Paragraph 4 of the Final Order dated January 31, 2023 regarding payment of arrears of child support owing is amended to add: “In the event that Mr. Rondilla is more than 30 days late in the repayment of child support arrears, the full amount of arrears then owing shall become immediately due and payable in full.
The claim of retroactive and prospective spousal support is dismissed, for the reasons given.
The claim of section 7 expenses is not properly brought in this Motion to Change and will not be considered and is therefore dismissed.
The father shall pay costs owing to the mother in the amount of $500.00 payable forthwith.
51In her written endorsement, Justice Baxter dismissed the mother’s section 7 claims on procedural grounds and stated that the mother will have to bring a fresh application.
52Justice Baxter further indicated in her endorsement that if the mother decides to bring an application, then it should be in keeping with the guidelines set out in Colluci v. Colluci, 2021 SCC 24.
The Mother’s Fresh Application for Retroactive and Ongoing Section 7 Expenses:
53On September 12, 2023, the mother commenced this fresh application, as amended on June 11, 2024, regarding the retroactive and ongoing section 7 expenses, in accordance with the court’s direction.
54On January 1, 2024, Justice Joubert granted a request for an order for substituted service of the application on the father, effective immediately.
55On July 17, 2024, Justice Jane Caspers heard the first appearance on the mother’s application. The case was then adjourned over the next several months for a settlement conference on multiple occasions by several different judges.
56On January 22, 2025, Justice Caspers conducted the settlement conference and expressed a judicial opinion regarding resolution to the parties, according to her endorsement. The parties were unable to resolve the issues, and the court directed that a Trial Management conference be scheduled before her on February 28, 2025.
57On February 28, 2025, Justice Caspers conducted the trial management conference, and gave detailed written directions for trial, including service and filing deadlines. The case was adjourned to May 28, 2025 to confirm filing deadlines and fix trial dates.
58On May 28, 2025, the trial was scheduled and heard over two days on August 25, and September 17, 2025.
5. The Trial:
59Only the mother and father testified at trial. The court relied upon the parties’ affidavits and sworn financial statements filed as their direct evidence, subject to cross-examination. Both parties filed updated financial statements just before trial and were permitted to file additional documents during the trial. They were permitted to give additional oral evidence, also subject to cross-examination at the trial.
60The trial documents filed were voluminous. The mother’s trial record was 869 pages in length. The father’s supplementary trial record was 61 pages.
61The mother also provided the original receipts for the section 7 expenses claimed for review by the trial judge, in accordance with Justice Caspers’ direction during the trial management conference. These documents were also voluminous. The court reviewed all the documents carefully.
62The relevant evidence will be summarized below.
The Mother’s Evidence:
63It is the mother’s evidence that when the parties first separated, she asked the father to enter into a separation agreement to address parenting, child support and section 7 expenses. The father refused to pay support and refused to negotiate, so she commenced the initial application in 2013.
64In the initial application the mother sought section 7 expenses for all three children for their extra-curricular activities. The mother acknowledges that Justice Hoshizaki denied the claim at that time given the cost of the activities and the limited financial means of the parties, thereby not meeting the test for extraordinary expenses set out under section 7 of the Guidelines.
65However, as the children got older, new expenses arose, including the two oldest children’s post-secondary expenses, as they both prepared for university. Juan also became involved in competitive hockey in high school, and Jian became more involved in figure skating.
66The mother stated that she repeatedly asked the father to contribute to the children’s expenses, sometimes multiple times a year. The mother provided many examples of the texts and emails that she sent to the father, with receipts attached, in her evidence, starting on September 19, 2015, approximately one year after the final order. Some examples are as follows:
a. On September 19, 2015, the mother sent the father an email requesting contribution towards Juan’s hockey expenses and Jian’s figure skating lessons with the invoices attached from the Lake of the Woods Minor Hockey and the Kenora Skating Club, totaling $1,078.75.
b. On February 2, 2016, the mother sent the father a message requesting that the father start contributing to an RESP for the children, to start preparing for their post-secondary expenses. The father replied by saying “I don’t have money to save.”
c. On February 4, 2016, the mother sent a further email to the father requesting contribution towards the children’s swimming lessons, and the youngest child’s field trips, for a total cost of $140.00 ($105.00 for the field trip and $35.00 for the swimming lessons).
d. On May 17, 2017, the mother sent a further message to the father detailing a breakdown of the children’s expenses and asking for contribution. Some of these expenses included toiletries and meals, however the mother stated that the purpose of this email was to demonstrate to the father that the basic child support he was paying was not sufficient to cover these expenses.
e. On September 5, 2018, the mother sent an email to the father requesting contribution to Jan (the oldest child’s) dental expenses not covered by the mother’s insurance and her post-secondary expenses.
f. In the September 5, 2018 email, the mother asked the father for help regarding the oldest child’s university expenses: “Are we going to talk about Jel’s [nickname for Jan] post-secondary expense or are you gonna continue ignoring this topic?”
g. On June 27, 2019, September 18, 2019, October 17, October 18, 2019, the mother sent further messages to the father requesting his contribution to Jan’s post-secondary expenses, as well as further requests for contribution to the younger children’s back to school supplies and fees and Juan’s volleyball tournament in Dryden, which required overnight accommodation and food costs.
67The mother states that she also asked the father on multiple occasions to provide financial disclosure, in accordance with the final order and to adjust his child support. The father first provided his T-4 slip in 2016 but would not provide his notices of assessment or income tax returns.
68In the following years, before the mother went back to court, the father delayed providing his T-4 slips, by providing batches every two to three years. For example, the mother testified that she did not receive the father’s T-4 slips for 2017 and 2018 until 2020.
69The mother states that despite her repeated requests, the father would not provide his notices of assessment or income tax returns. As a result, the mother sent the father a “formal” email on March 30, 2020 requesting that he provide her with his income tax returns and notices of assessment from 2014 to present.
70In her email, the mother reminded the father of his obligation to disclose his income annually in accordance with section 25.1 of the Child Support Guidelines as set out in Justice Hoshizaki’s order. The mother set section 25.1 in full.
71A copy of the mother’s March 30, 2020 email was filed as evidence in this trial, and reads, in part, as follows:
“Notice of Assessment Request
This is a letter of request that you provide me all the Notices of Assessment (NOA) and Income Tax Returns from the time the court order was made (May 2014) as soon as possible and the most recent year (2019) once it’s available.
I have made multiple requests of your proof of income for the past years but you persistently refused to provide me your tax return and notice of assessment despite my reminder that you are obligated as per court order. You argue that the T4 is the same as the NOA, which I explained that it is not. That you refused to provide me your Notice of Assessment and just have me about 3 years of your T4 and just recently sent me the T4 for 2017 and 2018.
This is to remind you that the final court order states you are obligated to disclose your income in accordance with the Section 25.1 of the child support guidelines. It states:…..[section 25.1 stated in full].”
72This written request was filed in evidence and is not disputed by the father.
73The mother sent a follow up request to the father on April 8, 2020. The father responded to the April 8, 2020 request by text and stated that he was “still looking for the 2014 NOA…I’m out of work…got laid off.”
74On April 15, 2020, the father provided the mother with his notices of assessments from 2013 to 2019, for the first time, in two separate batches. However, he did not provide her with his income tax returns. The mother again requested his income tax returns. The father did not produce them.
75Upon disclosure of the notices of assessment, the mother discovered that the annual income set out in the father’s notices of assessment was higher than the t-4 slips that he had disclosed earlier disclosed in 2020.
76In 2021, the mother retained a lawyer to negotiate an adjustment to the ongoing child support and the father’s contributions to the children’s section 7 expenses. On May 20, 2021, the mother’s lawyer sent a letter to the father, requesting a review and resolution of the child support and section 7 issues, as well as obtaining a divorce.
77The lawyer’s correspondence dated May 20, 2021 was also filed in evidence and not disputed by the father. The father testified that he responded to the letter shortly after receiving it.
78According to the mother, although the father responded initially to the lawyer’s letter and stated that he would cooperate, he then ignored all future correspondence from the lawyer.
79The mother attached letters from her lawyer, dated August 31, 2021 and October 1, 2021, advising her that he had received no further response from the father, despite following up with him in writing requesting a response to previous correspondence. Shortly thereafter, the mother commenced her motion to change on January 4, 2022.
80Following the conclusion of the motion to change, before starting this application, as directed by the court, the mother sought mediation with the father through the court- based mediation services in Kenora. This mediation proved unsuccessful.
81The mother’s trial record for this application included very detailed charts of the expenses that she incurred for the children, which she claims are section 7 expenses, date back to 2015.
82The charts provided by the mother provided an itemized breakdown of the expenses claimed from January 2015 to December 2024. These expenses are summarized below in the following categories:
a. Health insurance premiums and medical expenses for all three children not covered by the mother’s insurance totaling $7,745.21.
b. Primary and secondary school expenses for all three children totalling $8,913.44.
c. Extra-curricular activities for all three children totalling $21,487.95.
d. Jan, the oldest child’s, university (post-secondary) expenses totaling $90,824.70.
e. Jian, the middle child’s post-secondary expenses up to the Fall of 2024, totaling $85,028.46.
Total Expenses between January 2015 to December 2024: $213,999.74.
83The expenses in each category above were further broken down by the mother in the itemized charts provided, with corresponding receipts that were delivered to the court.
84It is the mother’s evidence that the father did contribute to some of her requests regarding the children’s expenses, as follows:
a. In September 2016, the father contributed $50.00 towards the purchase of a hockey stick for Juan.
b. On September 12, 2019, the father e-transferred the mother $350.00 towards half of the children’s school expenses.
c. On October 12, 2019, the father sent a further e transfer of $427.50 to the mother for the children’s school, field trip and out of town tournaments.
85According to the mother, at the time of this trial, the father had provided a total of $827.66 towards the children’s section 7 expenses.
The Father’s Evidence:
86The father asserts that many of the expenses claimed by the mother are not valid section 7 expenses as defined under the Child Support Guidelines. It is his evidence that he was never informed of these expenses until after they were incurred, nor was he provided with valid receipts prior to any of them being incurred by the mother.
87It is the father’s evidence that he exerted his utmost efforts to provide support for his children and did as much as he could, despite being under serious financial strain, including working menial jobs, being laid off during the pandemic, and living “paycheck to paycheck”. According to the father, he is currently “neck deep with debts just to survive.” The father states that the mother has not left him to live in peace despite his consistent efforts to provide everything that he possibly could for the children.
88The father stated repeatedly in his evidence and throughout the trial that he has never refused to help his children and described being under enormous financial strain. During the early years after their separation, he states that he was only earning minimum wage and the mother would repeatedly make unreasonable demands for activities and other expenses.
89According to the father, the mother insisted on enrolling the children in hockey, figure skating, and other sports, giving them trips, and purchasing expensive equipment that neither of them could afford and which were well beyond his means.
90The father testified that the money for extra-curricular activities that the mother was asking for had already been denied by Justice Hoshizaki during the 2014 trial. During that trial, the court determined that they were not section 7 expenses given the cost of the activities and the parties’ financial means,
91According to the father, he tried to contribute in any way that he could but he was living “paycheck to paycheck” and his priority was his child support payments. The father also states that he provided the children with phones, game consoles, bicycles, and groceries, however, he never claimed them or kept the receipts for these purchases.
92Given the child support that he had to pay, the additional funds above that he was spending on the children, and his struggle to meet his “daily sustenance”, the father deposed that could not afford to contribute to any activities or additional expenses.
93It is the father’s evidence at this trial that he has “always been up to date with court-ordered payments” and that he “never had any issue with respect to following previous Court orders”, and always paid “voluntary additional child support by e transfer”, and that he was never in arrears of support.
94Regarding the table amount of child support payments, the father testified that he never had any issue with previous court orders. He stated that he has never avoided paying child support and he had no intention to do so. The fact that he owed arrears under the 2014 Order was because the Family Responsibility Office had not updated the Support Deduction Order.
95It is also the father’s evidence that he “inadvertently” failed to send updated child support payments to the mother between 2015 and 2022 because he lacked legal knowledge regarding the process. He states that he never ignored the mother’s repeated correspondence to him but always responded by telling her to bring the matter back to court and to “let the court decide”.
96Regarding the mother’s request for financial disclosure, the father testified that he always sent his tax documents and pay stubs to the mother as soon as they became available. He testified that he has provided Notices of Assessment from 2014 to 2023, T-4s income tax returns, and all other documents requested in these court proceedings.
97The father acknowledged receiving the mother’s email dated March 30, 2020 requesting his notices of assessment and income tax returns and the letter from the mother’s lawyer dated May 20, 2021. He acknowledged the mother’s email dated April 15, 2020 confirming receipt of the father’s notices of assessment at that time.
98The father responded to the lawyer in writing on May 26, 2021. He provided a copy of his response in his trial evidence. The father stated that he wanted to cooperate with the lawyer in resolving the matters “in the best possible way” and looked forward to “further coordinating” but noted that he “had been permanently laid off since April 6, 2020 and still haven’t found employment as of writing.” The father did not provide any evidence of response to the lawyer’s follow up requests to negotiate.
99Regarding the children’s post-secondary expenses, the father testified that he tried everything to augment his finances to help, but he did not have an RRSP or a savings account, and he could not afford an RESP. He acknowledges the mother asked for help but states that she wanted him to pay unreasonable amounts and he did not have extra money to “dole out at that time.”
100According to the father, given that Jan and Jian had OSAP loans, grants, and other bursaries, and they both worked part-time, they were able to cover their own expenses.
101The father states that he should not be held liable for past section 7 expenses. He denies that he deliberately refused to contribute to the children’s section 7 expenses. He described his financial situation as “precarious” and that he did everything he could to support the children. He has tried to improve himself professionally because it was a promise to his children and that he is doing the best that he can.
102In 2023, the father entered a Consumer Proposal arrangement to address outstanding debt with credit card companies in the amount of $10,920.00, according to his sworn financial statement. The payment schedule for the Consumer Proposal was attached. The father has additional existing credit card debts, legal fees and taxes owed to the Canada Revenue Agency. Payments owed to these debtors are being paid in monthly instalments of $300.00.
103It is the father’s evidence that any additional payments for the children’s section 7 expenses in addition to paying ongoing child support for Jian will cause him undue hardship. He states that the ongoing child support that he now pays, the $200.00 monthly payments towards his child support arrears, and his other debts are more than he can reasonably afford.
104The father describes the mother as “extremely vindictive” since the separation and that she had “alienated” the children from him, although he states that he has been communicating with his daughters since his son passed away, and that they did visit him in Toronto over the years.
105The father described the mother’s requests for financial assistance as “harassment” and that he has been emotional and psychologically distressed because the mother has not let him live in peace despite his consistent efforts to provide everything that he can for the children. He testified that during their son’s funeral, the mother slapped his common law spouse and created a scene, making things very difficult.
The Parties’ Annual Income since 2015:
106By the time of this trial, each party’s annual employment income for the years 2015 to 2024 was not in dispute. During the motion to change proceeding and in this application, the father provided almost all the financial disclosure that the mother had been requesting for several years.
107Both parties provided updated sworn financial statements with supporting documentation and their CRA Notices of Assessment dating back to 2015, in addition to other supporting documentation.
108Both parties admitted that their annual employment and income information from 2015 to 2025, and the father’s proportionate contribution to the children’s section 7 expenses as calculated by the mother.
109The father’s annual income since 2015 is as follows:
a. 2015 - $36,729.62
b. 2016 - $34,649.16
c. 2017 - $41,619.13
d. 2018 - $46,693.53
e. 2019 - $57,041.52
f. 2020 - $41,428.00
g. 2021 - $50,338.82
h. 2022 - $78,507.62
i. 2023 - $87,771.10
j. 2024 - $103,642.00
k. 2025 - $82,608.96
110The father’s total household income from 2015 to 2023 (which includes the income of his spouse Ms Reyes) is as follows:
a. 2015 - $86,534.87
b. 2016 - $81,943.50
c. 2017 - $85,046.99
d. 2018 - $93,873.24
e. 2019 - $106,194.91
f. 2020 - $82,456.55
g. 2021 - $82,061.00
h. 2022 - $120,569.34
111The father stopped reporting Ms Reyes’s income in his sworn financial statements in 2023. It was unclear to the court why the father stopped disclosing Ms Reyes income at that time, although during his testimony he estimated that her income was approximately the same as in previous years.
112Ms Reyes income between 2015 to 2022, according to the father’s sworn financial statement was between $42,000.00 and $49,000.00, with the exception of 2020 when it was approximately $31,000.00.
113The father’s income does not include income that he admitted he and his spouse receive from a boarder who is renting a room in their home. The boarder is a daughter of a friend. According to the father, she pays a minimal amount to the father’s spouse for electricity and groceries “whenever she is there”.
114The father testified during the trial that this money is collected by Ms Reyes and that he was not certain of the amount, nor whether she declared this income on her tax returns. When asked in cross-examination, he testified that it could be around $500.00 per month.
115The evidence establishes that the father and Ms Reyes have been receiving the income from the boarder since at least the summer of 2017, according to texts from the father admitted into evidence.
116The mother’s total income since 2015 is as follows:
a. 2015 - $25,915.00
b. 2016 - $46,193.00
c. 2017 - $48,968.00
d. 2018 - $49,259.00
e. 2019 - $49,820.00
f. 2020 - $43,233.00
g. 2021 - $21,318.00
h. 2022 - $21,958.91
i. 2023 - $13,144.81
j. 2024 - $24,704.67
k. 2025 - $68,874.36
117This was the mother’s total household income until 2022. The oldest child Jan started working full-time in 2022 after she graduated from university, and no longer entitled to child support. The mother did not provide evidence regarding Jan’s income from 2022 to 2025 and her contribution of any to the household. The mother allows Jan to live rent free in the home so that she can focus on repaying her accumulated student loans and save for post-graduate studies.
118The mother’s income was significantly reduced during a three-year period from 2021 for medical reasons documented and following an unpaid leave of absence after the death of her son.
6. Credibility and Reliability:
119The mother was a credible and reliable witness. She provided detailed evidence of events and supported her evidence with very substantial documentation. She provided detailed medical evidence corroborating her health issues during the time period when her employment income was reduced.
120The mother also provided credible undisputed evidence on the issue of financial disclosure, including documentary evidence confirming when she requested same and the father’s response.
121This does not mean that the court accepts that all expenses claimed by the mother meet the legal definition necessary to qualify as a section 7 expense, nor that the mother demonstrated that her retroactive claim should go back to 2015.
122Many of the mother’s section 7 claims were unreasonable and excessive, based on the parties’ financial means and circumstances during the time periods claimed, as will be addressed later in these reasons.
123The father was also a credible and reliable witness on some issues. Once the mother commenced her 2022 motion to change and this application, the court accepts the father’s evidence that he substantially complied with his legal obligations and the court ordered financial disclosure. He made best efforts to comply with the court orders for financial disclosure.
124He fully participated in the 2022 motion to change and this application. He has also complied with the adjusted child support order and the monthly payments towards the arrears of table support ordered by Justice Hoshizaki in 2023.
125However, the father was not credible or reliable on the issue of the financial disclosure that he provided the mother before she commenced her 2022 motion to change.
126The father was also not credible or reliable on the issue of why he significantly underpaid basic child support from 2015 to 2022, a period of seven years, before the mother brought her motion to change.
127The lack of credibility on these material issues was significant.
128The father’s evidence at this trial that he has “always been up to date with court-ordered payments” and that he “never had any issue with respect to following previous Court orders”, and that he “always” paid “voluntary additional child support by e transfer” was misleading and contradicted by significant evidence.
129The father blamed the Family Responsibility Office for past arrears and stated that “the fact that I owe arrears for past years was because the Support Deduction Order was not updated.”
130An updated sworn FRO Statement of Arrears was filed at trial. It is clear from the Statement that from 2013 until 2016, the father was in arrears of the child support ordered by Justice Hoshizaki and the preceding temporary order made by Justice Fraser.
131The arrears under the temporary child support order is pointed out in Justice Hoshizaki’s trial judgment. The total arrears at its highest were $5,229.58 in December of 2014. To his credit, the father paid off those arrears by 2016, according to the FRO statement.
132The father’s evidence regarding his significant underpayment of child support from 2015 to 2022 was very concerning.
133The father’s evidence at trial that he “inadvertently failed” to send updated child support payments for seven years to the mother due to a “lack of legal knowledge” while his income was increasing was simply not credible.
134The father is an educated and intelligent man who has a Ph.D. He fully participated in the 2014 trial and was aware of his obligation to pay child support pursuant to the Child Support Guidelines and to provide annual financial disclosure to the mother. He was aware that Justice Hoshizaki ordered him to provide annual financial disclosure so that his income could be adjusted to reflect any increase in income for child support purposes.
135By 2018, the father clearly knew that his income had significantly increased, and he would therefore need to pay more child support for his children and possibly contribute to section 7 expenses. He chose not to pay it, and instead, according to his own evidence, he repeatedly told the mother to “go back to court”.
136The father’s text messages to the mother in 2019 that he was “barely surviving” when she asked for help in contributing to the children’s post-secondary expenses was untrue, as later revealed by the financial disclosure obtained by the mother in the court proceedings.
137Throughout his evidence the father testified that he was “struggling to meet his daily sustenance” and that he could barely pay his bills, and that his financial situation was “precarious” as reasons for why he could not contribute to the children’s expenses.
138These exaggerated statements were not consistent with the father’s financial circumstances, according to his own evidence at trial and his sworn financial statements filed.
139For example, when the mother sent the father a series of texts between June and October of 2019 requesting help to cover Jan’s post-secondary expenses, the father responded on October 3rd and stated that he was “barely surviving on a paycheck to paycheck basis” and he would not contribute. The father responded again on October 12, 2019 stating: “I don’t have money. I’ll share if I have. I skipped paying my bills, just stop asking me.”
140The financial disclosure eventually obtained from the father in 2020, and subsequently when the mother commenced her motion to change establishes that at the time the father sent these texts, his annual income in 2019 was $57,041.52, close to double the income imputed to him in 2014. Under the Child Support Guidelines at the time, the father should have been paying child support in the amount of $1,127.00 per month. He continued to significantly underpay child support at $591.00 per month for three children and did not help with his daughter’s post-secondary expenses.
141The evidence also establishes, and not disputed by the father, that his spouse’s income in 2019 above was $49,153.42, for a total household income of $106,104.91.
142This figure does not include the additional tax-free rental income of $500.00 monthly ($6,000.00 annually), that the father disclosed and admitted to receiving during this trial, for a total household income of approximately $116,100.00 annually in 2019.
143The mother did not have any of this information when she received the series of texts from the father in 2019 refusing to contribute to the children’s expenses.
144The father was evasive when directly asked why he stopped reporting Ms Reyes annual income in 2023. He was also evasive when asked how much income they received from their boarder over the years, and whether this income was declared on Ms Reyes income tax return (it was not declared on the father’s tax returns). He eventually admitted in cross-examination that it was approximately $500.00 per month.
145Further, according to his own evidence, the father’s total rent and utilities (water, internet and cell phone) shared with his spouse in 2019 was approximately $1,000.00 per month. This amount has not changed substantially as the father has lived in the same rent-controlled leasehold apartment with his spouse since 2013.
146In 2025, according to his sworn financial statement filed at trial, the father’s share of the household expenses of rent, water and cell phone were $940.00 per month. The father has no other dependants.
147The father’s deception regarding his financial circumstances was further illustrated by his response to the letter from the mother’s lawyer initiating negotiations to update child support and section 7 expenses in May of 2021. In his written response, dated May 26, 2021, the father advised the mother’s lawyer that he had been “permanently laid off from work since April 6, 2020” and stated: “still haven’t found any employment as of writing.”
148The income disclosure that was later received from the father following court proceedings confirmed that his annual income in 2021 was $50,338.82. His income in 2020 (during the pandemic) was reduced to $41,428.00, but still significantly higher than his imputed income of $30,000 in 2014.
149The evidence establishes that the father’s income continued to steadily increase with no corresponding adjustment to child support until the mother commenced court proceedings in 2022, leading to the retroactive award of $29,900.00 for child support arrears that the parties settled on before Justice Hoshizaki in January of 2023.
150It is the father’s evidence that he repeatedly told the mother to bring the matter to court and “let the court decide”. This was inconsistent with his evidence that his priority was to “help the kids financially” and that he was “willing to pay the difference in the monthly child support” owed, “despite his precarious financial situation”.
151The father spent a great deal of time during this trial describing how difficult his financial circumstances were and how he was barely scraping by. He very much viewed himself as the victim of a campaign of harassment by the mother for child support and section 7 expenses well beyond his means.
152Other than the father’s statements, there is no evidence that the mother alienated the children from the father. The father maintains communication with his two daughters and had contact with all three children after the separation. The father’s decision to relocate from Kenora to Toronto only nine months after the parties immigrated to Canada may have had some impact on any strain in his relationship with the children.
153Although some of the mother’s section 7 claims for contribution are unreasonable, as will be addressed later in these reasons, the undisputed evidence of the father’s steady and significant increase in income over several years, his household income, and his lifestyle contradict his tale of extreme hardship.
154The social media evidence that the mother introduced at this trial, and admitted by the father, demonstrate that the father and his spouse enjoyed vacations, meals out, and expensive extra-curricular activities between 2015 and 2021, when he was significantly underpaying child support. The trips and activities include ski trips, trips to Jasper, British Columbia, the Philippines, cycling trips and a hotel stay at the Fairmont.
155Although the father gave evidence that he decided to enter a Consumer Proposal in 2023, he did not provide details regarding the debts incurred, but they largely appear to be credit card debts of approximately $10,000.00 which he is paying down at a rate of $300.00 monthly.
7. The Law and Governing Principles:
Section 7 Expenses:
156Section 7 expenses are governed by Section 7 of Ontario’s Child Support Guidelines, O. Reg. 303/24 and defined in the legislation as follows:
Special or extraordinary expenses
- (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2; O. Reg. 32/21, s. 2.
7(1.1) For the purposes of clauses (1) (d) and (f),
“extraordinary expenses” means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.
157The determination of each parent’s contribution to the section 7 expenses is set out under s. 7(2), 7(3) and 7(4) of the Guidelines as follows:
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. O. Reg. 391/97, s. 7 (2).
Subsidies, tax deductions, etc.
(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. O. Reg. 159/07, s. 2.
Universal childcare benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2.
158Unlike section 3 of the Child Support Guidelines, which presumptively provides for the table amount of basic child support, an order for section 7 expenses involves the exercise of judicial discretion. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.).
159The leading case in Ontario for when considering a claim for section 7 expenses is the Ontario Court of Appeal’s decision in Titova v. Titov 2012 ONCA 864.
160In Titova v. Titov, supra, the Court held that in awarding section 7 special and extraordinary expenses, the trial judge must:
Calculates each party’s income for child support purposes,
Determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines,
Determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”
If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.
Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
161The list of special and extraordinary expenses under clauses 7(1) (a) to (f) is exhaustive. The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary, and reasonable, having regard to the parents’ financial circumstances. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.); Kilrea v. Kilrea [1998] O.J. No. 3677; 1998 CarswellOnt 3652 (Ont. Gen. Div); Kase v. Bazinet, 2011 ONCJ 718 at para. 39.
162Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. See: Titova, supra; Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039; L.H.M.K. v. B.P.K. 2012 BCSC 435, [2012] B.C.J. 593 (SCJ); Simone v. Van Nuys, 2021 ONCJ 652.
Whether Prior Consultation by the Parent Seeking Contribution to Section 7 Expenses is Necessary:
163Section 7 itself does not require prior consultation or consent for allowable expenses, but a failure or refusal by a claiming parent to discuss an expense with the other parent in advance bears on the court’s exercise of its discretion in determining whether it is reasonable. However, where consultation would be meaningless due to a payor’s chronic default or attitude, prior consultation should not be required. See: Yeo v. Hutcheson, 2020 ONSC 1256.
164In T.R. v. S.G., 2025 ONCJ 224, the court found it was reasonable for the mother not to consult with the father about camping and private school expenses. The father would never have agreed to them and would have tried to disrupt these choices if he was consulted.
165Notwithstanding the above, it is also clear from the case law that a custodial parent does not have “carte blanche” to enroll a child in any number of extra-curricular activities and then to look to the non-residential parent to share all the costs. See Forrester v. Forrester, [1997] O.J. No. 3437, paragraph 4; Zimmerman v. Doe, supra; Kase v. Bazinet, 2011 ONCJ 718. at para. 41.
The Determination of the Proportionate Contribution to the Section 7 Expense:
166Although subsection 7 (2) of the Guidelines provides that the section 7 expense is shared by the parties in proportion to their respective incomes, after deducting the contribution, if any, from the child, the court has discretion to apportion the section 7 expense in a different manner than pro-rata to incomes, depending on the circumstances of the case. See: Hamilton v. Salmon, 2023 ONCJ 343; per Justice Danielle Szandtner; Salvadori v. Salvadori, 2010 ONCJ 462; Buckley v. Blackwood, 2019 ONSC 6918.
167In Zhao v. Xiao, 2023 ONCA 453, the Ontario Court of Appeal found the trial judge properly exercised discretion by ordering payment of the section 7 expense in proportion to the parties’ household incomes.
The Mother’s Claim for Retroactive Section 7 Expenses:
168The mother’s claim for retroactive section 7 expenses is in an application, and therefore governed by sections 33 and 34 of the Family Law Act.
169The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act.
170The mother seeks that the father’s contribution to the children’s section 7 expenses be calculated retroactively back to January 1, 2015.
171Although an application, this case is somewhat unusual as the mother first brought her claim for retroactive section 7 expenses in her 2022 motion to change. The claim for section 7 expenses was dismissed at that time for procedural reasons. The court directed the mother to bring a fresh application, according to the endorsement filed.
172The mother issued her application on September 11, 2023. Any support, which includes section 7 expenses, claimed since that date is prospective and presumptively payable, subject to the legal test for these expenses under section 7 of the Guidelines. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.); Balian v. Balian, 2025 ONSC 4128; Lewis v. Lynch 2024 ONCJ 279, per Justice Stanley Sherr.
173The section 7 expenses claimed by the mother before she issued her application requires a retroactive support analysis. In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for retroactive applications to increase child support.
174The retroactive child support analysis in Colucci also applies to section 7 expenses. See: Cumor v. Mohamud, 2024 ONCJ 162; Kovalchuk v. Kovalchuk, 2023 ONCJ 355; Lewis v. Lynch, supra.
175The legal framework is set out at paragraph 114 in Colucci 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. factors continue to guide this exercise of discretion, as described in Michel. 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.
176In an original application for retroactive support and section 7 expenses there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci.
177The first step in this case will therefore be to determine the presumptive date of retroactivity as described in step b. above in Colucci.
178The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described and modified in Michel v. Graydon, 2020 SCC 24 and Colluci.
179The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M. , 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506; Mohamoud v. Farah, 2023 ONCJ 103.
180Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel v. Graydon, 2020 SCC 24, paragraph 25.
181Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel, par. 132.
182Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.
183In 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.
The Claim for Ongoing Table Child Support for Jian as an Adult Child:
184In addition to the mother’s claim for the father’s contribution to Jian’s retroactive and ongoing post-secondary section 7 expenses, the mother is also seeking that the father continue to pay the ongoing table amount of child support for Jian, the middle child, who is attending Trent University in a full-time undergraduate program. Jian is 21 years old.
185The father seeks to terminate his ongoing child support payments for Jian if he is ordered to contribute to her post-secondary expenses.
186Section 31 of Ontario’s Family Law Act states 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. 2017, c. 34, Sched. 15, s. 1.
187The onus is on the party seeking to prove the adult child (over the age of 18) is entitled to continuing support, either by enrollment in a full-time program of education, or by reason of illness, disability or other cause, and to provide evidence to the court on a balance of probabilities that the child remains entitled to support. See: Beach v Tolstoy, 2015 ONSC 7248 at para. 32; Kim v. Kim, 2019 ONSC 4685; Meyer v. Content, 2014 ONSC 6001; M.P.A.N. v. J.N., 2018 ONCJ 769.
188The case law has set out a variety of factors for the court to consider when determining the issue of entitlement to child support for an adult child who is enrolled in education. These factors include: the reasonableness of the child’s course of education and career plans, the age of the child, the ability of the child to contribute to their own support, the availability of student loans, the child’s past academic performance, the plans the parents have made for the child’s education and whether an adult child has unjustifiably and unilaterally terminated his or her relationship with the payor. See Farden v. Farden, 48 R.F.L. (3d) 60, [1993] B.C.J. No. 1315, 1993 CarswellBC 619 (B.C. Mast.); Rebenchuk v. Rebenchuk, 2007 MBCA 22 (Manitoba Court of Appeal).
189These factors were summarized by Justice Debra Chappel in Meyer v. Content, 2014 ONSC 6001 at paragraph 32 of her decision. Courts have held that it is not necessary to address all of the factors set out above to prove that a child remains entitled to support See: Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (B.C.S.C.) at para. 11).
190Most courts accept that it is reasonable for a child to be able to obtain one degree with the support of a non-residential parent. See Rebenchuk v. Rebenchuk, supra, at paragraph [53].
191Section 3(2) is presumptive and must be used unless the court considers that approach would be inappropriate. See Lewi v. Lewi (ONCA), [2006] O.J. No. 1847 (C.A.).
8. Application of the Law and Analysis:
The Retroactive Claim for Section 7 Expenses:
192The court’s analysis and application of the legal framework set out in Colucci to determine the mother’s retroactive claim is set out below.
1. Has there been a material change in circumstances regarding child support?
193The first step in the Colucci framework is to determine if there has been a material change in circumstances regarding the support and section 7 expenses.
194The mother’s claim for retroactive section 7 expenses is in an original application. The case law establishes that the court does not have to first determine if there has been a material change in circumstances. See: Lynch v. Lewis, 2024 ONCJ 325, per Justice Stanley Sherr.
195However, this case is unusual in that the mother’s claim for retroactive section 7 expenses was originally brought in her 2022 motion to change the 2014 Final Order. The section 7 claims were not considered on their substantive merits but dismissed during that proceeding given the procedural concerns noted by the court at that time. The mother was directed to bring a fresh application.
196Although it may not be necessary, out of an abundance of caution in the event I am mistaken, I will determine whether the mother has demonstrated a material change in circumstances since the 2014 final order.
197To meet the threshold, the onus is on the moving party (the mother) to show that there has been a material increase in the father’s income since the May 2014 Final Order regarding the claim for section 7 expenses. See: Lynch v. Lewis, supra.
198The threshold for a person to establish a material change in circumstances in income for child support purposes is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61 and Kerr v. Moussa, 2023 ONCJ 1; Marchan v. Clarke, 2023 ONCJ 483.
199The mother has demonstrated a material change. At the time of the 2014 Order, Justice Hoshizaki imputed income to the father in the amount of $30,000. She considered the mother’s section 7 claim for the children’s extra-curricular activities at the time and determined that the expenses did not meet the definition of “extraordinary expenses” under section 7(1). The court found that the expenses were not within the financial means of the parties at the time and denied recovery of the amount claimed.
200By 2017, the father’s income started to increase significantly. By 2019, the father’s income was almost double the amount imputed to him in the 2014 order. By 2023, the father’s income was almost triple the amount imputed to him in the 2014 order.
201Further, by the fall of 2018, the oldest child Jan had started university. She completed her undergraduate degree in 2022. The post-secondary costs were significant. The middle child Jian started university in the fall of 2022 and is expected to graduate with a degree in nursing in the spring of 2026.
202Post-secondary expenses are defined as section 7 expenses under section 7(1)(e) of the Child Support Guidelines. They are not “extraordinary” expenses.
203Notwithstanding the mother’s multiple requests following the 2014 order, the father advised the mother that he would not contribute to these post-secondary expenses. By his own evidence, he told her more than once to go back to court and let the court decide.
204The above circumstances overwhelmingly demonstrate a material change since the 2014 final order.
2. What is the presumptive start date when child support should be changed?
205The second step in the Colucci framework is to determine the presumptive start date for support to be changed. To determine this, the court must look at when effective notice and formal notice were given by the mother to the father. See: Jansen v. DiCecco, 2025 ONCJ 189.
206In Jansen v DiCecco, supra, Justice Stanley Sherr summarized the difference between effective notice and formal notice as follows, at paragraphs 60 to 62 of his decision:
60The second step in the Colucci framework is to determine the presumptive start date for support to be changed. To determine this, the court must look at when effective notice and formal notice were given by the mother to the father.
61Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S., par. 121. This low bar is justified by the recipient’s informational disadvantage. Regardless of whether the recipient had given notice, the payor knew when their own income had increased and must be taken to know that more income means more support. See: Colucci, par. 86.
62Although effective notice can be as little as broaching the topic in conversation, formal notice is something more, generally taking the form of written correspondence from the recipient or counsel or the commencement of legal proceedings. See: Wilkinson v. Wilkinson, 2008 ONCJ 96; Vandenberghe v Dittrick, 2024 ABKB 58; Wilson v. Johnson, 2024 ONCJ 6, per: Justice Carole Curtis; Crightney v. Garcia, 2024 ONCJ 431.
207The mother testified and provided documentary evidence that she asked the father to contribute to the section 7 expenses for the children as early as September 19, 2015, approximately one year after the final order.2
208On September 19, 2015, the mother sent the father an email requesting contribution towards Juan’s hockey expenses and Jian’s figure skating lessons with the invoices attached from the Lake of the Woods Minor Hockey and the Kenora Skating Club, totaling $1,078.75.
209The mother continued to send emails and texts to the father requesting help with the children’s section 7 expenses and asking for financial disclosure after that, as detailed earlier in this judgment.
210The court found the mother’s evidence credible. It was not disputed by the father. He acknowledged receiving the multiple requests from the mother, as early as September 2015, and responded to them.
211The court finds that the mother gave effective notice on September 19, 2015.
212Often formal notice is the date the application is served on the payor. The father was served with the application on January 1, 2024. It was amended on June 11, 2024 and then served again on the father on that date. The father responded with his answer claim on July 11, 2024.
213However, this case is different. On January 2, 2022, the mother started a motion to change the existing order seeking ongoing and retroactive section 7 expenses and support. The section 7 claim was dismissed for being improperly brought in a motion to change and the mother was directed to bring a fresh application. The mother started again.
214The father was aware that the mother had started a motion to change in 2022 seeking a retroactive contribution to the children’s section 7 expenses, including post-secondary expenses for both children. The father was served with the motion to change on January 7, 2022, according to the court’s first appearance endorsement dated February 16, 2022.
215Further, on May 20, 2021, the mother’s lawyer sent a letter to the father, requesting a review, adjustment and resolution of the child support and section 7 claims, as well as obtaining a divorce, failing which the mother would commence court proceedings. A draft proposal for settlement was included.
216The father acknowledged receiving the lawyer’s letter enclosing a proposal for settlement and responded on May 26, 2021 stating he would cooperate with same. The mother’s lawyer sent a follow-up letter on August 31, 2021 after receiving no further response from the father.
217The court finds that the father had formal notice that the mother was seeking to increase child support and his contribution to the children’s section 7 expenses on May 26, 2021, the date he responded to the formal letter from the mother’s lawyer initiating settlement discussions to adjust child support, including section 7 expenses, enclosing a draft proposal.
218Colucci sets out that the presumptive start date cannot be more than three years before the date of formal notice, which in this case is May 26, 2018.
Should the court depart from the presumptive start date?
219Colucci states at paragraph 114 that the court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as modified in Michel.
220The mother asks to depart from the presumptive start date. She asks that the father’s proportional contribution to the children’s retroactive section 7 expenses start on June 1, 2015, being the first anniversary after the May 2014 final order, and four months before she gave effective notice.
221The father asks that any retroactive contribution to the children’s section 7 expenses start on September 1, 2023, the commencement date of this application, and opposes any retroactive (or ongoing) contribution to the children’s section expenses, unless his ongoing child support payments are terminated.
222The D.B.S. factors, as described in Michel, are addressed below.
Reasons for Delay:
223The first D.B.S. factor is whether the payor has an understandable reason for the delay in giving effective notice or seeking relief in the courts.
224In 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, par. 121.
225A 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, par. 113.
226Rather, 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. See: Michel, paragraph 86.
227In Janson v Dicecco, Justice Sherr summarized the following factors or reasons for delay that 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. (paragraph 72.)
228Child support is the right of the child and should not be lost due to parental delay except in the few cases where the delay is unreasonable. See: Gray v. Rizzi, 2016 ONCA 152.
229The mother provided some understandable reasons for her delay in bringing her claim for retroactive section 7 expenses as follows:
The father did not advise the mother about the increases in his income, despite her requests and contrary to the 2014 court order for annual financial disclosure, until 2020 when she received the father’s T-4 slips for 2017, 2018, and 2019 and the father’s notices of assessment from 2013 to 2019.
The father also mispresented his financial circumstances to the mother when she repeatedly asked for financial assistance in 2018 and 2019. The father advised the mother that he was living “paycheck to paycheck” and barely sustaining himself financially. The mother was unaware of how significantly his income had increased until she received the income disclosure from him in 2020.
The mother had a workplace injury in March of 2017 and underwent treatment and surgeries in Toronto from June of 2017 to January of 2020. The mother had two surgeries on February 22, 2018 and June 25, 2019. The mother was also off work for a period of time for mental health issues and sought counselling and mental health treatment in Thunder Bay from December 1, 2017 to August 17, 2018. On May 1, 2018 and November 18, 2019, the mother also underwent kidney surgery.3
Following the receipt of the father’s income information in 2020, the mother first attempted to negotiate an adjustment of the child support and section 7 expenses through retained counsel.
The mother’s lawyer sent the father formal notice to negotiate and adjust support and section 7 expenses on May 20, 2021 in an effort to avoid court proceedings. The father initially responded on May 26, 2021, but then ignored subsequent letters from the mother’s counsel. The mother’s counsel wrote to her in October 2021 and sought instructions to commence court proceedings.
Although the mother initially commenced her motion to change on January 1, 2022, her claim for section 7 expenses was dismissed in April of 2023 for being improperly brought. The mother commenced her fresh application on September 13, 2023.
Prior to commencing the fresh application, the mother unsuccessfully initiated court-based mediation with the father following in 2023 following the motion to change.
Blameworthy Conduct:
230Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
231Blameworthy 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., par. 106.
232The 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, par. 34
233The 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, par. 34.
234Frank disclosure of income information by the payor lies at the foundation of the child support regime. See: Colucci, par. 50.
235To avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must not be blameworthy. See: D.B.S., paragraph 125.
236The father has engaged in the following blameworthy conduct:
The father did not advise the mother about annual increases in his income, in accordance with the 2014 order, or provide timely financial disclosure to the mother until 2020. Even then, the disclosure was inadequate until the mother commenced court proceedings.
The father significantly underpaid basic child support for his children for several years. The father knew that he was doing this. This was not “inadvertent”.
The court finds that by 2018, the father clearly knew that his income had significantly increased, and he would therefore need to pay more child support for his children and to possibly contribute to some section 7 expenses. He chose not to pay it, and instead, according to his own evidence, he repeatedly told the mother to “go back to court”.
The father was deceptive about his financial circumstances when his income started to increase significantly following the 2014 final order.
The father’s text messages to the mother in 2019 that he was “barely surviving” when she asked for help in contributing to the children’s post-secondary expenses was dishonest, as later revealed by the financial disclosure obtained by the mother in the court proceedings. By that time, the father’s income had almost doubled since the 2014 final order and his total household income with his common law partner was approximately $116,000.00, including the undisclosed rental income.
The court finds that the father also attempted to delay court proceedings by misleading the mother’s lawyer when responding to his formal letter on May 26, 2021 The father told the lawyer that he had been “permanently laid off”, even though his income in 2021 was subsequently revealed to be $50,338.82. He then ignored subsequent correspondence from counsel in August and October of 2021 to enter negotiations, compelling the mother to commence the 2022 motion to change.
The father has only paid $827.66 in section 7 expenses for the three children since the parties separated. He has not contributed to any of the children’s post-secondary expenses, despite being in a financial position to do so and the importance of post-secondary education to the children, and for both parties, as will be addressed later in these reasons.
The Children’s Circumstances:
237The failure to make a retroactive support order will cause the children hardship.
238As will be discussed later in these reasons, the older children have assumed substantial student debt and have not been able to accumulate savings because of the sacrifices they have made to pursue post-secondary education without any assistance from their father. They have used the bulk of their employment earnings while in university to help cover their expenses.
239The mother has also experienced hardship despite making her best efforts to provide the children with multiple extra-curricular activities, a home and assistance with post-secondary university education for the two eldest daughters. She has incurred very considerable debt to pay for the children’s additional expenses over the years, with a nominal income during some of those years. She now earns a modest income.
240There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their children’s well-being. There is absolutely no principled reason why a parent should receive any less support as a result of choices that protect the children. The fact that children do not have to suffer hardship because of their parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of the children, weighs in favour of the retroactive support award and an enlarged temporal scope. See: Michel v. Graydon, par. 123.
241A payor parent cannot avoid a retroactive award by arguing that the recipient parent was able to sufficiently care for the child on his or her own. See: Henderson v. Micetich, 2021 ABCA 103, at paragraph 60.
242Further, although Jan and Jian are now adults, in Michel v. Graydon, the Supreme Court recognized that children remain entitled to payment of retroactive child support even after they become adults. Child support obligations arise upon separation, and retroactive awards provide a means "to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid". See: Michel v. Graydon, supra, para 41.
Hardship:
243A lump sum retroactive order will cause the father hardship.
244However, if 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, par. 124.
245The court found that the father engaged in blameworthy conduct.
246While 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 children and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel, par. 125.
247The court will create a payment schedule that will address any hardship the father may experience in paying a retroactive order.
Start date for contribution to section 7 expenses:
248In balancing all the above considerations, particularly the father’s blameworthy conduct, the court finds that a fair and reasonable presumptive start date for the father’s retroactive contribution to the children’s section 7 expenses should be May 26, 2018, three years before formal notice, as set out in Colucci, for the following reasons:
The mother’s request for retroactive contribution dating back to June of 2015, the first anniversary date of the final order is unreasonable. In 2015, the parties’ financial circumstances were not materially different than the circumstances before Justice Hoshizaki in 2014 when she denied the section 7 claims based on the parties’ financial means at that time. The mother’s claims in 2015 were beyond the means of both parties.
The father’s income did increase in 2016 and 2017, and although he should clearly have been paying more child support, it is questionable whether he also had the financial means to contribute to section 7 expenses at that time.
The mother did not seek the father’s consent or consult with the father before deciding to enrol the children in multiple extra-curricular activities during this time, although always informed him and requested assistance. The court finds that neither party had the financial means to pay for many of the extracurricular activities in 2016 and 2017. The mother assumed a significant amount of debt to do so, including loans from family members, according to her sworn financial statement.
However, by 2018, the father’s income had significantly increased even though there was no corresponding increase in child support or financial disclosure provided. The father should have known that he needed to assist the mother with section 7 expenses, most importantly, the children’s university expenses, given the significant increase in his income. Their oldest child was starting university that year.
Post-secondary expenses are reasonable and necessary expenses that both parents should have contributed to. The mother did contribute. The father did not. The mother repeatedly requested assistance for those expenses in the well-documented evidence filed.
Both parents have extensive post-secondary education themselves. They wanted their children to pursue post-secondary education. The father expected the mother and the children to cover these expenses without his assistance.
Do the retroactive expenses claimed since 2018 meet the definition of section 7 expenses?
The Children’s Post-Secondary Expenses:
249The court will first start with the children’s post-secondary expenses.
250For the reasons that follow, I find that both Jan and Jian were entitled to child support as an adult child under section 31(1) (b) of the Family Law Act and section 3(2) of the Guidelines, and therefore post-secondary expenses under section 7. Both children started university after high school and pursued full-time programs of education.
251Jan started a full-time program of education in 2018 and completed her four-year undergraduate degree in 2022 at the age of 22.
252Jian continues to be entitled to child support as an adult child and will soon complete a four-year undergraduate nursing degree which she started when in 2022 when she was18 years was old. She will graduate in the spring of 2026 at the age of 22.
253The children’s expenses fall under the category of section 7(1)(e) of the Guidelines (“post-secondary expenses”). These expenses are not “extraordinary” under section 7.
254Section 7(2) of the Guidelines provides that in determining the amount of an expense under subsection (1), the guiding principle is that the expense is shared by the parents in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [Emphasis added.]
255A considerably body of caselaw has developed regarding how much an adult child should contribute to their post-secondary educational expenses.
256The mother provided an itemized chart and accounting totaling 14 pages, not including the original receipts and invoicing supporting each claim for Jan and Jian’s post-secondary expenses. The original receipts and supporting documentation were provided to the court at trial. The level of detail was extraordinary.
257The cost of Jan’s total post-secondary education was $90,524.33, or $22,631.08 each year. The post-secondary expenses are broken down into the following categories:
University fees (tuition and non-tuition, including residence, meal plan and admission): $45,611. 17.
Rent following first year: $23,200.00.
Allowance (food, toiletries etc.): $8,000.00.
Supplies and school-related expenses (school supplies, textbooks, computer, some household supplies etc.): $6,008.14.
Travel (both airfare and land travel to and from Toronto and Kenora to attend university, school breaks, summer): $7,705.39.
Total: $90, 624.70 over four years, or $22,631.08 per year.
258The cost of Jian’s total post-secondary education (nursing), including the costs for the 2025-2026 year, is higher, totaling $100,069.33, and are broken down as follows:
Admission expense and non-academic requirement for admission: $1,152,.81 (criminal record check, CPR certification, HEPA B vaccine etc.)
University fees (tuition and non-tuition, including residence and meal plan): $41,783.24.
Rent following first year: $28.651.00.
Allowance: $7,600.00
Supplies and school-related expenses: $12,442.19
Transportation air and land: $8,330.37
Other related expense: $4,112.91
Total: $104,072.52 over four years, or $26,018. 13 over four years.
259Although transportation is unusual as a section 7 expense, in this case both children’s universities were a very far distance from Kenora, making travel home expensive and challenging. The court finds the transportation expenses reasonable in the circumstances. See: Converti v. Escobedo, 2011 ONCJ 627.
260There is one category in Jian’s expenses for $4,112.46 called “other related expenses” which were not identified, with no corresponding receipts or documentation. The court will deduct this amount from the overall expense.
261The court finds that Jian’s total post-secondary cost, including her 2025 to 2026 year is of $99, 960.06, or $24,990.01 per year.
262I find that the post-secondary expenses claimed for both children are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”
263It is the mother’s evidence that when the parties were married, they always planned to pay for the entirety of their children’s post-secondary education. It is customary in Filipino households for parents to do this. The mother was a doctor in the Philippines and the father was a teacher. The father did not dispute this evidence.
264Neither parent disputes that the children should pursue post-secondary education. Both parents are highly educated themselves.
265Neither the mother or the father needed student loans and both graduated without any student debt. This included the father’s graduate PH.D. program and the mother’s medical school in the Philippines. This evidence was also not disputed by the father.
266Although the parents’ financial circumstances were initially difficult when they arrived in Canada, they had comfortable life with the children in the Philippines for several years before they immigrated here.
267According to the mother, it was the father who wanted to immigrate to Canada and persuaded her that Canada would provide better opportunities for the children. She agreed on the understanding that they would always pay for their children’s education. This evidence is not disputed.
268Following the separation, the mother requested, as early as February 2, 2016, that the father start contributing to an RESP to plan for the children’s future, according to the text exchanges filed in evidence. The mother had started her own RESP. The father refused, stating that that he did not have money to save.
269To the mother’s credit, by the time the oldest child started university in 2018, the mother’s RESP for the children was $46, 805.22, notwithstanding her modest income.
270The children are excellent students. Jan successfully completed a four-year undergraduate degree in psychology at the University of Toronto. She received a bursary of $1,700.00 and obtained grants and student loans. She also worked part-time throughout her university degree and used a considerable amount of her part-time and summer income to pay for her university.
271Jan is now working full-time and living at home with her mother so that she can pay down her accumulated student debt and save for post-graduate studies in her field, which she plans to pursue. She is now 25 years old and no longer entitled to child support as she is working full-time and after completing her undergraduate studies.
272Jian also school received scholarships totaling $3,750.00, bursaries and grants in the amount of $10, 868.00, and student loans of approximately $9,415.00 each year. She also contributed summer and part-time income totaling $17,310.00 throughout her studies by 2024.
273Jian will be entering into her final year of a four-year nursing degree at Trent University in Peterborough. She continues to live at home during the school breaks and maintains her rented room in Peterborough during the school year.
274Jian also intends to pursue a post-graduate degree however, she may delay this to work, repay her student debt, and save for future tuition. Jian will incur post-graduation expenses to start working as a nurse, including approximately $1,500.00 for her licensing fees, College of Nurses of Ontario registration, and mandatory professional liability insurance.
275Both parents should be very proud of what their daughters have accomplished. considering the hardships they have faced: immigrating to Canada at the ages of 12 and 7, learning English and a new culture, experiencing the shock of their parents’ separation only nine months after arriving in Canada, financial hardship, and the sudden and tragic loss of their brother.
276In Lewi v. Lewi, supra, the Ontario Court of Appeal held that that in determining the question of child support for adult children, clause 3(2)(b) and Section 7 of the Guidelines require the court to consider whether an adult child can contribute toward his or her or their post-secondary education.
277The mother submits that the children’s OSAP and student loans should not be taken into account when considering their contribution to their post-secondary education.
278In Roth v. Roth, 2010 ONSC 2532, at para. 16, the court set out the legal principles that a court must consider when determining a child’s contribution:
a) Generally, post-secondary education is considered a necessary expense in the best interests of the children. Certainly, there was no argument to the contrary in this case.
b) The reasonableness of the expense considers the means of the spouses or former spouses and the means of the child.
c) Children have an obligation to make a reasonable contribution to their own post-secondary education or training. This does not mean that all of a child’s income should necessarily be applied to the costs of the child’s further education. The court should consider whether the child should be entitled to some personal benefit from the fruits of his or her labours.
d) Grants, scholarships and bursaries are generally treated as a reduction of the education expense as they involve a net transfer of resources to the child without any obligation of repayment.
e) A student loan is not a “benefit”, within the meaning of section 7(3) of the Guidelines that must be automatically taken into account in determining the amount to be ordered in respect of s. 7 expenses. A student loan may constitute, in whole or in part, a “contribution… from the child” to post-secondary education expenses within the meaning of section 7(2) of the Guidelines and thereby exclude or reduce the need for any parental contribution. This turns on the reasonableness of taking account of any such loans in the circumstances of the case.
f) In determining the amount of an expense or the contribution thereto under section 7 of the Federal Child Support Guidelines, the guiding principle is that, once the court has determined the appropriate amount of contribution by the spouses or former spouses, the spouses or former spouses should share the expense in proportion to their respective incomes after deducting any contribution from the child, or other liable parent.
279Both children have contributed a considerable amount, if not all their summer and part-time employment income to their post-secondary expenses.
280In Vohra v. Vohra, supra, Justice Sherr cites with approval the following passage from the Manitoba Court of Appeal in Rebenchuk v. Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261, 2007 CarswellMan 59 (Man. C.A.):
“... Children have an obligation to make a reasonable contribution to their education. However, just because a child is earning income, it does not follow that all of that income must be applied to the child's education. The desirability of allowing the child to experience some personal benefit from the fruits of his or her labours should also be considered: Glen v. Glen [ (1997), 1997 1026 (BC SC), 34 R.F.L. (4th) 13 (B.C.S.C.)] (para. 14).
281In addition, both children have also incurred considerable student debt.
282The father submits that the children’s scholarships, grants, student loans and employment income should be sufficiently substantial to assist them both in meeting the costs of their university education.
283Generally, the courts will only require a child to contribute to their education by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses: Naveed v. Nasir, 2016 ONSC 7878, at para. 45; Jackson v. Jackson, 2021 ONSC 2614.
284Most courts are reluctant to allow the payor parent to avoid child support obligations by requiring that the child rely on student loans since student loans are costs that must be repaid when the child finishes school (Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291, at para. 203.
285While student loans are often available to serve as temporary assistance for those in financial need, as stated above, they simply delay the expense rather than defraying it. For this reason, the court in Coghill v. Coghill, [2006] O.J. No. 2602, adopts the following statement from Julien D. Payne’s text, Child Support in Canada:
“A student loan is not a “benefit” within the meaning of section 7(3) of the Child Support Guidelines that must be automatically taken into account in determining the amount to be ordered in respect of expenses sought under section 7 of the Guidelines… nor should the availability of student loans automatically require the child to obtain such loans. Student loans are not to be equated with bursaries, grants, or scholarships. A student loan delays the payment of expenses rather than defraying them. (Julien D. Payne: Child Support in Canada).”
286Grants and bursaries, which do not need to be repaid, can be viewed as analogous to a child’s income or savings. The court has discretion to determine what contribution, if any, it is reasonable to expect of the child in the particular circumstances. As the Court of Appeal states in Lewi, “[b]oth s. 3(2) (b) and s. 7 of the Guidelines require that the means of the child must be considered along with the means of the parents” (Lewi, at para. 159).
287However, the provisions refer to the child’s contributions “if any” and it must always be remembered that “the contribution expected depends on the circumstances of the case” (Lewi, at para. 159).
288I find that a reasonable contribution by each child to the cost of their education should be one-third or 33. 33 percent of their total undergraduate expenses.
289Jan’s contribution is therefore $30,171.89 (33.33% of $90,524.70). The balance owing is $60,419.99, or $15,105.00 for each year of university.
290Jian’s contribution is $33,316.69 (33.33% of $99,960.00). The balance owing is $66,643.31, or $16,660.83 for each year of university.
291The total balance owing is $127,062.80 and should be paid by the parties in proportion to their incomes for the time periods in question, subject to any other adjustments below.
Mother’s costs:
292The mother has incurred considerable debt to assist the children with their post- secondary expenses. According to her sworn financial statement, the mother has incurred $88,596.00 in personal loans to assist with the children’s expenses. Some of these loans appear to be from family members.
293The mother also contributed $46,000.00 from an RESP that she started for the children shortly after the parties separated. The father refused to do the same when asked, stating that he could not afford it.
Father’s costs for Jan:
294The father’s proportional contribution for Jan’s post-secondary expenses, based on parties’ annual income in each of the years Jan attended university is as follows:
2018-2019: father’s income was $57,041.52; 53% of $15,088.20.00 equals $7,996.75
2019-2020: father’s income was $41,428.00; 49% of $15,088.20 equals $7,393.22
2020-2021: father’s income was $50,338.82; 70% of $15,088.20 equals $10,561.74
2021-2022: father’s income was $78,507.00; 78% of $15,088.20 equals $11,768.80
Total: $37,720.80
Father’s costs for Jian:
295The father’s proportional contribution for Jian’s post-secondary expenses is as follows, based on the parties’ annual incomes in each of the years Jian attended and is attending university:
2022-2023: father’s income was $78,507.00; 78% of $16,660.83 equals $12,995.45
2023-2024: father’s income was $87,771.00; 87% of $16,660.83 equals $14,494.92
2024-2025: father’s income was $103,642.00; 81% of $16,660.83 equals $13,495.27
2025-2026: father’s income is $82,608.00; 54% of $16,660.83 equals $8,996.85
Total: $49, 982.49
296The father’s total contribution to the children’s post-secondary expenses is therefore $87,703.29, subject to any adjustments below.
Should the court adjust or terminate the ongoing table amount of child support under the existing order for Jian if the father is ordered to contribute to her post-secondary expenses?
297The father asked the court to terminate his ongoing child support payments for Jian if he is ordered to contribute to her post-secondary expenses. He also submits that Jian is no longer living at home and now lives with her boyfriend.
298There is no independent evidence that Jian is living with her boyfriend full-time. Jian attends university in Peterborough and lives at home with her mother during the summer and school breaks. The court prefers the mother’s evidence on this issue.
299If entitlement to child support has been established for the adult child, then the determination of whether it is appropriate to order ongoing table amount of child support under the Guidelines for an adult child attending post-secondary education is a matter within the court’s discretion. See: Simone v. Van Nuys, 2021 ONCJ 652 at paragraph 119.
300Section 3(2) of the Child Support Guidelines provides that where a child to whom a child support order relates is over the age of majority, then the amount of the child support order is the amount determined by applying these Guidelines as if the child were under the age of majority; or “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 spouse to contribute to the support of the child”. See section 3(2) (b) of the Guidelines.
301Justice Hoshizaki already determined that the table amount of ongoing child support was appropriate for Jian in the January 31, 2023 final order. At the time, Jian was an adult child in a full-time program at university. Justice Hoshizaki ordered, on consent of the parties, that the father would continue to pay ongoing table amount of child support for Jian.
302However, at that time, the issue of Jian’s section 7 expenses was still in dispute and the father was not making any contribution to her post-secondary expenses.
303The father will now owe a large retroactive award towards both Jan and Jian’s post-secondary expenses, as calculated above.
304Most courts find the guideline amount inappropriate when a child attends university out-of-town and only returns home during the summer and school breaks, which is generally calculated at eight months away at university and four months at home. Although each case must be examined on its own facts, most courts will order the full table amount in the months the child is living at home with a lesser amount when the child is away at school. See: Park v. Thompson (ONCA); Coghill v. Coghill (Ont. S.C.J.).
305Generally, the full amount will be ordered while at home, with a significant drop-down in support while a child is away at school. Park v. Thompson, Lewi v. Lewi (CA), Merritt v. Merritt [1999] O.J. No. 1732 (SCJ).
306Both Jan and Jian attended university away from home.
307The court will make a significant downward adjustment to the retroactive section 7 award owing by the father for the children’s post-secondary expenses to take into account that Jian has been living away from home during the past four years of university while the father has been paying the full table amount of child support since January of 2023, as well as Jan during her undergraduate degree.
308The court therefore fixes the father’s retroactive contribution to both children’s post- secondary university expenses, and the ongoing contribution to Jian’s post-secondary expenses for the 2025 to 2026 final year at $65,000.00.
309In my view, this is a fair and reasonable amount, having regard to the necessity and reasonableness of the expense, the children’s and mother’s significant contributions, and the father’s financial means and circumstances.
310The court will also terminate ongoing child support for Jian on June 1, 2026, the first month after she completes her undergraduate degree.
The Funeral Expenses:
311The mother has claimed $19,299.37 for expenses incurred for Juan’s funeral, repatriation and inurnment, and seeks $15,674.10 as the father’s proportionate share. These expenses are itemized and detailed by the mother and include the funeral expenses of $12, 403.87, and the repatriation and inurnment expenses of $6,895.50.
312The mother submits that the funeral expenses are reasonable and necessary expenses in the child’s best interests. These are essential and unavoidable expenses to ensure a dignified burial for a minor child for whom the parties shared a legal and moral responsibility.
313She further submits that if the expenses do not fall under any of the section 7 categories, then the father’s legal obligation to contribute to their child’s funeral expenses fall under the necessary obligation to support a child under section 31 and 45(2) of the Family Law Act.
314The father did not contribute to the child’s funeral expenses. The father asserts that he was not aware that the mother needed help with Juan’s funeral expenses. The father states that he later discovered that a “Go Fund Me” account had been set up to assist with the funeral expenses.
315Although the father may have been morally obligated to contribute to their child’s funeral expenses, there is no legal obligation to do so under section 7 of the Child Support Guidelines and the Family Law Act.
316The list of special and extraordinary expenses under clauses 7(1) (a) to (f) is exhaustive. It is well-established that the onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.); Kase v. Bazinet, 2011 ONCJ 718 at paragraph 39.
317Funeral and repatriation expenses do not fit into any of the categories of expenses under section 7. Although this is a reasonable and necessary expense to incur when a child has died, it cannot be considered a special or extraordinary expense under section 7, nor does the court have any jurisdiction to order recovery under the Family Law Act. Child support obligations are intended to benefit dependent living children.
318Fortunately, friends and members of the mother’s close community in Kenora set up a Go Fund Me Page to help cover the costs of Juan’s funeral expenses. Although not all the costs were recovered, nor have any of the repatriation and inurnment costs, the mother received considerable help from her community.
The remaining section 7 expenses claimed by the mother since 2018:
319The mother also claims the following retroactive section 7 expenses from 2018 to 2022:
a. primary and secondary expenses for the children of $4,419.94 under s. 7(1)(d) (father’s proportional share: $2,568.58);
b. health insurance, premiums and medical expenses not covered of $6,408.76 under s. 7(1) (b) and (c) (father’s proportional share: $4,049.59);
c. extraordinary extra-curricular activities of $8,802.35, under s. 7(1) (f) (father’s proportional share: $5,118.58).
320The father’s proportional share of these expenses was calculated based on the parties’ income in each year that they were incurred and totaled $11,736.75.
321The court reviewed these expenses carefully, including the receipts attached.
322The primary and secondary expenses are disallowed.
323The out-of-pocket medical expenses not covered by the mother’s health insurance are reasonable and necessary expenses that will be covered. These included include physiotherapy, pharmaceutical drugs, dentist appointments, chiropractic visits, and eye exams. The mother gave evidence that two of the children suffered from chronic asthma requiring regular medication and hospitalization. She obtained private health insurance to ensure that the children’s medical needs were met.
324These were reasonable and necessary medical expenses that benefitted the children. Although the father did not consent to these expenses, section 7 itself does not require prior consultation or consent for allowable expenses. The failure of parent to discuss an expense with the other parent in advance bears on the court’s exercise of its discretion, but where consultation would be meaningless due to a payor’s chronic refusal to contribute, prior consultation should not be required. See: Yeo v. Hutcheson, 2020 ONSC 1256.
325The extra-curricular expenses included Young Drivers lessons, figure skating, volleyball for all three children and competitive hockey for Juan. The driving lessons, figure skating and volleyball were not “extraordinary expenses” in relation to the parties’ income and the child support payable, particularly now that the underpayment of child support has been addressed by the retroactive award ordered by Justice Hoshizaki in 2023.
326Further, most courts have determined that driver training is properly covered by the basic table support amount. See: Salvadori v. Salvadori, 2010 ONCJ 387; Ferlisi v. Boucher, 2021 ONCJ 48.
327Juan’s competitive hockey expenses will be allowed. This was an extraordinary expense and could not have been covered by the mother’s limited means during that period and was reasonable and in his best interests. The father’s proportionate share of this expense is $2,299.36.
328The additional claims for retroactive expenses owed by the father since 2018 are fixed at $6,348.95.
The father’s undue hardship claim under section 10 of the Guidelines:
329The father has made an undue hardship claim. He submits that his current child support obligation, the monthly arrears owing, and any payment of section 7 expenses would result in undue hardship and render him unable to maintain a basic standard of living.
330There is a difference between “hardship” as one of the factors that a court must consider when determining whether to exercise its discretion to depart from the presumptive start date for retroactive support under the Colucci, and “undue hardship” under the Child Support Guidelines.
331Undue hardship claims are governed by section 10 of the Child Support Guidelines, which read as follows:
Undue hardship
- (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. O. Reg. 391/97, s. 10 (1).
Circumstances that may cause undue hardship
(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,
(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;
(b) the parent or spouse has unusually high expenses in relation to exercising parenting time with respect to a child;
(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;
(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full-time course of education;
(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. O. Reg. 391/97, s. 10 (2); O. Reg. 32/21, s. 4.
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. O. Reg. 391/97, s. 10 (3).
Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. O. Reg. 391/97, s. 10 (4).
Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. O. Reg. 391/97, s. 10 (5).
Reasons
(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so. O. Reg. 391/97, s. 10 (6).
107It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test4:
The person making this claim must show that there are circumstances that could create undue hardship.
If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s.
If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties. See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ); Crightney v. Garcia, 2024 ONCJ 43.
332The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore 2000 ABCA 57. Crightney v. Garcia, 2024 ONCJ 431, per Justice Stanley Sherr.
333The father has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool (B.C.C.A.); Al-Hadad v. Al-Harash, 2023 ONCJ 463. Crightney v. Garcia, supra.
334While the father was able to demonstrate some hardship if a retroactive award was ordered, he did not meet the stringent undue hardship test set out in the jurisprudence and section 10 of the Guidelines.
335The father did not prove his hardship was exceptional, excessive or disproportionate, or that he would be unable to maintain a basic standard of living. He has sufficient income to meet his support obligations. His income and his total household income well exceeds the mother’s income and his household expenses are modest and shared by his spouse.
336The father provided no evidence that his standard of living is lower than the mother’s. His current income is $82,608.96. His total household income exceeds $120,000.00, which does not include the undeclared rental income of approximately $6,000.00 annually on average. According to his sworn financial statement, his share of the fixed household and utility expenses is proximately $940.00 each month. His total debt after he entered his Consumer Proposal is now $28,603.38, not including the support arrears, which he is addressing in modest installments of $200.00 monthly. He can enjoy vacations with his spouse.
337The mother’s annual income is now $68,874.36, after years of low income due to her medical issues. She has not re-partnered and has a debt load of $126,219.73, (which does not include her mortgage of $174,900.00 for a total debt load exceeding $300,000.00), because of the burden she incurred to cover the children’s expenses without assistance from the father since the separation.
338Finally, given the father’s blameworthy conduct, as described earlier in this judgment, the court would not exercise its discretion to make an undue hardship finding in the father’s favour. This claim is dismissed. See: Crightney v. Garcia, supra.
339As noted earlier, when considering the D.B.S. factors in my retroactive analysis under the Colucci framework, the court will address any hardship that the father may experience in the method of payment of arrears.
Calculation of Arrears and Method of Payment
340The father’s retroactive amount owing for the children’s section 7 expenses are fixed at $71,348.95 as follows:
a. $65,000.00 towards the children’s post-secondary expenses since 2018.
b. $6,348.95 towards health insurances, medical expenses not covered, and extraordinary activities since 2018.
341This amount includes the father’s contribution to Jan’s post-secondary expenses in the 2025-2026 calendar year.
342Currently, the father is paying $200.00 per month towards the arrears owing for child support under the final order of Justice Hoshizaki, dated January 31, 2023. The current arrears owed by the father, assuming in good standing, are $21,699.00.
343In addition, the father is paying the ongoing table amount of child support for Jian, adjusted to his current income, which is now $82,608.98 in the amount of $769.09 per month, for total monthly payment towards support and arrears of $969.09 monthly.
344The court will terminate the ongoing child support for Jian on June 1, 2026, following the completion of her undergraduate degree.
345The payment of the arrears owing under this order will not commence until the ongoing child support for Jian ends on June 1, 2026. Commencing on June 1st, 2026, the father shall pay $1,000.00 per month towards the section 7 arrears owing until the arrears are paid in full.
346The $200.00 monthly payments toward the arrears for child support owing under Justice Hoshizaki’s Order shall continue in full force and effect, in addition to the arrears owing under above under this order.
347The total monthly payment towards all arrears owed by the father shall therefore be $1,200.00 per month until all arrears are paid in full, although the $1,000.00 monthly payments for the retroactive section 7 expenses shall not commence until June 1st, 2026 when the ongoing table amount of child support ends for Jian.
348The payments will be made to the mother and will be enforced by the Family Responsibility Office.
349The court will not order that the payments be made directly to the adult children, as the father has requested. Courts should be wary of ordering direct payments to a child given the difficult in enforcement. See: Jivaraj v. Jivaraj, 2010 ONSC 4949.
350Given the father’s history of underpayment of support and arrears, the adult child should not be put in the position as enforcer. This should be left to the Family Responsibility Office.
351Notwithstanding the above, the mother has also asked that if she predeceases the father, then the father should directly pay any ongoing and retroactive child support and arrear payments owing directly to the adult children. The court has the authority to do this and will so order. In Douglas v. Douglas, [2013] O.J. No. 2089, Justice Stanley Sherr ordered that the bulk of retroactive child support owed by the father was to be paid directly to the adult child.
Health Coverage:
352The mother seeks an order that the father maintain Jian as a beneficiary on any medical, dental or extended health plan he has available to him through his place of employment so long as child support and section 7 expenses are owing is owing and that he direct his insurance provider to issue any reimbursement for health expenses directly to the mother.
353The father states that he is already doing this. The court will therefore order that he continue. This is a reasonable request in Jian’s best interests. This will be for the provision of necessities for the child and will assist in preventing her from becoming public a charge, should anything happen to either parent, as set out in subsection 34 (2) of the Family Law Act. See: Findlayter v. Pusey, 2025 ONCJ 227, per Justice Jennifer Daudlin; Cumor v. Mohamud, 2024 ONCJ 162, per Justice Stanley Sherr, at paragraph 82.
Life Insurance as Security for Support:
354The mother also requests an order that the father irrevocably designate and maintain the Jian as the sole beneficiary of the father’s life insurance policy for so long as he is obligated to pay child support and section 7 expenses under this order.
355According to the father’s sworn financial statement, the father does have a life insurance policy which he maintains with monthly payments. It is unclear who the beneficiary is under this life insurance policy.
356Section 12 of the Child Support Guidelines provides that the court may require that an amount payable in a child support order be secured, or paid and secured, in the manner specified in the order.
357Section 34(1)(i) of the Family Law Act permits the court to order “that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably.”
358The court cannot order life insurance coverage under clause 34(1)(i) of the Act unless the parties were spouses. See: Reid v. Fortune, 2020 ONCJ 10, per Justice Stanley Sherr.
359The court can also order life insurance as security for support under clause 34(1)(k) which provides an additional and broader mechanism to secure support. This includes the power to require the purchase and maintenance of life insurance, whether or not a policy is already in place. See: Reid v. Fortune, Findlayter v. Pusey, 2025 ONCJ 227, per Justice Jennifer Daudlin; Taciuk v. Taciuk, 2025 ONSC 2427.
360In Katz v. Katz, 2014 ONCA 606, the Ontario Court of Appeal commented that clause 34 (1) (k) of the Act provides the court with broad scope for securing the payment of a support order, including ordering a payor to obtain and maintain life insurance for a child. The court wrote at paragraphs 69 and 70:
69Given that a support order under the Family Law Act is binding on a payor spouse’s estate unless the order provides otherwise, on its face, s. 34(1)(k) is broad enough to permit a court to order a spouse to obtain an insurance policy to secure payment of the order following the payor spouse’s death. The concluding words “or otherwise” in s. 34(1)(k) afford the court broad scope for securing the payment of a support order.
70Because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation: See Laczko v. Laczko, (1999), 176 D.L.R. (4th) 507 (Ont. S.C.), at pp. 511-12.
361The jurisdiction of the Ontario Court of Justice to make orders under section 34(1)(i) and 34 (1) (k) of the Family Law Act is limited by section 34(2) to cases where the support is necessary for the “provision of necessities” or to prevent the dependant from becoming or continuing to be a public charge.
362The provision of necessities has been given a broad and liberal interpretation in the case law. A liberal interpretation of subsection 34(2) promotes access to justice and ensures that support recipients can access appropriate remedies before this court. In Findlayter v. Pusey, 2025 ONCJ 227, Justice Jennifer Daudlin states the following at paragraph 138 of her decision:
“[138] A broad and liberal interpretation of “provision of necessities” is essential to ensure that children receive adequate support that reflects their needs and the standard of living they would have enjoyed had the family remained intact. This approach recognizes that the term encompasses more than mere subsistence; it includes the provision of a stable home environment, access to education, healthcare, and opportunities for personal development. It is not just the basic physical needs of a child that must be met. Child support is to ensure a child is not disadvantaged and that they can enjoy a similar standard of living to that of their parents, to the extent possible. In assessing the phrase “provision of necessities”, the court must consider the full context of the child’s circumstances and adopt an approach that safeguards the child’s overall well-being.”
363The court orders that the father shall designate the child as an irrevocable beneficiary of his existing life insurance policy and any future life insurance policy as security for his support obligations, including the arrears of support and section 7 expenses that the Ontario Court of Justice has ordered, until all arrears are paid in full. The face value of the life insurance policy will be a minimum of $100,000.00 to secure the father’s support obligations.
364For as long as the father is required to keep this insurance policy in place, he shall not borrow against the policy or pledge the policy as credit. The father shall provide proof annually that the policy remains in good force and is unencumbered.
365This order for support shall bind the father’s estate pursuant to subsection 34 (4) of the Family Law Act.
Final Order and Conclusion:
366The court makes the following final orders:
The father’s retroactive amount owing for the children’s section 7 expenses are fixed at $71,348.95, in accordance with the calculations made in this judgment. This amount includes the father’s contribution to Jian’s post-secondary expenses in the 2025-2026 calendar year.
Commencing June 1, 2026, the father shall commence paying the arrears fixed above to the mother at a rate of $1,000.00 per month.
The ongoing child support for the child Jian shall continue until June 1, 2026. It will be terminated at that time, following the completion of her undergraduate degree.
A Support Deduction Order shall issue. The Family Responsibility Office shall adjust its record accordingly.
The arrears calculated in this order do not replace the current monthly payments of $200.00 monthly owed by the father towards the arrears of table child support ordered by Justice Jennifer Hoshizaki in the Final Order dated January 31, 2023 until those arrears are paid in full. The payments toward the arrears owing under Justice Hoshizaki’s Order shall continue in full force and effect, in addition to the arrears owing under above under this order.
The father shall provide the mother with complete copies of his income tax returns, including all schedules, attachments, t-4 slips, statement of income and expenses, and any notices of assessment, by July 1st each year, the first year being July 1, 2026 until such time as the arrears are paid in full.
The father shall irrevocably maintain Jian as a beneficiary on any medical, dental or extended health plan that he has available to him through his place of employment and shall provide the mother with details of the plan and proof of the child’s coverage within 30 days of any request. This shall continue as long Jian is eligible for child support.
The father shall sign any documentation required authorizing the mother to make claims for the child directly to his health insurer.
The father shall designate the child as an irrevocable beneficiary of his existing life insurance policy and any future life insurance policies as security for his support obligations, including the arrears of section 7 expenses ordered here and the arrears owing under the Order of Justice Hoshizaki, dated January 31, 2023 until all arrears are paid in full. The face value of the life insurance policy and any future life insurance policies will be a minimum of $100,000.00 to secure the father’s support obligations.
For as long as the father is required to keep this insurance policy in place, he shall not borrow against the policy or pledge the policy as credit.
Annually, and no later than July 1st of each year, the father shall provide the mother with proof that the policy remains in good force and is unencumbered.
If the mother predeceases the father, then the father should directly pay any ongoing and retroactive child support and arrear payments owing directly to the adult children.
This order for support shall bind the father’s estate pursuant to subsection 34 (4) of the Act.
This Order shall bear interest at the rate of 5% per annum on any payment or payments in default, from the date of default until payment is made.
A Support Deduction Order and Support Deduction Order Information Form shall issue.
367The court thanks both parties, as self-represented litigants, for being well prepared for court, meeting filing deadlines, and acting professionally throughout this hearing. The court expresses my deepest condolences to both parents for the loss of their son. My best wishes for their adult daughters, who no doubt will have very bright futures, based on the evidence filed.
368If either party seeks their costs, they are to serve and file written submissions by April 1, 2026. The other party will then have until April 30, 2026 to provide a written response. The submissions should not exceed five pages, not including any bills of costs or offers to settle.
Released: February 19, 2026 Signed: Justice Sheilagh O’Connell
Footnotes
- The total amount of section 7 expenses claimed in the application is $214, 093.11. The mother served and filed an updated chart and calculation of section 7 expenses before trial for expenses claimed up to the date of trial, bringing the total section 7 expenses claimed to $234,663.03 and the father’s proportional contribution being $162,285.97, based on his income in each of the years claimed.
- The mother also provided evidence that she sent an email to the father on July 23, 2015, seeking to negotiate a separation agreement following the one-year anniversary of the final order, however, in reviewing this email, there is no mention of section 7 or child support.
- The mother provided substantial documentation for these medical issues.
- Crightney v. Garcia, 2024 ONCJ 431, at paragraphs 105 to 109, per Justice Stanley Sherr.