Court File and Parties

Ontario Court of Justice

Date: 2015-12-16

Court File No.: Brampton 1534/97

Between:

Catherine Currie Applicant

— And —

Nelson Currie Respondent

Before: Justice L.S. Parent

Heard on: November 24, 2015

Reasons for Judgment released on: December 16, 2015

Catherine Currie ............................................................................................ on her own behalf

Nelson Currie ................................................................................................. on his own behalf

PARENT J.:

PROCEEDINGS BEFORE THE COURT

[1] The matters before the court arise from the filing of a Motion to Change by the Respondent on June 5, 2015 and the filing of a Response by the Applicant on June 30, 2015.

[2] In his Motion to Change, the Respondent requested to vary paragraph 1 of the final order of Mr. Justice Wolder dated January 30, 2006. The relevant paragraph reads as follows:

"1. The Respondent shall pay to the Applicant for the support of the children under the age of majority the sum of $818 each month in accordance with the child support table for the province of Ontario commencing on the 1st day of February, 2006 and on the 1st day of each month thereafter."

[3] The preamble to the order of Wolder, J. identifies the children related to the support order. Paragraph A provides as follows:

"The Applicant and the Respondent are parents of the following children within the meaning of the Children's Law Reform Act and the Family Law Act, who are under the age of majority and the subject of these proceedings: Mark George Currie, born December 7, 1994 and Keith Gordon Currie, born March 28, 1996."

[4] The Respondent's request is that the order of Wolder, J. be varied so as:

(a) to terminate the child support regarding the child, Mark George Currie, effective December 12, 2012;

(b) to terminate the child support regarding the child, Keith Gordon Currie, effective March 28, 2014; and

(c) to fix any arrears of support owed to the Applicant and Ontario Works as of March 28, 2014.

[5] The Applicant, in her Response, requested an order dismissing the Respondent's claim and requested child support be payable for both children until they reached the age of twenty-one (21) years.

HISTORY OF THE PROCEEDINGS

(A) Case conference – August 24, 2015

[6] On August 24, 2015, the parties and Ontario Works reached the following agreement:

(a) on a final basis, an order terminating the Respondent's child support payments for the child, Mark George Currie, born December 12, 1994 effective December 31, 2012;

(b) on a final basis, that the Respondent's child support obligation for the child, Keith Gordon Currie, born March 28, 1996, be fixed at $435.00 per month commencing January 1, 2013 until December 1, 2013 and fixed at $514.00 per month for the months of January, February and March, 2014; and

(c) on a temporary basis, that the Respondent's child support obligation for the child, Keith Gordon Currie, born March 28, 1996, be $514.00 per month, commencing April 1, 2014 and continuing on the 1st day of each month thereafter, based on the Respondent's disclosed income of $56,661.00.

[7] The consent order further provided for additional disclosure to be exchanged between the parties.

(B) Case conference – October 21, 2015

[8] On October 21, 2015, the parties attended for a further case conference. Ontario Works did not participate in this conference as the consent order reached on August 24, 2015 resulted in their interest in this matter being resolved on a final basis.

[9] Given the consent reached by the parties and Ontario Works on August 24, 2015, the only issue which remained before the court for determination was whether or not the Respondent's child support obligation regarding his son Keith should be eliminated or reduced.

[10] Following discussions and with the assistance of Duty Counsel, the parties were unable to reach an agreement. The matter was therefore scheduled for a hearing of the Motion to Change on November 24, 2015.

[11] Discussions however produced a consent by the parties whereby they admitted to certain facts being accepted as evidence for the purpose of the focused hearing on November 24, 2015.

[12] The facts consented to by the parties are as follows:

(a) Keith is currently over the age of majority, namely nineteen (19) years old;

(b) Keith remains enrolled in a full-time program of education, namely high school;

(c) Keith resides with his mother (the Applicant) on a full-time basis;

(d) Keith receives $871.00 per month as a payment under the Ontario Disability Support Plan Act, S.O. 1997, c.25, Sched. B and regulations ("ODSPA"); and

(e) Keith has been receiving this amount since April 2014.

[13] Given that the parties were each self-represented, I ordered that their evidence be given by oral testimony and each party having the opportunity to ask questions of the other following this evidence.

ISSUE

[14] The issue to be determined is as follows, namely should the Respondent's child support obligation pursuant to the order of Justice Wolder dated January 30, 2006 be varied effective April 1, 2014 based on a material change in circumstances, namely the receipt of "ODSPA" payments by the child Keith Gordon Currie?

POSITION OF THE RESPONDENT AT THE HEARING

[15] The Respondent submits that his child support obligation should be terminated or in the alternative, reduced effective April 1, 2014 given that Keith began receiving a monthly payment of $817.00 under the "ODSPA."

POSITION OF THE APPLICANT AT THE HEARING

[16] The Applicant submits that the Respondent's claim to vary child support should be dismissed. She claims that the "ODSPA" payments received by Keith should not impact his entitlement to child support under the Child Support Guidelines.

ANALYSIS

[17] The Respondent's Motion to Change must be considered within the framework of section 37 of the Family Law Act, R.S.O. 1990, c.F.3 ("FLA"). The relevant subsections read as follows:

Application for variation

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

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

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

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

Application of child support guidelines

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. 1997, c. 20, s. 6.

Has there Been a Material Change in Circumstances?

[18] As previously indicated, the parties, by consent, both acknowledge that Keith has been in receipt of a monthly "ODSPA" payment in the amount of $871.00 since April, 2014.

[19] The Applicant did not raise any argument that the Respondent's request to review the order of Wolder, J. as it relates to child support was not properly before the court. The Applicant's position is that Keith's "ODSPA" payments should not affect the amount of support the Respondent is required to pay under the Child Support Guidelines. Her position therefore focused on the amount to be paid and not that a material change in circumstances under section 37(1) "FLA" has not occurred given Keith's entitlement to these payments.

[20] Given the facts consented to by the parties and the evidence heard at the hearing, I find that the entitlement of Keith to receive "ODSPA" payments effective April 1, 2014 amounts to a material change in circumstances as defined under section 37 of the "FLA."

[21] Given this determination, I must consider whether or not there should be a change to the existing child support order, namely whether or not Keith's entitlement to these payments results in a corresponding termination or adjustment to the Respondent's child support obligation given the parties' consent that Keith remains a child entitled to child support.

The Respondent's Evidence

[22] The Respondent testified at the hearing of this matter.

[23] In his evidence-in-chief, the Respondent testified as follows:

(i) He acknowledges that Keith remains enrolled in high school;

(ii) He considers Keith an adult and not a child;

(iii) He asked the Applicant to provide information regarding Keith's expenses and no information was provided;

(iv) He testified that he was aware that Keith has previously had part-time employment and therefore is capable of earning income;

(v) He has faithfully paid his child support as required under the order of Wolder, J. dated January 30, 2006; and

(vi) He believes that the Applicant requires the child support payments for her "to survive" and that his payments are not for Keith.

[24] The Applicant cross-examined the Respondent. Her questions however were focused on the historical reasons behind the parties' separation and the Respondent's access to the children of their relationship. The evidence heard as a result of the questions asked by the Applicant were therefore not of significant assistance in the determination of the issue before me.

The Applicant's Evidence

[25] The Applicant, during her testimony, provided the following evidence:

(i) There are financial struggles within her home as between her Ontario Works subsidy and Keith's "ODSPA" payment, they receive $1,500.00 per month to pay for their expenses;

(ii) Given the payments they each receive, the Applicant needs the child support payment by the Respondent to "make ends meet";

(iii) Keith has emotional difficulties which has created challenges including being evicted from three (3) houses in the past seven (7) years; and

(iv) She has been solely responsible for the care of both children since the parties' separation.

[26] The Respondent cross-examined the Applicant. The evidence of the Applicant can be summarized as follows:

(i) The monthly "ODSPA" payment goes directly into Keith's bank account;

(ii) The Applicant withdraws funds from Keith's account so as to assist her in making their rent payments and other monthly bills, including the telephone bill, credit card bills and debt payments;

(iii) Of the monthly payment of $871.00, Keith retains $30.00 per month as an allowance;

(iv) She and Keith reside in a two (2) bedroom apartment which has such facilities as a pool and a gym which Keith uses;

(v) Keith is currently in a co-op program through school;

(vi) When not in the co-op program, Keith attends school daily from 7:00 a.m. to 3:30 p.m. however he has not attended school every day due to his anxiety;

(vii) Keith has worked in the last five (5) years however she is unsure if he is able to sustain employment given his emotional difficulties;

(viii) Keith has been taking medication for his disability; and

(ix) She is barely able to meet hers and Keith's needs with the income she receives, which includes the Respondent's child support obligation.

[27] A review of the file indicates that the Applicant did not file a financial statement or any other documentary evidence regarding the expenses she testified she is currently incurring for herself and for Keith.

[28] It is clear that this is an emotional situation between the parties. The questioning by each to the other focused on the historical events leading up to and following their separation. Each party sought to blame the other for what was and clearly continues to be a painful and difficult situation in that the parties' sons do not have a relationship with their father and to varying degrees, continue to rely on their mother.

[29] The result is that the evidence provided by each party at the hearing of this matter was not focused on the issue before me for determination. Accordingly, the relevant evidence provided was of limited assistance.

[30] Although not specifically referenced, the Respondent's position is that the Table approach under section 3(2)(a) of the Child Support Guidelines is inappropriate in these circumstances given Keith's monthly "ODSPA" payment.

[31] The Respondent submitted that Keith is a competent young man who is capable of earning income, even with a disability. This income should not be used to assist the Applicant in meeting her expenses. Rather, the Respondent believes that the Applicant should secure employment and meet her own expenses without any contribution from Keith.

[32] The Respondent submits therefore that he should not pay any child support as the monthly "ODSPA" payment received by Keith meets all of his expenses. In other words, the variation of the order of Wolder, J. to provide that the Respondent's child support obligation for Keith continues to be calculated in accordance with the Tables of the Child Support Guidelines is inappropriate. Should inappropriateness be established, I must therefore turn to an analysis under section 3(2)(b) of the Child Support Guidelines. Section 3(2)(b) requires child support to be calculated based on a consideration of Keith's "condition, means, needs and other circumstances…" and the parties' respective financial ability.

[33] Although not specifically referenced, the Applicant's position is that the Respondent should continue paying full Table support, pursuant to section 3(2)(a) of the Child Support Guidelines. She submits that this support is needed so as to meet Keith's financial well-being. Without this support, the Applicant cannot meet this family's, which she describes as herself and Keith, expenses. Therefore, the Table amount of support is appropriate in the circumstances.

[34] As previously indicated, there is no dispute between the parties that Keith continues to be a child who is over the age of majority who continues to be entitled to support due to his enrolment in a full-time educational program and continues residing with his mother even though he is over the age of majority.

[35] There is therefore no dispute between the parties that Keith's current status meets the requirements of section 31 of the Family Law Act, thereby his entitlement to support is not in issue. The dispute focuses on which approach under section 3 of the Child Support Guidelines is to be relied upon in the calculation of the Respondent's child support obligation.

Calculation of child support

General Principles

[36] Section 3 of the Child Support Guidelines provides as follows:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

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

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

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[37] The Ontario Court of Appeal in Lewi v. Lewi, outlined the general principles regarding the manner in which the calculation of child support for children over the age of majority is to be determined pursuant to section 3 of the Guidelines.

[38] The Court states as follows:

"The court is directed by section 3(2)(a) to start with the presumption that in cases involving children over the age of majority, child support should be calculated in the same manner as for a child under the age of majority, that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses which is determined to be appropriate. The court described this approach as "the standard Guidelines approach." However, the court must then determine whether this approach is "inappropriate" based on the particular facts of the case.

If the court determines that the standard Guidelines approach is inappropriate, the court must determine the amount of child support in accordance with section 3(2)(b) of the Guidelines, which provides that the amount of support is the amount which the court considers appropriate, "having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child." The use of the term "approach" in section 3(2)(b) makes it clear that the court cannot depart from the standard Guidelines approach simply on the basis that the amount determined using the standard Guidelines approach is inappropriate.

Where the child is over the age of majority, and the court determines that applying the standard Guidelines approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines, and resort should not be made to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines and its experience in applying them. By way of example, it would be entirely appropriate for the court, pursuant to section 3(2)(b), to follow the guiding principle set out in section 7 that expenses referred to in that section should be shared between the parents in proportion to their respective incomes, after deducting the contribution if any of the child.

Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has the discretion to decide the amount that the child should be expected to contribute."

[39] Recently Justice Chappel, of the Ontario Superior Court of Justice, in her decision in Aubert v. Cipriani, 2015 ONSC 6103, provided the following comments regarding the approach the court must use in addressing the calculation of child support for children over the age of majority. She states at paragraph 39 of her decision as follows:

"Based on the foregoing, the preliminary issue to be determined in addressing quantum of child support for adult children is whether the standard Guidelines analysis is an inappropriate approach to calculating support. The term "inappropriate" in the context of section 3(1) of the Guidelines means "unsuitable" rather than "inadequate." There is a broad discretion with the trial judge to determine whether or not the standard Guidelines approach should be resorted to (Rebenchuk, Supra.). However, section 3 creates a presumption in favour of the Table amount being ordered, and the party seeking to deviate from that approach bears the onus of rebutting the presumption. That party is not required to call evidence to rebut the presumption. They may do so by simply questioning the other party's evidence…"

Is a Calculation under Section 3(2)(a) Inappropriate?

[40] The impact of "ODSPA" payments on the calculation of child support has been addressed by the Ontario Court of Appeal in its decision in Senos v. Karcz, 2014 ONCA 459.

[41] In the Senos decision, the court considered the father's position that the Table approach under section 3(2)(a) of the Child Support Guidelines was inappropriate in the circumstances and the determination of his child support obligation should be based on the "conditions, means, needs and other circumstances" of the adult child of the marriage under section 3(2)(b). The father's position was that his support payments should be reduced dollar-for-dollar by the monthly "ODSPA" payment received by the youth.

[42] The mother's position was also considered by the court. The mother, relying on the Ontario Court of Appeal's decision in Ontario (Director of Disability Support Program) v. Ansell, 2011 ONCA 309, submitted that the "ODSPA" payments belong to the youth, whereas child support was to assist her in meeting the youth's expenses. Accordingly, the Respondent's child support pursuant to the Table amount was appropriate.

[43] At paragraph 54, Justice Strathy, writing on behalf of the court, states as follows:

"ODSP reflects society's commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and A's receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on A's unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support."

[44] Justice Strathy continues at paragraph 67:

"The Table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between A, his parents and society."

[45] There was an absence of any evidence raised by either party to satisfy me that the approach adopted by Strathy, J. in the Senos decision should not be applied in this case.

[46] There is significant similarity between the facts before me and those outlined in the Senos decision. In both cases, children over the age of majority who continued to be entitled to receive child support pursuant to the "FLA" were receiving a set monthly payment pursuant to the "ODSPA". Given these facts, the Court of Appeal was clear in its determination that a child support order pursuant to section 3(2)(a) was inappropriate.

[47] Accordingly, I find that the Respondent has met his onus of establishing that the calculation of child support pursuant to section 3(2)(a) of the Child Support Guidelines is inappropriate. Given this determination, it is necessary to rely on an analysis under section 3(2)(b) of the Child Support Guidelines to determine an appropriate amount of child support to be paid by the Respondent for Keith.

Calculation under Section 3(2)(b)

[48] As previously stated, the calculation of child support under section 3(2)(b) requires the court to consider "… the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child".

[49] The parties, in their testimony, have provided limited evidence in order to assist me in considering the criteria of section 3(2)(b) and determining child support for Keith.

[50] The limited evidence provided clearly establishes that the Applicant uses the "ODSPA" payments to assist in meeting the living expenses for herself and for Keith.

[51] The Applicant testified that of the $871.00 payment per month Keith receives, he keeps $30.00 thereby leaving $841.00 used by the Applicant towards expenses.

[52] The Applicant however did not provide any evidence, other than stating the amount of her monthly rent payment and a general reference to other expenses, as to how these funds are used, whether the expenses are reasonable given the Applicant's income level, whether the expenses are solely for Keith's benefit and/or the joint benefit of Keith and the Applicant.

[53] The evidence provided by the Applicant regarding her household expenses was very general and not supported by any documentary evidence, including a sworn financial statement.

[54] The Applicant also testified that Keith has had employment in the past. She however did not testify as to the income he earned and whether this income was used by the family or only by Keith.

[55] The Applicant did testify that she is currently in receipt of social assistance through Ontario Works. As previously noted, she did not provide a sworn financial statement or proof of her income.

[56] The Applicant also did not provide any medical evidence as to her inability to work outside the home. She did however indicate in her evidence that she has been solely responsible for all decisions regarding her children and given Keith's behaviours, she needs to be available to "… supervise him, especially when he is on the computer ..."

[57] The evidence of the Applicant does satisfy me that the expenses incurred for even the basic needs of Keith, such as housing, food and clothing, are being met on a limited budget.

[58] The Respondent did not cross-examine the Applicant on her use of the funds, her ability to work outside the home or other financial circumstances. In submissions, the Respondent did indicate that he believed that the Applicant is able to work.

[59] There is no dispute between the parties as to the Respondent's income.

[60] The temporary order consented to by the parties on August 24, 2015 varied the Respondent's child support obligation to $514.00 per month effective April 1, 2014 based on an annual income of $56,661.00. This is the amount of child support payable pursuant to section 3(2)(a) of the Child Support Guidelines.

[61] The Respondent did file a financial statement sworn June 5, 2015. This document however is not complete as the Respondent did not provide any details regarding his income other than he earned $56,551.00 in 2014 and has been unemployed since May 28, 2015. The document indicates monthly expenses of $2,084.09 and savings of $1,576.00.

[62] The Applicant did not cross-examine the Respondent on his financial circumstances.

[63] Given the totality of the evidence presented by both parties, I find that child support in the amount of $275.00 per month effective January 1, 2016 is an appropriate amount considering the factors outlined in section 3(2)(b).

[64] In making this determination, I am considering that the "condition, means, needs and other circumstances…" as noted in section 3(2)(b) which include that the monthly "ODSPA" payment received by Keith is being used by the Applicant for his direct and indirect benefit as these funds (1) assists the Applicant in ensuring that Keith's basic needs are addressed and (2) are used by Keith for his own benefit by way of a monthly allowance.

[65] I am further satisfied that the "…financial ability…" of the Respondent permits him to continue making a reduced child support payment for the benefit of Keith. I am however not satisfied that the "…financial ability…" of the Applicant permits her to increase her obligation towards her son's support to the extent that the termination of the Respondent's child support obligation would create.

[66] Furthermore, I am not satisfied that a retroactive adjustment to the Respondent's child support obligation to April 1, 2014 is appropriate. In making this determination, I considered the following factors:

(a) The Respondent filed his Motion to Change on June 5, 2015;

(b) In his Motion to Change, the Respondent requested the termination of his support obligation to Keith effective March 28, 2014. He did not request a retroactive adjustment and did not lead any evidence to support such an order;

(c) The Respondent consented to a temporary order on August 24, 2015 whereby he would provide a child support payment for Keith in the amount of $514.00 per month. The Respondent did not provide any evidence that he was unable to meet this obligation. The Applicant did not provide any evidence that the Respondent was in arrears;

(d) Should a retroactive order be granted, an overpayment of $4,780.00, namely an overpayment of $239.00 for a period of twenty-one (21) months between April 1, 2014 and December 31, 2015, would result. The evidence provided by the Applicant satisfies me that she does not have the ability to repay this amount. Furthermore a credit to the Respondent as a method of repayment would result in a period of seventeen (17) months where support would not be paid. The condition, means, needs and other circumstances of Keith do not make such an order appropriate.

ORDER

[67] For the reasons expressed above, the following order is granted:

(1) Paragraph 1 of the final order of Wolder, J. dated January 30, 2006 is varied to provide as follows:

The Respondent shall pay to the Applicant for the support of Keith Gordon Currie, born March 28, 1996, the sum of $275.00 per month effective January 1, 2016 and on the 1st day of each month thereafter for as long as Keith remains enrolled in a full-time program of education pursuant to section 31(1) of the Family Law Act.

(2) The Applicant shall immediately notify the Respondent and the Family Responsibility Office should Keith no longer remain enrolled in a full-time program of education and/or no longer reside with her;

(3) S.D.O is to issue;

(4) Each party is to bear their own costs given the following factors:

(a) the Respondent's request to terminate his child support obligation was not granted;

(b) the Applicant's request to dismiss the Respondent's Motion to Change was not granted; and

(c) Both parties were self-represented throughout the proceedings.

(5) Courts Administration is to prepare the final order and approval by both parties is waived.

(6) Courts Administration is also to provide a copy of these reasons and a copy of the order, once issued and entered, to Ontario Works.

Released: December 16, 2015

Justice L.S. Parent