Court File and Parties

Court File No.: 1547/95 Date: 2018-09-04 Ontario Court of Justice

Between: Applicant — AND — Wayne Watson Respondent

Before: Justice A.W.J. Sullivan

Heard on: July 19, 2018

Reasons for Judgment released on: September 4, 2018

Counsel:

• Robert Shawyer, for the Applicant(s)
• Michael H. Tweyman, for the Respondent(s)

Endorsement

Introduction

[1] This is a decision in a Motion to Change commenced by Wayne Watson, the respondent.

[2] Mr. Watson seeks to change the order of Justice Parent dated May 1, 2014 in which he is ordered to pay child support as follows:

• $880 Guideline support
• $170.35 for section 7 expenses

[3] Since January 8, 2016, Mr. Watson's Table Child Support has been $630 per month, based on a consent without prejudice order.

[4] Mr. Watson commenced his Motion to Change on July 22, 2014 and filed an Amended Motion to Change on January 19, 2016 with leave of this court.

[5] The applicant, Ms. Coates, filed a Response to Motion to Change dated October 24, 2014 and an Amended Response on August 25, 2017.

[6] This decision is the second part of this proceeding and specifically deals with the appropriate amount of child support to be paid for their adult disabled child Joshua Coates, born December 19, 1994.

Charter Challenge and Legal Framework

[7] In 2016 during the first part of this proceeding, a Canadian Charter of Rights and Freedoms (Charter) challenge was commenced by Ms. Coates to section 31 of the Family Law Act (FLA), in that Joshua had turned 18 and because of his lifetime disability was unable to attend school.

[8] The wording of section 31 of the FLA connects an adult child's eligibility to child support to attending school and there are no grounds for support due to other reasons, such as a disability.

[9] I concluded in a decision dated July 7, 2017 that section 31 of the FLA, as it pertains to Joshua and this family, discriminates and is contrary to his section 15 Charter rights.

[10] To remedy the above found breach I decided that the applicable wording for support, as it relates to Joshua, should mirror the broader definition for eligibility for child support as found in the Divorce Act as follows:

… the word child in section 31 of the Family Law Act means a child who is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or obtain the necessaries of life.

Current Motion to Change

[11] Today Mr. Watson is seeking a termination of the order of Justice Parent and or a reduction in his child support obligations, in part as Joshua is receiving support through the Ontario Disability Support Program (ODSP), federal tax credits, and community programs such as Passport and the Brampton Caledon Community Living Respite.

[12] Mr. Watson has been paying child support pursuant to Justice Parent's order in the amount of $800.35 and all agree he is not in arrears.

[13] The parties are in agreement that Joshua will be unable to work to support himself now and in the future. He will also require some level of daily supervision and support to meet his basic needs for the rest of his life.

[14] It is agreed that he does have income through ODSP and as well that he receives some credits through support programs mentioned above.

[15] Mr. Watson has made an offer to pay $300 per month towards Joshua's needs that are not met by Joshua's above source of income or what might be considered the shortfall.

[16] Mr. Watson does contest some of the expense set out on behalf of Joshua in a financial statement filed by Ms. Coates outlining Joshua's specific needs per month.

[17] He also seeks a credit for overpayments that he has made to date, if this court concludes that his monthly child support should be less than what he has been paying pursuant to the current order. He requests this be from when Joshua turned 18 in December 2012.

[18] Ms. Coates' position in her Amended Response is as follows:

• A. The current Guideline amount of child support being paid by Mr. Watson $800.35 is what is required per month to meet Joshua's current needs.

• B. That after considering Joshua's means i.e. the funding sources mentioned above that his parents, she and Mr. Watson pay one half each of Joshua's monthly expenses not covered.

Evidence and Arguments

[19] Both parties presented complete arguments as to the legal roadmap that this court should adopt in deciding what are Joshua's appropriate needs, their incomes and the amount of child support to meet Joshua's needs.

[20] After considering their arguments I do not believe that their position is different on the following:

• a. The ODSP payments received by Joshua since 2014 forms the basis of a material change in circumstance.

Currie v. Currie, 2015 ONCJ 728; Collins v. Collins, 2015 ONSC 5160

[21] I agree with this and I find that Joshua's ODSP support forms the basis of a material change in this Motion to Change.

Calculation of Child Support

Presumption Regarding Application of Child Support Guidelines

[22] Presumption regarding whether to apply Child Support Guidelines or not for an adult child with needs and dependent on a parent.

In the evidence submitted, which I review below, and in submissions I find that both parties focused this court's attention on the analysis pursuant to section 3(2)(b) of the Child Support Guidelines, which directs this court to consideration the "condition, means, needs and other circumstances of the child" in question and the parties respective financial ability to meet these needs.

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

[23] Justice Parent in the decision Currie v. Currie, 2015 ONCJ 728, reviews the law in this regard which I adopt as follows:

(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.

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.

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."

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?

[24] The impact of ODSP 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.

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 ODSP payment received by the youth.

In Senos, 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 ODSP 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.

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."

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 ODSP commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and.."

Key Issues in the Motion to Change

[25] Considering the directions from the above decisions I find the main issues in this Motion to Change boiled down to the following:

• a. Fixing Joshua's monthly needs and the related costs and if there remains a "shortfall" what this amount is.

• b. Should the parents pay one half each to the shortfall or is Mr. Watson's offer of $300.00 per month sufficient to meet Joshua's needs as requested.

Considerations for Adult Disabled Children

[26] Before turning to the respective parties' evidence in relation to the above, I wish to note the following when it comes to meeting Joshua's needs and in general for adult disabled children who remain dependent on their parents.

[27] This support order for Joshua will not have an end date.

[28] This will be determined based on Joshua's ongoing needs which are indefinite.

[29] The applicant and the respondent will need to communicate in a much more effective manner than they have to date on reviewing Joshua's needs as these change and develop.

[30] The evidence presented indicates that his medical profile and the understanding of his disability and abilities changed from when he was young, being principally biological, Di George Syndrome/22q 11.2 Deletion Syndrome, to that in addition today that has a component of emotional and mental health issues that developed with his age.

[31] Further, I believe that it is important to recognize that when parents have discussions around the specific needs of a disabled adult child, such as Joshua, who will be unable to earn income independently and will require supervision of some level throughout his life, that parents also consider that the traditional focus on the basic needs might not be sufficient and a correct approach to adopt in meeting their adult child's needs.

[32] By this I mean that for an adult disabled child, such as Joshua, there may be costs that are not traditionally associated with monthly child support or what may be a special need.

[33] These particular items might not be essential to meet the daily requirements of an adult disabled child, but go to providing dignity, respect and the degree of independence today and in the future. In particular when one considers that an adult disabled child may outlive his/her parents. These costs could be money for daily discretionary spending, vacation or savings plans such as the Registered Disability Savings Plan.

Mr. Watson's Income and Position Re Joshua's Needs

[34] Mr. Watson testified at this hearing. In addition he filed a responding affidavit tab 1 of volume 12 of the continuing record and provided 2 disclosure briefs, one dated November 17, 2017 and the other dated June 27, 2018.

[35] Wayne Watson is a self-employed sales representative working for CTG Brands Inc. He provided to the court as part of his financial disclosure an employment letter—"terms of appointment" dated December 15, 2011 from CTG Brands.

[36] Mr. Watson described the goods that he sells to independent retailers, as goods one would find in dollar discount stores such as Dollarama.

[37] He described his daily routine as beginning at his home office making calls to potential customers. He does not have an office at the Corporation that he works for.

[38] He then purchases coffee to bring to different contacts for potential sales. He drives a 20-year-old Volvo and is on the road much of the day. He has approximately 475,000 kilometers on this vehicle and uses it according to his estimation 75 percent of the time for business.

[39] He testified that he has expenses for this employment for which he does not receive reimbursement for and that he deducts these as business expenses on his yearly income tax which he filed.

[40] He did not have original documentation to back up the expenses that are listed in the income tax returns for the last four years.

[41] His deductions are as follows:

• a. home office
• b. utilities
• c. auto expenses
• d. salaries
• e. telephone

[42] Mr. Watson testified that in addition he does have a small part-time job of about 4 to 5 hours each weekend working for a regional conservation authority.

[43] He testified that his main income fluctuates yearly, however he does receive a base commission of $56,000 per year from CTG Brands and the balance of his income is made up through his commissioned sales.

[44] Although Mr. Watson testified that he does not receive any expenses allowance from his employer, I note that the employment letter from CTG Brands does indicate that effective January 9, 2012 he had a base salary of $48,000 plus an auto amount of $6,000 and Internet/cell phone of $1,800. This letter goes on to indicate that he would make 1.5 percent commission from sales between $1.00 to $1,000,000 dollars.

[45] Mr. Watson was not questioned about the allowance for car and cell phone as outlined in this letter. He was however questioned on his deduction expenses and whether these are reasonable and needed for his employment.

[46] He testified that each year's income after the claim deductions for the following years as follows:

• 2014 - $38,984
• 2015 - $56,173
• 2016 - $44,143
• 2017 - $86,139
• Estimated 2018 - $70,332

[47] Recognizing that there was opposition to the deductions that he is claiming, on behalf of Mr. Watson, his counsel prepared a chart of his income with different scenarios if this court were to agree with his deductions or add back up 50 per cent of his currently claimed expenses in order to arrive at his annual income.

[48] If this position were to be accepted, this would place his yearly net income before it was grossed up to account for tax to be:

• 2014 - $54,018
• 2015 - $65,863
• 2016 - $60,121
• 2017 - $106,738
• Estimated 2018 - $85,332

[49] Mr. Watson testified that he did not agree with all of the expenses set out in Joshua's financial statement prepared on his behalf by Robyn Coates, exhibit 8 to this hearing.

[50] The items that he did agree to that are not covered by Joshua's funding or income streams were:

1. basic YMCA membership
2. Chiropodist—treatments and orthotics
3. Medication—tryptophan and prescription eyeglasses portion not covered by ODSP

Robyn Coates's Testimony

[51] Ms. Coates testified that caring for Joshua over the years has not only been challenging but also overwhelming at times.

[52] As he grew older so did the challenges and the road that she has taken to understand his condition and how to best work with him to meet his needs and daily routine.

[53] It has always been her goal that he not only be safe and happy but as productive as possible given his limitations.

[54] She explained that as he matured and turned about 18 there was a relearning for her of his conditions and in particular the development of his mental health diagnoses which pose new challenges.

[55] She has always accepted that his needs put constraints on her abilities to develop her career. She is a single parent with one income that is between $51,000 to $53,000 over the relevant period of time since 2014. She works for the local school system. The school and her employer in general have been accommodating to her over the years. She has been able to leave at lunch to check in on Joshua when he is not attending a day program.

[56] He cannot attend the day program routinely because of his mental illness which some days are better than others. He has attended the day programs through the community living program.

[57] She explained that it helps Joshua when she connects and touches base with him at lunch. It's important that he is up and about and has afternoons planned.

[58] She explained that Joshua's sources of income are principally from three sources:

• ODSP $881.00 per month = $10,572 per year
• Passport program and Brampton Caledon Community Living allowance/benefit if cost incurred of $3,600
• And a respite allowance from Brampton Caledon Community Living of about $600 per year

[59] She testified that the government sources of income noted above are able to cover his normal expenses but not all. She completed a financial statement for Joshua as accurately as possible given his changing needs.

[60] The above noted Passport funds are applied to the respite programs that he attends and or for workers during the day that take him out into the community.

[61] Ideally he attends a Connections program at least once a week.

[62] She testified that presently the $881 that ODSP provides to Joshua each month is divided between $600 going to her to cover his room and board and that Joshua is budgeted $281 for his own use.

[63] When questioned about this she admitted that it is not easy to control all of Joshua desires and needs and or control how he spends his money. This is part of a challenge as he is getting older.

[64] She noted that in the past, regrettably, Joshua has physically attacked her. His weight and height are a concern in any dispute she might have with him.

[65] There is a struggle managing his overall health and weight. She was questioned about his wanting to spend money on junk food and sugared drinks, which are currently an obsession in part because of his Obsessive Compulsive Disorder. Ms. Coates explained Joshua is working with a dietitian at the Toronto General Hospital that he sees regularly to monitor his overall health.

[66] Mr. Watson, through counsel, questioned the need for the annual expense of $7,051.20 for a personal trainer that Joshua works with through the YMCA.

[67] Ms. Coates explained that the personal trainer is a necessary component to motivate Joshua to reduce his overall weight and fight his obesity. He has recently become very interested in weight and power lifting.

[68] From this program he has benefited physically and psychologically. She reminded all that Joshua has no job, no driver's license and no prospects of being able to work even in a sheltered environment given his emotional outbursts at times and his size and strength.

[69] Powerlifting and the Y.M.C.A. program, with the assistance and supervision needed through a personal trainer, has given Joshua confidence that he has never had before. He is taking more risks. He is now walking to the Y on his own. He is showing growth emotionally and a sense of success and this is a step forward for Joshua.

Analysis and Decision

[70] As I have noted above of the parties have directed the court to the leading decisions of Ansell and Senos in assisting in understanding what legal principle should be applied in the particular facts of this case.

[71] After hearing Ms. Coates arguments I find that she does agree with the above decisions as a direction to this Court that the Table Child Support Guidelines should not be applied to fix support in these circumstances, but rather section 3(2)(b) of the Child Support Guidelines.

[72] Ms. Coates does go on to argue that the level of support required from Mr. Watson to assist in meeting Joshua's needs, after considering Joshua's contribution through the ODSP and other credits and supports, should be at a minimum the current amount that he is paying being $800.35.

[73] This she argues is the correct amount, after applying the above noted analysis, which she suggests illustrates not only Joshua's daily needs, but also will permit Joshua to thrive in our society.

[74] I find that the correct analysis, given the specific circumstances of Joshua's age and disability as an adult child, requires that I do not apply the Table Guidelines but rather section 3(2)(b).

[75] Therefore, in fixing Joshua's needs my analysis is not based on a Table amount depending on a parent's annual income and an accompanied section 7 analysis. It is a broader analysis, considering all of his needs, some of which are his daily basic needs and some of which might be considered traditionally section 7 extras.

[76] The analysis in section 3(2)(b) is one of sharing equitably the responsibility towards their adult child, after considering the child's contribution. In arriving at the parent's contribution I do not find that this must be done as in a section 7 analysis, proportionate to income given the broader nature of section 3(2)(b).

[77] The parties in their arguments before me did approach the issue of what would be the potential parent's contribution as if this were a strict proportionate contribution argument, as much time was spent on analyzing Mr. Watson's gross billings and legitimate expenses.

[78] However, when I reviewed Ms. Coates' Amended Response she asks that the parents pay each one half of any shortfall toward Joshua's needs not covered by his income.

[79] This was the alternative relief that she sought, if I did not agree with her position that the current amount of support paid by Mr. Watson is what is needed to cover any shortfall regarding Joshua's needs.

[80] Given this and my understanding of section 3(2)(b), I will not make an analysis of Mr. Watson's business expenses to determine his income from which I could consider potentially adding back some expenses and then gross up this net income for tax purposes in order to arrive at his line 150 income.

[81] I am also mindful of Justice Strathy's comments in Senos reviewed above:

… s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between A, his parents and society.

[82] An equitable balancing might mean that one party is to pay more given their circumstances in comparison to the others.

[83] Joshua's mother and father are both gainfully employed and have been so for all of his life.

[84] Ms. Coates' income over the course of this litigation has been between in the range of $53,000.

[85] Mr. Watson's income fluctuates, but at a minimum matches Ms. Coates's income and at times has been higher. This I find to be the case even if I were to accept the numbers presented by counsel for Mr. Watson that at best only 50 per cent of certain claimed expenses should be added back that would situate his income as noted above to be between $54,000 to as high as $106,000.

[86] In looking at Joshua's sources of income some of these are fixed and some of these are credits which is available depending on whether or not he uses certain services available. My understanding is the services would first need to be registered for and paid for in advance after which the credit is requested.

[87] I find in reviewing the evidence that Joshua's fixed income to be $11,148 as his means to contribute towards his costs which I will review below.

[88] This tends to be from all of the evidence the fixed amount that Joshua can rely on annually which is based on an annual contribution from:

• The Ontario Trillium benefit—$296 annually
• Ontario disability support program—$881 per month
• Goods and service tax harmonization sales tax credit—$280 annually

[89] From the above I find it to be reasonable that Joshua and his mother have come to an understanding that he will provide to her $500 per month towards his board and lodging and $100 towards his cell phone and internet bills, for a total of $600 per month—$7,200 per year.

[90] I also find it reasonable and required in the circumstances, that Joshua has $281 per month for discretionary spending. This amounts to $3,372 per year.

[91] From the above $10,572 is accounted for from Joshua's annual income of $11,148 or a balance remaining of $576 to cover his other needs which I will review below.

[92] I accept that Joshua should have, when considering his overall needs, some discretionary funds. I'm not here to decide whether how he spends these is appropriate to meet his needs, given my comments on how an adult child, such as Joshua, will need funds to fulfill certain needs that are not traditionally considered when looking at a child's budget.

[93] At this stage in the analysis there is $576 remaining in Joshua's annual budget to meet his needs.

[94] From here I will review Ms. Coates' evidence on Joshua's other needs and note some of these are contested by Mr. Watson as indicated above in my review of his evidence.

[95] Below are listed the needs that Ms. Coates has outlined for Joshua that she request to be shared equally between herself and Mr. Watson:

1. Day programs via Brampton Caledon Community Living—$300 per month. This cost is offset with a devoted credit from a community funding program called Passport and Brampton Caledon Community Living Respite Care when invoices are submitted. The potential credit could be a total per month of $290 leaving a $10 shortfall per month or $120 annual shortfall if Joshua went to this program each month.

As such from Joshua's annual surplus of $576 this would be down to $456.

2. Overnight Respite Support: this would be a cost of $240 per month permitting Ms. Coates' time to herself. This potential expense is contested.

Mr. Watson suggests it is a projected cost and not one that exists. Ms. Coates indicates that the Development Service Ontario program that assists her in her sole care of Joshua has recommended this for her well-being. She has not used this program as she cannot afford the $240 per month or $2,880 per year cost.

[96] It should be noted that Mr. Watson and Joshua are estranged. Mr. Watson has not physically cared for Joshua. It has only been Ms. Coates with the assistance of family and community supports.

[97] Ms. Coates argues that she would potentially use this service and incur the cost from time to time if this were shared or covered in the budget.

[98] Considering the evidence I believe that this should be a cost similar to those that I have noted above, unique in the circumstances and equitable, given the entirety of Joshua's needs and what it requires to meet those needs.

[99] He has never been in a group home or sheltered community setting outside his home, he has always been in his mother's care, and his emotional and physical needs along with the assistance of professionals are met daily by Ms. Coates. There needs to be some support to her and this must be built-in as a recognized cost. Without that this above care for Joshua might not be sustainable.

[100] The support for family caregivers, such as Ms. Coates, must be a recognized cost to be equitably shared by the parties and a recognized need by our society at large.

[101] I received no evidence of any government or community funding for this category of Joshua's care and therefore this should be a cost paid for between the parents.

[102] I find this cost to be reasonable every other month 6 × $240 = $1,440.

Considering Joshua surplus in his annual income or means, as noted above at this point to be $456 this leaves a shortfall in Joshua's basic needs of —$984.

[103] Both parents agree to the following costs for Joshua per year:

• a. YMCA membership—$279.72
• b. Chiropodist treatments and orthotics—$1,175
• c. Tryptophan a prescribed medicine to assist with a sleeping disorder not covered by ODSP and Prescription glasses not fully covered ODSP—$1,376 + $65 = $1,441

These items total annually to be $2,895.72, which would make the shortfall in funding up until this point to be $3,879.72.

[104] The next expense for consideration is a once per month massage session to alleviate stress neck and back problems that Joshua has. This has been recommended by his family physician because of his multiple health issues. The current cost for these are approximately $96 once per month. The evidence presented is that this course of treatment is directed by his family doctor and is reasonable. This cost would be $1,152.00 per year bringing the shortfall annually to $5,031.

[105] The next item is not consented to by Mr. Watson and considered to be unnecessary and unreasonable. That is a personal trainer for Joshua while he attends the Y.M.C.A. The evidence from Ms. Coates was that Joshua benefits from the personal training sessions. It provides direction and motivation. Joshua has been walking to the Y.M.C.A. on his own which Ms. Coates indicated was a major step forward in terms of his motivation and confidence. He attends the Y.M.C.A. for these training sessions twice per week.

[106] In support of this expense, evidence from Joshua's cardiologist, Doctor E. Oechslin, Toronto General Hospital was presented with recommendations that underlined the importance of a healthy lifestyle with regular exercise and a balanced diet. Joshua has been followed at the Toronto General Hospital from birth due to difficulties with his heart that required interventions to repair its functioning. Ms. Coates admitted when questioned that it is a struggle to have Joshua not consume sugared drinks and fast food. This she testified to as part of his OCD. He is working with a dietitian as noted above through the Toronto General Hospital.

[107] It was clearly noted in the above doctor's report that Joshua reports to be exercising twice per week weightlifting as well as with a personal trainer. When he is on the elliptical machine he does not like it as much and is assisted in this exercise in part through the motivation of his trainer. He is participating in Special Olympics basketball and struggles with a healthy diet and that Joshua admitted to enjoying fast foods. His weight is 106 KG.

[108] The cost presented for Joshua's personal trainer is $587.60 per month or $7,051.20.

[109] I agree with submissions from Mr. Watson that this is a major expense in the overall budget.

[110] I must however balance this with the medical recommendation that Joshua maintain a healthy lifestyle. This is not easy to accomplish, at the best of times for everyone, and could be a greater challenge for Joshua as it is for many in our community.

[111] The evidence presented is that he has been seen from an early age because of heart difficulties, he has OCD and struggles with his diet as part of that. He is struggling with his weight and is a large individual.

[112] Ms. Coates testified that he has also gained confidence and a degree of independence and self-worth through his activities at the Y.M.C.A. The weightlifting program that he currently is interested in requires, as other activities in Joshua's life, some direction and supervision from others. All of the above are addressed through the assistance of this personal trainer. Developing now this habit assists Joshua presently in his overall development and is recommended for his ongoing maintenance of his health. We were reminded that unlike other members of our community Joshua is not working and/or studying. He has few interests and/or activities in his life that he can point to as achievements and his weightlifting and interests at the Y.M.C.A. are an area that has helped him feel good about himself as a unique person with a skill in his own right.

[113] It is for these reasons that I do find this expense is necessary and addresses his unique circumstances.

[114] This would then place the deficit/shortfall regarding Joshua's needs not covered by his means and resources annually at $12,082.20.

[115] The final costs which was requested for Joshua and not covered by the Passport program is four excursions annual events to a variety of social, recreational or educational activities on Wednesday evenings at $90 per excursion. These are separate and apart from another program entitled Momentum that Joshua has participated in which is covered, it appears from the evidence, through funding via the Passport program.

[116] As such the last item which I find reasonable for Joshua are these four excursions per year for a total of $360 per year.

[117] This brings the overall shortfall based on my analysis to be $12,420 or $6,221 per parent or $518.41 per month per parent.

Credit for Overpayments

[118] At this point I wish to consider Mr. Watson's request for a credit, not a lump sum repayment, retroactive to when he commenced his motion to change in July 2014, if I found that he should pay a different sum of monthly support, which I have given the above analysis.

[119] I find however that the request for credit amounts to be the same thing as a repayment in a lump sum.

[120] The credit would need to be factored in as a reduction in future payments and therefore would come out of the budgetary needs for Joshua, effectively reducing the money that Joshua has in his budget.

[121] Mr. Watson is not demanding the money be repaid and as such he recognizes that both Joshua and Ms. Coates do not have this money set aside for a lump sum repayment.

[122] The calculation in this regard being a potential credit amounts to a difference of $281.94 per month which would make the total credit to date to be $19,128.94 from the date of his Motion to Change.

[123] I wish to pause here to indicate that I am not granting this relief as requested by Mr. Watson. I recognize that he is within his rights to request this.

[124] I am not granting this as when I conducted my analysis of Joshua's needs above each category was associated to unique needs given who he is and his health and not cost for items such as vacation, gas/transportation costs, clothing and entertainment. These items are covered in the discretionary money that is set aside by Ms. Coates for Joshua monthly as noted above.

[125] I also believe that the above credit should be considered by Mr. Watson as a notional, one lump time contribution, towards the Registered Disability Savings Plan (RDSP) that has been registered in Joshua's name. I did not factor this in when considering the essential needs as noted above to be shared by Joshua and his parents.

[126] This particular registered savings plan comes with a significant amount of matching grants from the federal government and in addition other monies that a low-income family might receive if a RDSP is opened and yearly contributions are made. Such a fund would make a difference towards Joshua's needs in the future if he outlives his parents. Depending on the amount in such a fund over the years it could easily assist in maintaining dignity and a degree of independence that I spoke about earlier in this decision.

[127] The court received information that Joshua has such an RDSP plan and has made contributions towards it.

Final Order

[1] Paragraphs 1 and 2 of the May 1, 2014 child support order of Justice Parent are terminated and replaced with the following:

[2] Mr. Wayne Watson shall pay monthly child support to Ms. Robyn Coates for the child Joshua Coates, born December 19, 1994 in the amount of $518.41 per month commencing September 1, 2018 and on the first of each month thereafter until a further order of this court.

[3] A Support Deduction Order shall issue.

[4] There shall be no costs in this matter.

Released: September 4, 2018

Signed: Justice A.W.J. Sullivan