ONTARIO COURT OF JUSTICE

Date: November 1, 2018

Court File No.: Toronto D1499/93 B1

BETWEEN:

M.P.A.N.

Applicant (Responding Party)

— AND —

J.N.

Respondent (Moving Party)

Before: Justice Alex Finlayson

Heard on: May 28, September 20, and October 1, 2018

Reasons for Judgment released on: November 1, 2018

Counsel:

• Maureen Bennett Henry, for the Applicant
• Anthony Colangelo, for the Respondent

ALEX FINLAYSON J.:

PART I: NATURE OF THIS CASE

[1] This is my judgment following the trial of the Respondent father's (the moving party's) Motion to Change and the Applicant mother's Response to the Motion to Change respecting child support for their 29 year old daughter, J.K.N. This case calls upon the Court to decide:

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

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

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

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

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

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

PART II: BACKGROUND AND THE PARTIES' POSITIONS

[2] J.K.N. was born on […], 1989. She lives with her mother. That has been the case for all of the years during which child support is in dispute in this case. She essentially has no relationship with her father.

[3] The governing Order that the father seeks to have terminated retroactively is that of Justice Debra Paulseth dated March 31, 2006. On that date, Paulseth J. dismissed the father's motion to set aside a prior order made on an uncontested basis, fixed additional child support arrears, and ordered the father to pay child support of $583 per month commencing January 1, 2006 for J.K.N. She also ordered the father to provide his "current income tax assessment each year by May 15, commencing in 2006, along with other relevant disclosure" and to pay costs of $8,000.00, plus "applicable GST". At the time of Paulseth J.'s Order, J.K.N. was 16 years old.

[4] The father continued to make payments pursuant to this Order until April of 2017, when he succeeded in having the FRO discontinue enforcement. Rather than returning to Court earlier, the father regularly asked the FRO to ask the mother to confirm whether J.K.N. was still entitled to support. As I will explain, the mother regularly disagreed. The FRO eventually agreed to discontinue support enforcement in 2017, when J.K.N. was 28 years old, only after the father involved an FRO manager and his Member of Parliament.

[5] The father commenced this proceeding on August 4, 2017, 11 years after Paulseth J. made the March 31, 2006 Order. When he launched his Motion to Change, he still did not have all of the necessary information to formulate a final position about when J.K.N.'s entitlement to child support ought to have ended. He subsequently obtained disclosure at the interim stages of this case.

[6] As a result of obtaining disclosure, the father amended his position for trial and asks the Court to terminate child support retroactively as of June 26, 2008, the date that J.K.N. graduated high school. The disclosure the father obtained reveals that J.K.N. enrolled in 6 different college programs in 3 different schools over the years since high school. In fact, in the year that the father launched this proceeding to terminate support, J.K.N., at age 28, enrolled in her 6th college program, after having been out of school for at least 4 years. Her transcripts reveal that she has earned only 1 credit, ever, in these various programs.

[7] The mother's Response to Motion to Change includes a claim for continued child support, which she abandoned a few months prior to trial. Specifically, she withdrew that claim on or around January 22, 2018, although at trial she testified that if the Court thought child support should continue to be paid, then I should order it.

[8] Notwithstanding that J.K.N. enrolled in various college programs after high school, the father nevertheless argues that J.K.N.'s child support should have ended as of her high school graduation. He argues that J.K.N. did not apply herself at college when she was enrolled, and at times, she was enrolled part-time or not at all. He argues that she switched programs multiple times, she earned very low grades or no grades at all, she failed to attend classes, she withdrew from courses, and she never obtained a degree or diploma.

[9] The father says that his proposed termination date results in the mother owing him $66,233.66.

[10] Her claim for continued child support that she abandoned aside, the mother's revised position is that the Court should terminate child support retroactively to January 1, 2014 only. But as I will explain, this date is arbitrary in part, in that it is not entirely connected to any terminating event per se. Rather, the mother says that this Court should not go back any further, because to do so would exceed 3 years and she says this would be inconsistent with the Supreme Court's decision in D.B.S. v. S.R.G., 2006 SCC 37 ("D.B.S."). Incidentally, I note that the proposed January 1, 2014 termination date is actually 3 years and 8 months prior to the commencement of this proceeding.

[11] Although she now agrees that child support should terminate retroactively, the mother disputes that she owes the father any money back, or at least as much money as the father says. Although she did not plead this relief, the mother has asked that the Court set-off the two aforementioned costs orders that she says are owing to her, plus interest, against any money that might be found to be owing to the father. Specifically, she says the father owes her $23,273.76 as of May 26, 2018 on account of those unpaid costs and interest. (Exclusive of interest, the costs orders total $14,932.72). But as I will explain, the mother's calculations contain errors.

[12] In response to this, the father says he did in fact pay the prior costs orders. Moreover, he tendered an Order of the Ontario Court (General Division) Small Claims Court, dated August 1, 1996 granting him judgment against the mother of $2,284.65, plus interests and costs that he says the mother never paid. He is not asking for any relief in connection with this Small Claims Court Order. But he has filed it to make the point that he too was unpaid, and he isn't asking to enforce that Order now, so why should she.

[13] Further or alternatively, the mother also argues that the father failed to provide annual disclosure as he was required to do in the years after Paulseth J.'s Order, that he failed to adjust his child support upwards when his income increased, and that he failed to contribute towards the cost of J.K.N.'s college courses. She argues this is blameworthy behaviour that should be taken into account.

[14] In response to this alternative submission, the father says the mother never asked for increased support or his contribution to J.K.N.'s post-secondary expenses. And he says that she chose to 'lie low' and not 'rock the boat', while continuing to collect support to which she was not entitled.

[15] As will be seen in these reasons, what should have been a more straightforward case about child support ending as a child aged into adulthood became much more complex when the parents failed to communicate with each other, when the mother failed to be honest and cooperative with the FRO, because whoever prepared one of the costs orders to be issued and entered didn't pay attention to detail and follow the statute, and because of various delays in this case on both sides. As such, the Court is now presented with arguments and counter arguments, respecting how much money, if any, is owing, and on what basis it should be paid or repaid.

PART III: SUMMARY OF THIS RULING

[16] For the reasons that follow, I find:

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

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

(3) I also find that the father did not pay the two costs orders of Justice Bean dated February 17, 2004 and Justice Paulseth dated March 31, 2006.

[17] These three findings themselves do not dictate the end result in this case. Ultimately, the Court must make an Order that is fair, guided by the applicable legal principles. Prior to and during closing submissions, the Court invited submissions from counsel on specific points to assist me to craft a just result. In some instances, the lawyers did not provide case law or authorities to answer the submissions that the Court requested.

[18] The Court still has a number of questions of counsel about the final order that should be imposed in light of the ruling on the three points that I am making. I continue to require additional submissions on certain points. It is the Court's expectation that counsel will provide case law and authorities to answer the Court's questions, which I will map out. If no such cases or authorities exist, then counsel should research relevant authorities and make arguments by analogy. Counsel should not re-attend to tell the Court that it has jurisdiction to make certain orders without coming with authorities. Below, I will set out what is required and a process for the Court to receive the additional submissions.

PART IV: IMPORTANT FACTS ABOUT THE PARTIES AND THE CHILD

A. The Father

[19] The father is almost 57 years old. He is an officer with the Canada Border Services Agency. He has been with the CBSA since 2001. He teaches new recruits and also does enforcement work out of the Toronto Pearson Airport.

[20] The father's base salary is $70,000 per year. Sometimes, as part of the teaching aspect of his job, he must travel to other parts of Canada. He earns additional money when traveling for this purpose, as he is paid at a higher pay grade for that work.

[21] The father does not have other income. In about 1998, he used to work as a teaching assistant at York University. Based on this prior work experience, he said he was able to read and interpret certain codes on J.K.N. transcripts once he received them.

B. The Mother

[22] The mother is 52 years old. Until 2015, she worked as a nursing attendant and an instrument technician at Humber Regional Hospital. I do not know for how long she held this job, but I do know that she is a union member, she is a member of a pension plan, and she has various benefits, including private disability insurance through her work.

[23] She stopped working in 2015 for reasons that were not properly explained to the Court. In cross-examination, the mother testified that she is not retired. She said she is "sick" and "can't work". She did not explain her illness. But she also said that she is still currently employed and that her employer must hold her job for 2 ½ years.

[24] The mother's ability to repay an overpayment is a relevant factor to consider in this case. But by the end of the trial, I was left without a complete picture about how the mother is supporting either herself, or J.K.N., whom she said remains financially dependent upon her. I did not have a clear picture of the mother's income or financial circumstances. There was certain information that she specifically did not wish to share with the Court. I found the mother to be evasive when testifying about her income and financial circumstances.

C. The Adult Child, J.K.N.

[25] As set out above, J.K.N. is now 29 years old.

[26] Commencing in the fall of September 2017, J.K.N. is once again enrolled at Humber College. This is the 6th college program into which she has enrolled since high school.

[27] Until this current academic year, J.K.N. did not apply for or receive any scholarships or bursaries. For the 2017-2018 year, J.K.N. received a student grant of $4,679.00 and a student loan of $1,956.00.

[28] Both the mother and J.K.N. testified that J.K.N. is financially dependent on the mother. J.K.N. added that she is also emotionally dependent on her mother.

[29] The mother testified that she pays for J.K.N.'s food, clothing and shelter. She has also paid for J.K.N.'s college tuition and J.K.N. transferred her tuition tax credits to her mother.

[30] J.K.N. testified that she has been unable to move out of her mother's home because she is not financially stable. She said that her mother helps her if she needs bus tickets, gas money, clothing, food and shelter. Regarding the emotional support she receives, J.K.N. relied on her mother when her grandmother died in 2008.

[31] J.K.N. is not currently working. She has not worked on a full-time basis since she graduated from high school. While she was enrolled in college in some years, in the years she was not, she did not work full-time either. She has worked part-time at times, holding jobs with the Canadian National Exhibition, working at the Pan Am Games held in Toronto in 2015, and at Harvey's Restaurant. I did not hear evidence about why she could not have worked on a full-time basis in the years since high school.

D. Prior Legal Proceedings Concerning Child Support

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

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

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

Paulseth J. also made certain retroactive adjustments to child support between the date of Bean J.'s Order and her Order. Specifically, she increased the father's child support to $610 per month for the 12 months of 2005, based on his 2004 income of $75,716.00. The FRO Statement of Arrears tendered at this trial reflects that the FRO did in fact update its records to account for these adjustments.

I was not told who prepared Paulseth J.'s Order to be issued and entered. I do note though that at the time the mother was represented, and the father was not. In any case, whoever prepared it neglected to include the standard interest clause in it that specifies the post-judgment interest rate to be charged on any amounts owing. As a result, the Order was issued and entered without that standard interest clause; and

(3) As set out above, the father tendered an Order of the Ontario Court (General Division) Small Claims Court, dated August 1, 1996 awarding him "judgment for $2,284.65 plus pre and post-judgment interest in accordance with the Courts of Justice Act, plus the costs of issuing & serving claim."

As I said, the father is not seeking to enforce this Order. Rather, he argues that the mother's "decades-old claims for costs are not properly before this Honourable Court". He has filed the Small Claims Court judgment as an example of a Court Order that he says the mother never paid either. Incidentally, the interest rates and the costs that the Small Claims Court awarded, referred to in the Order, are not specified or quantified either.

[33] Prior to this trial, both Justice Ellen Murray and I had made interim disclosure and Trial Management Orders dated December 6 and 15, 2017, and April 9, 2018. I need not summarize these orders in full, except I will mention that on December 15, 2017, Murray J. ordered the father to provide proof of payment of past costs orders. I will come back to the significance of this term of Murray J.'s Order later when dealing with questions of proof regarding the mother's claim to set off unpaid costs orders from the money I have found her to be owing to the father.

PART V: APPLICABLE STATUTORY PROVISIONS

[34] This is a variation proceeding governed by the Family Law Act, R.S.O. 1990, c. F.3, as amended (the "FLA") and the Child Support Guidelines, O. Reg 391/97, as amended (the "Guidelines"). This is also the father's request for repayment of an overpayment, which is governed by the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended (the "FRSAEA"). Finally, the mother's request to set off any repayment ordered against the costs owing to her is governed by the Court of Justice Act, R.S.O. 1990, c. C.43, as amended.

[35] Various other legal principles apply to the multiple arguments that I heard.

A. The Family Law Act

[36] I begin with the entitlement sections of the FLA. They are sections 29 and 31. The relevant portions of those sections read:

Definitions

29 In this Part,

"dependant" means a person to whom another has an obligation to provide support under this Part;

[37] The current version of section 31 of the FLA that sets out a parent's obligation to support his or her child has only been in force since December 14, 2017. The predecessor to section 31 was amended following a constitutional challenge to it in Coates v. Watson, 2017 ONCJ 454, in which Justice A.W.J. Sullivan ruled that the former version of section 31 violated the applicant's and the child's section 15 Charter rights. The current version of section 31 reads:

Obligation of parent to support child

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

(a) is a minor;

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

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

Idem

31 (2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[38] The previous version of section 31 read:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

Idem

31 (2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[39] Other applicable provisions of the FLA are:

Order for Support

33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

Purposes of order for support of child

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

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

(b) apportion the obligation according to the child support guidelines.

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

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

(f) requiring that support be paid in respect of any period before the date of the order;

Application for variation

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

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

(b) a parent of a dependant referred to in clause (a);

Powers of court: child support

37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

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

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

(c) make any other order for the support of a child that the court could make on an application under section 33.

Application of child support guidelines

37(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

B. The Child Support Guidelines

[40] The Child Support Guidelines, O.Reg. 391/97, as amended also govern this case. The relevant sections are:

Child the age of majority or over

3(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

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

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

Special or extraordinary expenses

7(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(e) expenses for post-secondary education;

Sharing of expense

7(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

7(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

C. The Family Responsibility and Support Arrears Enforcement Act

[41] The father's request for an order that the mother repay him any overpayment of child support is governed by the FRSAEA. The relevant sections read:

Interpretation

Definitions

1 (1) In this Act,

"support deduction order" means a support deduction order made or deemed to have been made under this Act or its predecessor;

"support order" means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

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

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

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

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

(e) payment of expenses in respect of a child's prenatal care and birth,

(e.1) payment of expenses in respect of DNA testing to establish parentage,

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

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,

and includes such a provision in,

(h) a domestic contract that is enforceable under section 35 of the Family Law Act, or

(i) a notice of calculation that is enforceable under section 39 of the Family Law Act.

Duty of Director

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

Director to cease enforcement

Termination of support obligation

8 (1) Subject to section 8.3, the Director shall cease enforcement of a support obligation provided for in a support order or support deduction order filed in the Director's office if the support obligation has terminated.

How termination is determined

8(2) For the purpose of subsection (1), a support obligation is terminated if,

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

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

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

(d) in the case of an obligation for the support of a child, the Director receives notice, in accordance with the regulations, of the child's death.

Notice to Director

8(4) For the purposes of clause (2) (a), if a support order or related support deduction order is filed in the Director's office, each party to the support order shall give the Director notice of a termination of a support obligation under the order, in the manner and at the time prescribed by the regulations.

Disputes

8.4 (1) If the parties to a support order do not agree that a support obligation has terminated or if the agency referred to in section 8.3 does not provide its consent under that section, the court that made the support order shall, on the motion of a party to the support order or of the agency,

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

(b) make an order to that effect.

Same

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

Same

8.4(3) If an issue as to whether the support obligation has terminated arises within an application between the parties, it is not necessary to make a separate motion under subsection (1).

Order to repay

8.4(4) A court that finds that a support obligation has terminated may order repayment in whole or in part from a person who received support after the obligation was terminated if the court is of the opinion that the person ought to have notified the Director that the support obligation had terminated.

Same

8.4(5) In determining whether to make an order under subsection (4), the court shall consider the circumstances of each of the parties to the support order.

Role of Director

8.4(6) An order under subsection (4) is not a support order and shall not be enforced by the Director.

Same

8.4(8) Despite the termination of a support obligation, the Director shall continue to enforce the support obligation in respect of any arrears that have accrued.

Director not a party

8.4(9) The Director is not a party to,

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

(b) a motion to decide whether a support obligation has terminated.

[42] Certain sections of O. Reg. 167/97, as amended, made under the FRSAEA, are relevant in this case. Those sections read:

3. For the purposes of clause 8 (2) (a) of the Act (agreement re termination), the matters agreed upon by the recipient and the payor shall be set out in writing,

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

(b) in separate documents, one signed by the recipient and the other signed by the payor.

4(1) For the purposes of subsection 8 (4) of the Act (notice of termination), notice that a support obligation under a support order or support deduction order has terminated shall be in writing and shall contain the following information:

1. The case number assigned to the support order by the Director's office.

2. The payor's full name.

3. The recipient's full name.

4. The address and telephone numbers of the party submitting the notice.

5. If applicable, the fax number, e-mail address and work address of the party submitting the notice.

6. The address and telephone numbers of the other party, if known.

7. Information sufficient to identify the specific support obligation that has terminated, including the date of the support order and the name of the dependant to which the support obligation relates.

8. The reason for the termination.

9. The date of the termination.

4(2) The notice shall be given as soon as possible after the support obligation has terminated and may be given before the support obligation has terminated.

5(1) Subject to subsection (2), the Director shall notify the recipient if the Director receives notice under subsection 8 (4) of the Act from a payor that a support obligation has terminated, and shall request that the recipient confirm or deny that the support obligation has terminated.

5(2) Subsection (1) does not apply if the support obligation terminates on a set calendar date specified in the support order.

5(3) A recipient shall respond in writing to a request from the Director to confirm or deny that a support obligation has terminated.

5(4) If the recipient confirms part, but not all, of the payor's notice of termination, the parties are considered to have agreed that the support obligation has terminated to the extent of the confirmation.

5(5) If the recipient denies all or part of the payor's notice of termination, the Director shall notify the payor of the denial.

5(6) The Director is not required to notify the payor on receiving notice under subsection 8 (4) of the Act from a recipient that a support obligation has terminated.

D. The Courts of Justice Act

[43] And finally, the mother's request to set-off the costs that are owing to her against any child support overpayment is governed by section 111 of the Courts of Justice Act. It reads:

Set off

111 (1) In an action for payment of a debt, the defendant may, by way of defence, claim the right to set off against the plaintiff's claim a debt owed by the plaintiff to the defendant.

Same

111(2) Mutual debts may be set off against each other even if they are of a different nature.

Judgment for defendant

111(3) Where, on a defence of set off, a larger sum is found to be due from the plaintiff to the defendant than is found to be due from the defendant to the plaintiff, the defendant is entitled to judgment for the balance.

PART VI: LAW AND ANALYSIS

[44] As this is a statutory Court, the jurisdiction to order the mother to repay the father, or to deal with the mother's competing claims must emanate from a statute.

A. The Court's Discretion to Order the Repayment of Child Support

[45] Beginning with the father's claim to recover a child support overpayment, as I have set out, there is limited statutory authority to make such an order flowing from the FRSAEA, specifically sections 8.4(4) and (5). The decision about whether to make a repayment order under these sections is discretionary. The statute offers only some guidance about how the Court should exercise that discretion.

[46] In Meyer v. Content, 2014 ONSC 6001, Justice Deborah Chappel canvassed these sections, as well as a myriad of other issues similar to those raised in this case, and mapped out a number of criteria that are helpful in explaining how a Court ought to exercise its discretion in a repayment case under the FRSAEA. I have followed the approach in Meyer v. Content.

[47] As Chappell J. said at ¶ 94-96, there is no automatic entitlement to be reimbursed for an overpayment of child support. Rather, the determination about whether the Court should order the repayment of support involves a three step analysis, namely:

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

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

(3) Third, even if the Court determines that the recipient should have taken steps to stop enforcement, the Court maintains a discretion as to whether or not to order the recipient to reimburse the payor for all or part of the overpayment. This step requires the Court to consider "the circumstances of each of the parties to the support order".

[48] I begin with the question of when J.K.N.'s entitlement to support terminated.

(1) The Termination of Child Support

[49] In a variation proceeding such as this, section 37(2.1) of the FLA requires that there be a "change in circumstances within the meaning of the child support guidelines" in order for the Court to terminate support. There is no question that there has been such a "change in circumstances". J.K.N. became an adult after Paulseth J.'s support order was made. The table amount of child support was then no longer presumptive according to section 3(1) of the Guidelines. At that point, section 3(2) of the Guidelines became applicable.

[50] Moreover, both parents agree that there has been a change in circumstances and that child support should end. The dispute in this case is about when and on what terms.

[51] As there has been a change in circumstances when J.K.N. turned 18, the mother bears the onus to demonstrate J.K.N.'s continued entitlement to support. See Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (C.A.); see also Meyer v. Content at ¶ 29. This analysis is complicated somewhat in a retroactive case as a result of the recent amendment to section 31 of the FLA.

I - Which Version of Section 31 Applies?

[52] The parties are asking the Court to retroactively terminate support and between the time of each party's proposed termination date and now, the law regarding entitlement to child support changed.

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

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

[55] But now, the current version of section 31 is in force today is broader. If it is the current section 31 that should apply to the Court's retroactive determination, then the end date might theoretically be different from a date selected under old section 31. For example, if J.K.N. was "unable by reason of illness, disability or other cause to withdraw from the charge" of her parents, regardless of this Court's ruling about her enrollment in "a full time program of education" on a specific date, then support might be extended beyond that date.

[56] Given this recent change to the legal landscape, I invited submissions from counsel regarding which version of section 31 should apply to the decision that I must make now. Neither counsel submitted case law or any statutory authorities on this point to assist the Court, although the father's counsel submitted that the termination date would not change regardless of which version applies.

[57] The answer to a similar question was dealt with by Benotto J. (as she then was) in S.(R.) v. H.(R.), 2000 CarswellOnt 1994 (S.C.J.). In S.(R.) v. H.(R.), Benotto J. considered whether the amendment to the definition of spouse in section 29 of the FLA that extended spousal support to "same-sex partners" (as the legislation then defined gay and lesbian spouses) following the constitutional challenge in M v. H. applied retroactively, notwithstanding that the specific Bill that enacted the changes did not specifically provide for its retroactive application. Nevertheless, Benotto J. concluded that the amendment did apply both retroactively and retrospectively.

[58] Although there is a presumption that new legislation is not intended to have a retroactive or retrospective application, Benotto J. held that the definition of "same-sex partner", then in the FLA, was itself backward looking. It required the Court to consider whether two persons had cohabited in the past. And more particularly, section 34(1)(f) of the FLA gave the Court the power to make a retroactive support order. As such, she interpreted the amendment to apply retroactively, in part because the spousal support of the FLA as a whole applied retroactively. She said the Bill, which enacted the changes, did not need to have a specific retroactive provision because the FLA already did.

[59] Bennotto J. also relied on section 10 of the Interpretation Act (now section 64(1) of the Legislation Act, 2006, SO 2006, c 21, Sch F). The current section 64(1) of the Legislation Act provides that legislation is to be interpreted as being remedial. It is to be given such "fair, large and liberal interpretation as best ensures the attainment of its objects". The legislation that extended spousal support to gay and lesbian spouses following M. v. H. was passed to remedy an unconstitutional wrong. As remedial legislation, Benotto J. held that it must be interpreted broadly.

[60] Similarly in the case of entitlement to child support, the FLA has a retroactive and a retrospective application. I note that in S.(R.) v. H.(R.), Benotto J. had before her an initial application for retroactive spousal support. As she noted, initial applications may have retroactive application pursuant to section 34(1)(f) of the FLA. Thus she applied the new, then current definition of "same-sex partner", to the case before her and decided whether to retroactively grant the spouses support pursuant to section 34(1)(f). As this case is a motion to retroactively vary child support, section 37(2.1)(a) empowers the court to "discharge, vary or suspend a term of the order, prospectively or retroactively". I read the statute as telling me that the current bases of entitlement under section 31 must apply, but I am directed to apply those bases retroactively when considering a retroactive variation under section 37(2.1)(a). The section does not tell me to apply a previous statutory provision, which may have been previously in force, but is no longer so.

[61] Furthermore, I also note that the amendment to section 31 was also introduced to remedy a wrong. The amendment was initially introduced in the Ontario legislature by way of a private member's Bill 113. At that point, the Bill had passed only the first reading. In the Hansard Debate relating to Bill 113 on March 29, 2017, MPP Peggy Sattler stated the bill was introduced to address "the discrimination against unmarried parents in the current Family Law Act" and to amend "the Family Law Act so that parents must provide support for their adult child if the child has an illness, disability or other issue that makes them unable to support themselves".

[62] The final version was later enacted, with little debate, as part of omnibus Bill 177 that received Royal Assent on December 14, 2017.

[63] This is not a case where a court has already decided a termination date and the Court is being asked to allow a party to re-litigate that finding based on a subsequent change to the law. Rather, the question of when a previously ordered support order should terminate has not yet been decided. In my view, there is no impediment to deciding the issue and I must apply the now existing section 31, enacted to remedy a legal wrong, to the retroactive decision that I am being asked to now make. To do otherwise might result in the Court unfairly applying an old statutory provision that has been ruled unconstitutional, to deny a child support to which she is entitled.

[64] I am further of the view that this approach is consistent with the broad approach to entitlement to child support that has been adopted in the case law, which I deal with next.

II – The Approach to Entitlement Under Section 31 of the FLA

[65] To determine when J.K.N.'s entitlement to support ended pursuant to section 31 of the FLA, I begin with the principle that I should take a broad look at the question of J.K.N.'s entitlement. I note this was the approach taken by Berger J. in Baker v. Baker at ¶ 6, albeit in his interpretation of the definition of "child of the marriage" under the Divorce Act. But the case law has established the same broad approach to entitlement under the FLA.

[66] Taking a broad approach is consistent with both the purposes of a child support order set out in the FLA and some of the objectives of the Guidelines. For example, the purposes set out in section 33(7) of the FLA are to recognize that each parent has an obligation to provide child support and to apportion that obligation according to the Guidelines. And the objectives listed in section 1 of the Guidelines include to establish a fair standard of support for J.K.N. to ensure that she benefits from the financial means of both parents, and to ensure consistent treatment of parents and children in similar circumstances.

[67] I note that even under the previous, more narrow version of section 31 of the FLA, the case law developed so as not to apply an overly rigid application of "enrollment in a full time program of education" to prematurely cut off adult, but still dependant children, from support. See Meyer v. Content at ¶ 29-31.

[68] And regardless of which version of the FLA applies in this case, I heard arguments that mostly centered around whether J.K.N. was enrolled in a "full time program of education" anyway. Both parents argued that J.K.N.'s dependency was related to her status as a college student. But I did also hear some evidence about J.K.N.'s ability or inability to achieve independence, apart from the question of her school attendance. That evidence, tendered by the mother, is relevant to whether J.K.N. was "unable by reason of illness, disability or other cause to withdraw from the charge" of her parents, so I will deal with both arguments.

[69] Beginning with the question of J.K.N.'s school enrollment, in a very comprehensive fashion, at ¶ 29-33 of Meyer v. Content, Chappel J. sets out the law respecting what is required for child support to be ordered based on an adult child's enrollment in a "full time program of education". While the new section 31 broadens the bases of entitlement to child support, I note that the amendment did not abandon the old statutory language about enrollment in a full time program of education in the predecessor to section 31. Therefore, the case law decided under the previous section remains applicable in cases where dependency flows from an adult child's continued educational path.

[70] I reproduce most of ¶ 29-33 of Meyer v. Content as follows:

[29] …….Where the claim for ongoing support under the Family Law Act is based on the child's enrolment in a full time program of education, the party seeking support must provide tangible evidence of the child's enrolment and attendance in the program, and has the onus of satisfying the court that the child's level of participation in the program meets the requirements of section 31(1) of the Act (Vohra v. Vohra, 2009 ONCJ 135, [2009] O.J. No. 1446 (Ont. C.J.)). Enrolment in a full time program of education requires more from the child than simply being registered in a full time program (Figueiredo v. Figueiredo (1991), 33 R.F.L. (3d) 72 (Ont. Gen. Div.)). Furthermore, the policy of the applicable educational institution as to what constitutes enrolment in a full time program is not determinative of whether the child's involvement in the program meets the requirements of section 31(1) of the Act (Cava v. Cava, 139 A.C.W.S. (3d) 904, [2005] O.J. No. 2316, [2005] O.T.C. 430, 2005 CarswellOnt 2287 (S.C.J.)).

[30] The word "enrolled" refers to the child's participation in the program. In order to remain eligible for support, the child's participation in the program must be meaningful from both a quantitative and qualitative standpoint, and must be "consistent with the program's purposes and objectives" ([Giess v. Upper, 1996] O.J. No. 5600 (Gen. Div.)](https://www.canlii.org/en/on/onsc/doc/1996/1996canlii8102/1996canlii8102.html)). From a quantitative standpoint, while a child need not have stellar attendance in programming in order to meet the test, there must be a reasonable degree of attendance taking into consideration the child's particular needs and challenges. From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program taking into account their overall level of functioning. The determination of whether a child's participation in an educational program in question is sufficiently meaningful to secure ongoing entitlement to support must take into consideration the particular circumstances of the child. A standard of perfection in terms of attendance and success in the program is not required. The wording of section 31(1) must be construed flexibly and for the benefit of children, so as to ensure that children enrolled in an educational program have "easy access to the fruits of this section" (Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Wilson v. Wilson, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (S.C.J.)). Accordingly, a child may remain entitled to support on the basis of enrolment in an educational program even if their participation and achievement levels are problematic, provided that the effort which the child is putting forth is within their capability given their particular circumstances. (Copeland v. Copeland, Supra; Vohra v. Vohra, Supra.; Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 CarswellOnt 3340 (Div. Ct.); Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.); Vivian v. Courtney (November 17, 2010), Doc. D3067/93 (Ont. S.C.J.); Gillesse v. Earl, 2011 CarswellOnt 826 (S.C.J.)).

[31] A finding that a child over the age of majority is enrolled in a full time program of education does not end the entitlement analysis. By virtue of section 31(2) of the Family Law Act, an adult child of the relationship who is involved in a full time program of education may nonetheless have no child support entitlement if they have withdrawn from parental control. Ongoing eligibility for support is therefore also dependent on the court finding that the child is unable to withdraw from parental control. A child will be found to be unable to withdraw from parental control if their overall circumstances are such that they remain financially and emotionally dependent on one or both of their parents (Martin v. Taylor, 2007 CarswellOnt 8863 (S.C.J.); Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J)). The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.

[32] Where, as in this case, it is alleged that the child cannot withdraw from parental control due to enrolment in an educational program, the court must carefully consider the child's overall financial and daily living circumstances, and whether the child's participation in the program is reasonably necessary in order for the child to achieve a level of self-sufficiency that is commensurate with the child's interests and aptitude. The case-law respecting entitlement to child support under the Divorce Act (R.S.C. 1985 c. 3 (2nd Supp.), as am.) provides valuable guidance respecting the factors that the court should take into account in deciding entitlement for adult children involved in ongoing studies. Under the Divorce Act, a child of the relationship who is eighteen years of age or older and enrolled in post-secondary studies may be entitled to support if they are under parental charge and unable to withdraw from that charge or to obtain the necessaries of life. The case-law has clarified that in order to establish that a child is unable to withdraw from parental charge due to enrolment in ongoing educational studies, the court must be satisfied that the child's educational plan is reasonable taking into account the child's abilities, the plans and expectations of the parents in regard to the child's post-secondary education, and the needs and means of the child and the parents. As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.) at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is "unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child." The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. Master), Darlington v. Darlington (1997), 32 R.F.L. (4th) 406 (B.C.C.A.), Bradley v. Zaba (1996), 18 R.F.L. (4th) 1 (Sask. C.A.), Geran v. Geran, Supra., Rebenchuk v. Rebenchuk, Supra., Haist v. Haist 2010 ONSC 1283, 2010 83 R.F.L. (6th) 147 (Ont. S.C.J.) and Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (S.C.J.):

1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

3. The ability of the child to contribute to their own support through part time employment.

4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

5. In reviewing the child's education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

6. The age, qualifications and experience of the child.

7. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

8. Whether the child is performing well in the chosen course of studies.

9. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

10. The means, needs and other circumstances of the parents and the child.

11. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

[33] The courts have held that it is not necessary to address all of the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, Supra.; Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11).

[71] Sometimes delays in bringing lawsuits to the Court result in important evidence not being available. In regards to J.K.N.'s academic performance, the delay in bringing this case to the Court has resulted in me having better evidence in certain respects. The father argues that I have the benefit of years of transcripts, and the transcripts as a whole show that the child did not apply herself and that her educational plan was not reasonable. Armed with years of transcripts, he argues that the Court should order a cut-off right after high school.

[72] While tempting, I have cautioned myself against taking this approach, even with the years of transcripts and the benefit of hindsight. I do not think J.K.N. should not be denied support back to such an early date.

[73] Had the parties returned to Court concerning child support around the time that J.K.N. graduated from high school and had J.K.N. presented a post-secondary plan, the Court would not yet have had any evidence of her poor post-secondary academic performance. It is highly likely that a judge would have continued child support at that time. It is also my view that had the parties returned to Court early on as J.K.N. started to perform poorly, she would have been given some additional latitude. Thus, I have difficulty with the father's assertion that there should be a different and more rigid result now after the fact.

[74] However, I also agree with Chappel J.'s comments at ¶ 42 of Meyer v. Content, where she said, "[a]lthough enrollment in a full time program of education is a concept that must be interpreted through a lens that is sensitive to the child's challenged and needs, the flexibility of the context can only stretch so far." The child must engage in the program in a meaningful way, despite any issues that the child is dealing with. With these principles in mind, I turn to the evidence to determine when J.K.N.'s academic pursuits became no longer reasonable.

III – The Court's Analysis Respecting a Termination Date

[75] I find that J.K.N.'s entitlement to child support terminated as of April 30, 2010. I say this for the following reasons.

[76] As set out above, J.K.N. graduated high school in June of 2008. J.K.N.'s transcripts covering the period from the fall semester in 2008 through to the 2017-2018 academic year, were filed with the Court. In cross-examination, J.K.N. testified that a passing grade meant 60%.

[77] I summarize J.K.N.'s transcripts in the following chart:

Year	College & Program	Comments About J.K.N.'s Performance
Fall 2008-Winter 2009	Humber College – Fitness and Health Promotion	J.K.N. enrolled in 8 courses in the fall term for a total of 23 credit hours. She barely passed Introduction to Software Applications scoring 61% and earning 1 credit hours. Otherwise, her grades ranged between 21 and 54 in the other courses she signed up for. In one of the courses she took called College Writing Skills, her grade was 21%. J.K.N. did not pass any courses in the winter term. Her average grade was 38.4%. J.K.N. was placed on academic probation.
Fall 2009 – Winter 2010	Humber College – GAS Special Topics	J.K.N. enrolled in 5 courses per term this year. Her average grade was 9% in the fall term and 16.4% in the winter term. She earned 0's in 5 of the 10 courses that she took this year, one of which was College Writing Skills, a course she enrolled in for the second time. In the result, she earned no credit hours at all this year. Her academic standing was "academic withdraw" by the end of this year.
Fall 2010	Humber College – GAS Special Topics	J.K.N. took only 3 courses per term this year. Her average grade was 34% in the first term and 0% in the second term. She scored 0's in all three courses in the second term.
Winter 2011	Humber College – Community and Justice Services	J.K.N. enrolled in 3 courses this term. She earned 0's in all three. Once again, her academic standing became "academic withdraw" by the end of this year.
Fall 2012	Sheridan College – Business Accounting	J.K.N. enrolled in 6 courses the fall term. Her transcript reveals that she earned four F's, and there is one withdrawal. The grade for Introduction to Sociology says "NE", the meaning of which was not explained to the Court. Nevertheless, the transcript reveals that she did not earn any credits for the Sociology course.
Winter 2013	No transcript provided	No transcript provided
Fall 2013	Centennial College – Business Accounting	J.K.N. enrolled in business accounting again, this time at Centennial College. She enrolled in 6 courses, and earned 3 F's and 3 "FNA's". The father testified that this means "Fail Not Attend".
Winter 2014 through to Winter of 2017	J.K.N. was out of school	J.K.N. was out of school
Fall 2017 to Current	Humber College – Healthy Lifestyle and Food Management	J.K.N. enrolled in 12 courses in the 2017-2018 school year. However, incomplete disclosure of J.K.N.'s academic progress was provided. The transcript supplied reveals only one grade, and J.K.N. earned 49% in that course. No details about her performance in the other courses have been supplied.

[78] As the transcripts reveal, J.K.N. enrolled in the first college program, Fitness and Health Promotion, after high school. I heard very little evidence from J.K.N. about the goals she had at the time she enrolled in this, or about what the program's objectives were. In any case, she only passed one course, and just barely.

[79] That said, I am also mindful that the standard of perfection is not the test that I must apply, and I did hear some evidence to explain J.K.N.'s past poor performance. I am only prepared to accept some of this evidence though. I will explain.

[80] I accept that J.K.N.'s early poor performance at school may have been impacted by the death of her grandmother. J.K.N. testified that she maintained a very close relationship with her grandmother, who passed away in the months before she started college. On this point, I find that J.K.N. was credible. I accept that J.K.N.'s relationship with her grandmother was an important one to her and her grandmother's death impacted her.

[81] However, the second explanation that J.K.N. seems to offer up to explain her poor performance is that it was her father's fault. In her affidavit sworn January 24, 2018, J.K.N. says that her past poor academic performance stemmed perhaps in part from the "serious emotional trauma" she says she experienced during the period 2003 to 2008 due to "false allegations and innuendos made by [her] father" and that she has suffered from the "residual impact" of that litigation.

[82] It is common ground that J.K.N. and her father do not have a relationship with one another. They do not speak to each other. This has been the case at least since Paulseth J.'s March 31, 2006 Order, although likely earlier than that. On this topic, when talking about the emotional support she receives from her mother, J.K.N. also told the Court that her father "didn't give [her] any emotional support".

[83] It was clear from all of three witnesses' testimony that this relationship is estranged, although none of the witnesses really explained why that is. Perhaps if the parties had provided more detail, I would have a better understanding about why the relationship was estranged, what impact that might have had on J.K.N., and perhaps why the parties' did not directly discuss the support termination issues that are now before the Court, before coming to Court years later. But the parties did not get into this history, perhaps wisely to spare themselves the agony of further digging up and airing at trial what is obviously painful history.

[84] Given the paucity of evidence on this point, I cannot place any weight on J.K.N.'s bald statement that her past poor academic performance may stem from the "serious emotional trauma" that she says she experienced without proper evidence to support such a statement. But nevertheless, having heard both explanations, and taking a broad approach, I would not terminate child support during J.K.N.'s first year.

[85] In her second year, J.K.N. switched programs and enrolled in "GAS Special Topics". J.K.N. explained that for her second year, she switched programs to see if she could do better and lessen her course load. Once again, I heard very little evidence from J.K.N. about the goals she had at the time she enrolled in this, or about what this second program's objectives were. Although she took fewer courses, she performed worse. As I will explain, even in one course that she repeated, she earned a lower grade.

[86] This notwithstanding, I am still prepared to find it was reasonable for J.K.N. to switch gears and to try again. I would not terminate child support during the second year.

[87] However, and while I am sympathetic to J.K.N.'s loss of her grandmother, I cannot accept that there ought to have been continued child support payments after the end of her second year, particularly in light of the evidence I heard about J.K.N.'s failure to take steps to address any suffering that she says she was experiencing, nor to address her poor academic performance. As I will explain, her academic performance continued to decline and neither she nor the mother did really anything to remedy the situation.

[88] The mother would have the Court give J.K.N. more leeway than what I have found to be appropriate and asks the Court to continue child support for another 3 ½ years, up to the beginning of 2014. In her affidavit sworn January 24, 2018, the mother deposed, "[w]hile J.K.N. was not a stellar student, it is evidence from her unofficial transcript for both Humber College and Sheridan College, attached hereto respectively as Exhibit J1, Exhibit J2 and Exhibit J3, that she attended full-time post-secondary education and applied herself to her studies as best as she could". In her affidavit sworn January 24, 2018, J.K.N. similarly deposed that, "[b]ased on [her] ability to function, [she] gave her programs best efforts".

[89] I cannot accept either of these statements.

[90] As set out in Meyer v. Content, I must consider the question of J.K.N.'s enrollment in school from both a quantitative and qualitative perspective. Quantitative means that J.K.N. must have actually attended school. Qualitative means that there must have been a sufficient degree of actual involvement and participation. In short, J.K.N.'s participation in school must have been meaningful.

[91] Qualitative and quantitative evidence is lacking by the end of her second year. I find J.K.N. lacked credibility on these subjects.

[92] In her evidence in chief, J.K.N. explained that in her first year, she went to all of the classes and did all of her assignments. She says she talked to her professors and worked hard to get her assignments done in an attempt to get out of academic probation. As I have said, she did not do well in her first year and she did worse in her second year. By the end of her second year, her academic status was changed from "academic probation" to "academic withdraw".

[93] J.K.N. denied having withdrawn at the end of her second year (even though her transcript says this), saying more than once that she never went into an office to drop courses or announce she was withdrawing. She testified rather that the school recorded her academic status as withdrawn on its own initiative.

[94] I accept J.K.N.'s evidence that the school does not maintain attendance records and so she could not provide a record to show that she actually attended. I am prepared to accept that she attended school some of the time during her first two years, and perhaps even into her third semester. I am prepared to accept that she made some effort at the beginning.

[95] But the evidence does not support those assertions thereafter. J.K.N. explained that each semester she attended all of her classes, took notes, did work and asked for help when needed. She said this was the case for her entire academic career. In cross-examination, J.K.N. testified that she attended 95% of her classes, and persisted in claiming that she completed all of her assignments.

[96] Frankly, I find this evidence lacks an air of reality. I have difficulty accepting this to be true commencing in her second year and certainly into her third year. Her transcript reveals that she started to score 0's in her second year. I find that it is more probable than not that after 2010, J.K.N. attended college infrequently and made an insufficient effort.

[97] I begin with the evidence regarding her quantitative school attendance after that point. Other than J.K.N.'s say-so, the only other evidence I heard on this point was from J.K.N.'s mother. The mother said she believed that J.K.N. was attending classes. She said that she sometimes drove J.K.N. to school, but obviously she did not follow J.K.N. into the school and ensure that she actually went to classes.

[98] The mother's evidence about how much she drove J.K.N. to school was not definitive. Indeed, the mother admitted that sometimes J.K.N. went to school on her own. And to a certain degree, this doesn't really matter as the transcripts speak for themselves.

[99] Regardless of the extent to which she attended, from a qualitative perspective, the evidence is problematic. J.K.N. consistently earned 0's, F's or FNA's starting in 2010. Had J.K.N. actually submitted all assignments and course work as she said she had, then for her to score certain of the results on her transcripts, she would have had to have earned absolutely no grade at all on any of those assignments.

[100] A specific example of this in the evidence that I have difficulty accepting is J.K.N.'s explanation about what happened with the "College Writing Skills" course that she took twice. J.K.N. took this course for the first time in her first semester. She testified that even though she got a low grade the first time, she found the College Writing Skills course to have been a valuable learning experience. Then she took it again. Despite claiming to have done all the assignments, the second time she scored a 0. When asked how that was possible, she said she wasn't doing the essays properly. Although she earned this 0 in the period of time that I am granting her leeway, I cannot accept that she scored a 0 on all of her classwork in that course. I find that the grade means she did not submit the work at all.

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

[102] The mother testified that she encouraged J.K.N. to try harder and to focus more as she learned about J.K.N.'s poor academic performance, but there was almost no evidence about what J.K.N. did in this respect to try harder. J.K.N. explained that she "freezes" when taking tests. But other than making a general statement that she talked to her teachers and tried harder after each fail, I did not hear any concrete evidence about what J.K.N. actually did to improve her grades. She never sought mental health assistance, or counselling, to address the emotional and academic issues she told the Court she was experiencing. She did not access the services of a tutor. Nor did she take advantage of any of the academic counselling services available at any of the schools.

[103] In re-examination, J.K.N. tried to explain that she was embarrassed to seek assistance. However, this evidence was obtained through very leading questions from the mother's counsel, and I place little weight on this evidence.

[104] At the trial, I was not given any medical evidence to support an argument that J.K.N. was suffering from any mental health issue or learning issue that would explain her poor academic performance or justify her continued dependence on her parents.

[105] After changing schools twice, and programs of study three more times after the end of her second year, J.K.N. testified that she took time off school to work and to see what might inspire her to choose a proper career. This happened at the end of 2013. It is at that point that the mother says that child support for J.K.N. should end, but as I will explain above, her selection of January 1, 2014 seemed to have more to do with the so-called 3 year rule for retroactive child support, which I will come back to.

[106] To defend against the mother's argument that support should end at the beginning of 2014, the father argued that J.K.N. devoted time to sports that she ought to have devoted to studying. It is common ground that J.K.N. is a talented athlete. When she was in high school, J.K.N. played soccer, basketball, volleyball and softball, and she participated in track and field. J.K.N. returned to high school for an extra year to upgrade her credits before going to college.

[107] Through his cross-examination of J.K.N., the father's counsel suggested that J.K.N. both took an extra year of high school, and that she later enrolled in college for the purpose of continuing to play sports, or at least that she devoted too much time to this, rather than studying. J.K.N. denied both of these assertions.

[108] I am not prepared to find that J.K.N. enrolled in college only to play sports and given that I have decided that support ought to terminate in 2010, whether she devoted time to sports as opposed to studying in 2013 is moot.

[109] I say this because between 2008 and 2010, J.K.N. did not play sports. She actually had tried out for sports teams between 2008 through 2012, but did not get onto any of the colleges' sports teams. She only eventually got onto a sports team in 2013 when she was at Centennial College. While there, she played soccer and basketball. By this point, J.K.N. had struggled for a number of semesters. Although she claimed she still had time to study, three of the courses she took at Centennial are reflected on her transcript as fails for not attending, and she failed the other three courses.

[110] J.K.N. testified while at Centennial College, she had sports' practices or games four times per week. She also travelled for games as far away as Quebec and Ottawa. In my view, if obtaining a diploma or degree was the goal, which she said it was, then it was not reasonable that she focused on sports given that her academic situation was so tenuous. So had I been inclined to continue child support up until the end of 2013, then there may have been some merit to the father's lawyer's assertion that J.K.N. devoted time to sports that might have been better redirected to academic pursuits. But in the result, nothing turns on the fact that J.K.N. played sports in 2013 as I am finding that J.K.N.'s entitlement to support terminated in 2010. Notwithstanding that her transcripts show she was officially enrolled in schools between the end of her second year into 2013, I have not found this to be sufficient enrollment for the purposes of entitlement under section 31.

[111] Before leaving the question of J.K.N.'s academic pursuits, I intend to comment briefly about J.K.N.'s current academic pursuits, as in my view this is a matter of credibility that reflects poorly on both the mother and J.K.N.

[112] J.K.N. testified that after she took time off school starting at the end of 2013, she discovered that she likes the food industry, which influenced her most recent choice of academic program. But I note that she only enrolled in school again in the year that the father launched this proceeding to ask for a termination. Again, the mother's initial position included a claim for continued support based on her enrollment in this new program.

[113] J.K.N.'s transcripts for the 2017-2018 school year, which would have been available when J.K.N. testified in September 2018, were not filed with the Court. This may be because the mother had withdrawn her claim for ongoing support by the time the trial started. Nevertheless, in her affidavit sworn January 24, 2018, J.K.N. talked about her current academic pursuits. She deposed that she is now diligently engaged in a three year program. She said that after several failed attempts she has found a career path that she is passionate about. She is excited about the career opportunities that she will be able to explore at the end of her studies. She also said that the marks she has been able to obtain since September [2017] "are a testament to [her] diligent participation in the program" and that she is "putting forth the best efforts that [she] can based on [her] natural abilities and in light of [her] particular circumstances."

[114] J.K.N.'s affidavit was unnecessarily critical of the father when talking about her current program. She went on to say that her graduation in 2020 will be a "grand occasion of celebration" and that it will "end the sneers [she] has endured so far." And, "[w]hile [her] baby steps to recovery are not celebrated or supported by [her] father, [she knows] that [she] will be a success."

[115] But again, neither the mother, nor J.K.N. herself supplied J.K.N.'s transcript for the 2017-2018 academic year to the Court for this trial. I note however that J.K.N.'s historic Humber College "unofficial transcript" that she did provide to show her past performance at Humber was printed on January 22, 2018. As summarized in the chart above, it details J.K.N.'s performance there between 2008 and 2011. But it also resumes in 2017. While there are no grades for most of her courses for the 2017-2018 year given it was printed mid-year, there was one grade. At the time she printed it (two days before she swore her affidavit of January 24, 2018), the transcript revealed that J.K.N. had received one grade. That grade was 49%; a fail.

[116] While I appreciate that the mother was no longer claiming ongoing support for J.K.N. at the time J.K.N. swore her affidavit for this trial, as I have explained, J.K.N. made a number of statements both in her trial affidavit and orally at the trial about the reasons for her poor academic performance historically, and she now says she has turned a corner, despite the lack of her father's support. Her current academic performance might have shed light on the veracity of her explanations as to her prior performance if in fact she has turned a corner, but I do not know one way or the other in the absence of the transcript. And I find the timing of the re-enrollment in tandem with the mother's continued claim for child support in the Response to Motion to Change to be suspect.

[117] I further find that J.K.N. was reasonably capable of becoming financially independent after the end of her second year. I was given evidence of J.K.N.'s part-time income from 2012 to 2016. Apparently she did not file income tax returns for the years 2006 through 2011. The income information that I was given reveals:

(a) 2012: $1,680 – Line 150 Income per Notice of Assessment;

(b) 2013: $6,730 - Line 150 Income per Notice of Assessment;

(c) 2014: $14,001 - Line 150 Income per Notice of Assessment;

(d) 2015: $18,552 - Line 150 Income per Notice of Assessment;

(e) 2016: $19,225 - Line 150 Income per Notice of Assessment; and

(f) 2017: Not provided.

[118] Given the findings I have made about the effort she devoted to her studies and the lack of evidence about any inability to earn income, it is my view that J.K.N. could have taken steps to earn and income and start supporting herself after the end of her second year.

[119] I heard absolutely no evidence why J.K.N. was unable to work after that point, or unable to work more during the times she worked only part-time. For example, I note that in the years 2014 to 2016, she worked only part-time, but in two of those years, she earned almost $20,000. I fail to see why she could not have earned at least a minimum wage income, something that many child support payors who come before this Court are expected to earn. I find that she could have done more to increase her income.

[120] In the result, I am prepared to accept, to a limited extent that J.K.N. was impacted by the death of her grandmother, that she tried to succeed at school at the outset of her college studies and that she changed courses after her first year in a reasonable attempt to try to do better. I am prepared to give J.K.N. some leeway for those two years. I reject the father's argument that child support terminated at the end of high school, which I find to be too rigid and too heavily reliant on hindsight. But in my view, the evidence does not warrant continued child support thereafter.

IV – The Expanded Bases of Entitlement Under Section 31

[121] I will briefly address the argument that J.K.N. was unable to withdraw from the charge of her parents by reason of "by reason of illness, disability or other cause".

[122] As I have explained, there was an unsupported assertion from J.K.N. that she suffered from trauma in the past that impacted her performance at school. As part of my analysis respecting her school performance, I have already found that there was inadequate evidence to support continued child support on this basis.

[123] Likewise there is no evidence to support a finding that J.K.N. is entitled to child support by reason "by reason of illness, disability or other cause". I base this finding on the facts that I have found above. Therefore, I would not extend J.K.N.'s entitlement to support after April 30, 2010 on this basis either. I agree with the father's counsel's submission that the end date for child support does not change, even under the new section 31.

V - The Quantum of the Father's Overpayment As of April 30, 2010

[124] I calculate the father's overpayment as $40,947.39 as follows.

[125] The FRO Statement of Arrears reveals that as of April 30, 2010, the father owed the mother arrears of child support of $27,009.86. Those arrears were owing as a result of prior unpaid support accruals and retroactive awards. After April 30, 2010, the father made payments through the FRO of $67,957.25. This results in the overpayment of $40,947.39 expressed in the previous paragraph.

[126] Later in these reasons I will address why I am not finding that there should be any reductions of the overpayment based on the mother's arguments that the father should have paid more child support in the past, or contributed towards J.K.N.'s post-secondary expenses.

(2) Whether the Mother Ought to Have Informed the FRO Earlier

[127] Having determined the termination date, the Court must next decide whether objectively, a reasonable litigant who has made reasonable efforts to become informed about their support entitlement, would have advised the FRO that support had terminated.

[128] Regarding this second branch of the test, I reproduce ¶ 96 of Meyer v. Content in which Chappell J. comments at a high level about certain considerations that should inform this part of the Court's analysis:

Judicial discretion is particularly necessary in support cases involving adolescent and young adult dependants due to the unique challenges involved in navigating through life with these dependants. As children approach and enter adulthood and move increasingly towards independence, their situations often become highly unpredictable and changeable. In many cases, it is difficult for child support recipients to accurately assess whether a change in a child's circumstances will be very short lived or permanent, or whether a change has even occurred. This reality can make it very difficult for recipients to determine how to address the child support issue. They may feel a need to maintain the status quo in terms of housing and general support which they are providing to the child for a period of time to allow them and the child an opportunity to further assess how the situation will eventually unfold. When the events are scrutinized at a later point in time in the context of a claim for reimbursement of child support, it is important to remember that the support recipient who is attempting as best they can to navigate the changing tides of these unpredictable years did not have the benefit of 20/20 hindsight vision. On the other hand, there are cases where it becomes apparent very quickly that a change in circumstances has occurred and that it will be long-term in nature. It is important that the court not allow recipients in these types of cases to receive an inappropriate windfall.

[129] It is my view that the mother ought to have informed the FRO about a termination at the end of J.K.N.'s second year. A reasonably informed litigant would have understood that more than mere enrollment was required as I have explained above and there was ample evidence of very problematic school performance by that point.

[130] While I appreciate Chappel J.'s comments about a parent wanting to hold off for a period of time to assess the situation and see how the child's situation unfolds, as I have said, by the end of the second year, the child's performance was declining not improving. I heard no evidence of a remedial plan. In my view, it ought to have been readily apparent to a reasonably informed litigant that the child was not enjoying the kind of academic success that would have been required.

(3) The Exercise of the Court's Discretion to Order Repayment

[131] Even though I have found that child support terminated as of April 30, 2010 and that the FRO ought to have been notified at that time, the Court nevertheless retains discretion as to whether or not to order the mother to reimburse the father for all or part of the overpayment taking into account, "the circumstances of each of the parties to the support order".

[132] There is little guidance in section 8.4(5) of the FRSAEA itself as to how the Court ought to exercise its discretion when considering "the circumstances of each of the parties to the support order". At ¶ 97 of Meyer v. Content, Chappel J. said, "[d]eciding how child support overpayment situations should be addressed involves a very careful and delicate balancing of the interests of the recipient, the payor and the child in question. In addressing this issue, it is helpful to seek guidance from the case-law involving requests by payors to either rescind or reduce child support arrears."

[133] In doing that, Chappell J. turned to two Court of Appeal decisions, namely Filipich v. Filipick, 1996 CarswellOnt 3263 (C.A.) and DiFrancesco v. Couto, 2001 CarswellOnt 3858 (C.A.), regarding the rescission of child support arrears, for guidance. Chappell J. then adapted the principles established in those cases to take "into consideration the unique dynamics of cases in which overpayments arise".

[134] Drawing from those decisions, at ¶ 100 of Meyer v. Content, Chappell J. listed a number of factors for a Court to consider when dealing with a claim for reimbursement of child support, namely:

1. The amount of the overpayment;

2. The overall financial situation of the parties, including their incomes and their net worth;

3. The extent to which each party continued to support the child financially during the period of uncertainty regarding the outcome of the support dispute, and whether it was objectively reasonable for them to do so;

4. Whether an order requiring the support recipient to repay all or part of the child support overpayment would cause the recipient hardship;

5. The overall condition, means, needs and circumstances of the child of the relationship, and the extent if any to which the child's situation may impact on the level of hardship which a reimbursement order would create for the recipient;

6. Conversely, whether an order releasing the recipient from repaying the overpayment in full or in part would result in hardship for the support payor;

7. Whether there is a reasonable explanation for any delay on the part of the payor in commencing proceedings to request reimbursement;

8. Whether the support recipient has a reasonable explanation for why they continued to accept support during the time frame when the overpayment accrued;

9. Any evidence of blameworthy conduct on the part of either party relevant to the overpayment issue;

10. Whether the recipient made reasonable efforts to keep the payor apprised of changes in the child's situation which were relevant to the overpayment issue;

11. Conversely, whether the payor made reasonable efforts to keep abreast of developments in the child's life and maintain contact with the recipient so as to enable discussion and negotiation about issues involving the child;

12. The extent to which either party attempted to make efforts to resolve any concerns about overpayment with the other party or through the Family Responsibility Office; and

13. Evidence of any oral or written agreement between the parties during the period when the overpayment arose that sheds light on the intentions of the parties respecting child support payments during that time.

[135] Then at ¶ 101 of Meyer v. Content, Chappell J. concluded, "[n]one of these factors is determinative, and the weight if any that should be given to any factor depends on the unique facts of the case."

[136] I pause to note that since Meyer v. Content was decided, the Ontario Court of Appeal has released Gray v. Rizzi, 2016 ONCA 152, a further important decision about retroactive reductions of child support and recission of arrears. Given the date that she decided Meyer v. Content, obviously Chappell J. did not consider Gray v. Rizzi as it was decided one year later. However, and interestingly, at ¶ 55-64 of Gray v. Rizzi, the Court of Appeal adopted Chappell J.'s analysis from another of her decisions, Corcios v. Burgos, 2011 ONSC 3326, in which Chappell J. adopted the D.B.S. factors to apply to requests for a retroactive decrease in support or the recission of arrears in the first place. As it turns out, the adapted factors that Chappell J. articulates in Meyer v. Content also fit neatly with the Court of Appeal's more recent pronouncements in Gray v. Rizzi.

[137] Not all of the factors that Chappel J. has articulated are applicable in this case. But in my view, various of the factors outlined in Meyer v. Content are applicable and they militate in favour of a repayment order of $40,947.39, subject to my comments about a set-off, which I address separately.

[138] I say this for the following reasons.

I - The Mother Engaged In Blameworthy Conduct

[139] I find that the mother engaged in blameworthy conduct. The father made active efforts to deal with the question of J.K.N.'s entitlement through the FRO. The mother was non-cooperative, and at times she actively thwarted the father's efforts.

[140] I find the mother also engaged in blameworthy conduct by going to great lengths to withhold information about J.K.N. to ensure that the father kept paying for as long as possible.

[141] Even when she was eventually agreeable to child support ending at the first arbitrary date she selected of January 1, 2015 (which I will explain), I find that the mother continued to go to lengths to frustrate the FRO acting on that, and she succeeded in this respect for a further 17 months.

[142] I begin with the mother's failure to cooperate with the requests through the FRO.

(i) The Parties' Dealings with the FRO

[143] The father testified that he regularly and repeatedly made applications to the FRO over the years, asking it to either discontinue the enforcement of ongoing child support, or to terminate support. The evidence before me is that he began doing this in 2007. He also said that he communicated verbally with the FRO to try to learn whether child support for J.K.N. should be terminated. He made these inquiries of the FRO as he said he had no direct knowledge of her academic progress. He hoped that the FRO would have some information on this subject. I fully accept his evidence on these points.

[144] When the father submitted several of the various applications to the FRO, the mother responded claiming that J.K.N. remained entitled to support. The father says that the mother deliberately frustrated the termination of child support. I agree.

[145] The father's first application to discontinue support enforcement appears to have been made in the year that J.K.N. was supposed to graduate from high school. Although I was not given a copy of that first application, the mother did file the letter she received from the FRO dated July 23, 2007 as a result of the father's application. That letter said that the FRO had received information from the father suggesting that a terminating event for J.K.N. had occurred. The FRO asked the mother to respond by completing a form.

[146] The mother did indeed return the form to the FRO. This was done on or around August 9, 2007. She told the FRO that J.K.N. was then still living with her, that she would be attending high school from September 2007 to June 2008, and that she would be going to College thereafter. There was nothing inappropriate in either the father's request to the FRO, given his lack of knowledge about J.K.N.'s post-high school plans, or the mother's response at that time. Back then, the mother's response was accurate.

[147] But in the years that followed, the father continued to make applications to the FRO to discontinue support enforcement or terminate support, and the mother was either not truthful, or at a minimum, inappropriately strategic in her dealings with the FRO.

[148] The father tendered his applications to the FRO to discontinue support enforcement dated May 14, 2013, April 28, 2015, and May 30, 2017, as well as two notices to end support dated April 28, 2015 and July 15, 2016. He testified that he submitted these documents in person and sometimes asked that they be stamped by the FRO to acknowledge their receipt. He also said that he had submitted other applications over the years.

[149] The various applications/notices that he did file with the Court at trial reveal that he told the FRO various things based on his beliefs at the time. On each application, he said that support ought to have terminated, and he explained why he believed that to be the case. At the same time, in some of the applications/notices, he told the FRO that he was unaware of facts pertaining to J.K.N. On the last notice that he submitted, he told the FRO that he believed he had made a significant overpayment.

[150] The father said he completed these documents making certain common sense assumptions about how far along J.K.N. ought to have been in her academic pursuits. He said that he gaged this based on his understanding of his nephews' and nieces' progress in their schools. And as support continued to be collected over the years, at one point he thought perhaps that J.K.N. was in a post-graduate program.

[151] I accept the father's evidence on these points.

[152] In about 2013, the father 'googled' J.K.N. and learned that she was playing soccer at Centennial College. As he knew a college program ought to have taken only 2 or 3 years, he wondered what had happened during the several gap years since high school.

[153] I accept his evidence on this point.

[154] In response to several of the applications that he filed with the FRO, the father received word back from the FRO telling him that the mother disagreed that support should terminate. Specifically he tendered two letters from the FRO dated July 29, 2013 and November 27, 2015 telling him this. Those letters also told him he could bring a motion to court to "formally terminate" the support payments.

[155] The father testified that after he received the November 27, 2015 letter, he went to Centennial College to make inquiries about J.K.N.'s enrollment and he learned that she was in fact not a student there. As a result, he telephoned the FRO and tried to speak to a supervisor, but he said that he "didn't' get anywhere" dong that. So he involved his Member of Parliament.

[156] After this, he was able to speak to a manager at the FRO and made some headway.

[157] The father eventually received a letter dated August 17, 2017, almost 2 years later, telling him that the FRO would retroactively terminate support effective January 1, 2015. As a result he did not owe any more money. Of course this did not deal with the question of any overpayment that he might have made. The letter told the father that he was free to bring a motion to "formally terminate" the child support payment at an earlier date.

[158] Through the process of involving his MP and speaking to the manager at the FRO, the father testified that he learned there was a "letter on file" to terminate the support as of January 2015, but it was unsigned. He said he learned that the mother subsequently sent a second letter saying to terminate support in 2016 instead. However, he also said he discovered that the mother was trying to claim interest on old support arrears, some of which he said had been previously charged to him. These issues were more fully fleshed out as part of the mother's case.

[159] I accept the father's evidence regarding his attendance at Centennial College, regarding involving his MP and the evidence regarding how he was eventually able to get the FRO to stop enforcing the support.

[160] By contrast, I found the mother's evidence respecting her dealings with the FRO not to be credible. During the trial, she was at times inconsistent, at times her explanations didn't make sense, and she tried to avoid answering certain questions that were against her interest. I found her evidence about her interactions with the FRO to be generally self-serving, motivated by the desire to have the Court not reach as far back into the past as the father asks the Court to reach.

[161] Although the father had sent numerous requests to discontinue support enforcement or to termination support through the FRO to which the mother responded, in her evidence in chief the mother said she learned that the father was trying to terminate his child support obligation on or around August 29, 2015. So she went to a lawyer named "Leslie" because she thought if she agreed to the father's request, the FRO would stop collecting arrears and she wanted to be paid the arrears.

[162] I do not accept this evidence in full. First, it ignores the fact that the mother was well aware that the father had been regularly trying to terminate the support since J.K.N. finished high school and the mother responded to the father's requests.

[163] Second, as I will explain, in her trial affidavit sworn January 24, 2018 and in cross-examination, she claimed to have instructed the FRO to terminate child support in January of 2014, 1 ½ years before she says that she learned he was trying to terminate the support at the end of the summer of 2015.

[164] Third, even at this August 29, 2015 date, J.K.N. had not been even officially enrolled in a post-secondary program for at least 1 ½ years. I do not accept that it was objectively reasonable for the mother at that time to hold up the termination out of a stated desire to collect arrears and costs.

[165] A significant problem that I have with her explanation in this regard is that by that point in time, the FRO Statement of Arrears recorded the father to be owing arrears of $13,064.08. However, as I have said above, as of the end of J.K.N.'s second year in 2010, the father owed arrears of $27,009.86 and then between April 30, 2010 and August 29, 2015, he made payments of $51,257.78. Even on the mother's own math taking into consideration the full amount of the costs and interest that she asks be paid to her, the father would still have overpaid the arrears, costs and interest owing by that point in time.

[166] The mother certainly should have agreed to the termination by mid-2015. Instead, she had her lawyer order a statement of arrears from the FRO and then she engaged in an exercise in delay with the FRO.

[167] At trial, the mother tended a letter from "FRO Enforcement Services Officer Sharda 062" addressed to "Lewis Law, Barrister and Solicitor" dated October 15, 2015. This letter corroborates the mother's account of involving a lawyer in 2015. The letter acknowledges receipt of correspondence dated September 10, 2015 from the Lewis Law "requesting a statement of account" for the mother.

[168] In response to that, FRO "Enforcement Officer Sharda" sent the requested statement of account and the 'two court orders being enforced". Sharda asked for a response to a prior letter dated August 24, 2015. I was not shown the August 24, 2015 letter.

[169] At this point, the mother claims she was willing to end the support but she just wanted to collect the arrears (that as I have said, would not have been owing at that point had someone done the math), and the costs. She blames the delay after August 29, 2015 on the FRO.

[170] I do not accept this explanation.

[171] Sharda's October 15, 2015 letter clearly informed the mother that the costs ordered in the two orders (ie. those of Justices Bean and Paulseth) were not added to the FRO's statement of account. She made it clear to the mother the FRO will only enforce costs if the court order deals with "support only and no other issues such as custody and access". This is not the first time that the mother was told that the costs orders she obtained may not be enforceable through the FRO, and it would not be the last.

[172] FRO case notes concerning this matter, albeit with certain redactions, covering the period between the period April 6, 2004 and January 8, 2018, were entered into evidence at this trial. As early as January 2, 2008, there is a FRO case note that the mother was to be advised that the orders (Bean J.'s and Paulseth J.'s) were "not enforceable" through the FRO. On January 23, 2008 there is another note that states that the mother wanted the orders reviewed to see if the costs are enforceable, as her "LLB insists they are".

[173] The mother continued to raise this with vigour when the issue of termination came to the forefront in the last few years. And with one confusing exception, she did this in spite of being consistently told the FRO wouldn't enforce the costs.

[174] The mother's other stated objection in 2015, that she wanted to collect the arrears, was not an objectively reasonable basis not to cooperate with the termination at that point for a second reason. Quite apart from the fact that the arrears then reflected on the FRO statement would not have been actually owing, section 8.4(8) of the FRSAEA says that despite the termination of a support obligation, the Director shall continue to enforce the support obligation in respect of any arrears that have accrued, and section 5(4) of O. Reg. 167/97 says that a recipient may confirm part, but not all, of the payor's notice of termination. If so, the FRO will treat the support obligation has terminated to the extent of the confirmation. Thus there was never an impediment to the mother agreeing to terminate the ongoing support and dealing with the arrears she claimed were owing to her (which I have found were not) at a later time, or in a different forum.

[175] And I note that she had legal advice at the time.

[176] That said, there is some evidence of a weak attempt on the mother's part to cooperate, after first delaying for a further 5 months after the August 29, 2015 date she said she knew the father was trying to terminate the support. After "Lewis Law" got involved in the fall of 2015, the mother eventually wrote two letters to the FRO dated January 22, 2016 and April 14, 2016, which were entered into evidence before me. But both letters were unsigned, and this omission turned out to be significant.

[177] The first letter dated January 22, 2016 states that the FRO may "stop taking regular child support from [the father] immediately". But it also states, "[p]lease note that there are some arrears outstanding and would like you to continue deduct that fund from [the father] (payor)".

[178] The second letter dated April 14, 2016 states verbatim:

As discussed please stop taking regular child support from [the father] (payer) (sic.), for child [J.K.N.] as of January 1, 2015. Please note that there are some arrears outstanding debts and would like you to continue deduct funds from [the father[ (payer) (sic.). However, see that I sent you two copies of court costs outstanding debt the amount of $21,941.88 with interest. Please add the amount to my outstanding balance. Also, I am asking you to subtract $6,996.00, from my total balance for the year 2015. If you have any questions or concerns please contact me. Thank you for your assistance in this matter.

[179] So while she wrote these letters, she also wanted the FRO to not only continue to collect the arrears, but also to enforce costs that she had been previously told were not enforceable. While she blamed the FRO for delaying, in the face of being told it was not possible, she continued to try to submit statements of arrears to claim costs and interest after this point. And as I will explain, after she was told by the FRO that these two letters dated January 22, 2016 and April 14, 2016 were insufficient for the FRO to act on for termination purposes, she delayed in providing the FRO with the signed letter and more detail that it needed.

[180] As I said earlier, I did not find her statement that she knew the father was trying to terminate support in or around August 29, 2015 to be credible. In fact, in both her trial affidavit and then in cross-examination, the mother contradicted herself further respecting her instructions to the FRO. She knew that the father wanted to terminate much earlier.

[181] Indeed, in her trial affidavit sworn January 24, 2018, she claimed that she instructed the FRO to "cease the accrual of ongoing support on or about 2014" and on or about January 1, 2014, she "immediately sent a letter to FRO confirming [her] verbal instructions". At the trial, she claimed that she communicated this to the FRO during a telephone call. However, according to the mother, the FRO didn't act on this, and so when the issue resurfaced in 2015, she adjusted the termination date to be January 1, 2015.

[182] I do not believe this explanation. I have reviewed the FRO case notes. Unless for some reason such a particular entry was redacted, there is no such entry whereby the mother reported these 2014 instructions to the FRO. Nor did she tender the letter she says she sent in 2014. And furthermore, that the mother would somehow have told the FRO about a terminating event in 2014 is inconsistent with the subsequent behaviour that she engaged in when dealing with the FRO throughout 2015, 2016 and 2017.

[183] The mother was cross-examined extensively regarding why she eventually told the FRO she would agree to a January 1, 2015 end date after the fact.

[184] The mother was evasive on this point. It was clear to the Court that the January 1, 2015 end date that she eventually said she would agree to, was arbitrary. In my view, she knew that an earlier date would increase the amount of a potential overpayment and therefore her exposure to repay.

[185] Moreover, I do not accept that the mother was even then readily prepared to agree to a January 1, 2015 termination date unless and until she got the costs and interest enforced through the FRO as an offset to the money that she had been collecting. The FRO case notes shed considerable light on this. I have also reviewed a letter that the mother received from the FRO on this point.

[186] The FRO case notes and the correspondence reveal:

(1) Contrary to her evidence that she gave at trial, on November 23, 2015, the mother told the FRO that support is "NOT to terminate". At that point, she was having her lawyer prepare a statement of arrears to try to claim court costs in spite of Enforcement Officer Sharda's October 15, 2015 letter, and what had been discovered in 2008 when she first tried to claim costs;

(2) On November 27, 2015, an FRO employee made a note that the mother did "NOT" agree that support terminates. The note indicates that J.K.N. was then 26 years old;

(3) In cross-examination on this point, the mother denied that she told the FRO not to stop the support at this point. She claimed that she told the FRO to stop support, but to continue collecting the arrears. I do not accept the mother's account on this point in regards to this particular note;

(4) A note dated January 5, 2016 states that the mother said she would mail a letter to "stop support and leave arrears to be paid". The note also says that someone from the FRO had mailed the mother a statement of arrears for her to claim interest though;

(5) By February 29, 2016, the FRO had received a letter from the mother requesting that FRO "stop taking support". I infer from the note that this is the January 22, 2016 letter that I have described above. However, and as I have explained above, the FRO note indicates that the letter was deficient because the mother did not specify her proposed termination date, she did not indicate that the support to be terminated pertained to J.K.N., nor did she specify the reasons for the support termination. Indeed, I further note that this letter did not ask to terminate retroactively to January 1, 2015. Moreover, my review of the January 22, 2016 letter itself revealed that the mother still wanted to collect the arrears then artificially reflected in her account;

(6) A note dated February 5, 2016 indicates that the FRO had received a new letter from the mother, now asking for the termination effective January 1, 2015. But again, the mother failed to indicate the reason for the termination, nor did she sign the letter;

(7) However, at around this time, the mother submitted a claim for the costs and interest. A note dated May 17, 2016 indicates that the FRO rejected had the mother's request to add $21,941.88 to the arrears. The note states the FRO sent the mother a letter explaining its decision;

(8) I have reviewed the letter. Somewhat confusingly, the letter states that the costs Order of Bean J. was not enforceable but the Order of Paulseth J. in fact was. However, the mother did not complete the Statement of Arrears properly, nor could she, because as I have stated above, the issued and entered Order omitted the standard interest clause;

(9) A note dated May 24, 2016 reveals that the mother said she would be sending in yet another Statement of Arrears to claim costs;

(10) There are case notes dated September 26 and October 4, 2016 which indicate that the mother was trying to complete the Statement of Arrears, but again Paulseth J.'s Order did not include the standard interest rate clause. The mother was told by the FRO that if there is no interest rate on the face of the Order, she cannot charge costs;

(11) As the October 27, 2016 note reveals, the mother succeeded in having the FRO add costs of $8,000 pursuant to Paulseth J.'s Order of March 31, 2016. However, the FRO again rejected the mother's interest calculation. (I note that the FRO later removed the $8,000 costs on May 23, 2017 when it terminated the collection of support altogether);

(12) By this point, the mother had still not sent in the signed letter that the FRO required to implement the support termination many months later after it had been asked of her. The FRO statement of arrears reveals that the father kept paying support up until this point. In that context, the FRO case note dated April 24, 2017 says that the FRO sent a letter to the mother stating that it still required the signed letter to effect the termination. As such, it was ceasing enforcement based on its determination that once support was adjusted retroactively to January 1, 2015, the result will end up being that the father overpaid support. This entry coincides with the father's evidence of the steps he took after 2015 when the mother refused to agree to terminate the support;

(13) On May 2, 2017, the mother spoke to the FRO. The note says she was advised "as per case notes" (about the information April 24, 2017). The mother said that she would send in a signed letter at this point. It is at this point that she finally did that. It appears from the notes that the FRO received the signed letter on or around May 9 or 10, 2017. This signed letter was not entered into evidence before me;

(14) In cross-examination on this point, the mother denied having ever been told by the FRO that the father had overpaid. I do not accept her evidence on this point;

(15) Even then, on May 19, 2017, the mother spoke to the FRO indicating that she intended to submit yet another Statement of Arrears to try to claim interest on the court costs. Even then, she was told that even if interest got added, the father still overpaid. The note says "[support recipient] understood";

(16) On May 23, 2017, the FRO adjusted its records, terminating the support retroactively to January 1, 2015. As a result, any arrears then owing, which included the costs of $8,000 that were added on October 27, 2016, were reduced to $0;

(17) On June 16, 2017, the FRO made an administrative decision, after the fact, to remove the $8,000 from the arrears for the reasons explained previously, but the effect of this did not impact the father since it had already reduced the arrears to $0. The note specifically says that both Bean J.'s and Paulseth J.'s orders dealt with other issues in addition to support, and neither order specified that the costs were to be enforced through the FRO;

(18) It appears that the mother may have made another inquiry about adding costs. On June 19, 2017, the FRO received another statement of arrears dated May 23, 2017 claiming costs of $8,000, which the note says were previously dealt with;

(19) The note dated August 17, 2017 says that the arrears have been removed, the FRO cannot enforce the costs, nor the interest, and the note refers back to the June 16, 2017 case note for an explanation as to the reason why; and

(20) The case note dated September 22, 2017 again says that the mother wanted to add interest to the costs order. However, the September 22, 2017 note ends by saying "this case is now closed".

[187] Taken as a whole, I find that not only was the termination date of January 1, 2015 that the mother selected arbitrary and not far back enough in the past, the mother failed to send in the signed letter that the FRO needed acknowledging that termination date for about 17 months.

[188] She caused the delay.

[189] During that time, she repeatedly insisted that the FRO add costs and interest to the arrears, despite being told more than once that such costs were not enforceable (and being told once that one such order was). Once she was prepared to actually acknowledge a termination date several years later, she ought to have acted with greater haste in giving the FRO what it needed.

(ii) The Mother Withheld Information About J.K.N.'s Status from the Father

[190] As I said, I also find that the mother engaged in blameworthy behaviour by withholding information about J.K.N.'s progress at school from the father so that he could have made an informed decision about whether to bring this matter back to Court earlier.

[191] In fact, both parents (and J.K.N.) tried to convince the Court that their conduct in not communicating with the other was reasonable. In the father's case this was to refute the allegation that he failed to provide financial disclosure and increase support, and to explain his delay in returning to Court earlier.

[192] I did not find either parents' explanations to be credible or an adequate excuse.

[193] I will deal with the mother's evidence on this point in this section of these Reasons and address the father's evidence later.

[194] In the mother's case, both she and J.K.N. made a point of telling me that they had lived at their current address for 14 years. J.K.N. also told the Court that this long standing Brampton address is on all of her identity documents. Both the mother and J.K.N. clearly wanted to make the point that they were easy to locate.

[195] However, I also note the following.

[196] First, as I have already said, while I am unclear as to who prepared the draft Order of Paulseth J. dated March 31, 2006 to be issued and entered, it contains yet another error, quite apart from the omission of the interest clause. The mother's address is out of date. If the mother and J.K.N. have resided at their current Brampton address for 14 years, then the address on the Order ought to have been accurately as the current Brampton address as fourteen years ago pre-dates Paulseth J.'s Order. But it was not.

[197] Second, I heard other evidence that the mother and J.K.N. took certain steps to avoid dealing with the father. The FRO case notes reveal that the mother did not want her telephone number given out to the father. When the mother was cross-examined on this point, she deflected, claiming that she had an unlisted number.

[198] And even though J.K.N. denied it, I accept the father's evidence that at one point he found J.K.N. on Facebook and tried to reach out to her. I accept his evidence that after he did that, the Facebook account was then closed. I also accept his evidence that he wanted to attend her high school graduation but was not allowed to.

[199] Separately, I heard very little evidence about any steps the mother took to find the father. She claimed that her lawyer looked for him but could not locate him. She also made a bald statement that she tried to find the father but couldn't. She did not provide any examples of her efforts.

[200] I do not accept that she made any efforts to try to find the father and I do not accept her professed statement that she did not know where the father lived to be persuasive. It does not explain away the lack of information flow that ought to have been transmitted.

II - The Father's Delay in Returning this Matter to Court Earlier

[201] The father did not return this matter to Court earlier at any point over the past several years, nor did he communicate directly with the mother about J.K.N. To explain this, he also said that he could not find the mother. He said he did some internet searches and the like. As I have said, I accept his evidence about his efforts on Facebook. But apart from some minimal efforts, I do not accept that he really tried to find the mother until he needed to serve her with his Motion to Change. I say this in part because at the end of the day, when the father wanted to start this proceeding, he found her very easily. He testified that had a real estate agent do a title search, the result of which quickly produced an address, and he was able to serve her. He could have done this at any point over the last decade.

[202] I do not find the father's professed statement that he did not know where the mother lived to be a persuasive explanation for why he did not come back to Court earlier or communicate with the mother about matters concerning J.K.N. earlier.

[203] As I have explained above, the mother's position is that the Court should terminate support only as of the beginning of 2014, which she says accords with the 3 year rule in D.B.S. Essentially this would require the Court to determine that the father ought to have returned to Court earlier, even before that, and then reduce this amount of the refund due to him accordingly because he did not. I am not prepared to do that.

[204] I find that it would have been preferable had the father returned this matter to Court earlier. I am prepared to accept, to a point, that it was reasonable for the father to continue to submit applications through the FRO as he was using his nieces' and nephews' progress in school as a gage. But certainly by 2013, when he discovered that J.K.N. was enrolled in Centennial College as a result of his undertaking the google search, red flags were raised for him. He admitted that he wondered about what had happened during the gap years.

[205] Nevertheless, I have difficulty, based on the record before me, saying that the overpayment to the father should somehow be reduced because he didn't do more to get better information, or come back to Court earlier. The mother's argument to limit the overpayment only back to early 2014 is based on ¶ 118-125 of D.B.S. In those paragraphs, the Supreme Court held that barring blameworthy conduct on the part of the payor (in a traditional retroactive child support case), generally the award should be retroactive to the date of effective notice, provided that the recipient proceeds promptly after giving that notice.

[206] But the Supreme Court also said, in the context of a traditional retroactive support case, that what will make the difference between a reasonable and an unreasonable delay is often determined by reference to the conduct of the payor parent. For example, if the payor is transparent about changes to his income and does not pressure or intimidate the other parent, and the recipient parent then delays, that delay will be characterized as unreasonable. See D.B.S. at ¶ 100-104.

[207] I also reproduce ¶ 124 of D.B.S. here:

The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

[208] Adapting these comments to an overpayment case, I do not find the father's delay in returning to Court to be unreasonable to such an extent that I would reduce the refund owing to him on this basis. It was the mother who was not transparent, not the father. As I have found, she engaged in blameworthy conduct in part by withholding information. And even though he did not come back to Court earlier, the father made it crystal clear through his applications to the FRO, regularly over the years, that he sought information from the mother. As I have already found, the mother had relevant information, she withheld it, and her dealings with the FRO were not reasonable.

III - The Father Did Not Engage In Blameworthy Conduct

[209] As a further defence to the father's request for an overpayment, the mother argues that the father (a) did not provide annual disclosure as ordered by Paulseth J.; (b) adjust his child support in accordance with changes to his income; or (c) contribute towards J.K.N.'s post-secondary expenses. She argues that this is blameworthy conduct the result of which is that the father underpaid child support at times.

[210] These arguments, if accepted, could result in the Court either making an order for a retroactive increase in favour of the mother to off-set the overpayment, or they might be a basis for the Court to reduce or decline to exercise its discretion to order a repayment, either in part or in full.

[211] The mother did not specifically claim retroactive support. Her Response to Motion to Change makes no mention of this. However, she does refer to an alternate claim for retroactive support for the period of August 2014 to current in her trial affidavit sworn January 24, 2018.

[212] And at trial, I heard both evidence and submissions about this from both parents. Even if there is no specific claim for retroactive support, she relies on this conduct as a defence to the overpayment.

[213] First, I find that this Court has jurisdiction to order either of these approaches, even if the child is no longer a dependant. See Colucci v. Colucci, 2017 ONCA 892 ¶ 14-32; see also Meyer v. Content at ¶ 48-55. Even if there is no specific claim for retroactive support, whether a parent who now claims a refund met his obligations in the past is a relevant circumstance to consider.

[214] Despite the fact that a specific claim for a retroactive increase was not pleaded, I have nevertheless decided to consider the mother's arguments on their merits. I have considered whether to make a retroactive award, or alternatively whether the father's overpayment should be adjusted downwards on account of the father's alleged underpayments in the past.

[215] I decline to find that the father engaged in blameworthy conduct. I would not order either approach in this case.

[216] Regarding an approach that would call for a retroactive increase, this approaches more closes a traditional retroactive claim, but used to offset a repayment order. As such, the aforementioned comments from D.B.S. about recipient delay are applicable without modification. I find that the mother's delay is unreasonable within the meaning of ¶ 100-104 of D.B.S.

[217] Concerning disclosure, it is not disputed that the mother never asked for disclosure from the father after Paulseth J.'s Order. I accept that she did not have to because it was Court ordered. The failure to provide court ordered disclosure can be blameworthy conduct. However, it is not true that the father did not provide any annual disclosure at all.

[218] The evidence was that he did not provide it directly to the mother after the Order of Paulseth J. dated March 31, 2006. While he relied on not knowing her whereabouts when explaining why he did not continue to provide in later years (which I have not accepted as a reasonable excuse), in fairness to him, he did say that he provided some disclosure initially after Paulseth J.'s order to the mother's former lawyer, and he said that he provided some disclosure through the FRO at times when he made the various applications to discontinue enforcement or to terminate support. I accept this evidence as mitigating the extent to which his conduct might have otherwise been blameworthy.

[219] Moreover, I have decided that support should terminate as of April 30, 2010. As such, it is only the extent to which that did not provide disclosure between March 31, 2006 and April 30, 2010 that the allegation of non-disclosure should matter. And while non-compliance with a Court order should not be excused, to the extent that the father did not provide the disclosure that he was ordered to provide during this time frame, it would not have impacted the support that he paid in a material way.

[220] This leads to mother's other two arguments. It is not disputed that the father never adjusted child support nor contributed towards J.K.N.'s post-secondary expenses.

[221] In D.B.S., the Court takes an "expansive view" of what constitutes blameworthy conduct. Bastarache J. defines it as "anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support". Actively hiding increases in income is an example of blameworthy conduct. But even passive behaviour if a parent consciously chooses to ignore his or her obligations may be blameworthy.

[222] The question of whether a payor is engaging in blameworthy conduct is a subjective question. However, the Supreme Court says that a good indicator as to whether the payor reasonably believed he was meeting his obligations, is to compare what the payor actually paid versus what he ought to have paid. The further apart those amounts, the less reasonable will be the payor's belief that his obligations were being met.

[223] On that point, the monthly amount of child support that accrued between Paulseth J.'s March 31, 2006 Order and the termination date that I have selected of April 30, 2010 was $583 per month based on his 2005 income of $71,189.00. The Order did not specifically call for an annual adjustment, only that the father supply his "income tax assessment" and "any other relevant disclosure" by May 15, commencing in 2006. As I will provide below when setting out the father's income, in 2007 his income actually dropped, and then in 2008 it increased slightly only slightly from the level upon which Paulseth J.'s Order was based.

[224] While there was a more significant increase to his income for 2009, that tax return would have only been produced by May 15, 2010 according to Paulseth J.'s Order. This would have been after the date that I have now ordered that child support terminated.

[225] Based on my review of the small fluctuations to the father's income, any underpayment would not have likely been significant.

[226] Moreover, it is not even clear to me the extent to which there was an underpayment at all. As of J.K.N.'s 18th birthday, (ie. as of June 9, 2007), the table amount of child support was no longer presumptive. Section 3(2) of the Guidelines applied. The Court would have had to consider a number of factors. See ¶ 65-80 of Meyer v. Content.

[227] The mother did not provide to the Court any calculations explaining how much she said the father underpaid during that period. She did not provide the Court with calculations as to what she says the father's contribution towards the post-secondary expenses ought to have been, after taking into account the tax credits she received. Nor did she provide her own income tax information to the father back at the time the expenses were incurred, which would have been required for the parents to figure out their respective percentage sharing. Nor did I even hear complete arguments on this aspect of her claim. Plus I have difficulty with the mother now asking to go back between 7 to 10 years when the father was all along trying to engage the mother and look at the support arrangements at the time.

[228] In my view, the mother engaged in unreasonable delay in raising these issues, the father's conduct was not blameworthy, and I would not grant any relief respecting any alleged underpayment on the part of the father.

[229] Again, as the Supreme Court said in D.B.S., barring blameworthy conduct on the part of the payor (which I do not find), generally the award should be retroactive to the date of effective notice provided that the recipient proceeds promptly after giving that notice. In this case, there was no effective notice by the mother prior to the proceeding. Even if I were to take a generous view and allow the mother to make a retroactive claim going back 3 years prior to the commencement of this proceeding, then that is still well after the termination date that I have selected. Consequently she would be asking for retroactive support for a period of time that I have found the child not to be entitled.

IV - The Parties' and the Child's Circumstances

[230] I now turn to the parties' and the child's financial circumstances in relation to the father's request that his overpayment be refunded to him. Based on my review of the evidence, I have concluded that the father would continue to suffer financial hardship if I do not make a repayment order, there is insufficient evidence that hardship will be occasioned to the mother if I make a repayment order, and the child's situation does not impact my analysis. I make these findings based on the following evidence.

(i) The Father's Circumstances

[231] The father's income in the years since Paulseth J.'s March 31, 2006 Order has been:

(a) 2006: Not provided for this trial

(b) 2007: $70,173.60 – per T4

(c) 2008: $76,502.39 – per T4

(d) 2009: $86,277.00 – per T4

(e) 2010: $74,711.48 – per T4

(f) 2011: $74,688.38 – per T4

(g) 2012: $74,649.81 – per T4

(h) 2013: $76,269.52 – per T4

(i) 2014: $103,473 – Line 150 income per Tax Return and Notice of Assessment

(j) 2015: $80,808 – Line 150 income per Tax Return and Notice of Assessment

(k) 2016: $83,076 – Line 150 income per Tax Return and Notice of Assessment

(l) 2017: Not provided, but financial statement sworn November 21, 2017 projects 2017 income to be $79,999.92

[232] In 2014, the father received about $10,000 in after tax dollars as a result of cashing out some of his accumulated severance pay. He said he chose to do this as he had been suffering financially on account of the Court proceedings, and in order to meet the ongoing child support payments.

[233] For that reason, or because he earns more when he travels for work as explained above, his reported income on his tax returns fluctuates depending on the year.

[234] The father testified that he has been impacted in a "big way" since 2008. He does not own a home and has very little property. He has a negative net worth. He still owes student loans that he cannot afford to pay. Although neither parent filed updated financial statements for the trial, the father's financial statement sworn November 21, 2017 confirms this. It reveals that the father is more or less able to meet his yearly budget on his income. However, he has very little assets. He owns a car, but his car loan exceeds its value. Other than his employment pension (whose value is unknown), he has only $5,315.00 in an RRSP and $285.33 in a bank account. He owes debts of $60,841.89, primarily consisting of the car loan and his student loans.

[235] The father testified that he was supposed to be appointed as a member at the Immigration and Refugee Board, but he did not get the appointment when the security checks were done because he owed outstanding amounts on account of the child support order. Implicitly he blamed the mother for the appointment not going through. But on this point, I did not hear evidence about when he applied to the Immigration and Refugee Board, and so I am not clear whether it was actually the continued child support payments that interfered with his appointment or the fact that at least for a while, he would have owed arrears. I say this because the father also owed the mother arrears of support back then according to Paulseth J.'s Order and a prior Order of this Court. For example, as I have said earlier, on April 30, 2010, the date I have selected as the child support termination date, the father still owed $27,009.86 on account of past arrears owing. So even if the child support had terminated as of that date, the father still had to make payments thereafter to discharge the arrears.

[236] But in any case, I accept that the continued payment of support after the date that J.K.N. was entitled to support would have contributed towards the father's inability to retire his own personal debts or to save.

(ii) The Mother's Circumstances

[237] Based on the disclosure she provided, the mother's income in the years since Paulseth J.'s March 31, 2006 Order has been:

2006: Not provided

2007: Not provided

2008: $71,121 – Line 150 income per Income Tax Return Information – Regular

2009: $81,189 – Line 150 income per Income Tax Return Information – Regular

2010: $35,767 – Line 150 income per Income Tax Return Information – Regular

2011: $87,078 – Line 150 income per Income Tax Return Information – Regular

2012: $83,926 – Line 150 income per Income Tax Return Information – Regular

2013: $91,407 – Line 150 income per Income Tax Return Information – Regular

2014: $91,890 – Line 150 income per Notice of Assessment

2015: $43,964 - Line 150 income per Notice of Assessment

2016: $6,172 - Line 150 income per Notice of Assessment

2017: Not provided, but financial statement sworn September 22, 2018 projects 2017 income to be $9,999.96.

[238] The mother's drop in income in 2010 and then again commencing in 2015 was not explained to me at all in her examination in chief. Some information was elicited in cross-examination and the Court asked questions of clarification at the end of her testimony, but I am left without a proper understanding of the mother's financial circumstances.

[239] Regarding the drop in 2010, her Income Tax Return Information – Regulars for 2010 and 2011 reveal that she received employment insurance in those years. In cross-examination, the mother testified that she was involved in a car accident in about 2009. She said she was off work for "a while" and then returned back to work. She commenced a lawsuit and she said that she did "get something from it". She was unable to tell the Court how much she received, other than she, "didn't think [she] got more than $50,000". She said she obtained the settlement about a year or so after the car accident.

[240] Regarding the current decline in income commencing in 2015, the Notices of Assessment for 2015 and 2016 do not provide any helpful explanation as to the decrease at all. Again, in cross-examination, the mother testified that she is "sick" and "can't work".

[241] The mother testified that she obtained some disability insurance income from her work place, but she also explained that if she continued to take more disability it would somehow adversely impact her pension. In re-examination, the mother testified that she received disability, but she has since been cut off. She is trying to see if her disability payments may continue.

[242] This evidence was confusing. In response to questions from the Court, the mother explained that she actually obtained a lump sum disability payment, calculated based on either 60% or 70% of her salary over a period of 1 ½ or 2 years. She said that she will have to pay tax on the money, but she only got the lump sum at the beginning of 2018, so it has not yet turned up on a tax return. Nor did she produce her 2017 tax return either. Nor is this money reflected on her financial statement sworn last year, and she did not update her financial statement for the trial.

[243] The mother's financial statement sworn September 22, 2017 projects that she intended to withdraw $9,999.96 from her RRSP in 2017. But neither her financial statement, nor the mother herself explained to me satisfactorily how she was going to meet her budget of $62,143.92 shown on it. The mother claimed to have increased debt, used savings, cashed in RRSPs and she said her family can help her, but as I will explain, the math doesn't add up.

[244] As set out above, the mother and J.K.N. testified that they have lived in a house that the mother owns in Brampton for 14 years. Despite not being given a full picture of her current financial circumstances, the mother's financial statement reveals that this house was worth $450,000 as of the date of her financial statement. She was unable to say what it is worth currently when asked by the father's counsel in cross-examination at trial.

[245] Otherwise, the mother's financial statement reveals that she owns a car, and she has savings in bank and RRSP accounts with combined balances of $45,833.77. Also according to the mother's sworn financial statement, the mother only has a small mortgage, a line of credit and credit card debt, owing an aggregate of $41,700.00. At trial, she testified that she increased the debt by between $20,000 and $30,000. She said she current owes between $60,000 to $70,000 in total.

[246] The mother's financial statement fails to disclose any interest in a registered pension plan. However, her "Income Tax Return Information – Regular" print outs of her tax returns from the Canada Revenue Agency for the years 2008 through 2013 reveal that the mother made contributions to such a registered pension plan, and the mother acknowledged that she has a pension in her viva voce evidence at trial. It is unclear to me whether she is drawing from that in any way given her statement that her disability income somehow impacts her pension's value.

[247] Even adding the $10,000 RRSP withdrawal that her financial statement says she took or would take in 2017 to the increased debt of $20,000 to $30,000, there is still a significant budgetary shortfall. This went unexplained at the trial.

[248] The mother's current financial circumstances are clearly relevant to the Court's determination respecting the issues in this case. But the evidence I heard about why the mother is no longer working, the nature of her current disability, the benefits she receives and what will happen from an income perspective going forward did not make sense to the Court. Nor do I have any real sense of what the mother actually obtained from the disability insurer earlier this year, where that money has been spent and/or how much of it remains, if any.

[249] I found the mother's evidence on these points to be evasive. At the end of the trial, I was left without a proper understanding about how she is supporting herself. So at the conclusion of her evidence, I asked the parties whether either was seeking a disclosure order concerning these particular financial issues. Both parties asked that the case be decided on the basis of the record before the Court. To my surprise, the mother specifically instructed her lawyer that she did not want to produce any documentation to fill in the evidentiary gaps that I have highlighted.

[250] I was left with inadequate evidence for the mother to argue that she will suffer hardship as a result of a repayment order. In the absence of more complete evidence to fill in the financial gaps that I have highlighted, I am not prepared to make assumptions. In saying this, I do specifically note that in most years between 2008 and 2014 (2014 being the year that the mother concedes that child support should end), while the mother continued to collect child support for J.K.N., the parties' incomes were similar.

[251] And while I cannot compare their current and going forward incomes given the mother's failure to tender better evidence on this point, even if I were to find that she has no income stream going forward (which I am not finding) a comparison of the parties' current net worths shows that the mother is still financially better off than the father at this point.

(iii) The Child's Circumstances

[252] In repayment cases, sometimes a Court will decline to make an order to reimburse the payor for an overpayment, where to do so would cause financial harm to the household in which the child resides. For example, in Wells v. Liang, 2015 ONCJ 661 at ¶ 24, Bovard J. declined to order reimbursement because there were no arrears owing and the order would essentially result in the reduction of ongoing support to the child, who remained entitled. In this case, J.K.N. has no ongoing entitlement to child support. I do not have to deal with whether to set off a debt owed by a child support recipient to the payor, against the payor's ongoing child support payments, or even against child support arrears.

[253] Moreover, earlier I made findings of fact about the child's circumstances. I found that support terminated for J.K.N. as of April 30, 2010 and that while she has not worked full-time since then, there was no impediment to her doing so and earning more income to support herself. There is no evidence in this case that a dependant child will suffer harm, or that a mother's ability to meet a dependant child's needs will be compromised from an overpayment order.

C. The Mother's Claim to Set-Off the Two Costs Orders

[254] At the trial, the mother claimed a credit for unpaid costs and interest of $23,273.76. She tendered a chart showing this calculation up to May 26, 2018, which was two days before the trial started. To get to this number, she claims interest of 4% per annum on the costs of $6,372.74 ordered by Bean J. on February 17, 2004. This is the interest rate specified in the Order. She claims interest of 5% per annum on the sum of $8,000, which purports to be a correct calculation of the amounts owing under Paulseth J.'s costs order of March 31, 2016.

[255] However, as set out above, Paulseth J.'s costs order was actually $8,000 "plus applicable GST", which at the time was 7%. Therefore, Paulseth J. actually ordered costs of $8,560, but again, the order omitted the interest rate that would apply to unpaid amounts in error. In any case, regardless of the interest clause issue, the mother's calculation calculates interest on the incorrect base amount, and it did calculate interest up to the end of the trial.

[256] The mother did not actually plead set-off. Her Response to Motion to Change makes no mention of set-off. Nor did the mother's pleading claim any relief in connection with the interest clause being omitted from Paulseth J.'s March 31, 2006 Order. At the conclusion of the trial, the mother told me I should amend Paulseth J.'s Order nunc pro tunc to correct the interest rate omission.

[257] At the conclusion of the trial, I invited submissions about a number of legal issues, including about the costs claims, about who bore the onus to prove that the costs orders remained unpaid, and about how the Court should deal with the fact the issued and entered order of Paulseth J. omits the interest clause, if in fact the costs claims were properly before me.

[258] I heard very few helpful submissions from either party on any of these points.

[259] In his closing submissions, without any case law to support his arguments, the father's counsel argued that I should not deal with the costs at all because of the passage of time. He submitted that the mother never made a demand for payment, she didn't call her former lawyer to testify about enforcement or payment, and she didn't produce her lawyer's Bill to document her assertion that the lawyer didn't receive the costs from the father. The father's lawyer also questioned the Court's ability to order set-off, arguing that the father's claim for repayment is not a "debt" and only "debts" can be set-off against each other under section 111 of the Courts of Justice Act. By contrast, the mother argued that the claims were properly before me and that I should order the set-off, also without case law.

[260] After the trial, at my invitation, the mother's lawyer submitted further case law in response to my question about who bore the onus to prove that the costs orders had been paid. But the mother's case law was not on point. The father's lawyer pointed this out, but otherwise did not provide any further assistance.

(1) The Mother's Failure to Plead Set-Off

[261] I begin with the mother's failure to plead set-off. Section 111 provides that set-off is to be dealt with by way of a defence, not as a counter-claim. Therefore, I find that it need not have been specifically claimed.

[262] However, in the event that I am wrong in this respect, the mother's trial affidavit sworn January 24, 2018 does raise the issue of the unpaid costs and interest. As I said above, the mother tendered a chart calculating what she says is owing up to two days before the start of the trial. And the father's trial affidavit sworn January 30, 2018 responds to the mother's assertions about the costs.

[263] I also heard evidence in chief from both parties, and cross-examination of both parties about the issue of these costs. Although in his trial affidavit, the father says that he "verily believe[s] that decades-old claims for costs are not properly before this Honourable Court", at no point did the father object to the Court hearing the evidence on the costs orders. To the contrary, he testified in chief about it.

[264] In Stefureak v. Chambers, I note that Quinn J. granted a so-called 'hail mary' amendment where a party raised a claim as a last minute defence on the last day of a 20 day trial. In this case, I would not even refer to the mother's set-off claim as either 'hail mary' or last minute. Rather, the costs orders were made by this Court. That means if they are not dealt with now and but there continues to be an ongoing dispute about whether they are owing, the parties may be back here in some form of garnishment or other enforcement hearing.

[265] The mother had been trying to have the costs enforced through the FRO, both back around the time of Paulseth J.'s March 31, 2006 Order, and again in the two years prior to this trial. The father was aware of this; he acknowledged this in his evidence in chief. It was clear to both parties in the several months leading up to the trial that the mother intended to claim set-off. It was also part of the mother's opening statement. There was a complete record before the Court concerning how those orders came into existence and I heard conflicting evidence about whether they were paid. Each of the parties called the evidence that they had on this topic. This included both viva voce and documentary evidence.

[266] This is not a situation where one party failed to call evidence believing that the claim was not before the Court only to be confronted with a claim to the contrary after the trial. I can see no disadvantage (unfairness) to either party if I deal with the mother's claim for a set-off.

[267] To the contrary, unfairness may result if I do not address the issue. It is not efficient, and it would not make any sense for the Court to dodge the issue, only to potentially result in the mother taking enforcement steps in the future. This may lead to the re-litigation of an issue that I heard much about at this trial. This will cost the parties more money in fees and time potentially. It may result in future contested garnishment or enforcement proceedings. In my view, this would be contrary to the Family Law Rules.

[268] Incidentally, I note that the Manitoba Court of Appeal also took this approach in Korchinski v. Korchinski, 2006 MBCA 149 at ¶ 53-55. Although the Court held that the trial judge was justified in not dealing with the father's claim for reimbursement of an overpayment given his failure to plead that relief, the Court of Appeal went on to deal with the issue anyway, as the evidence was available and the parties argued it before the Court of Appeal.

[269] I therefore intend to deal with the arguments about the two costs orders.

(2) The Ontario Court of Justice's Jurisdiction to Order Set-Off

[270] Although it was her defence to prove, and despite the fact that the Court invited submissions and case law specifically respecting the mother's claims about the two costs orders, the mother's counsel provided no case law setting out this Court's jurisdiction to order set-off.

[271] A right of set-off may arise in three circumstances: by agreement of the parties, by operation of a statute (legal set-off), or in equity. See Holt v. Telford, [1987] 2 SCR 193 ¶ 23-38; see also the decision of Penny Jones J. in Ontario (Director of Family Support Plan) v. Freyseng, [1994] O.J. No. 1186 (C.J.), aff'd by.

[272] This is not a case of set-off by agreement. Nor, as I will explain, is this a case of equitable set-off. This is a case of legal set-off.

[273] To make out a claim for legal set-off under section 111 of the Courts of Justice Act, the proceeding in issue must be an action for a payment of a debt, the responding party must have a claim to set off of a debt owing to him or her by the plaintiff/applicant, and if so, those debts may be set off against each other, even if they are of a different nature.

[274] I will mention equitable set-off briefly.

[275] The leading cases explain that unlike legal set-off, equitable set-off does not derive from a statute, the claims between the parties do not need to be debts necessarily, and there need not be mutual cross-obligations of debts. See Canada Trustco Mortgage Company v. Pierce ¶ 38-40.

[276] However the Ontario Court of Justice does not have jurisdiction to grant equitable relief. See section 96(3) of the Courts of Justice Act. See also Ontario (Director of Family Support Plan) v. Freyseng, [1994] O.J. No. 1186 (C.J.), aff'd by.

[277] Thus, to order set-off in this case, this Court is constrained by the more strict parameters of section 111 of the Courts of Justice Act. To succeed, the mother must fit within the requirements of that section.

[278] I am not aware of any case in which a Court, and more particularly the Ontario Court of Justice, has provided analysis for setting off an outstanding costs order against an order for the repayment of child support.

[279] Although I have been unable to find a case that is squarely on point with this one, there are a number of cases in which claims to set-off costs against other family law obligations have been dealt with. But it is important for those appearing before this Court to approach some of those cases with caution, particularly if those cases were decided by a superior court. As I will explain, many of the cases that order, or refuse to order set-off, do so without complete analysis of, or reference to, which of the three bases is set-off was ordered. And it is important to remember that the Superior Court has equitable set-off available to it as a tool, but this Court does not.

[280] To begin, a number of cases consider whether a Court should set-off costs orders against prospective support orders, or against arrears of support, or against other family law obligations, like an order for an equalization of net family property. In cases where a party seeks to set off costs against ongoing support, some cases draw the distinction between whether the ongoing support order in question is child support or spousal support. Where the support order in question is child support, some cases refuse to order set-off and express a concern that a set-off order will harm the child by depriving him or her of ongoing support.

[281] One decision of this Court distinguished a decision of the Superior Court, and refused to draw such a 'bright line' rule, preferring to look at the reality of the situation and how money is actually spent. In that case, this Court set-off child support and costs. Other decisions have further drawn distinctions, making it seemingly more easy to obtain set-off against child support arrears rather than ongoing child support.

[282] However, some other cases say that child support is the right of the child. At least one case referred to support as a "personal obligation" and not a debt. Although the cases don't specifically say this, in such an instance, it may be that there would be no "mutuality" as required by section 111 of the Courts of Justice Act. Or if the obligation to pay support is not a "debt", then statutory set off would not be available at all. In which case it could not be ordered by the Ontario Court of Justice.

[283] As I have said, in cases where set-off has been ordered despite the strictness of section 111, it is important to pay attention to the level of court deciding the issue and whether those courts referred to section 111. In cases where the strict parameters of section 111 may not apply but where such orders have been made by a Superior Court, I point out that superior courts nevertheless have jurisdiction to order equitable set-off, which of course is lacking in this Court.

[284] The various principles that I have just summarized may be seen in the following cases: Burisch v. Gosal, 2007 ONCA 569; Colt v. Colt; Colling v. Garmoe, [2012] O.J. No. 4850 (C.J.); Del Pozo v. Del Pozo, [1992] O.J. No. 220 (Prov. Div.); H.P. v. W.P., 2008 ONCJ 615; Jamieson v. Loureiro, 2010 BCCA 52; Walsh v. Walsh; and Woo v. Chin.

[285] Having reviewed various authorities, I find that this Court does have jurisdiction to order set-off pursuant to section 111 of the Courts of Justice Act in appropriate cases, but where the elements of section 111 have been satisfied.

(3) Whether the Amounts To Be Set Off Are "Debts"?

[286] Without providing any authority or case law for his assertion, father's counsel argues that the mother's set-off claim ought to be rejected, because he argues that either the father's claim for the repayment of money, or perhaps the costs orders, or both, are not debts. Therefore, the requirements of section 111 are not met according to him.

[287] I do not agree with the father's counsel's submissions on this point. I find that the amounts to be set off are debts.

[288] Oxford English Dictionary defines "debt" as "a sum of money owed". Black's Law Dictionary, 7th Ed., definition of "debt" includes that it is a "liability on a claim; a specific sum of money due by agreement or otherwise". Black's Law Dictionary further defines a "judgment debt" as "a debt that is evidenced by a legal judgment or brought about by a successful lawsuit against the debtor."

[289] I need not delve further into the issue that I have referred to above about whether an obligation to pay support is a debt or not, because this is not a support case. Neither of the payment obligations that form part of the set-off claim is a support order.

[290] In the case of the money that I have found the mother owes to the father, my is an order for the repayment of a support overpayment. This does not fit within the definition of a "support order" or a "support deduction order" in section 1(1) of the FRSAEA. Furthermore, section 8.4(6) of the FRSAEA specifically gets rid of any ambiguity on this point. It states that a repayment order is "not a support order and shall not be enforced by the Director".

[291] If the repayment order is not a support order, then what is it? It is an order that I have made as a result of the father's success on this point in this lawsuit. It fits within the definition of "judgment debt". As such, I find it is a debt that is owing by the mother to the father within the meaning of section 111 of the Courts of Justice Act.

[292] Likewise, the costs orders that the mother previously obtained are not support orders either. While costs may qualify as a "support order" within the meaning of section 1(1)(g) of the FRSAEA, this is not so in this case. There has already been considerable debate between the mother and the FRO about whether these costs orders were enforceable as support. The FRO took the position that they were not. I have already dealt with the evidence as to why the costs orders were not enforceable as support orders through the FRO.

[293] I find that the costs orders are a debt owing by the father to the mother within the meaning of section 111 of the Courts of Justice Act too.

(4) Whether the Mother's Claim to Set-Off Costs Is Statute Barred

[294] In order for the mother's set off claim under section 111 to succeed, she must also establish that the costs orders are owing to her. She bears the burden of proof to establish the costs are unpaid in order to mount her set-off defence.

[295] There is an issue about her delay in enforcing the orders. I note that there is no limitation period regarding the enforcement of a court order: see section 16(1)(b) of the Limitations Act, 2002, SO 2002, c 24, Sch B. As the costs orders were 13 ½ years old, and 11 years and 4 months old, respectively, when the father commenced this proceeding (and both were still less than 15 years old when the mother served her Response to Motion to Change and when she made arguments at the trial about how to treat the costs orders), I need not decide whether the ultimate 15 year limitation period in section 15(2) applies as a bar the mother's claims.

[296] I find that the mother's ability to enforce the costs orders is not extinguished by the passage of time relating to a limitation period in this case. I will come back to the issue of laches, raised by the father in submissions, later.

(5) Whether the Mother Has Proven that the Costs Orders Remain Unpaid

[297] As such, I turn to the evidence to determine whether the mother has proven that the costs remain outstanding.

[298] I find that she has met her burden of proof.

[299] I acknowledge that the mother's evidence regarding whether the costs orders were paid is imperfect. She says that the father never paid either costs orders. She said she had an agreement with that lawyer that if the father paid the costs, it would be applied against her outstanding legal fees. Otherwise, the mother would have to pay his full bill. She also said when the father failed to pay the costs, that former lawyer "commenced legal action to recover his outstanding fees".

[300] To support this statement, the mother tendered portions of documents that her former lawyer filed back on May 15, 2006 to obtain a writ of seizure and sale against the father to enforce the two costs orders. The document says that the interest rate on Bean J.'s Order is being 4% (which is correct) and it is 5% on Paulseth J.'s Order (which Paulseth J.'s Order does not state).

[301] But in referring to these two documents, the mother also said that her former lawyer sued her for recovery of his fees in a court in Brampton. But she did not produce any documentation to support this assertion. The writ documentation that she filed does not reflect that.

[302] The mother said that her former lawyer only accepted bank drafts and money orders. When the father didn't pay the costs to him, she says she paid him his full fee that he had billed her. She said that was $20,000.00. She tendered as an exhibit a copy of a bank draft for $20,000.00 dated August 29, 2007, which she said was payment of the full amount of legal fees she owed, without deduction for any of the costs that the father ought to have paid.

[303] But the mother did not produce any kind of statement of account from her former lawyer detailing what the $20,000.00 pertained to or showing any transaction, or the lack thereof, relating to collecting costs. As she explained it at the trial, her understanding that the father did not pay the two costs orders was largely based on the hearsay evidence of her former lawyer telling her that was the case and based on her belief that the $20,000 she paid to the lawyer was his full fee.

[304] I appreciate that the hearsay aspects of this evidence is problematic. I also appreciate that I have found the mother not to be credible respecting her evidence about her dealings with the FRO, respecting her evidence about her inability to contact the father and respecting her current financial circumstances. But just because I have made adverse findings about her credibility in relation to this evidence, this does not mean that I must reject all of the mother's evidence. See Baker-Warren v. Denault, 2009 NSSC 59 (S.C.).

[305] Despite the deficiencies in her evidence that I have highlighted, I am also mindful that it is difficult for the mother to prove a negative; ie. that she has not been paid. The passage of time may have made that more difficult and she bears responsibility for this.

[306] Although the mother bears the onus of proof to establish the debt is owing to succeed with her set-off defence, there is still a tactical burden on the father to respond to the evidence once she has tendered it. So I consider the mother's evidence in tandem with the father's responding evidence about the payment of the costs orders. And there are a few pieces of objective documentary evidence, plus the mother's counsel's cross-examination of the father, that has tipped the scales and led me to conclude the costs remain unpaid.

[307] As set out above, there are FRO case notes on January 2, 2008 and January 23, 2008, after the mother paid the $20,000 to the lawyer, that she was then trying to recoup the costs through the FRO. This confirms to the Court as of that date, the mother was pursuing the issue with the FRO.

[308] I turn to the father's evidence about his payment of Paulseth J.'s March 31, 2006 Costs Order.

[309] As set out above, on December 15, 2017, Murray J. ordered the father to produce proof of the payment of both costs orders. The father testified that he paid by cheque. He tendered as exhibits copies of two cheques that he says he wrote to the mother's lawyer dated November 21, 2006 and December 4, 2006, in the aggregate amount of $8,000.00, purportedly in satisfaction of Paulseth J.'s Order. With the cheques, he also produced a bank statement covering the period December 4, 2006 through December 7, 2006.

[310] The bank statement that he filed does indeed show two transactions in the amount of $3,000 and $5,000 in the month of December. However, the mother's counsel established in cross-examination that the transactions on the corresponding bank statement are noted as a transfer and a cash withdrawal, not as cheques clearing the account. Were that to be mere bank error, the bank would have had to make two mistakes in the same month. And given that these documents went into evidence as business records, without calling the record keeper, I accept them as true and accurate. There is no evidence before me from the bank to suggest otherwise.

[311] As such, I did not have proof that the cheques the father wrote actually cleared his bank account in satisfaction of Paulseth J.'s costs order. Had the cheques actually cleared at some other time, then another bank statement could have been brought to my attention. I say this because on the top of the one page bank statement that he did produce in an attempt to prove he paid, the date range of the statements that he was able to obtain from the bank runs from January 1, 2006 (before Paulseth J.'s costs order) through to July 14, 2017. While I was only given one page from the years of statements referred to in the date range, he could have obtained continuous records from 2006 to the present. I draw an adverse inference from his failure to tender any other bank statements showing the cheques clearing.

[312] Regarding Bean J.'s costs order, the father said he paid this Order, but it was too long ago, and he could not obtain any documentary proof from the bank to prove it as ordered by Murray J., given the passage of time. But if in fact he did not pay that costs order between the time that Bean J. made it on February 17, 2004 and the date of Paulseth J.'s Order of March 31, 2006, then he could have obtained the bank records based on my comments about the date ranges above.

[313] And I find that he did not pay Bean J.'s Order between 2004 and 2006. I say this for the following reasons.

[314] The excerpt from the Form 28A: Request for Write of Seizure and Sale dated May 15, 2016 that the mother tendered at this trial was signed on May 15, 2006 by the mother's former lawyer. According to that document, both costs orders of Bean J. and Paulseth J. then still remained outstanding. So if the mother's former lawyer was telling the truth on that document, then that means that at least as of May 15, 2006 Bean J.'s costs order remain unpaid.

[315] In saying this, I acknowledge that the Form 28A: Request for Writ of Seizure and Sale is nothing more than a hearsay statement from the mother's former lawyer that both costs orders remained outstanding. I was not given the sworn Statement of Money Owed that ought to have accompanied the Request for the Writ under the Rules. And the lawyer did not testify. And moreover, the father put the former lawyer's credibility in issue by filing a document with the Court for the trial stating that the lawyer later surrendered his license to practice law to the Law Society. So I do not rely on the Form 28A.

[316] But even if I ignore the Form 28A entirely, there is a further piece of documentary evidence that is compelling and that persuades me that the father did not pay Bean J.'s Order between 2004 and 2006.

[317] The first paragraph of Paulseth J.'s Order dated March 31, 2006 reads, "[m]otion by Respondent father, [J.N.] to set aside the Order of Justice Bean dated February 17, 2006 (sic.) is dismissed". I infer from that the father was trying to set aside Bean J.'s February 17, 2004 Order. And I note that Bean J.'s 2004 Order was made at an uncontested trial, so that the father later brought a motion to set aside the default order would not be out of the ordinary.

[318] When I consider that he wanted to set aside Bean J.'s Order in tandem with the mother's evidence that she was not paid Bean J.'s costs order, I find that it is more probable than not that the father did not pay Bean J.'s Order while he was trying to set it aside. Therefore, I find that until March 31, 2006, when Paulseth J. dismissed his proceeding to set aside Bean J.'s Order of February 17, 2004, he did not pay the costs.

[319] As such, if the father paid Bean J.'s costs order, he would have had to have done so after March 31, 2006. In which case, he had access to bank records.

[320] Therefore, I draw an adverse inference from his failure to point me to bank records showing payment of Bean J.'s costs order.

[321] As such, I am satisfied, based on my review of the totality of the evidence, that the mother has met her burden of proof to establish that the costs orders remain unpaid.

(6) Whether the Court Should Decline to Enforce the Costs Orders, or at least the Interest on the Costs Orders

[322] As I set out above, the father says that he does not believe that "decades-old claims for costs" are properly before this Court. It is in the context of that statement that he told the Court about the decades-old Small Claims court judgment that he has against the mother that he says he never collected from her. He is not asking for any kind of offset for the Small Claims Court judgment; he just wants me to not deal with the costs orders obtained by the mother as an offset if I find that they have not been paid. Buried in this argument, the father's point is that the mother delayed enforcing the orders.

[323] Above, I explained that the mother did take some steps to enforce the costs orders through the FRO in early 2008, and then she stopped. Apart from the FRO case notes and the earlier partial writ documentation from 2006, I heard no other evidence about any other enforcement steps taken. Thus I find that after those early efforts, she took no steps for the next 7 years to collect the costs.

[324] Why the mother waited for the next 7 years (from early 2008 to 2015) to do anything to recover the costs was unexplained at the trial. And then in 2015, when she revived her attempts to collect the costs through the FRO as the issue of whether child support should end became focal, she did so with the goal of trying to reduce her exposure to repay the father for his child support overpayments.

[325] On the one hand it seems strange to me that there is jurisdiction to relieve a payor of child support arrears when there has been a delay in enforcing an order even though child support is the right of the child, but that there would not be jurisdiction to decline to enforce a costs order or interest. I would have thought that there is a stronger policy in favour of ensuring that child support is fully paid.

[326] But I also note that there is specific statutory authority to retroactively vary a child support order in the FLA. I have been unable to find authority to vary a costs order. This may explain the jurisdictional differences between the two orders, in spite of the stronger policy imperatives underlying the enforcement of a child support order.

[327] By contrast, I have found case law about the Court's discretion to decline to order set-off. At least one Court of Appeal case has said that if the right of set off is established, and the person entitled to set off elects to have set off apply, then the right to have set off is absolute. See Langdon v. Traders Finance Corp., 1965 CarswellOnt 52 (C.A.) ¶ 33.

[328] In regards to the father's alternative argument that I should decline to enforce the interest, I begin by noting that the interest component of the costs orders is part of the orders. In the case of Bean J.'s order, the post-judgment interest rate of 4% was specified in the order. Although not specified in the issued and entered order, the post-judgment interest rate at the time of Paulseth J.'s costs order was 5%.

[329] During the trial, I asked counsel how I was to treat the fact that the interest clause had been omitted. In her closing submissions, the mother's counsel argued that I should correct the Order nunc pro tunc (meaning "now for then") to retroactively include the correct interest clause on Paulseth J.'s Order.

[330] This was neither pleaded nor did the mother's counsel provide me with case law to explain whether or how I ought to exercise that jurisdiction.

[331] But on further review of this issue, the fact that the standard interest clause was omitted from Paulseth J.'s issued and entered order may be complicated only at first blush only, and it may turn out to be a 'red herring'.

[332] Section 129(1) of the Courts of Justice Act states that money owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment interest rate, calculated from the date of the order. Pursuant to section 127(1), "date of the order" means the date the order is made, even if the order is not entered or enforceable on that date.

[333] As such, interest started to accrue even before the Order was issued and entered. So does the error on the issued and entered order even matter?

[334] Regardless, I do have jurisdiction to amend the order pursuant to Rule 25(19)(b) of the Family Law Rules. Rule 25(19)(b) reads that the court may, on motion, change an order that, (b) contains a mistake. The word "change" in Rule 25(19) confers upon the Court broad discretion. Recent case law from the Court of Appeal, Gray v. Gray, 2017 ONCA 100, confirms that I may either set aside the order of Paulseth J., or vary it. See Gray v. Gray, 2017 ONCA 100 ¶ 26-31.

[335] Pursuant to rule 2(2), I am required to deal with this case justly. Which option, if any, that I should select depends on the most just result. If that means that I should vary the order in this case (if it is even necessary to do so), then I accept that I have jurisdiction to do that nunc pro tunc. My jurisdiction to do that would be constrained if a limitation period had expired (which I have already found not to be the case). Otherwise, I must apply a fairness test. See Messari et al. v. Alberelli et al., 2017 ONSC 5304.

[336] Despite the fact a claim to amend the order was also not pleaded, the trial nevertheless proceeded throughout with the father well aware that the mother was seeking to offset the full interest accruing on both costs orders against any child support overpayment repayment order. Given the language in sections 127 and 129 of the Courts of Justice Act and in spite of the analysis that I have just provided, it is questionable whether I would even have to change the order to correct the mistake anyway.

[337] So the real issue as I see it is the father's argument that the mother delayed and whether that somehow impacts whether I should enforce the costs order or the interest. However, apart from the unsupported reference to laches, the father's counsel did not tell me what my jurisdiction would be to decline to enforce the orders, if I found them to be properly before me and unpaid (which I have found).

[338] I observe that pursuant to section 130(1) of the Courts of Justice Act, the Court has discretion to either disallow, reduce or increase the interest rate, or order interest for a different period. Pursuant to section 130(2) of the Courts of Justice Act, the Court is entitled to take into account a number of factors. Most of the factors listed in the section appear to be inapplicable in this case, apart from section 130(2)(b), "the circumstances of the case", and section 130(2)(g), "any other relevant consideration".

[339] But no one tendered any evidence to suggest, nor did either party argue, that Paulseth J. exercised her discretion under section 130(1)(a) of the Courts of Justice Act to disallow postjudgment interest at the time she made the costs order, as an explanation of the omission of the standard interest clause. Rather, the case before me proceeded as if the omission of the interest clause from the Order was an error.

[340] Given that, can the Court now rely on section 130 of the Courts of Justice to vary the interest? It may be that section 130 is only available when an order for the payment of money is ordered at first instance. In 469804 Ontario Ltd. v. 723146 Ontario Ltd., 2002 CarswellOnt 1520 (S.C.J.), Cullity J. summarized the divided state of the law on this point as it existed in 2002. Referring to an earlier Court of Appeal decision, he questioned the Court's jurisdiction to vary the interest rate, once it had been set.

[341] But I do not purport to have exhaustively researched this issue. And frankly, the parties ought to have been prepared to make these arguments.

[342] Instead each party told me what I should order in many instances without reference to the Court's jurisdiction. In fairness to the parties, I will give each a further opportunity to make submissions about what I view to be the outstanding issues, before ruling on them. They are fourfold.

D. The Outstanding Issues

[343] First, I do not have a correct interest calculation from the mother. The mother should prepare a further costs and interest calculation that she says is owing using the correct, initial amount of costs as ordered by Paulseth J., plus Bean J.'s costs order, and calculate interest on those amounts up to the date of the trial.

[344] Second, I will give the parties a further opportunity to provide the Court with submissions about its jurisdiction to enforce/decline to enforce both the costs and the interest. If either intends to rely on section 130 of the Courts of Justice Act, then the parties should research the issue in a comprehensive fashion. The Court is already aware of the case referred to above and the cases cited therein.

[345] Furthermore, the father raised laches as a potential defense to the enforcement of the costs order or interest, but did not provide me with any authorities about laches. He did not explain whether or how the doctrine of laches applies to bar the enforcement of an order that is made pursuant to a statute, whether or how laches ought to apply given that the limitation period has not run, nor whether this Court has jurisdiction to even apply the doctrine given section 96 of the Courts of Justice Act. While this Court may apply equitable principles as Jones J. explained in (Director of Family Support Plan) v. Freyseng, [1994] O.J. No. 1186 (C.J.), aff'd by, I received no case law about whether applying laches is tantamount to applying equitable principles, or whether it is equitable relief. The Court requires authority about whether laches is an equitable principle or whether it is equitable relief if the father intends to argue laches.

[346] Third, I appreciate that the father has not pleaded pre-judgment interest pursuant to the Courts of Justice Act. However, I have now made an order requiring that he be repaid the sum of $40,947.39 on account of a support overpayment. If I am to make an order is fair, I wonder whether interest on that amount should be taken into account particularly if I enforcing interest on unpaid costs going back over a number of years.

[347] The parties did not make submissions on this point either. And like many of the issues raised in this case, it was not pleaded. But as a matter of fairness, I intend to give the parties an opportunity to address this.

[348] And fourth, costs of this case have not been addressed. The Court's ruling on costs may impact the amount of any set-off order.

PART VII: ORDER

[349] Based on the foregoing, I make the following Orders:

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

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

(3) However, I also find that the father did not pay the two costs orders of Justice Bean dated February 17, 2004 and Justice Paulseth dated March 31, 2006. They amount to $14,932.74, exclusive of interest. The current amount with interest remains to be determined;

(4) Subject to (5) below, the Court finds that section 111 of the Courts of Justice Act applies and the mother is entitled to set-off the costs that are owing to her;

(5) The amount to be set-off is subject only to any arguments about laches, if applicable, that may apply to the costs and interest, subject to any arguments about whether the Court should decline to enforce the costs or interest on some other basis, subject to any arguments that the father may raise about pre-judgment interest on his overpayment that I have found to be owing, and subject to my ruling about the costs of this case;

(6) As set out above, the Court requires additional submissions about the following:

(i) The Court requires a correct interest calculation from the mother. If the father is of the view that the mother's revised interest calculation is incorrect once she prepares it, then he may submit his own;

(ii) Does the doctrine of laches or some other defence apply to the enforcement the costs orders and/or to the interest that has accrued on the costs orders? If so, what are the applicable legal principles and how should they apply to the facts of this case as I have found them?;

(iii) If the doctrine of laches applies to the enforcement of a costs order and/or interest, then should it be applied in this case? Does the fact that the limitation period has not run matter? And would this Court be applying equitable principles or equitable relief? If it is the latter, can the Ontario Court of Justice even grant such relief?

(iv) Does this Court have jurisdiction to vary or rescind the postjudgment interest that has accrued on Bean J.'s and Paulseth J.'s costs orders pursuant to section 130 of the Courts of Justice Act or otherwise? If so, what is the test that I ought to apply to the facts of this case as I have found them;

(v) Should the Court consider whether to grant the father any pre-judgment interest on the money that the father overpaid? Does it matter that he did not claim this relief? If it is appropriate to grant pre-judgment interest, what are the principles that ought to apply? And if the father intends to pursue this, he should provide the Court with his interest calculation;

(vi) If the mother is of the view that the father's pre-judgment interest calculation is incorrect (if he supplies one), then she may submit her own;

(7) The Court requires written submissions, case law and references to statutory authorities to address the above. The father shall serve and file his pre-judgment interest calculation if applicable, his written submissions and a supplementary book of authorities to address these issues by November 30, 2018. The mother shall have until January 7, 2019 to file her written submissions, authorities, her corrected interest calculation and her response to the father's interest calculation if he provides one;

(8) The father may file his reply to the mother's corrected interest calculation if he feels that is necessary by January 14, 2019;

(9) The parties shall contact the trial coordinator to schedule a further date before me to argue these outstanding issues to proceed after the timetable that I have set out;

(10) I note that if no costs are deducted, then the mother owes the father $40,947.39;

If the Court were to order the mother to repay the father the overpayment, less the costs of $14,932.72 exclusive of interest, then the mother's repayment to the father would be $26,014.67;

Subject to the mother's revised costs and interest calculation to correct the calculation errors on the chart already filed, the chart the mother tendered reveals that the father owes her approximately $23,273.76 (costs + interest) up to just before the commencement of the trial. This would mean that if the Court orders a set off of the costs and interest, the mother would owe the father about $17,673.63 (again subject to being updated/corrected as I have required above);

And finally, if the father claims pre-judgment interest or some other result, then the number may be different;

(11) Now that I have made findings about the termination date for child support, that I have ruled that the father is entitled to be refunded the sum of $40,947.39, that I have the two costs orders are unpaid, that I have ruled that the mother has a prima face claim for set off, I encourage the parties to attempt to settle these remaining issues;

I also encourage the parties to settle the issue of costs of the trial;

(12) If the parties are able to resolve the outstanding issues, then they shall so indicate by way of 14B and I will arrange an earlier attendance before me to be told of the settlement and to finalize the final order;

(13) If they are unable to settle the outstanding issues, or if they are able to settle the outstanding issues but not costs, then I will decide the remaining issues after hearing from the parties and/or set a process to decide costs;

(14) As set out above, the Court's ruling on costs may impact the amount of any set-off order; and

(15) For clarity, pursuant to sections 1(1) and 8.4(6) of the FRSAEA, the final amount to be determined that the mother owes the father is neither a support order nor a support deduction order. The father will have to enforce it in the ordinary course if the mother does not pay him, but not through the FRO. The Order will not be enforceable through the FRO.

Released: November 1, 2018

Signed: Justice Alex Finlayson