Court File and Parties
COURT FILE NO.: FC-04-00020073-01 DATE: 20210302 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN: John Edwards Applicant – and – Anna Paula Edwards Respondent
Counsel: Gary S. Joseph and Vivian Li, for the Applicant Rebecca Grosz, for the Respondent
HEARD: February 24, 2021
Reasons for Decision
CHARNEY J.:
Introduction
[1] The respondent, Anna Edwards, brings this motion to terminate her child support obligations of $2,241 per month payable to the applicant, John Edwards, pursuant to the Interim Order of MacPherson J. dated May 8, 2018 (the Interim Order), for the now adult children, Matthew (d.o.b. October 9, 2000) and Aaron (d.o.b. November 4, 2001) (the children).
[2] Ms. Edwards argues that the child support order in the Interim Order was premised on the children being enrolled in school after their respective eighteenth birthdays, but that neither child has been enrolled in a program of education since their eighteenth birthday. She argues that the adult children are no longer eligible for child support and asks that the child support be terminated retroactive to their eighteenth birthday, and that she receive credit or reimbursement for any overpayment of child support.
Facts
The May 2018 Interim Support Order
[3] The parties were married on July 29, 2000 and separated on June 6, 2017. There are two children of the marriage, Matthew and Aaron. The applicant is now 61 years of age, the respondent is 57. Following separation, the parties lived separate and apart in the matrimonial home until the respondent was granted exclusive possession of the matrimonial home in May 2018. The children have lived with the applicant since May 2018.
[4] Following separation, the applicant brought a motion for an order that the respondent pay child support and spousal support. The motion was heard by MacPherson J. on May 8, 2018. At that time both children were under 18 years of age, and MacPherson J. noted (at para. 4) that “both children are in school”.
[5] MacPherson J. also noted that the parties were able to resolve some of the issues prior to the motion commencing, and that the respondent had agreed to child support effective May 1, 2018 in the guideline amount of $2,241 per month for the two children of the marriage. This was based on the respondent’s annual income of $163,701 in 2017.
[6] In addition, MacPherson J. imputed minimum wage income to the applicant (which he calculated to be $26,000 per year) and ordered the respondent to pay spousal support to the applicant in the amount of $2,100 per month.
[7] MacPherson J. noted that this was “a temporary order and is meant to last from now to trial”.
[8] The matrimonial home was sold in October 2020, and the proceeds of sale are currently held in trust pending the result of this litigation.
Educational Programs since the May 2018 Interim Order
[9] Matthew graduated from high school in June 2018, and turned 18 in October 2018. He did not attend school in the 2018-2019 academic year. Matthew did attend Georgian College in the fall term of 2019 (September 2019 – December 2019), but did not return for the Spring 2020 term or enroll for the current 2020-2021 academic year.
[10] Matthew worked full-time (landscaping and snow removal) from August 2018 to June 2019, with several months of unemployment throughout that period due to the seasonal nature of the work. He continued to work on a part-time basis throughout 2020. He also worked part-time at a restaurant while he was enrolled at college in the fall of 2019.
[11] Aaron graduated from high school in June 2019, and turned 18 in November 2019. He did not attend school in the 2019-2020 academic year or the current 2020-2021 academic year.
[12] Aaron has worked part-time as a dishwasher at bars and restaurants since his eighteenth birthday. He has not worked since the start of the COVID-19 pandemic in March 2020 and has not applied for any jobs.
[13] Twelve days after the respondent served her Notice of Motion, Aaron applied to attend a post-secondary education program that is scheduled to commence in September 2021. One week later, Matthew also applied to attend a post-secondary education program that will commence in September 2021. They have each been admitted to their respective programs.
Request to Stay the Motion
[14] At the outset of the hearing of this motion the applicant sought to stay the motion on the ground that the respondent is in arrears of her support obligations. He argues that the court has jurisdiction to refuse to hear motions brought by parties where the record shows continuing disobedience with court orders: Family Law Rules, Rule 1(8). See also: Cosentino v. Cosentino, 2017 ONCA 593, at para. 8; Abu-Saud v. Abu-Saud, 2020 ONCA 824, at paras. 4-5.
[15] Refusing to hear a motion for non-compliance is discretionary. In the present case, the evidence from the Family Responsibility Office’s records indicates that the respondent has frequently gone into arrears since 2019, although she was only one month behind in payments as recently as November 2020. She is currently $16,656 in arrears.
[16] The respondent lost her long-time (29 years) job with a car rental agency in May 2020 as a result of market downturn caused by the COVID-19 pandemic. Although she was given a severance package by her employer, (an amount equivalent to her regular base rate salary of $139,316 for a period of 18 months) she has been unemployed since that date.
[17] In addition, I note that MacPherson J.’s temporary order was intended to last only until the trial, which, at the time of the order, would have been expected to proceed by early 2020. With the advent of the COVID-19 pandemic, however, trials have been delayed, and, given the resulting trial backlog, there is no certainty when this trial will be reached. Given this delay, it is appropriate that the court revisit the Interim Order on this motion.
[18] While the respondent’s arrears are a concern, I am of the view that her failure to comply with the interim support order has not been of such magnitude or duration that she should be denied the opportunity to have this motion heard. In this regard, I am of the view that the respondent’s motion material has raised a serious issue with respect to her existing child support obligations. If her position is correct, her arrears could be set-off by her previous over-payments. In the totality of these circumstances it would be unfair to stay her motion until all arrears are paid.
Position of the Parties
[19] The respondent argues that there has been a material change in circumstances since the Interim Order of MacPherson J. in May 2018. At the time of that Interim Order both children were under 18 years of age and in school. At present (and since at least the end of 2019), both children are over 18 years of age and neither are attending school.
[20] The respondent argues that the evidence indicates that Matthew and Aaron chose to enter the work force rather than meaningfully pursue post-secondary studies. As such, she argues, her child support obligations should have ended when each child turned 18 years of age.
[21] The respondent’s primary position with respect to Matthew is that Matthew’s attendance at Georgian College for the Fall 2019 term should be disregarded because he has not produced official transcripts to prove that he successfully completed that term, and, in any event, he acknowledges that he did not complete that program. In the alternative, there is no dispute that he has not attended any educational program since completing that term in December 2019, and his child support should end on that date.
[22] There is no dispute that Aaron has not attended any post-secondary program since completing high school in June 2019.
[23] The respondent acknowledges that if the children do enroll in a full time educational program in the future, they may again qualify as “children of the marriage”, but argues that the affect of future attendance is an issue to be decided if and when either child actually commences such a program. She argues that the timing of their college applications – two weeks after she served this Notice of Motion – is suspect, and the court should not require her to pay child support until the children provide evidence that they are actually attending these programs in September 2021.
[24] The applicant argues that the adult children remain his dependants notwithstanding their age and the fact that they are not currently enrolled in any educational programs. While the children are adults, the applicant contends that he continues to pay for their food and other living expenses, and they continue to reside with him. Each child’s reported income for 2019 was less than $15,000 per year.
[25] The applicant contends that he cannot support the children without the respondent’s child support payments. The applicant has been on medical leave since July 24, 2020 and has not received any income from his employer since that date. His employment with that employer ended on January 1, 2021.
[26] The applicant has explained that Matthew took a year off after high school “to figure out what he wanted to do”, and then started his first year of college in September 2019. At the end of the Fall term Matthew decided to “change a course”, which required him to withdraw from the program and start again in September 2020. He decided not to enroll in the 2020-2021 academic year because he did not want to participate in online classes.
[27] Aaron also took a year off after high school to figure out what he wanted to do. Like Matthew, he decided not to enroll in the 2020-2021 academic year because he did not want to participate in online classes.
[28] The applicant argues that both children intend to return to full-time studies in the fall of 2021. They have each recently applied for admission and have been accepted to college programs for the 2021-2022 academic year. These are two-year programs.
Analysis
[29] The legislation that applies in relation to the child support issue in this case is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended (the Act). Section 17(1) of the Act authorizes the court to vary, rescind or suspend a support order retroactively or prospectively if, pursuant to s. 17(4) there has been “a change of circumstances”.
[30] The change of circumstances must be a “material change of circumstances” meaning a change that, if known at the time, would likely have resulted in different terms. “With respect to child support, this is not a high bar. Changes in the incomes of the parents, the academic circumstances of the children, the needs of the children or their ability to contribute to their own support will constitute a change in circumstances within the meaning of the Act and the Guidelines”: Makdissi v. Masson, 2017 ONSC 6498, at para. 22.
[31] The Interim Order of MacPherson J. was premised on the fact that both children were in school. The fact that the children are now both over 18 years of age and no longer in school qualifies as a material change in circumstances which justifies a variation proceeding. See: Kozak v. Kozak, 2018 ONSC 690, at para. 47: “Evidence that a child is no longer entitled to child support … meets the threshold test of whether there has been a change of circumstances since the previous order was made.”
[32] Section 2(1) of the Act defines “child of the marriage” as:
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
is under the age of majority and who has not withdrawn from their charge, or
is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[33] Entitlement to child support for a child who is 18 years of age or older depends on a finding that the child remains under the charge of a parent, and is “unable by reason of illness, disability or other cause” to withdraw from the parent’s charge or to obtain the necessities of life.
[34] The onus of establishing that an adult child is still a “child of the marriage” and entitled to support is on the party seeking the support: Menegaldo v. Menegaldo, 2012 ONSC 2915, at para. 147; Kozak, at para. 62.
[35] The fact that an adult child is undertaking educational studies may constitute “other cause” within the meaning of s. 2(1) of the Divorce Act. In Menegaldo, at para. 157, Chappel J. summarized several factors that courts have considered in answering the question of whether an adult child pursuing post-secondary educational programs remains a child of the marriage:
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.
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.
The ability of the child to contribute to their own support through part time employment.
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.
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.
The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
The age, qualifications and experience of the child.
The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
Whether the child is performing well in the chosen course of studies.
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.
The means, needs and other circumstances of the parents and the child.
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.
[36] While none of these factors is determinative, the first factor - whether the child is in fact enrolled in a course of studies – is of central importance.
[37] There are many cases in which courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program, may nonetheless remain a “child of the marriage”: see, for example: Boomhour v. Huskinson, at para. 46; Erb v. Erb, at para. 54; Leonard v. Leonard, 2019 ONSC 4848, at para. 55; Musgrave v. Musgrave, 2013 ONSC 7481, at paras. 38-39.
[38] Other cases have held that a child may require a “modest transition period” after completion of an educational program to search for employment: S.P. v. R.P., 2011 ONCA 336, at para. 32.
[39] Apart from these brief periods, however, and in the absence of “illness or other disability”, courts generally require attendance at school for an adult child to maintain his or her dependant status. Adult children cannot simply choose to remain economically dependant on a parent, they must be “unable” to withdraw from the parent’s charge. Nor can adult children accumulate multiple gap years to forestall their independence.
[40] A parent paying child support for an adult child enrolled in an educational program “is entitled to receive confirmation from the educational institution attended by each child indicating whether that child is enrolled and is attending and whether he is attending on a part or full-time basis and the hours of attendance”: Lampron v. Lampron, at para. 4; Gill v. Gill, 2020 ONSC 1176, at para. 82; Musgrave, at para. 40. The record before me indicates that, notwithstanding frequent requests by the respondent, this information and documentation was not forthcoming from the applicant until after this motion was brought.
[41] The loss of dependent status is not necessarily permanent. Once lost, dependant status may be regained. In Lawless v. Asaro, at para. 12, Fragomeni J. stated:
An adult child who has ceased to be a child of the marriage may regain that status by reason of the pursuit of further education. However, each fact situation must be analyzed carefully and the timelines between the time that the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully.
[42] See also: Bishop v. McKinney, 2015 ONSC 5565, in which the father’s obligation to pay child support was suspended following the daughter’s graduation from high school, but resumed following her enrollment at university a year and a half later.
[43] Where children have taken a gap year to earn money for post-secondary education, these earning may be taken into consideration when determining a parent’s support obligations, and the adult child may be expected to contribute some of their own income made during the gap year to the costs of post-secondary education: Menegaldo, at para. 174, Leonard, at para. 60; Lewi v. Lewi, at paras. 47 and 141.
[44] In the present case, I am satisfied that both children should be permitted to take a “gap year” in order to “figure out” what they want to do. Both children graduated from high school when they were 17 years of age, and turned 18 the following autumn. It is not unusual for minor children to take a “gap year” before they are ready to attend post-secondary education, and they do not necessarily lose their dependant status as soon as they turn 18 years of age.
[45] An adult child cannot, however, indefinitely postpone the commencement of post-secondary education and expect to remain a dependant, entitled to parental financial support. In the absence of “illness or disability” or some other cause that makes him “unable” to attend school, he no longer qualifies as a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act.
[46] While virtual learning may not be ideal, Matthew’s and Aaron’s decision not to enroll in any educational program for the 2020-2021 academic year was their choice. It was a choice that, as adults, they had every right to make, but it is not a choice that the respondent should be required to pay for.
[47] I accept that Matthew, following his gap year, was enrolled in an educational program for the Fall 2019 term, and remained a dependant during that period. The fact that he did not complete the program is not fatal to his dependant status. He has not, however, attended any educational programs since December 2019, and his eligibility for child support ended at that time (ie. December 2019 is his final month of entitlement).
[48] Aaron did not attend any educational program following his gap year, and his eligibility for child support ended in June 2020 (ie. June 2020 is his final month of entitlement).
[49] As indicated, both children have been accepted to full-time college programs for the 2021-2022 academic year, and this decision is made without prejudice to the applicant’s right to apply for child support from the respondent when that school year begins.
Overpayment Calculation
[50] Based on this analysis, I have calculated the respondent’s overpayment of child support as follows:
[51] From January 2020 to and including June 2020, the respondent’s child support payments should be reduced from $2,241 (the amount paid for two children) to $1,398 (the amount for one child). The overpayment for this period is ($843 X 6) = $5,058.
[52] From July 2020 to the date of the hearing (February 24, 2021), the respondent’s child support payments should be reduced to nil. The overpayment for this period is ($2,241 X 8) = $17,928.
[53] The total overpayment as of February 2021 is therefore $22,986.
[54] This amount should be set off against any arrears owing at the date of judgment. Any amount in excess of these arrears should be credited to the respondent against any other financial obligation she may have in this proceeding, without prejudice to her right to seek reimbursement in the final determination of this proceeding.
Conclusion
[55] This Court Orders:
a. The respondent’s child support obligation of $2,241 per month payable to the applicant, John Edwards, pursuant to the Interim Order of MacPherson J. dated May 8, 2018 for the children Matthew John Edwards, d.o.b. October 9, 2000 (Matthew) and Aaron John Edwards, d.o.b. November 4, 2001 (Aaron) is terminated for Matthew effective December 31, 2019.
b. The respondent’s child support obligations are reduced to $1,398 per month effective January 1, 2020.
c. The respondent’s child support obligation of $1,398 per month is terminated for Aaron effective June 31, 2020.
d. The respondent’s overpayment of child support in the amount of $22,986 as of February 24, 2021 shall be set off against any arrears owing at the date of judgment. Any amount in excess of these arrears should be credited to the respondent against any other financial obligation she may have in this proceeding, without prejudice to her right to seek reimbursement in the final determination of this proceeding.
e. This decision is without prejudice to the applicant’s right to apply for child support from the respondent should either of the children attend an educational program in the future. I am not seized.
[56] The respondent is presumptively entitled to costs for this motion. If the parties cannot agree on costs, the respondent may file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 15 days of the release of this decision, and the applicant may file responding submissions on the same terms within a further 10 days.
Justice R.E. Charney
Released: March 2, 2021
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: John Edwards Applicant – and – Anna Paula Edwards Respondent REASONS FOR DECISION Justice R.E. Charney
Released: March 2, 2021
