COURT FILE NO.: FS-13-8071 DATE: 2023 03 29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Trevor Bruce Gilkinson, Applicant AND Sherri Lynn Nichols, Respondent

BEFORE: Justice Ranjan Agarwal

COUNSEL: Erroll Treslan, for the Applicant Heather Cassells, for the Respondent

HEARD: March 1, 2023

Endorsement

I. Introduction

[1] The applicant Trevor Bruce Gilkinson moves for a temporary order terminating child support payments for Sommer Brianne Gilkinson (age 26), Hailie Paige Gilkinson (age 23), and Dawson Wade Trevor Gilkinson (age 22). Gilkinson asserts that the children are no longer dependents under the Family Law Act, RSO 1990, c F.3, s 31(1).

[2] The respondent Sherri Lynn Nichols concedes that Sommer is no longer a child of the marriage under the Divorce Act, RSC 1985, c 3, as of June 2019. But she asserts that Hailie and Dawson are still children of the marriage—even though they are not under the age of majority, she argues that they cannot withdraw from her charge to obtain the necessities of life.

[3] For the reasons discussed below, I endorse an order declaring that Sommer, effective June 18, 2019, and Dawson, effective on a date to be agreed to by the parties or further order of this court, are not children of the marriage. As a result, I endorse an order varying the orders of Justice Thompson, dated March 7, 2014, and March 28, 2014, so that Gilkinson shall only pay child support and special or extraordinary expenses for Hailie on an interim without prejudice basis to Nichols from the respective effective dates in the amount of $915 per month (child support) and $202 per month (section 7 expenses).

[4] That said, I also endorse an order staying my order in paragraph 3 above until Gilkinson complies with paragraph 4(p) of the order of Justice Woollcombe, dated March 2, 2018. The orders of Justice Thompson shall continue until Gilkinson produces an “income analysis prepared by a Certified Business Valuator (CBV) [Tim Rickert, BDO Canada], along with all supporting documentation related to [Gilkinson’s income] from the date of separation.”

II. Factual Background

[5] The parties were married in June 1996; they separated in April 2009. This proceeding was started in June 2013. The parties were divorced in February 2015.

[6] In March 2014, Gilkinson was ordered to pay child support for Sommer, Hailie, and Dawson on an “interim without prejudice” basis in the amount of $915 per month. In March 2014, Gilkinson was ordered to pay an additional $202 per month for Section 7 expenses. These amounts were based on Gilkinson’s 2012 income of $47,741. Gilkinson’s current income is about 20% higher. Nichols asserts that Gilkinson’s actual income is much higher because of two businesses he owns and operates.

[7] Hailie graduated high school in June 2017. Hailie has been diagnosed with several learning and behavioural disabilities. In September 2017, Hailie had gallbladder surgery, which delayed the completion of her post-graduate studies. In Fall 2020, Hailie enrolled in the Developmental Social Worker program at Fanshawe College. In March 2022, she had sudden organ failure. She took 4 months off school for surgery and recovery. In July 2022, Fanshawe’s Academic Coordinator advised Hailie that she can pause her studies:

Yes, you can take a break. Typically you need to complete the program within 7 years of starting it but otherwise you can come back any time. If you want to take a break, you simply do NOT reapply for this semester. When you are ready to come back then you do.

Hailie works for Supported Choices Inc., which provides social recreation programs and support for children, young adults, and adults with disabilities. Nichols’s evidence is that Hailie is working part-time until she restarts school.

[8] Hailie earned around $15,500 in each of 2018 and 2019 and $22,600 in 2020 (including around $5000 in business income). Her 2021 income was negligible. Nichols’s evidence is that Hailie intends to restart her coursework in Summer or Fall 2023, depending on her health.

[9] In oral submission, Gilkinson conceded that Hailie was a child of the marriage or a dependent until April 2022 (when he says she could have returned to school or started working full-time after her surgery).

[10] Dawson graduated high school in February 2020. Dawson has also been diagnosed with learning disabilities and is challenged by online learning. After graduation, he enrolled in a Fish and Wildlife Technician program at Fleming College. Dawson transferred to a Horizontal Drilling program in April 2021 but didn’t enrol in classes in Fall 2021. Dawson earned around $16,700 in 2019, $26,200 in 2020, and $16,100 in 2021.

[11] Nichols’s evidence is that Dawson intends to enrol in a Commercial Driver training program. Dawson has been working for Netdrill Inc. (which appears to be affiliated with EH!tel Networks Inc. and FibreXpress Network Builders Ltd.).

[12] In oral submission, Gilkinson conceded that Dawson was a child of the marriage or a dependent until he began working full-time in 2021.

[13] Gilkinson says that he will pay child support for Dawson or Hailie if they are enrolled in a full-time education program and living with Nichols.

III. Litigation History

[14] This proceeding was started over 10 years ago. There were several temporary orders, leading to a final order in 2015 that directed a “mini-trial” on section 7 expenses and child support.

[15] Gilkinson moved in 2017 to terminate child support. The motion was adjourned so Gilkinson could make financial disclosure. The motion never proceeded. Gilkinson was ordered, in March 2018, to make extensive financial disclosure, including an income analysis.

[16] There was a settlement conference in June 2018. The court ordered that a trial management conference should be held before August 2018. No other steps have been taken in this proceeding since then. The income analysis has not been completed. In January 2023, Gilkinson told the valuator, in response to the valuator’s request for documents and information, to “not do any more work on this until further notice.”

[17] Gilkinson says that even though he’s the applicant, he’s not seeking any relief so it’s not his obligation to prosecute the application. Nichols says she cannot do anything further until she has the income analysis. Given that the only issue to be determined is section 7 expenses and child support, and Gilkinson has been paying these under the temporary order, there may be little or no incentive on Nichols to move this matter forward. At the same time, Gilkinson can’t assume that he can litigate this case through motions for temporary orders.

[18] Gilkinson served his notice of motion and affidavit on November 22, 2022. He has no contact with Hailie or Dawson. As a result, his affidavit was necessarily lacking relevant information.

[19] On February 23, 2023, Nichols served her responding affidavits. Nichols’s affidavit lacked some relevant and material information. Further, Nichols’s affidavit refers to an affidavit from November 2017 that was not filed for this motion (or at least not uploaded to CaseLines as required by the Central West Region: Notice to the Profession and Parties, effective April 19, 2022).

[20] That same day, Nichols served Gilkinson with financial disclosure that he had been asking for since November 2022. This disclosure included information about Hailie’s and Dawson’s employment and income. It’s unclear why Nichols didn’t proactively disclose this information in her affidavit, which then forced Gilkinson to serve a reply affidavit on February 28, 2023. As made clear by both parties’ oral submissions, the information in this disclosure is critical to the disposition of the motion.

[21] As I discuss below, Nichols has selectively disclosed documents or information, or refused to provide information for this motion. Once Gilkinson put into issue whether Hailie and Dawson are children of the marriage, Nichols should have disclosed to him all information about Hailie’s and Dawson’s enrolment in educational programs; financial assistance; their savings and employment income; and academic performance. Instead, she has made selective disclosure at the last minute that raises more questions than provides answers. It would have helped the court to have affidavits from Hailie and Dawson on the relevant factors for determining support entitlements for adult children.

IV. Legal Principles

[22] The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 only applies to variation of final support orders made under section 15.1(1) of the Act. The Family Law Rules allow the variation of temporary orders in limited circumstances—rule 25(19) only applies when the order was obtained by fraud, contains a mistake, or there was lack of notice.

[23] That said, this court has the authority to change temporary support orders under the court’s inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is “critical to ensuring fairness and justice” between the parties, given that temporary orders are often “imperfect solutions” based on minimal and usually untested information. See, e.g., Sun v Lo, 2023 ONSC 128, at para 18, and Damaschin-Zamfirescu v Damaschin-Zamfirescu, 2012 ONSC 6689, at para 19.

[24] The test for a motion to vary a temporary support order has evolved. In Lipson v Lipson, the Court of Appeal held that there must be a “substantial change in the circumstances.” In Willick v Willick, [1994] 3 SCR 670 at 688, the Supreme Court of Canada held that variation of an existing order requires the moving party to show that there has been a “material change of circumstances”—a change “that, if known at the time, would likely have resulted in different terms.” See also LMP v LS, 2011 SCC 64, at para 32. In Iafolla v Lasota, 2021 ONCA 245, at para 28, the Court of Appeal held that the test for a “material change” is a change that is substantial and continuing and, citing LMP, would have resulted in different terms. When our courts have cited Lipson or used the word “substantial” to describe the threshold question, I take that to mean a “material” change in that it is substantial (see, e.g., Albaum v Albaum, 2022 ONSC 1300).

[25] In addition, our courts have required the moving party to justify a temporary order. In Pakka v Nygard, Justice Jarvis required the moving party to show that “the payor [would] suffer undue hardship or that a continuation of the existing order would be incongruous and absurd.” See also Rowland v Middlebrook, 2013 ONSC 2838, at para 27; Ceho v Ceho, 2015 ONSC 5285, at paras 93-94; and Grass v Hropak, 2020 ONSC 7803, at para 87.

[26] In Nour v Youssef, 2021 ONSC 2717, Justice Kurz held that the test for variation of a final order and a temporary order are the same: (a) a strong prima facie case that there has been a material change in circumstances since the order; (b) a clear case of hardship; (c) urgency; and (d) that the moving party has come to court with “clean hands” (at paras 33-34). See also Edisbury v Edisbury, 2022 ONSC 2407, at para 33.

[27] In all these cases, our courts have identified several policy reasons for a stringent application of the “material change” test on a temporary motion:

• motions for temporary orders should not be encouraged (Lipson)
• interlocutory motions “increase the stress and uncertainty of the parties and vastly increase the cost of litigation” (Pakka, at para 5)
• temporary orders are an attempt by the court to be “consistent and fair on the basis of evidence that is often incomplete, and never viva voce” (Pakka, at para 5)
• the trial judge is in a better position to analyze the resources and needs of the parents and the children, including the children’s standard of living (Rowland, at para 30)
• parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible (Damaschin-Zamfirescu, at para 20)

[28] That said, the court’s power to vary a temporary support order is “critical to ensuring fairness and justice as between the parties”—it would be unfair to continue a temporary support order as new and better evidence emerges, especially where a trial date is some time in the future. See Damaschin-Zamfirescu, at paras 19-20.

[29] This case presents an added complication—the support order was made, on consent, “without prejudice”. The order is silent about, exactly, what was “without prejudice”. In Ceho, Justice Price, at para 97, described the purpose of “without prejudice” orders:

Such orders are intended to remain in effect only until a full hearing of the motion for a temporary order, when they will be changed by the written agreement or court order that ultimately disposes of the motion. Such a “without prejudice order” is made in contemplation of a further order, based on a more complete evidentiary record.

[30] In Damaschin-Zamfirescu, Justice Chappel held that when a party seeks to vary a temporary without prejudice order, the court should “reconsider the issue of…support as a hearing de novo on the more complete record before the court” without requiring the moving party to prove a “substantial change in circumstances” (at para 23). In that case, the parties were moving to vary a “temporary without prejudice” order less than two years after it had been made, which distinguishes it from this case.

[31] Here, the parties consented to a temporary, without prejudice order almost 10 years ago. The court ordered them to proceed to a mini-trial on child support. There is no suggestion that they intended to litigate child support at a further interlocutory motion. Their conduct strongly suggests that the without prejudice order was intended to order the parties’ affairs until a trial, which has since been delayed by both sides. My view is reinforced by the fact that the order was made when the children were all adolescents—the parties likely contemplated that a final order would be made long before the children reached the age of majority.

[32] For these reasons, and in the context of this case, I have applied the following legal test:

(a) has Gilkinson proven a strong prima facie case for a material change in circumstances since the prior order (i.e., a change that is substantial, continuing and that “if known at the time, would likely have resulted in different terms”); and

(b) will Gilkinson suffer undue hardship if the variation is denied; or

(c) would the continuation of the existing order would be incongruous and absurd (which includes a consideration of urgency)?

[33] Nichols argues that this court should deny Gilkinson’s motion because he has failed to comply with this court’s disclosure order. In other words, Gilkinson doesn’t come to court with clean hands. Equitable principles such as clean hands can play a role in the exercise of the court's discretion whether or not to grant the remedy (see Hongkong Bank of Canada v Wheeler Holdings Ltd., [1993] 1 SCR 167 at 191). If the moving party can prove that the support order is absurd or causing undue hardship, the order should be varied, subject to compliance with previous court orders.

[34] The amount of child support for a child over the age of majority is to be determined under section 3(2) of the Federal Child Support Guidelines, SOR/97-175. Section 3(2) can be understood only by reference to section 3(1):

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

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

3 (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.

[35] The “child of the marriage” includes a child of two former spouses who, at the material time, is the age of majority or over and under their charge but cannot withdraw from their charge or to obtain the necessaries of life (Divorce Act, s 2(1)).

V. Analysis and Disposition

A. Issue #1—is there a material change?

1. Hailie is a child of the marriage.

[36] There has been no material change in circumstances regarding Hailie since April 2022. Hailie remains a child of the marriage.

[37] Gilkinson relies on a pay stub from Supported Choices that shows Hailie worked 75.5 hours during the last two weeks of December 2022. Nichols’s evidence is that Hailie is working part-time. Though this paystub might suggest otherwise, it’s inconclusive. Gilkinson has led no other evidence to contradict Nichols’s evidence (for example, he could have questioned Nichols or moved for non-party disclosure from Hailie). Hailie has, with Fanshawe College’s approval, temporarily paused her studies because of her significant health issues. That she is temporarily working part-time in her academic field until she re-enrols in school does not mean that she can withdraw from her parents’ charge or obtain the necessaries of life.

[38] Gilkinson’s position is that if Hailie is not a full-time student or totally disabled, then she can work full-time and, ergo, he need not pay child support. That analysis is too binary. Adult children who are incapable of economic self-sufficiency because of illness or disability fall within the definition of “child of the marriage”. See Julien D Payne & Marilyn A Payne, Child Support Guidelines in Canada, 2020 (Toronto: Irwin Law, 2019), chapter 3. Here, there is sufficient proof that Hailie’s disability prevents her from finding full-time employment or continuing full-time school.

[39] There are also many cases in which courts have found that a child taking a brief hiatus from an educational program, may, nonetheless, remain a “child of the marriage” See, e.g., Boomhour v Huskinson, at para 46; Erb v Erb, at para 54; Leonard v Leonard, 2019 ONSC 4848, at para 55; and Musgrave v Musgrave, 2013 ONSC 7481, at paras 38-39.

[40] Gilkinson didn’t argue that the amount determined by applying the Guidelines as if Hailie were under the age of majority is inappropriate and, as such, I need not consider the amount that is appropriate under section 3(2)(b) of the Guidelines.

2. Dawson is not a child of the marriage.

[41] There has been a material change in circumstances regarding Dawson since he started working full-time 2021. Dawson is not a child of the marriage.

[42] Dawson works for Netdrill. The two paystubs produced by Nichols show that Dawson earns $28.25 per hour and works full-time hours (around $60,000 annually). In 2022, his gross earnings were around $18,500—Nichols didn’t explain why Dawson’s 2022 earnings were lower than his annualized weekly earnings.

[43] A court may draw an adverse inference where it is shown that a party selectively disclosed documents or information, or refused to provide information (Babcock v Canada (AG), 2002 SCC 57, at para 36). In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation a party litigant does not testify, or fails to provide affidavit evidence on the application, or fails to call a witness who would know about the facts and would be assumed to be willing to assist the party. See Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 5th ed, (Markham: LexisNexis Canada, 2018), at §6.471.

[44] Though Gilkinson has the evidentiary burden here, Nichols has omitted producing documents or information that would clarify these facts. This failure amounts to an implied admission that any evidence about Dawson’s employment status would contradict, or at least not support, Nichols’s position that Dawson cannot withdraw from his parents’ charge or obtain the necessaries of life.

[45] Unlike the evidence about Hailie, Nichols doesn’t depose that Dawson is working part-time. Dawson’s family doctor says that Dawson “is having poor success completing educational programs or securing work” because of his disabilities, but she says nothing about him being unable to work full-time (and, indeed, he appears to have secured work at Netdrill despite the doctor’s opinion). Though Nichols says that Dawson intends to enrol in the Commercial Driver training program, he hasn’t done so yet.

[46] I note that there is nothing in the Divorce Act to suggest that Dawson cannot become a child of the marriage again by pursuing further education (see Edwards v Edwards, 2021 ONSC 1550, at para 41).

[47] I am not prepared to infer a date for when Dawson stopped being a child of the marriage. In my view, he did so when he started working for Netdrill. To that end, Nichols shall produce to Gilkinson a “job letter” from Netdrill (or other document satisfactory to Gilkinson) stating when Dawson began working for Netdrill. If Nichols doesn’t produce this document, then I may be spoken to for a further order—it may be as early as April 2021, which is when Dawson stopped his vocational training and was eligible to start working full-time.

B. Issue #2—is the continuation of the order absurd or would Gilkinson suffer undue hardship?

[48] Gilkinson has led no evidence to support a claim for undue hardship.

[49] But I find that continuing a temporary order from almost 10 years ago given that Sommer and Dawson are clearly no longer children of the marriage would be absurd in this case. Again, the parties surely never contemplated that their children would grow into adults in the time everyone spent waiting for a final order to be made. The evidence about the children’s circumstances is necessarily new and could not have been considered when the temporary order was consented to.

[50] Though there is no urgency in that Gilkinson is responsible for this proceeding languishing, I find that the incongruity of continuing the temporary order in this case overrides any lack of urgency.

C. Issue #3 — what is the appropriate remedy here?

[51] This motion became necessary, in part, because this application has languished. Gilkinson says he is no longer seeking any relief from the court. If that is right, he should have withdrawn this application a long time ago. If Nichols is still seeking relief, it’s unfathomable how she has not significantly advanced the proceeding in at least 5 years.

[52] Gilkinson cannot unilaterally refuse to obey this court’s order and, at the same time, expect that he can get relief when he wants it. The appropriate remedy is to stay any order varying the interim child support orders until Gilkinson produces an income report to Nichols.

[53] I have scheduled a trial management conference for June 21, 2023, at 11am. Though a trial management conference is usually set at the settlement conference if the matter is ready for trial, the passage of time makes that step redundant. Instead, the parties should assume that at the June 2023 trial management conference, the court will expect the parties to be ready for trial. To that extent, the parties will have to work cooperatively to be ready for the trial management conference, including providing the valuator with the documents and information he needs to complete the income report as ordered by Justice Woollcombe.

Costs

[54] As there has been divided success on this motion, I endorse an order that there shall be no costs of the motion.

Agarwal J. Date: March 29, 2023