Court File and Parties
Barrie Court File No.: FC-14-1644-01 Date: 2023-08-21 Ontario Superior Court of Justice
Between:
Daniel Brun, Applicant – and – Victoria Fernandez, Respondent
Counsel: Daniel Brun, acting in person Victoria Fernandez, acting in person
Heard: May 15, 2023 – May 16, 2023
Reasons for Judgement
JAIN J.
Introduction
[1] Parents of adult children often talk about how difficult it has become for their adult children to become completely independent. For parents who have separated, this can become a very high conflict issue. The rights and obligations regarding child support create disagreements on when the children of the marriage are no longer dependent and/or entitled to child support. In this case, the parties disagree regarding the final termination date of child support for their adult children. They further disagree regarding other related issues, including financial disclosure; allegations of underemployment; imputation of income; setting the amount of retroactive child support arrears (or overpayments) and contribution to s. 7’s. [^1]
[2] The Applicant and Respondent were married in 1996 and separated in 2006. They have two children as a result of their relationship, Tristan born in 1997 and Adrian born in 1999. At the time of the trial, Tristan was 25 years old, and Adrian was 24 years old. Both parties agree that Tristan and Adrian are now independent adults and are no longer entitled to child support.
[3] This trial came before me as a result of the Applicant’s Motion to Change the Final Order of McDermot J. dated February 8, 2016 (hereinafter “the McDermot Order”). The Respondent served and filed a Response to Motion to Change and an Amended Response to Motion to Change making claims of her own including retroactive child support and contributions to s. 7’s and imputation of income to the Applicant. Although they had many court appearances and conferences, they were unable to agree or narrow any issues. As is unfortunately typical for many of these types of cases, both parties allege the other has acted unreasonably and failed to provide adequate disclosure and/or comply with orders for financial disclosure.
[4] Throughout the litigation for this Motion to Change, the Respondent claimed she was owed arrears of child support dating back to 2006. She abandoned this claim at trial. The court will not go behind the McDermot Order.
[5] The main issue the court had to determine was: under what circumstances may this court award child support to children over the age of majority who are not disabled and not enrolled in post-secondary school? After making the finding on the above issue and setting the final termination date for child support, the court had to make the relevant findings and orders on the related issues including determination (or imputation) of income, calculation and award of retroactive child support and s. 7 arrears and/or overpayments.
Issues
[6] The issues before the court are:
- What should the child support termination date be for Tristan and Adrian?
- What income should be used to calculate the Applicant’s child support obligation from 2016 onwards?
- Does the Applicant owe the Respondent retroactive child support and retroactive contributions to s. 7 expenses? If so, in what amount and how shall it be paid?
Decision
[7] Based on the reasons set out below, the court has determined that the termination date for child support and s. 7’s payable for Tristan and Adrian shall be November 30, 2020. The appropriate incomes to be used to calculate the Applicant’s child support obligation from 2016 to 2020 shall vary. For 2017, the Applicant’s income is imputed to be $24,128. The actual income as set out in the Applicant’s Notices of Assessments for 2016, 2018, 2019 and 2020 shall be used to calculate the Applicant’s child support obligation for those years. As a result, I find the Applicant owes the Respondent retroactive child support for the years 2016-2020 in the amount of $16,464 and contribution to s. 7 expenses for the years 2016-2020 in the amount of $4,654.91. These retroactive arrears totalling $21,118.91 shall be added to the current arrears already being enforced by the Family Responsibility Office. The Applicant shall pay them at a rate of $500 per month until fully paid.
Analysis
Child Support Termination Date
[8] All children of separated parents are entitled to child support until they are no longer defined as a “child of the marriage.” Section 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) which applies to all cases in Canada where the parents were legally married and divorcing or have divorced, provides that a “child of the marriage” includes:
a child of two spouses or former spouses who, at the material time, [...] (b) 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 necessities of life;
[9] Section 15.1(1) of the Divorce Act, provides, in part:
A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
[10] It is possible from a plain reading of the Act to find that an adult who does not have a disability and is not enrolled in post-secondary is still a “child of the marriage” entitled to child support because they are unable to withdraw from their parents charge, or unable to obtain the necessities of life, by reason of an “other cause” (see Nkwazi v. Nkwazi, 2014 SKCA 61, 438 Sask. R. 185, at para. 23). In my view, there is a growing, but limited, precedent for the provision of child support in these types of circumstances. In order to determine this, the court must go through a two-stage analysis including:
(a) Is the adult child able to withdraw from their parents charge or obtain the necessities of life, i.e., the court must make a finding of whether the adult child can or cannot obtain an income to meet their reasonable needs; and
(b) Is the “cause” of the inability to withdraw permitted under the Divorce Act, i.e., is the cause of that inability a social/economic factor (such as the cost of living and delayed adulthood, or a difficult transition in their life).
The onus of proof would lie with the party seeking the provision of child support, who would have to prove that the child is/was unable to withdraw from parental control and is eligible for support. The nature and amount of evidence will vary with the case but becomes greater as the adult child grows older (see Titova v. Titov, 2012 ONCA 864, [2012 O.J. No. 5808, at para. 43).
The ability to withdraw from parental charge or obtain the necessities of life
[11] In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978 at paras. 57-58, the court set out the first part of the test:
The first part of the analysis in determining child support entitlement for adult children requires the court to ascertain whether the child is in fact still under parental charge. The analysis of this issue focuses in part on whether the child remains financially dependent on the parent (Rebenchuk, at para. 25; Thompson v. Ducharme, 2004 MBCA 42 (C.A.), at para. 14; P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.), at para. 31). However, the case-law under both the Divorce Act and similar provincial child support legislation establishes that a child can also be under parental charge if they are unable to manage daily living on their own without direct and consistent care, monitoring and support from their parent (Briard v. Briard, 2010 CarswellBC 119 (S.C.), at para. 16; aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, 2012 CarswellNLTD(F) 11, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.), a para. 7; Senos v. Karcz, 2014 ONCA 459 (C.A.), at para. 6).
In assessing whether an adult child is “unable to obtain the necessaries of life” within the definition of “child of the marriage,” the question is not whether their sources of income and other financial assistance support a sustenance existence, but rather whether they are sufficient to support the child’s reasonable needs having regard for the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the child’s support (Briard, at paras. 29-30; Lougheed v. Lougheed, 2007 BCCA 389 (C.A.), at paras. 23 and 25; Moore v. Moore, 2014 BCSC 2210 (S.C.), at para. 103; E.B.L.P. v. J.G.S., 2020 BCPC 18 (P.C.), at para. 50).
[12] The analysis must simply look at whether the adult child’s sources of income meet their reasonable needs. In deciding this, the court should also consider the reasonable expectations of the adult child in light of the means of the parents. In Lewi v. Lewi (2006), 80 O.R. (3d) 321 (CA), at para. 171 the court stated:
It is fundamental that the lifestyle of children should suffer as little as possible as a consequence of their parents separating. If the parents would have paid the educational expenses of the children had they not separated, then, all things being equal, the children should be entitled to expect they would pay them even though the parents have separated.
The “causes” of the inability that are permitted under the Divorce Act
[13] In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978, at para. 59, the court set out the second part of the test:
Assuming that the court determines that the adult child is under parental charge and unable to withdraw from that charge or to obtain the necessaries of life, the second part of the entitlement analysis requires the court to determine whether the child’s inability to do so is due to illness, disability, or “other cause.” Section 2(1)(b) of the Divorce Act leaves open the question of what “other cause” would justify an order that a child who is of the age of majority or older remains entitled to child support from a parent, and the case-law establishes that the phrase is to be interpreted broadly (Olson, at para. 14; K.M.R. v. I.W.R., 2020 ABQB 77 (Q.B.), at para. 37).
[14] In this case, the parties entered a Separation Agreement dated September 20, 2006, (“the Separation Agreement”). For the purposes of determining child support, paragraph 18 of the Separation Agreement set the Applicant’s income at $27,100 and the Respondent’s income at $40,000. The Applicant was to pay child support for the two children in the amount of $400 per month. In addition, the Applicant was to pay the Respondent his share of “any extraordinary or section 7 expenses incurred on behalf of the children” in proportion to the Applicant and Respondent’s respective incomes. Paragraph 18 of the Agreement also set out the events which would trigger the termination of child support. In accordance with paragraph 19 of the Agreement, each party was to provide the other with a copy of their Income Tax Return and Notices of Assessment by June 1st of each year for the purpose of reviewing child support.
[15] By 2014, the Applicant fell into arrears of approximately $26,000 on the payment of child support. The Family Responsibility Office (FRO) commenced enforcement proceedings against the Applicant. On December 17, 2014, he commenced a Motion to Change his ongoing child support and reduce arrears of child support to zero. As a result of that Motion to Change, there is a Final Order of McDermot J. dated February 8, 2016 (“the McDermot Order”). The McDermot Order is based upon the consent of both parties. The McDermot Order reduced the arrears of child support to $20,000 and rescinded all other arrears accumulated prior to 2016. The arrears were to be paid at a rate of $150.00 per month commencing March 1, 2016. The McDermot Order further reduced the ongoing child support to $350.00 per month commencing March 1, 2016, based on an imputed income of $23,000 to the Applicant.
[16] In this second Motion to Change, the Applicant asks the court to adjust the arrears of child support, and the retroactive child support payments according to when the child support payments should have terminated. He asserts there are no arrears of child support or s.7’s owing under the McDermot Order. The Applicant asks the court to terminate his child support obligation for Adrian as of July 1, 2017, and for Tristan as of January 15, 2020. He says that the children were no longer entitled to child support on these dates because: a) Tristan was over the age of eighteen and had completed a university degree on or by January 15, 2020; Adrian had turned eighteen years old, graduated high school on or by July 30, 2017, and he did not attend post-secondary school.
[17] The Applicant freely admitted that prior to the McDermot Order, he fell into arrears of child support due to his own poor decisions and irresponsible behaviours. He stated that he had “lied and cheated” and “made mistakes” in the past. He stated that for many years he was unable to obtain or maintain employment due to his addiction issues and criminal record. After the McDermot Order, the Applicant stated that he paid all child support in accordance with the McDermot Order on time and consistently. He admits however, that he never provided annual financial disclosure as required by the McDermot Order. He stated that he now just wants the Court to order what is “fair and just” by terminating the child support and fixing the arrears (or overpayments).
[18] The Respondent asserts that what is “fair and just” is for the Applicant to pay full child support for two children and contribute to s. 7’s based on an imputed income retroactive to 2006. However, at trial, she abandoned her claims that go behind the McDermot Order and asked the termination date to be set as November 24, 2020. She asked the court to impute an income of $45,000 - 48,000 to the Applicant for the years 2017 and 2018. She asked the court to order the Applicant to pay her:
(a) Retroactive child support from 2016 until November 2020 totalling $14,287.22.
(b) Retroactive contributions for s. 7 expenses totalling $74,812.86 (the Applicant’s share being $22,444.52) including:
i. Paying her a portion of the medical/dental insurance premium for the family plan she paid from 2016 -2020 (Applicant’s purported share $3,583.84);
ii. Paying her a portion of medical and dental expenses for the children that were not covered by her health insurance plan (Applicant’s purported share being $3,903.94 plus $750.97 for Adrian in 2019 totalling $4,654.91);
iii. Paying her a portion of the RESP contributions (Applicant’s purported share being $9,351.24);
iv. Paying her a portion of Tristan’s University Internship Trip to Peru (Applicant’s purported share being $1,124.52);
v. Paying her a portion of Adrian’s cultural trip to Honduras in 2017 and Music school at Noize Faktory in 2018/2019 (Applicant’s purported share being $3,730.01).
[19] It is undisputed that Tristan finished his university degree in January of 2020 and until then, he was still a child of the marriage, and he was entitled to child support. It is undisputed that Adrian turned eighteen and finished high school in 2017 and until then, he was still a child of the marriage, and he was entitled to child support. Where there is dispute is regarding the termination date for child support for each child. The Applicant asserts that child support for Adrian should terminate July 1, 2017, and for Tristan it should terminate January 15, 2020. He says that his proposed termination dates are in accordance with the Federal Child Support Guidelines because both children were over the age of majority and neither child was attending full-time post-secondary school.
[20] Both Tristan and Adrian continue to reside with the Respondent and remain partially financially dependant upon her. The Respondent asserts that Tristan and Adrian are both entitled to child support until at least November 24, 2020. The Respondent’s evidence was that Tristan was dependent upon her after graduation for a transition period until he found full-time employment on November 24, 2020. Until then, he was only able to find part-time work or contract positions. She stated that until November 24, 2020, he was unable to support himself.
[21] With respect to Adrian, the Respondent asserts that he is still dependant upon her and that at this time, he is working part-time at the LCBO and is living with her. The Respondent stated that Adrian experienced emotional difficulties growing up after the separation. After graduating high school, he tried living with the Applicant but that quickly ended after just three months due to a conflict between them. In or around October 2017 he began living with his grandfather for about eight months. He also attended at the Noize Faktory (music school) from March 2018 to March 2019 (which is not an accredited post-secondary education institution). It took him approximately one year to complete a six-month music program. During all of these brief periods, Adrian was still supported by the Respondent. Adrian has also registered and then ended up not attending at a “Cannabis” school and a trade school for carpentry. He has worked sporadically at various part-time jobs, but he was laid off and in receipt of unemployment during the COVID Pandemic. Adrian was, in my view, somewhat lost and lacked direction after he graduated from high school. Thus, his period of transition was longer than Tristan’s.
[22] Although the term “other cause” is not defined, courts have found that unemployment due to economic conditions, and a period of transition both constitute an “other cause.” There is also a growing recognition that social and economic factors and conditions such as unemployment, a period of transition, delayed adulthood, and the increased cost of living may also constitute an “other cause.” The caselaw regarding these potential “other causes” overlaps.
[23] Claims for support for adult children who are able to work, but unemployed, have been granted, though generally the courts will limit the duration of support in these cases: see Phillip v. Phillip (Kreger), 60 D.L.R. (4th) 319 (SKQB), at para. 16. In Weir v. Weir, [1986] B.C.J. No. 3096 at paras. 12-13, the court held that dependence arising from a “poor job market” qualified adult children for support. Even more broadly, in Bruehler v. Bruehler, [1985] B.C.J. No. 1958 (CA), at para. 3, the court considered the state of economic depression to be a “other cause” for young people of 18 and 19 years of age who were unable to obtain employment to provide themselves with the necessaries of life.
[24] Children who reach the age of majority and choose not to continue their education may require a brief period to become self-sufficient. Courts have provided “transitional orders” in these circumstances: see S.P. v. R.P., 2011 ONCA 336, [2011] O.J. No. 1968, at para. 32; Schmidt v. Buchanan, 2008 SKQB 314, [2008] S.J. No. 473, at para. 34; Gamache v. Gamache, 1999 ABQB 313, [1999] A.J. No. 474 at para. 3. In Gamache, the court observed that while parents do not “have an indefinite obligation to support a child who is attending school or is unemployed or underemployed,” parents do have an obligation to support adult children who are unable to provide for themselves through “a reasonable transition period.”
[25] In Weber v. Weber, 2020 ONSC 4098, [2020] O.J. No. 2978, at para. 62, the court stated:
The case-law recognizes that children may require a reasonable transition period after ending their studies to seek out and obtain employment. The assessment of whether the child remains unable to withdraw from parental charge during such a transitional period for reasons that may justify ongoing entitlement to support, and the appropriate length of any such transitional period, involves a careful consideration of all relevant evidence respecting the child’s overall condition, means, needs and circumstances
[26] In Jefic v. Jefic (Grujicic), 2022 ONSC 7240, [2022] O.J. No. 5698, at para. 68, the court acknowledged the increasing use of the transition period as an “other cause”. See also A.E v. A.E., 2021 ONSC 8189, at para. 189. In AE, Chappel J. concluded that the adult child, who continued to live with his mother, remained a “child of the marriage” despite having been out of school for more than a year. The court found he was both emotionally and financially dependent on his mother and recognized the impact COVID had on employment and the impact that the high-conflict parental separation had on his ability to achieve independence.
[27] In my view, by making an order expanding the payment of child support beyond the age of majority for the adult children in this case, the court’s findings and decision are still compliant with the current law regarding the definition of a “child of the marriage” and “other causes.” In addition, there are certain social realities and economic conditions which have caused what has been termed “delayed adulthood.” In Child Support for Adult Children in Canada: When Does Childhood End?, Bala and Abrams state at p. 3:
Many young adults in Canada are experiencing “delayed adulthood.” Independence is often achieved at a later age than in previous decades, a trend accentuated by the Pandemic. Young adults are leaving the parental home and marrying, at an older average age. More education and training is required to secure sustainable employment, which means an increasing number of young adults are spending more time in post-secondary institutions. Tuition for many programs has dramatically increased, more rapidly than the rate of inflation. More time in school and higher tuition costs are causing higher debt loads than students were incurring thirty years ago. Increased housing costs have resulted in more young adults [having] to “live at home” while paying off these debts, rather than exhaust further resources to live on their own. Labour market restructuring and the dramatic increase in housing prices, especially in urban areas, are causing significant challenges for young adults. Ultimately, for several economic, social and cultural reasons, increasing numbers of young adults in Canada are delaying “independent living”—they’re living with their parents, or at least looking to them for more economic and social support. [^2]
[28] In KMR v. IWR, 2020 ABQB 77, [2020] A.J. No. 157, the court stated at para. 38, that “it may be that the Courts are recognizing a broader social reality as concerns the concept of ‘child of the marriage’”. The court recognized that s. 2(1)(b) of the Divorce Act should be construed broadly and that the caselaw may support a conclusion that social realities and economic conditions could amount to a “other cause” within the meaning of the Divorce Act but cautioning that such an order would need to be transitional rather than indefinite: see para. 40. The court cited Brear v. Brear, 2019 ABCA 419, [2019] A.J. No. 1459, at paras. 51-52, 55, as providing strong support for this conclusion:
There are few children, whether or not from separated or divorced families, who are economically self-sufficient on their 18th or 19th birthday or in the month they complete high school. But unless a child is entering post-secondary studies, the common reality is child support obligations of the payor parent often cease on or close to these dates. In her article, “Exploring Child Support for Adult Children: The Need for a Broader Conception of ‘Other Cause’” (2018), 37 CFLQ 139 (WL), Rose Branton argues that “child of the marriage” has been interpreted far too restrictively, is counter to principles of statutory interpretation, and does not reflect the current economic conditions for young adults.
Indeed, Statistics Canada census data shows that while more young adults may be moving back home than in the past, an even greater proportion are staying in their parents’ home longer. The percentage of young adults aged 20 to 34 living with at least one parent increased from 33.1% in 2006 to 34.7% in 2016. For those aged 20 to 24, the proportion “co-residing” with their parents rose from 58.3% in 2001 to 62.6% in 2016. For those aged 20 to 24 and living with their parents in 2011, 69% reported they had never left their parents’ home.
Given the statistical trend of children remaining with their parents for longer and longer periods, this remains a cogent and compelling reason why it is not necessary to establish that the children remain children of the marriage at the time a retroactive variation application is made. If inadequate support has been paid, the child loses, the recipient parent loses, or both lose.
[29] In this case, inadequate support has been paid for many years. Both the children and the recipient parent have already lost out for a very long time. In my view, both Tristan and Adrian are perfect examples of adult children who were unable to withdraw from parental charge by reason of “other cause.” They were unable to obtain the necessaries of life after they reached the age of majority. They both have been going through periods of education, transition and “delayed adulthood.” Their sources of income were insufficient to support their “reasonable needs having regard for their condition, means, needs and other circumstances.”
[30] The court found it difficult to hear the Applicant’s arguments concerning the children's self sufficiency as he himself seems to have taken a very long time to become self-sufficient. The McDermot Order only imputed a minimum wage full-time income of $23,000 to the Applicant. Despite this, the Applicant continued to be underemployed after the McDermot Order and earned only $13,650 in 2017 working part-time at Domino’s Pizza. When the court asked the Applicant how he survived earning only $13,650 in 2017, the Applicant stated that he was dependent on the charity of his family and friends to make ends meet. The Applicant did not see the irony in the fact that he expected his son Adrian to become completely independent as soon as he turned eighteen and graduated high school, while he, at the age of forty-eight was not even working full-time or supporting himself without help from family and friends. He did not have any insight or compassion to extend support for Tristan because it took Tristan almost one year after graduation to find a full-time job. In my view, by 2017, the Applicant had gotten away with being very irresponsible for his children for many years, and he had a very poor work ethic. For most of the children’s childhood, the Applicant failed to obtain and/or maintain full-time employment. Then, not long after both children were eighteen years old, he suddenly (and conveniently) was able to obtain and hold a full-time job that pays more than minimum wage.
[31] Further, the economic conditions of unemployment or unstable employment, increased cost of living and the COVID pandemic have all overlapped with their circumstances. To put it simply, the children still needed their parents’ support, and both of their parents had the financial ability to contribute to their support. I find them to be within the definition of a “child of the marriage” until November 2020 as requested by the Respondent.
[32] For the reasons set out above, the court finds the termination dated for child support for Tristan and Adrian to be November 30, 2020.
The Applicant’s Income and Retroactive Child Support and Contribution to s. 7 Expenses
[33] Now that the court has determined the date for child support to terminate, the next issues for the court to determine are: what is the Applicant’s income from 2016 to 2020, and what is the appropriate amount of child support and s. 7’s payable by the Applicant to the Respondent from 2016 to 2020?
[34] The relevant sections of the Federal Child Support Guidelines[^3] to this case are s. 2, s. 3 (2), and s. 19 which read as follows:
s. 2. DEFINITIONS – (1) The definitions in this subsection apply in these Guidelines…
“child” means a child of the marriage.
“income” means the annual income determined under sections 15 to 20;
(3) MOST CURRENT INFORMATION - Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.
s. 3.(2) CHILD THE AGE OF MAJORITY OR OVER – 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.
s.19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;…
(f) the spouse has failed to provide income information when under a legal obligation to do so;
[35] In most cases, family courts are not inclined to allow a person to put his or her self-interest before a child’s needs. The decision to have children carries with it an obligation to make various personal choices, sacrifices and compromises to promote the child’s best interests. All parents are obligated to support their children to the best of their abilities. While some may debate the extent of such obligation, the Ontario Court of Appeal’s position in Drygala v. Pauli remains a clear statement of the applicable rule on the point of when to impute income to the paying parent. In determining if income should be imputed, the following three questions must be asked:
is the spouse intentionally under-employed or unemployed (“The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning” – para. 28) a. there is no need to find a specific intent/bad faith to evade child support obligations before income can be imputed – paras. 25, 26 and 36)
if so, is the intentional under-employment required by virtue of reasonable educational needs?
If the answer to question 2 is negative, what income is appropriately imputed in the circumstances? a. A rational basis for arriving at an imputed income must be sought. [^4]
[36] This court has no doubt that the Applicant in this case experienced struggles since the separation in 2006. He stated that he has been sober since 2011. He is commended for this progress in addressing his addiction issues. However, by 2016 he was still having income imputed to him because he was earning less than minimum wage income, and, in my view, that was less than he was capable of earning since separation. He has admitted that he made irresponsible choices for at least ten years after the separation. The McDermot Order resolved almost ten years of child support arrears by rescinding some of the Applicant’s arrears. The McDermot Order continued to impute a minimum wage income to the Applicant. The Applicant continued to fail to provide annual financial disclosure. He contributed nothing to the children’s s. 7 expenses. In my view, the Applicant was given more than a reasonable amount of time to get his life together and make the necessary changes to be a more responsible parent. In my view, he was underemployed and did not fulfill his obligations to support the children to the best of his abilities.
[37] In my view, the Applicant has no principled grounds to demand that Adrian or Tristan be deemed no longer children of the marriage as soon as they turned eighteen and/or finished school. The Applicant failed to support the children for many years prior to the McDermot Order and continued to fail to pay adequate support for them afterwards. Both parties confirmed that the children struggled due to the parties separation and the Applicant’s long term instability and addiction issues. The Applicant stated in court that he had a great relationship with the children now. In my view, the main reason that is possible is because the Respondent had been supporting their children for many years prior, even though there had been little to no support (financially or emotionally) from the Applicant. If she had not stepped up, where would their children be now? In my view, instead of viewing the payment of child support (and extended child support) as a burden, the Applicant should show some respect for the Respondent’s efforts and responsibility towards their children. He should view supporting the children as a privilege and an honour.
[38] In my view, the McDermot Order gave the Applicant plenty of time to make the necessary changes in his life and more than sufficient time to recover from his addiction and criminal behaviours. The Applicant failed to produce evidence of there being no ability to work full-time at a minimum wage job from 2016 onwards. He further failed to produce annual financial disclosure to the Respondent as required by the McDermot Order. The court wonders if this had anything to do with the fact that the Applicant’s income rose dramatically in 2018 and that would have increased the ongoing child support obligation. Either way, I find he did not comply with the McDermot Order.
[39] Further, I am not satisfied with the reasons and/or explanation the Applicant provided for his very low income in 2017. The Applicant said he relapsed in 2017 due to all the arguments about child support and a “triggering” argument he had with Adrian when he lived with him briefly. I find this allegation to be deflecting responsibility. I find it is absolutely inappropriate to adjust child support downwards for any period after the McDermot Order due to the Applicant’s underemployment. I find the Applicant to be underemployed in the year 2017 and will accordingly impute minimum wage full-time earnings to him for the year 2017. I will further use the Applicant’s Notices of Assessment Line 15000 Total Income for the years 2016, 2018, 2019, 2020 to calculate and adjust the Applicant’s retroactive child support payments and his contribution to s. 7’s accordingly.
[40] The Respondent asked the court to impute income to the Applicant and order that he pay retroactive child support from 2016 based on that imputed income of $48,000. However, the court cannot impute an income to the Applicant where there are no reasonable facts or evidence to support it. The Applicant never started earning that range of income until 2019.
[41] In 2016, the Ontario minimum wage was $11.40 p/hr and in the McDermot Order, the court and both the parties agreed to impute a full-time minimum wage income to the Applicant in the amount of $23,000. Despite this, the Applicant earned $27,999 in 2016. He never adjusted the child support, so the court will do so retroactively.
[42] Further, in 2017, minimum wage was $11.60 p/hr which equals $24,128 annually for a full-time minimum wage income. This is $365.00 per month for two children in accordance with the Federal Child Support Guidelines. I find it is appropriate to impute full-time minimum wage income to the Applicant for the year 2017 following the McDermot Order.
[43] I am satisfied with the evidence to use the Applicant’s Notices of Assessment to determine the Applicant’s income for 2016, 2018, 2019 and 2020 when the Applicant was able to rise above minimum wage earnings and his Notices of Assessment show his exact income. They are the best evidence available to the court.
[44] The Family Responsibility Office (FRO) credited the Applicant with a payment of $4,200 on his arrears as they stopped collecting ongoing child support as of January 2020, however the Applicant continued to pay the full $500 per month. The FRO began to credit the Applicant’s payments to his arrears of child support. Effectively, the FRO suspended the collection of ongoing child support, and used all of the Applicant’s payments towards his arrears. Therefore, in effect, the Applicant paid nothing towards ongoing child support in 2020.
[45] As such, the Court’s chart calculating the retroactive child support is as follows:
| Year | Income of the Applicant | Federal CSG Table Amount | Amount Paid | Applicant’s Retroactive Arrears | Total child support owed by Applicant to Respondent | Overpayment by Applicant |
|---|---|---|---|---|---|---|
| 2016 | $27,999 | $407 p/m for two children Annual $4,884 | $4,200 | $4,884 - $4,200 | $684 | Zero |
| 2017 | $13,650 Imputed by the court to $24,128 | $365 p/m for two children Annual $4,380 | $4,200 | $4,380 - $4,200 | $180 | Zero |
| 2018 | $39,910 | $596 p/m for two children Annual $7,152 | $4,200 | $7,152 - $4,200 | $2,952 | Zero |
| 2019 | $44,002 | $656 p/m for two children Annual $7,872 | $4,200 | $7,872 - $4,200 | $3,672 | Zero |
| 2020 | $53,607 | $816 p/m for two children 11 months $8,976 | FRO adjusted amount of $4,200 paid for ongoing child support and applied the full $500 p/m payments to pay down arrears | $8,976 | $8,976 | Zero FRO readjusted amounts to reflect changes and used overpayments of child support to pay down arrears |
| Total | $16,464 Owed by the Applicant to the Respondent for retroactive child support from 2016 to 2020. |
[46] For the above reasons, the court finds that the Applicant owes the Respondent retroactive child support arrears in the amount of $16,464 from 2016 to November 30, 2020, when ongoing child support terminated. This shall be added to the arrears already being enforced by the FRO as a result of the McDermot Order.
Reasonable and necessary section 7 expenses
[47] Paragraph 18 of the Separation Agreement says that “Any extraordinary or section 7 expenses incurred on behalf of the children shall be shared by the Husband and Wife in proportion to their respective incomes.” This term is not disputed by the parties.
[48] Despite the party’s purported consent to the McDermot Order, the parties disagree on the meaning of one term contained in the McDermot Order regarding s. 7’s. Paragraph 2 (d) of the McDermot Order reads:
“There are no section 7 expenses being shared by the parties including Tristan’s post-secondary educational expenses.”
[49] The Applicant asserted that this term meant that there are no current or ongoing s. 7 expenses being shared by the parties and that they would not be sharing any future s. 7 expenses including Tristan’s post-secondary educational expenses.
[50] The Respondent disagreed. The Respondent’s first language is French. She stated that she understood paragraph 2 (d) to mean that s. 7 expenses are being shared, including Tristan’s post-secondary educational expenses. Her evidence was that she read “There are no section 7 expenses being shared” and understood the “no” to actually mean “number” because in French, you would write number as “no.” She stated that she read and understood that term to confirm “there are number section 7 expenses being shared by the parties including Tristan’s post-secondary educational expenses.” She stated that she had already agreed to rescind thousands of dollars in child support arrears and reduced the Applicant’s imputed income and ongoing child support amount. She stated that she would never have agreed that he didn’t have to ever contribute to s. 7 expenses after all the compromises she had already made for the McDermot Order.
[51] I find there was no “consensus ad idem” regarding s. 7 expenses in the McDermot Order. I agree with the Respondent that considering all the compromises she had already made on February 8, 2016, it is unreasonable to expect that she would have agreed that the Applicant would not share in any s. 7 expenses from 2016 onwards.
[52] Child support is the right of the child. Reasonable s. 7 expenses are a part of child support. Even if there was a legitimate consent not to share s. 7 expenses, this court is not obligated to uphold that consent if it is not in accordance with the Child Support Guidelines and if the court finds it is not a reasonable arrangement to support the children of the marriage. As such, I find it unreasonable for the parents to agree not to share reasonable and necessary s. 7 expenses from 2016 to 2020 for the children in this case.
[53] Therefore, I find it is appropriate to make an order that the parties share s. 7 expenses from 2016 onwards. For the reasons set out above, paragraph 2 (d) of the McDermot Order is hereby struck and replaced with the following: “the parties shall share reasonable and necessary section 7 expenses including Tristan’s post-secondary educational expenses.” This shall also override paragraph 18 of the Separation Agreement in that now the s. 7 expense must be shown to be “reasonable and necessary” in order for it to be shared by the parties.
[54] As a result of the above, the court finds that many of the Respondent’s claimed “s. 7 expenses” set out in paragraph 18 of this decision for the children were not reasonable or necessary. The Respondent’s health insurance premiums were for her “family plan” from 2016-2020. She did not provide any breakdown of the premiums to separate out her portion from the children’s portion. I do not find it reasonable to order the Applicant to pay any contribution to the Respondent’s health insurance premiums for her family plan from 2016-2020 or her RESP contributions.
[55] The Applicant’s income is modest, and I find it would be unreasonable to expect him to pay both full child support and a proportionate share of the university costs. As set out above, the court is already ordering full retroactive child support to be paid by the Applicant to the Respondent until November 2020 – which is eleven months after Tristan graduated. By doing so, in my view, the Applicant will have indirectly contributed to Tristan’s university. For these reasons, I find it unreasonable to order the Applicant pay any further portion of Tristan’s post-secondary education.
[56] The trips to Peru and Honduras were undoubtably enjoyable and benefited Tristan and Adrian immensely. However, the Applicant was not consulted prior to these expenses being incurred. I find it is unreasonable to expect the Applicant to pay any part of these expenses when considering his modest income and the fact that these trips were not necessary.
[57] I further find that Adrian’s part-time attendance at the Noize Faktory does not qualify as a reasonable s. 7 expense. Noize Faktory is not an accredited post-secondary school. Adrian did not attend full time. I find this expense to be unreasonable and unnecessary.
[58] I do find it reasonable to order that the Applicant pay the Respondent his share of medical and dental expenses for the children that were not covered by the Respondent’s health insurance plan. These expenses included regular medical and dental care, oral surgeries, and psychotherapist expenses. According to the Respondent, the Applicant’s proportionate share totalled $4,654.91. I find these expenses to be reasonable and necessary and in the best interests of the children.
Order
[59] For the reasons set out above, Final Order to go:
(a) The termination date for child support and contributions to s. 7’s payable for Tristan Brun born July 26, 1997, and Adrian Brun born March 26, 1999, shall be November 30, 2020.
(b) The Applicant’s income to be used to calculate the Applicant’s child support obligation for 2017 is imputed to be $24,128.
(c) The Applicant’s income to be used to calculate the Applicant’s child support obligation for 2016, 2018, 2019 and 2020 shall be his actual income as set out in the Applicant’s Notices of Assessments for 2016, 2018, 2019 and 2020.
(d) The Applicant owes the Respondent retroactive child support for the years 2016-2020 in the amount of $16,464.
(e) The Applicant owes the Respondent retroactive contribution to s. 7 expenses for the years 2016-2020 in the amount of $4,654.91.
(f) These retroactive arrears totalling $21,118.91 shall be added to the current arrears already being collected and enforced by the Family Responsibility Office.
(g) Commencing September 1, 2023, the Applicant shall pay the above retroactive arrears to the Respondent at a rate of $500 per month until fully paid. In addition, the Family Responsibility Office shall garnish and collect any federal income tax benefits payable to the Applicant and apply them to the arrears payments until they are fully paid.
Madam Justice R. S. Jain
Date: August 21, 2023
[^1]: Federal Child Support Guidelines, (SOR/97-175, as am.) [^2]: Nicholas Bala & John Abrams, “Child Support for Adult Children in Canada: When does Childhood End?” (Paper delivered at the National Judicial Institute Family Law Program, Toronto, 16 February 2023) online: canlii.ca/t/7n4gp [^3]: Federal Child Support Guidelines, (SOR/97-175, as am.) [^4]: Drygala v. Pauli, [2002] O.J. No. 3731