Court of Appeal for Ontario

Date: 20220401 Docket: C68543

Before: Feldman, Roberts and Favreau JJ.A.

Between:

Alfonso Licata Applicant (Respondent)

and

Julia Shure Respondent (Appellant)

Counsel: Theodore Nemetz, for the appellant Kristen Normandin and Cara Senese, for the respondent

Heard: March 18, 2022 by video conference

On appeal from the order of Justice Susanne Boucher of the Superior Court of Justice, dated March 9, 2020, and signed May 11, 2021.

Favreau J.A.:

[1] The appellant mother, Julia Shure, appeals an order terminating child support for the two oldest children from her marriage to the respondent father, Alfonso Licata. She also seeks to appeal the costs order made against her in the amount of $80,183.06.

[2] For the reasons below, I would allow the appeal.

Background

[3] The parties were married for twenty years and separated in 2014.

[4] The parties have three children, including H.S.L. (born in 1998) and A.E.L. (born in 2000).

[5] In 2015, the parties entered into a separation agreement, which formed the basis for a consent order dated March 10, 2017, signed by J. Wilson J. (the “2017 Order”). The 2017 Order resolved the issues of spousal support, child support, special and extraordinary expenses, division of property, and parenting arrangements.

[6] With respect to child support, the 2017 Order required the father to pay $2,895.00 per month to the mother for all three children. The order also provided a formula for the parties to share special and extraordinary expenses, which included “post-secondary education and related expenses” for the children and specified amounts for tutoring expenses for each child.

[7] Additionally, the 2017 Order included the following term:

[T]he quantum of support set out in this Court Order may be varied if there is a material change in the circumstances of either party or the Children, which may include any of the following events:

(a) Any of the Children residing away from home for the purposes of pursuing post-secondary education;

(b) Any of the Children changing their residence(s);

(c) A significant change in the quantum of the Children’s special or extraordinary expenses; or

(d) A material change in the Applicant/Husband’s income, being an increase or decrease in his annual income of 15% or more.

[8] In 2019, the father brought a motion to change the 2017 Order pursuant to s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He sought termination of child support for H.S.L. and A.E.L., and reimbursement for various payments. The mother responded to the motion to change seeking, among other orders, an order for increased spousal support.

[9] In a decision dated March 9, 2020, the motion judge terminated child support for H.S.L. In doing so, she held that there was a material change in circumstances because H.S.L. had reached the age of majority. She then reviewed H.S.L.’s record as a university student and determined that, given that H.S.L. had obtained very few credits in her program, she was not devoting herself to university studies and could instead work to support herself. The motion judge concluded that H.S.L. could therefore withdraw from parental control. On that basis, the motion judge terminated child support for H.S.L.

[10] With respect to A.E.L., the motion judge found that, despite also having reached the age of majority, she was enrolled in a full-time university program and, accordingly, the father should continue to pay child support for her. However, as a condition of continuing child support, the motion judge directed the mother to provide proof of A.E.L.’s full-time enrolment in post-secondary studies within 45 days of the end of each academic term.

[11] The motion judge declined to order an increase in spousal support for the mother.

[12] Following the release of the motion judge’s reasons, the parties were invited to make submissions on costs. As part of his submissions, the father provided some information that A.E.L. was not enrolled in full-time university studies, and therefore asked that child support for A.E.L. be terminated as well.

[13] In a costs endorsement dated May 1, 2020, the motion judge awarded $80,183.06 in costs to the father. In doing so, she found that he was substantially successful in bringing his motion to change and in defending against the mother’s response to the motion to change requesting increased spousal support. As well, the motion judge explained that the mother’s conduct throughout the litigation justified awarding costs on a substantial indemnity basis.

[14] Seven months following the release of the costs endorsement, the father filed a Form 14B notice of motion under rr. 14(10) and 25(1) of the Family Law Rules, O. Reg. 114/99, for the purpose of settling the order. As part of the materials filed on the motion, the father again renewed his position that child support for A.E.L. should be terminated, and he provided a draft order to that effect.

[15] On May 11, 2021, the motion judge released an endorsement approving the order as proposed by the father, which included a provision terminating child support for A.E.L. The motion judge did not provide reasons for doing so other than stating that she had reviewed the affidavit and email materials filed on the motion.

Discussion

[16] The mother challenges the termination of child support for H.S.L. and A.E.L., as well as the costs order.

[17] It is acknowledged that on appeal from a decision dealing with a support order, the court should not overturn the order unless the reasons disclose an error in principle, demonstrate a significant misapprehension of the evidence, or result in an award that is clearly wrong; the court is not to overturn a support order merely because it would have reached a different decision or balanced the factors differently: Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, at para. 18, referring to Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 11-12. However, as reviewed below, I have concluded that the motion judge made errors in principle in terminating child support for H.S.L. and A.E.L. Given that conclusion, I would also set aside the costs.

Issue 1: The termination of child support for H.S.L.

[18] The mother argues that the motion judge erred in her articulation and application of the test on a motion to change. I agree.

[19] Section 17(1)(a) of the Divorce Act gives a court of competent jurisdiction the power to vary a support order. Section 17(4) precludes the court from varying a child support order unless there has been a “change of circumstances” since the initial support order or the last variation order was made. Section 14(b) of the Federal Child Support Guidelines, SOR/97-175, contemplates that a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. As reviewed above, the 2017 Order also contained a term allowing for the variation of support when there is a material change in circumstances.

[20] In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, [1994] 3 S.C.R. 670, at p. 688.

[21] The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:

1. a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;

2. the change must materially affect the child; and

3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[22] In this case, the motion judge described her approach to deciding whether there had been a material change in circumstances as follows:

Because [A.E.L.] and [H.S.L.] have reached the age of majority, their ages would constitute a material change in circumstances justifying variation of the 2017 order, unless there is evidence that they are unable by reason of illness, disability or other cause, to withdraw from the charge of the parents. Divorce Act s.2(1)(b); s.17(4). The person who seeks support to continue for a child over the age of majority bears the onus of establishing the need for continued support, but the court looks to the overall evidentiary record to determine the issue.

[23] On this basis, the motion judge started from the premise that there had been a material change in circumstances because H.S.L. had reached the age of majority. She then required the mother to demonstrate that H.S.L. was not capable of withdrawing from parental control. This was an error in principle. H.S.L. was already over the age of majority when the 2017 Order was made, at which time she was also already attending university. There was no material change in circumstances from the time of the 2017 Order.

[24] Notably, the 2017 Order specifically contemplated a child “residing away from home for the purposes of pursuing post-secondary education” as an example of a material change in circumstances that would warrant a change in the amount of support. The presence of the additional requirement of the child “residing away from home” clearly implies that attending post-secondary education would not in and of itself create a material change in circumstances attracting a variation of support.

[25] Accordingly, at the time that the 2017 Order was made, the parties had clearly contemplated that support would continue after H.S.L. was 18 years old and that she would attend university. This was the appropriate starting point for assessing whether there had been a material change in circumstances that justified terminating or reducing child support for H.S.L.; not whether H.S.L. had attained the age of majority.

[26] The motion judge further erred by placing the burden on the mother to prove that H.S.L. required continuing child support. She conducted this inquiry as though it was an initial application for child support pursuant to s. 15.1(1) of the Divorce Act, which would require a determination of whether H.S.L. was still a “child of the marriage” as defined in s. 2(1).

[27] In doing so, the motion judge reviewed the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. S.C.).

[28] The motion judge then considered H.S.L.’s progress in her university program:

[H.S.L.’s] university transcripts show that she has completed only about 3.5 credits in 4 years, and a degree at her university generally requires at least 20 credits. From the transcripts, it seems [H.S.L.] has been a full-time student or nearly a full-time student at various points, but she did not necessarily attain credits for all her courses. [Emphasis added.]

[29] The motion judge went on to review the mother’s explanation for this slow progress, which she accepted as a finding of fact:

[The mother] says that [H.S.L.] has learning disabilities and that she is completing her university courses slowly. She says that [H.S.L.’s] issues have been present since she was in the third grade, and that [the father] has always been aware of this. She says he has paid for [H.S.L.’s] tutoring for many years and was involved in the original hiring of the tutor. … I accept [the mother’s] evidence on the point. [Emphasis added.].

[30] Nevertheless, the motion judge ultimately found that H.S.L.’s progress in university was not reasonable and that H.S.L. should therefore not be considered a child of the marriage. In particular, the motion judge stated that there was no evidence about H.S.L.’s educational limitations or career plans. On that basis, the motion judge concluded that the mother had not met what she characterized as the mother’s “onus”:

Because [H.S.L.] is over the age of majority, it is [the mother’s] onus to establish that [H.S.L.] is unable to withdraw from parental control. There is insufficient evidence before the court of her inability to withdraw from her parents at present according to the Divorce Act definition, given the evidence that she works at least part time and the insufficient justification advanced for the supported pursuit of her current educational plan. [H.S.L.] is no longer a child of the marriage. [Emphasis added.]

[31] The motion judge erred by reversing the onus and requiring the mother to prove that H.S.L. was not able to withdraw from parental control.

[32] On an initial application for child support pursuant to s. 15.1(1) of the Divorce Act, a court may make an order for the payment of child support for “any or all children of the marriage”. For children who are at the age of majority or older, s. 2(1) of the Divorce Act defines them as being a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

[33] When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge: Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263; Dring v. Gheyle, 2018 BCCA 435, 430 D.L.R. (4th) 181, at para. 49; Olson v. Olson, 2003 ABCA 56, 225 D.L.R. (4th) 735, at para. 13. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education: see W.P.N. v. B.J.N., 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18.

[34] In this case, it was an error for the motion judge to treat this as an initial request for child support for a child who is at or above the age of majority. The parties had already agreed and obtained an order in 2017 that contemplated that support was to be paid for H.S.L. The only relevant question at the variation stage was whether the father had proven that there had been a material change in circumstances since the 2017 Order, and specifically whether it was beyond the parties’ contemplation at that time that H.S.L. would take an extended period of time to complete her university studies.

[35] Based on the record before the motion judge, had she conducted the proper inquiry, she should have found that the father had not established a material change in circumstances. As reviewed above, the evidence was that H.S.L. was “a full-time student or nearly a full-time student” during the relevant period. The motion judge noted that the 2017 Order contemplated payments for a tutor for H.S.L. In addition, the motion judge accepted the mother’s evidence that the father was familiar with H.S.L.’s learning challenges. In the circumstances, the motion judge should not have found that the mother failed to prove that H.S.L.’s course of study was reasonable. Rather, she should have found that the father had failed to meet his burden of proving that there was a material change in circumstances from the time that the 2017 Order was made.

[36] This does not mean that the father should be required to pay child support for H.S.L. indefinitely. But child support should not be terminated for H.S.L. until the father can demonstrate that there has been a material change in circumstances not contemplated at the time of the 2017 Order and that H.S.L. is able to withdraw from parental control.

[37] Accordingly, the order terminating child support for H.S.L. cannot stand. Instead, I would reinstate the support payments for H.S.L. that were required under the 2017 order, supported by a Family Responsibility Enforcement order.

Issue 2: The termination of child support for A.E.L.

[38] The mother argues that the motion judge also erred in terminating child support for A.E.L. because the order that she approved was inconsistent with her reasons. I agree.

[39] As reviewed above, in her original decision, the motion judge found that child support for A.E.L. should continue as long as the mother provided proof that A.E.L. was enrolled in a full-time university program within 45 days after the end of each academic term.

[40] In the context of submissions on costs, the father again sought an order terminating child support for A.E.L., claiming that she was not enrolled in a full-time university program. In her costs endorsement, the motion judge appeared to reject this argument as follows:

[The father] takes the position in his written brief that because [A.E.L.] is enrolled in 4 courses rather than 6, that this disentitles her to support. I do not agree with this position. I would note for the parties that full-time school attendance may not necessarily be required of the children of the marriage, depending on their overall limitations at any given time, based on any [medical] or psychological issues, and given the overall circumstances that present. For example, less than full time attendance, if caused by outside employment or other activities may reduce the amount that [the father] would be required to pay for their support or may disentitle them to support, depending on the overall circumstances. Less than full-time attendance because of a medical or psychological issue may require full support, however continued slow progress may not merit continued support periods if the lack of progress extends beyond a reasonable period of time, depending on the overall goals. All this is to point out that a motion to change would be required to stop the requirement to pay support for the children if they are enrolled in less than full-time school, so that the judge could analyze whether the children still fall within the definition under the Divorce Act, given the governing caselaw. [Emphasis added.]

[41] However, later in her costs endorsement, the motion judge directed that the “costs award be taken out as drafted in the ‘order’ regarding the trial results as prepared by [the father’s] counsel”.

[42] This appears to have led to disagreement between the parties over the terms of the order, given that the order proposed by the father included a term ending child support for A.E.L.

[43] The father then brought a Form 14B motion, seeking to settle the order. His materials on the motion included an affidavit that attached various documents from A.E.L.’s university program. The documents included a letter from the university stating that A.E.L. was indeed enrolled in full-time studies. The materials also included a transcript showing that A.E.L. was enrolled in four courses in her first two terms. Finally, the materials included pages from a university calendar listing the full-time course load in the first year of A.E.L.’s university program as consisting of 6 specified courses in the first semester and 5 specified courses in the second semester.

[44] The motion judge released her endorsement regarding the Form 14B motion on May 11, 2021. Her endorsement did not explicitly address the issue of whether child support for A.E.L. should be terminated. Rather, she granted the father’s motion and signed the draft order provided by his counsel “[b]ased on [her] review of the affidavit and email materials filed, as well as the application and the consents signed by the parties”.

[45] I find that it was an error for the motion judge to approve the order proposed by the father, which included a provision terminating child support for A.E.L. It is not clear whether this error was inadvertent or substantive. It was nevertheless an error.

[46] If the motion judge’s intention was to terminate A.E.L.’s child support based on the father’s position that she was not enrolled in a full-time university program, no reasons were provided for this finding. Notably, the termination of child support for A.E.L. contradicts the paragraph in the costs endorsement where the motion judge directly addressed this issue, and where she explicitly stated that another motion to change would be required to determine whether child support for A.E.L. should be terminated. No such motion appears to have been brought.

[47] In any event, the evidence put forward by the father does not support an unequivocal finding that A.E.L. was not enrolled in full-time university studies. The materials the father provided to the motion judge included a letter from the university stating that A.E.L. is enrolled in a full-time program. The only evidence to the contrary was the father’s interpretation of a general statement in the calendar for A.E.L.’s university program characterizing a full-time course load for first-year students in the first semester as requiring six courses.

[48] Finally, the motion judge’s initial approach to determining whether child support should be continued for A.E.L. was the same as her approach to child support for H.S.L. Ultimately, as reviewed above, child support for A.E.L. could only be terminated if the father had been able to establish a material change in circumstances since the time of the 2017 Order and that A.E.L. is able to withdraw from parental control.

[49] While I have concluded that the motion judge erred in terminating child support for A.E.L. based on the discrepancies between her reasons for decision and her final order, I note that any future motion to change would have to be based on a proper evidentiary foundation and an analysis of whether there was a material change in circumstances, and cannot simply be based on evidence that A.E.L. is no longer enrolled in full-time studies.

[50] Accordingly, the order terminating child support for A.E.L. is set aside. Instead, the 2017 order requiring the father to continue paying child support for A.E.L. is reinstated, supported by a Family Responsibility Support enforcement order.

Issue 3: Costs order

[51] The mother argues that the costs order should be set aside because the motion judge erred in finding that the father was substantially successful.

[52] It is not necessary to decide whether the motion judge erred in awarding costs to the father given that the appeal is allowed on the two other issues raised. The entitlement and quantum of costs for the proceedings below will have to be decided afresh based on the outcome of this appeal. Directions are provided below for the submission of materials on this issue.

Disposition

[53] In conclusion, I would allow the appeal and: (a) strike paragraphs 2, 3, and 9 of the motion judge’s order dated March 9, 2020 (signed May 11, 2021); and (b) make an order requiring the father to pay ongoing child support for H.S.L. and A.E.L. according to the terms of the 2017 order.

[54] Because I would allow the appeal, the mother is entitled to the return of the amount that she posted as security for costs. Accordingly, I would order that the sum of $100,000 posted as security for costs by the mother is to be released to her.

[55] The parties should try to agree on costs below and for the appeal. If they are unable to agree, they may make brief submissions (no longer than three pages) within three weeks of the release of these reasons, addressing the costs of the appeal as well as costs of the motions below.

Released: April 1, 2022 “K.F.” “L. Favreau J.A.” “I agree. K. Feldman J.A.” “I agree. L.B. Roberts J.A.”