Court File and Parties

Court File No.: Brampton 504/00

Ontario Court of Justice

Between:

C.M. Applicant,

— AND —

C.S.1 Respondent.

Before: Justice S.R. Clark

Motion to Change the Final Order of Clark J, dated March 11, 2010

Motion heard on: April 30, 2012

Ruling released on: May 11, 2012

Counsel:

• Ms. Rochelle Greene for C.M.
• Mr. Justin Clark for C.S.1

CLARK J.:

1:0 INTRODUCTION

[1] The respondent father, C.S.1 (hereinafter referred to as "the father"), brings a motion, dated October 6, 2011, to change the final order of Clark J., dated March 11, 2010.

[2] Specifically, he seeks an order for the following:

1. terminating child support for C.S.2., born […], 1988, presently age 23;

2. child support payable by the applicant mother, C.M. (hereinafter referred to "the mother") for the child, C.S.3, born […] 1992, presently age 19: retroactive to May 1, 2011;

3. a 40% contribution from the mother for s.7 special expenses relating to C.S.3's post-secondary school fees and attendant expenses, retroactive to May 1, 2011;

4. costs.

[3] The mother concedes that child support for C.S.2 should be terminated as of April 30, 2011. In any event, the father stopped paying same as at that date. A final order will now formalize their agreement in this regard.

[4] However, she submits that she should not have to pay any child support for C.S.3, on the basis that C.S.3 has unilaterally repudiated the relationship and refuses to communicate with her. C.S.3 continues to reside with the father, and has done so since in or around May, 2009. She believes that the father is responsible, in part, for C.S.3's wish and desire not to communicate. Accordingly, she submits that although C.S.3 is presently enrolled as a full-time student in university, she is not entitled to support as of right.

[5] By way of background, and to give context to this matter, the Court will set out a brief chronology and summary of significant facts and circumstances.

[6] The parties separated some time in 1995.

[7] A final order was made by Stauth J., dated July 19, 2000, wherein the mother was granted custody of the two children. The father was to pay child support in the amount of $350.00 per month on annual income of $24,500.00.

[8] Subsequently, the father brought a motion to change Stauth J.'s order on September 2, 2009. He was now seeking custody of both children, as well as termination of child support for C.S.2 who was residing with him when not attending full-time studies at university in the United States, as well as a s.7 contribution from the mother toward C.S.2's tuition and other school expenses, and child support from the mother for C.S.3.

[9] On March 11, 2010, this Court made a final order vacating Stauth J.'s order; and granting custody of C.S.2 to the mother; custody of C.S.3 to the father; and ordering the father to pay child support for C.S.2 in the net amount of $329.00 per month until such time as he completed his undergraduate university studies. The Court explained in its ruling that this amount represented a set-off of child support owed by the father for C.S.2 in the amount of $668.00 per month on annual income of $73,200.00, and the mother owing $339.00 per month on annual income of $36,693.00 for child support for C.S.3. The father was also ordered to pay 60% of the s.7 expenses for C.S.2.

[10] The parties were also ordered to exchange annual financial disclosure.

[11] As indicated, C.S.2 finished his university studies in April, 2011. Accordingly, the father was no longer required to pay child support for him.

[12] What was expected, however, is that the mother would pay child support for C.S.3 as of May 1, 2011, in accordance with the calculations made by Clark J. when the March 10, 2011 order was made.

[13] In support of this position, the father submits that the mother has not provided full financial disclosure. Her financial statement has not been sworn. She has not provided attachments to her income tax returns, nor has she provided three of her most recent pay stubs. Furthermore, she has never provided financial details relating to her current spouse, R.G..

[14] The father continues to be employed with Bell Canada. His estimated income for 2011 is $69,587.00.

[15] The mother's income for 2010 is $39,201.00. She has yet to file a 2011 income tax return.

[16] C.S.2 is now working part-time.

[17] C.S.3 is just finishing her second year of full-time studies at York University, majoring in psychology. This is a 4 year program. She was living in an apartment on campus for part of the most recent academic year. In addition to her studies, she has been involved with the women's varsity soccer team. She also holds a part-time job.

2:0 POSITIONS OF THE PARTIES

2:1 The Father

[18] When the motion was heard on April 30, 2012, counsel, Mr. Clark, indicated that there were three issues for the Court to consider. First, the father ought to have been receiving child support for C.S.3 as of May 1, 2011. It is clear that the existing order, dated March 10, 2011, contemplates this.

[19] Second, the current order also provides that the mother is responsible for 40% of the special expenses for C.S.2, and should now be responsible for the same for C.S.3. Her tuition for this academic year was in the range of $7,000.00. While C.S.3 lived in a rental apartment on campus during the week, she would return home to the father's residence on weekends and on holidays. As of May 1, 2012, however, she will be back living full-time with the father.

[20] The father and his current partner have paid for all of C.S.3's expenses. C.S.3's circumstances are clearly akin to a child living at home while attending full-time studies at university, which should entitle her to continued guideline child support.

[21] Third, Mr. Clark challenges the accuracy of the mother's financial disclosure. The mother's affidavit, sworn April 25, 2012, was just filed shortly before this motion. When considering her 2010 income tax return, yielding $40,0000.00 of income, there is also an indication that she was in receipt of rental income in the amount of $9,500.00. From this, there was a net business deduction at line 135 of the return deducting $22,503.00. Mr. Clark submits that the mother's personal household expenses appear to have been deducted when they should not have been. He submits, therefore, that there is more money available to the mother for the Court to consider in determining the appropriate quantum of child support payable. In other words, the mother has the means and ability to pay child support in excess of what is set out in her T4 income for 2010. Mr. Clark has filed a Divorce Mate calculation showing what the mother's true income should be. Taking into account these calculations, and the gross-up factor, the mother's income is more likely in the range of $70,000.00. On this basis, the child support guideline should be $551.00 per month. Mr. Clark submits that this is likely one of the reasons why the mother has been able to live in and maintain a rather expensive house on what she claims is only $39,000.00 of annual income.

[22] Regardless, whatever calculation the Court makes, should take into account that child support should be made retroactive to May 1, 2011. This was already a required "notional" payment previously determined in the current order. The mother cannot argue that this obligation to pay child support for C.S.3 merely came "out of the blue".

2:2 The Mother

[23] As indicated, she agrees that child support for C.S.2 should be terminated as of April 30, 2011. No further payments were made to her by the father on C.S.2's behalf as of this date. Therefore, there are no overpayments to consider.

[24] The thrust of her position, however, is that she should no longer have to pay child support because C.S.3 has shut her out of her life altogether, thereby repudiating the relationship, and demonstrating that she is not looking to the mother for any support.

[25] Ms. Greene submits on her behalf that, in any event, from a moral standpoint at least, the father should have been paying approximately three times the amount of child support over the last several years, as his real income was far in excess of the annual income of $24,500.00, on which the original order of Stauth J. was made.

[26] Ms. Greene, filed written submissions for the Court's consideration. Regarding the mother's relationship with C.S.3, the materials show that C.S.3 resided with her from birth until May, 2009. At that time she called the mother and advised that she would now be residing with the father for the summer. From this time forward, C.S.3 refused to communicate or return calls or to visit the mother. In August, 2009 a request was made by the father to obtain C.S.3's legal documentation. The mother dropped all of the documents off at the police station. Around this same time, the police charged the mother's partner, R.G., with sexual assault against C.S.3. It seems that C.S.3 took the view that because the mother would not support her in these allegations, but instead supported R.G., C.S.3 moved in with the father.

[27] Ms. Greene advises that R.G. was acquitted of these charges in the Superior Court of Justice in Brampton in December, 2011. Ms. Greene submits that the trial justice apparently determined that C.S.3's evidence was not credible.

[28] Despite this finding, C.S.3 maintains no contact or communication with the mother.

[29] Accordingly, the mother takes the position that given C.S.3's unilateral decision, she should not be entitled to support.

[30] Ms. Greene's written submissions regarding the law on this issue are summarized in the following manner. Although in recent years there has been little reluctance to find that support should be ordered for a child over the age of 16 attending post-secondary education, some courts still take the position that once a child reaches the age of majority, parents ought not to be required to continue to support that child because she has chosen to attend university. Such attendance is not viewed as one of the necessaries of life. Furthermore, parents have no legal obligation to finance their children's university studies, but only a moral one, and that it would be unjust to oblige parents to pay for their adult children's education where the parents are of modest means. Adult children have an obligation to be self-sufficient and obtain student loans. All the circumstances must be considered, including whether the child is involved in a full-time or part-time course of studies; whether the child has applied for or is eligible for student loans or other financial assistance; whether the child has reasonable and appropriate career plans; whether the child has the ability to contribute to her own support through part-time employment; the child's age; and whether or not the child has unilaterally terminated a relationship with the parent for whom support is sought. (see Farden v. Farden (1993), 48 R.F.L. (3d) 60).

[31] Ms. Greene concedes that the nature of the child's relationship with a payor parent is but one factor, among many, in determining whether the adult child is entitled to support. Although she acknowledges that courts are generally reluctant to put the full blame for the breakdown of a parent-child relationship on the shoulders of the child, courts have terminated support based on a child's extremely abusive behaviour toward the payor parent. However, the Court will not terminate or reduce child support unless the payor parent adduces substantial evidence indicating that the adult child is responsible for the breakdown (see Surrette v. Johnson, [2002] O.J. No. 4779; Grierson v. Brunton, [2004] O.J. No. 3483).

[32] Ms. Greene also cites the case of Green v. Green, [2007] O.J. No. 454, wherein the father sought to terminate support for his adult son attending university on the basis that the son had repudiated their relationship. The Court refused to terminate support, however, on the basis that the breakdown of the marriage between the parents usually has a serious emotional impact on the children. However, the Court did see fit to order that ongoing child support be terminated after a certain passage of time based on the son's rejection of the father's later attempts at reconciliation.

[33] Regarding the financial disclosure of the mother, Ms. Greene submits that the mother's income for 2011 will be $40,458.00. Any other income for calculation purposes is likely on the basis of the mother having to collapse a portion of her RRSPs. She and her current husband reside in a two-family home, owned by her sister-in-law. The mother has no other income other than that set out in line 101 of her income tax return. Ms. Greene could offer no other explanation for gross business income other than the possibility that mortgage payments were being claimed by the mother.

2:3 Reply Submissions by the Father

[34] Mr. Clark submits that the mother's gross business income of $9,500.00 likely relates to mortgage payments, but should be considered as rental income.

[35] Mr. Clark also submits that the law regarding child support for adult children is not as settled as Ms. Greene would have the Court believe. It is his position that the jurisprudence supports the proposition that only in extreme circumstances will the Court order no child support. There must be clear evidence that only the child is responsible for the repudiation of the parent-child relationship. He asks the Court to note that the reason why C.S.3 left her mother's residence was because of the serious situation she found herself in having to deal with R.G.. She left the residence because the mother took R.G.'s side and not hers. Therefore, it cannot be said that she unilaterally, and without justification, has rejected her mother. In any event, the case law is quite clear that this is only one factor to consider in the overall analysis. What is clear, however, is that C.S.3 is not yet self-supporting.

[36] Mr. Clark submits, finally, that the ongoing amount for child support otherwise payable by the mother for C.S.3 was determined by the current order. It should be noted that the relationship between C.S.3 and her mother was no different at the time the final order was made as it is now. Accordingly, there has been no material change in circumstances.

3:0 ANALYSIS

[37] On the basis of the materials filed, and after considering the oral submissions made by counsel, the Court is of the view that C.S.3 is entitled to child support.

[38] The analysis employed by the Court justifying the existing order, is still applicable to the present circumstances.

[39] Furthermore, the Court finds C.S.3 is, clearly, still a child of the marriage within the legal definition and should therefore be entitled to child support and to receive a contribution for s.7 expenses.

[40] Put another way, the Court finds that C.S.3 has not withdrawn unilaterally from parental control of her mother. The case of Re Haskel and Letourneau, 25 O.R. (2d) 139, at p.151 is instructive. To withdraw from parental control must not only be voluntary, but also it must be the free choice of the child. The point to be taken is that if a child is driven from parental control by the emotional or physical abuse in the home brought on due to circumstances in the home, then surely, one cannot be compelled to remain there. Such a case may be analogous to a term of "constructive" withdrawal. In other words, the choice of leaving was not voluntary, but of necessity, to ensure the physical and mental well-being of the child.

[41] This Court finds that C.S.3 has not withdrawn from her mother. Notwithstanding the decision made in relation to the criminal charges against R.G., the Court is not completely satisfied that C.S.3's evidence in that trial was not credible, as has been articulated by Ms. Greene. It may well be that, for a host of reasons, on the totality of the evidence it did not meet the required criminal threshold of proof beyond a reasonable doubt.

[42] What this Court is entitled to accept, and does, is that C.S.3's concerns were legitimately made, in good faith, and in the result, it was a realistic perception by her, if not a fact, that her mother failed to provide her with a safe, stable residence while R.G. was there.

4:0 CONCLUSIONS

[43] In the result, the Court intends to make an order requiring the mother to pay child support for C.S.3 retroactive to May 1, 2011. However, this will be on the basis of the T4 total income and not on any of the business income calculations. Although the Court is somewhat inclined to accept that the mother's income is more than reported, the Court cannot be satisfied to the necessary threshold that this is so.

[44] It should also come as no surprise that the Court will be ordering that the mother pay 40% of C.S.3's school expenses once provided with the appropriate receipts for same.

[45] C.S.3 will cease to be entitled to support, however, if she no longer resides with the father ("reside" includes her living away during the school year to attend university); if she is no longer enrolled in and attending university on a full-time basis; she marries; she completes one post-secondary degree or diploma; or if she reaches the age of 23 years.

5:0 ORDER

[46] The Court makes the following final order:

1. The order of Clark J., dated March 11, 2010, is hereby vacated.

2. Child support for C.S.2, born […], 1998, by the respondent father, C.S.1, is hereby terminated as of April 30, 2011.

3. The applicant mother, C.M., shall pay child support to the said respondent father, C.S.1, on behalf of the child, C.S.3, born […], 1992, in the amount of $339.00 per month on annual income of $36,693.00, retroactive to May 1, 2011.

4. The total amount for arrears of child support payable by the said mother from May 1, 2011 to April 30, 2012 is fixed at (339x12) $4,068.00 as of April 30, 2012.

5. The said mother shall make ongoing support payments of $339.00 to the respondent father as of May 1, 2012, and on the first of each successive month thereafter. The payment for May, 2012 shall be due on or before May 21, 2012.

6. In addition to the monthly ongoing quantum of child support in the amount of $339.00, the mother shall pay an extra $200.00 per month toward the arrears until fully paid.

7. The said mother shall also pay 40% of the special expenses relating to C.S.3's school tuition and other school-related expenses. Any such amounts are due and owing within 60 days of being presented with receipts for same showing that such fees and expenses have been paid by the respondent father.

8. The parties shall continue to exchange annual financial disclosure by providing copies of their respective income tax returns and notices of assessment and reassessment by June 30 of each year, commencing in 2012.

9. A support deduction order shall issue.

[47] The respondent father is the successful party. He is entitled to costs. Counsel for the father may make brief submissions in writing, within 30 days, and a bill of costs with proof of service. The mother will then have 21 days to serve and file a response.

Released: May 11, 2012

Justice S.R. Clark