Court File and Parties

Ontario Court of Justice

Date: August 2, 2013

Court File No.: Brampton 76/93

Between:

Gordon Murchison Applicant

— And —

Tamara Farmer Respondent (Moving Party)

Before: Justice L.S. Parent

Heard on: July 26, 2013

Reasons for Judgment released on: August 2, 2013

Representation:

• Gordon Murchison — on his own behalf
• Tamara Farmer — on her own behalf

PARENT J.:

[1] Issue Before the Court

The issue of child support is the central issue before the court in the Respondent's Motion to Change which proceeded to a Rule 2 hearing on July 26th, 2013.

BACKGROUND

[2] The Parties and Their Child

The parties lived together in a common-law relationship. They are the parents of one daughter, namely Miranda Murchison, born January 29th, 2001. Miranda is currently twenty-one (21) years of age.

[3] Original Support Order

On October 1st, 2007 Justice Maresca granted a final order requiring the Respondent to pay to the Applicant child support in the amount of $172.00 per month commencing December 1st, 2003. This amount was based on an imputed income to the Respondent of $20,000.00 per year. The order further provided that any arrears arising from the order would be paid at the rate of $50.00 per month commencing November 1st, 2007.

[4] Absence of Termination Clause

Justice Maresca's order did not provide a termination clause regarding the Respondent's child support obligation.

THE RESPONDENT/MOVING PARTY'S POSITION

[5] Motion to Change

The Respondent initiated her Motion to Change on May 9th, 2012. The Motion to Change sought an order terminating support for her daughter effective January 29th, 2010 and fixing arrears of support owed to Ontario Works and to the Applicant. The Respondent indicated in her pleadings that her belief was, that as of January 29th, 2010, her daughter became eighteen (18) years of age and was not enrolled in a full-time educational program. These circumstances, she claimed, resulted in the termination of her child support obligation.

[6] Settlement with Ontario Works

On October 2nd, 2012, the Respondent entered into Final Minutes of Settlement with Ontario Works regarding arrears of support owed to this Assignee. The agreement varied Justice Maresca order dated October 1st, 2007. The consent order provided that the Respondent would pay the sum of $100.00 per month to the Region of Peel commencing October 15th, 2012 and on the 15th day of each month thereafter until the arrears, which were fixed at $5866.40, were paid in full.

[7] Suspension of Enforcement

The endorsement of October 2nd, 2012 also suspended the enforcement of child support ordered by Justice Maresca.

[8] Remaining Issues

The remaining issues before the Court at the hearing on July 26th, 2013 therefore were the Applicant's requests to terminate child support effective January 29th, 2010 and the fixing of arrears owed directly to the Applicant.

THE APPLICANT'S POSITION

[9] Response to Motion to Change

The Applicant filed his Response to the Respondent's Motion to Change on September 14th, 2012. This Response sought to have the Motion to Change dismissed with costs. The Response did not seek any order requesting a contribution by the Respondent to Miranda's post-secondary education costs or an increase in the current support order.

THE RESPONDENT'S EVIDENCE

[10] Testimony

The Respondent testified on her own behalf at the hearing.

[11] Amendment to Request

At the beginning of her testimony, the Respondent amended her request in that she was seeking an order terminating her child support obligation effective February 1st, 2010 and not January 29th, 2010. The Respondent's Motion to Change did not seek a variation of the current support order.

[12] Calculation of Arrears Credit

The Respondent testified that should her request be granted, the current arrears of child support owed to the Applicant should be reduced by 41 months of payment obligations, namely for the period commencing February 1st, 2010 to July 31st, 2013. The Respondent submitted that the arrears of support should therefore be reduced by $7,052.00, being 41 months x $172.00.

[13] Acknowledgment of Arrears and Request for Suspension

The Respondent submitted that any arrears owing, after the application of the $7,052.00 credit, are acknowledged as owing by her. The Respondent further submitted that the payment of the arrears owed should be suspended. The Respondent testified that she is currently unable to work due to medical issues and is scheduled to undergo surgery in the near future. She submits that the payment of arrears can begin once she is employed following her recovery from her medical procedures.

THE APPLICANT'S EVIDENCE

[14] Financial Support and Relationship

The Applicant testified that he has been solely responsible for the financial support and emotional well-being of Miranda following the parties' separation. Through his own testimony and in cross-examination of the Respondent, the evidence supported that the Respondent has not contributed financially to Miranda's cost despite the existing support order. The Applicant testified that it was the Respondent's decision not to pursue a relationship with Miranda following the parties' separation.

[15] Miranda's Education

The Applicant testified that Miranda has had some challenges with regard to her education since the parties' separation. He testified however that she is now doing very well in her current post-secondary education program.

[16] Secondary School Attendance

The evidence of the Applicant is that Miranda was attending Clarkson Secondary School on January 29th, 2010 when she turned eighteen years old. The Applicant testified that she attended this high school until sometime in February 2011. Thereafter, Miranda began attending Peel Alternative Secondary School from November or December 2011 until June 2012. The Applicant testified that Miranda attended Peel Alternative Secondary School four (4) days per week. The Applicant testified that the school offered her support to complete her high school education, explore her options regarding post-secondary education and assisted her in following through with these options.

[17] Post-Secondary Education

The Applicant's evidence was that in September 2012, Miranda began a post-secondary program, namely the Physiotherapist Assistant full-time diploma program, at Everest College. The Applicant testified that Miranda will be graduating from this program in September 2013.

[18] Student Loans

The Applicant provided proof of Miranda's Canada-Ontario Integrated Student Loan in the amount of $14,441.00. This document further confirmed that Miranda did not qualify for any student grants. The document further confirmed that the monthly repayment obligation for this loan was $162.00 which would begin six (6) months after Miranda's graduation date. Accordingly, the monthly loan obligation would become payable April 1st, 2014. This document was entered as Exhibit 1 to the hearing.

[19] Employment and Living Arrangements

The Respondent further testified that Miranda has maintained a part-time job throughout her studies. He testified that she works twenty (20) hours per week at a tanning salon earning minimum wage. He did not produce any evidence regarding Miranda's income from this employment. The Applicant did testify that Miranda continues to live with him on a full-time basis. The Applicant testified that Miranda is currently volunteering at a local physiotherapy clinic in order to acquire hands on knowledge of her career.

[20] Relationship with Mother

The Applicant testified that Miranda does not have a relationship with her mother. The Applicant testified that the absence of this relationship is not by her choice but rather the choice of the Respondent.

[21] Cross-Examination on Support Payments

Through cross-examination, the Applicant questioned the Respondent about her history of child support payments and financial circumstances. The Respondent admitted not paying child support despite the existence of a court order. The Respondent testified that she did not pay child support as she was in an abusive relationship and her spouse would not allow her to make her support obligations. In cross-examination, the Respondent acknowledged that she is aware that Miranda would like a relationship with her.

ANALYSIS – Did a Termination Event Occur on January 29th, 2010?

[22] Definition of "Child"

Section 2(1) defines a "child" as "a child who is a dependent" under the Family Law Act R.S.O. 1990, c.F.3 (hereinafter referred to as the Act).

[23] Statutory Obligation to Support

Section 31(1) of the Act provides as follows: "Every parent has an obligation to provide support for his or her unmarried child who … is enrolled in a full time program of education, to the extent that the parent is capable of doing so."

[24] Respondent's Position

The Respondent's position is that her daughter was no longer entitled to receive child support upon turning eighteen years old on January 29th, 2010 as she was no longer a minor and not enrolled in a full-time program of education.

[25] Court's Finding

I find that the evidence supports that Miranda continued to be enrolled in a full-time program of education, namely Clarkson Secondary School, on her eighteenth birthday. The Respondent's child support obligation therefore did not terminate as of that date.

ANALYSIS – Did a Termination Event Occur in February, 2011?

[26] Alternative Position

Although not specifically pleaded as an alternative position by the Respondent, her submissions support the conclusion that she is making a request for termination of her child support obligation as of the end of Miranda's attendance at Clarkson Secondary School in February, 2011.

[27] Hiatus from Education

The Applicant testified that Miranda was not enrolled in a full-time program of education until her enrolment in Peel Secondary School in November or December 2011.

[28] Revival of Support Obligation

The law is clear that a child support entitlement can be revived following a hiatus in enrolment in full-time education. The Ontario Superior Court's decision in F. (R.L.) v. F. (S.) (1996), 26 R.F.L. (4th) 392 held that a one year hiatus did not prohibit the re-instatement of a child support obligation on a parent.

[29] Length of Hiatus

The evidence of the Applicant was that Miranda's hiatus from an educational program was at the very least from sometime in February to November or December 2011. I find that this hiatus of nine (9) or ten (10) months is not prohibitive to the revival of her entitlement to child support.

[30] Suspension During Hiatus

I do conclude however that the Respondent's child support obligation for this period should have been suspended. Accordingly, she is entitled to a credit to any child support arrears in the amount of $1,720.00, being $172.00 x ten (10) months.

ANALYSIS – Did a Termination Event Occur in November or December, 2011?

[31] Respondent's Alternative Argument

During her testimony, the Respondent advanced the position that her child support obligation should terminate as Miranda's enrolment at Peel Secondary School was not full-time as she was only attending four (4) days per week.

[32] Subjective Analysis Required

In her decision in Gillesse v. Earl, 2011 ONSC 838, Justice Curtis of the Ontario Court of Justice states at paragraph 42: "Determining whether or not a child is 'enrolled in a full-time program of education' requires a subjective analysis. The court must consider the circumstances of the particular child, and weight should be given to the circumstances of the particular child."

[33] Impact of Absent Relationship

The Applicant testified that Miranda struggled during her high school years. He testified that her struggles did relate to the ongoing absence of a mother-daughter relationship. The Applicant in his testimony also spoke of the impact on Miranda of the absence of a relationship with her mother. His evidence was clear that Miranda suffered and continues to suffer from the absence of her mother in her life.

[34] Court's Finding on Full-Time Status

After a review of the evidence I find that Miranda's attendance at Peel Secondary School constitutes enrolment in a full-time program of education despite an attendance of only four (4) days per week. I make this determination on the evidence that the program offered her educational as well as career planning resources. The evidence is that Miranda succeeded in completing her high school education and obtaining acceptance into her current post-secondary education program. I am left with no doubt that Miranda was fully committed during her enrolment at Peel Secondary School to undertake and complete the necessary tasks to secure the next step in her chosen career. I am satisfied that an attendance schedule of four (4) days per week was sufficient to provide Miranda with the necessary support to achieve her goals.

ANALYSIS – Did a Termination Event Occur in July 2012?

[35] Graduation from Secondary School

Although not specifically raised by the Respondent, her overall position supports a request that her obligation to provide child support should terminate upon Miranda's graduation from Peel Secondary School near the end of June 2012.

[36] Continuation of Education

I do not accept this position as it is clear from the evidence of the Applicant that Miranda applied, was accepted and began her post-secondary program of education at Everest College in September 2012. The Applicant further testified that Miranda continues to reside with him following her completion of her secondary school studies and has maintained this residence to this day.

[37] Summer Employment

The evidence was not clear as to whether or not Miranda was employed during the months of July and August, 2012. I find that any employment income earned throughout these months would have been used to contribute to her post-secondary education costs or other personal expenses. Accordingly, the Respondent's child support obligation should not be suspended throughout these two months.

ANALYSIS – Does Miranda Continue to be Entitled to Child Support as of September 2012?

[38] Post-Secondary Enrollment

The evidence is clear and accepted by the Respondent that Miranda began her one year program to become qualified as an assistant physiotherapist in September 2012. The Respondent accepts that Miranda has been, since that date, a full-time student at Everest College.

[39] Child Support Guidelines – Section 3(2)

Section 3(2) of the Child Support Guidelines (hereinafter referred to as the Guidelines), provides:

"...where a child to whom an order for support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child."

[40] Farden Factors

The decision in Farden v. Farden (1993), 48 RFL (3d) 60 B.C. sets out factors the Court must consider in determining the issue of entitlement for an adult child who is enrolled in a full-time program of education. These factors are:

a) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

b) whether or not the child has applied for or is eligible for student loans or other financial assistance;

c) the career plans of the child;

d) the ability of the child to contribute to his own support through part-time employment;

e) the age of the child;

f) the child's past academic performance, and specifically whether the child is demonstrating success in the chosen course of studies;

g) what plans, if any, the parents made for the education of their child, particularly where those plans were made during cohabitation; and

h) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

[41] Application of Farden Factors

I find that after a review of the evidence in light of the factors listed in the Farden decision that Miranda continues to be a child entitled to support pursuant to section 3(2) of the Guidelines.

[42] Determination of Appropriate Support Level

Once entitlement is determined, section 3(2) of the Guidelines provides the criteria to determine the appropriate level of support. The Court must first determine whether or not a strict application of the guideline amount is appropriate. If appropriate, then the Table amount must be ordered. If inappropriate, the Court has the authority to determine an appropriate amount after a consideration of "… the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child" under subsection (b). Accordingly, the legislation clearly establishes a presumption in favour of the Table amount.

[43] Definition of "Inappropriate"

The Supreme Court of Canada's decision in Francis v. Baker, [1999] 3 SCR 250 defined the term inappropriate as meaning unsuitable not inadequate.

[44] Application to Present Case

After a review of the evidence, I do not find in these circumstances that a strict application of the Table amount as ordered by Justice Maresca is inappropriate. In making this determination I am mindful of the fact that Miranda continues to reside with her father as she pursue her post-secondary education, she has incurred student loans to assist her in financing her post-secondary education costs, she continues to maintain part-time employment earning minimum wage while engaging in her full-time studies, and the Applicant has not advanced a claim for the Respondent to contribute to Miranda's post-secondary education costs pursuant to section 7 of the Guidelines.

ANALYSIS: Arrears of Support and Repayment Ability

[45] Respondent's Position on Arrears

The Respondent did not provide a current calculation of the child support arrears. Her position at the hearing was that she acknowledged any arrears of support owing less the credit she claimed she should receive on the basis that her child support obligation should have terminated as of February 1st, 2010.

[46] Respondent's Financial Circumstances

The Respondent further submitted that any repayment of child support arrears owed should be suspended given her current unemployment due to medical reasons. During her testimony, the Respondent did not provide any evidence regarding her current financial circumstances other than to testify as to her unemployment given her medical issues.

[47] Financial Statement

The Respondent did file a financial statement in these proceedings. The document was sworn April 25th, 2012. The document, located at Tab 3, Volume 1 of the Continuing Record indicates that the Respondent was unemployed since January 26th, 2012. The Respondent swore her income to be $11,535.12 or $961.26 per month. The Respondent swore her expenses to be $750.00 per month.

[48] Home Ownership

The Applicant did not cross-examine the Respondent on her financial circumstances other than on the issue of her home. The Respondent testified that she owns her own home which she purchased for $300,000.00.

ORDER

[49] Variation of Original Order

The order of Maresca, J dated October 1st, 2007 is hereby varied as follows:

1. The Respondent's child support obligation pursuant to the order of Justice Maresca dated October 1st, 2007 in the amount of $172.00 shall terminate as of October 1st, 2013, namely the month following Miranda's anticipated completion of her current post-secondary education program at Everest College;

2. The arrears of child support owed by the Respondent to the Applicant as of August 1st, 2013 will be reduced by $1,072.00;

3. The arrears of child support owed by the Respondent to the Applicant shall be paid at the rate of $28.00 for the months of August and September, 2013. Accordingly the Respondent's monthly child support obligation for the months of August and September, 2013 shall be $172.00 as ongoing child support and $28.00 towards arrears for a total payment of $200.00;

4. The arrears of child support owed by the Respondent to the Applicant shall be paid at the rate of $200.00 per month commencing October 1st, 2013 and on the first day of each month thereafter until they are paid in full;

5. The Respondent shall provide to the Applicant, in writing and within seven (7) days of her return to full-time or part-time employment following her medical procedures, notice of her employment, her position and the income she is earning;

6. In addition to the payments aforesaid, the Director, Family Responsibility Office, is entitled to collect any and all federal monies that may be due or owing to the Respondent;

7. In addition to the payments aforesaid, the Director, Family Responsibility Office, is entitled to collect any and all windfall monies, such as lottery winnings or inheritance, received or to be received by the Respondent;

8. All payments under this Order are to be paid to the Director, Family Responsibility Office; and

9. A Support Deduction Order will issue.

[50] Costs

Neither party sought costs in these proceedings. Accordingly, there shall be no order as to costs.

Released: August 2, 2013

Justice L.S. Parent