Court File and Parties

Ontario Court of Justice

Date: 2017-04-12

Court File No.: Brampton 800/98

Between:

Jason Thistle Applicant

— And —

Andrea Pelletier Respondent

Before: Justice Philip J. Clay

Heard on: March 17, 2017

Reasons for Judgment released on: April 12, 2017

The Applicant represented himself.

The Respondent represented herself.

MOTION TO CHANGE

PROCEDURAL BACKGROUND

[1] On September 2, 2016 the respondent father ("the father") brought a motion to change the final order of the Honourable Justice J. Kerrigan-Brownridge dated January 12, 2006. He sought to terminate child support for the child Lucas Pelletier born June 28, 1997 effective July 1, 2016.

[2] On October 31, 2016 the applicant mother ("the mother") filed her amended response to motion to change. She stated that the adult child was still eligible for child support and she sought a retroactive increase to the child support based upon increases in father's income back to November 1, 2013.

[3] This matter came before the court for a case conference on December 1, 2016. The motion to change was then scheduled for a final hearing on affidavit evidence subject to cross-examination on March 17, 2017. Filing deadlines were set for the filing of supplementary affidavits which were to include certain information necessary for the court to make a decision. As the father made an undue hardship claim pursuant to s. 10 of the Child Support Guidelines (CSG) he was ordered to file an updated financial statement that included his income and that of his spouse for the 2016 and 2017 years. The father was also required to file a comparison of household standards of living test. In order for the father to have the necessary information to complete that test the mother was also required to file an updated financial statement with her income and that of her spouse for 2016 and 2017. Finally, the order provided that the evidence for the hearing was to be all of the sworn evidence filed in this motion to change which was all of volume 3 of the continuing record.

ISSUES

(1) Was there the adult child still eligible to receive child support?

(2) Should there be a retroactive adjustment of table child support?

(3) Was there undue hardship to the father such that the child support should be reduced from the CSG amount.

THE LAW

[4] Motions to change child support are governed by s. 37 (2.1) of the Family Law Act which provides as follows:

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1) ; 1997, c. 20, s. 2.

[5] The principles that apply to a claim for a retroactive order for child support were established by the Supreme Court of Canada in the case of D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 2006 S.C.C. 37. With respect to the date when a retroactive order should be made the court held that:

Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.

[6] The father's claim of undue hardship is made under s. 10 of the CSG which reads as follows:

Undue hardship

10. (1) On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. O. Reg. 391/97, s. 10 (1) .

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include:

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is:

(i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. O. Reg. 391/97, s. 10 (2) .

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. O. Reg. 391/97, s. 10 (3) .

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. O. Reg. 391/97, s. 10 (4) .

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. O. Reg. 391/97, s. 10 (5) .

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so. O. Reg. 391/97, s. 10 (6) .

EVIDENCE

Father's position

[7] In his motion to change the father sought to terminate child support effective July 1, 2016. At that time Lucas had completed four years of high school education. He stated that the mother had failed to prove that Lucas was in a full time program of education in the 2016-17 academic year. He said that the information that had been provided showed that Lucas was only taking two courses and that he was also working. He noted that Lucas' T-4 showed that he earned $8,108.90 in 2015 and the pay statements appeared to show that he worked 26 hours a week at Loblaw's in 2016. The father initially said that Lucas was no longer eligible for child support.

[8] In his affidavit of February 27, 2017 sworn after the father had received disclosure from the mother as to Lucas' educational plans the father effectively said that his alternate position was that the court should reduce the child support to $200 a month and the support should definitely terminate by April 30, 2018 as that would be two academic years after his high school graduation. This would be a year of high school upgrading (2016-17) and a year at Sheridan College taking the mechanical-technician-plumbing program referred to in the mother's February 6, 2017 affidavit.

[9] The father also made an undue hardship claim under s. 10 of the CSG. His affidavit and the affidavit of his spouse Katherine Hunter noted that they had two children who were 8 and 6 years old. Karen does not work outside the home as she injured her back in May 2015 and has a herniated disc for which she receives therapy. Her only income is the child tax benefits. Her affidavit spoke to the financial hardship that the family of four had endured over the last few years.

[10] The father filed a comparison of standard of livings test that he completed manually based upon the disclosure received from the mother, her spouse Christopher Pender and Lucas. He took the position that the mother had three adults and one child in her home. Based upon this information he determined that the household income ratio of his household was 2,030 and the ratio of the mother's household was 3,828. As his household had the lower number it was open to a court to reduce child support from the CSG table amount if the court found that there would undue hardship to the father if the child support was not so reduced.

[11] The father resisted the claim for retroactive child support. He essentially stated that the final order made in 2006 did not require the annual disclosure of income (such disclosure is now mandatory in all child support orders). He said that the mother had not requested financial disclosure from him until he brought the motion to change child support. He noted that there was an exchange of messages in 2016 when he initially sought to terminate child support. He said he backed off his claim because the mother said that Lucas was at a "fragile point" in his education. There was no request for financial disclosure made in that message exchange. The father stated he had found it difficult to pay the court order of $263 per month and could not possibly afford the table amount on his income from November 1, 2013 to date.

Mother's position

[12] The mother filed educational information to support her position that Lucas was still dependent upon her due to his program of education. She noted that Lucas had learning challenges. He attended Archbishop Romero Catholic Secondary School. That school is the base for the Jean Vanier Advantage program for students under the age of 18. She said that Lucas was able to stay in that program through his four years of high school even though he was 18 in his final year. The mother filed Lucas' high school transcript which showed that he had obtained 29 credits. She explained that he needed a credit in Grade 12 Foundations of Mathematics and Grade 12 English in order to graduate.

[13] The mother said that Lucas could not stay at Romero for a fifth year. He was assessed and an individual education plan was developed that would permit him to attend the Vanier program at their main campus. He was registered in a dual credit program with Sheridan College. He would obtain the math and English credits in 2016-17 so that he would graduate in June 2017. He would also obtain credit towards the mechanical-technician-plumbing program at Sheridan which he could complete in 2018. She filed a copy of Lucas' I.E.P. and information regarding the Vanier program.

[14] The mother acknowledged that Lucas had a part-time job at Loblaw's where both she and her spouse worked. She said he worked more like 12 hours a week during the school year. She said that the job did not impact upon his studies as he was taking the only program that he could to obtain a high school diploma and some post-secondary education. She said that Lucas was a full time student as he was taking the educational program recommended for his skills and abilities.

[15] The mother had amended her response to motion to change in order to claim retroactive child support. Her claim begins November 1, 2016 as that was three years before she gave actual notice of her claim by her court filing. She claimed that the father had moved from his parent's home and she did not know where he lived. She said she tried to obtain information about him over the years from his parents but was rebuffed. (The father denied that she had tried to contact him about his income.)

ANALYSIS

Eligibility for child support

[16] It is always unfortunate when there is no contact between the parents of a child, or directly between a parent and the child, as is the case here. The father did not have any information about his son's educational progress. It is not necessary to determine the reason for that or to assign responsibility though I do note that the 2006 final order provided for no access. Until Lucas was 18 the law is clear that the father had to pay child support if his son was living with his mother. After that proof of continued education is required.

[17] I do not accept the father's contention that the mother did not provide him with clear and complete educational information. The documentation filed supported the position taken in the mother's affidavit. It was clear that Lucas had been in high school until the end of June 2016 and that he was now in a specialized adult education program by which he would receive a high school diploma and gain credits towards a college certificate or diploma.

[18] Most cases have followed a flexible approach to the determination of what constitutes a full-time program of education under the Family Law Act. A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his participation was meaningful and consistent with the program's purposes and objectives. This principle is enunciated in Wilson v. Wilson and Lall v. Lall, 2009 ONCJ 96.

[19] Justice C. Curtis addressed whether or not a program qualified as a full-time program of education in Vivian v. Courtney, 2010 ONCJ 768, a decision that was upheld on appeal. At paras. 41 and 42 of that decision the following appears:

[41] 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.

[42] What will be full-time for some children will be influenced by their ability to participate. For Jamie, enrolment through the Independent Learning Centre is a "full-time program of education". In her circumstances, this is what she can manage. For Jamie, this is a full-time program of education under s. 31(1) of the FLA, and Jamie is entitled to child support.

[20] I find, based on the evidence of Lucas' educational abilities, that the Vanier Advantage program is a full-time program of education for him and that he is entitled to child support. I will not put a termination date on his entitlement. It may well be that the eligibility for support will end in April 2018 if Lucas obtains a certificate from Sheridan College. However, I will not speculate on his educational path. The obligation will remain upon the mother and Lucas to prove to the father in each and every year that Lucas is in a program of education that is congruent with his abilities and has a reasonable likelihood of assisting him with obtaining employment.

Retroactive child support

[21] The court order was made on January 12, 2006. It provided for table child support in the amount of $213 per month based upon the father's then annual income of $24,000 plus $50 per month for Lucas' hockey. The mother concedes that the hockey expenditure ended some time ago. The order did not provide that the father was required to provide annual income disclosure. There was no communication between the parties about income disclosure prior to this motion to change. It may well be that the mother tried to contact the father through his parents. She had reason to do so with respect to Lucas' serious knife wound (from an assault upon him) and with respect to a passport application. However, the mother never took any steps to write to the father at his parent's address to request an increase to child support. In the summer of 2016 her message to the father's attempt through FRO to terminate child support was to tell him that Lucas was still eligible and if he sought to terminate through the courts she would "push for educational expenses in addition to support payments."

[22] The father's income increased significantly over the years. In 2013 he earned $33,468 in 2014 $53,415 and in 2015 $43,374 (this is consistent with Ms. Hunter's evidence that he lost a higher paying job in 2014). In 2016, he earned $49,500.

[23] The mother is relying upon the principles set out in the decision of the Supreme Court of Canada in DBS. The court held that:

118 Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.

119 Separation is a difficult time for families. But especially when the interests of children are at stake, it is vital that parents resolve matters arising out of separation promptly. The Guidelines and similar provincial schemes facilitate this task by providing a measure of consistency and predictability in child support matters. Still, as I have noted above, these child support regimes do not go so far as to provide for automatically enforceable support orders. Whether dealing with an original order, or circumstances that may merit a variation, the responsibility always lies with parents to negotiate the issue honestly and openly, with the best interests of their children in mind.

120 Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of support have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigation can be costly and hostile, with the ultimate result being that fewer resources - both financial and emotional - are available to help the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts must ensure that parents are not penalized for treating judicial recourse as a last resort. Accordingly, the first two start dates for retroactive awards - i.e., the date of application to court and the date of formal notice - ought not be used. So long as the enforcement of child support obligations is triggered by formal legal measures, a perverse incentive is created for recipient parents to avoid the informal resolution of their disputes: MacNeal v. MacNeal (1993), 50 R.F.L. (3d) 235 (Ont. Ct. (Gen. Div.)); Steinhuebl v. Steinhuebl, [1970] 2 O.R. 683 (C.A.). A recipient parent should not have to sacrifice his/her claim for support (or increased support) during the months when (s)he engages in informal negotiation: Chrintz; see Dickie v. Dickie (2001), 20 R.F.L. (5th) 343 (Ont. S.C.J.).

121 Choosing the date of effective notice as a default option avoids this pitfall. By "effective notice", I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.

122 Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent's interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child's entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support.

123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent's request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances - including an increase in income that one would expect to alter the amount of child support payable - is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

125 The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

[24] In this matter the change in the father's income occurred over time. By 2013 his income had increased from his 2006 income of $24,000 to $33,000. In 2014 it jumped to $53,000 but then it fell back to $43,000 by 2015. If the father was required to disclose income by the terms of his court order his failure to do so would be a breach of the order and therefore blameworthy conduct as defined in DBS. In that event I would have no hesitation in considering a claim for a retroactive increase. In this case though there was no legal obligation to disclose income. The question I must resolve is whether the father had a positive obligation to disclose his income annually when the mother did not request same. Was the father's failure to send his income tax information to the mother blameworthy conduct which should not be condoned by the court? After due consideration I find that in all of the circumstances of this matter, where the mother and child had no contact with the father and the father paid the child support he was required to pay by the order, it was not blameworthy conduct for him to fail to advise her of annual income increases.

[25] In this case the effective notice and the formal notice are the filing of the amended response to motion to change on October 31, 2016. I find that there was no "effective notice" by the mother prior to November 1, 2016 that she sought income disclosure and an increase to the table child support. As late as July 2016 the mother did not ask the father in her messages to provide income disclosure and she did not tell him that she wanted a higher amount of child support. For these reasons I would begin the increase as of November 1, 2016.

Undue hardship claim

[26] The father made a claim for a reduction in the amount of child support he is to pay based upon undue hardship. He relied upon s. 10 of the CSG which is set out above. That section contains a non-exhaustive list of factors that could lead to a finding of undue hardship. Ms. Hunter's affidavit addresses the financial difficulties that their family has had over the past few years. I understand that Ms. Hunter's injury and inability to work and the father's loss of a higher paying job must have caused significant financial difficulty. Although they own a home they have considered a consumer proposal to deal with their debts. While I am aware of the financial challenges faced by a family living in the Greater Toronto Area with two young children and only one income the fact remains that the father must do more than prove financial hardship. He must prove undue hardship as that term has come to be interpreted by the courts.

[27] In the case of Min v. Soe, 2008 ONCJ 646, [2008] O.J. No. 5679. (Ont. S.C.J.), Blishen J. wrote:

Section 10(2) sets out a non-exhaustive list of circumstances that may cause undue hardship. Even if any of the circumstances set out in s. 10(2) (a) to (e) are established, this does not necessarily establish undue hardship. A line must be drawn between "hardship" and "undue hardship" and this will be determined mainly on the particular circumstances of the case. In a case such as this, where there is alleged to be a second family, the payor parent should provide clear and cogent evidence, not conjecture or speculation, from which an inference could reasonably be drawn that the children in the second family would suffer significant deprivation if the Table amount was ordered for the children of the first relationship. "Deprivation" means with respect to food, clothing, shelter or some medical or other health need.

[28] The father has two young children whom he is required to support. I have reviewed his financial statement of August 19, 2016. He has employment income of $48,000 per year. His spouse receives child tax benefits amounting to $801.52 per month which is $9,618.24 per year. The father's expenses are not unreasonable. The table child support amount on an income of $48,000 is $433 per month.

[29] The determination of undue hardship involves a two part test. Firstly, the court must determine if there is undue hardship caused to the children of the payor parent as noted in Min above. It is only if that threshold is met that the court considers the comparison of standards of living test. The reasoning for this was set out in Matthews v. Mathews (2001), 14, R.F.L. (5th) 129 (S.C.J.), where the court held that:

The first question that must be answered is whether an order in the Guideline table amount (or such other amount as determined under s. 3 to 5, 8 or 9) would cause the applicant to suffer undue hardship. The non-exhaustive list of circumstances that may cause a party to suffer undue hardship is set out in s. 10(2). Each of those considerations relates to the circumstances of the spouse making the application. One can conclude, therefore, that information relating to the financial circumstances in the responding spouse's household would not be relevant to a determination of this issue.

[30] I find that the payment of the table amount of child support would be difficult for the father. However, when I consider the definition of undue hardship set out in the case law I find that the father has not proven that his two young children would suffer deprivation. The amount of the child support that the father would be required to pay under the CSG is $110 per month less than the loan payments on the family's 2013 Grand Caravan.

[31] As I have not found undue hardship on the first branch of the two part test it is unnecessary to consider the comparison of standards of living test. I note that the mother's household does have a higher standard of living. I also note that there are many parents who pay child support to a recipient parent who earns significantly more than they do or who has a family income that is far higher than the family income of the paying parent.

FINAL ORDER

[32] The final order of the Honourable Justice J. Kerrigan-Brownridge, dated January 12, 2006 shall be changed where the terms are inconsistent with the terms of this order:

(1) a) The respondent father shall pay to the Applicant mother the sum of $433 per month for the support of the child Lucas Pelletier, born June 28, 1997 beginning November 1, 2016 and payable on the first day of each and every month for so long as the said child is entitled to child support.

b) This sum is based upon an estimated income of $48,000 in 2017.

c) Support Deduction order to issue.

(2) a) The respondent father shall pay the sum of $17 per month to the arrears of child support created by this order for the period November 1, 2016 to April 30, 2017 which are the sum of $1,020.

b) The said payments shall begin on May 1, 2017 and are payable on the first day of each and every month until the child is no longer entitled to receive child support. At that time the balance of the said arrears remaining shall be paid at the rate of $450 per month until fully paid.

(3) All claims that are not resolved by this order are dismissed.

Released: April 12, 2017

Signed: Justice Philip J. Clay