Court File and Parties

Court File No.: Toronto DFO-95-0098-03A3 Date: 2017-10-10 Ontario Court of Justice

Between:

Cynthia Doull, Applicant

— AND —

Parry Wai Han Tsim, Respondent

Before: Justice Sheilagh M. O'Connell

Reasons for Judgment dated October 10, 2017

Cynthia Doull ............................................................................................... acting in person

Parry Wai Han Tsim .................................................................................... acting in person

O'CONNELL J.:

1: INTRODUCTION

[1] The Applicant, Ms Cynthia Doull ("the mother") has brought an amended application seeking the following:

1. An order that the Respondent ("the father") pay retroactive child support from June 24, 2010 to March 1, 2012;

2. Enforcement of paragraph 12.2 of the parties' Separation Agreement, and in particular:

   • a. an order that the father pay one-half of the child's post-secondary expenses for her undergraduate degree at the University of Toronto in the amount of $19,668.00;
   • b. an order that the father pay to the mother or in the alternative directly to the child, one-half of the cost of the child's graduate degree at the University of London, England in the amount of $31,500.00.

3. In the alternative, an order varying the Final Consent Order dated March 31, 2005 to allow the relief requested above.

[2] The mother has also brought a motion for contempt against the father for failure to comply with a number of temporary orders for financial disclosure. She seeks as a remedy that income be imputed to the father at no less than $125,000.00 and a financial penalty in an amount that the court considers appropriate.

[3] The mother amended her application on March 29, 2016. In her original application, the mother sought child support arrears under the parties' Separation Agreement retroactive to April 1, 2005 until March 1, 2012, in addition to the other relief above. In her amended application, the mother abandoned her claim for retroactive support or arrears to April 1, 2005 and limited her claim to three years from the date on which formal written notice was given the father.

[4] The mother's first application was issued on October 17, 2013, after the adult child Hannah Elizabeth Gai Yok Tsim, ("Hannah") had started a full-time Master of Arts program in Mediterranean Archeology in London, England. According to the mother, the total cost of this graduate degree was $63,320.22.

[5] Hannah has now completed this program and she is 27 years of age. She is currently pursuing a PhD program or applying for law school. The mother is not seeking contribution from the father towards the PhD program or law school.

[6] The parties agreed to hold a focused trial of these issues pursuant to Rule 2 of the Family Law Rules, O. Reg.114/99. The mother's application and her motion for contempt were consolidated and heard together. The affidavits, financial statements and document briefs filed by the parties constituted their direct evidence. Both parties testified and were cross-examined on the evidence filed. Hannah also testified.

2. THE POSITION OF THE PARTIES:

2.1 The Father:

[7] The father, Mr. Parry Jim takes the position that all child support and all post-secondary expenses under section 7 of the Child Support Guidelines were resolved on consent by the parties pursuant to the Final Order of Justice B. Weagant dated March 31, 2005. At that time, the father made three lump sum payments totaling $10,454.00 pursuant to the Final Consent Order.

[8] According to the father, the parties agreed that he owed no further child support. Hannah was 14 years old at the time. Both parties had counsel and independent legal advice when negotiating and signing the Consent. The terms were incorporated into the Final Order, approved by Justice Weagant and issued and entered by the Court.

[9] The father further submits that the mother's application should be struck because Hannah was not a child of the marriage nor entitled to child support when the application was issued. Hannah had already completed her four year undergraduate degree before the mother commenced her application and Hannah is not entitled to support for her Master's degree.

[10] Alternatively, the father states that should it be determined that he make some contribution towards Hannah's post-secondary education, then the calculation should take into account Hannah's ability to contribute towards her education, the significant increase in the mother's income since the Consent Order and the corresponding reduction in the father's income. He further submits that he has complied to the best of his ability with all temporary orders for financial disclosure.

2.2 The Mother:

[11] The mother submits that it was never her intention to waive or release her right to child support under the Final Consent Order. The mother acknowledges that she entered into the Consent and that she was represented by counsel at the time. She also acknowledges that the father paid the lump sums of $10,454.00 owing under the Order. However she states that these amounts were allocated to her legal costs and the child support arrears that had accumulated.

[12] According to the mother, it was her understanding that the parties' earlier Separation Agreement continued in full force and effect so that the ongoing child support and the provisions regarding Hannah's post-secondary expenses continued.

[13] The mother further states that the father's income for support purposes should be imputed at $125,000.00 per annum and that throughout the history of this litigation he has repeatedly failed to comply with financial disclosure orders so as to deliberately conceal his true income.

3. THE ISSUES:

[14] The issues for me to decide are the following:

1. Does the Court have jurisdiction to set aside the Final Consent Order of Justice Weagant dated March 31, 2005 and if so, should the Court do so, or is the Final Order subject to a variation as a result of a change in the parties' and child's circumstances since 2005?

2. If the Final Order of Justice Weagant is set aside or varied, does Hannah still qualify for retroactive and ongoing child support?

3. If so, should retroactive child support and payment towards Hannah's post-secondary education expenses be ordered either in accordance with the terms of the parties' separation agreement or otherwise, and if so, what amount?

4. Should the father be found in contempt for failure to comply with the temporary orders for financial disclosure made in these proceedings and if so, what is an appropriate penalty?

4. BACKGROUND FACTS:

4.1 Preliminary Background Facts:

[15] The mother is 54 years old. The father is 53 years old. The parties were married on June 10, 1989. They separated on March 8, 1993 and subsequently divorced in 1994.

[16] The parties have one child together, Hannah, born March 11, 1991. The parties agreed that the mother have sole custody of Hannah and that the father be granted specified access under their separation agreement.

[17] Hannah has lived with her mother since the separation, other than times when she was away at university. Hannah and her father are estranged. They have had little or no contact since Hannah was approximately three years old. Hannah and her mother and the father disagree about the reasons for the estrangement.

[18] Hannah is now 27 years old. Hannah attended the University of Toronto from 2008 to 2012 and completed an undergraduate degree. In 2013, she commenced a graduate degree in archeology at University College in London, which she completed in 2014. At the time of the focused hearing, she was considering either a Ph.D. program or law school. It is not disputed that Hannah is an exceptional student, academically gifted, with a very bright future.

[19] The mother has no other children. The father re-married in 1998 and has one other child, Gloria, who is now 18 years old. The father separated from Gloria's mother in 2009 and pays child support in the amount of $500.00 per month to Gloria's mother. Gloria will be entering university or college this year.

[20] The mother owns her own cleaning business called Maid for You. At the time of the parties' separation, the mother was a single parent in receipt of social assistance. By the time of the Final Order of Justice Weagant in 2005, the mother had built a very successful cleaning business. In 2006, after the Final Order of Justice Weagant, it is not disputed that the mother's line 150 income was $176,156.00. The mother's average annual income between 2006 and 2015 was $111,898.00.

[21] The father works for his brother's business, known as Jim's Brother Trading Company, also known as Euclid Holdings Inc, also known as Dolson Marketing Inc. He states that he worked for his brother's business since 1989, approximately 25 years, and that he has been involved in both sales and distribution as a truck driver. He states that he earns approximately $29,000.00 annually as a T-4 employee, but that this amount may decrease as a result of some medical issues. The mother disputes this figure and believed that the father receives significantly more income from this family business.

4.2 The Separation Agreement:

[22] The parties entered into a Separation Agreement ("the Agreement") on November 10, 1993. Both parties had counsel and independent legal advice.

[23] The Agreement provided that the father would pay child support to the mother in the amount of $300 per month on the first day of each month subject to the following five conditions:

• a. Hannah ceases to reside full-time with her mother. "Reside full-time" includes the child being away from home to attend an educational institution, pursue summer employment or take a vacation while otherwise maintaining a residence with the mother;

• b. Hannah becomes 18 years of age and ceases to be in full-time attendance at an educational institution;

• c. Hannah marries;

• d. Hannah dies;

• e. Hannah becomes 21 years of age.

[24] A separate provision addresses post-secondary educational expenses. This section provides that both the mother and father will contribute equally towards the costs of child's post-secondary education, which costs include tuition, residence, supplies, equipment and other incidental expenses, as the child cannot afford. The child will be expected to make all reasonable financial contribution to these costs appropriate to her ability to do so.

[25] The Agreement was entered into prior to the implementation of the Child Support Guidelines. The father's income is not set out in the Agreement. There is no explanation for how the parties reached the amount of $300 in child support. The child support is subject to an annual increase in accordance with the Consumer Price Index for Canada.

[26] There is also a "Material Change in Circumstances" provision. It provides that the amounts payable by the father for child support "shall not be subject to variation for any reason whatsoever except a material change in the circumstances of either spouse or child. If a material change in circumstances takes place, only the provisions in paragraph 10 of this agreement may be varied."

[27] Paragraph 12 of the Agreement, which addresses post-secondary educational expenses, is not subject to the Material Change clause.

[28] The Agreement also provides that both parties maintain a life insurance policy in the amount of $250,000 for the benefit of the child. The parties will maintain each other as the irrevocable beneficiary in trust for the child under the policy for as long as the father is required to pay child support pursuant to the separation agreement.

5: PREVIOUS LITIGATION HISTORY:

[29] In February of 1995, the mother filed the Agreement with this court for enforcement purposes, in accordance with section 35 of the Family Law Act. The father had fallen into significant arrears. The Family Responsibility Office ("FRO") or its predecessor at the time started to enforce the terms of the Agreement and the father began making direct child support payments to that agency. The child support payments were initially assigned to the Ministry of Social Services as the mother was in receipt of social assistance at the time.

[30] On February 6, 1995, the mother brought an application and motion for a restraining order against the father. Justice Joseph James granted the mother's request for a restraining order against the father. The Order provided that the father is "restrained from annoying, harassing, or molesting the [mother] or the child of the marriage, or of being within 200 meters of the [mother] or the child of the marriage without a court order."

[31] In 1999, the father brought an application to vary and reduce the child support payable and to rescind his child support arrears.

[32] On October 29, 1999, Justice Joseph James ordered on an 'interim interim' basis, that the child support payable by the father be reduced to $200.00 per month commencing November 1, 1999.

[33] On March 13, 2000, Justice Brian Weagant made a further temporary order that the child support be payable at $202.00 per month and that the father contribute an additional sum of $100.00 monthly towards the child's extraordinary expenses, commencing February 1, 2000.

[34] On October 24, 2000, Justice Weagant increased the child support payable by the father to $337.00 per month, in addition to the $100.00 per month towards extraordinary expenses for a total of $437.00 per month, to commence immediately. This was also a temporary order.

[35] On January 9, 2001, the temporary order dated October 24, 2000 was made final such that the father continued to pay child support in the sum of $337.00 per month and $100.00 per month for extraordinary expenses for a total of $437 per month, to commence immediately. This Order sets out that the child support award was made in accordance with the Child Support Guidelines for Ontario and based on the father's imputed annual income of $39,000. This Order was also enforced by the Family Responsibility Office.

[36] On September 9, 2003, FRO issued a notice to the father that his driver's license would be suspended due to outstanding child support arrears of $2,733.65. In response, on October 1, 2003, the father brought a motion seeking an order refraining FRO from suspending his license and a further application to vary the ongoing child support. The refraining order was granted and the application to vary continued.

[37] This was the second motion for a refraining order that the father had brought, as FRO had previously sought to suspend his driver's license in 2001 for non-payment of child support and arrears. The refraining order was granted at that time as well.

[38] In his 2003 variation application, for the first time, the father also sought access to Hannah. On March 17, 2004, the issue of access was referred to the Office of the Children's Lawyer (OCL) and a lawyer was appointed to represent Hannah. Hannah and her father met, with the assistance of OCL counsel, after approximately eight years of no contact.

The Final Consent Order of Justice Weagant dated March 21, 2005:

[39] On March 31, 2005, the parties entered into the final consent which appeared to resolve the father's 2003 variation application and end all ongoing child support. Both parties were represented by lawyers at the time. Hannah was also represented by OCL counsel. The Consent, which was filed in these proceedings, was signed by the parties and witnessed by all three lawyers.

[40] The Consent was incorporated into the issued and entered Final Order of Justice Weagant ("the Final Order") and stated as follows:

1. The father shall have access to Hannah in accordance with Hannah's wishes and upon her instigation.

2. Child support shall be paid by the father to the mother in the amount of $500.00 on April 1, 2005; $500.00 on May 1, 2005; and one further lump sum payment of $9,454.00 payable on or before May 27, 2005.

3. Child support shall be settled fully between the applicant mother and the respondent father. The applicant mother's costs of approximately $5,754.00 shall be fully satisfied and the current child support arrears of approximately $3,700.00 shall be rescinded and fully satisfied upon the $9,454.00 lump sum payment in paragraph 2 above.

4. The restraining order of February 6, 1995 of Justice James shall be extended and continued, however the access set out above shall not be a breach of the restraining order.

5. The father shall provide all of his and his family's medical history to the child's physician and to any other medical practitioners specified by the mother within 30 days of being provided with same.

[41] Hannah was only 14 years old at the time that this Final Order was entered into by the parties. This Order was also enforced by the Family Responsibility Office. It is not disputed that the father paid all three of the lump sums set out above. The Family Responsibility Office then closed its file. A FRO statement of arrears confirmed that there were no further balances of child support owing, either arrears or ongoing, after those payments were received.

6: THE CURRENT APPLICATION:

[42] The mother commenced this application on October 17, 2013, eight years after the Final Order. It is not disputed that there was little or no communication between the parties during the eight year period regarding ongoing child support payments and that the father had little or no contact with Hannah.

[43] At the time the mother commenced her application, Hannah was enrolled in a full-time Master of Arts program in London, England studying archaeology. Hannah commenced this graduate program in September of 2013.

[44] The mother then amended her application on March 29, 2016, as earlier indicated, abandoning her earlier claims for child support retroactive to April 1, 2005.

[45] The case management process was lengthy. It was complicated by numerous requests for disclosure by both parties regarding each other and from the child. A trial was finally scheduled to proceed in this matter on June 9, 2015. On that day, financial disclosure was still outstanding. The trial judge, Justice M. Cohen adjourned the trial to November 24, 2015 and made a detailed order for financial disclosure to be provided by both parties and the child.

[46] On August 4, 2015, the mother filed a '14B motion' and affidavit seeking further disclosure from the father and stating that he had not complied with Justice Cohen's order dated June 9, 2015. The case management judge, Justice H. Katarynych determined that the motion was premature as it had not been served on the father. On August 9, 2015, the mother's motion materials were served on the father's lawyer at the time.

[47] On October 20, 2015, the mother, through her then counsel, served a further 14B motion seeking very detailed and comprehensive financial disclosure from the father, dating back to 2006, to be produced on or before the November 24, 2015 trial date. The mother also sought leave for questioning of the father prior to trial.

[48] On November 12, 2015, the order was granted in chambers. On November 24, 2015, the first day of trial, the father brought a pre-trial motion seeking to set aside this order for financial disclosure and sought to make submissions at an oral hearing.

[49] The father stated in his supporting affidavit that he was having surgery at the time the 14B motion was brought and he could not respond appropriately. Further, the father argued that the motion was premature and that the trial should be bifurcated to first determine whether there was in fact a full and final settlement of all child support on March 31, 2005. The issue of financial disclosure should only be relevant at the second stage of trial should the court set aside or vary the Final Order.

[50] Justice Cohen granted the father's request and adjourned the trial to March 1, 2016. However, she further ordered the father to comply with her order of financial disclosure dated June 9, 2015 and further to produce the disclosure set out in the November 12, 2015 order.

[51] The parties returned on March 1, 2016, the new trial date, before Justice Penny Jones. At that time, it was determined that the trial could not be bifurcated and should proceed as originally brought. The parties further agree to provide additional disclosure and agreed that all dates for disclosure were peremptory. The trial was then adjourned to June 7 and June 16, 2016.

[52] On June 7, 2016, Justice Jones terminated the restraining order made against the father by Justice James on February 6, 1995. For reasons unclear from the endorsement record, the trial did not proceed on that day and it was adjourned to June 13, 2016.

[53] On June 13, 2016, Justice Jones determined that much of the financial disclosure ordered previously was still outstanding. According to the endorsement dated June 13, 2016, neither party had provided the disclosure as ordered. Justice Jones referred the matter back to the case management judge to deal with the disclosure issues and cross examinations once disclosure was completed.

[54] The matter was then assigned to me as the new case management judge on July 19, 2016 to sort out disclosure and trial management issues.

[55] On July 19, 2016, the mother attended court with a motion for contempt and lengthy supporting materials which she had personally served upon the father. She sought permission to file those materials on that date, which was granted.

[56] In her motion for contempt, the mother sought a finding that the father was in contempt of court for the failure to provide the financial disclosure ordered on November 12, 2015 and for failure to provide the financial disclosure by a peremptory date as endorsed by Justice Jones.

[57] The contempt motion was adjourned to October 20, 2016 to give the father an opportunity to respond to the motion and to comply with any outstanding orders for financial disclosure.

[58] On October 20, 2016, the contempt motion proceeded before me and I heard the viva voce evidence. The mother cross-examined the father. It became apparent during the mother's cross examination that many of the issues raised by the mother were actually relevant to the trial.

[59] At the conclusion of that hearing, the parties agreed to conduct a blended hearing of the contempt issues with the trial of the issues and that the evidence heard at the contempt hearing would form part of the evidence at this trial. The parties further agreed that the trial could proceed before me as I had not heard any settlement discussions and was new to the case. The trial proceed before me on January 9, 17 and February 17, 2017.

7: SUMMARY OF THE RELEVANT EVIDENCE:

7.1 The Mother's Evidence and Hannah's Evidence:

[60] The mother testified that at the time she entered the Final Consent dated March 31, 2005, it was her understanding that the Consent only settled the FRO enforcement proceedings for the arrears and her legal costs.

[61] The mother testified that it was never her intention to waive her child's right to child support or to waive contribution to Hannah's university costs.

[62] When asked in cross-examination, the mother testified that her lawyer at the time explained to her that the Consent only settled the arrears and the costs. She did not understand that the ongoing child support would end and that it was a final resolution of all child support issues.

[63] The mother testified that after the parties entered into the Consent, she did not receive any further child support from the father. She first became aware that something was wrong when she contacted the father's lawyer to inquire when she would receive her legal costs. She described being upset and angry after her conversation with the father's lawyer, who apparently told her to go back to court.

[64] The mother testified that she realized that it was a Final Order resolving all child support when FRO terminated enforcement and closed its file upon receipt of the lump sum payments, approximately six weeks after the Consent was reached.

[65] When asked why she did not return to court immediately to set aside the Consent Order, the mother testified that she could not afford to spend further legal fees on the court case as she had spent thousands of dollars already, which was more than the child support that she received. She was also very busy as a single parent and developing her business.

[66] The mother acknowledged that she was "negligent" (to use her words) in not pursuing the issue of support earlier, but that she had approached the father to contribute to Hannah's post-secondary expenses when Hannah started university.

[67] It is her evidence that she or Hannah notified the father they were seeking contribution towards Hannah's university expenses at least by the 2011-2012 academic year. According to the mother, the father should have known that Hannah was in university and should have been aware that he was obligated to pay one-half of her university expenses.

[68] In cross-examination, the mother acknowledged that the first time that she called the father about Hannah's acceptance into the Master's program in London was approximately May of 2013. However, the mother also testified that she and Hannah had earlier asked the father to assist Hannah in obtaining her British passport so that she could hopefully get a reduced tuition as a British citizen at the University of London. The father was born in Hong Kong, and is British by birth. According to the mother, the father refused to assist.

[69] The mother retained a lawyer in 2013 to seek child support and contribution towards Hannah's university expenses. In June of 2013, her lawyer sent a formal request in writing to the father seeking contribution to Hannah's MA program at the University of London. The letter was filed as an exhibit at trial.

The Father's Contact with Hannah:

[70] The mother testified that the father had sporadic contact with Hannah after the separation, with access exercised at her home given safety concerns. All access between the father and Hannah stopped when Hannah was approximately 3 years old after the mother obtained a restraining order against the father. The mother testified that the father made no effort to contact Hannah for a period of approximately ten years after that time, until Hannah was 13 years old.

[71] The mother testified that she sought and obtained the restraining order in February of 1995 because the father attended access at times under the influence of alcohol and became abusive. She had contacted the police on two separate occasions but no charges were laid.

[72] The restraining order prohibited the father from coming within 200 meters of the [mother] or the child of the marriage without a court order. The mother did not see this as an inhibition to access and testified that the father did not make any effort to see Hannah after that time, nor did he return to court and seek access to her until he commenced his last application to vary in 2003.

[73] The mother testified that after the OCL became involved, she arranged to pay for a child therapist to meet with Hannah and the father together to reintegrate their relationship. According to the mother, the father did not show up for the first meeting with the therapist, leaving Hannah heart-broken.

[74] Shortly before this application was commenced in 2013, the mother's lawyer contacted the father and arranged a meeting between him and Hannah at her law office. Hannah attended the meeting and waited with the mother's lawyer in the boardroom. The father did not attend that meeting and Hannah was once again very upset.

[75] Hannah also testified regarding this issue. It is her recollection that her father made no attempts to contact her as a child and that he had no contact with her for many years until she was approximately 14 years old after the OCL became involved. She recalls waiting for her father in her lawyer's office and being very upset when he did not show up for the meeting with her. She described a number of attempts to communicate with him about this litigation and otherwise, and being rebuffed by him. Hannah also attempted to contact her paternal grandmother and her half-sibling Gloria and she has had some contact with her paternal family. It was her evidence that the father did not support or encourage this.

[76] Hannah testified that she has never received a birthday card, a Christmas card, or even a telephone call from her father over the years. She further testified that her father was aware that she was accepted to the University of Toronto because she contacted him and invited him to her graduation in 2013.

Hannah's Academic and Career Plan:

[77] The mother described Hannah as very gifted academically. Hannah was identified as gifted as a child and was an exemplary student. She attended the University of Toronto from September of 2009 to June 2013 for a four year Honour's degree in classics and archaeology. Hannah lived at home during the last three years of that degree.

[78] The mother paid for the entire cost of Hannah's undergraduate degree. Hannah did not receive any student loans, bursaries or grants. During the summer months, Hannah studied Latin, Greek and German and attended archeological field school.

[79] It was originally Hannah's intention to become an archeologist and obtain a doctorate in that field. She applied for and was accepted into the M.A. program for Mediterranean Archeology which is a one year accelerated program, then leading to a doctorate, and to a career as a professional archeologist and academic. Both the mother and Hannah described the London program as a very prestigious and competitive program. Hannah was chosen personally by the head of the program and started in September of 2013 at the age of 22 years old.

[80] Hannah received a $10,000.00 Ontario student loan for the Master's program and the mother paid for the balance of the cost of that program including tuition, residence, travel and other costs by taking out a line of credit against her home. Hannah did not receive any other grants or bursaries.

[81] In addition, Hannah received an income through the mother's company of approximately $28,221 on an annual basis from on or about 2012 until 2014.

[82] Hannah successfully completed the Master's program, and was short-listed for a doctorate in archeology at Stanford University, however, she had an accident in October of 2014 which caused a serious injury. The injury resulted in a number of bones in her foot being crushed and muscle tissue being severely damaged (known as a Lisfranc fracture).

[83] Hannah has also had a number of health issues involving unexplained fractures in her foot with no further evidence of trauma, which requires ongoing testing. She has suffered from unexplained fractures throughout her youth. According to the mother, the doctors are concerned about autoimmune diseases. Further, Hannah is allergic to several forms of pain medication, making the ongoing testing and surgeries extremely difficult for her.

[84] As a result Hannah has undergone a number of surgeries, hospitalizations, and medical appointments. She experiences chronic pain and difficulty walking, and had to postpone her doctorate. Hannah is now working for Statistics Canada and is also contemplating a career in law while she continues to recover. Her injury or disability may make it difficult to pursue a career in archaeology given the necessary field work.

[85] The mother also testified that she has continually requested a family medical history from the father given Hannah's medical issues to assist in Hannah's diagnosis. According to the mother, the father has not been forthcoming with this information.

7.2: The Father's Evidence:

[86] The father's evidence is that it was clearly the understanding of both parties that the March 2005 Order was a full and final settlement of all child support issues and ended his future obligation to pay child support. He made all of the payments under the final settlement, including the $9,454.00 lump sum payment, which he believed satisfied all payments under the parties' Separation Agreement.

[87] It is the father's evidence that after he made the lump sum payments, he was never approached by the mother for any further child support until 2013, approximately eight years later. He had no communication with the mother as a result of the restraining order made against him, which continued in full force and effect until June 2016.

[88] According to the father, he did not find out about Hannah's post-secondary studies at the University of Toronto until 2012 or 2013 when he was first contacted by Hannah and the mother. He further testified that he did not find out about Hannah's postgraduate studies in London England until he received a telephone call from the mother in May of 2013. He did not know what the expenses were for Hannah's post-secondary education until he was served with the mother's application in October of 2013.

[89] The father testified that he tried to pursue access to Hannah after the 1995 restraining order was granted but he was prohibited from so doing and he did not want to be arrested. He did not seek a court order for access until 2003, approximately eight years after the 1995 order. According to the father, he believed that he could not contact Hannah after the mother obtained the restraining order against him. He testified that he did not realize that he could have access to Hannah until he brought his application to vary in 2003 and spoke to duty counsel.

[90] The father denies being violent towards the mother or towards Hannah and testified that on the two occasions that the mother involved the police no charges were laid. According to the father, the mother has always made it very difficult for him to maintain a relationship with Hannah.

[91] The father testified that he has always loved Hannah. He believes that the mother has poisoned Hannah against him after the parties separated and that his relationship with Hannah is irrevocably damaged.

[92] The father acknowledged that after he entered into the 2005 Final Order, he had very limited if no contact with Hannah until on or about 2012. He stated that he was hurt that Hannah did not want him to contact her except at her instigation, pursuant to the provisions of the Final Order.

[93] The father could not recall being asked to attend counselling sessions with Hannah nor did he recall or respond to the mother's and Hannah's evidence regarding this failure to meet with Hannah at her lawyer's office in 2013.

[94] The father has a very good relationship with his daughter Gloria from a second marriage and that he has always maintained very positive and regular contact with her. He testified that he has consistently paid $500.00 per month in child support to Gloria's mother since they separated. Gloria is now 18 years old. The father separated from his second wife in 2009. The father stated that he has paid this amount regularly to Gloria's mother and that he is not in arrears.

[95] The father has also set up an RESP for Gloria to which he makes regular contributions. Gloria started her post-secondary studies this year.

The Father's Financial Circumstances:

[96] It is the father's evidence that he will suffer significant financial hardship if he is ordered to pay any lump sums towards retroactive child support or towards a retroactive contribution to Hannah's postsecondary education.

[97] The father testified that he has worked for his brother's business, known as Jim's Brother Trading Company for approximately 25 years. He described the brother's business as an import-export food business. It appears to be a large wholesaler that distributes and supplies food products to a number of different customers. According to the father, the company focuses on the Chinese market. According to exhibits filed, the company has a large shipping and receiving plant in Scarborough and it is also one of the largest Canadian importers of frozen catfish fillets.

[98] The father testified that he worked as a driver for the business between 1998 and 2008 and then started to learn about the sales aspect of the business. In 2008, he became a sales manager for the business and testified that he had a number of major accounts, including No Frills, Korea Market, Galleria and Airport Catering. He described these as "multi-million dollar accounts". He admitted in evidence that he has travelled to China in the past on business for his brother's company.

[99] The father acknowledged that his brother's business is successful. He denied having any ownership, beneficial or trust interest in the business.

[100] The father testified that he is a salaried employee of his brother's business. His brother's company issues his T-4 slip. According to the father, he earns $2,440.00 monthly or $29,820.00 annually as his brother's employee. He has earned that amount for many years regardless of the position that he has had with the company.

[101] In cross-examination, the father testified that he is a valuable member of his brother's organization. When asked why over an almost 25 year period, the father had only received less than cost of living increases in salary, the father testified that he is satisfied with what he is receiving and that the company has treated him well.

[102] The father testified that in 2015 and 2016, he underwent a number of surgeries on both his right and left knees, resulting in multiple hospitalizations and absences from work. He testified that he no longer works as a driver, or in sales and he has returned to work in the warehouse in what he described as an entry-level position. He testified that his income may be reduced as a result.

[103] The father has filed two sworn financial statements in these proceedings, on January 18, 2014 and October 13, 2015. In both sworn statements, he deposed that he has monthly expenses of approximately $31,197.00 annually, which exceed his reported annual income.

[104] In cross-examination, the father also admitted that there are a number of expenses that he incurs that were not included in his financial statements, including clothing, cigarettes, alcohol, entertainment, medications, and toiletries. He testified that he smokes approximately three to four packs of cigarettes each week, more if he went out on delivery. He testified that he does not eat out and that he does not spend money on gifts, clothing or entertainment. He testified that he has credit cards but he did not include his monthly payments because he is only making minimum payments.

[105] The father acknowledged during cross-examination that he drives a late model SUV. He testified that it was not listed on his financial statement because his brother's company owns the car. He acknowledged that his brother's company pays all of the expenses associated with the SUV, including the gas, his driving insurance, and maintenance, however he testified that these amounts are reflected in his T-4 slips which were not produced at trial.

[106] The father also pays child support for his other daughter Gloria in the amount of $500.00 per month, as reflected in both financial statements, and he contributes to an RESP for Gloria which totaled $5,500.00 according to the October 2015 Statement. He testified that he is not in arrears of these payments and that he has consistently paid these amounts.

[107] The father has also purchased and sold a number of properties over the years. On March 28, 2002, he and his second wife purchased a family home for $236,609.00, and acquired a mortgage of $211,353.00. In August of 2005, the father and his second wife sold the property for $342,000, receiving a profit of $105,391.

[108] On August 12, 2005, the father and his second wife purchased another property for $360,000 with a mortgage of $270,000. This property was sold in October of 2009 for $482,000, realizing a profit of $122,000. The father currently lives in a condominium which he purchased in 2012 for $250,000. The mortgage for this property had been reduced to $158,794 by January of 2014.

[109] The father testified that he was only able to purchase these properties with the assistance of his brother, who has co-signed all of his mortgages, as well as his second wife with whom he is now divorced. He further testified that the proceeds of sale went into new properties and to his brother. The father testified that he is not able to qualify for any mortgage on his own.

[110] The father also testified that all five brothers owned properties beside each other on Redstone Road so that the family could live close to each other and to their mother. He described a close family. His ex-wife and daughter Gloria lived in one of the properties, owned by one of his brothers. In January 2017, two of the family's properties were sold for $1.4 million and $1.7 million respectively. The father denied receiving any of these proceeds and said that these properties were not owned by him, but by his mother and brothers.

Financial Disclosure:

[111] The father testified that he has made every effort to produce all of the financial disclosure ordered in these proceedings. He testified that his income tax returns and notices of assessment from 2006 to 2014 have been produced, including his 2015 T4. He also produced pay stubs from his employment at his brother's company. He did not produce any mortgage applications. He produced some bank statements for his two bank accounts. He testified that he does not have many of the items of disclosure ordered and that they do not exist.

8: THE LAW AND ANALYSIS:

8.1: First Issue: Jurisdiction

[112] The threshold issue to determine is whether this court has the jurisdiction to set aside or vary the Final Consent Order, dated March 31, 2005, which ends all ongoing child support.

[113] In Gray v. Gray, 2017 ONCA 100, a recent decision of the Ontario Court of Appeal, the Court held that the power to change an order under Rule 25 (19) (e) of the Family Law Rules includes the power to set aside a Final Order.

[114] The Court held at paragraph 29 of the decision that this broad interpretation of Rule 25(19) (e) promotes the underlying philosophy, scheme, and purpose of the Family Law Rules. Rule 2(2) of the Family Law Rules states that the "primary objective of these rules is to enable the court to deal with cases justly.

[115] However, in Gray v. Gray, the respondent father sought to set aside a final default order arising from a hearing in which he did not participate. In the case before me, the parties entered into a signed, witnessed, written consent while represented by counsel. This agreement became the basis for the Final Order.

[116] The Final Order purports to fix child support and arrears in three payment totaling $10,454.00 and eliminate all ongoing child support for a fourteen year old child.

[117] As indicated, both parties were represented by counsel at the time the agreement was executed. Both parties gave very different evidence regarding the intention of the parties when entering into the Final Order and the impact on any future child support owing. Unfortunately, neither party called their lawyers as witnesses to give evidence in this hearing. That would have been helpful.

[118] It is extraordinary that all ongoing child support would end for a fourteen year old child, lending some credence to the mother's interpretation of the Final Consent that she signed. I also note that neither party expressly waived or released child support in the Final Consent, although it purports to end all child support. The Consent is very poorly drafted.

[119] However, it does not make sense that the mother did not move immediately to set aside the Final Order and that she waited eight years before taking any legal steps if she believed that Hannah was entitled to ongoing support after 2005. The mother's explanation for why she did not immediately move to set aside the Final Order was weak.

[120] Regardless of the parties' intentions in entering into the Final Order, this Court has the jurisdiction to set it aside. The test for setting aside a Consent Order is set out by the Court of Appeal in McCowan v. McCowan, as follows at paragraphs:

"… . it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance. Evidence of non-performance may, however, be relevant to the issue whether the underlying agreement was so tainted in its formation that it should be invalidated." [Emphasis added.]

[121] In my view, the handwritten Consent, and subsequent Consent Order, at its formation, did not comply with the objectives of the Family Law Act, R.S.O. 1990, c. F.3, as amended and the Child Support Guidelines.

[122] The relevant sub-sections under section 33 of the Family Law Act are set out as follows:

(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines. 1997, c. 20, s. 3 (4)…

Exception: consent orders

(14) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,

(a) reasonable arrangements have been made for the support of the child to whom the order relates; and

(b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines. 1997, c. 20, s. 3 (4).

Reasonable arrangements

(15) For the purposes of clause (14) (a), in determining whether reasonable arrangements have been made for the support of a child,

(a) the court shall have regard to the child support guidelines; and

(b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines. 1997, c. 20, s. 3 (4).

[123] Further, section 56. (1.1) of the Family Law Act provides as follows:

Provisions that may be set aside or disregarded

Contracts subject to child support guidelines

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. 1997, c. 20, s. 10 (2); 2006, c. 1, s. 5 (8) .

[124] In this case, the Final Order purported to entirely eliminate the father's obligation to provide ongoing child support for his fourteen year old daughter. There was no evidence of any special provisions, arrangements, transfer of property or otherwise that indirectly benefited the child. It is not disputed that none existed. The modest lump sum payments negotiated did not come close to covering the ongoing table amount for Hannah until she was eighteen years old, and the sums were completely inadequate to address post-secondary education expenses. It appears that, for reasons unknown, either intentionally or in error, the parties bargained away the child's right to ongoing support.

[125] Given that the Final Order incorporates the terms of the parties' written Consent, at its formation, the Final Order did not comply with any of the objectives of the Family Law Act and is, in fact, fundamentally unreasonable, in accordance with section 56 (1.1). It therefore has no basis in law and is of no effect and should be set aside.

[126] If I am wrong in the above analysis, then the court still has the jurisdiction to vary the Final Order based on the significant change in Hannah's circumstances since the parties entered into it, in accordance with sections 37 (2.1) and (2.2) of the Family Law Act, and section 14 of the Child Support Guidelines.

[127] There is undisputed evidence that Hannah is an extraordinarily talented student who excelled academically. Her acceptance into both the undergraduate and graduate programs in a highly competitive field at two prestigious universities are changes in her circumstances and needs that were clearly not addressed in Final Consent Order.

[128] Simply put, it is well-established that child support is never final. It is the right of the child, not the right of the parents and it cannot be bargained away by the child's parents. See D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, at paragraphs 59 and 64.

8.2 Second Issue: Does Hannah Still Qualify for Support:

[129] The second issue addresses the father's argument that at the time of the mother's application, Hannah was no longer entitled to child support.

[130] The father argues that Hannah does not qualify for child support because Hannah had already completed her four year undergraduate program prior to the commencement of the mother's application. Hannah is not entitled to child support for a second degree (Masters) which she started at the age of 22, particularly when the parties agreed in their Separation Agreement that child support should terminate when Hannah is 21 years of age.

[131] The father is correct that in order for an applicant to seek retroactive child support, the child must qualify for child support at the time of the application. This court's jurisdiction to make orders is restricted to children who meet the definition of child in the Family Law Act at the time of the commencement of the application. See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, at paragraph 89; and Clancy v. Hansman, 2013 ONCJ 622, Sherr, J. at paragraph 105.

[132] Subsection 31(1) of the Family Law Act, provides that each 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.

[133] The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22.

[134] The case law has set out a variety of factors for the court to consider when determining the issue of entitlement to child support or section 7 expenses for an adult child. These factors include:

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

• b. the reasonableness of the child's course of education and career plans;

• c. the age, qualifications and experience of the child;

• d. the child's past academic performance and whether the child is demonstrating success in the chosen course of studies;

• e. whether or not the child has some reasonable and appropriate education and career plan, including the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefits of the studies and the associated costs of the course of study;

• f. the ability of the child to contribute to his or her own support;

• g. the availability of student loans and whether or not the child has applied;

• h. what plans the parents made for the child's education, during cohabitation or otherwise;

• i. whether or not an adult child has unjustifiably and unilaterally terminated his or her relationship with the parent from whom support is sought;

[135] In the past, courts may have been initially reluctant to extend support for an adult child beyond the first post-secondary degree, this is no longer the case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase, the onus of proving dependency grows heavier. In making a determination for child support, the court cannot be "blind to prevailing social and economic conditions: a bachelor degree no longer assures self-sufficiency." See Martell v. Height, 1994 NSCA 65, 3 R.F.L. (4th) 104 (N.S.C.A.), per Freeman, J. See also Albert v. Albert, 40 R.F.L. (6th) 203 (Ont. S.C.J.) and MacLennan v. MacLennan, 2003 CarswellNS 16 (N.S. C.A.)

[136] However, while parents of significant means may be ordered to pay support for a second degree, support for a second degree is very much subject to the parents' ability to pay. See Decaen v. Decaen, 2013 ONCA 218; N. (W.P.) v. N.(B.J.), 2005 BCCA 7, 249 D.L.R. (4th) 352.

[137] At the time of the mother's application for retroactive (and prospective) support, Hannah was 22 years old and had just enrolled in a full-time one year Master's degree program, which she would complete at the age of 23.

[138] I find based on the evidence that Hannah still qualified for child support. Although Hannah was pursuing a second or post-graduate degree, this was a reasonable and appropriate course of education for her, given her excellent academic record, her age, qualifications, experience, proposed one year study period, her demonstrated success in the program (resulting in an acceptance into a doctorate program), and a well-thought out career plan.

[139] I also find, which will also be addressed later in these reasons that the father is obligated to contribute towards Hannah's second degree.

Hannah's Estrangement from her Father:

[140] The father also argued that Hannah should not be entitled to support because she unjustifiably and unilaterally terminated her relationship with him. The evidence does not support this position. It is clear that the loss of her relationship with her father and with her paternal extended family has been very painful for Hannah.

[141] I find that both parents are responsible for this damaged relationship, not Hannah. The mother has very clearly involved Hannah in her ongoing litigation with the father, which started in 1995, when Hannah was only four years old. The father has done very little, if anything, to nurture and encourage his relationship with Hannah.

[142] The father also became emotional when he talked about the loss of his relationship with Hannah but he did not have a good or adequate explanation for why he did not pursue any access or contact with his daughter for many years. The 1995 restraining order did not preclude the father from applying for access. The 2005 Final Order also made it clear that any contact between the father and Hannah would not be a breach of the restraining order.

[143] It is well-settled law that there has to be a large portion of blamelessness on the part of the father in order for this to be an overriding factor to defeat the mother's claim for child support where a child would be otherwise entitled to support. See Turner v. Ansell, 2012 ONSC 2598, par. 13. This was not the case before me.

8.3 Third Issue: Should Retroactive Support be ordered, and if so, what Amount?

[144] The leading case regarding retroactive child support and section 7 expenses is the decision of the Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. In that case, the court held that retroactive awards cannot simply be regarded as exceptional orders in exceptional circumstances (at paragraph 5).

[145] The court in D.B.S. sets out the factors that a court must consider in addressing retroactive claims for child support. There are four factors that the court raised, at paragraphs 94 to 116 of the decision:

1. Is there a reasonable excuse for why support was not sought earlier?

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship on the payor as a result of the retroactive order.

[146] The court provided further guidance in considering these four factors as follows:

1. Reasonable excuse for the delay in applying for retroactive support:

[147] A delay will generally be unreasonable when the recipient knew higher support payments were warranted but decided not to apply. However, the court should not hesitate to find a reasonable excuse for the delay where the recipient spouse harbored justifiable fears of the payor's reaction, the recipient lacked the financial or emotional means to bring an application or the recipient was given inadequate legal advice (at paragraph 101).

[148] Caution should be exercised before penalizing a child for a recipient parent's delay in attempting to recover support to which a child is entitled. There may be practical financial and psychological realities inhibiting a recipient parent's ability to pursue the issue of child support (at paragraph 172).

2. The Conduct of the Payor:

[149] The court should take an expansive view of what constitutes blameworthy behavior on the part of the payor. Blameworthy conduct can be characterized as anything that privileges the payor's own interests over the children's right to an appropriate amount of support and includes hiding income and intimidating the recipient. The payor cannot mislead a recipient into believing that the child support obligations are being met when they are not being met. On the other hand, a payor who does not automatically increase support payments is not necessarily engaging in blameworthy conduct (at paragraph 106).

[150] A reasonably held belief by the payor that he was meeting his obligations is a good indicator that there is no blameworthy conduct. However, the more material the increase in the payor's income, then the less likely the payor will be presumed to believe he was meeting his obligations. Positive behaviour by the payor can also militate against a retroactive order. For example, a payor who has contributed to his children's expenses beyond his statutory obligations to do so may have met his increased support obligation indirectly (at paragraph 102 to 107).

[151] Even where a payor parent does nothing active to avoid his obligations, he may still be acting in a blameworthy manner if he consciously chose to ignore such obligations. A parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct (at paragraph 107).

3. The Circumstances of the Child:

[152] The court must consider both the present and past circumstances of the child. A child who went through hardship due to not being properly supported may be compensated. However, the argument is less convincing when the child has already enjoyed all of the advantages they would have enjoyed if the payor had been properly supporting them. Further, a child currently enjoying a high standard of living may benefit less from a retroactive award than a child currently in need (at paragraph 113).

4. Hardship for the Payor:

[153] In determining whether a retroactive award will cause hardship for the payor, the court needs to consider more than the payor himself, and must also consider his children from a second family, if any. The court should be careful to craft a retroactive award in a way that minimizes hardship.

5. Other Guiding Principles in the D.B.S. decision:

[154] None of the above factors are decisive or take priority and all should be considered in a global analysis. The court repeatedly refers to the "balance between certainty and flexibility" in this area of the law, describing it as fairness to children and certainty for the payor. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility.

[155] Once a court decides to make a retroactive award, it must then determine the amount. There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor's deficient obligations during that time.

[156] The court should generally make the award retroactive to the date the recipient gave effective notice to the payor that support was being sought or the current amount needs to be renegotiated. Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair. However, once the issue is raised, the recipient must still be responsible in moving the discussion forward. If she does not, legal action should be contemplated (at paragraph 124).

[157] 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, subject to the exception for blameworthy conduct. However, where the payor has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum (at paragraphs 124 and 125).

[158] The principles set out in the D.B.S. cases regarding retroactive child support apply to section 7 expenses as well. See Selig v. Smith, 2008 NSCA 54, 266 N.S.R. (2d) 102, 851 A.P.R. 102, 56 R.F.L. (6th) 8, [2008] N.S.J. No. 250, 2008 CarswellNS 307 (N.S.C.A.), paragraphs [25] and [26]. The court in the D.B.S. cases makes no distinction between the table amount of child support and section 7 expenses for child support.

Application of the D.B.S. Factors to the Facts of this Case:

[159] Based on the evidence at this hearing, I find that the mother did not provide notice to the father that she was seeking child support and contribution to Hannah's post-secondary expenses until May of 2013, eight years after the Final Order was granted.

[160] I find that the mother did not have a reasonable excuse for such a lengthy delay to seek retroactive monthly child support. During that eight year period, the mother became financially successful. The mother had started her own business and by 2006, the mother's professional net income according to her notice of assessment filed, was $176,156.00. The mother acknowledged in her that at one point, her business's gross revenue was approximately 1.2 million dollars annually, although it is not as successful now, and she is planning to dissolve the company over the next year.

[161] The mother further did not advance any evidence that Hannah suffered hardship during that eight year period, although no doubt the mother was working very hard to meet all of Hannah's needs as a single parent while establishing her business during that time. Notwithstanding the lack of support from the father, the mother worked very hard to ensure that all of Hannah's needs were met.

[162] However, although I find that the delay in seeking the retroactive table amount of monthly child support is unreasonable, I find that the delay in seeking a retroactive contribution to Hannah's post-secondary expenses (the section 7 expenses) is not unreasonable.

[163] Hannah was just finishing her undergraduate degree when the mother contacted the father in May of 2013. Hannah's exceptional academic performance in university was a change in circumstance which triggered the mother's request for assistance from the father, particularly after Hannah was accepted to graduate school at the University of London.

[164] Further, the mother's claim for contribution towards Hannah's graduate school expenses is actually prospective in nature as her application was issued just as Hannah started the program.

[165] In terms of the father's conduct, it cannot be said that the father engaged in blameworthy conduct if he believed that the Final Order finally settled all of his child support obligations. The Family Responsibility Office also understood that no more child support was owing under the Final Order and closed its file.

[166] However, it is difficult to understand why the father would have thought that the very modest lump sum settlement that the parties agreed upon in 2005 would have covered any of the costs of Hannah's university education, or why he thought it was right that his obligation support Hannah would end when she was only 14 years old. At a minimum, the father should have realized that the Final Order was always subject to a change in circumstances, particularly once Hannah reached university age.

[167] Further, the father testified that he was contributing regularly to an RESP for his other daughter Gloria in addition to paying monthly child support, and so he was no doubt aware of the cost of post-secondary education for children.

[168] The father was also certainly aware that Hannah was in university by the earliest of 2012 and he received formal notice that the mother was seeking contribution to that cost by June of 2013.

[169] In the D.B.S case, the Court held that parents should not have the impression that child support agreements are "set in stone". Even where an agreement does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the agreement was made. For this reason, there is always the possibility that agreements may be varied when these underlying circumstances change.

[170] The father advanced little evidence of hardship. He is fully employed, he owns a condominium, and receives significant benefits from his brother's company. He also has the financial support of a very close knit family who have, based on his evidence, regularly provided him with generous financial assistance, including co-signing at least four of the real estate purchases that the father has made over the years. However, he does have a legal obligation to support a second child who is also just entering university.

[171] I find that in balancing all of the D.B.S. factors above, the mother's claim for the retroactive table amount of monthly child support is dismissed, but her claim for a retroactive contribution towards Hannah's undergraduate expenses (the 'section 7' expenses) should be granted.

[172] I also take into consideration the fact that the father stopped paying child support for Hannah when she was fourteen years old.

[173] The father received formal notice of this claim in June of 2013. In accordance with D.B.S. principles, it is appropriate that the award for section 7 expenses should be retroactive to June of 2010, no more than three years from the date effective notice was given.

The Amount of the Retroactive and the Prospective Award:

[174] In determining an appropriate retroactive award, it is appropriate to also determine what contribution the father should make to both Hannah's first and second degree and fix a global amount owing for both programs. As I have already indicated, I find that the father should make some contribution to Hannah's second degree as well as her first degree.

[175] The documentary evidence filed, which was not disputed by the father, is that the total cost of Hannah's four year undergraduate program at the University of Toronto, including residence, tuition, and books, was $39,337.91.

[176] Further, the documentary evidence filed, and not disputed by the father, was that the total cost of the graduate degree at University College in London England, including flights, tuition, accommodation fees, residence and student VISA, was $63,320.22.

[177] The total post-secondary cost claimed by the mother for Hannah is therefore $104,190.59 Canadian.

[178] The income of the parents and Hannah, according to their tax returns filed, for the relevant time period was as follows:

YEAR	MOTHER	FATHER	HANNAH
2010	$107,600.00	$29,620.00	$4,352.00
2011	$108,597.00	$29,189.00	$7,165.00
2012	$106,797.00	$30,640.00	$25,391.00
2013	$112,451.00	$29,764.00	$28,221.00
2014	$110,898.00	$24,232.00	$29,203.00

[179] The mother's average annual income over the above years was $109,268.60. The father's average annual income was $28,689.00, and Hannah's average annual income was $18,866.40.

The Father's Income:

[180] As indicated, the mother disputes the father's stated income according to his tax returns filed and believes that income should be imputed to him of at least $125,000.00.

[181] The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency.

[182] Both parents have an absolute responsibility to support their children to the extent that they are able to do so. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.

[183] A trial judge who chooses to attribute income arbitrarily and without explanation commits an appealable error. A court must have evidence to lay a factual foundation in order to impute income to a payor. See: Drygala v. Pauli, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (Ont. C.A.); Converti v. Escobedo, 2011 ONCJ 627, 210 A.C.W.S. (3d) 728, [2012] W.D.F.L. 3940, [2011] O.J. No. 5482, 2011 CarswellOnt 14615 (Ont. C.J.), per Justice Stanley B. Sherr.

[184] Subsections 19(1) and (2) of the Child Support Guidelines, O. Reg. 391/97, as amended, assist the court in determining the income of a self-employed person for child support purposes. Subsection 19(1) includes nine specific sections in which income may be added back or imputed to the payor. The entire section reads as follows [emphasis added]:

19. Imputing income.—(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent's or spouse's property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) Reasonableness of expenses.— For the purpose of clause (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

[185] The father's evidence that he has only earned $29,000 annually as an employee of his brother's company is not supported by the evidence at this hearing. It was not credible that over a 25 year period, the father had only received less than cost of living increases in salary from his brother's company, which appears to be a family business. I find that the father receives significant undisclosed financial benefits or income from the family business or other sources.

[186] Further, I draw an adverse inference against the father for his failure to provide adequate income information to correctly determine his income, pursuant to section 19 (1) (f) of the Guidelines.

[187] The father admitted that his monthly expenses exceeded his monthly income, but had no explanation for this. There was no corresponding debt reflected in his financial statements filed. Further, the father admitted that he incurred several other monthly expenses not included in his financial statement, including cigarettes (three to four packs each week), alcohol, entertainment, medications, and toiletries. These expenses also significantly exceed his stated income, again with no corresponding debt.

[188] The father also receives financial benefits from his brother's company. He has received a company car (a late model SUV) and his brother's company pays for all of his gas, insurance and maintenance, a financial benefit that could easily exceed $500.00 monthly. This should be added to his income.

[189] The father has been able to purchase and sell a number of homes, although he says only with his family's assistance. In 2012, the father purchased his current condominium in with a mortgage of $250,000. In his Financial Statement sworn January 19, 2014, the mortgage balance was $158,794.00. There is no explanation as to how the father was able to reduce the mortgage to that amount in a two year period.

[190] The father also testified he has been voluntarily paying child support in the amount of $500.00 per month for his other daughter Gloria since 2009. He testified that he has paid this amount consistently, he has never been in arrears and that he also contributes towards an RESP for Gloria.

[191] At a minimum, and for consistency and fairness, the father's income for child support purposes should be imputed at $55,500.00 annually, which is the same level at which he pays child support for his other child ($500.00 monthly) based upon under the Child Support Guidelines for Ontario. Income will be imputed to the father in that amount.

Hannah's Contribution:

[192] Adult children also have some obligation to contribute towards their post-secondary education although children should suffer as little as possible based on their parents separating. See Lewi v. Lewi, 80 O.R. 321 (Ont. C.A.).

[193] The duty of adult children to contribute to their education through employment income and loans is gradually increased as they age and advance their studies, especially where the parents have limited income levels. See Cook v. Plante, [2007] O.J. No. 4459 (Ont.S.C.).

[194] Hannah earned on average approximately $18,866 annually from her mother's company and from summer employment income while she was pursuing post-secondary education. From 2012, to 2014, Hannah was receiving, on average, $27,600.00 annually from her mother's company, which is a very significant amount for a university student. However, Hannah also had to incur a $10,000.00 loan for her Master's degree and she did not receive any bursaries or grants.

[195] I find that Hannah should contribute approximately one-third (30 percent) of the cost of the university expenses for both degrees, which I calculate at $31,257. This amount should be deducted from the total cost.

[196] The balance owing by the parents towards Hannah's post-secondary education is therefore $72,934. In accordance with section 7 of the Child Support Guidelines, the father's proportional contribution, based on his imputed income of $55,500 and the mother's income of $109,268.60 is thirty four percent of that amount or $24,798.00.

[197] I also will take into consideration the fact that the parties agreed to share the cost of Hannah's post-secondary education equally in their separation agreement. However, I am not bound by these terms, as earlier indicated. In my view, it is appropriate to follow the test set out under section 7(2) of the Child Support Guidelines which provides that the section 7 expense is shared in proportion to the parents' respective incomes after deducting from the expense the contribution, if any, from the child.

[198] In conclusion, in considering all of the circumstances of this case, I find that it is appropriate, fair and reasonable that the father pay $25,000.00 towards Hannah's retroactive and prospective post-secondary education costs and that the claim for retroactive monthly child support should be dismissed.

8.5: The Mother's Motion for Contempt:

[199] The mother also seeks a finding that the father be found in contempt for the failure to comply with the numerous financial disclosure orders made in this case.

[200] Rule 31 of the Family Law Rules, O. Reg. 114/99 governs contempt of court and when contempt motions are available in family court proceedings before the Ontario Court of Justice. Rule 31 . (1) provides that an order, other than a payment order, may be enforced by a contempt motion made in a case in which the order was made even if another penalty is available.

[201] In Hefkey v. Hefkey, [2013] O.J. No. 1697, 2013 ONCA 44 (Ont. C.A.), the Ontario Court of Appeal set out the following principles regarding the use of contempt in family law cases:

1. The civil contempt remedy is one of last resort;

2. A contempt order should not be granted where other adequate remedies are available to the aggrieved party;

3. Great caution should be exercised when considering contempt motions in family law cases;

4. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.

[202] In Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870 (S.C.J.) Justice Deborah Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:

1. It ultimately remains a matter for the Court's discretion;

2. Given its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;

3. It cannot be reduced merely to a mechanism for enforcing judgments;

4. It should be used sparingly and as a measure of last resort where there are no other adequate remedies available;

5. It is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;

6. The complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach

[203] The test on a motion for contempt is set out in A.G.L. v. K.B.D., [2009] O.J. No. 1342. The court must make the following findings in relation to each alleged breach of an order:

1. The relevant order must be clear and unambiguous and not subject to interpretation. Implied terms cannot be read into the order;

2. The respondent (on the motion) must know of the order's existence at the time of the alleged breach;

3. The respondent intentionally did, or failed to do, anything that was in contravention of the order. The act stated to constitute the contempt must be wilful, not accidental;

4. The contempt must be proven beyond a reasonable doubt;

5. The respondent was given proper notice of the terms of the order.

[204] The onus is on the person alleging contempt to prove it beyond a reasonable doubt. See Fisher v. Fisher; Einstoss v. Starkman, 2003 O.J. No. 3297 (Ont. S.C.J); Prescott-Russell Services for Children and Adults v. G. (N.), [2006] O.J. No. 2488, 82 O.R. (3d) 669. Any doubt must be exercised in favour of the person alleged to be in breach of the Order. See Prescott Russell Services for Children and Adults, supra.

[205] Hearsay evidence is not admissible on a motion for contempt. See Stupple v. Quinn, 1991 30 R.F.L. (3d) 197 (B.C.C.A.). If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing. The standard is quasi-criminal. See Fischer v. Milo, 2007CarwsellOnt6144 (Ont. S.C.J.).

[206] In this proceeding, the evidence establishes that the father produced the following financial disclosure:

• a. Two sworn financial statements;

• b. Notices of assessment from 2008 through to 2014;

• c. T1 comparative tax summaries from 2009 to 2014;

• d. Income tax returns for 2010, 2011 and 2012;

• e. Pay stubs from his brother's company;

• f. Bank statements from one of his bank accounts listed in his financial statements;

• g. One 2016 Equifax Report in the name of Parry Wai Han-Tsim, (although the father changed his name to Parry Jim in September 2014, so this was problematic).

[207] The financial disclosure produced was inadequate. However, there were a number of different orders made regarding financial disclosure leading to some confusion, particularly after the mother amended her claim, rendering some of the disclosure dating back to 2006 unnecessary. Further, the father testified that he did not have or possess many of the items ordered. It may have been more productive to have brought a third-party motion for disclosure against the brother's company or the family business.

[208] Although I have found that the lack of adequate financial disclosure permits me to draw an adverse inference against the father when determining income for child support purposes pursuant to section 19 of the Child Support Guidelines, I am not satisfied beyond a reasonable doubt that the father should be cited in contempt for failure to provide all of the financial disclosure ordered.

9: CONCLUSION AND FINAL ORDER

[209] In conclusion, I make the following Final Order regarding the mother's amended application:

1. The father's contribution towards the child's post-secondary educational expenses is fixed at $25,000.00. This amount shall be payable no later than 30 days from the date of this Order, or alternatively, commencing December 1, 2017, at a rate of $500.00 per month until paid in full.

2. All other claims in this application, including the claims for retroactive child support and the enforcement of the terms of the parties' separation agreement are dismissed.

3. A Support Deduction Order shall issue and the amounts owing under this Order shall be enforced by the Family Responsibility Office. Nothing in this order precludes the Family Responsibility Office collecting support arrears from any government source (refunds) or prize winnings.

4. The court staff shall prepare and issue this Final Order forthwith.

5. If either party seeks costs, then he or she shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. The other party may serve and file his or her written response to the submissions within 20 days.

[210] I thank the parties for their helpful submissions.

Released: October 10, 2017

Signed: "Justice Sheilagh O'Connell"