Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: January 14, 2021 COURT FILE No.: Toronto DFO 92 1453

BETWEEN:

YASMEIN KHAN Applicant

— AND —

BHOWAL CHRIS MUHANLAL Respondent

Before: Justice M.B. Pawagi

Heard on: October 7, 8, 9; November 26; and December 11, 2020. Judgment Released on: January 14, 2021

Counsel: Sheila Mackinnon, for the Applicant Karen Dosanjh, for the Respondent

PAWAGI, M.B. J.:

Nature of the Case

[1] This is the Respondent’s Motion to Change the Final Order of Justice Murray dated January 25, 2007, which provided that he pay child support for the parties’ child Michael (then age 16) in the amount of $773 per month based on an imputed annual income of $86,800. It also set arrears at $21,000 to be paid in three installments. This order was made on consent, with both parties represented by counsel.

[2] Michael is now 30 years old. The arrears are almost $89,000, according to the Director’s Statement of Arrears of the Family Responsibility Office (FRO). It is not disputed that there are inaccuracies in this statement as set out in the facts below, but how this court should address these inaccuracies is disputed.

[3] The Respondent seeks to terminate child support effective June 30, 2011 when Michael (then age 21) completed high school, and to rescind all arrears.

[4] The Applicant seeks an order fixing arrears at around $72,000 and ordering the Respondent to contribute to Michael’s monthly expenses of $1,255 in proportion to the Respondent’s income which she seeks to impute at $100,000. The basis for the Applicant’s position is that Michael is entitled to ongoing support due to his intellectual disability which prevents him from working.

Background Facts

[5] The following facts are not disputed.

[6] Michael Khan Muhanlal, born […], 1990, is the biological child of the parties.

[7] The parties were never married to each other. The Respondent is married to another woman with whom he has three other children.

[8] Michael has resided exclusively with the Applicant with limited access to the Respondent. The Final Order dated January 25, 2007, made when Michael was 16 years old, provides on consent that the Respondent shall have no contact with Michael and the Applicant, except through counsel or as provided by further court order.

[9] Michael was diagnosed at an early age with extremely low cognitive functioning, language delays and limited adaptive functioning. He was given a modified curriculum starting from senior kindergarten. He was subsequently diagnosed with Attention Deficit Hyperactivity Disorder and Intellectual Disability, also described as Intellectual Developmental Delay.

[10] He finished, though did not graduate, high school in 2011 at the age of 21. While attending high school he completed an unpaid student placement in a janitorial position.

[11] Michael is now 30 years old. He has never been employed.

[12] The Respondent’s court ordered child support obligations for Michael date back to 1992.

[13] On December 6, 1999 a Final Order was made on consent regarding child support which included fixing arrears at $5,500. This Order was never sent to FRO. The Director’s Statement of Arrears dated October 19, 2020 (Exhibit #17) simply shows that on that date the Respondent paid $5,500. However, the arrears which had been $38,543.99 just prior were not consequently set to zero. Instead, they were just reduced by the $5,500 to $33,043.99.

[14] On January 25, 2007 a Final Order was made on consent setting arrears to $21,000. The Respondent paid the $21,000 in three installments as ordered but the arrears were not set to zero as the Applicant did not acknowledge the payments to FRO until the Respondent commenced his Motion to Change in 2018.

[15] On September 30, 2019, Justice Scully made a temporary order suspending the Respondent’s child support payments pending trial.

[16] According to the Director’s Statement of Arrears, the Respondent’s child support arrears are $88,761.97. This arrears amount includes the $33,043.99 that was never rescinded.

[17] Michael has been receiving payments through the Ontario Disability Support Program (ODSP) since February/March 2020 in the amount of $1,220 per month.

Analysis and the Law

[18] The parties do not dispute that the threshold test of material change in circumstances that would enable this court to consider varying the Final Order has been met.

[19] I find the material change in circumstance to be Michael starting to receive ODSP payments in February/March 2020 of $1,220 per month.

[20] The parties dispute the following issues:

1. Is Michael entitled to ongoing child support from the Respondent?
2. If so, in what amount?
3. Should the Respondent’s child support arrears be rescinded?

Issue 1: Is Michael entitled to ongoing child support from the Respondent?

[21] Until recently, if parties were not married and child support was sought pursuant to the Family Law Act adult children not enrolled in school and unable to withdraw from parental care due to disability would not be entitled to child support; while if parties were married and child support was sought pursuant to the Divorce Act such children would be.

[22] In 2017, Justice Sullivan of the Ontario Court of Justice in Coates v. Watson, 2017 ONCJ 454 held that the Family Law Act breached the equality rights of the adult disabled child and his mother in the proceeding before him pursuant to s. 15 of the Charter and was not saved by s. 1. Justice Sullivan read into the Family Law Act entitlement to child support for an adult disabled child.

[23] Subsequently, s. 31(1) of the Family Law Act was amended as follows:

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.

[24] It is not disputed that Michael suffers from an intellectual disability. What is disputed is whether by reason of this disability he is unable to withdraw from the charge of the Applicant. In other words, is he capable of becoming self-sufficient through employment?

[25] The Respondent submits that he is, while the Applicant submits that he is not.

[26] I found the parties’ testimony on this issue to be unhelpful. In fact, I found their testimony generally to be unhelpful as they both had issues with credibility. The following are the most egregious examples.

[27] The Respondent testified that he believed the child support order terminated when Michael left high school at the age of 21 in 2011. The Respondent testified that he had no idea that arrears were continuing to accumulate, until 2017 when he attempted to renew his sales license. However, the Director’s Statement of Arrears shows that he continued to make payments to the Family Responsibility Office via telebanking throughout the period of 2011 to 2017. These payments, though not enough to satisfy his court ordered obligation, give the lie to his professed ignorance.

[28] The above example is emblematic of the Respondent’s unsuccessful attempt to portray himself throughout his testimony as ignorant and confused, unaware of what he is agreeing to when he consents to a court order, swears a Financial Statement or becomes a Director of a business he operates with his wife.

[29] The Applicant, meanwhile, frequently contradicted during cross-examination the evidence she had just given in chief; sometimes in support of her position that Michael is unable to work, and sometimes for no discernible reason other than her reluctance to agree with any proposition put to her by counsel for the Respondent.

[30] An example of the former is that when it was put to her in cross examination that Michael had no physical limitation that would prevent him from doing manual labour as evidenced by her testimony in chief that he went for 45 minute walks every day, the Applicant stated that Michael could only walk to the corner and back. The Applicant insisted that this was not a contradiction, implying that it took Michael 45 minutes to walk one block despite there being absolutely no evidence of any disability that affected his walking.

[31] An example of the latter is that when the Applicant was asked in cross examination simply whom she lives with, she contradicted her testimony in chief. When asked about the contradiction, she asked counsel for the Respondent to “define lives with,” and explained she had not understood that her own counsel meant “currently,” when her counsel asked her in chief with whom she lives.

[32] Thus, in determining whether Michael is able to work, I am relying not on the parties’ testimony, but on the independent assessments filed with the court. The Applicant and Respondent both obtained updated assessments of Michael’s functioning for the purpose of this proceeding, from Jennifer Thomblinson and Linda Thompson respectively.

[33] The conclusions were similar. Linda Thompson confirmed Michael’s earlier diagnoses of Intellectual Developmental Delay and Attention Deficit Hyperactivity Disorder with his testing for reading and other measures falling below the 1st percentile. Jennifer Thomblinson found that his overall cognitive functioning fell below the 0.1 percentile and also supported his continued diagnosis of Intellectual Disability.

[34] Both assessors were asked to assess Michael’s employability, and both concluded that employment would only be possible with lots of supports in place. As an example, Ms. Thomblinson suggested a sheltered workplace geared specifically for people with developmental disabilities. Addressing the Respondent’s desire that Michael work with him in the Respondent’s car repair business, Ms. Thompson, the assessor retained by the Respondent, concluded that this was not realistic as such a setting (a garage) would be too loud with too many potential hazards.

[35] Ms. Thompson in her report expressed surprise that an application for ODSP support for Michael had not been made when he was much younger as he would have “easily qualified,” and also that an application for a Disability Tax Credit had not been made. She suggested a service dog as a good support for Michael’s mental and physical wellbeing as walking a dog would be good exercise and lead to interaction with other people in his community.

[36] Counsel for the Respondent points to the following in support of the Respondent’s position that Michael can work:

(1) Michael’s high school report card described his student work placement as successful indicating that he stays on task until the job completed, and that he is an experiential learner.

(2) The Applicant’s own Application for Over-Age Dependant Coverage included a question regarding what type of work could perform which was answered with “Jobs involving simple tasks, labour, with mentor guidance.”

[37] I find that a high school placement is not equivalent to paid employment and that that brief notation of Michael being able to complete simple tasks with mentor guidance is consistent with Ms. Thomblinson’s description of him being able to work in a sheltered workplace for people with developmental disabilities.

[38] Furthermore, the issue is not simply whether Michael can do any kind of work at all, but whether he can support himself. As Justice Sullivan noted in para. 104 of Coates v. Watson cited above,

People with disabilities have faced, and continue to face, stigma and discrimination. As noted by Justice La Forest in Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624, at para 56

Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed.

[39] Even if I accept as definitive, what was presented as a possibility, that Michael could be employed in a sheltered, supportive, workplace, it would not be enough to ground a finding that he would be able to be financially self-sufficient. Thus, I find Michael is not capable of withdrawing from the Applicant’s charge.

Issue 2: What amount of child support should the Respondent pay?

[40] Section 3(2) of the Child Support Guidelines sets out a two-step process for support for an adult child, namely that the amount of an order for support is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[41] Justice Sullivan, in his second Coates v. Watson decision, 2018 ONCJ 605, where he calculated the amount of support for the adult disabled child, followed the approach taken by the Ontario Court of Appeal in Senos v. Karcz, 2014 ONCA 459 where the court found the starting point of table support pursuant to s. 3(2)(a) of the Guidelines would be inappropriate where the adult child is in receipt of ODSP benefits.

[42] Following the direction of the Court of Appeal, I find the issues pursuant to s. 3(2)(b) of the Guidelines are first, what are Michael’s monthly needs after taking into account his ODSP payments, and second, how should his parents contribute to meet those needs.

[43] The Applicant presented two different budgets for Michael’s needs. The first was prepared in 2019 prior to Michael applying for ODSP and the second was prepared in 2020 after Michael began receiving ODSP benefits.

	2019 Budget	2020 Budget
Fixed costs
Rent	$650	$650
Internet	$60	$60
Cell phone	$40	$40
Utilities	$20	$25
Groceries	$200	$300
Home insurance		$25
Car insurance		$60
Fuel		$50
Total fixed costs:	$970	$1,210
Incidental costs:
Restaurant:	$20	$30
Clothing:	$150	$150
Entertainment:	$15	$25
Vacation	$100	$150
Personal grooming:		$35
Medication:		$198
Therapy:		$400
Miscellaneous:		$50
Total incidental costs:	$285	$1,038
Total budget:	$1,255	$2,248

[44] I note that the Applicant doubled Michael’s expenses in the second budget after he began receiving ODSP payments of $1,220 which had almost completely covered his expenses in the first budget. While this appears opportunistic on the part of the Applicant, the issue before this court in examining the second budget is not the Applicant’s motivation, but Michael’s needs.

[45] Generally, the increases in expenses in the second budget are reasonable, such as the increase in the amount for groceries and the addition of small amounts for personal grooming and miscellaneous spending. I also find the addition of $400 for therapy to be reasonable (even though it is temporarily on hold due to COVID). The assessments are clear that Michael needs more opportunities to engage and therapy is a potential source of engagement.

[46] However, I do not find the inclusion of home insurance to be reasonable as this expense should be covered by the $650 for rent.

[47] I also do not find the inclusion of medication to be reasonable. The budget notes that Michael is not taking medication currently because of the cost; however, the Applicant’s testimony was contradictory in that regard. She testified that Michael at times was taking medication for such various purposes as addressing depression and assisting with weight loss. But she also explained that he was currently not taking medication for depression and trying practices such as meditation instead. The Applicant also did not provide evidence as to the medical necessity of weight loss medication.

[48] Thus, I find that Michael’s expenses, after subtracting the $1,220 he receives in ODSP payments and subtracting the expenses I find unreasonable (namely, home insurance and medication as described above), amount to $805 per month.

[49] The next question to be determined is how the parties should share this expense between themselves. Counsel for the Applicant submits it should be shared proportionately to their incomes and that the Respondent’s annual income should be imputed at $100,000 for this purpose. Meanwhile, the Respondent, in the past offered to contribute $350 per month, and during his testimony offered to contribute $250 per month towards Michael’s ongoing expenses.

[50] The Applicant’s income is not disputed. According to her 2019 Notice of Assessment, it is $52,413.

[51] The Respondent’s income is disputed. The Respondent seeks to rely on his 2019 Notice of Assessment which shows an income of $25,000. Counsel for the Respondent submits that the Applicant has provided no evidentiary basis on which to impute a higher income. While I agree that the Applicant has provided no basis to impute the higher income she seeks of $100,00, the Applicant does not bear the burden of demonstrating why the $86,800 that was imputed on consent in the Final Order dated January 25, 2007 should continue.

[52] As Counsel for the Applicant, citing Trang v. Trang, 2013 ONSC 1980, correctly notes, that the Respondent cannot simply rely on his subsequent declared income of $25,000.

[53] Justice Pazaratz in Trang v. Trang held that a party who argues that an imputed income level is no longer appropriate must present evidence of changed circumstances that establish that it is no longer appropriate to impute income or that a different amount is appropriate. Justice Pazaratz points out that if declared income automatically prevailed on a motion to change support it would defeat the purpose of imputing income in the first place.

[54] The Respondent submits that he never made $86,800 and points to his Notices of Assessment which show an income in 2006 of $10,400 and in 2007 of $1. However, the Director’s Statement of Arrears shows that in 2007/2008 the Respondent generally paid the $773 per month as ordered, along with the $21,000 for arrears, notwithstanding that his declared income in 2007 was $1 and his declared income in 2008 was $300. His Notices of Assessment since then present a range of income between $25,000 and $35,000, all greater than his declared income at the time the Final Order was made.

[55] The Final Order was made on consent and the Respondent was represented by counsel at the time. The Respondent remains in the same car business he was in when the Final Order was made, a business that employs himself, his wife and two of his three children. His travels since then include destinations such as Trinidad, Jamaica and the United States. While the Respondent could not renew his car sales license in 2017 as a result of his child support arrears, the Respondent cannot rely on this diminishment of his business (from car sales and repairs, to just repairs) that resulted from his own blameworthy actions. The Respondent knew there was a child support order, his options were to move to change it or to follow it, not to breach it.

[56] I find that the Respondent has not demonstrated a material change since the Final Order was made.

[57] I find it would be reasonable to follow the approach of Justice Sullivan in Coates v. Watson, 2018 ONCJ 605, wherein he describes at paragraph 76 that the analysis pursuant to s. 3(2)(b) of the Guidelines is “one of sharing equitably the responsibility towards their adult child, after considering the child’s contribution. In arriving at the parent’s contribution, I do not find that this must be done as in a section 7 analysis, proportionate to income given the broader nature of section 3(2)(b)” and concludes that the expenses should be shared equally by the parents.

[58] Given the Applicant’s income of $52,413 and the Respondent’s income of $86,800, and Michael’s monthly expenses of $805, I find it would be reasonable for the parties to contribute equally to Michael’s expenses. Even had I found the Respondent’s income had decreased, I would not have decreased it to be as low minimum wage as the Respondent suggests, and thus an order that the parties share Michael’s expenses equally would still have been reasonable.

Issue 3: Should the Respondent’s arrears be rescinded, in whole or in part?

[59] Until June 30, 2011 Michael was entitled to the Table support of $773 per month pursuant to the Final Order dated January 25, 2007. As of June 30, 2011, the Respondent’s arrears are calculated as $44,102.39. However, FRO did not take into account the $33,043.99 that ought to have been rescinded pursuant to the consent order dated December 6, 1999, because this order was never provided to FRO. FRO also did not take into account, at that time, the $21,000 the Respondent paid pursuant to the Final Order dated January 25, 2007 because the Applicant did not acknowledge the payments until 2018.

[60] Counsel for the Applicant submits that there is no merit to the Respondent’s argument that FRO failed to credit him with the reduction of arrears in December 1999 because the arrears were fixed at zero in any event after the $21,000 was paid pursuant to the January 2007 order.

[61] I do not agree. Because the $21,000 payment was not acknowledged by the Applicant at the time it was made, arrears were never set to zero pursuant to the January 25, 2007 order.

[62] Thus, I find the arrears amount of $44,102.49 as of June 30, 2011 as noted in the Director’s Statement of Arrears is incorrect. The following amounts should be subtracted: $33,043.99 that was not credited, and $21,000 that was paid before 2011 but not counted until after, thus leaving the Respondent with an overpayment of almost $10,000 as of that date.

[63] After June 30, 2011, the arrears continued to accumulate at the rate of $773 per month, even though Michael was no longer enrolled in school and an adult disabled child was not entitled to child support pursuant to the Family Law Act at that time.

[64] The Respondent ought to have followed the 2007 order or brought a motion to change it. He did neither. Instead, he made some payments and accumulated a large amount of arrears. It would not be fair to the Applicant and Michael if this court simply rescinded all of the arrears on the grounds that the Family Law Act only changed recently to provide child support to an adult disabled child. Meanwhile, the Applicant ought to have applied for ODSP in 2011 and not waited until 2019. It would not be fair to the Respondent to continue Table support on the grounds that Michael had no other source of income until the ODSP payments began in 2020, when the Applicant failed to pursue available sources of income for Michael earlier.

[65] I find the most reasonable option would be to use the currently calculated ongoing amount of $400 per month for the purposes of retroactive calculations as well.

[66] Since June 20, 2011, the Director’s Statement of Arrears shows that that the Respondent has paid about $30,675 in child support. Using $400 per month as a reasonable contribution, the Respondent would have owed $45,600 in child support during this period (144 months x $400). The result is arrears owing of about $15,000. Applying the overpayment of $10,000 calculated above, the total arrears owed by the Respondent is $5,000.

[67] The issue of calculating arrears was complicated by multiple failures. The Respondent ought to have brought his Motion to Change in 2011. He was aware he had a court-ordered child support obligation and he neither followed it in full nor brought a Motion to Change until now. The Applicant failed to pursue available sources of support for herself and Michael such as ODSP (until recently), the Disability Tax Credit, as well as programming that was available to Michael after he turned 21 which may have assisted him in becoming more independent (testifying simply that Michael did not wish to attend). The Director’s Statement of Arrears was inaccurate as the December 6, 1999 order was not provided to FRO and the Applicant did not acknowledge $21,000 in payments by the Respondent until years after they were made. I find, given these failures, it would not be appropriate to make any order for costs in this matter.

FINAL ORDER

1. Paragraphs 1 and 2 of the January 25, 2007 child support order of Justice Murray are terminated and replaced with the following: Mr. Bhowal Chris Muhanlal shall pay monthly child support to Ms. Yasmein Khan for the child Michael Khan Muhanlal, born […], 1990, in the amount of $400 per month commencing January 1, 2021 and on the first of each month thereafter until further order of this court.

2. Arrears shall be fixed in the amount of $5,000 to be paid by March 1, 2021.

3. A Support Deduction Order Shall Issue.

There shall be no order as to costs.

Counsel for the Applicant shall take out this order.

Released: January 14, 2021 Justice M. B. Pawagi