CITATION: Colquhoun v. Hendriks, 2024 ONSC 5162
DIVISIONAL COURT FILE NO.: 1500/24 DATE: 20240916
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lococo and Howard JJ.
BETWEEN:
Herman Warren Colquhoun Jr.
Ella Aiaseh, Counsel for the Appellant
Appellant
– and –
Kareen Loretta Hendriks
Respondent
Vanessa Lam, Counsel for the Respondent
HEARD at Oshawa: September 16, 2024
rEASONS FOR DECISION
SACHS J. (Orally):
[1] This is an appeal from the order of Daurio J. dated December 5, 2023, in which she made orders relating to retroactive child support, ongoing child support and s. 7 expenses for the two children of the relationship between the parties, Caynen and Marcus.
[2] At the hearing of the appeal, counsel for the Appellant made it clear that the Appellant father was only pursuing the following issues:
Miscalculation errors committed by the motion judge, some of which are conceded by the Respondent mother.
The following issues relating to child support for Marcus only:
A. The motion judge’s refusal to hear the father’s cross motion for table support for Marcus.
B. The motion judge’s finding that Marcus was not a dependent child while he was taking courses virtually on a part-time basis. As a result, the motion judge did not order the mother to contribute to Marcus’ education-related expenses for this period.
[3] The motion judge refused to consider the father’s cross-motion for ongoing support at the table amount for Marcus. She did so because Jarvis J. had made an order about what issues were to be considered on the long motion before her, and because the mother had indicated that she had not had an opportunity to respond to or prepare for the father’s cross-motion.
[4] In view of the fact that the mother’s motion to change child support had been pending for years, it cannot be said that it was an improper exercise of the motion judge’s discretion to refuse to consider any new issues, especially in view of Jarvis J.’s direction that no other motion other than the mother’s motion to change should be heard “without prior Order of the Court”.
[5] With respect to the miscalculation errors committed by the motion judge, this issue is currently before the motion judge for consideration. It would be inappropriate for this court to intervene before the motion judge has rendered her decision.
[6] With respect to the motion judge’s finding that Marcus was not a dependent child while he was taking part-time courses virtually, the Appellant failed to satisfy us that the motion judge made a palpable and overriding error when she made this finding.
[7] The Appellant is correct that there are cases where judges have found that a child who is pursuing their education on a part-time basis can be considered a dependent child. The motion judge was aware of and cited that case law. However, there are also cases where judges have refused to find that a child who is in school on a part-time basis is a dependent child. In this case, the motion judge found that the programs being pursued by Marcus were “transitory, virtual and were not part of a degree or diploma program.” There was evidence before her on which she could base these findings and these findings are entitled to considerable deference from us. Given these findings and given the applicable jurisprudence, the motion judge made no palpable and overriding error when she concluded that Marcus was not a dependent child while he was pursuing the courses in question.
[8] The Appellant also requested leave to appeal the motion judge’s costs order. He did so on the basis that the motion judge erred when she found bad faith on his part. Leave to appeal costs is rarely granted. In this case, there is no doubt the primary basis for the motion judge’s bad faith finding is clear – the father failed to voluntarily disclose to the mother considerable increases in his income over the years since the original support order. He also failed to voluntarily pay more child support. Therefore, even if we were prepared to grant leave, we would have denied the Appellant’s costs appeal.
[9] For these reasons, the appeal is dismissed.
[10] The Respondent is entitled to her costs of this appeal fixed in the amount of $10,000 all inclusive. Since the appeal related solely to child support, the costs order shall be enforced through the Family Responsibility Office.
Sachs J.
I agree: ____________________________
Lococo J.
I agree: ____________________________
Howard J.
Oral Reasons Released: September 16, 2024
Written Endorsement Released: October 4, 2024
CITATION: Colquhoun v. Hendriks, 2024 ONSC 5162
DIVISIONAL COURT FILE NO.: 1500/24 DATE: 20240916
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HERMAN WARREN COLQUHOUN JR.
Applicant
– and –
Kareen Loretta Hendriks
Respondent
ORAL REASONS FOR DECISION
SACHS J.
Oral Reasons: September 16, 2024
Written Reasons Released: October 4, 2024