ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 8712/09
DATE: 2012-03-14

BETWEEN:

NATALIE SENOS Applicant
– and –
PETER KARCZ Respondent

Natalie Senos/ Applicant, Self-Represented/Responding Party

Melanie Sager, Counsel for the Respondent/Moving Party

HEARD: March 1, 2012

REASONS FOR JUDGMENT

GRAY J.

[ 1 ] The respondent moves to vary an order for child support. The parties’ son is in his early 20s, but it is agreed that he remains a child of the marriage because he suffers from schizophrenia, and cannot work. He lives with the applicant.

[ 2 ] The child recently became entitled to support under the Ontario Disability Support Program Act , 1997 , and the respondent now takes the position that the child’s ODSP payments should be deducted from the amount he otherwise should be paying as child support.

[ 3 ] For the reasons that follow, the motion to vary the order is dismissed.

Background

[ 4 ] The parties were married in 1984, and divorced in 1993. There is one child of the marriage, Antoni, born August 25, 1989.

[ 5 ] A child support order was made dated May 19, 1993, requiring the respondent to pay child support to the applicant in the amount of $900 per month.

[ 6 ] In 2007, Antoni was diagnosed as a schizophrenic with bipolar disorder. He lives with his mother in Acton, and periodically visits his father who lives near Sudbury. He is able to travel by bus to Sudbury, and he is able to make his way around the Sudbury area to visit friends. He is not able to work.

[ 7 ] The child support order has been increased periodically to take into account the cost of living. As of 2009, the respondent was paying $1,153 per month. He has not actually paid anything since July, 2009.

[ 8 ] The respondent’s income is generally over $100,000 per year. In 2006, he earned $111,716; in 2007, he earned $113,474; in 2008, he earned $127,880; and in 2009, the last year he actually paid child support, he earned $102,815.

[ 9 ] For several years, the applicant has had no income. She has remarried, and she lives with her husband who apparently earns a decent income.

[ 10 ] In June, 2009, the respondent learned that an application was made on behalf of Antoni to ODSP. When this motion to vary was commenced by the respondent, he knew that ODSP was being paid, but did not know how much the payments were, or whether they were retroactive and if so, to what date. It was not until November, 2010, that he learned that ODSP was approved, and that it was paid retroactive to February 8, 2008. Antoni has received ODSP payments, commencing in the amount of $796 per month, and which are now $814 per month.

[ 11 ] On November 19, 2009, I signed an order directing the Family Responsibility Office to hold in trust any funds garnisheed by the respondent’s employer, and refrain from paying out any monies to Ms. Senos until further order of the Court. The amount of $415 per month has been held in trust by FRO, and as of February 27, 2012, FRO is holding the sum of $11,007.57.

Submissions

[ 12 ] Ms. Sager, counsel for the respondent, submits that the amount received by Antoni from ODSP should be deducted from the amount Mr. Karcz would otherwise be required to pay as child support. This should be done retroactive to February, 2008.

[ 13 ] Ms. Sager submits that this approach has been recognized and applied in a number of cases, including Blonski v. Blonski , 2010 ONSC 2552 ; Briard v. Briard (2010), 2010 BCCA 431 , 94 R.F.L. (6 th ) 33 (B.C.C.A.); Cossette v. Cossette , 2003 2086 (ON SC) , [2003] O.J. No. 4928 (S.C.J.); Greening v. Mills (2006), 2006 80631 (NL SC) , 23 R.F.L. (6 th ) 165 (N.L.U.F.C.); Harding v. Harding , [2009] B.C.J. No. 772 (B.C.S.C.) ; Liscio v. Avram (2009), 2009 43640 (ON SC) , 75 R.F.L. (6 th ) 176 (Ont. S.C.J.); and Misner v. Misner (2010), 2010 ONSC 2284 , 83 R.F.L. (6 th ) 264 (Ont. S.C.J.).

[ 14 ] Ms. Senos submits that no deduction from child support should be made. She submits that ODSP and child support are entirely distinct. ODSP belongs to Antoni, and Antoni alone, while child support belongs to Ms. Senos, and Ms. Senos alone. Ms. Senos has no right to access the ODSP payments, and Antoni has no right to access the child support payments.

[ 15 ] Ms. Senos relies on Ontario (Director, Disability Support Program) v. Ansell (2011), 2011 ONCA 309 , 333 D.L.R. (4 th ) 489 (Ont. C.A.).

Analysis

[ 16 ] Since Antoni is of the age of majority, s. 3(2) of the Federal Child Support Guidelines applies. Section 3(1) and (2) of the Guidelines read as follows:

3. PRESUMPTIVE RULE - (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

( a ) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

( b ) the amount, if any, determined under section 7.

(2) CHILD THE AGE OF MAJORITY OR OVER - Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.

[ 17 ] It is clear that under s. 3(2) of the Guidelines , the amount of child support payable is either the amount determined as if Antoni were under the age of majority, or the amount that I consider appropriate, “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” It is noteworthy, however, that the latter formulation is only applicable if the Court considers the “approach” under s. 3(2)(a) to be “inappropriate”.

[ 18 ] How is the Court to determine whether the approach under s. 3(2)(a) is inappropriate? Guidance is provided in Lewi v. Lewi (2006), 2006 15446 (ON CA) , 80 O.R. (3d) 321 (C.A.). Paragraphs 127-129 of the reasons delivered on behalf of the majority of the Court of Appeal by Juriansz J.A. are as follows:

127 Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.

128 Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. It is apparent that the word “approach” was chosen with care, as the word “amount” is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the “amount” determined under s. 3 where it considers that amount to be inappropriate. The words “that approach” refer to the technique dictated by s. 3(2)(a)-namely applying the Guidelines “as if the child were under the age of majority”. I will refer to that technique as the “standard Guidelines approach”. Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.

129 The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e. , the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.

[ 19 ] It is clear, in my view, from the reasons of Juriansz J.A. that the amount generated by the formula prescribed by s. 3(2)(a) is the presumptive amount. The use of that formula fosters predictability, consistency and efficiency in family law litigation. In order to resort to the formula prescribed by s. 3(2)(b), the Court must be satisfied that the standard Guidelines approach is inappropriate. The s. 3(2)(b) approach is clearly an exception rather than the rule.

[ 20 ] It is also clear, in my view, that if s. 3(2)(b) is to be applied, it is too simplistic an approach to simply deduct the ODSP payments from the amount otherwise payable as child support. It is clear from Ansell , supra , that ODSP payments belong to Antoni, and not to his mother. At para. 28 of Ansell , Laskin J.A. listed certain features of child support that distinguish it from ODSP.

(a) the child support order itself stipulates that the support is paid to the mother, not the child;

(b) the order does not say how the mother is to spend the money; thus, although she voluntarily uses the money for disability related expenses, the order does not require her to do so;

(c) the mother is not required to account for how she spends the money;

(d) the mother must report the child support as income on her personal income tax return; the child does not report the payments on his own return;

(e) the child support payments are tied to the mother; they end if she dies; and

(f) the child is not a party to the court order and has no legal right to enforce it.

At para. 29, after reciting these features, Laskin J.A. stated:

These features show that, in her mother’s hands, the child support payments are not Jocelyn’s income. Jocelyn has no legal entitlement to them, no ability to access them, and no control over how they are spent. Her mother could use the child support to repair the roof, pay a hydro bill or buy a new television set.

[ 21 ] Similar reasoning reflects the status of ODSP payments. They belong to Antoni. They do not belong to Ms. Senos. Ms. Senos has no legal entitlement to them, and no control over how they are spent. Antoni could use them to take a trip, buy a car, or buy liquor. In the meantime, Ms. Senos must maintain a home for Antoni and support him.

[ 22 ] Before determining whether the formula prescribed by s. 3(2)(b) applies, the Court must first be satisfied that the approach under s. 3(2)(a) in this particular case is inappropriate. In my view, it is not.

[ 23 ] The disparity in incomes between Ms. Senos and Mr. Karcz is significant. While Ms. Senos is married, there is no evidence that her spouse’s income is used to support Antoni, and her spouse is under no legal obligation to spend it for that purpose. As noted, Antoni’s ODSP payments belong to him, Ms. Senos has no legal right to insist that they be expended in any particular way, and Antoni has the right to spend them as he wishes.

[ 24 ] In the final analysis, does the fact that Antoni has his own spending money make the approach under s. 3(2)(a) inappropriate? I do not think so.

[ 25 ] This is not a case like Lewi , where a child is attending university, and is living away from home for a good part of the year. In those circumstances, the formula prescribed in s. 3(2)(b) makes sense. The child has access to funds to assist him or her in securing an education, and all parts of the family unit, including the child, must contribute to that endeavour.

[ 26 ] In a case such as this, however, the child suffers from what is likely a permanent disability that will render him unemployable. He has access to some spending money of his own. Should that mean that Mr. Karcz should be relieved of all or part of the normal obligation he would otherwise have to support his child? Does that make the formula prescribed by s. 3(2)(a) inappropriate? In my view, the answer is no.

[ 27 ] It should be noted that even if the formula prescribed by s. 3(b)(b) is applied, it does not mean that one simply deducts Antoni’s ODSP payments from Mr. Karcz’s child support payments. One must consider “the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” Having regard to the disparity in incomes between the parties here, the resulting support payments might well be very close to, if not equal to, the payments required by s. 3(2)(a). That was certainly the result in Briard , supra, where the Guidelines dictated an amount of child support of $578 per month, and a judge of the British Columbia Supreme Court awarded $500 per month for a child who had Down Syndrome and received $906.42 per month under the Employment and Assistance for Persons with Disabilities Act . It was argued that the child’s receipt of assistance should result in the elimination of all or most of the child support payments. The British Columbia Court of Appeal disagreed, and upheld the original order. Rowles J.A., for the Court, stated at para. 30:

30. If the appellant’s arguments on the appeal were accepted, the child’s “needs” would be confined to what Danielle is able to obtain through receipt of government assistance and benefits. In my opinion, such an approach would not be in accord with s. 3(2)(b) of the Guidelines which requires a court to consider the amount of child support that would be appropriate, “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

[ 28 ] Similarly, if s. 3(2)(b) applies here, it is quite likely that Mr. Karcz’s support payments would not be reduced by much, if at all. However, for the reasons articulated, it is not appropriate to apply s. 3(2)(b). Among other things, as noted by Juriansz J.A. in Lewi , the application of s. 3(2)(a) promotes predictability, consistency and efficiency.

Disposition

[ 29 ] For the foregoing reasons, the motion to vary is dismissed. The funds being held by FRO shall be released to Ms. Senos. FRO shall enforce child support at the Guideline amount, retroactive to the date it was discontinued and/or reduced. This order shall be suspended for 30 days and shall then be complied with if there is no order of an appellate court granting a stay within that time period.

[ 30 ] Ms. Senos is unemployed. Clearly, she has not lost any opportunities to earn employment income as a result of her involvement in these proceedings. The dismissal of the motion is without costs.

GRAY J.

Released: March 14, 2012