ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2202/11
DATE: 2012-05-04

BETWEEN:

LEE-ANN TURNER (aka) LEE-ANN ANSELL Applicant – and – DANIEL TERRANCE ANSELL Respondent

Self-represented/respondent on appeal

Michael Walz, counsel for the respondent, appellant on appeal

HEARD: April 24, 2012

reasons on appeal

JUSTICE E. GAREAU

[ 1 ] The appellant, Daniel Terrance Ansell, appeals a decision made on May 16, 2011 by The Honourable Mr. Justice J. Kukurin in the Ontario Court of Justice.

[ 2 ] This action was by way of motion to change brought by both Daniel Ansell and Lee-Ann Turner concerning child support for their daughter, Jocelyn Ansell, born April 1, 1989.

[ 3 ] The motions to change were heard by way of viva voce evidence during a trial which spanned from October, 2009 to January, 2010. It is difficult to imagine a trial to vary child support would take six days and the trial judge makes note of that fact at paragraph 15 of his judgment as follows: “How does a case that essentially involves claims to change child support manage to span four years of litigation? Why did this case end up in a trial with viva voce evidence that took six days? Why indeed, when the main issue relevant to the final claims of both parties was the relatively simple determination of whether the child Jocelyn continued to qualify as a dependent for purposes of child support?”

[ 4 ] This question posed by the trial judge was answered partially in paragraph 17 of his judgment when he notes the complicating factors in this case, such as Jocelyn’s age, and her difficulties due to her medical condition which resulted in an a-typical education. Perhaps the most significant reason may be reflected in the comments made by the trial judge in paragraph 17(f) of his Reasons when he notes that “the parties in this case were very polarized, had very little communication inter se , and the mother was self-represented.”

[ 5 ] The learned trial judge released a 20-page written decision on May 16, 2011. In that decision, the trial judge found that Jocelyn was enrolled in a full-time program of education, continued to be entitled to child support and ordered variation of the child support effective June 1, 2007 applying the Child Support Guideline grid in amounts based on Mr. Ansell’s gross annual income.

[ 6 ] The formal order dated May 16, 2011 arising out of Justice Kukurin’s findings and Reasons for Judgment reads as follows:

1. The Respondent father, Daniel Terrance Ansell shall pay to the Applicant mother, Lee-Ann Turner, as child support for the child, Jocelyn Ansell, born April 1, 1989:

a) based on the said Respondent’s annual income of $109,427.00 for the year 2007, the Child Support Guideline table amount of $950.00 per month on the first day of each month commencing June 1, 2007 and up to December 31, 2007;

b) based on the said Respondent’s annual income of $105,469.00 for the year 2008, the Child Support Guideline table amount of $920.00 per month on the first day of each month commencing January 1, 2008.

2. Paragraph (1) of this Order varies paragraph 3(a) of the Order of Justice Wolder dated July 13, 2005.

3. The motion claims of the Respondent father to vary the terms of and/or to terminate the provisions in paragraph 3(b) of the Order of Justice Wolder dated July 13, 2005 with respect to child support for extra-curricular and extra-ordinary expenses are dismissed.

4. All other claims of the Respondent father in this proceeding that have not been abandoned or withdrawn are dismissed, except any claims for costs.

5. All other claims of the Applicant mother made in this proceeding that have not been abandoned or withdrawn are dismissed, except any claims for costs.

6. The foregoing Orders are made without prejudice to the right of either party to bring a motion to vary or terminate the terms of an Order dated June 17, 2010 with respect to monies in the hands of the Director of FRO.

[ 7 ] In Justice Kukurin’s order he refers to the order of Justice Wolder dated July 13, 2005. This is the Court order which both Mr. Ansell and Ms. Turner sought to vary by their respective motions to change. The pertinent paragraphs of Justice Wolder’s order are paragraphs 2 and 3 which read as follows:

2. THIS COURT FURTHER ORDERS THAT page four, paragraph 7(6), (7) of the Separation Agreement dated March 1, 2002 and paragraph two and three of the Order of the Honourable Justice Agro dated June 27, 2003, shall be deleted and replaced with:

(a) The Respondent shall have access to the child, Jocelyn Sheila Ansell born April 1, 1989 at the discretion of the child.

3. THIS COURT FURTHER ORDERS THAT page 6, paragraph twelve (1) and (2) of the Separation Agreement dated March 1, 2002 and paragraph seven of the Order of the Honourable Justice Agro dated June 27, 2003, shall be deleted and replaced with:

(a) Commencing September 1, 2005, the Respondent shall pay to the Applicant for the support of the child the sum of $700.00 per month based on his approximate annual income of $88,000.00 per annum and in accordance with the Child Support Guidelines, and on the first of the month thereafter.

(b) Commencing September 1, 2005, the Respondent shall pay to the Applicant an additional $100.00 per month for the child, Jocelyn Sheila Ansell’s extra curricular and extra ordinary expenses. The Applicant shall not provide any accounting of these funds and the Applicant shall be responsible for any other extra ordinary or extra curricular expenses pertaining to the said child over and above the said $100.00.

(c) Paragraph 3(b) shall be reviewed if the child, Jocelyn Sheila Ansell attends post secondary education.

[ 8 ] Under the terms of Justice Wolder’s order granted on July 13, 2005, Mr. Ansell was paying the sum of $700.00 per month in child support for Jocelyn based on an “approximate” annual income of $88,000.00 plus an additional $100.00 per month on account of extra-curricular and extraordinary expenses for Jocelyn without account by Ms. Turner who was responsible for all other expenses above the $100.00 per month to be paid by Mr. Ansell.

[ 9 ] Prior to the trial commencing before Justice Kukurin in October, 2009 each party had numerous claims before the court. By the time the trial commenced, Ms. Turner’s claim was reduced to a request that the guideline amount of child support for Jocelyn be varied as of June 1, 2007 based on Mr. Ansell’s income and Mr. Ansell’s claim was for a termination of child support for Jocelyn, including s. 7 expenses as of April 1, 2007.

[ 10 ] In his submissions before this court, counsel for the appellant, Mr. Ansell, argued that Justice Kukurin’s order should be set aside on the following grounds:

(a) there was a lack of disclosure by Ms. Turner. The learned trial judge failed to consider paragraphs 6 and 7 of the order of Justice Wolder which imposes certain obligations on Ms. Turner in providing information to Mr. Ansell;

(b) that the trial judge erred in shifting the onus to obtain disclosure and information to the father rather than requiring the mother to provide financial information concerning Jocelyn and information regarding her attendance at school;

(c) the learned trial judge failed to consider the child Jocelyn’s refusal to communicate with her father in determining whether she was still entitled to support;

(d) the learned trial judge failed to take into account the disability payments received by Jocelyn in assessing the quantum of child support;

(e) that the learned trial judge failed to impute income to the mother, Ms. Turner, in determining the amount of child support for Jocelyn; and

(f) the learned trial judge failed to take into account the separation agreement dated March 1, 2002 entered into by the parties in determining the s. 7 expenses for Jocelyn.

[ 11 ] With respect to Jocelyn’s relationship with her father and the impact on this in her entitlement to child support, the appellant argues that the learned trial judge failed to consider the applicable law in this regard or apply his mind to this factor in determining whether or not Jocelyn remained a dependent child entitled to continued child support.

In support of this argument, the appellant’s counsel cited the following cases:

Palmer v. Woodman, 2003 BCSC 1903 , 47 R.F.L. (5 th ) 355 (B.C.S.C.)

Law v. Law , 1986 6291 (ON SC) , 2 R.F.L. (3d) 458 (ON SC)

Montemurro v. Shavalier , 2003 1976 (ON SC)

Filice v. Lepore , 1995 7347 (ON SC)

[ 12 ] Those cases stand for the proposition that the unilateral termination of a relationship by a mature child with a parent without apparent reason is a factor to be considered by the court in determining whether it would be “fit” and “just” for the payor parent to provide continued support for the child.

[ 13 ] This is a factor to be considered – not the sole or determining factor in cases where a child is over the age of majority. The cases refer to the child unilaterally terminating the relationship and the relationship being terminated without reason. In my view, the test is high and there has to be a large portion of blamelessness on the part of the payor parent in order for this to be an overriding factor to defeat a claim of child support where a child would be otherwise entitled to support.

[ 14 ] On the facts of this case, there was a period of time of approximately 1½ years where the father was prevented from communicating with Jocelyn by way of a recognisance in a criminal proceeding. The mother takes the position that Jocelyn did on occasion see her father, that she did not refuse to see her father and it was Mr. Ansell who did not make concerted efforts to maintain a relationship with Jocelyn.

[ 15 ] Although the learned trial judge may not have specifically referred to the relationship between father and daughter in his Reasons for Judgment, on the evidence led at trial the consideration of this factor would not have altered the outcome. On the evidence, Justice Kukurin found Jocelyn to be entitled to child support and in reviewing the evidence, I see no palpable and overriding error by the trial judge in this finding of fact.

[ 16 ] With respect to the disclosure issue, the learned trial judge was very much aware that this was a difficulty in this case. In identifying the complicating aspects that prolonged this case, at paragraph 17(e) he states: “...there were difficulties with production of information and documentation in the litigation context for a number of reasons.”

[ 17 ] As to the suggestion that Ms. Turner did not follow paragraph 6 and 7 of Justice Wolder’s order and that Justice Kukurin erred in not considering this, my view is that even if this was specifically considered by Justice Kukurin, it would not have changed the result he arrived at.

[ 18 ] Paragraphs 6 and 7 of the order of July 13, 2005 reads as follows:

6. THIS COURT FURTHER ORDERS THAT the Applicant shall forward to the Respondent by registered mail and to the Family Responsibility Office by pre-paid post confirmation dated after April 1, 2007 and before May 31, 2007 that the child is still residing with the Applicant and that she is enrolled and attending school on a full-time basis. If the Applicant does not do so then child support as set out in paragraph 3(a), 3(b) and 3(c) herein shall terminate on May 31, 2007.

7. THIS COURT FURTHER ORDERS THAT the Applicant shall forward to the Respondent by registered mail and to the Family Responsibility Office by pre-paid post confirmation dated after November 1 st but by November 30 th of each year commencing 2007 that the child is residing with the Applicant and that she is enrolled and attending school on a full-time basis. If the Applicant does not do so then child support as set out in paragraph 3(a), 3(b) and 3(c) herein shall terminate on December 1 following the date of such default.

[ 19 ] Those paragraphs provide that Ms. Turner notify Mr. Ansell by registered mail of Jocelyn’s residence and that she is enrolled and attending school on a full-time basis. The paragraphs provide for an automatic termination of child support on default.

[ 20 ] The evidence of Ms. Turner was that she provided notice to Mr. Ansell but not by registered mail as the order specifically provides. It is unreasonable for Mr. Ansell to expect that his child support obligation to a child with Asperger’s Syndrome, depression, borderline personality disorder and substance abuse disorder would terminate on the technicality of whether disclosure was sent by registered mail as opposed to regular mail.

[ 21 ] Even if disclosure of whether Jocelyn was enrolled in school was not provided and particulars of her education had not been provided at all, this would not have changed the result. On the evidence before him, the learned trial judge found as a fact that Jocelyn was enrolled in a full-time program of education and entitled to support during the requisite period of time. It would be a different situation if there was found to be gaps in time in Jocelyn’s education and due to non-disclosure the mother was collecting child support she was not entitled to, but that is not the case we have here. The fact is that on his income the appellant underpaid child support for a substantial period of time for a child who was entitled to receive it.

[ 22 ] On the disclosure issue, the appellant suggests that the learned trial judge shifted the onus to him to establish the income and expenses rather than placing the onus on the mother to provide that information in order that a s. 3(2)(b) analysis could be conducted under Child Support Guideline legislation. There is a distinction to be made between the obligation of a party to provide disclosure and the burden of proof required to prove a case on a balance of probabilities. The mother was not asking that s. 3(2)(b) of the guideline legislation apply. She was asking that the guideline grid apply to Jocelyn and that Mr. Ansell pay guideline amount on the grid based on the income of Mr. Ansell pursuant to s. 3(2)(a) of the Child Support Guidelines legislation. If the father took the position that Jocelyn did not need the support based on her income and expenses which were attributed to her then the father had the onus of establishing this at trial. If this was his basis to suggest that child support not be paid, then it was his responsibility to prove it. If the father was not satisfied with the disclosure he received from Ms. Turner to conduct a s. 3(2)(b) analysis under the guidelines, then there were avenues available to him to correct the deficiencies in the disclosure provided by Ms. Turner. The trial judge eludes to this in paragraph 103 of his Reasons. If Mr. Ansell was not satisfied with the financial information that was forthcoming from Ms. Turner with respect to Jocelyn’s income or the expenses associated with Jocelyn, Mr. Ansell could have brought a motion for the information, a motion to add Jocelyn as a party to these proceedings or requested to examine her for discovery. Although these courses of actions were threatened and at times motions were brought for such relief, this was not pursued by Mr. Ansell. The appellant cannot complain that Ms. Turner did not provide the information required for a s. 3(2)(b) analysis when it was he that sought the application of that section and was dissatisfied with the disclosure of information but did nothing to rectify the situation. It was Ms. Turner’s obligation to provide disclosure but it was Mr. Ansell’s burden to prove his case.

[ 23 ] In my view, the learned trial judge did not shift the onus. In paragraph 92 of his Reasons for Judgment, the learned trial judge is referring to the burden of proof and the onus on the father to prove the facts required for a s. 3(2)(b) analysis if he is relying on that section of the Child Support Guidelines to argue that Jocelyn does not require financial support from him. When Kukurin, J. states “It is the father, who, as the person seeking a change (i.e.) termination, must present the evidence as to those needs and that they are fully met without his financial support.” Kukurin, J. is properly identifying that the burden to prove his case is on Mr. Ansell. It was Ms. Turner’s responsibility to provide disclosure and Mr. Ansell’s right to take the steps required to obtain what he felt was relevant and that he did not have. If Mr. Ansell wanted the court to engage in a s. 3(2)(b) analysis under the Child Support Guidelines , it was his responsibility to have before the court the evidence to enable the court to conduct that analysis and apply that section. Mr. Ansell was asking the court to apply s. 3(2)(b) not Ms. Turner and as such, it was his onus to elicit the evidence to convince the court that a s. 3(2)(b) analysis indicated that a child support order for Jocelyn was not warranted. This was recognized by the learned trial judge in his Reasons and in doing so he did not err in law.

[ 24 ] With respect to the disability payments received by Jocelyn after her 18 th birthday, the appellant submits that the trial judge failed to consider the disability payments as income to Jocelyn in determining child support. In his Reasons for Judgment, the learned trial judge was not oblivious to the fact that Jocelyn was receiving O.D.S.P. disability payments. On the contrary, his Reasons indicate that he was very mindful of this. In paragraph 91 of his Reasons, Justice Kukurin states: “There seems to be no disagreement that Jocelyn’s O.D.S.P. benefits are $762.00 per month. Her entitlement to this “pension” was made notwithstanding that she was residing with her mother.”

[ 25 ] The learned trial judge was also mindful of the line of cases that hold that disability incomes received by a child over the age of majority are to be considered as income of the child in determining the child support. Justice Kukurin specifically refers to the case of Cossette v. Cossette , 2003 2086 (ON SC) in paragraph 88 of his Reasons and to the case of Liscio v. Avram , 2009 43190 (ON SC) in paragraph 89 of his Reasons. Justice Kukurin clearly understood that O.D.S.P. payments received by the child were to be considered income of the child. As Justice Kukurin states in the last line of paragraph 88 of his Reasons in considering the Cossette v. Cossette case – “...the court very clearly took the O.D.S.P. benefits into consideration as means of the child.”

[ 26 ] The O.D.S.P. benefits received by Jocelyn would be considered in a s. 3(2)(b) analysis under the Child Support Guidelines . It would be part of the consideration of “the means of the child” as expressed in that section. The O.D.S.P. benefits would not be a factor to be considered in applying s. 3(2)(a) of the Guidelines legislation. Section 3(2) of the Child Support Guideline legislation indicates as follows:

Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 to be 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.

[ 27 ] It is in the discretion of the trial judge whether s. 3(2)(a) or s. 3(2)(b) will be applied in the case of a child over the age of majority who is entitled to child support. The learned trial judge gave extensive reasons as to why he was exercising his discretion in applying s. 3(2)(a) of the guidelines. Paragraphs 90 to 101 inclusive of Justice Kukurin’s Reasons for Judgment read as follows:

In the present case, the major problem with the application of section 3(2)(b) Child Support Guidelines to the father’s claim for termination is the lack of evidence with respect to:

(a) the needs of the child;

(b) condition of the child;

(c) other circumstances of the child;

(d) financial ability of the mother to contribute to the support of the child.

There seems to be no disagreement that Jocelyn’s ODSP benefits are $762 per month. Her entitlement to this “pension” was made notwithstanding that she was residing with her mother.

What is unknown are the financial needs of Jocelyn. For the father to say she gets $762 per month that she never got before, therefore she doesn’t need the $800 that he pays every month, is completely inadequate. This is opinion or conclusion. It does not allow the court to take into consideration, on any reasonable basis, the child’s actual needs. It is the father who, as the person seeking a change (i.e. termination), must present the evidence as to those needs and that they are fully met without his financial support.

The condition and other circumstances of Jocelyn are also relatively unknown. There is some dispute between the mother and father as to her condition. In that regard, I prefer the mother’s evidence which is supported by information from various professionals. These satisfy me that Jocelyn’s condition includes:

• learning disabilities;

• communication problems;

• difficulties in socializing;

• Aspergers Syndrome, on the Autistic Spectrum;

• Depression (diagnosed);

• Borderline Personality Disorder (diagnosed);

• Substance Abuse Disorder (diagnosed).

She is very clearly a special needs child.

There is sufficient evidence that Jocelyn is involved with horses as a therapeutic activity. The acquisition, care and management of these horses on her mother’s property entails numerous expenses. These are mentioned but not quantified for any particular period. This is an appropriate consideration with respect to Jocelyn’s needs having regard to her condition. Unfortunately, the quantification of any expenses related to those animals is not available through the evidence. The father does not argue that this is an inappropriate need or that the related expenses are inappropriate.

There are also Jocelyn’s circumstances. She has been a full-time student, most recently at the college level. This entails expenses for tuition, books, school fees, et cetera that are normal for most college students. For Jocelyn, who is a considerable distance from normal in most respects, there are additional expenses that fall within the consideration of her educational needs.

The end result of applying section 3(2)(b) CSG is that I cannot, having regard to the mandatory considerations under this subsection, conclude that the approach under section 3(2)(a) is inappropriate. I do not have the evidence to come up with an amount of child support that I would consider appropriate in applying section 3(2)(b).

I cannot determine what amount the mother spends of her own resources that would be attributable to meeting Jocelyn’s needs. It is evident that she does spend some amounts and that these are significant.

I also would have difficulty arriving at a conclusion that the father should, at a current annual income level of $100,000, pay nothing by way of child support for his daughter Jocelyn who is still pursuing a legitimate course of studies.

I do sympathize to some extent with the father who has been frustrated by the lack of information forthcoming from the mother with respect to Jocelyn. However, I also sympathize with the mother who has a difficult child who, sometimes capriciously, has cut off the mother’s ability to obtain information about her.

In summary, the father has not provided the evidence to enable the court to arrive at an appropriate amount of paternal child support by applying section 3(2)(b) CSG – and certainly not to extinguish his obligation entirely.

Accordingly, section 3(2)(a) will apply. He will pay table amount of support, as I have indicated, based on his annual income. His claim to vary the special expenses is dismissed.

[ 28 ] On the evidence he had before him, I am not persuaded that the learned trial judge erred in exercising his discretion in applying s. 3(2)(a) of the Guidelines and ordering grid amount for Jocelyn’s support. What was his alternative? It was not reasonable to expect the trial judge to dismiss the claim for support based on an inability to apply s. 3(2)(b) of the Guidelines to deny support for Jocelyn when there was a finding of fact that she was enrolled in a full-time program of education and clearly entitled to child support. In the exercise of his discretion, the learned trial judge is entitled to considerable deference and an appellate court should only interfere with this if there is a palpable and overriding error which I cannot find on the evidence in this case.

[ 29 ] It has no benefit to place the blame for the lack of evidence as to the child’s condition, means and needs on either the father or the mother. The simple fact is that Justice Kukurin did not have this evidence before him and he had no alternative other than to apply s. 3(2)(a) of the Guidelines on the evidence before him. I suppose Justice Kukurin could have granted the father’s request and ordered no child support but such an order would have been a gross injustice to Jocelyn, who, with extreme challenges, is doing the best she can to continue with her post-secondary school education. The support is Jocelyn’s support and she is clearly entitled to it on the findings made by the trial judge, such findings fully supported by the evidence.

[ 30 ] With respect to the issue of the s. 7 expenses, I find no merit in the appellant’s suggestion that income should have been imputed to Ms. Turner or that the learned trial judge should have placed weight on the separation agreement executed by the parties.

[ 31 ] The order of Justice Wolder dated June 13, 2005 provided that Mr. Ansell pay $100.00 per month toward Jocelyn’s s. 7 expenses without the requirement of Ms. Turner to provide an accounting. Considering Jocelyn’s special needs and the income of Mr. Ansell, this contribution is likely minimal. Mr. Ansell’s claim to terminate this payment for extraordinary expenses was dismissed by the learned trial judge on the basis that he failed to meet the evidentiary burden establishing a material change in circumstances which would permit a review of this provision. Justice Kukurin deals with the father’s request to terminate the s. 7 payment extensively in his Reasons for Judgment from paragraphs 64 to 72. I see no basis to conclude that the learned trial judge erred in concluding that Mr. Ansell had not established a material change in circumstances.

[ 32 ] With a finding that a material change in circumstances had not been established, there was no reason for the learned trial judge to go further. That finding ended the matter. There was no reason for Justice Kukurin to consider imputing income to Ms. Turner or to consider the provisions of the separation agreement dated March 1, 2002 entered into by the parties after he found that no material change in circumstances permitting a review of the s. 7 payment had been established.

[ 33 ] Kukurin, J. is a very experienced trial judge. His exercise of discretion and finding of facts should be given deference. I can find no palpable and overriding error which would cause me to disturb the finding of facts arrived at by the learned trial judge. In addition, I cannot find that the learned trial judge misapprehended the facts or misapplied the law in arriving at his decision as set out in his Reasons for Judgment which were cogent and complete.

[ 34 ] Accordingly, the appeal by Mr. Ansell from the judgment of Kukurin, J. released on May 16, 2011 is dismissed. In the circumstances, the appeal will be dismissed without costs.

[ 35 ] There are monies being held by the Family Responsibility Office pursuant to court order. These are monies collected from Mr. Ansell pursuant to the orders of support with respect to the child Jocelyn Ansell born April 1, 1989. Mr. Ansell requested that if his appeal were granted, I order the release of these funds to him. On the other hand, Ms. Turner requested that if I dismissed the appeal, I order the release of these funds held by F.R.O. to her. Mr. Ansell does not make this request in his notice of appeal dated June 13, 2010 and Ms. Turner has not cross-appealed. These funds are held pursuant to an order made in the Ontario court of Justice on June 17, 2010 by Kukurin, J. An appeal of that order is not before this court and in my view, the jurisdiction to alter that order now that the appeal has been heard, lies with the court that made that order, the Ontario Court of Justice and not with this court sitting in appeal of the May 16, 2011 order. Accordingly, if Ms. Turner wishes to deal with the order of June 17, 2010 by request that the funds held by the Family Responsibility Office be paid out to her, she will have to do so by way of motion to the Ontario Court of Justice.

Justice E. Gareau

Released: May 4, 2012

COURT FILE NO.: 2202/11
DATE: 2012-05-04

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LEE-ANN TURNER (aka) LEE-ANN ANSELL Applicant – and – DANIEL TERRANCE ANSELL Respondent REASONS ON APPEAL

Justice E. Gareau

Released: May 4, 2012