COURT FILE AND PARTIES

COURT FILE NO.: FS-10-17103
DATE: 20121121
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JASON VIVIAN, Applicant

AND:

NICOLE COURTNEY and JAMIE COURTNEY, Respondents

BEFORE: PENNY J.

COUNSEL: Michael Tweyman and Gary Joseph for the Applicant

Robert Shawyer and Andrew Sudano for the Respondent Nicole Courtney

Ian R. Mang and Shelley M. Kierstead for the Respondent Jamie Courtney

Martha McCarthy and Sarah Young for the Intervenor Family Alliance Ontario

HEARD: September 11 and 12, 2012

REASONS ON APPEAL

[ 1 ] This is an appeal from the judgment of Curtis J. of the Ontario Court of Justice dated November 17, 2010. Curtis J. awarded the respondent mother child support in varying amounts based on the father’s income retroactive to January 1, 2006. Their child, Jamie Alexandra Courtney, was 19 years old at the time the judgment was rendered.

[ 2 ] There are two basic issues raised on appeal. First, there is an appeal on the merits. The appellant father has raised five grounds of appeal on the merits.

[ 3 ] Second, there is a constitutional issue. The respondents and the intervenor argue that s. 31 of the Family Law Act discriminates against adult disabled children of unmarried parents on the basis of parental marital status, disability and sex, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. The respondent Jamie also argues that s. 31 of the FLA is contrary to s. 7 of the Charter.

Background

[ 4 ] The parents lived together from September 1988 to January 1993. The parents were not married to each other. There is one child of this relationship, Jamie, who is now 21 years of age.

[ 5 ] Jamie suffers from a rare inherited genetic disease, Schimke Immunosseus Dyspasia (SID). SID is characterized by abnormal growth, immunodeficiency and progressive renal failure. Jamie also has severe valvular heart disease. Children with SID rarely survive past age 20. Jamie has so far beaten the odds. Nevertheless, she is required to attend at the hospital six days per week for dialysis and has been in and out of hospital for various medical reasons for a good deal of her life.

[ 6 ] As Dr. James Downer, one of Jamie’s physicians, put it, “The fact that Ms. Courtney is alive and able to live at home is a testament to her spirit, as well as the dedication, advocacy and hard work of her mother. Parents of children of such chronic debilitating and ultimately fatal illnesses are performing a job that would occupy 4 or 5 employees in a long-term care facility.”

[ 7 ] As a disabled adult, Jamie receives $1,185 per month through the Ontario Disability Support Program (ODSP).

[ 8 ] The appellant father’s position is that “it is part of the provincial government’s policy that the social safety net, including social services, are intended to be the primary mode of financial support for adult children that are disabled.” His position is that the medical issues are essentially irrelevant and that the only issue is whether Jamie is enrolled in school full time in accordance with s. 31 of the FLA.

1. The Appeal on the Merits

[ 9 ] This matter came before Curtis J. by way of the appellant father’s motion to change the child support order of Nevins J. made in March 2000. The father asked for the termination of child support as of March 11, 2009 on the basis that Jamie had, on that day, turned 18 years old and was not in full-time school. The father also sought a return of overpayments of child support made after March 11, 2009 and that any arrears owing be reduced to zero.

[ 10 ] The mother’s response asked for the dismissal of the father’s motion, that child support continue because the child was dependent due to her illness and attendance at school, that the child be covered under the father’s benefit plan and to adjust child support to the proper Table amounts consistent with the father’s incomes from January 1, 2005 forward.

[ 11 ] The matter was heard on August 10, 2010 as an application. There were no cross examinations on the affidavits filed. Neither party asked to delay the hearing to conduct cross examination or to obtain additional disclosure. No request was made by either party for a trial. The father was represented by counsel. The mother was not.

[ 12 ] Curtis J. found that Jamie was enrolled in a full-time program of education and doing studies with a Toronto Board of Education certified teacher at the Hospital for Sick Children from March 2009 until January 2010 (when Jamie’s enrollment was cancelled because the mother’s phone was disconnected). Curtis J. also found that by the time the motion to change was heard in August 2010, Jamie was enrolled as a student with the Independent Learning Center, registered in grade 10 “Foundations of Mathematics.”

[ 13 ] The motions judge held (at para. 42):

What will be full-time for some children will be influenced by their ability to participate. For Jamie, enrollment through the Independent Learning Center is a full-time program of education. In her circumstances, this is what she can manage. For Jamie, this is a full-time program of education under s. 31(1) of the FLA, and Jamie is entitled to child support.

[ 14 ] The motions judge found that Jamie was enrolled in a full-time program of education when the father started his motion to change in June 2009 and when the mother filed her claim for retroactive child support in October 2009. On this basis, she found that a retroactive award of child support was available to the mother.

[ 15 ] Curtis J. found that the father had engaged in blameworthy conduct by failing to disclose changes in his income (particularly in 2006 – his highest year of income) and in not adjusting child support according to his income. She found that the father understood, or should have understood, that he was under-paying child support and did nothing. Accordingly, she found that he intentionally preferred his own interests over Jamie's interest and her right to an appropriate amount of support.

[ 16 ] Having found that the father engaged in blameworthy conduct, the motions judge went on to find that the start date for support should be the date upon which increased support should have been paid. She held at paragraph 96:

The presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. The payor parent cannot use his informational advantage to justify his deficient child support payments: DBS, para. 124.

[ 17 ] Accordingly, the trial judge also found that the court could make a retroactive child support award for a period longer than the presumptive three years set out in DBS where there is a finding of blameworthy conduct by the payor. She concluded that a fair and appropriate start date for the adjustments to child support in this case was January 1, 2006.

(Decision continues exactly as in the source text through paragraph [84], concluding with:)

PENNY J.

Date: November 21, 2012