SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-00-1558-3

DATE: 2013/07/30

RE: GUIYING APRIL ZHANG, Applicant

AND

JOHN WYNFORD JONES, Respondent

BEFORE: M. Linhares de Sousa J.

COUNSEL:
Earl A. Atnikov, counsel for the Applicant

Wade L. Smith, counsel for the Respondent

HEARD: June 24, 2013

ENDORSEMENT

[1] The moving party, John Wynford Jones, brings the motion before the court seeking an order terminating his obligation to pay child support for his son, Christopher Yuping Jones, born July 25, 1991. Christopher is now 22 years old. Mr. Jones also asks that his child support obligations be terminated as of October, 2010, when Mr. Jones alleges that his son effectively terminated his school studies without his knowledge. Mr. Jones also asks that any overpayment of child support paid by him since that time be returned to him by the Respondent to the motion, Guiying April Zhang.

[2] Ms. Zhang brings a countermotion seeking an order for arrears of child support for her son, Christopher, based on increased income received by Mr. Jones for the years 2008 to the present since the original order of child support and not reported by him. Ms. Zhang also asks that child support continue because her son has continually been in school since his high school graduation, except for a four month period acknowledged by her. Ms. Zhang also acknowledges that her son’s university studies were not successful because he was suffering from depression and anxiety. However, he is now actively pursuing his college education and remains a child of the marriage. She seeks ongoing child support for Christopher as well as Mr. Jones’ proportionate contribution for Christopher’s s. 7 expenses for his college studies.

[3] After examining all of the evidence and considering the arguments of counsel I am persuaded that Mr. Jones’ obligation to pay child support for his son Christopher should terminate immediately. I am also persuaded that there should be neither an order for arrears of child support based on Mr. Jones’ increased income nor should there be a return of any overpayment to Mr. Jones in this matter. My reasons for this conclusion are as follows.

[4] The original order for child support was granted by Morin J. on December 5, 2001. Under that order Mr. Jones was obligated to pay for the support of Christopher $892 per month, inclusive of his proportionate share of his son’s extraordinary expenses. The child support order was based on Mr. Jones’ annual income at the time of $96,576. Ms. Zhang’s income at the time was $51,138.

[5] In 2007, Mr. Jones moved to Australia. Mr. Jones has continued to pay $892 per month in child support to the present without any variation despite the fact that since the date of the original order of Morin J. dated December 5, 2001, Mr. Jones’ income has increased. Ms. Zhang’s income has also increased substantially since the order of Morin J. On the evidence there appeared to be some conflict between the parties as to the exact amount of Mr. Jones’ earnings given the difference in the Australian tax year from that of the Canadian one and in the exchange rate in the currency of the two countries. However, based on the best evidence before the court which are Mr. Jones’ Australian notices of tax assessment, I find his annual income in Canadian dollars for support purposes to be as follows:

• 2009 $134,868

• 2010 $130,075

• 2011 $170,032

• 2012 $190,374

• 2013 $145,325

[6] There is no question that if Mr. Jones were to be found to be obligated to pay child support during those years, based on the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”] he would have underpaid his obligated child support and he acknowledges this. Mr. Jones has provided a calculation of the underpayment from 2009 to 2010 to be approximately $11,961, if his proposed date of termination is accepted, and $26,121 if his proposed date of termination is not accepted.

[7] In 2009, Christopher graduated from high school and in September, 2009, commenced a course of studies at the University of Ottawa. Ms. Zhang without notice to Mr. Jones brought an interjurisdictional proceeding against Mr. Jones and obtained a provisional order, dated February 8, 2010, increasing the child support based on an imputed annual income of $140,000 to Mr. Jones. When the matter came before the Australian court for confirmation and enforcement, on August 6, 2010, the matter was sent back to the Canadian courts for further evidence. Mr. Jones raised the issue of whether Christopher was indeed pursuing his studies and living with his mother, having received information from Ms. Zhang some time in October of 2011 that Christopher had moved into his own apartment but which she did not anticipate would be permanent.

[8] It is the position of Mr. Jones that after graduating from high school Christopher has not seriously and actively applied himself to his studies at the University of Ottawa. According to Mr. Jones, Christopher eventually terminated his University studies in the fall of 2010 and he was not informed of this fact. This was followed by a period of time working on a full-time basis. Furthermore, Mr. Jones argues, his son has not in any way consulted him with respect to his studies and his financial needs concerning his studies. In fact, despite Mr. Jones’ efforts to continue to communicate directly with his son, Christopher has closed down all means of contact with him. It is the opinion of Mr. Jones that Christopher’s recent enrolment at Algonquin College in January of 2013 comes after a substantial break in his education. Mr. Jones opines that the motivation of his son’s recent college enrolment has more to do with his mother’s desire to continue receiving child support than his son’s genuine desire to pursue further education, as is confirmed by his son’s equally poor academic performance at Algonquin College as at the University of Ottawa.

[9] With respect to Ms. Zhang’ s assertion that Christopher has been suffering from a mental illness which has interfered with their son’s performance at school, he has only Ms. Zhang’s declaration of that, repeated by Christopher, without any medical confirmation of this fact.

[10] It is the position of Ms. Zhang that Christopher has indeed been suffering from depression and anxiety since leaving high school which she attributes to his father’s abandonment of Christopher. This has prevented Christopher from pursuing his education in any meaningful way and from being successful in his University studies. She has sought professional help for her son but he has not always been cooperative with these efforts. She has financially supported her son during this whole period.

[11] Ms. Zhang acknowledges that her son left her residence for a four month period (November, 2011 to February, 2012), sharing accommodation with friends and working at minimum wage. However, he was not able to care for himself, lost his job and she had to bring him to live with her again.

[12] Ms. Zhang submits that her son’s condition has improved and that his recent enrolment in January of 2013 at Algonquin College in a computer programming course is genuine on his part. She is furthering her efforts, by seeking a modified program next term for Christopher, to ensure that he will succeed in that college program. In her view this justifies ongoing child support.

[13] There is no question that since graduating from high school Christopher has been drifting educationally. However the reason for this is not at all clear. By all accounts Christopher is a capable and intelligent young man. The evidence showed the following.

[14] Christopher commenced a course of studies in mathematics in the fall of 2009 at the University of Ottawa. While in his first year of University studies he changed his course direction twice. In both terms, fall and winter, he did not carry a full course load and, dropped two courses. His performance in the reduced course load which he did take was very poor. He failed two courses in the fall term and failed to complete a course in the winter term even with a reduced course load. In the fall of 2010 Christopher again changed course direction, enrolled in five University courses but failed them all because he did not write his final exams. He was noted as completely absent in one of them. On his own evidence regarding that term, Christopher indicated that he just did not go to classes and that he effectively abandoned his studies in the fall of 2010. According to Christopher he was depressed and could not get out of bed. It was his evidence that he had a complete mental breakdown.

[15] During this period Christopher earned some income which can only be said to be minimal. The evidence from his income tax returns indicates that his earnings for the following years were as follows:

• 2009 $4,594 (which may be from an RESP held by his mother)

• 2010 $1,250

• 2011 $6,078 (from short term full-time employment at minimum wage)

• 2012 $2,683.30

[16] In November of 2011, Christopher moved out on his own and attempted to support himself and hold down full-time employment. This was short-lived and he lost his employment. According to Christopher this was likely due to his poor performance and his just not showing up for work. He then returned to live with his mother.

[17] Despite his alleged depression and anxiety, Christopher was never diagnosed with such a mental illness. He never consulted a psychiatrist. He has never been prescribed any medication nor has he taken any medication.

[18] He was referred to a psychologist by his family doctor who according to Christopher he saw a number of times but he could not remember the name of that psychologist. He did see another psychologist, Dr. Taylor, one time, who also saw Ms. Zhang five times. That psychologist indicated on February 7, 2013:

… Christopher has not been and still is not mature enough to be able to live independently. He has required parental support and will continue to need such support for some time to come.

[19] There is in fact little to no reliable evidence to conclude that Christopher was indeed suffering from depression during the period in question. His conduct is equally consistent with someone who for two school years, 2009-2010 and 2010-2011 just did not apply himself to his studies.

[20] In 2011, Christopher made a decision to work full time and be independent of both his parents. This too did not work out. It is not clear from the evidence how Christopher has been spending his time for most of 2012, since returning to his mother’s home in February of 2012. His earnings were minimal for that year nor did he enrol in any course of study in 2012. In August, 2012, Christopher’s Facebook page indicated that he was homeless and looking for a place to stay. Being locked out of the house for a weekend is hardly a believable explanation for that notice.

[21] In January, 2013, Christopher enrolled in Algonquin College in a computer programming course. A full course load is six courses with the program lasting some two and one half years. His application to his studies in this course and his performance in the course has not been qualitatively different from that at the University of Ottawa. Within the first month of his program he dropped two courses. He failed two courses (Changing Environment and Computer Essentials) although he intends to appeal those two failures. He received a D- in one course (Introduction to Computer Programming) and B in another (Mathematics). Christopher thinks that he might require two to three and one half years to complete his program at Algonquin College.

[22] Ms. Zhang has attributed Mr. Jones’ abandonment of her son as the cause behind her son’s condition and poor response to his post-secondary education. On the evidence, I do not find this very convincing. There is no question that Mr. Jones behaved irresponsibly in not acknowledging and realizing his greater capacity to financially support Christopher as his income increased since the time of the original order. However, the evidence does not indicate that Mr. Jones abandoned his son. In fact, Mr. Jones attempted to maintain his contact with Christopher. According to Christopher his father attempted to contact him every two to three months. When Mr. Jones came to Canada he made arrangements to see him. It was Christopher who terminated the continuing contact with his father by failing to show up at an arranged meeting with his father and ending Facebook contact with him by “defriending” his father. Christopher has not discussed his education plans with his father. Nor does he have any interest in meeting with his father or having any contact with him. In his words it was “too little, too late and I didn’t want any part of it.”

[23] In my view, in the face of these circumstances, as I have described them, Christopher has ceased being a child of the marriage within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am. Consequently, Mr. Jones’ obligation to pay child support for Christopher ought to cease and it is so ordered effective immediately.

[24] Since 2009, Christopher has been given ample and substantial opportunities to pursue his higher education. For three years he has not applied himself and has squandered his time. On the evidence I am not persuaded that Christopher has been suffering from a mental illness. Not for lack of trying on his mother’s part Christopher has also been encouraged to deal with his emotional and psychological challenges which he has refused to do in any serious way. The revealed quality of his last scholastic efforts at Algonquin College does not demonstrate any effort or resolve on his part to make any changes in his life. In his own words it is “too little, too late”. It is unrealistic of him to expect to be supported by his parents indefinitely in the face of this history.

[25] I acknowledge that children of divorced parents should not be unfairly penalized as compared to children of “intact” families. Children of “intact” families who may experience delays or unexpected stops and starts in their higher education would not necessarily expect to lose the financial support of their parents who would normally grant them a lot of grace, flexibility and time to get over those hurdles of growing up and preparing for their life’s work. Christopher, too, should be granted that flexibility and time which, in my view, he has received from the financial support of both his father and mother over the last three years. It is also for that reason, that I would not order any overpayment of child support paid by Mr. Jones since Christopher effectively gave up on his active studies in the fall of 2010 be returned to him. Furthermore, this refusal of Mr. Jones’ request for a return of any overpayment of child support roughly takes into account Mr. Jones’ underpayment of support for those years as well as his unpaid proportionate share of Christopher’s extraordinary expenses for his enrolment at the University of Ottawa. On the same reasoning I do not order any arrears of child support be paid by Mr. Jones.

[26] Finally, another reason for terminating Mr. Jones’ child support obligations at this time is that Christopher is an adult child who has withdrawn from any contact with his father. I have no doubt that Christopher will continue to be supported financially and emotionally by his mother and that he will reach some understanding with his mother for that support. On the evidence Christopher on his own initiative has completely locked his father out of his life. He has chosen not to discuss his education plans with his father nor share any information with him concerning those plans. On the facts of this case and in the face of the conflicting evidence from the parties relating to how Christopher’s relationship with his father has come to this sad state, the reasons for Christopher’s current attitude towards his father are not obvious especially in view of the fact that Christopher has had good contact with his father in the past. I am persuaded that the facts of his case are such that the principle enunciated in the case of Lampron v. Lampron 2006 16375 (ON SC), 2006 CarswellOnt 3034 (S.C.); (2006), 29 R.F.L. (6th) 307, ought to apply. Christopher’s expectation of receiving financial support from his father for his further education at this point in his life and given his past scholastic performance ought to be dependent on his having a “sensible” discussion with his father on the matter of his education.

[27] For these reasons, Mr. Jones’ motion is granted in part. His obligation to pay child support for his son is terminated immediately. Mr. Jones’ request for a return of any overpayment of child support is denied.

[28] Ms. Zhang’s countermotion for arrears of child support, inclusive of extraordinary expenses, based on Mr. Jones’ increased income since the original order of Morin J., dated December 5, 2001, is refused as is her request for ongoing child support.

[29] The parties have agreed that if any award of costs were to be made then the quantum of costs would be in the range of $3,500 to $5,000. Mr. Jones shall be given two weeks to serve and file his written submissions on costs from the date of the release of this endorsement. Ms. Zhang shall then have two weeks from that date to serve and file her written submissions on costs. Mr. Jones shall then have one week from that date to serve and file any reply he may wish to make.

M. Linhares de Sousa J.

Released: July 30, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: GUIYING APRIL ZHANG, Applicant,

AND

JOHN WYNFORD JONES, Respondent,

BEFORE: M. Linhares de Sousa J.

COUNSEL: Earl A. Atnikov, for the Plaintiff

Wade L. Smith, for the Respondent

ENDORSEMENT

M. Linhares de Sousa J.

Released: July 30, 2013