COURT FILE NO.: FS-12-47-01
DATE: 2013/12/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISE ROBERT
Self-Represented
Applicant
- and -
MICHAEL GOODWIN
Self-Represented
Respondent
HEARD: November 18, 2013
The Hon. Mr. Justice J. C. Kent
REASONS FOR JUDGMENT
Background:
[1] This matter initially came before the court as a motion brought by the respondent to change the final divorce order made by the Hon. Madam Justice C. Lafreniere on May 10, 2010. A series of motions followed the initial motion and, in time, it became very clear that certain issues could not be decided on the conflicting affidavit evidence and submissions made to the court on the various motions. Accordingly, a trial date was set for the court to hear evidence on the remaining outstanding issues. The parties are in agreement that the outstanding issues are as follows:
What order should be made concerning the airmiles accumulated by the parties during their marriage?
Did Lise Robert receive two payments of $600 each made directly to her by the respondent Michael Goodwin and, if so, has he received credit for those payments?
Is any further adjustment needed for the child support order for the child of the marriage, Jacob Lawrence Goodwin born 7 June, 1994 whose support order was terminated as of 1 February, 2013 without prejudice to the father’s rights to seek an earlier termination date?
Should support for the child of the marriage Steven Earl Goodwin born 7 June, 1994 be reduced or terminated?
Airmiles:
[2] It appears from the evidence that at the time of their divorce the parties had accumulated 7,892 air miles. In the divorce order of Madam Justice Lafreniere made May 10, 2010 at paragraph 7 it was ordered that the respondent Michael Goodwin would receive any air miles accumulated by the parties during the marriage. The applicant, Lise Goodwin was ordered to co-operate as required and provide her consent to obtain a statement as of the date of separation.
[3] Michael Goodwin takes the position that the order should be interpreted as having required Lise Robert to initiate the procedure to have all of the air miles transferred to his name solely. Lise Robert takes the position that she followed the advice of her counsel at the time that that was not the correct interpretation of paragraph 7 of the order and that her obligation to co-operate only crystalized once Michael Goodwin provided her with the necessary documentation to effect the transfer.
[4] The issue as to the correct interpretation of the order ultimately became moot. Apparently, a substantial number of air miles were subject to a “clawback” due to the parties not following the terms and conditions of BMO MasterCard. Lise Robert explained to the court that that followed the bankruptcy of both parties. See email photocopies Exhibit 1.
[5] In any event, it seems clear that a transfer would be of no benefit. Lise Robert produced an email from Airmiles Customer Care dated 5 October 2011. The email indicates that the cost of transferring the remaining 3,680 miles would be $552, an amount greater than the value of 3,680 miles.
[6] The issue having become moot, no order will be made.
Two Payments of $600.00 Each:
[7] Michael Goodwin maintains that he made a support payment to Lise Robert in the amount of $600.00 on the third day of June, 2011. He produced the cancelled cheque for the court and it appears to have been endorsed by Lise Robert.
[8] Similarly Michael Goodwin testified that he made a further payment by cheque to Lise Robert in the amount of $600.00 on the 1st day of July 2011. Again, he produced the cancelled cheque which appears to have been endorsed by Lise Robert. Lise Robert testified that she has never disputed that she received these amounts. Mr. Goodwin indicates that he made those payments to Lise Robert for the months of June and July 2011 at a time when his income had increased and she was requesting an increase in the child support payable by him. The remaining issue as far as Lise Robert is concerned is whether Michael Goodwin may have already received credit with the Family Responsibility Office for the two $600.00 payments. The court has now had an opportunity to receive and review all statements produced for the parties by the Family Responsibility Office. It does not appear on the only evidence available to the court that Michael Goodwin has ever received credit for either of those $600.00 payments made directly to Lise Robert.
[9] An order will go, accordingly, requiring the Family Responsibility Office to reduce Michael Goodwin’s outstanding arrears of child support by a total of $1,200.
Child Support for Jacob:
[10] We know child support for Jacob Lawrence Goodwin born 7 June 1994 was terminated pursuant to the order of the Honourable Mr. Justice Taliano on 9 May 2013 effective February 1st, 2013 “without prejudice to the father’s rights to seek termination earlier once school records are produced.” School records were produced and Exhibit 2 is a letter from Paris District High School which indicates that Jacob was registered as a full-time student at Paris District High School from 2 September 2008 until he “retired from PDHS” on February 4, 2013. Michael Goodwin points out that Jacob’s report card at page 34 of his brief appears to indicate that Jacob was only a part-time student for the semester September 2012 to February 2013. In addition, Michael Goodwin asks the court to consider that according to the notice of assessment Jacob received from Canada Revenue Agency, found at page 33 of Michael Goodwin’s brief, Jacob earned $8, 990 in 2012. He asks, therefore, that his support obligation for that time frame be retroactively decreased.
[11] Lise Robert explained to the court that she consented to the order made by Justice Taliano on 9 May 2013 because she no longer wished to fight the issue of whether Jacob was in school part-time or full time. She presented the report with Exhibit 3 which is a copy of an Ontario Student Transcript for Jacob indicating that he obtained 2 credits in the semester that concluded in February 2013 but that he obtained an additional 2 credits in the semester that concluded at 30 June 2013. Those last 2 credits, she explained, were obtained by Jacob as a result of completing his co-op program. She suggests that the court consider that Jacob was in school part time from September to February and again part-time, although completing a “co-op program” in the February to June 2013 semester and that no retroactive variation for the support for Jacob, therefore, needs to be made.
[12] While the court finds the simplicity and common sense of Ms. Robert’s submission persuasive, that is obtaining credits in 2 part-time semesters as equivalent to obtaining 4 credits in 1 semester, the fact is in neither semester was Jacob engaged in a full-time program of education.
[13] It is possible for a child to be found to be enrolled in a full-time program of education while taking less than a full course load. But, when neither the attendance nor the enrolment amount to a full-time program, full support cannot be expected or ordered. When one combines that with the fact that Jacob was earning money in 2012 and also while completing his co-op credits in 2013 it is just not possible to find that full guideline support was payable for either semester.
[14] Michael Goodwin’s submission that he should receive a credit or decrease in his arrears of 5 months from September 2012 to January 2013 inclusive is in keeping with the facts and an amount equal to 2 ½ months support paid for Jacob should be credited to Michael Goodwin. The Family Responsibility Office is, therefore, ordered to make the necessary calculation and reduce Michael Goodwin’s child support arrears accordingly.
Support for Steven Earl Goodwin Born 7 June 1994:
[15] The initial issue here was a determination of whether or not Steven Earl Goodwin was registered as a full-time student during the academic year that concluded 30 June 2013. The parties appeared before the court on the 31 May 2013 at which time Lise Robert was given until 7 June 2013 to provide written confirmation that Steven was in fact registered as a full-time student. She obtained that confirmation and filed it with the court. Michael Goodwin’s obligation to pay child support for Steven was then adjusted to $467.00 per month effective 1 March 2013 based upon his 2012 income of $50,542. The Family Responsibility Office was directed to adjust accordingly and according to the schedules contained in the materials the adjustment was made.
[16] Michael Goodwin points out that when one reviews all of Steven’s school records it is clear that he has been irregular in his attendance at Toll Gate Technological Skill Centre in the academic year ending June 30. For the academic year that commenced September 4, Steven has been registered at Blossom Park Adult Educational Centre in Woodstock, Ontario and participates in the Gateway to Learning Program. At Blossom Park Steven is in a supervised self-directed learning class based upon an Individual Learning Plan. The supervisor at Blossom Park states that Steven is “upgrading in his skills in math and English for the purpose of entering credit classes.” Steven attends at Blossom Park on only a part-time basis, Tuesday and Thursday mornings. For the remainder of his program Steven is supposed to work on his own, either at home or at Blossom Park, according to his mother.
[17] Michael Goodwin believes that if Steven had attended Tollgate and did attend Blossom Park on a more regular basis and apply himself he would, in time, be able to obtain his grade 12 credits. Michael Goodwin is very critical of Lise Robert. He is of the view that she should have forced Steven to attend school more regularly and better apply himself. Lise Robert, who is the custodial parent, believes that neither the Tollgate nor the Blossom Park programs were providing Steven with any significant educational gains. She believes that Steven has a learning disability and a communications disorder. She questions his ability to read and write at a meaningful level. She does not believe that he will ever be able to obtain all of his grade 12 credits. She reports that Steven is very frustrated with his lack of progress and advised the court that at one point with the various matters troubling him he was hospitalized and kept on a suicide watch. She observed that Steven’s attitude took a downturn approximately 18 months before trial and attributes that to his disability combined with some physical ailments including testicular cancer from which he has, thankfully at this point, been given an “all-clear”.
[18] On a more positive note we do know that with some assistance from his brother Jacob and others Steven was able to ultimately obtain a driver’s licence.
[19] There is no current expert evidence to enable this court to make a finding as to the extent, if any, of Steven’s learning or learning-related disabilities.
[20] A psychological assessment report dated 10 March 2004 made by Karen Ferguson M.A. is found in Lise Robert’s brief. It is one of a number of assessments available to the court. Ms. Ferguson reported as follows:
“Steven’s overall intellectual functioning is in the low end of Average Range, with specific strengths in processing speed. His verbal and nonverbal reasoning abilities are in the high end of the Low Average Range. His receptive language is average and is significantly better than his expressive language. Academically, Steven’s performance in all subject areas was well below average, particularly in reading and written expression. Overall, there is a significant gap between his average cognitive abilities and achievement in language arts. This is despite several years of special education support in language arts at school. Therefore, results are consistent with a diagnosis of a specific learning disability in reading and writing. Results of this assessment support the areas of need identified in his Individual Education Plan.”
[21] A further psycho-educational report dated 16 January 2007 was also available to the court. The report was submitted by Piyali Bagchee M.A., a psychological associate with the Grand Erie District School Board. It states:
“The Verbal Comprehension Index (VCI) is comprised of three subtests: Similarities, Vocabulary and Comprehension. These subtests measure thinking with words and applying verbal skills to problem-solving and reasoning. The VCI fell in the Extremely Low range, at the 2nd percentile compared to same-aged peers. These results should be interpreted with caution because Steven performed much better on one of the verbal tasks compared to the two others. On the Similarities and Vocabulary subtests, Steven scored respectively at the 1st and 2nd percentile compared to his peers. These results suggest that Steven’s word knowledge and verbal abstract reasoning are weak for his age. Steven was much stronger, however, on the Comprehension task (16th percentile) which measures the ability to use language to demonstrate an understanding of concepts.”
“The Working Memory Index (WMI) measures a student’s ability to hold information, perform some activity (and/or manipulate the information) and produce a result. The WMI consists of the Digit Span and Letter-Number Sequencing subtests. Performance on the WMI was within the Borderline range at the 6th percentile compared to same aged peers. An inconsistent pattern of effort was noted during the completion of both of the Working Memory tasks. For example, Steven did not respond to some items or stated, “I don’t know,” but would then attempt other more challenging items.”
[22] As was noted the assessments from which the above quotations were taken are dated and Steven’s current circumstances may have varied significantly since 2004 and 2007. From Lise Robert’s evidence, the court learned that an application has been made on Steven’s behalf for public assistance under the Ontario Disability Support Plan Act (ODSP) 1997 S.O. c. 25. Upon receiving that information from Lise Robert, the court advised the parties that some time would be needed to review the applicable law.
[23] The ODSP Act provides in s. I that the purpose of the Act is to establish a program that:
(a) provides income and employment supports to eligible persons with disabilities;
(b) recognizes that government, communities, families and individuals share responsibility for providing such supports;
(c) effectively serves persons with disabilities who need assistance; and
(d) is accountable to the taxpayers of Ontario.
[24] In order to qualify the person must suffer from a “substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more,” and “the direct and cumulative effect of the impairment on the person’s ability to attend to personal care, function in the community and function in a workplace results in a substantial restriction in one or more of these activities of daily living.” (s. 4. ODSP Act)
[25] The ODSP Act recognizes that families “share responsibility” for supporting disabled persons.
[26] The ODSP Act does not automatically create a primary obligation on the state to attend on the basic needs of a disabled adult child of the marriage when there exists a parent who is financial capable of doing so. There are cases such as Harrington v. Harrington (1981) 1981 ONCA 1762, 22 R.F.L. (2d), 40 a decision of the Ontario Court of Appeal, however, that would tell us that it is not unreasonable, depending on a parent’s ability to pay, to consider his or her obligation to be of a residual nature.
[27] The Divorce Act requires parents to continue to support adult disabled children when they earn the income to do so. The ODSP Act contemplates that these responsibilities are shared by the family of the disabled adult and the community as a whole.
[28] Having regard to the foregoing statute and case law, it would now seem highly inappropriate to terminate Michael Goodwin’s obligation to pay child support for Steven. We do not know at this point what the results of Steven’s application for ODSP assistance may be. In all likelihood, a further hearing day may be required in order that a final decision and order can be made. In the interim, the support for Steven will need to be continued.
[29] Lise Robert is directed to advise the court immediately upon a decision having been made on Steven’s ODSP application. Once that decision has been reported to the court the parties will be directed further as to a next step in the consideration of the issue of whether child support should continue for Steven. In the meantime, neither party is to make any fresh application or motion to the court without leave of a judge of this court.
Kent, J.
Released: 5 December, 2013
COURT FILE NO.: FS-12-47-01
DATE: 2013/12/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISE ROBERT
Applicant
- and -
MICHAEL GOODWIN
Respondent
REASONS FOR JUDGMENT
KENT, J.
Released: 5 December, 2013