Court File and Parties

Court File No.: FC-99-59245-2 Date: 2013-12-06 Superior Court of Justice – Ontario

Between: Susan Musgrave, Applicant – and – Richard David Musgrave, Respondent

Counsel: Adriana Doyle, for the Applicant Leonard Levencrown, for the Respondent

Heard at Ottawa: October 20, 2013

Reasons for Decision

M. Linhares de Sousa J.

[1] Richard David Musgrave, brings this motion to change the order of Justice Parfett, dated April 12, 2010, and seeks an order terminating his obligation to pay child support for the two remaining children of the marriage, namely Andrew Devin Garlick Musgrave, born October 25, 1993 and Spencer David Garlick Musgrave, also born on October 25, 1993. There is a third older child of the marriage, Michael Delacey Garlick, who is not the subject of this application.

[2] Mr. Musgrave also seeks to have the termination order take effect October, 2013.

[3] Mr. Musgrave also seeks an order requiring Susan Musgrave to reimburse him for the child support payments which he has paid since October, 2012, when he claims neither child was in school.

[4] Mr. Musgrave also seeks his costs on a partial indemnity basis.

[5] Ms. Musgrave contests the motion and seeks the continued payment of child support for both Andrew and Spencer but that the monthly child support be increased to $1,997 per month to reflect Mr. Musgrave’s current annual income of $148,668 in accordance with the Federal Child Support Guidelines, S.O.R./97-175, as am. ["Guidelines"].

[6] Ms. Musgrave also seeks an order for the payment of arrears of child support to reflect that for the years 2010, 2011 and 2012 Mr. Musgrave did not pay child support in accordance with his annual income, for a total of $2,188 for those three years.

[7] Ms. Musgrave also seeks an order enforcing the existing order as follows:

(a) That Mr. Musgrave will pay his share of the children’s section 7 expenses, one month after being informed of the cost and upon receiving a copy of the receipt;

(b) That Mr. Musgrave will pay all of his unpaid Algonquin tuition and bus costs as per the order of Justice Parfett, dated April 12, 2010 in the total amount of $1,497.74;

(c) That Mr. Musgrave will pay his share of Andrew and Spencer’s Driving Education, the amount of $1,593.30 having been incurred to date;

(d) That Mr. Musgrave also pay his share of Andrew and Spencer’s portion of their car insurance;

(e) That Mr. Musgrave will maintain the children on his health and dental plans, inclusive of any extended dental/medical coverage through his employer, and any medical or dental expenses over and above that covered by both their plans will be shared by the parties in proportion to their incomes;

(f) That Mr. Musgrave will provide proof that Ms. Musgrave is the irrevocable beneficiary of 3/6 (or one half) of his basic life and optional life insurance policies, in trust for the children. I note that this would be an amendment of the order of Justice Parfett which provided that Ms. Musgrave be designated as irrevocable beneficiary of 2/5 of his basic and optional life insurance policies in trust for the children; and

(g) That Mr. Musgrave sign a consent and authorization letter for Ms. Musgrave to check on an annual basis and to have direct communication with his insurance company that Mr. Musgrave maintains his basic life insurance policy and optional life insurance in force and effect for the children.

[8] Ms. Musgrave also seeks her costs on a substantial indemnity basis.

[9] The parties were divorced by order of Justice Robertson dated February 14, 2002, which obligated Mr. Musgrave to pay child support for the children of the marriage. On a motion to change the original divorce order brought by Mr. Musgrave to terminate his child support obligations, Justice Parfett on April 12, 2010 ordered, on consent, the following:

(a) Commencing March 1, 2010, Richard Musgrave will pay to Susan Musgrave, the amount of $1,250.81 per month as child support for 2 children (Andrew and Spencer), based on a 2009 income of $87,477.89.

(b) The parties will share one third each of the children’s University College costs, including tuition, books, transportation, residence etc.

(c) Richard Musgrave will pay to Susan Musgrave $12,500 as retroactive support by May 9, 2010.

(d) Richard Musgrave will designate Susan Musgrave as irrevocable beneficiary of 2/5 of his basic life and optional life insurance policies, in trust for the children and was to provide proof of such designation within 14 days.

(e) All other terms of the order of Justice Robertson, dated February 14, 2002 to continue in full force and effect.

[10] In support of his motion, counsel for Mr. Musgrave argues, firstly, that through the conduct of the mother, all three children have been alienated from their father. According to the father he has not had any contact with neither Andrew nor Spencer since June of 2012. As a result he has no relationship with the children, being adult children.

[11] Secondly, counsel for Mr. Musgrave argues that to his knowledge neither children are in school. In fact they have not been in school for extended periods since the order of Justice Parfett in April of 2010, such that they are no longer dependent children of the marriage. Mr. Musgrave also submits that he has not received any information relating to the children’s enrolment in school or if, they have been out of school for medical reasons, what those medical reasons are. He received that information for the first time as part of the disclosure for this motion.

[12] With respect to Ms. Musgrave’s claim for retroactive child support and section 7 expenses, counsel for Mr. Musgrave submits that those claims ought to be denied. He never received notice of those expenses until after they were incurred.

[13] Counsel for Ms. Musgrave argues that Ms. Musgrave denies that she ever attempted to alienate the children from their father. According to Ms. Musgrave the children have continued to communicate with their father. I have examined the e-mails between Mr. Musgrave and his son Spencer to which I have been referred (tab 76 of volume 3 of the Continuing Record). Communication between Mr. Musgrave and Spencer do not go past 2012 and they do not reflect, as far as Spencer is concerned, a child who is alienated from his father. There is no evidence of any communication between Mr. Musgrave and his son Andrew.

[14] Ms. Musgrave concedes that both Spencer and Andrew are children with special needs and permanent disabilities. Andrew has been identified as having a learning disability as well as having a diagnosis of attention deficit disorder. Spencer has been diagnosed with a social anxiety disorder and has also suffered from a major depressive disorder. Consequently, their progress through school has been slower than other children. There have also been some medical setbacks which have interfered with the uninterrupted progress of both children’s education. Nonetheless, it is argued, this does not disqualify them as children of the marriage for which support should continue.

[15] The evidence of both parties, concerning the chronology of the children’s education and medical issues since the order of Justice Parfett in 2010, is extremely disjointed and very difficult to follow. What appears to be able to be pieced together are the following facts.

Spencer

[16] At the time of the order of Justice Parfett in 2010 Spencer had been out of school since 2008 on what appears to be legitimate psychiatric reasons preventing him from attending school and obtaining his high school diploma. Spencer was hospitalized in the Children’s Hospital of Eastern Ontario mental health ward for a number of weeks at the end of the summer of 2010. This was followed by Spencer being enrolled in a special education program in November of 2011 by the Brookfield McHugh Team after numerous consultations. Spencer managed to finish his 2010-2011 high school year but with shortfalls in his overall required credits. Spencer continued to miss a lot of school because of his social anxiety disorder.

[17] In September of 2011, Spencer returned to school but had a revised education plan because of his ongoing psychiatric difficulties. In the spring of 2012, Spencer transferred to St. Nicholas Adult High School in order to obtain certain courses to be able to obtain his high school diploma and be eligible for possible University studies. There is no question that his progress through these high school level courses has been slow but steady. In order to make up for lost time Spencer has continued to take courses throughout the summer of 2012 at the Adult High School with the OCDSB.

[18] In September of 2012, Spencer returned to St. Nicholas Adult High School to continue to accumulate his required high school credits. He had a running accident that month and had to be hospitalized for a period of time as a result. His recuperation from this accident took him well into October of 2012.

[19] Since that time, Spencer seems to have dedicated his time to attending courses at St. Nicholas High School, taking night courses at the Adult High School with the OCDSB and summer school with the OCDSB in July of 2013. In September 2013, he enrolled in courses with the Adult High School of the OCDSB in order to complete the last few courses he needs to obtain his high school diploma. His educational plan is to go on to University. Given his personal challenges, and given the fact that since 2008 Spencer has been attempting to obtain his high school diploma and still does not have it, it is not at all clear how realistic this might be.

Andrew

[20] Andrew as well has had his challenges in completing high school. Because of his identified learning disabilities he has gotten through his high school education on yearly individual education plans. What appears to be able to be gleaned from the evidence presented by Ms. Musgrave regarding Andrew is that Andrew obtained his high school diploma in June of 2012 (vol. 2 of the Continuing Record, tab. 25).

[21] Following this, Andrew was not sure what post secondary program he wanted to pursue. In September of 2012, therefore, he enrolled in a math course at the Independent Learning Centre which is accredited by the Ministry of Education. Andrew did not complete this course and began looking for employment which he could not find. No information was provided regarding Andrew’s efforts to find employment. This would apparently cover the period from approximately September to December of 2012.

[22] Andrew finally applied to the Police Foundations program at Algonquin College. According to the evidence of Ms. Musgrave this program runs for two years full-time. Andrew commenced the program in January of 2013 and the winter semester ran from January, 2013 to April, 2013. The spring semester ran from May, 2013 to August, 2013.

[23] According to the affidavit of Ms. Musgrave at paragraph 49 (vol 2 of the Continuing Record), Andrew commenced his second year in the program which commenced with the fall semester and ran from September, 2013 to December, 2013 which is where Andrew was at the time the motion was argued.

[24] According to Ms. Musgrave, Andrew’s first year at Algonquin was particularly difficult for Andrew, requiring substantial additional help including medication from a physician to assist him to concentrate on his courses because of his attention deficit and consultation with a learning strategist on campus. Because of his learning disability, Andrew has had to pursue this program with a reduced workload which was authorized by Algonquin College. Andrew has also had to rely on certain student accommodations to get through, such as extended time on tests and exams, and the use of laptop and/or recording devices in the class room.

[25] According to Ms. Musgrave, Andrew’s second year of the Police Foundation program, which would have commenced in September of 2013 and runs until December, 2013, is progressing very well. Because of Andrew’s reduced course load, Ms. Musgrave estimated that Andrew would complete his Police Foundation course in the spring of 2014. Thereafter, Andrew hopes to go to University to study criminology. This too, may be a little premature to consider at this point in time.

[26] What is curious about the documentation provided by Ms. Musgrave about Andrew’s Algonquin Police Foundation program documentation is that his student timetable for each of his semesters in first year are provided as is the timetable for his fall semester of the second year in the program, but no course results are provided for the end of any semester.

[27] Despite the fact that Andrew has now completed his first year of the program, supposedly made up of a winter semester from January to April, 2013 and a spring semester from May to August, 2013, and part of a fall semester of his second year from September to December, 2013, there is nothing in the material filed by Ms. Musgrave, regarding Andrew’s performance or progress in any of his courses, and more importantly if there is any indication of him being able to reasonably continue and complete this program, other than the hopes expressed by Ms. Musgrave.

[28] This is a serious deficit in the evidence of Ms. Musgrave in support of her position that support for Andrew should continue. Questions immediately come to mind which have a bearing on the application before the court. Has Andrew, in fact, completed any courses and received credit for them in the Algonquin College Police Foundation program since he commenced the program in January of 2013, even accepting that he must go at a slower pace? In the absence of such evidence, it does not appear that he is going at any pace. One year and part of a semester of the second year is certainly time enough to evaluate whether there is any reasonable hope of Andrew completing this course. Yet the evidence is absent.

[29] It was the evidence of Ms. Musgrave that neither Spencer nor Andrew have been able to work, either full-time or part-time to date because of their personal challenges. Their income tax returns show zero income. Consequently, they are not in a position to contribute to their post secondary education.

[30] However, with respect to Andrew, he apparently has just been hired by Loblaws Canada for a part-time position and to begin working in October of 2013. There is no evidence regarding his anticipated earnings.

Disposition

[31] For the purpose of this litigation, Mr. Musgrave has received substantial information about Spencer and Andrew’s educational and medical circumstances. I accept that he did not receive the disclosure until this litigation was commenced. It is unfortunate that such substantial and significant information about his children and their personal and scholastic challenges was not shared with Mr. Musgrave but for this litigation. Having said that, Mr. Musgrave is not completed exonerated from perhaps not having made a little more independent effort to learn about the welfare of his children.

[32] I have no basis in the evidence before me for concluding that Ms. Musgrave actively sought to alienate her children from their father. Nor can I find that the children have unilaterally repudiated their relationship with him through no fault of his and hence he ought not to be obligated to pay child support. There is in fact evidence that Mr. Musgrave has continued to communicate with his son Spencer even though it does not seem to be as frequently as he would like.

[33] As was made clear in the case of A.C. v. M.Z., 2010 ONSC 6473, family relationships are multi-faceted and complicated, particularly in cases of separation and divorce. Child support should be terminated only in the clearest of cases when it is done for the reason that an adult child has repudiated his or her relationship with a parent. I do not find that this is such a case.

Spencer

[34] With respect to Spencer, given his age, there is no question that his scholastic progress has been slow, but, I must conclude on the evidence, that it has been steady and consistent. Spencer himself has been persistent in his attempts to obtain his high school diploma. His persistence and his slow and steady progress have continued despite his tremendous personal challenges and setbacks.

[35] On these facts I fail to see how Spencer is not “a child of the marriage” within the meaning of the Divorce Act, R.S.C. 1985, c. 3 as am. Spencer continues to pursue the completion of his high school education to the best of his abilities. He continues to be dependent on both his parents in order to do this. He may indeed be capable of pursuing a post secondary education. That will remain to be seen.

[36] In the result, Mr. Musgrave’s motion to terminate support for Spencer is refused. He will continue to pay child support for Spencer, in accordance with the Guidelines.

Andrew

[37] I find the case of Andrew different.

[38] Andrew obtained his high school diploma in June of 2012. He then took some time to determine what further education he would pursue. Firstly, I place no importance on the fact that Andrew took from the end of June of 2012, when he graduated from high school, to January, 2013 to determine what post-secondary education he wished to pursue. It cannot be considered fatal to a claim for his support.

[39] Children of separated parents should not be penalized for taking some time, if it is a reasonable period of time, to determine what study path they wish to pursue, especially children with special challenges. In this case, July to December is hardly an unreasonable amount of time. It is unlikely that children of intact families would be cut off from support from their parents for taking such time to figure out what they want to do.

[40] However, for the reasons stated, I find a serious omission in the evidence of Ms. Musgrave to support the fact that Andrew is making progress in his chosen field since he commenced the course in January, 2013. There is no evidence that he has progressed in this program. For this reason it is my order that child support for Andrew terminates as of August 31, 2013 until documentary proof of some advancement by way of a course credit or progress report card from Algonquin College in the Police Foundations course by Andrew is provided to Mr. Musgrave. Mr. Musgrave’s obligation to pay his share of the Algonquin College tuition and book fees past the first year (September, 2013) will also be suspended pending the production of such proof.

[41] If such proof is provided then support for Andrew can resume and continue for as long as such documentary proof is provided by Ms. Musgrave and indicates some progress in the program on the part of Andrew.

[42] To summarize, Mr. Musgrave will continue to pay child support for two children, in accordance with the Child Support Guidelines based on his annual income until the end of August, 2013 (the end of Andrew’s first year). Thereafter, he will pay child support for one child, namely Spencer for so long as Spencer remains a child of the marriage.

[43] From the date of the order of Justice Parfett, dated April 12, 2010, the monthly child support payable by Mr. Musgrave is to be determined by Mr. Musgrave’s current annual income for the year in question and reference to the Child Support Guidelines. Consequently, as the amount of child support since that order has not changed while Mr. Musgrave’s income has increased for the years 2010, 2011 and 2012 there will be arrears of child support owed to Ms. Musgrave by Mr. Musgrave. The order of Justice Parfett was based on Mr. Musgrave’s declared income for the year 2009.

[44] The only evidence of arrears of child support based on the increase of Mr. Musgrave’s income for the years 2010, 2011 and 2012 is that found in the material filed by Ms. Musgrave. I find those arrears to be $2,188. Mr. Musgrave shall pay to Ms. Musgrave for arrears of child support the amount of $2,188 which amount is to be paid by Mr. Musgrave forthwith.

[45] Based on Mr. Musgrave’s current 2013 income of $148,686 per annum his monthly child support for two children is $1,997 per month and for one child, $1,248 per month, in accordance with the Child Support Guidelines.

[46] With respect to section 7 expenses, the children’s College costs, including tuition, books, transportation (including Spencer’s busing expense) costs will be shared by the parties in proportion to their incomes. The unpaid portion of Andrew’s Algonquin College tuition and books for his first year owed by Mr. Musgrave based on the evidence provided by Ms. Musgrave appears to be:

• For tuition and books for the winter semester commencing January 1, 2013:

$1,735.93 + $474.98 for a total of $2,210.91

• For tuition and books for the spring semester commencing May 20, 2013:

$1,588.75 + $478.17 for a total of $2,066.92

[47] The total of these amounts is: $4,277.83 which is to be shared by the parties in proportion to their incomes. Mr. Musgrave is to be given credit for any amounts he has already paid towards his share of this cost. Based on tab 52 of vol. 3 of the Continuing Record it appears that Mr. Musgrave has already paid Ms. Musgrave the amount of $736.97 towards his portion of Andrew’s tuition fees and books for his first year.

[48] Andrew and Spencer’s total Driving Education costs will continue to be shared by the parties in accordance with the order of Justice Parfett, dated April 12, 2010, one third each, with the child in question being responsible for the other third of the expense. I make no order with respect to a sharing of Spencer and Andrew’s portion of their future car insurance.

[49] Mr. Musgrave will pay his share of the section 7 expenses as outlined above, within one month after being informed of the cost and upon receiving a copy of the receipt.

[50] With respect to Mr. Musgrave’s obligations concerning the coverage of his children for which he pays child support, under his health and dental plans, extended or otherwise, they shall continue in accordance with the original divorce order of Justice Robertson, dated February 14, 2002.

[51] With respect to Mr. Musgrave’s obligation to designate Ms. Musgrave as irrevocable beneficiary of 2/5 of his basic life and optional life insurance policies, in trust for the children, the designation shall remain at the same proportion of 2/5 as per the order of Justice Parfett, dated April 10, 2010. Mr. Musgrave shall forthwith provide proof of such designation and shall do so by June 1st of every year following that with the first being June 1, 2014, failing which, Mr. Musgrave shall forthwith provide Ms. Musgrave a letter authorizing her to communicate directly with his insurance company to obtain the current information about the beneficiary designation of Mr. Musgrave’s insurance plan on a yearly basis.

[52] Ms. Musgrave has raised the issue of continuing support for the oldest child Michael Delacey Garlick, born October 29, 1989, and who is now 23 years old. Michael has completed post-secondary studies at Carleton University and obtained a Bachelor of Arts degree in law. He has plans of attending Teacher’s College in September of 2014. Child support for Michael was terminated in March of 2010. Michael has spent periods of time away from his mother’s residence and has lived with his girlfriend for two years until September, 2013. Michael is clearly not a child of the marriage and not entitled to child support. Any future financial assistance Michael may wish to receive from either of his parents for his higher education will be a matter to be agreed to between Michael and each of his parents.

Costs

[53] The last issue is that of costs. Mr. Musgrave shall have two weeks from the release of this decision to serve and file his written submissions on costs. Ms. Musgrave shall have two week from that date to serve and file her written submissions on costs. Mr. Musgrave shall then have one week from that date to serve and file a reply if he so wishes.

M. Linhares de Sousa J.

Released: December 6, 2013