ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 00FA8868FIS-A
DATE: 20130301
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL ANN JORDAN
Plaintiff
– and –
JAMES RUPERT STEWART
Respondent
In Person
Patrick Schmidt and George Karahotzitis, for the Respondent
HEARD: September 10, 11, 12, 13, 14 and November 5, 6 and 9, 2012
CZUTRIN J.:
In the Beginning (this motion begins)
[1] What commenced in the fall of 2010 as the Respondent’s motion to terminate child support for the parties’ son, Jesse Clair Stewart (born September 6, 1989), ended up as a viva voce hearing heard by me over several days in the fall of 2012. This hearing came after much delay, several disclosure orders, and amended relief sought by the Respondent (James Rupert Stewart, “father”).
[2] The motion served by the father in the fall of 2010 sought to terminate his child support obligations provided for in the consent order of Paisley J. dated April 7, 2008.
[3] The Applicant in the original action (Cheryl Ann Jordan, “mother”) defended this motion.
[4] Except for temporary orders made, prior to 2004 (the first final order) the parties had resolved support issues on consent without a finding of the father’s income for child support guideline purposes.
[5] The father’s motion to terminate support was initially linked to his discovery in June 2010 that Jesse was planning to attend George Brown College in Toronto rather than the University of Western Ontario in London. He believed that Jesse would therefore be moving to Toronto rather than residing in London with his mother. He did not raise any change in circumstance related to his financial situation.
[6] The father’s lawyer (Mr. Schmidt) wrote to the mother’s then lawyer (Mr. MacLennan), apparently in response to a letter Mr. MacLennan had written to Mr. Schmidt on July 7, 2010. Mr. MacLennan (mother’s lawyer) inquired whether Mr. Schmidt’s office had instructions to accept service of a motion to enforce Paisley J.’s April 7, 2008 order. In response, the father sought disclosure about Jesse’s status at Western and his academic intentions for 2010/2011.
[7] By September 17, 2010, the mother had retained new counsel (Mr. Legge), who wrote to the father’s counsel to inform him that the father had not paid child support for September 2010.
[8] The mother’s letter proposed mediation and advised that “Jesse has been obliged by the University of Western Ontario (Western) to effectively step out of their program. He is now enrolled at George Brown College doing what is, in effect, a makeup year with the intent of re-enrolling at Ryerson in 2011.”
[9] The letter further stated that Jesse’s four year degree will take at least six years to complete. The parties knew prior to this letter that Jesse’s education would take longer than four years, due to his documented learning disability.
[10] The father’s counsel asked for documentation requested in earlier letters sent to Mr. MacLennan before responding to the proposals made by mother’s counsel.
[11] Not being satisfied by the disclosure, the father commenced the motion to terminate support.
[12] In the father’s October 2010 affidavit in support of his request to terminate child support, he sought a termination date as of July 2010 or earlier, “depending on Jesse’s academic status in the 2009/2010 school year”. He outlined the reasons he was seeking to terminate his child support obligations provided for by the April 7, 2008 order.
[13] The father deposed that Jesse told him that he was unhappy living with the applicant (mother) and wanted to move out on his own.
[14] He said that in reviewing Jesse’s transcripts, he discovered that Jesse had taken a reduced course load and was on “academic probation” during the winter 2010 school semester.
[15] His October 28, 2010 affidavit deposed the following:
I believe that Jesse was not a full time student at the UWO in the winter of 2010 and possibly not in attendance at all due to being expelled by the UWO for his poor academic performance.…
The Applicant is clearly withholding information about Jesse’s current status as a student and where he is residing in an attempt to have my child support continue to her…
I believe that Jesse is currently living in Toronto on Spadina Avenue […] I have had no contact with Jesse since the summer of 2010. Despite my best efforts to make and keep up contact with Jesse, he has withdrawn completely from any relationship with me.
[16] By the time I heard the case in the fall of 2012 Jesse had returned to Western and again lived with his mother in London. He was on his way to completing the courses to satisfy his first degree requirements in six years, rather than the five years the parties had originally anticipated. He was completing a three year degree, rather than a four year degree.
The Order Sought to Be Changed
[17] The order that the father seeks to change Paisley J.’s consent order of April 7, 2008. Paisley J.’s order varied Mesbur J.’s consent order of February 18, 2004. Paisley J.’s order provided as follows:
- The judgment of ... Justice Mesbur ... is varied to require the (father) to pay, in addition to the $5,000.00 monthly child support in paragraph 2 (of that judgment), the post–secondary costs for (Jesse) which costs shall include:
a. Tuition and fees for the years in which Jesse is a student in a post secondary educational program;
b. Books and supplies for the academic years referred to in paragraph 1 (a) above; and
c. Such further and other expenses as agreed.
Provided that (Jesse) attends university on a full time basis, having regard to (Jesse’s) need to take a reduced course load and to obtain a four year degree over five years, as necessitated by his learning disabilities.
The (father) shall pay Jesse’s post-secondary costs in relation to his first undergraduate degree, without prejudice to the right of the applicant (mother) to seek a review for further funding of additional post secondary educational programs in accordance with the Child Support Guidelines.
... Jesse ... shall deliver directly to (the father) the information and documentation in support of the post-secondary educational costs claimed and the (father) shall make payments within 30 days of delivery of information and supporting documentation.
In the event of a dispute regarding the payment of the monthly child support or post-secondary costs, the (father) shall nonetheless continue to pay the monthly child support and post-secondary costs until further order of the court or written agreement of the parties. [Emphasis added.]
[18] As there is reference to the February 18, 2004 order of Mesbur J. and the order of Paisley J. provides an additional obligation on the father (post-secondary costs), I find that the earlier order remains relevant since both obligations are sought to be terminated by the father.
[19] Mesbur J.’s order begins with the recital that the judgment is in accordance with the mother’s offer to settle dated January 26, 2004, which was accepted by the father on the same date.
[20] The recital continues:
[T]he (mother) having released the (father) and his estate from any and all claims for interim or permanent or periodic spousal support, lump sum spousal support and periodic or lump sum compensatory support, and the parties having agreed to sign mutual Releases releasing the other from all claims other than for child support as provided for in this Judgment.
[21] The first paragraph of the Judgment deals with the continuation of the support payments under Lax J.’s October 8, 2002 temporary order which provided for $5,000 monthly spousal support and $1,623 per month for child support until March 31, 2004. From that time, child support was to be $5,000 per month. Interestingly, although the Child Support Guidelines were already in existence, the order stated that child support was to be changed annually based on the Consumer Price Index (“CPI") in the preceding 12 months pursuant to ss. 34(5) and 34(6) of the Family Law Act. I note parenthetically that the CPI was intended to apply to spousal support.
[22] Additionally, the father was required by Mesbur J.’s judgment to “continue to pay the tuition expenses, currently approximately $16,000 annually for (Jesse’s) attendance at the Merle Levine Academy as long as the child is enrolled in and attending that school, or another school mutually agreed to by the parties, on a full time basis”.
[23] The judgment also required the father to pay a $50,000 lump sum child support to the mother.
[24] The father was further obliged by the judgment to pay the cost of a then pending psycho-educational assessment of Jesse by Dr. Mel Davine.
[25] All other claims were dismissed without costs.
[26] The psycho-educational assessment with Dr. Davine did not proceed as anticipated. Dr. Davine declined to conduct the assessment and the father refused to pay the cost of another professional engaged by the mother. Therefore, in 2007 I heard the mother’s motion seeking to change the person named to conduct Jesse’s psycho-educational assessment.
[27] The parents disagreed as to the continuing need for the assessment. The mother suggested it was necessary to support Jesse’s admission to universities (with accommodation) and support his learning disabilities.
[28] In my April 12, 2007 endorsement, I considered the mother’s request for re-imbursement of $2,000 for the assessment. I expressed my concern about the father’s willingness to put the mother through a very expensive process over a $2,000 issue meant to address an acknowledged learning disability and a contemplated psycho-educational assessment. See paragraphs 39 and following of my endorsement of April 12, 2007.
[29] On April 12, 2007, I released my endorsement related to Mesbur J.’s judgment. I required the father to pay for the psycho-educational assessment that the mother had arranged.
[30] At that time I had the benefit of the psycho-educational report that confirmed Jesse’s learning disability and his needs for accommodation at University.
[31] Jesse was successful in his application to university. At that point Paisley J.’s consent order continued a level of child support and other expenses first agreed to in the 2004 consent order of Mesbur J.
[32] Both consent orders acknowledged Jesse’s learning disabilities. The April 7, 2008 order acknowledged that Jesse would need to take a reduced course load and contemplated that he might need to take longer to complete his degree requirements. At the time of the April 7, 2008 order he was living with his mother in London while attending Western.
[33] The father’s concern that the mother decided to move to London so that the $5,000 monthly child support would continue and benefit her was in issue prior to the April 7, 2008 order and remained a theme before me.
[34] To resolve issues in 2008, the father agreed to the payment and honoured it until he discovered Jesse’s change of school and what he believed was a change of residence. He took the position that the change of school and residence should satisfy me that “there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available” (s. 37(2.1) of the Family Law Act).
[35] The father also relies on s. 14 of the Child Support Guidelines, which provides as follows:
[A]ny one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
(a) In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof;
(b) In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support. […]
[36] Mesbur J.’s earlier order noted that the mother waived and gave up spousal support as part of the settlement. The mother testified before me that she agreed to this so that the level of child support maintained would be sufficient so that her son would be able to complete his post-secondary education.
[37] Neither the 2004 nor 2008 order fixed the father’s income for support purposes. While the father’s income was always an issue, the agreements and resulting consent orders never determined or acknowledged the father’s income.
[38] My April 12, 2007 endorsement and the orders of Mesbur J. and Paisley J. foreshadowed issues that started in the fall of 2010. The parties have since continued to demonstrate a willingness to pay legal and expert fees that I know by the evidence heard exceed the amount in issue.
[39] The mother’s first affidavit in response was dated November 23, 2010.
[40] She asked the court to deny the father standing to bring the motion to terminate because he had stopped paying child support after September 1, 2010. This was contrary to paragraph 4 of Paisley J.’s order requiring him to pay until “further order of the court or written agreement of the parties”.
[41] The mother’s affidavit deposed (with documentation attached) the following:
Jesse is enrolled as a full time student at George Brown College in Toronto.
Jesse has provided his father with complete copies of his student status material, his course documentation, the College bills, the extra costs.
Jesse is making reasonable progress in the Business Administration Program at George Brown College. This is a degree program.
Jesse spends three or four nights a week with me at our home in London, Ontario.
In addition to tuition expenses, Jesse has costs of a tutor of $400 per month, rent in Toronto of $400 per month and school supplies and computer costs that mother put at $1,000 per year and a one-time $1,500 cost.
The father‘s (general refusal) to have any paternal relationship with Jesse.
The father had login rights at Western student accounts.
[42] Thereafter, in spite of conferences, the issues could not be resolved. Orders were made for disclosure, questioning, and holding of certain funds by the father’s counsel (for disputed section 7 expenses). The father has continued to pay the monthly $5,000 child support.
[43] As two years elapsed from the commencement of this motion to the hearing, disclosure requests mushroomed and the relief requested changed to include the father claiming credit for overpayments. His previously not determined income became a significant issue, with the father calling expert evidence to establish what he advanced as his “Guideline Income” for 2009, 2010 and 2011. If the evidence of the expert is accepted, the father’s income is well under any income that would result in a child support table payment order of $5,000 per month. The disclosure and evidence were consistent with the father’s position that although he had previously consented to the $5,000 per month child support his guideline income was never an amount that would lead to an order of $5,000 per month.
[44] By the time I heard the oral evidence the mother was without counsel and her expert was disqualified and gave no evidence. While I would have considered an adjournment for the mother so as to allow her to retain an expert, the mother abandoned her request to adjourn.
[45] A further issue raised by the father is that Jesse received grants and loans from the Ontario Student Aid Program. The father claims that he was not aware of the loans and grants and seeks credit against any continuing support obligations or repayment of alleged over-payments made.
[46] Although Jesse returned to London and Western by the summer of 2011 and is scheduled to graduate in the spring of 2013, the case proceeded.
[47] The case raised the following issues:
Was Jesse a dependent entitled to support for the entire period after Justice Paisley’s order? If he was not, but once again became a dependent, on what terms should father pay?
If he remained a dependent what impact, if any, does his time in Toronto and attending George Brown College have on his entitlement to support and how is the amount to be calculated?
The parties consent covered a five year period for a four year degree and the evidence was that Jesse will receive three year degree over six years.
Further, how do s. 37 of the Family Law Act and s. 14 of the Ontario Child Support Guidelines apply to the specific facts of this case?
If Jesse remained a dependent, what impact, if any does his receipt of loans and grants have on the level of the father’s support obligation?
What, if any, consequences should the fact that the previous consent orders for support did not set the father’s income have on my considerations now?
What impact, if any, does the mother releasing spousal support have on any of these issues? [I have no way of measuring quantum and duration of this support obligation apart from the consent orders made in 2004 and 2008.]
(Full judgment continues exactly as in the source and concludes with the following final paragraphs.)
[293] I find that the father has not discharged the onus of proving that there has been a change in circumstances relevant to the facts of this case that requires me to vary child support prior to May 1, 2012.
[294] I find that on the facts of this case and based on the consent order of the parties – concluded at a time when income was not proven (deliberately) - there was an agreement and an order pursuant to s. 37(2.5) of the Ontario Child Support Guidelines. This constituted a special provision pursuant to s. 37(2.3) or an agreement to resolve in the manner consistent with the objectives of the guidelines:
- The objectives of this Regulation are,
(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;
(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;
(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and
(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.
[295] There was no request to set aside the consent order or to appeal the order. It was only because Jesse changed schools and moved temporarily to Toronto that the father sought to change the support amounts. It was only those “changed circumstances” he relied on to seek to terminate or his support obligations.
[296] I find that the decision in Wright v. Zaver is distinguishable in that this is not a motion to change a pre-guideline order but rather a motion where one party is seeking to change an order negotiated with full appreciation of the Guidelines. As the income of the father could not be determined by a simple consideration of his line 150 income it was reasonable to resolve the case to allow for the parties to resolve the issue as they saw fit, to meet the financial needs of their son to allow him to obtain his first degree and to avoid a yearly adjustment and repeated litigation while Jesse obtained his first degree.
[297] Therefore, for the reasons provided throughout this judgment, I dismiss the father’s claim to terminate support for any period prior to May 1, 2013.
[298] However, consistent with the consent order and with the father’s “worst case scenario” calculation (with termination as of April 30, 2013 and support based on income of $374,000) the support payable for the period from May 1, 2012 to and including April 30, 2013 is $2,921 per month and continued responsibility for the same school expenses as ordered. At that point child support terminates subject to the without prejudice right of the mother to seek a review for further funding of additional post-secondary educational programs in accordance with the Child Support Guidelines.
[299] Support Deduction Order to issue.
[300] Once the parties have done any recalculations reflecting this decision, as to what funds are owing and have prepared a draft order to reflect same, the issue of costs, if requested, may be dealt with at a time arranged through the trial coordinators. If within 45 days of the release of this judgment there is no request to set a time, there will be no further order of costs.
Czutrin J.
Released: March 1, 2013
COURT FILE NO.: 00FA8868FIS-A
DATE: 20130301
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL ANN JORDAN
Applicant
- and -
JAMES RUPERT STEWART
Respondent
REASONS FOR JUDGMENT
CZUTRIN J.
Released: March 1, 2013