ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-FD-331806-1
DATE: 20140303
B E T W E E N:
R.P.S.
Applicant
- and -
K.J.S.
Respondent
Appearing in Person
Appearing in Person
HEARD: January 20 to 24, 2014
Stevenson J.
REASONS FOR DECISION
Introduction
[1] On September 13, 2012, the applicant, ("R.S."), commenced a Motion to Change the final order of Harvison Young J. (the "order") dated January 6, 2009. He was seeking to change the amount of child support being paid by him on the basis that two of the parties' children, E., born […], 1993 and C., born […], 1995 were residing with him. The parties' youngest child, J. born […], 2002, continued to reside with the respondent ("K.S."). R.S. was also seeking child support for E. and C. from K.S.
[2] K.S. filed a Response to Motion to Change dated October 17, 2012. She was also seeking to change the order by amending paragraph 1 to reflect the change in the primary residence of the child E. to that of R.S. She was seeking to change the child support provisions effective November 1, 2012 as E. was residing with R.S. and J. was residing with her. She sought to apply a set-off of child support to reflect the split custody situation. K.S. was also seeking that child support be terminated for C., effective November 1, 2012, as he was not living with either parent. She further sought a proportionate contribution from R.S. towards special and extraordinary expenses for J. for private school tuition, soccer and piano lessons along with school team fees. She indicated in her Response to Motion to Change that there had been a material change in circumstances.
Factual Background
[3] At the time of the order E. was 15 years of age, C. was 13 and J. was 6. E. is now 20 years of age, C. is 18 and J. is 12. Subsequent to the order, the parties were divorced on February 12, 2009.
[4] The order was made on consent and incorporated terms of Minutes of Settlement filed by the parties. The order provided inter alia that the children were to reside primarily with K.S. Specific terms of access were set out for R.S., including alternate weekend access from after school Friday until return to school Monday, with such weekends to be extended to include the Thursday or Monday when there was a holiday; every Wednesday from after school until return at 9:00 p.m.; one-half the Christmas school break and other times as arranged between the parties. On Tuesday evenings R.S. was to have one-on-one time with the children. Each parent was entitled to have up to three weeks of vacation time with the children during the summer school break.
[5] Pursuant to the order, R.S. was to pay child support for the children in the amount of $946 per month based on his then current annual income of $48,028. There were no arrears of child support and no current section 7 expenses. All future section 7 expenses were to be shared equally between the parties. Additionally, each party was to pay $5,000 from their respective share of the proceeds from the sale of the matrimonial home into a joint account. The purpose of the account was to fund extraordinary extracurricular activities for the children. The signatures of both parties were required to release any funds. Until June 30, 2009, the cost of each individual registered activity had to exceed $200 in order to potentially trigger the use of the fund. From July 1, 2009 onward, the cost of each individual registered activity had to exceed $250. In the event that the parties did not agree on a particular expense, the parties were to utilize the services of a parenting coordinator who was to have the authority to make a binding decision.
[6] Subsequent to the order, the relationship between the parties continued to be acrimonious. They are unable to agree as to where the children E. and C. have had their primary residence since July 2012. R.S. ceased paying child support in July of 2012 as it was his position at the time that E. and C. were residing with him full-time and that as a result, he was owed child support from K.S. while he was still responsible for paying child support to K.S. for J. The parties do agree that J. has always resided with K.S. and that she continues to reside with K.S. However, the parties do not agree on whether J.'s attendance at private school is an appropriate section 7 expense under the Federal Child Support Guidelines SOR/97-175 ("the Guidelines") to which R.S. should contribute, nor do they agree as to the appropriate contribution to be made by R.S. towards other section 7 expenses, including extracurricular activities for the children and post-secondary expenses for E.
[7] Pursuant to the order of Horkins J. dated July 4, 2013, a trial date was set so that the credibility of the evidence could be tested given the conflicting evidence as to where the children E. and C. had been residing. On January 15, 2014, Mesbur J. further defined the issues for trial to include: whether there should be any changes to table support as a result of changes in the children's residential arrangements from July 1, 2012; determination of arrears of table support, if any; and determination of R.S.'s contribution if any, to section 7 expenses including whether J.'s private school expense is a proper section 7 expense. R.S. also contends that the joint account set up by the parties for the children's extraordinary extracurricular activities pursuant to the order has not been used appropriately by K.S.
Issues
[8] The following are the issues to be determined:
(i) Has there been a change in circumstances? Should there be changes to table support if there have been changes in the children's residential arrangements from July 1, 2012?
(ii) What is R.S.'s contribution if any, to section 7 expenses, including K.S.'s claims for contribution to J.'s private school expenses and E's post-secondary expenses?
(iii) Are there any arrears of table support and section 7 expenses owing?
(iv) Has the joint account set up by the parties for the children's extraordinary extracurricular activities, pursuant to the order of Harvison Young J., been used appropriately by the parties?
Issue #1
Has there been a change in circumstances? Should there be changes to table support if there have been changes in the children's residential arrangements from July 1, 2012?
[9] With respect to the variation of child support, section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides:
(4) Factors for child support order --Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(6.1) Guidelines apply -- A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
[10] Section 14 of the Federal Child Support Guidelines, provides:
- For the purposes of subsection 17(4) of the Act [the Divorce Act], any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof[.]
[11] In the Supreme Court of Canada decision of L.M.P. and L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 31 to 34, the Court confirmed the test for "change in circumstances" as had been previously set out in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 as follows:
[31] Willick described the proper analysis as requiring a court to ‘determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances’ (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.
[32] That ‘change of circumstances’, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, ‘if known at the time, would likely have resulted in different terms’ (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order....
[34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.
(Decision continues exactly as in the original judgment…)
Stevenson J.
Released: March 3, 2014
COURT FILE NO.: 07-FD-331806-1
DATE: 20140303
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
R.P.S.
Applicant
- and -
K.J.S.
Respondent
REASONS FOR DECISION
Stevenson J.
Released: March 3, 2014