COURT FILE NO.: 7406/07 (Welland)

DATE: 2014/12/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Linda Osterlund-Lenahan

The Applicant appeared without counsel

Applicant

• and -

Joseph M. Lenahan

Steven L. Nagy, for the Respondent

Respondent

HEARD: November 19, 20 and 21, 2014

R. A. Lococo, J.

REASONS FOR DECISION

I. Introduction

1Joseph Lenahan brought a motion to change the final order of Justice Tucker dated June 12, 2006 to terminate his obligation to pay child support to his former wife, Linda Osterlund. In response, Linda Osterlund sought reimbursement for extraordinary expenses relating to the children. She has also raised the issue of spousal support.

2The trial of this motion to change, originally set for June 2014, occurred over a three day period in November 2014. Mr. Lenahan was represented by counsel, as he has been throughout the various court proceedings between the parties. Ms. Osterlund appeared at trial without counsel. At the time the original trial date was set, both parties were represented, but Ms. Osterlund subsequently gave notice of intention to act in person.

3By way of background, Ms. Osterlund and Mr. Lenahan were married in 1990 after living together for a few months. They have two children, Joseph (known as Joey), who is 24 (born July 25, 1990), and Karlina, who is 23 (born August 20, 1991). Within a few years of the parties' marriage, difficulties arose between them. In August 1994, Mr. Lenahan left the matrimonial home. Ms. Osterlund and the children continued to live in the matrimonial home until it was sold in October 1999. During the intervening period, Ms. Osterlund and Mr. Lenahan made periodic attempts to reconcile, but did not resume cohabitation. After the sale of the matrimonial home, the children continued to live with their mother.

4In November 2000, Ms. Osterlund brought family law proceedings in the Ontario Court of Justice claiming custody and child support. Both parties were represented by counsel. No final order was made in those proceedings.

5In 2005, Ms. Osterlund brought family law proceedings in the Superior Court. She was not represented by counsel. By temporary order of Justice Quinn dated March 16, 2006, Mr. Lenahan was ordered to pay child support on an interim basis for both children. The temporary order also granted Ms. Osterland leave to seek spousal support and/or property claims, stating that she must amend her application within 30 days in order to do so. By final order of Justice Tucker dated June 12, 2006, Mr. Lenahan was required to pay child support to Ms. Osterlund in the amount of $1,122 per month for both children. The parties were also required to exchange income tax returns and notices of assessment by June 30 each year. The final order further stated that Ms. Osterland was not amending her proceeding, and also required Ms. Osterland to provide details of extraordinary expenses to Mr. Lenahan's solicitor.

6On October 11, 2006, Justice Matheson heard a contempt motion brought by Ms. Osterlund apparently related to Mr. Lenahan's alleged failure to pay extraordinary expenses related to the children. Justice Matheson denied the motion and ordered Ms. Osterlund to pay costs of $700. He also gave Ms. Osterlund leave to bring a motion to change the final order of Justice Tucker to include a claim for extraordinary expenses. There is no evidence that such a motion to change was brought.

7In August 2007, Ms. Osterlund brought a new application in the Superior Court claiming, among other things, extraordinary expenses, compensatory spousal support and property division. Ms. Osterlund was not represented by counsel. There is little information before me with respect to this application. The endorsement record indicates that a case conference was held in October 2007 relating to extraordinary expenses and spousal support, and that Ms. Osterlund was required to provide full and complete disclosure of all supporting documents. The only other endorsement is dated November 21, 2008, which extended time lines for a further 60 days. It appears from the endorsement record that no subsequent steps were taken on that application.

8In 2011, Mr. Lenahan brought a separate divorce application. Ms. Osterland did not contest the divorce. By final order of Justice Matheson dated November 14, 2011, Mr. Lenahan and Ms. Osterland were divorced effective December 15, 2011.

9In October 2012, Mr. Lenahan brought this motion to change the 2006 final order of Justice Tucker in order to terminate his child support obligation. Ms. Osterlund filed a response to the motion the following month. She resisted termination of periodic child support for Joey, but acknowledged that she was not entitled to child support for Karlina unless she returned to full time attendance at a post-secondary educational institution. Ms. Osterlund also claimed for reimbursement of extraordinary expenses. As noted previously, both parties were represented by counsel until Ms. Osterlund gave notice of intention to act in person earlier this year. After providing that notice, Ms. Osterlund raised the issue of spousal support in an affidavit dated June 3, 2014, but did not seek leave to amend her application to include a claim for spousal support.

10Based on the foregoing background, the matters in issue on this motion to change are as follows: (i) termination of child support, (ii) extraordinary expenses, and (iii) spousal support. I will deal with each of these issues in turn.

II. Termination of child support

11By final order of Justice Maddalena in these proceedings dated March 6, 2013, Mr. Lenahan's obligation to pay child support to Ms. Osterlund for Karlina was terminated effective November 30, 2012. That order was issued on consent, both parties being represented by counsel at that time. Ms. Osterlund indicated at trial that she agreed to termination of child support for Karlina, and is not claiming retroactive child support for Karlina.

12Even though his obligation to pay child support for Karlina was terminated as of November 30, 2012, Mr. Lenahan continued to make child support payments until June 2014 in the amount of $1,122 per month, the amount set for support of both children in Justice Tucker's 2006 order. According to Mr. Lenahan, he overpaid child support in recent years, but he acknowledged that he underpaid in prior years since he did not adjust payments to reflect changes in his income after the 2006 order. By Mr. Lenahan's calculations (detailed later in these reasons), the cumulative result was a net overpayment of child support since the 2006 final order. However, Mr. Lenahan is not seeking repayment of any overpayment of child support, but rather seeks to offset whatever he may owe for extraordinary expenses, as noted further below.

13Mr. Lenahan is also seeking termination of his obligation to pay child support for Joey, effective June 2014, the last month in which he made a child support payment. Ms. Osterlund indicated at trial that she agrees to the termination of child support for Joey as of that date, and that she is not claiming retroactive child support for Joey.

14I am therefore prepared to make a final order terminating child support for Joey. The order will also set the amount of retroactive child support for both Joey and Karlina at zero.

15The foregoing orders, together with Justice Maddalena's final order dated March 6, 2013, dispose of Mr. Lenahan's obligation to make periodic child support payments for both Joey and Karlina on a final basis. Nevertheless, in order to address the issue of extraordinary expenses in this case, it is necessary to give further consideration to evidence relating to Mr. Lenahan's child support obligations as well as his previous periodic child support payments. This evidence is considered in the next section of these reasons, which deals with the issue of extraordinary expenses.

III. Extraordinary expenses

16Ms. Osterlund claims for reimbursement of extraordinary expenses incurred for both Joey and Karlina. While agreeing to termination of periodic child support payments for Joey effective June 30, 2014, Ms. Osterlund argued that Joey continues to be a dependent child for support purposes. Accordingly, she claims that she continues to be entitled to reimbursement for extraordinary expenses for Joey, including health-related expenses and post-secondary education expenses. She also claims for reimbursement of past extraordinary expenses incurred for Karlina, including health-related expenses and post-secondary education expenses.

17Mr. Lenahan resisted Ms. Osterlund's claim for extraordinary expenses, on the bases indicated below.

• (a) Dependent status of Joey and Karlina – According to Mr. Lenahan, he is not responsible for extraordinary expenses incurred when Joey and Karlina were no longer dependent children for support purposes. Joey ceased to be a dependent child as of February 28, 2013, the month that he received his Bachelor of Arts degree from the University of Western Ontario. Karlina ceased to be a dependent child in August 2009 when she turned 18 but was again a dependent child for the four month period from January to April 2011 when she was enrolled in a full time course at Humber College.
• (b) Sufficiency of evidence – In any case, Ms. Osterlund has not placed before the court sufficient evidence to support her claim for extraordinary expenses, particularly in light of previous court orders requiring Ms. Osterlund to provide documentary support for such expenses.
• (c) Overpayment of child support – Mr. Lenahan overpaid child support in the period from 2006 to 2014, and such overpayment, together with additional amounts provided by Mr. Lenahan for extraordinary expenses since 2006, more than offsets any amount to which Ms. Osterlund may otherwise be entitled.

18As set out further below, I have considered each of the bases Mr. Lenahan relied upon in resisting Ms. Osterlund's claim for extraordinary expenses. Having done so, I have concluded that Ms. Osterlund is not entitled to any amount for reimbursement for extraordinary expenses.

(a) Dependent status of Joey and Karlina

(i) Legal principles

19According to Mr. Lenahan's counsel, Mr. Lenahan would not be responsible for extraordinary expenses incurred when Joey and Karlina were no longer children for support purposes. I agree that this position is a correct statement of the applicable law.

20Under section 31 of the Family Law Act,¹ every parent has an obligation to provide support for his or her unmarried child who is within parental control, to the extent that the parent is capable of doing so, if the child is: (a) under the age of 18, or (ii) enrolled in a full time program of education. Such a child is a "dependent" of the parent as defined in section 29 of that statute. Therefore, in these reasons, I will refer to a child entitled to a parent's support under section 31 of the Family Law Act as a "dependent child".

21Section 7 of the Child Support Guidelines² provides that in making an order for the support of a dependent child, the court may require a parent to contribute to payment of extraordinary expenses for the child. By the terms of section 7, the court would not have the authority to make an order for payment of extraordinary expenses incurred during a period in which Joey or Karlina was not a dependent child. I will examine the dependent status of Joey and Karlina in turn below.

(ii) Dependent status of Joey

22Mr. Lenahan's counsel argued that Joey ceased to be a dependent child as of February 28, 2013, the month that he received his bachelor degree from the University of Western Ontario. I agree that the evidence supports that conclusion.

23Joey completed high school in the spring of 2008. He started university at the University of Western Ontario in London in the fall of 2008, working toward a three year Bachelor of Arts degree. He attended Western for the 2008-2009 academic year (his first year) and Brock University in St. Catharines for the 2009-2010 academic year (his second year), returning to Western for the 2010-2011 academic year. During her testimony, Ms. Osterlund's recollection was that Joey attended Brock University for the first semester of his second year and then returned to Western for the spring semester, but that testimony did not accord with the documentary evidence, which I accept as reliable with respect to his attendance at Brock for the whole 2009-2010 academic year. The record also indicated that Joey successfully completed courses at Western during the 2011-2012 and 2012-2013 academic years, and also completed summer courses at Western in 2011 and 2012. As well, the record indicated that Joey was awarded a Bachelor of Arts (three year) degree by Western on February 22, 2013.

24According to the testimony of Ms. Osterlund, which I accept, Joey developed mental health issues by 2012, which prevented him for returning to Western on a full time basis after April 2012. However, with some difficulty, Joey thereafter successfully completed courses (including on-line courses) on a part-time basis. As a result, Joey was able to receive his three year Bachelor of Arts degree from Western in February 2013, as previously indicated.

25According to the testimony of Ms. Osterlund, once Joey's mental health issues manifested themselves in 2012, he was hospitalized on more than one occasion, and was unable to live independently without supervision. He has been taking various medications, and has also undergone psychological counseling. Ms. Osterlund testified that Joey has improved significantly, but still has a long way to go. She stated that she did not consider Joey to be employable at the present time because of his mental health issues. However, he has returned to Brock University with a full undergraduate workload as of the current academic year. He is living at home, and Ms. Osterlund is driving him to and from school and for health-related appointments, since he is unable to drive himself. In her testimony, Ms. Osterlund indicated that she encouraged Joey to return to university since she thought it would make him more employable and because she considered it therapeutic for him to be busy with his studies rather than idle at home.

26Ms. Osterlund argued that Joey continues to be a dependent child, given that he is once again enrolled in a full time program of post-secondary education. She also relied on the fact that he continues to suffer from mental health issues, which makes him unable to withdraw from parental control. As evidence of his disability, she noted that Joey has been approved to receive and is receiving disability benefits pursuant to the Ontario Disability Support Program (ODSP) in the amount of $823 per month.

27Dealing with the latter point first, as I have already indicated, in order for an adult child to be entitled to support from a parent pursuant to section 31 of the Family Law Act, the child must be enrolled in a full time program of education. The child support obligation is somewhat broader in the Divorce Act,³ where a "child of the marriage" is defined in section 2 as a child who is (i) under the age of majority who has not withdrawn from the parents' charge, or (ii) over the age of majority and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

28I am satisfied that in this case that the governing legislation is the Family Law Act and not the Divorce Act. As a result, evidence that Joey suffers from mental health issues does not provide an independent basis for finding that he is entitled to child support from Mr. Lenahan beyond that provided for in section 31 of the Family Law Act.

29In reaching the conclusion that the Family Law Act was the governing legislation on this motion to change, I took into account section 36 of that statute. I also considered prior decisions of this court that dealt with the interaction between the Family Law Act and the Divorce Act with respect to support orders. Two of those decisions are referred to further below.

30Pursuant to subsection 36(1) of the Family Law Act, when a divorce application is commenced, an application for support under the Family Law Act that has not been adjudicated is stayed, unless the court orders otherwise. Pursuant to subsection 36(3), if a marriage is terminated by divorce and the question of support is not adjudicated in that proceeding, an order for support under the Family Law Act continues in force.

31In Abernethy v. Peacock,⁴ Justice Herman considered the issue of whether the Family Law Act provides jurisdiction to vary a spousal support order previously made under that statute if the parties are divorced subsequent to the support order but prior to the motion to change. The court held that there was jurisdiction under the Family Law Act to vary the support order in those circumstances. Justice Herman stated as follows:

I would add that s. 36 of the [Family Law] Act provides that, in the case of a divorce, a support order granted under the Family Law Act continues if support was not adjudicated in the divorce supporting. If a support order can be enforced under Part III of the Family Law Act after the parties are no longer spouses, it stands to reason that it can also be varied under that Part.⁵

32In Lachance v. Lachance,⁶ an order made under provincial legislation required the husband to pay child and spousal support. Some years later, the husband brought a motion to vary that order to terminate the support obligation. Before the motion to change was adjudicated, the husband brought a separate application for divorce, which resulted in an order granting a divorce. The wife argued that the husband's motion to change the previous support order had to be brought pursuant to the Divorce Act. The court held that the motion to change was properly brought pursuant to the Family Law Act. In particular, the court reasoned that the stay provision in section 36 of the Family Law Act was intended to address an unadjudicated support application under provincial legislation, and had no application to a motion to change under that statute.⁷

33In the case of Mr. Lenahan's motion to change, the 2006 order that he seeks to vary was clearly made pursuant to the Family Law Act. The parties' marriage was not terminated until 2011 in a separate divorce application brought by Mr. Lenahan. Since the order in that proceeding was for divorce only, the 2006 child support order continued in force pursuant to subsection 36(3) of the Family Law Act. In October 2012, Mr. Lenahan brought this motion to change the 2006 order, and in response, Ms. Osterlund seeks a variation of that order to require Mr. Lenahan to pay extraordinary expenses. Since Mr. Lenahan's divorce application was already concluded at the time he brought the motion to change, the divorce application would not have caused a stay of this motion to change, even if the Lachance case is incorrect in its conclusion that section 36 does not apply to motions to change. In the circumstances of this case, the 2006 order having been made pursuant to the Family Law Act, I find that the same statute would govern this motion to change that order.

34In any case, even if the Divorce Act were applicable in this case, I am not satisfied that Ms. Osterlund has established that Joey is unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain the necessaries of life. In this regard, I note that there is no admissible medical evidence before the court to establish the extent of any illness or disability, or that any such illness or disability prevents Joey from withdrawing from Ms. Osterlund's charge or obtaining the necessaries of life. In this regard, I note that certain medical reports and records were attached to Ms. Osterlund's affidavit dated November 12, 2014, the contents of which were adopted by Ms. Osterlund during her testimony at trial. However, I agree with Mr. Lenahan's counsel that medical opinions and other information contained in those reports and records do not constitute admissible evidence of Joey's medical condition since they are not properly before the court in the absence of oral evidence by the authors or required prior notice relating to the records. As well, I do not consider the fact that Joey is receiving ODSP benefits as sufficient proof of disability for this purpose.

35As previously noted, Ms. Osterlund also argued that Joey continues to be a dependent child based on his current enrollment in a full time program of post-secondary education. Mr. Lenahan resisted this position, given that Joey has already completed one undergraduate degree. Even though Joey did not attend university on a full time basis after April 2012, Mr. Lenahan is prepared to concede that he remained a dependent child until February 2013 when he obtained his three year Bachelor of Arts degree.

36In Blaschuk v. Bridgewater,⁸ Justice Quinn of this court considered whether the mother in that case had a continuing obligation to provide child support for an adult child who already had an undergraduate degree. Justice Quinn stated as follows:

Section 31 of the Family Law Act does not circumscribe the child-support obligation by reference to the length or type of program of education required to create or continue the obligation. Nevertheless, common sense and fairness frequently end the obligation upon, or shortly after, completion of the first undergraduate degree or diploma. After all, section 31 was never intended to finance professional students. In my view, the first question to be asked when considering whether to extend a child-support obligation beyond the initial undergraduate degree or diploma is this: is the educational path upon which the child has been travelling, and upon which he or she wishes to continue travelling, a reasonable one? If the answer is "No", there usually is no need to ask further questions. Here, the path of [the child] was poorly mapped out: it was an educational cul-de-sac and not reasonable.… I might have viewed the matter differently were [the child] pursuing a degree for which the diploma was, in some significant way, preparatory.⁹

37Given that Joey (being 24 years old) is beyond the age of majority, the onus is on Ms. Osterland to establish entitlement to support for Joey.¹⁰ I have concluded that Ms. Osterland has not done so in this case.

38As previously noted, Joey has a three year Bachelor of Arts degree from Western, which he obtained approximately five years after completing high school. He is now enrolled in further undergraduate courses at another university on a full-time basis. I accept that he suffered from mental health issues that disrupted his post-secondary education, but there is no evidence before me that would allow me to assess the reasonableness of his current educational path. Joey is 24 years old and already has one undergraduate degree. On the evidence before me, Ms. Osterlund has not established that Mr. Lenahan has a legal obligation to support Joey beyond that time.

(iii) Dependent status of Karlina

39Turning now to Karlina, Ms. Osterlund is claiming for reimbursement of extraordinary expenses previously incurred. Those expenses included health-related expenses arising from Karlina's drug dependency issues as well as post-secondary education expenses.

40Karlina Lenahan was called by her mother to testify at the trial. According to Karlina's testimony and that of her mother, Karlina has suffered from drug dependency problems from an early age. She has been in methadone and suboxone treatment programs for opiate addiction, continuing to the present time. According to their testimony, Karlina has resided with Ms. Osterlund since her parents' separation except for four months from January to April 2011 when she was at Humber College. However, Karlina stated upon cross-examination that she has recently been staying overnight at her boyfriend's place up to four times per week. Karlina and her boyfriend are currently expecting a child. Karlina is not working, although she has been looking for employment. Karlina does not drive, and Ms. Osterland drives her to and from her medical and treatment appointments.

41As previously noted, Mr. Lenahan would not be responsible for extraordinary expenses incurred when Karlina was no longer a dependent child. On the evidence before me, I agree with Mr. Lenahan's counsel that Karlina ceased to be a dependent child in August 2009 when she turned 18, but was again a dependent child for the four month period from January to April 2011 when she was enrolled in a full time course in interior decorating at Humber College in Toronto. Karlina did not complete that course, but Mr. Lenahan has conceded that she was a dependent child during that period. Karlina was not enrolled in any other full time post-secondary education programs after she graduated from high school in 2009.

42As well, as was the case with Joey, I find that health-related issues (in Karlina's case related to drug dependency) cannot form the basis for a finding that Karlina continues to be a dependent child. As previously noted, that conclusion follows from the fact that the governing legislation in this case is the Family Law Act and not the Divorce Act. I note as well that Ms. Osterland expressly conceded in her response to the motion to change that Mr. Lenahan had no legal obligation to support Karlina unless she is enrolled in a full time post-secondary education program. At that time, Ms. Osterlund was represented by counsel. In particular, Ms. Osterland's response included the following paragraph:

The Applicant/mother understands and acknowledges that at the present time there is no legal obligation on the Respondent/father to support his 21 year old daughter who is not in attendance in a post secondary educational institution on a full time basis. Therefore, the Applicant/mother agrees to termination of the child support with respect to Karlina. However, if Karlina will return to school it is the Applicant's position that the Respondent should continue to support Karlina.

43In any case, even if the Divorce Act were applicable in this case, I am not satisfied that Ms. Osterlund has established that Karlina is unable by reason of illness, disability or other cause to withdraw from parental charge or to obtain the necessaries of life. As was the case with Joey, there is no admissible medical evidence before the court to establish the extent of any illness or disability or that it prevents Katrina from withdrawing from parental charge or obtaining the necessaries of life. As well, in the case of Katrina, there is additional reason to doubt the extent of parental control given the amount of time she spends at her boyfriend's place and her current status as a mother-to-be.

44Given my conclusion that Karlina was not a dependent child after April 2011, it follows that Karlina was not a dependent child at the time that Ms. Osterlund made her claim for extraordinary expenses on this motion to change in October 2012. By contrast, I have found that Joey was a dependent child until February 2013, which means that he was a dependent child when Ms. Osterlund made her claim for extraordinary expenses on this motion.

45Although not argued by Mr. Lenahan's counsel, I have concluded that in these circumstances, I have no jurisdiction to make any order for reimbursement of extraordinary expenses relating to Karlina. That result follows from the 2006 decision of the Supreme Court of Canada in S. (D.B.) v. G. (S.R.),¹¹ which deals with the issue of retroactive child support. In that decision, the Court held that the court below had no jurisdiction to make an order for retroactive child support if the child was not a dependent child at the time the application for support is made. The Court provided the following policy rationale for that conclusion:

An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status. ¹²

46Although the governing legislation in that case was the Divorce Act rather than the Family Law Act, I consider the same analysis to apply in this case. Accordingly, Ms. Osterlund's claim for extraordinary expenses for Karlina would fail on that ground alone.

(b) Sufficiency of evidence

47Mr. Lenahan's counsel argued that Ms. Osterlund has not provided sufficient evidence to support her claim for extraordinary expenses. In this regard, he cited previous court orders requiring Ms. Osterlund to provide supporting evidence for such expenses.

48In support of her claim for extraordinary expenses, Ms. Osterlund has placed before the court a significant number of invoices, receipts and bank records relating to expenses that she claims were incurred for the benefit of Joey or Karlina at various points in time. For both children, these records relate to claim for reimbursement of post-secondary education expenses and health-related expenses. These records were not organized in any methodical way. When asked about particular expenses during her testimony, she sometimes indicated that she was seeking 100 per cent reimbursement by Mr. Lenahan and in other cases partial reimbursement or no reimbursement at all. She also claimed that she incurred significant additional expenses, but did not produce receipts or other records at trial to support those expenses.

49Accordingly, in large measure, Ms. Osterlund left it to the court to sort out the amount of her entitlement for reimbursement of extraordinary expenses. In that regard, when considering the documentary evidence supporting Ms. Osterlund claim expenses, I found the considerations outlined below to be of assistance.

1. It was not necessary to consider the receipts or other records relating to expenses incurred for Karlina, given my conclusion that the court does not have jurisdiction to make an order reimbursing Ms. Osterlund for such expenses in this case.
2. It was not necessary to consider the receipts or other records relating to expenses incurred during periods in which Joey was not a dependent child, as outlined in the previous section. On that basis, Mr. Lenahan would not be required to provide reimbursement for any expenses incurred with respect to Joey after February 2013.
3. I find that Ms. Osterlund is not entitled to reimbursement for residential expenses for Joey when he was living away from home while at university. The same result would apply to residential expenses for Karlina while living away from home while at Humber College, even if the court had jurisdiction to consider such a claim. In this regard, as noted further below, Mr. Lenahan continued to make child support payments for two children in the amount of $1,122 per month for the entire period from 2006 until June 2014, even when one or other of the children was no longer a dependent child or was living away from home while pursuing post-secondary education. Had Mr. Lenahan been paying his proportionate share of residential expenses for the child while living away from home to attend university or college, it would have been appropriate for him to apply for reduction of his child support obligation for the period that the child was living away from home. Had he done so instead of continuing to pay child support for both children without reduction, the evidence indicated that Ms. Osterland would not have been in a better financial position. In reaching that conclusion, I have taken into account the fact that there was no adjustment of child support payments to account for changes in Mr. Lenahan's income. However, as indicated in the next section, I am satisfied that the total amount paid by Mr. Lenahan over the relevant period was greater than the amount he would have paid even if adjustments resulting from income changes had occurred.
4. With few exceptions, I did not find the documentary evidence provided by Ms. Osterlund to support her claim for extraordinary expenses to be sufficient to establish her claim. For example, some of the documentary support consisted of bank statements showing amounts that were paid out, withdrawn or transferred without any indication what the amounts related to, other than in some cases marginal notations by Ms. Osterlund inserted after the fact. In her testimony, Ms. Osterlund was often vague as to the expenses these entries were intended to support. In general, I did not find them of assistance to support her claim for extraordinary expenses.
5. As set out in the next section, I am satisfied that over the period from 2006 to June 2014, Mr. Lenahan overpaid child support to Ms. Osterlund in the amount of $11,042. I am also satisfied that contributed a total of $8,600 toward extraordinary expenses for Joey in the period from 2008 to 2011, consisting of university tuition. As well, I am satisfied that Ms. Osterlund has not established extraordinary expenses for Joey while he was a dependent child that exceeded the aggregate of those amounts. In this regard, I also note that the obligation of a parent under section 7 of the Child Support Guidelines to contribute to extraordinary expenses is subject to the guiding principle that the expense is shared by the parents in proportion to their respective incomes after deducting the contribution if any from the child. The evidence before me does not provide a sufficient basis for determining the extent of the contribution by Ms. Osterlund or Joey that would have been appropriate for such expenses.

50As a result of the foregoing, I have concluded that Ms. Osterlund has not established that she is entitled to any amount by way of reimbursement for extraordinary expenses.

(c) Offsetting overpayment of child support

51According to Mr. Lenahan, he overpaid child support in the period from 2006 to 2014, and such overpayment, together with additional amounts provided by Mr. Lenahan for extraordinary expenses since 2006, more than offsets any amount to which Ms. Osterlund may otherwise be entitled.

52In support of his position, Mr. Lenahan placed in evidence a chart showing how he calculated the amount of child support overpayment that he claims to have made (set out in Exhibit 2, tab 1). That chart set out the amount of child support actually paid by Mr. Lenahan in each year from 2006 to 2014 (referred to below as the "support paid") as well as the Guideline amount of child support he should have been paying based on his actual income in each year (referred to below as the "support due"). For each year from 2006 to 2013, the income figure used for the calculation of the support due was Mr. Lenahan's Line 150 income number as it appeared on the Notice of Assessment from the Canada Revenue Agency in that year. The 2013 income figure was also used to calculate the support due for the period January to June 2014, when Mr. Lenahan ceased making child support payments. The calculation of the support due with respect to Karina was made on the basis that Karina ceased to be a dependent child in 2009 when she completed high school, except for four months from January to April 2011 when she was enrolled at Humber College. With respect to Joey, the support due was calculated on the basis that child support should have ceased in April 2012, when Joey stopped attending university full time (rather than in February 2013, when he obtained his Bachelor of Arts degree). Using those figures as the basis for calculation, the chart showed a total net overpayment of child support of $22,536.

53Mr. Lenahan conceded that the calculation of the support due should be revised given his position at trial that Joey was entitled to child support until he completed his Bachelor of Arts degree in February 2013. With that adjustment, the amount of the net overpayment would be reduced to $11,042. I agree with Mr. Lenahan's calculation that he overpaid child support during the period 2006 to 2014 by at least that amount.

54Even though I agree with Mr. Lenahan's calculation of the support overpayment for the relevant period, it does not necessarily follow that Mr. Lenahan should be given full "credit" for that amount. Applying the principles set out in the Supreme Court of Canada decision in S. (D.B.) v. G. (S.R.) relating to retroactive child support, one could argue that Mr. Lenahan should receive no "credit" for any support overpayment made before he brought his motion to change in October 2012 unless he gave effective notice to Ms. Osterland prior to that date of that he intended to seek such credit.¹³ However, in this case, the evidence indicated that there was in fact a net underpayment of child support in the amount of $7,111 in the period prior to October 2012, which is more than offset by a $18,153 overpayment occurring after that time, resulting in a net overpayment of $11,042. As previously noted, Mr. Lenahan conceded that Ms. Osterlund should receive the benefit of support overpayments in recent years to the extent that they offset previous underpayments. Ms. Osterlund therefore benefits from calculating Mr. Lenahan's net child support obligation for the entire period since 2006, rather than commencing at the date of the motion for change in October 2012.

55Mr. Lenahan also claims credit for payments that he previously made as contributions toward extraordinary expenses totalling $10,738.95. In this regard, Mr. Lenahan placed in evidence a chart (Exhibit 2, tab 8), showing seven payments totalling $9,738.95 in the period from November 2007 to September 2011. The chart entries were supported by copies of cancelled cheques payable to Ms. Osterlund (Exhibit 2, tab 9). Five of those cheques, dated from May 2008 to September 2011 and totalling $8,600, indicated on their face (in the "memo" section) that they were for university tuition for Joey. Mr. Lenahan also provided a further cancelled cheque dated January 6, 2014 in the amount of $1,000 payable to Ms. Osterlund marked "University Degree" (Exhibit 3), which Mr. Lenahan testified he gave to Joey to pay the tuition for a university course that Joey wished to take.

56Based on the testimony of Mr. Lenahan and the documentary evidence he has provided, I find that he has established contributing a total of $8,600 toward extraordinary expenses for Joey consisting of university tuition while he was a dependent child. I am not including the payment supported by the January 2014 cheque since Joey was no longer a dependent child at that time. I am also excluding payments made in November 2007 in the amount of $1,000 and in June 2009 in the amount of $138.95 since the evidence provided was not sufficient to establish that they related to extraordinary expenses claimed on this motion. In this regard, Mr. Lenahan stated that he thought that the November 2007 cheque was provided in settlement of previous claims by Ms. Osterlund for extraordinary expenses, and thought that the cheque for $138.95 probably related to the uninsured portion of prescription expenses, but he was not sure. In the absence of other supporting documents relating to those payments, I do not consider the evidence provided to be sufficient in the circumstances.

57Taking into account Mr. Lenahan's overpayment of child support in the amount of $11,042 and his contribution toward Joey's university tuition in the amount of $8,600, I am prepared to give Mr. Lenahan credit for a total of $19,642 with respect to Ms. Osterlund's claim for extraordinary expenses for Joey while he was a dependent child. Having heard Ms. Osterlund's testimony and examined the supporting documentary evidence, I find that she has not come anywhere close to establishing a claim in that amount for extraordinary expenses for Joey while he was a dependent child. In any case, as previously noted, the evidence before me does not provide a sufficient basis for determining the extent of the contribution by Ms. Osterlund or Joey that would have been appropriate for such expenses.

58For the foregoing reasons, Ms. Osterlund's claim for extraordinary expenses is dismissed.

IV Spousal support

59During her submissions at trial, Ms. Osterlund indicated that she is claiming spousal support from Mr. Lenahan, although she did not indicate a specific amount or duration for payments. The basis for her claim appeared to be both compensatory and need-based.

60Mr. Lenahan resisted Ms. Osterlund's claim for spousal support on a number of grounds, as outlined below.

• (a) Spousal support not pleaded: Ms. Osterland has not properly claimed spousal support in these proceedings. There was no claim for spousal support in Ms. Osterlund's response to the motion to change, and leave to amend her response was not sought or given.
• (b) Delay: The parties separated as early as August 1994 and no later than October 1999. Ms. Osterland's claim for spousal support should be dismissed because of delay in seeking that relief in these proceedings.
• (c) Spousal support entitlement: Ms. Osterland has not established her entitlement to spousal support on either a compensatory or need basis. There is no evidence to support a compensatory claim. The roles adopted by the parties during the marriage did not result in the loss of economic opportunity by Ms. Osterlund. As well, there is insufficient evidence to support a need-based claim. There is no evidence that Ms. Osterlund is unable to support herself. Joey and Karlina are no longer dependent children. Ms. Osterland has no entitlement to spousal support to allow her to care for adult children who are not legally entitled to support from their father.

61I will deal with each of these points in turn below.

(a) Spousal support not pleaded

62Mr. Lenahan's position is that a claim for spousal support is not properly before the court on this motion to change. I agree. I am prepared to dismiss Ms. Osterland's spousal support claim on that basis alone.

63In order for a litigation party to obtain relief from the court, it is important that the party properly plead the relief sought. The responding party then has the opportunity to answer the claim. On this motion for change, this procedure was not followed with respect to the issue of spousal support.

64There was no claim for spousal support in Ms. Osterlund's response to the motion to change in October 2012. Ms. Osterlund was represented by counsel at that time, continuing until after this motion was initially set down for trial. As previously noted, Ms. Osterlund raised the issue of spousal support in an affidavit dated June 3, 2014, but did not seek leave to amend her application to include a claim for spousal support. I am not prepared to make an order for spousal support in these circumstances. As will be apparent from the balance of my reasons, this conclusion does not result in an injustice, since I have also concluded that Ms. Osterlund would not be entitled to spousal support on the merits in this case.

(b) Delay

65Mr. Lenahan's position is that Ms. Osterland's claim for spousal support should be dismissed because of delay in seeking that relief. I agree.

66In support of that position, Mr. Lenahan's counsel referred to the 2006 decision of Justice Nolan of this court in Nobrega v. Nobrega,¹⁴ which cited with approval the following passage for the early decision of Justice Tucker in Walker v. Green:¹⁵

The law provides time delay does not bar a claim for support provided that there is reason for the delay and the events that have transpired since the delay.

67In this case, the parties agree that they first separated in August 1994. However, Ms. Osterlund's testimony was that the separation was temporary, and that the parties reconciled, finally separating in October 1999 when the matrimonial home was sold. Mr. Lenahan disagreed, stating in his testimony that the parties attempted to reconcile but the attempts were unsuccessful. His position was inconsistent on its face with the statement in his motion to change information form that the parties separated in October 1999. However, in Ms. Osterlund's 2000 application in the Ontario Court of Justice, she listed their separation date as August 1994, the date now advocated by Mr. Lenahan.

68Whatever the actual date of final separation, there is no doubt on the evidence that the parties' marriage was in serious difficulty by August 1994, and that they separated no later than October 1999, over 15 years ago. In March 2006, Ms. Osterlund was given leave to amend her 2005 application within 30 days to seek spousal support, but did not do so prior to the issuance of the June 2006 final order. That order specifically stated that Ms. Osterlund was not amending her proceeding. In August 2007, Ms. Osterlund brought a new application in the Superior Court claiming, among other things, compensatory spousal support. However, there is no evidence before the court that this application was pursued after November 2008, when the time lines were extended for a further 60 days. In any event, if that application was still outstanding, it would have been stayed pursuant to subsection 36(1) of the Family Law Act when Mr Lenahan brought his divorce application in 2011. There was no motion to lift the stay. As well, as previously noted, Ms. Osterlund did not claim spousal support in her response to this motion to change, nor has leave been sought or given to claim spousal support.

69Given the delay of 15 years or more from the parties' separation until spousal support was raised in these proceedings, as well as the procedural history I have outlined, I find that there are ample grounds for dismissing Ms. Osterlund's spousal support claim for delay. In reaching that conclusion, I have also taken into account the merits of Ms. Osterlund's spousal support claim, as outlined further below, which led me to conclude that Ms. Osterlund would not be entitled to spousal support.

(c) Spousal support entitlement

70Mr. Lenahan's position is that Ms. Osterland has not established her entitlement to spousal support on the merits. I agree.

71The principles to be applied when considering a claim for spousal support were considered by the Supreme Court of Canada in Moge v. Moge¹⁶ and Bracklow v. Bracklow.¹⁷ The latter decision in particular recognized that entitlement to spousal support may be compensatory, need-based or contractual in nature, depending on the circumstances of the particular case.¹⁸

72When considering the compensatory basis for spousal support, the courts have endorsed an expansive approach, its purpose being the equitable distribution of the economic consequences of the relationship. The courts have recognized many different circumstances that could give rise to compensatory claims, the most common being where a spouse has sacrificed labour force participation to care for dependent children. Spousal support granted on that basis provides compensation for the loss of economic opportunity resulting from the roles adopted during the marriage.

73The courts have also recognized that there is a non-compensatory basis for spousal support based on need alone, even when the need does not arise from the roles adopted during the marriage. The extent of the former spouse's obligation may be dependent on many factors, including the length of the relationship, the way the relationship was structured, ability to pay and any re-partnering of the parties.

74In this case, there was no evidence to support an award of compensatory spousal support. As well, I have concluded that Ms. Osterlund has not established entitlement to spousal support on a need basis.

75According to Ms. Osterlund's testimony, she became economically self-sufficient after the final separation from her husband in 1999. From 1999 to 2005, she operated a successful hairdressing shop out of premises which she owned. She and the children lived in separate premises in the same building. According to her testimony, she earned approximately $40,000 per year from her hairdressing business. She sold that building along with her business assets in 2005, and testified that she has earned little income since that time. According to her testimony, she was in three motor vehicle accidents within the span of a few weeks in 2004, resulting injuries that affected her ability to work. She also settled her claims arising out of the accidents in 2010 for $140,000, and that her physical ability to work is no longer impaired. In 2011, she began working part-time, including as a hairdresser and a clerk in convenience stores. According to her testimony, she is unable to work longer hours, given in particular the fact that neither Joey and Karlina are able to drive, and that she transports Joey to school and both Joey and Karlina to health-related appointments.

76Based on the foregoing, in the context of all the evidence before me, I have concluded that Ms. Osterlund has not established her entitlement to spousal support in this case. There is no evidence to support a compensatory claim for the loss of economic opportunity resulting from the roles adopted during the marriage. According to the evidence, she was self-sufficient for a number of years after the parties' final separation in 1999, running her own successful business. To the extent that she has any need for support at the present time, there is no evidence that it has anything to do with the roles adopted by the parties during the marriage.

77As well, Ms. Osterlund has not established her entitlement to spousal support on the basis of need. While she has not been working full time, there is no evidence that she is unable to do so because of any physical or other health-related incapacity. The evidence is quite the contrary. Her testimony was that she is unable to work full-time because she is attending to the needs of Joey and Karlina. She obviously believes that it is her duty to attend to her children's needs, and I certainly commend her obvious devotion to them. However, for the reasons previously given, Joey and Karlina are no longer dependent children who are legally entitled to support from their parents. Ms. Osterlund is not entitled to receive child support for Joey and Karlina from Mr Lenahan. Equally, she has no entitlement to spousal support to allow her care for adult children who are not legally entitled to support from their father.

V. Conclusion

78For the foregoing reasons, a final order will issue in the following terms.

1. The final order of Justice Tucker dated June 12, 2006 is varied as follows: (a) The obligation of the Respondent Joseph Lenahan to pay child support to the Applicant Linda Osterlund for the child Joseph Lenahan (born April 8, 1990) is terminated effective June 30, 2014; (b) The amount of retroactive child support due to the Applicant from the Respondent for the child Joseph Lenahan is set at zero; (c) The amount of retroactive child support due to the Applicant from the Respondent for the child Karlina Lenahan (born August 20, 1991) is set at zero; and (d) The Applicant and the Respondent are no longer required to exchange income tax returns and notices of assessment;
2. The Applicant's claims for extraordinary expenses and spousal support from the Respondent are dismissed;
3. A support deduction order will issue; and
4. Costs, if demanded and not settled by the parties, will be determined based on written submissions.

79Mr. Lenahan may serve and file brief written submissions (not to exceed three pages) together with a bill of costs and any pertinent offers within 21 days. Ms. Osterlund will have 14 days after receipt of Mr. Lenahan's submissions to respond by brief written submissions. Mr. Lenahan may reply by brief written submissions within seven days. All such submissions are to be forwarded to me at my chambers at 45 Main Street East, Suite 626, Hamilton L8N 2B7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs.

The Honourable Mr. Justice R.A. Lococo

Footnotes

1. 1R.S.O. 1990, c. F.3.
2. 2O. Reg. 391/97.
3. 3R.S.C. 1985, c. 3 (2nd Supp.).
4. 4[2009] O.J. No. 2066 (S.C.).
5. 5Ibid. at para. 13.
6. 6[2007] O.J. No. 2956 (S.C.).
7. 7Ibid. at paras. 16 and 17.
8. 8[2005] O.J. No. 3324 (S.C.).
9. 9Ibid. at para 42.
10. 10Vohra v. Vohra, 2009 ONCJ 135, [2009] O.J. No. 1446 (C.J) at para. 13.
11. 112006 SCC 37, [2006] 2 S.C.R. 231.
12. 12Ibid. at para. 88.
13. 13Ibid. at para 211.
14. 14[2007] O.J. No. 1134 (S.C.).
15. 15[2003] O.J. No. 3396 (S.C.) at para 35.
16. 16[1992] 3 S.C.R. 813.
17. 17[1999] 1 S.C.R. 420.
18. 18The approach taken by the courts to spousal support is discussed in in the Spousal Support Advisory Guidelines (SSAG) under the heading “1.1 Judicial Interpretation.” The comments that follow in these reasons draw on the discussion contained in SSAG.