ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D19,088-10

DATE: 2014-12-09

BETWEEN:

Janice Innocente

Applicant

– and –

Paul Innocente

Respondent

Réjean Parisé, for the Applicant

Christopher D. McInnis, for the Respondent

HEARD: December 2, 2014

REASONS FOR JUDGMENT

GAUTHIER J.

The Motions

[1] The Respondent moving party (the “father”) seeks the following relief:

1. An interim and permanent Order varying the Order of the Honourable Justice Poupore dated November 13, 2012 and the Order of the Honourable Justice Cornell dated March 14, 2012 by reducing the quantum of child support payable for one child effective September 1, 2013.

2. An interim and permanent Order varying the Order of the Honourable Justice Poupore dated November 13, 2013 and the Order of the Honourable Justice Cornell dated March 14, 2012 by reducing, or eliminating child support payable by the Respondent, effective June 1, 2014.

3. An Order fixing the Applicant’s pro-rated share of post-secondary expenses incurred by the Respondent on behalf of the child Jamie for his 2013/2014 academic year and requiring reimbursement to the Respondent to be paid within 30 days.

4. An Order abridging the time for service of the within motion.

5. Costs on a substantial indemnity basis plus HST.

6. Such further and other relief as counsel may advise and this Honourable Court may permit.

[2] The Applicant responding party (the “mother”), for her part, asks that she be granted the following relief:

1. An order abridging the time of service of this motion, if necessary.

2. That the child support the Respondent pay to the Applicant effective November 1, 2013 shall be $1267.00 per month for the child, Samantha Innocente, born July 4, 1992, based upon the Respondent’s income of $150,530.18 and a further sum of $238.00 per month for the months of July and August 2014 for the child, James Innocente, born February 15, 1995, and further a provision that the special expense proportionate for the post-secondary education costs for the two children be set using the Respondent’s income of $150,530.18 and the Applicant’s, inclusive of spousal support, of $56,537.64 annually, being 73 percent of all special expenses.

3. Costs on a full recovery basis.

Facts and History of the Proceedings

[3] The parties married on August 12, 1989, and separated on March 31, 2007. They have two children of their union: Samantha, born July 4, 1992, and James, born on February 15, 1995. The children are currently 22 and 19 years of age respectively.

[4] Family Law Act proceedings were commenced by way of Application issued on May 28, 2010. The answer delivered by the father in June of 2010 claimed relief pursuant to the Divorce Act. On March 14, 2012, a Final Order was made in accordance with Minutes of Settlement.

[5] Among other things, the Order provided for support for the two children as follows:

(a) Effective February 1, 2012 and on the first day of each month thereafter, Paul Innocente will pay child support for the child Jamie Innocente born February 15, 1995 in the amount of $620.00 per month based upon the following:

i) Paul’s current salary of $140,000.00;

ii) Janice’s 2011 Income of $60,296.00;

iii) the shared equal residency of the child;

iv) the setoff calculation under Section 9 of the Guidelines without

regard to the other considerations under Section 9 of the

Guidelines.

(b) The issue of Jamie’s residency is reviewable to December 31, 2012 with any support adjustments being made retroactive to the date Jamie’s residency changed.

(c) i) The parties will each contribute their proportionate share of Samantha Innocente’s post-secondary costs from September 1st to April 30th of each year starting in 2011 with Paul paying the sum of $442.00 per month and Janice paying the sum of $207.00 per month during the relevant period, directly to Samantha and based upon the following:

A. contribution to rent, groceries, tuition and book

expenses;

B. Samantha’s own contribution toward her expenses and

reduction in costs because of applicable bursary, grant, scholarships etc.;

C. the parties respective incomes;

ii) The parties will contribute to Jamie Innocente’s and Samantha Innocente’s Section 7 Expenses in accordance with Guidelines, prorated to their incomes.

(d) The quantum of child support is reviewable June 1st each year starting in 2013 with adjustments made effective June 1st each year based upon the preceding year’s income tax disclosure and in accordance with the Guidelines.

(e) In addition to the review, primary residence and child support is otherwise subject to variation based upon a material change of circumstance.

[6] The parties were divorced from each other effective May 4, 2012.

[7] At the time of the March 2012 Order, Samantha was attending Laurentian University, doing a four year biochemistry degree program. She was living on her own in an apartment.

[8] The March 14, 2012, Order reflected the parties’ agreement to a budget for Samantha and contemplated Samantha’s own contribution to her post-secondary costs, including housing, while she was living on her own.

[9] James’ residence alternated between the home of his mother and his father. He was in high school.

[10] The mother brought a Motion to Change a Final Order on September 11, 2012, seeking to have the father pay child support for Samantha and James, in the amount of $1,347 per month, effective July 1, 2012. This amount was in accord with the Child Support Guidelines and based on the father’s income being $140,000 per year. The mother requested that the Final Order of March 14, 2012, be varied to reflect the fact that, as of July 1, 2012, Samantha began to live with the mother in her home, having given up her apartment.

[11] On November 13, 2012, Poupore J. made the following Order:

THIS COURT ORDERS THAT paragraph 6 of the Order of His Honour Justice R.D. Cornell of March 14, 2012 is varied and replaced with:

“On an interim basis the Respondent shall to the Applicant child support in the amount of $1,347.00 per month for the two children James Innocente, born February 15, 1995, and Samantha Innocente, born July 4, 1992, commencing on July 1, 2012.”

[12] On November 28, 2012, the father responded to the Motion to Change and advanced his own claim for the following relief:

(a) An interim and permanent Order varying paragraphs 6, 8(a) and 14 of the Order of Justice Cornell dated March 14, 2012 as follows:

i) reducing/eliminating the Section 7 Expense contribution for Samantha to include tuition and books only in paragraph 8(a)(i);

ii) terminating the fixed monthly amount set out in paragraph 8(a);

iii) reducing/varying the amount of spousal support in paragraph 14 to $731.00 per month, retroactive.

iv) varying and/or reducing the child support obligation retroactive to June 1, 2012.

(b) An Order requiring to Applicant to disclose proof that she paid her s. 7 expenses as required under the Order of Justice Cornell dated March 14, 2012.

(c) An Order crediting the Respondent for the overpayment of support to date.

(d) Costs on a substantial indemnity basis.

[13] The father indicated that his income was down from $140,000, to $133,225. He also requested a reduction in spousal support, from $1,356 to $731, effective September 1, 2012, given that his child support obligations had increased with Samantha having moved back into the mother’s home.

[14] The father brought a Motion, returnable on June 6, 2013, for a reduction in the spousal support effective June 1, 2012, and for an elimination of the obligation to contribute to Samantha’s post-secondary expenses.

[15] The Motion was dismissed on July 11, 2013.

[16] The motions that are before me were brought May 22 and June 23, 2014, respectively.

[17] There is one further motion, which was not argued before me. It is the father’s Motion, dated June 24, 2014, seeking leave to amend his pleadings to claim reimbursement of section 7 expenses retroactively.

[18] Samantha has continued to attend Laurentian University and is currently completing the fifth year of the biochemistry program. She is also employed part-time. Samantha aspires to attend medical school. She continues to live with the mother.

[19] The mother purchased a vehicle for Samantha to use to get to school and to her part-time job. The vehicle was purchased in 2012, after the Final Order. The expenses associated with that vehicle are, according to the mother, proper s. 7 expenses the payment of which the father should be contributing.

[20] James completed high school and began his post-secondary studies at Queen’s University in Kingston, in September, 2013. He is continuing his post-secondary education at Queen’s. It is not known if he will return to Sudbury for the summer.

[21] The mother is no longer employed, her employment having terminated in October, 2013, as a result of a medical condition which prevents her from working full time. She received Employment Benefits for some time, but those ceased in October, 2014. She continues to cohabit with another man in a common law relationship, and is in receipt of C.P.P. disability benefits.

[22] Samantha and James each receive the sum of $250 per month from C.P.P. The parties agree that those C.P.P. benefits belong to the children, and are neither included in the mother’s income, nor used to reduce the father’s child support obligations. See Sipos v. Sipos [2007] O.J. No. 711 (C.A.).

[23] The father continues to be employed as an accountant, earning approximately $150,000 per year.

Mother’s Position

[24] The mother has identified four discrete issues to be dealt with:

1. Whether Samantha continues to be entitled to child support;

2. Whether the assistance provided to Samantha by the mother in the form of payment of a car loan and insurance for the vehicle is an acceptable expense under s. 7 of the C.S.G.;

3. Whether the father should be paying table amount child support for James for the summer months when he is in Sudbury and not attending university; and

4. What are the special expenses for the two children from March, 2013 to the present, along with the percentage proportionate contribution of each parent and the accounting of these special expenses to date.

[25] As a preliminary issue, the mother raises the matter of the Court’s jurisdiction to vary the temporary order of Poupore J. made on November 13, 2012. The mother maintains that the provisions of the Divorce Act do not permit a variation of a temporary order. I have been referred to jurisprudence in support of this position, which I will deal with later in these reasons.

[26] The mother requests that the father’s motion be dismissed and that the November 13, 2012, temporary order continue until a hearing of the Motion to Change, and that the father be ordered to pay the table amount of child support for James for the months of May to August, 2014, inclusive.

Father’s Position

[27] The father submits that the Court does have jurisdiction to vary the temporary order of November 13, 2012, and that the jurisprudence supports such position.

[28] The father suggests that the test for variation of a temporary order was set out by Blishen J. in Biddle v. Biddle [2005] O.J. No. 737, at paragraph 18, where she indicated that,

The jurisprudence with respect to the variation of interim support orders indicates that such applications are not to be encouraged and that a substantial change in circumstances is necessary before such application should be permitted.

[29] The father suggests further, that if the Court has jurisdiction to make a temporary order such as the one made by Poupore J., then surely it has the jurisdiction to make an order varying it, pending a final hearing of the Motion to Change.

[30] The father seeks an order that effective September 1, 2013, he pay child support for Samantha in the amount of $1,267, based on his 2013 income of $150,530, and that as of June, 2014, the child support for Samantha be reduced to $650 per month, based on subsection 3(2)(b) of the Child Support Guidelines.

[31] The father relies on the provisions of subsection 3(2)(b) of the Child Support Guidelines in submitting that the table amount of child support is inappropriate given Samantha’s age, the fact that she has embarked on a fifth year of post-secondary education with a full course load when all she needed was six credits, that she is in receipt of income from employment and from OSAP, and the fact that James is away at school and not residing with the mother.

[32] Although Samantha may continue to be entitled to child support from June 1, 2014, forward, such child support should be at a reduced amount (not the table amount) and should not include the vehicle expenses as these are unreasonable in the circumstances.

[33] Effective July 1, 2014, the father should have no obligation to pay child support for Samantha.

[34] With regard to James, the father suggests that the parties’ obligation should continue to be based on James’ post-secondary costs, and not on the table amount, for any period of time, including the summer. James’ plans for the summer 2015 are unknown, and, the lease in connection with his accommodation in Kingston is a twelve month lease, including the months from May to August, inclusive.

Common Ground

[35] Neither party challenged the validity of the November 13, 2012, Order and both parties agreed that, following whatever order I make, the Motion to Change should proceed to a Settlement Conference. Neither party was seeking a final order from me.

[36] Notwithstanding that the parties did not take issue with the validity of the November 13, 2012, Order, I wish to nonetheless deal with the Court’s power to make a temporary order varying a final order.

The Divorce Act

[37] Subsection 2(1) provides that:

A “child support order” means an order made under subsection 15.1(1).

[38] Section 15 deals with child support orders and provides as follows:

15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

[39] The variation of orders is dealt with at section 17 of the Act:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(4) 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) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Temporary Variation of a Final Order

[40] Del Frate J. in Fredette v. Fredette, [2005] O.J. No 4938, stated the following, at paragraphs 3, 4, and 5:

3. There are two lines of decisions regarding jurisdiction. One, no variation ought to occur since the legislation did not expressly provide for such. See Deveto v. Deveto, 1994 3841 (ON CJ), [1994] O.J. No. 2310; Boyer v. Bradley, 1995 3846 (ON SC), [1995] O.J. No. 1670; Tomkins v. Tomkins, 1996 4794 (ON CJ), [1996] O.J. No. 3549.

4. The other line of reasoning permits a variation if hardship is demonstrated. See: French v. Woods, 1992 7797 (ON SC), [1992] O.J. No. 2017; Crawford v. Dixon, 2001 28121 (ON SC), [2001] O.J. No. 466. The Crawford decision reviews in detail, other decisions against and in favour of permitting a variation.

5. I prefer the reasoning adopted by Granger J. in the Crawford decision where he writes at page 6, paragraph 14:

On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.

[41] The legislation does not expressly grant the power to make an interim or temporary variation of a Final Order. While subsection 15.1(2) of the Divorce Act permits the court to “make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1)”, section 17 dealing with the variation of orders makes no reference to the court’s authority to make any interim or temporary order.

[42] It is reasonable to assume that having expressly granted the authority for interim or temporary relief for some orders, the exclusion of such authority on variation is clear and deliberate.

[43] Such comment was made in Tomkins v. Tomkins 1996 4794 (ON CJ), [1996] O.J. No. 3549, where Agro Prov. J. made a significant observation, at paragraph 16 of her decision:

16 In those instances where the Legislature has authorized interim relief, that authority was granted to avoid undue hardship or to prevent some mischief with the family dynamic that would otherwise frustrate the legislative intent as expressed in the preamble. For example, under section 12, orders for preservation of property may be made on an interim or final basis; as may be orders under section 24 respecting the matrimonial home and its contents; under section 34 for support; under section 40 to restrain the depletion of property; and under section 46 to restrain harassment.

[44] Although Agro J. was dealing with the variation provision of the Family Law Act, there appears to be little or no difference between the variation provisions of the Family Law Act, and those contained in the Divorce Act.

[45] In those cases where a temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:

(a) To prevent undue hardship. Dancsecs v. Dancsecs (1994), 1994 7434 (ON SC), 5 R.F.L. (4th) 64 (Ont. Gen. Div.);

(b) Where the failure to make the interim order would be incongruous or absurd. Rogers v. Rogers (1990), 1990 12231 (ON SC), 27 R.F.L. (3d) 214 (Ont. H.C.) and French v. Woods (1992), 1992 7797 (ON SC), 42 R.F.L. (3d) 345 (Ont. Gen. Div.); and

(c) Where there is a pressing and immediate urgency. See McTaggart v. Hilton, [1994] O.J. No. 1069.

[46] The most recent decision to which I was referred on this issue is that of V. Mitrow J. in Clark v. Vanderhoeven 2011 ONSC 2286, [2011] O.J. No. 1759.

[47] Like Del Frate J., Mitrow J. prefers the principle that the court does have jurisdiction to make interim variation of a final order. With respect to the test to be applied, he referred to Hayes v. Hayes, 2010 Carswell Ont. 4796 (On. S.C.J.). In that case, Spies J. had this to say, at paragraph 38:

…An interim variation of the underlying support order is the most drastic intervention a court could make pending a final hearing of a motion to change. The cases are not clear on what is required to show that continuation of the order would be “incongruous and absurd.” The plain meaning of these terms would suggest the order is inappropriate, unreasonable or ridiculous.

[48] I conclude, as did Del Frate J. and Mitrow J. among others, that there is jurisdiction to make an interim variation of a final order, where the circumstances warrant it.

[49] I turn now to the power of the court to vary an interim order made within a Motion to Change a Final Order.

Variation of the Interim Order

[50] The analysis involved in determining whether the court has jurisdiction to make an interim variation of a final order is relevant to the issue of the availability of a further interim order.

[51] I was referred to two cases relied upon by the mother for the proposition that there is no jurisdiction to vary the temporary order of November 13, 2012.

[52] The first case is the Court of Appeal decision in Brooks v. Brooks 1998 7142 (ON CA), [1998] O.J. No. 3186. In that case, the court commented that the power to vary an order under section 17 of the Divorce Act is limited to a final order and does not extend to an interim order. This is in keeping with the discussion above dealing with the power of the court to grant an interim variation of a final order. Section 17 of the Divorce Act does not contemplate interim orders or variation of interim orders. There is no express power to vary an interim order under that section. See Thom v. Thom [2014] O.J. No. 2115.

[53] This latter decision made the following comment about variations of interim orders, at paragraph 60:

…Given that interim orders are “meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial: (see Brown v. Brown, 1999 15074 (ON SC), 45 O.R. (3d) 308 (Ont. S.C.J.) at para. 34), requests to change them should be rare.”

[54] The Judge in the Thom case denied the request to vary the interim order as there was little change in the circumstances since the making of that order. A reading of the facts suggests that there certainly was nothing compelling such as the need to prevent hardship, or avoid absurdity, or a pressing and urgent need to change the existing order.

[55] Although the variation of interim orders should be an infrequent event, it is not beyond the jurisdiction of a superior court, where the circumstances justify it.

[56] I suggest that the same principles that apply on an interim variation of a final order, apply to the issue of the variation of an interim order.

[57] In applying those principles to the facts of this case, I am of the view that the circumstances do not justify the Court making a further interim order within the framework of the Motion to Change.

[58] The evidence establishes that Samantha continues to reside with the mother and in full-time attendance at Laurentian University. The father’s evidence is that Samantha is planning to move out of the mother’s home, into an apartment with her boyfriend.

[59] The issue of Samantha’s continued entitlement to child support and the quantum thereof is better left to the Judge at the final hearing of the Motion to Change.

[60] The amount that the father was ordered to pay in November 2012 for two children is less than $100 higher than the table amount for one child, using the current guidelines. Both parties referred to the sum of $1,267 as the appropriate table amount for Samantha, at least until June 2014.

[61] James’ needs are apparently being addressed by the parties contributing to his post-secondary expenses. Any dispute about the appropriateness of any expenses, or which party paid what expense, can be dealt with at the final hearing.

[62] It appears then that, to a large extent, both children’s support needs are currently being met by the existing temporary order. While there is an issue about what are proper section 7 expenses and how the parties should share these, and while there is an issue about the appropriateness of a table amount for James for the summer months, these issues are not, in my view, urgent or pressing. To continue the November 2012 Order until a final hearing of the Motion to Change will not cause undue hardship to either party, nor is it absurd or incongruous.

[63] Final orders are meant to be just that: final. In the absence of a provision such as is found in section 17 of the Divorce Act, a final order for support would be like any other judgment of the court that is, not subject to review or variation except by way of appeal.

[64] Motions for temporary orders within the framework of motions to change final orders should be the exception, rather than the rule.

[65] The words of Pardu J. in Parr v. Lavallee 1992 14010 (ON SC), [1992] O.J. No. 1377, are particularly instructive:

23. There are numerous circumstances in which it might be envisaged that it would be necessary to protect the best interests of a child by an interim variation of support in a variation application. In times of unemployment a parent may be ordered to pay only nominal support. Where a child is in need of support, the parens patriae jurisdiction may be utilized to make an interim order for support in a variation application under the Divorce Act, 1985 or the Family Law Act. Given the length of time that these applications require to get to a hearing, it is not appropriate that a child’s needs should fail to be met in this interval. There may be circumstances where the custodial parent has lavish resources and can provide for the child pending trial, and the respondent has resources such that he or she may be ordered to make a retroactive adjustment of support. However, where there is an urgent need on the part of a child for support, the parens patriae jurisdiction affords a basis to a superior court of record, in making an interim order, to provide for the child. It cannot have been the intention of the legislature or Parliament that a child’s needs not be met or that a child should have to resort to public assistance pending the hearing of a variation application, and there is no indication in either statute that it was intended to oust the parens patriae jurisdiction of the court.

24. It is apparent from the above that this jurisdiction may be invoked only to protect the best interests of a child and does not permit interim variation of support by way of a reduction in child support in a variation application brought pursuant to s. 17 of the Divorce Act, 1985.

[66] I suggest that Pardu J.’s comments are equally applicable to the variation of a temporary order under s. 17 of the Divorce Act.

[67] For the reasons set out herein, I dismiss both the father’s and the, mother’s Motion, neither party having met the test to permit the granting of another temporary order.

[68] In the event that the parties are unable to agree on costs, they should communicate with the Trial Co-Ordinator within 10 days to set a date to argue costs before me.

The Honourable Madam Justice Louise L. Gauthier

Released: December 9, 2014

COURT FILE NO.: D19,088-10

DATE: 2014-12-X09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Janice Innocente

Applicant

– and –

Paul Innocente

Respondent

REASONS FOR JUDGMENT

Gauthier J.

Released: December 9, 2014