Catena v. Catena, 2015 ONSC 3186

COURT FILE NO.: F1799/12

DATE: May 29, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Cindy Fay Catena, applicant

AND:

Dominic Frank Catena, respondent

BEFORE: HENDERSON J.

COUNSEL: Katherine E. Orkin for the applicant

Dominic Frank Catena appearing in person

HEARD: January 20 and 21, 2015

ENDORSEMENT

[1] This is a motion to change brought by the applicant to vary the order of Kerrigan-Brownridge J. dated May 11, 2009. Although the applicant initially sought further relief, the only issue tried was a retroactive variation of child support back to 2010.

Background

[2] The parties lived in a common law relationship from 1982 – 1997. There are two children of the relationship: Alexandra Marie Catena, born June 5, 1993, and Angelina Danielle Catena, born July 14, 1994.

[3] The order of Kerrigan-Brownridge J. dated May 11, 2009 was issued pursuant to minutes of settlement. Among the terms of the order was a provision the arrears of child support were fixed at $20,000 and repayable by the respondent at $500 per month until satisfied. In addition, child support was determined on a split custody basis: the applicant having custody of Angelina and the respondent having custody of Alexandra. The applicant’s annual income was determined to be $39,285 and the respondent’s annual income was “estimated” at $98,000. The respondent was ordered to pay $500 per month as a setoff in accordance with s. 8 of the Ontario Child Support Guidelines, O. Reg. 391/97 [as amended]. Finally, the parties were ordered to exchange their notices of assessment by June 1 of each year.

[4] Although contested, the applicant alleges Alexandra moved back to her mother’s home in mid-August 2009 where, but for agreed periods of time when she was at neither home, she remained until May 2013.

[5] During the trial, I received no evidence as to the status of the arrears set out in the order of Kerrigan-Brownridge J. If the respondent complied with the re-payment regime, they should have been satisfied by now. In any event, these proceedings will not vary that term of the order. It does appear, however, that $500 per month continues to be paid by the respondent.

[6] Prior to the commencement of trial, the parties agreed that child support terminated for Angelina effective October 1, 2012 and that support for Alexandra terminated not later than May 1, 2013.

Issues

[7] There are three questions before the court: first, does the applicant have jurisdiction to bring this matter?; is Alexandra entitled to support and, if so, over what period?; thirdly, should a retroactive order be made?

i) Jurisdiction

[8] The applicant commenced the motion to change when neither child was a child of the relationship. There is case law which holds that, in that circumstance, the applicant may be precluded from commencing these proceedings.

[9] The motion to change was issued November 14, 2012. At that time Alexandra was 19 years of age and, it is conceded, at that time not attending school. Angelina was 18 and had left home. On consent, support for Angelina terminated September 30, 2012.

[10] Section 31(1) of the Family Law Act, R.S.O. 1990, c.F.3, provides that every parent has an obligation to support their unmarried child who is a minor or is enrolled in a full time program of education. In addition, subsection (2) requires, with respect to a child over the age of 16 not to have withdrawn from parental control, for there to be a support obligation.

[11] I will set out in more detail Alexandra’s educational history below. However, although the parties disagree as to where Alexandra was residing, they both agree she was not attending school in November 2012 and, therefore, not a child within the meaning of s. 31.

[12] The jurisdictional issue arises as a result of the decision of Bastarache J. of the Supreme Court in the seminal case of D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.) (“D.B.S.”). He held on a strict reading of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], in order to bring an originating application, an adult child who is the subject of the child support claim has to be a child of the marriage at the time of the application. Specifically, the court noted at para. 89:

An adult i.e. one who is over the age of majority and is not dependant, 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 support earlier in life. Child support is for children of the marriage, not adults who used to have that status.

[13] For the following reasons, I find that Alexandra’s status in November 2012 does not preclude the applicant from bringing her motion to change.

[14] D.B.S. is distinguishable from the current case. While it dealt with retroactive claims of child support for adult children, it did so within the context of originating applications under the Divorce Act. A closer look at the reasoning of Bastarache J. discloses that his conclusion as to the timing of the application was drawn from his reading of the Divorce Act and s. 2(1) in particular. A “child of marriage” is a child who “at the material time” falls within the terms of the definition. Reading that into an application for child support made pursuant to s. 15.1 of the Divorce Act, Bastarache J. concluded that the material time was the time of the application.

[15] While this interpretation has settled the law in respect of originating applications under the Divorce Act, there has been a reluctance to apply it to variation applications brought pursuant to s. 17 of the Divorce Act. Taliano J., in Simone v. Herres, 2011 ONSC 1788, [2011] O.J. No. 1626, and more recently Beaudoin J., in George v. Gayed, 2014 ONSC 5360, permitted an exception to the D.B.S. rule where the recipient parent has been unable to pursue a variation within time because of the payor’s misconduct. In Simone, the father’s deliberate deception in thwarting the mother’s efforts to contact him weighed heavily in the consideration of Taliano J.

[16] In Lemay v. Longpré, 2014 ONCS 5107, 2014 ONSC 5107 (), Lebrosse J. also allowed a motion to change to proceed. He adopted the reasoning of Strekaf J. in Buckingham v. Buckingham, 2013 ABQB 155. After a thorough analysis of the law, including a close reading of the Divorce Act and drawing from the principles of child support enunciated in D.B.S., Strekaf J. concluded that “the SCC did not intend to create a strict jurisdictional rule for variation orders under s. 17 of the Divorce Act” (para. 32). The rule did not accord with an ordinary interpretation of the statute and, if applied, would create a framework that would treat parents inequitably.

[17] At para. 57 of her decision, Strekaf J. reasoned:

[57] DBS was clear that a child support order under s. 15.1(1) can only be granted where the child is a “child of the marriage” at the time of the application. This accords with the wording of the statute. The same reasoning does not apply under s. 17(1)(a), where the statute is silent regarding the status of the child as a “child of the marriage.” Based on the case history, Bastarache J’s statutory interpretation of s. 15.1(1) and s. 2(1) exclusively and the inequitable treatment that would otherwise result from the courts’ subsequent interpretation of this decision, I conclude that the Supreme Court of Canada did not intend to create such a strict limitation on applications for retroactive variation of an existing child support order. I therefore find that the court has the jurisdiction to consider the father’s application for a variation order under s. 17(1)(a) of the Divorce Act.

[18] Another distinguishing feature of the present case is that not governed by the Divorce Act but by the Family Law Act.

[19] Is the applicant still constrained from proceeding with her motion to change? To answer this question, it is first important to set out the applicable sections of the Family Law Act with respect to an originating process:

33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent.

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

[20] The definition of dependent is found in s. 29 and 31:

29. In this Part,

“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[21] Finally, the ability to vary an order is found in s. 37:

37(1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3).

[22] For the purposes of this case, s. 37(a) and (b) permit a dependent or respondent named in the order, or the parent of a dependent, to bring an application for the variation of an order. Section 29 defines a dependent who is obligated to be supported and s. 31 determines the child support obligation. Neither s. 29 nor s. 31 contain the temporal qualification “at the material time” found in s. 2(1) of the Divorce Act, upon which Bastarache J. relied on when imposing the limitation he did.

[23] However, even in the absence of the temporal qualification, one might still be left with the question whether the child must be dependent at the time the proceeding commences or when the order was made. McDermot J. was faced with such an argument in Mondino v. Mondino, 2013 ONSC 7051, 2013 CarswellOnt 15569 (SCJ). In that case, counsel for the mother argued the father was barred from bringing his motion to vary because of a strict wording of s. 37 and s. 29. He pointed out that s. 37 permits a parent of a dependent to bring a variation application. However, s. 29 refers to a “person who has an obligation to provide support under this Part” [emphasis added]. The section speaks to a present obligation and not a past duty.

[24] McDermot J. found that the father was the respondent in the order and therefore he fell within s. 37(a). However, he did not accept the mother’s argument, reasoning as follows:

58. The result would otherwise be overly restrictive. Often a parent has to bring a motion to change in respect of a child who is no longer a dependent because they are not aware of the child’s present circumstances. They bring the application when it comes to their attention that circumstances have changed or because they are out of touch with the child or the custodial parent, and don’t know whether a child over the age of 18 has ceased his or her full time education. I do not believe that the legislature would have intended to restrict a parent’s right to do so under such circumstances.

[25] I agree. To read the statute otherwise would lead to results that could not have been intended by the Legislature. The comments of Strekaf J. in Buckingham, supra, in respect of her interpretation of s. 17 of the Divorce Act, are equally applicable to the present case. At para. 48 she wrote: “… the application of a jurisdictional rule to variation orders will lead to inequitable treatment of parents, or to a support order that conflicts with the principles of child support outlined within the D.B.S. decision, in particular, the principle of fairness and the theory that support is based on income.”

[26] Chappel J., in Meyer v. Content, 2014 ONSC 6001, addressed this same issue in respect of s. 37. After an extensive review of current law, she concluded that the time for determining dependency is the time when the order was made. At paras. 53 and 54, she writes:

[53] … To conclude otherwise would lead to illogical and unfair outcomes. For example:

1. It would create a situation where a Respondent named in the order under consideration could bring a motion to change despite the child no longer having dependant status when the motion is commenced, whereas the same individual would be unable to do so if they happened to be the Applicant in the previous proceeding in which the order was made.

2. It would preclude a payor who has not been advised of changes in a child’s circumstances that result in the child no longer being a dependant from seeking relief to terminate child support.

3. It would result in situations where a payor parent named as a respondent in the order could seek to retroactively reduce child support after the child is no longer a dependant, whereas the recipient parent in the same case who was named as an applicant would not be able to advance a counterclaim for a retroactive increase in child support.

[54] The interpretation which I am adopting makes sense not only from an interpretive perspective but also from a philosophical standpoint. In D.B.S., the Supreme Court of Canada emphasized the importance of eliminating incentives for payor parents to avoid their child support obligations, and ensuring that children receive the support which they are entitled to in a timely manner. Conversely, it is also important to avoid creating incentives for child support recipients to avoid sharing information with payors and continue collecting child support after entitlement has ended. The approach which I am taking furthers both of these objectives. While this approach may result in more child support variation litigation and less certainty for litigants, it allows the courts greater flexibility to achieve justice for children in need of financial support and parents involved in child support disputes. Any concerns regarding increased litigation and uncertainty can be mitigated by the courts establishing well defined principles and guidelines for resolving child support variation proceedings.

[27] I adopt the reasoning of Chappel J. and hold that the applicant is not barred from proceeding with her motion to change.

ii) Entitlement

[28] Before embarking on an analysis of Alexandra’s entitlement to child support, some further factual background is required.

[29] When the order of Kerrigan-Brownridge J. was issued May 11, 2009, Angelina was living with her mother and Alexandra with her father. Child support was a set off based on the applicant’s income of $39,258 and the respondent’s “estimated” income of $98,000. The respondent was ordered to pay child support in the amount of $500 per month. Each party was also ordered to exchange their income tax returns and notices of assessment by June 1st of each year.

[30] According to the applicant, Alexandra moved into her home in August 2009. Over the next four years, Alexandra led a difficult and unsettled existence: there were times she lived at her mother’s, and moved among different family households; she lived on the streets and in shelters; and she spent time in a psychiatric hospital following which, according to the applicant, she was heavily medicated and in an emotionally fragile state.

[31] Although the parties agree on the general nature of Alexandra’s existence over this period, they disagree as to specific dates. Where the evidence differs, I prefer the evidence of the applicant. She was far more detailed in her chronology and, to the extent possible, able to produce documentary support. In contrast, the respondent was far less confident of times and places. In cross-examination, he even admitted that his dates were “kind of muddy”.

[32] I find as a fact, therefore, the following relevant chronology as it applies to Alexandra:

September 1 – December 31, 2009

Alexandra living with applicant and attending H.B. Beal Secondary School.

January 1 – December 31, 2010

Same. During July 1 – August 31, 2010, Alexandra lived with her sister or maternal grandmother.

January 1 – February 28, 2011

Alexandra residing with applicant and attending Centre for Life Long Learning.

March 1 – December 31, 2011

Alexandra living with neither parent.

January 1 – April 30, 2012

Alexandra hospitalized in Mississauga - January 28 – March 29, 2012, followed by shelter for 2 weeks. Returned to applicant in early May.

May 1 – December 31, 2012

Alexandra continues living with applicant, not attending school. In October, she starts to receive ODSP benefits of $607/month based on her residing at home.

January 1 – April 30, 2013

Alexandra with applicant, attending Centre for Life Long Learning to April 30, 2013.

[33] In order to establish a claim for child support, the child must be entitled to child support. With reference to s. 31 of the Family Law Act set out above, a child must be a minor or, if over the age of majority, enrolled in a full-time program of education. In addition, if over the age of 16, the child cannot have withdrawn from parental control. Alexandra was 16 years of age June 5, 2009 and 18, two years later in 2011.

[34] The applicant claims support for Alexandra from September 1, 2009 until February 28, 2011. I find during this time that Alexandra qualified for child support. Although during the summer of 2010, when she was 17, Alexandra spent time at her sister’s and her maternal grandmother’s, I do not find that she had withdrawn from parental control. She was residing at her mother’s home until the end of school and returned to school in September.

[35] The applicant also claims support for Alexandra for the period of January 1 to April 30, 2013 when she returned to the Centre for Life Long Learning. However, I dismiss this portion of the claim as it was not claimed in her motion to change, which was issued November 14, 2012. It was not amended prior to trial.

[36] I note, however, in her claim for child support over this period, the applicant has deducted the full amount of Alexandra’s ODSP payment of $607 per month. If I am wrong, dismissing this portion of the claim, I would accept the full deduction, although that is not necessarily the result from the Court of Appeal decision in Senos v. Karczi, 2014 ONCA 459, 2014 CarswellOnt 7900 ONCA. In that decision, the Court of Appeal declined to make a full set off without more evidence of the child’s needs, means and circumstances.

[37] For the reasons set out above, regarding the respondent’s evidence, I am not satisfied Alexandra ever returned to his care over the relevant period. Finally, it is uncontested that Angelina lived continuously with her mother until she left permanently in September 2012.

[38] I calculate the retroactive adjustment of support based on the respondent’s incomes indicated as follows:

DATE

Number of Children in the Applicant’s

Custody

Child Support

Payable by the Respondent

Support

Actually Paid

by the Respondent

ARREARS

OWING

2009:

Sept. 1 –

Dec. 31, 2009

2

DC Income:

$98,000 (Imputed)

$1379/m x 4

= $5,516

$500 x 4

= $2,000

$3,516.00

2010:

Jan. 1 –

Dec. 31, 2010

2

DC Income:

$93,693.59

$1326.46/m x 12

= $15,917.52

$500 x 12

= $6,000

$9,914.52

2011:

Jan. 1 –

Feb. 28, 2011

2

DC Income:

$101,721.47

$1436.66/m x12

= $2,873.32

$500 x 2

= $1,000

$1,873.32

2011:

March 1 –

Dec. 31, 2011

1 (Angelina)

$892.48/m x 10

= $8,924.80

$500 x 10

= $5,000

$3,924.80

2012:

Jan. 1 –

Sept. 30, 2012

1 (Angelina)

DC Income:

$96,072.00

$849/m x 9

= $7,641.00

$500 x 9

= $4,500

$3,141.00

2012:

Oct. 1 –

Dec. 31, 2012

No eligible dependents

$500 x 3

= $1,500

($1,500.00)

2013:

Jan. 1 –

April 30, 2013

No eligible dependents

$500 x 4

= $2,000

($2000.00)

2013:

May 1 –

Dec. 31, 2013

No eligible dependents

$500 x 8

= $4,000

($4,000.00)

2014:

Jan. 1 –

Dec. 31, 2014

No eligible dependents

$4,353.74

($4,353.74)

TOTALS as at

Dec. 31, 2014

$41,672.64

$30, 535.74

$10,518.90

iii) Retroactivity

[39] In D.B.S., Bastarache J. set out four factors which the court should consider when a claim for retroactive child support is made:

i) Reasonable Excuse for Why Support Was Not Sought Earlier;

ii) Conduct of the Payor Parent;

iii) Circumstance of the Child; and

iv) Hardship Occasioned by a Retroactive Award

No factor is decisive.

[40] In the present case, although the motion to change was brought three years after Alexandra changed homes, I am satisfied that the applicant could reasonably justify the delay in commencing her proceedings. She testified, and I accept, that she commenced the groundwork for her motion to change as early as the fall of 2009. She sent off correspondence seeking confirmation of whether she had assigned her claim for the relevant period. In May 2011, she was hospitalized for 11 days and could not return to work. In February 2011, her mother fell ill and she took a compassionate leave. In 2012, her life was still not in order, which culminated in her kicking Angelina out of the house. She also was helping Alexandra convalesce during this time. She required constant care to the point the applicant was let go from her employment.

[41] The respondent, for his part, did little to assist the applicant financially. Given the significant differences in their incomes, the applicant bore a disproportionate share of the cost of raising the children. I have no doubt this had an impact on not only Alexandra but also her sister. He was aware that Alexandra was living with her mother for the time that she did and he took no initiative in assuming his responsibility for her support. Further, even within the context of these proceedings, he required two court orders to compel disclosure of income.

[42] Finally, in view of the respondent’s income, I find the retroactive award not too onerous. The Family Responsibility Office continues to deduct $500 per month despite the fact there have been no dependent children since October 1, 2012. I order that that amount continue until the outstanding payment is made.

[43] In conclusion, I find this to be an appropriate case of a retroactive award. I make the following order:

1. Ongoing child support for Alexandra Maria Catena, born June 5, 1993, shall be terminated effective February 28, 2011 and for Angelina Danielle Catena, born July 14, 1994, shall be terminated effective September 30, 2012.

2. The respondent shall pay as retroactive child support for both Alexandra Maria Catena and Angelina Danielle Catena the sum of $10,518.90 calculated as of December 31, 2014, less any amounts since paid by the respondent.

3. The retroactive amount of $10,518.90, less any amounts since paid by the respondent, shall be repaid in the amount of $500 per month until satisfied, commencing June 1, 2015.

4. The applicant shall make her submissions with respect to costs within 15 days. The respondent shall respond within 15 days thereafter.

“Justice Paul J. Henderson”

Justice Paul J. Henderson

Date: May 29, 2015