SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 54120/96-1

DATE: 20150901

RE: JOHN GRAVE CRITCHLEY, Applicant

AND

BARBARA LYNN CRITCHLEY, Respondent

BEFORE: Madam Justice L. Sheard

COUNSEL: Erin Lepine, for the Applicant

Gregory A. Ste. Marie, for the Respondent

HEARD: August 26, 2015

ENDORSEMENT

1This was a motion to change brought by John Grave Critchley (“the Father”) who sought:

1. An order declaring that Kimberly Lynn Critchley born December 30, 1972 is not a child of the marriage as defined in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and as such is not entitled to child support from either the Applicant Father or the Respondent Mother;

2. An order that paragraph 9 of the order of Justice MacKinnon dated September 6, 2001 shall be vacated, such that the Applicant Father and the Respondent Mother’s obligation to maintain life insurance of at least $100,000 on his or her own life and to maintain Kimberly Lynn Critchley as the irrevocable beneficiary of the policy has terminated as of November 1, 2013. The parties shall each execute any documentation necessary to release the irrevocable beneficiary designation;

3. An order for costs on a full recovery basis; and

4. Such further and other relief as this Honourable Court deems just.

Background

Background

2The parties divorced on April 17, 1998. There were two children born of the marriage: Kimberly Lynn Critchley (“Kim”) and Shelley Critchley. Kim suffers from a variety of medical disabilities that she has had since birth. They include epilepsy, learning difficulties and limited vision. She is legally blind in one eye and her corrected vision in the other eye is 20/40. She takes medication for epilepsy but suffers petit mal seizures and, from time to time, grand mal seizures.

3In early 2001, the parties agreed to arbitrate the issue of quantum of support, if any, to be paid for the support of Kim, then 28 years old. At the time of the arbitration, Kim was living with her mother, the Respondent (“the Mother”). With the assistance of the Supported Works Program, by March 2001 Kim had secured a job placement with Agriculture Canada as a CR-02, on a part-time, contract basis. At the time of the arbitration, Kim was earning an annual salary of $26,675. That was based on her working 25 hours per week.

Arbitrator’s Award

Arbitrator’s Award

4In the Arbitrator’s Award, dated February 22, 2001, the arbitrator stated:

I accept the evidence of Steve Sanderson that there is been no suggestion from Agriculture Canada that her [Kim’s] hours be extended and it is unlikely that any such offer will be made, nor could Kim handle the strain of the additional hours. (Arbitrator’s Award, page 3)

5In determining whether or not she was entitled to support, the arbitrator had to determine whether Kim was a “child of the marriage” as defined pursuant to section 2(1) of the Divorce Act. Subsection 2(1) (b) provides that a child of the marriage means a child of two spouses or former spouses who, at the material time,

(b) is the age of majority or over 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.

6Before the arbitrator, the Father argued that whether Kim was “under their charge” was a financial question. He argued that Kim was then able to meet her financial needs by her own resources and, therefore, was not under the charge of her parents. The arbitrator rejected that argument and determined that:

Kim lives with her mother, as she has since the date of separation. Accordingly, she is in the charge of her mother. Mrs. Critchley provided a very clear picture of the (sic) Kim's abilities and limitations, in so far as they affect her ability to live on her own. While capable of cooking a single dish, she cannot multi-task, which means that she cannot prepare several dishes at the same time required to prepare a balanced meal. She cannot plan a menu. She cannot do grocery shopping for herself and, if left to her own devices, would live mainly on junk food. She can clean, if forced to do so, but would never clean on her own initiative. Perhaps more importantly, she is naïve, very trusting of strangers and needy of approval and affection. That makes her an easy mark for unscrupulous strangers or acquaintances. There were several examples given in evidence of Kim being taken advantage of, buying a bus pass for stranger, buying a tennis racket for an acquaintance, lending money to casual acquaintances. (Arbitrator’s Award, p.5)

7The arbitrator also relied upon the evidence of Steve Sanderson, a supervisor of the Supported Work Program. It was his opinion that “independent living is, at best, a long-term goal for Kim that might be attainable several years hence.” (Arbitrator’s Award, p.5)

8Further on this page the arbitrator concluded:

I have no difficulty finding that Kim remains in the charge of her mother and, as a result of her various disabilities, is unable to remove herself from her mother's charge at this time. This may change at some point in the future, but is unlikely to change anytime soon. Accordingly, I find that Kim remains a “child of the marriage” as defined by the Divorce Act.”

At page 6, the arbitrator states:

The question of Kim's financial need does not come into the determination of whether she is still a child of the marriage but it does come into the determination of the amount, if any, to be paid by either of her parents for her support.

9Finally, at page 10, the arbitrator found that there was a monthly shortfall of $351.12 between Kim's current pay and her monthly expenses. In determining that amount, the arbitrator specifically excluded the budgeted monthly expense of $392 for savings. That budget amount had been put into Kim’s financial statement recognizing that she was not a member of a pension plan in her current employment, “nor is she likely to be in the future…” (Arbitrator's Award, page 10)

10At page 11 of his Award, the arbitrator noted that the divorce judgment required each of Kim’s parents to maintain $100,000 of insurance on his or her life with Kim as the beneficiary. However he went on to state: “… with this requirement to be reviewed at the same time as the review of support.”

And further:

[T]he purpose of requiring life insurance to be maintained is to provide security for any support obligation, should the payor die. I found the Kim remains a “child of the marriage” who remains entitled to be supported by her family despite her age. Both parents have an obligation to contribute to her support in accordance with Kim's needs as they may vary from time to time… (Arbitrator’s Award, page 16)

11Finally, at page 18 of his Award, the arbitrator stated: “I find that Kim does require attendant care. I have already found that she is not capable of living alone and referred to the evidence of both Mrs. Critchley and Mr. Sanderson in this regard….”

12In accordance with the Arbitration Agreement, a final order was made on September 6, 2001 by Madam Justice MacKinnon. In that order, Kim was found to be a “child of the marriage” and entitled to support from both the parties. The amount of support set out in the order was in keeping with the Arbitrator's Award. The order specifically contemplated the possibility that Kim would cease to reside with her mother and stated that in such event, her parents would each be required to pay to Kim 50% of the deficit between Kim’s take-home pay and her monthly support requirement.

Is Kim still a “Child of the Marriage”?

Is Kim still a “Child of the Marriage”?

13The key issue to be determined on this motion is whether or not Kim remains a “child of the marriage.” The parties do not agree on the answer to this question. The Father argues that Kim moved out of the Mother’s home in 2003 to live on her own in an apartment; became a full-time, permanent employee, with full benefits. Further, by agreement between the Father and the Mother, child support payments stopped in 2006.

14The Mother argues that financial independence is different from being able to withdraw from the charge of your parents. She asserts that she continues to help Kim in many ways and that Kim is unable by reason of her disabilities to withdraw from her parents’ charge.

15The evidence on the motion includes:

i) in 2003 Kim was able to have her own apartment and over time her position improved from part-time to full-time work;

ii) in 2006 the Father and the Mother agreed that Kim no longer needed to receive financial support and they both stopped contributing toward Kim’s support;

iii) according to a letter dated July 15, 2014, from Tracey Brown/Job Coach OCAPDD Supported Work, Kim’s position as a CR-02 was changed to a CR-03 on January 1, 2006. She became a directly employed/full time employee of Agricultural Canada on February 1, 2007;

iv) Tracey Brown has supported Kim as her job coach since February 10, 2010. She reported that Kim's responsibilities include filing of documents, distributing pay and other deliverables, photocopying, scanning, emailing, printing and binder assembly; processing travel claims, petty cash and other financials; and directorate/branch support. Ms. Brown reported that Kim also receives support and direction at work from her supervisor and a colleague;

v) in her letter, Ms. Brown states that individuals within the supported work program receive their support and may be successful in their job for many years, but there are no guarantees they will keep their jobs. She states that it is extremely difficult to find full-time office work with benefits of the type currently enjoyed by Kim. She concludes that if Kim were to lose her job she would not meet the financial criteria to be eligible for the Ontario Disability Support Program but she would continue to receive and require support from supported work program to secure other employment; and

vi) in his materials, the applicant included a Public Service Performance Agreement, Mid-Year Review, dated January 12, 2015. It included these comments from Kim’s manager/supervisor: “Kim has met expectations of her position very well. In addition to her regular duties, she has been a great help to others including our ADM office by June deliveries to DMO as required. She also helped out with the GCWCC campaign by hanging posters for many events throughout the complex, assisting with the Beverage and Bouchée Bar as well as the AAFC's Got Talent event and selling 50/50 tickets. This was in addition to her regular duties.

Kim needs to learn how to prioritize or to ask if she is not sure so that she is not overwhelmed with a bombardment of requests. She also needs to work on adapting to change this change is constant in this office.

vii) Kim received a “Work Objectives Rating Descriptions and Assignment Rating” of 4+ out of 5.

Kim’s Financial Situation

Kim’s Financial Situation

16In her affidavit evidence, the Mother stated that Kim’s financial statement sworn, July 24, 2000, and prepared as part of the arbitration process, showed that Kim was then employed on a part-time, contract basis at Agriculture Canada earning $18,456 per annum. Kim had financial assets, including a bank account, RRSP, mutual fund and Canada Savings Bonds valued at $35,000.

17Kim swore a financial on December 10, 2014. In it she shows that her savings have grown by $86,178 since 2000. In addition, she has accumulated pension benefits that would pay her $9500 per year. Kim’s annual salary is over $45,000, plus benefits, which include health, medical and dental and superannuation benefits.

18Kim’s financial statement shows her annual income to be $49,040.12. Her savings total $121,178.23 and include an RDSP of $48,726.80, RRSP of $46,487.82 and a TFSA of $24,671.73. In Kim’s budget she reports monthly employee pension contributions of $274.02 and monthly RRSP contributions of $250.

19According to the Father, since moving into her own apartment, Kim has paid her own rent and bills, done her own cooking, laundry and shopping; taken the bus to work, stores, and movies; she meets friends at activities in restaurants and makes her own appointments for doctors, dentist, optician, etc. He states that she has made purchases for her apartment such as an air conditioner and television and independently decided to bundle her cell phone, cable and internet to receive a reduced rate.

20According to the Mother, Kim continues to suffer from a variety of serious medical conditions and disabilities. This is not disputed by the Father. However, he argues that despite her disabilities (and contrary to what was forecast by Kim’s doctor, support worker, and the Mother in 2001), Kim has withdrawn from her parents’ charge. She has been living independently since 2003 and has been financially self-sufficient since 2006.

21The Father argues that Kim has worked hard to overcome her physical challenges and, with persistence and guidance, adapts to new situations and develops the skills she needs to manage on her own.

22The Father also points to the fact that he is out of the country in Costa Rica for parts of the year and that the Mother also travels. While both her parents are away, Kim lives on her own without the assistance of either parent or a paid caregiver.

Can Kim withdraw form Parental Charge?

Can Kim withdraw form Parental Charge?

23The Mother states that Kim’s disabilities prevent her from withdrawing from the charge of her parents and remains a “child of the marriage” as that term is defined under the Divorce Act. At paragraphs 10 -11, 22 - 27 and 31 to 39, she provides examples difficulties encountered by Kim and with which she was required to assist Kim.

24Those examples include Kim obtaining too many credit cards and going into overdraft; a bedbug infestation which Kim was unable to handle on her own: the Mother had to purchase a new bed and arrange for its delivery and otherwise assist with cleaning Kim's apartment and making arrangements with a pest control company. The Mother also states that she cancelled Kim’s Good Life membership when she found Kim could not afford it. She stated that she had to help Kim understand to have blood work done and that she should shop at Loblaw’s and not Costco, which sells groceries in large quantities.

25There was evidence that Eric Clement moved in with Kim. He was unemployed and did not help with rent and later began having a girlfriend over. When Clement moved out, he left Kim with an $800 smart phone bill. The Mother states that she negotiated with Eric Clement’s father for payment of the bill. The Mother states that Kim was taken financial advantage of by the parents of a Special Olympics acquaintance who encouraged Kim to spend $3000 for their benefit. She has expressed concern that Kim has “basic judgment problems.”

26I find that the Mother’s own evidence leads to a conclusion that Kim has, in fact, withdrawn from her parents’ charge: Kim has credit cards, bank accounts, lives by herself in an apartment, works full-time, allowed a man to move in with her for a time, travels on her own on the train, has friends and is involved in Special Olympics. That Kim has made some bad decisions and has struggled with coping with keeping her apartment tidy and dealing with bed bugs falls short of showing that her disability has prevented her from withdrawing from her parents’ charge.

27The Mother expresses concern that Kim’s employment is not guaranteed indefinitely. She worries that Kim would be in a difficult situation were she to lose her job. That is a fair concern and one which many parents have about their children. The Mother worries that it would be difficult for Kim to find replacement employment that paid her as well and with the benefits she enjoys with Agriculture Canada. However, the evidence is that Kim has been employed with agriculture Canada for over 15 years; that she is meeting expectations; that she is a permanent employee with benefits. There is no evidence to suggest that Kim is about to lose her job.

28The evidence is that Kim has succeeded at living independently after moving out of her mother’s home in 2003. Kim has supported herself since 2006 and has managed to amass savings of over $86,000 in the 14 years since the date of the arbitration. That Kim continues to draw upon the community and government supports available to her does not diminish her successful withdrawal from her parents’ charge. Further, the Brown affidavit confirms that those supports will continue. That from time to time Kim has needed help from her mother to deal with personal relationships and situations is overshadowed by the strong evidence that Kim is able to manage independently of her parents.

Has There Been a Material Change in Circumstances?

Has There Been a Material Change in Circumstances?

29The success that Kim has had with her employment and in living independently appears to greatly exceed what was predicted in 2001. Whereas in 2001 Kim lived with her mother, and was not expected to be able to live on her own, she has in fact done so since 2003. In 2001 Kim worked only part-time without a pension, and was not expected to be able to work full time or to obtain employment that might offer her benefits or a pension. As set out above, Kim has a permanent full-time position with benefits and a pension.

30In 2001, it was believed that Kim could not plan a menu or make a balanced meal and required a neighbour to check in on her when the Mother was away. In fact, Kim prepares her own meals and does her own shopping. Kim’s 2014 financial statement shows that she may eat many meals in a restaurant but despite that she has considerable savings and appears to be able to keep her rent in good standing and pay her other bills.

31Whereas in 2001, arrangements had to be made for a neighbour to check in on Kim if the Mother and Father were away, the evidence before me is that when both the Father and the Mother are out of the province, no one is hired to check in on Kim. At most the Mother’s own mother, in her 90’s, and living in British Columbia, will telephone Kim when Kim’s parents are away.

32In addition to his position that Kim has withdrawn from parental charge and is no longer “a child of the marriage”, the Father also argued that the cost of maintaining $100,000 in life insurance is significantly higher today than it was in 2001. He states that in 2014 maintaining $100,000 of life insurance cost him $829.44. He wishes to keep at least $50,000 of life insurance for his current spouse and that to maintain a total of $150,000 in 2015 will cost him $3,348.86. In 2015, $100,000.00 coverage costs him $2,052.61.

33The Father further states that when he turns 75 in 2018, his life insurance coverage will automatically drop to $35,000. He states that he will not be able to replace his existing life insurance policy with one that provides $100,000 coverage. He would not then be able to comply with the MacKinnon Order.

The Law

The Law

34This motion to vary is brought pursuant to section 17 of the Divorce Act. Section 17(1)(a) provides that a court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively a support order or any provision thereof on application by either or both former spouses.

35Section 14(b) of the Federal Child Support Guidelines, S.O.R./97-175 states that:

For the purposes of subsection 17(4) of the Act, any one or more of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.

36It must be remembered that this is not a motion to change the amount of support to be paid to Kim: neither the Father nor the Mother has paid child support since 2006. What the Father is seeking to change is his obligation to maintain $100,000 of life insurance payable to Kim.

37The parties agree that, at the moment, Kim does not need financial support and that she has not needed that support since February 2006, over nine years ago. The Mother argues that whether or not Kim needs financial support she is still a “child of the marriage” and therefore, her parents continue to have an obligation to support her. She seeks to keep the life insurance in place so that it might be available in the future should the need arise. At the conclusion of his submissions on behalf of the Mother, her counsel suggested that it might be possible to reduce the insurance to $50,000 but not to eliminate it entirely.

38The Father has suggested that he wishes to provide for both his children and that obliging him to maintain life insurance for Kim requires him to treat his two children differently. The Mother disputes that the Father will do so and points to the fact that most, if not all of his assets, are held in joint-tenancy with his current wife: he might not have an estate to pass to his children. The Father has not provided any tangible evidence of any estate plan that might substantiate his assertion that he intends to provide for his two children upon his death. He argues that he has no legal obligation to do so as both his children are adult and independent but that he has a moral obligation to leave something to them. The Father’s lawyer acknowledged that his stated intentions regarding his testamentary plans are not binding on him or relied upon in this motion.

39For the purposes of this decision, I must assume that if the Father is no longer required to maintain life insurance payable to Kim, it is possible that she might receive nothing from his estate upon his death.

Life Insurance is to Secure Support Obligation

Life Insurance is to Secure Support Obligation

40The purpose for ordering the Father and the Mother to maintain $100,000 in life insurance, payable to Kim, was to secure their support obligation to her. In his submissions, counsel for the Mother acknowledged that the obligation to maintain insurance is ancillary to the support order and obligation. After the hearing, I heard from both counsel regarding the jurisdiction under which a party may be ordered to maintain a policy of life insurance. Both agree that such an order can be made under the Family Law Act, R.S.O. 1990, c. F.3 which provisions are applied through the common law to orders under the Divorce Act.

41The parties agree that, since 2006 Kim has not needed support and that this motion is being resisted out of concern that at some future date Kim may need financial support from her parents.

42For the reasons set out above, I have determined that there has been a change in the condition, means, needs of the child entitled to support and that the variation sought should be granted, effective immediately and not at the date set out in the Notice of Motion.

43In reaching that conclusion, I have considered the cases referred to by counsel. The Father referred to the decision of the British Columbia Court of Appeal in Briard v. Briard 2010 BCCA 431, (2010), 94 R.F.L. (6th) 33. In Briard, the Court was asked to determine whether a 22-year-old child remained a “child of the marriage.” The child had Down syndrome with significant permanent functional limitations.

44The child lived with her mother. She could not speak beyond rudimentary communication and required a communications book so that her mother could write messages to the child’s caregivers at the day program in which the child was enrolled. The child’s mother needed to awaken her each day, choose her clothes, make her breakfast and lunch and ensure that she met the transportation service that took her to her community living daycare program. The child could be left alone for a maximum of 3 hours. She could not read or write; she could not do her own hair and did not know how to regulate hot or cold running water. She functioned at the level of a 7-year-old.

45The facts in Briard are readily distinguishable from the facts in this case. The evidence in Briard was very clear that the child could in no way withdraw from parental charge by reason of her disability. The facts in this case are quite different and compel a finding that Kim has withdrawn from parental charge.

46The Mother referred to the 1998 Saskatchewan Queen’s Bench decision in Sapergia v. Sapergia 1998 CarswellSask 809, 1998 13942 (SK QB). In that case, the payor parent objected to paying support for the 18-year-old child on the basis that he had moved out of his parent’s home and had therefore withdrawn from parental charge. The facts in that case were that the 18-year-old had behaviour challenges that made him difficult for his mother to handle. The father’s sister offered to “take him in.” The Court found that, despite that the child did not live with either parent, he still remained under the charge of his father and continued to be a “child of the marriage.” In Sapergia, the child did not have any disabilities but was attending high school. He was clearly in need of a home and parental care, which was being provided by the father’s sister, but under the father’s charge. Those facts are quite different from the facts before me.

47The Mother also referred to the BCSC decision of Nolan v. Nolan, 2005 BCSC 1807, (2005), 24 R.F.L. (6th) 219. In that case, the issue was whether the 40-year-old child remained a child of the marriage. The payor spouse argued that because the child received a disability pension from the government he could support himself and live independently. The Court found that, despite that he received a government pension, the child was unable to work and remained dependent on his mother, with whom he lived. The Court found that he could be and was in fact a “child of the marriage” despite that neither parent was ordered to pay child support. Again, the child in Nolan is very different from Kim.

48The Father referred to a number of cases. In the Druhan v. Druhan 2010 ONSC 3430, (2010), 87 R.F.L. (6th) 185 decision, the Applicant father moved to terminate child support for the adult child, living with the mother. The mother moved to vary the child and spousal support orders. The discussion on whether or not the adult child remained a child of the marriage is relevant to this motion. In Durhan, the Court found that there was an onus on the mother to show that the adult child was unable to withdraw from parental care by reason of illness or disability. The mother failed to lead evidence sufficient to establish that connection. In our case, the onus is on the Father to establish a change in circumstances. Again, for the reasons that above, I conclude that he has done so.

49The Father referred to the decision of Welsh v. Welsh, [1998] O.J. No. 4550. In Welsh, the Court was asked to determine whether a 31-year-old child, with a college diploma and in the midst of earning a university degree was a child of the marriage. The child had many health problems and had never had gainful employment. Among other things, her physical condition prevented her from doing usual daily activities. For example, she suffered a broken leg when putting a bag of sugar into a cupboard. The Court found that the child was physically unable to withdraw from the charge of her mother and also financially unable to do so. With respect to the latter, the court found that she could not obtain gainful employment both because of her disability and also because she was engaged in post-secondary studies.

50Again, the facts in Welsh are different from those before me. However, as with the cases referred to by the respondent, Welsh does help to illustrate what is required to establish that an adult child remains a “child of the marriage.”

Affidavit of Tracey Brown sworn May 14, 2015

Affidavit of Tracey Brown sworn May 14, 2015

51At the outset of argument, counsel for the Mother acknowledged that the affidavit of Tracey Brown sworn May 14, 2015 had been filed outside the filing timelines and that, through inadvertence, it had only been served two weeks before the hearing. Counsel for the Father objected to my considering the affidavit, to which the applicant had had no real opportunity to respond. In addition, the affidavit contained opinion evidence.

52I have decided to consider the facts set out in the Brown affidavit but place no weight on the opinions she expresses. The affidavit confirms the varied and ongoing community and government supports in place that assist Kim in living independently. It is clear from her affidavit that Ms. Brown is worried about what might happen in 5 years’ time, when Kim’s current supervisor retires. Worry about the future is speculative. Comparing the dim predictions for Kim’s independence in 2001 to what actually took place in the intervening 14 years illustrates the unreliability of such forecasts.

53We must look at the situation and the facts as they exist today in determining whether or not Kim is a “child of the marriage.” For the reasons set out above, I conclude that she is not and declare that she is no longer a “child of the marriage” and is no longer entitled to child support. I have also determined that paragraph 9 of the order of Justice MacKinnon dated September 6, 2001 should be vacated, effective immediately. The parties are to sign any documents that may be required in order to give effect to the deletion of that term from the Order.

54Should either party request costs, I would ask for written submissions not to exceed 3 pages. As the Father has been successful on this motion, should he seek costs, his submissions should be served and submitted to me within two weeks of the date of this order. The Mother’s submissions shall be served and submitted to me 10 days after service upon her of the Father’s cost submissions.

Madam Justice L. Sheard

Date: September 1, 2015

COURT FILE NO.: 54120/96-1

DATE: 20150901

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: JOHN GRAVE CRITCHLEY, Applicant

AND

BARBARA LYNN CRITCHLEY, Respondent

BEFORE: Madam Justice L. Sheard

COUNSEL: Erin Lepine, for the Applicant

Gregory A. Ste. Marie, for the Respondent

ENDORSEMENT

Sheard J.

Released: September 1, 2015