ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-00-2853-2
DATE: 2015/11/20

BETWEEN:

Bonnie Charlene Beach
Applicant

– and –

Nicolas Tolstoy
Respondent

Self-represented

Michael Rappaport, for the Respondent

HEARD: July 8, 2015 at Ottawa

REASONS FOR JUDGMENT

Motion To CHANGE

BLISHEN J.

Introduction

[1] This case focuses on child support and special or extraordinary expenses for the parties’ daughter, Anastassia, who is now 19 years old (born June 29, 1996). She has been residing with her father since late October, 2010.

[2] On September 17, 2013, Mr. Tolstoy filed a motion to change the final order of February 5, 2004 made by Justice Mackinnon after trial. He requested the following orders:

1. Sole custody of Anastassia;

2. Child support retroactive to November 1, 2010;

3. A proportionate share of special or extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, S.O.R./97-175, as am. [Guidelines], including university costs, retroactive to November 1, 2010; and

4. Life insurance to secure support.

[3] Ms. Beach filed her Response on December 5, 2013. She agreed to an order of sole custody to Mr. Tolstoy. That order was made at the Case Conference on December 9, 2013 with access to Ms. Beach in accordance with the child’s wishes. Ms. Beach disputed the claim for ongoing child support and argued Anastassia no longer qualified as a “child of the marriage” as of her 18th birthday on June 29, 2014. She did agree to contribute to reasonable s. 7 expenses.

[4] In her response, Ms. Beach filed a cross-motion claiming a retroactive adjustment to the child support paid by Mr. Tolstoy from February 1, 2004 to October 1, 2010 when Anastassia resided with her, as well as a contribution to s. 7 expenses.

Issues

[5] The following issues are raised on this motion to change:

1. Did Anastassia cease being a “child of the marriage” pursuant to s. 2 of the Divorce Act, R.S.C. 1985, c.3, 2nd Supp., as am. [Divorce Act] on her 18th birthday?

Ms. Beach argues there has been parental alienation and/or an ongoing refusal of the child to see her amounting to a unilateral withdrawal from the parent/child relationship. Therefore, child support is no longer justified.

Mr. Tolstoy argues, although there has not been much contact between Ms. Beach and Anastassia, there is some justification for that and as a 19 year old, full-time student at university, Anastassia is still entitled to child support.

2. Should there be child support and s. 7 expenses payable for Anastassia retroactive to November 1, 2010?

3. What are the appropriate s. 7 expenses, if any, payable since November 1, 2010?

4. Should Ms. Beach’s severance benefit pay out received as income in 2011 be included as income for child support purposes and for the purpose of a proportionate sharing of s. 7 expenses.

5. Should there be a retroactive adjustment to child support payable by Mr. Tolstoy, given changes in his income since the order was made in 2004? If so, what is the appropriate date for such a retroactive adjustment?

Mr. Tolstoy indicates the date of effective notice by Ms. Beach was in November, 2010 and he would agree to go back three years and recalculate child support as of January 1, 2008.

6. Should there be a retroactive accounting for s. 7 expenses as requested by Ms. Beach from February, 2004 to November, 2010?

Background

[6] Ms. Beach and Mr. Tolstoy and Ms. Beach’s seven year old daughter Kendra began residing together in 1991. The parties were married on January 19, 1996 and Anastassia was born on June 29, 1996.

[7] The marriage was difficult and conflictual. Mr. Tolstoy was charged with assaulting Kendra and in August, 1998 entered into a peace bond under s. 810 of the Criminal Code.

[8] On February 1, 2000, Ms. Beach left the matrimonial home with Kendra and Anastassia and moved into a new home on Uplands Drive. That month, Ms. Beach and Mr. Tolstoy signed an interim parenting agreement providing for shared parenting and custody of Anastassia.

[9] Ms. Beach became concerned about the arrangement and in October, 2000 filed an application for sole custody. A Custody Assessment was ordered by the court and the matter ultimately proceeded to trial in the fall of 2003.

[10] On February 5, 2004 Justice Mackinnon made a final order granting sole custody to Ms. Beach and access to Mr. Tolstoy. Mr. Tolstoy was further ordered to pay child support based on his annual income of $77,400 in the amount of $621 per month commencing February 1, 2004. There were no provisions in the order for the payment of s. 7 expenses.

[11] On March 4, 2004 both parties, who were represented by counsel, signed an agreement with respect to costs of the trial; s. 7 expenses; relocation of residence and more specifics regarding the access arrangements for Mr. Tolstoy.

[12] In that agreement (Exhibit 10, Tab N, Agreement), clause 4 deals with s. 7 expenses as follows:

Bonnie agrees not to pursue Nicolas at the present time and for the immediate and foreseeable future for any additional child support costs for the child Anastassia Tolstoy (“Anastassia”) born June 29, 1996 under Section 7 of the Federal Child Support Guidelines (S.O.R./97-175, as amended) (“Section 7”). At the present time Bonnie has limited additional Section 7 costs that she will incur for Anastassia. The parties recognize that ultimately, Nicolas’s obligation to pay child support for Anastassia must be determined in accordance with the Federal Child Support Guidelines and the provisions of the Divorce Act, R.S.C. 1985, c.3, 2nd Supp., as amended which require that reasonable arrangements be made for the support of the child.

[13] In August, 2004, Ms. Beach and Anastassia moved to Metcalfe to live with her new partner David Beach. Kendra was no longer residing with them.

[14] Beginning in the fall of 2007 numerous interventions were arranged through the school and otherwise with respect to Anastassia’s behaviours and mental health. In September, 2007 Anastassia was evaluated by a psychologist, Dr. Stephanie Christina, after the school expressed concerns regarding her lying, anger and possible manipulation of other students. In addition, Anastassia claimed Ms. Beach physically assaulted her. In November, 2007 Anastassia was transferred to Dr. Paula Moncion who diagnosed a learning disability and recommended she undergo counselling, following unproven allegations of being sexually assaulted. Also, in October, 2007 Anastassia was seen by Dr. Baksh at CHEO who indicated she was in a state of ongoing stress. There was no clinical or psychiatric diagnosis.

[15] On October 20, 2010, 14 year old Anastassia left her mother’s home to live with her father on a full-time basis, indicating she no longer felt comfortable living with her mother.

[16] On November 19, 2010 counsel for Mr. Tolstoy wrote to counsel for Ms. Beach requesting child support. Counsel for Ms. Beach responded in a letter dated November 24, 2010 requesting Mr. Tolstoy’s Notices of Assessment from 2004 through 2009 in order to calculate the correct amount of child support for those years and to determine any retroactive compensation to which his client may be entitled. He requested this be done prior to Ms. Beach beginning to pay any child support to Mr. Tolstoy. There was no mention by either party of s. 7 expenses.

[17] After Anastassia moved in with her father, he enrolled her in “Heritage Academy”, a private school in Ottawa. Mr. Tolstoy indicated none of the public schools near Carp, where he resided, were able to accommodate a mid-semester transfer of Anastassia’s full course load. Heritage Academy was the only option to prevent delayed graduation and accommodate Anastassia’s needs. Heritage Academy had a teacher student ratio of 1 to 7. As noted, Anastassia had previously been diagnosed by Dr. Moncion with a learning disability. Anastassia successfully completed her first semester at Heritage Academy. Mr. Tolstoy indicated he would pay for the cost of the private school and would continue to pay for the second semester if Ms. Beach agreed to begin paying child support in order to offset tuition. Ms. Beach did not begin paying child support.

[18] In January, 2011, Mr. Tolstoy agreed to enroll Anastassia at West Carleton High School. He claims Ms. Beach refused to sign the registration. Ms. Beach claims she did nothing to prevent the transfer. What is clear is that ultimately West Carleton High School did not accept Anastassia’ transfer application. Therefore, Mr. Tolstoy enrolled her for a further semester at Heritage Academy and continued to pay the $1,250 per month tuition.

[19] On January 25, 2011 Justice Polowin ordered Mr. Tolstoy’s obligation to pay child support suspended as of November 30, 2010, without prejudice to either party bringing a claim for retroactive support. Ms. Beach consented to the termination of child support payments and returned the Family Responsibility Office payments transferred to her since October 20, 2010.

[20] Anastassia continued to attend Heritage Academy until June, 2011 and then, with both her parents’ consent, was registered and attended All Saints Catholic High School, commencing September, 2011.

[21] On July 10, 2012, counsel for Mr. Tolstoy once again wrote to Ms. Beach’s lawyer requesting child support as of November, 2010. He further raised the issue of s. 7 expenses incurred by Mr. Tolstoy, in particular the private school tuition for Heritage Academy. He also indicated there were s. 7 expenses for online summer school in 2011 and math tutoring in 2012.

[22] In August, 2012, Ms. Beach began making child support payments in the amount of $1,039 per month. No evidence was tendered as to the basis for this amount. In January, 2013, Ms. Beach increased her support payments to $1,136 per month based on her annual income, exclusive of discretionary bonuses.

[23] Throughout 2011, Ms. Beach and Anastassia became increasingly estranged. There was approximately a one and a half year period where they did not see each other. Anastassia claims in her affidavit this is due to the fact that she refused to apologize to Ms. Beach’s husband, David Beach. Ms. Beach claims Anastassia is the one who chose to avoid contact during this period of time. All agree Ms. Beach and Anastassia had limited contact for a number of years and they were unable to agree on a program of counselling.

[24] On August 2, 2013 Mr. Tolstoy filed his motion to change and on December 3, 2013 Ms. Beach filed her Response to that motion and claimed a retroactive adjustment of Mr. Tolstoy’s child support back to 2004.

[25] On December 19, 2013, a final order was made on consent granting custody to Mr. Tolstoy and setting the other matters down for further hearing.

[26] On January 2, 2014 Ms. Beach increased her support payments to $1,151 per month commencing January 1, 2014. In late June, 2014 Ms. Beach made it clear she would stop paying child support at the end of the month as Anastassia would be turning 18 on June 29. Nevertheless, Ms. Beach continued to pay child support after receiving confirmation that Anastassia was attending the University of Ottawa Visual Arts Program on a full-time basis.

[27] Anastassia continues to reside with her father full-time.

(Full judgment continues exactly as provided, maintaining all wording and structure.)

Blishen J.

Released: November 20, 2015