Hayes v. Ladniak, 2016 ONSC 1710
COURT FILE NO.: 7/15
DATE: 2016-03-09
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: June Elizabeth Hayes, Applicant AND: Walter Wayne Ladniak, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Applicant self-represented; Mr Paul R. Heath for the Respondent
HEARD: March 7-9, 2016 at Welland
ENDORSEMENT
[1] The Respondent moves to vary an order for child support by terminating support as of March 15, 2012. Support and s.7 expenses for the youngest child of the marriage were set at a total of $339 a month on October 24, 2011 and terminated on consent as of January 1, 2015. The question before me is whether they should have terminated sooner.
[2] It is res judicata that up to October 24, 2011 the child resided with his mother but spent approximately equal time with each parents. At the relevant times the parents earned the annual income set out in this table:
| Year | Applicant $ | Respondent $ |
|---|---|---|
| 2011 | 36,614 | 31,194 |
| 2012 | 35,195 | 27,339 |
| 2013 | 34,545 | 30,817 |
| 2014 | 43,480 | 25,955 |
[3] The parties do not agree on whose residence the child lived in after October 24, 2011. I do not have to decide for reasons that will become apparent, but it seems clear enough to me that the child had a bedroom with each parent and spent significant time at each parent’s place. The child himself considers his father’s residence to have been his home since 2011. I accept that, but I did not get a precise estimate of the time spent at each residence.
[4] What is decisive is that the child turned 18 on December 10, 2011 and finished secondary school in March 2012. Neither party is entitled to child support after March 31, 2012, subject to any subsequent return to post-secondary education.
[5] The only significant return to school did not take place until September 2013, when the “child”, by then approaching his 20th birthday, enrolled in a gasfitter’s course at Mohawk College, which he completed successfully in May 2014. By then he had been working for some time. He got a grant to pay his tuition and he got a loan of $6,100 from OSAP. In so doing he provided for his own needs admirably. He stayed with both parents from time to time while doing so. There is no need for child support from either parent to the other.
[6] Ever since March 31, 2012 the parties’ son no longer meets either definition of “child of the marriage” in s.2 of the Divorce Act. The definition in paragraph (a) did not apply because he had attained the age of majority. The definition in paragraph (b) did not apply because he was not unable to obtain the necessaries of life. In the alternative, if he needed his parents’ help to get through the gasfitter course, the application of s.9 of the Child Support Guidelines would result in no child support payable by the Respondent, whose entire obligation would be set off by the Applicant’s.
[7] For these reasons I order:
a. The order of Hambly J. dated October 24, 2011 is varied by terminating periodic child support for Johnathan Garrett Ladniak, born December 10, 1993, as of March 31, 2012.
b. Paragraph 5 of the order of Hambly J. dated October 24, 2011 is set aside.
c. The order of MacLaren J. dated January 9, 2015 is set aside.
d. Paragraph 2 of the order of Maddalena J. dated October 21, 2015 is set aside.
e. The Applicant is ordered forthwith to pay to the Respondent all excess amounts paid by him, less any amount owing by him for arrears.
f. A support deduction order will issue.
[8] The Respondent may file brief written submissions to costs within 7 days. The Applicant may reply in writing within 7 further days.
J.A. Ramsay J.
Date: 2016-03-09