CITATION: D.W.L. v. M.L., 2016 ONSC 3413

COURT FILE NO.: FC-05-2668-8

DATE: 2016/05/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

D.W.L.

Applicant

– and –

M.L.

Respondent

Ross Stewart, counsel for the Applicant

Jodi R. Fleishman, counsel for the Respondent

HEARD: May 3, 2016

ENDORSEMENT

Shelston J.

1The parties married on July 15, 1995, separated on July 1, 2004, and were divorced on December 18, 2005.

2There are two children of the marriage, namely C.M.L. ("C.M.L.") born [...], 1996, and C.D.L. ("C.D.L.") born [...], 2000.

3On March 16, 2015, the Applicant ("father"), representing himself, filed a Motion to Change seeking to terminate child support for C.M.L. on her 18th birthday, being November 26, 2014; seeking an order that based on his annual income of $72,447.00, he would pay table child support for C.D.L. in the amount of $660.31 per month; and seeking an order terminating his contribution to extraordinary expenses for both children as of 2012.

4The Respondent ("mother") filed a Response to the Motion to Change seeking the following relief:

(a) An order dismissing the father's motion to change to terminate child support for C.M.L., based on C.M.L. remaining a child of the marriage entitled to full table child support;

(b) An order dismissing the father's motion to change to terminate extraordinary expenses as of 2012 and ordering that his monthly payments of $192.00 towards extraordinary expenses continue;

(c) An order that, in accordance with the table, the father provide child support to the mother for C.M.L. and C.D.L. in monthly installments of $1,071.00 commencing May 1, 2015;

(d) An order that the father pay the mother arrears owing of $5,919.60 at the rate of $500.00 per month; and

(e) An order for costs of this action on a substantial indemnity basis.

5Both parties have amended their claim for relief. The mother seeks costs of $3,797.74, incurred in responding to an application commenced by the father in September 2014 and withdrawn by him on March 16, 2015. In his affidavit sworn April 14, 2016, the father expressed for the first time, his wish to immediately resume unsupervised access to both of his children on a schedule to be determined following consultation with both children.

Litigation History

Litigation History

6Upon a review of the record, it appears that since the divorce order in 2005, the father has brought six motions to change child support, two motions for orders of contempt against the mother and three other motions, including a last-minute addition to the father's claim for relief in this motion to vary access as set out in a chart attached to the mother's affidavit dated January 26, 2016.

7By order dated September 23, 2010, the Honourable Justice Mackinnon suspended the father's access to the children due to the emotional abuse of the children, in light of the father's refusal to cooperate with the Children's Aid Society.

8The three most recent decisions in this case are as follows:

(a) On June 5, 2012, the Honourable Justice Robert Smith dealt with a variety of issues including access. On June 6, 2012, Justice Smith amended his endorsement and added a final order on consent with respect to child support and sharing of special expenses. Specifically, he set the father's contribution for extraordinary expenses at $192.00 per month. Costs were awarded against the father in the amount of $1,500.00 plus HST, plus disbursements of $56.81.

(b) On March 17, 2014, the Honourable Justice Warkentin ordered the father to pay table child support for both children in the monthly amount of $1,023.00 retroactive to January 1, 2013, based on the disclosed income of $69,000.00, while continuing the father's obligation to pay $192.00 per month for his share of the section 7 expenses.

(c) On March 10, 2015, the Honourable Justice Parfett dismissed the father's motion for contempt, dismissed the mother's motion for security for cause and ordered the father to pay $5,000 in costs.

9On March 16, 2015, the father commenced his current and most recent application seeking to vary child support by terminating C.M.L.'s child support as of her 18th birthday on November 26, 2014, paying table child support for C.D.L. and terminating his obligation to pay $192.00 per month for section 7 expenses retroactive to 2012.

10On January 26, 2016, the mother brought a motion returnable April 19, 2016 seeking various relief including dismissing the father's Motion to Change on the basis that C.M.L. remains a "child of the marriage". She alleged that the father failed to comply with the disclosure order made at the case conference and that the father "abandoned" his motion to change.

11On April 15, 2016, the father served a Notice of Motion seeking various claims for relief including dismissing the mother's motion, seeking to amend his Motion to Change by adding claims for relief including a variation of table child support; disclosure of C.M.L.'s family doctor medical file; production of a child care budget; and the resumption of liberal and unsupervised access to both children.

12On April 19, 2016, I adjourned both motions to a date before me to be heard by May 4, 2016 as set by the trial coordinator. The parties wished to proceed to a final hearing on the various substantive issues. The motion proceeded on May 3, 2016.

Issues before this Court

Issues before this Court

Is C. entitled to child support? If so, in what amount?

13As she is over 18 years of age, for C.M.L. to be entitled to child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), she must meet the definition of "child of the marriage" at section 2(1) of the Divorce Act. The definition is as follows:

Child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge; or

(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; (enfant à charge)

14When the father commenced this proceeding, he was self-represented. He had counsel for a period of time and subsequently terminated her services. In April 2016, the month the motion was proceeding for final decision, he retained the services of his present counsel.

15Up to April 2016, the father's position was that child support for C.M.L. should be terminated because she had reached 18 years of age on November 26, 2014 and she was in receipt of the Ontario Disability Support Program (ODSP) payments.

16The mother's position was that C.M.L. is an adult with severe disabilities, who is unable to function independently and requires supervision and direction with all activities except going to the bathroom and feeding herself. Furthermore, due to her significant developmental deficits, she is unable to pursue employment. C.M.L.'s impairments have existed since birth.

17As a result of her significant developmental deficits, C.M.L. is entitled to receive $841.00 per month under the ODSP as of her 18th birthday.

18C.M.L. has been diagnosed as suffering from developmental delay and attention deficit disorder by her family physician Dr. Barbara Yates. Dr. Yates prepared a health status report indicating that C.M.L. functions at the level of a six-year-old and, in her opinion, faces challenges with memory, intellect, comprehension and judgment, is unable to function independently in the world, is unable to pursue any employment, and has difficulty in social situations. The developmental delay was related to the child suffering from asphyxia at birth.

19The mother's evidence is that at the motion before Justice Parfett in March 2015, the Court asked the mother to provide a copy of the ODSP application to the father. Her evidence is that she provided the father with a copy of the application at the motion.

20Furthermore, the mother filed a psychological assessment dated March 3, 2008, which she indicates was previously provided to the father, confirming the child's significant developmental delays and challenges.

21The mother states that she also provided the father with a psychological-educational assessment conducted by a psychologist on December 4, 2012, confirming the previous findings and concluding as follows:

C.M.L. is not suited to being in a regular grade 10 program and it was recommended that C.M.L.'s parents begin to look into government-assisted funding such as ODSP. C.M.L. was not capable of reading textbooks, taking notes in class or producing the written work required.

22Furthermore, the mother states that she provided the father with the child's report cards and gave him a signed direction to consult the school if he wanted further information.

23The mother's position is that C.M.L. cannot support herself and will require supervision and assistance for the rest of her life. Her significant challenges have been recognized by the Canada Revenue Agency in issuing a disability tax credit for C.M.L. as well as her being accepted into the ODSP program. Both are governmental agencies that require compelling evidence of disability to qualify for such benefits.

24It was only in April 2016 that the father came to the same conclusion that C.M.L. is still a "child of the marriage" and is entitled to support.

25The father's two recent affidavits set out his position that C.M.L. turning 18 years of age was significant. He references the order of Justice Warkentin dated March 17, 2014, who stated at paragraph 4 of her endorsement:

4. Because C. will be starting grade 12 in the fall of 2014, and because at age 18 or thereabouts, she will be eligible for special benefits as a disabled adult, the issue of child support will have to be reviewed. The Respondent mother shall take all necessary steps to apply for the benefits available to C.M.L. and shall provide proof of that application and all related correspondence in a timely fashion to the applicant father.

26He argues that the mother did not take all necessary steps to apply for the special benefits available for the child and failed to provide him with proof of the application and all related correspondence in a timely fashion.

27For the first time in this most recent litigation, the father no longer argued that C.M.L. was not entitled to support, but rather that the amount of support should be reviewed when he stated at paragraph 23 of his affidavit dated April 14, 2016 (two weeks before the motion):

23. I am not seeking an order terminating ongoing support for my daughter. I understand and accept that she will continue to require some ongoing level of support from her parents as a result of her disability. That being said, it is my position that the application of the Federal Child support guidelines is not presumptive.

28The father in his affidavit dated April 29, 2016 accepts that C.M.L. functions at a level which can be described as "globally impaired". He admits that she does not have the capacity of independently providing for herself financially and he concedes that the support obligation should continue.

29As a result of the father's admission that C.M.L. is entitled to ongoing child support, the next step is to determine whether or not the table child support is appropriate.

30Section 3(2) of the Federal Child Support Guidelines, SOR/97-175, states:

Child the age of majority or over

Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of child support is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

31While acknowledging that his daughter is "globally impaired", the father argues that the amount of child support may be appropriate but it is not presumptive. The father argues that the mother has not provided all the required evidence as to what benefits the child is entitled to receive.

32Counsel for the father alleged that there were three sources of income that were not investigated and which may have an effect on C.M.L.'s income. The three potential sources of income for C.M.L. were a registered disability savings plan, the disability tax credit that the mother receives and medical expenses deducted by the mother against her income.

33The father has provided no evidence that any of these three potential sources of income could provide income for C.M.L.. During submissions, counsel for the father admitted he had no idea if these three items could provide income for the child.

34With respect to the disability tax credit, the mother's evidence is that the $192.00 paid by the father towards the section 7 expenses was taken in consideration of the disability tax credit the mother receives. To support this contention, she points out that the father in fact only contributes 25% of the actual special expenses for both children as set out in the order of Justice Warkentin. The father's affidavit does not respond to this evidence.

35With respect to the registered disability savings plan, the mother's financial statement does not disclose that she has contributed to such a plan. Further, there is no evidence before me to allow me to conclude that such a plan is currently capable of producing an income source for C.M.L.. It is not my role to speculate but it is to adjudicate and without proper evidence, the father has not met his burden of proof.

36With respect to the medical deduction utilized by the mother, again I have no evidence. I will not speculate and the father has not met his burden of proof.

37Consequently, I find that there are no other sources of income C.M.L. would be entitled to receive that would have an effect on me determining whether or not the table child support is appropriate in the circumstances.

38The issue of whether or not the table child support is appropriate in circumstances involving an adult child in receipt of ODSP payments was recently before the Court of Appeal. In Senos v Karcz, 2014 ONCA 459, 120 O.R. (3d) 321, at paragraph 67, the Court held:

67. The table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society.

39The Court of Appeal provided the following guidelines at paragraph 37:

37. In Francis v Baker, at paras. 42-49, the Supreme Court discussed the circumstances in which the presumptive Table amount in the Guidelines can be displaced. Section 3 of the Guidelines establishes a presumption in favour of the Table amount and the party seeking to deviate from that amount bears the onus of rebutting the presumption. That party is not obligated to call evidence and may simply choose to question the opposing party's evidence. However, the evidence must, in its entirety, be sufficient to raise a concern that the table amount is inappropriate. There must be "clear and compelling evidence" for departing from the Guidelines amount. The factors to be considered in determining both whether the Guidelines approach is "inappropriate" and the "appropriate" level of support, are the conditions, means, needs and other circumstances of the child and the financial ability of both parents to contribute. Only after examining all the circumstances of the case should a court find the table amount to be inappropriate and craft a more suitable support award. To determine "appropriateness", the Court must have sufficient evidence. Trial judges have the discretion to determine on a case-by-case basis whether a child expense budget is required and they have the power to order it. When the presumption in s. 3(2)(a) is rebutted, child support can then be set above or below the Table amount.

40The mother's position is that the table amount of child support is appropriate. She concedes that I am to conduct a means and needs analysis to determine whether or not the table amount of child support being paid is appropriate.

41In this case, the Court has the financial statements filed by both parents, proof of the child's ODSP payments, as well as a detailed financial statement showing a monthly budget for C.M.L..

42With respect to the budget, the father did not, in his reply affidavits, contest the budget set out by the mother. The budget sets the monthly expenses for C.M.L. at $2,078.00, including $502.00 per month for summer camp expenses.

43The budget prepared for C.M.L. includes monthly housing and utility expenses of $616.00 and grocery expenses of $300.00. In my view, a reasonable budget for C.M.L. would be $1,600.00 per month. I have deducted $502.00 per month for summer camps because this is a section 7 expense for which the father is contributing $192.00 monthly. Secondly, the monthly payment of $192.00 was based on the mother being entitled to receive the disability tax credit for C.M.L..

44From the monthly budget of $1,600.00, I have subtracted the monthly ODSP benefits payment of $841.00, leaving C.M.L. with monthly expenses of $759.00. If that amount were shared equally between the parties, each would defray monthly payments of $379.50. If the monthly expenses were to be shared in a pro-rata to income basis, the father would be responsible for 59% of the monthly budget or $447.81 per month.

45According to the Federal Child Support Guidelines, the table child support payable by the father for one child, being C.D.L., on an income of $72,447.00 is $660.00 per month. The table child support for two children on that income is $1,071.00 per month. The differential between the two amounts is $411.00 per month. Consequently, the father's contribution to C.M.L.'s expenses would be $411.00 per month. That amount is less than his pro-rata share towards her monthly expenses of $447.81 per month.

46Based on the factors set out above, I find that the father's contribution of $411.00 per month towards C.M.L.'s expenses confirms that the full table support of $1,071.00 per month is appropriate in these circumstances.

47It is clear that there is a significant lack of communication between the parents in this matter. I order the mother to provide an update on any income earned by C.M.L. through any employment within 14 days of the commencement of such employment. Further, I order the mother to inform the father within 14 days of any material change in the child's circumstances, including living arrangements.

Mother's claim for costs related to the father's motion to change of September 2014

Mother's claim for costs related to the father's motion to change of September 2014

48In September 2014, the father commenced a motion to change child support that he withdrew on March 16, 2015.

49The mother claims costs in the amount of $3,797.74, of which $3,326.10 were legal fees, disbursements of $34.73 and HST of $436.91.

50The father states that he commenced the September 2014 motion to change without counsel. He indicated that he attempted to serve the mother personally but she refused to accept service and told him to serve her counsel. He took no further steps to do so and was advised that he had to withdraw his motion to change.

51The mother's position is that on the first appearance, the father did not attend. She argues that she is entitled to costs pursuant to rule 12(3) of the Family Law Rules, O. Reg. 114/99 (the "FLR"). Rule 12(3) of the FLR states :

A party who withdraws all or part of an application, answer or reply shall pay the costs of every party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties otherwise agree.

52Counsel for the father submitted that a reasonable cost award would be $500.00 as the father was unrepresented and the mother filed no pleading. Counsel for the mother indicates that a substantial amount of time was required to review the multitude of letters sent by the father after the commencement of the motion to change in September 2014. The Court had an opportunity to review volume 3 of FC-05-2668-8, Exhibits 0 to T, which indicate that the Applicant had corresponded with counsel for the mother on October 20, October 23, October 27, October 30, November 3, November 5, November 7, November 10, November 14, November 25, December 4, and January 31, 2014. On February 25, 2015, counsel for the mother replied to the father.

53I find that the sum of $500.00 is woefully inadequate considering the amount of correspondence sent by the father to the mother. On the other hand, the cost of approximately $3,797.74 for reviewing the letters, sending a letter and attending on the return date is not a reasonable amount expected to be paid by the losing party.

54In the circumstances, I order the father to pay a sum of $2,000.00 for costs related to the motion to change of September 2014 that he withdrew on March 16, 2015.

Father's request to vary the access

Father's request to vary the access

55By Notice of Motion dated April 15, 2016, the father requested, 4 days before the return date of the motion between the parties, amongst the other relief, a variation of the order of Justice MacKinnon to allow for the immediate resumption of liberal and generous access to the children. The father's affidavit provides two paragraphs to support this request. There was no amendment to his Motion to Change. There has been no case conference on this issue.

56The matter before the court in the current Motion to Change and Response filed by the mother deals with financial issues. Consequently, this relief is denied at this time.

Termination of the father's contribution to section 7 expenses retroactive to 2012

Termination of the father's contribution to section 7 expenses retroactive to 2012

57The issue of the father's contribution to section 7 expenses was decided by Justice Smith and Justice Warkentin, and was canvassed before Justice Parfett in 2015. I find that the father's request to terminate his contribution to section 7 expenses was previously before this Court and there is no material change in circumstances established by the father.

58However, I order that the mother provide the father by June 30 of each year a list of section 7 expenses and the related receipts incurred by the mother with respect to the children. The current expenses incurred shall not require the consent of the father, but any new section 7 expenses shall require the consent of the father before his liability is attached. In the event that the father does not consent, the mother is at liberty to apply to this Court for adjudication.

Repayment of child support arrears of $5,418 up to April 1, 2016

Repayment of child support arrears of $5,418 up to April 1, 2016

59The father owes arrears of child support of $5,418.00 as of April 1, 2016.

60The father has previously agreed with the Family Responsibility Office (FRO) to pay back the arrears of child support at $100.00 per month. The mother wants the arrears paid back at $500.00 per month.

61The mother's position is that the father's income has increased substantially since he entered into that agreement with the FRO and that the Court has jurisdiction to order the repayment at a rate other than the rate negotiated with the FRO.

62Counsel for the father concedes that the court has jurisdiction. The question is should the court exercise the jurisdiction?

63The father's financial statement indicates that he earned $72,447.00 in 2014. When the father made the agreement with the FRO he was earning $55,000 per year.

64I find that there been a material change in circumstances since he entered into the repayment agreement with the FRO. The record indicates the father's financial statement shows that he has a monthly surplus of $340.00, taking into account his payment of $100.00 per month towards the arrears as well as the table child support of $1,071.00 and a monthly contribution of $192.00 toward section 7 expenses.

65I do not believe that it is fair and reasonable that it will take the father 4 1/2 years to pay back the arrears of support. I order the father to pay $300.00 per month commencing July 1, 2016 until the arrears are paid in full.

Costs

Costs

66The mother shall provide by June 10, 2016 her cost submissions not to exceed three pages, plus a detailed bill of costs and any offers to settle that have been submitted. The father will provide his cost submissions not to exceed three pages plus a detailed bill of costs and any offers to settle that have been submitted by June 17, 2016. The mother shall have a right to reply by June 24, 2016.

Shelston J.