COURT FILE NO.: FS-07-04141-01 DATE: 20170724 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VINETTE DELORES PAGE-COLE, Applicant AND: SELVIN ANTHONEY COLE, Respondent

BEFORE: Barnes J.

Self-Represented Applicant Self-Represented Respondent

HEARD: July 14, 2017

ENDORSEMENT

INTRODUCTION

[1] This is a motion by the Selvin Anthony Cole (the Respondent) to change the final child support order of Justice Snowie, dated October 14, 2011 (the Final Order). The Respondent seeks the termination of the child support order and an order that Vinette Delores Page-Cole (the Applicant) refund to him, C$21,000 in alleged child support overpayments. The Applicant seeks an order that the Respondent pay retroactive section 7 expenses. The parties are representing themselves.

[2] Upon reading the material filed, I conclude that the parties’ adult child, Matthew Anthony Cole (Matthew), is no longer a child of the marriage as defined in section 2 of the Divorce Act, R.S. 1985, C.3 (2nd Supp) (the Divorce Act). The Final Order and the interim child support order of Justice Barnes are changed to terminate child support effective August 1, 2017. The Applicant shall refund the Respondent the amount of C$4,500 within 120 days. This amount represents the overpayment of child support by the Respondent to the Applicant.

[3] Each party may continue to provide their own financial assistance to Matthew Cole as they deem fit. There shall be no expectation of contributions to such expenses from the other party unless the parties agree that such contribution shall take place.

BACKGROUND FACTS

[4] The parties were married on March 6, 1993. They separated on October 15, 2007 and were divorced in April 2009. Matthew is their only child. He is 19 years old.

[5] The Final Order, dated October 14, 2011, settled outstanding issues between the parties on a final basis. At that time, Matthew was four years old and a child of the marriage under the Divorce Act (child of the marriage). Matthew resided with the Applicant on a full time basis. The Applicant had full custody of Matthew at that time. Based on an annual income of $87,500, the Respondent was ordered to pay child support for Matthew in the amount of $778 per month.

[6] The Final Order required each party to maintain a life insurance policy with each other as beneficiary until Matthew was no longer a child of the marriage. The parties agree that Matthew now resides with each of them 50% of the time. They disagree on the date this arrangement began.

GENERAL COMMENTS

[7] Both parties clearly love Matthew dearly. They have both been good parents and have made financial, emotional, and other contributions to Matthew’s well-being. This is a fact acknowledged by Matthew and evidenced by his willingness to live with both parties on an equal time basis. Unfortunately, the parties’ fail to recognize that their extreme hostility towards each other has spilled over to cause Matthew significant stress.

[8] The Respondent has provided an accounting of some of the section 7 expenses he has incurred on Matthews’s behalf from 2011 to 2016. Matthew provided an affidavit (the first affidavit) which confirmed the Respondent’s assertions. However, the first affidavit follows a similar writing style, grammar and sequence of enumerated items as the Respondent’s affidavit. In a second affidavit dated June 21, 2017, Matthew confirms that the first affidavit was prepared by the Respondent and he signed off without looking at it closely. Matthew’s assertion is confirmed by the Applicant in her affidavit dated June 21, 2017, in which she asserts that Matthew was badgered by the Respondent into signing the first affidavit. This statement by the Applicant is an example of the stress the parties are putting Matthew under.

[9] I conclude that Matthew’s June 21, 2017, affidavit was prepared under undue pressure from the Respondent and I accord the contents little weight. Each party will question Matthew about the actions of the other without any regard for the stress such action may cause Matthew. For this reason, I place little weight on the contents of Matthew’s affidavit also dated June 27, 2017 in support of the Applicant’s claim for section 7 expenses also dated June 21, 2017.

[10] The parties are using Matthew as a ‘ping pong” in support of their respective positions and causing him unnecessary stress in the process. This quote from paragraph 5 of Matthew’s June 21, 2017 affidavit is illustrative:

I do also want to state that I feel this whole situation is ridiculous between my parents. It has created a pool of bad blood between them, which has resulted in additional stress for both parties; thus leading to additional stress on me. I want nothing more than for the two to reach some sort of amicable decision that pleases both parties.

[11] I am satisfied that both parties are completely blinded by their determination to be the most successful in this motion and are oblivious to the stress their conduct is having on their son. Under these circumstances, I have serious concerns about the credibility of the parties and, therefore, will place little weight on their evidence unless such evidence is confirmed by an independent source.

ISSUES

[12] The relief sought by the parties raise these main issues:

1. When did Mathews’ equal residency arrangement with the parties begin?;
2. Does the Applicant owe the Respondent a refund for overpayments in child support?;
3. Does the Respondent owe the Applicant a refund for retroactive section 7 expenses?;
4. Is Matthew still a child of the marriage as defined by the Divorce Act?

When did Mathews’ equal residency arrangement with the parties did began?

[13] For the purposes of this motion, the date when Matthew began to live with either party on an equal time basis is set at July 1, 2017.

[14] The Order sought to be changed is a final Order, therefore the Respondent must demonstrate that there has been a “change in circumstances” since the final Order was made to warrant the change in the final Order for child support: Divorce Act section 17(4). This change must be a “material change” in circumstances. A “material change” refers to a change which, if known at the time the order was made, would have resulted in a different term in the order: Willick v. Willick, 6 R.F.L. (4th) 161 (S.C.C.).

[15] At the time the final Order was made, Matthew resided full-time with the Applicant. This fact was a significant fact in the child support ordered in the Order. The current circumstance of equal time residency is a significant fact which, if present at the time the final Order was made, will have resulted in a different child support order. Therefore, the new fact of an equal time residency is a material change in circumstances that warrants a change in the child support provision of the final Order.

[16] The parties provide different dates as to when the equal time residency arrangement began. I have expressed my concerns about the credibility of the parties. I conclude that the record before me is insufficient to enable me to make a definitive determination on the exact date the equal residency arrangement began. While I accept that Matthew began living with the parties on an equal time basis prior to the argument of this motion, I am unable to determine the precise date from the record before me. Therefore, the equal residency arrangement is set to have begun on July 1, 2017.

Do the parties owe each other any money either from the payment of child support or section 7 expenses?

[17] The Applicant shall pay the respondent $4,500 within 120 days. This figure represents payments overpaid by the Respondent for child support.

[18] The Respondent submits that the Applicant owes him $21,000 in child support overpayments. These figures are calculated primarily from the date he attributes to the commencement of the equal residency agreement.

[19] Section 7 of the Federal Child Support Guidelines SOR/97-175, (section 7 expenses & the Guidelines) is a statutory recognition that child support payments may have to be supplemented to cover “add on” expenses such as child care, medical or dental premiums and expenses, post-secondary education, primary or secondary education and other “extraordinary expenses” as defined by the Guidelines.

[20] In her affidavit dated November 18, 2016, the Applicant calculates that based on various over and underpayments of child support by the Respondent; failure of the Respondent to contribute to section 7 expenses; and her contribution to section 7 expenses the Respondent owes her $128. In an affidavit dated July 5, 2017, the Applicant concedes that she owes the Respondent $4,500.00 for child support over payments.

[21] I accept that each party has made contributions, financial and otherwise, to Mathew’s well-being. The record reveals disagreements between the parties on how much money each of them spent on Matthew’s well-being and on the date when the equal residency arrangement began. I have expressed concerns about the parties’ credibility. Matthew acknowledges some of these expenses but is unable to provide accurate dollar amounts for the expenses he acknowledges. In addition, although in his affidavit dated June 21, 2017, Matthew provides some figures for section 7 expenses incurred by the Respondent. For the reasons previously articulated, I conclude that this affidavit was prepared under undue pressure from the Respondent and I accord the contents little weight.

[22] In the result, I conclude that due to the state of the record, I am unable to accurately determine the quantum of any overpayments, underpayments or under contributions to child support and section 7 expenses, save and except the concession by the Applicant that she received overpayments of child support in the amount of $4500. Therefore, the Applicant shall pay the Respondent $4,500 within 120 days from the date of this order.

Is Matthew still a child of the marriage as defined by the Divorce Act?

[23] I conclude that as of July 1, 2017, Matthew was no longer a child of the marriage as defined by section 2 of the Divorce Act. A “child of the marriage” as defined by section 2 of the Divorce Act is entitled to child support from a parent or a person who stands in the position of a parent: Divorce Act section 2(2); section 15.1(1).

[24] Matthew is over the age of majority. He is 19 years old. He remains a child of the marriage and is entitled to child support if he is unable to be self-sufficient “by reason of illness, disability or other cause” or unable to obtain the necessaries of life without financial assistance from his parents: Divorce Act section 2(1).

[25] The Applicant submits that Matthew is still a child of the marriage and entitled to child support. She explains that Matthew has a disability that will prevent him from being self-sufficient. The Applicant has provided documentation that Matthew is undergoing treatment for anxiety. There is no evidence that Matthew is unable to return to school or obtain gainful employment as a result of his anxiety diagnosis. Matthew has not provided any evidence to indicate that he cannot return to school or obtain gainful employment because of the said diagnosis. In fact, Matthew has obtained gainful employment at a retail establishment on a part-time basis.

[26] The Applicant submits that Matthew is a child of the marriage because it is Matthew’s intention to return to school in September, 2017. Matthew has provided no evidence that he intends to return to school in September 2017. The Respondent submits that Matthew is no longer in school; Matthew’s anxiety does not preclude him from obtaining gainful employment and Matthew has obtained gainful employment, albeit on a part-time basis.

[27] Matthew suffers from anxiety. This diagnosis does not prevent him from obtaining gainful employment. Matthew is currently gainfully employed, although on a part-time basis. While Matthew may have expressed an intention to return to full-time studies in September, 2017, there is no evidence from Matthew that this is a definite intention. Therefore, I conclude that Matthew is no longer a child of the marriage as defined by section 2 of the Divorce Act. This constitutes a material change in circumstance and warrants a change in the final Order. Effective, August 1, 2017, the child support provision of the final Order is deleted and child support payments for Matthew are terminated effective that date. The interim child support order of Justice Barnes is also terminated effective the same date.

[28] In addition, the life insurance provisions of the final Order are premised and limited by Mathew’s classification as a child of the marriage under the Divorce Act. Since Matthew is no longer a child of the marriage this is a material change of circumstance that warrants the termination of that order. The life insurance provision of the final Order is terminated effective August 1, 2017. The parties, on their own volition, may continue the current insurance policies if they determine that it is in Matthew’s best interests for the policies to remain in force. For example, the parties at their option could make Matthew the beneficiary of the respective policies.

[29] Should Mathew’s circumstances change such that he becomes a child of the marriage as defined by section 2 of the Divorce Act, he may at his option, bring a motion to seek a court order requiring his parents to pay child support. Currently, the parents continue to make their own separate contributions financial and otherwise to Mathew’s well-being so such action may not be necessary. I can only hope that should Matthew require assistance in the future, this circumstance shall continue without the current state of unchecked hostility.

[30] Given the extreme hostility between the parents, each parent shall refrain from encouraging Matthew to engage in unnecessary litigation against the other parent. Due to the high conflict between the parties, I grant the Applicant’s request for an Order prohibiting contact between the parties except for matters related to Matthews’ well-being.

[31] Each party shall pay their own costs for this litigation.

Barnes J. Date: July 24 2017