COURT FILE NO.: FC-10-1828-1 DATE: 2017/10/10

SUPERIOR COURT OF JUSTICE – ONTARIO, FAMILY COURT

RE: E.B.H., Applicant AND: E.H., Respondent

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Gil D. Rumstein, for the Applicant Stephane A. MonPremier, for the Respondent

HEARD: July 20, 2017

REVISED decision and reasons[^1]

Introduction

[1] This is a motion to change the order of Madam Justice Parfett dated November 16th, 2010. To be precise it is a motion seeking to establish the current amount of child support and to calculate retroactive support.

[2] The parties are the parents of one child. It is common ground that since separation, the Respondent has voluntarily paid child support and there has never been enforcement. This is not a case of a "deadbeat dad". The parties have simply been unable to agree on the amount of support and the manner in which it should be paid so that it is now necessary to resolve the issue by adjudication.

[3] The major issue is how support should be calculated and paid for an adult child who is in university and living away from home. In these reasons I address that question first then deal with arrears and finally with other items of relief requested by one or other of the parties.

Background

[4] The parties married in 1995 following a period of co-habitation. They have one child, S.H. who was born on December 6th, 1998. The parents have been separated since November of 2003 when S.H. was roughly 5 years old.

[5] For purposes of determining the issues in dispute I do not consider it useful or necessary to deal extensively with the relationship between the parties. Despite that, it is important to recognize the Respondent father's deep sense of grievance. He indicates that he has always wanted to be a full participant in parenting S.H., an involvement that he thinks is particularly important for a child of mixed race. Although the parties had agreed to a shared parenting regime (which was recorded in 2004 and again in a formal separation agreement on September 24, 2010), it is his evidence that this never really took place. He believes that the Applicant mother has systematically undermined his authority as a parent and has searched for excuses and tactics to reduce his time with S.H.[^2] In short, though the parties had agreed to shared parenting, that has not been the reality.

[6] Despite his unhappiness with being marginalized as a parent (as he sees it) and the lack of consultation and communication, the Respondent deposes that he has always provided adequate and reasonable child support and that support has not previously been contentious. This appears to be the case. There has never been a legal proceeding over child support. Although an amount for child support was included in the divorce order, the record supports the Respondent's evidence that this was only included to satisfy the requirements under the Divorce Act. It is evident that the support order was immediately withdrawn from enforcement by the Applicant and the Respondent has continued to pay support on a monthly basis including some support paid directly to S.H. or on her behalf.

[7] The amount of support has apparently never matched the amount of $995.00 per month set out in the order. This was the table amount for the Respondent's income of $115,100.00 at the date of the order. It appears the Respondent was paying $900.00 per month up until the order was made. Thereafter he paid $940.00 per month until January 2016 when he increased the payments to $1038.00 per month. The Respondent has also covered certain expenses for S.H. but there is disagreement as to whether or not those payments should be recognized as child support.

[8] A further disagreement arises from the failure by the Respondent to disclose changes in his income. He has now done so in the face of this motion. Accordingly the Applicant seeks retroactive adjustments from January of 2012. While acknowledging that support was paid, she argues that it was less than the table amount based on the Respondent's actual income for each of those years.

The Current Situation

[9] At some point S.H. began to demonstrate behavioural and educational difficulties and the parties engaged in family counselling to try to address this. The parties disagree on whether or not S.H.'s difficulties are mental health issues and how significant they are but she does appear to have received treatment for anxiety. The Respondent complains that details have not been fully shared with him and he has been excluded from decision-making especially in recent years.

[10] In 2016, S.H. finished high school and decided to enroll in a four year science program at Queen's University. This has necessitated her living away from home during the school year. She lived in residence during her first year but has now rented an apartment where she intends to live during her upcoming second year in university. S.H. did not work last summer and has not worked this summer nor does she work during the school year. Accordingly as things stand she has no income to contribute to her own education costs. She has spent the summer living at home with her mother.

[11] The fact that S.H. is not contributing to her own education yet is living away from home and a disagreement concerning the treatment of RESP funds has given rise to the current dispute. While the Respondent has paid certain of S.H.'s expenses directly and has continued to pay some amount of child support to the Applicant the parties have not been able to agree as to their respective obligations to support S.H. during the post-secondary years.

[12] To be clear, the Respondent agrees with S.H.'s decision to attend Queen's. He is not convinced she should not have to make some contribution of her own. He does not agree he should continue to pay table support in addition to a contribution to her budget and he wishes to make some portion of the payments directly to her or on her behalf. He proposes to continue paying for her cell phone plan and to pay her rent directly to the landlord. He also regards the funds from the RESP as reducing his support obligation.

The Incomes of the Parties

[13] It is not complicated to determine the incomes of the parties during the relevant periods of time. They are both employees and their income is readily ascertained through the use of T4's and tax returns.

[14] The incomes of the parties and the percentage of the total income earned by each is set out in the following table.

Year	Applicant	% of total income	Respondent	% of total income
2012	$85,000.00	37%	$147,582.00	63%
2013	$94,073.00	40%	$138,681.00	60%
2014	$90,798.00	40%	$138,043.00	60%
2015	$85,989.00	38%	$139,306.00	62%
2016	$86,866.00	39%	$137,329.00	61%

[15] At this point it appears the 2017 incomes of each of the parties will be similar to last year.

S.H.’s Participation in the Hearing

[16] It is possible for an adult child enrolled in post-secondary education to make her own support claim against one or both parents under provincial legislation but that is not the case here. Although this motion is about support for S.H., she is not a party. The issue before the court is a variation of the existing child support order made under the Divorce Act. The question is how much one parent should be ordered to pay to the other as child support.

[17] The Applicant mother may make that claim providing S.H. remains in her care and continues to be a "child of the marriage" within the meaning of the Divorce Act. The Act provides that a spouse or former spouse may seek such an order in respect of a child who is under the age of majority and in his or her care or, to use the wording of the statute, "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". It is incontestable that this includes a child who is enrolled in post-secondary education and remains dependent.

[18] I make this point because S.H. was present in court to observe the proceeding. In fact she was there against the wishes of her father who asked that I clear the court room of all but the parties themselves. On this point I heard from counsel and from S.H. herself. She articulated to me that as a member of the public with an interest in the outcome of the proceeding she felt she had a right to remain in a public court room. This is the law. The open court principle demands that justice generally be administered in public and I ruled that there was no jurisdiction in the court to expel an adult member of the public from the court room.[^3] S.H. is an adult and no one asserts that she is under a legal disability.

[19] It is significant that S.H. was aware of the time and place of the motion, took the initiative to attend court, asserted her right to observe the proceedings and accepted the invitation to address the court prior to my ruling on her right to remain. Although she did swear an affidavit which was included in her mother's materials, this makes her a witness and not a party. S.H. did not ask to be treated as a party or to address the court on the merits. The support dispute therefore remains a dispute between her parents and she remains a spectator.

Evidentiary Issue

[20] One of the issues relating to post-secondary education is the expectation that S.H. contribute to her own expenses. This is contentious because she did not work in 2016 or 2017 either during the school year or during the summer. The Applicant takes the view that S.H. cannot do so and should not be expected to do so as she is medically and psychologically fragile.

[21] Before proceeding with findings of fact, it necessary to say something about the nature of a court proceeding and the rules of evidence. Without going into the question at length, I wish to make it clear that the evidence before me is insufficient for the court to conclude as a fact that S.H. suffers from a mental condition rendering her incapable of working or otherwise contributing to her own education.

[22] What I have been given in support of the contention that S.H. cannot work is an affidavit from S.H. herself which makes this assertion and attaches a photocopy of a letter from Dr. Archibald, her physician stating that he advised her not to work in the summer of 2017. Secondly, there is a reply affidavit from the Applicant making the same assertion with respect to the summer of 2016 and 2017 and attaching a somewhat more detailed letter from Dr. Archibald. In that letter Dr. Archibald states that S.H. suffers from depression and anxiety. He indicates that he advised her she should not work during the summer of 2016. The letter also states that S.H. suffered a traumatic incident during first year at university and records other facts about her academic progress. He states that she requires "time and space to heal and recover and see her specialists during this difficult time". He lays much blame for S.H.'s condition on the conflict between her parents.

[23] There are a number of requirements for the admission of expert evidence but at a minimum an expert report must comply with Rule 20.1. The court must also be able to assess what opinion the expert is qualified to give. This is not the situation here. Attaching a letter from a doctor to the affidavit of a party does not allow the court to treat the letter as an expert opinion. In other words such evidence cannot be used to prove that the diagnosis is accurate nor to give weight to the opinions contained in the doctor's letter. Still less can it be used to prove the underlying facts which are hearsay or double hearsay when set out in a letter attached to an affidavit.

[24] I will not make more of this than I need to for purposes of this motion. The point is important however. I cannot accept bald assertions and a copy of a letter from a physician as proving the nature and severity of a medical condition. Taken at its highest, the evidence supports a finding that the Applicant and S.H. herself believe she should not be working because of depression and anxiety and that this belief is not without foundation insofar as the doctor has been prepared to write a note. It is a fact that based upon this belief S.H. did not work in 2016 and is not working in 2017.

[25] The Respondent's evidence suffers from similar difficulties. It appears to be a fact that S.H. did have employment available at Calypso Waterpark in 2016. Other than that, I simply have the opinion of the Respondent. He believes S.H. should be able to work. He speculates that she should be able to earn $10,000.00 per year. Much as I am unsatisfied with the proof that S.H. has no ability to contribute to her own education, I am not able to accept this evidence as proof of her earning capacity.

[26] One of the Respondent's complaints is the failure on the part of S.H. and the Applicant to keep him advised about her educational progress or her medical condition. The affidavit evidence, relying as it does on hearsay and vague assertions, compounds the situation as far as he is concerned.

[27] I should note another omission in the evidence. I would have expected that even if S.H. could not earn income, there would have been evidence about her eligibility for O.S.A.P, disability assistance or other sources of funding. She received a $2,000 scholarship or bursary in 2016. The basis for receiving that and whether there is any such funding available to her in 2017 is not apparent. S.H. deposes that her eligibility for future scholarships is dependent on her marks but not whether she expects to qualify or has qualified.

[28] The responsibility and ability for an adult child to contribute to her own education is not limited to income earned from employment but may also come from other sources available to the student. I am troubled by this omission. Similarly, the educational budget proposed by the Applicant for the upcoming calendar year is not supported by any evidence from S.H. herself and almost 50% of the proposed budget is under the heading of "other expenses".

[29] In conclusion, I am able to find that S.H. did not work in 2016 or 2017 and is supported in this decision by her mother and her physician. Whether she has other resources available to her or should be expected to contribute in the future remains unclear. I will come back to this shortly.

The RESP

[30] Some of the funding for education has come from drawing on an RESP which the Applicant established. All of the funds in the RESP were directly contributed by the Applicant and not by the Respondent but the Respondent argues that he made an indirect contribution because the Applicant used his child support payments to establish the RESP. He argues that the funds should be used to reduce S.H.'s expenses before calculating the deficit which the parents are obligated to fund. In essence this would treat the RESP as funds belonging to S.H. and not as part of the Applicant's contribution.

[31] The basis for this is an allegation by the Respondent that the parties had agreed to establish the RESP and the Applicant had agreed to use the child support or a portion of the child support paid by him to create the fund. He argues that it was their joint intention to use the RESP to defray the costs of post-secondary education and his current support obligation should only include a proportionate share of the university expenses after the payment from the RESP.

[32] This argument must be rejected. Firstly, the Applicant denies there was any such agreement. Secondly, although she may in fact have used funds paid by the Respondent as child support to build up the fund, it does not follow that the RESP should be treated as if both parties had contributed to it.

[33] For that to make sense, the Respondent would have had to pay more than the table amount of support. Had the parties intended to set aside funds in an RESP to reduce future support obligations they could either have set up a joint RESP or they could have treated the RESP as a s.7 expense and had the Respondent pay a proportionate share of the RESP contributions over and above the table amount. Neither of these were the case. The RESP was established by the Applicant and the funds contributed from the RESP are her savings not the Respondent's.

[34] In conclusion, on this point, the payments from the RESP are not credits to the Respondent nor reductions in the expenses of post-secondary education. They are to be viewed as post-secondary education contributions by the Applicant.

[35] With those issues determined, I now turn to the contribution to post-secondary education costs. I will deal first with the expenses already incurred.

Proportionate Share of 2016 -2017 Educational Expenses

[36] The expenses actually incurred for the 2016-2017 academic year can be established by the affidavit evidence. The expenses are detailed in the Applicant's affidavit and as S.H. was living in residence, most of the expenses are verified by a statement from the University. Those expenses totalled $21,046.04. The Respondent's contribution should have been 61% of this amount or $12,838.08.

[37] While I accept the argument that in principle, the child should be contributing to her own educational expenses, the evidence shows that she did not do so during her first year of university. Given the income of the parents and the relatively modest budget for the student living in residence, there is no basis to impute income to S.H. She and the Applicant believed it would be too stressful to work during the summer of 2016 as she prepared for university and that is not unreasonable.

[38] At the same time, the Respondent paid certain expenses for S.H. which should also be shared proportionately. These are also s. 7 expenses and he is entitled to a credit of 39% of those amounts.

[39] I accept the need for S.H. to have a computer. For the Applicant to argue about whether she really needed a "Mac" or a cheaper "PC", given the combined income of the parties, the program S.H. was about to embark upon and the laptop recommendation from the university, is not reasonable. The Respondent paid $2,575.27. The Applicant's share would be $1,004.00. He also paid the cell phone bill which he says is $150.00 per month. This seems high. There are no invoices supporting this or evidence showing why her plan is so expensive. The only invoice produced by the Respondent shows a monthly charge of $56.50. I will allow the Respondent a credit of $60.00 per month. This would total $720.00 and the Applicant's share would be $280.80.

[40] Applying these credits, the Respondent owes $11,553.28 for the post-secondary expenses for 2016-2017. This amount is calculated based on the academic year and not the calendar year as those expenses were incurred during 2016 and 2017.

Contribution to Post-Secondary Expenses for 2017-2018

[41] The Applicant has set out a proposed budget for 2017-2018. This is approximately $28,000.00. If I accept that amount, assume that S.H. cannot contribute from her own resources, and order the Respondent to bear 61% of the cost, his contribution should be $17,080.00. If I order that as a monthly payment, it would work out to $1,423.33 per month in addition to the amount for table support.

[42] I am not prepared to accept the estimated budget of $28,000.00 uncritically largely because almost half of it is categorized as "other expenses". This of course will include groceries, clothing and spending money but is not broken down. This budget represents an increase of more than 30% over the cost of first year university.

[43] Moreover, I am not convinced by this evidence that S.H. should not be making some contribution to her own education either by way of employment income, scholarship income or simply by more frugal living than that which is proposed. I would therefore order the Respondent to contribute 61% of a reduced figure of $24,000.00. This is $14,640.00. If that was paid monthly, it should be $1,220.00.

Direct Payments, Lump Sum Payments or Payments in Kind

[44] I fully understand the wish of the Respondent to make support payments directly to S.H. or on S.H.'s behalf. This reinforces for her the fact that the Respondent is paying for her education and it also ensures the purpose for which the payments are being made. In fact the Applicant in prepared to permit him to pay certain expenses directly provided she has some assurance they will be paid.

[45] This is a good example of how parties have greater flexibility than a judge. As I pointed out above, the issue for the court is the obligation of the Respondent to pay support to the Applicant. S.H. is not a party. The court therefore has difficulty ordering support paid directly to S.H.

[46] Calculating the liability as a monthly payment is the usual way of ordering support payable for the simple reason it is then enforceable. It is the law in Ontario that all support orders are enforceable by the Family Responsibility Office (FRO) and any support order automatically generates a support deduction order.[^4] The Applicant may at her sole option decide to withdraw the support award from enforcement and she may then agree to have part of the support paid directly to S.H or on her behalf. The court has no jurisdiction to withhold the support deduction order or to order the Applicant to withdraw it from enforcement.

[47] The ability and willingness of the court to make an order that is not readily enforceable is constrained by this. Monthly support has the benefit of simplicity. It has downsides. Expenses such as tuition are not due monthly. There is no place in such an order for the Respondent to pay the landlord directly or to pay cell phone bills or to pay funds directly to S.H. This can be achieved by agreement but I am not prepared to make an unenforceable order.

[48] For this reason I will calculate the contribution to post-secondary education as a monthly payment but I will provide in my order that if the Applicant in her sole discretion decides to withdraw from enforcement and to allow direct payments, those payments should be recognized as child support.

[49] Thus the contribution to post-secondary expenses will take the form of a monthly amount of $1,220.00.

Table Amount for 2017

[50] The evidence establishes that S.H. continues to maintain her permanent residence with her mother and although she has a 12 month lease in Kingston, she is living with her mother during the summer. While there is some inconsistency in the case law and each decision is largely fact dependent, there is much support for the approach advocated by Mr. Rumstein.[^5] He proposes that the Respondent pay the table amount only for the months when S.H. is residing at home and that the resulting table amount be pro-rated over the entire year. Another way to look at this is reducing the table amount proportionate to the number of months S.H. is living away from home.

[51] I adopt this approach. The Respondent should therefore be responsible for the reduced table amount and his proportionate share of the post-secondary expenses.

[52] The DivorceMate calculation supplied by Mr. Rumstein using the 2016 income and pro-rating the support in the manner he proposes shows a table support obligation of $390.00 per month. I accept that as the appropriate calculation for 2017.

[53] The Respondent will therefore be ordered to pay reduced table amount support commencing January 1st, 2017 of $390.00 per month. At the time these reasons are released the arrears will be 9 months or $3,510.00. If he has in fact paid any support during 2017 then he should be credited with those payments and this amount will have to be recalculated.

Arrears or Retroactive Support

[54] I accept the argument that the Respondent should have paid table support of $1,169.00 per month for the 8 months in 2016 prior to S.H. starting university. That totals $9,352.00. The Respondent underpaid this amount by $1,048.00.

[55] I accept the calculations set out in Mr. Rumstein's factum showing the full amounts of table amount of support for each year and the amounts actually paid as support to the Applicant. The question is whether or not it is reasonable to order retroactive support from 2012 and if so whether there should be any offsetting credits. For example, it is not disputed that the Respondent paid for S.H. to have a cell phone. There is a dispute as to whether that was necessary or appropriate or should have reduced his liability for the table amount of support.

[56] I have discretion in awarding retroactive support.[^6] I do not accept the Respondent's argument that support should not be ordered because the parties were supposed to be jointly parenting. Under the Guidelines support is payable on the basis of the time the child actually spends with each parent and while there is considerable dispute as to why that happened, there is no dispute that the mother had S.H. with her for the majority of the time.

[57] I am however sympathetic to the argument that support was paid to the Applicant on a regular basis and accepted without complaint and that the Respondent paid for various expenses when asked. The evidence does support the conclusion that support was not a significant issue and as noted, the Divorce Judgment was withdrawn from enforcement. That supports the Respondent's argument that the Applicant was generally content that the Respondent was paying support.

[58] The Applicant deposes that she did not make support an issue because she was intimidated by the Respondent and the potential costs of litigation. She was however represented by counsel almost continuously from the date of separation until the present. The Respondent deposes that he believed there was no issue until relatively recently. The evidence shows there were no demands that the Respondent increase support or provide financial disclosure until January 3rd, 2014. The motion to change was launched in January of 2017.

[59] While it is true that adequate support is the right of the child and the court should not condone underpayment of support, regular support was paid and I am not persuaded it is just to order retroactive adjustment back to 2012. I am prepared to adjust support from the date of effective notice, January of 2014.[^7] I will order the retroactive support for 2014 in the amount of $2,808.00, for 2015 in the amount of $2,916.00 and for January – August of 2016 in the amount of $1,048.00.

[60] Retroactivity is not the same as arrears. There are arrears under the order of March 16th, 2010 for both 2012 and 2013. There is no justification for simply ignoring the Divorce Judgment and paying a lesser amount. The amount of support owing under the order for each of those years was $11,940.00 per year. The amount paid in each year was $11,280.00. This represents arrears of $1,320.00.

Calculation of Amount Owing

[61] On the basis of the above, the support owed to the end of September 2017 may be calculated as follows:

a. The Respondent shall pay the Applicant $11,553.28 as his share of post-secondary expenses for 2016-2017.

b. The Respondent shall pay the Applicant retroactive table support for the years 2015-2016 fixed at $6,772.00.

c. The Respondent shall pay arrears of support for the years 2012 and 2013 in the amount of $1,048.00

d. The Respondent shall pay arrears of table support for 2017 to the end of September, 2017 fixed at $3,510.00.

[62] This amount totals $22,883.28. Certain credits should be allowed against this amount. Firstly, the Respondent paid for S.H's cellular telephone. As previously indicated, I am not satisfied by the evidence that this cost as much as $150.00 per month and I have allowed $60.00 per month instead. This is consistent with the only invoice contained in the evidence. This would not have been an offset against the table amount of support but I accept that it would have been a s. 7 expense and the Applicant would have been liable for a portion of the expense. Without attempting to be scientifically accurate, I consider it reasonable to allow a credit of $1600.00 against the arrears. This reduces the retroactivity and arrears to $21,283.28 subject to possible additional reductions for amounts paid directly to S.H. or on her behalf as follows.

[63] Apparently the Respondent stopped paying support to the Applicant in January 2017 but he states that he has deposited $350.00 per month into S.H.'s bank account each month and he has attempted to pay her rent. It was S.H.'s evidence that she had received post-dated cheques from the Respondent for the rent payable to her landlord but had not cashed them. That situation may have changed. To the extent that the Respondent has paid the rent up to the end of September, 2017 and if he has deposited funds into S.H.'s bank account he should also have credit for those amounts upon furnishing proof of payment.

Additional Relief

[64] There was additional relief claimed in the competing notices of motion.

[65] The first issue was a requirement for the Respondent to obtain life insurance to secure his support obligation and to furnish proof to the Applicant. This is a reasonable and standard request. The Respondent will be ordered to obtain life insurance in a minimum amount of $200,000.00 payable to the Applicant in the event of his death and to maintain that policy of insurance in place for as long as support is payable. He is to provide proof that insurance is in place within 60 days.

[66] The next issue is the tuition tax credit. To the extent that S.H. has no income, the tuition tax credit is to be claimed by the Applicant who is the person paying the tuition.

[67] There has been an ongoing issue with co-ordination of benefits. I am not prepared to order the Respondent to prepay all medical and drug expenses but it is reasonable to require him to make all possible arrangements to ensure reimbursement and co-ordination of benefits occurs promptly.

[68] I am not prepared to order "biracial counselling" for an adult child. There is no evidence that this is necessary or helpful at this stage in her life and no authority was provided that the court would have jurisdiction to make such an order.

[69] The Applicant is prepared to return any personal property belonging to the Respondent that is still in her possession. There is insufficient evidence before me to make a specific order but I accept her undertaking to identify and return any such property within a reasonable time.

Summary and Conclusion

[70] In conclusion, there will be an order varying the Divorce Judgment to provide that the Respondent pay child support of $390.00 per month commencing October 1st, 2017.

[71] He will also pay the sum of $1,220.00 per month as his contribution to s.7 expenses including the cost of post-secondary education commencing September 1st, 2017 and continuing until S.H. finishes her education unless the amount is varied or adjusted. At the request of either party, this amount may be adjusted for each subsequent academic year taking into account the respective incomes of the parties, their proportionate responsibility, the academic budget for the year and S.H.'s own ability to contribute.

[72] Subject to any credits for amounts deposited to S.H.'s bank account or paid to her landlord between January and September, 2017 the Respondent shall pay the sum of $21,283.28 for retroactive support and arrears of support between January 2012 and September, 2017. Until this amount has been paid in full, it shall be paid at the rate of $500.00 per month to be enforced in addition to the periodic payments set out above. I may be spoken to if the parties cannot agree on the credits.

[73] At the sole discretion of the Applicant, she may withdraw this order from enforcement and may accept payment of some or all of the support payments by way of direct payments to S.H. or on her behalf.

[74] The Respondent is to obtain life insurance in the minimum amount of $200,000.00 if that is not already in place and is to provide proof of insurance as set out above.

[75] The Applicant is entitled to claim the tuition tax credit and the Respondent is not to do so.

[76] The Respondent is to maintain S.H. on his extended health plan. He is to take all reasonable steps to accommodate and facilitate reimbursement of medical, dental and other extended health claims including if possible furnishing S.H. with a drug benefit card and providing the Applicant with the necessary claims forms. He is to do everything within his power to ensure the prompt processing and payment of claims.

[77] The Applicant shall identify any personal property belonging to the Respondent which remains in her possession and shall return it to him.

[78] The parties are to exchange income tax returns and notices of assessment each year starting in 2018 and continuing for so long as support is payable.

Costs

[79] I am advised that counsel cannot agree on costs. They may make written submissions of no more than 5 pages each to be exchanged between them and filed by November 10th, 2017.

Mr. Justice Calum MacLeod

Date: September 8, 2017, revised October 10th, 2017

CITATION: E.B.H. v. E.H., 2017 ONSC 5233

COURT FILE NO.: FC-10-1828-1 DATE: 2017/10/10

ONTARIO SUPERIOR COURT OF JUSTICE

RE: E.B.H., Applicant AND E.H., Respondent

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Gil D. Rumstein, for the Applicant Stephane A. MonPremier, for the Respondent

DECISION AND REASONS

Mr. Justice Calum MacLeod

Released: September 8, 2017 Revised and Released: October 10th, 2017

[^1]: The reasons originally released on September 8th, 2017 contained mathematical and typographical errors that have been brought to my attention by counsel. This corrected version of the decision replaces the original. [^2]: In fact a great deal of the affidavit evidence was directed to this point. [^3]: S. 135 (1) & (2), Courts of Justice Act, RSO 1990, c. C.43 as amended. See also the discussion of the open court principle in M.E.H. v. Williams, 2012 ONCA 35. [^4]: Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 9 & 10 [^5]: See the review of the law in this area in Menegaldo v. Mengaldo, 2012 ONSC 2915 @ para. 174 [^6]: The approach to retroactivity under the Divorce Act is governed by the decision in DBS v. SRG, 2006 SCC 37 [^7]: See DBS, supra