Court File and Parties
KINGSTON COURT FILE NO.: 49/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jody Peloquin, Applicant
AND
Richard Myette, Respondent (Moving Party)
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: None for the Applicant Eve Thériault, for the Respondent
HEARD: November 28, 2017
Endorsement on Motion to Change
MINNEMA, J.
1This was a Motion to Change by the respondent father Richard Myette seeking to terminate child support for his 18 year old son.
Background Facts/Procedural History/Positions
2The parties had a short relationship back in 1997/1998 and did not marry. They have one child between them Tristan Peloquin (“Tristan”) who was born in the spring of 1999.
3On February 12, 2009, a final custody order was made by Justice Radley-Walters of the Ontario Court of Justice in favour of the mother, and the father was ordered to pay child support in the amount of $576 per month based on an income of $62,100 and to maintain $100,000 life insurance to secure that obligation.
4That order was on consent and indicated the following with regard to the duration of the child support:
2.3 Child support ends for Tristan when he:
(a) ceases to be a “child” as defined in the Divorce Act,
(b) no longer has his permanent residence with the Applicant mother but he may reside away from home for school, summer employment or vacation,
(c) turns 18, unless he is unable to become self-supporting due to illness, disability, education or other cause,
(d) becomes self-supporting,
(e) obtains one post-secondary degree or diploma,
(f) turns 21 years of age,
(g) marries,
(h) dies, or
(i) a party dies, provided that if the Respondent dies, security by way of life insurance as stated in paragraph 2.6 of this Order is in place at the time of his death.
5The mother sought to adjust ongoing child support in 2016 and to fix arrears. The parties reached an agreement, which was filed with the court as a Consent to Change a Final Order. I signed the order on January 1, 2017. Arrears were set at $7,000 and have been paid. The order provided that the parties would review the child support as of May 1, 2017. The intent was to re-adjust based on the father’s 2016 Income Tax Return as he was unsure about the impact of his medical discharge from the military. The ongoing support was therefore left as in the 2009 order given the possibility it might be the same or similar. As will be seen below, the father’s earnings and corresponding table support are not issues here. The issue is whether the child support for Tristan should terminate given his age and level of participation in school, and in that regard I note the following.
6Tristan was diagnosed with ADHD as a child. He has had many moves between public schools. He was enrolled at LCVI for high-school but his attendance and results worsened as he moved through the grades. He was on IEPs (Individual Education Plans) for Grades 10 and 11. He obtained six credits in Grade 9, four in Grade 10, and only one in Grade 11. Attendance at school was a problem. At age 16 he was charged with truancy under the Education Act and found guilty. He returned to school with conditions, but attendance did not improve and he was subsequently removed from his high-school having attained just 11 of the 30 credits required to graduate. Schooling was then tried through the Independent learning Centre, without further credits being earned. Tristan was then enrolled in a co-op program through Bayridge Adult Learning School in the fall of 2016 and spring of 2017. While he completed the work component, he did not complete his online courses. He has had two short term jobs, one of which may have been through that program, but they did not last. The father brought this Motion to Change about a month after Tristan turned 18. At the time Tristan was at the end of the uncompleted co-op program and had not obtained any further high-school credits for over a year.
7Shortly after the service of the Motion to Change, in June of this year, Tristan enrolled in a six week course at Loyola Community Learning Centre. He completed two more high-school credits before being asked to leave due to an angry outburst in class. However, he has since enrolled at the Katarokwi Learning Centre (“KLC”) and began attending classes as of November 6, 2017, about three weeks before this hearing. A letter authored by the Program Lead at KLC a week before this hearing indicated that Tristan had been attending three days a week for four hours each day. He is earning credits towards his high-school diploma, which the mother indicates he will achieve in about two years if he stays on track.
8There is some disagreement on how to characterize Tristan’s educational participation and progress.
9The father seems to see Tristan as an unmotivated pot smoking youth, who has issues getting along with people, such as the Loyola outburst, and is unable to focus on school or hold down a job. He does not believe he is required to support the adult child financially indicating in his factum “Tristan is no longer entitled to child support pursuant to the Final Order of February 12, 2009, as he reached the age of majority [in the spring of 2017], and withdrew from full-time educational studies.” Given his track record, the father believes Tristan is only enrolled in school to keep the child support going, not because he is serious about his education.
10The mother’s view is that the events regarding Tristan’s poor school history are not entirely his fault. It is not his fault he has ADHD. She feels he has been handled inadequately in the school system having been given less accommodation than needed. She elaborates that the expectation that Tristan attend school full-time was ill-founded and she relies on letters from Tristan’s current psychiatrist Dr. Shuo Xiang obtained for this hearing. Dr. Xiang indicates that Tristan’s ADHD would impact on his ability to maintain a full course load and he advocates for a partial course load where appropriate. Dr. Xiang indicates that at this time Tristan also has features of depression, noting that ADHD and depression are known to be co-morbid and concomitant of each other. He added that the co-morbid depression can also potentially impact Tristan’s ability to complete high-school and may also require accommodations. Dr. Xiang acknowledges that depression is a new diagnosis, and therefore the mother’s explanation that depression was effecting Tristan during those days of poor to no attendance back in high-school is not corroborated. However, there is no dispute about his historical ADHD and current co-morbid ADHD and depression. Lastly, Dr. Xiang indicated that angry outbursts, such as the one that ended Tristan’s time at Loyola, are symptoms of his diagnosis.
Law/Analysis
11The mother’s view is that the test as to whether Tristan remains entitled to support is directly addressed in paragraph 2.3 of the court order as reproduced above. Although the parties were never married, it includes the definition of “child” under the Divorce Act in paragraphs 2.3(a) and spelled out in 2.3(c). That test, which I agree is applicable here, is particularly relevant and unique to Tristan given his long known ADHD and current depression, namely whether he is “unable” to become self-supporting “due to illness, disability, education or other cause”.
12I note that the father in his Motion to Change indicates that he wants the support terminated as Tristan is “no longer a “child” or a dependent entitled to child support pursuant to the Family Law Act.” He argues per section 31(1) of the Family Law Act (“FLA”) that he is only obligated to provide support as long as Tristan is an “unmarried child who is a minor or is enrolled in a full time program of education”, taking a somewhat literal view of “full time”.
13The reason I apply the test as requested by the mother and not the father is that in my view an order made with the consent of the parties is still an order of the court. Indeed, section 33(14) of the FLA contemplates consent support orders. The order therefore governs until varied, and the father’s Motion to Change is not framed as requesting a variation to paragraph 2.3. He simply assumes that the FLA will apply. I note that in Banting v. Banting, 2011 ONSC 406, a case relied on by the father, the situation was similar but in the reverse. There the parties were married, but the court applied the equivalent of the FLA section 31 test that they had incorporated into their divorce order on consent. There is nothing inequitable or contrary to the child’s best interests in the paragraph 2.3 test.
14Tristan could not be considered “unable” to become self-supporting if he were simply not trying. In my view the applicable question here, identified as such by both parties and addressed in detail at the hearing, is whether Tristan as a young 18 year old adult is pursuing or participating meaningfully in a program of education.
15Both parties cite case law arising from the somewhat more restrictive, at least on its face, FLA test. Those cases stand for the proposition that in Tristan’s educational pursuits there is no required standard of perfection (or near perfection) in attendance or achievement by marks, and his support entitlement may continue even if participation and results are problematic: see McNulty v. McNulty, 2005 44836 (ON SC), Vivian v. Courtney, 2010 ONCJ 768, and Aubert v. Cipriani, 2015 ONSC 6013. While I agree with the father that Tristan cannot remain entitled to child support by just registering for programs while not making any further effort related to his education or employment, I find that is not the case here. To the contrary, the evidence establishes that Tristan has not withdrawn from his educational pursuits. Allowing liberal time for transitions, he has remained in one program or another, although with varying and not stellar levels of success, ever since leaving high-school. He is currently in what appears to be in a program more suited for his needs, working towards obtaining high-school credits. As the mother rightly noted, if Tristan fails to graduate high-school his future employment prospects and ability to support himself may be quite limited.
16For those reasons I would dismiss the father’s request to terminate child support. I find that Tristan is unable to become self-supporting due to a combination of his disabilities and lack of education.
17Had I been applying the FLA test, I also find that Tristan is enrolled in a program of education that can be considered to be full-time in relation to his specific learning capabilities and education history. Consistent with the case law relied on by the father, a “full time program of education” does not mean that a full course load is required.
18I decline to impose additional limits on the duration of child support that the father has requested, such as a provision that if Tristan drops out of his current program his support will automatically terminate regardless of context. The father’s fear of multiple Motions to Change is not well-founded; this is his first motion related to this issue and he has been substantially unsuccessful.
19I am pleased that, in keeping with their past cooperation regarding the 2009 and 2016 orders, the parties have agreed on the applicable child support if it is to continue. Order to go that child support from August 1 to December 31, 2016 shall be $912 per month based on the father’s income for that year of $104,087. Order to go that the father’s obligation starting January 1, 2017 shall be $1,037 per month based on expected work and pension income for 2017 of approximately $120,000. This latter amount shall be subject to adjustments in the usual course per paragraph 2.4 of the original order. I would just note, for completeness, that mother is currently receiving social assistance and pension benefits that provide her with a total income of $17,616 per year while Tristan is living with her.
20The father was also seeking to reduce his life insurance requirement. Given that Tristan was much younger when the original order was made, and given that the support, while ongoing, is not expected by either party to be longstanding, in my view this request is reasonable. I have used the DivorceMate software to recalculate the amount of life insurance required to secure child support at the current income level until Tristan turns age 21, and attach it as Schedule “A”.
21As a final comment, I am aware that any variation requires a finding of a material change in circumstances. It was not argued, perhaps because it is so obvious, however I find that that both the changes to the father’s income and the passage of time are material changes allowing variation of the support and the life insurance provisions.
Decision
22For the reasons stated above, the order of Justice Radley-Walters dated February 12, 2009 shall be changed as follows:
Paragraph 2.1 (re the Respondent’s annual income) is varied by deleting “$62,100” and substituting “$104,087 for 2016 and $120,000 for 2017”.
Paragraphs 2.2 (re child support) is varied by deleting everything after “as child support for Tristan” and substituting “the monthly amounts of $912 from August 1 to December 31, 2016, and monthly amounts of $1,037 commencing January 1, 2017.”
Paragraph 2.6 (re life insurance) is varied by deleting “$100,000” and replacing it with “$38,000”.
23I do not expect either party will be seeking costs, but if they wish to address me on this issue I will accept brief written submissions within twenty days.
Mr. Justice Timothy Minnema
Date: December 13, 2017