COURT FILE NO.: D 1948/12

DATE: 2018/08/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimberley Anne Laramie

Applicant

– and –

Robert Shaune Paul Laramie

Respondent

Self-represented

Not Appearing

HEARD: December 5, 2017 and May 15, 2018

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with the trial of an application which the Applicant Kimberley Anne Laramie (“the Applicant”) commenced several years ago, on November 15, 2012. The Respondent Robert Shaune Paul Laramie (“the Respondent”) was in default and did not appear at the hearing. The issues for trial related to the two children of the parties’ relationship, namely Kassandra Anne Laramie, born February 25, 1998 (“Kassandra”), now 20 years of age, and Abbigayle May Laramie, born June 19, 2001 (“Abbigayle”), who is 17 years old. The Applicant requests an order for sole custody of Abbigayle, with access to the Respondent in her discretion. In addition, she seeks an order requiring the Respondent to pay her the Table amount of child support for two children pursuant to the Federal Child Support Guidelines, SOR 97-175, as amended (the “Guidelines”) and to contribute to the children’s section 7 expenses on a proportionate-to-income basis commencing January 1, 2015. She requests that the court impute income to the Respondent for the purposes of the child support calculation in the amount of at least $40,000.00, or a higher amount if appropriate based on the available evidence. Finally, the Applicant seeks an order for costs of these proceedings.

[2] The issues to be determined in this matter are as follows:

1. Should the Applicant be granted sole custody and primary residence of Abbigayle?

2. If the answer to the first question is yes, what access arrangements are in Abbigayle’s best interests?

3. Have Kassandra and Abbigayle both remained entitled to child support since January 2015?

4. If both children have remained entitled to support, the following issues must be determined:

a. Has the Applicant satisfied the test for entitlement to retroactive child support, and if so, what is the appropriate commencement date for a support order?

b. Should the quantum of child support be calculated according to the standard Guidelines approach for both children in accordance with section 3(2) (a) of the Guidelines, or is the standard approach inappropriate in relation to Kassandra?

c. What is the Respondent’s income for the purposes of calculating child support?

d. If either or both of the children are entitled to the Table amount of child support, what are the appropriate Table amounts for each year in which they have been entitled to support?

e. Should the Respondent be required to contribute to any of the children’s section 7 expenses, and if so, how should the expenses be apportioned as between the parties?

f. If the Applicant is entitled to child support on a retroactive basis, what is the total amount of retroactive support which the Respondent owes her?

g. Finally, is the Applicant entitled to costs, and if so, what is the appropriate quantum of costs?

[3] For the reasons that follow, I am granting the Applicant sole custody and primary residence of Abbigayle. With respect to access, I have concluded that it is in Abbigayle’s best interests that any access with the Respondent be in the discretion of the Applicant. In regard to child support, I have determined that both children have remained entitled to support, that the child support order should be retroactive to January 2015, and that the Respondent should have paid the Table amount of support for both children since that time as well as a proportionate-to income contribution towards the children’s section 7 expenses. I have concluded that the Respondent remains liable for the Table amount of support for two children and contribution to section 7 expenses for both children on an ongoing basis. Taking into account the payments of support which the Respondent has actually made to the Applicant since January 1, 2015, I have calculated his total retroactive child support liability for both the Table amount of support and his share of section 7 expenses to be $45,725.50 up to and including August 31, 2018. Finally, I am satisfied that the Applicant is entitled to her costs, and that the sum of $4,200.00 inclusive of HST and disbursements is a fair costs award in this case.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[4] I make the findings of fact set out in this section based on the oral evidence of the Applicant and the documents adduced as evidence at trial.

[5] The Applicant and the Respondent began cohabiting on November 1, 1995 and were married on February 8, 1997. Kassandra and Abbigayle are the only children of their relationship. The parties separated on August 1, 2009 and have not reconciled since that time. Kassandra and Abbigayle have remained in the primary care of the Applicant since the separation, and the Respondent has had minimal contact with them. The Respondent’s last visit with Abbigayle occurred during the Christmas holiday period in 2014. He last saw Kassandra sometime in 2015.

[6] The Respondent’s contribution to the support of the children has been inconsistent since the parties’ separation in 2009. From 2009 until late 2012, he made some payments to the Applicant, but these amounts were irregular in amount and frequency. There were several occasions during this period when he stopped paying support altogether. However, the Applicant testified that he would typically begin to make payments again when she threatened to commence court proceedings to seek support.

[7] The Respondent ceased paying support again in late 2012, and he did not respond to the Applicant’s requests at that point to resume payments. This development prompted the Applicant to commence this application on November 15, 2012. In her application, the Applicant requested a divorce, sole custody of the children and child support retroactive from the date of separation. However, during the hearing, she indicated that she was uncertain about how much the Respondent had contributed to the children’s support until December 31, 2014. Accordingly, she confirmed that she was only seeking support as of January 2015.

[8] On November 23, 2012, Lafrenière J. made an order permitting the Applicant to serve the Respondent by sending the application and supporting documents to him by regular mail to his mother’s address at 1893 Ferndale Avenue, Windsor, Ontario, N8T 2K7. This order for substitutional service was and remains necessary because the Respondent has refused to provide the Applicant with his address since the parties separated. The Applicant served the Respondent in accordance with this order on December 22, 2012, with the result that service would have been effective on him as of December 27, 2012. The Respondent did not serve and file an Answer and Claim. However, the Respondent started making some child support payments to the Applicant again after he was served with the application, and therefore the Applicant did not take any further steps at that time to advance this proceeding.

[9] Unfortunately, the Respondent became inconsistent again in paying child support sometime in 2013. However, the Applicant did not pursue her claims in court at that time because the Respondent was making some payments and she was overwhelmed in caring for the children. As I will discuss in further detail below, Kassandra and Abbigayle both have significant special needs. On November 19, 2013, the clerk of the court sent a Notice of Approaching Dismissal to the parties due to the inaction on the file. The Applicant did not take any steps to advance the case, and therefore the application was administratively dismissed on January 27, 2014.

[10] The Respondent remained highly inconsistent with respect to his child support payments in 2014. The Applicant could not recall exactly how much he paid throughout that year. The parties eventually discussed the issue of child support in late 2014, and the Respondent advised the Applicant verbally of his income at that time. He has failed to provide the Applicant with any documentary proof of his income or general financial circumstances since the parties’ separation. Based on his oral representation of his income level, the Respondent indicated that he would pay the Applicant a total of $125.00 per week for both children. The monthly amount was approximately $550.00, which was the Table amount payable at that time based on an annual income of approximately $38,250.00. The Respondent consistently paid the Applicant $125.00 per week throughout 2015. Accordingly, I find that he paid her child support in the amount of approximately $6,500.00 in 2015. The Respondent continued to pay the Applicant $125.00 per week for the support of both children from January 2016 until June 10, 2016. I estimate that he made approximately 24 payments during this time frame, for a total amount of approximately $3,000.00.

[11] Kassandra turned 18 years of age on February 25, 2016. The Respondent did not make any inquiries at that time to determine whether Kassandra remained entitled to support. Instead, on June 15, 2016, he sent a text to the Applicant advising that he had unilaterally decided to cease paying support for Kassandra as of June 17, 2016. In this message, the Respondent explained that his decision was based on his assumptions that Kassandra had completed high school, that she would not be attending post-secondary studies and that she was eligible to receive disability benefits as an adult. He stated that he would be paying child support of only $70.00 per week (approximately $308.00 per month) for Abbigayle only as of that point. This was the Table amount payable for one child at that time based on an annual income of approximately $35,500.00.

[12] The Applicant responded to the Respondent’s June 15, 2016 text message on that same day. She advised the Respondent that Kassandra was in fact attending another year of high school commencing in September 2016, so that she could upgrade her marks and qualify to attend Mohawk College the following year. She expressed concern that the Respondent did not appreciate the extent of the children’s special needs and how much it cost to meet those needs, and indicated that she would leave the issue of child support in the hands of the court if he did not continue to pay for both children. The Respondent replied shortly thereafter as follows (typographical errors as indicated in the text):

You do realize that you cant go after any back support you THINK you are entitled to. New laws. So pay a high priced lawyer all you want. You think the courts are not going to look at all the government subsidy you get for the girls. You get almost as much money as I make just from the government. It wouldn’t surprise me if they said you get nothing because of all that money. Thats the info I received from my legal representation. So if you want to spend thousands to possibly get a few thousand so be it. The money you will get wont even cover your court costs. This is not a civil suit so you don’t get your court costs covered if you win. All it is is court to set an amount. So spend away and I will make sure they know about the thousands spent on a holiday in Florida at Disney World. Seeing that you are just scraping by.

[13] The Applicant responded to this message by commenting that she did not know the Respondent’s address for service. The Respondent replied by telling her to send any documents to his mother’s house, since she had used that address for service in the past, and emphasized that he would never tell her his own address. He further indicated that if necessary, he would make a request that the Applicant not be permitted to see his address on any forms.

[14] The Respondent remained inconsistent in paying support after June 15, 2016, despite having told the Applicant that he would pay $70.00 per week for Abbigayle. The Applicant testified that he would often miss payments, would then make “catch-up” payments, but would then again fail to pay for several weeks in a row. He stopped paying support altogether in approximately late September, 2016. I find that from June 17, 2016 until September 30, 2016, he only paid the Applicant $640.00. In total, he paid approximately $3,640.00 for the support of the children in 2016. The Applicant sent the Respondent numerous text messages from August 2016 until December 15, 2016 asking whether he would be paying support and confirming the amounts that he owed according to his unilateral decision to pay $70.00 per week for Abbigayle. The Respondent stopped replying to the Applicant’s messages in late September 2016.

[15] In response to the Respondent’s ongoing failure to pay support in 2017, the Applicant brought a motion on June 16, 2017 seeking an order setting aside the dismissal order dated January 27, 2014. The Respondent was personally served with this motion on June 9, 2017, but he did not appear in court on June 16, 2017. On that date, Nightingale J. made an order setting aside the dismissal order.

[16] The Respondent never filed an Answer and Claim in response to the application, and therefore the Applicant proceeded with her claims on an uncontested basis. The case first came to my attention in chambers as an uncontested matter on September 6, 2017. On that date, I granted a divorce order, but adjourned the remaining issues to an oral hearing because I had several questions about the Applicant’s custody, access and child support claims. A hearing was subsequently scheduled for December 5, 2017. I heard oral evidence from the Applicant on that date and reserved judgment.

[17] In considering the evidence following the hearing on December 5, 2017 and reviewing the history of these proceedings, I could not locate the issued June 16, 2107 order setting aside the dismissal or proof that the Respondent had been served with that order. Unfortunately, it was determined that neither the Applicant nor court staff had drafted or issued the June 16, 2017 order, and that the Respondent had therefore not received notice that the proceeding had been reinstated. In addition, I determined that the Respondent had not been given notice of the hearing date of December 5, 2017. After ascertaining these difficulties, I concluded that procedural fairness dictated that the Respondent be served with the June 16, 2017 order and that he be given an opportunity to appear before the court to be heard on the custody, access and child support issues. Accordingly, on February 12, 2018, I made an order directing court staff to draft the June 16, 2017 order, serve the order and my endorsement on the Respondent in accordance with the substitutional service order dated November 23, 2012, and serve both parties with a new hearing date that was at least 60 days after the Respondent was served with the order and my endorsement. I also granted the Respondent 30 days from when he was served with a copy of the June 16, 2017 order and my endorsement to serve and file an Answer and Claim. I indicated in my endorsement that the Respondent would be noted in default at the return of the hearing if he failed to appear. I also noted that if the Respondent did appear on the return of the hearing and was not in default, the appearance would be converted into a “to be spoken to” date only for the purpose of scheduling next steps in the case. On February 13, 2018, the Respondent was served with the June 16, 2017 order, my endorsement dated February 12, 2018 and a Notice of Hearing for a continuation of the trial on May 15, 2018 at 2:30 p.m.

[18] The trial eventually resumed before me on May 15, 2018. The Respondent did not appear in court and he had still not served and filed an Answer and Claim by that time. Accordingly, I made an order on that date officially noting the Respondent in default.

PART III: CUSTODY AND ACCESS ISSUES

I. THE LAW

[19] As I have indicated, the Applicant seeks an order granting her sole custody and primary residence of Abbigayle. As incidents of sole custody, she seeks orders permitting her to travel with Abbigayle and obtain, renew or replace any of the child’s legal documents without the Respondent’s consent. In addition, the Applicant seeks an order that any access between the Respondent be in her discretion. I am satisfied that the custody and access relief which the Applicant requests is consistent with Abbigayle’s best interests.

[20] The Applicant advanced her custody and access claims in the context of a divorce proceeding, and therefore the applicable legislation is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. The court’s authority to make custody and access orders under the Divorce Act derives from section 16(1), which provides as follows:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

[21] Section 2 of the Act defines “custody” as “including care, upbringing and any other incident of custody.” The term refers broadly to parental decision-making and authority respecting a child (Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.)). The incidents associated with custody include the responsibilities of providing physical care for the child, overseeing all aspects of day-to-day life and long-term well-being, determining the child’s residence, disciplining the child, and making major decisions about the child’s education, religion, health care, general well-being and activities (Young, at para. 26; Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 25 O.R. (2d) 673 (C.A.); Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.)). The power which a custody order confers on a party is not a “right” that is granted to the party for their own benefit. Rather, as the Supreme Court of Canada stated in Young, at para. 25, the power that flows from a custody order “is designed to enable that parent to discharge his or her responsibilities and obligations to the child. It is, in fact, the child’s right to a parent who will look after his or her best interests.” (see also Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at 185 (S.C.C.); Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at p. 132 (S.C.C.)). The term “access” refers to the rights of a party in circumstances where the other party is granted sole custody. Access rights include not only visitation privileges, but also the right to make inquiries and to receive information about the health, education and welfare of the child, unless the court orders otherwise (Divorce Act, section 16(5)).

[22] Section 16(4) of the Divorce Act specifies that in making an order under section 16(1), the court may grant custody and/or access to “any one or more persons.” The court has a broad discretion to fashion a custody and access order that includes specific terms and conditions that are appropriate to the circumstances of the family that it is assisting. This discretion is set out in section 16(6) of the Act, which provides as follows:

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

[23] Section 16(8) of the Divorce Act provides that in making an order under section 16, the court is to take into consideration “only the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.” Sections 16(9) and (10) of the Divorce Act set out additional principles that the court must apply in carrying out the best interests analysis. Section 16(9) stipulates that the court may not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent of the child. Section 16(10) establishes what is referred to in the case-law as “the maximum contact principle,” which focusses on the desirability of ensuring as much contact with each parent as is consistent with the child’s best interests. The principle is framed as follows:

Maximum contact

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[24] Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of factors for the court to consider in assessing the best interests of the child. The broad and flexible nature of the best interests test under the Divorce Act reflects Parliament’s decision that the only relevant issue when it comes to custody and access is the welfare of the child in question (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.) at p. 47). While the test gives rise to a certain degree of indeterminacy, the Supreme Court of Canada has emphasized that “a more precise test would risk sacrificing the child’s best interests to expediency and certainty” (Gordon, at p. 47; Young). The general best interests test allows for a uniquely tailored analysis of the custody and access issues, woven from the particular condition, means, needs and circumstances of the child whose well-being is under consideration (Van de Perre v. Edwards, 2011 SCC 60 (S.C.C.), at para. 13). As L’Heureux-Dubé J. stated in Young, at para. 74:

The wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Such discretion also permits the judge to focus on the needs of the particular child before him or her, recognizing that what may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another.

[25] The factors that the court should reflect upon in carrying out the best interests assessment, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case. In carrying out the analysis, the court may seek guidance from the considerations which provincial and territorial custody statutes enumerate as being relevant to the best interests analysis (T. (K.A.) v. T. (J.) (1989), 1989 CanLII 8818 (ON SC), 23 R.F.L. (3d) 214 (Ont. U.F.C.); K.C.W.V. v. K.L.P., 2010 NBCA 70 (C.A.); Allen v. Wu, 2011 ONSC 6813 (S.C.J.); Scott v. Chenier, 2015 ONSC 7866 (S.C.J.)). The relevant statutory provision in Ontario is section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, which provides as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

a) the love, affection and emotional ties between the child and,

i. each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

ii. other members of the child’s family who reside with the child, and

iii. persons involved in the child’s care and upbringing;

b) the child’s views and preferences, if they can reasonably be ascertained;

c) the length of time the child has lived in a stable home environment;

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

f) the permanence and stability of the family unit with which it is proposed that the child will live;

g) the ability of each person applying for custody of or access to the child to act as a parent; and

h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a) his or her spouse;

b) a parent of the child to whom the application relates;

c) a member of the person’s household; or

d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[26] The court may as part of a custody order impose such terms, conditions and restrictions as it considers appropriate and necessary to foster the best interests of the child (Reeves v. Reeves, 2010 CarswellNS 265 (C.A.)).

II. ANALYSIS

[27] Applying the principles outlined above to the facts of this case, I conclude that the evidence clearly supports the custody and access orders which the Applicant requests. In reaching this decision, I have considered Abbigayle’s needs and the track record of each party in meeting both children’s needs. Kassandra and Abbigayle both have very significant special needs. The Respondent has had no role since the parties’ separation in addressing those needs, apart from the support payments that he made to the Applicant. By contrast, I conclude that the Applicant has been an extremely consistent, dedicated, loving and competent caregiver to the children. She has done an excellent job at ensuring that all of their physical, emotional, developmental and educational needs have been satisfied.

[28] Turning first to Kassandra and her needs, I find that Kassandra has been diagnosed with Pervasive Developmental Disorder and has received treatment and monitoring from Dr. Mahoney. She does quite well academically, but socially she functions at the level of a 13 or 14 year old. The Applicant has played a key role with respect to Kassandra’s emotional, social and academic progress and success. She worked with school officials to ensure that Kassandra received an Educational Assistant throughout her high school years. Kassandra completed grade 12 in June 2016, but she was not considered to be emotionally ready to commence college at that time due to her social delays and challenges. She therefore completed another year of high school from September 2016 until June 2017. The Applicant assisted Kassandra in moving forward with her studies upon the completion of her final high school year. Kassandra was accepted into Mohawk College in September 2017. She is enrolled in the Community Integration Through Cooperative Education (“CICE”) course, which is a two year program. Her eventual goal is to become a Veterinarian Technician. She recently completed her initial year of this program, and this was the first school year in which she did not require an Educational Assistant to support her in her studies. Kassandra has continued to reside with the Applicant and requires consistent daily support in order to maintain her emotional stability, physical well-being and academic progress. She plans to continue living with the Applicant for the foreseeable future.

[29] The Applicant has been able to meet Kassandra’s financial needs despite the Respondent’s inconsistent track record respecting support payments. She took the necessary steps to ensure that Kassandra qualified for financial assistance from the government once she turned 18 years of age on February 25, 2016. Kassandra has been receiving Ontario Disability Support Program (“ODSP”) benefits since that time in the amount of $891.00 per month. Her medical and other health-related expenses are covered by ODSP. In addition, she receives a school grant that covers all of her tuition and transportation expenses. The Applicant testified that the monthly ODSP payments are applied towards Kassandra’s clothing, school expenses including lunches in the amount of approximately $200.00 per month and household expenses. The household expenses include significant costs relating to damage which Abbigayle causes to the home, Kassandra’s belongings and household chattels, which I discuss in further detail below.

[30] Turning to Abbigayle, the evidence indicates that she is an extremely high-needs child. She has been diagnosed as suffering from Autism Spectrum Disorder and is at the severe end of the range in terms of her symptoms and challenges. She has major developmental delays. The Applicant described Abbigayle as functioning mentally at the level of a 2 year old child. She testified that Abbigayle will never be self-sufficient, and that she requires 24-hour monitoring and support in order to function and remain safe.

[31] The Applicant has met all of Abbigayle’s significant needs. Abbigayle has received consistent medical treatment and monitoring from Dr. Mahoney. The Applicant has also ensured that she has received appropriate educational support and programming. Abbigayle attends Bishop Tonas High School in Ancaster from Monday to Friday each week, and will continue to attend this school until she is 21 years of age. She requires special transportation to and from school each day by taxi. The Applicant arranged for a Personal Support Worker (“PSW”) to assist with transportation and to provide attendant care for Abbigayle while she is at work. The Applicant applied for and has received funding from Community Care Access Centre (“CCAC”) for 90% of the cost of these attendant care services from the PSW, but must pay 10% of this expense out-of-pocket. This attendant care expense varies from month to month, but the Applicant testified that on average, she incurs approximately $200.00 to $300.00 per month. Based on her evidence, I estimate this expense to be on average approximately $250.00 per month. I find based on the Applicant’s testimony that she has been incurring this expense since approximately June 2016.

[32] The cost and emotional toll involved in caring for Abbigayle and Kassandra are very high. The challenges which the Applicant faces in meeting the children’s needs are greatly exacerbated by Abbigayle’s extremely destructive behaviour, which is directly linked to her severe case of autism. Abbigayle inflicts extensive damage to the family home, household goods and the personal possessions of her family members on a regular basis. The costs of repairing this damage and replacing necessary items are often overwhelming for the Applicant, but she has nonetheless found ways to ensure that the children’s needs are satisfied. The Applicant testified in detail about Abbigayle’s destructive nature and the types of incidents that occur on a fairly regular basis. These include the following:

1. Abbigayle regularly puts her head and other body parts through walls in the home.

2. She frequently breaks the glass, handles and locks of windows in the home. One such recent incident resulted in a repair bill of $1,200.00 to replace tempered glass.

3. She breaks door knobs and locks on a regular basis. The Applicant recalled one repair bill of $10,000.00 for one month alone due to damage that Abbigayle had caused to doors and windows in the home.

4. She regularly destroys household items, including electronics, by smashing or throwing them. She often throws items out the windows of the home.

5. She frequently destroys her clothing as well as the Applicant’s and Kassandra’s clothing.

6. She has broken two of Kassandra’s computers in the recent past.

7. She regularly destroys beds in the home, including Kassandra’s beds.

8. She recently punched a hole in the upper portion of her bedroom wall, and then proceeded to throw all of the family’s cell phones into the hole. The Applicant had to hire a contractor to break down the entire wall to retrieve the phones, and both the wall and the insulation had to be replaced. This incident alone resulted in a repair bill of approximately $5,000.00.

[33] I find based on the Applicant’s evidence that Abbigayle causes on average approximately $7,500.00 each year in damage to Kassandra’s personal belongings. It is clear from the Applicant’s descriptions of Abbigayle’s destructive conduct that the damage which she causes to the Applicant’s personal possessions and general household chattels would be at least equal to that which she inflicts on Kassandra’s possessions. In addition, I find based on the Applicant’s testimony that Abbigayle causes on average at least $15,000.00 annually in structural damage to the family home that must be repaired.

[34] The Applicant has been resourceful in accessing financial assistance from the government to meet Abbigayle’s high needs. She receives funding through Assistance for Children with Severe Disabilities (the “ACSD program”). This assistance covers all of Abbigayle’s dental and prescription medicine expenses. In addition, the Applicant receives a monthly grant of $480.00 through this program to cover Abbigayle’s other needs. The Applicant applies this grant money towards the cost of Abbigayle’s monthly melatonin prescription ($15.00 per month), adult briefs for the child ($50.00 per month) and non-prescription medication not covered by the ACSD benefits program. She uses the balance of the funds to cover the expenses discussed above relating to Abbigayle’s damage to household chattels, personal belongings and the family home.

[35] In summary, the challenges that the Applicant has faced in raising Kassandra and Abbigayle as a single parent since 2009 have been enormous. The Applicant has met these challenges with love, devotion and great skill. I commend her for all that she has done for her daughters. An order granting her sole custody and primary residence of Abbigayle will essentially formalize the reality of the custodial arrangement that has been in effect since August 2009. I am also granting the Applicant the right to travel and to obtain, renew and/or replace Abbigayle’s legal documents without the Respondent’s consent. The Respondent has refused to provide the Applicant with his address or telephone number. It is clear from the evidence that he has taken active steps over the years to conceal his contact information from the Applicant. In one Facebook post that was entered into evidence, he told a friend after being served with court documentation relating to this proceeding that he would be moving to the United States to avoid the Applicant. Having regard for the evidence, it would be impractical and contrary to Abbigayle’s best interests to require the Respondent’s consent for travel or to obtain important legal documents for her.

[36] My findings outlined above also support an order that any access between Abbigayle and the Respondent be in the Applicant’s discretion. The Respondent has not shown an interest in maintaining a relationship with Abbigayle for over 3.5 years now. It appears that he has essentially washed his hands of any responsibility towards his family’s financial and emotional needs. Abbigayle is a high needs child and requires a sense of security and reliability from family members in order to achieve her fullest potential. Her father has failed her in this regard for many years. If he wishes to resume a relationship with her, this issue would have to be addressed in a manner that is sensitive to her needs and that does not threaten to destabilize her. The Applicant has demonstrated that she would be able to manage this task in a manner that would support Abbigayle’s best interests. Given the Respondent’s lack of contact with Abbigayle since December 2014, and his abandonment of his financial responsibilities for both children since September 2016, it may be that access would not be in Abbigayle’s best interests. The Applicant’s discretion will include the right to not permit access if she has reasonable grounds to believe that contact would not foster Abbigayle’s well-being.

PART IV: CHILD SUPPORT ISSUES

I. ISSUE #1: HAVE KASSANDRA AND ABBIGAYLE BOTH REMAINED ENTITLED TO SUPPORT?

A. The Law Respecting Entitlement to Child Support

1. Legislative Provisions and General Principles

[37] As I have indicated, the Applicant seeks an order granting her the Table amount of child support under the Guidelines for both children based on an imputed income to the Respondent of at least $40,000.00 and contribution to the children’s section 7 expenses, commencing January 1, 2015. The first issue to be determined is whether both children have remained entitled to support. For the reasons that follow, I conclude that they have.

[38] The applicable legislation respecting the child support claims in this case is the Divorce Act. The starting point for the child support analysis under the Act is section 15.1, which stipulates that a court may on application by either or both spouses make an order requiring a spouse to pay for the support of any or all “children of the marriage.” Entitlement to child support is therefore dependent on the child in question coming within the definition of “child of the marriage,” which is set out in section 2(1) of the Act as follows:

“child of the marriage”

“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.

[39] Section 15.1(4) of the Act provides that in deciding a child support application, the court may make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[40] The test for entitlement to support for adult children under the Divorce Act allows for the exercise of considerable judicial discretion, and the determination of entitlement is a fact-driven exercise in every case. The onus of proof in establishing entitlement to support is on the party seeking to obtain support (Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (C.A.); Olson v. Olson, 2003 ABCA 56 (C.A.); MacLennan v. MacLennan, 2003 NSCA 9 (C.A.); Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.); D.B.B. v. D.M.B., 2017 SKCA 59 (C.A.); Kohan v. Kohan, 2016 ABCA 125 (C.A.)). In an original support application under the Divorce Act, the child for whom support is sought must be entitled to support when the application is commenced (D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (S.C.C.) (hereinafter referred as “D.B.S”).

[41] In this case, the child Kassandra turned 18 years of age on February 25, 2016. The Applicant’s position is that she has remained entitled to support since that time based on her disability and her enrolment in a full-time program of education commencing in September, 2017. An analysis of the law respecting these two grounds of entitlement is therefore necessary.

2. Entitlement of Adult Children to Support Based on Illness or Disability

[42] The case-law has established that there is no cut-off age for entitlement to support for children who have reached the age of majority but who are unable to withdraw from parental charge due to illness or disability (Briard v. Briard, 2010 CarswellBC 119 (S.C.); aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.)). The fact that an adult child of the relationship receives disability benefits may be relevant to the determination of whether they are unable to withdraw from parental charge (Wetsch v. Kuski, 2017 SKCA 77 (C.A.); leave to appeal to S.C.C. refused 2018 CarswellSask 291 (S.C.C.)). However, financial dependence on a parent is not the only basis upon which ongoing entitlement may be established in these circumstances. An ill or disabled child who receives disability benefits or other forms of financial assistance and can obtain the necessities of life may nonetheless remain eligible for support if they require daily caregiving and monitoring by a parent due to their challenges (Briard; Senos v. Karcz, 2014 ONCA 459 (C.A.); Carpenter). In these circumstances, the fact that the child has access to their own financial resources may go to the issue of the appropriate quantum of support rather than entitlement. In Senos, the Ontario Court of Appeal addressed whether an adult child’s receipt of ODSP benefits automatically disentitles the child to support. The court held that the Ontario Disability Support Program Act, S.O. 1997, c. 25, Sched. B. enshrines the objective of creating a shared responsibility between government and families in meeting the needs of adults with disabilities. It concluded that the corollary of this objective in regard to child support is that the receipt of ODSP benefits does not in and of itself lead to disentitlement to child support (at para. 43).

3. Entitlement of Adult Children to Support Based on Enrolment in a Post-Secondary Program of Education

[43] The fact that an adult child is still undertaking educational studies may constitute “other cause” within the meaning of section 2(1) (b) of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support (Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205 (S.C.C.); Menegaldo v. Menegaldo, 2012 ONSC 2915 (S.C.J.) at para. 157.). Where the child is engaged in post-secondary studies, the analysis of whether they are “unable” to withdraw from parental charge involves a careful assessment of their overall condition, means, needs and circumstances. An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in half-hearted or ill-conceived educational endeavours (Kohan v. Kohan, 2016 CarswellAlta 736 (C.A.)). As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.), the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.” The factors which the courts consider in determining entitlement for children enrolled in post-secondary studies include, without limitation, the following:

1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time educational program.

2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

3. The ability of the child to contribute to their own support through their savings or part-time employment.

4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because they have nothing better to do.

5. Whether the child’s primary focus is on completing their education, or whether they are in fact engaged in part-time studies while focussing primarily on career-related activities.

6. In reviewing the child’s education and career plans, important factors include the nature and quality of the plans, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

7. Whether the child’s educational path has been extended for any reason, and if so, the reasons for the extension. Examples of delayed educational progress which may be relevant to ongoing entitlement include a child’s illness or special needs, which may have caused the child to require more time to successfully complete high school or post-secondary studies.

8. Whether the child is enrolled in their first post-secondary educational program or an extended graduate program.

9. Whether the child is engaging diligently in their chosen course of studies.

10. The child’s academic performance, and whether they are demonstrating success in the chosen course of studies.

11. The age, qualifications and experience of the child.

12. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

13. The plans, if any, that the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

14. The means, needs and other circumstances of the parents and the child.

15. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

(Whitton; Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master); Geran; Rebenchuk; Haist v. Haist (2010), 2010 ONSC 1283, 83 R.F.L. (6th) 147 (Ont. S.C.J.); Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (S.C.J.); Menegaldo; Charron v. Dumais, 2016 ONSC 7491 (S.C.J.); Kohan).

[44] It is not necessary to address all of the factors set out above to show that the child remains a “child of the marriage” (Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A); Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11).

[45] In circumstances where the child is diligently pursuing studies in a suitable program and there is evidence of need for support, the courts will generally find ongoing entitlement to support until the completion of at least the first college or university program (Achkewich v. Achkewich, 1998 CarswellAlta 1275 (Q.B.); Marsh v. Jashewski, 2011 ONSC 3793 (S.C.J.); Caterini; Metter v. Solomon, 2005 CarswellOnt 986 (S.C.J.)). The child’s commitment to pursuing their educational studies and their success in the program are important factors in determining ongoing entitlement. The case-law respecting entitlement to support for adult children under the Family Law Act, R.S.O. 1990, c. F-3, as amended has clarified that these factors must be considered with a focus on the particular circumstances of the child in question and any personal challenges that they may be struggling with. This case-law is also relevant to the determination of entitlement under the Divorce Act. From a quantitative standpoint, a child need not have stellar school attendance in order to remain entitled to support, but there must be a reasonable degree of attendance taking into consideration the child’s particular needs and challenges. From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program having regard for their overall level of functioning. In general, an adult child involved in post-secondary studies may remain entitled to support even if their participation and achievement levels are problematic, provided that the effort which the child is putting forth is within their capability given their particular circumstances (Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Vohra v. Vohra, 2009 ONCJ 135 (O.C.J.); Sullivan v. Sullivan, (1999), 1999 CanLII 14997 (ON SC), 50 R.F.L. (4th) 326 (Ont. Div. Ct.); Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.); Vivian v. Courtney, 2012 CarswellOnt 16444 (S.C.J.); Aubert v. Cipriani, 2015 ONSC 6103 (S.C.J.)).

B. Analysis Respecting Entitlement to Child Support

[46] There is no issue with respect to Abbigayle’s entitlement, as she continues to be under the age of majority. Having regard for her significant special needs, she will in my view remain entitled to child support for the foreseeable future, and potentially on a permanent basis.

[47] Kassandra is now 20 years old, and her ongoing entitlement to support after she turned 18 years of age on February 25, 2016 is therefore contingent on her having been unable to withdraw from parental charge since that time due to illness, disability or other cause. I am satisfied that she is unable to withdraw from the Applicant’s charge due both to her disability and her enrolment in a reasonable and appropriate full-time program of post-secondary studies. As I have indicated, Kassandra suffers from Pervasive Development Developmental Disorder, and she functions socially at the level of a 13 or 14 year old youth. I find based on the Applicant’s evidence that she requires consistent guidance and support from the Applicant in order to meet her potential and pursue her studies. She is in receipt of ODSP benefits due to her disability. I accept the Applicant’s evidence that she was not socially or emotionally ready to commence post-secondary studies when she completed grade 12 in June 2016, and that it was necessary for her to complete an additional year of high school to ready herself for the challenges of college. She is currently enrolled in a full-time program of post-secondary studies at Mohawk College. She appears to be doing well in this course of studies, as she has been able to manage her studies for the first time without the assistance of an Educational Assistant. She has a reasonable educational plan to become qualified as a Veterinarian Technician. She has worked cooperatively with the Applicant in formulating a reasonable plan for her studies and has been accountable to her mother in this regard. Notwithstanding her success in advancing to post-secondary studies, the evidence supports a finding that she is not emotionally capable of residing or her own and taking care of herself at this time. Furthermore, although she receives $891.00 per month in ODSP benefits and has full coverage for her tuition and health-related expenses through her benefits, I conclude that her income would not be sufficient to cover reasonable accommodations and her other basic needs if she were on her own. As I discuss in further detail below, the cost to the Applicant of providing Kassandra with housing and her basic needs is extremely high due to Abbigayle’s destructive behaviour. The sum of $891.00 per month does not even cover the additional costs to the Applicant of caring for Kassandra over and above the typical expenses involved in providing a child with housing and their basic daily needs.

II. ISSUE #2: ARE THE CHILDREN ENTITLED TO RETROACTIVE CHILD SUPPORT AND, IF SO, WHAT IS THE APPROPRIATE COMMENCEMENT DATE FOR A RETROACTIVE AWARD?

A. The Law Respecting Retroactive Child Support

1. General Principles

[48] As I have indicated, the Applicant requests the Table amount of child support for the children commencing January 2015. This date is after the Applicant originally commenced her application on November 15, 2012, but prior to June 15, 2017, when the application was reinstated after being administratively dismissed on January 27, 2014. In these circumstances, the question that arises is whether the claim is governed by the legal principles relating to retroactive child support claims. In particular, do these principles apply to support claims relating to the period that predates the final order for support, or do they apply only to support claims relating to the period prior to the commencement of the application? For the reasons that follow, I conclude that the principles relating to retroactive child support claims apply in this case.

[49] The Supreme Court of Canada addressed the principles that apply in retroactive child support and spousal support in D.B.S. and Kerr v. Baranow, 2011 SCC 10 (S.C.C.). In both cases, the court declined to venture into the semantics of the word “retroactive” for the purposes of support claims. Instead, in both cases, the court indicated that the decision to order support for any period before the date of the order is a matter of judicial discretion to be decided based on the particular circumstances of each case. Accordingly, the principles which the court articulated regarding retroactive relief apply to the portion of any support claims covering the period prior to the date of a final order. However, in Kerr, the court was called upon to resolve a spousal support claim that was effective from when the claimant commenced her application. In that case, the court commented that “the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in how the relevant considerations are weighed.”

[50] The Supreme Court of Canada set out a comprehensive framework for the analysis of retroactive child support claims in D.B.S. In that case, the court noted that there is no automatic right to pursue retroactive child support, and that the starting point in each case is to analyze the legislation that applies to the case to determine if it establishes parameters or guidelines regarding retroactive claims. It concluded that retroactive child support claims may be pursued in originating proceedings under the Divorce Act provided that the child in question is entitled to support when the application is commenced. However, the court held that even if entitlement is established, retroactive child support is ultimately a matter of judicial discretion. It canvassed in detail the various considerations and interests that come into play in retroactive support cases, including the child’s and custodial parent’s need for financial support, the payor’s interest in certainty and predictability when financial obligations appear to be settled, and the need for flexibility in order to ensure a just result. Notwithstanding these various considerations, it emphasized that ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. It held that such claims must be considered keeping in mind the following core principles that apply to all child support claims:

1. Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship.

2. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. The amount of child support owed will vary based upon the income of the payor parent.

3. When retroactive child support is sought, the court must as a starting point analyze the statutory scheme in which the application is brought to determine if it establishes parameters or guidelines regarding retroactive claims.

4. It is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the court may grant relief to correct the failure.

5. Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

[51] In D.B.S., the court reviewed the various scenarios in which claims for retroactive child support arise. In situations as in this case, where there has never been a formal domestic contract or court order addressing child support, it held that the non-custodial payor’s interests in certainty and predictability will not be compelling considerations, unless they are suffering hardship or they voluntarily contributed to the child’s support or expenses on an ad hoc basis (at para. 80).

[52] The court in D.B.S. ultimately adopted a highly discretionary approach to retroactive child support claims, and outlined the following general factors which judges should consider in determining the issue of entitlement to retroactive relief:

1. Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier;

2. The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support;

3. Consideration of the present circumstances of the child, and the extent to which they may benefit from a retroactive award; and

4. Any hardship that may be occasioned by a retroactive order.

[53] Bastarache J. emphasized in D.B.S. that none of the above-noted considerations was decisive, and that the court carrying out the analysis of a retroactive claim should at all times “strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix” (at para. 99). He stressed that although retroactive awards are a matter of judicial discretion, they should by no means be considered exceptional (at para. 97). As the court stated at para 97:

It cannot be exceptional that children are returned the support that they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amount of support first arose.

2. Delay by the Claimant

[54] In D.B.S., the court elaborated upon the factors relevant to a retroactive claim. On the issue of the recipient’s delay in commencing a claim, it indicated that the court must be sensitive to the practical concerns associated with child support proceedings. Explanations for delay which it considered to be reasonable included intimidation by the support payor, well-founded fear that the payor would react vindictively to a support application, lack of financial or emotional means to commence an application and inadequate legal advice (at para. 101). In McGouran v. Connelly, 2007 ONCA 578 (C.A.), the Ontario Court of Appeal emphasized that since the right to child support is that of the child, delay by the recipient in advancing a claim is merely one factor to consider in balancing the competing interests of the party and the child and in determining the most appropriate course of action on the facts of the case (at para. 17; see also Brown v. Kucher, 2016 BCCA 267 (C.A.)). It also emphasized that the conduct of the payor is frequently an important factor in assessing the reasonableness of the recipient parent’s delay in commencing litigation.

3. Conduct of the Payor

[55] The Supreme Court of Canada also expanded upon the issue of the payor’s conduct in D.B.S. It stated that both positive conduct and blameworthy conduct are relevant to the analysis, and emphasized that blameworthy conduct by the payor is not a pre-requisite to success in a retroactive claim (at para 98; see also Goulding v. Keck, 2014 ABCA 670 (C.A.), at para. 48). However, it held that the payor’s interest in certainty is least compelling where they have engaged in blameworthy conduct in relation to their child support obligation. The court specifically encouraged the courts to take an expansive view of what constitutes “blameworthy conduct” in the context of analyzing a retroactive support claim, and characterized the phrase as encompassing “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support” (at para. 106). Examples of blameworthy conduct that it felt would militate in favour of allowing a retroactive claim included hiding income increases from the recipient in the hope of avoiding a larger support award, intimidating the recipient to dissuade them from advancing a support claim and misleading the recipient into believing that they are meeting their support obligations when they are not (at para. 106). In its discussion about blameworthy conduct of a payor, it emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments. The court also emphasized that a payor parent who knowingly avoids or diminishes their support obligation to their children should not be allowed to profit from such irresponsible conduct. At the same time, however, the court noted that a payor who does not automatically increase support payments when their income increases is not necessarily engaging in blameworthy conduct that may influence the retroactive support analysis. In such circumstances, the issue of whether the conduct is inappropriate is a matter for the court’s discretion (see also Rosenberg v. Gold, 2016 ONCA 665 (C.A.)). An important consideration will be whether the payor had a reasonably-held belief that they were meeting their support obligations. A helpful objective indicator for assessing the reasonableness of their belief in this regard is the extent to which the child support they were paying diverges from the amount that they should have been paying (at para. 108; see also Baldwin v. Funston, 2007 ONCA 381 (C.A.); Greene v. Greene, 2010 BCCA 595 (C.A.); Burchill v. Roberts, 2013 BCCA 39 (C.A.); Shears v. Gould, 2014 NLCA 2 (C.A.)).

4. Circumstances of the Child

[56] In D.B.S., the Supreme Court of Canada went on to discuss the circumstances of the child that may be relevant to the retroactive support analysis. It stated that the court should consider both the present and past circumstances of the child in deciding whether a retroactive award is justified, so as to determine the extent to which the child would benefit from a retroactive award. Evidence that the child has suffered hardship due to insufficient support in the past and/or the present may support a retroactive award. On the other hand, “[a] child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need” (at para. 111). However, even in such circumstances, retroactive relief may be appropriate if the child suffered hardship in the past when support or higher support should have been paid. As the court stated, “[a] child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award” (at para. 113). In Goulding, the Alberta Court of Appeal highlighted that the requirement of considering the circumstances of the child does not impose a burden on the recipient parent to prove “significant need” on the part of the child in order to succeed on a retroactive claim. As the court stated, “A payor parent cannot avoid a retroactive award by arguing that, despite his or her past default, the recipient was able to sufficiently care for the child on his or her own (at para. 51; see also Swiderski v. Dussault, 2009 BCCA 461 (C.A.) at para. 42).

5. Hardship Occasioned by a Retroactive Award

[57] Finally, in regard to the factor of hardship occasioned by a retroactive award, the Supreme Court of Canada noted in D.B.S. that “a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified” (at para. 114). It stressed that hardship considerations in the context of this analysis are not limited to the payor, since a retroactive award could also cause hardship to the payor’s other children. The court added that hardship will be much less of a concern where it is the by-product of the payor’s blameworthy conduct (at para. 116). The court also emphasized that concerns regarding potential hardship can in some cases be mitigated by crafting the retroactive order in a way that spreads payment of any arrears over a period of time.

[58] Cases decided since D.B.S. have highlighted the need for the payor to establish clear evidence from which a reasonable finding of hardship can be made, and that hardship is not simply established by the fact that the payor will have to pay a significant retroactive award (Goulding, at para. 58). In addition, the case-law has clarified that the assessment of hardship in the context of the retroactive support analysis is less stringent than that required to establish “undue hardship” within the meaning of s. 10 of the Guidelines (T.(L.C.) v. K. (R.), 2017 BCCA 64 (C.A.)).

6. The Timing of a Retroactive Child Support Award

[59] If the court decides that retroactive relief is appropriate, it must then determine the appropriate remedy. At this stage, the court must carefully consider and balance the various interests at stake in retroactive claims as previously discussed, the fundamental principles relating to child support, the discretionary factors outlined above and any other relevant considerations to frame a remedy that is fair and just. A critical component of crafting a retroactive award is the determination of the appropriate date from which retroactive relief should begin. The court addressed this issue as well in D.B.S. It established that generally, a retroactive child support order should commence as of the date that effective notice is given to the payor that child support is in issue. The concept of effective notice does not require the recipient parent to take any legal action. The court described “effective notice” as “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated” (at para. 121). All that is required to establish effective notice is that the topic of child support was raised. However, subsequent cases have held that to establish “effective notice,” there must be a precise date when the issue of support was raised. Vague assertions about having talked to the payor about support at some time in the past will not suffice (Hansen v. Clark, 2008 MBQB 324 (Q.B.); aff’d 2009 MBCA 69 (C.A.)).

[60] In D.B.S., the court concluded that using effective notice as the starting point for the timing analysis strikes a fair balance between certainty for the payor and flexibility to achieve justice. However, it held that even where effective notice has been given, it will usually be inappropriate to delve too far into the past. The court discussed the responsibility of a recipient payor to move discussions regarding support forward and to take further action if negotiations do not result in acceptable outcomes. If they fail to do so, “a prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned” (at para. 123). The court concluded that in the interests of certainty, predictability and ensuring that child support claims are prosecuted in a reasonably timely manner, a general guideline is necessary for determining how far back a retroactive award should reach. The court concluded that as a general rule, it will be inappropriate to make a support award retroactive to a date more than three years before formal notice of a claim was given to the payor parent.

[61] Having set a rough guideline for how far back retroactive relief should extend, the court in D.B.S. nonetheless emphasized that a retroactive award may, in appropriate circumstances, extend further back than three years from the date of formal notice, and even as far back as the actual date when child support should have begun or been readjusted. As examples of when a more far-reaching retroactive award may be appropriate, the court discussed circumstances where the payor demonstrated blameworthy conduct, including engaging in intimidating tactics, lying to the recipient, failing to advise the recipient of material changes in circumstances or withholding important information that the recipient required to make an informed decision about a child support claim. The court stressed that evidence of such blameworthy conduct “will move the presumptive date of retroactivity back to the time when circumstances changed materially,” since “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments” (at para. 125; see also P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.)).

[62] The guidelines which the Supreme Court of Canada outlined in D.B.S. regarding the timing of a retroactive award are simply presumptive principles. The question of timing is ultimately a discretionary decision that must take into consideration the particular facts and dynamics of each case. An award may extend much further back than three years from the date of formal notice or may even commence earlier than the date of effective notice in appropriate circumstances (for example, see Evanow v. Lannon, 2018 BCCA 208 (C.A.); Virc v. Blair, 2017 ONCA 394 (C.A.); McGouran; P.(S.) v. P.(R.); Reis v. Bucholtz, 2010 BCCA 115 (C.A.)). Conversely, a retroactive award may commence much later than the date of formal notice in appropriate circumstances. For example, considerable delay by the recipient in advancing their case, coupled with evidence that the payor made reasonable contributions to the child’s support after formal notice was given, are factors that may push the start date forward. Simply defaulting to the dates of effective and formal notice without specifying the reasons for doing so is an error of law (Evanow).

7. Quantification of Retroactive Child Support

[63] Finally, with respect to the quantum of child support that should be awarded in retroactive claims, the court determined in D.B.S. that this issue should be governed by the provisions of the statutory scheme that applies to the award being ordered. Accordingly, the Guidelines must be followed in determining the quantum of support payable. However, the court also noted the judge hearing the case must nonetheless ensure that the quantum of a retroactive order fits the circumstances. In the context of this discussion, it reviewed some of the situations in which the Guidelines permits a deviation from the Table amount of child support. In addition to those specific situations, the court held that the trial judge has a general discretion with respect to the quantum of retroactive awards, and emphasized that “[u]nless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all of the circumstances of the case” (at para. 130). The court noted that one way in which the court can exercise its discretion to achieve a fair and reasonable outcome respecting quantum is to alter the time period that the retroactive award captures. For example, if the recipient took an unreasonable amount of time to advance their claim after giving effective notice, the court could set the commencement date for the retroactive award later than the date when the recipient gave effective notice (at para. 130). The court added that the court should craft a retroactive award in a way that minimizes hardship to the payor and any other children (at para. 116).

B. Analysis Respecting the Retroactive Child Support Claim

1. Entitlement to Retroactive Child Support

[64] As discussed above, the Applicant requests an order for child support commencing January 2015. It is therefore necessary to determine whether there is entitlement to retroactive child support in this case, and if so, the appropriate commencement date for the support order. I am satisfied that the Applicant has made out a claim for retroactive child support effective January 2015.

[65] I have weighed the various factors discussed above that are relevant to the determination of entitlement to retroactive child support. Dealing first with the Applicant’s delay in commencing and pursuing her application for support, I find that there are several reasonable explanations for this delay. First, this was not a situation in which the payor parent did not make any contributions to the support of the children. Rather, following the parties’ separation, the Respondent exhibited a pattern of paying support for periods of time, but then stopping payments or becoming very inconsistent in paying the Applicant. There were times when the Respondent began to make payments after the Applicant prodded him and threatened to proceed to court to seek a child support order. Accordingly, I find that much of the delay in commencing the application was due to the Applicant’s reasonable hope that the Respondent would begin to meet his support obligations on a consistent basis. The delay was also largely attributable to the Respondent’s concerted efforts to prevent the Applicant from determining his contact information over the years. The evidence indicates that the Respondent refused to cooperate in providing his address, even for the purposes of serving him with court documents in this proceeding. I find that he went so far as to block the Applicant from his Facebook page so that she could not find him, and told her several times that she should send any documents to his attention to his mother’s address. In addition, the Applicant has experienced many struggles since the separation in meeting the children’s basic daily needs due to the children’s special challenges and her limited financial resources. The commencement of court proceedings represented another layer of challenges for her that she found quite daunting. Finally, I find that the Respondent used intimidation tactics against the Applicant as a means of discouraging her from commencing court proceedings. His email to her dated June 15, 2016, when he stopped paying support for Kassandra and the Applicant indicated an intention to proceed to court, clearly reflects such tactics. In that email, he wrongly suggested that the Applicant had no cause of action for retroactive relief, that he was meeting his child support obligations fully, and that the Applicant would not be able to recover costs against him if she advanced her child support claim.

[66] I have also considered the conduct of the Respondent in relation to the child support issues since the parties separated. On the positive side, there were periods when the Respondent paid support, and other times when he fell behind on support but made attempts to “catch up” with his payments. However, there is also significant evidence of blameworthy conduct on the part of the Respondent which supports an order for retroactive relief. The Applicant testified that the Respondent was inconsistent in paying her support right from the time of the parties’ separation in 2009. I find that there were many periods when he failed to pay any support at all. In addition, there were frequent periods when he fell behind in making payments and did not pro-actively address the problem with the Applicant, choosing instead to wait and see if the Applicant pursued him for support. When the Respondent did pay support, he was often late in making the payments, resulting in the Applicant having to repeatedly follow up with him and keep a tally as to how much he owed. As I have stated, the Respondent has not been cooperative in keeping the Applicant apprised of his address, and this has contributed to delay and unnecessary expense to the Applicant in advancing her claims. Furthermore, the Respondent declined to become involved in this proceeding, and he did not serve and file any of the financial documentation that is required from a payor in a support application. In fact, the evidence indicates that he has never voluntarily produced his basic income information to the Applicant since the parties’ separation. Accordingly, any discussions and negotiations between the parties regarding support have proceeded on the basis of the Applicant’s blind faith in the Respondent’s representations regarding his income. With respect to his income, the sum of $550.00 per month which he began to pay in 2015 was the Table amount at that time based on an annual income of approximately $38,500.00. However, as I will discuss in further detail below, the evidence indicates that he has been earning a much higher income, and I am imputing an income of $78,000.00 to him for 2015. I am satisfied that the Respondent has not been open and truthful with the Applicant about his actual income since the parties separated in 2009. The Respondent also demonstrated blameworthy conduct when he unilaterally decided in June 2016 to terminate child support for Kassandra and fix a new amount for Abbigayle only, without making any basic inquiries about the children’s circumstances and needs. When the Applicant objected to this move and provided information about Kassandra’s ongoing dependence and needs, the Respondent did not relent and attempted to mislead the Applicant about her rights to dissuade her from pursuing legal proceedings. Finally, although the Respondent indicated in June 2016 that he would continue to pay $70.00 per week for the support of Abbigayle, he ceased paying support altogether in September 2016.

[67] I have taken into consideration the past and present circumstances of the children in reaching my decision regarding the children’s entitlement to retroactive child support. It is clear from the Applicant’s evidence that she has struggled greatly to meet the children’s basic needs. In addition to the usual expenses involved in caring for two children, the Applicant has had to deal with the costly consequences of Abbigayle’s destructive behaviour, including serious damage to the home and family possessions on a regular basis. The Respondent has never contributed to any of the costs of rectifying this damage, and his inconsistency in paying child support would have amplified the Applicant’s difficulties in meeting the children’s needs. The Applicant has continued to struggle greatly in order to meet the children’s daily needs due to the added costs involved in caring for Abbigayle.

[68] I have addressed my mind to the potential hardship that may be occasioned by a retroactive child support award in this case. The Respondent did not participate in this proceeding at all, and therefore I did not receive any evidence from him regarding this issue. The evidence which the Applicant adduced did not raise any concerns regarding potential hardship that could accrue to the Respondent if I made a retroactive support order.

2. Timing of the Retroactive Award

[69] The considerations outlined satisfy me that retroactive relief is appropriate in this case in the interests of justice. This leads to the further question of how far back the retroactive award should extend. For the reasons that follow, I am granting the Applicant retroactive relief extending back to January 1, 2015.

[70] Based on the evidence adduced at trial, I find that December 27, 2012 is the date of both effective notice and formal notice in this case. This was the date when service of the application on the Respondent was effective. The Applicant did not adduce evidence indicating that she raised the question of child support with the Respondent on a specific earlier date. December 27, 2012 would be the presumptive date for the commencement of the retroactive award based on the principles set out in D.B.S. However, the court was clear in D.B.S. that the determination of the appropriate date of retroactivity is ultimately a matter of judicial discretion to be exercised after carefully considering and weighing all of the relevant facts and dynamics in the case. In this case, several factors have led me to conclude that the commencement date for the retroactive award should be January 1, 2015, despite the fact that this date is far later than the date of effective and formal notice. These factors are as follows:

1. First, in order to advance a claim for retroactive child support, it is necessary to provide the court with the evidence required to undertake a fulsome and fair analysis of the issue. I was unable to carry out such an analysis for the years up until 2015 due to inadequate evidence. The Applicant testified that the Respondent paid her child support for periods of time prior to January 2015. However, when I attempted to clarify how much support he had paid her each year until 2015, she indicated that she had no recollection of precisely how much he had paid.

2. With respect to the year 2015, as I have indicated earlier in these Reasons, the parties implemented an informal arrangement in late 2014 that the Respondent would make child support payments to the Applicant of $125.00 per week, or approximately $550.00 per month. As previously discussed, this was the Table amount at the time based on an income of $38,500.00. The Applicant indicated that she did not receive any financial disclosure from the Respondent at that time, that the Respondent assured her that this was the correct amount based on his income, and that she accepted these payments because she was desperate to obtain some form of financial assistance in meeting the children’s high needs. I have considered the Applicant’s evidence that the Respondent generally complied with this arrangement throughout 2015. While it is positive that the Respondent made some contributions to the support of his children during this year, it is telling that he did not provide the Applicant with any documentary proof of his income. As I have indicated, I find that he has not been open and candid with the Applicant about his historical income, and I have imputed an income to him of $78,000.00 for 2015. While the Applicant accepted the payments that the Respondent made to her in 2015 and did not pursue her court application at that time, I am not satisfied that there was a consensual meeting of the minds between the parties as to the appropriate amount that the Respondent should pay. In any event, if there was an informal meeting of the minds, I am satisfied on a balance of probabilities that it was based on misinformation from the Respondent regarding his true income. These considerations support granting retroactive relief back to January 2015.

3. I have taken into account the Applicant’s delay in advancing the support claims in her application. As I have discussed, the application was administratively dismissed on January 27, 2014 due to this delay. The Applicant did not take any steps in either 2014 or 2015 to set aside this dismissal order. As I have indicated, there were several valid reasons for this delay. While delay by the recipient is an important consideration in deciding the appropriate timing for a retroactive award, it must be balanced along with all of the other relevant factors. In my view, the significant misconduct by the Respondent in relation to his support obligations and the very high needs of the children in this case support an order extending back to January 2015.

4. The Respondent’s blameworthy conduct in relation to his support obligation is the major factor that has influenced my decision to order retroactive support commencing in January 2015. I have discussed his misconduct in detail above. Although he has made payments to the Applicant from time to time, the process of obtaining support from him has generally been a colossal struggle for the Applicant. His failure to provide financial disclosure, his intentional campaign to conceal his contact information from the Applicant and the evidence indicating that he has misrepresented his income all reflect an intention to shield himself from his full child support obligations. I find that the Respondent could not have had a reasonably-held belief from 2015 onward that he was fully meeting his financial obligations towards Kassandra and Abbigayle. Accordingly, I give very little weight to his interest in certainty and predictability in addressing the issue of retroactivity.

III. ISSUE #3: CALCULATION OF THE RESPONDENT’S RETROACTIVE AND ONGOING CHILD SUPPORT LIABILITY

A. The Law Respecting Calculation of Child Support

1. Legislative Provisions and General Principles

[71] Once the preliminary issue of entitlement to support is addressed, it is necessary to determine the appropriate approach to calculating support and the quantum of support payable, if any. Sections 15.1(3), (5) and (7) of the Divorce Act and the provisions of the Guidelines establish the framework for the calculation and quantification of child support. The objectives of this framework are to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient (Guidelines, s. 1; D.B.S.; Ethier v. Skrudland, 2011 SKCA 17 (C.A.); Geran).

[72] Section 15.1(3) of the Divorce Act provides that in making a child support order, the court is presumptively required to do so in accordance with the Guidelines. This presumption is subject to the court’s discretion to award a different amount pursuant to sections 15.1(5) and (7) in cases where special provisions have been made for the direct or indirect benefit of the child, or the parties have consented to an order that includes reasonable terms respecting the support of the child.

[73] The starting point for the determination of the quantum of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) 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 the child support order 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.

[74] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities.

[75] The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows:

7(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

i. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

ii. the nature and number of the educational programs and extracurricular activities,

iii. any special needs and talents of the child or children,

iv. the overall cost of the programs and activities, and

v. any other similar factor that the court considers relevant.

[76] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. However, the court has the discretion to apportion section 7 expenses other than on a pro rata basis having regard for the circumstances of the case (Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. No. 4425 (O.C.J.)). In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) of the Guidelines take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[77] In Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 (C.A.), the Ontario Court of Appeal outlined the following general principles to assist in navigating the proper course for calculating child support pursuant to section 3 of the Guidelines:

1. Where the child is under the age of majority, the analysis is undertaken pursuant to section 3(1). Unless otherwise provided in the Guidelines, the amount of child support is the amount set out in the Tables and the amount, if any, determined under section 7 in relation to special and extraordinary expenses. The court determined that pursuant to section 3(1), contributions to section 7 expenses that the court determines are appropriate are not properly characterized as “add-ons” to the child support order, but are a part and parcel of the basic child support amount ordered under section 3(1).

2. If the case involves a child who has reached the age of majority, the amount of child support payable after the child becomes an adult must be determined pursuant to section 3(2) of the Guidelines.

3. The court is directed by section 3(2)(a) to start with the presumption that in cases involving children over the age of majority, child support should be calculated in the same manner as for a child under the age of majority, that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses which is determined to be appropriate. The court described this approach as “the standard Guidelines approach.” However, the court must then determine whether this approach is “inappropriate” based on the particular facts of the case.

4. If the court determines that the standard Guidelines approach is inappropriate, the court must determine the amount of child support in accordance with section 3(2)(b) of the Guidelines, which provides that the amount of support is the amount which the court considers appropriate, “having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” The use of the term “approach” in section 3(2)(b) makes it clear that the court cannot depart from the standard Guidelines approach simply on the basis that the amount determined using the standard Guidelines approach is inappropriate.

5. Where the child is over the age of majority and the court determines that applying the standard Guidelines approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines, and resort should not be made to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines and judicial experience in applying them. By way of example, it would be entirely appropriate for the court, pursuant to section 3(2)(b), to follow the guiding principle set out in section 7 that expenses referred to in that section should be shared between the parents in proportion to their respective incomes, after deducting the contribution if any of the child.

6. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has the discretion to decide the amount that the child should be required to contribute.

[78] The determination of how to deal with section 7 expenses is a critical piece of the child support analysis if the court determines that support should be calculated in accordance with section 3(2)(a) of the Guidelines. In Titova v. Titov, 2012 ONCA 864 (C.A.), the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses, and in quantifying any such award:

1. Calculate each party’s income for the purposes of determining contribution to section 7 expenses.

2. Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines.

3. Determine whether the expense is necessary in relation to the child’s best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation.

4. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary.”

5. Determine the net amount of the expenses after applying any applicable tax deductions and credits.

6. Consider what amount, if any, the child should reasonably contribute to the payment of the expense.

7. Finally, determine how much of the remaining amount each party should pay.

2. General Principles Regarding the Calculation of Child Support for Adult Children

[79] It is important to note that a finding that an adult child has met the test for entitlement to support under the Divorce Act does not necessarily mean that the court will order support. The relevant legislative provisions as outlined above provide the court with a wide scope of discretion after deciding entitlement to determine the appropriate approach to calculating child support, the contribution which the child should make to their own support, if any, and the quantum of child support that each parent should pay, if any. Cases involving adult children require to court to carefully consider all of the circumstances to arrive at a just amount of support (Rebenchuk; Senos; McClement v. McClement, 2017 BCCA 416 (C.A.)).

[80] The first issue to be determined in addressing the quantum of child support for adult children is the appropriate approach to calculating support. As discussed above, section 3(2) of the Guidelines requires the court to apply the usual Guidelines approach unless it considers that approach to be “inappropriate” based on the particular circumstances of the case (Lewi; Senos; Wetsch, at para. 46). In Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250 (S.C.C.), the Supreme Court of Canada considered the meaning of the term “inappropriate” within the context of section 4 of the Guidelines, which deals with the calculation of child support in cases involving payor parents who earn in excess of $150,000.00. The principles relating to the “inappropriateness assessment” under s. 4 are readily adaptable to the assessment under s. 3(2) of the Guidelines (Hagen v. Rankin, 2002 SKCA 13 (C.A.), at paras. 10-14; Senos, at para. 37; Wetsch, at para. 56). Based on the Francis decision and the case-law decided since that time respecting sections 3 and 4 of the Guidelines, the general principles for determining the appropriate approach to calculating support for adult children can be summarized as follows:

1. The term “inappropriate” in the context of section 3(2)(b) of the Guidelines means “unsuitable” rather than “inadequate” (Francis, at para. 36). Accordingly, the court’s discretion pursuant to section 3(2)(b) is not limited to increasing the amount of child support prescribed by the standard Guidelines approach; it may also order less than the Table amount in appropriate circumstances (Francis, at para. 40).

2. In determining the appropriate approach under s. 3(2) of the Guidelines, the court must balance the objectives of predictability, consistency and efficiency, on the one hand, against those of fairness, flexibility and recognition of the actual condition, means, needs and other circumstances of the adult child of the marriage and the financial ability of each parent to contribute to the support of the adult child (Francis, at para 40; Wetsch, at para. 56).

3. A party who claims child support for an adult child in accordance with section 3(2)(a) is entitled to rely on the presumption in favour of the standard Guidelines approach. If the responding party challenges the application of section 3(2)(a), the onus of proof will ultimately lie with them to establish that the standard Guidelines approach is inappropriate (Francis, at para. 42; Senos, at para. 37). The party challenging the application of section 3(2)(a) is not required to testify or call evidence to rebut the presumption in favour of the standard approach, and the court may not draw an unfavourable conclusion from a failure to do so because the party may not possess the required relevant evidence (Francis, at para 43). The party may displace the presumption by simply relying on or questioning the evidence adduced by the party claiming support (Francis, at para. 43; Senos, at para. 37 Wetsch, at para. 56).

4. The onus of proof principles set out above should not be construed as restricting the scope of section 3(2)(b) to cases where a party challenges the appropriateness of the usual Guidelines approach. Section 3(2) of the Guidelines requires the court in all cases involving adult children to consider and decide whether the application of section 3(2)(a) is inappropriate, including those which proceed on an uncontested basis or in which no party formally objects to the usual Guidelines calculation. The presumption in favour of the Table amount for adult children is rebuttable, and therefore it is incumbent upon a claimant pursuing such relief to adduce all relevant evidence in support of their request. If the evidence which they present reveals that the usual Guidelines approach would be inappropriate, the quantification analysis must be undertaken pursuant to section 3(2)(b) notwithstanding the absence of a challenge to the standard approach (N.(W.P.) v. N. (B.J.), 2005 BCCA 7 (C.A.); De Beck v. De Beck, 2012 BCCA 465 (C.A.); McClement, at para. 12).

5. The court should not deviate from the standard Guidelines approach outlined in section 3(2)(a) unless the evidence in its entirety is sufficient to raise a concern that the Table amount is inappropriate. The evidence in support of a deviation from the usual Guidelines calculation must be clear and compelling (Francis, at para. 43; Senos, at para. 37; Wetsch, at para. 56).

6. Ultimately, there is a broad discretion with the trial judge to determine whether or not the standard Guidelines approach should be resorted to in cases involving adult children (Francis, at para. 44; Rebenchuk; McClement; Senos; Wetsch).

7. The analysis of whether the typical Guidelines approach is inappropriate often turns on whether the particular facts in the case under consideration displace the basic assumptions upon which the Table amounts are based. As the Saskatchewan Court of Appeal stated recently in Wetsch, at para. 51, “[o]n a principled basis, any factor or combination of factors that shifts the circumstances away from the assumptions upon which the Table amounts are predicated serves to cast doubt upon the appropriateness of approaching child support under s. 3(2)(a) of the Guidelines” (see also Senos, at para. 39). Three such assumptions underlying the Table amounts are that the child is residing primarily with the recipient parent, that they are not earning a significant income and that they do not have any other substantial financial means (Rebenchuk; Geran; Senos; Wetsch).

[81] The relevant factors for determining the appropriate approach to calculating child support for adult children, the extent to which the adult child should contribute to their own support and the quantum of support that the parents should pay will vary depending on the child and the unique circumstances of each case. However, some of the considerations which the courts typically weigh in determining these issues are as follows:

1. On a general level, the means, needs and overall circumstances of the child in question are central to the analysis. No single element of legislative purpose is to be given more weight than the actual circumstances of the child (Francis, at para. 44; Senos, at para. 37).

2. The age of the adult child and their level of maturity.

3. Whether the child has any special needs, and if so, the impact if any of those special needs on the child’s ongoing support requirements.

4. The ability of the child to contribute to their own support. If the child has an income source or assets, or is able to work and earn a significant wage, the court may conclude that the standard approach should not be followed since the child can contribute meaningfully to their basic living expenses (Rebenchuk; Lewi). In those circumstances, the child’s financial situation will assist the court in tailoring the appropriate approach pursuant to section 3(2)(b) of the Guidelines. If the standard Guidelines approach is followed, the child’s financial circumstances will play a significant role in the section 7(1) analysis in determining the reasonableness of a section 7 expense and the section 7(2) analysis regarding the contribution which the child should make to it. The extent to which a child will be expected to contribute to their own support depends on the particular facts and dynamics of each case. However, where the means of the parents are limited, the contribution expected from the child may very well increase.

5. Whether the child has exhibited an unwillingness to become employed or self-sufficient.

6. The child's level of education or training.

7. Whether the adult child receives financial assistance from sources other than their parents and their own employment, and if so, the nature and quantum of those sources of support or assistance.

8. Whether the child has any significant assets.

9. Whether the child lives away from the parents or with one of them.

10. Whether the child is living with their own partner.

11. Whether the child has children of their own.

12. Whether the child has their own general health, medical and dental benefits through any source.

13. The condition, means, needs and overall financial circumstances of the parents, and the effects that the order would have on them. In cases involving adult dependants, the overall financial situation of the payor parent is an important consideration. This factor will come into play in determining the appropriate approach to calculating child support under section 3(2) of the Guidelines. If the standard Guidelines approach is considered appropriate, the general financial circumstances of the parents will be relevant to the analysis under section 7 of the Guidelines regarding the reasonableness of a section 7 expense, whether a parent should be required to contribute to it and if so, the appropriate contribution. If a different approach to calculating support is adopted, the financial situation of the parties will assist the court in fashioning the appropriate approach and contribution levels of the parents and the child.

3. Specific Considerations Relevant to the Calculation of Support for Adult Children Enrolled in Post-Secondary Studies

[82] Where a child’s entitlement to support is based on their enrolment in post-secondary studies, the courts seek guidance at the quantification stage of the support analysis from the general considerations outlined above as well as the factors discussed earlier in these Reasons relating to entitlement on this ground. In these circumstances, the following additional points emerge from the case-law:

1. The court should ascertain whether the child has applied for or is eligible for student loans or other financial assistance, or has received any grants, bursaries or scholarships, and if so, the amounts received. These factors may influence the general approach which the court adopts under section 3(2) of the Guidelines and the appropriate amount of the child’s contribution. The question of whether the availability of student loans should be taken into account in determining the child’s ability to contribute is a discretionary matter for the trial judge, and must be determined on a case by case basis taking into consideration the particular facts and dynamics of each situation (Roth v. Roth, 2010 CarswellOnt 2918 (S.C.J.); Smith v. Selig, 2008 NSCA 54, 2008 CarswellNS 307 (C.A.)). Typically, the courts will only require a child to contribute by taking out and assuming responsibility for student loans where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses (Rebenchuk; Rotto v. Rotto, 2014 CarswellBC 2046 (S.C.)). However, this is not a hard and fast rule, and the trial judge’s exercise of discretion on this issue will be deferred to provided that the conclusion reached was reasonable (Smith, at para. 20; Caterini).

2. The appropriateness of the child’s educational plan is often a key factor in calculating the quantum of support. If the educational program is well suited to the child’s strengths and interests and will support the child’s future employment prospects, this may impact both the approach which the court adopts for the child support analysis and the amount that the payor parent is required to contribute. If the court concludes that the standard Guidelines approach is appropriate, this factor will be relevant to the analysis pursuant to section 7(1) of the necessity of the post-secondary expenses in relation to the child's best interests. In reviewing the child’s educational and career plan, important considerations will include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

3. The aptitude and abilities of the child, their level of maturity and commitment to their education, and how well they are performing in their studies are also key factors at the quantification stage. If the child is not performing well, this may support a deviation from the standard Guidelines approach and may influence the court’s decision regarding the appropriate contributions from the parents and the child. This factor becomes particularly important if there is a request for ongoing child support beyond the first diploma or degree (Rebenchuk; Wiewiora v. Wiewiora, 2014 CarswellMan 689 (Q.B.)).

4. The cost of the program which the child has chosen as compared to other comparable and available options will also be relevant (Penn v. Penn, 2014 ONSC 6321 (S.C.J.). While the courts tend to support children with respect to their choice of a post-secondary education program, the child may be called upon to make a greater contribution to their education costs if their choice comes with a higher price tag than other comparable options. As Martinson J. of the British Columbia Supreme Court aptly stated in the often quoted case of Wesemann, post-secondary education is a privilege, not a right. The law should create incentives for decision-making regarding appropriate educational programming that remains grounded in the reality of the family’s financial means.

5. The courts also consider the willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has terminated their relationship with a parent without reasonable cause, this may impact the approach which the court adopts and the amount which the parents are required to contribute.

6. The intention of the parties with respect to post-secondary education when they cohabited may also influence the court’s decision regarding quantum. If there was a clear plan regarding the educational plan for the child and the level and duration of support which the parties intended to contribute to the child, this may be a significant factor in determining the appropriate approach and contribution from the parties (Lewi; R.(T.M.) v. R. (J.W.R.), 2013 CarswellBC 3875 (S.C.)).

7. A significant factor at the calculation stage is whether the child continues to reside with the recipient parent or is living away from home for their studies. The courts are more likely to follow the usual Guidelines approach if the child continues to live with the residential parent while undergoing their post-secondary studies (Wesemann; MacEachern v. MacLeod, 2014 CarswellNS 499 (S.C.)). By contrast, the courts have often considered the standard Guidelines approach to be inappropriate where children are attending post-secondary education programs away from home (see for example Park v. Thompson, 2005 CanLII 14132 (ON CA), 2005 CarswellOnt 1632 (C.A.); Radford v. Nunn, 2011 ONSC 7276 (S.C.J.); Shelley v. Russell, 2012 ONSC 920 (S.C.J.)).

8. Another important factor is whether the child is completing their first post-secondary degree or is engaged in post-graduate studies.

9. The age of the child may also impact the approach to the support calculation and the quantum of support. There is generally an expectation that the child should assume a greater responsibility for their own support as they age. In Cook v. Plante, [2007] O.J. No. 4459 (S.C.J.), Kane J. held that it is not unreasonable to expect a post-secondary student to contribute a gradually increasing portion of their post-secondary expense as they age and advance in their studies.

4. Specific Considerations Respecting the Calculation of Child Support for Adult Children Suffering From Disabilities

[83] As I have indicated, the adult child in this case, Kassandra, is in receipt of ODSP benefits in the amount of $891.00 per month. In Senos, the Ontario Court of Appeal addressed whether an adult child’s receipt of ODSP benefits in the amount of almost $10,000.00 per year rendered the standard Guidelines approach inappropriate within the meaning of section 3(2)(b) of the Guidelines. The court concluded that an adult child’s receipt of ODSP benefits was sufficient to displace the “one-size-fits-most” approach in section 3(2)(a) of the Guidelines in favour of the “tailor-made” approach in section 3(2)(b) (at para. 58). In reaching this decision, the court noted that there was a real potential for overlap between child support payments, which are intended to assist the residential parent to cover the child’s needs relating to shelter, food and clothing, and ODSP benefits paid to the recipient child, which cover similar needs (at paras. 61-62). In addition, the court emphasized that ODSP support reflects society’s commitment to sharing financial responsibility for adults with disabilities, and that it therefore “makes little sense to calculate child support on the basis that this responsibility falls only on the parents” (at para. 64). As Strathy J.A. stated at paragraph 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 [Ontario Disability Support Plan Act] 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 [the adult child], his parents and society.

[84] It is important to emphasize that although the court concluded in Senos that the quantification analysis should be undertaken pursuant to section 3(2)(b) in these circumstances, it held that it was still open to the court to conclude based on the child’s unique conditions, means, needs and other circumstances and the ability of the parents to contribute to the child’s support that payment of the full Table amount was appropriate. The court specifically stated at para 63 that calculating support pursuant to section 3(2)(b) may not in fact result in an amount different from that generated by the standard Guidelines approach.

[85] In Senos, the court noted that in quantifying the appropriate amount of support for an adult child in receipt of ODSP benefits pursuant to section 3(2)(b) of the Guidelines, the court must take into consideration the possibility that child support funds which a recipient parent gives directly to the child or uses for the child’s benefit may be treated as the adult child’s income for ODSP purposes, with the result that a portion of the ODSP benefits may be clawed back. However, the court noted that child support funds given to the child or used for their benefit were also subject to certain exemptions from the inclusion in the disabled child’s benefits for ODSP purposes. The court noted that one such exemption at that time was that the ODSP recipient could receive up to $6,000.00 in any 12 month period in the form of gifts or voluntary payments for any purpose from any source (at para. 47). As of January 2017, the policy of ODSP is that child support which a recipient parent receives for an adult child who is in receipt of ODSP benefits is excluded from the adult child’s income for ODSP purposes. Accordingly, the concern about potential claw-backs of ODSP benefits due to the adult child receiving benefits from child support payments is now only relevant for retroactive awards relating to the time period prior to January 1, 2017.

B. The Law Respecting Income Determination

1. General Principles Regarding Determination of Income

[86] The incomes of the parties, and of the child where the child is over the age of majority, are key factors in considering the issues of entitlement to support in regard to an adult child, the appropriate approach that should be adopted in calculating child support for an adult child and the ultimate quantification of any support award.

[87] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable.

[88] Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal child-related tax benefits and GST/HST tax credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 5). Section 16 does not require the court to use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining the quantum of support in the following year. Rather, the intention of section 16 is to direct the court to ascertain the payor’s income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 CanLII 21778 (ON SC), [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of child support is being determined (V. (L.R.) v. V. (A.A.), 2006 BCCA 63 (C.A.); Lavergne v. Lavergne, 2007 ABCA 169 (C.A.); Chalifoux v Chalifoux, 2008 ABCA 70 (C.A.); Vanos v. Vanos, 2010 ONCA 876 (C.A.); Morrissey v. Morrissey, 2015 PECA 16 (C.A.)). One exception to this principle is where the payor’s current income situation is uncertain or speculative, in which case fairness to the payor may require the court to rely on historical income information (Morrissey).

[89] Schedule III to the Guidelines must also be carefully considered in determining the parties’ incomes for support purposes, as it sets out a number of adjustments that must be made to income. For the purposes of calculating the Table amount of child support, section 3 of the Schedule provides that any spousal support received from the other parent or spouse and any universal child care benefit that is included to determine the parent or spouse’s total income in the T1 General Tax Form must be deducted. Section 3.1 establishes special rules for the calculation of income for the purpose of determining an amount under section 7 of the Guidelines. Finally, section 4 of Schedule II directs that any amount of social assistance income that is not attributable to the parent or spouse should be deducted.

2. Imputation of Income Under the Guidelines

[90] As I have indicated, the Applicant requests that income be imputed to the Respondent in the amount of at least $40,000.00. The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

b) the spouse is exempt from paying federal or provincial income tax;

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

e) the spouse’s property is not reasonably utilized to generate income;

f) the spouse has failed to provide income information when under a legal obligation to do so;

g) the spouse unreasonably deducts expenses from income;

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[91] Income imputation provides a means by which the court can ensure that parents meet their joint and ongoing obligation to support their children (Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt 17 (C.A.); Tillmans v. Tillmans, 2014 ONSC 6773 (S.C.J.); B.(G.T.) v. B.(Z.B.), 2014 ONCJ 382 (O.C.J.)). As the Ontario Court of Appeal stated in Korman v. Korman, 2015 ONCA 578 (C.A.), at para 51:

[t]he courts retain discretion to impute income to a payor spouse in excess of that spouse’s presumptive income where the imputed income is supported by the evidence and is consistent with the objective of establishing “fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution” Bak, at para. 36; Drygala v. Paul (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, 29 R.F.L. (5th) 2983 (Ont. C.A.), at para 44.”

[92] The specific inclusion in the Guidelines of authority for the court to impute income highlights that the fundamental obligation of a parent to support their children takes priority over the parent’s own interests and choices. It also reinforces that parents must act responsibly when making financial decisions that may affect the level of income available from them for the support of their children (Duffy v. Duffy, 2009 NLCA 48 (NLCA)). The list of circumstances set out in section 19 in which the court may impute income is not exhaustive, and therefore it does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income (Bak v. Dobell, 2007 ONCA 304 (C.A.); Riel v. Holland, 2003 CanLII 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (C.A.); Korman).

[93] The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court (Bak, at para. 73; Korman, at para. 49). Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some reasonable basis in the evidence for the amount that the court has chosen to impute (Korwin v. Potworowski 2007 CarswellOnt 6852 (C.A.); Froelich-Fivey v. Fivey, 2016 ONCA 833 (C.A.); Korman).

[94] The question of onus with respect to imputation of income is an important one. In original child support proceedings, the onus is on the party requesting the court to impute income to establish the grounds for this request (Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.), additional reasons 2009 Carswell Ont 3112 (C.A.); Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt17 (C.A.)). However, the party whose income is in question has a positive obligation to disclose all relevant evidence required to enable the other party and the court to obtain a true and complete picture of their income for support purposes. This requirement flows from the standard obligation upon all litigants to produce any information that is relevant to the issues in the case. Pursuant to this obligation, a party whose income must be determined in a support case must provide full and frank disclosure of all personal and business information required to properly assess their reported earnings, their income earning potential, efforts which they have made to maximize their earnings, and the appropriateness of any deductions that they seek to claim against their income. In addition to this general disclosure obligation, the Guidelines and the Family Law Rules set out clear requirements respecting the income disclosure required from a Respondent in an original child support application under the Divorce Act. Sections 21(1) and (2) of the Guidelines set out the basic financial disclosure that a Respondent is required to make in a child support application. Section 24 provides that if a spouse fails to comply with an order for production of financial information, the court may strike that spouse’s pleadings, make a contempt order against them, impute income to the spouse and award costs on a full indemnity basis. Rule 13(1) and (3.1) of the Family Law Rules require a Respondent in an application which includes a child support claim to serve and file a Financial Statement, attaching the income information required by sections 21(1) and (2) of the Guidelines, by the deadline for serving and filing their Answer and Claim. If a party fails to produce all of this basic financial disclosure, income may be imputed to them pursuant to section 19(1)(f) of the Guidelines.

C. Analysis of the Respondent’s Retroactive and Ongoing Child Support Liability

1. The Appropriate Approach to Calculating the Respondent’s Child Support Obligation Since January 2015

[95] Given that Kassandra turned 18 years of age on February 25, 2016, it is necessary to determine whether the calculation of child support for her should be carried out pursuant to section 3(2)(a) or (b) Guidelines commencing March 1, 2016. For the reasons that follow, I conclude that section 3(1) of the Guidelines governs the calculation of child support for both Kassandra and Abbigayle until February 24, 2016, but that section 3(2)(b) applies to the calculation of support for Kassandra as of February 25, 2016. However, upon carrying out the case-specific analysis required pursuant to section 3(2)(b), I nonetheless conclude that the Respondent should continue to pay the equivalent of the Table amount for two children and a proportionate share of both children’s section 7 expenses from February 25, 2016 onward.

[96] Section 3(1) of the Guidelines governs the support calculation respecting both children until February 24, 2016, since both children continued to be under the age of majority until that time. However, the standard Guidelines approach outlined in section 3(2)(a) became inappropriate for Kassandra once she turned 18 years of age having regard for the significant benefits that she has received since that time through ODSP. As I have outlined in these Reasons, she receives a monthly benefit of $891.00 and also has all of her tuition, transportation and health-related expenses covered. The facts in this case are similar to those in Senos, in which the Ontario Court of Appeal concluded that the calculation of support should be undertaken pursuant to section 3(2)(b) of the Guidelines.

[97] In calculating child support for Kassandra within the framework of section 3(2)(b) of the Guidelines, I must determine the appropriate amount “having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” As discussed above, the Ontario Court of Appeal emphasized in Senos that the appropriate amount of support as calculated pursuant to section 3(2)(b) could in appropriate circumstances ultimately be the same as the Table amount plus a proportionate contribution towards section 7 expenses, as provided for in section 3(2)(a). In my view, the facts of this case support such an outcome. My decision in this regard is based on numerous considerations, including the fact that Kassandra continues to live with the Applicant on a full-time basis and to be very much reliant on the Applicant. I have also been influenced by Kassandra’s clear commitment to and progress in her schooling, her choice of an appropriate and affordable program of study and her willingness to work with the Applicant in addressing her post-secondary education needs. I have also given significant weight to the unusually high cost to the Applicant of providing shelter and the basic necessities for Kassandra and Abbigayle due to Abbigayle’s extremely destructive behaviour. As I discussed earlier in these Reasons, the Applicant spends on average approximately $7,500.00 per year to replace and/or repair Kassandra’s possessions which Abbigayle either damages or destroys. This translates into an additional expense of $625.00 per month. Furthermore, Abbigayle causes approximately $7,500.00 worth of damage to other household chattels and possessions each year. There are three members of the household, and if I assign one third of this annual expense to Kassandra ($2,500.00), this results in an additional expense of $208.00 per month to meet Kassandra’s basic housing needs. Finally, the Applicant incurs on average at least $15,000.00 annually to repair structural damage which Abbigayle inflicts on the family home. If I assign one third of this amount to Kassandra ($5,000.00), this results in an additional expense of $417.00 per month to meet Kassandra’s basic shelter needs. The total of these additional monthly expenses to provide for Kassandra’s basic living and shelter needs, over and above the typical expenses that the Guidelines amount is intended to cover, is $1,250.00. The monthly ODSP benefits of $891.00 which Kassandra receives does not even cover this additional financial burden which the Applicant faces each month to meet Kassandra’s needs. Accordingly, to grant her less than the Table amount for Kassandra on the basis that Kassandra receives these ODSP benefits does not make sense, and would simply result in an injustice to the Applicant and the children. Although this additional cost of meeting Kassandra’s needs is attributable to Abbigayle’s special needs and behavioural challenges, this does not detract from the fact that it is a very real and tangible expense that the Applicant must shoulder each month to care for Kassandra, since Kassandra is not socially or emotionally ready at this point to reside independently of her mother. Furthermore, with respect to retroactive amounts for Kassandra for the period prior to January 1, 2017, the Applicant will need to report these amounts once she receives them, and there may be a claw-back respecting Kassandra’s benefits depending on how the funds are used. The net amount of the benefits which Kassandra will receive for this period may therefore be reduced. For all of these reasons, I conclude that it is also appropriate for the Respondent to contribute on a proportionate-to-income basis to the expenses referred to in section 7 of the Guidelines in relation to Kassandra.

2. The Parties’ Incomes Since January 2015

[98] The Applicant is employed as a Marketing Manager with Effort Trust. Based on her evidence, I find that her income since 2015 has been as follows:

2015: $41,500.00

2016: $43,500.00

2017 and onward: $45,500.00

[99] Turning to the Respondent, the Applicant has requested that I impute an income to the Respondent of at least $40,000.00, but even higher if the evidence supports a higher amount. For the reasons that follow, I am imputing a higher income to the Respondent for the the years 2015 and onward.

[100] As I have indicated, the court may impute income to a party if they have failed to provide income disclosure when under a legal obligation to do so. I am imputing income to the Respondent on this basis. After being served with the application in December 2012, he was required by virtue of Rule 13 of the Family Law Rules and sections 21(1) and (2) of the Guidelines to serve and file a Financial Statement, copies of his Income Tax Returns, Notices of Assessment and Notices of Reassessment for 2009 to 2011 and proof of his total 2012 income. He did not respond to the application and did not comply with these basic income disclosure obligations. He was given two further opportunities to participate in this proceeding after the application was reinstated in June 2017, and he chose not to engage in the process or provide income disclosure to assist the court. His first such opportunity to become involved was in June 2017, after he was served with the Applicant’s motion to set aside the dismissal order. He did not appear at the hearing of that motion. He was given a second chance to appear, address the court and provide income information on May 15, 2018. Again, he failed to attend court and was formally noted in default at that time.

[101] The Applicant’s evidence is that the Respondent regularly worked as a truck driver during her 14 year relationship with him from November 1995 until August 2009, and that he earned on average approximately $40,000.00 per year during that time. The Applicant testified that the Respondent also took on other various jobs for cash to supplement his income. The Respondent’s Facebook posts from May and June 2017, which are included as part of Exhibit 2 adduced at trial, provide extremely valuable information about the Respondent’s income. It is clear from those posts that the Respondent had more than one source of income as of that time. The Respondent indicated in a post dated May 5, 2017 that he had just started a job as a Karaoke Host on Friday nights at Champions Karaoke in Windsor. This is where the Applicant served him with her motion to set aside the dismissal order. After being served, the Respondent posted that this Karaoke job was one of his jobs, and that he had almost lost the job because the Applicant served him while he was working. In another post around this time, he questioned his Facebook friends about how the Applicant had located him at Champions Karaoke, since he was working for cash at that location and there was no official record of him working there. In the same post, he lamented that he would have to lose a day of pay to drive to Hamilton to deal with the court case. He expressed anger towards the unknown person who had told the Applicant about his whereabouts, and stated as follows (typographical errors included):

…now I will lose a days pay to drive to Hamilton so I don’t get fucked over. Thanks so much phantom person. Love losing over 300 dollars. Makes my fucking day.

[102] Based on the evidence before me, I conclude that the Respondent has daytime employment that pays him at least $300.00 per day, or $1,500.00 per week. This translates into an annual income of $78,000.00. I conclude that he has been capable of earning at least this income since 2015, and I am therefore imputing this income to him for 2015 and 2016. In addition, I find that he has been earning cash income at Champions Karaoke since May 2017, on Friday nights. In my view, a reasonable estimate of his hourly wage for this work is $25.00 per hour. In the absence of evidence from him about how many Friday evenings he works each month and how many hours he works on each occasion, I am estimating that he has the capacity to work at least two Friday nights each month for approximately 4 hours on each occasion. Accordingly I estimate the he has the ability to earn approximately $200.00 in cash from this employment each month. For the year 2017, I estimate that he earned additional cash income from this employment from May to December totalling $1,600.00. Commencing in 2018, I am imputing cash income to him of $2,400.00 per year for this employment. This cash income must be grossed up for the purposes of calculating child support, to account for the fact that it is not taxed. Based on these conclusions, I make the following findings respecting the Respondent’s income since 2015:

2015: $78,000.00

2016: $78,000.00

2017: $80,335.00

2018: $81,502.00

3. Conclusions Regarding the Quantum of Child Support Payable by the Respondent

[103] Further to my conclusions and findings set out above, the Respondent’s child support liability for the monthly Table amount of support for the period from January 1, 2015 until July 31, 2018 is as follows:

1. Based on an imputed income of $78,000.00 for 2015, he should have paid the Table amount for two children of $1,147.00 per month from January until December 2015, or a total of $13,764.00. He paid the Applicant a total of $6,500.00 in 2015. Accordingly, his arrears on account of the Table amount of support for 2015 are $7,264.00.

2. Based on the same imputed income of $78,000.00 for 2016, the Respondent should have again paid $1,147.00 per month from January until December 2016, or a total of $13,764.00. He only paid the Applicant $3,640.00 in 2016. Therefore, his arrears on account of regular monthly child support for 2016 are $10,124.00.

3. Based on an imputed income of $80,335.00 for 2017, he should have paid the Table amount for two children of $1,176.00 per month from January to November 2017, and the new Table amount for two children of $1,216.00 for December 2017, for a total of $14,152.00. This is the amount of his arrears on account of the Table amount of support for 2017, since he did not pay the Applicant any support in 2017.

4. Based on an imputed income of $81,502.00 for 2018, the Respondent should have paid the Table amount for two children of $1,233.00 per month from January until August 2018, for a total of $9,864.00. This is the amount of his arrears on account of the Table amount up to and including August 31, 2018, since he has not paid the Applicant any support in 2018.

5. The Respondent will be required to pay the Applicant the Table amount for two children of $1,233.00 on an ongoing basis commencing September 1, 2018.

[104] Based on the foregoing, the Respondent’s retroactive child support liability to the Applicant on account of the Table amount totals $41,404.00 up to and including August 31, 2018.

[105] As I have indicated, the Applicant has been paying an average $250.00 per month since June 2016 for a PSW to provide attendant care services for Abbigayle. She does not receive any reimbursement for this monthly expense. This is a medical expense for the child within the meaning of section 7 of the Guidelines. I find that this expense is absolutely essential to ensure that Abbigayle’s physical needs are met during periods when the Applicant and Kassandra are not available to attend to her. The expense is in my view reasonable having regard for Abbigayle’s clear need for assistance and the financial means of the parties. I am requiring the Respondent to contribute to this expense on a proportionate-to-income basis commencing June 1, 2016. His liability on account of his required contribution to this expense since June 2016 is as follows:

1. The total net amount of this expense for 2016 was $1,750.00. Based on the Respondent’s imputed 2016 income of $78,000.00 and the Applicant’s 2016 income of $43,500.00, the Respondent’s proportionate share is 64.2%. He did not contribute towards this expense in 2016, and therefore his arrears for 2016 are $1,123.50.

2. The total net amount for this expense for 2017 was $3,000.00. Based on the Respondent’s imputed income of $80,335.00 for 2017 and the Applicant’s income of $45,500.00, the Respondent’s proportionate share is 63.8%. He did not make any contribution towards this expense in 2017, and therefore his arrears for that year are $1,914.00.

3. The total net amount for this expense for the period from January 1 to August 31, 2018 is $2,000.00. Based on the Respondent’s imputed income of $81,502.00 for 2018 and the Applicant’s anticipated total 2018 income of $45,500.00, the Respondent’s proportionate share is 64.2%. Again, he has not assisted the Applicant with this expense to date in 2018, and therefore his total arrears up to and including July 31, 2018 are $1,284.00.

[106] Based on these calculations, I find that the Respondent’s retroactive child support liability to the Applicant on account of section 7 attendant care expenses for Abbigayle total $4,321.50 up to and including August 31, 2018. His total retroactive liability to the Applicant on account of both the Table amount of support and these attendant care expenses is therefore $45,725.50.

PART V: COSTS

[107] The Applicant seeks costs in connection with these proceedings. She testified that she spent approximately 40 hours of time working on court materials, attempting to locate the Respondent and preparing for court. In addition, I estimate that she spent approximately 8 hours in court dealing with this matter. She missed approximately 2 days of work to attend court appearances. In addition, she also incurred numerous disbursements, including parking fees totalling $22.00, a hotel and meal expense of $250.00 for an overnight stay in Windsor, where she had to serve the Respondent with her motion to set aside the dismissal order, and court filing fees of $280.00.

[108] I recently summarized the general principles respecting costs in Family Law litigation in Beaver v. Hill, 2018 ONSC 3352 (S.C.J.), and I rely on the law as set out in the decision in addressing costs. With respect to costs in favour of self-represented litigants such as the Applicant, the Ontario Court of Appeal established in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.) that parties representing themselves may be entitled to costs in appropriate circumstances. As an example of such circumstances, the court held that they may be awarded costs if they devote the time and effort in doing the work typically carried out by legal counsel, and they can establish that they have suffered a lost opportunity cost by foregoing remunerative activity as a result. However, the court emphasized that self-represented parties should not be compensated for costs relating to time and effort that any litigant would have reasonably had to devote to the case if they were represented by counsel. Some cases decided since Fong have held that a loss of remunerative opportunity is a precondition to awarding costs to self-represented litigants (see for example Mustang Investigations v. Ironside, 2010 ONSC 3444 (Ont. Div. Ct.); Gibson v. Duncan, 2013 ONSC 6245 (S.C.J.)) However, the more prevalent trend in recent years has been to allow costs to self-represented parties regardless of whether they have foregone remunerative activity to work on their case, provided that the costs claimed relate to tasks that would typically be carried out by legal counsel. For instance, in Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, 2010 CarswellOnt 5657 (S.C.J.) and Cassidy v. Cassidy, 2011 CarswellOnt 1541 (Ont. S.C.J.), Price J. held that the focus in addressing costs in favour of self-represented parties must be on the value of the work done, which involves assessing not only the value of the time spent to the litigant who performed the work but also the usefulness of the work to the court. Price J. also held that in quantifying the value of the time spent to the litigant, one measure to use is the income which the litigant could have earned otherwise if they were not working on their legal case. Many subsequent cases have reflected this more liberal approach. Judges in these cases have highlighted the unfairness of denying costs awards to self-represented litigants who do not earn income, and have emphasized that such an approach augments the risk of these litigants being subjected to inappropriate litigation conduct by the other parties (see Izyuk v. Bilousov, 2011 ONSC 7476, 2011 CarswellOnt 14392 (S.C.J.); Witter v. Gong, 2016 ONCJ 722 (O.C.J.); McMurter v. McMurter, 2017 ONSC 725 (S.C.J.)).

[109] The Applicant was entirely successful on all of the claims that she advanced in her application, and she is therefore presumptively entitled to costs by virtue of Rule 24(1) of the Family Law Rules. Her work on the case was very useful for this court, and she did an excellent job representing herself. She did not engage in any unreasonable conduct that would disentitle her to costs. In fact, I find that she acted fairly and reasonably throughout this case.

[110] With respect to the quantum of costs, I conclude that the sum of $4,200.00, inclusive of HST and disbursements, represents a fair and reasonable amount of compensation for the Applicant. Although the application involved issues other than child support, the time spent on the file focussed almost entirely on the support issues. In such circumstances, the court has the discretion to designate the entire costs award as arising in relation to support within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31 (the “FRSAEA”) (see Stancati v. Stancati (1984), 1984 CanLII 1775 (ON CJ), 49 O.R. (2d) 284 (Prov. Ct.), at 287; Wildman v. Wildman, 2006 CanLII 33540 (ON CA), 2006 CarswellOnt 6042, 215 O.A.C. 239 (C.A.); Hatcher v. Hatcher, [2009] W.D.F.L. 5320 (Ont. S.C.J.), at para. 33; Sordi v. Sordi, 2011 ONCA 665 (C.A.), at para. 25; Clark v. Clark, 2014 ONCA 175 (C.A.), at para. 81; Campbell v. Campbell, 2017 ONSC 3787 (S.C.J.), at para. 336). I conclude that it is appropriate to designate the entire costs award as being in relation to support in this case.

PART VI: TERMS OF ORDER TO ISSUE

[111] Based on the foregoing, a final order shall issue as follows:

1. The Applicant shall have sole custody and primary residence of the child Abbigayle May Laramie, born June 19, 2001 (“Abbigayle”).

2. The Applicant’s custodial authority respecting Abbigayle shall include the following:

a) The right to obtain, renew and/or replace the child’s legal documents, including but not limited to her passport, birth certificate, social insurance card and health card, without the Respondent’s consent;

b) The right to apply for any government benefits, credits and/or subsidies on behalf of the child without the Respondent’s consent; and

c) The right to travel anywhere in the world with the child without the Respondent’s consent.

3. The Respondent’s access to Abbigayle shall be in the discretion of the Applicant. This discretion shall include the right to determine the time, location, frequency, duration and need for supervision of access, and to not permit access if the Applicant believes on reasonable grounds that access would not be in Abbigayle’s best interests.

4. The Respondent shall pay the Applicant child support for the children Kassandra Anne Laramie, born February 25, 1998 (“Kassandra”), and Abbigayle May Laramie, born June 19, 2001 (“Abbigayle”) as follows:

a) Commencing January 1, 2015 and continuing on the first day of each month that follows until December 21, 2016, he shall pay the Applicant the Table amount for two children of $1,147.00 per month based on an imputed annual income of $78,000.00;

b) Commencing January 1, 2017 and continuing on the first day of each month that follows until November 30, 2017, he shall pay the Applicant the Table amount for two children of $1,176.00 per month based on an imputed annual income of $80,335.00;

c) For the month of December, 2017 he shall pay the Applicant the revised Table amount for two children of $1,216.00 per month based on an imputed annual income of $80,355.00;

d) Commencing January 1, 2018 and continuing on the first day of each month that follows, he shall pay the Applicant the Table amount for two children of $1,233.00 per month based on an imputed annual income of $81,502.00;

e) He shall pay the Applicant the sum of $4,321.50 on account of his proportionate-to-income share of attendant care medical expenses for the child Abbigayle for the period from June 1, 2016 until August 31, 2018 pursuant to section 7 of the Guidelines;

f) Commencing September 1, 2018, the Applicant and Respondent shall contribute to the expenses referred to in section 7 of the Guidelines relating to the children Kassandra and Abbigayle on a proportionate-to-income basis. Based on the Applicant’s current annual income of $45,500.00 and the Respondent’s current imputed annual income of $81,502.00, the Applicant’s proportionate share is 35.8% and the Respondent’s proportionate share is 64.2%; and

g) Without limiting the generality of subparagraph (f), commencing September 1, 2018 and continuing on the first day of each month that follows, he shall pay the Applicant the sum of $160.50 per month on account of his 64.2% proportionate-to-income share of attendant care medical expenses for the child Abbigayle.

5. Arrears of child support owed by the Respondent to the Applicant as a result of paragraphs 4(a) to (e) herein are fixed in the amount of $45,725.00 up to and including August 31, 2018. This amount takes into account credits due to the Respondent for the following amounts which he paid directly to the Applicant:

a) The sum of $6,500.00 in 2015; and

b) The sum of $3,640.00 in 2016.

6. For the purposes of claiming contribution to section 7 expenses other than attendant care medical expenses for Abbigayle:

a) Any claims for contribution to expenses incurred from January 1st to April 30th each year shall be submitted to the Respondent by May 31st;

b) Any claims for contribution to expenses incurred from May 1st to August 31st each year shall be submitted to the Respondent by September 30th;

c) Any claims for contribution to expenses incurred from September 1st to December 31st each year shall be submitted to the Respondent by January 31st of the following year;

d) In the event that the applicable deadline for submission of claims is not met, the Applicant shall be deemed to have forfeited her right to request contribution;

e) The Applicant shall provide the Respondent with documentary proof of the total expense being claimed. The Respondent shall then pay the Applicant his proportionate share of the expense within fourteen days of receiving said proof; and

f) In the event that there is a dispute regarding contribution to section 7 expenses incurred in a calendar year, the Applicant shall take steps to resolve the issue by way of motion to be brought no later than March 31st of the following calendar year, failing which the Applicant will be deemed to have forfeited her right to claim the expense.

7. The Applicant and Respondent shall by July 1st each year produce to each other the income information referred to in section 21(1) of the Guidelines.

8. In the event that it is determined when annual income disclosure is exchanged that the Respondent’s income has increased from the income upon which his child support obligation is based, his monthly child support obligation shall be retroactively increased in accordance with the Tables under the Guidelines to correspond with the increased income, effective January 1st of the current calendar year.

9. The parties’ proportionate-to-income contributions to section 7 expenses relating to the children shall be recalculated when annual income disclosure is exchanged, and any necessary adjustments shall apply retroactively effective January 1st of the current calendar year.

10. The Respondent shall pay the Applicant costs in connection with this application in the amount of $4,200.00, inclusive of HST and disbursements. These costs shall be payable by no later than 14 days after the Respondent is served with a copy of this order. This costs order is a support order within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, and as such, it is enforceable by the Director of the Family Responsibility Office.

11. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

12. This Order bears post-judgment interest at the rate of 3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

13. A Support Deduction Order shall issue. The Respondent shall complete a Support Deduction Information Form and submit it to the Family Responsibility Office within 7 business days of being served with this order.

14. Court staff are directed to serve a copy of this judgment and order on the Respondent by mailing it by regular mail to his attention to 1893 Ferndale Avenue, Windsor, Ontario, N8T 2K7. Where the Applicant is required pursuant to the terms of this order to produce or submit materials to the Respondent, she may do so by sending the materials to him by regular mail to this address.

The Honourable Madam Justice Deborah L. Chappel

Released: August 7, 2018