Court File and Parties
COURT FILE NO.: FS-16-0192-00 DATE: 2018 09 04
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Mohammed Amin El Sherif, Applicant - and - Sherine Adel Abdallah, Respondent
BEFORE: Bloom, J.
COUNSEL: Mohammed Amin El Sherif, self-represented Borzou Tabrizi, for the Respondent
HEARD: July 25 and 31, 2018
E N D O R S E M E N T
I. Introduction
[1] The Moving Party, the Respondent, moves to vary the order of Justice B.R. Burrows of the Court of Queen’s Bench of Alberta dated June 25, 2013 relating to child support; and to enforce the order of Justice Erb of the same court dated February 28, 2007 for s. 7 expenses.
[2] The parties appeared personally before me; the Respondent was represented by counsel. Justice McSweeney of this court on April 20, 2018 had ordered that this motion be heard commencing on July 25, 2018.
[3] The Applicant resides in Mississauga; the Respondent resides in Alberta.
[4] Since both parties accepted the jurisdiction of this court, I find jurisdiction to hear the motion as it relates to variation, by virtue of s. 5(1) (b) of the Divorce Act.
[5] With respect to the enforcement of Justice Erb’s order for s. 7 expenses, I find jurisdiction to enforce the order under s. 4(1) (b) of the Divorce Act, and also under FLR 5(5)(c) read together with FLR 26(1).
II. Procedural Background
[6] On February 28, 2007 Justice M. Erb of the Alberta Court of Queen’s Bench granted a judgement of divorce. Based on an agreement of the parties that the Applicant had Federal Guideline income of $120,000.00 and the Respondent had Federal Guideline income of $50,000.00, he ordered the Applicant to pay to the Respondent child support in the amount of $1,700.00 monthly in accordance with the Federal Child Support Guidelines, as well as 70.34 % of s.7 expenses upon production of corresponding receipts.
[7] The children in respect of whom the child support and s. 7 expenses were ordered were Amina El Sherif born December 31, 2003, and Aya El Sherif born January 12, 1997.
[8] Associate Chief Justice Rooke of the same court by order dated February 26, 2013 ordered a number of changes in the provisions for child support, including that the quantum would be $2,591.00 per month payable on the first of the month beginning March 1, 2013, until adjusted on June 1 of each year based on the Applicant’s line 150 income.
[9] Those provisions were re-affirmed in the order of Justice B.R. Burrows of that court dated June 25, 2013.
[10] On January 17, 2017 Justice Price of the Superior Court of Justice of Ontario by order suspended those support provisions “pending proof being filed that the children had been returned to Canada and further Order of the Court.”
[11] On April 20, 2018 Justice McSweeney of the Superior Court ordered that the Respondent’s motion for child support, which is the motion before me, be heard on July 25, 2018.
III. Arguments of the Parties
[12] The Respondent argues that she is entitled to a variation in the order of Justice Burrows for child support. Specifically, she seeks child support for Amina in the amount of $1,299.00 per month based on the Federal Child Support Guidelines. The Respondent relies in that regard on the fact that Aya is, by virtue of being over 18 years old, no longer entitled to child support. Additionally, the Respondent contends that the Applicant should be imputed annual income of $150,000.00.
[13] The Respondent also argues that she is entitled to s. 7 expenses in the amount of $ 36,576.00 under the order of Justice Erb for the loans incurred to pay for Aya’s post-secondary education. The Respondent specifically relies upon s. 7(1)(e) of the Federal Child Support Guidelines.
[14] The Applicant contends that he need not pay child support in respect of Amina as long she is outside of Canada and does not have a relationship with him. He relies, among other things, upon the order of Justice Price of January 17, 2017.
[15] As to the s. 7 expenses claimed, the Applicant argues that he need not pay them because Aya has terminated her relationship with him. He further argues that the expenses claimed do not qualify as s. 7 expenses, because they do not satisfy the test of “reasonableness of the expense in relation to the means of the spouses” under s. 7 of the Federal Child Support Guidelines. Lastly, he argues that he did not receive appropriate documentation demonstrating the amount of the expenses.
IV. Governing Principles
A. Variation of Child Support
[16] The relevant portions of the Divorce Act relating to the motion to vary are as follows:
Interpretation
Definitions
2 (1) In this Act,
child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; ( enfant à charge )
Variation, Rescission or Suspension of Orders
Order for variation, rescission or suspension
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses;
Terms and conditions
(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.
Factors for child support order
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
Guidelines apply
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
Child Support Orders
Child support order
15.1 (1) A court of competent jurisdiction 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.
Terms and conditions
(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.
[17] The following provisions of the Federal Child Support Guidelines are relevant:
Variation of Child Support Orders
Circumstances for variation
14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support;
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.
[18] In Pohlod v. Bielajew at paras. 15 to 31 Justice Aitken discussed the principles which govern the termination of the parent-child relationship for child support purposes in the case of a child who has not reached the age of majority:
15 In the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, "child of the marriage" is defined as "... a child of two spouses or former spouses who, at the material time ... is under the age of majority and who has not withdrawn from their charge, ..." It is generally accepted under Ontario law that a child who remains within the charge of at least one of his or her parents has not "withdrawn from their charge". Sandy is under the age of eighteen, which is the age of majority in Ontario. She continues to reside with Ms. Pohlod, attend high school and be totally dependent financially. In these circumstances, she falls within the definition of "child of the marriage" under the Divorce Act.
16 Counsel for Mr. Bielajew argues that despite the fact that Sandy is under the age of majority and has not withdrawn from the charge of her parents, Mr. Bielajew should be permitted by the court to terminate child support for Sandy in accordance with the principles set out in cases such as Law v. Law (1986), 2 R.F.L. (3d) 458 (Ont. H.C.), Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.) and Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C.S.C.).
17 In Law v. Law, the child concerned was 22 years of age and was in her third year of a four year university program. In 1984, the year prior to the application, she had earned $3,074 during the school year and had obtained $4,800 in student assistance. During the school year, she did not reside with her mother, the parent seeking child support, and she was planning a trip to South America in the summer. No evidence was provided as to the child's expenses. The child's performance at university was not inspiring. She had chosen not to keep her father apprised of her progress at university.
18 It was in this context that Fleury, J. commented:
Kimberley has certainly withdrawn from [her father's] charge as a result of her failure to maintain any contact with him. Although it is sufficient that she be in the custodial parent's charge, I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered by the trial judge in determining whether it would be "fit and just" to provide maintenance for that child. A father-child relationship is more than a simple economic dependence. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child's neglect of his or her filial duties.
19 The definition of "child of the marriage" being considered by Fleury, J. was "child of a husband and wife who at the material time is ... sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw himself from their charge or to provide himself with the necessaries of life." Fleury, J. decided that Kimberley was capable of providing for herself as of her twenty-first birthday, and that consequently her father did not have to pay her mother any further child support payments as of that date.
20 In Whitton v. Whitton, the Court of Appeal upheld the finding of the trial judge that a twenty-two year old university student who refused to communicate with her father remained a child of the marriage, for the time being, though the child and her mother were warned of the consequences of the child continuing to refuse to engage in any meaningful discussions with her father.
21 In Farden v. Farden, Master Joyce restricted his application of the above-quoted statement of Fleury, J. in Law v. Law, to "the case of a mature child who has reached the age of majority."
22 The jurisprudence that holds that the failure of a child to maintain a relationship with one parent might disentitle the other parent from receiving child support for that child refers to "mature" children. Generally the child concerned has been a college or university student who may have some other sources of income but who expects a parent with whom the child refuses to have a relationship to contribute to the costs of higher education for the child. The label "mature" has generally not been applied to children under the age of majority who are still finishing their high school education. I see no reason to extend this principle to children in this category. In this regard, I agree with the comments of deP. Wright, J. in Hartikainen v. Hartikainen (1992), 39 R.F.L. (3d) 215 (Ont. Gen. Div.) in reference to the predecessor definition section of the Divorce Act.
23 Most adolescents are in the process of gaining maturity; and at least until the age of majority (and with some even after the age of majority) have not achieved the stability and level of understanding that we associate with maturity. It is generally accepted that adolescence can be a difficult time for many children. They must learn to deal with new relationships, increased freedom and responsibilities, and increased peer pressure. It is clear that children at this age do not always act in the way their parents would like. It is equally clear that parents have limited means with which to influence the attitudes and behaviour of their adolescent children. This reality has been well recognized by the courts when deciding not to try to force an adolescent child to live with or spend time with a parent contrary to the adolescent's wishes.
24 It is not uncommon for adolescents to feel estranged from one or the other parent from time to time, even in families that are intact. There are additional challenges that can produce such feelings in separated families. The parent with whom that child is residing has to cope on a daily basis with the challenge of assisting the child in adjusting to the realities of life in a separated family. This is in addition to the normal challenges of day-to-day parenting, which are not inconsiderable with adolescents.
25 In this context, it is not appropriate to withdraw financial support from the custodial parent as a result of the behaviour of the adolescent. This would simply increase the causes of stress for that parent and decrease options and flexibility at a time when the parent's challenges may already be weighty. One must remember that if an adolescent is living with one parent and refusing to see the other parent, the custodial parent bears the full burden of parenting, without the benefit of any breaks and possibly without the benefit of any collaboration with the other parent. The court must consider whether increasing the stressors in that family's life would reduce the ability of the custodial parent to effectively parent and would thereby cause harm to the child.
26 The court acting both under its parens patriae jurisdiction and its statutory jurisdiction under the Divorce Act must concern itself with the best interests of children. In making an order for custody or access under section 16 of the Divorce Act, "the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child." (s. 16(8)). Although there is no specific reference to the best interests of a child in section 15.1 of the Divorce Act dealing with child support, Parliament's concern about the best interests of children must be taken as the underlying principle which should inform the court's interpretation of its role in making child support orders.
27 What policy objective would be served by permitting Mr. Bielajew to terminate support for Sandy? Counsel for Mr. Bielajew argues that the policy objective is to have the person or persons who caused the termination of the relationship between Sandy and her father accept responsibility for the termination of the relationship. He identifies both Sandy and Ms. Pohlod as being the responsible persons. In regard to Ms. Pohlod's involvement in Sandy's decisions, he refers back to the Report of Dr. Nathan dated February 22nd, 1994 where the following statements were made:
... Even if there is not an intent to put such pressure on these girls, covertly Sandy does feel significant pressure from her mother to remain loyal and not wish for a different arrangement from mother's own wishes. It appears to the assessors that the reasons for this are two fold. Sandy is sensitive, and deeply concerned with issues of fairness which she senses is being challenged by each parent in his or her dealings with the other over the last two years. In addition, she is being actively drawn in by her mother, who in her search for support has pulled Sandy in as an ally. Choosing a child as an ally is not an unusual pattern in such family struggles, but, nevertheless, clearly jeopardizes that child's emotional and psychological well being. Sandy's anxiety is of great concern to us. Her mental health is clearly suffering from the loyalty pressures she is experiencing in the fighting between her parents ...
From our observations of the parents together and from the sessions which included the step-parents, we concluded that Ms. Pohlod is still preoccupied with her anger about past events and that she cannot see and recognize the attempts by Mr. Bielajew to apologize and reconcile the past. We saw her consistently deny his requests for involvement in parental decisions, by stating that she, as the girls' mother, was the only parent with the right to make decisions. We also saw a pattern in which she would make a demand of Alex, then, once he met the demand, up the stakes by increasing her demands once again. As a result, we observed that it remains impossible for the parents to ever reach a point where they can begin to work cooperatively. We are also concerned that if Ms. Pohlod were to have Sole Custody, she would use the past history of her experience in the couple relationship as a rationale for excluding Mr. Bielajew from having any input into parental decisions.
28 Factually, it is not clear that Sandy's current reticence to communicate regularly with Mr. Bielajew results from the attitudes and behaviour of Ms. Pohlod over the years since the separation. Dr. Nathan's report is more than four years old. Following the release of the Report, Sandy continued to spend alternating weeks with her parents, and this time sharing arrangement continued until Mr. Bielajew left for Ann Arbour in the summer of 1997. It was only at that time that Sandy stopped speaking with, writing to or visiting with her father. This may have been her reaction to his decision to move a significant distance away from Ottawa to pursue employment opportunities. It may be the result of his pressuring her to move with him to Ann Arbour. There may be other dynamics at work. The evidence is insufficient to allow me to draw any conclusions in this regard.
29 Therefore I do not conclude that Ms. Pohlod is responsible for Sandy's current attitudes toward her father. As well, for the reasons explained above, I cannot conclude that Ms. Pohlod would be able to influence Sandy to either speak to or visit with Mr. Bielajew more regularly, even if Ms. Pohlod wanted to encourage this result.
30 In any event, even if Sandy's current attitude is found to be a direct result of Ms. Pohlod's unwillingness to co-parent with Mr. Bielajew, what would be the result of terminating child support for Sandy? Ms. Pohlod would have reduced financial means with which to support herself, Lizza and Sandy. She would still have the legal responsibility to provide for the children. The impact of reduced resources would be felt by Lizza and Sandy, as well as Ms. Pohlod. In essence all three would be punished. Punishment of a parent or of children is not part of the court's mandate in the area of child support.
31 The most pressing incentive to the passage of the recent amendments to the Divorce Act regarding child support and the implementation of the Federal Child Support Guidelines was to ensure that Canadian children are being adequately supported following their parents' divorce. This goal will not be achieved if a parent of a child, whom we do not yet recognize as mature enough to be considered an adult, is given permission by the court to terminate support for that child because the child is not maintaining the relationship with that parent that the parent would like. This is the case whether or not the custodial parent has in some way contributed to the child's current attitude and behaviour regarding the non-custodial parent.
[19] In Montemurro v. Shavalier, [2003] O.J. No. 3088 (Ont. Gen. Div.) Justice Harris discussed at paras. 31 to 37 the principles which govern the termination of the parent-child relationship for child support purposes in the case of a child who has reached the age of majority:
31 The case of Law v. Law (1986), 2 R.F.L. (3d) 458 has attracted considerable attention in the "Child of the Marriage" cases for its thoughtful clarity. In that case, Fleury J. observed:
"I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason that is a factor to be considered by the trial judge in determining whether it would be "fit and just" to provide maintenance for that child." A father-child relationship is more than a simple economic dependency."
32 While the children have regrettably not stayed in contact with their father, that does not remove the obligation on them to have, as the Court of Appeal stated in Whitton v. Whitton (1989), 21 R.F.L. (3d) 261, "some sensible discussion" with the father on the matter of education.
33 To my mind, having a "sensible discussion" is the minimum that the child who seeks financial support should be doing. It is clearly in the best interests of any child to be encouraged to acquire an ease with that kind of basic courtesy.
34 Ritchie J. in the Supreme Court decision of Jackson v. Jackson, [1973] S.C.R. 205 reviewed some significant concepts applicable to the present case. The decision did not provide any definitive test to determine when a child ceases to be a child of the marriage. Rather Ritchie J. referred to it as "drawing a line at such a point as the court thinks it just and fit to draw in all the circumstances of the particular case having regard to the conduct of the parties and the condition, means and other circumstances of each of them."
35 Fleury J. in the Law decision supra stated;
"It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with the father in the absence of any conduct by the father which might justify the child's neglect of his or her filial duties."
36 I find that on the evidence there is no conduct by the father that would justify the children's turning away from, and neglect of, their filial obligation to Russell.
37 This state of affairs is not determinative of the support issue but it is a factor in the mix of considerations in the process of "drawing the line."
[20] In Nafar-Ross v. Raheemi, 2018 ONSC 3054 at paras. 23 to 27 Justice P.E. Roger discusses this same issue; in that case the Respondent father sought an order terminating child support:
23 Applying the Farden factors (including those factors outlined in the Order of December 16, 2015, and those outlined in Beach v. Tolstoy), I note:
• D is in fact enrolled in a full-time course of studies at Carleton University and has been since January 2018 (she was previously enrolled at Queen's University since September 2017).
• D is not eligible for student loans because of the parties' income and D received some bursaries for the fall 2017 when she attended at Queen's University.
• Both parents are highly educated; the respondent is a professor at the University of Ottawa, the 2008 separation agreement contemplates that the children will pursue some form of post-secondary education, and there is no evidence that D is going to university because there is nothing better to do.
• D has limited ability to contribute to her own support while going to school, and she is registered in a relatively demanding program. In 2017 she earned about $2,800 working part-time. She still works at the same part-time employment but with few hours considering her stated course load.
• D is 18 and in her first year at university.
• D is bright and succeeded well in high school. At Queen's, in music, her grades were in the low 90's and at Carleton she apparently has A's in all courses.
• There is no reason to doubt that D will succeed at university in her chosen field of studies. Although D seems committed to her studies, it is still too early to assess any long term educational plan for D.
• In their 2008 separation agreement, the parties expressly provided for the children's ongoing education, indicating, for example, that child support would end for a child at the earliest of a number of dates including when one post-secondary degree or diploma is obtained. This is repeated more recently by the parties in the consent Order of December 16, 2015, which provides that where D attends school for post-secondary education will be a factor to consider when reviewing child support when D reaches the age of 18.
• D decided when she was about 13 that she would no longer have a relationship with her father. Her father has unsuccessfully tried to have a relationship with her. However, the history of this situation is complex and if any blame is to be allocated, it should be shouldered by both parents likely in varying degrees over time. In years past the applicant provided to the respondent little information about D despite the requirements of the separation agreement. The respondent was not consulted before D attended Queen's and Carleton, and the alleged brief conversation two years earlier between D and the respondent is not sufficient. It appears, at this time, that D is simply not yet ready to reunite with her father.
• The parties' household income is in the range of $230,000 for the applicant and $170,000 for the respondent. However, the parties' many and most recent financial statements indicate that each party has been and is still financially stretched. The respondent's March 2018 financial statement declares annual income of $173,796 and annual expenses of $165,240 (including the amount of support paid directly to the parties' adult son but not the monthly amount of $1,100 in child support for D that he currently pays to the applicant). The applicant's April 2018 financial statement declares annual income of $108,283 and annual expenses of $183,292 (including the amount of support that she pays directly to the parties' son and also $12,000 for D's university tuition and fees).
24 As can be seen from the above factors, one of the Farden factors — termination of the relationship between the child and parent — favours the respondent's position. However, most court decisions have held that an adult child terminating his or her relationship with a parent, standing alone, is rarely sufficient (unless this is clearly unilateral and without any apparent reason). In this case there is a long and complicated history and, as a result, the reasons for D's decision are many and complex.
25 When I consider the evidence relating to the long and complicated history between the parties, it does not appear that D's decision was reached without justification or without any apparent reason. The parties separated in 2007, when D was only eight years old. The parties' actions before and since their separation, as well as the facts relating to the many unresolved allegations made by each of the parties, have no doubt played a significant part in the current situation (including the mother's alienation and the father's rigid positions). As such, this case is an unfortunate illustration of how badly parents can behave and how this can impact their children. It is obvious from the materials filed on this motion that both parties and the children have been hurt by the actions of the parties, and this is particularly evident in the recent exchange of text messages between the respondent and D.
26 This case is also a good example of how difficult it can be to assess conduct when deciding entitlement to child support. The conduct of a child and now of a young adult such as D is particularly difficult to assess when the parents separated over 10 years ago; in such instances the child's conduct invariably incorporates much past parental unpleasantness, the impact of which varies depending on how each unpleasantness was then perceived by the child and how it was managed by the parents. As indicated at para. 142 of Caterini v. Zaccaria, 2017 ONSC 2000, at what stage does the onus shift to the child to assume responsibility for a parental relationship whose flaws were perhaps years in the making? This is a difficult question and the past practice — of making a finding that a child is not "a child of the marriage" because of the lack of a relationship only in the clearest of cases — seems a wise approach.
27 Consequently, applying the factors outlined in the many cases, starting with Farden, and with the onus on the applicant to establish that D is a "child of the marriage", it becomes apparent that these factors support a finding that D is still at this point a child of the marriage (as this is defined in the Divorce Act for purposes of child support — I add this to explain that the words "child of the marriage" are in this decision used as legal terms and are not used in any way as a reflection or as an assessment of the state of the relationship between D and her father). As such, D is still entitled to child support and that part of the motion is dismissed.
[21] In Willick v. Willick, [1994] 3 S.C.R. 670 at paras. XIV to XXV Justice Sopinka for the majority discussed the principles relating to the variation of an order for child support:
Reviewability
XIV. Submissions were made by the respondent as to the reviewability of the support provisions, having regard to the fact that they resulted from a complicated separation agreement which was incorporated into a decree nisi. Clearly the court is not bound by the terms of a separation agreement in exercising its jurisdiction to award support under the Act. See Wilson J. in Pelech v. Pelech, [1987] 1 S.C.R. 801, at p. 849. As stated by Professor McLeod in his annotation on Silverman v. Silverman (1987), 7 R.F.L. (3d) 292 (N.S.S.C.A.D.), at pp. 293-94, the true question is the effect of the agreement in restricting the court's discretionary jurisdiction.
XV. The reasoning which supports the restrictions with respect to interspousal support does not apply to child support. In Richardson v. Richardson, [1987] 1 S.C.R. 857, at pp. 869-70, Wilson J. explained the different nature of the two rights:
This inter-relationship [between spousal maintenance and child support] should not, however, lead us to exaggerate its extent or forget the different legal bases of the support rights. The legal basis of child maintenance is the parents' mutual obligation to support their children according to their need. That obligation should be borne by the parents in proportion to their respective incomes and ability to pay: Paras v. Paras, supra .... Child maintenance, like access, is the right of the child: Re Cartlidge and Cartlidge, [1973] 3 O.R. 801 (Fam. Ct.). For this reason, a spouse cannot barter away his or her child's right to support in a settlement agreement. The court is always free to intervene and determine the appropriate level of support for the child.... Further, because it is the child's right, the fact that child support will indirectly benefit the spouse cannot decrease the quantum awarded to the child.
XVI. As against the parties, the agreement operates as strong evidence that at the time each accepted its terms as adequately providing for the needs of the children. The correct approach was adopted by Anderson J.A. in Dickson v. Dickson (1987), 11 R.F.L. (3d) 337 (B.C.C.A.), at p. 358, who regarded the agreement as affording strong evidence "that the agreement made adequate provision for the needs of the children at the date the agreement was made".
XVII. Where as here the agreement is embodied in the judgment of the court, it is necessary to consider what additional effect is to be accorded to this fact. Section 11(1)(b) of the Act provides that "it is the duty of the court ... to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made". It must be assumed that as long as the provisions of the judgment of the court stand unreversed this duty was carried out and that at the date of the judgment it provided reasonable arrangements for the support of the children. In this regard, I agree with Angers J.A. in Lanteigne v. Lanteigne (1988), 91 N.B.R. (2d) 275, when he states at p. 277:
[TRANSLATION] I am of the opinion that an application for a variation order is not an appeal of the original order. The finality and binding nature of all court judgments should consequently be respected here. The judge rendering the variation order must be guided by the nature of the change in the parties' condition. The variation must reflect the changes that are disclosed.
XVIII. Therefore, in a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding. The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act are properly satisfied. I now turn to this issue.
The Interpretation of s. 17(4) of the Divorce Act
XIX. This subsection authorizes the court to vary a previous support order if a change of circumstances occurs. The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.
XX. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. The controversial aspect of this appeal is whether it is also a pre-condition to variation that there be a change in the circumstances of the payor spouse and the child or children in whose favour the support provisions were made. In determining this issue it is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents. The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way. There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered. The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa (1990), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 110‑11 is apt:
It is established beyond dispute that a dependent child is entitled to look to both parents for support. It is also established beyond dispute that each parent has an obligation to provide for the support of the child. The amount of the support to be provided is the amount that will meet the needs of that particular child. The measure of those needs depends on a number of factors including the age of the child and the standard at which that child could reasonably expect to be supported. The reasonableness of the expectation is to be measured against the means and circumstances of the parents who have the obligation to provide the support. I know of no reason why that expectation should be any different for a child who is the innocent victim of the breakdown of the relationship between its parents. If the ability of the parents or either of them increases or decreases, it is reasonable to expect that the level of support of the child will increase or decrease. [Emphasis added.]
XXI. It remains to determine whether the application of the rules of statutory construction yields a different result.
XXII. In my opinion, on any method of statutory interpretation, the above interpretation of s. 17(4) is correct. If the literal approach is adopted, the words in the statute should be given their ordinary meaning: Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 219. Section 17(4) explicitly states that a change in the circumstances of either former spouse or of any child of the marriage must be demonstrated to the satisfaction of the court before an order for variation can be considered. Moreover, in making any variation order, the court is instructed to take "that change" (rather than "those changes") into account.
XXIII. With respect to the application of the contextual approach advocated by the respondent, the objective is to interpret statutory provisions to harmonize the components of legislation inasmuch as is possible, in order to minimize internal inconsistency: Côté, supra, at p. 257, and R. v. Tapaquon, [1993] 4 S.C.R. 535. If one peruses s. 15, other subsections of s. 17 and the overall pattern of the Divorce Act, especially compared with the 1970 version of the Act, it is my view that the interpretation advocated by the appellant must prevail. In rendering original divorce orders pursuant to s. 11(1), courts are to ensure that reasonable arrangements have been made for the children and may withhold the decree until such time as satisfactory arrangements are undertaken. Under s. 15, in granting support orders, courts are to consider, among other things, the needs of the children, the relative ability of the spouses to pay and the joint obligation of parents toward their children. This suggests a child-centred approach to rendering support orders, with a recognition that because of relative income differences, spouses may be in unequal positions with respect to their capacity to pay.
XXIV. Moreover, a number of decisions in the area recognize that, as much as is possible, the children of the marriage should be sheltered from the economic consequences of divorce: Dickson, supra, Friesen v. Friesen (1985), 48 R.F.L. (2d) 137 (B.C.C.A.), and Paras v. Paras, [1971] 1 O.R. 130 (C.A.). Taken together, other sections of the Act and certain of the case law in the area suggest that variation of child support orders would logically flow from either a change in the child's circumstances or a change in the circumstances of one or both of the former spouses. In this way, the child is sheltered as much as possible from the consequences of divorce by providing for escalating needs and by permitting the child to benefit from any improvement in the lifestyle of one or both of the parents. If the respondent and the Court of Appeal are right, it would mean that if the custodial parent suffered a serious reduction of means, this could not be the subject of a variation unless, independently of the reduction in the circumstances of the parent, the needs of the children also increased. In my opinion, the reason why the subsection provides that a change in the means of either parent on the one hand and the needs of the children on the other are alternate grounds for variation is the recognition that the former almost invariably has an impact on the latter. Moreover, this interpretation is a fair one to the payor spouses who may use s. 17(4) to protect themselves against a drop in income which prevents them from maintaining the existing level of support payments, even in circumstances where the needs of the children have not changed: see, for example, McKinney v. Polston, [1992] B.C.J. No. 1422 (S.C.), Snelgrove-Fowler v. Fowler, and Bucher v. Bucher (1990), 67 Man. R. (2d) 233 (Q.B.).
XXV. Having found that the conditions for variation exist, the trial judge should proceed to determine what variation should be made. The trial judge must re-assess the needs of the children in light of the change. The needs of children are not assessed in a vacuum but are affected by the standard set by the means of the parents. When the means of parents are limited, the children's needs may be satisfied by the bare necessities. In these circumstances the children are required to do without some things which would be available to them if the means of the parents were greater. The reasonable expectation of the children for future support upon marriage break-up is conditioned by the standard of living of the parents at the time. This expectation is not frozen as of the date of marriage break-up. If there is a significant change in the circumstances of one of the parents subsequent to the support provisions, the reasonable expectations of the children will be affected. In this regard I agree with the statement of Kelly J.A. in Paras v. Paras, supra, at p. 134, when he states:
Since ordinarily no fault can be alleged against the children which would disentitle them to support, the objective of maintenance should be, as far as possible, to continue the availability to the children of the same standard of living as that which they would have enjoyed had the family break-up not occurred.
Accordingly, a significant increase in the means of the payor parent may require that the needs of the child include benefits that previously were not available. See Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376 (B.C.S.C.) and Friesen v. Friesen, supra. If the situation is reversed, the needs of the children may require that the needs of the children be scaled down. There is, however, a limit to the extent to which the reasonable expectations of children to increased support payments can continue by reason of increases in the wealth of the payor spouse. It must not be forgotten that we are dealing with maintenance and not income sharing. If the children are already being maintained at a very high standard a change, even a significant change, in the wealth of the payor spouse will not in itself entitle the children to increased support so as to permit them to live in luxury simply to emulate the lifestyle of their parent. Such an expectation on the part of children would not be reasonable.
[22] The authors of David M. Steinberg, Craig Perkins, Esther L. Lenkinski, Andrew James, Ontario Family Law Practice 2018 note at page 174 that the onus of proof of the requisites for a variation lies on the party seeking it, and that the standard of proof is the balance of probabilities.
[23] It is also instructive to review judicial comment on the imputation of income.
[24] In Trick v. Trick, [2003] O.J. No. 1263 (Ont. Sup.Ct.) at paras. 28 and 54 Justice Seppi stated:
28 I accept the evidence of the applicant's expert on U.S. and Canadian income comparisons. In the circumstances of this case it is appropriate to consider the significantly lower effective rates of income tax in the U.S.A. in determining the husband's equivalent Canadian income, as provided in ss. 19(1)(c) of the Child Support Guidelines. Mr. Trick's after-tax disposable income was considerably higher than a Canadian tax payor with the same before-tax income. The following summary of his Canadian equivalent income, taking into account the lower effective rates of income tax in the U.S.A., does not include any investment or capital gains income, or the RRSP income attributed to him in those years:
| Year | Canadian Equivalent Income |
|---|---|
| 1995 | $367,322 CAD |
| 1996 | $254,680 CAD |
| 1997 | $174,458 CAD |
| 1998 | $260,888 CAD |
| 1999 | $366,571 CAD |
| 2000 | $264,534 CAD |
| 2001 | $342,812 CAD |
Over the same 7-year period this total is $2,031,265 CAD, with a seven-year average of about $290,180 CAD per annum.
54 I have accepted the evidence of the applicant's expert as to the respondent's Canadian equivalent income for the years noted. It is also appropriate in this case to impute income to the husband pursuant to s. 19(1)(c) of the Child Support Guidelines, taking into account the fact that the husband, who lives in the U.S., has and has had effective rates of income tax that are significantly lower than those in Canada. Though the respondent and his expert contend that this would be unfair due to the alleged higher cost of living in Texas, no reliable evidence of this was provided. Moreover, the husband is able to share expenses with his new wife and has been able to do so for a number of years, which would reduce his own cost of living. In determining the husband's income during the relevant period I have not included the investment income which the husband received jointly with his new wife, nor the new wife's pension income, nor the husband's cashed R.R.S.P.s. The latter were non-recurring and, in any event, have been taken into account in assessing the husband's income in the year he made the significant R.R.S.P. investment using his termination pay shortly after the separation. The imputed income of the husband for the years 1995 to 2001, allowing for the differences in the tax rates as calculated by the applicant's expert, was as stated above under the spousal support section of this judgment.
B. S. 7 Expenses
[25] S. 7(1)(e) and s.7(2) of the Federal Child Support Guidelines provide:
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:
(e) expenses for post-secondary education;
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
V. Application of the Governing Principles to the Case at Bar
[26] I will now apply the above principles to the evidence before me.
A. Variation of Child Support
[27] I am satisfied that the Respondent has proven on a balance of probabilities that there has been a material change of circumstances since the order of Justice Burrows. The Respondent concedes that Aya is no longer a child of the marriage; that change in circumstances is clearly material under both s. 14 (a) and (b) of the Federal Child Support Guidelines.
[28] I impute income of $ 150,000.00 annually to the Applicant under s. 19(1)(c) of the Guidelines. I shall now explain my reasoning in that regard.
[29] The Applicant’s Financial Statement sworn or affirmed April 18, 2018 stated that his total income from all sources for 2017 was $3,298.00, being employment income from Mohawk College in Hamilton, Ontario; his stated yearly expenses were $91,980.12.
[30] In his affidavit sworn or affirmed May 18, 2018 he provided evidence that in his 2017 U.S. tax return his total income and adjusted gross income were $135,260.00 in American dollars; that sum converts to $175,648.63 Canadian dollars using the applicable Bank of Canada conversion rate.
[31] The Applicant also provided evidence in that affidavit that in the state of Texas, where he resided during 2017, there was no income tax.
[32] In the Financial Statement to which I made reference the Applicant stated that his total income for Canadian tax purposes for 2013 was $208,677.00; for 2014 was $256,042.00; for 2015 was $14,006.00; and for 2016 was $ 48,418.00.
[33] In the absence of an explanation from the Applicant regarding the discrepancy between the figures he reported in the U.S. and Canada, and in light of the evidence I have set out, I have accepted the imputation of annual income to the Applicant of $150,000.00 as contended by the Respondent.
[34] Based on the Guidelines the monthly amount payable by the Applicant to the Respondent for the support of Amina would be $1,299.00.
[35] In view of Justice Price’s order I make that monthly sum payable upon proof that Amina has recommenced residence in Canada. That proof may be made to the Applicant; if there is a dispute on that matter the parties may seek directions from any judge of this court. If payable, the monthly sum would be due on the first day of each month.
[36] I find that the relationship between the Applicant and Amina has not been terminated based on the evidence before me and the principles discussed above.
B. S. 7 Expenses
[37] The s. 7 expenses in issue are student loans incurred by Aya for her attendance in the Bachelor of Arts program at Vancouver Island University. She commenced that program in January of 2016. The Respondent in her affidavit sworn or affirmed February 2, 2018 provided evidence of Aya’s participation in that educational program. The Respondent concedes that Aya graduated from that program in July of 2018.
[38] According to evidence provided in the Respondent’s affidavit sworn or affirmed June 20, 2018 Aya incurred a National Student loan totalling $24,150.00 and an Alberta Student loan of $28,350.00.
[39] Based on Justice Erb’s order, I order that the Applicant pay 70.34 % of the total of those two sums immediately to the Respondent; that amount is $36,928.50.
[40] The Respondent has provided affidavit evidence of Facebook conversations between Aya and the Respondent demonstrating that the Respondent parent and his child had a continuing relationship in which they discussed her post-secondary schooling. I find, therefore, that their relationship existed in law for purposes of the claimed expenses, and that he was made aware of those expenses in a manner satisfying the order of Justice Erb.
[41] Finally, I reject the Applicant’s argument that the expenses in question were not reasonable. They were amounts incurred for student loans used to finance a normal post-secondary education.
VI. Costs
[42] I shall receive written submissions as to costs. The Respondent shall serve and file her submissions within 14 days from the release of this endorsement; the Applicant shall serve and file his submissions within 14 days from service of the Applicant’s submissions; and there shall be no reply.
[43] I note that in her endorsement of April 20, 2018 Justice McSweeney reserved costs of that day to me; and that she observed in that endorsement that the parties “were here for 7 hours today.”
Bloom, J.
DATE: September 4, 2018