Court File and Parties

COURT FILE NO.: FS-11-3614 DATE: 20180918

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Alexander Pascual Self Represented Applicant Applicant

• and -

Simone de Freitas Pascual Respondent

COUNSEL: Danny Bertao, for the Respondent

HEARD: August 15, 2018

REASONS FOR DECISION

PETERSEN J.

INTRODUCTION

1The parties are the parents of two children, a daughter (“LA”) who is 19 years old and a son (“LE”) who is 17 years old. Both children live with their mother in Brazil. Mr. Pascual resides in Ontario.

2In a lengthy Temporary Order dated January 14, 2015, Justice O’Connor made numerous orders relating to custody, access, decision-making and communication with respect to the children, travel, child support and s.7 expenses. Among other things, he ordered:

(a) that the parties shall have joint custody of the children, (b) that Ms. Pascual may relocate with the children to Brazil, (c) an access schedule for Mr. Pascual to spend time with the children periodically, both inside and outside of Ontario (the children travelling to meet him) – plus regular Skype (video-conferencing) access, (d) that the parties will make all major decisions jointly involving the children’s academic, medical and extracurricular activities (the parent who has the children in their care having the ultimate right to make a final determination in the event of disagreement between them, unless otherwise set out in the order), (e) that Ms. Pascual shall obtain a consent Order, at her expense, from a Court of competent jurisdiction in Brazil, which provides for comparable relief as to the custody and access of the children (a “Mirror order”), (f) that Mr. Pascual pay Ms. Pascual child support for the two children in the amount of $1,132 commencing February 1, 2015, except in months when the children are visiting him, and (g) that the parties shall equally share the costs of the children’s special and extraordinary expenses on the condition that any such expenses are approved in advance in writing by the non-residential parent and the party requesting reimbursement shall provide official documents showing proof of payment as issued from the third party providers.

3On February 26, 2015, Justice O’Connor ordered Ms. Pascual to pay Mr. Pascual’s costs in the total amount of $89,884.35, with post-judgment interest at the rate of 3% annually.

4On May 12, 2017, Justice Bloom ordered the immediate termination of child support for the daughter LA, who had turned 18 years old in February 2017.

MOTIONS BEFORE THE COURT

5Ms. Pascual brought a motion to set aside the May 12, 2017 Order of Justice Bloom. Ms. Pascual’s motion also seeks to vary the Temporary Order of Justice O’Connor dated January 14, 2015 by: (a) increasing the amount of child support paid by Mr. Pascual for both of the children, retroactive to March 1, 2016, to reflect an increase in Mr. Pascual’s income, in accordance with the Table amount set out in the Federal Child Support Guidelines, and (b) requiring Mr. Pascual to reimburse her for 86% of LA’s university expenses, retroactive to February 2017, and to pay 86% of future university expenses. Ms. Pascual asks that both of these variation orders be made without prejudice to her right to seek a further increase, pending further income disclosure from Mr. Pascual.

6Finally, Ms. Pascual’s motion seeks orders for production of income information from Mr. Pascual retroactive to 2014.

7Mr. Pascual has two motions before me. His first motion is for contempt orders against Ms. Pascual based on her alleged non-compliance with several elements of Justice O’Connor’s Temporary Order dated January 14, 2015 and for non-compliance with Justice O’Connor’s costs Order dated February 26, 2015.

8Ms. Pascual acknowledges that the costs Order has not been satisfied. She has not even made partial payments in an effort to comply with the Order on an incremental basis. She submits that she does not have the financial means to do so. She argues that her financial situation has worsened since May 2017 when Justice Bloom terminated the child support that she was receiving for LA.

9Mr. Pascual’s second motion is for dismissal of Ms. Pascual’s motion and for an order that she not be entitled to any further Court orders until such time as she has complied with the outstanding court orders.

10Both parties also seek their costs.

INADEQUACY OF THE MOTION RECORD

11At the end of the motion hearing on August 15, 2018, I advised the parties that I would not be able to decide all of the issues raised by the motions without a trial, because of the inadequacy of the record.

12Both parties have submitted extensive affidavit evidence, with attached documentary exhibits, but their sworn evidence is contradictory on many of the factual issues that need to be decided. The source, authenticity, completeness and reliability of several documents are disputed. There are a multitude of credibility issues raised by the affidavits, yet no cross-examinations were conducted. I am unable to make some of the necessary findings of fact without the benefit of more evidence and cross-examination of witnesses.

13The Respondent’s counsel urged me to decide the issues raised by Ms. Pascual’s motion based on the record, because of the challenges she would face if required to attend a trial in Ontario and because of her limited financial resources.

14I recognize that legal proceedings are expensive. Ms. Pascual is not wealthy. She operates her own business in Brazil, which would presumably be interrupted if she were required to attend a trial in Ontario. Mr. Pascual is also in difficult financial circumstances, despite his relatively comfortable income level. He has expended a considerable amount of money on legal fees associated with family court proceedings in both Ontario and Brazil. He has not been paid any of the costs owed to him by Ms. Pascual, which now exceed $98,000 (including interest).

15I understand why the parties wish the Court to adopt an expeditious and cost-effective process. However, I am simply unable to make all of the necessary findings of fact based only on the motion record, without the benefit of cross-examination of witnesses. I am not confident that the record alone provides me with a full appreciation of the relevant facts, particularly in respect of Mr. Pascual’s contempt motion. Contempt orders can have very serious consequences. It would not serve the interests of justice for me to decide such consequential issues without a proper record.

16In my reasons below, I have made factual findings, wherever possible, based on the evidence in the record. I have decided some of the issues raised by the motions, when I am confident that the evidence in the record is sufficient to do so. I have done this in order to narrow the issues in dispute, streamline the process for the parties, and reduce the costs associated with a trial of the outstanding issues. The remaining issues will need to be tried in order to be decided.

MR. PASCUAL’S MOTION FOR CONTEMPT

17Rule 31(1) of the Family Law Rules precludes the enforcement of a “payment order” by way of a contempt motion. I therefore do not have jurisdiction to grant the relief sought by Mr. Pascual in his motion for contempt based on Ms. Pascual’s non-compliance with the costs Order of Justice O’Connor dated February 26, 2015. That portion of the Applicant’s contempt motion is therefore dismissed.

18The Applicant’s request for a contempt order based on Ms. Pascual’s alleged wilful non-compliance with numerous elements of Justice O’Connor’s Temporary Order of January 14, 2015 is within the Court’s jurisdiction to grant. It is not dismissed. However, for the reasons set out above, this remaining portion of the contempt motion must be scheduled for trial, as I am unable to make the necessary factual findings based on the motion record alone and without the benefit of cross-examination of witnesses.

MR. PASCUAL’S MOTION TO DISMISS MS. PASCUAL’S MOTION

19Mr. Pascual urges the court to dismiss Ms. Pascual’s motion and to bar her from bringing further motions until such time as she complies with all outstanding court orders.

20Ms. Pascual admits that she has failed to comply with the costs Order dated February 26, 2015. She also acknowledges her non-compliance with some elements of Justice O’Connor’s Temporary Order dated January 14, 2015, but she denies her alleged non-compliance with other elements. She argues that she has made substantial compliance with the Temporary Order.

21The uncontested evidence establishes Ms. Pascual’s non-compliance with the following elements of Justice O’Connor’s Temporary Order:

(a) She has not obtained a Mirror order from a Brazilian court. (b) She has not provided Mr. Pascual with advance notice by email of the cancellation of several scheduled Skype sessions with the children. (c) Since July 2015, she has not sent Mr. Pascual bi-monthly emails outlining the children’s academic progress. (d) She has not sent Mr. Pascual scanned copies of the children’s report cards. (e) She has not sent Mr. Pascual scanned copies of the children’s medical reports. (f) She has not provided Mr. Pascual with annual proof of the children’s medical, extended health and dental insurance coverage by February 1st of each year. (g) She has made unilateral decisions relating to the children’s education and medical treatment, without consulting Mr. Pascual.

22There are numerous other alleged breaches of the Temporary Order, but I am unable to determine the full extent of Ms. Pascual’s non-compliance based on the record before me and without the benefit of cross-examination of witnesses to enable me to make credibility findings.

23It is, however, apparent -- based on Ms. Pascual’s own correspondence -- that she has deliberately chosen to disregard elements of Justice O’Connor’s Temporary Order because she views them as being “draconian”. She has been selective in her compliance with court orders and has tried to use the fact that the children are mature minors to excuse her non-compliance. She has behaved as though she has sole custody of the children, excluding Mr. Pascual from meaningful involvement in decision-making about important issues affecting them, despite a court order requiring joint decision-making.

24Regardless of the full extent of Ms. Pascual’s non-compliance, it would not be appropriate for me to grant the relief sought by Mr. Pascual, because preventing her from seeking child-support orders until such time as she complies with the outstanding orders against her would negatively impact the children’s rights.

25One of the core principles underlying our family law jurisprudence is that child support is the right of the child: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para.38. For that reason, the Ontario Court of Appeal has ruled that attempts to deal with misconduct by a recipient-parent should not interfere with the children’s right to ongoing child support from the payor-parent in the amounts required by the Federal Child Support Guidelines: Walsh v. Walsh, 2007 ONCA 218 at paras.6-8.

26The relief sought by Mr. Pascual is unavailable. I cannot bar Ms. Pascual from bringing her motion, since all of the relief sought by her relates in some fashion to child support. Mr. Pascual’s second motion is therefore dismissed.

MS. PASCUAL’S MOTION TO SET ASIDE THE TERMINATION ORDER

27There is no dispute about the relevant facts pertaining to Ms. Pascual’s motion to set aside Justice Bloom’s termination Order.

28Ms. Pascual was not present when the Order was made. I am satisfied by the evidence that she had a satisfactory reason for her absence. She was on vacation in Europe when the Notice of Motion was served on her in Brazil, so it did not immediately come to her attention. She was unrepresented and did not have sufficient time to retain and instruct counsel in Ontario prior to the motion hearing date. She did not have sufficient time to prepare, serve and file responding materials. On the day prior to the hearing, she wrote to the Applicant by email, requesting a one month adjournment, which Mr. Pascual ignored. Her request for an adjournment was not brought to Justice Bloom’s attention at the motion hearing. (Mr. Pascual explained that, based on the parties’ litigation history, he thought her requested adjournment was a bad faith delay tactic.)

29Based on these facts, I have jurisdiction pursuant to Rule 25(19)(e) of the Family Law Rules to set aside the Order of Justice Bloom: Gray v. Gray, 2017 ONCA 100 at paras. 26-29 and 31. I find that it is appropriate and just in the circumstances to do so.

30A fresh hearing on the merits of the motion brought by Mr. Pascual for termination of child support for LA is therefore required: Gray, at paras.26-29 and 31.

31The issues raised by Mr. Pascual’s motion to terminate support overlap with the issues raised by Ms. Pascual’s motion, so the hearing conducted on August 15, 2018 effectively addressed both motions. I will address both motions in my reasons below.

MS. PASCUAL’S MOTION TO INCREASE CHILD SUPPORT

32Mr. Pascual’s Notice of Assessment for 2016 states that his total income for that year was $99,548. The child support order made by Justice O’Connor on January 14, 2015 was calculated based on an annual income of $76,928.

33Ms. Pascual seeks a retroactive increase in child support commencing March 1, 2016, based on Mr. Pascual’s reported 2016 income of $99,548, without prejudice to her right to seek a further (retrospective and prospective) increase in child support once further income disclosure is obtained from Mr. Pascual.

34It is a settled principle of law that an increase in the payor-parent’s income constitutes a material change in circumstances that justifies a variation in the amount of child support: s.14 (a) of the Federal Child Support Guidelines. This principle is not disputed by Mr. Pascual, who is currently voluntarily paying child support for one his son LE based on an income of $99,548.

35Mr. Pascual’s obligation to pay child support for the parties’ adult daughter LA is in dispute and will be addressed later in these reasons. Retroactive child support (for both children) is also in dispute insofar as Mr. Pascual submits that the costs owed to him by Ms. Pascual should be set off against any amount of retroactive child support owed by him.

36Mr. Pascual was paying $1,132 in child support for both children, in accordance with Justice O’Connor’s Temporary Order, until May 12, 2017, when Justice Bloom terminated the child support with respect to LA. Mr. Pascual continued to pay child support for LE, but due to some confusion with the Family Responsibility Office regarding the effect of the termination order, Mr. Pascual’s payments for LE were not remitted by the FRO to Ms. Pascual during the months of May 2017 through to March 2018. Instead, the FRO held the money paid by Mr. Pascual, without either party’s knowledge. The parties subsequently agreed to have that money returned to Mr. Pascual (in an amount of $5,515.16) and Mr. Pascual transferred the total amount to Ms. Pascual on April 14, 2018. Since April 1, 2018, he has paid monthly child support directly to Ms. Pascual for LE in the amount of $906.16 (except in July 2018, when he was not required to pay any support).

37Ms. Pascual requests an order that Mr. Pascual be required to pay retroactive support for both children based on an income of $99,548 from March 1, 2016 to present. The total amount of retroactive child support requested (taking into consideration months when Mr. Pascual was not required to pay support pursuant to Justice O’Connor’s Temporary Order) is $12,649.99 up to August 2018. Ms. Pascual also seeks an order for ongoing child support for both children in the monthly amount of $1,410.80, subject to review once further income disclosure is obtained from Mr. Pascual.

38There is no dispute over the fact that Mr. Pascual was obligated to pay child support for both children up until his daughter’s 18th birthday in February 2017. Based on his 2016 income of $99,548, the Table amount for two children during the 12 month period from March 2016 to February 2017 was $1,410.80/month. He was not obligated to pay any support for the months of April, July and December 2016 (pursuant to Justice O’Connor’s Temporary Order). In fact, he paid $1,132/month for the remaining 9 months, in accordance with the Temporary Order, totalling $10,188.

39Ms. Pascual is entitled to an interim retroactive variation of Justice O’Connor’s Temporary Order to reflect the Table amount that accords with Mr. Pascual’s 2016 income, pursuant to the Federal Child Support Guidelines. Nine months of child support in the amount of $1,410.80 equals $12,697.20. The shortfall in the amount of child support paid by Mr. Pascual between March 2016 and February 2017 ($10,188) is therefore $2,509.20.

40Mr. Pascual therefore owes Ms. Pascual $2,509.20 in retroactive child support for the period from March 2016 to February 2017 inclusive.

MR. PASCUAL’S MOTION TO TERMINATE CHILD SUPPORT FOR LA

41Mr. Pascual’s obligation to pay child support for his son LE from March 1, 2017 to present and on an ongoing basis is not contested. Whether or not he is also obligated to pay child support for his daughter LA after February 2017 depends on whether she remains a “child of the marriage” within the meaning of the Divorce Act, R.S.C. 1984, c.3, despite having reached the age of majority: s.15.1 of the Divorce Act. For a child who lives outside of Canada, the “age of majority” is deemed to be 18 years of age: s.2 (1) of the Divorce Act.

42A child who has reached the age of majority remains a “child of the marriage” if she is under her parents’ charge and is unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life: s.2(1) of the Divorce Act. The pursuit of post-secondary education qualifies as an “other cause” that may prevent a child from withdrawing from her parents’ charge if she is unable, without her parents’ financial assistance, to pursue a reasonable course of education to improve her future prospects: Geran v. Geran, 2011 SKCA 55 at para. 15.

43Dependency is the key criterion for entitlement to support for a child over the age of majority. Ms. Pascual (the parent seeking child support) bears the onus of proving that LA is dependent and unable to withdraw from her parents’ charge: Haist v. Haist, 2010 ONSC 1283, at paras. 54-55. Relevant factors for consideration in deciding this question include:

(a) whether LA is in fact enrolled in a course of studies; (b) whether it is a full-time or part-time course of studies; (c) the cost of the particular course of studies; (d) whether or not she has applied for or is eligible for student loans or other financial assistance; (e) her age; and (f) her ability to contribute to her own support through part-time employment.

44If a young adult child is diligently pursuing full-time post-secondary studies in a suitable program and there is evidence establishing the need for support, there is a virtual presumption that child support should be provided for at least the period of an initial university degree or college diploma: Haist v. Haist, 2010 ONSC 1283 at para.54 and Galbraith v. Galbraith, 2018 SKQB 157 at para. 17.

45The parent seeking support for an adult child must, however, demonstrate that the child is diligently pursuing a suitable full-time course of studies: Galbraith, at paras. 18-19. Relevant criteria in making this determination include the child’s past academic success, her aptitude for the chosen course of studies, her attendance and the diligence with which she is pursuing the course of studies, and whether there is a reasonable likelihood that successful completion of the course of studies will result in gainful employment: Welsh v. Welsh, [1998] OJ No. 4550 (Ont. Ct. J.) at para. 32 and Galbraith, at paras. 18 and 19.

46Mr. Pascual in this case questions whether LA is in fact enrolled in a full-time course of post-secondary studies and whether she has a genuine financial need for ongoing support from her parents. He deposed that LA told him she was going to be working full-time and taking some evening courses. He submitted a screen-shot of her profile on the LinkedIn social media platform, which states “recepcionista na escolar de musica Equalize”. This suggests that LA is employed (or is at least representing on social media that she is employed) as a receptionist at a music school in Brazil. The date of the LinkedIn profile is unknown.

47Ms. Pascual filed an affidavit from LA, dated January 5, 2018, in which LA states that she has been unemployed since 2015 (her second to last year of high school), is a full-time student and devotes all of her time to her studies since she began at university in February 2017.

48Mr. Pascual questions the authenticity of LA’s January 5, 2018 affidavit. He submits that it is purportedly sworn by her, but is not signed by her. I agree with this submission. The affidavit appears to have been signed by Ms. Pascual. The signature actually reads “Simone Pascual”, resembles Ms. Pascual’s signature on other affidavits sworn by her, and bears no resemblance to LA’s signature on another affidavit dated October 17, 2017.

49LA’s January 5, 2018 affidavit cannot be admitted as evidence in this proceeding. I am unable to determine whether LA wrote the affidavit or even reviewed its contents, let alone swore them to be true. It would not be appropriate for the Court to rely on any of the evidence contained in the affidavit, given these very troubling irregularities.

50In her own affidavit, Ms. Pascual attached a document from the Pontifical Catholic University of Sao Paulo, which shows the courses in which LA was enrolled in the winter semester of 2017. The document is in Portuguese. Ms. Pascual submitted English translations, one done by LA and the other by a certified translator registered in the state of Sao Paolo, Brazil. Both translations include some obvious errors on their face, but I am nevertheless satisfied that the document confirms that LA was registered in a program of International Relations in the Faculty of Social Sciences at the Pontifical Catholic University of Sao Paolo in the winter of 2017. With the exception of one class on Saturday morning, all of her courses were scheduled at night.

51There is no similar document in the record with respect to courses taken by LA during later semesters in 2017 or in 2018, but Ms. Pascual filed other financial records from the same University, confirming the tuition payments made by her in respect of LA’s studies throughout this time period. There are some irregularities with these documents and with their English translations, but I am satisfied that they confirm that LA continues to be enrolled at the University. They do not, however, confirm that she is pursuing full-time studies.

52There is no evidence in the record regarding the number of courses taken by LA after the winter semester of 2017.

53There is no evidence in the record confirming that LA completed the courses in which she was enrolled. No transcript of her grades has been provided to Mr. Pascual or filed in the Court. There is no evidence of her academic progress.

54There is no explanation for why LA’s classes are virtually all scheduled in the evening. There is no reliable evidence regarding whether she is working during the day, what income she may be earning, and her capacity to contribute to the cost of her own education and living expenses.

55For these reasons, Ms. Pascual has not satisfied me of LA’s ongoing dependency and inability to withdraw from her parents’ charge. I therefore order that Mr. Pascual is not obligated to pay child support for LA beyond her 18th birthday in February 2017.

56To protect LA’s rights, I make this order without prejudice to Ms. Pascual’s ability to bring the issue back before the Court for a re-determination at trial with the benefit of additional evidence and cross-examination of witnesses.

57I note that, if Ms. Pascual brings the matter back before the court and it is determined that she is entitled to ongoing child support for LA, the amount of support will not necessarily coincide with the Table amount that would be payable for a minor child. The court has discretion to consider whether a different approach is appropriate, having regard to LA’s means, needs and other circumstances and the financial ability of each parent to contribute to her support: s.3(2)(b) of the Federal Child Support Guidelines.

MS. PASCUAL’S MOTION TO VARY CHILD SUPPORT FOR LE

58On an interim basis, Mr. Pascual’s child support obligations for LE, commencing March 1, 2017, will be calculated using his 2016 income of $99,548, because that is the most current income information available: s.2(3) of the Federal Child Support Guidelines. Based on this income, the Table amount of support owing for one child from March 1, 2017 until November 1, 2017 was $876/month. The child support Tables were amended on November 22, 2017. Effective December 1, 2017, the Table amount for one child (based on an income of $99,548) increased to $906.

59Taking into consideration the three months when Mr. Pascual was not obligated to pay any child support (in accordance with Justice O’Connor’s Temporary Order), the total amount of child support that he ought to have paid for LE from March 1, 2017 until August 1, 2018 is $15,102. In fact, he paid a total in child support of $11,404 during that time period, in accordance with Justice O’Connor’s Temporary Order and Justice Bloom’s termination Order.

60The shortfall in the amount of child support paid by Mr. Pascual between March 2017 and August 2018 is therefore $3,698. Ms. Pascual is entitled to an interim order for retroactive child support in this amount. This interim order may be reviewed and the amount of retroactive support may be adjusted after further disclosure is obtained from Mr. Pascual regarding his 2017 and 2018 income.

61Mr. Pascual is also ordered to pay ongoing child support for LE in an amount of $906/month (except in months excluded by Justice O’Connor’s Temporary Order). This interim order is subject to review after more recent income information is disclosed by Mr. Pascual.

OFFSET OF COSTS AGAINST RETROACTIVE CHILD SUPPORT

62As noted in paragraphs 40 and 60 above, Mr. Pascual owes Ms. Pascual retroactive child support in the total amount of $6,207.20. Mr. Pascual asks the Court to set-off the more than $98,000 in costs that Ms. Pascual owes him against this retroactive child support obligation.

63Canadian Courts have generally been reluctant to offset costs (or other debts between parents) against future child support payments, on the basis that child support is the right of the child: Richardson v. Richardson, [1985] O.J. No.243 (CA). In Jamieson v. Loureiro, 2010 BCCA 52, at para.57, Justice Kirkpatrick, writing for the British Columbia Court of Appeal, stated, “I am unable to conceive of a case in which set-off would be allowed against future child support.” The Nova Scotia Court of Appeal adopted a less rigid approach in Barkhouse v. Wile, 2014 NSCA 11 at paras.19-20, but nevertheless held that setting off a spousal debt (including costs) against child support obligations “is undesirable and only appropriate in exceptional cases”. A similarly cautious but discretionary approach was adopted by the Manitoba Court of Queen’s Bench in Perez v. Perez (1992), 43 R.F.L. (3d) 203 at para.12.

64In Ontario, the Court of Appeal ruled in Lutz v. Lutz, [1995] O.J. No. 963, at para.7, that a trial judge does not have jurisdiction to set off a debt owed by a recipient-parent to a payor-parent against future child support owing by the payor-parent. I am bound by this decision.

65However, the Ontario Court of Appeal has offset costs against child support arrears in several cases: Benson v. Krein, [1996] O.J. No. 2490 (C.A.) at para.10., Burisch v. Gosal, 2007 ONCA 569, at para.12, and J.(J.) v. C.(C.), 2017 ONCA 357, at para. 16.

66In Woo v. Chin, [2007] O.J. No.4590, at paras.57, Justice Herman explained that the distinction between ordering a set-off of arrears but not of prospective child support “derives from a consideration that, in the case of an award for arrears, the award may not directly benefit the child, but rather, may be compensation to the parent for expenses that have already been incurred.” Justice Herman held that the “same logic would apply to an order for retroactive support”. I agree with that statement, but the offset of costs against a retroactive order of child support must still be reserved for exceptional cases.

67In my view, this is an an exceptional case. The costs owing to Mr. Pascual are substantial (more than $98,000). They are in connection with litigation relating to child support (among other child-related issues arising out of the parties’ separation). Ms. Pascual’s unreasonable conduct is what led to the high costs award against her. Her failure to make any effort to comply with the costs Order constitutes continued unreasonable conduct. There is very little likelihood that Mr. Pascual will ever be able to recover the full amount (or any) of the costs owing to him.

68Mr. Pascual, on the other hand, has made all of his child support payments in accordance with Justice O’Connor’s Temporary Order and even increased the amount of his child support payments for LE on a voluntary basis, in accordance with the Federal Child Support Guidelines.

69Most importantly, there is no evidence that the children will be harmed or disadvantaged if Ms. Pascual’s debt for costs is set off against Mr. Pascual’s retroactive child support payments. In these circumstances, I find that it is appropriate to apply an equitable setoff. Mr. Pascual is therefore not required to pay anything to Ms. Pascual in respect of retroactive child support and Ms. Pascual’s debt to Mr. Pascual (for costs) is reduced by the amount of $6,207.20.

MS. PASCUAL’S MOTION FOR REIMBURSEMENT OF UNIVERSITY EXPENSES

70Ms. Pascual is seeking an interim order that Mr. Pascual reimburse her for 86% of LA’s university-related expenses and pay 86% of future university-related expenses based on his proportionate share of their combined incomes in 2016, without prejudice to her right to request an increased contribution from him once additional income disclosure is obtained. The university-related expenses include tuition fees and transportation fees. The total amount of reimbursement sought by Ms. Pascual is $10,312.52 for 2017 and $12,554.14 for 2018.

71Section 7(1)(e) of the Federal Child Support Guidelines stipulates that a child support order may provide for an amount to cover expenses for post-secondary education. The guiding principle in determining the amount of such an expense is that it should be shared by the spouses in proportion to their respective incomes after deducting the contribution, if any, from the child: s.7(2) of the Federal Child Support Guidelines.

72Notwithstanding this guiding principle, Justice O’Connor exercised his discretion and ordered that the parties would share equally the costs of the children’s s.7 expenses. He also ordered that any such expenses must be approved in advance in writing by the non-residential parent and that the party requesting reimbursement must provide official documents showing proof of payment as issued from the third party providers.

73Ms. Pascual is effectively seeking a variation of Justice O’Connor’s Temporary Order, to increase Mr. Pascual’s contribution from 50% to 86%. She has not established a material change in circumstances that would justify a variation. For that reason, her request for an increase in Mr. Pascual’s proportionate share of s.7 expenses is denied.

74Even if I were to entertain Ms. Pascual’s request for a variation of Justice O’Connor’s order to impose shared costs in proportion to the parties’ respective incomes, she has not made full disclosure of her income, as required by Justice O’Connor’s Temporary Order, and has not submitted evidence of LA’s ability to contribute to her own education expenses, so the parties’ proportionate shares of any s.7 expenses cannot be determined based on the existing record.

75Mr. Pascual submits that he should not be required to pay even 50% of the claimed university expenses for three reasons. First, he challenges the evidence relating to proof of payment of LA’s tuition fees and transportation costs. I am satisfied, despite some irregularities in the relevant documents, that the costs have been incurred by Ms. Pascual with financial assistance from her mother (LA’s grandmother), who swore an affidavit dated October 25, 2017.

76Second, Mr. Pascual argues that he did not approve these university costs in advance. Indeed, there is no evidence that he was consulted regarding the choice of University. He argues that the tuition fees are excessive for university studies in Brazil, though he submitted no evidence to support this argument.

77Third, Mr. Pascual argues that any contribution to LA’s university-related expenses would create hardship for him because of the difficult financial circumstances in which he finds himself as a result of Ms. Pascual’s failure to pay the costs she owes him.

78Section 7(1) of the Federal Child Support Guidelines stipulates that an order for post-secondary education expenses may be made “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.”

79While the pursuit of university studies is likely in LA’s best interest, there may be less expensive universities in Brazil that offer a similar program of study. The expenses incurred may not be necessary to promote her best interests. Moreover, the expenses may be unreasonable in relation to the parties’ means and ability to pay. These issues cannot be determined without additional evidence, including evidence of the parties’ 2017 and 2018 income and of LA’s own ability to contribute to the costs of her university-related expenses.

80LA’s affidavit dated October 17, 2017 provides evidence of funds in a Canadian Scholarship Trust Plan that are available to her (in the amount of $1,500/year). Apart from that, there is no evidence relating to LA’s income (if any) or access to bursaries, student grants or student loans.

81For all of the above reasons, Ms. Pascual’s request for a variation order requiring Mr. Pascual to reimburse her for 86% of LA’s university-related expenses is denied.

82Whether Mr. Pascual should be ordered to contribute 50% of the university-related expenses is an issue that needs to be tried. I am unable to make the necessary findings of fact based on the incomplete record before me and without the benefit of cross-examination of witnesses.

FINANCIAL DISCLOSURE

83In his Temporary Order dated January 14, 2015, Justice O’Connor ordered both parties to provide updated income disclosure to the other party each year, within 30 days of the anniversary of his Order, in accordance with the Federal Child Support Guidelines. The parties agree that updated income disclosure should be made by March 1st of each year.

84In her affidavit dated July 19, 2018, Ms. Pascual deposed that Mr. Pascual did not provide her with updated income disclosure by March 1, 2016. The evidence in the record proves otherwise. Mr. Pascual sent Ms. Pascual an email on February 13, 2016, attaching an excerpt from his most recent income tax return, showing his total income for 2014.

85Mr. Pascual advised the court that he was not aware that complete copies of his income tax return (with schedules) and Notice of Assessment were required to be disclosed. He is a self-represented litigant, so I accept this explanation, but I note that the Federal Child Support Guidelines require more fulsome income disclosure than what he provided.

86Ms. Pascual did not make any income disclosure by March 1, 2016. Since then, both parties have provided each other with limited income disclosure (in the form of Notices of Assessment or the equivalent document in Brazil), but they have not satisfied the full disclosure requirements of the Federal Child Support Guidelines and Justice O’Connor’s Temporary Order. The incomplete financial disclosure is one of the deficiencies in the record that impedes my ability to decide all the issues in dispute.

87The parties are therefore ordered to disclose to each other, by October 31, 2018, copies of the following documents:

(a) Their complete personal income tax return filed for each of the years 2014, 2015, 2016 and 2017, including all schedules and documents attached; (b) A copy of every Notice of Assessment and Notice of Reassessment (or equivalent documents in Brazil) received in respect of their personal income taxes for the years 2014, 2015, 2016 and 2017; (c) Mr. Pascual must provide Ms. Pascual a copy of his most recent paystub, showing his year-to-date earnings in 2018; (d) Ms. Pascual must provide Mr. Pascual documentation confirming her self-employment earnings to-date in 2018; and (e) Ms. Pascual must provide copies of her 2015, 2016 and 2017 business income tax filings and copies of the 2015, 2016 and 2017 Income Statements for her business in Brazil.

88Justice O’Connor’s Temporary Order with respect to ongoing disclosure remains in effect. For clarification, this means that the parties shall continue to disclose to each other, on an annual basis by March 1st of each year -- for as long as child support payments are being made by Mr. Pascual or contributions are being made by him to either of the children’s educational expenses -- a complete copy of their most recent income tax return (with all schedules and documents attached) and all not-previously-disclosed Notices of Assessment or Notices of Reassessment (or the equivalent documents in Brazil).

89Ms. Pascual must also disclose, by October 1, 2018, copies of LA’s 2015, 2016 and 2017 personal income tax returns and Notices of Assessment (or equivalent document in Brazil), as well as documentation confirming LA’s 2018 employment earnings (if any) to-date. I understand that LA’s consent is required in order for Ms. Pascual to obtain this documentation and disclose it to Mr. Pascual. It is Ms. Pascual’s obligation to obtain the requisite consent or to seek a court order dispensing with LA’s consent. Failure to produce LA’s income information may result in adverse inferences drawn against Ms. Pascual at trial.

NEXT STEPS

90Within 15 business days of receiving Mr. Pascual’s disclosure and in any event no later than November 21, 2018, Ms. Pascual must confirm in writing with Mr. Pascual whether she intends to proceed to a trial of any of the following issues: (1) a re-determination of whether she is entitled to child support for LA after February 2017 and if so, the amount of Mr. Pascual’s child support obligation, (2) whether Mr. Pascual should be required to pay half of LA’s university-related expenses and if so, how much he is required to reimburse her for expenses incurred to-date and (3) whether there should be a change to any of the interim child support orders that I have made based on Mr. Pascual’s updated income information.

91Within one week of receiving Ms. Pascual’s written confirmation of whether or not she intends to proceed to trial and in any event no later than November 28, 2018, Mr. Pascual must confirm in writing with Ms. Pascual whether he intends to proceed to trial on the issue of her alleged contempt of Justice O’Connor’s Temporary Order dated January 14, 2015.

92Once both parties have confirmed the scope of the issues to be tried, they shall endeavour to negotiate a timetable for the exchange of additional affidavit material and any other necessary steps to bring the matter to trial. If the parties are unable to agree to a timetable by December 14, 2018, either may write to the Court (with a copy to the opposing party) to request a teleconference call with me to set the timetable.

93The affidavits already filed by the parties and any additional affidavits filed in accordance with the timetable shall constitute the evidence-in-chief of the parties and of their witnesses (with the exception of LA’s January 5, 2018 affidavit, which is not admissible). The parties will have the right to cross-examine the opposing affiants at trial.

94It is imperative that the trial judge have a complete record in order to make the necessary factual findings and decide the remaining issues in dispute. Mr. Pascual, who is self-represented, is reminded that he must serve and file sworn affidavits containing any and all of the evidence on which he intends to rely at the trial. During the motion hearing, he misapprehended that he was giving evidence under oath when he was making submissions to the Court. Ms. Pascual’s counsel rightfully objected to him making submissions based on contested facts that are not in evidence. I explained the difference between sworn evidence (in an affidavit format or via testimony under oath in court) and argument or submissions made based on the evidence in the record.

95Nothing in these Reasons for Decision prejudices Mr. Pascual’s right to seek an order offsetting the costs owed to him by Ms. Pascual against any retroactive orders made against him at trial.

COSTS

96Costs are reserved to the trial judge.

97If both parties elect not to proceed to trial on the outstanding issues, they may make brief written submissions (no more than 2 pages) to me regarding costs of their motions. The submissions should be accompanied by an Outline of Costs and copies of any settlement offers made. In that event, Ms. Pascual must serve and file her costs submissions by December 14, 2018 and Mr. Pascual must serve and file his costs submissions by January 11, 2019.

Petersen J.