Court File and Parties
COURT FILE NO.: 374/96 DATE: 20181221 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Allison McAdams, Applicant – and – Joseph David Allen McAdams, Respondent
Counsel: James Jordan, for the Applicant David P. Gray, for the Respondent
HEARD: November 23, 2018
Reasons for Judgment
NICHOLSON J.
[1] This was a summary trial / focused hearing of a motion to change the Final Order of Ingram J. from July 5, 2000 brought by the Respondent, Joseph David Allen McAdams (“Respondent Father”) to terminate his child support obligation, and the responding claim by the Applicant, Allison McAdams (“Applicant Mother”) for a retroactive increase of child support and s. 7 expenses back to 2001.
[2] The Respondent Father was born August 8, 1963; and the Applicant Mother was born September 27, 1963. The parties were married on March 23, 1991, and they separated prior to December 1996. The parties were later divorced by way of a court order dated April 10, 2001.
[3] Three children of the marriage were born: Margaret McAdams (DOB May 14, 1992); Samantha McAdams (DOB January 9th, 1994); and Alexandra (aka 'Sydney') McAdams (DOB August 19, 1996). All three children were aged 18 years or over as at August 19, 2014.
[4] The November 9, 2000 Consent Order provided for monthly table amount support payments to the Applicant Mother for $698. No s. 7 Child Support Guidelines (“CSG”) expenses were ever ordered. The support order appears to have been made under the Divorce Act, 1985.
[5] Neither the Applicant Mother nor her legal counsel directed their attention to prospective s. 7 CSG expenses at the time of the November 9, 2000 Consent Order. Nor did the Applicant Mother ever consult or make any subsequent agreement with the Respondent Father about any s. 7 CSG expenses.
[6] Under the November 9, 2000 Consent Order, the Applicant Mother was obligated to inform the Respondent Father of the children's education, health, and welfare related information. She failed to do so.
[7] Despite his periods of unemployment and re-training, the Respondent Father's court-ordered support payments through the Family Responsibility Office (“FRO”) continued unchanged.
[8] The Applicant Mother concedes that the child support obligation terminated May 1, 2017 when the final child completed post-secondary education.
[9] The Respondent Father argues that the child support obligation should have ended when the youngest child turned 18 on August 19, 2014. He submits that this fact created a material change in circumstances in light of the fact that the final order made no provision for support beyond the age of 18 specifically.
[10] Once the last child turned 18 years of age, the Respondent Father began to inquire with the FRO and the Applicant Mother as to how he could terminate the November 9, 2000 Consent Order. He contends that he had extensive communication with the FRO about termination. At this point in time, he was unemployed and not able to commence the motion to change.
[11] In 2014, the Applicant Mother refused to engage with the Respondent Father or consent to a termination of the support. Ultimately, the Respondent Father commenced this motion to change in July 2017.
[12] The Applicant Mother’s first written request for contribution to s. 7 expenses or a variation of the child support in the final order was made in her pleadings in response to the Respondent Father’s motion to change.
[13] The Respondent Father claims the Applicant Mother never raised this issue with him whatsoever. The Applicant Mother’s best evidence is that she asked the Respondent Father each year for the first four to five years after the final order was made if he had filed his income tax return. She did not claim that she asked him for a copy. She said that his response was that it was none of her business and therefore she eventually stopped asking the Respondent Father about his income tax return around 2006.
[14] The 2000 Final Order was silent with regard to ongoing disclosure, periodic adjustment of child support, s. 7 expenses, and termination of child support.
[15] The Respondent Father paid the child support pursuant to the final order consistently until July 2015 when he terminated the payments based on his position that he had fully satisfied his obligations.
[16] He was advised by the FRO that a motion to change was needed in order to terminate child support and avoid continued enforcement of the order. As such, this motion to change was filed July 6, 2017.
[17] The Applicant Mother’s claim for retroactive adjustment of child support and her claim for s. 7 expenses was not made until after all children had become independent and were therefore no longer children of the marriage.
[18] Both parties confirm that the communication between them broke off between 2016-2017. This appears to have been a mutual decision.
[19] The Applicant Mother claims that she was not aware of the Respondent Father’s location to pursue any legal recourse against him. She was aware that he lived in the small town of Norwood, Ontario. As the child support was paid through the FRO, I find that the Applicant Mother could have quite easily located the Respondent Father’s specific address or requested that documents be served on the Respondent Father through the FRO. Although she claims that she did not have the financial ability to bring an application to vary support and/or seek s. 7 expenses, I find that she is an educated and resourceful individual who was capable enough to have brought the motion on her own as a self-represented litigant. Alternatively, she could have utilized her inheritance from her parents (approximately $200,000) to retain counsel to assist her. Ultimately, she did retain the same lawyer who represented her at the time the final order was made in 2000 to respond to the Respondent Father’s motion to change.
[20] Although the Applicant Mother contended in her affidavit evidence that the Respondent Father has had no relationship with her or the children for approximately ten years, the oral evidence given by both parties confirms that the Respondent Father has maintained some degree of communication with the children throughout the period of time since separation.
[21] Pursuant to the terms of the final order, the Applicant Mother was required to provide the Respondent Father with all medical, academic, and extracurricular information regarding the children. She failed to do so. The first time the Applicant Mother provided any information to the Respondent Father regarding the children’s post-secondary education or other s. 7 expenses was in response to this motion to change.
[22] The Respondent Father’s income has increased significantly since the date of the final order. The child support of $698 per month for three children was based upon an income of $37,000. His income has recently increased to $117,000 in 2016 and $126,000 in 2017.
[23] Based upon the Respondent Father’s position that a new adjustment should be made to the child support and that his obligation should have been reduced and then terminated as each child reached the age of 18, he calculates that he has overpaid child support by $272.29.
[24] Based on the Applicant Mother’s position that child support should have been adjusted annually to reflect the Respondent Father’s income since the final order in 2000, she calculated that the Respondent Father has underpaid child support pursuant to s. 3 of the child support guidelines by $92,206.
[25] In addition, the Applicant Mother claims that the Respondent Father’s share of the s. 7 expenses that she incurred for the children since 2001, including orthodontics costs, costs of traveling with sports teams, and post-secondary education costs is $44,890.
Issues
[26] Is the Applicant Mother entitled to bring a claim for a variation of the final order and retroactive readjustment of the child support under s. 3 of the child support guidelines?
[27] Is the Applicant Mother entitled to bring a new claim for s. 7 expenses that were not included in the final order?
[28] What amounts, if any, are owed by one party to the other for underpayment/overpayment of child support under s. 3 and/or s. 7 of the child support guidelines?
The Law
[29] Section 17(1) of the *Divorce Act*, R.S.C. 1985, c. 3 (2nd Supp.) gives courts of competent jurisdiction the discretion to (either retroactively or prospectively) vary, rescind, or suspend a support order or any provision thereof.
[30] Section 17(4) of the *Divorce Act* requires that the court first determine that there has been a change in circumstances since the last order that was made before varying an existing order.
[31] S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 87 - 89 (“D.B.S.”) states that a court has no jurisdiction to hear an application for retroactive child support under the Divorce Act, s. 15.1(1), once a child of the marriage has become an independent adult and is no longer a ‘child of the marriage.’
[32] To make an application for a retroactive original child support order under s. 15.1(1) of the Divorce Act, the child(ren) in question must still be ‘children of the marriage’ at the material time when the application is made. The material time is not the time period to which any support order would have corresponded: D.B.S., at paras. 88 - 89.
[33] D.B.S. sets out a number of factors for the holistic determination of whether an application for retroactive variation of a child support order should be granted. No single factor is decisive. Those factors comprise: unreasonable delay by a recipient parent in seeking an increase; blameworthy conduct by a payor parent; no discernible benefit to the child; and hardship to the payor: at paras. 5, 95, 99 – 116, 133.
[34] D.B.S. sets out a system by which to determine the amount of any retroactive child support award, based essentially on effective notice. A prolonged period of inactive conduct by the recipient after giving effective notice may indicate that the payor’s reasonable interest in certainty has returned. Any retroactive awards are generally to be made on a three-year basis and the amount of any award should fit the circumstances and should be fair: at paras. 117 – 130, 134.
[35] Court orders for certain amounts of child support are presumed to be valid, in order to maintain certainty and respect for the legal system. A payor parent who diligently pays the child support amount ordered by a court must be presumed to have fulfilled their support obligation towards their children: D.B.S., at paras. 65 and 74.
[36] A recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that their support obligations have been met.
[37] Parents should not have the impression that child support orders are set in stone…there is always the possibility that orders may be varied when underlying circumstances change…the certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support: D.B.S., at para. 64.
[38] D.B.S. states that a support payor who does not automatically increase support payments is not necessarily engaging in blameworthy conduct: at para. 108.
[39] Colucci v. Colucci, 2017 ONCA 892, 138 O.R. (3d) 321 stands for the proposition that the test for a court’s jurisdiction to vary an existing order through s. 17(1) of the Divorce Act is different to the test used to make or vary an original order under the Divorce Act, s. 15.1(1). The court’s jurisdiction in s. 17 is not limited by the definition of a ‘child of the marriage’ in s. 2(1): at paras. 13, 14 and 19.
[40] Where there has been a ‘material’ change in circumstances, therefore, the Ontario Superior Court of Justice has jurisdiction under the Divorce Act to retroactively vary or discharge an existing child support order, per s. 17(1), even if the application has been made after the children are no longer ‘children of the marriage’: Colucci, at paras. 11, 14, 22 and 30.
[41] Colucci further stands for the proposition that a court may not only increase but also that it may decrease an existing child support order, even though the children of the marriage are now independent adults: at paras. 19, 21, 24 and 27.
[42] Diaz v. Pena, 2016 ONCJ 88 and Gough v. Blanchard, 2017 ONSC 523 stand for the proposition that the ‘D.B.S.’ principles also apply to each type of child support (namely, s. 3 CSG Table support and s. 7 CSG expenses) to determine whether there should be a discretionary retroactive variation: Diaz, at para. 109; Gough, at para. 7.
[43] Gough stands for the proposition that retroactive s. 7 CSG expenses variations of child support orders are predicated on an extant child support order for the same s. 7 relief: at paras. 2 and 12.
[44] Gough also confirms that the court has no jurisdiction to entertain a new application for child support after the children are no longer children of the marriage: at paras. 12 and 14.
[45] In Gough, the children had attended university despite the absence of s. 7 CSG expense payments from the Respondent Father (which expenses had never been ordered) and the court held that, consequently, a retroactive variation on this ground was now ‘history’ as the children were independent adults: at para. 16.
Analysis
[46] I am satisfied that a material change in circumstances has occurred as a result of the Respondent Father’s significant increase in income and as a result of the termination of the dependency of the children. As such, the court can consider a variation of the final child support order made under s. 17 of the Divorce Act.
[47] According to the Ontario Court of Appeal in Colucci this court does have jurisdiction to vary a final order notwithstanding the fact that the children were no longer children of the marriage. The variation claims made by each of these parties were brought before the court in the context of a motion to change.
[48] I am required therefore to consider the factors outlined by the Supreme Court of Canada in the D.B.S. case.
[49] First of all, I do find that the Applicant Mother was unreasonable in delaying the commencement of her claim for a variation of support and her new claim for s. 7 expenses. I do not find that her question of the Respondent Father (whether he filed his income tax return asked once a year for the first four or five years after the final order was made) constituted sufficient notice to him of her intention to review the child support. I also do not accept her explanation for failing to commence legal proceedings. With some effort, she could have quite easily located the Respondent Father or requested service of court documents on him through the FRO. Even if she could not afford legal fees for a lawyer to represent her, she had the wherewithal to represent herself if she had genuinely desired to review the child support provisions.
[50] On the other hand, however, I also find that the Respondent Father was blameworthy in not taking steps to voluntarily disclose his increased income and increase the child support payments in light of his significantly increased income. Overall, his income has increased from $37,000 to $127,000. However, the increases in the first ten years were more modest. During that time, his income did not exceed $70,000. The Respondent Father’s expectation that, the child support was “written in stone,” was unreasonable. He was represented by counsel at the time the final order was made and should have reasonably understood that circumstances may change, creating a variation of the child support.
[51] As I consider the potential benefit to the children of a retroactive adjustment to support, I am aware of the fact that the children are no longer legally dependent. However, two of the children continue to reside with the Applicant Mother and only one of them is employed on a part-time basis. The other is unemployed. The independent child has debt resulting from post-secondary education in excess of $53,000. The Applicant Mother indicated in her evidence that she would share with the children any money recovered as a result of these proceedings. I find that an order that the Respondent Father pay a retroactive readjustment to the Applicant Mother for child support will potentially benefit the children.
[52] Whether a lump sum retroactive payment would create a potential hardship to the Respondent Father depends on the amount of the payment required from him. I find that a modest payment from him to the Applicant Mother will not present significant hardship to him due to the fact that he is currently employed full-time and earning income of approximately $127,000. Clearly the payment requested by the Applicant Mother of more than $130,000 would result in hardship.
[53] Taking a holistic approach to these circumstances, it is my view that it would be appropriate to calculate a readjustment of the child support obligation by the Respondent Father for a period of three years prior to the commencement of this motion based upon his income during those years.
[54] I am unable to accept either of the parties’ calculations of the retroactive support obligation as both in my view include some fundamental errors. The Applicant Mother’s calculations include inappropriately an RRSP withdrawal by the Respondent Father in a year he experienced some unemployment. This was a one-time pay out and in my view should not be included in his income for the purpose of calculating his support obligation.
[55] The Respondent Father also, in my view, erred by deducting employment income from his income to calculate child support and, more significantly, he reduced his s. 3 support calculations because two of the children lived away from home during periods of post-secondary education. I do not accept his argument that s. 3(2)(b) comes in to play in the circumstances given the fact that he was paying no amount toward the post-secondary expenses under s. 7 of the guidelines.
[56] As such, I find that the Respondent Father underpaid his support obligation to the Applicant Mother in the three years prior to the commencement of this motion to change in the amount of $25,000. This payment shall be made to the Applicant Mother in the next 90 days.
[57] With regard to the Applicant Mother’s claim for s. 7 expenses, I have considered the Colucci and Gough cases and conclude that, although a retroactive variation of an existing order is permitted after children are no longer children of the marriage, the same rule does not apply to a new claim for relief. In this case, the Applicant Mother’s claim for s. 7 expenses is brand new. There was no provision in the final order for s. 7 expenses and she never raised this issue with the Respondent Father. She did not even inform the Respondent Father of the academic or extracurricular activities of the children, let alone seek his contribution to the expenses. The D.B.S. principle therefore applies and the court does not have jurisdiction to consider this new claim by the Applicant Mother for s. 7 expenses because the children were no longer children of the marriage at the time she brought forth her claim.
[58] If counsel cannot agree on costs, the Respondent Father will file submissions within 14 days and the Applicant Mother within 21 days. The cost submissions will not exceed five pages, excluding offers to settle and bills of cost.