Court File and Parties

COURT FILE NO.: 97-FA-6049 DATE: 20190405 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.M.D. Applicant – and – J.A.H. Respondent

COUNSEL: Julie A. Layne, for the Applicant Martha McCarthy/Maureen Edwards, for the Respondent

HEARD: February 19, 2019

Nakonechny, E. L., J.

REASONS FOR DECISION

[1] The Applicant brings this motion for the following Orders:

a. That the Respondent pay interim child support in the amount of $4,000 per month for the child, S.H., born […], 1995 (age 24) (“S.H.”) commencing January 1, 2017;

b. That the Respondent pay S.H.’s outstanding and ongoing university costs and the costs of ongoing weekly counselling commencing immediately;

c. That the Respondent pay the Applicant $85,000 as preliminary interim costs to retain counsel;

d. That the Respondent pay the Applicant $10,000 as preliminary interim disbursements to retain an expert;

e. That the Respondent produce outstanding disclosure requested within 30 days.

[2] The Respondent brings a cross motion for the following Orders:

a. That a psychological assessment be conducted of S.H. by Dr. Graham Glancy on or before April 30, 2019;

b. That if S.H. does not consent to the order set out above, that she be added as a party to the motion and/or the proceeding and attend for the psychological assessment as requested above;

c. Dispensing with service of the motion on S.H. as she has effective notice of the contents from the Applicant;

d. That S.H. produce certain medical, financial and other disclosure requested at least fourteen days before the assessment by Dr. Glancy;

e. That the Applicant produce financial disclosure requested within 30 days;

f. Leave for questioning of both parties for seven (7) hours each;

g. That all documents pertaining to the Respondent’s investments in cryptocurrencies be filed under seal and/or be partially redacted;

h. That the Applicant’s motion be dismissed or adjourned to be heard before the trial judge.

[3] Prior to the hearing of the motion I was advised by counsel for the Applicant that, after the Applicant was served with the Respondent’s Amended Notice of Motion dated February 8, 2019, S.H. sought to retain her own counsel to address the new relief which was sought against her personally and the ensuing privacy issues raised by that relief. Mr. Chris Mamo of Niman Gelgoot and Associates attended to advise that his firm had just become involved with the file on February 13, 2019, with a view to being retained by S.H. and that he was not in a position to make formal submissions.

[4] The Applicant sought an adjournment of the Respondent’s request that a psychological assessment of S.H. by Dr. Graham Glancy be ordered to permit S.H. to retain and instruct counsel.

[5] Mr. Mamo was not able to stay for the hearing of the motion.

[6] Ms. McCarthy raised three preliminary objections at the outset of the motion:

i. The Applicant’s Affidavit sworn February 6, 2019 should be struck because it was served outside of the timetable agreed upon and because it was not a proper reply Affidavit but rather an attempt by the Applicant to “split” her case;

ii. The letter dated December 11, 2018 from Dr. Miriam Moss attached as Exhibit F to the Applicant’s Affidavit sworn January 16, 2019 should be struck because it is hearsay and of dubious origin; and

iii. That the Applicant’s request to adjourn the determination of whether S.H. should be examined by Dr. Glancy until she retains counsel should be dismissed.

[7] Ms. Layne responded to these objections as follows:

i. The Applicant’s February 6, 2019 Affidavit contained important updating information, some of which was not available when the Applicant’s prior Affidavits were sworn. S.H.’s mental health and state of mind are dynamic and new information had arisen. S.H. had subsequently agreed that the Applicant could produce documents from Y[…] University relating to her academic accommodations;

ii. The December 11, 2018 letter from Dr. Moss, although it may be hearsay, could be admitted as evidence on an interim motion. The Respondent was aware of S.H.’s mental health issues from the evidence set out in the Applicant’s Affidavit sworn November 16, 2018. He did not object to the note from Dr. Moss dated October 31, 2018 in essentially the same format which appears as Exhibit L to the Applicant’s Affidavit sworn November 16, 2018 or reference his opposition to the letter in his Notice of Motion or his Affidavit sworn December 21, 2018;

iii. The Respondent served an Amended Notice of Motion dated Friday February 8, 2019, which raised new and significant relief sought against S.H. personally. These new claims, which include the request to add S.H. as a party to the motion, were served at the last moment before the filing deadline agreed to by counsel. S.H. was entitled to retain counsel to determine her response to the claims and did so with all dispatch.

[8] Both parties filed extensive Affidavits, Factums and Briefs of Authorities on this day long motion. Rule 2 of the Family Law Rules, O. Reg. 114/99 instructs the Court to deal with cases fairly in a way that is appropriate and an efficient use of the Court’s resources. I found that it would be most efficient for the parties and the best use of the Court’s resources to proceed with the hearing of the long motion and to make findings on the preliminary matters as part of my decision.

Background

[9] The parties began cohabiting in May 1994. The Respondent had a child, F., from a previous marriage, who resided with them.

[10] The parties’ child, S.H. was born […], 1995.

[11] The parties separated on March 30, 1997. In April 1997 the Applicant commenced a proceeding in the Ontario Court of Justice claiming custody of and child support for S.H.

[12] The parties consented to an interim interim Order of Bean J., dated April 25, 1997 (“the Order”) which required the Respondent to pay child support for S.H. in the amount of $1,200 per month. The Order was made prior to the enactment of the Child Support Guidelines so the child support paid was, and continues to be, taxable to the Applicant and tax deductible to the Respondent.

[13] The file was ultimately transferred to the Ontario Court (General Division).

[14] In 1998 the Respondent attempted to vary the Order to change the amount of child support payable by him. This motion was dismissed by O’Connell J.

[15] As a result of a motion brought by the Applicant in 1999, the Respondent’s overnight access to S.H. was suspended and his access was reduced by Order of O’Connell J. In October, 2001, Backhouse J. increased the Respondent’s access to weekend access, including increasing overnights over a period of time.

[16] The next activity in the file was in 2006 when then counsel for the Respondent, Tami Waters, corresponded with the Applicant regarding the Respondent’s access to S.H. No court appearances came of that correspondence.

[17] The Applicant states that at that time she was emotionally and financially exhausted and unable to continue with the litigation. She states that the Respondent failed or refused to provide full financial disclosure requested and that she did not have the ability to continue to fight with him about it. She was occupied with caring for S.H., a second child of her new relationship and ailing family members. She had financial help from a friend and her partner and was able to cover her family’s living expenses, which she says are modest.

[18] The Applicant states that it was only in 2017 that she learned that the Respondent was worth “millions of dollars”. Then she sought to return the child support matter to court.

[19] The Respondent states that he has paid child support pursuant to the Order consistently to date either through the Family Responsibility office or directly to the Applicant if she requested. He states that he retained Ms. Waters because the Applicant was denying his access time with S.H. It is the Respondent’s position that he sought a parenting assessment to regularize his time with the child, not in response to the financial requests of the Applicant.

[20] The Respondent states that he made all requested financial disclosure in the litigation. When the litigation became dormant, the Applicant did not request financial disclosure from him. He states that the Applicant never made a request to increase child support or for contribution to education costs until about December 2017. She did not re-commence the litigation until July 2018 when she served a Fresh as Amended Statement of Claim.

S.H.’s Circumstances

[21] The Applicant states that S.H. has struggled with mental health issues since she was about 13 years old. She has been diagnosed with Bipolar Disorder, Borderline Personality Disorder and Generalized Anxiety Disorder. S.H. underwent brain surgery for Arnold Chiara Malformation in 2014.

[22] The Applicant alleges that the Respondent has been emotionally abusive to S.H. and dismissive of her mental and physical health issues, which have exacerbated her condition. She states that the Respondent’s behaviour towards S.H. has put a strain on the relationship between father and daughter. This has become worse as S.H. has gotten older and refused to submit to what the Applicant portrays as the Respondent’s bullying of S.H.

[23] The Respondent blames the Applicant for his strained relationship with his daughter. He says that the mother’s behaviour has been alienating and that she did not facilitate his access to the child. The Respondent states that the Applicant made false allegations about his parenting abilities and behaviour toward S.H. to the Children’s Aid Society, the parenting assessor and others. The Respondent denies what he says are false allegations by the Applicant.

[24] The Applicant states that after 2007, the Respondent only exercised access to S.H. a few times per year. The Respondent states that the Applicant was dishonest and breached her duty to ensure that his parenting time took place and was meaningful.

[25] S.H. is now 24 years old. She does not speak to her father.

[26] S.H. first attended post-secondary education in 2014 in the S[…] College “L[…] Transfer Programme”. This programme was to assist students in transitioning from high school to post-secondary education.

[27] S.H. now attends Y[…] University part time in her third year of a Bachelor of Arts programme in the Faculty of Health. Her S[…] College credits were transferred to Y[…] and will count toward her final undergraduate degree.

[28] The Applicant states that S.H. is attending university part time due to her disabilities. She has applied for and receives academic accommodations for test and exam taking and classroom attendance including a reduced course load and flexibility with assignment deadlines.

[29] The Applicant anticipates that S.H. will complete her B.A. at Y[…] in or around June 2020.

[30] The Respondent takes the position that S.H. is no longer a child entitled to support as defined in s. 31(1) the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) and is not eligible for ongoing child support. He states that the fact that she has academic accommodation to attend part time at Y[…] is not evidence that S.H. is disabled or unable to withdraw from parental charge as required in s. 31(1)(c) of the Family Law Act.

[31] The Respondent says the Applicant has failed to provide any medical or other evidence to show that S.H. cannot enrol in full time studies or that S.H.’s mental or physical health issues alleged by the Applicant prevent her from attending school full time.

[32] The Respondent argues that the Applicant has provided no evidence that S.H. has applied for or received any financial assistance for her education costs or that she has applied for or received disability benefits from the government.

[33] As set out above, the Respondent states that the December 11, 2018 letter provided by S.H.’s family doctor, Dr. Moss, and the information provided by S.H.’s psychiatrist, Dr. Wong, to Y[…] University in support of the request for academic accommodation are not admissible evidence. He further argues that, even if admissible, the medical documentation does not prove a causal nexus between the alleged disability and the inability of S.H. to withdraw from parental charge.

[34] The Respondent seeks disclosure of S.H.’s medical records and that she attend for a medical assessment with Dr. Graham Glancy. He states that this is the only way he will have the proper evidence to determine whether S.H. remains a child of the marriage eligible for child support.

The Applicant’s Financial Circumstances

[35] The Applicant states she has struggled financially over the years. She is unemployed and has few assets. She has no income other than the $1,200 per month taxable child support she receives from the Respondent.

[36] The Applicant states that she has used her savings and relied on financial assistance from her friend, G.H., and her partner, C.B., to pay for her and S.H.’s living expenses, S.H.’s education and this litigation. She has a small amount of funds coming from an inheritance from her late mother’s estate and an anticipated tax refund from Canada Revenue Agency (“CRA”).

[37] The Respondent questions the accuracy of the Applicant’s Financial Statement sworn in this proceeding, which claims annual expenses of $72,822 per year but does not list any significant debt or loans from Mr. G.H.. The Respondent states that the Applicant has failed to show that S.H.’s past or current financial needs were not or are not being met.

[38] The Applicant claims that she requires an interim payment by the Respondent to assist with payment of her existing and go forward legal fees as well as the retention of an expert to review the income valuation being prepared by the Respondent’s expert. She accuses the Respondent of “aggressive litigation tactics” both historically and now and says that without this financial assistance she will be unable to pursue this litigation. The Respondent’s “tactics” will then have succeeded.

[39] The Respondent denies any “aggressive tactics”. He states that he has, in fact, continued to pay child support pursuant to the Order even though he has almost no contact with S.H. and does not believe she is entitled to receive support.

[40] The Respondent believes that the Applicant has the ability to continue to fund the litigation through her own resources. He states that the amount of disbursements claimed for legal fees are excessive and show that the Applicant, herself, intends to unnecessarily protract the litigation. He asks that this Court not give the Applicant the financial ability to do that.

The Respondent’s Financial Circumstances

[41] The Respondent is self-employed. He operates a production company which produces described video for the deaf and hearing impaired. His Line 150 income disclosed for the last three years is as follows: 2015 - $225,000, 2016 - $249,000, 2017 - $3,028,415. The substantial increase in the 2017 income arises from the Respondent liquating capital, which resulted in a capital gain of about $2.8 million. The Respondent states that his income from self-employment in 2017 was $172,000. There is no explanation for the reduction from the prior years’ self-employment income.

[42] The Applicant argues that the Respondent’s gross earnings from his solely owned business were between $600,000 and $1,000,000 and that he has been under reporting his income to the CRA.

[43] The Applicant also points to the Respondent’s investment in cryptocurrency, which is valued at about $10 million. She asks that the court attribute interest income to this investment in determining the Respondent’s income. She questions the Respondent’s failure to provide actual evidence of the value of this investment and seeks production of unredacted statements of the Respondent’s cryptocurrency holdings.

[44] The Respondent advises that he has or will produce the relevant documents available to him evidencing his bitcoin investments. However, he states that he does not have records of historical transactions and that evidence of the transactions themselves exist only at the time of exchange. Bitcoin “accounts” are not held by third parties like bank accounts and therefore, he says, the account documents listing transactions cannot be produced like traditional bank accounts.

[45] The Respondent resists providing unredacted documents because of what he says are the unique security risks that surround bitcoin and other like investments. He states that the disclosure of his investment information in the public domain could result in cyber theft or devaluation of the asset. If he is not permitted to produce redacted documents, the Respondent requests a sealing Order to protect his cryptocurrency investments from possible unlawful access.

Preliminary Matters

i. Should the Applicant’s Affidavit sworn February 6, 2019 (“the February Affidavit”) be struck because it was served outside of the timetable agreed upon and because it was not a proper reply Affidavit under Rule 14(20) of the Family Law Rules?

[46] The Applicant’s counsel argued that the Affidavit sworn February 6, 2019 was served to provide new facts relating to S.H.’s mental health status and to provide documents regarding S.H.’s academic accommodation at Y[…] University, which were available previously but for which the Applicant had only recently received S.H.’s permission to release.

[47] The Respondent’s counsel argues that the Applicant could have put most of the evidence in the February Affidavit in her prior Affidavits sworn November 15, 2018 and January 16, 2019. The February Affidavit, counsel argues, is a breach of Rule 14(20) of the Family Law Rules and should not be admitted as evidence.

[48] The Respondent’s counsel argued that Applicant’s counsel had essentially conceded to the Affidavit being struck as she had not referred to it in her argument.

[49] I find that much of the evidence contained in the February Affidavit was or could have been known to the Applicant at the time she swore her two prior Affidavits. However, I accept the Applicant’s evidence that while the information attached as Exhibit “A”, “B” and “C” to the February Affidavit, which relates to S.H.’s attendance at Y[…] University and her academic accommodation, may have existed at the time her prior Affidavits were sworn, she did not have S.H.’s permission to disclose it until after her reply Affidavit was sworn on January 16, 2019. That evidence is relevant to the issues in this interim motion and I will permit it into evidence.

ii. Should the letter of Dr. Miriam Moss dated December 11, 2018 attached as Exhibit F to the Applicant’s Affidavit sworn January 16, 2019 (the “Dr. Moss letter”) be struck because it is hearsay, of dubious origin, and was produced without the enclosures referred to in it?

[50] The Dr. Moss letter was attached to the Applicant’s Affidavit sworn January 16, 2019. In his Affidavit sworn January 25, 2019, the Respondent does not take issue with the Dr. Moss letter. In fact, he admits that he is aware that S.H. struggles with mental health issues, although he does not believe the issues prevent her from withdrawing from parental charge.

[51] Rule 14(18) of the Family Law Rules states that an affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

[52] Rule 14(19) further provides that:

The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

[53] The Dr. Moss letter has some formatting and clerical problems. The enclosures (consults with details of history and treatment and symptoms) referred to in the letter were not attached. These are the medical records the Respondent seeks disclosure of from S.H. which she has not yet agreed to produce.

[54] The Respondent requests that the Applicant be required to provide disclosure regarding S.H.’s medical history and conditions. Under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, S.H.’s health information can only be disclosed with her consent. The Applicant cannot produce that information to the Respondent without S.H.’s written authorization.

[55] Section 23(1) of the Personal Health Information Protection Act provides:

Persons who may consent:

23(1) If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:

1. If the individual is capable of consenting to the collection, use or disclosure of the information,

i. the individual, or

ii. if the individual is at least 16 years of age, any person who is capable of consenting, whom the individual has authorized in writing to act on his or her behalf and who, if a natural person, is at least 16 years of age.

[56] It is the Applicant’s evidence that S.H. has not yet consented to the release of the medical disclosure sought by the Respondent. She has, apparently, agreed to the release of the information contained in the letters of Dr. Moss and the information provided by Dr. Wong to Y[…] University as part of the application for academic accommodation.

[57] Although the Applicant cannot be ordered to disclose S.H.’s medical information, it is crucial to proving her claim that S.H. is entitled to continue to receive child support.

[58] Based on my review of the case law and reasons set out in detail below, I find as a preliminary matter, that the Dr. Moss letter is admissible as evidence, subject to the weight to be given to it.

iii. Should the Respondent’s motion that S.H. be examined by Dr. Graham Glancy be adjourned until S.H. can retain counsel?

[59] Mr. Mamo, counsel from Mr. Niman’s office, attended at the commencement of the motion to advise that his office had been retained to represent S.H. to respond to the Respondent’s claims for production of her medical records and for an order directing that S.H. attend a medical assessment with Dr. Graham Glancy. Mr. Mamo was not in a position to make formal submissions.

[60] The Saskatchewan Court of Queen’s Bench refused to order a child to submit to a defence medical examination in L.(H.N.M.) v. L.(C.P.J.), 2010 SKQB 456. The mother claimed that the child, R.L., was unable to withdraw from the charge of his parents due to a sensory integration dysfunction disorder that necessitated homeschooling. The child was 18 and the mother predicted that he would complete Grade 12 within three years. The father was not convinced that the child had a diagnosable disability, and requested a court order authorizing a neuropsychological assessment of R.L.

[61] The court concluded that it did have inherent jurisdiction to make such an order against a non-party child. “It would be an affront to common sense and contrary to the proper administration of justice to permit a non-party adult to stand before the court and assert that the court has no jurisdiction to order him to provide information critical to the determination of his entitlement to financial benefits and then ask the court to exercise its power in favour of compelling another to pay money for his benefit. The court must have authority to ensure justice can be done”: para. 18.

[62] Even if I have jurisdiction to order that S.H. submit to a medical assessment, I must consider that the request for the medical assessment as well as the request to add S.H. as a party was only served in the Respondent’s Amended Notice of Motion dated February 8, 2019.

[63] S.H. is 24 years old and suffers from mental health issues including anxiety disorder. The request for the medical assessment carries serious privacy concerns for her. The request to add her as a party to this action may also have a serious impact on her well-being. I find that S.H. should have an opportunity to consult counsel and receive independent legal advice so that she can determine how to respond to the claims made against her in the Respondent’s Amended Notice of Motion, including the request for production of her medical records, in a fully informed way.

[64] There is no urgency to the medical assessment by Dr. Glancy. There is no prejudice to the Respondent if this part of his motion is adjourned to permit S.H. time to retain counsel and, after taking advice, instruct counsel to respond to the Respondent’s claims for her medical information and the medical examination.

[65] I order that the relief sought in paragraphs A, B, C and D of the Respondent’s Amended Notice of Motion dated February 8, 2019 are adjourned without prejudice to permit S.H. to consult with counsel and respond to the Respondent’s counsel within 30 days of the release date of this Order. If a return of the motion on these issues is required, it shall be brought back on a long motion of two hours on date to be agreed upon by counsel and the trial coordinator before me if available.

Interim Child Support for S.H.

[66] The Applicant argues that although S.H. is 24, she is unable to withdraw from parental charge because she is enrolled in post-secondary education. While it is acknowledged that S.H. is not enrolled in a full time programme of education, the Applicant argues that she is attending school within her particular ability to do so, based on her physical and mental health challenges.

[67] The Respondent argues that the Applicant has not provided any cogent evidence about the child’s disability or illness or proof that it is impacting upon her ability to attend school full time. Counsel states that the Applicant has failed to meet her onus to prove that S.H. is unable to withdraw from parental charge and says S.H. is not entitled to ongoing support.

Change in Circumstances

[68] The Applicant seeks a variation of the Order to change the quantum of interim child support payable by the Respondent for S.H. Under s. 37(2.1) of the FLA, if a court is satisfied that there has been a change in the circumstances within the meaning of the Child Support Guidelines or that evidence not available on a previous hearing has become available, the court may vary a term of the order prospectively or retroactively.

[69] Interim Orders should not be varied unless there has been a substantial change in circumstances: Biddle v. Biddle (2005), 13 R.F.L. (6th) 63 (Ont. S.C.J.) at para. 18. There have been a number of significant changes which have occurred since the Order was made in 1997, over 20 years ago, including the increase in the Respondent’s income, S.H.’s increasing age, physical and mental health issues and her attendance at post-secondary education. I find it is reasonable to consider whether a variation of the Order is appropriate based on the changes in circumstances of the Respondent and S.H.

Impact of Amendments to the FLA

[70] Section 31(1) of the FLA provides that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who

(a) is a minor;

(b) is enrolled in a full time programme of education; or,

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents

[71] The Family Law Act was amended by Bill 113 2017 “An Act to amend the Family Law in respect of support for adult children”, effective December 14, 2017. This amendment broadened the definition of a child entitled to support in the FLA to accord with the definition of “child of the marriage” in s. 2(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).

[72] The previous version of s. 31 read:

Obligation of parent to support child

31(1) Every parent has an obligation to provide support for his or her child who is a minor or is enrolled in a full time programme of education, to the extent that the parent is capable of doing so.

31(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[73] Counsel for the Respondent argued that cases decided prior to the amendment should be distinguished. These cases had developed a reading of s. 31(1) which allowed that a “full time programme of education” included part time programmes, as long as the child was diligently pursuing studies to the best of the child’s abilities. Counsel argued that the courts in these cases were “shoe-horning” children who should have been entitled to ongoing support on the basis of their disability into the category of children who were entitled on the basis of enrollment in a “full-time programme of education” because that was the only ground for ongoing entitlement for children over the age of majority recognized by the FLA at the time. As the FLA now provides for entitlement for a child who cannot withdraw due to illness or disability, counsel argued this line of cases should no longer apply.

[74] Counsel for the Applicant submitted that the cases decided prior to the amendment remain good law and that the court must recognize that some children occupy a middle ground between being unable to withdraw from their parents’ charge by reason of illness or disability and being capable of enrollment in a full-time program of education.

[75] In M.P.A.N. v. J.N., 2018 ONCJ 769, Finlayson J. considered the impact of the amendment to s. 31(1) of the FLA, and whether it changed the approach to be taken by the court to entitlement: “While the new section 31 broadens the bases of entitlement to child support, I note that the amendment did not abandon the old statutory language about enrollment in a full time program of education in the predecessor to section 31. Therefore, the case law decided under the previous section remains applicable in cases where dependency flows from an adult child's continued educational path”: para. 69.

[76] Other cases decided since the amendment, Teston v. Sooley, 2018 ONCJ 756 and Laramie v. Laramie, 2018 ONSC 4740, applied the case law decided prior to the amendment in determining what constitutes a full time programme of education to entitle a child over the age of 18 to ongoing support.

[77] I am of the view that the cases decided prior to the amendment to the FLA are relevant to the facts of this case. S.H.’s dependency arises from her enrollment in post secondary education. She has physical and mental health challenges that affect her ability to take a full time course of study. In determining whether she is entitled to support on an interim basis, I find it is appropriate to look at the test in the cases regarding enrollment in a full time program of education prior to the amendment to the FLA, as well as those decided subsequently.

Admissibility of Doctor’s Letters

[78] I now turn to the letters from Dr. Moss and Dr. Wong regarding S.H.’s medical diagnoses and whether they are evidence of S.H.’s inability to attend school full time.

[79] I have referred to the relevant Rule, Rule 14(18) and Rule 14(19) in paragraphs 51 and 52, above.

[80] The case law identifies potential issues with the admissibility of the doctors’ letters attached to the Applicant’s affidavit.

[81] In Ceho v. Ceho, 2015 ONSC 5285, the affidavit to which a social worker’s report was attached did not attest to the deponent’s belief as to the truth of the facts on which the report was based. The report was found inadmissible because the social worker did not set out the source of the facts of which he did not have personal knowledge, and because he did not swear to the truth of the facts contained in his report. Price J. stated that he would not exclude the report solely on the ground that it was not in the form of an affidavit and the social worker was not made available for cross-examination. His Honour found that the opposing party could have sought an order requiring the deponent to produce the social worker for cross-examination.

[82] In Kozak v. Kozak, 2018 ONSC 690, in a motion to increase child support, Kristjanson J. rejected unsworn doctor’s letters because the letters contained no evidence as to the doctor’s qualifications and there was no opportunity to cross-examine the doctor. Her Honour found that Rule 14(19) allows for hearsay only in restricted conditions and that the letters put forward by the mother in that case were not admissible.

[83] The Applicant states that she believes the evidence provided by Dr. Wong and Dr. Moss to be true. She sets out the efforts she has made to obtain medical reports and Affidavits from S.H.’s physicians. She establishes S.H.’s medical history and the relationship of Dr. Moss and Dr. Wong to S.H.’s treatment. Dr. Moss has been the child’s family doctor for her whole life. The information contained in the doctor’s letter dated December 11, 2018, while not as fulsome as might be required in a final determination, confirms the history of the child’s physical and mental health issues as claimed by the Applicant. The child’s mental health challenges are, in part, admitted by the Respondent.

[84] I find that the Dr. Moss letter is admissible, with less weight given as it does not include the attachments referred to and there was no opportunity to cross-examine. The Applicant’s evidence confirms the information set out in the doctor’s letter. It is clear what the source of the doctor’s information is. Dr. Moss has been S.H.’s treating physician since birth and the information comes from Dr. Moss’ interactions with and treatments of S.H. This is not a case where the doctor has included a lengthy narrative or facts which the Applicant is not aware of. It is also not a case where the source of the doctor’s knowledge is unknown. The letter is reliable and relevant for purposes of an interim motion.

Causal Nexus for Entitlement

[85] The Respondent further argues that the letters from Dr. Moss and Dr. Wong do not establish a “causal nexus” between S.H.’s health issues and her ability to be enrolled full time in university.

[86] The onus is on the Applicant to establish that S.H. is still a “child of the marriage”: Szitas v. Szitas, 2012 ONSC 1548 at para. 28. Where the child is pursuing a course of education, the ultimate question is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child”: Szitas at para. 37, citing Geran v. Geran, 2011 SKCA 55, 97 R.F.L. (6th) 68. The analysis of whether a child is unable to withdraw from parental charge involves a careful assessment of the child’s overall condition, means, needs and circumstances. An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in half-hearted or ill-conceived educational endeavours: Laramie¸ citing Kohan v. Kohan, 2016 ABCA 125, 77 R.F.L. (7th) 44.

[87] When the child is attending school part-time because of a disability, “cogent evidence” about the nature and extent of the child’s disability or illness and the impact on the child’s ability to obtain the necessities of life on their own is required: Szitas at para. 39. Children may have physical or mental health conditions which affect their abilities to complete school and obtain employment and still be capable of becoming financially independent. In Szitas, although the child’s doctor had provided a letter stating that the child’s depression and anxiety “affected his ability to complete school and obtain employment”, Chappell J. found that there was insufficient evidence about how these conditions affected the child’s day-to-day functioning, whether he had attempted to secure full or part-time employment, whether he was entitled to government subsidies, and whether his conditions had improved since the writing of the letter.

[88] Although compelling evidence is required to establish ongoing entitlement to support, and that evidence must show a causal nexus between the disability and the inability to withdraw from parental charge, I find that the nexus need not be explicitly presented by a medical expert, as the Respondent contends. The court may draw conclusions about the impact of the disability on the child from the totality of the evidence presented.

[89] On an interim motion for support, there must be a prima facie case for entitlement: Maelbrancke v. Proctor, 2016 ONSC 1788 at para. 9, citing Lopez v. Lopez (1993), 48 R.F.L. (3d) 298 (Ont. C.J.), Butzelaar v. Butzelaar (1998), 174 Sask. R. 125 (Q.B.), and Land v. Aitchison, 2005 CarswellOnt 372 (Ont. S.C.J.). This is a relatively low threshold of proof.

[90] I find that the Applicant has met this burden of proof and that S.H. is entitled to continue to receive child support on an interim basis. There is evidence that S.H. is enrolled part time at Y[…] University and attending within the academic accommodations granted to her. There is also evidence from S.H.’s doctors and from the Applicant that S.H. suffers mental and physical health challenges which limit her academic functioning. Her transcripts show that she has failed some courses but achieved passing grades as high as a B+ in others. I note also that this is S.H.’s first university degree, and she expects to complete the degree in a little over a year. The courts will generally allow ongoing support for a child who is diligently pursuing studies in a suitable program until the completion of at least the first college or university program: Laramie at para. 45, citing Marsh v. Jashewski, 2011 ONSC 3793, 5 R.F.L. (7th) 360 and Caterini v. Zaccaria, 2010 ONSC 6473, 97 R.F.L. (6th) 249.

The Respondent’s Income for Purposes of Interim Child Support

[91] The Respondent’s Financial Statement sworn August 10, 2018 shows monthly expenses of $31,970 (or $383,649 per year). His debt is minimal. His assets, which include a Cirrus aircraft, $3 million in managed funds and $18 million in cryptocurrency (as at that date), are substantial.

[92] The Applicant states it is clear that the Respondent has access to money to fund his personal expenses far beyond his 2017 self-employment income of $172,000. She argues that he could not pay his expenses and maintain the lifestyle evidenced by his assets with only the income he declared to the CRA.

[93] The Applicant argues that the Respondent’s income on his personal income tax return does not fairly reflect all the money available to him to pay child support. She argues that I should include income from the Respondent’s solely owned corporation, J[…] Productions. She also argues that I should impute interest income to the Respondent based on his cryptocurrency holdings.

[94] The Applicant points out that the Respondent’s Financial Statement sworn February 8, 2019, shows a total amount of yearly expenses of $391,152. He shows no outstanding debt.

[95] The Respondent has retained an income valuator to prepare a report. On the evidence before me I am not in a position, nor am I required, to make a final determination of the Respondent’s income. Interim child support is ordered to provide basic financial relief pending a full hearing at trial.

[96] In Wharry v. Wharry, 2016 ONCA 930, 89 R.F.L. (7th) 61, the Ontario Court of Appeal referred to the British Columbia Court of Appeal’s decision in Tedham v. Tedham, 2003 BCCA 600, 20 B.C.L.R. (4th) 56 at para. 59 – 60: “An interim order is just that — one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.”

[97] The Court went on to find that the primary residential parent should not be made to bear more than their proportionate share of support of the children because the payor has not yet produced all of the financial information required to make a final income determination.

[98] The Respondent’s 2017 Income Tax Return shows gross business income of $718,697, less tax adjustments of $93,431, for adjusted gross sales of $625,266. He deducts “other costs” of goods sold which are not specified of $420,758 and business expenses of $31,994 for net income of $172,514.

[99] The Respondent’s 2015 Income Tax Return lists gross professional income of $225,000 with no deduction for expenses for a net income of $225,000. The Respondent’s 2016 Income Tax Return lists gross professional income of $249,000 with no deduction for expenses for a net income of $249,000.

[100] The Respondent’s expenses listed in his Financial Statement show monthly support paid for two children of other relationships in the amounts of $2,500 and $2,100.

[101] Section 15 of the Child Support Guidelines provides that a payor’s annual income is to be determined in accordance with sections 16 to 20. Section 16 provides that a payor’s annual income is their Line 150 income subject to sections 17 to 20 and Schedule III. The Respondent’s 2017 Line 150 income is skewed by the one-time sale of capital resulting in $2.8 million in capital gains income.

[102] Section 19 gives the court discretion to impute such amount of income to a parent as it considers appropriate in the circumstances. Without the benefit of the income valuation and cross examination, I find that it would not be appropriate to impute income to the Respondent from his business income or his cryptocurrency. That said, I agree with the Applicant that the Respondent has more income available to pay child support than is reflected in his 2017 net self employment income of $172,514.

[103] In all of the circumstances, I find that it is more appropriate to use the Respondent’s 2016 Line 150 income of $249,000 for purposes of calculating his interim go forward child support obligations to S.H. This figure is a slight increase from the 2015 Line 150 income and is reasonable based on the Respondent’s other assets and income available to him to pay expenses.

[104] The Child Support Guideline calculation for monthly support for one child on income of $249,000 is $2,012, which is roughly in line with the support that the Respondent pays for his other two children. I find this is a reasonable amount for the Respondent to pay as interim child support for S.H pending trial when more information on his income will be available.

Contribution by the Respondent to S.H.’s s. 7 expenses

[105] The Applicant states that she kept the Respondent apprised of S.H.’s activities over the years but that the Respondent refused to contribute to S.H.’s s.7 expenses when asked, either because he did not agree to the activity or because he said he could not afford to.

[106] The Respondent denies he was ever asked to contribute.

[107] The Applicant asks that the Respondent contribute to S.H.’s post-secondary education costs and the costs of her counselling. However, in her materials she has not set out the quantum of the expenses that she seeks the Respondent’s contribution to.

[108] There is no information as to the historical cost of S.H.’s tuition, books or other education expenses at S[…] College or Y[…] University. There is also no evidence of whether S.H. applied for or received OSAP, bursaries, or other financial assistance from either of these institutions.

[109] S.H. is currently enrolled at Y[…] University. A statement dated October 18, 2018 shows post-secondary education expenses outstanding of $2,412.26, which appear to be overdue. The Respondent confirms that he has not made any contribution to S.H.’s post-secondary expenses to date. I find that it would be reasonable for him to pay this amount on an interim without prejudice basis.

[110] I do not have sufficient evidence to order the Respondent to contribute to S.H.’s historical or go forward education expenses at this time. These expenses, and whether the Respondent is obligated to pay a proportionate share, can be determined at trial.

[111] The Applicant states that S.H. has sought publically-funded options for counselling and has exhausted those options. She states that S.H. needs one-on-one counselling, which OHIP does not fund. S.H.’s benefits from Y[…] only cover $50 per visit to a maximum of $600 per year.

[112] The Respondent has offered to pay for S.H. to attend re-unification counselling with him. He states that if S.H.’s physician recommends individual counselling, it should be covered by OHIP or S.H.’s coverage through Y[…] or the Applicant’s partner’s insurance plan.

[113] There is a recommendation from Dr. Moss dated October 18, 2018, that S.H. requires ongoing psychotherapy. I do not doubt it would be beneficial for her. There is information about proposed counsellors at Markham Psychologists but no evidence of the cost of the counselling. I do not have sufficient evidence to make an order requiring the Respondent to pay a proportionate share of costs which are not quantified, even on an interim basis.

Interim Disbursements

[114] The Applicant seeks an interim payment from the Respondent to cover both her lawyer’s fees and the costs of retaining an expert to review the Respondent’s forthcoming income valuation.

[115] The Respondent argues that the Applicant has not provided the evidence required to meet the test set out in Stuart v. Stuart (2004), 24 R.F.L. (5th) 188 (Ont. S.C.J.) at para. 8:

a. The disbursements are necessary and reasonable given the needs of the case and the funds available;

b. That the party requesting the disbursement is incapable of funding the amounts; and,

c. That the claim being advanced is meritorious as far as can be determined on the balance of probabilities at the time of the request.

[116] Rogers J. held that the court was required under the Family Law Rules to ensure a fair procedure where neither party was disadvantaged in the litigation by being unable to test the evidence of the other party because they did not have the financial means to do so.

[117] The Applicant also relies on Stuart for the proposition that the court’s discretion to order disbursements should be exercised on a “less stringent basis” to “level the playing field.”

[118] The Applicant argues that the disbursements for the expert are necessary because the Respondent has complex income and assets and she must have the ability to test the Respondent’s evidence and determine his ability to pay retroactive and go forward child support.

[119] There is no question that the Respondent is in a significantly better financial position and has far greater financial resources than the Applicant. His income and asset position is complex, and the Applicant will need expert assistance to assess it.

[120] The Applicant’s Financial Statement sworn July 13, 2018, states that she has been unemployed since 2008. Her 2017 income was $14,480. She has few assets except for the anticipated CRA refund of $42,000 and an expected inheritance from her mother’s estate of $100,000.

[121] That said, the Applicant has no debt. She resides with her partner and her friend, G.H., who gave evidence that he had assisted her financially in the past but may not be able to do so going forward. She will have assets of about $140,000 when the tax refund and the inheritance are received.

[122] The Applicant states she has already paid legal fees of $25,000 in the proceeding to date. She sets out a “preliminary budget” provided to her by her counsel of legal fees and disbursements in the amount of $82,256 to take the matter through the further production of disclosure, questioning, review of expert’s reports and preparing for and attending at the Settlement Conference. This figure is set out in the Applicant’s November 16, 2018 Affidavit. There is a breakdown of estimate of hours but no specifics of the projected time and cost.

[123] The Applicant has retained Martin Pont of ap valuations to review the income valuation report being prepared by the Respondent’s expert. Mr. Pont has provided an estimate of fees to review the income report of $7,000 - $10,000. If Mr. Pont must prepare his own report, the fees will increase.

[124] The Applicant seeks leave to renew her motion to claim additional disbursements if Mr. Pont’s fees increase because he is required to prepare a report of his own.

Are the disbursements requested reasonable and necessary?

[125] A party seeking interim disbursements to pay for counsel must provide sufficient evidence of the costs. Here, I have only a chart with estimates totaling 178 hours of proposed lawyer’s time with no hourly rates and no evidence of whether efficiencies will be sought by using junior lawyers or clerks at lower hourly rates. The chart contains unexplained “miscellaneous clerical time” of $6,780. There is no explanation as to how the estimated hours were arrived at.

[126] This is a complicated case made worse by the claim for many years of retroactive child support that are at issue. There is a significant disparity between the parties’ means to pay the costs of the litigation. The playing field here is not level. I am persuaded that it is necessary for the Applicant to have some financial assistance in order to continue with the litigation. That said, the evidence the Applicant bases her claim for disbursements on requires me to speculate on whether the amounts she is claiming are reasonable.

[127] McGee J. stated in Sharma v. Shumak, 2011 ONSC 7670 that “[t]he factors in Stuart must be considered in the overall context of whether an award, in both quantum and manner, is necessary to ‘level the playing field.’ While additional costs may be necessary…they are not intended to pre-judge the claim itself. Nor are they intended to enable an unreasonable cost of litigation”: para. 46.

[128] I find that the Applicant will require an expert to review and critique the Respondent’s income report. The fees estimated by Mr. Pont of $10,000 are reasonable.

[129] I am less persuaded that the quantum of legal fees requested, $85,000, is reasonable and necessary.

Is the Applicant incapable of funding the amounts?

[130] The Applicant will receive assets of about $140,000 which she could use to fund the legal fees. There are two other income earners in the home who contribute to her and S.H.’s living expenses. The Applicant has funded all of the child’s post-secondary education to date with no contribution from the Respondent and shows no debt.

[131] These anticipated assets are the only significant assets the Applicant has. She is 48 years old. She owns a car and has a bank account with a minimal deposit. She is not employed. She is making a claim for support of a child who has challenges and requires ongoing parental assistance. I have found that the child is entitled to support on an interim basis.

Is the claim being advanced meritorious as far as can be determined on a balance of probabilities at this time?

[132] I have found that, for purposes of this interim motion, the Applicant has shown a prima facie case that S.H. is entitled to child support.

Should interim disbursements be awarded?

[133] I find the Applicant has met the above criteria to permit me to award interim disbursements. She has a reasonable claim for child support. The Respondent’s income situation is complicated and the Applicant will require an expert to review the income valuation. She will require the assistance of counsel to proceed with her claim. She does not have any income or sufficient assets to pay these costs.

[134] That said, I am not convinced that the amount of legal fees requested is reasonable and necessary. The Applicant says she has incurred legal fees of $25,000 to date. I find a further $25,000 would be reasonable for the steps required to move the matter to a settlement conference. At that stage, disclosure and questioning will have been completed and the parties should be in a position to make meaningful offers to settle. There shall also be a payment of $10,000 for Mr. Pont’s fees.

[135] I note that, contrary to the Respondent’s submissions, the Applicant does not need to prove that she has the ability to repay the interim fees and disbursements in order to receive them: Benzeroual v. Issa, 2017 ONSC 3655 at para. 94; Romanelli v. Romanelli, 2017 ONSC 1312 at para. 17.

[136] The Respondent shall pay the Applicant interim disbursements of $35,000 as a loan to be credited against any payments found to be owing by the Respondent to the Applicant for child support or s. 7 expenses. If it is found at trial that the Respondent does not owe the Applicant any child support or s. 7 expenses, the trial judge shall determine the terms of repayment of this amount by the Applicant to the Respondent.

[137] The Applicant seeks leave to renew her motion for interim disbursements as necessary after the settlement conference. As my order for interim disbursements is to take the matter to the settlement conference and the Applicant may require funds to continue the litigation thereafter, I am prepared to grant leave to permit her to make a further request for disbursements at that time.

Disclosure of the Respondent’s Cryptocurrency accounts

[138] The Respondent has investments in cryptocurrency with a value of $9,502,416 as at February 8, 2019. He asks that only redacted documents related to this investment be produced to the Applicant and filed with the court.

[139] The Respondent states there is a substantial risk that production of information could lead to attacks and give third parties the ability to access and perhaps steal these assets.

[140] I have no expert evidence on this issue. It is clearly a volatile, emerging, intangible source of wealth which the courts will have to grapple with more frequently in future.

[141] For purposes of this case, I find there is no prejudice to the Applicant if she receives the disclosure of the Respondent’s cryptocurrency assets in redacted form. There is a greater risk of prejudice to the Respondent if he is required to produce them in an unredacted form which could compromise the security of this substantial asset.

Other disclosure requests

[142] The parties have each provided a chart of their disclosure requests with notations of what has been produced and what remains outstanding. At the outset of the hearing of the motion, Applicant’s counsel suggested that the disclosure issues could be dealt with by way of 14B motion.

[143] The Respondent seeks leave for questioning of both parties for seven hours each. While I am mindful of the need for proportionality and the costs that will arise from a day long questioning of each party, this case has a relevant lengthy history and the financial issues are complex. Each party needs the opportunity to test the other side’s evidence. This will assist in settlement.

[144] Both parties shall provide any outstanding disclosure to the other within 30 days of the release date of this Order. If there are any disputes about items to be produced prior to or after the questioning, the parties may file a 14B motion to my attention. The motion shall set out specifically the disclosure requested and the reason for the failure or refusal to produce it.

[145] As set out above, the Applicant cannot disclose S.H.’s personal health information until S.H. gives her consent. This information is excluded from the disclosure that shall be provided. However, I reiterate that the availability of this information is crucial to the success of the Applicant’s claim that S.H. is entitled to continue to receive child support.

Disposition

[146] On the basis of the reasons above, I make the following Order:

1. The relief sought in paragraphs A, B, C and D of the Respondent’s Amended Notice of Motion dated February 8, 2019 is adjourned without prejudice to permit S.H. to consult with counsel and respond to the Respondent’s counsel within 30 days of the release date of this Order. If a return of the motion on these issues is required, it shall be brought back on a long motion of two hours on date to be agreed upon by counsel and the trial coordinator before me if available.

2. The Order of Justice Bean dated April 25, 1997 is varied on an interim basis effective January 1, 2019 as set out below, without prejudice to both parties’ claims at trial.

3. The Respondent shall pay the Applicant interim child support for the child, S.H., born […], 1995, in the amount of $2,012 per month based on his 2016 Line 150 income of $249,000, commencing January 1, 2019 and on the first day of each month thereafter. The Respondent shall be credited for all payments made prior to the date of this order.

4. The Respondent shall pay the Applicant the sum of $2,412.26 as contribution to S.H.’s post-secondary education expenses. This payment is without prejudice to the Applicant’s claim at trial that the Respondent should pay S.H.’s retroactive and go forward s. 7 expenses.

5. The Respondent shall pay the Applicant interim disbursements of $35,000 for legal and expert’s fees as a loan to be credited against any payments found to be owing by the Respondent to the Applicant for child support or s. 7 expenses. The payment shall be made within 30 days of the release date of this Order. If it is found at trial that the Respondent does not owe the Applicant any child support or s. 7 expenses, the trial judge shall determine the terms of repayment of this amount by the Applicant to the Respondent.

6. Leave is granted for the Applicant to bring a motion seeking interim disbursements after the hearing of the Settlement Conference.

7. All documents pertaining to the Respondent’s investments in cryptocurrencies may be served on the Applicant and filed with the Court partially redacted to protect the security of the information contained therein.

8. Leave is granted for questioning of each of the Applicant and the Respondent for one day.

9. Both parties shall provide any outstanding disclosure requested by the other party within 30 days of the release date of this Order. If there are any disputes about items to be produced prior to or after the questioning, the parties may file a 14B motion to my attention. The motion shall set out specifically the disclosure requested and the reason for the failure or refusal to produce it.

10. If the parties cannot agree on costs, the Applicant shall serve and file her submissions for costs within 21 days from the date of this decision. The Respondent will have 14 days thereafter to serve and file his submissions. The submissions shall be no more than three pages, exclusive of any costs outline, case law and offers to settle. The Applicant may serve and file Reply submissions of two pages seven days thereafter.

E. L. Nakonechny Released: April 5, 2019