COURT FILE NO.: FS-19-0009-00
DATE: 2019-04-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wayne Stewart Trylinski
Mr. W. Trylinski, the Applicant Father, by Teleconference
Applicant
- and -
Wendy Marie Trylinski
S. Ettinger, for the Respondent Mother
Respondent
HEARD: April 11, 2019, at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons On Confirmation Hearing Pursuant To The Divorce Act
Introduction
[1] Sections 18 and 19 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) stipulate a procedure for variation of a support order where the payor and recipient live in different provinces or territories. A provisional order may be made in the originating province but it is of no force or effect until it is confirmed by the court in the province where the responding party resides. This is a cumbersome, time-consuming and often unsatisfactory process because typically, each court hearing the case does not have access to the evidence of both parties at the same time. That is what occurred at the originating hearing in the Manitoba Court of Queen’s Bench.
[2] In this case, Mr. Trylinski secured a provisional order from Mr. Justice Thatcher of the Manitoba Court of Queen’s Bench (Family Division) dated July 3, 2018 which terminated his obligation to pay child support for his son, Adam James Trylinski, born November 26, 1990, effective January 1, 2009. Ancillary collection orders were also made.
[3] The Court of Queen’s Bench had the father’s affidavit before it but not the mother’s. The father was present in court and made submissions, but because of problems with service, the mother, who is resident in Thunder Bay, Ontario, did not appear and did not file affidavit material. The Manitoba order is specifically stated to be of no force and effect until confirmed by the Ontario Superior Court where the recipient lives.
[4] The matter came before me for a confirmation or refusal hearing under s. 19 (7) of the Divorce Act. I have the benefit of the transcript and reasons for judgment of Mr. Justice Thatcher as well as Mr. Trylinski’s affidavit evidence that was before the court. In the confirmation hearing before me, I have affidavit evidence and submissions from both parents.
[5] The central issue is when Adam ceased to be a child of the marriage as defined by the Divorce Act. The consequence of that finding is whether Mr. Trylinski overpaid child support and can recover any overpayment from Ms. Trylinski. While the maintenance enforcement program has no mechanism for recovering overpayments from the recipient, Mr. Trylinski intends to proceed independently with civil collection.
[6] Mr. Trylinski submits that support for Adam should have terminated when he turned 18 on November 26, 2008. Ms. Trylinski contends that Adam continued to be a child of the marriage and dependent upon her after his eighteenth birthday.
[7] The records of Manitoba’s Maintenance Enforcement Program show that child support ceased to be collected as of February 1, 2018. In response to a query from the Maintenance Program, Ms. Trylinski advised that child support should terminate April 30, 2018.
The Evidence Before the Manitoba Court of Queen’s Bench
[8] Mr. Trylinski filed an affidavit before the Manitoba Court reciting the history of the child support orders through the years. The outstanding order that he seeks to terminate is the order of Madam Justice Guertin-Riley dated February 24, 2004. Mr. Trylinski’s income was imputed to be $30,161.00 at the time the order was made. Accordingly, he was ordered to pay child support of $251.00 per month commencing January 1, 2004.
[9] Mr. Trylinski advised the court that he fell into arrears of child support, and that as of May 1, 2018, the arrears stood at $2,695.88.
[10] Mr. Trylinski indicated that he had no contact with Ms. Trylinski or Adam from 1996 when they moved from Manitoba to the Thunder Bay area until 2013 when Mr. Trylinski was in Ontario. He stated that he has seen Adam approximately four times since 2013.
[11] It is unfortunate that Adam did not file an affidavit in these proceedings as both parents disagree about the nature and duration of his schooling and his employment history. The evidence is often contradictory and confusing, leaving the court to piece together the probable facts.
[12] Mr. Trylinski stated in his affidavit that Adam advised that he stopped attending school after grade 8 and never obtained his high school diploma. He added that Adam stated that he was unemployed from his eighteenth birthday on November 26, 2008 until approximately 2016 when he secured full-time employment. Mr. Trylinski indicated that Adam told him he never attended a post-secondary institution. However, he stated that Adam is now working full-time with an aviation company. He also stated that Adam does not have a disability that would prevent him from working.
[13] Consequently, the Manitoba Court of Queen’s Bench determined that child support should terminate following Adam’s eighteenth birthday. Ancillary orders were also made cancelling arrears penalties and cost recovery fees. These ancillary orders are not contentious.
The Evidence Before the Ontario Superior Court of Justice
[14] In the proceeding before me, both parties filed affidavits and made submissions. Mr. Trylinski appeared by teleconference while Ms. Trylinski and her counsel were present in the court room.
[15] Ms. Trylinski’s affidavit provided further information about Adam’s education after grade 8. She indicated that he was home-schooled during high school. She did not state when he started or completed this course of studies.
[16] Ms. Trylinski also stated that Adam enrolled in an 18-month on-line distance education program from 2012 to 2013, graduating with a certificate of achievement in weather forecasting from Pennsylvania State University. This is a 12-credit program. She did not state when he completed the program or the costs associated with it. Armed with this qualification, Adam was hired by North Star Air in Thunder Bay in March, 2016. However, Mr. Trylinski contended that Adam became employed with North Star in the spring of 2017.
[17] Adam worked with North Star for about two years, then moved to Alberta where he was employed by Air Sprint. Ms. Trylinski says this occurred in 2017 while Mr. Trylinski says he started work in December, 2018.
[18] Although there is no evidence about Adam’s work history after he finished high school, Ms. Trylinski deposed that Adam was not truly independent of her until the spring of 2017. She stated that Adam suffered from migraine headaches that left him incapacitated for several hours to several days until a more effective medication was prescribed for him in 2016, permitting him “to have the confidence to work full-time.” There is no medical evidence about whether or to what degree Adam could not work.
Definition of “Child of the Marriage”
[19] Section 2 of the Divorce Act defines “child of the marriage” as follows:
“child of the marriage” means a child of two spouses or former spouses, who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life…
[20] Thus, there is no automatic cut-off to child support once a child reaches the age of majority. The courts have often provided for transitional child support for the period between completion of high school and the start or end of post-secondary education, recognizing that adult children may be economically dependent upon their parents until they obtain employment or have sufficient qualifications to obtain employment.
[21] The definition of “child of the marriage” in the Divorce Act also provides for termination and then re-qualification for child support when children return to post-secondary education after a hiatus. It appears that is what happened in Adam’s case.
Discussion
[22] On a balance of probabilities, I find that Adam was home-schooled during high school. This would have occurred during a period when his father had no contact with Adam and thus had no information about his education. Adam’s statement to his father that he did not attend school after grade 8 is consistent with his mother’s evidence that he was home-schooled. In the absence of specific evidence, I infer that Adam completed high school at the age of eighteen, in other words, on or about November 26, 2008. The Manitoba Court of Queen’s Bench provided for brief transitional support after that time, until January 1, 2009. I agree with this approach. Thus, the father’s obligation to pay child support for Adam James Trylinski, born November 26, 1990, terminated temporarily effective January 1, 2009.
[23] However, the evidence before me indicates that by undertaking an 18-month period of post-secondary studies while living with his mother, Adam re-qualified to be supported as a child of the marriage pursuant to the Divorce Act. In other words, I infer that he lived with his mother but was unable to withdraw from her charge or to obtain the necessaries of life because he was pursuing post-secondary education.
[24] The evidence shows that it was his qualification as a meteorologist that led to full-time employment, first in Thunder Bay and later in Calgary. In my view, Mr. Trylinski is obliged to support Adam during the period of his meteorology studies, which I fix at January 1, 2012 to and including June 1, 2013.
[25] The mother’s evidence is that Adam did not obtain full-time employment with North Star Air in Thunder Bay until March, 2016. Mr. Trylinski says that Adam’s date of hire with North Star was actually in the spring of 2017. By 2016, Adam was 25 years old.
[26] There is a gap in the evidence about how Adam occupied himself after he completed his on-line education. However, I conclude that it is unlikely that Adam would have become employed immediately after the completion of these studies. In my view, it is reasonable to expect Mr. Trylinski to support Adam on a transitional basis for a further four months in order for him to find employment.
[27] Accordingly, I find that Mr. Trylinski was also liable to pay child support for Adam for the period January 1, 2012 to and including October 1, 2013, following which his obligation to pay child support for Adam terminated permanently.
[28] Accordingly, the provisional variation order of Mr. Justice Thatcher of the Manitoba Court of Queen’s Bench dated July 3, 2018 is confirmed with the following variation:
Mr. Trylinski is obliged to pay child support for Adam James Trylinski born November 26, 1990 in the amount of $251.00 per month payable on the first day of each month until January 1, 2009, and also from January 1, 2012 to and including October 1, 2013, following which his obligation to pay child support for Adam terminated permanently.
The total arrears of penalties assessed by the Designated Officer, Maintenance Enforcement Program owed by Mr. Trylinski to Ms. Trylinski are cancelled.
The total arrears of cost recovery fees assessed by the Designated Officer, Maintenance Enforcement Program owed by Mr. Trylinski to the Province of Manitoba are cancelled.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: April 18, 2019
COURT FILE NO.: FS-19-0009-00
DATE: 2019-04-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wayne Stewart Trylinski
Applicant
- and -
Wendy Marie Trylinski
Respondent
REASONS ON CONFIRMATION HEARING PURSUANT TO THE DIVORCE ACT
Pierce J.
Released: April 18, 2019
/sab