COURT FILE NO.: 399/17
DATE: 2019-09-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICIA MORDEN
Applicant
- and -
Ben Fortino, Counsel for the Mother/ Responding Party on Motion to Change
BRIAN KELLY
Respondent
Stuart Law, Counsel for the Father/
Moving Party on Motion to Change
HEARD: February 11, 13, 14 and 27;
April 1 and 2; and May 31, 2019
The Honourable Madam Justice Catrina D. Braid
REASONS FOR JUDGMENT
I. OVERVIEW
[1] Conor Kelly was born with serious cognitive and physiological disabilities including severe autism, cerebral palsy, significant developmental delay and epilepsy. He requires the constant presence of a caregiver.
[2] Conor was in his mother’s care at the time the parties obtained a final order. As Conor grew into a young man, his mother was no longer able to care for him, and he moved in with his father. This Motion to Change concerns the appropriate amount of child support that should be paid by the mother.
[3] The issues to be determined at this trial are as follows:
A. Has there been a material change in circumstances?
B. Does Conor remain entitled to child support?
C. How should child support be calculated for a disabled adult child?
D. Should the court make an order for retroactive support?
E. What is the proper quantum of ongoing child support?
F. What findings should the court make regarding issues of guardianship?
[4] For the reasons that follow, I have determined that there should be no order for retroactive child support. On an ongoing basis, the cost of Conor’s ongoing care far exceeds the available government funding. I have determined that the financial shortfall should be shared by the parents in proportion to their income, which shall determine the amount of child support payable.
II. BACKGROUND
[5] In these reasons, I shall refer to Patricia Morden as the mother; and to Brian Kelly as the father. Both parties are currently 64 years of age.
[6] The parties were married on December 5, 1987 and separated on April 30, 2006.
[7] There are three children of the relationship, namely, Angela Kathleen Kelly, born November 11, 1991 (27 years old), and twin boys, Daniel John Kelly and Conor Michael Kelly, born March 29, 1994 (25 years old). Angela and Daniel are both independent adults and are not subject to the within proceedings.
[8] Following the parties’ separation, the mother remained in Ottawa, Ontario. In October 2007, the father moved from Ottawa to Hamilton, Ontario.
III. HISTORY OF PROCEEDINGS
[9] In 2008, the mother initiated a court application in Ottawa. On April 15, 2008, the court made a Divorce Order, and directed that corollary issues of custody, access and child support were to be dealt with at a later date.
[10] The parties signed Minutes of Settlement in November 2010, which was incorporated into the Final Order of Justice Polowin dated March 31, 2011. The order includes the following terms:
a. Daniel to reside primarily with the father and Conor to reside primarily with the mother.
b. The father would spend time with Conor for an extended weekend once a month, one week at Christmas and three ten-day periods in the summer.
c. If either party does not take Conor when previously scheduled to do so, that party will be responsible solely for arranging and paying costs associated with Conor’s care during that time, as well as transportation and any other costs or penalties incurred by the other parent due to changes made.
d. The parties to share equally in transporting the children to their respective homes, including the driving relating to Conor’s transportation between Hamilton and Ottawa.
e. Based on the parties’ incomes of $110,000 each, no child support payable by either party unless the number of children in their care (including the return of Angela to either party’s care) changes, in which case each party will pay the other Guideline support for the children.
f. Each party to proportionately pay for the children’s section 7 expenses. Future special or extraordinary expenses for Conor will include uniforms, any equipment needs, disposable underwear and the cost of uniforms, and special programing. Any reduction in the existing subsidy programs will result in an immediate increase in Conor’s extraordinary expenses to be paid by the parties.
g. The parties to each pay one third of Daniel’s and Angela’s post-secondary education costs, which may include application fees, tuition, books, laptop computer, lab fees and transportation for the first degree or certification.
h. The parties will agree upon expenses greater than $300 prior to the expenses being incurred. Consent will not be unreasonably withheld.
[11] In the summer of 2014, Conor came to live with the father in Hamilton. The parties disagree on the exact date that Conor moved to Hamilton. The father testified that Conor moved in June. The mother states that he moved later in the summer. However, she acknowledges that she sent an email around that time confirming his address change for the end of June. On the evidence at trial, I am satisfied that Conor was living in Hamilton as of July 1, 2014.
[12] In the summer of 2016, the father retained a lawyer who contacted the mother by letter dated July 14, 2016. This letter contained various complaints by the father that had never been discussed by the parties prior to that correspondence.
[13] The file was transferred to Hamilton Family Court in early 2017. On September 7, 2017, the father served a Notice of Motion requesting changes to the final order. Justice Pazaratz directed that the matter proceed as a Motion to Change.
[14] The mother consented to a temporary order that required her to pay child support in the amount of $1,027 per month commencing November 15, 2017, which was the Table amount payable in accordance with the mother’s 2016 income of $118,762. This support order was made without prejudice to any adjustments to the retroactive and ongoing support payable.
[15] The father’s Notice of Motion to Change sought several orders that were withdrawn during trial, including the following:
i. A claim for sole custody of Conor. The parties agree that the court does not have jurisdiction to make an order regarding custody of Conor;
ii. a claim for spousal support; and
iii. a claim that the mother pay his previous counsel’s costs for transferring the court file from Ottawa to Hamilton. The father now acknowledges that he is not seeking these costs as substantive relief. He has asked this court to comment on the value of those legal costs. Since this issue is no longer before the court, I decline to do so.
[16] The sole remaining issue to be determined is child support for Conor.
IV. FACTS
[17] I make the following findings of fact based on the agreed statement of facts, oral evidence of the parties and the documents adduced as evidence at trial.
- Conor’s Medical Condition
[18] Conor was born with serious cognitive and physiological disabilities including severe autism, cerebral palsy, significant developmental delay and epilepsy. He is unable to regulate his diet, prepare food, bathe himself or tend to his own basic needs. He does not understand money. His behaviour is unpredictable, loud and sometimes violent.
[19] Conor can lift himself and walk using a walker guided by a caregiver. During transfers, Conor requires guidance or gentle placement of limbs in or out of a car. Conor can shift his body and place himself on a toilet seat or chair. Conor can use bathroom counter tops to help him walk to the toilet and then, with guidance, get himself on the toilet.
[20] Conor is quick to anger. There need not be an external stimulus for Conor to get angry. When he is angry, Conor sometimes repeatedly slaps the side of his head, often drawing blood in the process.
[21] Conor is approximately 5’4” tall, weighs 150 lbs and is very strong. He can present a serious risk to himself and to others if he is agitated or angry. Conor can be violent and aggressive, particularly towards the mother.
[22] At the time of the final order, Conor was still attending high school and living with the mother in Ottawa. As he got older, Conor’s behaviour began to escalate. He became increasingly more aggressive towards the mother, to the point that it was unsafe for them to continue to reside together or to be left alone together. She cannot safely care for Conor without significant assistance from third parties.
[23] It is no longer feasible for family members alone to assist the mother given the safety concerns. The mother and Conor’s family are very keen to include Conor and maintain a positive relationship with him, but require the assistance of a caregiver for support.
[24] Conor requires the constant presence of a caregiver, and has a history of erratic sleep patterns. The father is mentally and physically exhausted from looking after Conor and working full-time. The father currently has little respite time, and has only enjoyed one extended break of more than a weekend from the responsibility of Conor’s care since 2014.
- Future Plan for Conor
[25] Conor is on a wait list for a residential treatment program at Bethesda Services in Vineland. The parties hope that Conor will secure a spot at Bethesda within a year.
[26] The program comes at no cost to Conor’s family because it is funded by his Ontario Disability Support Program (“ODSP”). However, the program is only a temporary one (three to twenty-four months) which means that a permanent residential plan must be put in place.
[27] Conor must return to live with the father once his treatment program at Bethesda has been completed, as specified in the intake agreement and agreed to by both parents.
[28] A principal goal of Conor’s treatment at Bethesda will be to moderate his negative and harmful behaviours, thereby expanding the roster of possible residential placements in the years ahead. In the interim, the father must maintain his three-bedroom apartment to ensure that Conor has a room to come home to. Only a limited amount of group homes will accept Conor because of the severity of his autism.
[29] The parties agree that it is in Conor’s best interest that he begin a long-term and/or permanent placement in a group home as soon as possible following his time in treatment through the Community Response Program at Bethesda.
[30] The parties chose Bethesda because Conor’s extended family resides in the Welland-Hamilton area, providing increased opportunity for meaningful relationships, as well as the potential for a family member being available to oversee Conor’s care once the parties have passed away.
[31] In accordance with the Minutes of Settlement dated November 2010, the parties were required to commence discussion of a Life Plan for Conor within sixty days of the effective date of the Minutes. Unfortunately, the parties have not done so.
[32] While the mother is no longer able to physically care for Conor alone and/or for lengthy periods of time, she has remained an active participant in the decision-making process with professionals involved with Conor.
- Historical Income of the Mother
[33] The mother is a retired principal. She was previously employed at Ottawa Catholic School Board and retired on June 30, 2018. Her current income is $95,000 per year and will not change in the foreseeable future.
[34] The mother’s income from 2013 to 2018 was as follows:
i. $130,297.74 in 2013.
ii. $126,439 in 2014.
iii. $121,789 in 2015.
iv. $118,762 in 2016.
v. $121,692 in 2017.
- Historical Income of the Father
[35] The father is a government relations consultant. On September 17, 2018, he began working as a Special Advisor for his local Member of Parliament. He is employed on a one-year contract until the next Federal election. His annual salary is $55,000. In November 2019, he will turn 65 and will be eligible to receive Canada Pension Plan and Old Age Security payments.
[36] The father’s income from 2013 to 2017 was as follows:
i. $82,127 in 2013.
ii. $84,323 in 2014.
iii. $98,342 in 2015.
iv. $41,349 in 2016.
v. $42,346 in 2017.
[37] The father’s employment history is as follows:
i. Delta Media Group from 1998 to 2006.
ii. InterVISTAS from 2006 to 2007.
iii. McMaster University from 2007 to 2011.
iv. Self-employed as a consultant from 2011 to 2012.
v. York University from 2012 to 2015.
vi. City of Burlington from 2015 to February 2016, when he was terminated from his position.
[38] The need to care for Conor has had an impact on the father’s employment. He was unemployed from February 2016 until September 2018. The father made a Human Rights complaint in respect of his dismissal from the City of Burlington. He alleged he was fired because the City failed to accommodate his Family Status, namely his responsibilities looking after Conor. The complaint was resolved by way of Minutes of Settlement in 2017. The father received a $100,000 lump sum in 2017 and 2018.
- Historical Payment of Support
[39] As of the final order dated March 31, 2011, both parties were earning approximately $110,000 and both had one child residing with them. Daniel lived with the father at that time.
[40] Soon after that order was signed, Daniel moved back to Ottawa and lived with the mother from August 2011 to September 2015. Angela resided with the mother from November 2011 to August 2017. Conor lived with the mother until the summer of 2014. Even though the mother had two or three children residing with her for significant periods of time, the father did not pay any child support after November 2010.
[41] In 2014, Conor moved to Hamilton. None of the children resided with the mother after September 2017. The mother began paying child support for Conor in November 2017.
V. ANALYSIS
A. Has There Been a Material Change in Circumstances?
[42] The parties agree that there has been a material change in circumstances since the final order of Justice Polowin was made in 2011. At the time of that order, Conor was living with the mother in Ottawa. The parties’ other two children are now independent adults. Conor has moved to Hamilton to live with the father.
[43] I find that there has been a material change in circumstances in this case. Given this determination, a variation of the final order in relation to child support is required.
[44] The initial application was filed in 2008 and included a claim for divorce. The final 2011 order granted corollary relief in that application. I find that the applicable legislation respecting the child support claim in this Motion to Change is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
[45] On an application to change a child support order under section 17(1) of the Divorce Act, the powers of the court are broad. The court can change the terms of the order, either prospectively or retroactively; and can also suspend or discharge the order, either in whole or in part, and on a prospective or retroactive basis: see Campbell v. Chappel, 2006 NWTSC 23, 2006 CarswellNWT 28.
[46] Notwithstanding the broad powers available to the court, a child support variation proceeding is not an appeal of the original order. The court hearing the case must assume that the existing order accurately addressed the financial needs of the child and took into consideration the appropriate legal considerations. The correctness of the previous order should not be reviewed in the variation proceeding: see Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 and Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201.
[47] I shall now turn to an examination of entitlement to support; the appropriateness of retroactive and ongoing claims; and calculation of the quantum of support payable. The onus is on the father, who is the moving party, to justify the relief that he is seeking.
B. Does Conor Remain Entitled to Child Support?
[48] Since Conor has a disability, he remains a “child of the marriage” for support purposes, as defined by the Divorce Act, s. 2(1). The parties agree that Conor remains entitled to child support.
[49] A court may make an order requiring a spouse to pay for the support of a child of the marriage. The order may be for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions as it thinks fit and just: see s. 15.1 of the Divorce Act.
[50] The test for entitlement to support for adult children under the Divorce Act allows for the exercise of considerable judicial discretion, and the determination of entitlement is a fact-driven exercise in every case: see Laramie v. Laramie, 2018 ONSC 4740, [2018] O.J. No. 4130; Whitton v. Whitton, 1989 CanLII 8868 (ON CA), [1989] O.J. No. 1002, 1989 CarswellOnt 265 (Ont. C.A.).
[51] The Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. enshrines the objective of creating a shared responsibility between government and families in meeting the needs of adults with disabilities. The receipt of ODSP benefits does not in and of itself lead to disentitlement to child support: see Senos v. Karcz, 2014 ONCA 459, 120 O.R. (3d) 321; Chittle v. Chittle, 2019 ONSC 1433, [2019] O.J. No. 1382.
[52] Conor is now 25 years old. He is permanently disabled and is completely dependent on his parents to take care of his physical, emotional, health and financial needs. I am satisfied that Conor is unable to withdraw from parental charge due to his disability and is entitled to support.
C. How Should Child Support be Calculated for a Disabled Adult Child?
[53] When a child is under the age of majority, the amount of child support payable is, presumptively, the Guideline amount plus section 7 expenses. When a child is over the age of majority, the Child Support Guidelines, O. Reg. 391/97, s. 3(2) state the amount of child support payable must be determined as follows:
a) the amount determined by applying the guidelines as if the child were under the age of majority; or
b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[54] In Lewi v. Lewi (2006), 2006 CanLII 15446 (ON CA), 80 O.R. (3d) 321, 267 D.L.R. (4th) 193 (C.A.), the Court of Appeal for Ontario outlined the following general principles to calculate support for an adult child:
i. The court starts with the presumption that it should be calculated in the same manner as for a child under the age of majority; that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses. This is described as “the standard Guideline approach.” However, the court must then determine whether this approach is “inappropriate” based on the particular facts of the case.
ii. If the court determines that the standard Guideline approach is inappropriate, the court must determine the amount of child support that the court considers appropriate, having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. The court cannot depart from the standard Guideline approach simply on the basis that the amount determined using the standard approach is inappropriate.
iii. Where the court determines that the standard Guideline approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines and without resort to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines, and judicial experience in applying them. For example, the court may order that expenses be shared between the parents in proportion to their respective incomes, after deducting the contribution of the child.
iv. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has discretion to decide the amount that the child should be required to contribute.
[55] An adult child’s receipt of ODSP benefits is sufficient to displace the “one-size-fits-most” approach in section 3(2)(a) of the Guidelines in favour of the “tailor-made” approach in section 3(2)(b). There is a potential for overlap between child support payments (which are intended to assist the residential parent to cover the child’s needs relating to shelter, food and clothing) and ODSP benefits paid to the recipient child (which cover similar needs). ODSP support reflects society’s commitment to sharing financial responsibility for adults with disabilities; therefore, it makes little sense to calculate child support on the basis that this responsibility falls only on the parents. Section 3(2)(b) should be applied to achieve an equitable balancing of responsibility between the adult child, his parents and society: see Senos.
[56] If the court determines that the standard Guideline approach for an adult child is inappropriate, the court must carefully consider the child’s unique condition, means, needs and circumstances; and the ability of the parents to contribute to the child’s support. The relevant legislative provisions provide the court with a wide discretion to determine the appropriate approach to calculating child support, the contribution that the child should make to their own support, if any, and the quantum of child support that each parent should pay, if any. The end result of the quantification analysis pursuant to section 3(2)(b) may still be a child support award close to or identical to the Table amount: see Senos.
D. Should the Court Make an Order for Retroactive Support?
[57] The father seeks retroactive child support commencing July 1, 2014, and states that it should be calculated using the Table amount. The father concedes that, if the court were to conduct an analysis under 3(2)(b) of the Guidelines for Conor’s retroactive expenses, no support would be payable.
[58] The mother has been paying Table child support since November 2017. She has also paid expenses during that time that were not reimbursed by government funding. She argues that the court should not order retroactive child support.
[59] The decision to order support for any period before the date of the order is a matter of judicial discretion to be decided based on the particular circumstances of each case: see D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.
[60] There is no automatic right to pursue retroactive child support. Even if entitlement is established, retroactive child support is ultimately a matter of judicial discretion. There are various considerations, including the child’s and custodial parent’s need for financial support; the payor’s interest in certainty and predictability when financial obligations appear to be settled; and the need for flexibility to ensure a just result. Ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. Such claims must be considered keeping in mind the following core principles that apply to all child support claims:
Child support is the right of the child and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship.
Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. The amount of child support owed will vary based upon the income of the payor parent.
When retroactive child support is sought, the court must analyze the statutory scheme in which the application is brought to determine if it establishes parameters or guidelines regarding retroactive claims.
It is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the court may grant relief to correct the failure.
Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated: see D.B.S.
[61] The court in D.B.S. adopted a highly discretionary approach to retroactive child support claims, and outlined the following general factors which judges should consider in determining the issue of entitlement to retroactive relief:
Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier;
The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support;
Consideration of the present circumstances of the child, and the extent to which they may benefit from a retroactive award; and
Any hardship that may be occasioned by a retroactive order.
[62] None of these considerations are decisive, and the court carrying out the analysis of a retroactive claim should strive for a holistic view of the matter and decide each case based on its particular factual matrix. Although retroactive awards are a matter of judicial discretion, they should by no means be considered exceptional. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amount of support first arose: see D.B.S.
[63] The court should consider both the present and past circumstances of the child in deciding whether a retroactive award is justified, in order to determine the extent to which the child would benefit from a retroactive award. Evidence that the child has suffered hardship due to insufficient support in the past and/or the present may support a retroactive award. On the other hand, a child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need.
[64] The final order stated that the father would spend time with Conor for an extended weekend once a month, one week at Christmas and three ten-day periods in the summer. The father submits that, when Conor moved to Hamilton, the mother was required to follow this schedule. He states that, since the mother did not take Conor as required, the order required that she pay the costs of Conor’s care during those times. He also submits that the mother could have hired someone to drive to Ottawa with her and assist in caring for Conor overnight.
[65] I do not accept these submissions. Conor’s violent and aggressive behaviour toward the mother escalated after the final order was made, to the point that it was not safe for the mother to be alone with Conor. Although the father may have expected that the parental roles would simply switch and that the mother would take on the father’s schedule as set out in the order, this was not a reasonable expectation to have in the circumstances.
[66] Conor thrives on routine, and travelling to Ottawa for short overnight stays would be highly disruptive to him. Considering the safety concerns, it is unreasonable to expect the mother to take Conor to her home in Ottawa for visits. Unfortunately, the mother is simply not able to have Conor in her care for enough time to provide respite to the father. I decline to make any adverse findings against the mother regarding the amount of time that she spends with Conor, or regarding her failure to pay for Conor’s care during periods of time that the father expected her to have Conor in her care.
[67] The father also asks that the court make an adverse finding against the mother because she removed Conor as a beneficiary of her life insurance policy, which was in breach of the Separation Agreement. I fail to see how this issue is relevant to whether retroactive child support should be ordered, and I decline to make any negative finding because of the life insurance issue.
[68] I have weighed the factors relevant to determination of entitlement to retroactive child support. I decline to make any order for payment of retroactive child support, for the following reasons:
i. The Motion to Change was filed in 2017. The father seeks child support retroactive to July 2014. I have not been provided with a reasonable explanation for the delay in commencing the proceedings.
ii. The mother repeatedly requested a budget of Conor’s expenses and income; and asked the father to sit down with her and talk about what he needed. Unfortunately, these requests were often met with angry responses and refusals from the father. At no point prior to trial did the father delineate a specific amount of funds that were required for Conor’s care, and for what purpose. It was only at the trial court’s urging that counsel for the father prepared a proper budget that reflected expenses and funds available for Conor. The father filed at least three different versions of his budget during trial. It is truly unfortunate that the father was not more forthcoming with this information. He was required to submit claims to the government for Passport program funding, including receipts from caregivers. It is not clear why copies of these documents were not shared with the mother on an ongoing basis.
iii. In the Senos decision, the appeal court was unable to determine the appropriate amount of support for the adult disabled child. It remitted the matter back to trial to obtain a more complete factual record, including a budget. In the case before the court, the mother found herself in a similar situation. Since the mother did not have a budget (including a list of expenses and government funding) from the father, it was impossible for her to accurately assess what her child support obligations were.
iv. Shortly after the Motion to Change was brought, the mother began to voluntarily pay child support of $1,027 per month pursuant to the Guidelines. Despite the absence of a budget from the father, the mother consented to an order in November 2017 (two months after the Motion to Change was filed) to begin paying child support as per the Guidelines. She has continued to pay $1,027 per month, even when her income was reduced. The mother’s consent to this interim order was a good faith approach to a difficult situation.
v. I have taken into consideration the past and present circumstances of Conor. It is the father’s evidence that he struggled greatly to meet Conor’s needs. In addition to the expenses involved with caring for Conor, the father has had to deal with a loss of employment. The budget information provided by the father during the trial demonstrates that Conor was, and still is, in need of financial support, and that government funding is insufficient to cover his needs.
vi. The father has conceded that, on a pure budgetary calculation and cost-sharing of Conor’s expenses not otherwise covered by government funding, there would be no retroactive support payable.
vii. The mother is on a fixed pension income. However, the evidence in this case was insufficient to establish potential hardship that may be occasioned by a retroactive child support award in this case.
viii. I recognize that the mother earned a healthy income, sometimes significantly more than the father. His employment prospects appear to have been negatively impacted by his obligations to care for Conor. He has paid a personal cost because he did not have the money to pay for respite care. That said, the father’s refusal to provide a budget to the mother created significant difficulties in determining what, if any, financial deficit he incurred because of caring for Conor.
ix. The lack of disclosure of funds received and funds expended for Conor led to a situation where the mother could not have any expectation of having to pay retroactive child support since she did not have any information whatsoever as to how much she might have to pay in support. She did not act in a blameworthy manner.
x. When Conor lived with the mother, she used funding to pay the cost of caregivers for Conor during his time with the father. The mother incurred her own out-of-pocket expenses for Conor since he moved to Hamilton, none of which have been reimbursed. She spent approximately $7,700 in care and programming for Conor from 2016 to 2018. She also paid for more than $2,000 in medication for Conor after he moved to Hamilton. The father has had significantly more expenses but has been reimbursed through government funding for a large portion of his expenses.
xi. At the time that the consent final order was made in 2011, one child was living with each parent. The order directed that child support be paid if those circumstances changed. At various times during the next three years, all three children lived with the mother and the father did not have any children living with him. After Conor moved to Hamilton, the other two children continued to live with the mother for another year (although it is not clear when they ceased being children of the marriage). The mother supported the other two children by assisting with their tuition and other school expenses. After the 2011 order, the father did not pay any child support, nor any post-secondary educational expenses for the children (even though the court order required that he contribute to post-secondary expenses).
[69] The father submits that Conor’s past expenses were artificially low because there was no respite care, and that the father paid the price for the lack of respite. The father has suffered chronic physical and mental strain while caring for Conor. He lost his employment because of this issue, although he received a $100,000 payment as compensation for the human rights complaint based on family status. He now seeks “compensation” from the mother through a retroactive child support order requiring the payment of Table support commencing three years before he brought the Motion to Change.
[70] I do not accept the submission that an order for retroactive child support order should be made to compensate the father. It is a tragic situation that this fractured family finds themselves in. The legislation addresses the needs of the child, but there is no mention of child support as a means of “compensating” a parent for the sacrifices he has made.
[71] The most compelling factors in this case are that (i) the mother went without child support from the father during periods that she was entitled to support; (ii) the father seeks support from three years before he commenced the motion to change, without any explanation for the delay; (iii) the father did not provide any financial or budgetary information to permit the mother to assess Conor’s needs and ability to contribute to his expenses; and (iv) the father’s concession that, on a purely budgetary analysis, no child support would be payable. In all the circumstances, I find that there should be no order for payment of retroactive child support.
E. What is the Proper Quantum of Ongoing Child Support?
[72] With respect to ongoing child support, the father submits that section 3(2)(b) should be applied to balance responsibility between Conor, his parents and society. He seeks an order requiring the mother to pay $2,086 or $2,336 per month in child support (depending on which calculation of expenses is adopted by the court).
[73] Once the mother received the father’s budget calculations of Conor’s expenses and income during trial, she conceded that the standard Guideline approach is inappropriate. This was an appropriate concession to make. In her submissions at trial, the mother submitted that $1,167.52 per month is the proper amount for ongoing child support.
[74] If the mother were ordered to pay ongoing Table support based on her current income, she would pay $871 per month. In this case, I find that it would be inappropriate to determine ongoing child support by applying the Guidelines. I must therefore consider the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. In doing so, I must consider the government funding that is available to Conor.
[75] The parties have both prepared their own budgets of appropriate expenses, and both generally agree that the court should consider Conor’s expenses and income; and apportion the deficit between the parents in proportion to their respective incomes. They disagree, however, on the amount of Conor’s expenses.
[76] The onus is on the father to adduce all relevant evidence in support of his request. During the trial, the court raised an issue about the lack of precision regarding costs paid for Conor’s benefit. The father’s counsel submitted that the process of considering the budget is not a “surgical” one, especially when costs fluctuate. I shall therefore provide a general budgetary analysis.
[77] In this case, the ODSP and Passport funding are insufficient to meet Conor’s expenses. Conor also receives temporary funding from time to time, but it is not a large amount and it is not dependable as a source of funds.
[78] I have considered the proposed budgets put forward by the parties, and make the following findings:
- Accommodation and Other Basic Needs
[79] I find that some of the father’s proposed budget expenses do not recognize the reality that the father would have incurred certain costs, whether or not Conor resided with him. For that reason, I do not assign any budgetary amount for house insurance, phone, cable tv, internet, car repairs, parking and fuel. In addition, I decline to assign any amount for computer games or Costco membership.
[80] The father’s total rent is $1,510 for a three-bedroom apartment. The father says that he and Conor are equally sharing the space, so the budget should reflect Conor’s expense as 50% of the rent. In my view, the amount attributable to Conor should be the extra cost that the father incurs to have Conor in his care. Since I have no evidence on the difference in this cost, I shall exercise my discretion and attribute $400 to Conor for rent.
[81] In addition, the parties agree on the following monthly expenses for Conor, which are appropriate:
i. Clothing $30.
ii. Haircuts $25.
iii. Entertainment and recreation $25.
iv. Home repair $12.
v. Electricity $12.
vi. Groceries $225.
vii. Household supplies $20.
viii. Meals outside the home $25.
ix. Laundry $25.
[82] The total monthly expenses (without attendant care) is $799 per month, or $9,588 per year.
- Attendant Care
[83] The parties agree that the Salvation Army Day Program at $745 per month is a reasonable and appropriate expense. The program provides five hours of care per week.
[84] The most expensive budget item for Conor is in-home care. In this case, Conor has significant special needs. The constant need for a one-on-one caregiver has a significant impact on the expenses associated with having Conor in the father’s care.
[85] Since July 2014, in-home care for Conor has mainly been provided by Florin Zirnoveanu. Mr. Zirnoveanu’s hourly rate is $20, which the parties agree is reasonable. In the current budget calculation, the father pays the in-home caregiver $2,580 per month. The most significant area of dispute between the parties is the amount of in-home care that should be included in the budget going forward.
[86] Conor’s constant care needs warrant the provision of some respite to the father. Otherwise, the incessant demands on the father will impact his ability to care for Conor and may negatively affect his ability to maintain employment.
[87] The father’s proposed budget contemplates a significant increase in the in-home care going forward, essentially doubling the amount for caregiver costs. The father wishes to have in-home respite care for two weekends per month. The primary caregiver, Mr. Zirnoveanu, will look after Conor one weekend per month for $600. The father submits that a different caregiver should be hired for the alternate weekends, to avoid burnout for the primary caregiver. He has also budgeted for his next job to be in Toronto, which will require commuting time.
[88] In my view, the father’s proposed budget is somewhat excessive. The mother’s budget allows for the cost of one full weekend of respite care, plus a caregiver for a few hours every weekend. The mother’s budget is a more reasonable proposal for in-home care costs going forward.
[89] In addition, the mother will continue to visit Conor one weekend per month during a weekend day, and she will continue paying for the support worker during her time with Conor. For personal support worker and respite care, the mother pays $240 per month or $2,880 per year.
[90] I find that the appropriate amount of monthly care costs during the father’s time with Conor is as follows:
i. Salvation Army Day Program (fixed monthly cost for 5 hours per week) $745
ii. Care while the father is at work (40 hours per week) $3,466.66
iii. Weekly Evening Support (4 hours per week) $336.66
iv. Weekend Day Support (6 hours every weekend on Saturday or Sunday) $520
v. One full weekend of respite care (in addition to the weekend support and mother’s monthly visit) $650.
[91] The total monthly amount is $5,718.32 or $68,619.84 per year.
- Conor’s Revenue Sources
[92] Conor has three revenue sources from the government:
i. ODSP: Conor receives approximately $1,169 per month, or $14,028 per year.
ii. Passport funding: Conor received $40,250 for the fiscal year 2018/19 (ending March 2019) for his programs and respite through Passport. The Passport funding is paid only if the expense is incurred and only upon presentation of receipts. These funds may be accessed by the father upon proof that the applicable program or service has been provided, at which point the funds are sent to the father and he is responsible for paying the fees for the program or service.
iii. Temporary support funding: between October 2014 and November 2018, more than $20,000 in temporary support funding was paid to the father. This funding provides a temporary response to support an adult with a developmental disability. It is only approved when funding is available and is not a regular or dependable source of funds.
- Conclusions re Ongoing Child Support
[93] I find that Conor’s total expenses are $78,207.84 per year. Conor receives $54,278 in annual government funding (ODSP plus Passport funding). I have not included temporary funding because it is not dependable nor a regular source of funds. The expenses that are not covered by government funding is $23,929.84.
[94] I recognize that Conor’s expenses will fluctuate. However, it is important that these parties have predictability and consistency in the amount of child support to be paid.
[95] I find that it is appropriate to order that Conor’s expenses be shared between the parents in proportion to their respective incomes, after deducting Conor’s contributions from ODSP and Passport funding. The mother’s annual income is $95,000 and the father’s annual income is $55,000. The parties proportionate share of expenses would be divided as 63% paid by the mother and 37% paid by the father.
[96] The mother’s annual share of the father’s expenses (63% of $23,929.84) is $15,075.80. The father’s annual share of the mother’s expenses (37% of $2,880) is $1,065.60. The set-off amount of these expenses, owing by the mother to the father is $14,010.20 per year, or $1,167.52 per month. I find that this is an appropriate amount of child support and make an order that the mother shall begin paying this amount on an ongoing basis.
[97] If Conor is admitted to Bethesda, it is anticipated that his ODSP will cover the costs of that program. The parties will then begin looking for a long-term group home for Conor. The father will be required to maintain a room in his home for Conor while he is at Bethesda.
[98] The parties do not know if (or when) Conor will be approved for a group home after Bethesda. Even if the facility is publicly funded, it is unknown if there will be other expenses that will remain the responsibility of the parents. Whether group home living can be structured to meet Conor’s complete needs is unknown. The parties agree that, if Conor is admitted to Bethesda or another group home, this will constitute a material change in circumstances.
[99] Conor’s needs are ongoing and indefinite. The parties have been able to agree on most major decisions regarding Conor, except when it comes to child support. It is my hope that the parties will communicate in a more effective manner in the future, in order to establish a long-term care plan for Conor and to determine an appropriate amount of child support (if any) when Conor is eventually admitted to a group home.
F. What Findings Should the Court Make Regarding Issues of Guardianship?
[100] During the trial, the parties addressed the issue of guardianship of Conor. The parties jointly request that I make certain findings which would be persuasive to a judge on a guardianship application but would not be binding. The parties did not wish to delay these proceedings further by making an application for guardianship under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, during this family law trial. To do so would require that the moving party serve the Public Guardian and Trustee and Conor, which would have delayed this trial.
[101] Counsel Darrell Dauphney attended to address the court as counsel for the Public Guardian and Trustee and as a friend of the court. Mr. Dauphney did not object to the court making findings, which could save time on a guardianship application.
[102] During this trial, I heard and read significant evidence regarding Conor’s disability. Although this is not an application under the Substitute Decisions Act, 1992, I make the following findings that I hope will be helpful and persuasive to the court when dealing with a future guardianship application:
i. Pursuant to s. 6 of the Substitute Decisions Act, 1992, Conor is incapable of managing property because he is not able to understand information that is relevant to making a decision in the management of his property and is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
ii. Pursuant to ss. 45 and 59(1) of the Substitute Decisions Act, 1992, Conor is unable to understand information that is relevant to making a decision concerning his own health care, nutrition, shelter, clothing, hygiene or safety, and is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
iii. Pursuant to ss. 25(1) and 58(1) of the Substitute Decisions Act, 1992, Conor is incapable of managing property and making personal care decisions for himself. As a result, it is necessary for decisions to be made on his behalf by persons who are authorized to do so.
VI. COSTS
[103] The parties shall engage in meaningful discussions and negotiations respecting the costs of this proceeding. In the event that the parties cannot agree as to costs, they are directed to provide written submissions to this court. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle.
[104] The Applicant mother shall provide costs submissions by September 18, 2019; and the Respondent father shall provide any response by September 30, 2019. In the event that submissions are not received from either party by September 30, 2019, costs shall be deemed settled.
VII. ORDER
[105] For all of these reasons, the court makes the following order on a final basis:
A. Not on consent:
- Paragraphs 19, 20 and 21 of the final order of Justice Polowin dated March 31, 2011, are removed in their entirety and replaced with the following:
Commencing September 15, 2019, and continuing on the fifteenth day of each month, the Applicant mother shall pay child support to the Respondent father for the child Conor Michael Kelly, born March 29, 1994 (“Conor”), in the amount of $1,167.52 per month, which takes into account the Applicant mother’s annual income of $95,000, the Respondent father’s annual income of $55,000, and the income and financial support available to Conor through ODSP and Passport funding.
The temporary order of Justice Pazaratz, dated November 15, 2017, provided for the payment of interim child support. That order is now at an end and shall be replaced with this final order.
The mother has paid child support pursuant to the temporary order of Justice Pazaratz dated November 15, 2017. The claim for additional retroactive child support, over and above what has already been paid, is dismissed.
There shall be no arrears of support payable by either party for any of the children of the marriage.
B. On consent:
Conor shall continue to reside primarily with the Respondent father until Conor can be transferred to a suitable permanent group home. The parties shall cooperate to ensure that Conor is placed in the first available suitable permanent group home.
Conor entering Bethesda or another residential group home will constitute a material change in circumstances. This order shall be reviewable at that time.
On or before October 4, 2019, the parties shall provide each other with written confirmation from their respective insurers that each of their life insurance obligations, pursuant to paragraphs 9.1, 9.2, 9.9 and 9.10 of their July 17, 2006 Separation Agreement, are in good standing.
All other claims are dismissed.
A Support Deduction Order shall issue. The Applicant mother shall complete a Support Deduction Information Form and submit it to the Family Responsibility Office within seven business days of receiving these Reasons for Judgment.
For as long as child support is to be paid, the payor and recipient must provide updated disclosure to the other party on July 1 of each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
Unless this support order is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Braid J.
Released: September 4, 2019
COURT FILE NO.: 399/17
DATE: 2019-09-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICIA MORDEN
- and -
BRIAN KELLY
Respondent
REASONS FOR JUDGMENT
CDB
Released: September 4, 2019