COURT FILE NO.: FS-06-58306-02
DATE: 20190807
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HANG SOON KIM
Jerald J. D. MacKenzie, for the Applicant
Applicant
- and -
DU-WON KIM
Martin C. Schulz, for the Respondent
Respondent
HEARD: June 25, 2019, at Brampton
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The parties married on September 23, 1985 and separated on January 1, 2005. There is only one child of the marriage namely Tara Kim born March 6, 1990.
[2] On September 3, 2010, after a lengthy trial, Snowie J. ordered that the Respondent Father Du-Won Kim, pay child support to the Applicant Mother Hang Soon Kim, for the support of the child Tara Kim born March 6, 1990, in the sum of $719 per month commencing September 1, 2010. At the time of this final order, Tara was in the midst of her first undergraduate degree.
[3] Mr. Kim has now commenced a Motion to Change, in which he seeks to terminate his child support obligations pursuant to the order of Snowie J. as of May 1, 2012, the date on which Tara completed her undergraduate degree.
[4] The parties have already reached an agreement whereby child support for Tara terminated as of October 1, 2018, which was the date that Tara completed her most recent post graduate certificate in alternative dispute resolution. This was agreed without prejudice to Mr. Kim’s right to advance an earlier termination date.
[5] The issue before me is to determine the proper termination date for Mr. Kim’s child support obligations. Mr. Kim states that support should end on May 1, 2012, when Tara finished her undergraduate degree. Ms. Kim states that it should continue to until October 1, 2018, when Tara finished her latest programme of study. There has been no request to vary the amount Mr. Kim was ordered to pay during this period, so no review of his income is required. I have been asked only to determine the time period of his obligation, following which counsel will make the appropriate calculations of the child support and section 7 arrears owing, if any. Also, if it is determined that child support should have be terminated prior to October 2018, I must determine whether Mr. Kim is entitled to a retroactive adjustment.
[6] This Motion to Change was originally served in October 2017. The Motion was improperly brought as Mr. Kim did not seek leave (having been found a vexatious litigant). He eventually received leave and the Motion to Change was commenced again on June 28, 2018. Accordingly, it is clear that Ms. Kim obtained effective notice of Mr. Kim’s intention to terminate child support from at least late 2017. Mr. Kim has provided no explanation as to why proceedings were not commenced prior to 2017.
A. When Should Mr. Kim’s Child Support Obligation be Terminated?
i. The Law
[7] Section 17 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), states:
(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; …
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
[8] Section 2 of the Divorce Act defines “child of the marriage” as follows:
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 necessities of life;
[9] Evidence that the child is no longer a “child of the marriage” as set out in section 2 of the Divorce Act satisfies the threshold test of whether there has been a change in circumstances since the previous order was made: Menegaldo v. Menegaldo, 2012 ONSC 2915, at para. 139.
[10] The onus is on the party seeking to maintain child support payments, to provide evidence to the court, that on the balance of probabilities, the child remains a “child of the marriage”: Menegaldo, at para. 147; Beach v Tolstoy, 2015 ONSC 7248 at para. 32.
[11] The factors to consider when determining whether a child over the age of majority who continues their education remains a “child of the marriage” is well laid out in the decision of Menegaldo. At para. 157, Chappel J. states that the fact that an adult child is still undertaking educational studies may constitute “other cause” within the meaning of section 2(1) of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support. The entitlement analysis is a fact-driven undertaking in each case. The case law indicates that in order for the pursuit of post-secondary education to constitute “other cause” within the meaning of section 2(1)(b) of the Divorce Act, the court must be satisfied that the educational plan is reasonable in terms of the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents. Chappel J. adopted the reasoning of the Saskatchewan Court of Appeal in Geran v. Geran, 2011 SKCA 55, which indicated that the ultimate question in deciding the issue of entitlement in these circumstances 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.”
[12] Chappel J. then outlined a number of factors at para.157 which should be considered in answering these questions. The collective list of factors were derived from the cases of Whitton v. Whitton, (1989) 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261, (ONCA); Farden v. Farden (1993) 1993 CanLII 2570 (B.C.S.C.); Geran; Rebenchuk v. Rebenchuk, 2007 MBCA 22; Haist v. Haist, 2010 ONSC 1283 [78] and Caterini v. Zaccaria, 2010 ONSC 6473. The considerations are as follows:
a) Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
b) Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
c) The ability of the child to contribute to their own support through part time employment.
d) Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
e) In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
f) The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
g) The age, qualifications and experience of the child.
h) The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
i)Whether the child is performing well in the chosen course of studies.
j)What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
k) The means, needs and other circumstances of the parents and the child.
l)The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.
[13] It is not necessary to establish all of the factors set out above to show that the child remains a “child of the marriage”: Menegaldo, at para. 158.
[14] Ms. Kim maintains that Tara remained a child of the marriage until at least October 2018 because of her ongoing education and her mental health issues.
ii. Education
[15] Tara finished her first undergraduate degree in May 2012.
[16] From June 2012 to August 2013, there is no evidence that Tara attended school during this period. She had no taxable income in 2012 and minimal taxable income 2013 ($1,647).
[17] From September 2013 to August 2014, Mrs. Kim has provided evidence that Tara was attending the University of Toronto and pursuing a full-time Master’s degree through the Department of East Asian Studies. The documentation provided also shows that she received OSAP funding for this year in the total sum of $7,596, as well as grants totaling $7,900.
[18] From September 2014 to August 2015, the unofficial transcripts from the University of Toronto show that Tara continued to be enrolled in the same Master’s program for this academic year. In addition to courses, she continued to work on her thesis. Evidence has also been produced that shows Tara received further OSAP funding in the sum of $7,541 for this academic year and received a grant of $2,824.00. Tara earned minimal income in 2014 ($1,712).
[19] From September 2015 to August 2016, there is no evidence that Tara was enrolled in course work at this time, although the report of her psychiatrist states that she did not finish her Master’s thesis until March 2016. The report indicates that she had a lot of difficulty completing her thesis, due to her psychiatric symptoms. During 2015 Tara had a total income of $2,030.
[20] From September 2016 to August 2017, an unofficial transcript has been produced showing that during the summer of 2017, Tara continued to work on her thesis. Ms. Kim has provided no other independent evidence showing that Tara continued to devote her time to her education during this period. In 2016, Tara’s income was $12,786. This was her net rental income, after receiving gross rental income of $30,000.
[21] From September 2017 to August 2018, documentation has been provided that shows that in July 2017, Tara was enrolled in an alternative dispute program and that the last payment towards tuition was in March 2018. During this time Tara received $6,172 in OSAP funding. In 2017, Tara’s income tax return showed a negative income of approximately $8,000 which is attributable to a loss in rental income. In 2018, she earned $25,044, which was a combination of rental income and employment income.
[22] Mrs. Kim has provided evidence that Tara is carrying a number of student loans. As of December 17, 2016 her federal government loans totaled $35,103.22. As of January 31, 2018, Tara’s outstanding Ontario student loans totaled $15,570.60.
[23] It should be noted that Mrs. Kim completed a university degree in Korea but did not pursue any further education after coming to Canada. Mr. Kim’s highest level of education is two years of university in Korea, but he did not obtain a degree. He also studied for two years at Fanshawe College in London but did not receive any degree or diploma.
[24] The evidence also shows that Tara purchased a home in Toronto in December 2015 for $1,090,000 with a mortgage of $708,500. It is not known if Ms. Kim is a guarantor of that mortgage.
iii. Mental Health Issues
[25] Mrs. Kim maintains that Tara has been treated for mental health issues since July 2010. In support of this allegation, Ms. Kim has provided a note dated March 14, 2018 from Dr. Virey, a psychiatrist, which states that Tara Kim has been seen by him for multiple visits for psychiatric care since July 22, 2010. In a report authored by Dr. Virey dated March 23, 2016, he states that Tara has a significant history of depression, anxiety and manic symptoms. He states that she experienced significant adverse events growing up which included an unrelenting conflict between her parents, a conflicted relationship with her father and having to become a parent to her mother during the divorce trial and after her mother was seriously injured in a motor vehicle accident in 2011. He also indicated that Tara’s mental health challenges caused her to take longer period to complete her thesis, which was not done until March 2016. Dr. Virey also recognized a significant genetic predisposition to mental illness. Finally, Dr. Virey concluded that Tara suffered from bipolar disorder, depressed type.
[26] Ms. Kim admits that Tara has been involved in the family litigation since she has been 15 years old. Ms. Kim relied on her assistance after she could no longer afford counsel after 2009. Tara would have been 19 years old at that time.
[27] Both Mr. Kim and Ms. Kim admit that there is no relationship between Tara and Mr. Kim, which is acknowledged in the report of Dr. Virey. Ms. Kim maintains that this is solely as a result of Mr. Kim’s conduct, which includes hiding his income and assets, and refusing to pay support which resulted in Mr. Kim being sentenced to 60 days in jail. Mr. Kim asserts that he has been cut out of Tara’s life and has not spoken to her for 10 years.
[28] As indicated above, Ms. Kim suffered a catastrophic car accident in 2011 that left her with permanent injuries and serious cognitive problems. Tara acted as Ms. Kim’s primary care giver for a period and is now Ms. Kim’s power of attorney. While not specifically alleged, Ms. Kim appears to be taking the position that as a result of Tara taking care of Ms. Kim, her education was delayed, which caused Tara to remain a child of the marriage.
iv. Analysis
[29] Utilizing the factors set out in Menegaldo, I find as follows:
a) There is no evidence that Tara was in a full-time course of study for the first year after her graduation in May 2012. There is evidence that she was enrolled in a full time Master’s degree programme in the academic year 2013/2014 and 2014/2015. After the winter of 2015, there is no evidence of full time enrollment from an institution except the unofficial transcript which states she completed her Masters in the summer of 2017 and which shows that she was enrolled in the summer of 2017 (but not the academic year 2015/2016, or 2016/2017). The report of her psychiatrist, Dr. Virey, states that she did not complete her Master’s until March 2016 and that it probably took longer to complete her thesis due to her ongoing psychiatric symptoms. Evidence was provided that shows that Tara was enrolled in a programme for a certificate of alternative dispute resolution for the academic year of 2017/2018. The invoice for this programme indicates it was a full time programme;
b) Tara did avail herself of OSAP loans and grants for her Master’s and alternative dispute resolution certificate. The amounts received were disclosed;
c) It appears that Tara was not able to contribute to her own support during this period, until which time she purchased a home, and charged rental income. While I admire her attentiveness to her mother after her accident, this is not the “other reason” contemplated by s.2 of the Divorce Act, that would result in her remaining a child of the marriage;
d) There is no evidence before me about Tara’s education plans, other than there was thought of a law degree or a PhD. I am not able to determine how the Master’s degree relates to certificate in alternative dispute resolution. I am uncertain as to what Tara’s eventual plan is, and whether this latter course of study was an important part of it;
e) The evidence received from the University of Toronto shows Tara to be an excellent student;
f) I have little doubt that Tara is a mature young lady, having taken on more family conflict than a child should ever have to. Her good marks show her to be dedicated and is extremely responsible with regards to her education and her mother;
g) It is clear that the parents when together valued education. Tara attended a private school for high school. Tara was an only child and they were able to invest in her education alone. It was also clear that they intended that Tara attend university. There is no evidence of whether it was their intention that they support her through post-graduate studies. There are no other children to compare her to. Neither parent pursued post graduate education;
h) The means of the parents remains hotly disputed. Mr. Kim maintains he has limited income, and Ms. Kim maintains that Mr. Kim has hid his income. In Mr. Kim’s affidavit dated June 2018, he indicated that his income is a combination of disability or pension payments, plus commissions that continue to be paid to him. He did not indicate how much he receives in commissions. He claims income of only approximately $22,000, but claims expenses in excess of $28,000. Despite this limited income, he is managing to pay his monthly child support obligation with approximately one-half of his income being garnished. With respect to Tara, although she has minimal income, she purchased a home in 2015. While Ms. Kim may have been a part of that purchase, it does show at least Tara, if not Ms. Kim, was able to qualify for a mortgage of over $700,000.
i)Tara has not been accountable to her father for her post-secondary education plans and progress. Ms. Kim maintains that this is the result of Mr. Kim’s conduct. As noted by Pazaratz J. in an earlier endorsement, given Tara’s assistance to her mother in the family law litigation at an early age, and her subsequent role as a care giver to her mother, her allegiance to her mother is not surprising. Whether this withdrawal from the relationship with her father is justified is not clear on the limited record before me.
[30] Based on the foregoing, I find that Tara was not a child of the marriage from May 2012 until September 2013, but from September 2013 she was certainly a child of the marriage until the end of the academic year of 2015, due to pursuing a full time programme of study. During the time she was enrolled in her Master’s programme on a full time basis, there was no evidence that she was able to independently support herself, and in fact qualified for OSAP loans and bursaries during that period. While neither Mr. Kim nor Mrs. Kim pursued postgraduate work themselves, it is not unreasonable to assume they would support this had the family remained intact. Tara went to a private high school, although neither had done that. Tara completed her undergraduate degree, although her father never did. She was an only child in a family that valued education, and Tara was an excellent student.
[31] Following that, Dr. Virey’s report supports a finding that Tara continued to work on her thesis through the spring of 2016, but there is no explanation as to why she did not receive her Master’s until the summer of 2017. Accordingly, while there is medical evidence to support her taking longer to finalize her thesis until the end of the 2015/2016 academic year, I have no evidence to support Tara being in a full time field of study beyond this until she started her programme in alternative dispute resolution. This, coupled with Tara’s purchase of a home, does not support that position that she was unable to “…by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.”
[32] Accordingly, I find that commencing May 1, 2016, Ms. Kim has failed to establish that Tara continued to be a child of the relationship. Perhaps Tara continued to work on her thesis, but there was no enrollment in university until the summer of 2017. There was no other evidence presented as to what Tara did during that time. No further OSAP loans or bursaries were given beyond the 2014/2015 academic year until she enrolled it the alternative dispute resolution programme. Also, as of 2015, she started to show the ability to earn some income, albeit rental income, presumably from her mother.
[33] While I acknowledge the alternative dispute resolution programme was full time, I cannot find that this resulted in Tara becoming a child of the marriage again. By the time she started this programme, she was 27 years old and had not been in full time education for 1 to 2 years. I can see no correlation between the Master’s degree and this subsequent course. Whether the degree was in Asia Pacific Studies (as indicated on the unofficial transcript) or in Global Conflict (as indicated in submissions), no career path was explained, and no explanation was given as to why this subsequent programme was necessary. She also received a bursary that year which could be used to pay for these studies.
B. Should There be a Retroactive Adjustment
i. The Law
[34] When determining if a retroactive award is appropriate, the Supreme Court of Canada decision of D.B.S v. S.R.G. 2006 SCC 37, sets out a number of factors to consider. They are: (i) is there a reasonable excuse for why support or a variation was not sought earlier; (ii) what is the conduct of the payor parent; (iii) what are the circumstances of the child; and (iv) would a retroactive award result in a hardship: para. 94-116.
[35] It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent: D.B.S. at para. 123.
ii. Analysis
[36] Given that Mr. Kim didn’t serve his first Motion to Change until the later half of 2017, and that he didn’t commence the properly constituted Motion to Change until June 2018, he cannot seek a retroactive adjustment earlier than June 2015. Accordingly, there shall be no reimbursement for the year between the completion of Tara’s undergraduate education and the year she commenced her Master’s degree.
[37] In determining whether he can seek a retroactive adjustment for May 2016 to October 2018, the factors in D.B.S. should be considered.
[38] There is no reasonable excuse given by Mr. Kim for why a variation was not sought earlier. He claims he had no knowledge of what Tara was doing, but he did know that Tara would have graduated in May 2012, and that his support obligation continued. If he thought it appropriate, he could have brought this Motion to Change in the summer of 2012.
[39] Much was said by Ms. Kim about Mr. Kim’s conduct since their separation. Most of it focused on his conduct leading up to and during his trial in 2010, as well as his failure to pay his support obligations as they arose. She also noted that he originally brought this Motion to Change without leave of the court, which was in direct violation of the order that he obtain leave before so doing, given that he has been declared a vexatious litigant.
[40] The current circumstances of the child are not clear. Ms. Kim no longer seeks support for her. Tara owns a large residential property and charges rent. She has completed her education, but has government loans of over $50,000, some of which I surmise is attributable to her undergraduate degree as well. Given the length of her education, this amount of debt is not unreasonable.
[41] Ms. Kim has given evidence of the large amount that Mr. Kim still owes to her arising out of this litigation. He owes retroactive child support, retroactive section 7 expenses, and other non-support related debts. In response to this Motion to Change, she indicated that close to $300,000 was owed to her by Mr. Kim. These represent monies that Ms. Kim should have received many years ago, and that she has had to manage without, with difficulty. This is especially so in light of her debilitating motor vehicle accident in 2011.
[42] While I do acknowledge that the return of child support received after April 2016 would represent a hardship for her, Ms. Kim was aware from at least 2017 that Mr. Kim would seek to have child support terminated. Tara enrolled in more post-secondary education after this motion was brought. Whether she enrolled in this programme to avoid the termination of child support is not clear. It would appear evident though, that the days of child support were coming to an end, and it would be unreasonable for Ms. Kim to assume that just because Tara was in enrolled in any course of study, that she would be entitled to child support indefinitely.
[43] Accordingly, considering the factors set out in D.B.S., Mr. Kim is entitled to see a retroactive adjustment back to May 1, 2016.
Conclusion
[44] Accordingly, I make the following orders:
a) The support ordered in paragraph 1 of the order of the Honourable Madame Justice Snowie, dated September 3, 2010 is terminated, effective May 1, 2016;
b) Any overpayment of child support made by the Respondent Du Won Kim to the Applicant Hang Soon Kim for the support of Tara Kim, born March 6, 1990, shall be credited towards any other outstanding debt owed by the Respondent Du Won Kim to the Applicant Hang Soon Kim;
c) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, and subject to any direction by the case management judge, Mr. Kim shall serve and file his written submissions, restricted to two pages, single sided and double-spaced, exclusive of costs outline and offers to settle, no later than 4:30 p.m. on August 23, 2019; Ms. Kim shall serve and file her responding submissions, with the same restrictions, no later than 4:30 p.m. on September 6, 2019; any reply submissions by Mr. Kim, with the same size restrictions, shall be served and filed no later than 4:30 p.m. on September 13, 2019; if no submissions are received by August 23, 2019, there shall be no costs.
Fowler Byrne J.
Released: August 7, 2019
COURT FILE NO.: FS-06-58306-02
DATE: 20190807
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HANG SOON KIM
Applicant
- and -
DU-WON KIM
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: August 7, 2019