COURT FILE NO. D706/02

DATE: August 21, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bonnie Patricia MacEachern Applicant

– and –

Ivan Leslie Bell Respondent

Renée Roy, for the Applicant

Michael Clarke, for the Respondent

HEARD: May 13, 2019; June 26, 2019

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] The Applicant Bonnie Patricia MacEachern (“the Applicant”) and the Respondent Ivan Leslie Bell (“the Respondent”) were married on October 8, 1994 and eventually separated on April 24, 2002. They were divorced by order of Czutrin J. dated January 13, 2004. There are three children of their relationship, namely Chelsea Patricia Bell, born May 7 1996 (“Chelsea,” now 23 years of age), Nicholas Andrew Bell, born March 16 1998 (“Nicholas,” now 21 years old) and Jennifer Nicole Bell, born June 14, 2000 (“Jennifer”), who is 19 years old. All three children remained in the Applicant’s care following the parties’ separation. The Respondent also has an older child from a previous relationship, Richard Bell. There is a history of court proceedings between the parties and court orders dating from 2003. The most recent final order is that of Lafrenière J. dated November 20, 2014. On May 13, 2019 and June 26, 2019, I presided over the hearing of a Motion to Change that order, which the Respondent commenced on June 4, 2018. These are my Reasons for Judgment in relation to the Motion to Change Final Order and the counter-claims which the Applicant advanced in response.

[2] The November 20, 2014 order addressed the issues of access and child support relating to Nicholas and Jennifer. By way of overview, the order granted the Respondent access to Nicholas and Jennifer in the children’s discretion and on reasonable notice to the Applicant. With respect to child support, the order required the Respondent to pay the Applicant the Table amount for the two children under the Federal Child Support Guidelines, SOR/97-175, as amended (the “Guidelines”), in the amount of $1,611.00 per month commencing October 1, 2014, based on the Respondent’s stated annual income of $116,000.00, and specified that the parties were to share section 7 extraordinary expenses respecting the children in proportion to their incomes. Paragraph 7 of the order provided that the Table amount of support was to be adjusted annually on June 1^st, based on the Respondent’s income for the previous year.

[3] In his Motion to Change Final Order which was issued on June 4, 2018, the Respondent requested an order terminating his obligation to pay child support for Nicholas and Jennifer effective July 1, 2018. The Motion to Change materials were served on the Applicant in June 2018. The Respondent initiated this proceeding in response to two major events in his life. First, he was laid off from his employment on March 16, 2017, and his severance pay ended in mid-July, 2017. Second, he was diagnosed with terminal cancer in early July 2017. He has not worked since March 2017. At the outset of the hearing of the Motion to Change Final Order, an order was made on consent amending the Motion to Change Final Order to request an order terminating the Respondent’s obligation to pay child support for both children as of June 30, 2017. Subsequently during the hearing, counsel for the Respondent submitted that child support respecting Nicholas should in fact terminate as of June 30, 2016, when Nicholas finished high school and was 18 years of age. The Respondent’s position was that his obligation to support Jennifer should terminate effective June 30, 2017, notwithstanding that Jennifer was still under the age of majority at that time, because his income fell below the threshold for payment of child support by that point. In the alternative, the Respondent requested an order retroactively reducing his child support obligation effective June 2017, based on the reduction of his income and his inability to work in 2017. The Respondent acknowledged that he had underpaid the Table amount of child support from June 2015 until his child support obligation ended, and he agrees to an order adjusting the Table amount that he should have paid annually commencing June 1, 2015 in accordance with paragraph 7 of the November 20, 2014 order.

[4] In her Response to Motion to Change Final Order dated July 19, 2018, the Applicant indicated that she disagreed with the claims made by the Respondent in his Motion to Change Final Order. At the outset of the hearing, an order was made on consent amending her pleading to request that the Motion to Change be dismissed. However, at the hearing of the Motion to Change, Ms. Roy confirmed that the Applicant would agree to an order terminating the Respondent’s obligation to pay child support for Nicholas effective January 31, 2019. The Applicant’s position is that Jennifer remains entitled to child support to date. In her Response to Motion to Change, the Applicant requested an order retroactive to December 1, 2014 increasing the Table amount payable for Nicholas and Jennifer. At the hearing, her counsel clarified that she was seeking this relief only as of June 1, 2015, which is the date when the first adjustment of child support should have been made pursuant to the terms of the November 20, 2014 order. In addition, the Applicant seeks an order requiring the Respondent to contribute to Nicholas’ post-secondary education expenses, retroactive to September 2016, and to Jennifer’s post-secondary expenses commencing September, 2018.

[5] The issues to be determined in this case are as follows:

1. Have there been any material changes in circumstances relevant to child support since the order dated November 20, 2014 was made?

2. When did Nicholas’ child support entitlement end?

3. Has Jennifer’s entitlement to child support ended, and if so, when did it end?

4. Should the Applicant be permitted to advance a claim for a retroactive increase in the Table amount of child support for Nicholas and Jennifer?

5. If the answer to question #3 is yes:

a) What is the appropriate commencement date for a retroactive increase in the Table amount?

b) Should any retroactive adjustments to the Table amount be based on the Respondent’s income in the year for which the adjustments are made, or on the Respondent’s income for the previous year in accordance with paragraph 7 of the November 20, 2014 order?

c) Should any retroactive adjustments to the Table amount be effective June 1^st, which was the date for adjustments set out in the November 20, 2014 order, or January 1^st of the applicable year?

d) What is the appropriate approach to calculating any retroactive child support for 2015 and 2016, taking into consideration that the Respondent’s income was over $150,000.00 in those years?

e) Once Nicholas turned 18 years of age on March 16, 2016, what was the appropriate approach to calculating child support for him? and

f) What is the appropriate Table or other amount payable for each year of any retroactive claim?

6. Should the Applicant be permitted to pursue a retroactive claim for contribution from the Respondent towards Nicholas’ post-secondary expenses, commencing September 2016, and if so:

a) What is the appropriate commencement date for such a retroactive claim?

b) What is the appropriate approach to calculating any retroactive contribution from the Respondent to these expenses? and

c) What amount, if any, should the Respondent be required to contribute to those expenses?

7. If Nicholas’ or Jennifer’s entitlement to child support did not end prior to the commencement of these proceedings, should the Respondent be permitted to advance a claim for a retroactive reduction of his child support obligation?

8. If the answer to question #6 is yes:

a) What is the appropriate commencement date for any such retroactive reduction; and

b) What is the appropriate reduced amount that he should have paid?

8. If Jennifer remained entitled to support after her 18^th birthday on June 14, 2018:

a) What is the appropriate approach to calculating the Respondent’s child support obligation in relation to her after that time; and

b) What if any amount of child support should the Respondent be required to pay?

9. What has the Respondent’s income been since 2014 for child support purposes?

[6] For the reasons set out below, I have concluded as follows:

1. There have been material changes in circumstances relevant to the issue of child support since November 20, 2014.

2. The Application should be permitted to advance a claim for retroactive increases in support commencing June 1, 2015, and the Respondent should be permitted to advance a claim for a retroactive reduction of support commencing June 1, 2017.

3. The Respondent should pay the full Table amount of support for Nicholas and Jennifer commencing June 1, 2015 based on his total 2015 income for child support purposes.

4. The Respondent should pay the full Table amount of support of Nicholas and Jennifer commencing January 1, 2016 based on his total 2016 income for child support purposes.

5. The standard Guidelines approach to calculating child support as set out in section 3(1) of the Guidelines became inappropriate for Nicholas as of June 1, 2017, and the quantification of support as of that time should be undertaken pursuant to section 3(2)(b) of the Guidelines. Commencing June 1, 2017, the Respondent’s monthly child support obligation for Nicholas and Jennifer should be reduced taking into account Nicholas’ ability to make a contribution towards his own support.

6. Similarly, the standard Guidelines approach for calculating child support became inappropriate for Jennifer after she turned 18 years of age on June 14, 2018.

7. The Respondent should not be required to contribute to Nicholas’ and Jennifer’s post-secondary education expenses.

8. Nicholas’ entitlement to support ended on June 30, 2018. Jennifer’s entitlement ended on December 31, 2018. However, based on Jennifer’s overall condition, means, needs and circumstances after she turned 18 years of age, she had the financial means to fully cover her own basic needs. Accordingly, the Respondent’s obligation to pay child support for both Nicholas and Jennifer terminated as of June 30, 2018.

9. The net result of the child support analysis in this case is that the Respondent owes the Applicant arrears of child support in the amount of $1,363.00 up to and including June 30, 2018, when his obligation to pay support terminated.

PART II: BACKGROUND AND SIGNIFICANT EVENTS SINCE NOVEMBER 2014

I. OVERVIEW OF COURT PROCEEDINGS

[7] As indicated above, the parties separated on April 24, 2002, after a 7.5 year marriage. The children were 6, 4 and 2 years of age at the time of the separation, and they remained in the Applicant’s primary care. The Applicant commenced Family Law proceedings following the separation, which culminated in a final order of Czutrin J. dated December 1, 2003. Pursuant to that order, the Applicant was granted custody and primary residence of the children Chelsea, Nicholas and Jennifer, and the Respondent was granted specified access rights. The Respondent was required to pay the Applicant child support for the three children in the amount of $1,212.00 per month and spousal support of $1,000.00 per month based on his annual income of $70,000.00. The order also directed the parties to exchange their Income Tax Returns and Notices of Assessment by June 30^th each year.

[8] The December 1, 2003 order remained in effect until January 10, 2007, when a variation order was made. On that date, Mazza J. granted a final order terminating the Respondent’s obligation to pay the Applicant spousal support effective October 31, 2006. He also varied the Respondent’s child support obligation, ordering him to pay child support for the three children in the sum of $1,525.00 per month commencing January 1, 2007, based on his 2006 income of $80,000.00. Paragraph 9 of the order required the parties to share the children’s s. 7 extraordinary expenses in proportion to their incomes, but paragraph 10 stipulated that neither party would commit to an extraordinary expense for which they sought contribution unless consent to the expense was obtained from the other party in advance. The order specified that extraordinary expenses may include “dance, hockey, martial arts, etc.” Paragraph 12 of the order directed ongoing annual exchange of income information and stipulated that the amount of child support would be adjusted annually on June 1^st, based on the Respondent’s income for the previous year.

[9] The Applicant sought to review child support again in 2014. Her former counsel, Mr. MacLeod, sent the Respondent correspondence on June 4, 2014 in which he noted that the Respondent had not provided the Applicant with his income disclosure since the final order dated January 10, 2007. He advised that Chelsea would be starting post-secondary studies at Humber College in September 2018, and raised the issue of contribution to Chelsea’s post-secondary education expenses. Mr. McLeod requested that the Respondent produce his Notices of Assessment for 2011 to 2013. The Respondent’s evidence is that the parties filed a Consent Motion to Change Final Order soon after these discussions regarding support began, but the Applicant denies that there was a consent proceeding. In any event, the parties resolved the child support issues, and their agreement formed the basis of the current final order of Lafrenière J. dated November 20, 2014. The important terms of the November 20, 2014 for the purposes of this proceeding are as follows:

1. The January 10, 2007 order was varied to provide that the Respondent would pay child support to the Applicant for only Nicholas and Jennifer commencing October 1, 2014. There was no provision made for ongoing support for Chelsea, who had turned 18 years of age on May 7, 2014 and was attending Humber College at that time. The Respondent’s monthly child support obligation for Nicholas and Jennifer was set at $1,611.00 per month, based on the Respondent’s representation that his annual income was $116,000.00.

2. Arrears of child support owed by the Respondent to the Applicant up to that date were fixed at $4,500.00.

3. The parties were to contribute to Nicholas’ and Jennifer’s section 7 extraordinary expenses on a proportionate-to-income basis. Again, the order specified that these expenses may include “dance, hockey martial arts etc.” The term of the previous order requiring the parties to consent in advance to extraordinary expenses as a condition to contributing to them was continued.

4. Paragraph 7 of the order continued the parties’ obligation to exchange complete Income Tax Returns with all attachments on a yearly basis, and to adjust child support annually each June 1^st based upon the Respondent’s income for the previous year.

[10] The Respondent continued to pay the Applicant child support for Nicholas and Jennifer in the amount of $1,611.00 per month until June, 2018, with his last payment being June 4, 2018. Although he had fallen into arrears of support at times after November 20, 2014, he had no arrears of support as of that time. He unilaterally stopped paying support after June 4, 2018. As previously noted, he issued the current Motion to Change Final Order on June 4, 2018, seeking a termination of his child support obligation respecting both children. The parties attended a Dispute Resolution Officer (“DRO”) Case Conference on September 12, 2018 and agreed at that time to exchange further financial and medical disclosure. They attended a Settlement Conference before Brown J. on November 13, 2018. The matter was eventually scheduled for a hearing, which began before me on May 13, 2019. On that date, I made a temporary order on consent of the parties suspending enforcement of the November 20, 2014 support order pending further order of the court. The hearing continued before me on June 26, 2019.

II. THE CHILDREN’S CIRCUMSTANCES SINCE NOVEMBER 2014

A. Chelsea

[11] I include an overview of Chelsea’s general circumstances since 2014 in these Reasons because both parties made references to her situation since 2014 and the Respondent’s support of her in the past in their arguments before me. Chelsea turned 18 years of age on May 7, 2014, and completed high school in June 2014. She began to attend Humber College in the Interior Decorating program in September 2014. At the time of the November 20, 2014 order, she was living in Toronto for school and returning to the Applicant’s care for weekends, all major holidays and summer breaks. She graduated from Humber College at the end of April 2016. She received grant monies totalling $6,720.00 during her studies and incurred student loans totalling $18,274.00.

[12] The Respondent did not contribute to Chelsea’s support after August 2014, and did not assist her with her post-secondary studies while she attended Humber College from September 2014 until April 2016. The Applicant assisted Chelsea financially to the best of her ability, but as discussed below, her ability to do so was limited due to her very low income. The Applicant alleges that she wished to pursue ongoing child support for Chelsea in the fall of 2014, but that the Respondent strongly resisted paying further support for her. Her evidence was that she was unemployed at the time, and that she could not afford to continue paying her lawyer. She also states that the Respondent used pressure tactics regarding child support in the fall of 2014, threatening to pursue custody and primary residence of Nicholas and Jennifer if she did not agree to exclude Chelsea from the child support order. The Respondent denies that he pressured the Applicant to exclude Chelsea from the child support order. He states that the parties both agreed at that time that they would not contribute to Chelsea’s post-secondary education, since Chelsea had secured student loans to cover her expenses.

B. Nicholas

[13] Nicholas turned 18 years of age on March 16, 2016 and graduated from high school in late June 2016. He continued to live with the Applicant after he graduated, and enrolled in the Police Foundations program at Mohawk College in Hamilton in September 2016 with the goal of becoming a police officer. He completed this program in late April 2018, and lived with the Applicant throughout his studies at Mohawk College. Nicholas worked part-time while he attended Mohawk College in the area of security services, as a stepping stone to his goal of becoming a police officer. The fees for the Mohawk College Police Foundations program, including tuition and other mandatory school fees, for the period from September 2016 until April 2018 totalled $17,127.94. In addition to these fees, he had expenses for transportation, books and supplies. Nicholas purchased a car to get to and from school and work, and he covered his transportation expenses including registration and licencing fees, gas, insurance, and repair and maintenance costs. The Mohawk College Account Summary respecting Nicholas’ attendance indicates that Nicholas received a Canada Student Loan of $7,243.46 while he attended Mohawk, which he applied towards his fees. The Applicant provided housing for Nicholas while he attended Mohawk College and some financial assistance, although her ability to do so was very limited due to her low income.

[14] Nicholas continued to reside with the Applicant until September 2018, when he went to live in Pembroke, Ontario to pursue further studies at Algonquin College in the Outdoor Adventure program. The Applicant’s evidence was that Nicholas was unable to find a job in a police service after he completed the Police Foundations program, and that he enrolled in the Outdoor Adventure program in the hope that it would bolster his chances of obtaining a position as a police officer at a later time. Nicholas did not complete the Outdoor Adventure program, and it is unclear when he abandoned these studies. The Applicant alleges that he left the program because he could no longer afford post-secondary studies without assistance from the Respondent. As of mid-January 2019, Nicholas was still living in Pembroke and holding down two jobs, at Rexall Pharmacy and Little Caesar’s restaurant.

[15] The total fees for the first two semesters of the Outdoor Adventure program were $9,562.61. Nicholas’ rent expense in Pembroke was $680.00 per month, for a total of $3,400.00 for the period from September 1, 2018 to January 31, 2019. In addition, he had equipment expenses for the program totalling $1,533.62. Accordingly, his total expenses for fees, housing and equipment for this program were approximately $14,496.23. Nicholas incurred total student loans of $13,284.79 for the Police Foundations and Outdoor Adventure Programs. As I have indicated, the sum of $7,243.46 was applied towards fees for the Police Foundations program. Accordingly, I conclude that approximately $6,041.33 of the loan monies were applied towards the Outdoor Adventure program.

[16] Although the Respondent continued to pay monthly child support for Nicholas until June 4, 2018, he did not contribute to any of Nicholas’ post-secondary expenses. During the Police Foundations program, the Applicant provided food and housing for Nicholas. While Nicholas was at Algonquin College, she paid his rental expenses from September 1, 2018 to January 31, 2019 totalling $3,400.00 and contributed an additional $2,234.29 to pay off a federal loan and provincial grant monies that Nicholas had received for his second term.

[17] As noted above, Nicholas worked on a part-time basis throughout his post-secondary studies. In addition, he received Canada Pension Plan (“CPP”) child disability benefits commencing in 2017, based on the Applicant’s entitlement to CPP disability benefits. His income from 2015 to 2018 was as follows:

2015

$358.00

2016

$5,226.00

2017

$33,751.00

Of this amount, $24,331.00 was employment income and $9,420.00 was CPP child disability benefits. He was required to pay $333.00 towards union dues.

2018

$23,172.20

Of this amount, $19,513.46 was employment income and $3,658.74 was CPP child disability benefits. He was required to pay $217.00 towards union dues.

[18] No evidence was adduced respecting Nicholas’ income in 2019. However, as previously indicated, he was working at both Little Caesar’s restaurant and Rexall Pharmacy in Pembroke as of mid-January 2019.

C. Jennifer

[19] Jennifer turned 18 years of age on June 14, 2018 and graduated from high school in late June 2018. She has remained in the care of the Applicant since that time. The Applicant’s evidence is that Jennifer has experienced serious emotional and general health challenges since early 2018. In particular, she explained that Jennifer had a very difficult time coping with her father’s illness and other personal issues in her life, and tried to commit suicide in March 2018. She asserted that the Respondent was not supportive of Jennifer throughout this time, and that this caused Jennifer even more distress. According to the Applicant, Jennifer has great difficulty sleeping and is currently on medication to assist her to remain emotionally stable. She produced a copy of Jennifer’s prescription for her medication, which was dated December 4, 2018. In addition, the Applicant asserted that Jennifer began to experience physical health difficulties in 2018, and that her symptoms included vomiting blood. The Applicant adduced evidence that Jennifer underwent a gastroscopy in October 2018 to determine the source of the problems. Jennifer engaged in counselling to address her mental and physical health challenges, but she could not continue because it became too expensive.

[20] The Applicant indicated that Jennifer’s original intention was to enroll in full-time studies at Guelph University in the two year Equine Studies program, commencing in September 2018. However, she stated that Jennifer did not feel emotionally or physically well enough to live and study on campus as of September, 2018, and she therefore remained at home. Instead of attending courses on campus, Jennifer enrolled in two online courses through Guelph University on August 23, 2018. The two courses were Equine Behaviour and Equine Nutrition, which are part of the Equine Studies program. Although the courses were online, they were considered to be a full time program. Jennifer paid the fees for these courses, which totalled $1,098.00. In addition, she incurred $1,590.98 for a computer and headphones required to take the online courses. Jennifer did not receive any student loans or grants to cover these expenses.

[21] Jennifer worked part-time at Walmart in 2017, and began working at Bayview Farms as a stable hand after she graduated from high school in June 2018. She purchased a car to get to and from work and has paid for the expenses related to the vehicle, including registration and licencing fees, gas, insurance and maintenance costs. Jennifer has also received CPP child disability benefits since 2017. The Applicant alleges that Jennifer only worked a couple of shifts at Bayview Farms in September 2018 and then stopped working after she started her Equine Studies courses. However, text exchanges between the Respondent and Jennifer which the Respondent adduced as evidence indicate that Jennifer continued to work some shifts at the farm after September 2018, and that she was working full-time at the farm by early 2019. The Respondent’s evidence is that as of January 2019, Jennifer informed him that she was working at the farm full-time, 5 to 6 days a week, 9 hour days and earning $16.00 per hour. This would translate into an annual income of approximately $41,200.00. On March 11, 2019, Jennifer advised the Respondent in a text message that she would be starting a new job in the cleaning industry starting March 12, 2019, because “working at the barn full-time” hurt her back too much.

[22] Jennifer’s income as reported in her Income Tax documents since 2015 has been as follows:

2015

$4,057.00

2016

$3,102.00

2017

$21,884.00

Of this amount, $10,552.00 was from employment and $11,332.00 was from CPP child disability benefits

2018

$11,309.00

Of this amount, $6,920.00 was from employment and $4,389.00 was from CPP child disability benefits

III. THE APPLICANT’S CIRCUMSTANCES SINCE NOVEMBER 2014

[23] The Applicant has been unemployed since September 10, 2013, when she was involved in a serious motor vehicle accident. She has suffered chronic pain due to a neck injury, a herniated disk and migraine headaches since that time. She was found to be eligible for CPP disability benefits, and began receiving those benefits in 2017. She received a damages settlement in connection with the car accident in 2018, in the amount of $120,000.00.

[24] The Applicant’s income since 2014 as reported in her Income Tax documents has been as follows:

2014

$11,166.00

2015

$11,440.00

2016

$5,040.00

2017

$12,286.00

This is the amount of income noted in the Applicant’s Notice of Assessment for 2017. However, as I will discuss in further detail below, I have concerns as to whether this reflects her actual total income for that year. The Applicant acknowledged during the course of the hearing that the income tax information that she had filed for Nicholas and Jennifer for 2017 did not reflect the fact that they had received CPP child disability benefits that year, which included a significant retroactive component. Those child disability benefits flowed from the fact that she was found to be entitled to disability benefits. This information only came to light when I questioned the Applicant’s counsel about the 2017 income figures noted in the children’s 2018 Comparative Tax Summaries that were attached to their 2018 Income Tax Returns, and which showed significantly higher incomes for the children in 2017. Given that the children received a significant retroactive CPP child disability benefit in 2017, the question arises as to why the Applicant’s 2017 Notice of Assessment which she filed showed disability income in a lesser amount than in 2018, with no apparent major retroactive component.

2018

$13,161.50

Of this amount, $12,213.00 was from CPP disability benefits, and $947.90 was from interest and other investment income.

[25] The Applicant expects that there will be no significant change to her income in 2019.

[26] The Applicant owned and resided at a home in Waterdown until early 2019. Her evidence was that she had to sell this home because she could not manage financially and she wished to provide some ongoing assistance to the children in the pursuit of their endeavours. The house sold on January 24, 2019 for $740,000.00. The mortgage on the home was approximately $400,000.00, and therefore the net proceeds of sale including real estate commission but not inclusive of other costs of disposition would have been approximately $310,000.00. As of April 30, 2019, the Applicant was living in a rental unit and paying rent of $2,500.00 per month. She had total savings of $272,000.00 from the settlement proceeds relating to the motor vehicle accident and the sale of her home. She had no other significant assets other than a vehicle worth approximately $7,000.00. Her only outstanding debt at that time was a $7,000.00 balance on her Capital One Mastercard.

IV. THE RESPONDENT’S CIRCUMSTANCES SINCE NOVEMBER 2014

[27] At the time of November 20, 2014 order, the Respondent was working as a business unit controller for Westrock Company of Canada (“Westrock”). His employment at Westrock continued until March 16, 2017, at which time he was permanently laid off from his position. He received a severance amount of $51,000.00, representing 4 months’ wages. His final pay period ended on July 15, 2017. Correspondence from the Human Resources Director of Westrock, Mr. Amato Della Vecchia, dated April 3, 2017 confirmed that the Respondent was a very valued, skilled and reliable employee, and that the layoff was related purely to company restructuring.

[28] Regrettably, the Respondent was diagnosed as suffering from stage 4 terminal bone and lung cancer in July 2017, around the same time as his severance pay ran out. At that time, he was given a prognosis of 15 months to live. Nonetheless, he began radiation therapy, which ended in August 2018. He was participating in a clinical trial involving chemotherapy combined with immunotherapy as of January 2019. His oncologist, Dr. David Wasserman, has confirmed in a report dated September 19, 2018 that he is unable to work due to his illness and ongoing treatment needs.

[29] The Respondent applied for and was granted short-term CPP disability benefits in the amount of $500.00 per week from September until December 2017. He began to receive long-term CPP disability benefits in the amount of $850.00 per month in December 2017. He will be 61 years of age on September 18, 2019, and will receive CPP disability benefits until the age of 65, at which point he will begin to receive regular CPP benefits. In 2018, he began to receive annuity income.

[30] The Respondent does not own a home, and he has been residing with his adult son and daughter-in-law since his cancer diagnosis. As of May 23, 2018, when he swore his only Financial Statement filed in this proceeding, the Respondent indicated that he had annual income of $10,200.00 from CPP disability benefits, and that he had savings in the form of a bank account ($26,000.00), a TD Wealth Management investment account ($350,000.00) and an RRSP with TD Wealth Management ($250,000.00). The total value of these savings was approximately $626,000.00, and he stated that he had no debts. In his affidavit sworn January 31, 2019, he asserted that his income and expenses had not changed, but that his savings had declined in value to $525,000.00 (after tax). In fact, as I will discuss in further detail below, his 2018 Income Tax Return which he filed mid-way through the hearing reflected that his total 2018 income for child support purposes was $79,326.03. In addition, the evidence indicates that the amount of his savings had actually increased to $648,744.24. As of January 31, 2019 his bank account had a balance of $5,363.39, his RRSP had a value of $375,856.70 and his TD investment account had a value of $267,524.15.

PART III: POSITIONS OF THE PARTIES

I. THE RESPONDENT’S POSITION

[31] The Respondent seeks an order terminating his obligation to pay support for Nicholas as of June 30, 2016, and terminating his child support obligation respecting Jennifer effective June 30, 2017. Dealing first with Nicholas, the Respondent advanced the following arguments:

1. He argued that Nicholas turned 18 years of age on March 16, 2016, and that he was able to withdraw from parental charge as of June 30, 2016, when he graduated from high school.

2. The Respondent highlighted Nicholas’ income of $33,751.00 in 2017 and $23,172.20 in 2018, and argued that Nicholas had the ability to be completely self-sufficient with this amount of income.

3. Although Nicholas was enrolled in post-secondary studies from September 2016 until mid-January 2019, the Respondent argued that he should not be required to contribute to his support during that period of time for several reasons. First, he argued that paragraph 6 of the November 20, 2014 order required that the Applicant obtain his consent prior to requesting contribution to s. 7 expenses, including post-secondary expenses. Second, he emphasized that neither the Applicant nor Nicholas advised him of Nicholas’ enrolment in the Mohawk College or Algonquin College programs or of Nicholas’ progress in his post-secondary studies. Third, he noted that the Applicant did not provide documentary proof that Nicholas completed the Police Foundations program, and that he did not in fact finish the Outdoor Adventure Program at Algonquin College. Fourth, in regard to the Outdoor Adventure Program, he submitted that it was not a reasonable choice or plan in relation to Nicholas’ stated objective of becoming a police officer.

4. The Respondent further argued that the parties had an agreement when Chelsea began her post-secondary studies that they would not contribute to her ongoing support, since she was able to fund her educational expenses through loans. His position was that the parties had an intention to treat Nicholas and Jennifer in the same way as Chelsea in this regard.

5. Counsel for the Respondent submitted that the Applicant had not satisfied the test which the Supreme Court of Canada set out in D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (S.C.C.) (hereinafter referred as “D.B.S”) for pursuing a retroactive claim for contribution to Nicholas’ post-secondary expenses.

6. Finally, the Respondent argued that as of June 30, 2017, his income on an annualized basis fell below the threshold level for payment of child support under the Guidelines.

[32] The Respondent’s position respecting support for Jennifer was based on the following arguments:

1. Again, he argued that his income on an annualized basis fell below the threshold level for payment of support under the Guidelines as of June 30, 2017.

2. In the alternative, the Respondent submitted that Jennifer’s entitlement ended by June 30, 2018, by which time she had completed high school and was 18 years old. He submitted that Jennifer did not pursue any post-secondary studies in earnest after she graduated from high school in June 2018, and that she was perfectly able to withdraw from parental charge as of that time. He disputed the suggestion that taking two online courses offered through the Equine Studies program at Guelph University rendered Jennifer unable to withdraw from parental charge, and noted that the Applicant never provided proof that Jennifer followed through in actually taking the courses or that she completed them.

3. Again, he argued that paragraph 6 of the November 20, 2014 order required the Applicant to obtain his consent in advance to any s. 7 expenses before requesting contribution from him, and that she failed to do so with respect to Jennifer’s expenses associated with the online Equine Studies courses. In any event, he relied on the alleged intention of the parties that they expected both Nicholas and Jennifer to support themselves through their post-secondary studies.

4. He submitted that Jennifer’s income from her employment and her CPP child disability benefits was such that she was financially self-sufficient as of June 30, 2017.

5. The Respondent rejected the proposition that Jennifer was unable to withdraw from parental charge due to mental health and physical difficulties. He submitted that the Applicant did not adduce sufficient evidence to support ongoing entitlement to support for Jennifer on this basis.

[33] In the alternative to his claims respecting the termination of the children’s entitlement to support, the Respondent seeks a retroactive reduction of his support obligation based on the decrease in his income since June, 2017, his inability to work since March 2017 and changes in the children’s condition, means, needs and circumstances since November 2014.

[34] The Respondent acknowledged that he did not adjust the Table amount of child support based on increases in his income commencing June 1, 2015, as he was required to do pursuant to paragraph 7 of the November 20, 2014 order. He agrees to an order adjusting the Table amount retroactively commencing June 1, 2015, but states that the adjustment should be based on his income from the previous year, as provided for in paragraph 7.

[35] With respect to any necessary adjustments to the quantum of child support payable, the Respondent asserted that the parties agreed that the amount of his CPP survivor widower’s pension would be excluded from his income for child support purposes. He requests that the court respect this agreement in determining his income for the purposes of any necessary adjustments to the child support payable by him. In addition, he argued that although he has significant savings at this time, he requires those funds to meet his daily needs, and he wishes to preserve them in the event that he is able to find appropriate treatment for his cancer outside of Canada.

[36] Finally, the Respondent submits that he has overpaid the Applicant child support, and he seeks an order requiring her to reimburse him the full amount of any overpayment.

II. THE APPLICANT’S POSITION

[37] The Applicant argued that Nicholas remained entitled to support until January 31, 2019, and that Jennifer remains entitled to support to date. With respect to both children, she requested an order adjusting the Table amount payable by the Respondent commencing June 1, 2015, in accordance with paragraph 7 of the November 20, 2014 order, using the Respondent’s previous year’s income as the basis for those adjustments. With respect to the Respondent’s income for child support purposes, she denied that the parties ever agreed that the amount of his CPP survivor widower’s pension would be excluded for the purposes of calculating the appropriate quantum of support. She also rejects that argument that the Respondent’s income fell below the threshold for payment of child support as of July 1, 2017.

[38] In regard specifically to Nicholas, the Applicant advanced the following arguments:

1. She submitted that he remained enrolled in full-time post-secondary studies until January 2019, and that the only reason he failed to complete the Outdoor Adventure program was that he was not receiving assistance from his father and could no longer manage financially. Her position was that the studies which Nicholas undertook were reasonable and related to his goal of becoming a police officer.

2. She asserted that despite the income which Nicholas earned, particularly in 2017 and 2018, he remained unable to withdraw from parental charge until January 2019 due to his post-secondary studies and the fact that he was covering most of his post-secondary education expenses, including tuition costs, the purchase of a vehicle and all vehicle-related expenses.

3. She disagreed that paragraph 7 of the November 20, 2014 order required her to obtain the Respondent’s consent in advance to post-secondary expenses if she wished to seek contribution from him, noting that paragraph 7 only refers to extraordinary expenses.

4. She denied that there was ever any general agreement between the parties that they would not contribute to the children’s post-secondary education expenses, or any mutual intention that they would treat Nicholas and Jennifer in the same manner as they treated Chelsea with respect to support during her post-secondary education. In fact, she argued that she only agreed to remove Chelsea from the child support order on November 20, 2014 due to intense pressure and intimidation from the Respondent, her inability to pay her lawyer any longer and her desperate need for increased support for Nicholas and Jennifer.

5. She claimed that she had satisfied the test for being permitted to advance a claim for retroactive adjustments to the Table amount of support as well as retroactive contribution to Nicholas’ post-secondary expenses.

6. Her position is that the standard Guidelines approach remained appropriate for calculating the amount of child support payable for Nicholas throughout the entire period of his entitlement to support.

[39] With respect to Jennifer, the Applicant submitted the following:

1. She argued that Jennifer has been unable to withdraw from parental charge since turning 18 years old in June 2018 and finishing high school at that time, due in large part to physical and mental health difficulties that she has been experiencing since March 2018.

2. She submitted that Jennifer’s inability to withdraw from parental charge from September 2018 until December 2018 was also attributable to Jennifer’s enrolment in the online post-secondary courses offered through the Equine Studies program at the University of Guelph. Her position was that these courses represented a full-time studies load, and that they were reasonable and well suited to Jennifer’s long-term career objectives.

3. She asserted that Jennifer’s income since she turned 18 years old has not been sufficient to permit her to become financially self-sufficient.

4. Her position is that the standard Guidelines approach remained appropriate for calculating child support after Jennifer turned 18 years of age on June 14, 2018.

5. The Applicant submitted that Jennifer’s expenses relating to the Equine Studies courses that she took were necessary in relation to Jennifer’s best interests and long-term career goals and were reasonable having regard for the financial means of Jennifer and the parties. She therefore seeks a contribution from the Respondent towards those expenses.

With respect to both children, the Applicant stressed that the Respondent has significant savings, and that he clearly has the ability to contribute to their support. By contrast, she emphasized that she has a very low income and a much lower net worth than the Respondent, but that she has nonetheless attempted to assist the children financially to the best of her ability.

PART IV: ANALYSIS

I. THE LAW RESPECTING CHILD SUPPORT VARIATION UNDER THE DIVORCE ACT

A. Statutory Provisions and General Principles

[40] The order dated November 20, 2014 that is the subject of this Motion to Change Final Order was made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), and therefore the child support variation provisions of that Act govern the analysis of the parties’ respective claims. Section 17(1) of the Divorce Act is the starting point for the determination of a child support variation case. It provides as follows:

Order for variation, rescission or suspension

17 (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; or

b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

[41] Although section 17(1) refers to orders for “variation, rescission or suspension” of a support order, the definition of “variation order” under section 2 of the Divorce Act clarifies that any order made under section 17(1) is considered a variation order for the purposes of the Act. Section 17(3) of the Act stipulates that the court may include in a variation order any provision that under the Act could have been included in the order in respect of which the variation order is sought. This section must be read in conjunction with sections 15.1(2) and 15.1(4) of the Act, which provide that the court deciding an original child support application may make interim support orders, can make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[42] The powers of the court on an application to change a child support order or adjust outstanding arrears of child support under section 17(1) of the Divorce Act are broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The powers of the court in a variation proceeding also include ordering appropriate set-offs (Campbell v. Chappel, 2006 CarswellNWT 28 (S.C.)).

[43] Notwithstanding the broad powers available to the court by virtue of section 17(1), 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 (Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.), at para. 20; Gray v. Rizzi, 2016 ONCA 152 (C.A.), at para. 26).

[44] Section 37(2.1) of the Divorce Act reinforces the point that a child support variation proceeding is not an appeal of the original order by delineating a threshold test that must be established in order to bring such a motion. Specifically, it stipulates that before making a child support variation order, the court must satisfy itself that there has been a “change of circumstances” as provided for in the Guidelines since the making of the original order or an existing order:

Factors for child support order

17(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.

[45] The case-law has established that a change will only meet the threshold test for variation of support if it is “material” in nature (Willick, at para. 22).

[46] The statutory framework outlined above dictates a two-pronged inquiry in a child support variation proceeding under the Divorce Act, as follows:

1. First, the court must determine if there has been a material change of circumstances as provided for in the Guidelines; and

2. Second, if the court concludes that the requisite change has occurred, it must then decide what variation, if any, should be made to the order in light of the change

(Willick, at para. 21; Punzo v. Punzo, 2016 ONCA 957 (C.A.), at para. 43).

[47] On a Motion to Change Final Order, the onus is on the moving party to prove both the changes in circumstances they are relying on to justify the requested variations and the appropriateness of the relief that they are seeking (Punzo, at para. 26). In determining whether the moving party has met this onus, the court must consider the evidence and arguments of both parties (Punzo, at para. 26).

B. The Meaning of “Material Change In Circumstances”

[48] Section 17(4) of the Divorce Act clearly specifies that the threshold test on a Motion to Change child support will only be satisfied if there has been “a change in circumstance as provided for in the applicable guidelines.” Section 14 of the Guidelines is the relevant provision for determining the type of change that will justify a variation of a child support order. It provides as follows:

Circumstances for variation

14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

[49] Section 14 of the Guidelines and the case-law respecting section 17(4) of the Divorce Act clarify that in order to satisfy the threshold test in a child support variation proceeding, the change relied on must relate to the needs of the child, the means of the parents or both. As the Supreme Court of Canada stated in Willick, at para. 22:

[It] is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents. The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way. There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered.

[50] By virtue of section 14 of the Guidelines, examples of when the threshold test will be met include where there has been a material change in the payor spouse’s income, where the circumstances have changed such that the Table amount is no longer appropriate, or if the child is no longer entitled to support. Where a payor parent relies on the child’s loss of eligibility for support to meet the threshold test for variation, the proceeding is essentially a matter of giving effect to the intent that the original order should only continue for so long as entitlement existed (Erskine v. Erskine, 2011 CarswellBC 1888 (S.C.)).

[51] In determining the type of change in circumstances that is sufficient to ground a child support variation claim under the Divorce Act, it is useful to draw upon the case-law respecting child and spousal support variation proceedings under both the Family Law Act, R.S.O. 1990, c. F-3, as amended and the Divorce Act, since all such proceedings require the court to consider whether a change in circumstances has occurred. The cases establish that the threshold “material change in circumstances” test for variation proceedings ensures that the focus in Motion to Change proceedings remains on developments that have occurred since the existing order was made. Since the analysis of the threshold test starts with the existing order and the factual basis upon which it was made, the change(s) that the moving party relies on must have occurred since the existing order was granted. Section 17(4) of the Divorce Act specifically stipulates that the change in circumstances required to meet the threshold test for a variation of child support must have occurred “since the making of the child support order or the last variation order made in respect of that order.” Accordingly, a party cannot later meet the threshold test for a variation proceeding by relying on changes in circumstances that occurred prior to the making of the existing order (Gray v. Rizzi, at para. 23). Furthermore, as the Supreme Court of Canada noted in the context of variation of spousal support orders, the analysis of whether there has been a material change in circumstances involves a careful analysis of the evidentiary basis upon which the existing order was made (L.M.P. v. L.S., [2011] 3 S.C.R. 775 (S.C.C.), at para. 34). Failing to adduce such evidence will constitute a critical evidentiary gap that will impede the court’s ability to carry out the first stage of the analysis in a variation proceeding (Droit de la famille- 09668, sub nom R.P. v. R.C., 2011 CarswellQue 13700, 2011 SCC 65 (S.C.C.), at para. 33).

[52] The concept of “material change in circumstances” must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made (Brown v. Brown, 2010 NBCA 5 (C.A.), at para. 19; Willick, at para. 26). In order to be “material,” the change must be such that, if known and factored into the decision when the order was made, it would likely have resulted in different terms to the order (Willick, at para. 22; B.(G.) v. G.(L.), [1995] 3 S.C.R. 370 (S.C.C.), at para. 49; L.M.P., at paras. 32 and 33). The corollary to this principle is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation (Willick, at para. 22, L.M.P., at para. 44). In addition, a change will only be considered “material” for the purposes of a variation proceeding if it has a degree of continuity; a temporary set of circumstances will not suffice (L.M.P., at para. 35; Marinangeli v. Marinangeli, 2003 CarswellOnt 2691 (C.A.), at para. 49; Haisman v. Haisman, 1994 ABCA 249 (C.A.), at para. 28; leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Likewise, trivial or insignificant changes will not justify a variation (Haisman, at para. 28; Hickey v. Hickey, [1999] 2 S.C.R. 518 (S.C.C.), at para. 20; Marinangeli, at para. 49). The sufficiency of the change which the moving party relies upon must always be evaluated in light of the particular facts of each case (Willick, at para. 101).

C. Determination of the Appropriate Variation Order

[53] The second stage of the analysis on a Motion to Change involves a determination of the variation, if any, that should be made to the existing order. Even if the threshold test of a change in circumstances is met, this does not necessarily follow that a variation of the existing order should be ordered (Willick, at para. 104; Punzo, at para. 41). The decision as to whether changes are warranted, and if so, the specifics of any variation involve a careful analysis of all issues that are relevant to the claim, including consideration of entitlement to support, the appropriateness of any retroactive or ongoing claims, the parties’ respective incomes, the effective date of any variation and calculation of the quantum of support payable based on the applicable legislation and Guidelines (Punzo, at paras. 38, 41). Furthermore, the court may only make variations to the order that are justified having regard for the material change(s) in circumstances that met the threshold test (Willick, at para. 104; Punzo, at paras. 26, 43). For example, loss of entitlement to support would justify an order terminating child support, but would not open the door for retroactive changes to support prior to the termination date based on minor fluctuations in income that would not meet the threshold material change in circumstances test. Accordingly, even if parties agree that the threshold test has been satisfied, the hearing judge must nonetheless address the issue, satisfy itself that a material change or changes have indeed occurred and make findings regarding the nature of the change(s). Failing to do so deprives the analysis of the critical foundation upon which the court must construct the appropriate variation order.

II. HAVE THERE BEEN MATERIAL CHANGES IN THE RESPONDENT’S INCOME SINCE NOVEMBER 2014?

A. General Principles Regarding Income Determination

[54] Both parties rely on changes in the Respondent’s income since November 2014 as satisfying both the threshold test and the terms of the orders which they are seeking. Sections 15 to 20 of the Guidelines set out the framework for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable. Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines (“Schedule III”). Federal child-related tax benefits and Goods and Services tax credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). Schedule III to the Guidelines must also be carefully considered in determining the parties’ incomes for support purposes, as it sets out a number of adjustments that must be made to income.

[55] The intention of section 16 is to direct the court to ascertain the payor’s income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 CarswellOnt 3890, [2006] O.J. No. 1489 (S.C.J.), at paras. 24-27). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of support is being determined (V. (L.R.) v. V. (A.A.), 2006 BCCA 63 (C.A.); Lavergne v. Lavergne, 2007 ABCA 169 (C.A.); Chalifoux v Chalifoux, 2008 ABCA 70 (C.A.), at para. 24; Vanos v. Vanos, 2010 ONCA 876 (C.A.), at paras. 13 and 14; Morrissey v. Morrissey, 2015 PECA 16 (C.A.), at paras. 17-22). One exception to this principle is where the payor’s current income situation is uncertain or speculative, in which case fairness to the payor may require the court to rely on historical income information (Morrissey).

B. Findings Respecting the Respondent’s Income for Child Support Purposes Since November 2014

[56] I am satisfied that there have been material changes in the Respondent’s income since the November 20, 2014 order was made. As I have indicated, the child support terms of that order were based on the Respondent’s representation at the time that his 2014 income was $116,000.00. In fact, his income was much higher in 2014. It was also much higher in 2015 and 2016. However, I also find that there has been a material decrease in his income since 2017 due to his layoff from Westrock and his diagnosis of terminal bone and lung cancer. I find that the Respondent has been unable to work due to his serious illness and need for treatment since July 2017.

[57] My findings respecting the Respondent’s income since 2014 are as follows:

2014

The Respondent’s Notice of Assessment for 2014 indicates that his line 150 income was $151,777.00. The Respondent did not include his complete Income Tax Return with schedules and attachments for this year, and therefore I am unable to determine whether any adjustments to this figure are appropriate. In the absence of further evidence, I find his 2014 income for child support purposes to be $151,777.00.

2015

The Respondent’s Income Tax Return and Notice of Assessment for 2015 reflect line 150 income of $161,730.00. The sources of income are identified as follows on the Income Tax Return:

Employment: $153,372.00

CPP survivor widower benefits: $5,511.00

Taxable dividends from taxable Canadian corporations: $1,377.56

Interest and other investment income: $1,273.86

Taxable capital gains: $197.63

With respect to the taxable dividends and taxable capital gains, sections 5 and 6 of Schedule III direct that in determining income for child support purposes, adjustments should be made to the taxable capital gains and taxable amount of dividends from taxable Canadian corporations reported on the Income Tax Return. Specifically, section 5 stipulates that the taxable amount of the dividends are to be replaced with the actual amount of the dividends received by the spouse, and section 6 provides that the taxable capital gains realized in a year are to be replaced with the actual capital gains in that year. The Respondent’s 2015 Income Tax Return did not include the Schedules required to determine the appropriate adjustments. I raised this issue at the hearing, but neither party adduced the evidence required for me to undertake the analysis required by sections 5 and 6.

As I have noted, the Respondent argued that the amount of his CPP survivor widower’s pension should be excluded from the calculation of his income for child support purposes based on an agreement which the parties reached to do so. The evidence does not satisfy me that the parties reached such an agreement, and in any event, the court would not be bound by any such agreement. Child support is the right of the child, and pursuant to section 15(2) of the Guidelines, I would not be able to consider an agreed-upon amount unless I was satisfied that the amount was reasonable having regard for the Respondent’s income information. In my view, there is no reasonable basis for excluding the amount of the CPP survivor widower’s pension from the Respondent’s income.

Section 1(g) of Schedule III directs that amounts for dues and other expenses of performing employment duties are to be deducted from a spouse’s income in determining income for child support purposes. I find that the Respondent paid union or professional dues of $1,084.80 in 2015. Excluding this amount, I find that his 2015 income for child support purposes was $160,645.20.

2016

The Respondent’s 2016 Income Tax Return and Notice of Assessment show that his line 150 income for that year was $158,527.00. The sources of income as reflected in the Income Tax Return were as follows:

Employment: $150,085.00

CPP survivor widower’s benefits: $5,577.84

Taxable dividends from taxable Canadian corporations: $1,567.93

Interest and other investment income: $1,298.58

Again, I did not receive the evidence required to make the adjustments required by section 5 and 6 of Schedule III. The Respondent paid union or other professional dues in the amount of $1,084.80. After deducting that amount, I find that his 2016 income for child support purposes was $157,442.20.

2017

The Respondent’s 2017 Income Tax Return indicates that his line 150 income for that year was $98,125.75, consisting of the following income sources:

Employment: $79,879.42

CPP disability benefits: $1,684.66

CPP survivor widower’s benefits: $5,655.96

Employment insurance benefits: $8,145.00

Taxable dividends from taxable Canadian corporations: $1,477.22

Interest and other investment income: $1,283.49

I did not receive the evidence to make the adjustments required by sections 5 and 6 of Schedule III. The Respondent again paid union or professional dues of $1,084.80. Adjusting for that amount, I find that the Respondent’s 2017 income for child support purposes was $97,040.95.

2018

The Respondent produced his 2018 Income Tax Return part-way through the hearing. It shows that his line 150 income for that year was $79,518.32, with the sources of income being as follows:

CPP disability benefits: $10,259.52

CPP survivor widower’s benefits: $5,740.80

Taxable dividends from taxable Canadian corporations: $1,921.00

Interest and other investment income: $1,505.08

Taxable capital gains: $90.93

Annuity income: $60,000.00

No evidence was adduced to allow me to make the adjustments referred to in section 5 and 6 of Schedule III. The Respondent did not pay union or other professional dues in 2018, but he did have a deduction for carrying charges and interest expenses of $50.68. Section 8 of Schedule III directs that this amount be deducted. Excluding this amount, I find that the Respondent’s total 2018 income for child support purposes was $79,467.64.

[58] By way of summary, I conclude that the increases in the Respondent’s income from November 20, 2014 until 2016 fall within the criteria set out in section 14(a) of the Guidelines, that they were significant and longstanding, and that they are material to the issue of child support. I have reached the same conclusions respecting the decreases in his income in 2017 and 2018. Given the Respondent’s health issues and prognosis, I am satisfied that his current income level will not change materially over time.

III. HAVE THERE BEEN CHANGES RESPECTING NICHOLAS’ AND JENNIFER’S ENTITLEMENT TO SUPPORT SINCE NOVEMBER 2014?

A. The Law Respecting Entitlement to Child Support

1. Legislative Provisions and General Principles

[59] As discussed above, the end of a child’s entitlement to support is a material change in circumstance that falls within the scope of section 14 of the Guidelines. In this case, the issues respecting the children’s entitlement to support are key not only to the threshold test for variation, but also to the determination of the appropriate variation order.

[60] The starting point for determining child support entitlement under the Divorce Act is section 15.1, which stipulates that the court may make an order requiring a spouse to pay for the support of any or all “children of the marriage”. Entitlement to child support under the Act is therefore dependent on the child being a “child of the marriage” within the meaning of section 15.1. The definition of “child of the marriage” is set out in section 2 of the Act, which provides as follows:

“child of the marriage”

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

1. is under the age of majority and who has not withdrawn from their charge, or

2. 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

[61] The test for entitlement to child support differs based on whether the child in question is under the age of majority or has attained 18 years of age. In the latter situation, the Divorce Act allows for the exercise of considerable judicial discretion, and the determination of entitlement is a fact-driven exercise in every case. The analysis of whether a child is unable to withdraw from a parent’s “charge” focuses in part on whether the child remains financially dependent on the parent (Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (C.A.), at para. 25; Thompson v. Ducharme, 2004 MBCA 42 (C.A.), at para. 14). However, it also involves an assessment of whether the child is able to manage daily living on their own without direct and consistent care, monitoring and support from their parent (Briard v. Briard, 2010 CarswellBC 119 (S.C.), at para. 16; aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, 2012 CarswellNLTD(F) 11, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.), a para. 7; Senos v. Karcz, 2014 ONCA 459 (C.A.), at para. 6).

[62] The onus of proof in establishing entitlement to child support is on the party seeking to obtain support (Rebenchuk, at para. 26; Olson v. Olson, 2003 ABCA 56 (C.A.), at para. 13; Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), at para. 6; D.B.B. v. D.M.B., 2017 SKCA 59 (C.A.), at para. 119; Kohan v. Kohan, 2016 ABCA 125 (C.A.), at para. 20; Fernquist v. Garland, 2005 SKQB 519 (Q.B.), at para. 24).

[63] In an original support application under the Divorce Act, the child for whom support is sought must be entitled to support when the application is commenced (D.B.S., at para. 89). However, in Colucci v. Colucci, 2017 ONCA 892 (C.A.), the Court of Appeal held that this principle does not apply in the context of variation proceedings under the Divorce Act. It concluded that the court has jurisdiction to entertain claims for retroactive increases in support as well as claims by payors for retroactive reductions regardless of whether the child remains entitled to support when the proceedings are initiated. The court held at para. 29 that the interests of certainty and finality did not justify erecting a rigid jurisdictional bar on variation applications simply because the children are no longer "children of the marriage.”

[64] In this case, Nicolas turned 18 years of age on March 18, 2016 and Jennifer turned 18 years of age on June 14, 2018. The Applicant’s position respecting their entitlement to support is based on their enrolment in post-secondary studies and her claim that Jennifer has been unable to withdraw from parental charge due to her physical and mental health difficulties. A discussion of the law respecting these two grounds of entitlement is therefore necessary.

2. Principles Relating to Support Entitlement of Adult Children Based on Illness or Disability

[65] The fact that an adult child suffers an illness or disability, even a significant one, does not in and of itself establish entitlement to support. The evidence must also prove that the child is unable to withdraw from parental charge either because they are financially dependent on the parent or are unable to manage daily living on their own without the parent’s regular and consistent care, monitoring and support (Hanson v. Hanson, 2003 SKQB 347 (Q.B.)).

[66] The case-law has established that there is no cut-off age for entitlement to support for children who have reached the age of majority but who are unable to withdraw from parental charge due to illness or disability (Briard; Carpenter). The fact that an adult child suffering from a disability receives money through disability benefits, other forms of government assistance or from family members may be relevant to whether they are unable to withdraw from parental charge, but it is not determinative (Wetsch v. Kuski, 2017 SKCA 77 (C.A.); leave to appeal to S.C.C. refused 2018 CarswellSask 291 (S.C.C.)). An ill or disabled adult child who has sources of financial assistance may nonetheless remain eligible for support if they require daily caregiving and monitoring by a parent to manage due to their challenges (Briard; Senos; Carpenter). There is an important distinction between the threshold entitlement issue and quantum in these circumstances. Where the child is financially able to meet their needs but is dependent in every other way on their parent, there may be entitlement and the real question will be quantum. The amount of support could be 0 or minimal in these circumstances if the funding available to the child is sufficient to cover all of their costs, including caregiver expenses (Wetsch, at para. 40; Senos).

[67] The court will require credible evidence of illness and/or disability and the child’s inability to withdraw from parental charge or obtain necessities where entitlement is alleged on this ground. (Scott v. Scott, 2004 CarswellNB 587 (C.A.), at para. 46).

3. Principles Relating to Support Entitlement of Adult Children Based on Enrolment in Post-Secondary Studies

[68] The fact that an adult child is still undertaking post-secondary 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 (Jackson v. Jackson, [1973] S.C.R. 205 (S.C.C.); Menegaldo v. Menegaldo, 2012 ONSC 2915 (S.C.J.) at para. 157). Where the child is engaged in post-secondary studies, the analysis of whether they are unable to withdraw from parental charge involves a careful assessment of their overall condition, means, needs and circumstances (Taggart v. Taggart, 2019 ABCA 78 (C.A.), at para 6). 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 (Kohan at para. 18). As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.), at para. 15, 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.” The factors which the courts consider in determining entitlement for children enrolled in post-secondary studies include, without limitation, the following:

1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time educational program.

2. 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.

3. The ability of the child to contribute to their own support through their savings or part-time employment.

4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because they have nothing better to do.

5. Whether the child’s primary focus is on completing their education, or whether they are in fact engaged in part-time studies while focussing primarily on career-related activities.

6. In reviewing the child’s education and career plans, important factors include the nature and quality of the plans, 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.

7. Whether the child’s educational path has been extended for any reason, and if so, the reasons for the extension. Examples of delayed educational progress which may be relevant to ongoing entitlement include a child’s illness or special needs, which may have caused the child to require more time to successfully complete high school or post-secondary studies.

8. Whether the child is enrolled in their first post-secondary educational program or an extended graduate program.

9. Whether the child is engaging diligently in their chosen course of studies.

10. The child’s academic performance, and whether they are demonstrating success in the chosen course of studies.

11. The age, qualifications and experience of the child.

12. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

13. The plans, if any, that 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.

14. The general condition, means, needs and other circumstances of the parents and the child.

15. 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.

(Whitton; Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. Master); Fernquist, at para. 25; Geran; Rebenchuk, at paras 41-43; Darlington v. Darlington (1997), 32 R.F.L. (4^th) 406 (B.C.C.A); Erickson v. Erickson, 2007 CarswellNS 531 (S.C.); Haist v. Haist, 2010 ONSC 1283 (Ont. S.C.J.); Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (S.C.J.); Menegaldo; Charron v. Dumais, 2016 ONSC 7491 (S.C.J.); Kohan).

[69] It is not necessary to address all of the factors set out above to show that a child enrolled in post-secondary studies remains a “child of the marriage” (Darlington, at para. 15; Wesemann v. Wesemann, 1999 CarswellBC 1347, (1999), 49 R.F.L. (4^th) 435 (B.C. S.C.) at para. 11).

[70] In circumstances where the child is diligently pursuing studies in a suitable program and there is evidence of need for support, the courts will generally find ongoing entitlement to support until the completion of at least the first college or university program (Achkewich v. Achkewich, 1998 CarswellAlta 1275 (Q.B.), at para. 4; Marsh v. Jashewski, 2011 ONSC 3793 (S.C.J.), at para. 43; Haist, at para. 54). The child’s commitment to pursuing their educational studies and their success in the program are important factors in determining ongoing entitlement. These factors must be considered with a focus on the particular circumstances of the child in question and any personal challenges that they may be struggling with. From a quantitative standpoint, a child need not have stellar school attendance in order to remain entitled to support, but there must be a reasonable degree of attendance taking into consideration the child’s particular needs and challenges. From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program having regard for their overall level of functioning. In general, an adult child involved in post-secondary studies may remain entitled to support even if their participation and achievement levels are problematic or not full-time, provided that the effort which the child is putting forth is consistent with the program’s purposes and objectives, and within their capability given their particular circumstances (Vohra v. Vohra, 2009 ONCJ 135 (O.C.J.), at para. 14; Sullivan v. Sullivan, 1999 CarswellOnt 3340, (1999), 50 R.F.L. (4th) 326 (Ont. Div. Ct.), at para. 3; Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.), at para. 31; Aubert v. Cipriani, 2015 ONSC 6103 (S.C.J.), at para. 25).

[71] With respect to second and subsequent degrees or diplomas, there is no clear cut-off date for support (Caterini; at paras. 99-101; Blaschuk v. Bridgewater (2005), 18 R.F.L. (6^th) 271 (S.C.J.)). In Blaschuk, Quinn J. noted in the context of the Family Law Act that a parent’s child support obligation is not circumscribed by the length or type of educational program the child is taking. With respect to ongoing eligibility for support during a second diploma or degree, he held that the analysis should begin with an assessment of whether the educational path upon which the child is travelling or intends to travel is a reasonable one in all of the circumstances. The court concluded that if the first program is significantly preparatory in nature for a further reasonable educational path, the court is more likely to impose an ongoing support obligation during the subsequent post-secondary program (see also Caterini, at para. 101).

[72] The courts are becoming increasingly open to extending the support obligation beyond the first post-secondary diploma or degree. In analyzing the issue of ongoing support past the first post-secondary educational program, the court cannot be blind to the prevailing social and economic conditions, including the fact that a first degree no longer assures self-sufficiency. As a general rule, parents of a bona fide student will remain responsible for support in some form until the child reaches a level of education commensurate with their abilities, and which will prepare the child for entry-level employment in an appropriate field (Martell v. Height, 1994 NSCA 65, 1994 CarswellNS 45, (1994), 130 N.S.R. (2d) 318 (C.A.), at para. 8). All of the factors listed above regarding general entitlement issues come into play in the analysis of whether support should extend beyond the first degree or diploma, and the outcome is ultimately a matter of judicial discretion (N. (W.P.) v. N. (B.J.), 2005 BCCA 7, 2005 CarswellBC 10 (C.A), at paras. 29-30; Caterini at paras. 98-101; Haist, at paras. 54-58; Marsh, at para. 45). One theme which clearly emerges from the case-law regarding subsequent degrees is that support is likely to continue if the payor parent has historically supported the child’s chosen educational and career aspirations and has the ability to contribute to the child’s support and educational expenses (Kennedy v. Kennedy, 2000 CarswellOnt 1127 (S.C.J.); N. (W.P.)).

[73] A child who has been involved in post-secondary studies does not necessarily lose their entitlement to support as soon as they have completed those studies. The child may continue to be unable to withdraw from parental charge for a period of time after the completion of their education if they have made reasonable efforts to secure income earning opportunities but have not been successful. The question of whether the child remains unable to withdraw from parental charge during such a transitional period involves a careful consideration of all relevant evidence respecting the child’s overall condition, means, needs and circumstances (C.(C.L.) v. C.(B.T.), 2005 BCSC 1787 (S.C.), at para. 12; Hartshorne v. Hartshorne, 2010 BCCA 327 (C.A.), at para. 76; additional reasons 2011 CarswellBC 107 (C.A.); P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.), at para. 32).

B. Analysis and Conclusions Respecting Nicholas’ Entitlement to Support

[74] Applying the principles outlined above, I have determined that Nicholas remained entitled to child support until June 30, 2018, two months after he completed the Police Foundations program at Mohawk College. I am satisfied that he remained under the Applicant’s charge and was unable to withdraw from her charge until that time as a result of his enrolment in this program, the fact that he was covering his post-secondary education costs and his overall financial situation. I find that Nicholas has a strong commitment to working in the field of policing, and that this remains his long-term goal. The two year Police Foundations program was a reasonable and necessary course of study for the purposes of pursuing this goal. This was Nicholas’ first post-secondary education program. The duration of the program was relatively short compared to most post-secondary programs, and the overall cost was reasonable. Nicholas made the wise decision to remain at home during his studies to keep the cost of engaging in his studies manageable. Although the Applicant did not adduce documentary proof that Nicholas completed the program, she attested to the fact that he did, and the Mohawk College account summary supports her evidence on this issue. I found her evidence on this point to be credible. I have considered the Respondent’s arguments that the Applicant and Nicholas did not inform him of the plan for Nicholas to enrol in this program, his progress in his studies or his final marks. However, the evidence before me indicates that there have been numerous difficulties in the relationship between the Respondent and Nicholas due to various family dynamics, including issues regarding the Respondent’s treatment of the three children of the parties’ relationship as compared to that which he gives to his older son Richard. The family dynamics and conflicts appear to be complex, and this is not in my view clearly a situation of unilateral, unjustified rejection of the Respondent by Nicholas. Furthermore, the evidence indicates that although Nicholas has made some harsh comments to his father in the past, he has in more recent times made genuine efforts to reconnect with the Respondent with the goal of re-establishing a positive relationship.

[75] I have considered Nicholas’ overall condition, means needs and circumstances during the period when he attended the Police Foundations course, and I am satisfied that he remained unable to achieve self-sufficiency and withdraw from his mother’s charge during that time. He commenced the program in September 2016, and his total income for that year was only $5,226.00. I recognize that his income in 2017 was $33,751.00, and that it was $23,172.20 in 2018. However, as I have noted, Nicholas was covering all of his post-secondary expenses during this time through his own income and student loans. He has worked hard to pay down the loans. His expenses included tuition and other fees totalling $17,127.94, books and other school supplies, the purchase of a vehicle, car registration and licencing fees, gas, vehicle repairs and maintenance, car insurance, extracurricular expenses and other miscellaneous personal expenses that his mother could not cover. Unfortunately, the Applicant did not provide evidence respecting the amount of these other expenses. However, as I discuss in further detail below, the court is permitted under s. 7 of the Guidelines to estimate special or extraordinary expenses. The case-law has established that in addressing the issue of child support for adult children, the court may draw upon the principles set out in section 7. In my view, a reasonable and conservative estimate of the expenses which Nicholas would have had from September 2016 until April 30, 2018 would easily be in the range of $39,500.00, including his tuition expenses. This estimate allows for a total of $4,000.00 for books and supplies including any computer and other equipment, $8,500.00 for the purchase of a vehicle inclusive of taxes and for all licence and vehicle registration fees, $65.00 per week for gas over the 20 month period, $1,500.00 for vehicle repairs and maintenance over the course of the entire period and $3,000.00 for car insurance for the period. My estimate assumes that Nicholas purchased a practical used vehicle at a minimal cost.

[76] Although the Respondent paid the Applicant the Table amount of support during this period, he did not assist Nicholas at all with his post-secondary education expenses. Having regard for Nicholas’ very low income in 2016, he would have had to rely primarily on his 2017 and 2018 income to cover these expenses. After deducting these estimated total expenses from his total income for 2017 and 2018, I estimate that he would have had a balance of approximately $17,423.00 for 2017 and 2018, or approximately $8,711.00 per year, to cover housing, food, clothing and other basic expenses. He would not in my view have been able to support himself on this amount over that period of time. I note that this was through no fault of Nicholas. I am extremely impressed with the commitment and hard work that Nicholas has demonstrated since graduating from high school. He has actively sought out employment opportunities in an effort to support himself and has had several jobs. Since January 2019, he has been holding down two jobs in an effort to meet his needs on his own and with the hope of eventually finding a position in policing. These are additional considerations that have informed my analysis. In my view, Nicholas’ income during the period in discussion is a matter to consider with respect to quantum of support rather than entitlement. As I discuss in further detail below, I am not requiring the Respondent to contribute to Nicholas’ post-secondary expenses. I note as well that the Applicant’s income throughout the time that Nicholas was enrolled in the Police Foundations course was low, and she was therefore unable to provide very much financial assistance apart from food and shelter.

[77] Based on Nicholas’ overall financial situation in 2018, as discussed above, I am satisfied that he remained unable to withdraw from the Applicant’s charge until June 30, 2018. I find that Nicholas was unsuccessful in securing a job in policing after he completed the Police Foundations program in late April 2018 despite his efforts to do so, and partly due to his very young age at the time. However, he worked hard and earned income of $23,172.20 that year, much of which he had to apply towards his education expenses. This was not a situation of a young person completing a program of studies and then doing nothing to pursue a career or achieve self-sufficiency. In all of the circumstances, a period of two months was a reasonable transition period for ongoing support to continue while Nicholas pursued employment opportunities relating to his career goals and explored other options for his future. In reaching this decision, I have taken into account the Respondent’s overall financial circumstances, and I am satisfied that he remained able to provide support for Nicholas during this period. Although the transition period is relatively brief, it is in my view appropriate having regard for the fact that Nicholas had been able to secure and maintain employment in the area of security services while he was in school.

[78] I am not satisfied that Nicholas’ entitlement to support continued after June 30, 2018 and during his participation in the Outdoor Adventure program at Algonquin College. This was Nicholas’ second post-secondary program, and the Applicant did not introduce any helpful information regarding the nature and purposes of the program, the types of careers the program supports or how the program related to Nicholas’ long-term career objectives. I am not satisfied based on the evidence before me that the program had any rational connection with Nicholas’ long-term goal of pursuing a career in policing, or that it would have supported that objective in a meaningful manner. In addition, the Applicant did not lead evidence as to whether Nicholas actually participated in this program, and if so, how he did in the program or when he abandoned these studies. The evidence indicates that if he did actually engage in the program, he did so for at most 3.5 months. I have also considered the cost of the program for the two terms, and it is very high considering that it appears to lack a nexus with Nicholas’ long-term career objectives. All of these considerations support my conclusion that Nicholas’ entitlement to support ceased as of June 30, 2018.

C. Analysis and Conclusions Respecting Jennifer’s Entitlement to Support

[79] Turning to the question of Jennifer’s eligibility for support, I conclude that her entitlement continued until December 2018. As previously discussed, Jennifer turned 18 years of age on June 14, 2018 and graduated from high school at the end of June that year. I accept the Applicant’s evidence that although Jennifer wished to attend Guelph University and live on campus commencing in September 2018, she was emotionally and physically unable to follow through with that plan. I find that she remained under the charge of the Applicant and unable to withdraw from parental charge until December 2018. This conclusion is based on the combination of several factors and the cumulative effect of those factors on Jennifer’s ability to manage on her own. Specifically, I find that she was unable to withdraw from the Applicant’s charge due to the mental and physical health difficulties that she experienced throughout 2018 and her sincere efforts to pursue a reasonable course of post-secondary studies despite those issues.

[80] Dealing first with Jennifer’s health issues, I acknowledge that the Applicant did not adduce any evidence from any physicians or other health care professionals regarding Jennifer’s mental health and physical well-being in 2018. The Applicant’s counsel explained that there were difficulties securing Jennifer’s cooperation and consent in this regard. Unfortunately, this is a predicament that child support claimants and the courts often face in these types of situations, particularly where the child is experiencing mental health difficulties. It is a challenge that must be handled carefully and with an eye to the potential repercussions to the child’s emotional stability of forcing full disclosure in the context of a legal battle between their parents about their support. It must be remembered that adult children in these circumstances often find themselves caught in the middle of the dispute between the parents, with conflicting loyalties. These concerns must of course be balanced with the payor’s interest in having sufficient evidence to respond fully to the claimant’s case. The challenge in each case is for the court to take a balanced and reasonable approach to the type of evidence that is required to support the claimant’s claim respecting entitlement which respects the interests of the parties as well as the safety and well-being of the child. It is not every case that will require full medical disclosure to support a finding that the child is unable to withdraw from parental charge. Detailed and credible evidence of family members or other community supports regarding the child’s ailments, how they are able to manage on a daily basis, treatment that the child has received, how the child has fared and whether they are following through with treatment recommendations may be sufficient.

[81] In this case, I find that there is indeed sufficient evidence to support a finding that Jennifer was unable to withdraw from her mother’s charge until December 2018 due to her health difficulties. Jennifer was clearly experiencing significant mental health instability in 2018. It is undisputed that she attempted to commit suicide in March 2018. I accept the Applicant’s evidence that her distress was caused by the challenging dynamics within the family and other very difficult experiences in her personal life. She participated in counselling, but unfortunately could not continue due to lack of funds to pay for ongoing services. Her mental health difficulties were sufficiently serious that she was placed on medication to stabilize her mood. She was still taking that medication as of December 2018. I accept the Applicant’s evidence that Jennifer had difficulty sleeping, and that she was also suffering significant physical challenges that were causing her to vomit blood and for which she underwent a gastroscopy in October 2018. I am satisfied that Jennifer required regular monitoring, care and emotional support from her mother throughout 2018 in order to cope and get better. Jennifer was still very young at that time. I am cognizant of the fact that Jennifer earned income of $11,309.00 in 2018 and $21,884.00 in 2017. While this was a significant amount of income for a child of her age, financial self-sufficiency does not necessarily negate child support entitlement in circumstances where the child is otherwise dependent on the parent for support with daily living. Jennifer had this type of dependence on her mother during the relevant time period. In the circumstances of this case, Jennifer’s income is more properly considered at the quantification stage of the child support analysis.

[82] My findings respecting Jennifer’s health and coping difficulties are sufficiently compelling to support a finding of ongoing child support entitlement until the end of 2018. However, I have also considered Jennifer’s enrolment in the two Equine Studies program courses. Unfortunately, the Applicant did not adduce any evidence as to whether Jennifer actually completed some of the work or passed either of the courses. She did not continue with these studies after December 2018. Nonetheless, her enrolment in the courses demonstrates that Jennifer was attempting very hard after graduating from high school to get a plan in place for her future and work towards some long-term goals. I find that she has a strong passion for horses and is interested in pursuing a career in the Equine industry. The job that she secured at Bayview Farms during the summer of 2018 and the courses that she signed up for related to this long-term career objective. Her efforts to pursue these courses while also dealing with her physical and mental health challenges are commendable, but I accept the Applicant’s evidence that she could not have done so if she was away from home without the Applicant’s close monitoring and support. Upon weighing all of the evidence, I conclude that a period of six months following the completion of high school would have been a reasonable and realistic transition period for Jennifer to address her physical and mental health needs while working towards a plan for her future.

[83] Notwithstanding the foregoing, I am satisfied that Jennifer was able to withdraw from parental charge by January 2019. The evidence indicates that by that time, she was working full-time at Bayview Farms. By mid-March 2019, she indicated in a text message to her father that she would be starting a new full time job as a cleaner. She was not enrolled in any post-secondary studies at that point, and the evidence indicates that she was emotionally and physically well enough by that time to hold down a full-time job. The Applicant did not adduce any evidence respecting Jennifer’s year-to-date income for 2019 as of the date of the hearing. The onus on her was to prove ongoing entitlement, and I am not satisfied that she satisfied the onus as of January 2019. For these reasons, I conclude that Jennifer’s entitlement to support ended as of December 31, 2018.

IV. HAVE THERE BEEN MATERIAL CHANGES RESPECTING THE CHILDREN’S CONDITION, MEANS, NEEDS AND CIRCUMSTANCES SINCE NOVEMBER 2014?

[84] As I have indicated, section 14(a) of the Guidelines stipulates that if a child support order is based on the Table amount, any change in circumstances that would result in a different child support order will satisfy the threshold test in a variation proceeding. In cases involving children who are 18 years of age or older, section 3(2) of the Guidelines directs the court to determine whether the standard Guidelines approach to calculating child support as set out in section 3(1)(a) of the Guidelines is inappropriate. If it is found to be inappropriate, the court must order the amount of support that it considers appropriate, having regard for the condition, means, needs and circumstances of the child and the financial ability of each spouse to contribute to the support of the child. Nicholas and Jennifer are now both over 18 years of age, and their personal financial circumstances have changed significantly since 2014 due to their earnings from employment and their receipt of CPP child disability benefits. As I discuss in further detail below, these developments have in my view rendered the application of the standard Guidelines approach inappropriate. Specifically, I have concluded that the standard approach became inappropriate for Nicholas as of June 1, 2017, and for Jennifer as of June 30, 2018.

V. SHOULD THE APPLICANT BE PERMITTED TO PURSUE A RETROACTIVE CLAIM FOR INCREASES TO THE TABLE AMOUNT AND CONTRIBUTION TO NICHOLAS’ POST-SECONDARY EXPENSES?

A. Overview

[85] As discussed above, the Applicant has advanced retroactive claims for an increase in the Table amount of support for Nicholas and Jennifer effective June 1, 2015 and contribution to post-secondary education expenses for Nicholas commencing in September 2016, when Nicholas enrolled in the Police Foundations course. The Respondent agrees to a retroactive increase in the Table amount, but does not consent to the retroactive claim respecting the post-secondary education expenses. For the reasons that follow, I conclude that the Applicant has satisfied the threshold criteria for advancing both of her historical claims, and that the appropriate commencement date for the analysis of those claims is June 1, 2015.

B. The Law Respecting Retroactive Child Support

1. General Principles

[86] The Supreme Court of Canada addressed the principles that apply in retroactive child support and spousal support in D.B.S. and Kerr v. Baranow, 2011 SCC 10 (S.C.C.). In both cases, the court declined to venture into the semantics of the word “retroactive” for the purposes of support claims. Instead, in both cases, the court indicated that 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. Accordingly, the principles which the court articulated regarding retroactive relief apply to the portion of any support claims covering the period prior to the date of a final order. However, in Kerr, the court was called upon to resolve a spousal support claim that was effective from when the claimant commenced her application. In that case, the court commented that “the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in how the relevant considerations are weighed.”

[87] The Supreme Court of Canada set out a comprehensive framework for the analysis of retroactive child support claims in D.B.S. It has been held that this framework applies equally to claims respecting the Table amount of support and contribution to section 7 expenses (Hetherington v. Tapping, 2007 BCSC 209 (BCSC), at para. 20; Smith v. Selig 2008 NSCA 54 (C.A.), at paras. 25-26; Domik v. Ronco, 2013 ONCJ 197 (O.C.J.), at para. 93). In D.B.S., the court noted that there is no automatic right to pursue retroactive child support, and that the starting point in each case is to analyze the legislation that applies to the case to determine if it establishes parameters or guidelines regarding retroactive claims. It canvassed in detail the various interests that come into play in retroactive support cases, and concluded that the three main interests are as follows (at para. 133):

1. The need on the part of the child for support;

2. The payor’s interest in certainty and predictability when financial obligations appear to be settled; and

3. The need for flexibility in order to ensure a just result.

[88] Notwithstanding these considerations, the Supreme Court of Canada emphasized that ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. Accordingly, it held that retroactive claims must be considered keeping in mind the following core principles that apply to all child support claims:

1. Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship.

2. 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.

3. 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.

4. 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.

[89] In D.B.S., the court reviewed the various scenarios in which claims for retroactive child support arise. It noted that the payor’s interest in certainty and predictability is the most compelling in situations where there is a court order and the payor has been complying with the terms of the order. Conversely, the court emphasized that a payor cannot rely on their interest in certainty and predictability in defending a retroactive claim if there is evidence that they have not abided by the terms of the order (at para. 98).

[90] The court in D.B.S. ultimately 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:

1. Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier;

2. The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support;

3. Consideration of the present circumstances of the child, and the extent to which they may benefit from a retroactive award; and

4. Any hardship that may be occasioned by a retroactive order.

[91] Bastarache J. emphasized in D.B.S. that none of the above-noted considerations are decisive, and that the court carrying out the analysis of a retroactive claim should at all times “strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix” (at para. 99). He stressed that although retroactive awards are a matter of judicial discretion, they should by no means be considered exceptional (at para. 97). As the court stated at para 97:

It cannot be exceptional that children are returned the support that they were rightly due. 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.

2. Delay by the Claimant

[92] In D.B.S., the court elaborated upon the factors relevant to a retroactive claim. In regard to the recipient’s delay in commencing a claim, it indicated that the court must be sensitive to the practical concerns associated with child support proceedings. Explanations for delay which it considered to be reasonable included intimidation by the support payor, well-founded fear that the payor would react vindictively to a support application, lack of financial or emotional means to commence an application and inadequate legal advice (at para. 101). In McGouran v. Connelly, 2007 ONCA 578 (C.A.), at para. 17, the Ontario Court of Appeal emphasized that since the right to child support is that of the child, delay by the recipient in advancing a claim is merely one factor to consider in balancing the competing interests and determining the most appropriate course of action on the facts of the case (see also Brown v. Kucher, 2016 BCCA 267 (C.A.)). It also emphasized that the conduct of the payor is frequently an important factor in assessing the reasonableness of the recipient parent’s delay in commencing litigation.

3. Conduct of the Payor

[93] The Supreme Court of Canada also expanded upon the issue of the payor’s conduct in D.B.S. It stated that both positive conduct and blameworthy conduct are relevant to the analysis, and emphasized at para. 98 that blameworthy conduct by the payor is not a pre-requisite to success in a retroactive claim (see also Goulding v. Keck, 2014 ABCA 138 (C.A.), at para. 48). However, it held that the payor’s interest in certainty is least compelling where they have engaged in blameworthy conduct in relation to their child support obligation. The court specifically encouraged the courts to take an expansive view of what constitutes “blameworthy conduct” in the context of analyzing a retroactive support claim, and characterized the phrase as encompassing “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support” (at para. 106). Examples of blameworthy conduct that it felt would militate in favour of allowing a retroactive claim included hiding income increases from the recipient in the hope of avoiding a larger support award, intimidating the recipient to dissuade them from advancing a support claim and misleading the recipient into believing that they are meeting their support obligations when they are not (at para. 106). In its discussion about blameworthy conduct of a payor, it emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments. The court also emphasized that a payor parent who knowingly avoids or diminishes their support obligation to their children should not be allowed to profit from such irresponsible conduct. However, the court noted that a payor who does not automatically increase support payments when their income increases is not necessarily engaging in blameworthy conduct that may influence the retroactive support analysis. In such circumstances, the issue of whether the conduct is inappropriate is a matter for the court’s discretion based on all of the circumstances of the case (see also Rosenberg v. Gold, 2016 ONCA 565 (C.A.), at paras. 68-71). An important consideration will be whether the payor had a reasonably-held belief that they were meeting their support obligations. The case-law establishes that a helpful objective indicator for assessing the reasonableness of their belief in this regard is the extent to which the child support they were paying diverges from the amount that they should have been paying (D.B.S., at para. 108; Baldwin v. Funston, 2007 ONCA 381 (C.A.), at para. 18; Greene v. Greene, 2010 BCCA 595 (C.A.), at para. 79; Burchill v. Roberts, 2013 BCCA 39 (C.A.), at para. 30). Furthermore, a failure to comply with orders requiring annual income disclosure so that child support can be reviewed, or with orders directing that child support be increased in the event of income increases, will often be viewed as blameworthy conduct that supports allowing a claim for retroactive relief to proceed (R. (M.K.) v. R.(J.A.), 2015 NBCA 73 (C.A.), at para. 23; Costa v. Perkins, 2012 ONSC 3165 (Div. Ct.), at para. 38; Hausmann v. Klukas, 2009 BCCA 32 (C.A.); leave to appeal refused 2009 CarswellBC 1573 (S.C.C.)).

4. The Past and Present Circumstances of the Child

[94] In D.B.S., the Supreme Court of Canada elaborated upon the circumstances of the child that may be relevant to the retroactive support analysis. It stated that the court should consider both the present and past circumstances of the child in deciding whether a retroactive award is justified, so as 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” (at para. 111). However, even in such circumstances, retroactive relief may be appropriate if the child suffered hardship in the past when support or higher support should have been paid. As the court stated at para. 113, “[a] child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award.” In Goulding v. Keck, the Alberta Court of Appeal highlighted that the requirement of considering the circumstances of the child does not impose a burden on the recipient parent to prove “significant need” on the part of the child in order to succeed on a retroactive claim. As the court stated at para. 51, “[a] payor parent cannot avoid a retroactive award by arguing that, despite his or her past default, the recipient was able to sufficiently care for the child on his or her own (see also Swiderski v. Dussault, 2009 BCCA 461 (C.A.) at para. 42). Furthermore, the past and present circumstances of the child, and the child’s overall needs, must be considered in context, and in light of the overall financial situation and lifestyle of the parties both before and after separation. In this regard, the court should recognize that the child is entitled to a lifestyle that is generally commensurate with that of their parents (Swiderski, at para. 42; Virc v. Blair, 2017 ONCA 394 (C.A.), at para. 93). In McGouran, the Ontario Court of Appeal highlighted that the objective of child support is to provide the children with the standard of living they would have enjoyed had the family remained together. It emphasized that the Guidelines amount is presumptively appropriate to meet the needs of the children, and that consequently, when a parent's ability to pay support increases, the children's needs are presumed to increase commensurately.

5. Hardship Occasioned by a Retroactive Award

[95] Finally, in regard to the factor of hardship occasioned by a retroactive award, the Supreme Court of Canada noted in D.B.S. at para. 114 that “a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified.” It stressed that hardship considerations in the context of this analysis are not limited to the payor, since a retroactive award could also cause hardship to the payor’s other children. The court added at para. 116 that hardship will be much less of a concern where it is the by-product of the payor’s blameworthy conduct. The court also emphasized that concerns regarding potential hardship can in some cases be mitigated by crafting the retroactive order in a way that spreads payment of any arrears over a period of time.

[96] Cases decided since D.B.S. have highlighted the need for the payor to establish clear evidence from which a finding of hardship can be made, and that hardship is not simply established by the fact that the payor will have to pay a significant retroactive award. Hardship will not be inferred from vague allegations regarding financial difficulties and stress. As the Alberta Court of Appeal stated in Goulding v. Keck, at para. 57:

Hardship…is not an abstract or impressionistic concept to be asserted by a payor in an effort to avoid a retroactive award. To weigh against granting retroactive child support, the payor parent must establish real facts from which a reasonable finding of serious hardship could be made. A bald or vague assertion of hardship is not sufficient. The obligation to pay support at the Guidelines amount for a prior period is not a hardship.

[97] Furthermore, a payor alleging hardship should adduce evidence relating to their overall net worth, and not just their day-to-day cash flow situation (Greene, at paras. 86-87; Vincent v. Vincent, 2012 BCCA 186 (C.A.), at paras. 126-127; Hunchak v. Hunchak, 2016 SKCA 44 (C.A.), at para. 39; Goulding v. Goulding, 2016 NLCA 6 (C.A.), at para. 14). Finally, the case-law has clarified that the assessment of hardship in the context of the retroactive support analysis is less stringent than that required to establish “undue hardship” within the meaning of s. 10 of the Guidelines (T.(L.C.) v. K. (R.), 2017 BCCA 64 (C.A.), at para. 71).

6. The Timing of a Retroactive Child Support Award

[98] If the court decides that retroactive relief is appropriate, it must then determine the appropriate remedy. At this stage, the court must carefully consider and balance the various interests at stake in retroactive claims, the basic principles relating to child support, the discretionary factors outlined above and any other relevant considerations to frame a remedy that is fair and just. A critical component of crafting a retroactive award is the determination of the appropriate date from which retroactive relief should begin. The court addressed this issue as well in D.B.S. It established that generally, a retroactive child support order should commence as of the date that effective notice is given to the payor that child support is in issue. The concept of effective notice does not require the recipient parent to take any legal action. The court described “effective notice” as “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated” (at para. 121; see also M.(D.) v. A.(S.), 2008 CarswellNS 367 (N.S.F.C.), at para. 77). Subsequent cases have held that to establish “effective notice,” there must be a reasonably precise date when the issue of support was raised. Vague assertions about having talked to the payor about support at some time in the past will not suffice (Hansen v. Clark, 2008 MBQB 324 (Q.B.); aff’d 2009 MBCA 69 (C.A.)).

[99] In D.B.S., the court concluded that using effective notice as the starting point for the timing analysis strikes a fair balance between certainty for the payor and flexibility to achieve justice. However, it held that even where effective notice has been given, it will usually be inappropriate to delve too far into the past. The court discussed the responsibility of a recipient payor to move discussions regarding support forward and to take further action if negotiations do not result in acceptable outcomes. If they fail to do so, “a prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned” (at para. 123). The court concluded that in the interests of certainty, predictability and ensuring that child support claims are prosecuted in a reasonably timely manner, a general guideline is necessary for determining how far back a retroactive award should reach. The court concluded that as a general rule, it will be inappropriate to make a support award retroactive to a date more than three years before formal notice of a claim was given to the payor parent. The Supreme Court of Canada did not define the notion of “formal notice” in D.B.S. However, in discussing the various possibilities for the timing of retroactive awards, the court distinguished between formal notice and the date on which the proceeding seeking relief was commenced. Accordingly, formal notice can be earlier than the commencement date of the proceeding.

[100] The guidelines which the Supreme Court of Canada outlined in D.B.S. regarding the timing of a retroactive award are simply presumptive principles. The question of timing is ultimately a discretionary decision that must take into consideration the particular facts and dynamics of each case. In exercising this discretion, the court should also consider whether there are any terms in an existing order or agreement which are relevant to the issue of timing for retroactive relief (Punzo, at para. 52). The court emphasized in D.B.S. that a retroactive award may, in appropriate circumstances extend further back than three years from the date of formal notice, or even prior to the date of effective notice. In some situations, it is appropriate that the order reach as far back as the actual date when circumstances relevant to child support changed materially and child support should have begun or been re-adjusted. As examples of when a more far-reaching retroactive award may be appropriate, the Supreme Court of Canada discussed circumstances where the payor demonstrated blameworthy conduct, including engaging in intimidating tactics, lying to the recipient, failing to advise the recipient of material changes in circumstances or withholding important information that the recipient required to make an informed decision about a child support claim. The court stressed at para. 125 that evidence of such blameworthy conduct “will move the presumptive date of retroactivity back to the time when circumstances changed materially,” since “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments” (see also McGouran, at para. 35; Reis v. Bucholtz, 2010 BCCA 115 (C.A.), at para. 77; P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.), at para. 44; Evanow v. Lannon, 2018 BCCA 208 (C.A.), at paras. 42 and 49; Virc, at paras. 48 and 93). A retroactive award may also commence much later than the date of effective notice or even formal notice in appropriate circumstances. For example, considerable delay by the recipient in advancing their case after giving effective notice, or evidence that the payor made reasonable contributions to the child’s support after effective or formal notice was given, are factors that may push the start date forward. Simply defaulting to the dates of effective and formal notice without specifying the reasons for doing so is an error of law (Evanow, at para. 49).

7. Quantification of Retroactive Child Support

[101] Finally, with respect to the quantum of child support that should be awarded in retroactive claims, the court determined in D.B.S. that this issue should be governed by the provisions of the statutory scheme that applies to the award being ordered. Accordingly, the Guidelines must be followed in determining the quantum of support payable. However, the court also noted the judge hearing the case must nonetheless ensure that the quantum of a retroactive order fits the circumstances. In the context of this discussion, it reviewed some of the situations in which the Guidelines permits a deviation from the Table amount of child support. In addition to those specific situations, the court held that the trial judge has a general discretion with respect to the quantum of retroactive awards, and emphasized that “[u]nless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all of the circumstances of the case” (at para. 130). Accordingly, the issue of potential hardship to the payor should be considered at the quantification stage as well. The court noted that one way in which the court can exercise its discretion to achieve a fair and reasonable outcome respecting quantum is to alter the time period that the retroactive award captures. For example, if the recipient took an unreasonable amount of time to advance their claim after giving effective notice, the court could set the commencement date for the retroactive award later than the date of effective notice (at para. 130). The court added that the court should craft a retroactive award in a way that minimizes hardship to the payor and any other children (at para. 116).

[102] As discussed earlier in these Reasons, section 2(3) of the Guidelines provides that where any amount is to be determined under the Guidelines on the basis of specified information, the most current information must be used. Accordingly, in quantifying retroactive child support claims, the court must base its calculation on the payor’s actual income in each year for which the support was payable. This principle applies even if there is an existing order or agreement between the parties that provides for child support to be adjusted annually after the exchange of Income Tax information, using the payor’s income for the previous calendar year. Such clauses are typically included based on the general expectation that the payor’s income for the previous year will be the best estimation of their anticipated income for the current year. In the context of retroactive claims, the court has the benefit of being able to determine the actual total income of the payor for each applicable year, and therefore section 2(3) of the Guidelines governs the analysis (Vanos, at paras. 13-16).

8. Whether the D.B.S. Principles Apply Where there is an Order for Annual Income Disclosure and Automatic Adjustment of Child Support

[103] As I have noted, paragraph 7 of the November 20, 2014 order required the parties to exchange Income Tax Returns and Notices of Assessment every year, and to adjust the Table amount of child support payable commencing June 1^st each year based on the Respondent’s income for the previous calendar year. In Meyer v. Content, 2014 ONSC 6001 (S.C.J.), I held that where an existing agreement or order establishes an obligation to increase the Table amount of child support in accordance with increases in income, a subsequent variation proceeding by the recipient to pursue the increased Table amount is more akin to an enforcement proceeding rather than a claim for retroactive support. In these circumstances, neither the threshold criteria in D.B.S. for pursuing a retroactive claim nor the timing guidelines for advancing a claim as set out in that case apply. The terms of the order or agreement clearly establish that the recipient claimed and was accorded the legal right to receive increases in the Table amount, and the court should proceed directly to the merits of the case, at which point any issues regarding ongoing entitlement, whether the Table amount continued to be appropriate and the timing of any adjustments to the Table amount can be addressed. To apply the D.B.S. threshold criteria in these circumstances places an unfair burden on the recipient to jump legal hoops to pursue rights that they have already been granted (see also Pollitt v. Pollitt, 2010 ONSC 1617 (S.C.J.); Zaffino-Sanza v. Sanza, 2019 ONSC 2649 (S.C.J.), at para. 29; Mackenzie v. Mackenzie, 2018 ONSC 3090 (S.C.J.), at para. 26; MacArthy v. MacArthy, 2015 BCCA 496 (C.A.), at para. 52; Lalande v. Pitre, 2017 ONSC 208 (S.C.J.), at paras. 67-69). If in fact the payor’s income increased and the Table amount should have also increased, the shortfall in the amount of support paid by the payor is in the nature of arrears under the order or agreement (MacArthy, at para. 52). In D.B.S., the Supreme Court of Canada emphasized at para. 2 that the cases involved in the appeal did not concern the non-payment of arrears, but rather “the enforceability and quantification of support that was neither paid nor claimed when it was supposedly due.” The threshold test which the Supreme Court set out in D.B.S. evolved largely out of the court’s concern for the payor’s need for predictability and certainty, and the hardship that could ensue for the payor as a result of an unexpected retroactive claim. These concerns do not arise in situations where an agreement or order clearly sets out the payor’s obligation to make increases to the Table amount of support and they fail to do so. In such circumstances, if the Respondent wishes to be relieved from paying the increased Table amount, they should bring a cross motion to vary the order and the onus should be placed unequivocally on them to satisfy the criteria for retroactively varying and reducing their child support obligation. The challenge in these cases is to determine whether the claim by the recipient is truly just an attempt to pursue rights clearly set out in the agreement or order, or whether it includes relief not provided for in the original order, such as claims for contribution to past section 7 expenses that were not addressed in the order. The threshold test set out in D.B.S. would apply in the latter situation.

[104] Even if the threshold criteria set out in D.B.S. were to apply in situations where an order or agreement includes a clause providing for automatic increases in the Table amount based on the payor’s income increases, the analysis of the criteria should be guided largely by the terms of the clause. Failure on the part of a payor to comply with such a provision is a factor that should weigh heavily at every stage of the D.B.S. analysis in such circumstances.

C. Analysis Respecting the Applicant’s Entitlement to Advance Retroactive Claims

[105] The Applicant has claimed an increase in the Table amount of child support for both children commencing June 1, 2015, as well as retroactive contribution from the Respondent for post-secondary expenses for Nicholas commencing September 2016. The November 20, 2014 order addresses section 7 “extraordinary expenses,” but does not touch upon the issue of post-secondary education costs, which are not extraordinary expenses within the meaning of section 7 of the Guidelines. The Applicant’s claim for contribution to Nicholas’ post-secondary education expenses is therefore a retroactive claim in the sense considered in D.B.S, and the threshold criteria which the Supreme Court of Canada established would apply. The claim for increases in the Table amount as of June 2015 is more in the nature of enforcement of paragraph 7 of the November 20, 2014, and therefore the threshold D.B.S criteria would not in my view apply. In any event, even if the D.B.S. criteria apply to both components of the Applicant’s claims in relation to the period prior to the service and filing of her Response to Motion to Change, I am satisfied that the Applicant has satisfied the criteria.

[106] Turning to the D.B.S. factors, I have considered the Applicant’s explanations for her delay in advancing the historical claims under discussion, and I have found them to be reasonable. The Applicant suffered a very serious car accident in September 2013, and she has had to devote a great deal of attention to her treatment and recovery since that time. She experienced a significant decrease in her income as a result of her injuries, and I accept her evidence that there were legitimate financial barriers to her pursuing her claims earlier. I also accept her evidence that it was difficult for her to pursue further litigation with the Respondent because of her primary parenting and supportive role with respect to the three children. All three of them continued to live with her after they turned 18 years of age, and Nicholas only left home in September 2018. Chelsea has experienced significant mental and physical health challenges which required the Applicant’s close attention and monitoring. The Respondent has had very little involvement with Chelsea, Nicholas and Jennifer since 2014. I also find that the Applicant experienced many challenges over the years in attempting to address child support issues with the Respondent. She gave credible evidence that the Respondent threatened to seek primary residence of Nicholas and Jennifer if she pursued a request for contribution to Chelsea’s post-secondary education expenses. The Respondent’s assertion that the Applicant willingly agreed without pressure from him that Chelsea should finance her education without assistance from the parties is not credible. Correspondence from the Applicant’s former counsel Mr. MacLeod dated June 4, 2014 clearly indicates that the Applicant was seeking a contribution from the Respondent for Chelsea’s post-secondary expenses. The Applicant also had to deal with persistent resistance from the Respondent over the years to providing updated income disclosure. These previous experiences understandably created a deterrent to her embarking upon yet another round of litigation. The Respondent suggested that in 2007 and 2014, he had forwarded Consent Motions to Change Final Order to the Applicant so that child support could be adjusted. However, I find that it was the Applicant who initiated those previous reviews of child support and the variation proceedings. These considerations are also relevant to the issue of the Respondent’s conduct with respect to child support. Finally, the delay with respect to the claim for retroactive increases in the Table amount is understandable given the term of the November 20, 2014 order that the Respondent was required to automatically adjust child support upwards each year if his income increased. Given this term, the Applicant was entitled to assume that he would comply without the need for her to raise the issue of support and pursue litigation on an annual basis.

[107] With respect to the Respondent’s conduct in regard to his child support obligations, there are some positives. In particular, as I have indicated, there were court-ordered increases in his child support obligation in 2007 and again in November 2014, and it appears that the issue did not go to a hearing on those previous occasions. In addition, although he was at times behind in his support payments, he made fairly regular payments until late September 2017, and was never in arrears of more than $2,285.00 until that time. However, I conclude that overall, the Respondent has engaged in extremely blameworthy conduct with respect to his child support obligations. Examples of this misconduct include the following:

1. As I have noted, he has historically resisted providing information regarding his income so that the Applicant could properly address the issue of child support. Although paragraph 12 of the order of Mazza J. dated January 10, 2007 required him to produce his Income Tax Return and attachments on a yearly basis, he failed to do so. In correspondence from the Applicant to the Respondent dated April 30, 2010, the Applicant asked for copies of his Notices of Assessment for the previous four years, and expressed her frustration about the fact that the Respondent had not produced a proper, legitimate Income Tax Return or Notice of Assessment to her since the parties’ separation in 2002. In correspondence from the Applicant’s former counsel Mr. MacLeod dated June 4, 2014, Mr. MacLeod confirmed that despite the Applicant’s request for disclosure in 2010, the Respondent had still not provided the Applicant with any updated income information since the January 10, 2007 order. The Respondent emphasized that the Applicant had not provided her income information since 2014 either, despite the fact that she was also obliged to do so by paragraph 7 of the November 20, 2014 order. However, the Applicant’s income did not increase, and in any event, her failure to provide updated income information does not detract from the Respondent’s own blameworthy conduct (see Johannson v. Haaranen, 2019 ABCA 73 (C.A.), at para. 20).

2. Although the Respondent did not contest increases in his child support obligation in 2004 and 2014, he only agreed to them after the Applicant confronted him about his ongoing failure to disclose his income and took active steps to ensure that he met his financial obligations to his children.

3. I accept the Applicant’s evidence that he has generally failed to contribute to extraordinary expenses for the children, choosing to rely on the terms of the January 20, 2007 and November 20, 2014 orders that required his advance consent before contribution was required. On the rare occasions when he gave his consent to contribute, he would often renege on his agreement, leaving the Applicant to cover the entire expense on her very limited income.

4. The Respondent represented to the Applicant and the court on November 20, 2014 when the existing order was made that his annual income was $116,000.00, when in fact his 2014 income was $151,777.00. By that late point in the year, he should have been well aware that his total 2014 income would be much higher than the amount stipulated in the order.

5. Although the November 20, 2014 order required the Respondent once again to produce his income information annually, he failed to do so. He also failed to increase the amount of child support in accordance with his income increases after 2014, in contravention of paragraph 7 of the order.

6. He stopped paying child support altogether for a period of 4.5 months from September 20, 2017 until February 1, 2018, without commencing any legal proceedings to change the support order. Both Nicholas and Jennifer remained entitled to support during this time period, and the Applicant’s income in 2017 and 2018 was minimal. On a positive note, the Respondent did make a payment of $9,634.50 on February 7, 2018 to catch up on his arrears, and he did continue thereafter to make regular payments until June 4, 2018. Thereafter, he contacted and worked with the FRO to address the child support issue. On July 17, 2018, he submitted an Application to Discontinue Enforcement of Ongoing Support with that office.

7. The Respondent adduced misleading information during this proceeding about his 2017 income. Although he indicated in his Change Information Form sworn May 23, 2018 that it was $95,000.00, he swore in his Financial Statement dated May 23, 2018 that his 2017 income was only $65,000.00. His Income Tax Return reflected income of $98,125.75. He never actually produced his 2017 Notice of Assessment despite his obligation to do so under the Family Law Rules and the Guidelines.

8. The Respondent was also extremely misleading about his 2018 income throughout these court proceedings. In his Motion to Change Final Order and Change Information Form dated May 23, 2018, he represented that his sole source of income was CPP disability in the amount of $10,200.00 annually. He swore in the Change Information Form that his total income for 2018 would be $10,200.00. In his affidavit sworn January 31, 2019, he asserted that his sole source of income since December 2017 had been CPP long-term disability benefits of $850.00 per month. He repeated this statement in his Factum filed for the hearing. In fact, right up until mid-way through the hearing, his counsel continued to advise that the Respondent’s only source of income was his CPP disability benefits. The Respondent did not produce his 2018 Income Tax Return until half-way through the hearing before me, and only after I expressed concern about the fact that he had not done so. It was only after he finally produced his Income Tax Return that the Applicant and the court learned that his 2018 income for support purposes was $79,326.03, and that he had several sources of income other than his CPP disability benefits. He did not produce any of the attachments to his Income Tax Return.

9. The Respondent also misled the Applicant and the court about the value of his investments, suggesting that they had significantly decreased in value. In fact, the total value of his savings increased from the time he swore his Financial Statement on May 23, 2018 until early 2019.

[108] All of this evidence respecting the Respondent’s conduct in relation to child support indicates that the Respondent’s primary goal over the years has been to minimize his child support obligation unless the Applicant actively pursued him for financial assistance.

[109] I have also considered the past and current circumstances of Nicholas and Jennifer, and the extent to which they would benefit from a retroactive award. I find that the Applicant at times had a very difficult time meeting all of their needs, and that the children often had to go without items and extracurricular activities. They both worked hard to try to save for university, and Nicholas incurred student loans in order to undertake post-secondary studies. Although they received significant amounts of money in 2017 and 2018, much of their income derived from CPP child disability benefits. Nicholas’ funds were applied towards his education expenses. He is currently working two jobs in an attempt to support himself. Jennifer did not complete her Equine Studies courses, but she hopes to enroll in university again soon. The funds that she has been able to save will be required for her post-secondary studies if she continues with her education. I conclude that both Nicholas and Jennifer would benefit greatly from a retroactive award.

[110] Finally, I have considered the issue of any hardship that may be occasioned by a retroactive award. Although the Respondent’s income has decreased since 2016, he still has a regular income stream of approximately $80,000.00. In addition, as I have indicated, he has a significant amount of savings. Although he stated that he wishes to preserve his savings so that he can undergo treatment for his cancer in another country if appropriate, he did not adduce any evidence of an out-of-country treatment plan that has been recommended to him. This argument appeared to be based on a hypothetical scenario rather than a concrete or even tentative plan. Having carefully considered all of the evidence respecting the Respondent’s circumstances, I am not satisfied that a retroactive child support award would cause him financial hardship.

[111] Having determined that the Applicant has satisfied the D.B.S. criteria for advancing her retroactive claims, it is necessary to decide the appropriate date from which her retroactive claim should commence. Counsel for the Applicant requested that adjustments to the Table amount payable commence as of June 1, 2015, as that is the date set in the November 20, 2014 order for making any necessary adjustments to support. Given the nature and extent of the Respondent’s misconduct in this case, and in particular the fact that his 2014 income was much higher than the amount of $116,000.00 cited in the November 20, 2014 order, the commencement date could have potentially extended back to October 1, 2014, which was the start date for the support payable under the November 20, 2014 order. However, the requested date of June 1, 2015 is a reasonable commencement date for consideration of the Applicant’s claim for increases to the Table amount as well as the claim for contribution to Nicholas’ post-secondary expenses. In regard to the Table amount increases, the November 20, 2014 specifically establishes June 1, 2015 as the first date when the Table amount was to be adjusted in the event of an income increase. Even if the D.B.S. principles apply to the claim for retroactive increases to the Table amount, I would find that the specific inclusion of this review date in the order amounts to effective notice that the Table amount should be reviewed and adjusted if appropriate. The Respondent was under a positive obligation to consider the issue and make the adjustment by virtue of the order. The same considerations do not apply with respect to the claim for post-secondary expenses, since the order did not address that issue. I find that the Applicant did not raise the issue of contribution to post-secondary education expenses with the Respondent until July 20, 2018, when she served him with her Response to Motion to Change. However, the Applicant’s evidence is that she would have addressed the issue of post-secondary expenses when it first arose if she had known how significantly the Respondent’s income had increased. Given the seriousness of the Respondent’s misconduct, I conclude that it is appropriate to extend the date of retroactivity back to June 2015, by which time the Respondent’s income had increased significantly and the Applicant would have learned of that increase had the Respondent complied with his income disclosure obligation under the November 20, 2014 order.

VI. SHOULD THE RESPONDENT BE PERMITTED TO PURSUE A CLAIM FOR A RETROACTIVE REDUCTION OF HIS CHILD SUPPORT OBLIGATION COMMENCING JULY 1, 2017?

A. Overview

[112] Given my conclusion that Nicholas’ entitlement to support did not end until June 30, 2018, and that Jennifer’s entitlement continued until December 2018, it is necessary to consider the Respondent’s alternative claim for a retroactive reduction of child support effective July 1, 2017, when his income began to decrease significantly due to the loss of his employment and his cancer diagnosis. As I have indicated, the Respondent did not serve his Motion to Change Final Order on the Applicant until sometime in mid-June, 2018. However, for the reasons that follow, I conclude that he should be permitted to advance a claim for a retroactive reduction of child support commencing June 1, 2017.

B. The Law Respecting Claims for Retroactive Decreases in Child Support and Rescission or Reduction of Arrears

1. General Principles

[113] On a Motion to Change Final Order, the court has a broad discretion to grant a payor retroactive relief from the terms of an existing order. The court’s powers in this regard include the following:

1. It can retroactively discharge (terminate) the existing order or one or more terms of the order as of a specified date, and order that arrears be re-calculated accordingly;

2. It can retroactively vary one or more terms of the order. This authority includes the power to retroactively decrease the amount of child support payable and either reduce any arrears payable by the Respondent or order the support recipient to reimburse the payor for any overpayment of support;

3. It can suspend all or part of the order on a retroactive or prospective basis for a specified period of time or until certain conditions are met, with the result that there will be no support payable during the period in question;

4. It can decline to vary the order on a retroactive basis, but nonetheless exercise its discretion to either reduce the arrears that have accumulated pursuant to the order or rescind them entirely; and

5. It can also vary the existing order by implementing an appropriate payment plan respecting any arrears that have accrued.

[114] The Ontario Court of Appeal has held that there is no fixed formula for determining how the court should exercise this discretion (Filipich v. Filipich, 1996 CarswellOnt 3263 (C.A.), at para. 3). However, it has held that general guidance can be found from the basic principles that the Supreme Court of Canada articulated respecting retroactive child support claims by recipients in D.B.S. (Gray v. Rizzi, at paras. 49-54; Punzo, at paras. 45-46; Colucci v. Colucci, 2017 ONCA 892 (C.A.) (hereinafter referred to as “Colucci 2017”), at para. 31; Colucci v. Colucci, 2019 ONCA 561 (C.A.) (hereinafter referred to as “Colucci 2019”); Makwana v. Bishnu, 2019 ONCA 543 (C.A.), at para. 11).

[115] The case-law has laid out a number of general principles that govern the determination of claims for retroactive decreases of child support and rescission or reduction of child support arrears. I turn now to these principles.

[116] First, as in the case of claims for retroactive support by recipient parents, there is no automatic right on the part of payors to pursue retroactive relief with respect to child support. When such relief is requested, the court must as a starting point analyze the governing legislation to determine if it establishes parameters, criteria or conditions regarding retroactive claims (Gray v. Rizzi).

[117] There are four general stages to dealing with a claim by a support payor for retroactive relief from an existing child support order, as follows:

1. As discussed above, the court must first determine whether the threshold test for a variation order has been satisfied;

2. Second, the court must determine whether it is appropriate to allow the payor to pursue retroactive relief;

3. Third, if the court concludes that the payor should be permitted to pursue retroactive relief, it must craft a remedy that is fair and just based on all of the facts of the case. If the relief sought is a retroactive reduction of support the court must at this stage of the analysis determine the appropriate date of retroactivity; and

4. Finally, after determining the general framework for the appropriate remedy, the court must quantify any adjustments to support that are required as a result of the remedy, and any overpayment that the recipient must reimburse to the payor. The court should also determine whether it is appropriate to include terms in the order relating to the manner of payment of any arrears, including terms to address any potential concerns regarding financial hardship.

[118] The court’s analysis of claims to retroactively decrease child support or to rescind or reduce arrears must be guided by the same fundamental principles relating to child support which the Supreme Court of Canada set out in D.B.S, as summarized in paragraph 88 of these Reasons for Judgment. Ultimately, the best interests of the child is the paramount consideration. In dealing with these claims, the court must remain focussed on the basic principles that “parents cannot bargain away their children’s rights to support when they need it,” and that “delinquency in paying support should not be incentivized” (Colucci 2019, at para. 20).

[119] Claims by payors for retroactive relief must also be assessed and determined keeping in mind the same three interests that inform retroactive claims by recipients, namely: the child’s interest in receiving the appropriate amount of support, the interest in fostering certainty and predictability when financial obligations appear to be settled, and the need for overall fairness and flexibility in order to ensure a just result (Gray v. Rizzi). In claims for retroactive reductions of support and reduction or rescission of arrears, the interests in certainty and predictability typically lie with the recipient, since the payor’s support obligation was legally settled and the recipient had every reason to expect that the payor would comply with their duty to pay support (Templeton v. Nuttall, 2018 ONSC 815 (S.C.J.), at para. 44).

[120] In determining whether it is appropriate to permit the payor to pursue retroactive relief at the second stage of the analysis described above, a distinction must be drawn between the following two types of cases:

1. Situations where there was no change in circumstances at the time the child support came due, and the payor had the ability to pay at the time, but they now seek retroactive relief in relation to arrears based solely on their current inability to pay; and

2. Situations where the payor experienced a genuine change in circumstances during the period under consideration which affected their ability to make their child support payments as they came due.

[121] In the first scenario, the interests of predictability and certainty with respect to child support orders should be considered paramount, given the lack of excuse for non-payment of support when it came due and the necessity of ensuring that parents comply with their obligation to support their children. Accordingly, in such circumstances, the court should generally require full compliance with the existing order unless there are compelling reasons not to do so. Generally, the court should only exercise its discretion to retroactively decrease support or reduce or rescind arrears in this type of case where the payor has established on a balance of probabilities that they cannot pay and will not ever in the future be able to pay the arrears ([Gray v. Gray](https://www.canlii.org/en/on/onsc/doc/1983/1983can