COURT FILE NO.: 01-FL-1054-9

DATE: 2019/08/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark Skotnicki, Respondent/Moving Party

AND

Julie Cayen, Applicant/Respondent

BEFORE: Justice H.J. Williams

COUNSEL: Any Mayer, Counsel for the Respondent/Moving Party

Susan Galarneau, Counsel for the Applicant/Respondent

HEARD: July 30, 2019

amended ENDORSEMENT: motion to change

The text of the original Endorsement was amended on August 23, 2019 and the description of the amendment is appended

1This is a motion, brought by the father, to change an order for child support.

Background

2The father lives in British Columbia; the mother in Ottawa.

3The father has an annual income that is somewhat higher than the mother but both parents earn more than $100,000.00/year.

4The father is seeking to change an order of this court dated December 15, 2017 to which he and the mother consented.

5The couple married in 1989. They had three children. They separated in 2000.

6The couple’s divorce order was dated January 31, 2003.

7The couple has had a long history of disputes over child support.

8The father is seeking to change the December 15, 2017 order in which he was to pay child support for the younger of the couple’s two daughters, Natalie, until March 1, 2019 and for their son, Joseph, until March 31, 2020.

9The December 15, 2017 order states that its support terms “will not be subject to any variation for any reason whatsoever.”

10The mother’s evidence in respect of the December 15, 2017 order is that, after years of litigation and multiple motions to change, in exchange for an order that would truly be “final”, she waived support arrears and agreed to a lower amount of on-going support than she could have demanded.

11Two events took place following the date of the order:

• Natalie moved from the mother’s home into an apartment on November 1, 2018, finished her university degree at the end of December, 2018 and became employed on a full-time basis in January, 2019.

• In late July, 2018, Joseph, who had been attending university in Ottawa, moved from the mother’s Ottawa home to attend university in the B.C. city in which the father lives. Joseph did not move in with the father; he shares a rented apartment.

12During the 2018/2019 school year, Joseph, who is now 22 years old, was living in rental accommodation in B.C., and not with the father, although in an affidavit dated July 19, 2019, the father said that Joseph will be living with him at his lake property for the balance of the summer.

13The father says that although Joseph did not live under the father’s roof during the school year, the father’s home was like a second home to Joseph. The father says that Joseph pays extended visits to the father’s home, that he eats meals there, that he helps out around the house and that he stores his sporting equipment there. The father says he considers Joseph to be a member of his household.

14The father says since Joseph moved to B.C. in July, 2018, the father has continued to pay the mother the $900.00/month in child support for Joseph as the December 15, 2017 order requires him to do but, in addition, he has been giving Joseph $450.00 to $900.00/month. The father says that he regularly buys groceries for Joseph, that he bought Joseph a used car and that he paid for insurance for the car for six months.

15The father says that it is not fair for him to be obliged to continue to pay the mother $900.00/month in child support for Joseph when Joseph is no longer living with the mother, particularly given that the father is now financially supporting Joseph directly.

16The father says that in December, 2018, after he served the mother with this notice of change, the mother began to pay Joseph $450.00/month. The father says that the mother keeps the balance of the child support he pays her for herself. The mother denies that she uses the child support for herself.

17In paragraph 10 of his motion to change form, the father seeks the following orders:

1. An order terminating child support for Natalie retroactive to January 1, 2019. (The father paid support for Natalie until March, 2019);

2. An order adjusting child support for Joseph retroactive to August 1, 2018 and requiring the mother to pay the father for overpayment of support since August 1, 2018;

3. An order for the mother to pay child support for Joseph on a retroactive and ongoing basis;

4. An order enforcing a provision in the December 15, 2017 order requiring the mother to pay for one-third of Joseph’s tuition fees;

5. An order allowing the father to remove Natalie as a beneficiary of his life insurance policy;

6. An order requiring the mother to reimburse the Natalie and Joseph for $633.31 each for grant money they received which the mother applied to her share of their tuition fees for the 2017-2018 academic year; and

7. An order requiring the mother to maintain a life insurance policy in the amount of no less than $50,000.00 to secure her support obligations for Joseph.

Analysis

18Sections 17(1) and 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provide this court with the authority to vary a support order, provided the court is satisfied that a change of circumstances as provided in the applicable guidelines has occurred since the order was made or last varied.

19Child support orders are not set in stone. There is always the possibility that an order may be varied when there is a change in the underlying circumstances that existed at the time the order was made. Parents are responsible for ensuring that their children receive the appropriate amount of support. (S. (D.B.) v. G. (S.R.), 2006 SCC 37 at para. 64.)

20Child support is the right of the child. (S. (D.B.), at para. 38.)

21I am satisfied that even though the December 15, 2017 order says that its support terms will not be subject to any variation “for any reason whatsoever,” I am not precluded from varying the order, provided there has been a change in circumstances since the order was signed and the change of circumstances is material.

22Even a significant change in circumstances may not be material for the purposes of determining whether an order should be varied, if it was actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made. (L.M.P. v. L.S., 2011 SCC 64, at para. 39.)

23A provision in an order that says that the order’s support provisions will not be subject to variation “for any reason whatsoever” contains strong and specific wording but, as previously stated, not wording that can bar variation altogether; it can only bar variation subject to the court’s power to vary under s. 17 of the Divorce Act.

24The choice of the phrase “for any reason whatsoever” is evidence of the parties’ intentions and, in this case, evidence that before consenting to the order, the parties, both of whom were represented by counsel,¹ considered or should have considered all of the reasons that might justify a future variation request by either of them. They agreed that there would be no such reasons-no reasons whatsoever-that would justify a variation.

25I conclude that when a request is made to vary an order that says that it will not be varied “for any reason whatsoever”, only an event that could not have been contemplated by the parties at the time of the order could amount to a material change in circumstances.

26The onus of establishing a material change is on the party seeking to change the order. (Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 at para. 70.)

27In his evidence, the father said that the children’s circumstances had changed significantly since the December 15, 2017 order was issued but he did not address what had been contemplated when he and the mother agreed to the order. The father did not say in his evidence that the changes that have taken place were not contemplated at the time of the order.

28The mother’s evidence is that when she consented to the December 15, 2017 order, she had agreed to reduce the father’s obligations with respect to both child support arrears and future payments in exchange for finality. The mother said that the parties’ intention was to bring clarity and certainty to the couple’s respective financial obligations toward the children and to ensure that there was no more litigation in the future.

29The following circumstances existed at the time of the December 15, 2017 order:

• The oldest of the couple’s three children, Madison, was attending school while not living with the mother;

• In an order dated July 20, 2016, Doyle J. had ordered the father to continue to pay child support for Madison even though she no longer lived with the mother; Doyle J. found that the mother continued to support Madison and that Madison continued to be under the charge of the mother;

• In her July 20, 2016 endorsement, Doyle J. noted that the father had requested an order requiring the mother to notify the father within 30 days if the children living with the mother were to move away from her home; Doyle J. granted the requested order;

• Each of the couple’s three children had lived in residence at university for the first year of her or his university program;

• The father’s evidence was that Joseph had told him in the fall of 2015, when he started university in Ottawa, that he had had no say in the program he would be taking and that the mother had chosen the program for him; and

• Joseph struggled throughout the program he was taking at university in Ottawa.

With respect to Natalie:

30I find that, in the circumstances that existed on December 15, 2017, it was known at the time that Natalie could move out of her mother’s home in November, 2018, one month before she completed her university program. It is evident from Doyle J.’s endorsement of July 20, 2016 that the father anticipated that the children would move away from the mother’s home. Also, Madison had moved away from the mother’s home before completing her university program.

31I also find that it was known at the time that Natalie could find work immediately following her university program. The father’s evidence was that Natalie had been enrolled in a federal student work experience program; he described Natalie as bright, capable, dedicated and hard-working.

With respect to Joseph:

32I find that, in the circumstances that existed on December 15, 2017, it was known that Joseph could change university programs; he was unhappy with the chosen program and was not doing well. The father was aware of this.

33I also find that on December 15, 2017, it was known that Joseph could move out of the mother’s home; Joseph and his sisters had not lived with the mother during their respective first years at university and both sisters had moved out of the mother’s home before they finished their degrees. The father’s evidence was that he was aware of some tension between Joseph and the mother; he knew that Joseph was unhappy that his mother had enrolled him in a particular program at university even though he had told her he was not interested in it. As noted above, it is evident from Doyle J.’s endorsement of July 20, 2016 that the father knew at that time that the children could move from their mother’s home. It is also evident from Doyle J.’s order that it was known at that time that if Joseph continued to attend university and moved out of the mother’s home, the father’s obligation to pay child support could continue; it did in the case of Madison.

34I also find that on December 15, 2017, it was known that Joseph could leave Ottawa to pursue his studies. He was not doing well at the university in Ottawa he was attending; there are only so many post-secondary institutions located in Ottawa but many more across the country and around the world.

35I also find that on December 15, 2017, it was known that Joseph could move to B.C., and to the community in which the father resides. If a young adult is seeking to leave the city where he grew up and where he lives with one parent, the city where the other parent lives may seem to him to be an attractive option.

36Even if it had not been known on December 15, 2017 that Joseph could move to B.C., I find that his choice to move to B.C. does not make the situation materially different than if he had chosen to move from his mother’s house to an apartment in Ottawa or in Montreal or Halifax. Although Joseph will be living with the father at the father’s lake property until the end of August, he has not lived with the father since arriving in B.C. last summer. The father’s evidence is that he has been paying the son $450.00/month, that he also buys groceries and provides meals for the son and that he has bought a car and insurance for the son. The father did not submit a budget for the son or provide evidence about the son’s expenses, savings or earnings. Further, the mother is continuing to maintain a room for the son at her home in Ottawa; the mother says that the son has returned to Ottawa six times since he moved to B.C. and that she paid for three of his flights and helped him to pay for the fourth.

37The father argues vigorously that child support is the right of the child, that it is paid to assist with the child’s expenses and that it cannot be waived by the parents. All of this is true, of course, but the father has offered no evidence that the son’s needs are not being met. The father’s evidence is that he is paying the mother $900.00/month and that, now that the son lives in his vicinity, he is also paying the son $450.00/month. The father’s concern is really that the mother’s household expenses in respect of Joseph decreased after Joseph moved away from her home in July, 2018 while the December 15, 2017 order requires him to continue to pay the mother $900.00/month in child support until March 1, 2020. The father also is not satisfied that the mother is putting the entire $900.00 toward Joseph’s needs rather than her own. The variations of the December 15, 2017 order requested by the father in respect of Joseph would not result in any more money being available to Joseph, they would only shift the burden of payment from the father to the mother.

38I find that the father has failed to meet the onus of establishing that there has been a material change in circumstances since the date of the December 15, 2017 order.

Conclusion

39Having found that the changes in respect to Natalie and Joseph were contemplated by the parties on December 15, 2017, I decline to make the orders requested by the father in paragraphs 10(1), 10(2), 10(3) and 10(7) of his motion to change form.

40With respect the order requested by the father in paragraph 10(4) of his motion to change form, the father shall have leave to amend his form to ask specifically that the mother pay her share of Joseph’s tuition at the beginning of each semester. I consider it to be unreasonable for the mother to refuse to pay her share of the tuition until the end of each semester and only after Joseph has provided evidence to her that he has completed his courses. The December 15, 2017 order requires the mother to pay one third of the total tuition. It does not provide the mother with discretion not to pay if she is unsatisfied with Joseph’s academic performance. It is unfair to Joseph and contrary at least to the spirit of the order to require Joseph to pay the mother’s one third of the tuition and then to wait to be reimbursed by the mother. If Joseph was unable to pay the mother’s portion of the tuition, he would be unable to enroll. The order requested by the father in paragraph 10(4), as amended, is granted.

41With respect to the order requested by the father in paragraph 10(5) of his motion to change form, the order is granted. The father may remove Natalie as a beneficiary under his life insurance policy, as he no longer has a support obligation in respect of her.

42Finally, with respect to the order requested by the father in paragraph 10(6) of his motion to change form, I decline to make the requested order. The father’s request is that the mother be ordered to pay Natalie and Joseph $633.32 each for grant money they received which the mother applied to her share of their tuition fees for the 2017-2018 academic year. The father has no standing to assert the claim on behalf of Natalie and Joseph. Further, the manner in which the mother applied the grant money to calculate the amount of tuition she owed, although less generous to the children than the father’s calculation, was nonetheless justifiable.

Costs

43If the parties cannot agree on the costs of this motion,

• The mother may deliver written submissions of no more than three pages in length within 14 days of the date of this endorsement;

• The father may deliver written submissions in response of no more than three pages in length within 14 days of the date of receipt of the mother’s submissions; and

• The mother may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the father’s submissions.

44The costs submissions may be filed by sending them to me, care of the family law trial coordinator.

45If, because of their summer vacations or for any other reason, the parties wish to amend the timetable I have set for their costs submissions, they may do so on consent, with notice to me, care of the family law trial coordinator.

Madam Justice H.J. Williams

Date: August 23, 2019

APPENDIX

On page 9, para. 43, the second bullet has been amended so that the word “estate” has been replace by the word “mother”.

On page 9, para. 43, the third bullet has been amended so that the name “Joseph” has been replace by the words “the father”.

Footnotes

1. 1The father’s counsel at the time was not the lawyer who is now representing him.