COURT FILE NO.: F1975/8-1 DATE: December 5, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Egidio Fanelli, sometimes known as Tony Fanelli Applicant

• and -

Lilian Susan Valente Respondent

COUNSEL: Rochelle F. Cantor for the applicant Matthew Villeneuve for the respondent

HEARD: December 4, 5, 6, 7, 10, 11, 12, 13, 14, 2018; February 19, 26, 2019; May 21, 2019; additional written submissions received June 14, 2019; November 14, 2019

BEFORE: MITROW J.

1. INTRODUCTION¹

1The applicant, Egidio Fanelli, sometimes known as Tony Fanelli (“Mr. Fanelli”), and the respondent, Lilian Valente (“Ms. Valente”), were married July 20, 1985 and separated January 1, 1992.

2They have two children, Christopher and Andrea, who were ages 30 and 28, respectively, at the commencement of trial. Christopher was born in February 1988 and Andrea born in August 1990.

3This was a trial of a motion to change brought by Ms. Valente for variation of child support. Much of the child support claimed by Ms. Valente was retroactive child support for both children comprised of the table amounts and s. 7 university expenses pursuant to the Guidelines.

4Ms. Valente sought child support for Andrea commencing in 2006, until Andrea finished teacher’s college in the spring of 2014. For Christopher, Ms. Valente sought child support commencing 2006, until Christopher completed dental school in the spring of 2015.

5At trial, Ms. Valente sought a total payment of a little over $540,000 from Mr. Fanelli, comprising table amounts, s. 7 expenses and interest that she submitted was owing by Mr. Fanelli based on her calculations.

6Mr. Fanelli seeks to have Ms. Valente’s motion to change dismissed. The defences advanced by Mr. Fanelli included an argument that each of his children has willfully refused to have a relationship with him and, accordingly, that he should not have an obligation to contribute to either child’s support after the child has attained the age of majority.

7Given the component of retroactive child support, this case engages the principles in S.(D.B.) v. G.(S.R.), 2006 SCC 37, hereinafter referred to as “DBS.”

8For reasons that follow, I find that the amount of child support claimed by Ms. Valente is excessive, but that Mr. Fanelli should pay a lesser amount as set out in these reasons.

2. THE NATURE OF THE EVIDENCE AT TRIAL

9Ms. Valente filed at trial an exhibit containing a brief of affidavits comprising evidence in-chief.

10The brief filed by Ms. Valente contained two affidavits from Ms. Valente and one affidavit from each of the children, Christopher and Andrea.

11Ms. Valente’s two affidavits contained evidence as to the history of her relationship with Mr. Fanelli, the history regarding the separation agreement and some of the court orders. Ms. Valente’s affidavits also provided details as to the method of calculating the amount of child support, both s. 7 and table amounts, that she alleged was owing by Mr. Fanelli. Also included as part of Ms. Valente’s evidence were detailed spreadsheets showing the child support calculations.

12Accordingly, Ms. Valente’s evidence in-chief during her testimony at trial was relatively brief given her extensive affidavits.

13Christopher and Andrea both testified at trial.

14The presentation of Ms. Valente’s case through the use of affidavits helped to expedite this document-heavy trial and was an efficient way to present her case.

15Further, both parties and counsel assisted the court by filing a statement of agreed facts.

16Mr. Fanelli was the only witness who testified in support of his case.

17While the trial decision was under reserve, both parties on consent sought to file additional evidence to update the court as to Christopher’s current employment. On November 14, 2019, the trial resumed briefly to receive this additional evidence, the relevant portion of which was a further agreed statement of fact.

3. LITIGATION HISTORY AND SEPARATION AGREEMENT

18Following separation, an action was commenced by Ms. Valente as plaintiff against Mr. Fanelli as defendant in the Superior Court of Justice (then known as the Ontario Court of Justice (General Division)). Claims advanced by Ms. Valente included custody, child support and spousal support.

19There were a number of interim orders made during the period July 1992 to December 1993. These orders included dealing with interim access and interim custody. In relation to child support, pursuant to an interim interim order dated October 1, 1992, Mr. Fanelli was ordered to pay to Ms. Valente $500 per month per child until further order of the court.

20The parties executed a comprehensive separation agreement dated May 21, 1993, dealing with major issues, being spousal support, child support, property and equalization of net family property.

21In relation to custody and access, the separation agreement stated that the parties were undergoing mediation and it was agreed pursuant to the separation agreement that, pending further agreement or order, the children shall have their primary residence with Ms. Valente, that Ms. Valente will have day-to-day care and control of the children and that Mr. Fanelli shall have reasonable access.

22In relation to child support, the separation agreement required Mr. Fanelli to pay child support in the amount of $500 per month per child.

23Pursuant to paragraph 5.02 of the separation agreement, the child support was to terminate on their occurrence of one or more events, which included the following two clauses that are relevant in this case (clauses 5.02(1)(a) and (c)):

(a) The child ceases to reside fulltime with the wife, and “reside fulltime” includes the child living away from home to attend an educational institution, pursue summer employment or vacation, but otherwise maintaining a residence with the wife;

(c) The child obtains a post-secondary school degree or college graduation certificate or attains the age of 23;

24As this separation agreement predated the Child Support Guidelines, O. Reg. 391/97 (“the Guidelines”), the child support was taxable to Ms. Valente and tax deductible to Mr. Fanelli. The separation agreement did provide for indexing of child support as follows in paragraphs 5.08 and 5.09:

5.08 The amount of support payable under this Agreement for the support of the children will be increased annually commencing the 1st day of June 1994 and on each anniversary date thereafter by the lesser of:

(i) the percentage increase in the Consumer Price Index for Canada for prices of all items since the same month of the previous year as published by Statistics Canada; or

(ii) the percentage increase in the husband’s rate of pay at his place of employment as compared to the same month the previous year.

5.09 The increase shall be the amount provided in paragraph 5.08(i) unless the husband provides written documentary evidence that his income has gone up by less than the Consumer Price Index.

25Paragraph 5.06 provided that the child support was variable in the event of a material change in circumstances.

26Pursuant to minutes of settlement signed by the parties in October and November 1994, the parties agreed to resolve their court case. The minutes of settlement were incorporated into the order of Higgins J. dated November 17, 1994 (“the 1994 order”). This order provided, inter alia, that Ms. Valente have custody of the children and Mr. Fanelli have access as detailed in the order, which included alternate weekends once his job is relocated to Cambridge, Ontario and subject also to several other conditions. In relation to child support, this order contemplated that Mr. Fanelli’s income may be reduced. The order provided a formula depending on the extent of Mr. Fanelli’s income reduction that allowed Mr. Fanelli to request a decrease, and allowed Ms. Valente to request an increase, in the amount of child support.

27Pursuant to this 1994 order, the proceeding, which was referred to as an “Application” in the order, was adjourned sine die, reserving to each party the right to “renew” the application depending on Mr. Fanelli’s income reduction.

28The parties then executed an agreement dated April 1, 1995 amending the separation agreement. This amending agreement increased the amount of child support from $500 per month per child to $675 per month per child, for a monthly total of $1350, effective January 1, 1996. The existing indexing provisions contained in the separation agreement continued to apply.

29The amending agreement also made some changes to the separation agreement to finalize the custody and access provisions.

30Shortly after signing the amending agreement, the parties consented to a further order of Browne J. dated April 20, 1995 (the “1995 order”) which incorporated the parties’ up-to-date agreement in relation to all custody and access issues. This order repeated that Ms. Valente shall have custody of the children and Mr. Fanelli’s weekend access was no longer subject to any conditions. The 1995 order further varied the 1994 order by rescinding all provisions in relation to child support, including the provisions adjourning the application sine die.

31The net result of the foregoing was that all issues between the parties were settled in accordance with the separation agreement, as amended by the amending agreement. The 1995 order incorporated provisions in relation to custody and access matters. There was no order for child support or indexing; rather, those issues were dealt with exclusively by agreement, which required Mr. Fanelli to pay the child support directly to Ms. Valente.

32In 2008, Mr. Fanelli reduced the child support by half to $675 per month. This reduction occurred because Christopher, then attending Western University (“Western”), was no longer living with Ms. Valente and instead was being financially supported exclusively by Mr. Fanelli. This matter is explored in further detail later in these reasons.

33As confirmed in the agreed statement of fact, Ms. Valente responded to Mr. Fanelli’s decision to reduce the child support payments by 50 percent by filing the separation agreement with the Family Responsibility Office in order to enforce the full payment of $1,350 per month.

34Mr. Fanelli, as a result, did continue to pay the full monthly amount of $1,350, plus arrears.

35The child support payments were never indexed, as required by the separation agreement.

36The circumstances regarding Ms. Valente’s decision to file the separation agreement for enforcement, and the fact that the child support payments were never indexed, are addressed later in these reasons.

37In September 2012, Mr. Fanelli commenced an application in this court. He sought a declaration that no further child support payments should be made by him. The basis of his request was that Christopher had completed a four-year undergraduate degree at Western in April 2010 and that Andrea completed a four-year undergraduate degree from Western in April 2012. It was Mr. Fanelli’s position that cl. 5.02(1)(c) of the separation agreement was engaged – that child support terminates when the child obtains “… a post-secondary degree or college graduation certificate.”

38At the time that Mr. Fanelli commenced his application, the separation agreement was the legal document governing child support and termination of child support. The separation agreement had been negotiated and executed in circumstances where both parties were represented by experienced family law counsel.

39Prima facie, Mr. Fanelli’s obligation to pay ongoing child support, as set out in the separation agreement, as amended, had terminated.

40The exhibits filed at trial demonstrate that Mr. Fanelli had contacted the Family Responsibility Office early in 2012 advising that his obligation to support Christopher had ended April 30, 2010 and that his obligation to support Andrea will end April 30, 2012. In response to a letter from the Family Responsibility Office, asking whether she agreed with Mr. Fanelli’s request, Ms. Valente indicated that she did not agree.

41Subsequently, a letter was sent to Ms. Valente in March 2012 from Mr. Fanelli’s solicitor regarding the termination of child support. This letter went unanswered. As discussed later in more detail, Mr. Fanelli’s attempts to communicate with Ms. Valente as to information regarding the children characteristically were met with walls of silence.

42When Mr. Fanelli inevitably commenced his application to terminate the child support, it was only then that Ms. Valente asserted claims in her answer, dated October 26, 2012, that included claims for child support pursuant to the Guidelines, including s. 7 expenses, retroactive to May 1, 1997.

43In the application commenced by Mr. Fanelli, disclosure orders were made and a case conference and a settlement conference were held. Beyond that, it appears that this application did not move forward. For Mr. Fanelli, he was not motivated to move this matter forward because the Family Responsibility Office had ceased enforcing the support payments after April 2014. Hence, he had achieved the result sought in his application.

44Ms. Valente then commenced a fresh proceeding via a motion to change issued February 18, 2014. It is this proceeding which is now before the court. Ms. Valente sought Guideline child support pursuant to the tables retroactive to September 1, 2008 and s. 7 post-secondary expenses also retroactive to September 1, 2008. The quantum of s. 7 expenses was not specified in the motion to change.

45At the commencement of trial, Ms. Valente filed a motion to request that her pleadings be amended to claim child support retroactive to January 1, 2006. After hearing submissions, I permitted this amendment and issued brief written reasons for same.

46Mr. Fanelli effectively abandoned his application, while Ms. Valente’s claims in her answer remained outstanding and were never dismissed. I find that the effect of the motion to change was to recast Ms. Valente’s outstanding claims, procedurally, as a r. 15 motion to change.

47I will return to the effect of Ms. Valente’s claim in the abandoned application when dealing with issues of formal notice and/or effective notice.

48Both parties agreed, and filed a written consent, that their divorce in 1994 was a “simple divorce” that did not include any provisions for child support.

49Accordingly, this motion to change proceeds pursuant to the Family Law Act, R.S.O. 1990, c. F.3 as a variation of the child support provisions contained in the separation agreement, as amended, and filed with the court pursuant to s. 35 of the Family Law Act.

4. MS. VALENTE

50Ms. Valente is employed in a senior executive assistant position. She testified that she has held that position for 15 years.

51During the years 2006 to 2015, which are the relevant years based on Ms. Valente’s child support claims, Ms. Valente’s income was a little over $60,500 in 2006 and thereafter increased incrementally each year to $76,356 in 2015.

52At the time that the separation agreement was prepared, it was Ms. Valente’s evidence that she was not employed.

53It is also noted that the separation agreement, in paragraph 5.07(c), in relation to a material change in circumstances, provided that Ms. Valente’s income shall be deemed to be the same as it was at the time of the execution of the separation agreement, unless Ms. Valente’s income from employment exceeds $25,000 annually.

54Ms. Valente addressed the issue of violence perpetrated against her by Mr. Fanelli. In the agreed statement of fact, the parties concur that Mr. Fanelli was convicted of assault against Ms. Valente in 1992.

55It was also Ms. Valente’s evidence that she was a victim of numerous assaults perpetrated against her by Mr. Fanelli. Ms. Valente explains that with emotional support, encouragement from friends and family, and proper legal advice, that she gained the courage to pursue her motion to change.

56It was Ms. Valente’s evidence that she resides on her own. Although she has had a partner for a number of years, she and her partner do not cohabit.

57Although this trial was about child support and child support arrears, conduct between the parties did infiltrate the evidence. Ms. Valente, in part, relied on her allegations of abuse to explain why she took so long to seek a variation of child support.

58It is not necessary, at this time, to delve further into Ms. Valente’s evidence as that evidence is discussed later in these reasons as necessary.

5. MR. FANELLI

59Mr. Fanelli described himself as the son of Italian immigrants. Mr. Fanelli completed university and he was a “tradesman” involved in the masonry trade. At the time of marriage, Mr. Fanelli was working in Sarnia as a labour relations officer representing employers. Mr. Fanelli and Ms. Valente lived in London and Mr. Fanelli, therefore, had to commute to work in Sarnia.

60When the Sarnia position ended, Mr. Fanelli obtained employment elsewhere, eventually finding work in the construction industry. However, this employment required significant travel, including various locations within Canada.

61Mr. Fanelli described receiving regular salary increases but nothing substantial until 2006 when his income was just over $125,000.

62As a result of economic and other negative factors affecting his employer’s Toronto office, where Mr. Fanelli was working, Mr. Fanelli was asked to move to Calgary. It was Mr. Fanelli’s evidence that he felt that he had no choice if he wanted to keep his job, and he did move to Calgary. After living in a hotel for about a year, Mr. Fanelli and his wife purchased a home in Calgary.

63Regarding Mr. Fanelli’s personal situation, he had remarried in 1994 and his wife is described in the statement of agreed fact as an experienced family lawyer. She practiced in Ontario. More will be said later about Mr. Fanelli’s wife’s present inability to work.

64Mr. Fanelli and his wife have a daughter, Ava, born in October 1996. Ava was age 22 at the time of trial.

65Mr. Fanelli described working in remote areas of Canada on various jobsites. During this time, his wife and daughter remained in Mississauga. Mr. Fanelli described flying home frequently on weekends to be with his family and that he incurred significant expenses to do so. However, these expenses were not verified by receipts.

66During the summer of 2008, Christopher lived in Mississauga with Mr. Fanelli and his family.

67In 2007, Mr. Fanelli’s income increased to just over $166,000. Between 2008 and 2010 inclusive, Mr. Fanelli’s income ranged from approximately $234,000 to $297,500. In 2011, his income was $316,313; in 2012, his income was $366,683; and between 2013 and 2015, Mr. Fanelli’s income ranged from approximately $375,000 to just under $389,000.

68Regarding the assault conviction, Mr. Fanelli, unlike Ms. Valente in her evidence, ventured into the details of that incident that he recalled occurred in June 1992. It is not necessary to review the details of Mr. Fanelli’s evidence. It is sufficient to note that Mr. Fanelli paints Ms. Valente as the aggressor and Mr. Fanelli’s description of this occurrence, if true, would suggest that no assault took place. Mr. Fanelli testified that he had attempted to resolve this matter via peace bond, but was unable to do so, and that a trial was held. Mr. Fanelli confirmed that he was convicted of assault after trial.

69Mr. Fanelli, I find, was less than credible in relation to the description of this incident. The fact that Mr. Fanelli was convicted after a trial in the criminal court, on the standard of proof beyond a reasonable doubt, undermines his credibility in the case at bar claiming that no assault took place.

70Mr. Fanelli adamantly denied the evidence of Ms. Valente and Christopher (Christopher’s evidence is discussed later) that he engaged in other instances of abusive conduct against Ms. Valente.

71The assault conviction against Ms. Valente speaks for itself. Given Mr. Fanelli’s somewhat defiant evidence at trial, it is questionable whether Mr. Fanelli, today, accepts responsibility for his criminal conviction.

72There was minimal, if any, cross-examination at trial regarding the allegations of physical abuse by Mr. Fanelli. That is understandable, as the issue and focus of this case is child support and both counsel gave primacy to focusing the evidence on that issue. In the circumstances, I find it unnecessary to make findings of fact as to whether other instances of physical abuse occurred more than 25 years prior to this trial. I do examine later in these reasons the impact that Mr. Fanelli’s conduct may have had on Ms. Valente’s delay in commencing this proceeding.

73Mr. Fanelli testified as to continual and ongoing difficulties that he encountered with access. From his perspective, there were chronic issues with access not occurring, allegations of non-compliance by Ms. Valente with court orders regarding access and Mr. Fanelli’s allegations as to difficulties he incurred exercising court-ordered telephone access with the children. Mr. Fanelli further testified that Ms. Valente’s parents became involved in access issues which, in Mr. Fanelli’s view, added further tension to the conflict. Mr. Fanelli also complained about not seeing the children’s report cards and being unable to procure the report cards directly from the school given the specific wording of the order.

74For her part, Ms. Valente’s evidence, supported by both Christopher and Andrea, was that she encouraged access with their father.

75Mr. Fanelli has filed exhibits that include a number of letters from his lawyer between 1993 and 1997 that reflect a consistent theme of access issues.

76The 1995 order contained a police assistance clause which, according to Mr. Fanelli, had resulted because of ongoing access issues. Mr. Fanelli gave evidence about invoking the police assistance order and describing, not surprisingly, that the children were crying and upset and were fearful that their mother would get into trouble.

77Mr. Fanelli also singled out Ms. Valente’s parents, and their presence at access exchanges, as exacerbating the conflict.

78This brings me to the “tire incident” that occurred in the spring of 1994. Mr. Fanelli testified that he had returned the children to Ms. Valente’s residence following an access visit. He drove his vehicle onto Ms. Valente’s driveway, took the children to the door and then drove away. Soon thereafter, Mr. Fanelli had to stop his vehicle and, on inspection, found that two tires had nails in them. Mr. Fanelli then returned to Ms. Valente’s residence, and observed, that in the interlocking brick driveway, a number of nails had been inserted with the sharp points facing up and that the nails were placed along a path in the driveway that a car would follow when using the driveway.

79Mr. Fanelli’s foregoing evidence was unchallenged and also unchallenged was his evidence that he reported this to the police and that Ms. Valente’s father, as a result, was charged with mischief. A letter from the lawyer for Ms. Valente’s father confirmed the mischief charge. The exhibits filed confirm that a cheque was forwarded from Ms. Valente’s father’s lawyer to Mr. Fanelli, reimbursing him for the cost of replacing his two tires. Although there was no evidence as to whether Ms. Valente’s father was convicted, it is clear that this incident occurred at Ms. Valente’s home and resembled a trap laid for an unsuspecting father dropping off his two young children after an access visit.

80What the foregoing incident demonstrates is that there is, apparently, no limit as to the type of rancorous and puerile behavior that adults will stoop to in high-conflict custody/access cases.

81While Ms. Valente has her own version of access issues, and while undoubtably both parties may believe that the other is at fault, the reality in high-conflict cases – and this case is no exception – is that fault and responsibility rests with both parents.

82In his evidence, Mr. Fanelli described his family’s current circumstances. His wife has various health issues that Mr. Fanelli described. This evidence did not appear controversial and was not challenged, thereby avoiding the necessity to have Mr. Fanelli’s wife testify. Mr. Fanelli’s wife was not practicing due to health issues and her income for 2017, shown on page 1 of Mr. Fanelli’s 2017 income tax return, was $12,050 from the Canada Pension Plan.

83Mr. Fanelli lost his job in or about June 2016 due to economic conditions. He described there being a lack of work in Alberta.

84Mr. Fanelli was able to do some contract work later in 2016 and into early 2017. In October 2017, Mr. Fanelli obtained employment pursuant to a three-year contract that ends in 2020, the month before he attains age 65. Mr. Fanelli’s income pursuant to the contract is $175,000 annually and, in addition, he receives benefits totaling over $18,000 annually consisting of RRSP contributions and a car allowance.

85Mr. Fanelli explained that his wife is going through her savings due to her inability to work.

86Mr. Fanelli’s daughter, Ava, at the time of trial, was in her fourth year of university. Mr. Fanelli’s current financial statement sworn November 6, 2018, disclosed tuition payments for Ava in the amount of $814 per month. Ava’s plans as to a further degree, according to Mr. Fanelli, were not yet finalized at the time of trial and Mr. Fanelli testified that he would help his daughter out with any potential costs of further education.

87Mr. Fanelli’s current financial statement disclosed assets of $1.025 million under the heading “Savings Plans, RRSPs and Pension Plans.” This amount includes $64,308 in a TFSA. The RRSPs total over $941,000 plus there is a LIRA in the amount of $19,264. This contrasts with RRSP assets of $390,000 shown in Mr. Fanelli’s financial statement sworn April 19, 2014.

88The property in Calgary is jointly owned by Mr. Fanelli and his wife and, in Mr. Fanelli’s current financial statement, is shown to have a total value of $800,000. At the time of trial, this property was listed for sale at a price of $900,000 and was mortgage-free.

89Mr. Fanelli’s current financial statement shows a net worth of $1.135 million (rounded). However, there was a substantial debt of over $288,000, which is the contingent tax liability for the RRSPs at a rate of 30 percent. There was no actuarial evidence to substantiate the present value of the contingent tax liability. It is difficult to put much weight on Mr. Fanelli’s estimate of this potential debt. Mr. Fanelli also disclosed debts totaling $225,000, being a $150,000 shareholder loan and “disposition taxes” in the amount of $75,000. These debts are in relation to a corporation initially started by Mr. Fanelli’s father, now deceased.

90Mr. Fanelli claimed that he and his brother are now equal owners of the corporation, that assets of the corporation were sold and that the cash was placed in the corporation. Mr. Fanelli then gave a confusing explanation as to how he took his share of the cash as a shareholder loan. Mr. Fanelli’s explanation was quite lacking and was difficult to follow.

91Mr. Fanelli filed no financial statements for the corporation or any documentation from an accountant or other professional explaining the calculation of these alleged debts. Mr. Fanelli’s explanation that there are debts totaling $225,000 in relation to his late father’s corporation is quite unreliable and further distorts Mr. Fanelli’s true net worth.

92Mr. Fanelli’s 2017 tax return disclosed total income of $548,784 that included a severance payment of a little over $362,000.

93Further, Mr. Fanelli’s matrimonial home in Mississauga, originally purchased in the joint names of Mr. Fanelli and his wife in 2012, was subsequently transferred to the sole name of Mr. Fanelli’s wife in 2013 and she in turn placed the property in the joint names of herself and their daughter, Ava, in 2016. Although Mr. Fanelli is not currently on title, he does have the use and enjoyment of that property as the matrimonial home.

94Similar to Ms. Valente, it is not necessary to discuss at this point other aspects of Mr. Fanelli’s evidence, as same are dealt with, as necessary, elsewhere in these reasons.

6. CHRISTOPHER FANELLI

(A) Relevant Facts and Education Prior to Dental School

95Christopher had memories of his father’s physical abuse towards his mother. He remembered an incident where his father was wearing “a red jacket” and was punching his mother “more than one time,” and was ripping the telephone cord out of the wall as his mother was calling for help. Christopher acknowledged that this event occurred while he was “a very young child.” He testified it occurred prior to his parents’ separation. Christopher would have been just under four years of age when his parents separated.

96Christopher had other memories witnessing his father “hitting, pushing and shoving” his mother.

97It was Christopher’s evidence that his mother always supported him having a relationship with his father. Christopher recalled going on access visits together with his sister. Access visits, according to Christopher, began to decrease in frequency. He recalled that “around” grade 8 or 9 that his father stopped coming for access completely and that his father also stopped calling at the same time. Christopher attended high school from 2002 to 2006.

98The statement of agreed facts includes that Mr. Fanelli “did not see the children between 2003 and July of 2007.” During the first half of 2003, Christopher would have been completing grade 9.

99From September 2006 until April 2010, Christopher attended Western, graduating with a four-year Honours Bachelor of Health Sciences degree, with a specialization in Health Sciences.

100Christopher had continued to reside with his mother while attending first year at Western.

101There is no dispute that Christopher had a falling out with his mother in the summer of 2007. It was at that point that Christopher, as he deposes in his affidavit, “reached out” to his father. Christopher further deposed that it had been his intention in any case to reach out to his father because Christopher was at an age where he was seeking “mentorship and closeness” with his father.

102Christopher’s departure from his mother’s residence was very sudden. Christopher did not tell his mother that he was moving and, with the assistance of his father, Christopher cleaned out his possessions and, shortly before his second year at Western started, Christopher moved into a rental residence that was paid for by his father.

103It was Ms. Valente’s evidence in-chief that she was “shocked” when she learned that Christopher had moved out.

104Christopher described this episode as a disagreement with his mother about house rules and claimed, in hindsight, it was “not a major argument.” Christopher’s sister, Andrea, was upset at the suddenness of the move to the extent that she cut off contact between herself and Christopher for a period of time. Andrea, also, had received no notice of Christopher’s impending move.

105I find that Christopher minimized the extent of his conflict with his mother. Christopher’s description that the conflict was “not a major argument” does not mesh with Mr. Fanelli’s evidence, which I prefer, that Christopher still was having no contact with either Andrea or Ms. Valente approximately a year after he moved out.

106Mr. Fanelli, in an email to Andrea dated September 30, 2008 (being a little over one year after Christopher moved out), suggested to Andrea that she should not be critical of Christopher, that he wants to have a relationship with her and their mother, and urged Andrea “to make an effort to talk” to Christopher. This email provides some corroboration of Mr. Fanelli’s evidence as to how long Christopher had no contact with either Andrea or his mother.

107For the next three academic years, from September 2007 until completion of his degree in April 2010, Christopher lived in rental premises.

108For the last three years of his four-year undergraduate degree, the parties agree that Christopher was supported by Mr. Fanelli. Ms. Valente did not contribute financially towards Christopher’s support during this period. Mr. Fanelli paid Christopher’s rent, paid his credit card bills on a monthly basis, gave him spending money, paid his tuition in the third and fourth years at Western, and generally looked after any other reasonable expense. During the period August 2007 to April 2010, Mr. Fanelli itemized his expenses at $93,811.82, as summarized in an exhibit filed at trial.

109Ms. Valente agreed during the trial and accepted that Mr. Fanelli had paid $93,000 over that period of time. Accordingly, I make that finding of fact.

110During the summer of 2008, Christopher stayed in Mississauga at his father’s residence, where Christopher was able to rekindle his relationship with his father, his father’s wife and Christopher’s half-sibling, Ava. Christopher obtained a summer job that year near his father’s residence.

111After completing his undergraduate degree at Western, Christopher moved back with his mother to pursue a fifth year at Western. It is not in dispute that Mr. Fanelli at that point was not prepared to fund a fifth year of university and, accordingly, that precipitated Christopher’s return home to live with his mother. Mr. Fanelli was clear in his evidence that, pursuant to the separation agreement, his legal obligation to provide any further financial support to Christopher had ended.

112Christopher, for many years, had been demonstrating a strong desire to go to dental school. Christopher had spoken of his keen interest in dentistry starting at an early age. There was no dispute that Mr. Fanelli also was aware of Christopher’s strong desire to attend dental school. The statement of agreed facts confirms that this was made known to Mr. Fanelli during his ongoing communications with Christopher while Christopher was completing the last three years of his undergraduate degree.

113It was Christopher’s evidence that his first-year tuition at Western was paid by scholarship money and money he had saved from part-time earnings while in high school. Christopher also paid his second-year tuition from money he earned from employment.

114Christopher explained that he took an additional one year of fulltime studies at Western from September 2010 to April 2011 to take further courses that would better prepare him for dental school. Christopher paid for his fifth year by a combination of OSAP loans and money he earned from employment.

(B) Attendance at Dental School

115During his fifth year at Western, Christopher studied for the dental admission test and he applied to dental schools.

116It was Christopher’s evidence, corroborated by Ms. Valente, that Christopher applied only to two dental schools in Canada, namely Western and University of Toronto. At trial, a typed list was filed as an exhibit², listing 18 dental schools that Christopher had applied to. Western was the only Canadian dental school shown in that list.

117Both Christopher and Ms. Valente were cross-examined on this list prepared by Ms. Valente because there was no reference to University of Toronto. Christopher was adamant that he applied to University of Toronto and Ms. Valente testified that she had inadvertently neglected to include University of Toronto on that list.

118Mr. Fanelli had raised an issue as to Christopher’s failure to apply to more Canadian dental schools, given the significantly higher cost of dental schools in the United States.

119It was Christopher’s evidence that he did not apply to other Canadian dental schools because he had done research on this issue and it was his understanding that non-Ontario dental schools had a strong tendency to accept applicants from within the province.

120Christopher further explained that there was a $250 application fee for each Canadian dental school and he was concerned about incurring those fees when he did not have a “strong chance” of receiving an acceptance. It is difficult to put much weight on that explanation given that the application fee was rather miniscule when compared to the cost differential between dental schools in Canada and the United States.

121As confirmed in a letter from Western filed at trial³, Christopher had applied to the dental school at Western on two occasions. The first occasion was in November 2009, while Christopher was in the last year of his four-year undergraduate program. That application was for the dental class starting in the fall of 2010. Christopher applied a second time to Western after he had completed one year of dental school in the United States. Christopher had sought a transfer into year two of the dental program at Western. Christopher was not accepted on either application.

122Given Christopher’s evidence that he took a fifth year of studies at Western to enhance his prospect of being accepted into dental school, it is unclear, at best, why Christopher failed to apply to Western to start in September 2011, while he was taking his fifth year. Also, while I accept the evidence of Ms. Valente and Christopher that Christopher did apply to University of Toronto, it is noteworthy that there was no evidence filed at trial to confirm when Christopher made that application, whether he applied more than once and whether he applied for the class starting in September 2011, which would take into account his fifth year of studies.

123I do find that lack of evidence troubling and I draw an adverse inference against Christopher as it relates to his efforts to apply to Canadian dental schools; further, Christopher’s failure to apply to other Canadian dental schools leads to an adverse inference against Ms. Valente regarding her claim for Christopher’s dental school expenses.

124Mr. Fanelli had done some research on the costs of attending dental school in Canada that was filed on consent as an exhibit at trial. Neither party disputes the significantly lower cost of attending a Canadian dental school.

125Christopher’s decision to limit his Canadian applications to two dental schools in Ontario, and his failure to apply to Western for September 2011 on the strength of his enhanced resume showing his academic achievements in his fifth year, would be entirely his choice and immaterial to Mr. Fanelli but for one fact – Ms. Valente now seeks a little over $540,000 from Mr. Fanelli for child support arrears, inclusive of interest, as mentioned earlier and, of that amount, as calculated by Ms. Valente, well over 50 percent and perhaps in the range of 70 to 75 percent, is attributable to Christopher attending dental school in the United States.

126It was Mr. Fanelli’s evidence, which I accept, that his discussions with Christopher in 2009 focussed on applying to Canadian dental schools.

127After Christopher returned to live with Ms. Valente in 2010, it was Mr. Fanelli’s evidence that his contact with Christopher decreased and that he was not aware of Christopher applying to numerous dental schools in the United States. However, Mr. Fanelli did eventually learn that Christopher had made such applications; for example, in early 2011, Mr. Fanelli paid some of Christopher’s expenses to attend an interview in Indianapolis relating to one of Christopher’s applications.

128Christopher was accepted at University of Southern California (“USC”) dental school in late 2010, according to Christopher. While there was some dispute between Mr. Fanelli and Christopher as to when Mr. Fanelli was actually advised by Christopher as to his acceptance at USC, I find that that disagreement is not material to the issues in this trial. It is apparent that during the early part of 2011 that Mr. Fanelli became aware of Christopher’s acceptance.

(C) Financing for Dental School

129Christopher was fully enmeshed with his mother in planning for the financing of his studies at USC. According to Ms. Valente’s calculation, tuition, books and rent, while Christopher attended USC, was in the range of $417,000 CAD, most of that being tuition.

130Ms. Valente, to her credit, was a passionate and loyal supporter of Christopher – she wanted Christopher to achieve his dream of becoming a dentist.

131However, Ms. Valente’s plans to finance this endeavor did not, in the least, involve Mr. Fanelli.

132Ms. Valente could not have been more clear on this point during her cross-examination. It was her evidence that she had no discussions with Mr. Fanelli regarding Christopher’s attendance at USC. She maintained that any discussions about that topic involving Mr. Fanelli were to be between Christopher and Mr. Fanelli. Importantly, Ms. Valente agreed that Mr. Fanelli was at liberty to make any arrangements with Christopher as to the repayment of any money loaned by Mr. Fanelli. When asked whether Christopher was at liberty to negotiate with Mr. Fanelli, Ms. Valente stated that Christopher is at liberty and has the freedom to do what he wants and what he thinks is best.

133The evidence at trial established that Christopher conducted himself in conformity with his mother’s evidence, that is negotiating directly with his father.

134The goal as between Ms. Valente and Christopher was to secure a $200,000 line of credit from a financial institution. They approached various banks and, of those banks, TD Canada Trust (“TD”) was prepared to loan $150,000 on condition that Ms. Valente would sign as guarantor, which she did. TD was not prepared to offer a credit facility of $200,000 on the strength of Ms. Valente’s guarantee.

135Mr. Fanelli had an account at Bank of Nova Scotia, so he obtained a blank application form – Scotia Professional Student Plan Application – for Christopher to fill in and send to the bank. Christopher did so, signing the form⁴ in early February 2011. Under the heading “Budget Needs,” there were various income and expense columns for Christopher to fill in, but which he left blank and instead wrote “see attached.” The attachment was a poor-quality copy of a one-page document, apparently prepared by USC, titled “What is it Going to Cost?” Costs are shown for the four years, totaling slightly over $414,000 “USD.” It is noted that “USD” on the exhibit is handwritten.

136I accept Mr. Fanelli’s evidence that he never received the completed copy of this application form or the attachment. Also, Mr. Fanelli had provided Christopher with some research that he had done regarding a comparative overview as to the line of credit facilities available to professional students from five Canadian banks.

137It was necessary, early in 2011, for Christopher to provide USC with various forms relative to Christopher’s acceptance and this included verification as to an immediate availability of $120,000.

138At Christopher’s request, Mr. Fanelli went to TD and signed the necessary forms to the extent of $60,000. Ms. Valente, in consultation with Christopher, did the same. This was not an actual payment made by either Mr. Fanelli or Ms. Valente, but rather verification from financial institutions to USC that the money is available.

139Christopher next approached Mr. Fanelli regarding financing his anticipated dental school expenses. He had one “ask.” He requested Mr. Fanelli to guarantee a $50,000 line of credit, which would bring Christopher’s total line of credit facility to $200,000, as he and Ms. Valente had planned.

140Mr. Fanelli was prepared to do so. However, it was Mr. Fanelli’s evidence that he wanted to be paid back should he be called on his guarantee. Accordingly, when it came time to sign the guarantee, Mr. Fanelli presented Christopher with an indemnity agreement, which had been prepared by a lawyer for Mr. Fanelli.

141Unfortunately, this indemnity agreement had a very wide scope, including a release of all further child support obligations for Christopher and Andrea, and the indemnity agreement required Ms. Valente and Christopher to jointly and severally indemnify Mr. Fanelli in relation to the $50,000 guarantee that Mr. Fanelli was going to sign. Mr. Fanelli did include in the indemnity agreement a further $50,000 amount that he was prepared to advance to Christopher in four equal annual installments, to be repaid with interest after Christopher graduated from USC. The indemnity agreement obliged Ms. Valente to guarantee a $150,000 line of credit (which she had already done), plus provide additional funding to Christopher in the amount of $12,500 per year during the four years of the dental program. However, there was no reciprocal provision in the indemnity agreement requiring Mr. Fanelli to indemnify or repay Ms. Valente regarding the additional $50,000 she was to advance to Christopher or in relation to her guarantee on the $150,000 line of credit.

142Mr. Fanelli’s mindset, clearly, was that his financial involvement would only be via a loan, plus he wanted to be indemnified on the guarantee that he would be signing.

143It was unfortunate that Mr. Fanelli sought to involve Ms. Valente in the indemnity agreement and to attempt to include child support releases for both Christopher and Andrea.

144However, I accept Mr. Fanelli’s evidence when he testified that he told Christopher to review the indemnity agreement and that they could discuss any changes, and I reject any evidence from Christopher to the contrary.

145Christopher and Ms. Valente refused to sign the indemnity agreement.

146Thereafter, Mr. Fanelli refused to sign the guarantee. This occurred in or about the end of April 2011. Nevertheless, Christopher and Ms. Valente were able to accomplish their goal as Ms. Valente’s parents agreed to guarantee the $50,000 line of credit that Mr. Fanelli had refused to guarantee.

147Christopher agreed in his evidence that he had not spoken to, or seen, Mr. Fanelli since that time. This evidence was corroborated by Mr. Fanelli who testified that, after handing the indemnity agreement to Christopher, that he never saw or heard from Christopher again until Christopher testified at trial, which was well over seven years after receiving the indemnity agreement. The foregoing also is consistent with the statement of agreed facts, which provides that communications between Mr. Fanelli and Christopher “ceased in or about the end of April 2011.”

148Mr. Fanelli subsequently made numerous unsuccessful attempts to communicate with Christopher by email. At trial, Christopher acknowledged in cross-examination that he never provided any contact information to his father while attending USC. No email. No address. No phone number. Mr. Fanelli was able to receive some contact information regarding Christopher over the years, but only through the disclosure process in the litigation. In 2013, Mr. Fanelli forwarded a registered letter to Christopher that went unanswered.

149Christopher successfully completed USC dental school, which he started attending in August 2011, graduating in the spring of 2015. Christopher did well academically, graduating at the top of his class.

150Christopher explained that USC was a four-year trimester program that runs for twelve months of the year. There was a one-week vacation each trimester. Christopher returned home to visit only three times, for about a week each time, as he and his mother were not able to afford the flights.

151While studying at USC, Christopher was unable to earn any income because his student visa prevented him from working.

152Throughout his time at USC, Christopher delegated the management of his finances to Ms. Valente. Ms. Valente became “the financial quarterback.” It was apparent from her evidence that she had complete financial control, including moving money from various accounts to other accounts, drawing down on credit lines to pay all expenses and ensuring that there was sufficient money in Christopher’s account for him to meet his living expenses.

153Christopher’s attendance at USC and the funding for same was a collaborative joint enterprise orchestrated between Christopher and Ms. Valente, with Mr. Fanelli, after April 2011, remaining on the sidelines, hearing nothing from his son, despite his son’s obvious knowledge that his mother was pursuing Mr. Fanelli for several hundreds of thousands of dollars in child support in relation to dental school.

154The evidence of Christopher and Ms. Valente as to the sources of financing arranged for Christopher can be summarized as follows:

(a) $150,000 TD line of credit guaranteed by Ms. Valente;

(b) $50,000 TD line of credit guaranteed by Ms. Valente’s parents;

(c) OSAP loans in the approximate amount of $45,000 to $50,000;

(d) Ms. Valente had arranged a home equity line of credit with TD and she borrowed $101,000 (rounded) on this line of credit to assist with Christopher’s expenses while at USC; and

(e) Ms. Valente borrowed $25,000 from her brother, secured by a promissory note, to assist with Christopher’s expenses.

155Christopher was clear in his evidence that he is responsible for paying the OSAP loans and the $200,000 on the TD credit lines.

156Ms. Valente and Christopher both agreed that the $101,000 borrowed by Ms. Valente from her home equity line of credit, and the $25,000 borrowed by Ms. Valente from her brother, were amounts that Ms. Valente was going to be solely responsible for and without any contribution by Christopher. As Christopher deposed in his affidavit, these amounts were his mother’s contribution towards his dream of becoming a dentist.

157It was also Christopher’s evidence that Ms. Valente had provided him with “additional monies” for funding everyday living expenses and that this was a further contribution from Ms. Valente to support his studies.

158In order to protect herself from exposure, including the guarantee that she had signed, Ms. Valente requested, and Christopher obtained, a life insurance policy in July 2011 in the amount of $500,000. Christopher is the life insured, the policy is a term life policy and Ms. Valente is the beneficiary.

159This policy exceeds substantially Ms. Valente’s guarantee of the TD line of credit, the money she borrowed from her brother and the $101,000 that came from her home equity line of credit. No explanation was given by Ms. Valente as to what she planned to do with the apparent windfall should the unfortunate circumstance occur where she would collect on the insurance policy.

(D) Christopher’s Subsequent Studies and Employment

160The discussion below is based on the evidence at the time that Christopher testified at trial in December 2018. The additional evidence contained in the agreed statement of fact is summarized separately.⁵

161Following his graduation from USC, Christopher was accepted into a residency program in Miami, Florida. The residency program commenced in July 2015 and was a residency program in oral maxillofacial surgery.

162Christopher expected to complete his residency program in or about June 2019.

163Christopher was married on November 10, 2018 in Miami, Florida. His wife is a nurse and a U.S. citizen. Her family is from New Jersey but they reside in Florida.

164It was Mr. Fanelli’s evidence that he had learned through oral questioning that Christopher was engaged. When Mr. Fanelli learned of the engagement, a card was sent on behalf of Mr. Fanelli, his wife and his daughter, Ava, congratulating Christopher and his wife on their engagement, wishing them the best and indicating that “we will always welcome you.” It was Mr. Fanelli’s evidence that he was aware there was a potential of a mail strike in Canada at that time and, in order to ensure that the card was received, Mr. Fanelli went to the United States to mail the card. The exhibit indicates a U.S. Postal Service certified mail receipt for the card.

165No response to the card was received and Mr. Fanelli received no invitation to his son’s wedding.

166It was Christopher’s evidence that he intends to return to Canada to work and that he and his wife will move to Canada.

167Christopher explained in his evidence that it is his intention to apply for an academic appointment in Canada. He explained that his goal was not to make money, but that his goal was to “innovate and do research and do academic surgery.” It was his expectation that his income would be in the range of $100,000 to $150,000. Christopher mentioned that he has had articles published, with more articles coming. He emphasized that he loves innovating surgery and coming up with new surgical techniques.

168It was Christopher’s evidence that his income as a resident was approximately $58,000 USD annually.

169The evidence established that Christopher made the choice to have no further relationship with his father.

170Christopher’s conduct since that time portrays a rejection of his father that is unequivocal, unrelenting and absolute.

(E) Update – Agreed Statement of Fact filed November 14, 2019

171Christopher’s plans have changed somewhat from his evidence at trial, as set out in the subsequent agreed statement of fact.

172On April 1, 2019, Christopher became employed as an independent contractor with a private practice clinic specializing in oral maxillofacial surgery, with locations in Ontario in London and St. Thomas. Pursuant to the employment contract, Christopher is guaranteed work for three days per week.

173Christopher has received payments of $41,353 (for the period August 7 to August 31, 2019), $34,682 (for September 2019) and $46,101 (for October 2019). These payments span a little under three months and total $122,136.

174The foregoing payments may not be reflective of future payments, as summer months are characteristically busy with other surgeons being on vacation. Nevertheless, considering that Christopher is not even fulltime, it becomes readily apparent that private practice can yield a very significant income.

175Christopher continues to pursue an academic fellowship and, in March of 2019, Christopher was conditionally accepted at the Harvard School of Dental Medicine – Massachusetts General Hospital in Boston (“Harvard – MGH”). Christopher had hoped to commence a two-year fellowship by July 1, 2019 but was unable to obtain all necessary accreditation by that date.

176Christopher now has satisfied all requirements as stipulated by Harvard – MGH; he has applied for entry into the fellowship program starting July 2020 and he was re-interviewed in September 2019. The anticipated salary, had Christopher started July 2019, would have been $77,000 (USD), increasing to $80,000 (USD) the following year.

7. ANDREA FANELLI

177Andrea, like her brother, was very aligned with, and supportive of, her mother. She had resided with her mother throughout her undergraduate years, including teacher’s college. In September 2008, Andrea commenced her undergraduate studies at Western, graduating in the spring of 2012 with a four-year Honours Bachelor of Arts Degree with a specialization in Sociology.

178Partway through her undergraduate degree, Andrea had formulated a desire to enter teacher’s college and, to achieve that goal, Andrea completed a fifth year of fulltime study at Western. The courses that she took were a “foundation,” as she deposed in her affidavit, to qualify her to teach higher grades. Andrea’s fifth year at Western was from September 2012 to April 2013.

179Andrea attended teacher’s college at Althouse College in London from September 2013 to the spring of 2014. During cross-examination, it was Mr. Fanelli’s evidence that he did not object to Andrea attending teacher’s college when he learned about it.

180Andrea’s evidence indicates that there was a sharing between herself and her mother regarding payment of tuition. Details regarding same are dealt with later in these reasons.

181Andrea was not successful in obtaining a teaching position. However, commencing the fall of 2014, Andrea worked fulltime at Western University as an undergraduate recruitment officer.

182In the spring of 2017, Andrea moved to Toronto to attend college for one year, as a result of which she obtained a certificate in human resources. In May 2018, Andrea was hired by an employer in Toronto to work in the area of human resources and Andrea was with that same employer when she testified at trial.

183Neither party led any evidence as to Andrea’s current income. Andrea did testify that she still had a student loan remaining from her one year of college in Toronto.

184The age difference of approximately two and a half years between Andrea and her brother resulted in Andrea having no recollection of the circumstances surrounding her parents’ separation. Andrea had no recollection of family life living with her parents and brother prior to her parents’ separation.

185Similar to her brother, Andrea remembered going on access visits. Andrea testified that her mother always encouraged access and, in later years, encouraged Andrea to have a relationship with her father. Andrea testified it was not until her late teens that her mother told her about being assaulted by Andrea’s father.

186Andrea’s evidence, from her perspective, is that she was abandoned and neglected by her father. She remembered that he came to exercise access and then he stopped coming. “I think my heart got a little bit hardened” was one description Andrea used regarding her father’s lack of involvement in her life.

187It was Andrea’s evidence that she last talked to her father in 2004 when she was age 14.

188Mr. Fanelli testified that he had last seen Andrea when she was age 12. The next time Mr. Fanelli would see his daughter would be in the courtroom, at age 28, when she attended to give evidence in this trial.

189Andrea recalled that her father stopped coming for visits starting in her later elementary school years.

190Despite the many phone calls placed by her father to their home, including leaving messages, from 2004 to 2008 while Andrea was in high school, Andrea could not recall receiving any telephone messages from her father, nor returning any of his calls.

191During cross-examination, Andrea was referred to an exhibit⁶ containing letters and emails that her father had sent to her starting in 2008, the year that Andrea started university.

192Andrea agreed in cross-examination that she had received registered letters from her father in May and June 2008. In that first letter to Andrea, Mr. Fanelli writes, in part, how proud he was to see Andrea’s picture in the newspaper, that he wanted her to know “I really love you,” that he would like to see her again, even if it was for lunch or coffee, that Andrea is always welcome at their home and that he hoped Andrea would share with him her plans for the next year. Mr. Fanelli included his telephone number and email in the letter. Mr. Fanelli had indicated in that letter that he was writing because he never received a response to the “countless messages” that he has left on the answering machine.

193Mr. Fanelli wrote the second letter on Father’s Day and, in that letter, Mr. Fanelli implored Andrea to contact him and noted that they had not spoken for over a year.

194It was Andrea’s evidence that she made a conscious decision not to reply to those letters and that her decision was made on her own without influence from her mother.

195It was Andrea’s explanation that, after having so many years of no contact with her father, that having a registered letter being the “first point of contact” was quite “disingenuous.” Andrea further explained she did not feel that it was “honest” of her father to send a letter and to know whether or not she picked it up. She emphasized that this was not a “genuine way to reach out” to her.

196There was no suggestion in Andrea’s evidence that her father had used an incorrect email address over the years when trying to contact her.

197An email from Mr. Fanelli, dated July 27, 2010, was put to Andrea specifically during cross-examination. It is helpful to reproduce that email⁷:

Hi Andrea,

How is your summer going? We haven’t spoken in so long I can’t remember the last time we communicated. I hope everything is going well for you. You are going into your 3rd year at Western, is that right? How have you made out with your grades? I hope you’re doing well. What subjects are you taking? What interests you?

Please read this e-mail and respond or call me collect. I sure would like to speak to you again, and see you. I love you and I want to tell you in person, without anyone’s intervention.

Take care and be safe, your Dad

[Mr. Fanelli includes his address, home phone number and cellphone number.]

198Andrea was asked during cross-examination whether this was a disingenuous request from her father. Her response⁸: “I believe so. In my opinion, yes.”

199It was Andrea’s evidence during cross-examination that she never asked Mr. Fanelli for financial assistance for post-secondary education, she never provided him with her cellphone number and that she did not notify him of her graduation in 2012.

200Like her brother, Andrea’s testimony portrays a rejection of her father that is unequivocal, unrelenting and absolute.

8. MS. VALENTE’S DELAY IN COMMENCING THE PROCEEDING AND MS. VALENTE’S NON-COMMUNICATION WITH MR. FANELLI

201A significant issue in this case centers on Ms. Valente’s failure either to contact or correspond with Mr. Fanelli in relation to child support and Ms. Valente’s explanation as to why she did not seek an increase in child support until she filed her answer in October 2012.

202Ms. Valente explained that she was afraid to broach this topic with Mr. Fanelli. The primary reason was that she was fearful of his potential reaction. Ms. Valente testified that her fear of Mr. Fanelli resulted from his abusive treatment of her.

203Ms. Valente was cross-examined extensively on her delay in commencing legal proceedings to increase child support. In addition to relying on her fear of Mr. Fanelli, Ms. Valente added that she could not afford a lawyer and that she had no indication that Mr. Fanelli’s income was increasing over the years.

204Mr. Fanelli relies on Ms. Valente’s delay in commencing variation proceedings to increase child support as part of his defence.

205A court must be cognizant of the effect of abusive conduct, including physical violence, perpetrated by a support payor against a support recipient when assessing a support recipient’s delay in seeking an increase in support, whether spousal support or child support.

206Focussing on the assault conviction, while Ms. Valente undoubtedly suffered from that conduct, including emotionally, I am unable to accept on all the evidence that this explains her lengthy delay in seeking an increase in child support, even assuming that the abusive conduct included more than the assault conviction, as Ms. Valente has alleged. Ms. Valente’s evidence on this issue at times was prone to exaggeration.

207Ms. Valente conceded that the amending agreement in 1995 came about as a result of an application to vary. This variation proceeding is referred to in the preamble of the separation amending agreement. Ms. Valente had counsel, she participated in this proceeding and one of the results was an increase in child support from $1,000 to $1,350 per month. Accordingly, there is evidence that, as early as 1995, Ms. Valente was participating in a variation proceeding where child support was increased.

208Ms. Valente agreed that she had counsel at the time that the 1993 separation agreement was signed. During cross-examination, it was pointed out to Ms. Valente that paragraph 5.06(1) of the separation agreement provided that a party seeking to vary child support was required to give written notice of the variation to the other, and that the parties were obligated next to confer personally or through counsel to settle any variation. This procedure was a requirement before a variation proceeding was commenced.

209There was no credible explanation from Ms. Valente at trial as to why her lawyer at the time, who she conceded was able counsel, would have allowed her to be obligated to follow this procedure if she was fearful, to the extent that she claimed, in communicating with Mr. Fanelli about an increase in child support.

210When Ms. Valente eventually did commence a claim for increased child support from Mr. Fanelli, Ms. Valente confirmed that she had not complied with the notice provision contained in paragraph 5.06(1) of the separation agreement.

211When cross-examined as to why she failed to do so, the best response that Ms. Valente could muster was to claim, unconvincingly in my view, that “obviously” she did not have a clear understanding of this paragraph. The better conclusion, I find, is that Ms. Valente just chose to ignore her obligation. This was part of Ms. Valente’s longstanding protocol not to engage in any type of communication with Mr. Fanelli for any reason.

212By letter dated August 28, 2008, Mr. Fanelli wrote to Ms. Valente following his unsuccessful attempts to contact her by other means. The main purpose of this letter was to inform Ms. Valente that Mr. Fanelli intended to stop paying her the $675 per month for Christopher because Christopher was no longer residing with her, that he had been residing in an apartment since September 2007 while continuing to attend university and that Mr. Fanelli since that time had been covering all of Christopher’s expenses, including his post-secondary expenses, with no contribution from Ms. Valente.

213The letter concluded that Mr. Fanelli would like to work this out amicably and avoid legal fees.

214Ms. Valente agreed during cross-examination that she never responded to this letter because she felt that Mr. Fanelli’s suggestion to reduce child support was a “threat.”

215I find unreasonable the failure by Ms. Valente to respond to Mr. Fanelli’s letter, either personally or through counsel. In writing the letter, Mr. Fanelli was complying with his obligation under the separation agreement to give notice to Ms. Valente of his proposed change to his child support payments.

216Also, Ms. Valente’s evidence denoted a complete detachment from the obvious fact that she was no longer entitled to ongoing support of $675 per month for Christopher pursuant to the separation agreement as Christopher was no longer living with her and Mr. Fanelli was carrying all of Christopher’s post-secondary and other living expenses.

217Ms. Valente ignored the entire context of Mr. Fanelli’s letter and instead offered a somewhat facile analysis that she was being victimized because Mr. Fanelli intended to reduce the child support by fifty percent. It must be emphasized, again, that the legal obligation to pay child support for Christopher was contained exclusively in the separation agreement and that a terminating event regarding Christopher had occurred as provided for in the separation agreement.

218Ms. Valente acknowledged further during cross-examination that she had not likely responded to any other correspondence from Mr. Fanelli since the year 2000 regarding child support, nor had she ever contacted Mr. Fanelli by telephone.

219When pressed during cross-examination to acknowledge that at the time of Mr. Fanelli’s 2008 letter that she had a child support obligation to Christopher because he was not living with her and attending university, Ms. Valente testified that she did not know that she had an obligation to pay child support.

220That evidence, I find, is less than honest and not believable, especially given Ms. Valente’s evidence that at that time Andrea was living with her and about to start university, and that Ms. Valente fully expected to continue receiving child support for Andrea from Mr. Fanelli.

221Considering Christopher’s circumstances at the time the August 2008 letter was written by Mr. Fanelli, I find that Ms. Valente’s response, which was to contact the Family Responsibility Office to enforce the full $1,350 per month, ignored the fact that, contractually, Mr. Fanelli’s obligation to pay support to Ms. Valente for Christopher had terminated.

222Also noteworthy is that Ms. Valente was quite able to file all necessary documents with the Family Responsibility Office for enforcement. By filing these documents, Ms. Valente was opposing Mr. Fanelli’s request to reduce child support. It was quite evident that Ms. Valente was emotionally capable of taking this step. There was no evidence at trial to suggest that she was fearful of filing documents with the Family Responsibility Office.

223Taking steps to oppose Mr. Fanelli’s request in 2008 to decrease child support suggests strongly that Ms. Valente also would have been able to take steps to increase child support at that time, had she wanted, despite her evidence to the contrary.

224After filing with the Family Responsibility Office, there was no evidence at trial that Ms. Valente suffered any repercussions from any conduct by Mr. Fanelli; in fact, to the contrary, Mr. Fanelli simply continued paying the full $1,350 per month, including arrears, until April 2014 when the Family Responsibility Office finally ceased enforcing the order. It is noteworthy that Mr. Fanelli paid child support for Christopher to Ms. Valente for three academic years during which Christopher did not reside with Ms. Valente and while Mr. Fanelli was solely supporting Christopher.

225When considering the facts and the context in which Mr. Fanelli’s letter was written, I find that Ms. Valente’s characterization of the letter as a “threat” is not grounded in reality.

226In 2008, it would have been an option for Ms. Valente, when filing for enforcement with the Family Responsibility Office, to include a statement of arrears regarding Mr. Fanelli’s failure to pay the cost of living increases. There was no evidence that Mr. Fanelli had ever given notice to Ms. Valente pursuant to paragraph 5.09 of the separation agreement that his actual annual income increase was less than the cost of living increase, which meant that, presumptively, the Statistics Canada formula applied. Therefore, Ms. Valente needed no information from Mr. Fanelli as the cost of living increases could have been calculated referring to the Statistics Canada information set out in the separation agreement.

227While Mr. Fanelli clearly is at fault for failing to pay the COLA increase, the reality is that Ms. Valente could have calculated the increase and enforced it through the Family Responsibility Office. The failure to do the actual calculation of the COLA increase on an annual basis is a joint and shared failure of both parties.

228Ms. Valente elected not to pursue any cost of living arrears when she filed with the Family Responsibility Office in 2008, nor for that matter did she show any cost of living arrears when she completed her change information form in 2014 in support of her motion to change.

229Ms. Valente agreed that, during the period September 2007 to April 2010 while Christopher was living in an apartment and was being supported by Mr. Fanelli, that she did not provide her income disclosure to Mr. Fanelli, nor did she contribute to Christopher’s support.

230Ms. Valente gave evidence that she never received any income disclosure from Mr. Fanelli over the years after the amending agreement was signed. It was Mr. Fanelli’s evidence that he had mailed his income tax returns to Ms. Valente on a regular basis, having been advised to do so by his lawyer, and that Mr. Fanelli did so annually from 1993 to 2008. Mr. Fanelli recalled occasions where he had sent his tax returns in the mail to Ms. Valente and this mail was returned to him unopened.

231Ms. Valente submitted that no documentary proof was adduced by Mr. Fanelli proving that he sent the tax returns. However, I accept and take into account Mr. Fanelli’s evidence that, in various moves over the years, that some of his documents have gone missing.

232In considering this conflicting evidence between the parties, I also take into account Ms. Valente’s unrelenting refusal to acknowledge, or respond to, any attempts by Mr. Fanelli, over the years, to communicate with Ms. Valente, whether by mail, telephone or email, including in 2008 when Mr. Fanelli attempted, quite properly, to engage Ms. Valente in discussions about child support.

233I further take into account that Mr. Fanelli, in contrast, over the years, sought to engage Ms. Valente by mail, email and telephone, albeit without success. When communication was appropriate, Mr. Fanelli displayed a disposition in favour of communication, all of which lends credibility to his evidence that he forwarded his tax returns to Ms. Valente as he was advised to do by his lawyer.

234The ingrained attitude of indifference and dismissiveness regarding communication from Mr. Fanelli as displayed by Ms. Valente, coupled with some credibility issues as to some other aspects of Ms. Valente’s evidence dealt with elsewhere in these reasons, lead me to prefer Mr. Fanelli’s evidence.

235I find, as a fact, that Mr. Fanelli did send copies of his tax returns to Ms. Valente for the years 1993 to 2008. I reject, and do not believe, Ms. Valente’s evidence to the contrary. I also accept Mr. Fanelli’s evidence and find, as a fact, that some of the mail containing his tax returns forwarded by him to Ms. Valente was returned unopened.

236Ms. Valente pointed to the 2013 interim order requiring mutual disclosure of income tax returns and notices of assessment for the period commencing 2006 onward. Ms. Valente submits that this, in some respects, corroborates her evidence about not receiving tax returns.

237I do not view that order as corroborating Ms. Valente’s evidence in any material way. First, corroboration for non-receipt of tax returns after 2008 was not necessary, as Mr. Fanelli’s own evidence indicated that tax returns were sent only to 2008. As for the years, 2006, 2007 and 2008, covered by the order, even assuming that Ms. Valente was allegedly unaware of Mr. Fanelli’s income for those three years, it is more likely than not attributable to the fact that Ms. Valente chose either not to open the mail, or the mail containing the tax returns was returned to Mr. Fanelli unopened.

238Ms. Valente’s evidence explaining her delay over the years to seek variation of child support because she was unaware of Mr. Fanelli’s income, deserves little or no weight given the finding that Mr. Fanelli had forwarded his tax returns for many years.

239In 2008, when Ms. Valente filed with the Family Responsibility Office to enforce the existing support arrears, she testified during cross-examination that she was “content” to receive $1,350 per month support for Andrea. Ms. Valente took no steps in 2008 to seek a variation of child support.

240In claiming that she was unable to afford a lawyer, it was Ms. Valente’s evidence that she was not aware of the existence of the Guidelines until she received this information from her lawyer in 2012. It is hard to believe Ms. Valente’s evidence that she was unaware of the existence of the Guidelines, given some of her credibility issues as discussed earlier and considering also that her brother, an accountant, prepared her tax returns and would have been aware of the fact that Ms. Valente was paying tax on child support despite the elimination of tax on child support effective May 1997 for child support payments made pursuant to the Guidelines. Ms. Valente’s testimony that her brother never told her about the Guidelines is evidence which I also find hard to believe. I draw an adverse inference against Ms. Valente for failing to adduce any evidence at trial from her brother on this point, which could have been done via a brief affidavit containing his in-chief evidence and subject to his attendance at trial for cross-examination if requested by Mr. Fanelli.

241Even assuming that Ms. Valente was not aware of the Guidelines, it is difficult to accept that for all those years that Ms. Valente was unable to pay a lawyer even a modest consultation fee to discuss child support and a potential variation of child support.

242Ms. Valente did not explain how it was that she could afford a lawyer in 2012 but not in 2008 or earlier. For many years, Ms. Valente had been gainfully employed earning a fulltime income.

243While Ms. Valente’s explanation that she was unable to afford a lawyer may be deserving of some consideration, it is not deserving of much weight.

9. DISCUSSION OF THE ISSUES

Issue 1 – Has there been a change in circumstances sufficient to vary the child support provisions contained in the separation agreement as amended?

244In order for the court to vary child support under s. 37 of the Family Law Act, the court must find that the threshold has been met as provided in s. 37(2.1):

Powers of court: child support

37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

245The “change in circumstances” within the meaning of the Guidelines, as referenced in the preamble to s. 37(2.1) of the Family Law Act, is contained in s. 14 of the Child Support Guidelines, O. Reg. 391/97, as amended:

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

16. 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 parent or spouse or of any child who is entitled to support.

17. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

18. In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act.

246Clauses (2) and (4) of s. 14 of the Guidelines are relevant. The Guidelines came into force after the date the separation agreement as amended (cl. (4)) and, further, the parties’ incomes have changed, and in fact materially so, since the execution of the separation agreement as amended (cl. (2)).

247In paragraph 44 of his written submissions, Mr. Valente concedes there has been a “material change in circumstances” based on the changes in the parties’ incomes and the coming into force of the Guidelines.

248Accordingly, the conditions in s. 37(2.1) are satisfied and the court is able to make any of the orders set out in s. 37(2.1).

Issue 2 – Are Christopher and Andrea dependants within the meaning of the Family Law Act?

249Mr. Fanelli submits that neither Christopher nor Andrea were dependants when the variation proceeding was commenced. Mr. Fanelli argues that both Christopher and Andrea, by that time, were adults who had withdrawn from parental control and were no longer entitled to child support. I am unable to accept this submission as explained below.

250Section 31(1) of the Family Law Act was amended⁹, well after the commencement of the variation proceeding, to expand the definition of dependant child:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Same

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

251For completeness, I include s. 31 of the Family Law Act as it read immediately prior to the amendment:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

252For convenience, in these reasons, I will refer where necessary to the “current s. 31(1)” and the “previous s. 31(1).”

253I find that Christopher and Andrea were dependants while attending their four-year undergraduate programs at Western.

254The issue, after Christopher’s and Andrea’s completion of their four-year undergraduate degrees in April 2010 and April 2012, respectively, is whether thereafter they were adults who had withdrawn from parental control within the meaning of s. 31(2). It is noted that there was no amendment to s. 31(2).

255I would add that neither party addressed the issue as to whether this case should be decided under the previous s. 31(1) or the current s. 31(1).

256I elected not to request further submissions on this point because, in addition to s. 31(2), which remained unchanged, the other relevant provisions are s. 31(1)(a) and (b) of the current s. 31(1), which are of similar effect to the previous s. 31(1). This case did not engage s. 31(1)(c) of the current s. 31(1). There is no difference in the analysis that would result whether the case is decided using the current s. 31(1) or the previous s. 31(1). For the purpose of these reasons, I will use the current s. 31(1).

257In determining a child’s dependency while pursuing education, the factors listed in Farden v. Farden, 1993 BCSC 2570, 1993 CarswellBC 619 (B.C.S.C.), a case decided under the Divorce Act, are cited frequently:

15 Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances. It is not a conclusion which follows automatically from proof of attendance at the institution [McNulty v. McNulty (1976), 1976 BCSC 1935, 25 R.F.L. 29 (B.C. S.C.)]. In my view, the relevant circumstances include:

(1) whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4) the ability of the child to contribute to his own support through part-time employment;

(5) the age of the child;

(6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

258A child who pursues education beyond the first post-secondary degree can remain eligible for support: see, for example, Easton v. Coxhead, 2018 CarswellOnt 14173 (S.C.J.), at paras. 66-67; and Haist v. Haist, 2010 ONSC 1283 (S.C.J.), at paras. 54-59.

259For Andrea, she continued to live with her mother while attending all six years of post-secondary education. During that time, she remained financially dependent on her mother. Andrea’s fifth year at Western, immediately following the completion of her four-year undergraduate degree in April 2012, was also a reasonable pursuit of education as was teacher’s college, the latter receiving Mr. Fanelli’s support when he learned about it.

260Any income earned by Andrea while attending Western, including teacher’s college, helped defray some of her expenses but did not eliminate her financial dependence on her mother.

261I conclude that Andrea remained a “dependant” within the meaning of the Family Law Act until the spring of 2014 when she graduated from teacher’s college.

262For Christopher, during his five years at Western, as noted earlier, he lived with his mother and was financially dependent on her for his first and fifth academic years, and he lived on his own in an apartment for the other three years, during which time he was financially dependent on his father. Christopher’s additional fifth year at Western was reasonable, I find, as it was dedicated to improving his educational credentials to better facilitate his admission to dental school.

263During his five years at Western, all of which were fulltime, Christopher performed well academically and it was well known to both of his parents that he aspired to further his education at dental school. Similar to Andrea, any income that Christopher earned helped defray his expenses but did not affect his status as a dependant.

264Christopher’s attendance at dental school was a controversial issue at trial in relation to whether Christopher remained a dependant during this time.

265Christopher embraced his education at dental school. It was the fulfillment of a goal that he had aspired to for many years. He worked hard and did well academically. Christopher remained financially dependent on his mother throughout his time at dental school.

266I conclude that Christopher remained a “dependant” within the meaning of the Family Law Act until he graduated from dental school in the spring of 2015.

267However, as discussed later in these reasons, the fact that Christopher remained a dependant while attending dental school is distinct from the subsequent analysis as to whether Mr. Fanelli, considering all the facts, should be compelled to contribute to Christopher’s financial support during that time.

Issue 3 – Does the court have jurisdiction to hear the variation proceeding?

268Mr. Fanelli raises the issue of jurisdiction. He relies primarily on two recent decisions of the British Columbia Court of Appeal, concluding that there was no jurisdiction to hear a proceeding for the variation of child support under British Columbia’s Family Law Act where the subject child was not a dependant at the time that the variation proceeding was commenced. This conclusion was reached by the majority in a five-member panel in Dring v. Gheyle, 2018 BCCA 435, decided on November 21, 2018, and followed in Graydon v. Michel, 2018 BCCA 449, decided on November 30, 2018. For the latter case, leave to appeal to the Supreme Court of Canada was granted: Michel v. Graydon, 2019 CarswellBC 1320 (S.C.C.). On November 14, 2019, the Supreme Court of Canada, in a unanimous decision, in Michel v. Graydon, 2019 CarswellBC 3376 (S.C.C.), reinstated the order of the Provincial Court of British Columbia dated September 26, 2016 and allowed the appeal with reasons to follow.

269I am not persuaded by Mr. Fanelli’s submissions on the issue of jurisdiction for a number of reasons.

270I find that Ms. Valente’s claim for ongoing and retroactive child support was made on October 26, 2012, being the date of her answer responding to Mr. Fanelli’s application to terminate child support. Given my earlier conclusions as to how long Christopher and Andrea were dependants, it is clear that they were dependants not only on the date of Ms. Valente’s answer, but also when Ms. Valente commenced her motion to change on February 18, 2014.

271Given the earlier discussion as to the claims in Ms. Valente’s answer and the effect of the motion to change, I do not agree with Mr. Fanelli’s position that Ms. Valente’s proceeding should be viewed as having been commenced with the issuance of the motion to change. I find that Ms. Valente commenced her proceeding when she asserted the claims in her answer.

272The foregoing analysis means that the jurisdiction issue never arises, even if Ms. Valente’s claims are viewed as having been commenced with the issuance of the motion to change.

273Alternatively, if I am wrong, and if it was found that Ms. Valente’s claims were filed after Christopher and Andrea ceased being dependants, then I find there still would be jurisdiction to hear the variation proceeding on the basis of the analysis by the Court of Appeal for Ontario in Colucci v. Colucci, 2017 ONCA 892, where the Court of Appeal for Ontario reached a conclusion different from the British Columbia Court of Appeal, and found that a court did have jurisdiction to hear a child support variation proceeding commenced when the subject child was no longer a dependant. Further, an appeal from the decision of the British Columbia Court of Appeal has been allowed by the Supreme Court of Canada: Michel v. Graydon, supra.

274Although Colucci was decided under the Divorce Act, the analysis in Colucci can be adapted, with the same result, to a variation proceeding under the Family Law Act as in the case at bar.

Issue 4 – Should retroactive child support be ordered?

(A) Preliminary Considerations

275It must be distinguished as to what constitutes “retroactive child support” in the case at bar. In MacKinnon v. MacKinnon, 2005 ONCA 13191, 2005 CarswellOnt 1536 (Ont. C.A.), the Court of Appeal for Ontario found that retroactive support is that portion of the claim for support that relates to a period of time prior to the initiation of proceedings: see paras. 18-19. Although MacKinnon v. MacKinnon dealt with “retroactive spousal support,” the analysis would apply equally to retroactive child support.

276Given that Ms. Valente’s claims were commenced on October 26, 2012, all child support claimed before that date is “retroactive child support.” On a practical basis, however, given that both Christopher and Andrea ceased being dependants long before the trial commenced, the quantification of child support accruing subsequent to the commencement of proceedings remains purely a “retrospective” calculation. There was a dearth of evidence explaining why it took these parties over six years to bring this case to trial.

277In DBS., four specific factors, as discussed below, were outlined that a court should consider before awarding retroactive child support. None of the factors is decisive and “[a]t all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”: para. 99.

(B) DBS Factor: Reasonable Excuse for Why Support Was Not Sought Earlier

278The evidence of Ms. Valente, explaining why it took her until 2012 to initiate proceedings has been discussed earlier in these reasons, in detail, and need not be repeated. Much of the evidence adduced by Ms. Valente was unpersuasive and was insufficient to provide a reasonable explanation as to why Ms. Valente waited until 2012 to commence her proceeding.

279I find that, by 2006, that any delay by Ms. Valente in instituting proceedings became unreasonable.

(C) DBS Factor: Conduct of the Payor Parent

280Ms. Valente’s submissions focused substantially on Mr. Fanelli’s substantial increases in income, particularly starting in 2008.

281Blameworthy conduct is “anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support”: DBS, at para. 106.

282Mr. Fanelli had received legal advice about the Guidelines at or about the time that the Guidelines came into force.

283Sending his tax returns to Ms. Valente, as discussed earlier, or alternatively attempting to contact Ms. Valente and hearing nothing, was not an excuse for Mr. Fanelli to shift all the blame to Ms. Valente. Further, tax returns were not sent after 2008 as Mr. Fanelli’s income continued to increase.

284Mr. Fanelli was aware that Christopher and Andrea resided with their mother for all the years they each attended at Western (except for the period of time discussed earlier when Christopher was supported by Mr. Fanelli). It was open to Mr. Fanelli at any time to increase child support voluntarily, at least the table amount. By doing nothing, Mr. Fanelli engaged in blameworthy conduct. His income, particularly for 2008 and onwards, had increased dramatically. There can be no doubt that Mr. Fanelli was, or should have been, keenly aware that the ongoing child support of $1,350 per month taxable was substantially less than would be payable to Ms. Valente pursuant to the Guidelines.

285Also, considering the separation agreement, as amended, Mr. Fanelli acted unreasonably in failing to take any steps to either calculate the COLA increase or to pay the COLA increase. As noted earlier, Ms. Valente shares in the blame for the failure to calculate the COLA increase.

286While Mr. Fanelli believed strongly that he should not pay support for Andrea while she attended at university, based on her refusal to have any type of parent/child relationship with him, I find that Mr. Fanelli failed to appreciate sufficiently the extent to which Andrea cannot be blamed for her estrangement from Mr. Fanelli.

287In regard to Christopher, any attempt to blame Christopher for not increasing child support while Christopher resided with his mother while attending Western, is a position that has little merit.

288Ms. Valente seeks no retroactive child support prior to 2006. She has made that decision. I raise this briefly as it was Ms. Valente’s submission that the material change in circumstances goes back to May 1, 1997 when the Guidelines were proclaimed in force and that Ms. Valente may have been entitled to a retroactive variation to that date but has elected to limit her retroactive claim to 2006.

289There was no evidence as to the parties’ annual incomes prior to 2006, although there was evidence that Mr. Fanelli earned in the range of $60,000 and $65,000 at the time of the separation agreement and that Ms. Valente was not employed at that time.

290Any attempt to calculate whether Mr. Fanelli has underpaid or overpaid child support starting May 1, 1997 would require evidence as to the parties’ annual incomes and the effect of taxing the child support and this evidence is not before he court.

291Consequently, the analysis in the case at bar must be restricted to the period starting 2006, with no assumptions being made as to whether Mr. Fanelli overpaid or underpaid child support for any period of time prior to 2006.

292Given the finding of fact made earlier as to Mr. Fanelli having provided his tax returns to Ms. Valente for many years, this detracts significantly from Ms. Valente’s submission that Mr. Fanelli engaged in blameworthy conduct by allegedly failing to provide tax returns.

(D) DBS Factor: Circumstances of the Child

293In DBS, the requirement to consider both the present circumstances of the child, as well as the past circumstances, are emphasized at para. 110:

110 A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most. But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — in deciding whether such an award is justified. [my emphasis]

294Past and present circumstances of both Christopher and Andrea were dealt with earlier in these reasons. While attending Western and living with their mother, Christopher and Andrea both were dependent on her and they incurred some student loans. These circumstances would militate in favour of a retroactive support order.

295Ms. Valente gave evidence, and made submissions, regarding hardships incurred by not receiving more child support. In her written submissions, at paragraph 135, Ms. Valente refers to her evidence regarding the period 1995 to 2005, including that the children had to curtail their extracurricular activities because of insufficient child support.

296I give little weight to this evidence and the submissions, as they related to a period of time prior to 2006 and, as discussed earlier, no conclusions can be drawn as to whether or not Mr. Fanelli met his child support obligations for any period of time prior to 2006.

(E) DBS Factor: Hardship Occasioned by a Retroactive Award

297Mr. Fanelli’s financial circumstances have been addressed earlier in these reasons and need not be repeated. Mr. Fanelli’s income and net worth would not suggest hardship. It is recognized that no portion of any child support order can be “prospective” in the sense that Mr. Fanelli will know what he has to pay and he will be able to plan for it.

298The issue of hardship, if any, also can be considered when fixing the quantum of retroactive child support and/or fixing the date of retroactivity.

(F) Conclusion as to Whether a Retroactive Award is Appropriate

299In considering that none of the factors is decisive and striving for a holistic view of the matter on the basis of its factual matrix, as required by DBS, I find that it is appropriate to award retroactive child support.

Issue 5 – The Date of Retroactivity

300In DBS, the general rule was formulated that the date of “effective notice” was the date to which the award should be retroactive: para. 118. “Effective notice” was explained as follows in DBS, at para. 121, in part: “… Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. …”

301The rationale behind using effective notice in circumstances where a payor has disclosed previously his/her circumstances and the recipient has not raised the issue of child support was discussed in DBS, in part, at para. 122:

[122] … Awaiting legal action from the recipient parent errs too far on the side of the payor parent's interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child's entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support. [my emphasis]

302As stated in DBS, at para. 123, a recipient parent, after raising the issue of child support, continues to have a responsibility; discussions should move forward; prolonged inactivity may signal that a payor’s interest in certainty has returned; hence, “it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.”

303In DBS, at para. 124, it was stated: “The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start.”

304Ms. Valente submits that the filing of the separation agreement, for enforcement, constitutes formal notice “to enforce and/or change child support under the Amending Agreement” and that as of October 2008, that Mr. Fanelli was “well aware” that Ms. Valente did not agree with the reduction of child support and that Mr. Fanelli “was aware that child support was in issue” (paragraph 179 of Ms. Valente’s written submissions).

305Ms. Valente argues that three years prior to the date of formal notice is 2005, but she acknowledges her own delay and submits that she only seeks arrears retroactive to 2006.

306Ms. Valente relies on Francisco v. Francisco, 2017 ONCJ 323, that includes the following statement, at para. 98: “Filing of the Agreement is a formal notice to the other party that you intend to enforce and/or to change that agreement.”

307In that case, the separation agreement was filed for enforcement and, less than a month later, a motion to change was commenced: see paras. 30-31.

308I am unable to accept Ms. Valente’s submission that formal notice, in the context as discussed in DBS, occurred when Ms. Valente filed the separation agreement pursuant to s. 35 of the Family Law Act. Section 35(2) is permissive as to the consequence of filing a domestic contract:

Effect of filing

35(2) A provision for support or maintenance contained in a contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37;

(c) except in the case of a provision for the support of a child, may be increased under section 38;

(d) in the case of a provision for the support of a child, may be recalculated under section 39.1,

as if it were an order of the court where it is filed. [my emphasis]

309In 2008, Ms. Valente filed the separation agreement with the intention only to enforce the payments. At the time of filing, there was no evidence that Ms. Valente had broached with Mr. Fanelli the issue of variation of child support. Importantly, Ms. Valente’s evidence, as discussed earlier, was that she was content to keep receiving the $1,350 per month at the time she filed for enforcement. There was no evidence that Ms. Valente was intending to vary the separation agreement in 2008; more importantly, there was no evidence that, on filing the separation agreement, that Ms. Valente communicated any intention to Mr. Fanelli that she was intending to seek variation.

310I find that the first time that Mr. Fanelli became aware of a claim for variation of child support, including on a retroactive basis, was when he received Ms. Valente’s answer approximately four years after she had filed the separation agreement for enforcement. I concur with Mr. Fanelli’s submission, and I find, that effective notice occurred on October 26, 2012 when Ms. Valente made the claim in her answer.

311Also, the date of Ms. Valente’s formal notice, on the facts, would be the same as the date of effective notice. This result likely would follow whenever a support recipient elects not to broach the issue of changing child support, or to take any other step to communicate this request to a support payor, and instead chooses to commence a legal proceeding.

312Further, Ms. Valente’s analysis, as to the date of retroactivity, was dependent on her position that Mr. Fanelli had engaged in blameworthy conduct by refusing to provide income disclosure, an allegation which has been rejected, as discussed earlier in these reasons.

313I find that the date of retroactivity should be January 1, 2009. This balances, in my view, Mr. Fanelli’s reasonable interest in certainty, it reflects Mr. Fanelli’s blameworthy conduct, it takes into account Ms. Valente’s unreasonable delay and, as discussed in DBS, this date falls within the three-year window prior to formal notice.

Issue 6 – Should Mr. Fanelli pay child support for Christopher for the period during Christopher’s attendance at dental school?

(A) Is child support payable under s. 3(2)(a) or s. 3(2)(b) of the Guidelines?

(i) Background

314Ms. Valente’s approach for Christopher’s support was to include Christopher in the table amounts, along with Andrea; after Andrea finished teacher’s college in 2014, Ms. Valente calculated table amount of support only for Christopher until he completed dental school in the spring of 2015. Ms. Valente did not include table amounts for Christopher while he was being supported by Mr. Fanelli.

315Ms. Valente then calculated s. 7 expenses separately, limiting same to tuition, books and rent. Section 7 expenses for Christopher, as previously mentioned, were in excess of $417,000 Canadian and Christopher was assigned a contribution of one-third of the s. 7 expenses, it being Ms. Valente’s view that that was a reasonable approach. The balance of the s. 7 expenses was apportioned between Ms. Valente and Mr. Fanelli in proportion to their respective incomes. Ms. Valente calculated Mr. Fanelli’s s. 7 amount owing to be $235,923 exclusive of interest. While there was a s. 7 claim for Christopher for the period back to 2006, the net amount of s. 7 expenses claimed for the period prior to Christopher entering dental school was marginal and almost all of the s. 7 claim related to dental school.

316Also, the inclusion of Christopher in the table amounts added another significant component of child support arrears for Christopher while attending dental school.

(ii) Section 3 of the Guidelines

317Section 3 of the Guidelines is reproduced below:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

318Mr. Fanelli submits that s. 3(2)(b) applies to Christopher, while Ms. Valente submits that s. 3(2)(a) applies consistent with her calculations.

(iii) The Law in Relation to s. 3(2) of the Guidelines

319In Merritt v. Merritt, 1999 CarswellOnt 1471 (Ont. S.C.J.), Heeney J. found it was inappropriate to apply the approach in s. 3(2)(a) for an adult child living away from home while attending a post-secondary educational institution: paras. 71-73.

320In Park v. Thompson, 2005 ONCA 14132, 2005 CarswellOnt 1632 (Ont. C.A.), Merritt v. Merritt, supra, is cited with approval. The court stated, at paras. 27-28 (with emphasis by the court):

27 The application judge ordered that the father pay the full table amounts for child support notwithstanding that Vanessa was now 18 years of age and attending university in another city. In my view, in these circumstances, before making the order the application judge should have considered the provisions of s. 3(2) of the Guidelines which provide as follows:

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

28 At the hearing of the appeal, Mr. Epstein on behalf of the father presented us with a detailed chart showing that generally courts reduce the amount of child support during the academic year where the child is not living at home, in accordance with s. 3(2)(b). Heeney J. explained the rationale for this approach in Merritt v. Merritt (Ont. S.C.J.) at para. 73:

Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child's own ability to contribute. [Emphasis added in original.]

321Lewi v. Lewi, 2006 ONCA 15446, 2006 CarswellOnt 2892 (Ont. C.A.) was a case involving two children, both attending university, where one child lived at home and where the child was planning on living in residence. In relation to the child (Brandon) living away from home, the majority reasons include the following, at para. 138:

138 No matter what view one takes of this statement, it indicates the motion judge considered it inappropriate to apply the Guidelines as if Brandon were a minor throughout the year. Under the standard Guidelines approach of s. 3(1), a child support order for a minor child must include the amount stipulated by the tables (unless ss. 4, 9, or 10 apply). In my view, the motion judge considered it inappropriate to treat Brandon as a minor because he would be living away from home for eight months of the year. There is no other basis upon which she had discretion to depart from the standard Guidelines approach.

322For children over the age of majority, s. 3(2)(b) comes into play only if the court considers the “approach” under s. 3(2)(a) to be inappropriate, it being noted that the word “approach” was chosen with care, as opposed to requiring the court to determine whether the “amount” is inappropriate as in s. 4 of the Guidelines: Lewi, at para. 128.

323In Hess v. Hamilton, 2018 ONSC 661, the issue included child support for an adult child who was living away from home while attending medical school. The court found that the child (Victoria) was no longer a “child of the marriage” at the relevant time. However, the court went on to consider s. 3(2) of the Guidelines as an alternative in the event that the court had concluded that the child remained “a child of the marriage.” The court stated, at para. 78:

78 Given that the table approach assumes that the child and the recipient parent live in the same home, I find that it would have not been appropriate for any amount of child support to have been paid in respect of Victoria given that Victoria has spent very little time residing with the Applicant while she has lived and attended medical school on a year-round basis in the Caribbean and England since January 1, 2015.

324In Ellacott v. Paliy, 2018 ONSC 3327, Henderson J. found that child support should be determined under s. 3(2)(b), where the child was attending university and residing in rented premises for that purpose. At paras. 69-72, the court stated:

[69] With respect to Julia’s post-secondary school costs, the principles set out in the Court of Appeal decision Lewi v. Lewi, 2006 ONCA 15446, 2006 CarswellOnt 2892 are applicable.

[70] Table support is based on the presumption that the child is living at home with the recipient parent. When the child lives away from home to attend a post-secondary institution, “living costs are properly treated as post-secondary education costs” (Lewi, at para. 50; see also Merritt v. Merritt, [1999] O.J. No. 1732 (Ont. S.C.J.) as approved in Park v. Thompson (2005), 2005 ONCA 14132, 252 D.L.R. (4th) 730 (Ont. C.A.), at paras. 28-29).

[71] Instead of applying the table/s. 7 approach, the court has to determine, according to s. 3(2)(b), an amount of child support “having regard to the condition, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

[72] Heeney J., in Merritt, supra, at para. 73 (cited in Lewi, at para. 50) stated:

73 ... It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks ...

325A fair observation is that it is not unusual for child support to be determined pursuant to s. 3(2)(b) for an adult child, who is living away from home while attending an educational institution. For example, in Easton v. Coxhead, 2018 ONSC 4784, Madsen J., in considering s. 3(2), stated at para. 77:

77 Numerous cases have found that the table amount of support will likely be inappropriate where the child is residing away from home to attend school. See for example Douglas v. Douglas, 2013 ONCJ 242 (Ont. C.J.) at 59, in which Justice Sherr stated, "Although each case must be determined on its own facts, most courts will order the full table amount in the months that the child is living at home, with a lesser amount when the child is away at school." See also Lewi v. Lewi 2006 ONCA 15446, [2006 CarswellOnt 2892 (Ont. C.A.)], supra; Park v. Thompson 2005 ONCA 14132, [2005 CarswellOnt 1632 (Ont. C.A.)], supra, and Coghill v. Coghill 2006 ONSC 21778, [2006 CarswellOnt 3890 (Ont. S.C.J.)], 2006 ONSC 28734.

326Ms. Valente relies primarily on three cases in support of her position that s. 3(2)(a) applies: C.(J.) v. M.(A.M.), 2007 CarswellOnt 6512 (Ont. S.C.J.) (hereinafter referred to as “JC v. AMM”); N.(W.P.) v. N.(B.J.), 2004 CarswellBC 1520 (B.C.S.C.), affirmed on appeal at 2005 BCCA 7, 2005 CarswellBC 10 (B.C.C.A.) (hereinafter referred to as “WPN v. BJN”); and McMahon v. Hodgson, 2002 CarswellOnt 620 (Ont. S.C.J.).

327In JC v. AMM, Mazza J. found that the correct approach was under s. 3(2)(a) in calculating child support for three children attending university. It was the mother’s position that her home was still the children’s primary residence, including while the children were attending university, with the children returning home on weekends and holidays. Although that evidence was disputed by the father, and noting that this case was decided on affidavit evidence, the court did find that the children considered the mother’s residence as their home base (para. 38).

328Also, the court acknowledged, at para. 32, that it was clear from the case law that there was no “common singular approach” to determine when s. 3(2)(a) applies. I find that JC v. AMM is distinguishable on its facts regarding the mother’s residence being the home base. In the case at bar, Christopher’s time spent at his mother’s residence was very minimal and, even viewing the facts in a light most favourable to Ms. Valente, it cannot be said that her residence remained Christopher’s “home base.”

329Regarding WPN v. BJN, a reading of the decision by the British Columbia Court of Appeal shows that this case is of little to no assistance to Ms. Valente and, in fact, better supports Mr. Fanelli’s position. In that case, the lower court ordered the father to pay table amount of child support, plus 50 percent of the child’s educational and residential expenses pursuant to s. 3(2)(a) of the Federal Child Support Guidelines (SOR/97-175). At the time, the child was age 22, had achieved an undergraduate degree and had been accepted into medical school. The child would not be living at home while attending medical school, as evidenced by the lower court’s finding that the child’s s. 7 expenses included accommodation costs (paras. 42-43).

330The analysis in WPN v. BJN by the British Columbia Court of Appeal included the following in relation to s. 3(2)(b), at para. 35:

35 In rejecting the father's argument that he should apply s. 3(2)(b) of the Guidelines, the chambers judge did not consider the developing jurisprudence in B.C. Supreme Court and other jurisdictions that has found that where an adult student is living away from home, determining child support by using the "table amount" and adding "special and extraordinary expenses", as directed by s. 3(1) of the Guidelines for children under the age of majority is, in principle, "inappropriate". In those cases, child support has instead been determined by applying s. 3(2)(b).

331At para. 41, the British Columbia Court of Appeal cited numerous cases from the British Columbia Supreme Court where judges had determined that the “usual Guideline approach” under s. 3(2)(a) was inappropriate and had calculated child support under s. 3(2)(b) in cases where the children were students living away from home. The British Columbia Court of Appeal then stated, at paras. 42 and 46:

42 In my opinion, in principle, support for an adult child who is entitled to child support because of his or her attendance at a post-secondary institution generally should be determined under s. 3(2)(b). The "table amount", as noted by Martinson J. in Wesemann, contemplates a contribution by the non-custodial parent to the expenses borne by the custodial parent in providing a home for the child. The fact that the "table amount" increases incrementally and not absolutely for additional children supports that interpretation of the intention of the Guidelines. The "table amount" does not contemplate a child's contribution, which is an important factor in considering the amount of support a student requires. [my emphasis]

46 Such an approach would have been open to the chambers judge. The order made is, however, supportable in the particular circumstances of this case. The chambers judge followed the provisions of the separation agreement in determining the amount of child support payable for J. as the total of the "Table Amount" and 50 per cent of the "costs of education". [my emphasis]

332Accordingly, the British Columbia Court of Appeal supported an analysis as to the applicability of s. 3(2)(b) where an adult child is living away from home while attending an educational institution. The lower court decision, although upheld, was on the basis of the specific wording of the parties’ separation agreement.

333In the third case relied on by the applicant, McMahon v. Hodgson, Blishen J., while acknowledging that when a child attends university away from the home, the courts “often” resort to s. 3(2)(b), ordered child support pursuant to s. 3(2)(a) having regard to the particular facts of that case stating, at para. 50:

50 Where an adult child attends university away from home, the courts often resort to the means and needs considerations set out in s. 3(2)(b) of the Federal Child Support Guidelines. See Merritt v. Merritt (May 11, 1999), Doc. London F689/97 (Ont. S.C.J.). Nevertheless, given the significant disparity in incomes and standards of living; the minimal income of Ms. Hodgson and the fact that she must maintain a home to accommodate her children and continue to support them throughout their post-secondary education, I find that this is an appropriate case to continue to apply the Child Support Guidelines with respect to both Sarah and John as provided for in s. 3(2)(a) of the Guidelines. This was the approach taken by Justice Thomson in Cavanaugh v. Glass (2001), 2001 ONSC 28120, 14 R.F.L. (5th) 251 (Ont. S.C.J.). [my emphasis]

334I find that McMahon v. Hodgson is distinguishable given the findings that the children historically lived with the mother and the evidence that the children returned to the mother’s home during vacations and school breaks. Further, one of the children had special needs consisting of “an extensive physical disability,” learning disabilities and, at times, depression (see para. 38). This would have heightened the need for the mother to be able to maintain her residence.

(iv) Discussion – Section 3(2)(a) or s. 3(2)(b)?

335It is clear from the jurisprudence that a court must find that the “approach” in s. 3(2)(a) is “inappropriate” prior to resorting to s. 3(2)(b) of the Guidelines. The court has a discretion to exercise, and it must be exercised judicially.

336In the case at bar, Christopher was well beyond the age and level of maturity of an undergraduate student who leaves his/her “nest” to go to college or university for the first time and who returns home on a regular basis during holidays and/or summer breaks between academic semesters.

337In support of her position that s. 3(2)(a) applies, Ms. Valente argues that she needed to keep her residence available for Christopher to return home between semesters. There is no evidence that Christopher lived at home at any time while attending dental school nor, for that matter, after graduation. The very few times he returned home for brief vacations do not support Ms. Valente’s submission that she needed to keep her residence available for Christopher.

338I ascribe little weight to Ms. Valente’s submission that it was always Christopher’s intention to transfer to Western (see paragraph 190 of Ms. Valente’s written submissions). While Christopher did apply, unsuccessfully, to transfer to Western after his first year at USC dental school, I do not accept that this supports a claim by Ms. Valente that she needed to maintain a residence for Christopher for all his years at dental school. There was no evidence that Christopher made any further applications to transfer to Western.

339Ms. Valente also submitted that it was necessary to maintain her residence for Andrea. If that was the case, then that can be considered in relation to support for Andrea. It is noted that during Christopher’s first year at dental school that Andrea was living at home and attending the final year of her four-year undergraduate degree. Hence, the more cogent analysis is that because Ms. Valente had to maintain her residence for Andrea anyway, that the possibility that Christopher may transfer to Western after first year at dental school, was just that – a possibility – and changed nothing given Andrea’s situation.

340The evidence suggests, and I find, that there is no merit to Ms. Valente’s claim that she would need to maintain a residence for Christopher while he was at dental school.

341Ms. Valente’s reliance on s. 3(2)(a) and the tables would render it unnecessary for her to file budgets or other evidence as to daily living expenses. However, if s. 3(2)(b) was applicable, the evidentiary record would present a problem for Ms. Valente given her lack of evidence in relation to the “means and needs approach”: see, for example, Merritt v. Merritt, supra; Park v. Thompson, supra; and Ellacott v. Paliy, supra.

342Ms. Valente submits that Mr. Fanelli has failed to plead a departure from the “standard Guidelines approach” in s. 3(2)(a), and that his alternative claim set out in his first proposed order¹⁰ refers to s. 7, which would fall within s. 3(2)(a).

343I give little effect to this submission. First, Mr. Fanelli’s primary relief sought in his pleadings was that the motion to change should be dismissed which, in my view, is wide enough to permit Mr. Fanelli to argue that s. 3(2)(b) should apply.

344Second, in Lewi v. Lewi, supra, it was held that the fact that neither party had relied on s. 3(2)(b) did not prevent the court from considering this section where the children were of the age of majority and the facts made a consideration of s. 3(2) pertinent. At paras. 131-132, the majority stated:

131 I have already indicated my view that the appeal cannot be confined to a consideration of s. 7 of the Guidelines alone. That Ms. Lewi's motion materials mentioned only s. 7 and neither party expressly relied on s. 3(2)(b) did not restrict the motion judge from considering other provisions of the Guidelines that might be pertinent. Ms. Lewi brought a motion to vary an earlier child support order. As s. 2(4) provides, the order sought is governed by the whole of the Guidelines. The motion concerned child support for children of majority age and required consideration of s. 3(2) of the Guidelines. [my emphasis]

132 It is worth noting that in Park v. Thompson, supra, this court found the application judge had erred by failing to consider s. 3(2)(b) even though it had not been pursued. In Arnold v. Washburn, supra, Carthy J.A. noted (at para. 10) that "the trial judge never did turn to s. 3(2) of the Guidelines to determine if the amount otherwise indicated by the Guidelines was appropriate for children of the age of majority." On appeal, Carthy J.A. nonetheless considered and applied s. 3(2)(b). [my emphasis]

345Accordingly, even if Mr. Fanelli’s pleadings are deficient in failing to plead s. 3(2)(b), this does not prevent the court from considering s. 3(2)(b) where that section is engaged by the facts, as in the case at bar.

346Ms. Valente submits that Mr. Fanelli has failed to discharge his onus proving that the standard Guidelines approach is inappropriate. The wording of s. 3(2) indicates that the table and s. 7 approach mandated by s. 3(2)(a) is presumptive. Ms. Valente submits that the onus of proof falls on Mr. Fanelli.

347In Francis v. Baker, 1999 SCC 659, 1999 CarswellOnt 2734 (S.C.C.), the Supreme Court of Canada, in relation to s. 4 of the Guidelines, stated that a party seeking to deviate from the presumptive table amounts need not testify or call evidence:

43 The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence. No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a party may not be able to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party. Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels (August 21, 1997), Doc. Vancouver F950328 (B.C. S.C.), at para. 27, that there must be "clear and compelling evidence" for departing from the Guideline figures. [my emphasis]

348That analysis, by analogy, is helpful in the case at bar. In discharging his onus, Mr. Fanelli is entitled to rely on the entire evidentiary record, including choosing to question Ms. Valente’s evidence.

349I find on the evidence that the approach in s. 3(2)(a) is inappropriate – and overwhelmingly so – and that Christopher’s entitlement to child support while attending dental school must be determined under s. 3(2)(b).

(B) Can the court consider an adult child’s behaviour towards a payor parent in relation to the issue of child support?

350Mr. Fanelli relies on a number of cases in support of his position that Christopher’s refusal to have any relationship with Mr. Fanelli while attending dental school is a reason to deny that claim for child support.

351Colford v. Colford, 2005 CarswellOnt 1527 (S.C.J.) suggests that there is nothing to prevent the consideration of conduct when dealing with child support under s. 3(2)(b), given that the amount that the court considers as appropriate includes, in part, a consideration of the condition, means, needs and other circumstances of the child (my emphasis): paras. 89-90.

352Law v. Law, 1986 ONSC 6291, 1986 CarswellOnt 284 (Ont. S.C.J. – High Ct. of Justice), a case under the Divorce Act but predating the Guidelines, involved child support for the parties’ 22-year-old daughter. The court considered as a factor the child’s unilateral termination of a relationship with her father, stating in part, at para. 5:

[5] … Kimberley has certainly withdrawn from the applicant's charge as a result of her failure to maintain any contact with him. Although it is sufficient that she be in the custodial parent's charge, I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered by the trial judge in determining whether it would be "fit and just" to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child's neglect of his or her filial duties.

353In Whitton v. Whitton, 1989 ONCA 8868, 1989 CarswellOnt 265 (C.A.), Law, supra, was quoted with approval, at paras. 6-7.

354In Lampron v. Lampron, 2006 ONSC 16375, 2006 CarswellOnt 3034 (S.C.J.), the court declined to order the father to pay child support for two children who were over the age of majority on the basis that the children had unilaterally terminated any relationship with their father: paras. 3-5.

355In Farden v. Farden, supra, one of the enumerated factors in finding whether a child is “a child of the marriage” was whether a child, who had attained age of majority, had unilaterally terminated a relationship from the parent from whom child support was sought: para. 15.

356In Nafar-Ross v. Raahemi, 2018 CarswellOnt 7831 (S.C.J.), the court examined the prospect that under s. 3(2)(b), in dealing with a situation where an adult child has effectively ended a relationship with the parent from whom support is sought, that there is added flexibility because the quantum of support may be affected; therefore, it is not an “all or nothing proposition” as would be the case where conduct is considered when dealing with entitlement: paras. 31-33.

357The result of the foregoing is that it is open to the court, in an appropriate circumstance, to consider as a factor the child’s termination of a relationship with the parent from whom support is sought.

(C) Discussion: Should Mr. Fanelli pay child support during dental school?

358All decisions regarding dental school and funding were made by Christopher and Ms. Valente with no meaningful input from, or consultation with, Mr. Fanelli.

359As discussed earlier, Ms. Valente admitted in cross-examination that any arrangement for Mr. Fanelli to contribute towards Christopher’s dental school expenses was between Christopher and his father. It was apparent throughout the trial evidence that Ms. Valente wanted nothing to do with Mr. Fanelli. Hence, the very fact that Ms. Valente has undertaken this lawsuit, as it relates to Christopher’s dental school expenses, belies her evidence at trial that Mr. Fanelli’s contribution was to be arranged by Christopher as between himself and Mr. Fanelli.

360Christopher did exactly what Ms. Valente testified he should do, which was to approach his father and make arrangements directly with his father.

361It is noteworthy that Christopher’s request was not for money or any direct financial contribution but, rather, his only “ask” was to guarantee a $50,000 line of credit and that request was made only after Ms. Valente was not approved as the guarantor for the full amount of $200,000, as she and Christopher had planned. As it turned out, Mr. Fanelli was prepared to guarantee $50,000 but required the execution of an indemnity agreement as a condition.

362What was Christopher’s reaction? He unilaterally terminated all further relationship with his father. As previously noted, Mr. Fanelli was open to and invited Christopher to have further discussion when Christopher reviewed the indemnity agreement. Notwithstanding same, Christopher chose to drop out of his father’s life, even though his father, in the recent past, had funded, solely, the last three years of Christopher’s four-year undergraduate degree in the amount of $93,000, and with no contribution from Ms. Valente.

363Christopher’s situation is uniquely different from Andrea’s situation, as will be discussed later in these reasons. Christopher had re-established a relationship with his father starting in the fall of 2007. He had moved past any unpleasant memories from his childhood regarding the conflict between his parents.

364Considering all the circumstances, I find Christopher’s termination of his relationship with his father to be arbitrary and solely his choice. Christopher’s reaction was extreme, especially considering his father’s suggestion to discuss the proposed indemnity agreement. It is noted that Mr. Fanelli had assisted Christopher when he signed the TD form to confirm availability of $60,000. There is nothing that Mr. Fanelli did that can rationally explain the severity of Christopher’s reaction.

365Christopher acknowledged in his evidence that the repayment of all lines of credit and OSAP loans were his responsibility.

366Christopher spurned all efforts by his father to contact him after he went to dental school and Christopher shared no contact or personal information thereafter with his father.

367There is no reason to believe that Christopher will be unable to pay his debts arising from dental school. The recent evidence admitted by the court demonstrates that Christopher has a very significant earning potential in private practice. Although this is not his current long-term plan, whatever choice Christopher makes, he is a well-educated young professional with good income potential.

368I find on the evidence that there was no meaningful sharing of anticipated expenses with Mr. Fanelli by either Ms. Valente or Christopher, prior to Christopher commencing dental school. As Ms. Valente is the claimant, there was an obligation on her to provide this disclosure: see, for example, Plouffe v. Plouffe, 2012 ONSC 4501 (S.C.J.), at para. 126 and the cases cited therein.

369Despite the significant amounts involved, Mr. Fanelli had no say whether he was going to fund Christopher’s attendance at dental school and to what extent. In the discussions that he did have with Christopher, Mr. Fanelli made clear that any cash outlay on his part would be a loan subject to repayment with interest.

370While Christopher may have been financially dependent on his mother while he was in dental school, he was not dependent on his father financially, nor was there any filial relationship.

371Mr. Fanelli had no control over what dental schools Christopher applied to. I find that Christopher’s efforts to apply to Canadian dental schools were questionable and ought to have been more fulsome if there was any expectation for Mr. Fanelli to share in the costs.

372It was not unreasonable for Mr. Fanelli to expect his son to continue to have a relationship with him if he was expected to contribute to dental school expenses.

373Undoubtedly, Ms. Valente had a right to contribute to Christopher’s dental school expenses as she saw fit. It is also clear that she sought no contribution from Mr. Fanelli and, as indicated earlier, Ms. Valente ceded responsibility to Christopher to make any arrangements with Mr. Fanelli as to any contributions by him. By ceding responsibility to Christopher, Ms. Valente should be bound by her decision and it should not be open to her to override the choice that Christopher made – which was to “go it alone” without Mr. Fanelli – by coming to court after the fact and asking for Mr. Fanelli to be ordered to contribute a very significant amount of money. This is so, especially considering the fact that when Christopher entered dental school that Mr. Fanelli had no obligation to contribute to a further post-secondary degree pursuant to the separation agreement, and that Mr. Fanelli, during his discussions with Christopher, was entitled to view any contributions by him as being voluntary.

374The question may well be asked whether this claim ever would have been advanced had Mr. Fanelli not insisted on the indemnity agreement and had he simply signed the $50,000 guarantee as requested by Christopher.

375Considering that Christopher is an adult, considering Christopher’s available access to credit while at dental school, considering Christopher’s current earning capacity, having regard to Christopher’s failure to contact his father after being invited to do so following receipt of the indemnity agreement and considering also all of the foregoing discussion, including the fact of Christopher’s unjustified unilateral termination of his relationship with his father, I find that Christopher should have no reasonable expectation for his father to contribute anything towards his dental school expenses.

376Pursuant to s. 3(2)(b), I decline to make any order requiring Mr. Fanelli to make any payment for Christopher’s support while attending dental school.

377The following analysis applies both to the retroactive portion of the claim for dental school expenses and to the portion of the expenses incurred after the commencement of Ms. Valente’s claim.

Issue 7 – Child Support for Andrea and Christopher for the Period 2009 to 2014

(A) Proper Method to Quantify Child Support

378A court varying an order for child support shall do so in accordance with the Guidelines: s. 37(2.2), Family Law Act.

379For Andrea, as she lived with her mother while at Western, I find that s. 3(2)(a) is appropriate. For Christopher, he resided in an apartment for all of 2009 until April 2010. For reasons discussed previously, any contribution for Christopher’s support should be determined pursuant to s. 3(2)(b) during this period. Ms. Valente, in her calculations, had agreed that she should pay support to Mr. Fanelli during this period but her calculations were pursuant to s. 3(2)(a), which I do not accept.

380Mr. Fanelli began to file his tax returns in Alberta starting in 2010 and, accordingly, the Alberta tables are used from that year forward.

381Ms. Valente has provided detailed calculations regarding the net after-tax benefit to her from Mr. Fanelli’s taxable child support payments. These calculations were not challenged and I accept the calculations. Consistent with Ms. Valente’s approach, any child support paid by Mr. Fanelli to Ms. Valente for Christopher, while Christopher was not residing with Ms. Valente, is credited as a payment towards Andrea’s child support.

382While Mr. Fanelli gave evidence as to his travel expenses, to return home on weekends while working out west, there was no evidence at trial verifying that those expenses qualify as deductions pursuant to Schedule III of the Guidelines. Accordingly, no Schedule III adjustments have been made to Mr. Fanelli’s line 150 income.

383Neither party specifically raised s. 4 of the Child Support Guidelines, which must be considered given that Mr. Fanelli’s income exceeds $150,000. In Francis v. Baker, supra, the Supreme Court of Canada considered the application of s. 4 for high-income earners. In that case, the payor’s income was just over $945,000. The principles emerging from Francis v. Baker include: (1) a presumption in favour of the table amounts; (2) a court should determine table amounts to be inappropriate only after examining all relevant circumstances; (3) there must be clear and compelling evidence for departing from Guideline amounts; (4) Guideline amounts can only be departed from under s. 4(b) if the party seeking the change has rebutted the presumption that the applicable table amount is appropriate; and (5) the sheer size of a Guideline amount in a particular case does not render it prima facie inappropriate.

384Considering the foregoing, including that Mr. Fanelli has not rebutted the presumption in favour of the tables, I do not find the table amounts to be inappropriate.

(B) Andrea’s s. 7 Expenses from 2009 to 2014

385I accept Andrea’s evidence¹¹ summarizing her post-secondary education expenses for the years 2009 to 2014 inclusive. The tuitions ranged from a low of $4,774 (2014) to a high of $7,528 (2013) and for each year the expense for books was shown as $825.

386It was Andrea’s evidence that:

a) for 2009, Ms. Valente paid the tuition and books;

b) for 2010, Ms. Valente paid a portion of the tuition and also paid the full cost of books for the year;

c) for 2011 and 2012, Andrea paid the tuition from employment earnings but Ms. Valente paid for the books; and

d) Andrea paid for all of her teacher’s college tuition from employment earnings and Ms. Valente paid for books for 2013 and 2014.

387Tax returns and notices of assessment were provided for Andrea and disclosed her income as follows: $6,340 (2009); $14,527 (2010); $7,915 (2011); $12,253 (2012); $11,550 (2013); and $27,857 (2014), which includes fulltime employment after graduation from teacher’s college.

(C) Should Andrea’s refusal to have any relationship with her father be a factor regarding the issue of child support?

388The situation regarding Andrea’s relationship with her father has been dealt with earlier in these reasons. Unlike her brother, Andrea never renewed her relationship with her father.

389It was Andrea’s evidence that when she was in her “later teen years” that she learned from her mother about the “assaults” committed by her father.

390Given the limits of the evidentiary record, it is beyond the scope of these reasons to undertake any wide-ranging analysis as to Andrea’s reasons for rejecting her father, other than to note Andrea’s evidence discussed earlier that she felt abandoned.

391In many respects, sadly, Andrea’s feelings of abandonment may be related to high-conflict access issues, following separation, for which responsibility must rest with Mr. Fanelli and Ms. Valente.

392I decline to make any order, based on Andrea’s rejection of her father, that affects Ms. Valente’s right to receive the table amount of child support for Andrea for the period 2009 to June 2014.

393Having said that, Andrea, as a mature adult, does have choices. Her father, I find, made genuine attempts to connect with her. The use of registered mail, as one method, was understandable given the difficulties endured by Mr. Fanelli in trying to contact Ms. Valente and the children.

394While Andrea is entitled to her opinion, her characterization of her father’s attempts to reach out to her as being “disingenuous” is, I find, most unfortunate and is neither accurate nor fair.

395The preamble to s. 7(1) of the Ontario Child Support Guidelines states:

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation … [my emphasis]

396I find, to a limited extent, that Andrea must bear some consequences for her decision.

397The making of an order under s. 7(1) is permissive, and I decline to make an order requiring Mr. Fanelli to pay any portion of Andrea’s s. 7 expenses for post-secondary education. In doing so, I have considered also Andrea’s income while the s. 7 expenses were incurred, the fact that she paid her tuition for some of the years and her evidence at trial that any student loans incurred while she was at Western have been paid off by her.

(D) Table and s. 7 Expenses for Christopher

398Section 3(2)(a) applies to Christopher for his fifth year at Western, as he returned to live in Ms. Valente’s residence. There is no basis to deny payment to Ms. Valente for the table amount during this period.

399However, I find that no order should be made for s. 7 expenses.

400After Christopher ceased being supported by Mr. Fanelli following the completion of his fourth year at Western, the evidence suggests that there was a lack of any fulsome discussion between Christopher and his father regarding Christopher’s intention to attend for a fifth year at Western, including no discussion as to Mr. Fanelli’s contribution towards Christopher’s s. 7 expenses.

401I also take into account Christopher’s evidence, as noted earlier, that his fifth year at Western was paid by a combination of OSAP loans and employment earnings. In 2011, Christopher had an income of $13,186.

402Christopher had just spent three years being fully supported by his father. It was reasonable for Mr. Fanelli to expect some level of consultation regarding this fifth year and Christopher’s failure to do so is a factor to consider.

(E) Table Amounts of Child Support: 2009 to 2014

2009

403Mr. Fanelli’s income based on his 2009 notice of assessment was $234,037. The Ontario table amount is $1,876 per month for one child, Andrea.

404Mr. Fanelli should have paid $22,512 (12 x $1,876).

405I accept Ms. Valente’s evidence that, in 2009, she actually received 14 payments of $1,350 each, rather than 12 payments, as two of the payments were late and intended for 2008, but received by Ms. Valente in 2009¹². Ms. Valente calculates child support received in 2009, net after-tax, at $12,938. Given that the date of retroactivity does not include 2008, Mr. Fanelli should not receive a credit for the two late payments for the 2008 year. As an adjustment, I allow a net after-tax credit of $12,938 x 12 ÷14 = $11,090, which effectively eliminates the net value of two payments.

406For 2009, Mr. Fanelli owes $11,422 ($22,512 - $11,090).

2010

407Mr. Fanelli’s income based on his 2010 notice of assessment was $297,533.

408For the first four months, the table amount for Andrea using Alberta tables is $2,564 per month.

409Christopher returned to live with Ms. Valente after April 2010. For the last eight months, the table amount for two children is $4,043 per month.

410Mr. Fanelli should have paid $10,256 ($2,564 x 4) plus $32,344 ($4,043 x 8), for a total of $42,600.

411Mr. Fanelli paid $16,200 ($1,350 x 12) and the net after-tax amount is $10,886.

412For 2010, Mr. Fanelli owes $31,714 ($42,600 - $10,886).

2011

413Mr. Fanelli’s income based on his 2011 notice of assessment was $316,313.

414For the first four months, the table amount is payable for both Christopher and Andrea and, thereafter, for Andrea only.

415The table amount using Alberta tables for two children is $4,291 per month and for one child it is $2,724 per month.

416For 2011, Mr. Fanelli should have paid $17,164 ($4,291 x 4) plus $21,792 ($2,724 x 8), for a total of $38,956.

417Mr. Fanelli paid $16,200 ($1,350 x 12) and the net after-tax amount is $11,037.

418For 2011, Mr. Fanelli owes $27,919 ($38,956 - $11,037).

2012

419Mr. Fanelli’s income based on his 2012 notice of assessment was $366,683. The Alberta table amount for one child, Andrea (and switching to the tables that came into effect December 31, 2011), is $3,253 per month.

420Mr. Fanelli should have paid $39,036 ($3,253 x 12). Mr. Fanelli did pay $16,200 ($1,350 x 12) and the net after-tax amount is $11,113.

421For 2012, Mr. Fanelli owes $27,923 ($39,036 - $11,113).

2013

422Mr. Fanelli’s income based on his 2013 notice of assessment was $388,992.

423The Alberta table amount for one child, Andrea, is $3,454 per month. Mr. Fanelli should have paid $41,448 ($3,454 x 12) but he actually paid $16,200 ($1,350 x 12) and the net after-tax amount is $11,153.

424For 2013, Mr. Fanelli owes $30,295 ($41,448 - $11,153).

2014

425Although Andrea’s evidence is that she studied at teacher’s college from September 2013 to June 2014¹³, all of Ms. Valente’s calculations terminate the support for Andrea at the end of April 2014¹⁴.

426Given this conflict in the evidence, I rely on Ms. Valente’s evidence as it has all dates and calculations and I find that Andrea’s support should terminate the end of April 2014.

427Mr. Fanelli’s income based on his 2014 notice of assessment was $385,631. The Alberta table amount for one child, Andrea, is $3,424 per month.

428Mr. Fanelli should have paid $13,696 ($3,424 x 4). He paid $5,400 ($1,350 x 4) and the net after-tax amount is $3,717.

429For 2014, Mr. Fanelli owes $9,979 ($13,696 - $3,717).

430The foregoing calculations in applying the tables are the same for both retroactive child support and child support subsequent to the commencement of the proceeding.

(F) Summary of Table Amounts for 2009 to 2014

431Based on the foregoing, Mr. Fanelli owes $11,422 (2009) + $31,714 (2010) + $27,919 (2011) + $27,923 (2012) + $30,295 (2013) + $9,979 (2014), for a total of $139,252.

(G) Child Support for Christopher During 2009 Until the End of April 2010

432Although Christopher was living independently and being supported by Mr. Fanelli during this period, Mr. Fanelli did not advance any child support claim against Ms. Valente. However, it is appropriate, in the circumstances, to quantify Ms. Valente’s share of the child support for this period and deduct it from the total amounts owing by Mr. Fanelli under the table amounts. As discussed earlier, s. 3(2)(b) applies.

433The parties agreed that Mr. Fanelli spent $93,000 to support Christopher during the last three years of his undergraduate degree. Mr. Fanelli has provided a description and quantification of those expenses¹⁵.

434I would include the following expenses from Mr. Fanelli’s summary to approximate the expenses for the relevant period, being January 1, 2009 to the end of April 2010:

a) Include the amount of $26,357 for the period September 2008 to August 2009 but with such deductions as set out below in paragraphs b), c) and d).

b) Tuition and books ($5,060 + $900 = $5,960) were paid in 2008 but for the entire academic year. I would allow only half of that expense, representing the period January to April 2009. Therefore, $2,980 should be deducted.

c) The rent for September to December 2008, 4 months x $475 = $1,900, should be deducted.

d) Spending money and other expenses totaling $14,697 is shown. The dates of the expenses are not itemized. Accordingly, I would deduct one-third of that 12-month amount, representing the period September to December 2008. The deduction is $4,899.

e) Allow the full amount of $17,600 which are expenses for the period September 2009 to April 2010.

f) There is a separate expense of $13,400 covering additional expenses incurred during the three years, with insufficient detail to know whether all expenses fell within the relevant period. Christopher’s three academic years spanned September 2007 to April 2010, for a total of 32 months. As an approximation, I would allow $13,400 ÷ 32 months x 16 months = $6,700, representing the 16 months of the 32 months during which those expenses were incurred.

g) The last item was “additional” cash, estimated at $18,000 ($500 per month over the 3 years). I would allow 16 months x $500 = $8,000.

435The above produces the following estimate for all expenses for Christopher during the relevant period: $26,357 – ($2,980 + $1,900 + $4,899) + $17,600 + $6,700 + $8,000 = $48,878.

436I find it would appropriate for this expense to be shared by the parties in proportion to their incomes.

437This expense spans two calendar years – all of 2009 and the first four months of 2010.