SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mendo Davidson, Applicant

AND:

Christine Mae Davidson, Respondent

BEFORE: Sanfilippo J.

COUNSEL: Sarah Boulby and Kenneth Fishman, for the Respondent

IN WRITING: February 28, 2019

ENDORSEMENT

Overview

[1] On March 13, 2015, the Honourable Justice Douglas Campbell of the Supreme Court of Nova Scotia (Family Division) made a Provisional Variation Order varying the Corollary Relief Judgment that he had issued on February 15, 2010. The Provisional Variation Order dealt with the Applicant’s request to vary child support and the sharing of child-related expenses under the Corollary Relief Judgment.

[2] The Provisional Variation Order was made based on evidence provided only by the Applicant, Mendo Davidson, and was specifically stated to be provisional pending a confirmation hearing to be conducted in the receiving jurisdiction, Ontario. I have now conducted that hearing, and have received the evidence of the Respondent, Christine Mae Davison, and considered submissions made on her behalf, in addition to my review of the record and findings made provisionally by the Nova Scotia Court.

[3] The Respondent submits that the Provisional Variation Order should not be confirmed because the Nova Scotia Court did not comply with sections 18 and 19 of the Divorce Act, R.S.C. 1985, c. 3, and because the merits of the application do not support variation.

[4] For the reasons that follow, I refuse to confirm the Provisional Variation Order, in accordance with section 19(7)(c) of the Divorce Act.

I. THE COROLLARY RELIEF JUDGMENT

[5] The Applicant, Mendo Davidson, and the Respondent, Christine Mae Davidson, were married on August 18, 1991. They had two children: Quentin Perry Stanjanovski-Davidson (“Perry”), born June 22, 1994 and; Lorne Graeme Stajanovski-Davidson (“Graeme”), born November 3, 1995.

[6] The parties separated in March 2006 and were divorced on February 15, 2010. On that day, the Honourable Justice Douglas Campbell of the Supreme Court of Nova Scotia (Family Division) issued a Corollary Relief Judgment under the Divorce Act that granted the divorce and corollary relief, including parenting and support as follows:

(a) The parties were granted joint custody of Perry and Graeme, at that time 15 and 14 years of age, respectively. The Applicant was provided primary care and control of the children, while the Respondent was provided with reasonable access;

(b) The Applicant was found to have an annual income of $85,500, and the Respondent’s annual income was determined to be $42,250;

(c) The Respondent was not required to pay any retroactive child support, as of the date of the Judgment;

(d) The Respondent was not required to pay any child support to the Applicant in recognition of the Applicant not being required to pay any spousal support to the Respondent;

(e) The Respondent was ordered to pay $150 every month to each of the Registered Education Savings Plans (“RESP”) established for each of the children.

[7] The Corollary Relief Judgment was rendered under the Divorce Act and was thereby subject to variation in the event of material change in circumstances since the making of the Judgment, in accordance with section 17 of the Divorce Act.

II. THE VARIATION APPLICATION

[8] Four years after the issuance of the Corollary Relief Judgment, on November 18, 2014, the Applicant brought a Variation Application in the Superior Court of Nova Scotia (Family Division), assigned court file number SFHD-048428 1201-061001 (the “Variation Application”). This Variation Application was based on section 17 of the Divorce Act and sought changes to child support (ongoing and retroactive) and the sharing of child-related expenses, specifically in relation to Graeme’s post-secondary education expenses. The Applicant’s position presumed that the children were continuing to be ‘children of the marriage’ and that he continued to provide them with support.

[9] The Variation Application was based on the Applicant’s affidavit evidence sworn November 14, 2014 (the “Applicant Affidavit”), and his Statement of Income and Statement of Special or Extraordinary Expenses, sworn that same day.

A. The Applicant’s Affidavit Evidence

[10] The Applicant is a dentist and is a shareholder and director of a privately-held corporation through which he conducts his practice. In his Statement of Income, the Applicant deposed that he earned $97,200 in income as a self-employed dentist in 2014. The Applicant annexed his income tax assessments, which show that he had income in 2011 of $151,000; in 2012 of $125,375; and in 2013 of $100,000.

[11] The Applicant deposed that the circumstances for the children and for the Respondent “changed dramatically” (Applicant Affidavit, para. 5) since the issuance of the Corollary Relief Judgment, as follows:

a) The Respondent graduated law school and is employed. The Applicant had no evidence of the Respondent’s employment as a lawyer, or her income, but sought retroactive child support for the three years before the date of the Variation Application on the presumption that her income has increased;

b) Perry was living on his own in Toronto, and Graeme was attending Nova Scotia Community College. While Graeme was living on his own, he was said to continue to be dependent on the Applicant. The Applicant produced evidence of expenses totaling $10,897.00 for Graeme’s college;

c) The Applicant stated that the child support arrangements in the Corollary Relief Judgment were “intended to be temporary” in that the Respondent had just graduated from law school and had just entered a new relationship: Applicant Affidavit, para. 8. The Applicant deposed that he has been “solely responsible for the financial burden of raising the children” since separation: Applicant Affidavit, para. 9.

d) The Applicant sought:

(i) Child support retroactively three years from the date of his Application;

(ii) Ongoing child support for Graeme until he finished college;

(iii) an accounting of the contributions that the Respondent was required to make to the children’s RESPs, in accordance with the Corollary Relief Judgment. By the Applicant’s accounting, this amounted to $8,250 for each RESP, based on 55 months of contributions of $150 per month;

(iv) an order that Graeme was his dependent, for all purposes, including for income tax purposes.

[12] This affidavit evidence was supplemented by direct testimony heard by the Nova Scotia Court at the provisional hearing.

B. The Nova Scotia Provisional Hearing

[13] The Honourable Justice Douglas Campbell of the Nova Scotia Court conducted a Provisional Hearing on January 8, 2015. He heard submissions from the Applicant’s counsel and received direct testimony from the Applicant, summarized as follows:

a) Perry began to live on his own, as an adult in Toronto, starting May 2014;

b) The Applicant’s annual income is $97,200;

c) The Applicant delayed advancing his claim for retroactive child support from 2012 until 2014 because he claims to have been deprived of information regarding the Respondent’s income level, employment and the Respondent’s history of contributions to the RESP;

d) The college expenses that the Applicant seeks to share with the Respondent totaled $11,797 for the first academic year, with an estimate of $5,697 for the second year and $5,587 for year three.

[14] The Nova Scotia Court recognized that any provisional order that it might render would be based solely on the evidence of the Applicant and would be of no force and effect until confirmed in the Respondent’s jurisdiction of residence: Ontario. Campbell J. made the following determinations on the evidence submitted by the Applicant:

a) Child Support: Campbell J. concluded provisionally that three years of retroactive child support for 2012-2015 should be awarded to the Applicant, derived by imputing to the Respondent income of $100,000. This imputation of income was necessary because the Applicant had presented no evidence of the Respondent’s income. The retroactive child support was awarded in regard to Perry only to May 1, 2014, on the Applicant’s admission Perry was no longer a ‘child of the marriage’ as of May 1, 2014. Campbell J. determined as well that the Respondent would pay to the Applicant ongoing child support for Graeme;

b) Expenses: Campbell J. concluded that educational expenses for Graeme’s college program, found to be $11,797, would be paid by the parties, on the finding that Graeme was a ‘child of the marriage’, apportioned between the Applicant’s income of $97,200, found in accordance with his evidence, and the Respondent’s imputed income of $100,000. The Respondent would receive credit for amounts contributed to a RESP for the children;

c) Accounting of RESP Payments: The Respondent was ordered to account for all RESP payments made by her in compliance with the Corollary Relief Judgment.

[15] These determinations were implemented in the Provisional Variation Order.

III. THE PROVISIONAL VARIATION ORDER

[16] A Provisional Variation Order was issued in the Variation Application on March 13, 2015 which, if confirmed, would vary the Corollary Relief Judgment as follows:

a) Commencing May 1, 2014, and continuing on the 1^st^ day of every month until further court Order, child support shall be payable by the Respondent to the Applicant in the amount of $880 each month for the support of the child, Graeme;

b) For the retroactive period from January 1, 2012 to April 1, 2014, the Respondent shall pay the Applicant retroactive child support in the amount of $1,416 each month for Perry and Graeme;

c) The Respondent shall provide to the Applicant and to the Nova Scotia Court an accounting of all RESPs held for either of the children;

d) With respect to college expenses for Graeme in the amount of $11,797, half of the funds held in any RESP account shall be contributed to these expenses, deemed to be a contribution by the Respondent, and the balance shall be paid as pro-rated between the parties’ incomes, with the Applicant’s income determined at $97,200 and the Respondent’s income deemed to be $100,000;

e) All claims for deductions or credits available for Graeme through the Canada Revenue Agency shall be available only to the Applicant, unless there is a claim available to the Respondent that is not available to the Applicant.

[17] The Provisional Variation Order has no force and effect until confirmed by the Court of competent jurisdiction in the Respondent’s place of residence: Ontario.

IV. PROCEDURAL HISTORY AFTER TRANSFER TO ONTARIO

[18] The Provisional Variation Order was transmitted to the Ministry of the Attorney General of Ontario pursuant to section 18(3) of the Divorce Act. The Ministry of the Attorney General of Ontario forwarded the Provisional Variation Order to the Ontario Court of Justice, further to section 19(1) of the Divorce Act, where it was assigned court file number RFO-16-13938.

[19] In accordance with section 19(2) of the Divorce Act, the Ontario Court of Justice issued a Notice of Hearing on February 1, 2016 and served it on the Respondent on or about March 9, 2016, establishing a hearing date of April 20, 2016. On April 7, 2016, the Respondent submitted a motion in writing to obtain an extension of time to file her material and requested an oral hearing.

[20] On April 12, 2016, Justice Murray of the Ontario Court of Justice directed that the Respondent would have until May 13, 2016 to serve and file her material, and invited submissions on whether the matter should be transferred to the Ontario Superior Court of Justice.

[21] The Respondent moved for the dismissal of the Variation Application or its transfer to the Superior Court of Justice. On May 13, 2016, Justice Murray ordered that the Variation Application be transferred to the Superior Court of Justice on jurisdictional grounds.

[22] The Superior Court of Justice assigned the Variation Application court file number FS-16-208719 and issued a Notice of Hearing (Form 37) on March 2, 2018 for a date to be fixed 30 days from the date of service of the Notice.

[23] The Respondent brought a motion in writing (Form 14B) on March 26, 2018 for an Order extending the time for her to deliver her Answer and Financial Statement to April 30, 2018, and for the matter to proceed by way of an oral hearing, on a date to be fixed by the Court. Justice Backhouse granted an Order issued April 4, 2018 extending the time for the Respondent to serve and file her Answer and Financial Statement to April 30, 2018, and directing that this matter proceed by way of oral hearing on a date to be set in consultation with counsel in accordance with Rules 37(8) and 37(9) of the Family Law Rules, O. Reg. 114/99.

[24] The Respondent brought a further motion in writing on April 24, 2018 to further extend the time for service and filing of her Answer and Financial Statement to June 20, 2018. By Order issued May 8, 2018, Kristjanson J. permitted the Respondent to file her Answer and Financial Statement by June 20, 2018.

[25] The Respondent delivered her Answer and Financial Statement on June 18, 2018. The hearing of this matter was scheduled for November 20, 2018.

[26] On October 10, 2018, the Respondent brought a further motion in writing to vacate the hearing date of November 20, 2018, requesting a hearing in writing, and requesting to deliver a factum. By Order issued November 1, 2018, Kiteley J. vacated the hearing date of November 20, 2018 and ordered that the Variation Application shall be conducted in writing, pursuant to section 37(7) of the Family Law Rules. She ordered further that the Respondent shall serve and file a factum within fourteen days of November 1, 2018

[27] The Respondent filed her factum within the time required by the Order of November 1, 2018. However, the Respondent’s written submissions were based on the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, but the hearing of the Variation Application is based on the Divorce Act. This resulted from an ambiguity in the Notice of Hearing that referred to the Interjurisdictional Support Orders Act, 2002 although this matter is based on the Divorce Act.

[28] This matter came before me in writing on November 20, 2018. I ordered the Respondent to deliver written submissions based on the Divorce Act, and in particular sections 17, 18 and 19, in furtherance of my consideration of whether the Provisional Variation Order ought to be confirmed, confirmed with variation, refused confirmation (Divorce Act, section 19(7)), or remitted to the issuing court (Divorce Act, sections 19(8) and 18(5)). The Respondent delivered her further written submissions on November 30, 2018.

V. THE RESPONDENT’S EVIDENCE

[29] Section 19(5) of the Divorce Act provides the Respondent with the right to raise before me “any matter that might have been raised before the court that made the provisional order”. The Respondent has done so through the affidavit that she swore on June 18, 2018 and the affidavit sworn on September 24, 2018 by her son, Graeme, in support of his mother’s responding position (the “Graeme Affidavit”).

A. The Respondent’s Affidavit Evidence

[30] The Respondent has resided in Toronto and is re-married. She is an employed lawyer. The Respondent’s evidence is considerably at odds with the evidence of the Applicant on all issues material to this application. The Respondent’s evidence on material points is corroborated by the sworn evidence provided by Graeme.

(i) The Children

[31] At the time that the Corollary Relief Judgment was rendered on February 15, 2010, the children, then-aged 15 and 14, resided primarily with the Applicant and were, according to the Respondent, alienated from her. The Respondent contends, and the Applicant does not challenge, that the parties entered into an agreement that the Applicant would not pay her spousal support, although she claims that she was so entitled, in exchange for the Respondent not paying child support.

[32] Perry is currently 24 years of age, and Graeme is 23. The Respondent deposed that neither child has been a ‘child of the marriage’ since in or about November 2013, except for a brief period from September to December 2014 when Graeme was attending a college program. This contradicts the Applicant’s evidence that Graeme remains a ‘child of the marriage’.

[33] The Respondent states that in November 2014 when the Applicant commenced this Application, neither of the children was residing with him. Rather, Perry was 20 years old and living in Toronto, and Graeme was living on his own in Dartmouth, Nova Scotia.

[34] In terms of Perry’s residence, the Respondent deposed that Perry moved to Toronto to live with the Respondent in the summer of 2012. The Respondent provided detailed evidence of Perry’s living arrangements in the period from June 2012 to 2018, involving periods of residence with the Respondent and periods of residence with the Applicant or in an investment property purchased by the Applicant. There are lengthy periods during which Perry did not reside with either parent.

[35] Graeme lived with the Applicant from 2010 to November 2013. In the period from November 2013 to March 2017, Graeme lived on his own, with friends, or in the investment property provided by the Applicant. From March 2017 to present, Graeme has lived with the Respondent in Toronto. This contradicts the Applicant’s evidence that Graeme remains in his care, giving rise, he says, to payment of child support by the Respondent.

(ii) Income

[36] The Respondent was a law student at the time of separation in March 2006. She graduated in October 2007. The Respondent had modest earnings in the period from 2007 to 2010 and then moved to Ontario on February 1, 2010: just before the issuance of the Corollary Relief Judgment. She began articles in September 2010 but, due to a series of developments beyond her control, did not complete her articles until February or March 2012.

[37] The Respondent reported $2,025 in income in 2011, and $7,481 in income in 2012. In 2013, her income was $37,836 and in 2014 she earned $42,889 in income. The Respondent’s income increased to $60,942 in 2015, $65,710.71 in 2016 and $66,421.45 in 2017. Her current income is $71,000 per year.

[38] She disputes that the Applicant was truthful in his testimony about his income levels, stating that he receives additional benefits from the private corporation through which he carries on his profession. The Applicant has not provided disclosure for taxation years 2014 and forward.

(iii) Financial Contributions to the Children Since 2012

[39] The Respondent produced bank records that establish monetary transfers to the children, by either email or bank transfer, from January 1, 2012 to December 31, 2017, totaling $50,088.46. In addition, the Respondent produced credit card statements that show payment of expenses for the children in the period from 2014 to 2018 totaling $15,915.72. When incidental expenses related to the children are taking into calculation, the Respondent has provided the children with over $73,000 in the period from 2012 to present, not accounting for the cost of providing them with housing, food and necessities during the periods that they have resided with her.

(iv) Financial Contribution to Post-Secondary Education

[40] The Respondent did not comply with paragraph 5 of the Corollary Relief Judgment that required that she pay into a RESP the amount of $300 each month ($150 for each child) as her contribution to the children’s post-secondary education. Paragraph 6 of the Corollary Relief Judgment provided that if either of the children did not attend post-secondary education, the savings plan value of the RESP shall be paid to the child when that child reaches age 25, barring agreement of the parties or court order.

[41] The Respondent deposed that she did not make the contributions because she received advice that the children did not qualify for government matching of the contributions made on their behalf, due to their ages. She instead provided equivalent funds, or more, to the children on an as-needed basis.

[42] Only Graeme attended post-secondary education, and only for four months from September to December 2014. In October 2014, Graeme obtained a student loan to fund his post-secondary education. The Respondent stated that she provided periodic payments to Graeme to service this debt, including a lump sum of $1,028 in 2017, and then a payment of $2,768.38 that allowed Graeme to retire this debt.

[43] The Respondent swore that the money that she has provided to the Children in the period from 2012 to 2018, detailed by her as totaling more than $73,000, is in excess of the total amount of the RESP contributions that she was required to make from February 2010 to present: $32,100, consisting of $300 each month.

B. Graeme’s Affidavit Evidence

[44] Graeme deposed that he resides with the Respondent, and that his brother, Perry, resides in Halifax, Nova Scotia. Graeme stated that he rejected a relationship with his mother from 2009 to 2012, until he came to learn in the spring of 2012 that his mother was paying the school lunch program for him and his brother. He testified that he and his brother reconnected with their mother at that time, and she forwarded them money from that point forward for food, clothing and necessities.

[45] In November 2013, Graeme stopped living with his father after his father placed his belongings on the front porch of the house, making it clear that he could no longer live with him. He moved in with friends, and then lived on his own.

[46] Graeme deposed that he funded his single term of post-secondary education with a student loan in the amount of $8,190. He stated that his father provided a cheque after Graeme received the student loan, but he did not cash it. He stated that his father has not assisted him in paying this loan, but that his mother has provided him with money to pay down the loan amount.

[47] Graeme deposed that his father told him that they would purchase a house together, and that Graeme would pay the mortgage and the monthly expenses and reside at the property. Graeme did so for a year, from 2014 to 2015, but came to find that the house was registered only in his father’s name. He moved out and has had nothing further to do with that property.

[48] Graeme stated that the Respondent provided him with financial and emotional support throughout the years from 2012 to present, including food, money for rent, clothing, living expenses, necessities and flights to visit with her and with his extended family. He deposed that this financial support increased from 2015 to 2017, when the Respondent provided him with “at least a few hundred dollars every month, often a lot more”, and at times $1,000 per month. He swears that the Respondent assisted him with the cost of optional surgery and in times of financial shortfall.

[49] The Applicant has not, according to Graeme, provided him with any money “in years”. Graeme deposed that he last asked his father for support in 2016 and, when refused, has not had further contact with him.

VI. ANALYSIS

A. The Analytical Framework

[50] The Provisional Variation Order was issued in a Variation Application brought in relation to a Corollary Relief Judgment issued under the Divorce Act by the Supreme Court of Nova Scotia (Family Division) on February 15, 2010. As such, this Variation Application is brought in accordance with the Divorce Act, specifically sections 17, 18 and 19, and Family Law Rule 37.1.

[51] My task is to determine whether to: confirm the Provisional Variation Order without variation, confirm the Provisional Variation Order with variation, refuse to confirm the Provisional Variation Order or remit it to the issuing court for further evidence: Divorce Act, ss. 19(6), (7); 18(5). To do so, I must consider the evidence that was presented to the Nova Scotia Court and to this Court and determine whether the applicant has met the applicable test for the granting of a variation order: Wheeler v. Wheeler, 2014 BCSC 789 at para. 54.

[52] This process requires that I make findings of fact that are based on all the evidence tendered in both the first proceeding before the Nova Scotia Court and, in writing, in this proceeding before me. The nature of this proceeding – bifurcated by geographical distance, time and process – results in a full factual record being available only before the second, confirming court. This means that I must decide the Variation Application on its merits, determining whether I agree with the provisional determination that was made by the Nova Scotia Court on only the portion of the evidentiary record available to it.

[53] Where I consider that the evidence of the Applicant is insufficient to make a substantive determination, I may remit the matter back to the Nova Scotia Court for the taking of further evidence: Divorce Act, ss. 19(6) and 18(5). I do not find that this is necessary in this case because the Applicant has already provided evidence through affidavit and in direct testimony.

B. The Applicant Must Establish Compliance with [s. 18(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html) of the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[54] Section 18(2) of the Divorce Act provides that a court may make a provisional variation order in respect of a support order where:

(a) The respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

(b) In the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,

the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it. [Emphasis added]

[55] In Dent v. Flynn (2005), 2005 CanLII 14317 (ON SC), 15 R.F.L. (6th) 126 (Ont. S.C.J.) at para. 21, Ferrier J. summarized the requirements to be met before a provisional order may be made, as set out in Albinet v. Albinet, 2003 MBCA 22, 33 R.F.L. (5^th^) 275, as follows:

(1) The respondent resides in a different province than the applicant;

(2) The respondent does not accept the jurisdiction of the court where the applicant resides;

(3) Both parties do not consent to proceed under s. 17.1 of the Divorce Act; and

(4) The presiding judge is satisfied that the matter can be adequately determined through the two-phase provisional/ confirmation procedure.

[56] Here, the first criterion is met in that the parties reside in different provinces. I find that the fourth criterion is established in that Campbell J. was satisfied that the matter could be adequately determined through the two-stage process involving the issuance in the rendering court of a provisional order and its consideration for confirmation in the receiving court.

[57] However, the record forwarded from the issuing court does not contain any evidence that the Respondent did not accept the jurisdiction of the Nova Scotia Court. Indeed, there is no evidence that she was served with process emanating from the Nova Scotia Court. Further, there is no evidence that the Respondent did not consent to the application of section 17.1 of the Divorce Act, which provides as follows:

Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.

[58] The party requesting the provisional order bears the onus of establishing that all four of the requirements of section 18(2) of the Divorce Act have been satisfied: Albinet; Wolch v. Wolch, 2006 MBCA 43, 26 R.F.L. (6th) 239 at paras. 14-15. Where all four requirements are not established, the provisional order cannot be rendered, and cannot be confirmed: Dent v. Flynn at para. 27.

[59] I refuse to confirm the Provisional Variation Order, in accordance with section 19(7)(c) of the Divorce Act, on the basis that the requirements of section 18(2) of the Divorce Act have not been established by the Applicant.

C. The Merits of the Application

[60] In light of my determination that the Provisional Variation Order is non-compliant with section 18(2) of the Divorce Act, and thereby incapable of being confirmed on this basis alone, it is not necessary for me to consider the substantive arguments advanced by the Respondent to refuse the confirmation of the Provisional Variation Order. I will nonetheless do so, for completeness of analysis.

[61] As the Applicant requested changes in child support, the Applicant had the burden of establishing that a change in circumstances had occurred since the making of the Corollary Relief Judgment, as required by section 17(4) of the Divorce Act:

17(4) – FACTORS FOR CHILD SUPPORT ORDER - Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

[62] Section 14(b) of the Federal Child Support Guidelines, SOR/97-175, as amended, provides that in the case of a variation sought for a child support order made, as here, without a determination in accordance with a federal child support table, a change in circumstances consists of “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. In Wright v. Zaver (2002), 2002 CanLII 41409 (ON CA), 59 O.R. (3d) 26 (C.A.), Simmons J.A. stated, at para. 63, that s. 14(b) “retains the language of section 17(4) of the Divorce Act as it existed prior to the enactment of the Federal Child Support Guidelines and accordingly preserves the pre-existing judicially interpreted test of ‘material change in circumstances’ in relation to this one specific category of orders.”

[63] In Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 at para. 22, the Supreme Court described the nature of the change required for a variation order to be rendered as a change that would have resulted in a different outcome had it been known at the time the original order was made:

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms.

[64] Now having the evidence of the parties, I must assess whether there has been a material change of circumstances, in the nature of a change in the condition, means, needs or other circumstances of either spouse or any child entitled to support, that if known at the time that the Corollary Relief Judgment was rendered, would have resulted in different terms on child support.

(a) Has The Applicant Established Material Change to Support the Provisional Order?

[65] The evidence provided by the Applicant at the Provisional Hearing supporting the terms of the Provisional Variation Order has been significantly challenged by evidence tendered by the Respondent. I will now consider this evidence in relation to each of the terms of the Provisional Variation Order.

(i) Retroactive Child Support

[66] The Provisional Variation Order, if confirmed, would require that the Respondent pay the Applicant retroactive child support for both Perry and Graeme in the amount of $1,416 per month from January 1, 2012 to April 1, 2014. This Order is based on the Applicant’s evidence that both children resided with him during this time period and that the Respondent’s income had materially changed by increasing to $100,000 per annum effective these years.

[67] The Respondent was found to have an income of $42,250 in 2010 for the purposes of the Corollary Relief Judgment. The Respondent’s evidence on her income levels establishes that the Respondent earned less than this amount in 2011 ($2,025), 2012 ($7,481) and 2013 ($37,836) and only modestly more than this amount in 2014 ($42,889). I accept the Respondent’s evidence on her income levels and note that the Applicant tendered no evidence on this issue in the Provisional Hearing. As the Respondent’s income was either less than the amount applied in the Corollary Relief Judgment, or roughly the same, there is no material change in the Respondent’s income for the purpose of assessing retroactive child support for the children in the period from January 1, 2012 to April 1, 2014.

[68] Additionally, I do not accept the Applicant’s evidence that the children were in his care during January 1, 2012 to April 1, 2014 to give rise to a claim for retroactive child support. I accept the Respondent’s evidence that Perry moved from Halifax to Toronto in June of 2012, at the age of 18, having left school, and that he has resided in various locations apart from the Applicant since. The Applicant concedes that Perry was not a ‘child of the marriage’ effective May 1, 2014, but provided insufficient evidence to establish that Perry was a ‘child of the marriage’ after attaining the age of majority in June 2012.

[69] I accept Graeme’s evidence that he has not lived with his father since November 2013, when the Applicant placed Graeme’s belongings on the porch of his house. I also accept Graeme’s testimony that in or about August 2014 the Applicant purchased a property for Graeme to live in, but that Graeme was required to pay a monthly amount in relation to mortgage carrying costs and expenses, frequently supported by the Respondent.

[70] I rely on the holding in S. (D.B.) v. G. (S.R.). 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 109, that the payor parent’s conduct in supporting the children must be taken into consideration in an assessment of whether retroactive child support should be awarded. This is because a parent who has proven that she has indirectly supported the children financially ought to have these payments considered in assessing her retroactive child support obligations: “…where it appears to a court that the payor has contributed to his/her child’s support in a way that satisfied his/her obligations, no retroactive support award should be ordered”. I accept the Respondent’s evidence that she has made financial contributions to her children of $61,173.49 in the period from 2012-2017, and over $73,000 to present, not accounting for her payment of Graeme’s expenses while living with her. These amounts are greater than any obligation that the Respondent had at law.

[71] In making this finding of the Respondent’s financial support of the children, I reject the Applicant’s sworn statement that he has been “solely responsible for the financial burden of raising the children” since separation: Applicant Affidavit, para. 9. I prefer the evidence of the Respondent, as corroborated by the evidence of Graeme, over the evidence of the Applicant in finding that the Respondent has financially supported the children from 2012 to present.

[72] I have determined that the Applicant has not established a material change in circumstances, in the nature of a change in the condition, means, needs or other circumstances of either spouse or any child entitled to support, that would entitle him to an award of retroactive child support for the period from January 1, 2012 to April 1, 2014.

(ii) Child Support

[73] The Corollary Relief Judgment did not grant the Applicant any retroactive child support or ongoing child support. The judgment specifically referred to the arrangement reached between the parties whereby the Respondent was not required to pay child support to the Applicant in recognition of the Applicant not being required to pay spousal support to the Respondent. The Applicant did not provide any evidence of any change in this arrangement. He did not provide evidence of ever raising with the Respondent the issue of child support at any time after the issuance of the Corollary Relief Judgment.

[74] At that time, the Respondent had graduated law school and had re-located to Ontario. The Corollary Relief Judgment attributed to the Respondent $42,250 in income. The Applicant was granted primary care and control of the children, who were residing with him.

[75] At the Provisional Variation Hearing, the Applicant relied on the Respondent’s graduation, re-location to Ontario and re-marriage as material changes in circumstances. I find that they were not. The only event that was different from the time of the Corollary Relief Judgment was that the Respondent married the person with whom she was known to be in a relationship at the time that the Corollary Relief Judgment was issued.

[76] The Respondent’s increase in income was not, at any time, at the level imputed by the Nova Scotia Court: $100,000. After being below or at the level set out in the Corollary Relief Judgment from 2010 to 2014, namely $42,250, the Respondent’s income arose above that level by $18,692 in 2015, $23,460.71 in 2016, $24,171.45 in 2017 and $28,750 in 2018. I accept from the Respondent’s evidence that her financial support to the children increased along with the increase in her income throughout these years.

[77] I do not accept the amount of the increases in the Respondent’s income are sufficient to constitute a material change in circumstances when considered together with all other factors, including her financial payments to the children throughout this period and that there has been no change in the arrangement reached between the parties, and detailed in the Corollary Relief Judgment, that the Respondent would not pay child support in recognition of the Applicant not paying spousal support.

[78] The Applicant contends that the aging of the children is a material change in circumstances. The children were teenagers at the time of the Corollary Relief Judgment (ages 16 and 15) and were both above the age of majority (ages 20 and 21) at the time of the Provisional Variation Hearing. The Applicant conceded that Perry was not a ‘child of the marriage’ at that time, but contended that Graeme was a ‘child of the marriage’ who continued to reside with him. On both of these issues, I accept the Respondent’s evidence, corroborated by Graeme’s evidence, and conclude that Graeme was only a ‘child of the marriage’ for the four-month period in which he attended college from September to December 2014.

[79] Last, I do not accept that the Applicant has provided to Graeme the financial support that he claims. I accept Graeme’s sworn testimony that his father has not: “While my mother has continued to financially support me well into my adulthood, my father has not sent me any money in years”. ( Graeme Affidavit at para. 43)

[80] I have determined that the Applicant has not established a material change in circumstances, in the nature of a change in the condition, means, needs or other circumstances of either spouse or any child entitled to support, that would entitle him to an award of child support.

(iii) Special Expenses for Graeme

[81] The Provisional Variation Order, if confirmed, would require that the Respondent contribute toward the cost of Graeme’s college expenses a monetary amount that is pro-rated with the Applicant according to their incomes. The Respondent’s income was imputed at $100,000 for the purpose of pro-ration with the Applicant’s determined income of $97,200.

[82] I accept Graeme’s evidence that:

(a) the only educational program that he has enrolled in post-secondary school was a single term of college from September to December 2014;

(b) he secured a student loan from the National Student Loan Centre on October 15, 2014, in the amount of $8,190 to pay for the expense of this program;

(c) he did not cash a cheque provided to him by the Applicant in relation to this school expense;

(d) the Applicant has not assisted him financially in retiring this student loan debt;

(e) the Respondent has provided him with money to pay this student loan debt through periodic payments throughout the loan period, and a recent gift of $2,781.78 to retire the debt;

(f) he did not complete this post-secondary program, and has not enrolled in any further academic programs since.

[83] I find that the Applicant has not established a material change in circumstances, in the nature of a change in the condition, means, needs or other circumstances of either spouse or any child entitled to support, that would entitle him to the award in relation to special expenses provided for by the Provisional Variation Order.

(iv) Full Accounting of Amounts Paid by the Respondent

[84] The Provisional Variation Order, if confirmed, would require that the Respondent provide an accounting of all RESPs held for either of the children. The Respondent has effectively provided this through her sworn evidence that she did not establish RESPs for the children.

[85] I do not condone the Respondent’s failure to comply with paragraph 5 of the Corollary Relief Judgment.

[86] However, based on the findings that I have made regarding the payments by the Respondent to the children to support them with food, clothing, shelter and necessities, I am satisfied that she has supported the children beyond what was required by paragraph 5 of the Corollary Relief Judgment.

(v) Entitlement to Claim Credits or Deductions

[87] The Provisional Variation Order, if confirmed, would allow the Respondent to claim deductions or credits for Graeme through the Canada Revenue Agency.

[88] As the Applicant did not pay for Graeme’s college expenses, and has not made any payments on Graeme’s behalf since at least 2016, the Applicant has not established a basis on which he would be entitled to claim deductions or credits for Graeme.

(b) Conclusion – The Applicant Did Not Establish Material Change

[89] Had I not determined that the Provisional Variation Order is non-compliant with section 18(2) of the Divorce Act, and thereby incapable of being confirmed on this basis alone, I would have refused confirmation of the Provisional Variation Order on the basis that the evidence received, and accepted on material points, from the Respondent, shows that the Applicant has not established a material change that would support a variation of the Corollary Relief Judgment. If the various facts I have accepted about the circumstances of the parents and the children, and the support flowing from each parent to the children had been known at the time of the rendering of the Corollary Relief Judgment, the terms of that judgment would not have provided for child support or special expenses to be paid by the Respondent.

VII. DISPOSITION

[90] I order that the Provisional Variation Order issued by the Supreme Court of Nova Scotia (Family Division) on March 13, 2015 in its court file number SFHD-048428 1201-061001, provisionally varying the Corollary Relief Judgment issued by that court on February 15, 2010, shall not be confirmed.

Sanfilippo J.

Date: February 28, 2019