COURT FILE NO.: FC-08-FO-684
DATE: 2019/12/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISA ELLEN SKINNER
Applicant/ Responding Party to Motion to Change
– and –
MICHAEL WAYNE SKINNER
Respondent/ Moving Party to Motion to Change
R. Heckburn, Counsel for the Applicant
R. Gill, Counsel for the Respondent
HEARD: November 22, 2019
THE HONOURABLE MADAM JUSTICE J. BREITHAUPT SMITH
ENDORSEMENT
Background
[1] This Motion to Change the Final Order of Epstein J. dated April 27, 2010 (the “Epstein Order”) was heard on November 22, 2019 as the subject of a long motion. The Epstein Order arose from a Motion to Change the Final Order of Bean J. dated January 12, 2009 (the “Bean Order”). The Motion to Change was brought by Michael Wayne Skinner, requesting that the arrears accumulated since the date of the Epstein Order be rescinded in their entirety or, in the alternative, that child and spousal support be recalculated to reflect his actual income in each year and arrears adjusted accordingly. Mr. Skinner states that the material change in circumstances arises from his inability to work consistently on a full-time basis due to ongoing mental health issues. In addition to a recalculation to accord with his actual income, he takes the position that spousal support should be terminated effective April 27, 2011 (being one year after the Epstein Order was made) and that child support should end for each of the parties’ two children as of their eighteenth birthdays. He indicates that if the arrears are not rescinded in their entirety, he can pay them off at the rate of $500 monthly and asks for a payment plan in that regard.
[2] In response, Ms. Lisa Skinner takes the position that, as Mr. Skinner’s mental health was precarious during the marriage itself, his subsequent diagnosis and treatment does not constitute a material change in circumstances. However, she further takes the position that a change in Mr. Skinner’s hourly rate from the $30/hour imputed in the Bean Order to the rate of $35.38/hour earned at his employment with Velocity Mechanical Inc. in 2011 does constitute a material change in circumstances justifying a review. That review should, in Ms. Skinner’s submission, cause an increase in the amounts of child and spousal support payable over time.
[3] The parties were married on February 14, 1998 and separated sometime in 2006 or 2007. A Divorce Order has not been obtained, nor was any Separation Agreement negotiated between the parties. The parties have two children together, both of whom are now adults: Steven, now 21 and Hailey, now 18. The Bean Order was made on January 12, 2009 on an uncontested basis to address parenting and support issues. Within the year, Mr. Skinner brought a Motion to Change the Bean Order to accord with his actual income and to address certain parenting issues. By the time the matter came before Epstein J. for argument on April 27, 2010, the sole remaining issue was Mr. Skinner’s income for 2010 and the amount of child and spousal support payable.
Issues
[4] The following issues were raised in these proceedings, and each will be addressed in turn:
i. What, if any, material change in circumstances has taken place since the Epstein Order was made such that it is reviewable?
ii. What is Mr. Skinner’s income for support purposes?
iii. What, if any, amount of spousal support is payable?
iv. What, if any, amount of child support is payable?
v. What, if any, arrears exist at this time and should any such arrears be rescinded? If such arrears are not rescinded, what payment plan is appropriate to address them?
(i) Material Change in Circumstances
[5] While counsel referred me to s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and appreciating that these parties were married, it is important to note that the Epstein Order was made in the Ontario Court of Justice, and therefore the governing legislation regarding support issues for that court was the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Section 37(2) of the FLA confers broad powers upon the court once it is satisfied that a material change in circumstances has taken place. Of course, much of the judicial interpretation of s. 17 of the Divorce Act is nonetheless helpful in navigating the legal issues in these matters, and particularly in defining “material change in circumstances.” In Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 at p. 688, the Supreme Court of Canada defined “material change in circumstances” in the context of the Divorce Act as “a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.” Upon finding that a material change in circumstances has taken place, the court must conduct a fresh analysis of the issues from that time forward.
[6] No one around Mr. Skinner – including Mr. Skinner himself – approached his emotional state as one of mental illness requiring treatment until mid-2015. In 2009, Mr. Skinner knew that something was wrong and attempted to seek treatment from his previous family physician, Dr. Pope, but no specialist referral was made. Further, it appears that Dr. Pope misdiagnosed his condition as “simple depression.” In mid-2015, Mr. Skinner went to Grand River Hospital at the suggestion of his current family physician, Dr. Julie Wang, and was placed under the care of psychiatrist Dr. Cletus Okonkwo as an outpatient. By July 10, 2015, Dr. Okonkwo had diagnosed Mr. Skinner with “Bipolar Disorder Type 2” and a medication and treatment plan got underway. Since that time, Mr. Skinner’s condition has fluctuated in intensity and his prescribed medications and treatment plan have evolved accordingly. Mr. Skinner was under Dr. Okonkwo’s supervision through an out-patient program until he was discharged back into the care of his family physician, Dr. Wong.
[7] I find that a material change in Mr. Skinner’s circumstances took place as of July 10, 2015 arising from his mental state and its diagnosis by Dr. Okonkwo as “Bipolar Disorder Type 2.” For clarity, in reaching this conclusion, I have relied solely upon the notes and records of Dr. Okonkwo. My reasons in doing so are addressed at a later point in this Endorsement.
[8] Counsel for Ms. Skinner argues that the material change in circumstances arises earlier – as of April 2011 when Mr. Skinner returned to work at Velocity Mechanical Inc. – on the basis that his hourly rate changed from $30 to $35.38. The $30/hour figure arises from the Bean Order, and Ms. Skinner testified that in 2009 the going rate for Sheetmetal Journeymen was between $24/hour and $30/hour. The Epstein Order does not specify an hourly rate, but reduced support to accord with Mr. Skinner’s agreed-upon annual income of $54,800. If that income is predicated upon a consistent 37.5-hour workweek (which is the calculation proposed by Ms. Skinner), then his hourly rate would be $28.10, calculated as $54,800 ÷ (37.5 hours/week x 52 weeks). This is within the range that was before Bean J. in 2009. The increase in hourly rate from $30 to $35.38 is approximately 18%. If Mr. Skinner’s hourly rate in April of 2010 is used comparatively, the year-over-year increase is approximately 26%.
[9] A wage increase of either 18% or 26% is significant for any employee, and I therefore find that, as of April 1, 2011, a material change in Mr. Skinner’s financial circumstances occurred. Counsel for Ms. Skinner argued that her client was unable to bring this matter back to court for review until this litigation was commenced by Mr. Skinner due to his failure to disclose this increase in his hourly rate and that this blameworthy conduct justifies a retroactive variation to support dating all the way back to April 1, 2011 in accordance with the direction from the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 and its companion cases. I agree.
(ii) Mr. Skinner’s Income for Support
[10] Questions arise around Mr. Skinner’s income for the years 2011 through 2017:
a. Does Mr. Skinner bear a heavier burden of proving his income on the basis that the court originally imputed income to him?
b. Was Mr. Skinner under-reporting income or underemployed in any year?
c. What income is properly attributable to him in each year?
(a) Historic Imputation of Income
[11] Much discussion was had regarding the reasons of Pazaratz J. in Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, and specifically the analysis of imputed income in the context of a Motion to Change. In that case, Pazaratz J. set out a two-stage test to address imputation of income by the court in the original Final Order and the application of any calculations employed therein to the review triggered by the Motion to Change. That analysis is not applicable to this case, however, because although the income employed in the Bean Order was imputed to Mr. Skinner, his income as set out in the Epstein Order was clearly based upon Mr. Skinner’s evidence regarding his new employment and the agreement between the parties. In his reasons, Epstein J. writes:
It appears that the Respondent had no work thereafter until he obtained employment with Velocity Mechanical Inc. on December 23, 2009 where he expects to earn $54,800.00 annually. [see Endorsement dated April 27, 2010 at p. 3.]
It seems to me that the parties by agreeing to recalculate the amount of child support to be paid have taken the position that the reduction in income from the imputed amount of $57,600 to $54,800 represents a material change that can afford some relief to the Respondent in terms of his support payments. That being the case I am inclined to recalculate his spousal support obligation as well. [see Endorsement dated April 27, 2010 at p. 6.]
[12] As the $54,800 figure was found by Epstein J. to be Mr. Skinner’s annual income as of April 27, 2010 based on the evidence before him and on the agreement of the parties at that time, it cannot be said that this income was “imputed” to Mr. Skinner. Consequently, Trang and similar cases regarding the payor’s burden of convincing the court that imputation is no longer appropriate do not apply.
(b)(i) Was Mr. Skinner under-reporting his income in any given year?
[13] Ms. Skinner attests that Mr. Skinner worked for cash during their marriage and that his résumé confirms that he has experience “sub-contracting residential work from various companies doing renos, new construction and retro fits.” In support of her position that Mr. Skinner was under-reporting his income, Ms. Skinner points to the numerous unexplained voluntary payments made to his credit which cannot be traced through his bank statements: see Appendix “A” for a list of same.
[14] The payments are coded by the Family Responsibility Office (the “FRO”) as “telebanking” or “receipt” without further explanation. The timing of these payments coincides with the timing of Mr. Skinner’s employment, usually with Velocity Mechanical Inc., through the summer months of each year. It seems that during these periods, and although Mr. Skinner was consistently re-employed by Velocity Mechanical Inc., the FRO was not pursuing enforcement through employment. Without the “telebanking/receipt” payments, only minimal amounts would have been received through the FRO. Notably, none of the “telebanking/receipt” amounts prior to 2018 are round numbers, nor are any two payments in the same amount. The payments do not appear as transactions in the bank statements for Mr. Skinner’s accounts through the Bank of Montréal.
[15] Mr. Skinner’s position is that the payments were deducted from his income at source by his employer or diverted from his income tax refunds. He has provided no records from his employer to confirm any transactions processed through their account(s). The figures noted as received by the FRO do not correspond to any refunds as set out on his Notices of Assessment. I therefore am left with Mr. Skinner’s bald assertion on this point.
[16] Although Mr. Skinner has no corroborating evidence before the court, even if I were to make a credibility finding against Mr. Skinner, Ms. Skinner’s position that these amounts are indicative of additional income sources is nonetheless speculative. It is just as likely that there is an error in the use of the FRO’s notations, or that the notations somehow represent the mechanism of payment by Mr. Skinner’s employer directly to the FRO. Without clear confirmation from the FRO as to the basic source of the payments that were received, the Director’s Statements fall short of being useful tracking records for payments in complicated situations such as this one. I cannot determine that these amounts were sourced either from Mr. Skinner’s recorded employment with Velocity Mechanical Inc. or from some unreported income source, as the information provided is inconclusive.
[17] I therefore have no evidentiary foundation upon which to base a finding that Mr. Skinner was under-reporting his income.
(b)(ii) Was Mr. Skinner “intentionally underemployed” at any point in time since April 2011?
[18] Although Mr. Skinner’s counsel argued that he maximized his earning capacity when viewed through the lens of his mental health diagnosis, and Ms. Skinner’s counsel focused on the historic imputation of income to Mr. Skinner as justifying the court’s imputation of income today, the analysis of “intentional underemployment” was not directly addressed by either side. This analysis is, however, the central issue to the parties’ argument about the income to be attributed to Mr. Skinner for the purposes of determining his support obligation.
[19] In Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, Rouleau J.A., on behalf of the Court of Appeal for Ontario, reviewed the application of s. 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175. Section 19(1)(a) of the Federal Child Support Guidelines contemplates the imputation of income to an intentionally under-employed parent. It reads:
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable education or health needs of the spouse;
[20] It is clear from the provision that the analysis takes two steps: (1) the payor parent must be intentionally underemployed; and (2) if so, the underemployment may be excused due to childcare obligations or the educational or health needs of the payor parent.
[21] Referencing the Court of Appeal’s earlier decision in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A), Rouleau J.A. confirmed at para. 26 of Lavie that there is “no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.”
[22] Mr. Skinner attested to the arrangement that was made with his primary employer, Velocity Mechanical Inc., to manage his ability to work as limited by his mental illness. His evidence is that work was available to him when he was able to work. Provided that this summary of Mr. Skinner’s relationship with Velocity Mechanical Inc. is accurate, Velocity Mechanical Inc. is to be commended for accommodating an obviously-valued employee’s health needs. However, as noted by Rouleau J.A., at the first stage of the analysis, the reason for the underemployment is irrelevant. Mr. Skinner was intentionally underemployed from 2011 through to 2018.
[23] This case revolves entirely around the second stage of the test, namely whether Mr. Skinner is excused from intentional underemployment due to his health needs.
[24] Before tackling this substantive issue, I must address the opinion evidence relied upon by Mr. Skinner as contained in the notes and records of Drs. Wang and Okonkwo. Each of these two physicians are tendered as witnesses who happen to be experts and who provide evidence of their observations in their capacities as Mr. Skinner’s treating physicians. Importantly from an evidentiary stand-point, no reports are provided and neither doctor has sworn an affidavit. I therefore do not have the benefit of their direct testimony. Each doctor’s notes were disclosed in the course of this matter and purport to be business records. It is unclear on the record whether notice was served as contemplated by s. 35(3) of the Evidence Act, R.S.O. 1990, c. E.23. However, some of the notes are attached as exhibits to Ms. Skinner’s Affidavit sworn November 12, 2019, and thus I conclude that Ms. Skinner was in receipt of the notes at least by that date, which is more than the seven days’ notice contemplated by the Evidence Act. No submissions were made by either counsel regarding the hearsay content of the notes, their admissibility, or the weight they are to be given. I am mindful of the over-arching principle of rule 2(3) of the Family Law Rules, O. Reg. 114/99, however, and in discharging my duty to deal with this case justly in a manner that is appropriate to its complexity and the expense and time involved, I find that the notes are business records and are therefore admissible.
[25] The question of weight to be attributed to each of the sets of notes remains to be answered. Although Mr. Skinner is not at fault for the misconduct of his family physician in relation to other patients, I cannot ignore the fact that Dr. Jodie Wang is currently under investigation by her governing body for falling “below the standard of practice” for her “overall approach and treatment plan” in treating another patient. In the face of that ongoing situation, I cannot satisfy myself that her analysis of Mr. Skinner’s health needs is of any better quality. Further, Dr. Wang is a generalist having no special knowledge of mental health issues. I therefore assign no weight to the records of Dr. Wang.
[26] Dr. Cletus Okonkwo is the psychiatrist assigned to care for Mr. Skinner from his first referral to the adult out-patient program when he attended at Grand River Hospital to seek treatment. It is Dr. Okonkwo who diagnosed Mr. Skinner with “Bipolar Affective Disorder Type 2” on July 10, 2015; renewed that diagnosis on February 12, 2016; and followed Mr. Skinner’s treatment and adjusted his medications until he was discharged back into the care of his family physician. I assign considerable weight to his notes as an accurate record of Mr. Skinner’s condition and treatment plan over the relevant period of time.
[27] Importantly, it would appear that Dr. Okonkwo was never asked to comment either upon Mr. Skinner’s employability or upon the interplay between Mr. Skinner’s condition and his alcohol and marijuana consumption. Ms. Skinner argued there is no evidence of the total hours that Mr. Skinner could work considering his condition. She points to Dr. Okonkwo’s note dated June 17, 2015 wherein he records that Mr. Skinner “drank on Tuesday and subsequently started feeling bad” and he advises Mr. Skinner “not to drink alcohol or use any substances including marijuana in the next one month so that we can stabilize his mood.” Mr. Skinner acknowledges having self-medicated with alcohol and marijuana. Counsel did not point me to any other similar note by Dr. Okonkwo. This note pre-dates Dr. Okonkwo’s diagnosis. Therefore, while it is entirely possible that alcohol and marijuana use contributed to Mr. Skinner’s overall mental illness, thus making some of it self-inflicted, I find that this contribution was no longer a consideration after July 10, 2015 when Dr. Okonkwo rendered his diagnosis.
[28] Ms. Skinner makes it very clear that she does not believe that there is any medical reason why Mr. Skinner cannot work. In her Affidavit, she points to a pattern which she attributes to Mr. Skinner’s intentional avoidance strategy. She says that he would cease working when the FRO caught up with enforcement of his support obligations. A comparison of Mr. Skinner’s Records of Employment with the FRO Director’s Statement does not bear this out. Such an analysis does, however, show two trends developing. The first trend runs from 2011 through 2014 and shows employment at an average of 31.4 hours per week from spring through to late summer in each year. The second is for the years 2015 (when diagnosis and treatment began) through 2018 and shows an increasing number of total hours worked, from 644 in 2015 to more than 1,000 in 2018. While he continues to work approximately 31.4 hours weekly, the number of weeks worked increases significantly. These trends show that Mr. Skinner’s time spent working annually increased following his diagnosis and treatment plan in 2015 (note that the bulk of his weeks worked in 2015 start in September). He continued to be under Dr. Okonkwo’s primary care throughout 2016, and the latest of Dr. Okonkwo’s notes referenced in Mr. Skinner’s Affidavit is dated August 12, 2016. Although correlation does not prove causation, the observable trend tends to support Mr. Skinner’s contention that he has been able to work more consistently since he overcame the stigma of seeking medical help for his mental illness and stabilized his condition.
[29] Based on the foregoing, I conclude that Mr. Skinner is excused from his intentional underemployment for the years 2011 through 2016. Thereafter, there is insufficient evidence for the years 2017 and 2018 to support a conclusion that he was unable to work full-time hours and that he continued to be employed to the best of his ability following the diagnosis and implementation of the treatment plan.
(c) What income should be properly attributed to Mr. Skinner?
[30] Mr. Skinner asserts that he has been employed to his full capacity having regard to his mental illness, and therefore takes the position that his income as reported to the Canada Revenue Agency in each year should govern.
[31] Ms. Skinner takes the position that income should be imputed to Mr. Skinner at the rate of 37.5 hours weekly based upon his hourly wage at Velocity Mechanical Inc. earned by him in each year. She asks the court to impute an income to Mr. Skinner ranging from about $65,000 to about $73,000 annually. She notes that Mr. Skinner was employed at the hourly rates used in her calculations, and therefore his earning capacity based upon full-time hours for the duration of each year is readily ascertained. Her calculations are found at page 13 of her Affidavit sworn November 12, 2019 at Volume 6, Tab 2 of the Continuing Record.
[32] Because I have excused his intentional underemployment for the years 2011 through 2016, I find the appropriate disposition is to apply Mr. Skinner’s income as reported to the Canada Revenue Agency for those years. With respect to the years 2017 and 2018, I note that Ms. Skinner’s position is that Mr. Skinner should be working 37.5 hours per week. In 2017 and 2018 combined, Mr. Skinner worked a total of 1,738 hours over 67 weeks of employment. This is an average rate of 26 hours per week. I am mindful of the market-driven nature of Mr. Skinner’s employment in the construction industry and find that an appropriate income to be assigned to him for the years 2017 and 2018 is one based upon an average 35-hour work week for 50 weeks per year. To calculate Mr. Skinner’s income for those years, I use his hourly rates of pay from his employment with Velocity Mechanical Inc. for 2017 ($33.43) and JAS 3 Heating Cooling Refrigeration Ltd. for 2018 ($37.36). Finally, Exhibit “1” entered through Mr. Skinner’s viva voce evidence given on November 22, 2019 at my request, shows an hourly rate of $35.19, and his evidence was that his weekly hours with Velocity Mechanical Inc. range from 27 to 39. As with the years 2017 and 2018, I find that an appropriate income is based upon his actual hourly rate over an average 35-hour work week for 50 weeks per year. Therefore, I find that Mr. Skinner’s incomes for the purposes of support are as follows:
2011 $38,050
2012 $23,408
2013 $28,669
2014 $23,795
2015 $27,795
2016 $40,277
2017 $58,502.50 ($33.43/hour x 35 hours/week x 50 weeks/year)
2018 $65,380 ($37.36/hour x 35 hours/week x 50 weeks/year)
2019 $61,582.50 ($35.19/hour x 35 hours/week x 50 weeks/year)
(iii) Spousal Support
[33] The Spousal Support Advisory Guidelines (“SSAG”) calculations, using the parties’ actual earned incomes for the years 2011 through to 2018, are found as Exhibit “N” to Mr. Skinner’s Affidavit sworn October 7, 2019 at Volume 4, Tab 1 of the Continuing Record. The only result which shows any amount payable throughout these years is in 2011 when the “High” point in the range shows a figure of $81 monthly. The original Bean Order relied upon the “High” value of the range as appended to Ms. Skinner’s Form 23C Affidavit for Uncontested Trial. Epstein J. reduced spousal support to $800 monthly in 2010, but provided no insight as to the location of that amount within the SSAG range. I find that Bean J.’s reasoning on this point should continue, such that the “High” value should govern for 2011, meaning that Mr. Skinner’s liability for spousal support for the years 2011 through 2018 is $729 (being $81 monthly x 9 months for 2011). The SSAG calculations also set out the duration of spousal support as being between 4.75 and 12 years post-separation. Although I am told the parties disagree upon the date of separation, I received no submissions on this point. I note that Ms. Skinner completed a course of education that has significantly improved her income earning capacity and that the 2018-2019 academic year was Hailey’s fourth year of highschool. I therefore find that Ms. Skinner’s entitlement to spousal support, whether compensatory or otherwise, ended as of June 30, 2019.
[34] Based on all of the foregoing, I find that Mr. Skinner’s liability for spousal support for the period April 1, 2011 through December 31, 2019 is fixed in the amount of $729.
(iv) Child Support
[35] There is no dispute that both children continued to be entitled to receive financial support from their father until their eighteenth birthdays. As each of Steven and Hailey reached the age of eighteen in the month of May, in 2016 and 2019, respectively, I extend their entitlement to child support to the end of June at a minimum to accord with the conclusion of the regular highschool academic year. Thus, there is no question that child support was payable by Mr. Skinner for two children for the period from April 1, 2011 through to June 30, 2016, which amounts are as follows:
2011 $568 x 9 months = $5,112 (based on $38,050)
2012 $351 x 12 months = $4,212 (based on $23,408)
2013 $418 x 12 months = $5,016 (based on $28,669)
2014 $356 x 12 months = $4,272 (based on $23,795)
2015 $406 x 12 months = $4,872 (based on $27,795)
2016 $584 x 12 months = $7,008 (based on $40,277)
TOTAL $30,492
[36] Following each child’s eighteenth birthday, Mr. Skinner takes the position that the children no longer qualify for child support under the analysis required by the court’s interpretation of the definition of “child of the marriage” in s. 2(2) of the Divorce Act. As noted above, although these parties continue to be married, the Bean Order and the Epstein Order were both decided by the Ontario Court of Justice under the FLA. Section 31 of the FLA reads:
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.
(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.
[37] The language of the FLA is considerably different from that of the Divorce Act. Not surprisingly, however, similar themes emerge in the caselaw as to the evidence required to demonstrate that an adult child continues to qualify for support on the basis of attendance at post-secondary education. As the Unified Family Court’s jurisdiction includes both federal and provincial legislation, either or both definitions could apply. Either way, the onus of establishing that an adult child continues to qualify for support is on the party seeking the support: see Whitton v. Whitton, 1989 CanLII 8868 (ON CA), [1989] O.J. No. 1002 (Ont. C. A.) at unnumbered para. 5 referencing Law v. Law, (1986), 1986 CanLII 6291 (ON SC), 2 R.F.L. (3d) 458 at p. 462. The parties agree that both Steven and Hailey continue to reside primarily with Ms. Skinner.
[38] As the parties’ counsel both focussed their submissions on the Divorce Act, I will apply s. 2(2) of the Divorce Act. At para. 13 of Rosenberg v. Rosenberg, 2003 CanLII 2227 (ON SC), [2003] O.J. No. 2962 (Ont. S.C.), Chapnik J. set out a list of factors helpful to the analysis of whether an adult child continues to qualify for support.
[39] The following is my assessment of the evidence addressing the Rosenberg factors, firstly for Steven:
a. Attendance at a post-secondary institution: Proof of Steven’s enrolment at the University of Waterloo for the period from September 1, 2016 through to December 31, 2019 is within Exhibit “B” to the Applicant’s Affidavit sworn November 12, 2019 (Volume 6, Tab 2 of the Continuing Record).
b. Whether the course of study is full-time or part-time: See (a), above, which confirms that Steven’s enrolment is on a full-time basis.
c. The availability of student loans or other assistance: No information.
d. The child’s career plans: No information.
e. The child’s ability to contribute financially: No information.
f. The child’s age: Steven was eighteen when he started at the University of Waterloo and is twenty-one years of age today.
g. The child’s past academic performance: Steven’s Undergraduate Unofficial Transcript for the period from September 1, 2016 through to December 31, 2017 is attached within Exhibit “B” to the Applicant’s Affidavit sworn November 12, 2019 (Volume 6, Tab 2 of the Continuing Record). It shows grades ranging from 52% to 75% and confirms his Academic Standing as “Satisfactory.”
h. What, if any, plans the parents had made for education costs: No information.
i. A child’s act in unilaterally terminating the relationship with the support payor: Mr. Skinner now acknowledges the impact that his historically-unaddressed mental health issues had on his deteriorating relationship with Steven and Hailey. Although he raised examples of events he says were orchestrated by Ms. Skinner to minimize his parenting role in the early post-separation years, such do not rise to the level of alienation, nor is there any evidence clearly setting out Steven’s repudiation of the relationship.
[40] I note that the evidence available to me does not address Steven’s actual expenses or the sources of funding available to him through employment or otherwise, but I am nonetheless persuaded by his “Satisfactory” standing in a “Full-Time” course-load as described on his Undergraduate Unofficial Transcript for the period ending December 31, 2017. I conclude that Steven continued to be a “child of the marriage” and eligible for support throughout 2017. I do not have enough evidence to reach the same conclusion for 2018, and therefore support for Steven will not be payable for 2018 or 2019.
[41] The Rosenberg analysis must also be applied to Hailey, who is doing a “fifth year” of highschool:
a. Attendance at a post-secondary institution: Not applicable.
b. Whether the course of study is full-time or part-time: Unknown, as the single document provided is in the form of an email which does not set out sufficient information regarding course and attendance obligations (see Exhibit “A” to the Applicant’s Affidavit sworn November 12, 2019 at Volume 6, Tab 2 of the Continuing Record).
c. The availability of student loans or other assistance: Not applicable.
d. The child’s career plans: Hailey intends to be a dance teacher (see para. 28 of the Applicant’s Affidavit sworn November 12, 2019 at Volume 6, Tab 2 of the Continuing Record).
e. The child’s ability to contribute financially: No information.
f. The child’s age: Hailey turned eighteen years of age in 2019.
g. The child’s past academic performance: No information.
h. What, if any, plans the parents had made for education costs: No information.
i. A child’s act in unilaterally terminating the relationship with the support payor: I have no clear evidence about the current relationship between Mr. Skinner and Hailey, or whether any aspect of that relationship can be salvaged in the future. As noted above, Mr. Skinner understands that his undiagnosed mental illness has had a lasting impact upon his relationship with both children in any event.
[42] Hailey’s decision to take a fifth year of highschool does not connect with her career plans. Her mother indicates that she intends to be a dance teacher and run her own studio, but none of the online “e-courses” that she is taking in the fall 2019 academic term relate either to recreational instruction of any kind or to small business management. There is no information suggesting that her career path will require any further formal education whatsoever, although I am mindful of the possibility that she may be upgrading her academic record to better her post-secondary prospects, and one additional term of highschool is not unreasonable in that regard. I note that the timing of the conclusion of the term offering the online e-courses is not apparent from the record, and I therefore attribute the same timing as post-secondary education, namely a fall term concluding in mid to late December. Based on the foregoing, I find that Hailey ceases to qualify for child support effective December 31, 2019.
[43] Child support is therefore payable by Mr. Skinner for both children of the marriage for 2017, and for Hailey alone for 2018 and 2019. Total child support payable for the period January 1, 2017 through to December 31, 2019 is calculated as follows:
2017 $870 x 11 months = $9,570 (based on $58,502.50 for two children)
2017 $891 x 1 month (December 2017 per November 22, 2017 Guidelines)
2018 $609 x 12 months = $7,308 (based on $65,380 for one child)
2019 $572 x 12 months = $6,864 (based on $61,582.50 for one child)
TOTAL $24,633
[44] My decision regarding termination of child support is subject to review and reinstatement effective January 1, 2020 based upon the production of sufficient evidence to satisfy the Rosenberg factors respecting either child’s post-secondary education and, in that regard, I would urge Ms. Skinner to obtain the full and open participation of the child(ren) for whom she seeks to reinstate payment of child support, as she now knows that this court will expect her to present more fulsome evidence.
(v) Arrears
[45] As set out above, I find that Mr. Skinner’s total obligation for child and spousal support for the period from April 1, 2011 to December 31, 2019 is $55,854 calculated as follows:
Spousal Support $ 729
Child Support 2011 – 2016 $30,492
Child Support 2017 – 2019 $24,633
TOTAL $55,854
[46] In support of an argument that this court ought not to exercise its discretion to reduce or rescind the arrears that have accumulated as owing by Mr. Skinner, Ms. Skinner cites different aspects of conduct that she urges me to find “blameworthy.” I address each of these aspects in brief as follows:
a. Failure to comply with the Order to maintain life insurance to secure support: With the greatest of respect, I believe that Bean J. erred in ordering Mr. Skinner to maintain life insurance without evidence of its cost and availability (see Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264 at para. 74). Ms. Skinner herself asks that Mr. Skinner be compelled to secure life insurance “noting the insurance as high risk due to mental health” but provides no information regarding the practicalities of such a request. It may well be that maintaining life insurance is an impossibility for Mr. Skinner other than anything extended to him through his employment. I therefore do not have sufficient information to conclude that Mr. Skinner’s failure to maintain life insurance is “blameworthy” conduct.
b. Failure to comply with the Order to maintain medical and dental benefits for the children and Ms. Skinner “whether through the course of his employment or otherwise”: Again, the only evidence before Bean J. on the uncontested trial was that Mr. Skinner was not employed at that time. He therefore could not have had medical/dental benefits available to him through employment, and there was no evidence before Bean J. confirming the cost or availability of such benefits to Mr. Skinner through other means. I cannot conclude that failure to maintain such benefits constitutes blameworthy conduct.
c. Failure to make ongoing financial disclosure: While Mr. Skinner admits that he did not provide ongoing financial disclosure, that factor supported the re-evaluation of his overall liability dating back to April of 2011. Had Ms. Skinner not sought to review the support liability as of the material change in Mr. Skinner’s hourly rate in April of 2011, my review might well have been limited to a material change date of July 10, 2015, and in that regard Mr. Skinner’s failure to make disclosure could have inured to Ms. Skinner’s benefit financially. In any event, this is not a situation where a payor enjoyed an ever-increasing standard of living denied to the payor’s children by virtue of a failure of financial disclosure, and therefore Mr. Skinner’s conduct, although blameworthy, is not so egregious to cause me to refuse to exercise my discretion.
d. Failure to contribute to expenses: A review of the FRO records shows that Ms. Skinner took steps to file expense arrears calculations with that agency, which is her mechanism for enforcement. No link has been demonstrated in this matter between the enforcement mechanism and a payor’s alleged blameworthy conduct.
e. Failure to bring Motion to Change in timely fashion: Having regard to Ms. Skinner’s own position that the material change in circumstances took place in April of 2011, this alleged example of blameworthy conduct is moot.
[47] I would also point out that Ms. Skinner’s extreme disdain for her estranged spouse is palpable and poisons her Affidavit materials. She attaches photos obtained from a non-party’s Facebook account and writes: “[Mr. Skinner] also coached his niece’s baseball team but broke the children’s heart and abstain from being in involved in their lives or interest. They made craft and begged for the Respondent to come to their recitals. He was a no show [sic.].”
[48] Ms. Skinner is vicious in minimizing Mr. Skinner’s diagnosed psychiatric condition in her self-proclaimed “rant” email sent May 18, 2019. To contextualize her statement, I note that she has been employed as a receptionist at Grand River Hospital for several years. She declares:
I work in mental health I see and work with actual real mental health patients every day. You my dear do not fall under that category…
If you are claiming to be this ill then we will be needing a restraining order against you to stay away from the kids forever. If you are this ill that you can’t work and feed your kids and can’t function then you can’t be trusted around my kids who knows what could happen so a restraining order will need to be placed.
[49] Ms. Skinner further makes unfounded comments such as: “Now that he is working again, [Mr. Skinner] spends between $1,000 to $1,200 per month on alcohol. … The Respondent should not have the benefit of splurging at the LCBO and bars and not pay child support for his children.” This is a gross exaggeration and blatant misrepresentation of the information contained in Mr. Skinner’s bank statements. It underscores Ms. Skinner’s willingness to manipulate the facts to fuel her anger.
[50] Finally, I note that Ms. Skinner chose to place the telephone call to her estranged husband to remind him of an upcoming appointment with Dr. Okonkwo which was scheduled for January 16, 2016. I cannot imagine what motivation – other than sheer petulance – would cause Ms. Skinner to believe that it was appropriate for her to place that telephone call. It should surprise no one that Mr. Skinner would conclude that she had access to his medical records as a result.
[51] In exercising my discretion regarding the resolution of this matter, I do not accept Ms. Skinner’s position that Mr. Skinner is solely to blame for this situation. Both parties must accept the blame for continuing this highly toxic relationship long after their marriage was over. It comes as no surprise that both children – now adults – have been wrapped up in this conflict, and it is my hope for this family that, with the financial issues resolved for the time being, a period of calm will prevail.
[52] Based on all of the foregoing, I decline to exercise my discretion to rescind the arrears of support in their entirety, but I choose to exercise my discretion to reduce the arrears of child support in accordance with the recalculations made. Having regard to Mr. Skinner’s Financial Statement sworn October 7, 2019 and representations made on his behalf in argument, I order that he is to pay the arrears at the rate of $1,000 monthly until paid in full.
[53] Final Order to go:
Arrears of child and spousal support, inclusive of divisible special and extraordinary expenses for the children, accumulated to March 31, 2011 are fixed in the amount of $51,220.19 as per the adjusted records of the Family Responsibility Office as at April 12, 2011 (being $52,844.19 less $1,624 accrued on April 1, 2011).
Child and spousal support payable by Michael Wayne Skinner to Lisa Ellen Skinner for herself and the children, namely Steven Thomas Ronald Theodore Skinner born May 12, 1998 and Hailey Ellen Skinner born May 16, 2001, for the period from April 1, 2011 through to December 31, 2019 is fixed in the total amount of $55,854.
Effective November 22, 2019 and for the period ending December 31, 2019, the total of all child and spousal support payable by Michael Wayne Skinner to Lisa Ellen Skinner for herself and the children, namely Steven Thomas Ronald Theodore Skinner born May 12, 1998 and Hailey Ellen Skinner born May 16, 2001, is therefore $107,074.19.
The Director of the Family Responsibility Office shall apply all amounts received to the credit of the Support Payor after April 1, 2011 to the sum of $107,074.19 to determine the net amount of arrears of support payable by Michael Wayne Skinner to Lisa Ellen Skinner.
The net amount of arrears of support, as calculated by the Director of the Family Responsibility Office in accordance with the terms of this Order, shall be paid at the rate of $1,000 monthly commencing January 1, 2020 and payable on the first day of each month thereafter until paid in full.
Support Deduction Order to issue.
In the event that either of children, namely Steven Thomas Ronald Theodore Skinner born May 12, 1998 and Hailey Ellen Skinner born May 16, 2001, should be enrolled in a full-time course of post-secondary education on or after January 1, 2020 and should be under the age of twenty-three (23) years, child support shall be reviewable as of January 1, 2020. No specific material change in circumstances need be pleaded in support of such a review, but fulsome evidence is required.
Costs
[54] If counsel can agree upon the disposition of costs, they shall so advise the court by Monday, December 16, 2019 by email addressed to the Trial Coordinator. Alternatively, if counsel cannot agree, each shall provide costs submissions not to exceed five pages in length plus Bills of Costs (and Offers to Settle, if applicable) to be appended thereto. Submissions are to be submitted to my attention at Kitchener.Superior.Court@ontario.ca by Friday, January 10, 2020.
J. Breithaupt Smith J
Date: December 2, 2019
Schedule “A”
A review of the Statement from the Family Responsibility Office (“FRO”) records payments received through “telebanking” or “receipt” as follows:
2011
2012
May 2
$1,012.59
August 13
$955.00
May 30
$1,975.48
August 20
$482.87
June 17
$1,884.00
August 24
$481.91
July 19
$1,999.97
September 10
$415.00
August 15
$1,087.48
September 14
$344.77
September 23
$431.18
2013
2014
July 10
$2,120.52
None
August 14
$2,080.91
September 12
$1,456.71
2015
None
2016
January 13
$2,573.00
2017
February 3
$1,207.81
August 17
$2,181.82
June 3
$2,237.34
August 25
$1,732.46
October 17
$2,658.87
2018
2019
February 19
$1,000.00
June 21
$520.00
March 1
$600.00
March 15
$450.00
March 29
$350.00