COURT FILE NO.: FC-01-1249-02

DATE: 2019/02/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Linda Micheline Glazer

Applicant

– and –

Thomas Hill

Respondent

Applicant, Self-Represented

Respondent, Self-Represented

HEARD: October 16, 2018

Reasons for Decision

Justice P. MacEachern

[1] This is a motion to change with respect to child support. The Applicant, Ms. Glazer, seeks an order that the Respondent, Mr. Hill, owes her significant child support of at least $154,000 dating back to 2002. Mr. Hill opposes these claims and seeks to terminate child support now that the child has graduated from college.

[2] For the reasons set out below, I order that the child support is increased effective May 1, 2016, that the child support is terminated effective May 31, 2018, fix the s.7 expenses that are owed, and dismiss Ms. Glazer’s claim for other retroactive child support and contribution towards other s.7 expenses.

Issues

[3] The main issues are as follows:

1. Should child support be terminated for the parties’ child, Thomas, now age 21, effective May 31, 2018?

2. What monthly child support, if any, is owed by Mr. Hill to Ms. Glazer for the period prior to May 31, 2018?

3. What amount, if any, is owed by Mr. Hill to Ms. Glazer for s.7 expenses for the period prior to May 31, 2018?

[4] There are other issues that are raised in these motions, including Ms. Glazer’s position that this matter should be set for trial and not determined on a motion, which I address at the outset below, and Ms. Glazer’s request for a restraining order, which I also address.

[5] This motion to change is pursuant to the Divorce Act[^1]. The Divorce Order of Justice Ray is dated January 29, 2004 and incorporated corollary relief, including child support. The child support provisions were varied by Final Order of Justice Smith dated April 17, 2013.

(1) Should these proceedings be determined at trial?

[6] Ms. Glazer argued that the issues in this motion to change should not be determined on a motion, but should be determined at trial. She states a trial is needed because she has proof that contradicts Mr. Hill’s submissions, which will be available at trial. Ms. Glazer also states that she wants to have a trial to avoid years of court process.

[7] Mr. Hill states a trial is not necessary and that this matter should proceed by motion, as it was set down for a motion in accordance with both the Family Law Rules[^2] (Rule 15) and Master Fortier’s endorsement, dated May 18, 2018. Master Fortier also ordered Ms. Glazer to provide disclosure within 30 days of all of the s.7 expenses she was claiming, including receipts.

[8] The Family Law Rules provide for motions to change a final order to be determined by way of a motion (Rule 15). This is subject to the power of the court to give directions for how the matter should proceed, including by directing a trial if warranted, if the court is of the opinion that a motion cannot be properly dealt with because of the material filed (Rule 15(26)).

[9] The primary objective of the Family Law Rules is to deal with cases justly, which includes ensuring that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases (Rules 2(2), (3), (4)).

[10] Ms. Glazer was specifically directed to familiarize herself with the Family Law Rules by Master Fortier’s endorsement dated May 18, 2018. Ms. Glazer did not seek to have this matter proceed as a trial either at the case conference or by bringing a procedural motion prior to the hearing of this motion.

[11] One of the reasons Ms. Glazer advances for needing a trial is so that she can obtain Mr. Hill’s income information for 2014, 2015 and 2016. I do not find this is a reason to have a trial. Mr. Hill has filed a certificate of financial disclosure that states he has provided this income information to her. Copies of Mr. Hill’s Notices of Assessment for these years have been filed. The Family Law Rules provide for a party to seek an order at a case conference or by bringing a motion for needed disclosure. Ms. Glazer did not do this, either at one of the two case conferences held before this motion or in an earlier motion. If Ms. Glazer was seeking additional information, she should have taken steps to seek this information before this hearing.

[12] Although Ms. Glazer alludes to there being crucial credibility issues with respect to her claims, she has not sought to test Mr. Hill’s evidence through questioning.

[13] Ms. Glazer has had ample opportunity to file all of her evidence. Ms. Glazer initiated this motion to change. Mr. Hill’s responding affidavit was provided in January of 2018, and his updated affidavit, sworn August 13, 2018, which largely mirrors his January 2018 affidavit, was served on her on September 10, 2018.

[14] Ms. Glazer also states that she wants to call her son to give evidence at trial. She has had the opportunity to provide this evidence by affidavit. Her son has in fact sworn an affidavit that Ms. Glazer has filed in support of her position. Both parties have filed extensive material before me, including Ms. Glazer’s sworn affidavits dated December 20, 2017 and September 2, 2018.

[15] Neither the issue of what child support is payable nor contribution to s.7 expenses raise significant credibility issues. Ms. Glazer’s claim to set aside the 2004 Order (and the 2013 Order) also do not raise issues that require a trial, for the reasons set out below.

[16] I do not find that a trial is necessary to deal with this motion to change. I find that I am able to reach a fair and just determination on the merits on this motion – the process allows me to make the necessary findings of fact, allows me to apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than extending this process to include a trial.

(2) Should child support be terminated for the parties’ child, Thomas, now age 21, effective May 31, 2018?

[17] Pursuant to the Order of Justice Smith dated April 17, 2013 (“the 2013 Order”), Mr. Hill is required to pay monthly table child support to Ms. Glazer in the amount of $1,159 per month for the support of their child, Thomas, who is now 21 years of age. Mr. Hill is also required to pay 70% of Thomas’ s.7 expenses. Ms. Glazer is required to provide Mr. Hill with the original receipts by registered mail for all s.7 expenses claimed by her.

[18] Mr. Hill seeks to terminate child support effective May 31, 2018. It is not contested that Thomas completed his three year college diploma program in May of 2018.

[19] Ms. Glazer agrees that child support should terminate for Thomas effective June 1, 2018, although she states that she does not want to implement this change until all of the other issues are also addressed.

[20] Given Ms. Glazer’s acknowledgment that Thomas is no longer a child of the marriage pursuant to the Divorce Act[^3] and is therefore no longer entitled to child support, I order that Mr. Hill’s obligation to pay child support to Ms. Glazer for the support of Thomas pursuant to paragraph 1 of the April 17, 2013 Order is terminated effective May 31, 2018.

[21] In addition:

a) Mr. Hill’s obligation to contribute to s.7 expenses for Thomas pursuant to paragraph 3 of the April 17, 2013 order is terminated effective May 31, 2018; and

b) Mr. Hill’s obligations to secure his child support obligation through his Manulife life insurance policy, including his obligation to designate Ms. Glazer in trust for Thomas as irrevocable beneficiary of this policy, as set out in paragraphs 5, 6 and 7 of the April 17, 2013 Order, are hereby terminated effective May 31, 2018. Mr. Hill shall be free to deal with his Manulife life insurance policy as he wishes, including cancelling the policy or designating a change in beneficiary.

(3) What monthly child support, if any, is owed by Mr. Hill to Ms. Glazer for the period prior to May 31, 2018?

[22] This issue involves two time periods which raise different issues. The first time period for possible adjustments to child support is after the 2013 Order. The second time period for possible adjustments is prior to the 2013 Order dating back to 2002.

(a) What adjustments should be made to the monthly child support for the period after April 17, 2013 to May 31, 2018?

[23] The 2013 Order does not provide for an annual review and adjustment process for child support. It does not require the annual exchange of income information.

[24] Under the Child Support Guidelines[^4], a payor of child support must provide income information upon written request by the other spouse, not more than once per year.

[25] Mr. Hill’s evidence, which is supported by correspondence and other documentation, is not contested by Ms. Glazer, and which I accept, is that in April of 2016, Ms. Glazer asked to increase child support based on Mr. Hill’s 2015 Notice of Assessment. Mr. Hill agreed to increase child support to $1,294.66, which is the table amount payable under the December 31, 2011 table based on Mr. Hill’s 2015 income of $154,276.

[26] Mr. Hill sent the updated child support amount to the Family Responsibility Office (“FRO”). FRO advised that they required an order to change the amount of child support it would process. Neither party obtained a variation order, and therefore FRO continued to collect the $1,159 monthly amount.

[27] On this basis, Mr. Hill agrees that the monthly child support should be increased effective May 1, 2016.

[28] In April of 2017, Mr. Hill provided his 2016 Notice of Assessment to Ms. Glazer. She did not ask for any adjustments to child support at that time.

[29] Accordingly, I find that the monthly child support payable by Mr. Hill to Ms. Glazer should be changed effective May 1, 2016 to $1,295, based on Mr. Hill’s 2015 income. I do not find a basis for changing the monthly child support prior to May 1, 2016, nor a basis for any subsequent changes.

(b) What adjustments should be made to monthly child support for the period prior to April 17, 2013?

[30] Ms. Glazer’s position is that Mr. Hill owes her significant child support for the period prior to the 2013 Order, including retroactive child support of $154,351. This figure is made up of monthly child support that Ms. Glazer states is owed for the period from April 1, 2002 to December of 2009, for a total of $101,469, plus interest of $52,882. To arrive at this total, Ms. Glazer calculates the monthly table child support amount at $1,102 per month until January of 2005 when it reduces to $551 per month and then fluctuates with Mr. Hill’s income thereafter.

[31] Mr. Hill’s position is that there is no child support owed for the period prior to April 17, 2013 due to the terms of the 2013 Order. The 2013 Order provides that Ms. Glazer’s claim to retroactive child support is settled on the basis of Mr. Hill paying the sum of $30,000. The payment of this sum was enforced through the Family Responsibility Office. Mr. Hill has filed documents supporting that this sum has been paid.

[32] There are a number of issues with how Ms. Glazer has calculated her $154,351 figure for retroactive child support. These include:

i) The child support is calculated as if the full table amount of child support was payable for the period from April 2002 to December of 2009, without explanation for why the full table amount would be payable when the child was in an approximately equal timesharing arrangement during this period.

ii) The child support amounts do not appear to account for the child support that was paid by Mr. Hill during this period, including the $30,000 that was paid under the 2013 Order.

iii) Ms. Glazer’s interest calculation of $52,882 has errors - the interest is calculated as if the full amount of the child support payments from 2002 to 2009 ($101,469) was due in 2003, when it was not. The interest is also calculated as being cumulative, which is not the case under the Rules of Civil Procedure[^5] except if provided by court order.

[33] I do not need to deal with the errors in Ms. Glazer’s calculations because I find that there is no retroactive child support owing for the period prior to April 17, 2013. In doing so, I reject Ms. Glazer’s main argument, which is that the 2013 Order should be set aside along with the January 29, 2004 Divorce Order (“the 2004 Divorce Order”). I do not find that there is any basis to set aside the 2013 Order. Pursuant to its terms, there is no child support owing prior to its date.

[34] Ms. Glazer’s argument that the 2013 Order should be set aside is not in her pleadings. Her pleadings contain her request to set aside the 2004 Divorce Order “and that the Original Minutes (signed on April 24, 2002) become the “Divorce Order””. Her argument is that the 2013 Order is premised on the 2004 Divorce Order, so must also be set aside with the 2004 Divorce Order.

[35] Both of the 2004 and 2013 Orders were based on Minutes of Settlement signed by both parties[^6]. Ms. Glazer states that she signed both sets of Minutes under duress. She seeks to go back to the “original Minutes” which were signed by the parties in 2002.

Legal Framework

[36] The 2004 and 2013 Orders were both issued on consent, pursuant to executed Minutes of Settlement[^7]. A consent order may be set aside on the same grounds as the agreement giving rise to the order[^8]. The traditional grounds for setting aside a contract are: mistake, misrepresentation, unconscionability, and incapacity, with all of their various subcategories.

[37] Ms. Glazer claims duress. Duress is a sub-category of unconscionability. In order for Ms. Glazer to rely on duress as the basis to set aside her consent, she must prove that she was subjected to illegitimate pressure to such a degree that her will was coerced. Ms. Glazer must establish, on a balance of probabilities, that illegitimate pressure put her in a position where she had no realistic alternative but to agree[^9].

[38] In Stott at para. 48, the Court of Appeal emphasized that:

“not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a 'coercion of the will', to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no 'realistic alternative' but to submit to it...duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress...”

[39] This reasoning in Stott was applied in the decision of the Court of Appeal in Taber where citing Stott, the court stated at para. 8 and 9:

“there is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis. However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to 'a coercion of the will' of the party relying on the concept.”

Analysis

[40] I do not find any merit to Ms. Glazer’s claims to have signed the 2003 and 2012 Minutes under duress. The evidence is insufficient, if not non-existent, to support such a finding on a balance of probability.

[41] There are significant weaknesses in Ms. Glazer’s claims to have acted under duress when she signed the 2003 and 2012 Minutes. A large part of Ms. Glazer’s claims of duress is based on her perception that the legal proceedings, themselves, created situations where she “had no choice” but to agree to the 2003 and 2012 Minutes.

[42] Ms. Glazer alleges that she has been physically, emotionally and financially exhausted by this legal process. Ms. Glazer blames Mr. Hill for the legal proceedings continuing past April 2002 and essentially views the continuing legal proceedings, and the money she spent on legal fees and other financial expenses for which she blames Mr. Hill, as amounting to duress. Ms. Glazer blames Mr. Hill for the impact of the legal proceedings on her – in her mind, “everything was over” when she signed the original Minutes in 2002 and it is only due to Mr. Hill’s wrongful and abusive conduct that the legal proceedings have continued.

[43] For example, in her evidence, Ms. Glazer presents the 2003 Amended Minutes as being the result of 21 months of her being “harassed, manipulated, coerced and controlled”, such that she only had two options “to put an end to the horrible nightmare”, being either to accept the ultimatum to sign the 2003 Amended Minutes, or take her son and live in hiding. This characterization ignores the reality that the 2003 Amended Minutes flowed from the assessor’s recommendations that the parties move to an approximately equal timesharing schedule, and the agreement in the 2002 Original Minutes to have parenting issues determined by the assessor acting as arbitrator.

[44] Ms. Glazer’s position also conflicts with the fact that since the 2014 Divorce Order Ms. Glazer has initiated both of the motions to change – one in 2009 that was resolved by the 2013 Order, and the second, being this motion to change, that began when Ms. Glazer served a notice of motion in February of 2016 seeking, among other relief, to set aside the 2004 Divorce Order. By order of Master MacLeod (now Justice MacLeod) dated April 19, 2016, Ms. Glazer’s motion was stayed but she was given permission to commence a motion to change. She was also ordered to pay costs of $150 which remain unpaid. On December 20, 2017, Ms. Glazer filed this motion to change.

[45] I do not find that Ms. Glazer’s allegations regarding the impact of these legal proceedings amount to pressure that rises to the level that the law regards as illegitimate.

[46] Ms. Glazer makes repeated allegations that Mr. Hill is abusive, manipulative and controlling. These allegations are general in nature, and lack specific detail and corroboration. Again, most of these allegations center on the impact of these legal proceedings. I do not find that these allegations support a finding of duress.

[47] There is also the issue of delay. Ms. Glazer has waited a long time to seek to have the 2004 Divorce Order set aside. If Ms. Glazer was going to assert that the 2004 Divorce Order should be set aside, she should have done so earlier, and particular before the 2012 Minutes were executed.

[48] Ms. Glazer’s explanation for her delay in seeking to set aside the 2004 Divorce Order is effectively that she has been under duress since 2002. Ms. Glazer has not provided any medical evidence that supports her claims to have been under duress for the past seventeen years. She has not provided any supporting evidence from any of her previous lawyers.

[49] Ms. Glazer has been represented by three different counsel for extended periods in this litigation. This litigation has been extensive. It commenced shortly after the parties separated in 2001 and has been ongoing for most of the time since. Mr. Hill states that there have been no less than twenty-two court appearances since separation. Although the court file is missing[^10], the parts of the court records that have been produced support the above. Ms. Glazer’s evidence also supports that she has incurred significant legal fees for her own legal representation, and that she is an experienced litigant.

[50] Ms. Glazer’s legal representation included most of the time during the period from 2009 to 2012, when she initiated the first motion to change the 2004 Divorce Order. This motion to change resulted in the 2012 Minutes and the 2013 Order. Ms. Glazer’s evidence is that during this period, in 2010, she expressly discussed with her counsel the option of seeking to have the 2004 Divorce Order set aside. Ms. Glazer’s delay in raising her claim of duress, given her litigation experience, her ability to obtain legal representation with respect to the issues, and her history of legal representation for significant periods, including while she initiated motions to change, also militant against a finding of duress.

[51] Ms. Glazer’s position is also inconsistent – in particular her request to replace the 2004 and 2013 Orders with the terms of the April 24, 2002 Original Minutes. Ms. Glazer does not take issue with the 2002 Original Minutes – in fact she seeks to have the 2002 Original Minutes replace the 2004 Divorce Order. The 2002 Original Minutes provide for the child to reside with Ms. Glazer and for Mr. Hill to pay child support of $1,102 per month. This is the basis upon which Ms. Glazer seeks retroactive child support, including how she calculates that $1,102 in monthly child support was owed until January of 2005.

[52] But the 2002 Original Minutes provide for other terms that Ms. Glazer ignores. The 2002 Original Minutes specifically provide that commencing May 1, 2002, Mr. Hill’s child support is reduced to $387 per month based on a reduction in Mr. Hill’s income. If Ms. Glazer’s request to reinstitute the 2002 Original Minutes is accepted, child support would be reduced as of May 1, 2002, but Ms. Glazer has not reflected this in her support calculations.

[53] The 2002 Original Minutes also specifically provide for parenting issues to be determined by an arbitration process. The 2002 Original Minutes provide:

“2.02 The parties agree to submit issues relating to access and related items to Ron Stewart for arbitration. The parties acknowledge that Ron Stewart is presently undertaking the preparation of an assessment report. As such Mr. Stewart shall be appointed as an arbitrator under the Arbitration Act and his assessment report shall constitute his decision relating to access and related items shall be only subject to appeal in accordance with the Arbitration Act. The arbitrator shall deal with, inter alia, pick up and drop off, holidays, disclosure regarding medical and school issues and right to attend certain events and decision making on issues regarding the child.”

[54] The 2003 Amended Minutes reflect Mr. Stewart’s recommendations that the child should move to an approximately equal timesharing arrangement. The 2003 Amended Minutes provide for the parties to have joint custody of Thomas, on an alternating weekly equal time schedule. Based on Mr. Hill’s income being $36,000 per year and Ms. Glazer’s income being $15,000 per year, no child support was payable given the timesharing and the parties’ respective expenses. Child support was subject to annual review and adjustment, if necessary, on May 1st in each year.

[55] It is not contested that Thomas did reside in an approximately equal timesharing arrangement up to November of 2009 when he began to solely reside with Ms. Glazer.

[56] Ms. Glazer does not address the arbitration clause in the 2002 Original Minutes – Minutes that she does not contest. Ms. Glazer is attempting to pick and choose what portions of the 2002 Original Minutes she likes, and seeks to enforce, while ignoring the implications of the portions she does not like.

[57] Ms. Glazer’s claim to have been under duress, either when she signed the Minutes in 2003 or in 2012, are also not supported by the communications she sent to Mr. Hill or to his counsel, which are aggressive, assertive of her position, and even threatening at times. In particular, Ms. Glazer’s letters to Mr. Hill’s lawyer dated May 4, 2012, July 27, 2012 and August 28, 2012 include threats that Ms. Glazer will institute criminal and other civil proceedings arising from her allegations of abuse if Mr. Hill does not accept her offer to settle. Ms. Glazer’s terms included her demand that “a new divorce order dated as of the original minutes of settlement” be taken out and that Mr. Hill pay her $77,000 in retroactive child support, 100% of s.7 expenses for Thomas until he turns 23, and transfer $100,000 in RRSPs. This correspondence not only counters Ms. Glazer’s claims of duress, but also confirms that she had raised the issue of setting aside the 2004 Divorce Order in the 2009 motion to vary proceedings, prior to signing the 2012 Minutes.

[58] The evidence before me also does not support a finding that the 2003 or 2012 Minutes substantially deviate from the legislation. Both Minutes appear to be reasonable resolutions of the high conflict legal dispute.

[59] Duress must be something more than stress associated with family litigation. There must be credible evidence demonstrating that Ms. Glazer was subject to intimidation or illegitimate pressure to sign the 2003 or 2012 Minutes, which underlie the 2004 Divorce Order and 2013 Order. The totality of the evidence before me does not meet this threshold. I dismiss Ms. Glazer’s claims to set aside the January 29, 2004 Divorce Order and the April 27, 2013 Order, as well as her claim for an order requiring Mr. Hill to pay her $154,351 in retroactive child support for the period from April 2002 to December 2009.

(4) What amount, if any, is owed by Mr. Hill to Ms. Glazer for s.7 expenses for the period prior to May 31, 2018?

[60] Ms. Glazer seeks an order requiring Mr. Hill to pay her the sum of $15,360.23 as his share of the child’s special and extraordinary expenses incurred pursuant to s.7 of the Child Support Guidelines[^11].

[61] The 2013 Order requires Mr. Hill to pay 70% of Thomas’ s.7 expenses. Ms. Glazer is required to provide Mr. Hill with the original receipts by registered mail for all s.7 expenses claimed by her.

[62] On May 18, 2018, Master Fortier ordered Ms. Glazer to provide Mr. Hill with disclosure within 30 days by providing him with a list of all s.7 expenses that she is claiming from May 2013 up to May 2018 along with copies of receipts. Ms. Glazer has not filed this material with the court, but Mr. Hill has provided a spreadsheet listing all of the expenses Ms. Glazer claims, and his position in response, along with supporting documents.

Legal Framework

[63] Section 7 expenses include extraordinary expenses for extracurricular activities and expenses for post-secondary education. Whether an expense falls under s.7 must be determined by taking into account the necessity of the expense in relations to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation (s.7(1)).

[64] Extracurricular activity expenses need to be extraordinary (s.7(1)(f)). Ordinary activity expenses are included in the table amount of child support.

[65] The definition of extraordinary is set out in s.7(1.1) of the Guidelines. An extraordinary expense means:

a) Expenses that exceed those that Ms. Glazer can reasonably cover, taking into account her own income (which she states is $28,000 per year[^12]) and the monthly child support being paid ($1,159 per month to April 30, 2016, then increasing to $1,295 effective May 1, 2016); or

b) If Ms. Glazer can afford the expense, expenses that the court considers are extraordinarily taking into account:

a. The amount of the expense in relation to Ms. Glazer’s income, including child support.

b. The nature and the number of the programs.

c. Any special needs and talents of the child.

d. The overall cost of the programs and activities.

e. Any other similar factor the court considers relevant.

[66] Even if an expense is extraordinary under s.7(1.1), it must be reasonable and necessary under s. 7(1).

[67] Ms. Glazer has the onus of proving that the expenses fall under s.7.

Analysis

[68] Ms. Glazer’s claims for contribution to s.7 expenses can be grouped into various categories. I address these claims on this basis.

a) Expenses incurred prior to October 23, 2012

[69] Ms. Glazer’s claims a number of expenses incurred prior to October 23, 2012. Mr. Hill claims that he has already paid his contribution to a number of these expenses. In any event, the 2013 Order expressly states:

“There are no arrears of retroactive s.7 expenses owing from one party to the other for any period prior to October 23, 2012.”

[70] These claims are barred due to the wording of the 2013 Order.

b) Computers, gaming equipment, paintball supplies, rubber gun and knives

[71] Ms. Glazer claims contribution to approximately $9,500 for computer and gaming equipment, paintball gun and supplies, and a rubber gun and knife purchased for Thomas after October 23, 2012.

[72] The rubber gun and knife make up approximately $100 of this total. Ms. Glazer states that these were needed for Thomas’ martial arts training.

[73] The expenses for the paintball gun and supplies make up approximately $550 of this total.

[74] The rest of this total is made up of computer and gaming equipment. This includes two computers plus one laptop, and various parts and upgrades of the CPUs, graphic cards and hard drives.

[75] Ms. Glazer argues that these expenses should be considered s.7 expenses as being extraordinary activity expenses and/or expenses for Thomas’ post-secondary education.

[76] The claim that these are post-secondary expenses relates only to the computer gaming purchases. Thomas completed a college diploma in game design in May 2018. He began this program in September 2015. A number of the computer related expenses were incurred prior to September of 2015 (including 2012, 2013 and 2014). In addition, Ms. Glazer has not provided supporting evidence that these expenses were reasonable and necessary due to the requirements of the college program. On the evidence before me, I am not satisfied that these expenses are reasonable and necessary expenses for Thomas’ post-secondary education.

[77] Ms. Glazer also argues that these expenses should constitute reasonable and necessary extraordinary activity expenses. She states her son is keenly interested in gaming and self-defense, which have been his extracurricular activities for many years. Ms. Glazer states that her son has been building computers for years – his dream being to become a game developer.

[78] Mr. Hill objects to these expenses as being excessive and not reasonable. One computer, with accessories, was purchased on October 26, 2012 for approximately $2,500. Mr. Hill argues that this should have been sufficient for Thomas’ reasonable computer needs. Mr. Hill also argues that a number of the expenses claimed are not extraordinary, but rather ordinary, such that additional contribution, beyond the monthly child support amount, should not be required. Lastly, he argues that a number of these expenses appear to have been gifts from Ms. Glazer to Thomas, particular for expenses that were purchased around the Christmas period or Thomas’ birthday.

[79] Based on the totality of the evidence before me, I am satisfied that the purchase of the computer on October 26, 2012, being $2,500, plus an additional amount of $500 for various accessories, for a total of $3,000, are s.7 expenses. I find that the remainder of these expenses is excessive (including the two other computers and various upgrades) or not extraordinary and/or appear to have been gifts (such as expenses claimed for keyboards, flash drives, cables, glue, paintball supplies, and rubber knife and gun).

[80] With respect to the $3,000 computer related expense I have found to be s.7 expenses, Mr. Hill claims that he contributed to this purchase in that Ms. Glazer used the $5,000 payment he made to her under the 2013 Order to purchase this computer. That payment was made to Ms. Glazer’s under the 2013 Order in satisfaction for her claim to retroactive support. That Ms. Glazer may have used the same funds to purchase the computer does not entitle Mr. Hill to a credit.

[81] I therefore order that Mr. Hill pay to Ms. Glazer the sum of $2,100 as his 70% share of the $3,000 computer related expenses.

c) Driver’s education course

[82] Ms. Glazer has provided a receipt for $810 for the cost of a driver’s education costs for Thomas in 2013. Mr. Hill agrees to contribute 70% to this expense, and therefore I order Mr. Hill to pay to Ms. Glazer the sum of $567 as his 70% share of the $810 driver’s education expense.

d) Prescriptions/dental

[83] Ms. Glazer claims contribution to approximately $1,500 in dental expenses incurred for Thomas from 2013 to 2014. Mr. Hill’s position is that he has already contributed to these expenses. He has provided records of payments that support that he has paid Ms. Glazer, through the Family Responsibility Office, payments on top of the monthly child support, which support his position. Ms. Glazer has not filed supporting documentation that contradict that these payments were made and, in general, her evidence as to the outstanding s.7 expenses is weak, given that she has filed limited material in support of these claims and the amounts she seeks has changed repeatedly both in her court filings and other communications. I find that Ms. Glazer has not satisfied her onus to establish these expenses are s.7 expenses. I do not find that any amounts are payable by Mr. Hill with respect to this claim.

e) Shoe inserts/orthotics

[84] Ms. Glazer claims contribution towards a $450 expenses for orthotics for Thomas. She has not provided any supporting medical information, such as a prescription, that this expense was reasonable and necessary. I find that Ms. Glazer has not satisfied her onus to establish this expense is s.7 expense. I do not find that any amounts are payable by Mr. Hill with respect to this claim.

f) Cell phone

[85] Ms. Glazer claims contribution to her son’s cell phone expenses totaling $4,166.15. Ms. Glazer has not provided copies of any invoices to support this expense. She has provided copies of her bank records from January 2014 to March of 2018 that show payments to Bell Mobility, that she states were for her son’s and her own phone. Ms. Glazer has totaled these payments, and divided them by two, to arrive at the $4,166.15 amount for her son’s cell phone. She argues this is generous to Mr. Hill, as her son’s data plan was more expensive than her own.

[86] Mr. Hill objects to this expense for a number of reasons: Ms. Glazer has not provided copies of the receipts for this expense as required under the 2013 Order, the bank records only show payments to Bell Mobility and nothing further, cell phone expenses should not fall under s.7, Thomas had a part-time job and should have been able to contribute to his own cell phone expenses, and the amount of this expense is excessive.

[87] I agree with Mr. Hill’s objections and do not award any contribution towards the cell phone expenses. Although it may be reasonable for a child to have their own cell phone, I am not satisfied in these circumstances that it was reasonable and necessary for Thomas to have such an expensive cell phone (with a monthly cost of approximately $100) that would arguably bring such an expense beyond an “ordinary expense”, nor that it qualifies under one of the prescribed categories set out under s.7.

g) Tuition

[88] Ms. Glazer claims that Mr. Hill owes her the sum of $13,301 towards Thomas’ tuition. This claim is no longer in issue because Mr. Hill paid this sum in February of 2018. Mr. Hill’s explanation for the delay in paying is that Ms. Glazer did not give him the tuition receipts earlier.

(5) Restraining Order

[89] Ms. Glazer states that she wants an order restraining Mr. Hill from having contact with herself and her son, Thomas. Ms. Glazer has not provided evidence of specific allegations in support of this request. Her evidence is largely made up of general statements that she has experienced these proceedings as harassing, bullying and abusive by Mr. Hill.

[90] There is no basis to make a restraining order with respect to Thomas. Thomas is now 21 years of age and an adult, and not a party to these proceedings. Thomas is no longer a child in Ms. Glazer’s custody. Section 35(1) of the Children’s Law Reform Act[^13] does not apply to Thomas, nor does section 46(1) of the Family Law Act[^14].

[91] With respect to Ms. Glazer’s request for a restraining order for herself, I am not satisfied, based on the evidence before me, that there are reasonable grounds for Ms. Glazer to fear for her safety. Although it is clear that the historical relationship between the parties has been difficult, particularly surrounding the high conflict parenting proceedings, I do not find that this gives rise to Ms. Glazer having reasonable grounds to fear for her safety. Ms. Glazer’s allegations are for the most part general accusations of Mr. Hill being abusive and controlling, without particulars, and are many years old. The most recent example provided for Mr. Hill’s improper conduct is that he sent a birthday card to Thomas on his 18th birthday. While Ms. Glazer states that this caused “fear, horror, frustration and anger”, this appears to be based simply on the fact that the card was sent, as she has not provided evidence of the contents of the card. This does not support the imposition of a restraining order.

[92] Ms. Glazer’s claim for a restraining order is dismissed.

(6) Child’s Savings

[93] Ms. Glazer seeks an order requiring Mr. Hill to pay the sum of $9,000 that she states he wrongfully took from Thomas’ savings.

[94] Mr. Hill submits that this claim was raised by Ms. Glazer dating back to at least 2009, and was therefore resolved under the 2013 Order that specifically provides that Ms. Glazer’s claim for retroactive child support is settled, no arrears of retroactive s.7 expenses are owed for any period prior to Oct 23, 2012, and that the order :

“is final as to all claims arising out of their marriage, this court action, or any potential claim that they may have at this time, excepting any claim arising under the Minutes or to enforce the Minutes.”

[95] Ms. Glazer’s affidavit material, and the other correspondence before me, supports that her claim with respect to Thomas’ savings was raised by her prior to the 2013 Order. There are other issues with this claim, including limitation periods, and standing as well as the overall merit of the claim itself. These do not need to be addressed. The claim is barred under the 2013 Order.

(7) Other

[96] In their affidavit material, both parties reference offers to settle made in this motion to change, as well as statements allegedly made by various judges at settlement conferences in the previous motion to change proceeding. This information is improper and should be struck from the court record. I have not placed any weight on this material.

Orders Made

[97] In summary, I make the following orders:

1. Ms. Glazer’s motion to have this motion to change be determined at trial is dismissed.

2. Ms. Glazer’s motion to set aside the Divorce Order of Justice Ray dated January 29, 2004, and the Order of Justice Smith dated April 17, 2013, and for an order requiring Mr. Hill to pay her $154,351 in retroactive child support for the period from April 2002 to December 2009 is dismissed.

3. The amount of monthly table child support payable by Mr. Hill to Ms. Glazer for the support of Thomas M. Hill (“Thomas”), born May 6, 1997, pursuant to paragraph 1 of the April 17, 2013 Order of Justice Smith is changed from $1,159 to $1,295 effective May 1, 2016, based on Mr. Hill’s 2015 income being determined to be $154,276.

4. Mr. Hill’s obligation to pay child support to Ms. Glazer for the support of Thomas, pursuant to paragraph 1 of the April 17, 2013 Order of Justice Smith is terminated effective May 31, 2018.

5. For the period from October 23, 2012 to May 31, 2018, Mr. Hill shall pay to Ms. Glazer the sum of $2,100 as his share of Thomas’ computer related expenses, and the sum of $567 as his share of Thomas’ drivers’ education course. Ms. Glazer’s claim for further contribution to other s.7 expenses incurred during this period is dismissed.

6. Mr. Hill’s obligation to contribute to s.7 expenses for Thomas pursuant to paragraph 3 of the April 17, 2013 Order of Justice Smith is terminated effective May 31, 2018.

7. Mr. Hill’s obligations with respect to his Manulife life insurance policy, including his obligation to designate Ms. Glazer in trust for Thomas as irrevocable beneficiary of this policy, as set out in paragraphs 5, 6 and 7 of the April 17, 2013 Order of Justice Smith, are hereby terminated effective May 31, 2018. Mr. Hill shall be free to deal with his Manulife life insurance policy as he wishes, including cancelling the policy or designating a change in beneficiary.

8. Ms. Glazer’s claim for an order restraining Mr. Hill from having contact with herself and her son is dismissed.

9. Ms. Glazer’s claim for an order requiring Mr. Hill to pay the sum of $9,000 that she states he wrongfully took from Thomas’ savings is dismissed.

As the Family Responsibility Office is enforcing the current child support order, I will leave it to their office to make the necessary support adjustments, as set out above, to determine the amount owed between the parties. If a further order is required to address this issue, either party may bring this issue back before me on a motion, in accordance with the Family Law Rules and with appropriate notice to the other side.

Costs

[98] Mr. Hill is the more successful party on this motion. He is presumptively entitled to costs. Mr. Hill may serve and file submissions with respect to costs on or before February 18, 2019. Ms. Glazer may serve and file submissions with respect to costs on or before March 4, 2019. Cost submissions of both parties shall be double spaced, single sided and no more than four pages in length, plus any offers to settle and bills of costs.

Justice P. MacEachern

Date: February 5, 2019

COURT FILE NO.: FC-01-1249-02

DATE: 2019/02/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Linda Micheline Glazer Applicant

– and –

Thomas Hill Respondent

reasons for decision

Justice P. MacEachern

Released: February 5, 2019

[^1]: Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. [^2]: Family Law Rules, O.Reg. 114/99 as am [^3]: Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am., section 2 [^4]: Federal Child Support Guidelines, SOR/97-175, as am., section 25 [^5]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^6]: The parties signed three sets of Minutes of Settlement – one dated April 26, 2002 (“the 2002 Minutes”, sometimes referred to as “the original Minutes”), one dated December 13, 2003 (“the 2003 Minutes”, sometimes referred to as “the Amended Minutes”), and one dated October 23, 2012 (“the 2012 Minutes”). [^7]: The 2004 Divorce Order was in accordance with the December 13, 2003 Minutes. The 2013 Order was in accordance with the October 23, 2012 Minutes. [^8]: McCowan v. McCowan (1995), 1995 CanLII 1085 (ON CA), 14 R.F.L. (4th) 325 (Ont. C.A.); Rick v Brandsema 2009 SCC 10 [^9]: Stott v. Merit Investment Corp. (1988), 1988 CanLII 192 (ON CA), 25 O.A.C. 174, 63 O.R. (2d) 545 (Ont. C.A.) at para. 48 and Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 (Ont. C.A.) at para. 9. [^10]: The court file for the proceedings prior to 2015 has gone missing. Allegations have been between the parties that the other party is responsible. [^11]: Federal Child Support Guidelines, SOR/97-175, as am., s.7 [^12]: Ms. Glazer’s income, according to her Change Information Form sworn December 20, 2017 is $28,000 per year. Mr. Hill contests this and states her income is higher. Ms. Glazer did not filed a sworn financial statement in this motion to change. [^13]: Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am, s. 35(1) [^14]: Family Law Act, R.S.O. 1990, c.F.3, as am, s.46(1)