Court File and Parties

COURT FILE NO.: FS-09-8849 DATE: 20200505 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.M.G. Applicant – and – R.E.G. Respondent

Counsel: Caitlin Zeran, for the Applicant R.E.G., acting in person

HEARD: October 22 and 23, 2019

Reasons for Judgment

CAREY J.

[1] The parties were married on May 5, 1994. They separated on May 5, 2009. There are two children of the marriage: K.R.G., now 20 years old (date of birth […], 2000) and R.M.G., now 15 years old (date of birth […], 2004).

[2] The Continuing Record indicates that L.G. (“Mrs. G.” or “the mother”) commenced this application exactly ten years ago to the date of the beginning of this trial. Ms. Hodgkin’s law firm (represented in this trial by Ms. Zeran) is the third law firm to represent Mrs. G.

[3] R.G. (“Mr. G.” or “the father”) has had two previous counsel representing him and he has indicated to this court that his funds were exhausted by previous counsel. He appeared before me as self-represented.

[4] At the time of the separation in 2009, the parties were involved in the operation and management of three separate corporations whose primary purpose was to operate franchises which provide consumers with debt restructuring assistance.

[5] Since the commencement of this action, Mr. G. says that one of the franchises was discontinued. One was transferred by Mr. G. to Mrs. G. which she continues to operate. Mr. G. retains the remaining franchise.

[6] The issues in this trial are:

1. Whether K.R.G. continues to be a child of the marriage for the purpose of child support.
2. Whether Mr. G.’s income should be imputed at $80,000 per annum as asserted by Mrs. G.
3. What is Mrs. G.’s income for the purpose of proportioning s. 7 expenses. Mrs. G. asserts that the proper proportion be calculated as 83 percent payable by Mr. G.

Issue #1: Is K.R.G. a child of the marriage under s. 2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), as amended?

[7] Mrs. G. says that K.R.G. is disabled by mental illness. Her counsel argues that the evidence shows that K.R.G. has tried to improve and to properly address his issues with mental health and addiction, with Mrs. G.’s “unwavering support.” Counsel says that, at this point, K.R.G. is not able to do so independent of his mother’s assistance both physically and financially. He cannot provide for himself the necessaries of life. Mrs. G. says that he desires to become independent and intends to return to school and has been receiving tutoring to better prepare himself to re-enter the education system. She says that K.R.G.’s father, Mr. G., has alienated his son and they have no communication, essentially because of his father’s non-supportive attitude to K.R.G.’s “mental illness.” She says that K.R.G. “struggles to manage his finances due to his addiction” and that, in any event, he could not live on his own with an income of $672 per month which he is currently receiving from Ontario Disability Support Program (“ODSP”).

[8] Mr. G. argues that K.R.G. is not suffering from mental illness but has chosen to continue a negative lifestyle of drug use and alcohol abuse that Mrs. G. is enabling. He says, and she admits, that the ODSP cheque is controlled by K.R.G. and none of it is paid towards rent or to his mother. Mr. G. says that he loves his son and wants to see him get his education and be off of drugs, but as long as his mother is allowing him to live in her house and spend his money on drugs and alcohol, he has no incentive to straighten out his life. Simply put, Mr. G. indicates the ODSP is designed to support someone with a disability. Mrs. G. is enabling K.R.G. to continue his pattern of drug abuse and non-attendance at school by giving him free room and board and no responsibilities.

[9] While well-intentioned, Mr. G. says Mrs. G.’s decisions have resulted in K.R.G. remaining dependent on drugs as opposed to the shared parental goal of their son furthering his education and becoming an independent and contributing member of his community.

[10] Mrs. G.’s response to Mr. G. is that the receipt of ODSP funds confirms K.R.G.’s disability and thus brings him into the wording of the Divorce Act in s. (b) of the definition of a “child of the marriage” which is “the age of majority or over and under their charge but unable, by reason of illness or other cause, to withdraw from their charge or to obtain the necessaries of life.” Counsel asserted, in closing argument, “Regardless of whether Mr. G. personally believes that K.R.G.’s mental illnesses constitute a disability is irrelevant – the law confirms for us that they do. His parenting beliefs are also irrelevant as K.R.G.’s diagnosis are real.”

Evidence

[11] Mrs. G. called no medical evidence to support her opinion that K.R.G. suffers from a mental illness. Rather, she filed as Exhibit No. 1 a six-page document relating to discharges of K.R.G. from Windsor Regional Hospital. She, through counsel, attempted to file an unsworn Emergency Discharge document from October 2018 which contained an opinion as to a diagnosis. There was no consent as to its admission and no application or voir dire sought as to expert opinion evidence. It was not admitted into evidence.

[12] The second page of Exhibit No. 1 is also from the Windsor Regional Hospital, which appears to be dated January 22, 2018, but is not clear, and is entitled “Emergency Care Report” and is addressed to “To Whom It May Concern,” indicating “K.R.G. was examined and treated in the Emergency Department and in my opinion should have five weeks off prior to returning to work.” Handwritten, at the bottom of that page, “followed by a four to five day stay at detox Hotel Dieu Tayfour Campus.”

[13] The third page is also from the Windsor Regional Hospital and is entitled “Discharge Information.” It is a very poor photocopy but appears to suggest that the patient’s understanding of the reason for hospitalization was “acute psychosis” (emphasis mine). It contains a referral to the Canadian Mental Health Association (“CMHA”) and a follow-up to the family doctor with a referral to community service recommendations on an attached sheet. That attached sheet indicates that the reason for the attendance at the emergency room was “requesting assistance for mental health.” The form also indicates that there was some counselling, medication changes, and a discharge planning meeting with caregivers. It indicates K.R.G. was discharged to his home with his mother.

[14] The next sheet in Exhibit No. 1 indicates a further attendance on November 15, 2018 for anxiety with K.R.G. being discharged, after counselling, to his mother. A referral was made to the Transitional Stability Centre. On an attached sheet he was required to take medication as ordered and keep his appointment with Dr. Shobola.

[15] Exhibit No. 2 was a photocopy of a payment from the ODSP, dated August 30, 2019, in the amount of $672 for the period from August 1 to August 31, 2019.

[16] At Exhibit No. 3, Mrs. G. outlined K.R.G.’s monthly expenses. A copy of that Exhibit is attached to the decision. Exhibit No. 3 indicates his total monthly expenses excluding medical benefits, counselling, tutoring, and orthodontic treatment to be $2,123.70 and that after his disability payment is deducted his “monthly living expenses deficit” equals $1,451.70. The calculation makes reference to the s. 7 expenses for orthodontic treatment, and ongoing outstanding medical costs in the amount of $2,450.82.

Analysis

[17] The test for determining support for adult children is a three-step process set out in Rebenchuk v. Rebenchuk (2007), 2007 MBCA 22, 35 R.F.L. (6th) 239, a case from the Manitoba Court of Appeal as referred to in Albert v. Albert (2007), 40 R.F.L. (6th) 203, [2007] O.J. No. 2964 (ON SC).

[18] It is well settled that an applicant for support bears the onus of proving that the child is still “a child of the marriage.” Normally the onus will not usually be a heavy one where education is being pursued by the child: see Rebenchuk, at para. 26.

[19] I was not persuaded by the evidence of Mrs. G. or the documents she relied on, that the disability payment K.R.G. has been receiving and keeping for his own uses is determinative of the issue of whether K.R.G. is a child of the marriage currently.

[20] I accept Mr. G.’s evidence that K.R.G. has not accepted his father’s appropriate direction or assistance in dealing with his addictions, keeping employment and upgrading his education. Many people today with mental illnesses are productive members of society because they want to be and follow medical direction, including rehabilitation, to pursue their education and refrain from the abuse of addictive substances.

[21] There is no admissible medical evidence to support the mother’s assertion that K.R.G. is suffering from schizoaffective disorder and bipolar disorder. Even if he was, his mother has not demonstrated that K.R.G. is mentally or physically incapable of making his own decisions. I do not accept that the mother has shown that K.R.G. is involuntarily disabled by a mental illness: see KMR v. IWR, 2020 ABQB 77.

[22] Here, the evidence has not established that K.R.G. is pursuing his high school diploma. I accept that he has rejected his father’s direction for the most part and made only brief half-hearted attempts at part-time education at St. Michael’s.

[23] There seems to be no issue that the mother has allowed K.R.G. to live under her roof with no restrictions imposed on his remaining free of drugs or alcohol or attending school. She had provided him free room and board without requiring him to pay to her even a portion of his ODSP monthly payment currently set at $672. The evidence is uncontradicted that K.R.G. has been using that money irresponsibly and likely largely on drugs, alcohol and other things inconsistent with the purposes of disability payments: see Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32, and Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B.

[24] The evidence clearly supports the view of Mr. G. that Mrs. G. is enabling their son K.R.G. in his continuance of addiction, non-attendance at school and failure to maintain regular employment. Well-intentioned though Mrs. G. may be, it is incomprehensible that Mrs. G. fails to grasp the serious ramifications of her allowing K.R.G. to do as he pleases while living under her roof payment free. He has been given full access to a payment designed to support someone with a disability who has no other means of support. Unfortunately, she believes she is helping her son with a mental illness.

[25] Mrs. G. insists that Mr. G. is the cause of a toxic relationship that is the basis for K.R.G.’s current unproductive life. I do not accept her characterization of Mr. G.’s relationship with his son as having contributed to K.R.G.’s continued dependence on drugs and alcohol and his continued association with others with the same lifestyle.

[26] As well, I have concluded that the monthly expenses for K.R.G. that are set out in Exhibit No. 3 are completely unrealistic given the incomes of his parents and K.R.G.’s needs and abilities. Mrs. G. claims that he requires expenditures of $2,123.70, separate and apart from costs for medical benefits, uninsured counselling, tutoring and orthodontic treatment which she calculates as a further $1,182.50, making for a total of $3,306.20 per month that she is seeking from Mr. G. for K.R.G., a total expenditure of almost $40,000 per year. The amounts claimed are so unrealistic and beyond the realities of the parents own modest incomes and lifestyles as to seriously undermine Mrs. G.’s credibility. This unrealistic budget produced for her son is surprising given that she earns her income as a professional debt counsellor.

[27] Mr. G., on the other hand, impressed that he is sincerely interested in the well-being of both of his children and frustrated and hurt by what he has described as a ten-year campaign of parental alienation, while enabling K.R.G. to continue to make poor lifestyle and career choices. While at times in his evidence Mr. G. was overcome by emotion and tended to ramble, I have no hesitation in accepting his evidence on the crucial issues in this family dispute. I accept his evidence as to his current income and the efforts he is making in regard to his business. I accept that the two debt counselling franchises are equal in potential earnings and that Mr. G. has tried to provide for his family, including Mrs. G. by the equal division of the business assets. I accept Mr. G.’s position that K.R.G. needs to take responsibility for his own future. Mrs. G.’s decision to provide him with the necessaries of life while allowing him to dissipate his monthly disability payments without any reckoning, has only hurt K.R.G.’s future prospects and ability to become independent and productive. I accept that Mrs. G. has damaged the relationship between both sons and their father and has undermined K.R.G.’s ability to become independent and addiction free.

[28] For these reasons, I find that K.R.G. is no longer a child of the marriage as defined by the Divorce Act and that Mrs. G. is not entitled to support or s. 7 benefits for her now 20-year-old son.

Issue #2: Should Mr. G.’s income be imputed at $80,000 per annum?

[29] I accept Mr. G.’s evidence as to his current income as supported by his income tax documents and financial statements filed at exhibits 22 through 27. I accept that he has no extra income that is undeclared. I accept for the purpose of child support and s. 7 expenses that his income currently is $42,000 per annum. Mrs. G. has not discharged her onus to show that Mr. G. is earning more than he claims.

Issue #3: What is Mrs. G.’s income for the purpose of proportioning s. 7 expenses?

[30] I accept Mr. G.’s evidence that the income and the income potential for both franchises is similar and that he and Mrs. G. are experiencing similar forces that affect their income. I do not accept Mrs. G.’s evidence that she has been so distracted by caring for her son K.R.G. that she has been unable to earn what she has previously or what Mr. G. is earning. I generally found her evidence non-objective and included constant disparaging comments towards Mr. G. On the other hand, Mr. G. was very positive about Mrs. G.’s parenting skills with the exception of her alienation of the children and her enabling of K.R.G. I find that, to the degree that this case has been characterized by toxicity and unreasonableness, that Mrs. G. bears the lion’s share of responsibility for that.

Conclusion

[31] Accordingly, an order will go as follows:

1. The Order of the Honourable Justice Patterson dated April 20, 2018, shall be terminated and arrears arising out of that Order for child support shall be fixed at $1,668.51.
2. Mr. G. shall pay child support for the benefit of the child of the marriage, R.M.G., born […], 2004, in the amount of $323 per month based on an imputed annual income of $42,000 and in accordance with the Federal Child Support Guidelines, for so long as the said child is a dependant person pursuant to the Divorce Act.
3. Mr. G. shall continue to proportionately pay Mrs. G. 50 percent of the cost of s. 7 expenses for the benefit of the child of the marriage, namely R.M.G., born […], 2004, including but not limited to post-secondary tuition costs and related expenditures, extraordinary extracurricular activities, and uninsured medical care for so long as the child is a dependent under the Divorce Act.

[32] Mr. G. was successful overall, but he was self represented at trial. He was quite late in providing his full financial disclosure and that affected Mrs. G.’s position on support and s. 7 expenses. An award of costs will ultimately affect the support that should be going to R.M.G. This file has been in the courts for over a decade. There needs to be finality and the turning of the page for this family. Ordinarily, given my findings in respect of Mrs. G., I would have considered a significant costs order against her. In my view, that would in these circumstances be counter productive and not in the best interest of R.M.G. or his adult brother.

[33] There shall be no costs ordered.

Thomas J. Carey Released: May 5, 2020 Justice

(Excerpt of: Exhibit No. 3)

COURT FILE NO.: FS-09-8849 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: L.M.G. Applicant – and – R.E.G. Respondent REASONS FOR JUDGMENT Carey J. Released: May 5, 2020