COURT FILE NO. D 49/10

DATE: July 6, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dawn Tracy Weber

Applicant

– and –

John Gerald Weber

Respondent

Olayemi Ayoola, for the Applicant

Sam Garcea, for the Respondent

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

1This was the hearing of a Motion to Change Final Order brought by the Applicant. She seeks to vary the final order of Pazaratz J. dated June 1, 2010 pursuant to section 17(1)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2^nd^ Supp.), as amended, to require the Respondent to pay her child support for the child of the parties’ relationship, Tyler John Weber, born October 26, 1990 (“Tyler”), in the amount of $295.00 per month commencing January 1, 2015. The Respondent seeks an order dismissing the application.

2The issues to be determined in this case are as follows:

1. Have there been any material changes in circumstances relevant to child support since the June 1, 2010 order was made which satisfy the threshold test for varying that order?

2. If the answer to question #1 is yes, has the Applicant established that Tyler was entitled to child support as of January 2015, and that he has remained entitled to support since that time?

3. If the answer to question #2 is yes, should the Applicant be permitted to advance a claim for a retroactive increase in child support, and if so, is January 1, 2015 the appropriate commencement date for such an award? and

4. If a variation of the June 1, 2010 order is considered appropriate, what is the appropriate approach to calculating child support in this case, and what is the appropriate amount of child support that the Respondent should pay?

3For the reasons that follow, I find that material changes in circumstances relevant to child support occurred after the June 1, 2010 order was granted. Specifically, soon after the order was made, it became apparent to the parties that Tyler was suffering significant mental health difficulties which rendered him unable to withdraw from the Applicant’s charge and to obtain the necessaries of life. Tyler’s mental health difficulties escalated significantly from mid-2010 until early 2012. I find that he continued to be entitled to child support until the end of 2012, but that the basis of his entitlement changed and his need for financial support increased. However, I conclude that the Applicant has not satisfied the onus on her of establishing that Tyler continued to be entitled to support as of January 2015, which is the effective date from which she seeks increased support, or that he regained entitlement after that time. Furthermore, I have determined that even if the Applicant had established that Tyler remained entitled to support as of January 2015, the evidence does not establish that an order for child support would be appropriate at the quantification stage of the child support analysis. Accordingly, I am dismissing the Applicant’s Motion to Change Final Order.

PART II: CREDIBILITY AND RELIABILITY ASSESSMENT

4The parties agreed on many key factual issues in this case. However, as I will discuss in further detail below, they had very different impressions respecting the effect of Tyler’s mental health difficulties on his overall functioning and his ability to contribute to his own support. In weighing the overall credibility and reliability of their evidence on this issue, I have taken into consideration the fact that Tyler has resided with the Applicant on a full-time basis since early 2010, whereas the Respondent’s contact with Tyler has been fairly limited in nature since that time. Accordingly, the Applicant has had considerably greater opportunity to observe Tyler’s overall behaviour on a day-to-day basis. However, I had some concerns regarding the Applicant’s credibility and reliability. As I will discuss in further detail below, she was not completely forthright in her Financial Statements respecting her sources of income. In addition, on several occasions, she presented as extremely indignant and resistant in responding to reasonable questions posed on cross examination. I had to re-direct her to answer questions a number of times. Overall, I was left with the impression that she had great difficulty maintaining an appropriately balanced perspective regarding the issues in question.

5Unfortunately, I had similar concerns respecting the credibility and reliability of the Respondent’s evidence. Although his examination in chief was fairly brief, it consisted largely of him venting his extreme resentment towards the Applicant for having commenced this proceeding. His own counsel was unable to curtail this extreme anger during his examination in chief. The extent of the Respondent’s rage about this proceeding similarly raised concerns in my mind respecting his ability to provide a fair and balanced perspective of the evidence relevant to issues in question.

6Given these concerns respecting the evidence of both parties, I was unable to reach an overall conclusion that the evidence of one should be preferred over that of the other. It was therefore necessary to address their credibility and reliability on an issue by issue basis, which I have done when necessary in these Reasons.

PART III: BACKGROUND

I. THE 2010 COURT PROCEEDINGS

7The parties were married on August 12, 1989 and began to cohabit at that time. There are two twin children of their relationship, namely Joel Donovan Weber (“Joel”) and Tyler, born on October 26, 1990. The parties separated on or around May 1, 2009 and were divorced on November 9, 2010.

8The Applicant commenced an application in this court in 2010 to address the Family Law issues arising as a result of the parties’ separation. In particular, she claimed a divorce, child support for Tyler and Joel and an order for equalization of the parties’ net family properties. On June 1, 2010, Pazaratz J. made a final order pursuant to Minutes of Settlement that the parties had executed, which provided as follows:

1. The claim for divorce was severed from the child support claim.

2. Although Joel and Tyler were 19.5 years of age at that point, paragraph 2 granted the parties joint custody of them.

3. There was to be no monthly child support payable by either party for either Joel or Tyler.

4. The Respondent was to pay the Applicant the sum of $1,364.00 on account of his share of the “extraordinary expenses” respecting Joel and Tyler for the period from May 1, 2009 until August 31, 2010 on or before June 30, 2010; and

5. With respect to ongoing child support, paragraph 5 provided that the Respondent shall for each child pay $1,500.00 per year to the Applicant “for the Respondent’s share of extraordinary expenses, for each year that the child remains a full-time student at a post-secondary institution.” The Respondent was to make this payment on or before August 15^th^ of each year.

9On November 9, 2010, the parties resolved the remaining Family Law issues between them. Pazaratz J. granted the parties a divorce and made an order on consent of the parties requiring the Respondent to pay the Applicant an equalization payment of $22,000.00, payable in one lump sum of $5,000.00 within 30 days, with the balance to be paid by way of spousal rollover to the Applicant within 30 days. The order also resolved all outstanding issues respecting household chattels.

II. OVERVIEW OF TYLER AND JOEL’S CIRCUMSTANCES SINCE JUNE 2010

10As of June 1, 2010, when the existing order was made, Joel had just completed his second year of university at the University of Western Ontario in London, working towards a degree in Astronomy and Physics. He continued with his studies after that time, but he fell two credits short of completing his undergraduate degree. He obtained part-time employment in London after ending his post-secondary studies, and began living part-time with the Respondent in 2016. Tyler had begun the Police Foundations program at Fanshawe College in the fall of 2009. Joel and Tyler both lived on campus during the school year, and they received grants to cover their tuition costs and most of their living expenses as a result of their Native status. Although paragraph 5 of the June 1, 2010 order referred to the payment of “extraordinary expenses,” it was clear from the evidence of both parties that the intention was for these payments to be applied towards the children’s miscellaneous expenses while they were enrolled in full-time post-secondary studies, over and above those covered by the grants which they received.

11The parties agree that Tyler has a history of mental health difficulties. At trial, the Respondent suggested that these problems existed prior to the granting of the June 1, 2010. Part of the confusion around this issue is attributable to the fact that the Applicant asserted in her application dated February 13, 2018 at page 5 that Tyler was diagnosed with “Schizoid-Affective Disorder” [sic] in March 2010. However, in her Reply dated May 24, 2018, she clarified that his mental illness developed following the court order. Upon carefully analyzing the evidence of both parties, I find that Tyler began to experience some difficulties with his general functioning during his first term at Fanshawe College in the fall of 2009. As a result of these issues, he returned to Hamilton and began to reside with the Applicant on a full-time basis in approximately March 2010. He did not resume his post-secondary studies after that point. However, I conclude that the nature and extent of his difficulties did not become apparent until after the June 1, 2010 order was made. Both parties indicated that it took many months after Tyler returned home from Fanshawe College to ascertain the extent of his problems. The Applicant testified that after Tyler returned home in March 2010, he spent a year on her couch before she was able to convince him to see a doctor. She indicated that it then took many more months for him to receive a mental health diagnosis. The Applicant testified that after the June 1, 2010 order was made, Tyler began to engage in abnormal behaviour. For instance, he thought that people were following him and that they could see and hear him through microphones and cameras located in the Applicant’s home. According to the Applicant, Tyler would frequently move objects and pictures in the home to make sure that there were no hidden microphones or cameras. She testified that COAST, a local crisis outreach program, attended her home on occasion throughout the early period of Tyler’s mental health crisis, and that the police and a registered nurse provided support through the COAST service. The Applicant explained that she was unable to take more aggressive steps at point to determine the source of Tyler’s difficulties because the COAST support personnel felt that there were no indications that he posed a risk of harm to himself or to her. I found the Applicant’s evidence on these issues to be very credible and reliable.

12There is no dispute that Tyler continued to exhibit significant mental health challenges throughout 2011, and that he was eventually admitted to the psychiatric ward at St. Joseph’s Hospital for several months from approximately the spring of 2011 until early fall of that year. The Applicant testified that his treating physicians at St. Joseph’s Hospital initially believed that he was suffering from bi-polar disorder. Tyler returned to the Applicant’s care after his discharge from hospital in the fall of 2011, and he has continued to live with the Applicant on a full-time basis since that time. Correspondence between the parties confirms the timing of these events. In an email from the Applicant to the Respondent dated October 17, 2011, the Applicant asked for financial help from the Respondent for Tyler and noted that Tyler was thinking of admitting himself to the hospital again.

13Tyler was enrolled in the Cleghorn Clinic at St. Joseph’s Hospital for ongoing monitoring and treatment after his discharge from hospital in the fall of 2011, and he was prescribed several medications for his mental health, specifically: lorazepam, clonazepam, lithium, xylac and clozapine. His attending psychiatrist at the Cleghorn Clinic was Dr. Archie. Unfortunately, he had a second mental health crisis and was admitted to the psychiatric ward of St. Joseph’s Hospital again in approximately January 2012. He was discharged from St. Joseph’s Hospital at some point in 2012, but it is unclear from the evidence how long he remained hospitalized on that occasion. The Applicant testified that Tyler was discharged from the Cleghorn Clinic outpatient program at some point due to his stability, but she did not provide any details as to when this occurred. She indicated that Tyler saw another psychiatrist, Dr. Tam, approximately four years after being discharged from St. Joseph’s hospital in 2012, which would have therefore been sometime in 2016, but it appears based on her evidence on cross examination that Tyler only saw Dr. Tam on one occasion. Dr. Tam was associated with the practice of Tyler’s family physician, Dr. Davis. The Applicant testified that Tyler saw another psychiatrist associated with Dr. Davis’ practice in December 2018, and that he was scheduled to see this psychiatrist again in June 2019. She could not recall the name of this psychiatrist, but she relayed that he immediately made a referral for Tyler to be seen by an occupational therapist to assess and assist him with respect to his social and vocational functioning, and to determine if there were ways to get Tyler more engaged and motivated.

14The Respondent raised questions at trial respecting the specifics of Tyler’s mental health diagnosis. As noted above, the Applicant stated in her application that he had been diagnosed as suffering from “Schizoid-Affective disorder.” At trial, she indicated that the treatment professionals involved with him initially thought that he was suffering from bi-polar disorder. However, she relayed her understanding that the professionals later felt that he was suffering from schizo-affective disorder. Her understanding was that the psychiatrist who had seen Tyler most recently in December 2018 had concluded that his history and symptoms were more consistent with a diagnosis of paranoid schizophrenia.

15Apart from Tyler’s involvement with Dr. Tam and the psychiatrist who he saw in December 2018, he has essentially been monitored by his family physician, Dr. Davis. The Applicant testified that his contact with Dr. Davis has consisted of a check-in with her approximately once a year.

16Tyler applied for disability benefits through the Ontario Disability Support Plan (“ODSP”) in 2011, and began receiving ODSP benefits in late 2011 or early 2012. The ODSP re-evaluated his eligibility for benefits in early 2019 and determined that he still qualified to receive the benefits. Until 2019, he received benefits of approximately $881.00 per month, as well as the Trillium benefit of approximately $54.48 per month, for a total monthly income of approximately $935.48 per month. In 2019, the ODSP benefit increased to $896.00 per month, with the result that his total monthly income including the Trillium benefit is in the range of approximately $950.48 per month.

17I have reviewed a budget that the Applicant prepared which sets out Tyler’s estimated monthly expenses. These include expenses for a car that he purchased on a line of credit. The Applicant explained that Tyler drives his car a great deal, and that driving is helpful for him because he enjoys it very much and it gets him out of the house on a regular basis. The monthly expenses relating to the car, including interest on the line of credit that Tyler used to purchase it, total approximately $366.00. Tyler failed to make payments on the line of credit for a period of time, and the balance owing as of July 3, 2018 was approximately $7,200.00. The budget that the Applicant prepared for Tyler also included a $20.00 per month expense for “fitness therapy.” There was no evidence adduced that Tyler in fact engages in such fitness therapy on a regular basis. Tyler has medication expenses, but the Applicant indicated that those are covered by ODSP and the federal government, because Tyler has Native status. His expenses include $300.00 per month for accommodation, which he gives to the Applicant to cover part of the mortgage payment on her home, and $100.00 per month towards half of the internet and cable expenses for the home. Accordingly, I find that Tyler’s reasonable monthly expenses total approximately $1,451.36, resulting in a monthly shortfall of approximately $500.00. I accept the Applicant’s evidence that she has been supporting Tyler with respect to this shortfall.

18Tyler did not have a great deal of contact with the Respondent from 2010 until approximately late 2012. The Respondent explained that he was deeply engrossed in studies during that time, attempting to obtain computer skills to solidify his income-earning capacity. Tyler began to see his father approximately once a week for movie nights when the Respondent completed his studies in late 2012. This eventually developed into weekly visits at the Respondent’s mother’s home for card games. Joel often joins in on these weekly gatherings. Unfortunately, there was a period of time following the commencement of the current court proceedings when the Respondent and his mother became upset with Tyler about the claim for child support. Tyler did not see his paternal family members for a period of time, which the Respondent described as a “cooling off period.” Tyler’s weekly visits with his father at his paternal grandmother’s home continued once emotions subsided.

III. THE PARTIES’ CIRCUMSTANCES SINCE 2010

A. The Applicant

19The Applicant resided in a one bedroom apartment until Tyler moved back home with her in 2010. At some point after Tyler returned home, she purchased a 3 bedroom home in Hamilton so that she could have more space to accommodate Tyler. As I have indicated, Tyler provides her with $300.00 per month from his ODSP cheque to cover his share of household expenses.

20The Applicant previously worked at the Royal Bank of Canada, but she indicated in her Financial Statements sworn November 22, 2018 and March 26, 2019 that she has been unemployed since 2014. She suffered an injury to her shoulder and began to receive disability benefits through her employment at that time. She has had two surgeries on her injured shoulder, and she testified that a further surgery would be necessary in the near future. She became eligible for CPP disability payments after her disability benefits through work ended in approximately 2016, and she received a CPP back-payment at that time which she stated she has relied on to support herself and Tyler.

21The Applicant’s line 150 income on her Notices of Assessment for 2015, 2016 and 2017 was as follows:

2015: $51,120.00

2016: $24,705.00

2017: $27,605.00

22In 2018, the Applicant received CPP disability benefits totalling approximately $13,200.00 annually. In addition, she earned cash income of approximately $5,400.00 annually driving a limousine for a distant cousin who resides on the Six Nations Reserve. She did not pay tax on this cash income. She testified that she also earned income of approximately $1,000.00 from a casual marketing job that she took in 2018 with a company called Connect Marketing. Finally, as I have stated, she received $300.00 per month from Tyler to cover housing expenses. She indicated that she declared that income from Tyler for tax purposes. Based on this evidence, I estimate that her 2018 income was approximately $25,108.00. This includes a gross up in relation to her income from the limousine driving on account of the fact that she did not pay tax on it. The Applicant’s sources of income remained the same in 2019, and therefore I estimate that her total income that year was in the same range.

23I accept the Applicant’s evidence that she has supported Tyler financially, emotionally and in a hands-on manner with his appointments, medications and general needs since he returned to her home in March 2010. This support has involved an enormous commitment on her part, particularly during the two periods when Tyler was hospitalized in 2011 and 2012. The Applicant is of very modest means, and she has struggled to make ends meet. She has incurred a line of credit debt and VISA debts totalling $18,883.18 as of March 2019. Her sole assets are her home and a 2011 Ford Escape vehicle valued at $6,000.00.

B. The Respondent

24The Respondent rents a home in Hamilton. Tyler’s brother Joel has been residing with him on a part-time basis since 2016. As of the date of the June 1, 2010 order, the Respondent was enrolled in a program of Software Development Studies at Mohawk College in Hamilton. He completed this two year program in 2011, and then continued on with his studies to take a Networking and Security program. He completed his educational upgrading in late 2012.

25The Respondent obtained a short-term position in Toronto following the completion of his studies, and then began working as a partial load faculty member at Mohawk College in September 2013. This has been a contract position, and it involves a maximum of 12 class time hours a week. Since the job is not a tenured position, the Respondent does not work or get paid between semesters. The Respondent’s income since 2015 has been as follows:

2015: $27,499.00, excluding union dues

2016: $43,265.00

2017: $46,501.00

2018: $50,047.00

2019: $38,007.00, excluding union dues.

26When the Respondent was questioned about the increases in his income from 2016 to 2018, he explained that they were attributable to him having cashed in some of his investments.

27Like the Applicant, the Respondent is of very modest means. He is almost 54 years of age, does not have a pension, and his savings for his future retirement totalled only $60,791.98 as of February 2019. He has a 1999 Corolla vehicle valued at $500.00 and no other significant assets.

IV. THE CURRENT COURT PROCEEDINGS

28The Applicant alleges that Tyler has continued to suffer significant mental health difficulties since 2010, and that he has been unable to withdraw from her charge or to obtain the necessaries of life as a result of these problems. I have noted above that she emailed the Respondent on October 17, 2011 to ask if he could contribute towards Tyler’s expenses. The Respondent replied that he was in school, that he would be continuing with his studies for another year, and that he was supporting himself entirely from his savings. He stated that he would have no problem helping the Applicant out financially when he began working. The Applicant learned in 2017 that the Respondent was working again, and she sent him a text message at that time reiterating her request that he contribute to Tyler’s support. The Respondent did not answer that text message, and therefore the Applicant instructed her counsel to forward a letter to him to request child support sometime in 2017.

29The Applicant testified that she commenced this proceeding on February 21, 2018 because she was experiencing difficulty meeting all of Tyler’s needs. She requested an order for retroactive and ongoing child support for Tyler but did not specify a commencement date for the retroactive relief. On June 12, 2018, Madsen J. convened a case conference. The parties proceeded to a settlement conference before Madsen J. on September 4, 2018. At that time, Madsen J. concluded that the proceeding should have been commenced as a Motion to Change Final Order rather than an application, since the requirement in the June 1, 2010 order that the Respondent make ongoing contributions toward Joel’s and Tyler’s expenses while they completed their post-secondary studies was a final support order. The parties appeared to have agreed with her on this issue at that time. However, Madsen J. determined that the hearing of the Motion to Change should proceed as a trial, with viva voce evidence, and she therefore scheduled the matter for a Trial Scheduling Conference on October 30, 2018. At the Trial Scheduling Conference, Madsen J. ordered that the Applicant was to advise the Respondent by November 2, 2018 as to the nature of any medical reports that she intended to adduce as Exhibits.

30The trial of this matter began before me on February 26, 2019. At the outset of the hearing, the issue arose again as to whether this proceeding was properly characterized as a fresh application, or whether it should be treated as a Motion to Change Final Order. Mr. Ayoola for the Applicant initially argued that the case was properly a Motion to Change Final Order, but then changed his position to argue that it should be treated as an application. Mr. Garcea brought an oral motion at the outset of trial seeking to dismiss the proceeding outright. His position on behalf of the Respondent was that the payment terms set out in the June 1, 2010 order did not constitute a child support order, and that there was therefore no child support order in effect to vary. I gave oral Reasons on February 26, 2019 dismissing that motion. As I indicated in my Reasons, I concluded that the payment terms of the June 1, 2010 did constitute an order for child support, and that the proceeding should properly continue as a Motion to Change Final Order, as Madsen J. had also concluded. I reserved the issue of costs in connection with the Respondent’s preliminary motion.

31The Applicant began to give evidence on February 27, 2019. During her examination in chief, counsel for the Respondent objected to the admissibility of Tyler’s 2015 Notice of Assessment on the basis that the Applicant had no intention of calling Tyler as a witness to answer questions about the document and his income. Counsel for the Applicant argued in response that there was an issue with respect to Tyler’s capacity to testify. Notwithstanding this position, he indicated that the Applicant did not intend to call any medical professionals to address Tyler’s mental health status and capacity. I inquired of Mr. Ayoola at that juncture as to whether the lack of medical evidence could potentially be problematic on a more general level in relation to the Applicant’s position that Tyler remained entitled to support. Upon considering this issue, Mr. Ayoola requested an adjournment of the trial to determine which medical professional(s) he should call to testify. For oral reasons given, I decided that the trial should be adjourned to allow the Applicant to adduce medical evidence respecting Tyler’s mental health difficulties. I scheduled a mid-trial Trial Scheduling Conference for March 25, 2019 and indicated that further trial dates would be set at that time. In addition, I gave the Applicant a deadline of March 11, 2019 to advise the Respondent in writing of her proposed additional witnesses, and to produce any relevant notes or other records of the proposed witnesses. Furthermore, I directed that if any motions were required to obtain the relevant notes and records, the Applicant was to bring the motions as soon as possible, and in any event, they were to be originally returnable by no later than March 1, 2019. The Applicant’s examination in chief continued on February 28, 2019.

32At the Trial Scheduling Conference on March 25, 2019, Mr. Ayoola advised that instead of calling any psychiatrists who had been involved with Tyler as witnesses, he wished to call Tyler’s family physician, Dr. Davis, to testify. However, the Applicant had not complied with my February 27, 2019 order requiring that she produce all relevant notes and records of any proposed additional witnesses by March 11, 2019, or that she return any necessary motions to address production of the notes and records by no later than March 1, 2019. Nonetheless, having regard for the importance of the child support issue to the Applicant and Tyler, I granted the Applicant further indulgences. I made an order granting her leave to call Dr. Davis as a witness at trial, on the condition that she serve the Respondent with copies of all of Dr. Davis’ notes and records respecting Tyler that she had not yet produced by April 5, 2019. At the Trial Scheduling Conference, the Applicant also submitted a draft Motion to Change Final Order setting out the relief that the Applicant was requesting and sought leave to file it with the court. The draft Motion to Change Final Order did not set out the effective date for retroactive relief of January 1, 2015 that the Applicant had requested. I granted the Applicant leave to file the Motion to Change Final Order by March 27, 2019, on the condition that it be amended to reflect the requested effective date of January 1, 2015 for retroactive relief. I also made an order permitting the Applicant to serve and file an updated Document Brief of proposed exhibits by no later than March 27, 2019. I reserved costs in connection with the Trial Scheduling Conference, and I scheduled additional trial time of 3 to 4 days to the trial sittings commencing April 29, 2019.

33The trial resumed on May 21, 2019. At that time, the Applicant’s counsel advised that he wished to call Dr. Davis as a witness, but that Tyler had not consented to Dr. Davis producing his records or sharing information about his medical history, diagnosis, medication and prognosis. Accordingly, the Applicant had not produced the records to the Respondent, which was a condition of my March 25, 2019 order granting her leave to call Dr. Davis as a witness. Furthermore, Mr. Ayoola did not bring a motion prior to the resumption of trial to request an order for production of the records. Mr. Ayoola explained that he wished to tender as evidence through Dr. Davis a letter that she had co-signed with the psychiatrist who Tyler had seen in December 2018, which apparently outlined Tyler’s symptoms and diagnosis as of 2018. Mr. Ayoola indicated that as of that time, the psychiatrist was awaiting the results of an assessment and report by the occupational therapist who Tyler had been referred to, which would provide insight into Tyler’s ability to work and appropriate vocational avenues for him if he were to seek work. Although the Applicant had again failed to comply with my disclosure condition for calling Dr. Davis as a witness, and had not brought a motion to address the disclosure issues in advance of the resumption of trial, I granted her a further indulgence and directed that the issue of disclosure of Dr. Davis’ records could be addressed on May 22, 2019.

34Dr. Davis appeared in court on May 22, 2019. She confirmed at that time that Tyler did not consent to the disclosure of her clinical notes and records respecting him. In addition, she emphasized that she was not a psychiatrist, and that any information that she could provide about Tyler’s psychiatric condition would essentially be that which she had obtained from his mental health specialists. I determined that a motion was required, on notice to Tyler, pursuant to section 35(9) of the Mental Health Act, R.S.O. 1990, c. M-7, to determine whether Dr. Davis’ clinical records should be produced and whether Dr. Davis should be permitted to testify about information obtained in the course of assessing and treating Tyler, and in assisting his mental health specialists in their assessment and treatment of him. This motion proceeded on May 24, 2019. Tyler was given notice. He appeared in court and consulted with duty counsel. He relayed his very strong objection to the clinical notes and records being produced and to Dr. Davis testifying about his mental health issues for the purposes of this hearing. For oral reasons given on that day, I determined after hearing from Tyler and counsel for the parties that the records should not be produced and that Dr. Davis would not be permitted to testify. By way of general summary, my Reasons were based on the following considerations:

1. The Applicant’s failure to identify Dr. Davis as a witness at the original Trial Scheduling Conference;

2. The Applicant’s failure, despite the indulgences that I had given her, to comply with my explicit directions on February 27, 2019 about dealing with any issues regarding the production of the notes and records of any additional witnesses prior to March 1, 2019;

3. The Applicant’s failure, despite further indulgences that I had granted her, to address issues relating specifically to the production of Dr. Davis’ notes and records prior to the resumption of trial on May 22, 2019;

4. Concerns respecting procedural fairness to the Respondent as a result of the Applicant’s non-compliance with the orders that I had made respecting additional witnesses, and the fact that production of Dr. Davis’ notes would have been “last-minute” in nature;

5. Tyler’s strong and consistent objections to the sharing of his mental health information in Dr. Davis’ possession, and concerns respecting his privacy interests;

6. My conclusion based on Dr. Davis’ comments in court that any evidence that she could provide respecting Tyler’s psychiatric condition would be based purely on the hearsay information of other professionals who had been involved with Tyler; and

7. Finally, based on all of the above considerations, my assessment that the overall prejudicial effect of allowing the evidence would far outweigh any probative value.

35Unfortunately, the additional estimated trial time proved to be insufficient due to the unexpected complications in this matter. On May 24, 2019, I directed counsel to schedule an additional two days of trial through the Trial Coordinator’s office. Additional trial time was arranged for October 2019, but scheduling difficulties resulted in those dates being put over to January 21 and 22, 2020. The trial finally concluded on January 22, 2020.

PART IV: POSITIONS OF THE PARTIES

36As I have indicated, the Applicant seeks an order requiring the Respondent to pay her child support for Tyler in the amount of $295.00 per month, commencing January 1, 2015. Her position is that there has been a material change in circumstances relevant to child support within the meaning of sections 17(4) of the Divorce Act and section 14 of the Guidelines since June 1, 2010, and that the threshold test for obtaining a variation is therefore met in this case. Specifically, she argues that Tyler’s entitlement to support as of June 1, 2010 was based on his enrolment in post-secondary studies and the expectation that he would move towards independence upon the completion of his education. Accordingly, the support order was framed around his needs at that time, and took into consideration the fact that he received funding for his educational and living expenses based on his Native status. However, she submits that Tyler developed serious, long-term mental health difficulties after the order was made which have rendered him dependent on her financially. Her position is that he continues to be a child of the marriage within the meaning of section 2 of the Divorce Act on the basis that he is unable to withdraw from her charge or to obtain the necessaries of life due to his mental health difficulties, and that his financial needs are higher and more long-term in nature than the parties expected them to be in June 2010. Counsel for the Applicant suggested in his Closing Submissions that the fact that Tyler qualifies for ODSP benefits should be sufficient to satisfy the court that he continues to be unable to withdraw from parental charge or to obtain the necessaries of life as a result of his mental health problems. The Applicant asserts that Tyler has been unable to work since 2010, that he continues to be unable to earn income, and that she has been struggling to subsidize his financial needs without any assistance from the Respondent.

37The Respondent requests an order dismissing the Motion to Change Final Order outright. He submits that there have not been any material changes in circumstances within the meaning of section 17(4) of the Divorce Act and section 14 of the Guidelines since June 2010 such as to justify a variation of the June 1, 2010 order. He acknowledges that Tyler experienced significant mental health difficulties commencing in 2010, but submits that these concerns existed when the order was made. He submitted that Tyler received treatment in a fairly timely manner, and that there is insufficient evidence to support a finding that he has been unable to withdraw from parental charge or to obtain the necessaries of life since January 2015, which is the date from which the Applicant seeks child support. His position is that Tyler has not shown signs of mental illness for many years and that he is stable. He highlighted that Tyler has his own car, goes on long drives on a regular basis, has a bank account and line of credit, attends family functions, frequents the casino and generally takes care of himself. He submitted that even if Tyler continues to be a child of the marriage and therefore entitled to support, the quantification analysis should nonetheless yield the same conclusions that there should be no support payable for him. He argues that Tyler is able to meet his needs through the income that he receives through his ODSP benefits and the Canada Trillium benefit, and that he has the capacity to supplement his benefits through part-time employment. He emphasized that the quantification analysis must take into consideration his ability to contribute to Tyler’s support, and that he has a very modest income, no significant savings and no major assets.

PART V: THE LAW

I. RELEVANT DIVORCE ACT PROVISIONS AND GENERAL PRINCIPLES RESPECTING VARIATION OF CHILD SUPPORT

38The order dated June 1, 2010 that is the subject of this Motion to Change Final Order was made pursuant to the Divorce Act, and therefore the child support variation provisions of that Act govern the analysis of the Applicant’s child support claim. Section 17(1) of the Divorce Act is the starting point for the determination of a child support variation case. It provides as follows:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

a) a support order or any provision thereof on application by either or both former spouses; or

b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

39Section 17(3) of the Act stipulates that the court may include in a variation order any provision that the court could have included in the order in respect of which the variation order is sought. This section must be read in conjunction with sections 15.1(2) and 15.1(4) of the Act, which provide that the court deciding an original child support application may make interim support orders, can make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

40The powers of the court in a proceeding to vary a child support order under section 17(1) of the Divorce Act are broad. The court can change the terms of the order, either prospectively or retroactively, and can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis.

41Notwithstanding the broad powers available to the court by virtue of section 17(1) of the Act, a child support variation proceeding is not an appeal of the original order. The court hearing the case must assume that the existing order accurately addressed the financial needs of the child and took into consideration the appropriate legal considerations. The correctness of the previous order should not be reviewed in the variation proceeding (Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.), at para. 20; Gray v. Rizzi, 2016 ONCA 152 (C.A.), at para. 26).

42Section 17(4) of the Divorce Act reinforces the point that a child support variation proceeding is not an appeal of the original order, by delineating a threshold test that must be satisfied in order to succeed in the case. Specifically, it stipulates that before making a child support variation order, the court must satisfy itself that there has been a “change of circumstances” as provided for in the Guidelines since the making of the original order or an existing order:

Factors for child support order

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

43The statutory framework outlined above dictates a two-pronged inquiry in a child support variation proceeding under the Divorce Act, as follows:

1. First, the court must determine if there has been a change of circumstances as provided for in the Guidelines; and

2. Second, if the court concludes that the requisite change has occurred, it must then decide what variation, if any, should be made to the order in light of the change

(Willick, at para. 21; Punzo v. Punzo, 2016 ONCA 957 (C.A.), at para. 43).

44On a Motion to Change Final Order, the onus is on the moving party to prove both the changes in circumstances they are relying on to justify the requested variation and the appropriateness of the relief that they are seeking (Punzo, at para. 26). In determining whether the moving party has met this onus, the court must consider the evidence and arguments of both parties (Punzo, at para. 26).

II. THE THRESHOLD “CHANGE IN CIRCUMSTANCES” TEST

45Section 17(4) of the Divorce Act clearly specifies that the threshold test on a Motion to Change child support will only be satisfied if there has been “a change in circumstance as provided for in the applicable guidelines.” The case-law has established that a change will only meet the threshold test for variation of support if it is “material” in nature (Willick, at para. 22). Section 14 of the Guidelines is the relevant provision for determining the type of change that will justify a variation of a child support order. It provides as follows:

Circumstances for variation

14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

46Section 14 of the Guidelines and the case-law respecting section 17(4) of the Divorce Act clarify that in order to satisfy the threshold test in a child support variation proceeding, the change relied on must relate to the needs of the child, the means of the parents or both. As the Supreme Court of Canada stated in Willick, at para. 22:

[It] is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents. The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way. There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered.

47In determining the type of change in circumstances that is sufficient to ground a child support variation claim under the Divorce Act, it is useful to draw upon the case-law respecting child and spousal support variation proceedings under both the Family Law Act, R.S.O. 1990, c. F-3, as amended and the Divorce Act, since all such proceedings require the court to consider whether a change in circumstances has occurred. The cases establish that the threshold “material change in circumstances” test for variation proceedings ensures that the focus in Motion to Change proceedings remains on developments that have occurred since the existing order was made. Since the analysis of the threshold test starts with the existing order and the factual basis upon which it was made, the change(s) that the moving party relies on must have occurred since the existing order was granted. Section 17(4) of the Divorce Act specifically stipulates that the change in circumstances required to meet the threshold test for a variation of child support must have occurred “since the making of the child support order or the last variation order made in respect of that order.” Accordingly, a party cannot later meet the threshold test for a variation proceeding by relying on changes in circumstances that occurred prior to the making of the existing order (Gray, at para. 23). Furthermore, as the Supreme Court of Canada has noted in the context of variation of spousal support orders, the analysis of whether there has been a material change in circumstances involves a careful analysis of the evidentiary basis upon which the existing order was made (L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 (S.C.C.), at para. 34). Failing to adduce such evidence will constitute a critical evidentiary gap that will impede the court’s ability to carry out the first stage of the analysis in a variation proceeding (Droit de la famille- 09668, sub nom R.P. v. R.C., 2011 CarswellQue 13700, 2011 SCC 65 (S.C.C.), at para. 33).

48The concept of a “material change in circumstances” must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made (Brown v. Brown, 2010 NBCA 5 (C.A.), at para. 19; Willick, at para. 26). In order to be “material,” the change must be such that, if known and factored into the decision when the order was made, it would likely have resulted in different terms to the order (Willick, at para. 22; B.(G.) v. G.(L.), 1995 65 (SCC), [1995] 3 S.C.R. 370 (S.C.C.), at para. 49; L.M.P., at paras. 32 and 33). The corollary to this principle is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot satisfy the threshold test for variation (Willick, at para. 22, L.M.P., at para. 44). In addition, a change will only be considered “material” for the purposes of a variation proceeding if it has a degree of continuity; a temporary set of circumstances will not suffice (L.M.P., at para. 35; Marinangeli v. Marinangeli, 2003 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.), at para. 49; Haisman v. Haisman, 1994 ABCA 249 (C.A.), at para. 28; leave to appeal to the S.C.C. refused [1995] 3 S.C.R. vi (S.C.C.)). Likewise, trivial or insignificant changes will not justify a variation (Haisman, at para. 28; Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 (S.C.C.), at para. 20; Marinangeli, at para. 49). The sufficiency of the change which the moving party relies upon must always be evaluated in light of the particular facts of each case (Willick, at para. 101).

III. THE APPROPRIATE VARIATION ORDER

A. Overview

49The second stage of the analysis on a Motion to Change involves a determination of the variation, if any, that should be made to the existing order. Even if the threshold test of a material change in circumstances is met, it does not necessarily follow that a variation of the existing order should be ordered (Willick, at para. 104; Punzo, at para. 41). The decision as to whether changes are warranted, and if so, the specifics of any variation involve a careful analysis of all issues that are relevant to the claim, including the appropriateness of any retroactive or ongoing claims, consideration of whether the child remained entitled to support as of the date from which support is requested and whether they lost entitlement at any point, and the calculation of the quantum of support payable based on the applicable provisions under the relevant legislation and Guidelines (Punzo, at paras. 38, 41). Furthermore, the court may only make variations to the order that are justified having regard for the material change(s) in circumstances that met the threshold test (Willick, at para. 104; Punzo, at paras. 26, 43). Accordingly, even if parties agree that the threshold test has been satisfied, the hearing judge must nonetheless address the issue, satisfy itself that a material change or changes have indeed occurred and make findings regarding the nature of the change(s). Failing to do so deprives the analysis of the critical foundation upon which the court must construct the appropriate variation order.

B. Support Entitlement Issues in the Context of Variation Proceedings

1. Legislative Provisions and General Principles

50The positions of both parties in this case are based largely on alleged changes relating to Tyler’s entitlement to support. The Applicant argues that the basis for Tyler’s entitlement has changed, and that this has resulted in an unexpected long-term need for support and greater need. The Respondent, on the other hand, claims that Tyler’s entitlement to support has ended. Both of these alleged claims, if proven, would constitute a material change of circumstances within the meaning of section 17(4) of the Divorce Act and section 14 of the Guidelines. A consideration of the relevant principles respecting child support entitlement under the Divorce Act is therefore necessary.

51The starting point for determining child support entitlement under the Divorce Act is section 15.1, which stipulates that the court may make an order requiring a spouse to pay for the support of any or all “children of the marriage.” Entitlement to child support under the Act is therefore dependent on the child being a “child of the marriage” within the meaning of section 15.1. The definition of “child of the marriage” is set out in section 2 of the Act, which provides as follows:

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

a) is under the age of majority and who has not withdrawn from their charge, or

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

52Section 2(1) of the Divorce Act defines the phrase “age of majority” as follows:

“age of majority,” in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age.

53Section 1 of Ontario’s Age of Majority and Accountability Act, R.S.O. 1990, c. A-7 provides that every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years.

54The onus of establishing entitlement to child support is on the party seeking to obtain support (Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (C.A.), at para. 26; Olson v. Olson, 2003 ABCA 56 (C.A.), at para. 13; Whitton v. Whitton (1989), 1989 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.), at para. 6; D.B.B. v. D.M.B., 2017 SKCA 59 (C.A.), at para. 119; Kohan v. Kohan, 2016 ABCA 125 (C.A.), at para. 20).

55In an original support application under the Divorce Act, the court only has jurisdiction to grant an order for child support if the child in question is entitled to support when the application is commenced (D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (S.C.C.), at para. 89). However, in Colucci v. Colucci, 2017 ONCA 892 (C.A.), the Court of Appeal held that this principle does not apply in the context of variation proceedings under the Divorce Act where a party seeks retroactive adjustments to child support. It concluded that the court has jurisdiction to entertain claims for retroactive increases in support, as well as claims by payors for retroactive reductions, regardless of whether the child remained entitled to support when the proceeding was initiated. The court held at paragraph 29 that the interests of certainty and finality did not justify erecting a rigid jurisdictional bar on variation applications simply because the children are no longer "children of the marriage” when the proceeding was commenced (see also Brear v. Brear, 2019 ABCA 419 (C.A.), at paras. 66 and 84).

2. General Principles Respecting Support Entitlement for Adult Children

56The test for entitlement to child support under the Divorce Act differs based on whether the child in question is under the age of majority or is 18 years of age or older. In cases involving children of the relationship who are of the age of majority or older (“adult children”), the determination of entitlement is a fact-driven exercise in every case. A finding that an adult child has not withdrawn from parental charge or is not yet able to obtain the necessaries of life is insufficient to establish ongoing entitlement to support; the moving party must also show that the child’s inability to do so is attributable to illness, disability or another “cause” recognized by the Divorce Act (Ethier v. Skrudland, 2011 SKCA 17 (C.A.), at para. 27).

57The first part of the analysis in determining child support entitlement for adult children requires the court to ascertain whether the child is in fact still under parental charge. The analysis of this issue focuses in part on whether the child remains financially dependent on the parent (Rebenchuk, at para. 25; Thompson v. Ducharme, 2004 MBCA 42 (C.A.), at para. 14; P.(S.) v. P.(R.), 2011 ONCA 336 (C.A.), at para. 31). However, the case-law under both the Divorce Act and similar provincial child support legislation establishes that a child can also be under parental charge if they are unable to manage daily living on their own without direct and consistent care, monitoring and support from their parent (Briard v. Briard, 2010 CarswellBC 119 (S.C.), at para. 16; aff’d 2010 BCCA 431 (C.A.); leave to appeal to S.C.C. refused [2010] SCCA No. 435 (S.C.C.); Carpenter v. March, 2012 CarswellNLTD(F) 11, [2012] N.J. No. 184 (Nfld. and Lab. S.C.- Fam. Div.), a para. 7; Senos v. Karcz, 2014 ONCA 459 (C.A.), at para. 6).

58In assessing whether an adult child is “unable to obtain the necessaries of life” within the definition of “child of the marriage,” the question is not whether their sources of income and other financial assistance support a sustenance existence, but rather whether they are sufficient to support the child’s reasonable needs having regard for the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the child’s support (Briard, at paras. 29-30; Lougheed v. Lougheed, 2007 BCCA 389 (C.A.), at paras. 23 and 25; Moore v. Moore, 2014 BCSC 2210 (S.C.), at para. 103; E.B.L.P. v. J.G.S., 2020 BCPC 18 (P.C.), at para. 50).

59Assuming that the court determines that the adult child is under parental charge and unable to withdraw from that charge or to obtain the necessaries of life, the second part of the entitlement analysis requires the court to determine whether the child’s inability to do so is due to illness, disability, or “other cause.” Section 2(1)(b) of the Divorce Act leaves open the question of what “other cause” would justify an order that a child who is of the age of majority or older remains entitled to child support from a parent, and the case-law establishes that the phrase is to be interpreted broadly (Olson, at para. 14; K.M.R. v. I.W.R., 2020 ABQB 77 (Q.B.), at para. 37).

60In this case, I find that the June 1, 2010 child support order was based on the expectation that Joel and Tyler would remain entitled to support based on their enrolment in a full-time program of post-secondary studies, which may constitute “other cause” for a child’s inability to withdraw from parental charge within the definition of “child of the marriage” (Jackson v. Jackson, 1972 141 (SCC), [1973] S.C.R. 205 (S.C.C.)). However, this basis of entitlement ended for Tyler when he left Fanshawe College in March 2010. The key issues respecting entitlement are therefore as follows:

1. Whether Tyler became entitled to support in March 2010 or at a later time based on his inability to withdraw from parental charge or obtain the necessaries of life due to his mental illness or for other cause; and

2. If he did become entitled on a different basis:

a) When did this entitlement arise; and

b) Did his entitlement end at any point?

61With respect to shifting grounds of entitlement and periods of lost entitlement, the case-law is clear that even if there is a lapse of entitlement, an adult child can regain their eligibility for support at a later date by meeting the test under the applicable legislation (Lawless v. Asaro, 2003 CarswellOnt 2416 (S.C.J.); Fergusson v. Kurylo, 2005 CarswellSask 167 (Sask. Q.B.); Haley v. Haley, 2008 CarswellOnt 369 (S.C.J.); Vohra v. Vohra, 2009 ONCJ 135 (O.C.J.); Aubert v. Cipriani, 2016 ONSC 6103 (S.C.J.), at para. 28).

62The case-law is also clear that a child who has ended their studies does not necessarily lose their entitlement to support as soon as they have completed their education. The child may continue to be unable to withdraw from parental charge for a period of time after the completion of their studies for various reasons. For instance, the case-law recognizes that children may require a reasonable transition period after ending their studies to seek out and obtain employment. The assessment of whether the child remains unable to withdraw from parental charge during such a transitional period for reasons that may justify ongoing entitlement to support, and the appropriate length of any such transitional period, involves a careful consideration of all relevant evidence respecting the child’s overall condition, means, needs and circumstances (C.(C.L.) v. C.(B.T.), 2005 BCSC 1787 (S.C.), at para. 12; Hartshorne v. Hartshorne, 2010 BCCA 327 (C.A.), at para. 76; additional reasons 2011 CarswellBC 107 (C.A.); P.(S.), at para. 32; MacEachern v. Bell, 2019 ONSC 4720 (S.C.J.), at para. 73; Brear; K.M.R., at paras. 38-41).

3. General Principles Relating to Support Entitlement of Adult Children Based on Illness or Disability

63The fact that an adult child suffers an illness or disability, even a significant one, does not in and of itself establish entitlement to support. Where entitlement to support is alleged to be based on disability or illness, the court will require credible and trustworthy evidence showing:

1. That the child does in fact suffer from an illness and disability;

2. That they are under the charge of the claimant parent; and

3. That they are unable to withdraw from parental charge either because:

a) They are unable due to their illness or disability to manage daily living on their own without the parent’s regular and consistent care, monitoring and support; or

b) They are unable due to their illness or disability to obtain the necessaries of life, and therefore look to the parent for financial assistance.

(Scott v. Scott, 2004 CarswellNB 587 (C.A.), at para. 46; Hanson v. Hanson, 2003 SKQB 347 (Q.B.); Briard, at para. 9).

65Proof that an adult child remains a “child of the marriage” based on illness or disability requires the child support claimant to point to evidence regarding the specific nature and consequences of the illness or disability, and how the consequences bear upon the adult child’s inability to withdraw from parental charge or to obtain the necessaries of life (Ethier, at para. 29). The case-law has established that there is no cut-off age for entitlement to support for children who have reached the age of majority but who are unable to withdraw from parental charge or obtain the necessaries of life due to illness or disability (Briard; Carpenter; Steindinger v. Morrell, 2013 MBQB 143 (Q.B.), at para. 26; MacEachern, at para. 66).

66In this case, the Applicant experienced difficulties securing Tyler’s cooperation in obtaining and producing evidence from any physicians or other health care professionals regarding his mental health difficulties since 2010. Unfortunately, as I also noted in MacEachern, this is a predicament that child support claimants often face in these types of situations. It is a challenge that must be handled carefully and with an eye to the potential repercussions to the child’s emotional stability of forcing full disclosure in the context of a legal battle between their parents about their support. As I discussed in MacEachern, it must be remembered that adult children in these circumstances often find themselves caught in the middle of the dispute between the parties, with conflicting loyalties. These concerns must be balanced with the payor’s interest in having sufficient evidence to respond fully to the moving party’s claims. The challenge in each case is for the court to take a balanced and reasonable approach to the type of evidence that is required to support the claimant’s argument respecting entitlement, which respects the interests of the parties as well as the safety and well-being of the child. It is not every case that will require full medical disclosure to support a finding that an ill or disabled child is unable to withdraw from parental charge or to obtain the necessaries of life. Detailed and credible evidence from members of the child’s family or community regarding the child’s ailments, how the child is able to manage on a daily basis, treatment that the child has received, how the child has fared and whether they are following through with treatment recommendations may be sufficient (MacEachern, at para. 80; Greening v. Mills, 2006 NLUFC 11 (U.F.C.), at para. 32).

67The fact that an adult child suffering from an illness or disability receives money through disability benefits, other forms of government assistance or from family members may be relevant to whether they are unable to withdraw from parental charge, but it is not determinative (Wetsch v. Kuski, 2017 SKCA 77 (C.A.); leave to appeal to S.C.C. refused 2018 CarswellSask 291 (S.C.C.)). Furthermore, an ill or disabled adult child who has sources of financial assistance and can meet their economic needs may nonetheless remain eligible for support if they require daily caregiving and monitoring by a parent to manage due to their challenges (Briard; Senos; Carpenter, at para. 7; Steindinger, at para. 26). There is an important distinction between the threshold entitlement issue and quantum in these circumstances. Where the child is financially able to meet their reasonable needs but is dependent in every other way on their parent, they may meet the test for entitlement and the real question will be the appropriate quantum of support (Wetsch, at para. 40; Senos).

68On the issue of whether a disabled or ill child is unable to withdraw from parental charge, the court should consider the child’s potential employability and their capacity to supplement their income within the boundaries permitted by any income support programs from which they receive financial benefits, such as ODSP. The fact that an individual is in receipt of such benefits is not in and of itself proof that they cannot earn additional income (Senos, at para. 73).

C. The Law Respecting Calculation of Child Support in Variation Proceedings

1. Legislative Provisions and General Principles

69Sections 17(6.1) to 17(6.5) of the Divorce Act and the provisions of the Guidelines establish the framework for the calculation and quantification of child support in variation proceedings. Section 17(6.1) provides that a court making a child support variation order shall do so in accordance with the applicable Guidelines. This presumption is subject to the court’s discretion to award a different amount pursuant to sections 17(6.2) to (6.5) of the Act in cases where special provisions have been made for the direct or indirect benefit of the child, or the parties have consented to an order that includes reasonable terms respecting the support of the child.

70Turning to the relevant provisions of the Guidelines, section 2(4)(b) reiterates the general principle that the Guidelines apply, with such modifications as the circumstances require, to orders varying a child support order. The starting point for the determination of the quantum of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

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

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

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

Child the age of majority or over

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

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

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

71Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities.

72Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. However, the court has the discretion to apportion section 7 expenses other than on a pro rata basis having regard for the circumstances of the case (Salvadori v. Salvadori, 2010 CarswellOnt 7339, 2010 ONCJ 387 (O.C.J.), at para. 28). In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) of the Guidelines take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

73With respect to retroactive claims, the court must in dealing with those claims base its decision on the actual incomes of the parties for each year under consideration (Vanos v. Vanos, 2010 ONCA 876 (C.A.), at paras. 13-16).

74In Lewi v. Lewi, 2006 15446 (ON CA), 2006 CarswellOnt 2892 (C.A.), the Ontario Court of Appeal outlined the following general principles to assist in navigating the proper course for calculating child support pursuant to section 3 of the Guidelines:

a) Where the child is under the age of majority, the analysis is undertaken pursuant to section 3(1). Unless otherwise provided in the Guidelines, the amount of child support is the amount set out in the Tables and the amount, if any, determined under section 7 in relation to special and extraordinary expenses. The court determined that pursuant to section 3(1), contributions to section 7 expenses that the court determines are appropriate are not properly characterized as “add-ons” to the child support order, but are a part and parcel of the basic child support amount ordered under section 3(1).

b) If the case involves a child who has reached the age of majority, the amount of child support payable after the child becomes an adult must be determined pursuant to section 3(2) of the Guidelines.

c) The court is directed by section 3(2)(a) of the Guidelines to start with the presumption that in cases involving children over the age of majority, child support should be calculated in the same manner as for a child under the age of majority, that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses which is determined to be appropriate. The court described this approach as “the standard Guidelines approach.” However, the court must then determine whether this approach is “inappropriate” based on the particular facts of the case.

d) If the court determines that the standard Guidelines approach is inappropriate, the court must determine the amount of child support in accordance with section 3(2)(b) of the Guidelines, which provides that the amount of support is the amount which the court considers appropriate, “having regard for the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.” The use of the term “approach” in section 3(2)(b) makes it clear that the court cannot depart from the standard Guidelines approach simply on the basis that the amount determined using the standard Guidelines approach is inappropriate.

e) Where the child is over the age of majority and the court determines that applying the standard Guidelines approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines, and resort should not be made to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines and judicial experience in applying them.

f) Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has the discretion to decide the amount that the child should be required to contribute.

2. General Principles Regarding the Calculation of Child Support for Adult Children

75The relevant legislative provisions as outlined above provide the court with a wide scope of discretion in cases involving adult children, after determining entitlement, to determine the appropriate approach to calculating child support for the child, the contribution which the child should make to their own support, if any, and the amount of child support that each parent should pay, if any. The quantification of child support for adult children requires the court to carefully consider all of the circumstances to arrive at a just amount of support (Rebenchuk; Senos; McClement v. McClement, 2017 BCCA 416 (C.A.)).

76It is important to note that a finding that an adult child has met the test for entitlement to support under the Divorce Act does not necessarily mean that the court will order support. In addition, even if the court determines that it is inappropriate to resort to the standard Guidelines approach for an adult child, the end result of the quantification analysis pursuant to section 3(2)(b) of the Guidelines after carefully considering the overall condition, means, needs and circumstances of the child and the parties may be a child support award close to or identical to the Table amount, or even more than that amount (Senos, at para. 63).

77The first issue to be determined in addressing the quantum of child support for adult children is whether the standard Guidelines approach to calculating support is “inappropriate.” In Francis v. Baker, 1999 659 (SCC), [1999] 3 S.C.R. 250 (S.C.C.), the Supreme Court of Canada considered the meaning of the term “inappropriate” within the context of section 4 of the Guidelines, which deals with the calculation of child support in cases involving payor parents who earn in excess of $150,000.00. The principles relating to the “inappropriateness assessment” under s. 4 are readily adaptable to the assessment under s. 3(2) of the Guidelines (Hagen v. Rankin, 2002 SKCA 13 (C.A.), at paras. 10-14; Senos, at para. 37; Wetsch, at para. 56). Based on the Francis decision and the case-law decided since that time respecting sections 3 and 4 of the Guidelines, the general principles for determining the appropriate approach to calculating support for adult children can be summarized as follows:

1. The term “inappropriate” in the context of section 3(2)(b) of the Guidelines means “unsuitable” rather than “inadequate” (Francis, at para. 36). Accordingly, the court’s discretion pursuant to section 3(2)(b) is not limited to increasing the amount of child support prescribed by the standard Guidelines approach; it may also order less than the Table amount in appropriate circumstances (Francis, at para. 40).

2. In determining the appropriate approach in relation to adult children under s. 3(2) of the Guidelines, the court must balance the objectives of predictability, consistency and efficiency, on the one hand, against those of fairness, flexibility and recognition of the actual condition, means, needs and other circumstances of the adult child of the marriage and the financial ability of each parent to contribute to the support of the adult child (Francis, at para 40; Wetsch, at para. 56).

3. A party who claims child support for an adult child in accordance with section 3(2)(a) is entitled to rely on the presumption in favour of the standard Guidelines approach. If the responding party challenges the application of section 3(2)(a), the onus of proof will ultimately lie with them to establish that the standard Guidelines approach is inappropriate (Francis, at para. 42; Senos, at para. 37). The party challenging the application of section 3(2)(a) is not required to testify or call evidence to rebut the presumption in favour of the standard approach, and the court may not draw an unfavourable conclusion from a failure to do so because the party may not possess the required relevant evidence (Francis, at para 43). The party may displace the presumption by simply relying on or questioning the evidence adduced by the party claiming support (Francis, at para. 43; Senos, at para. 37 Wetsch, at para. 56).

4. The onus of proof principles set out above should not be construed as restricting the scope of section 3(2)(b) to cases where a party challenges the appropriateness of the usual Guidelines approach. Section 3(2) of the Guidelines requires the court in all cases involving adult children to consider and decide whether the application of section 3(2)(a) is inappropriate, including those which proceed on an uncontested basis or in which no party formally objects to the usual Guidelines calculation (N.(W.P.) v. N.(B.J.), 2005 BCCA 7 (C.A.); DeBeck v. DeBeck, 2012 BCCA 465 (C.A.); McClement, at para. 12).

5. The court should not deviate from the standard Guidelines approach outlined in section 3(2)(a) unless the evidence in its entirety is sufficient to raise a concern that the Table amount is inappropriate. The evidence in support of a deviation from the usual Guidelines calculation must be clear and compelling (Francis, at para. 43; Senos, at para. 37; Wetsch, at para. 56).

6. Ultimately, there is a broad discretion with the trial judge to determine whether or not the standard Guidelines approach should be resorted to in cases involving adult children (Francis, at para. 44; Rebenchuk, at para. 28; McClement; Senos, at para. 37; Wetsch).

7. The analysis of whether the typical Guidelines approach is inappropriate often turns on whether the particular facts in the case under consideration displace the basic assumptions upon which the Table amounts are based. As the Saskatchewan Court of Appeal stated in Wetsch, at para. 51, “[o]n a principled basis, any factor or combination of factors that shifts the circumstances away from the assumptions upon which the Table amounts are predicated serves to cast doubt upon the appropriateness of approaching child support under s. 3(2)(a) of the Guidelines” (see also Senos, at para. 39). Three such assumptions underlying the Table amounts are that the child is residing primarily with the recipient parent, that they are not earning a significant income and that they do not have any other substantial financial means (Rebenchuk, at paras. 30-32; Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.) at para. 66; Senos; Wetsch, at paras. 50-52).

78The factors relevant to the quantification analysis for adult children will vary depending on the child and the unique circumstances of each case. By way of overview, some of the major considerations which the courts typically consider in determining the appropriate approach to calculating child support, the extent to which the adult child should contribute to their own support and the quantum of support, if any, that the parents should pay are as follows:

1. The condition, means, needs and overall financial circumstances of the child, and the ability of the child to contribute to their own support. No single element of legislative purpose is to be given more weight than the actual circumstances of the child (Francis, at para. 44; Senos, at para. 37). If the child has an income source or significant assets, or is reasonably able to work and earn a wage, the court may conclude that the standard approach should not be followed since the child can contribute meaningfully to their basic living expenses (Rebenchuk, at para 32; Lewi; Taggart v. Taggart, 2019 ABCA 78 (C.A.), at para. 78).

2. Whether the adult child receives financial assistance from sources other than their parents and their own employment, and if so, the nature and quantum of those sources of support or assistance.

3. The condition, means, needs and overall financial circumstances of the parents, and the effects that the order would have on them.

4. The age of the adult child and their level of maturity.

5. Whether the child has any special needs, and if so, the impact if any of those special needs on the child’s ongoing support requirements.

6. Whether the child has exhibited an unwillingness to become employed or self-sufficient.

7. The child's level of education or training.

8. Whether the child lives away from the parents or with one of them.

9. Whether the child has their own general health, medical and dental benefits through any source.

3. Specific Considerations Respecting the Calculation of Child Support for Adult Children in Receipt of Disability Benefits

79As I have indicated, Tyler is in receipt of ODSP and Trillium benefits in the amount of approximately $950.00 per month. This is an important consideration in determining the appropriate approach to the calculation of child support under section 3(2) of the Guidelines. In Senos, the Ontario Court of Appeal addressed whether an adult child’s receipt of ODSP benefits in the amount of almost $10,000.00 per year rendered the standard Guidelines approach inappropriate within the meaning of section 3(2)(b) of the Guidelines. The court concluded that the adult child’s receipt of ODSP benefits in that case was sufficient to displace the “one-size-fits-most” approach set out in section 3(2)(a) of the Guidelines in favour of the “tailor-made” approach in section 3(2)(b) (at para. 58). In reaching this decision, the court noted that there was a real potential for overlap between child support payments, which are intended to assist the residential parent to cover the child’s needs relating to shelter, food and clothing, and ODSP benefits paid to the recipient child, which cover similar needs (at paras. 61-62). In addition, the court emphasized that ODSP support reflects society’s commitment to sharing financial responsibility for adults with disabilities, and that it therefore “makes little sense to calculate child support on the basis that this responsibility falls only on the parents” (at para. 64).

80In Senos, the court noted that in quantifying the appropriate amount of support for an adult child in receipt of ODSP benefits pursuant to section 3(2)(b) of the Guidelines, the court must take into consideration the possibility that child support funds which a recipient parent gives directly to the child or uses for the child’s benefit may be treated as the adult child’s income for ODSP purposes, with the result that a portion of the ODSP benefits may be clawed back. However, as of January 2017, the policy of ODSP is that child support which a recipient parent receives for an adult child who is in receipt of ODSP benefits is excluded from the adult child’s income for ODSP purposes. Accordingly, the concern about potential claw-backs of ODSP benefits due to the adult child receiving benefits from child support payments is now only relevant for retroactive awards relating to the time period prior to January 1, 2017.

81In determining the appropriate quantum of a child support award for an adult child who is disabled or ill, the court should assess their ability to supplement their income (Senos, at para. 73). Evidence that they are able to work but have failed to make reasonable efforts to do so may cause the court to reduce the amount of support payable, make a time limited award or deny child support altogether.

PART VI: ANALYSIS

I. ISSUE #1: HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO CHILD SUPPORT SINCE JUNE 1, 2010?

82Applying the principles outlined above, the first issue to be determined is whether there have been any material changes in circumstances as provided for in the Guidelines since the existing order was granted on June 1, 2010. I conclude that there have been such changes in circumstances within the meaning of section 14(b) of the Guidelines. The June 1, 2010 order essentially required the Respondent to contribute an annual fixed amount to Tyler and Joel’s post-secondary education expenses. Since Tyler and Joel were 19 years of age at the time and the order did not provide for a monthly Table amount of support, the authority for making the order would have been section 3(2)(b) of the Guidelines. Section 14(b) of the Guidelines stipulates that in cases involving orders that do not include a determination made in accordance with a Table, “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support” constitutes a change in circumstances that gives rise to the making of a variation of child support. I find that there were very significant changes in Tyler’s condition, means, needs and circumstances after the June 1, 2010 order was made.

83As of June 2010, the parties were aware that Tyler had not been able to complete his first term of school. However, as I have indicated above, the reasons for his inability to do so and the nature and extent of his difficulties were far from clear. I accept the Applicant’s evidence that it took her a considerable amount of time to determine what had transpired with Tyler while he was at Fanshawe College. While Tyler exhibited some concerning behaviour during the spring of 2010, I find that neither he nor the parties understood or appreciated the nature and extent of his difficulties. The terms of the June 1, 2010 reflect an expectation that both Tyler and Joel would be continuing with their post-secondary studies, and that they would move towards independence upon the completion of their education. As I have discussed, Tyler was entitled to considerable monthly financial support while he was enrolled in post-secondary studies as a result of his Native status. Accordingly, the contribution required from the parties for his support was nominal. However, after June 2010, Tyler’s mental health continued to deteriorate significantly. By the spring of 2011, he was hospitalized at St. Joseph’s Hospital for an extended period of time due to these difficulties. As I have previously noted, he received ongoing out-patient mental health treatment and support services through the Cleghorn Clinic following his discharge from St. Joseph’s Hospital in the fall of 2011. I find that it was not until 2011 that it became apparent that Tyler was suffering from mental health challenges that would likely be long-term in nature. His second urgent admission to the psychiatric ward at St. Joseph’s Hospital in early 2012 reinforced this point. I am satisfied based on the evidence before me that Tyler was unable to withdraw from the Applicant’s charge until mid to late 2012 due to the significant mental health challenges that he was experiencing, and that his need for support after June 2010 was more long-term and much higher than it had been as of June 1, 2010. The extent of his need increased because he lost his entitlement to financial support for his living expenses following his discharge from Fanshawe College. For all of these reasons, I conclude that the threshold test for pursuing a variation of the June 1, 2010 order has been satisfied.

II. ISSUE #2: HAS TYLER BEEN ENTITLED TO CHILD SUPPORT SINCE JANUARY 2015?

84Having determined that the threshold test for variation has been established, the question is whether a variation of the June 1, 2010 is appropriate. As I have indicated, the Applicant seeks child support in the amount of $295.00 per month commencing January 1, 2015. The Respondent submits that Tyler was not a child of the marriage for the purposes of child support entitlement as of 2015, and that he did not regain entitlement after that time. Having carefully considered and weighed all of the evidence, I have no difficulty finding that Tyler remained entitled to support until late 2012. However, I conclude that there is insufficient evidence to support a finding that he remained a child of the marriage and thus entitled to support after that time. The evidence is clear that Tyler has not withdrawn from the charge of the Applicant in that his income up to this point has not been sufficient to meet all of his needs. The Applicant has requested a limited contribution from him to cover some of his housing needs, and she is covering the shortfall with respect to his other expenses. However, I am not satisfied based on the evidence that Tyler is unable to withdraw from her charge or to obtain the necessaries of life due to his mental health difficulties or for any other reasons.

85In reaching my decision respecting Tyler’s entitlement to support since late 2012, I have considered the evidence adduced at trial respecting his mental health difficulties. I accept the Applicant’s evidence that there has been uncertainty respecting his mental health diagnosis, that the working diagnosis has changed over time, and that the psychiatrist who has been involved with Tyler since December 2018 is of the view that his symptoms may be consistent with a diagnosis of paranoid schizophrenia. The Applicant has been involved in monitoring Tyler’s mental health issues and consulting with his treatment professionals, and I found her credible in giving this evidence. Furthermore, there is no dispute that Tyler has been receiving ODSP benefits due to his mental health difficulties since sometime in 2011, and that ODSP confirmed in early 2019 that he remained eligible for those benefits. However, evidence of a psychiatric diagnosis and eligibility for disability benefits alone are not necessarily sufficient to establish child support entitlement for an adult child based on illness or disability. As I have indicated in my review of the case-law, the court requires credible and reliable evidence respecting the symptoms that the adult child is exhibiting, the treatment that has been recommended, the child’s compliance with and response to recommended treatment modalities, the effects if any of their mental health difficulties on their ability to meet their daily needs and to move towards economic self-sufficiency, efforts that they have made to do so and the outcomes of any such efforts. Unfortunately, the Applicant chose not to call any psychiatrists or other mental health professionals who have been involved with Tyler as witnesses to address these issues. She also chose not to call Tyler himself as a witness, despite the fact that he is 29 years of age and there is no evidence that he lacks the capacity to testify. As I discussed in MacEachern, it is not necessary in all cases involving child support for adult children based on illness or disability to call physicians or other health care professionals as witnesses. In some situations, the evidence of other professionals, family members or close family contacts may be sufficient to establish that the child is unable to withdraw from parental charge or to obtain the necessaries of life. However, as I will discuss in further detail below, the evidence of the parties and the Applicant’s witnesses was not in my view sufficient to support such a finding.

86On the issue of medical or other professional evidence in this case, as I have discussed at length above, I granted the Applicant an adjournment of the trial to give the Applicant an opportunity to call medical evidence and decide which treatment professionals she should call. I granted her numerous indulgences to allow for the addition of Tyler’s family physician, Dr. Davis, as a witness. Ultimately, Dr. Davis was not permitted to testify for the reasons outlined above. The Applicant’s evidence at trial respecting Dr. Davis’ contact with Tyler since 2012 clarified the very limited nature of her involvement with Tyler since that time, and reinforced my concerns respecting the marginal probative value of any evidence that she could have provided respecting Tyler’s mental health diagnosis, his symptoms if any, his overall functioning and his ability to move towards independence since 2012. The Applicant indicated that although Dr. Davis was instrumental in facilitating Tyler’s admission to St. Joseph’s Hospital in 2011 and to the Cleghorn Clinic, Tyler has only seen her once a year for a general check-in since 2012.

87It was clear from the Applicant’s evidence that there have been several mental health professionals involved with Tyler since 2011 who could have been called as witnesses to testify as to Tyler’s diagnosis, the symptoms typically associated with his illness, his particular symptoms, the history of treatment recommendations for Tyler, his compliance and response to treatment, his overall functioning from a mental health perspective and his ability to move towards self-sufficiency. Tyler had psychiatric treatment teams involved with him during his admissions to St. Joseph’s Hospital in 2011 and 2012, and Dr. Archie had extensive involvement with him as his treating psychiatrist at the Cleghorn Clinic. As I have indicated, Dr. Archie discharged Tyler from the Cleghorn program because she considered him to be stable from a mental health perspective. Neither the Applicant nor her counsel provided a reasonable explanation as to why none of these mental health professionals were summonsed to give evidence. Similarly, the Applicant did not provide a reasonable explanation for failing to call the psychiatrist who has been involved with Tyler since December 2018 as a witness. It is clear from Tyler’s reaction to the attempts to produce Dr. Davis’ notes and to call her as a witness that he is very concerned about sharing his personal health information. This may explain the Applicant’s decision not to call the mental health professionals who have been involved with him to give evidence. However, in cases involving adult children where entitlement is based on disability or illness, the reality is that some degree of cooperation is typically required from the adult child. The overall impression left in this case was that Tyler was not in support of this child support proceeding and was intent on putting roadblocks in its path at every stage. The Applicant attempted to lay the blame for this dynamic on the Respondent, alleging that he pressured Tyler not to disclose his medical information, and that he and his mother retaliated against Tyler emotionally after the proceeding began. However, I find that any negative reaction to the proceeding on the part of the Respondent and his mother was short-lived. In addition, I find that the Respondent made efforts himself to obtain Tyler’s medical information directly from Dr. Davis’ office during the course of these proceedings, and that Tyler blocked those attempts as well.

88The evidence that I did receive at trial respecting the course of Tyler’s medical assessment, treatment and functioning does not support the Applicant’s claim that Tyler has remained entitled to support since late 2012. The following points are highly informative in this regard:

1. As I have stated, despite Tyler’s serious mental health crises in 2011 and 2012 and his involvement with the Cleghorn program, he was discharged from Cleghorn based on his treatment team’s assessment that his mental health had stabilized.

2. Tyler has not had any further admissions to hospital for mental health issues since early 2012.

3. The Applicant testified that Tyler is still on medication, which makes him sleep between 12 to 14 hours a day, but that he has been compliant in taking that medication. She referred to one medication that he takes, clozapine, which she described as “working wonders for him.” The evidence indicates that he has been taking this medication since at least January 2012.

4. Although Tyler requires blood work every two weeks because of the possible negative effects of the clozapine medication on his kidney functioning, he has been compliant in undergoing this blood testing and there is no evidence to suggest that he is suffering any such side effects.

5. Tyler has told both the Applicant and the Respondent since 2012 that he does not feel a need for ongoing monitoring by a psychiatrist.

6. The Applicant indicated that since Tyler’s discharge from the Cleghorn Clinic, Tyler’s consultation with mental health professionals has been limited to one session with Dr. Tam in approximately 2016, and one other session with another psychiatrist in December 2018. As of the date of her testimony, he was scheduled to see this latter psychiatrist again in June 2019.

7. The psychiatrist who saw Tyler in December 2018 immediately referred Tyler to an occupational therapist to assist him to become more engaged and motivated. This suggests that he felt that Tyler may in fact have the capacity to function at a more productive level than he has been since 2012.

89I have also considered and weighed the evidence of the parties and the two witnesses who the Applicant called respecting Tyler’s general functioning since late 2012. That evidence was in my view insufficient to tip the balance in favour of a finding of ongoing child support entitlement since that time. Dealing first with the Tyler’s general mental health and emotional functioning, the Applicant indicated that Tyler has some social anxiety, particularly when he is around crowds, and that he became stressed recently about wanting to have an HIV test completed, despite the Applicant’s impression that he had not had any sexual contact with anyone. She relayed that Tyler’s thoughts are sometimes “out there” when he vocalizes them, but that she is able to “set him straight” without too much difficulty. She did not provide any specifics to support this assertion. She indicated that Tyler becomes particularly anxious when he does not know where she is, or when he leaves the house, and often checks the windows and the back door several times to ensure that they are locked. She also explained that Tyler experienced what she described as symptoms of depression when the Respondent and his mother cut off contact with him following the commencement of this proceeding. As I have noted, this issue was resolved in due course. The Applicant relayed as well that she provides ongoing support for Tyler. Specifically, she checks with him that he has taken his medication, makes doctor’s appointments for him and takes him to appointments and consults with professionals who are involved with him. She also assisted Tyler in obtaining ODSP benefits, and she is included on all correspondence respecting Tyler from the ODSP program. While this evidence satisfies me that Tyler has some ongoing challenges with respect to anxiety and occasionally with his thought processes, and that he requires hands-on support from the Applicant, it is in my view not sufficient to prove that he is unable to withdraw from parental charge or to obtain the necessaries of life due to his mental health issues.

90Against the Applicant’s evidence respecting Tyler’s general functioning, I have considered the evidence and impressions of the Respondent and the Applicant’s two other witnesses, Tracy Midgley and Clayton Laforme. The Respondent testified that during his regular weekly contacts with Tyler since late 2012, he has not noticed any concerns at all respecting Tyler’s mental health functioning. He relayed that Tyler has told him that he did not see a psychiatrist for many years. In addition, he indicated that Tyler’s personality has always been generally similar to his, in that they are both very introverted and not comfortable in social settings. His view is that Tyler’s social anxiety that the Applicant described is largely attributable to his general personality traits. He is aware that Tyler spends many hours driving, and relayed that Tyler has also talked about frequenting the casino and gambling on several occasions. He testified that Tyler wears designer clothes and has shown him several designer watches that he owns, but he was unaware of how Tyler had secured the funds to obtain these items. I found the Respondent to be credible and reliable in giving this evidence.

91The Applicant called her stepfather, Clayton Laforme, as a witness. He testified that he noticed concerns respecting Tyler’s general presentation following the parties’ separation. Since the Applicant and Tyler moved into their new home, he has on occasion asked Tyler to help him with some home improvement projects that the Applicant asked him to complete. He stated that his impression was that Tyler did not understand the purposes of basic tools, that he exhibited fear of using power tools, that he sometimes had difficulty following basic instructions about the projects, and that he required encouragement to complete the tasks. Despite these issues, he acknowledged that Tyler was very eager to assist with these projects and was helpful in completing the tasks. This evidence certainly suggests that Tyler had not had any previous instruction or experience in carrying out home construction and improvement projects, and that this type of work is not his forte or within his comfort zone. However, it does not in my view support the Applicant’s claim respecting Tyler’s inability to withdraw from parental charge or to obtain the necessaries of life due to his mental health challenges.

92Likewise, I conclude that the evidence of the Applicant’s other witness, Tracey Midgely, respecting Tyler’s general mental health and emotional functioning did not advance the Applicant’s position respecting ongoing child support entitlement for Tyler. Ms. Midgely has been the Applicant’s friend since approximately 2012. She testified that during the first few years of her friendship with the Applicant, Tyler did not interact with her very much and generally kept to himself in his room when she attended the Applicant’s home. However, she indicated that in more recent years, he has been much more interactive and engaged with her when she has seen him. She described Tyler as a sweet and great man who is now very friendly with her. In particular, she stated that he talks to her about sports, other activities and her family. She also indicated that he helps the Applicant around the house and that he participates in outings with her and the Applicant. She stated that she had no knowledge about Tyler’s involvement in any income-earning activities. Upon carefully considering Ms. Midgely’s evidence, I find that it reinforces the Respondent’s position that Tyler’s overall mental health and emotional functioning have improved significantly since 2012.

93I have considered the evidence respecting Tyler’s ability and efforts to earn income to supplement his ODSP benefits since late 2012. As I indicated in my discussion of the case-law, this is an important consideration in determining whether an adult child is unable to withdraw from parental charge or to obtain the necessaries of life due to disability or illness. The evidence in this case does not convince me that Tyler has since late 2012 been unable due to his mental health challenges to engage in efforts to upgrade his skills and training and work towards self-sufficiency. On this issue, the Applicant testified that Tyler signed up with an employment agency in approximately 2016 to try to find work, and that he secured a temporary position at Maple Leaf Foods, but that this position only lasted a few days, allegedly due to his lack of focus and failure to follow protocols. According to the Respondent, Tyler informed him that he decided to quit this job. The Applicant did not adduce any documentary evidence from this employment agency to confirm why this position ended, or to show whether the agency offered any other positions to Tyler which he did not accept. The Applicant indicated that apart from this attempt at earning income, Tyler has only worked “one day here and there.” She did not elaborate at all about the nature of this other casual work that he has engaged in, although she mentioned at another point in her testimony that Tyler accompanies her when she carries out her work three times a year for Connect Marketing. The Respondent testified that he was aware that Tyler has had casual day jobs from time to time, including a job with a family friend. As I have indicated, the psychiatrist who became involved with Tyler in December 2018 immediately referred Tyler to an occupational therapist to assist him in becoming more engaged and motivated to lead a more productive life. The Applicant did not adduce any evidence as to whether other professionals involved with Tyler in the past had made this type of referral or recommended this type of service, and if so, how Tyler responded. It appears from the Applicant’s evidence that apart from the short-lived job at Maple Leaf Foods and the recent referral to the occupational therapist, Tyler has not made any efforts since 2012 to access services to assist him in acquiring daily living and employment skills so that he can work towards greater economic self-sufficiency. The Respondent’s evidence supports this conclusion. He indicated that he suggested at one point that Tyler sit in on one of his computer skills classes to see if he may be interested in computer-related work. However, he testified that Tyler did not follow through with this suggestion. In addition, he stated that during the past year or so, he had learned about a training course that ODSP offers for benefits recipients in the Hamilton area to assist them in obtaining skills training and to seek out employment opportunities. He indicated that Tyler did not show any interest in this program and did not attend. Upon considering the evidence in its totality, I am not satisfied that Tyler has been unable due to his mental health difficulties to upgrade his training and skills and pursue income-earning activities. In fact, the evidence leads me to conclude that he has become comfortable in his mother’s home and in relying on her to subsidize his expenses, and that he has not been achieving anywhere near his full potential for contributing to his own support. I do not intend to cast judgment on the Applicant in reaching this conclusion. I have no doubt that she has encouraged Tyler to work towards achieving greater independence. In fact, the evidence indicates that she has been a strong influence in encouraging Tyler to follow through with ongoing monitoring by the psychiatrist who was most recently involved with him, and in moving forward with the services of the occupational therapist. The Applicant mentioned several times during her testimony that Tyler is an adult, and that she is unable to force him to follow through with the recommendations of treatment professionals. I fully appreciate the difficulties that parents in her situation face in trying to encourage adult children with health issues to take the necessary steps to work towards independence, all the while being worried that doing so may precipitate a deterioration in the child’s functioning and well-being. Unfortunately, parents in the Applicant’s situation are often left bearing all or most of the financial burden of caring for adult children. Despite the sympathies that the court may feel towards parents in these circumstances, it must maintain a focus on the legal principles respecting child support entitlement and the calculation of child support. At the end of the day, the law requires adult children who are experiencing illness or disability to make reasonable efforts to manage their daily needs and work towards financial independence if they are able to do so, or alternatively to cooperate in producing evidence to establish why they cannot do so. Unfortunately, Tyler has not done either.

94In reaching my decision respecting Tyler’s ongoing entitlement to support since late 2012, I have also considered the evidence respecting the various activities that he has been involved in. The Applicant testified that there is no Power of Attorney for Personal Care in effect for Tyler. Despite his ongoing challenges, he was able to select and purchase a vehicle on his own in 2015, and he has been responsible for paying all expenses relating to the vehicle, managing the maintenance requirements, keeping the licence and registration up to date and keeping the insurance in effect. He has been able to obtain and maintain a driver’s licence. He was able to secure a line of credit through the bank without the Applicant’s agreement or guarantee on the debt, and he used this credit line to finance part of the purchase price for his car. He fell into debt in the amount of $7,200.00 with respect to the line of credit because he failed to make payments for a period of time, but he is now working on paying that debt off. Tyler drives his car on a very regular basis on his own. The Applicant testified that he often spends several hours driving and visiting various places, including Niagara Falls, Toronto and Port Dover. Tyler has often driven his brother Joel to and from Hamilton and London on his own. The Applicant also indicated during her testimony that Tyler has friends who he maintains contact with, including through various social media platforms. Ms. Midgley indicated that he participates in outings with her and the Applicant. The Respondent indicated that he has attended the casino on several occasions. All of this evidence suggests that Tyler has achieved a fairly reasonable level of daily functioning since 2012.

95I have reflected at great length on the evidence respecting the Applicant’s ongoing emotional and day-to-day support of Tyler over the past several years. It is clear that Tyler does require emotional support and some ongoing hands-on assistance and guidance from the Applicant, and I commend the Applicant for her commitment to Tyler and her efforts in assisting him. As I indicated in my discussion of the law, an adult child who is able to meet their basic financial needs may nonetheless meet the test for entitlement to support if they are unable to withdraw from parental charge because of their need for support with respect to daily living activities. However, for all of the reasons outlined above, I am not satisfied that the support which Tyler requires is of such a degree that he cannot withdraw from the Applicant’s charge.

III. ISSUE #3: WOULD A CHILD SUPPORT ORDER HAVE BEEN APPROPRIATE EVEN IF ENTITLEMENT HAD BEEN ESTABLISHED?

96Even if the evidence had satisfied me as to Tyler’s ongoing entitlement to support, it would be necessary to proceed to the quantification stage of the analysis, where the court must determine whether the standard Guidelines approach is inappropriate, and if so, whether any child support should be paid to the Applicant. As I discussed in my review of the law, even if entitlement is established, the court may determine at the quantification phase that no child support should be payable. On the facts of this case, this is the conclusion that I would have reached even if the Applicant had proven that Tyler had remained entitled to support. I turn to my analysis of this issue.

97Based on all of the evidence, and in particular, the fact that Tyler receives significant ODSP benefits on a monthly basis, I find that the standard Guidelines approach to the calculation of child support would have been inappropriate if the test of entitlement had been met. Tyler’s monthly income is approximately $950.00 per month, and this amount covers most of his basic needs. Accordingly, the calculation of quantum of support would be governed by section 3(2)(b) of the Guidelines which, as I have discussed, involves a comprehensive analysis of the adult child’s overall condition, means needs and other circumstances, and the financial ability of each spouse to contribute to the child’s support.

98An important aspect of the analysis respecting Tyler’s condition, means needs and circumstances at the quantification stage is, again, whether he has been capable of upgrading his skills and training and of pursuing additional income sources to supplement his ODSP income, and if so, whether he has made reasonable efforts in this regard. For the reasons discussed above, I am not convinced that he has been unable to work towards greater economic self-sufficiency or that he has made reasonable efforts to do so.

99In considering Tyler’s overall condition, means needs and circumstances, I have also reviewed his monthly expenses. It appears that he incurs approximately $366.00 per month on expenses relating to his vehicle. This includes $45.53 per month for interest on the line of credit that he used to purchase the car, which has an outstanding balance of approximately $7,200.00. While I appreciate that Tyler enjoys driving and that the car gives him an incentive to leave the home, I must consider the reasonableness of this expense in light of his financial means, the overall financial condition, means, needs and circumstances of the parties, and their ability to contribute to Tyler’s support, which are also important considerations in the quantification analysis. Taking all relevant factors into consideration, I am not satisfied that Tyler’s expenses relating to his vehicle are reasonable. The Applicant is of very limited means, earning only approximately $25,108.00 per year including the money that she receives from Tyler, and she has no savings or significant assets other than her home. She also has a vehicle and is not working full-time, so Tyler could conceivably use her vehicle occasionally to drive for pleasure. The Respondent earns only $38,000.00 per year, does not own a home, has no significant assets, and has only saved $60,791.00 towards his retirement. He will be 54 years of age in September 2020. He has a monthly surplus of only $280.00 to apply towards his retirement, and a review of his expenses as set out in his December 9, 2019 Financial Statement indicates that his expenditures are exceedingly modest. In fact, I would say that they are overly conservative. For instance, his rent is only $801.00 per month, his reported vehicle expenses total only $430.00 per month and his total personal expenses are only $92.00 per month. He has only listed $300.00 per month for groceries. Regrettably, I find that the Respondent will in all likelihood be struggling greatly over the next many years to amass sufficient savings to allow him to retire and cover his basic daily needs. The evidence satisfies me that he clearly lacks the financial means to contribute to Tyler’s support at this point. However, I note that he has advised Tyler several times that he is welcome to live rent-free at his home, which he also shares with Tyler’s brother. I find that this is a genuine offer. Accordingly, this is another option for Tyler in the event that the financial burden on the Applicant of subsidizing his living expenses becomes too onerous for her. While this is does not appear to be Tyler’s first choice in terms of living arrangements, the reality for this family is that they are all struggling financially and they will all need to make personal sacrifices to get by, including Tyler.

IV. ISSUE #4: WOULD THE APPLICANT HAVE SUCCEEDED WITH RESPECT TO A RETROACTIVE CLAIM?

100As I have indicated, the Applicant has claimed child support commencing January 2015. The effective date of January 1, 2015 for her retroactive claim was an amendment that she made to her Motion to Change Final Order during the trial. My conclusion that the evidence does not support a finding of child support entitlement for Tyler past late 2012 fully addresses the retroactive aspect of her claim. However, I note for her benefit that upon carefully considering all of the evidence, I am of the view that the farthest back her retroactive claim could have extended would have been sometime in late 2014, after Tyler’s entitlement to support ended.

101The Supreme Court of Canada addressed the principles that apply in retroactive child support in D.B.S. and Kerr v. Baranow, 2011 SCC 10 (S.C.C.). The court noted that there is no automatic right to pursue retroactive child support, and that the starting point in each case is to analyze the legislation that applies to the case to determine if it establishes parameters or guidelines regarding retroactive claims. It canvassed in detail the various interests that come into play in retroactive support cases, and concluded that the three main interests are as follows (at para. 133):

1. The need on the part of the child for support;

2. The payor’s interest in certainty and predictability when financial obligations appear to be settled; and

3. The need for flexibility in order to ensure a just result.

102Notwithstanding these considerations, the Supreme Court of Canada emphasized that ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. In the final analysis, it adopted a highly discretionary approach to retroactive child support claims, and outlined the following general factors which judges should consider in determining the issue of entitlement to retroactive relief:

1. Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier;

2. The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support;

3. Consideration of the past and present circumstances of the child, and the extent to which they may benefit from a retroactive award; and

4. Any hardship that may be occasioned by a retroactive order.

103In D.B.S., the court also set out general principles respecting the appropriate date from which retroactive relief should begin. It established that generally, a retroactive child support order should commence as of the date when effective notice is given to the payor that child support is in issue. The concept of effective notice does not require the recipient parent to take any legal action. The court described “effective notice” as “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated” (at para. 121; see also M.(D.) v. A.(S.), 2008 CarswellNS 367 (N.S.F.C.), at para. 77). Subsequent cases have held that to establish “effective notice,” there must be a reasonably precise date when the issue of support was raised. Vague assertions about having talked to the payor about support at some time in the past will not suffice (Hansen v. Clark, 2008 MBQB 324 (Q.B.); aff’d 2009 MBCA 69 (C.A.)).

104In D.B.S., the court concluded that using effective notice as the starting point for the timing analysis strikes a fair balance between certainty for the payor and flexibility to achieve justice. However, it held that even where effective notice has been given, it will usually be inappropriate to delve too far into the past. The court discussed the responsibility of a recipient payor to move discussions regarding support forward and to take further action if negotiations do not result in acceptable outcomes. If they fail to do so, “a prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned” (at para. 123). The court concluded that in the interests of certainty, predictability and ensuring that child support claims are prosecuted in a reasonably timely manner, a general guideline is necessary for determining how far back a retroactive award should reach. The court concluded that as a general rule, it will be inappropriate to make a support award retroactive to a date more than three years before formal notice of a claim was given to the payor parent. The Supreme Court of Canada did not define the notion of “formal notice” in D.B.S. However, in discussing the various possibilities for the timing of retroactive awards, the court distinguished between formal notice and the date on which the proceeding seeking relief was commenced. Accordingly, formal notice can be earlier than the commencement date of the proceeding.

105The guidelines which the Supreme Court of Canada outlined in D.B.S. regarding the timing of a retroactive award are simply presumptive principles. The question of timing is ultimately a discretionary decision that must take into consideration the particular facts and dynamics of each case. In exercising this discretion, the court should also consider whether there are any terms in an existing order or agreement which are relevant to the issue of timing for retroactive relief (Punzo, at para. 52). The court emphasized in D.B.S. that a retroactive award may, in appropriate circumstances, extend further back than three years from the date of formal notice, or even prior to the date of effective notice. In some situations, it is appropriate that the order reach as far back as the actual date when circumstances relevant to child support changed materially and child support should have begun or been re-adjusted. As examples of when a more far-reaching retroactive award may be appropriate, the Supreme Court of Canada discussed situations where the payor demonstrated blameworthy conduct, including engaging in intimidating tactics, lying to the recipient, failing to advise the recipient of material changes in circumstances or withholding important information that the recipient required to make an informed decision about a child support claim. The court stressed at para. 125 that evidence of such blameworthy conduct “will move the presumptive date of retroactivity back to the time when circumstances changed materially,” since “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments” (see also McGouran v. Connelly, 2007 ONCA 578 (C.A.), at para. 35; Reis v. Bucholtz, 2010 BCCA 115 (C.A.), at para. 77; P.(S.), at para. 44; Evanow v. Lannon, 2018 BCCA 208 (C.A.), at paras. 42 and 49; Virc v. Blair, 2017 ONCA 394 (C.A.), at paras. 48 and 93). A retroactive award may also commence much later than the date of effective notice or even formal notice in appropriate circumstances. For example, considerable delay by the recipient in advancing their case after giving effective notice, or evidence that the payor made reasonable contributions to the child’s support after effective or formal notice was given, are factors that may push the start date forward. Simply defaulting to the dates of effective and formal notice without specifying the reasons for doing so is an error of law (Evanow, at para. 49).

106Applying these principles to the case at hand, assuming that the Applicant satisfied the court that she should be permitted to advance a retroactive claim, it would then fall to the court to determine the date of effective notice. I find that the Applicant gave effective notice on October 7, 2011, when she sent the email to the Respondent inquiring if he would contribute to any of Tyler’s expenses. She relayed in that email her belief that the Respondent did not have to help financially, but she indicated that the expenses relating to Tyler were adding up. The Respondent was in school at that time attempting to upgrade his skills, and he responded that he had no income, that he was living off his savings, and that he would have no problem helping out when he began working. The parties both acknowledge that the Applicant did not raise the question of support for Tyler again until sometime in mid to late 2017, when the Applicant sent the Respondent a text asking again if he could help her to cover Tyler’s expenses. The Applicant did not adduce this text as evidence, but she testified that the Respondent did not respond to her inquiry. The Respondent received a letter from the Applicant’s lawyer soon afterward explaining Tyler’s mental health difficulties and requesting that he contribute to Tyler’s support. Neither party sought to adduce this letter as an exhibit at trial, but the agreed-upon content of the letter satisfies me that it would have constituted formal notice of the Applicant’s request for child support had it been proffered as evidence. Assuming for the purposes of this analysis that the date of formal notice was sometime in mid to late 2017, the presumptive commencement date for a retroactive claim would have been three years earlier, sometime in mid to late 2014. I conclude that there are no factors in this case that would justify moving this presumptive commencement date back to an earlier point in time. There is no evidence of misconduct on the part of the Respondent in relation to the child support issue from October 2011 until 2017. The parties agree that he complied fully with his child support obligations set out in paragraphs 4 and 5 of the June 1, 2010 order. In addition, I find that he was genuinely unable to contribute to Tyler’s expenses in October 2011, as he was attempting to acquire skills that would allow him to secure gainful and steady employment. He indicated in his reply to the Applicant’s October 7, 2011 email that he would have no problem helping out when he began to work. He did not reach out to the Applicant to inquire if she required financial assistance when he began to work again in early 2013. However, I accept his evidence that he did not appreciate until he received the text from the Applicant and the letter from the Applicant’s counsel in 2017 that the Applicant was of the view that she required child support. The Respondent indicated that he believed Tyler was doing well after 2012, and that neither Tyler nor the Applicant shared any information with him about Tyler’s treatment or involvement with mental health professionals from 2012 until he received the letter from the Applicant’s lawyer in 2017. The Applicant testified that she did not pursue the issue of support from 2011 until 2017 because she felt that she was able to manage reasonably well financially until she became injured and had to claim disability benefits. There is no evidence that the Respondent ever misled the Applicant about his income or financial means, or that he intimidated her in any way in regard to child support during the period from October 2011 until 2017. For all of these reasons, the best-case scenario for the Applicant with respect to a retroactive child support claim would have been that it would have commenced sometime in mid to late 2014, which was after Tyler’s entitlement ended.

PART VII: TERMS OF ORDER TO ISSUE

107For the reasons outlined above, a final order shall issue as follows:

1. The Applicant’s Motion to Change Final Order is dismissed.

2. The parties shall engage in meaningful discussions and negotiations respecting the issue of costs. In the event that they are unable to resolve this issue, any party seeking costs shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by no later than July 27, 2020. Any responding submissions shall be served and filed by no later than August 17, 2020. Reply submissions shall be served and filed by not later than August 24, 2020. There shall be no extensions to these deadlines unless otherwise ordered on notice to the other party prior to the expiry of the applicable deadline. Service may be carried out by email.

3. If no costs submissions and supporting materials are received within the specified deadline, the parties will be deemed to have settled costs and there shall be no order as to costs.