COURT FILE NO.: FC-19-887

DATE: 2020/08/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LUCIE M.B. FOURNIER Applicant/Respondent to Motion

– and –

RICHARD LEROUX Respondent/Moving Party

COUNSEL: Emma Costain, for the Applicant Sheldon Roussy, for the Respondent

HEARD: virtual hearing on July 29, 2020

Ruling on motion to change

LALIBERTE J.

INTRODUCTION

[1] The Respondent, Richard Leroux, has brought a Motion to Change seeking a retroactive finding that he has overpaid child support to the Applicant, Lucie Fournier, and an order for the reimbursement by her of the sum of $39,975. The essence of his claim is that he continued to pay child support from July 1, 2010 until September 8, 2016, pursuant to Justice March’s order of January 16, 2001, notwithstanding the fact that the children were no longer dependants entitled to financial support from him. He argues that these overpayments resulted from the Applicant’s “blameworthy conduct” in failing to notify the Family Responsibility Office (“FRO”) to terminate the collection of money from him and using the money for her own use.

[2] The Applicant disputes the Respondent’s claims and maintains that his Motion to Change should be dismissed primarily by reason of his delay in raising the question of the continuing payment of child support and his failure to give her prior effective notice. She rejects the suggestion that she acted in a “blameworthy manner” and submits that when looked at as a whole, the entire circumstances are such that the Court should exercise its discretion in favor of her position.

[3] So that properly articulated, the issues to be decided by the Court in this matter can be summarized as follows:

1. Whether the Court should make a retroactive finding that the Respondent has overpaid child support to the Applicant for the period of July 1, 2010 until September 8, 2016?
2. If the Court finds that there has been such an overpayment, should the Court order the Applicant to reimburse the Respondent the sum of $39,975?

FACTS

[4] The parties have filed the following evidence in support of their respective position:

Respondent

• His sworn affidavit dated November 2, 2019 and March 2, 2020;
• His Financial Statements dated May 13, 2019 and July 23, 2020;
• Sworn affidavit of Normand Leroux dated November 4, 2019;
• Sworn affidavit of Joanne Leroux dated November 4, 2019.

Applicant

• Her sworn affidavits dated December 4, 2019 and June 18, 2020;
• Her Financial Statements dated May 13, 2019, June 14, 2019 and July 20, 2020;
• Sworn Affidavits of Emilie Janes dated December 5, 2019 and December 10, 2019;
• Sworn affidavit of Melanie Leroux dated December 6, 2019.

[5] The undisputed facts reveal that the parties were married on June 19, 1982, separated in February 1992 and divorced on May 10, 1996.

[6] There are two (2) children of the marriage who are now independent adults, namely Melanie Leroux born August 2, 1985 and Emilie Leroux (now Emilie Janes), born February 24, 1991. Following the separation, the children remained primarily with the Applicant in Petewawa and would visit the Applicant in Ottawa every second weekend and on holidays.

[7] On January 16, 2001, Justice March granted a consent order under which the Respondent was ordered to pay the Applicant ongoing monthly child support in the amount of $533 commencing February 1, 2001. The order states that this amount was based on the Respondent’s income of $37,164. It also provides for the issuance of a Support Deduction order and enforcement by FRO. It is noted in the order that both parties were represented by Counsel before Justice March. It is also noted that paragraph 3 of the order states:

“3. Adjourned the Settlement Conference to March 1, 2001 at 1:30 p.m. re: issue of dental expenses (on going and arrears).”

[8] Justice March’s order did not provide for any review of the amount to be paid by the Respondent nor for termination.

[9] The order was filed with FRO for enforcement as per its terms and amounts were collected by FRO from 2001 to September 2016. While there is no dispute that the Respondent’s annual income increased through the years, neither party sought to adjust the child support accordingly. As will be discussed later, the reasons for this is a matter of dispute between the parties. The fact is that the subject matter was not raised by either.

[10] In December 2018, the Respondent commenced a Small Claims Court action against the Applicant seeking $25,000 for overpayments of child support which he then quantified at $54,366. The Applicant was served with the claim on December 13, 2018. The action was dismissed by the Deputy Judge as this Court does not have jurisdiction to deal with such family law issues.

[11] The Respondent subsequently commenced the present Motion to Change on May 14, 2019, initially seeking a reimbursement of $45,306 for having overpaid child support from 2001 to 2016.

[12] It also appears that for the most part, the children’s history is not in dispute. Both children remained primarily in the Applicant’s care with weekend visits to the Respondent.

[13] The child Melanie attended Cambrian College in Sudbury from September 2003 until June 2005 when she left the said college. She then lived with the Respondent from January 2006 to December 2010.

[14] The child Emilie graduated high school in 2010 at age 19. In August 2010, she left the Applicant’s home and moved in with her now husband. She enrolled at Nipissing University in September 2012 where she graduated in May 2017. She had gotten married on August 30, 2014.

[15] It is also undisputed that the Respondent, in the fall of 2016, contacted FRO requesting a review of his child support payments. FRO terminated same and the last payment was made on September 8, 2016.

[16] Both parties describe the other in fairly negative terms. The Applicant states that she was physically and verbally abused during their marriage. The Respondent’s affidavit evidence is that he was mentally abused by the Applicant.

[17] While the Respondent maintains having paid some s. 7 expenses (i.e. dental care), it is undisputed that the Applicant paid for most of s. 7 expenses namely medical, dental, orthodontic, eyeglasses and extra curricular activities. Nor did he contribute to post-secondary expenses other than through the monthly child support.

[18] The use made by the Applicant of the ongoing monthly child support payments is highly disputed.

[19] The Respondent’s belief is that the Applicant used this money for herself and did not give any to the children as of July 2010. He maintains that this was confirmed by both children during a Christmas gathering on December 27, 2016 when they told him that they had never received any FRO money from their mother. This assertion is supported by his brother Normand Leroux and sister-in-law Joanne Leroux. Their affidavit evidence is that the children were surprised when told that the Respondent was still paying child support and stated “mom never gave us any money”. The Court notes that both Normand and Joanne paint the Applicant in very negative terms, including how she cared for the children.

[20] The Applicant states that the money was strictly used for the children. She would send each some of her own money and their share of FRO money. This continued even after they became adults no longer residing with her.

[21] Both children have provided affidavit evidence which is supportive of the Applicants’ assertation as to the use of the child support payments.

[22] The child Emilie states that she does not recall the alleged December 27, 2016 conversation with her father. She explains that her mother used the money on them as they were growing up. She would give it to them directly as they got older and rejects the suggestion that the Applicant used it on herself. The money went to cover extra curricular activities. From 2009 to 2012, they had agreed that Melanie would receive the entire amount to pay off her student line of credit. She then received her share which she used on university costs and paying bills. The Applicant would deposit the money in her personal bank account. She was unable to obtain banking records to show this since the bank does not keep records for such a long period of time.

[23] Emilie confirms having been a full-time student at Nipissing University from September 10, 2012 to April 7, 2017.

[24] Lastly, Emilie produced a text message sent to her by the Respondent on November 21, 2019 wherein he states the following:

“I allowed FRO to keep giving money to your mom on my behalf because I really thought at the time that she was helping you pay for schooling. I don’t think that anymore…”

[25] The child Melanie also supports the Applicant’s position as to the use of the money. Her affidavit evidence is that the Applicant never used the money for herself. While she lived with the Respondent from January 2006 to December 2010, the Applicant would have continued to transfer funds to her which she used to pay her living expenses such as groceries. She couldn’t work during that period by reason of an anxiety disorder and clinical depression.

[26] Melanie confirms that a $16,000 line of credit had been used for school expenses and that the child support received from 2009 to 2012 went to pay off this line of credit.

[27] She denies having told the Respondent they could not believe he was still paying child support and that they had never received FRO money from the Applicant.

[28] She states that her father would constantly remark that they were considered “dependant adults” after turning 18 and voiced his discomfort in paying child support for them. They would tell him to just contact a lawyer to terminate the payments but he would decline to do so. She never told the Applicant about these conversations.

[29] With regard to not having raised the issue prior to the fall of 2016, the Respondent explains that the children were now 31 and 25 and he was unsure if he should broach the subject with FRO as he believed the money was going to the children and he wanted to help them. He would have asked for termination before but explains that he was under a lot of pressure at work and caring for his ailing mother and brother. He explains that this was a volatile divorce and they did not communicate. He describes the Applicant has hostile and he never knew how to approach the subject. He was worried of a backlash. Furthermore, he states being intimidated by the process as it involved FRO and his employer. He was “removed” from the process. He was also worried about needing a lawyer which he could not afford. Furthermore, he worked long hours and dealt with depression from time to time.

[30] As to why he never disclosed the increases in his income, he explains that he did not know he was required to do so and never asked by FRO and the Applicant.

[31] In her response to these issues, the Applicant notes that they had gone twice to Court on the issue of child support (i.e. before Justice Foran on September 11, 1997 and before Justice March on January 16, 2001) and were both represented by counsel on each occasion. This is confirmed by the relevant Court documents.

[32] As will be discussed later, the parties’ financial circumstances bear on the analysis of retrospective adjustments to child support and reimbursement of same. The record discloses the following yearly income for both from 2001 and 2019:

Year	Applicant	Respondent
2001	$48,200	$51,861
2002	$53,806	$48,179
2003	$48,935	$52,581
2004	$56,710	$58,127
2005	$48,284	$60,714
2006	$36,200	$71,912
2007	$40,696	$74,235
2008	$20,286	$70,936
2009	$36,652	$64,946
2010	$17,900	$68,543
2011	$32,467	$68,509
2012	$26,657	$66,180
2013	$29,400	$69,285
2014	$20,441	$69,738
2015	$32,217	$74,084
2016	$24,016	$77,097
2017	$14,933	$74,936
2018	$19,976	$73,012
2019	$6,504	$71,394

[33] The Respondent notes that although the Applicant is not working and in receipt of a CPP pension, she still enjoys a high standard of living through the support of her husband. Also, she owns a rental property from which she receives rental income, as does her husband who is a businessman in receipt of income from commercially leased units. He raised the fact that she has travelled to Las Vegas on a number of occasions and filed Facebook images to that effect.

[34] The Applicant denies that she is enjoying a high standard of living. She explains that she is unable to work anymore and receiving a CPP disability pension in the monthly amount of $1,171.06. She suffers from diabetes and is going through kidney failure. Her husband is now retired and in receipt of an old age pension. She notes that she has no interest in her husband’s rental income as he owned same prior to their marriage. She does not deny having travelled to Las Vegas but not as often as suggested by the Respondent. She has very little in the way of savings.

POSITION OF THE PARTIES

Respondent (Moving Party)

[35] The essence of the Respondent’s position is that his obligation to pay child support pursuant to Justice March’s January 16, 2001 order should have terminated on July 1, 2010 as by then both children were no longer dependants under the Family Law Act. Since he continued to pay support until September 8, 2016, the Applicant should be ordered to reimburse him in the amount of $39,975. He is asking the Court to exercise its discretion in favor of the relief sought.

[36] Applying the three-step analysis set out by Justice Chappel in Meyer v. Content, 2014 ONSC 6001, the Respondent makes the following submissions:

1. There was a material change in circumstances which warranted termination of the child support as of July 1, 2010. Melanie ceased to be a dependant as of July 1, 2005 since she had left Cambrian College and withdrew from parental control. Emilie was no longer a dependant as of July 1, 2010 after graduating from high school at age 19 and had by then also withdrawn from parental control. Her entitlement did not automatically revive simply by her enrolling in university. It is noted that she had been living with her now husband and in fact, got married in August 2014.
2. The applicant did not act as a reasonable litigant as she failed to advise FRO that support had terminated as of July 1, 2010. He suggests that he had very little to do with FRO since it was the Applicant’s choice to file the order with FRO. In the end, she did not make any efforts to advise FRO because she was profiting from the child support payments herself.
3. The relevant factors set out in the third step of the analysis are said to weigh in favor of the Court exercising its discretion and ordering a retroactive order for the repayment of child support by the Applicant. The following points are raised in support of his position:
   • The amount of $39,975 is the overpayment made by him between July 1, 2010 until September 8, 2016. Neither party took steps to revisit this amount. The Court should reject the argument that the Applicant would have sought an increase over the years had she been provided with disclosure of increases in the Respondent’s income. The Respondent was never ordered to do so nor asked to update his income. The Court should also reject the argument that the reimbursement sought should be off-set by his historical underpayment. He notes that this cannot be raised as the Applicant has not brought a cross-motion seeking such a claim. The underpayment cannot therefore be considered by the Court.
   • The Applicant has not demonstrated that an order requiring her to repay the amount claimed would cause hardship for her. She enjoys a high standard of living and relies on rental income and her husband.
   • Any hardship caused by such an order is outweighed by the Applicant’s blameworthy conduct, namely:
     • She used the money for her own benefit;
     • She will otherwise benefit from an inappropriate windfall for herself;
     • A negative inference should be drawn against her by reason of her failure to produce banking records to support her assertion as to the use of the money for the children. She could have easily obtained such banking records.
   • There is a reasonable basis to explain why the Respondent did not seek to review his child support payments sooner:
     • He has suffered from depression, is not experienced with office related work and was intimidated by the legal process; he states that he never had legal counsel and could not afford a lawyer;
     • He has always had a very busy work schedule with long hours; he was caring for his ailing mother and brother;
     • He was fearful of the Applicant and the backlash that this would cause; they are unable to communicate and their separation was volatile; he has always felt emotionally abused by the Applicant.
   • The Applicant has failed to provide a reasonable explanation as to why she continued to accept the child support and did not notify FRO that support should have been terminated.

Applicant (Responding Party)

[37] The Applicant’s primary position revolves around the notion that the Respondent has failed to raise the issue sooner and continued to pay throughout the years in question without seeking to revisit or terminate child support all the while being aware of the children’s circumstances. In turn, the applicant continued to use the funds for the benefit of the children. In fact, she was only given effective notice on September 8, 2016 when the payments were terminated. Thus, the date of effective notice does not affect the amount of support previously paid from 2001 to 2016. The circumstances are such that an earlier date of retroactivity is not justified. She notes that she has not acted in a blameworthy manner nor failed to disclose a material change in circumstances.

[38] Furthermore, it is argued that based on the factors set out in the relevant jurisprudence, the Court should not exercise its discretion in the instant matter to make a retroactive award and/or order repayment. The following points are raised in support of this submission:

• The Respondent has failed to provide a reasonable excuse as to why he did not seek a variation sooner;
• The delay in bringing this Motion results in significant prejudice to her since she must defend herself against a claim for the repayment of funds that no longer exist as they were spent on the children; she is also prejudiced in her ability to obtain records to support her position as these no longer exist after all these years;
• A retroactive award would result in financial hardship to her as she does not have the financial means to pay same; in turn, the dismissal of the retroactive award sought would not cause hardship to the Respondent by reason of his present financial circumstances;
• The Respondent’s request for reimbursement is based on erroneous dates of when the children’s entitlement to support terminated; specifically, the child Melanie remained entitled to child support until December 2005 even if she had completed her studies in June 2005 as she had not yet achieved independence until December 2005; as for the child Emilie, while her entitlement was suspended in August 2010 when she left the Applicant’s home, same was revived in September 2012 when she began a full-time undergraduate program; her entitlement was terminated when she got married on August 30, 2014;
• The financial disclosure provided in these proceedings reveal that the Respondent has underpaid monthly child support as early as 2001; she notes that had he paid in accordance with his actual income, he would have paid a total of $95,055 for the period of 2001 to September 2016; the amount actually paid by him during that period is $99,2777.25; she notes that he did not contribute to the vast majority of s. 7 expenses; she therefore argues that the Respondent’s historical underpayment of child support and his minimal contribution to their s. 7 expenses should offset his alleged overpayment in the $40,000 range.

THE LAW

[39] In deciding this matter, the Court is guided by the following:

Family Law Act

Sec. 31(1): Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who, (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Sec. 31(2): The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

Sec. 33(11): A court making an order for the support of a child shall do so in accordance with the child support guidelines.

Sec. 37(2.1): In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (a) discharge, vary or suspend a term of the order, prospectively or retroactively;

Child Support Guidelines

Sec. 3(1): Unless otherwise provided under these guidelines, the amount of an order for the support of a child 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 parent or spouse against whom the order is sought; and (b) the amount, if any, determined under section 7.

Sec. 7(2): The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Sec. 14: For the purpose of subsection 37(2.2) of the Act…any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

Family Responsibility and Support Arrears Enforcement Act

Sec. 8.4(4): A court that finds that a support obligation has terminated may order repayment in whole or in part from a person who received support after the obligation was terminated if the court is of the opinion that the person ought to have notified the Director that the support obligation had terminated.

Sec. 8.4(5): In determining whether to make an order under subsection (4), the court shall consider the circumstances of each of the parties to the support order.

D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.

• In exercising its discretion in awarding retroactive child support, the Court should consider a number of factors none of which are decisive. “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”. The factors to be considered are:

1. reasonable excuse for why support was not sought earlier;
2. conduct of the payor parent;
3. circumstances of the child;
4. hardship occasioned by a retroactive award.

• The date of retroactivity is the date when effective notice was given by the payor parent. Effective notice means the date on which the topic of child support was broached by the recipient parent. “While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity may indicate that the payor parent’s reasonable interest in certainty has returned”.
• Thus, even if effective notice has already been given, it will usually be inappropriate too delve too far into the past. It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.
• The presence of blameworthy conduct (i.e. intimidation, lies, failure to disclose material change) will move the presumptive date of retroactivity back to the time when circumstances changed maternally.
• The Court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.

Colucci v. Colucci, 2019 ONCA 561.

• “While D.B.S. involved an application for a retroactive increase in support, the factors articulated by the Supreme Court were intended to serve as general principles applicable, with appropriate adaptation, to retroactive support variations that would decrease the quantum of child support”.

Meyer v. Content, 2014 ONSC 6001, [2014] O.J. No 4992.

• The determination as to whether a repayment of support should be ordered involves a three-step analysis:

1. First, the court must determine that support should have terminated and make a finding respecting the termination date.
2. Second, the court must be satisfied that the recipient should have informed FRO that the support obligation had terminated. The question is whether a reasonable litigant who has made reasonable efforts to become informed about their support entitlement would have advised the FRO that support had terminated.
3. The third step of the analysis involves the exercise of judicial discretion to determine whether an order requiring reimbursement of support already paid is appropriate having regard for the overall circumstances of each party.

• In exercising its discretion in dealing with a claim for reimbursement of child support paid to a support recipient, the court should consider the following factors:

1. The amount of overpayment;
2. The overall financial situation of the parties;
3. The extent to which each party continued to support the child financially during the period of uncertainty regarding the outcome of the support dispute, and whether it was objectively reasonable for them to do so;
4. Whether an order requiring the support recipient to repay all or part of the child support overpayment would cause the recipient hardship;
5. The overall condition, means, needs and circumstances of the child of the relationship, and the extent if any to which the child’s situation may impact on the level of hardship which a reimbursement order would create for the recipient;
6. Whether an order releasing the recipient from repaying the overpayment in full or in part would result in hardship for the support payor;
7. Whether there is a reasonable explanation for any delay on the part of the payor in commencing proceedings to request reimbursement;
8. Whether the support recipient has a reasonable explanation for why they continued to accept support during the time frame when the overpayment accrued;
9. Any evidence of blameworthy conduct on the part of either party relevant to the overpayment issue;
10. Whether the recipient made reasonable efforts to keep the payor appraised of changes in the child’s situation which were relevant to the overpayment issue;
11. Whether the payor made reasonable efforts to keep abreast of developments in the child’s life and maintain contact with the recipient so as to enable discussion and negotiation about issues involving the child;
12. The extent to which either party attempted to make efforts to resolve any concerns about overpayment with the other party or through FRO;
13. Evidence of any oral or written agreement between the parties during the period when the overpayment arose that sheds light on the intentions of the parties respecting child support payments during that time.

DISCUSSION

[40] Having considered the circumstances and relevant principles, the Court is of the view that the Respondent’s Motion to Change should be dismissed. The circumstances are such that the Court is exercising its discretion not to retroactively adjust the Respondent’s child support obligation. No will the Court order the Applicant to reimburse the amount claimed by him as overpayments in child support. This result is seen as the fairest possible resolution to the issues raised in this matter.

[41] There is no question that the Respondent has met the initial threshold and shown a material change in circumstances allowing for a retroactive review. The termination of entitlement to support since the said order is undeniably a material change of circumstances. It is also clear that he continued to pay child support in the amount set out in the January 2001 order notwithstanding the fact that the children’s entitlement to same came to and end. However, as already noted, fairness weighs in favor of the Applicant’s position.

[42] One of the fundamental concerns with the Respondent’s claim rests on the setting of July 1, 2010 as the retroactive date. The Court is asked to set such date on the basis of when the material change came about. He maintains that the Court should retroactively terminate his obligation to pay child support as far back as July 1, 2010 and order reimbursement moving forward up to September 2016 when he stopped paying. As set out by the Supreme Court of Canada in D.B.S., op.cit and reinforced more recently by the Ontario Court of Appeal in Colucci v. Colucci, op.cit, the general rule is that the date of effective notice should serve as the date to which the award, if any, should be retroactive. Furthermore, the Court should usually avoid delving too far in the past. In the absence of blameworthy conduct, a retroactive order should not go beyond a date more than three years before formal legal notice was given.

[43] The Court finds that there is no basis to depart from these fundamental rules which are meant to maintain a fair balance between certainty and flexibility for the parties.

[44] The evidence discloses that the Respondent never broached the subject matter of child support with the Applicant. His first step was in September 2016 when he communicated with FRO and stopped paying. This step amounts to effective notice to the Applicant as it signaled the Respondent’s wish to alter his child support obligation. She could no longer assume that the status quo would be maintained.

[45] In keeping with the presumptive rule, September 2016 should serve as the start of retroactivity. By then, the Respondent had stopped paying child support and there was no entitlement to such support. So that in the absence of any payment as of September 2016, there is nothing to vary as of the presumptive retroactive date when effective notice was conveyed to the Applicant.

[46] The effective notice was followed by a prolonged period of inactivity exceeding two years. As noted by the Supreme Court in D.B.S., such a prolonged delay is relevant to the issue of certainty. In fact, the next step taken by the Respondent was when he commenced a Small Claims Court action which was dismissed for want of jurisdiction. The Applicant had been served with the claim on December 13, 2018. This date is found to be the time when she was given formal notice. The presumptive rule that the Court should not go further then three years before formal legal notice was given, makes it such that, prima facie, the Court should not go prior to December 2015. This translates into, at most, a possible retroactive award in the range of $4,797 (i.e. 9 months from December 2015 to September 2016 at $533).

[47] The Court rejects the Respondent’s assertion that the Applicant has been guilty of blameworthy conduct such that the presumptive rules do not apply in the circumstances.

[48] The evidentiary record does not show, on a balance of probabilities, that the Applicant has acted in a blameworthy manner. To the contrary, the evidence makes it more probable than not that she historically applied the money received to the needs of the children and not in furtherance of her own interests. This finding is clearly supported by the affidavit evidence of both children, one of who denies having stated otherwise during a Christmas gathering in December 2016 and the other has no such recollection. While this evidence is challenged by the Respondent, his brother and sister-in-law, the Court notes that the brother and sister-in-law appear to be very critical of the Applicant and provide facts which are not relevant to the issues (i.e. quality of care given to the children by the Applicant). This impacts on their credibility.

[49] The Court also notes that the Respondent has always maintained a relationship with the children during the impugned period of 2010 to 2016 and thus, would have been aware of their personal circumstances. In a November 21, 2019 text message to the child Emilie, he stated that he kept paying as he really thought at the time that the Applicant was helping pay for school. There must have been a basis for him to believe so in light of his relationship with both children. While he now strongly believes otherwise, the evidence does not, on a balance, support his present belief.

[50] With regard to the Applicant’s failure to provide financial banking records, the uncontested evidence is that attempts were made to obtain same by her and the children but were unavailable by reason of the passage of time. There is no evidence to support otherwise other than the Respondent’s assertion. The Court cannot therefore draw the negative influence sought by the Respondent.

[51] In dismissing the Respondent’s claim for a retroactive award of $39,975 on alleged overpayments of child support from July 2010 to September 2016, the Court has also considered the fact that he has never paid in accordance with his increased income. From 2001 to 2016, his yearly income has increased from $51,869 to $77,097. Furthermore, he has contributed very little to the children’s s. 7 special and extraordinary expenses. According to the Applicant’s evidence, these have been relatively high and mostly borne by her. The base principle is that each parent must pay his or her share of such expenses in proportion to their respective incomes.

[52] As noted by the Supreme Court of Canada in D.B.S., op. cit., the payment of child support based upon the income of a payor parent is a core principle which animates the support obligation that parents have towards their children. The Court states the following at paragraph 54:

“54… parents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order…”

[53] The Respondent’s failure to do so is found to be part of the relevant circumstances of this case. This is so even in the absence of a cross-motion by the Applicant. It is probative to the question of what is, on the whole, fair in the circumstances and part of the factual matrix to be considered by the Court.

[54] The Respondent has provided a number of reasons why he has never increased his child support payments to reflect his income. These include lack of knowledge, fear of the Applicant and his personal circumstances (i.e. depression, work, care given to family members).

[55] The Court notes that the January 16, 2001 order specifies that the monthly payment of $533 was based on his income of $37,164. This amount is in fact reflective of the table amount payable for two children on such a payor income during that period of time. Therefore, the $533 was in accordance with the then Guidelines. The Court also notes that the Respondent was in fact represented by counsel when this order was agreed to. At a minimum, it is reasonable to assume that he would have a basic understanding of the connection between his yearly income and the amount of child support payable by him.

[56] In the end, whatever the reason for same may be, the Respondent has underpaid child support and very little in terms of s. 7 expenses. As discussed earlier, based on the presumptive rules governing “effective notice” and “formal legal notice”, at best, the Respondent would possibly be entitled to $4,797. How fair would a $39,975 award against the Applicant be in such circumstances of underpayment of support and minimal contribution to s. 7 expenses when same was needed to care for the children?

[57] The Court has also considered the merit of this Motion to Change through the three-step analytical framework set out by Justice Chappel in Meyer v. Content, op.cit., which encompasses and expands on the factors articulated by the Supreme Court of Canada in D.B.S., op. cit.

[58] The first question is the time when entitlement to child support came to an end.

[59] The child Melanie turned 18 on August 2, 2003. She attended college on a full-time basis from September 2003 until June 2005. She resided with the Applicant mother from June 2005 to December 2005. From January 2006 to December 2010, she remained with the Respondent father. Her affidavit evidence is that while residing with her father, she was receiving money from her mother and notes that from 2009 to 2012, the entire child support paid by the Respondent went towards paying a $16,000 credit line incurred while attending college. She states that she was not enrolled in school nor working on a full-time basis by reason of an “undiagnosed anxiety disorder and clinical depression”.

[60] There is not much discord between the parties as to when Melanie ceased to be a dependant. The Applicant is saying December 2005 while the Respondent is saying June 2005. In fact, not much turns on this since the Respondent’s position is that the child support should be looked at globally for both children and found to have terminated in July 2010. The fact that she was relying on the support money, all the while residing with a parent and unable to maintain a job by reasons of her then anxiety and depression, would support a finding that she remained a dependant and unable to withdraw from the change of her parents during the period of July to December 2005. Her entitlement to child support is found to have terminated in December 2005.

[61] As for the child Emilie, she turned 18 in 2009, completed high school in June 2010 and left the Applicant mother’s home in August 2010 to reside with her now husband who she married in August 2014. The only significant issue is whether her entitlement was revived by her return, on a full-time basis, to university in September 2012 until her marriage in August 2014.

[62] The Court finds that the Applicant has not shown that the child Emilie was entitled to support when she enrolled in a full-time program of education in September 2012. While the Court is satisfied that she was enrolled and that her participation was meaningful, the issue revolves around the concept of the withdrawal from parental control. There is no evidence to support a finding that Emilie was unable to pursue a reasonable course of post-secondary education without the financial assistance of her parents. The Court notes that by then, she had been in a common law relationship with her now husband for a period of two years and had turned 21. There is no evidence of an element of parental control.

[63] The Court’s view on this issue does not detract in any way from the Court’s finding that the ongoing child support paid by the Respondent was to financially assist Emilie with her post-secondary university expenses. However, the principles are such that her entitlement to child support is found to have terminated in July-August 2010.

[64] The second question in a Meyer v. Content analysis is whether the recipient should have informed FRO that the support had terminated. Would a reasonable litigant have made reasonable efforts to become informed about the children’s support entitlement?

[65] Having considered the circumstances, the Court finds that the applicant should not have informed FRO that the support had terminated. This finding is based on the following considerations:

• There is no basis to support the suggestion that she knew or ought to have known that the children’s entitlement had terminated;
• The children were both in need of financial assistance;
• She continued to provide financial support to the children from the money received from FRO;
• The Respondent never directly or indirectly broached the subject-matter with her;
• From the Respondent’s own admission, his belief was that the child support money was being used for the children; he wanted to help them;
• The Respondent continued to pay until September 2016;
• The Applicant would have known that the Respondent was well aware of the children’s circumstances; in fact, the child Melanie resided with him from January 2006 to December 2010.

[66] As noted by Justice Chappel in Meyer v. Content, op. cit., at paragraph 96:

“96… Judicial discretion is particularly necessary in support cases involving adolescent and young adult dependants due to the unique challenges involved in navigating through life with these dependants… In many cases, it is difficult for child support recipients to accurately assess whether a change in a child’s circumstances will be very short lived or permanent, or whether a change has even occurred… On the other hand, there are cases where it becomes apparent very quickly that a change in circumstances has occurred and that it will be long-term in nature. It is important that the court not allow recipients in these types of cases to receive an inappropriate windfall…”

[67] The Court finds that this is not a case where the change in circumstances would have been readily and quickly apparent to the Applicant. Nor is she found to have received an inappropriate windfall.

[68] The last step in the analysis involves the exercise of judicial discretion as to whether it is appropriate to order reimbursement of the support already paid having regard for the overall circumstances of each party.

[69] The Court is of the view that it is not appropriate to make such an order. This is based on the following:

• Looked at in isolation, the amount of child support overpaid by the Respondent is in the $40,000 range and therefore, relatively large; however this amount cannot be assessed in isolation and must be looked at in the whole of the circumstances which include, more notably, the Respondent’s failure through the years to pay child support in accordance with his income and paying very little in terms of s. 7 special and extraordinary expenses; the end result is that fairness requires that his overpayment be offset by his underpayment;
• The Applicant’s present financial situation is such that the granting of the $39, 975 retroactive award sought by the Respondent would undoubtedly cause her serious financial hardship; she is ill and in receipt of limited income even considering her rental income; it would not be fair to expect her new spouse to support her so that she can reimburse the Respondent;
• On the other hand, not granting such award would not cause serious financial hardship to the Respondent; his 2019 income was $71,394;
• Fundamental to the exercise of judicial discretion in dismissing the Respondent’s claim for reimbursement is the finding, based on the evidence, that the overpayment was used by the Applicant to support the children throughout, and not for her own benefit as argued by the Respondent;
• The Court finds that the evidence does not reveal blameworthy conduct on the part of the Applicant; there is no basis to find that she did anything to hide the circumstances of the children in order to surreptitiously maintain the child support and personally benefit from same; she would have known that the Respondent had a relationship with the children and thus aware of their personal circumstances; in fact, the child Melanie resided with him for a period of five years soon after her entitlement came to an end in December 2005;
• The Respondent would have been well aware of the children’s circumstances (i.e. turning 18, not attending educational program, not residing with the Applicant, being in a common law relationship); as stated by him, he continued to pay as he believed the money was going to support the children, which the Court finds to be true; there is nothing to suggest that the Applicant did anything to foster his belief; in fact, it appears that the parties never spoke; nor did the Respondent take any steps prior to September 2016 to confirm or refute his belief as to the use made of the money; as explained by him, he wanted to help the children;
• Considering the fact that the children continuing to be in need of financial support, the Respondent maintaining payments until September 2016 and the money going towards the children’s needs, it was reasonable for the Applicant to continue receiving the child support from the Respondent;
• The delay between September 2016 and the commencement, albeit in Small Claims Court in December 2018 raises some concerns but is not seen as a significant consideration weighing against the Respondent; while delay in court proceedings impacts on the availability and reliability of evidence (i.e. makes it more difficult for the Applicant to respond by way of records to the allegations made against her), the reality is that there has been no payment since September 2016 and thus, no impact on the need for certainty in child support matters; the factual matrix has remained the same since September 2016.

[70] The Respondent’s Motion to Change is therefore dismissed.

[71] The parties are asked to try and resolve the question of costs for these proceedings. If unable to do so, each party shall file, on or before September 30, 2020, brief written submissions (not to exceed three pages) together with a Bill of Costs.

Released: August 31, 2020