Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicole Pulyk, Applicant
AND:
Carl Bucknell, Respondent
BEFORE: Rivard J.
COUNSEL: S. Hamilton, Counsel for the Applicant
L. Sangster, Counsel for the Respondent
HEARD: December 4, 2020
Endorsement
Background
1Ms. Pulyk and Mr. Bucknell were married in 1991.
2One child was born of their relationship, namely, Megan Tammy Bucknell, born December 5, 1993 (hereinafter “Megan”). Megan struggles with autism, significant developmental delay, Oppositional Defiance Disorder and Attention Deficit Hyperactivity Disorder.
3The parties separated on January 14, 2005 and were divorced in 2016.
4A separation agreement dated June 25, 2006 was signed by the parties and, under that agreement, Ms. Pulyk is to have full custody of Megan. If Ms. Pulyk or Mr. Bucknell dies, the survivor is to have custody of Megan and be guardian of her property.
5Paragraph 5 of the separation agreement fixes the quantum of child support at $200.00 “because Carl is helping with Megan before and after school (therefore deducted $50.00/month, also when she has no school and Nicole is working)”.
6Paragraph 5.2 provides that child support for Megan “ends when she is no longer a “child” defined by the Guidelines. Guidelines is defined in paragraph 2.2 (4) of the agreement as meaning “the Child Support Guidelines, as defined in 5.2(1) of the Divorce Act.”
7Paragraph 5.3 of the agreement gives both parties, in addition to a yearly review, the right to seek a change in child support “if there is a material change in the condition, means and needs or other circumstances” of the children.
8Since September 2007, Megan has lived in a therapeutic home in Huntsville and has been cared for by Ms. Sandra Cooke. Megan’s mother has travelled from North Bay to Huntsville on weekends since 2007 to visit with Megan.
9In December 2011, when Megan turned 18, Mr. Bucknell ceased paying child support.
10By Application issued December 14, 2018, Ms. Pulyk claimed, under the Divorce Act, support for Megan, in accordance with the Federal Child Support Guidelines and payment by the Respondent of a proportionate amount towards Megan’s section 7 expenses.
Legal Framework
11Section 15.1(1) of the Divorce Act permits this court, on application by either spouse, to order a spouse to pay support for any child of the marriage.
12Section 2 of the Divorce Act defines “child of the marriage” as meaning a child of two spouses or former spouses, who, at the material time:
“(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;”
13By consent Order made by Cornell J. on July 26, 2019, Megan is deemed to be a “child of the marriage” within the meaning of s. 2(1)(b) of the Divorce Act.
14Counsel for the Respondent submits that Justice Cornell’s order should not be interpreted to mean Megan is “under the charge” of the parties. I am not prepared to accept that submission. Justice Cornell’s Order is clear and encompasses the full definition of “child of the marriage” under the Divorce Act.
15Section 3(2) of the Federal Child Support Guidelines directs that “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.”
Analysis
16Megan is now 27 years old. She has resided in Huntsville with Ms. Sandra Cooke since she was 13 years old.
17Megan receives a monthly cheque in the amount of $896.00 under the Ontario Disability Support Program. From this cheque, Ms. Cooke is paid $500 for Megan’s room and board. Ms. Cooke sets aside $100 per month for Megan to take a trip to Cuba every year.
18The balance of the ODSP funds is used for extracurricular activities, personal hygiene products, clothing, medications not covered by ODSP, and gifts for family members. Megan does not suffer a deficit in her monthly budget.
19In Senos v. Karcz, 2014 ONCA 459, the Ontario Court of Appeal concluded that where a person was in receipt of ODSP assistance, that, in itself was sufficient to displace the “one-size-fits-most” approach of the Guidelines. The court must then look to the condition, means, needs and circumstances of the child to determine the appropriate amount of child support.
20Attached to Ms. Pulyk’s affidavit sworn June 13, 2019 is Exhibit ‘F’, a copy of a Community Living South Muskoka Spending Ledger dated January 29, 2018, and a Scotiabank account summary. These exhibits do not support the position that Megan is in a deficit position.
21The proposed budget for Megan attached as Exhibit “G” includes expenses primarily incurred by Ms. Pulyk for gas, theatre, restaurant expenses, treats and special outings she takes with Megan. These appear to be very rough estimates of money spent by Ms. Pulyk when she visits her daughter. There are a few items listed which can be said to address the needs of the child, namely:
Clothing and footwear $166.67
Personal hygiene $ 40.00
Mattress $ 25.00
Total $231.67
22These expenses could also be categorized as section 7 expenses. It would be appropriate to have Mr. Bucknell pay his proportionate share of these expenses.
23Ms. Pulyk’s annual income is $47,825.00. Mr. Bucknell’s CPP, OAS and pension income total $33,138.00. I will order Mr. Bucknell to pay to Ms. Pulyk, the sum of $100.00 per month to be applied to Megan’s special or extraordinary expenses.
24The Applicant includes in the prayer for relief on the Notice of Motion, a request for an order that the Respondent’s Last Will and Testament dated October 30, 2018 is of no force. That claim was not included in the Application. I will therefore decline considering that request without prejudice to the Applicant’s right to raise the issue in subsequent proceedings.
Order
25It is ordered that the Respondent pay to the Applicant the sum of $100.00 per month to be applied to the child Megan’s section 7 expenses. These monthly payments are to commence on January 1, 2020 and continue the 1st day of each month.
26Support Deduction Order to issue:
Parties may make written submissions as to costs, not exceeding four pages, within 10 days.
Justice Rivard
Date: December 17, 2020