Court File and Parties

COURT FILE NO.: FS-06-385-02 DATE: 2021/03/01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Debra Arlene Gies, Applicant AND: Helder Da Costa, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Danica Maslov, for the Applicant Glenda McLeod, for the Respondent

HEARD: February 19, 2021

Endorsement

[1] This proceeding concerns the respondent’s Motion to Change the final order of Justice Whitten dated December 1, 2006, made pursuant to Minutes of Settlement, which ordered the respondent to pay child support in the amount of $900 per month in respect of the parties’ two children Andrea Gies-DaCosta (d.o.b. August 23, 1998) and Alysha Gies-DaCosta (d.o.b. April 20, 2001). The Motion to Change was brought on the basis that one or both of the children had attained the age of 18 years and were not in full-time attendance in postsecondary education.

[2] There is no issue that the respondent has no further child support obligation with respect to the older child Andrea as she has attained the age of 18 years and is no longer attending post-secondary education.

[3] The child Alysha graduated from high school effective June 30, 2020. She did not enroll in any post-secondary educational institutions in September, 2020.

[4] A Case Conference was held on September 3, 2020 presided over by Justice Nightingale who made an order suspending (but not terminating) the respondent’s obligation to pay child support in respect of Alysha effective on that date. It was unclear at that time whether Alysha would enroll for post-secondary education in January 2021. Justice Nightingale ordered that the parties were at liberty to schedule a further Case Conference in November, 2020. I may infer that this was provided for in the event that Alysha’s plans for attending post-secondary education in January 2021 became evident by November. A second Case Conference was not ultimately scheduled.

[5] On October 30, 2020 the respondent served a Notice of Motion dated October 27, 2020 seeking the following relief:

(a) in the event that Alysha is not attending a post-secondary educational institution on a full-time basis, an order terminating perspective child support effective the date of her graduation from high school;

(b) in the alternative, an order requiring the applicant to produce disclosure of various financial information and documentation, including a sworn Financial Statement, proof of the applicant’s 2019 income and 2020 year-to-date income, relating to Alysha’s enrolment in a full-time program of education, including proof of enrolment, application for an entitlement to OSAP, confirmation of her living arrangements, applications for any scholarships or grants, proof of her income in 2018 in 2019 and year-to-date 2020 income, and her post-secondary school budget for the current academic year.

[6] By Notice of Motion dated November 5, 2020 the applicant sought an order fixing the arrears of child support for the child Alysha to be paid by the respondent to the applicant in the sum of $10,752.

[7] On November 12, 2020 the respondent served an Amended Notice of Motion by which the relief he sought was amended to add additional items of requested disclosure.

Termination of child support

(a) Position of the parties

[8] The respondent submits that, by reason of Alysha having attained the age of 18 years and being no longer enrolled full-time in an educational institution, it is clear that he has no further obligation to pay child support for her. He points to the Separation Agreement between the parties dated March 31, 2005 which provided that child support for each child ends when, inter alia, the child ceases to be a “child” as defined in the Divorce Act but would resume if the child returns to school full-time and is still under the age of 22.

[9] The respondent submits that it is not sufficient that child support for Alysha be simply suspended, as arrears continue to accumulate during the period of suspension. Given that there is no obligation to pay child support, the continued accumulation of arrears is inappropriate and prejudicial to him as it could affect his credit rating. He seeks termination effective December 1, 2020, or in the alternative in the court’s discretion, effective September 1, 2020. He acknowledges that, pursuant to the Separation Agreement, in the event that Alysha enrolls in an institution of post-secondary education while she is under the age of 22, his obligation to pay child support for her would resume.

[10] The applicant acknowledges that effective September 1, 2020 the respondent has no liability for child support for Alysha but submits that termination of the obligation should not take effect unless there is a determination of how the parties will divide the cost of her post-secondary education should she enroll in the future. The applicant stated as follows in her affidavit of November 5, 2020 at para. 27:

“I would agree to the termination of child support until the child starts attending post-secondary education but there must be terms included providing if/when the child does attend post-secondary education how the expenses will be split between the parties.”

[11] In submissions, Ms. Maslov acknowledged that termination of the respondent’s obligation to pay child support would not prevent a determination of the division of section 7 expenses in relation to the cost of Alysha’s postsecondary education should she enrol in the future.

(b) Analysis

[12] Given the applicant’s acknowledgement noted above, I see no reason in principle for the termination of the respondent’s obligation to pay child support for Alysha effective September 1, 2020 to continue to be withheld.

Disclosure of financial information and documentation by the applicant

(a) Position of the parties

[13] The respondent continues to seek disclosure of a sworn Financial Statement from the applicant (he is in receipt of an unsworn Financial Statement) and various documents which may become relevant in the event that Alysha enrolls in postsecondary education in the future within 30 days of their becoming available, as listed in his Amended Notice of Motion. He submits that the applicant’s argument against the termination of child support based upon the possibility that the child will return to school renders the disclosure of these documents relevant and necessary.

[14] The applicant submits that, through her counsel, she agreed to produce the disclosure requested by the respondent and points to Ms. Maslov’s email dated October 16, 2020, in response to Ms. McLeod’s letter of October 15, 2020, in which Ms. Maslov advised that the applicant had no problem providing the disclosure requested in Ms. McLeod’s letter and pointed out that the items of disclosure relating to Alysha’s future post-secondary enrolment could not be provided as they did not exist. Ms. Maslov confirmed that Alysha’s income tax returns and notices of assessment for 2018 had previously been provided, attached the applicant’s 2019 income tax return and notice of assessment and advised that the remaining items, namely a sworn Financial Statement and proof of the applicant’s cumulative year-to-date income in 2020 would be provided by the end of October, 2020.

[15] It is noted that Ms. McLeod had previously written to Ms. Maslov on August 5, August 21 and September 23, 2020 requesting the financial disclosure sought by the respondent. There is no indication that any response was received to this previous correspondence.

(b) Analysis

[16] Although the respondent’s claim for disclosure was sought in his of motion “in the alternative” to an order being granted for termination of child support, the applicant did not oppose the respondent’s claim for disclosure on that basis and the issue was fully argued.

[17] At the time of the respondent’s requests, through counsel, for disclosure of information and documentation respecting Alysha’s enrolment in post-secondary education and the costs associated with it, these were live and pressing issues, and continued to be so at the time of service of the respondent’s Notice of Motion on October 30, 2020, particularly given Justice Nightingale’s order permitting a second Case Conference in November to deal with the issue. Although the applicant agreed, through counsel, albeit belatedly, to produce the requested disclosure when it comes into existence, I did not understand her to oppose the making of an order requiring the disclosure in the event that Alysha does enroll in school. The requested disclosure remains relevant given the lack of updating information respecting Alysha’s current intentions with respect to post-secondary education.

[18] The specific disclosure sought by the respondent in oral submissions comprised the following:

(a) a sworn (or affirmed) Financial Statement;

(b) documents evidencing the child, Alysha’s, (the “child”) enrolment in a full-time program of education;

(c) the child’s application for OSAP and the corresponding documents showing her entitlement to same;

(d) confirmation as to the child’s living arrangements while attending post-secondary education, including documentation confirming the cost of residence, or a lease/rental agreement;

(e) documentation confirming any applications for any scholarships or grants made by the child and confirmation as to whether she received scholarships or grants and the amount of same;

(f) the child’s income for 2020;

(g) the child’s post-secondary school budget;

(h) all job applications submitted by the child; and

(i) child’s report cards for the 2019/2020 school year.

[19] I also do not understand the applicant to argue that she should not be ordered to provide a sworn Financial Statement.

[20] The question of whether the respondent’s motion for disclosure was necessary given Ms. Maslov’s acknowledgement in her email of October 16, 2020, may go to the question of costs, but does not go to the question of whether the order should be made.

[21] In my view the requested disclosure should be ordered.

Fixing arrears of child support

(a) Position of the Parties

[22] It is evident that the applicant brought her motion to fix the arrears of child support claimed to be owing by the respondent as a motion for a temporary order pursuant to rule 14 of the Family Law Rules.

[23] The applicant calculated the respondent’s income for child support purposes for the years 2016, 2017, 2018 and 2019. This calculation included the respondent’s gross employment income, workers compensation income and what she termed “net rental income before adjustments” for each of those years. The applicant deposed in her affidavit that the respondent should have been paying monthly support in the sum of $1068 in 2016, $1172 in 2017, $1295 in 2018 and $818 in 2019. Giving credit for the child support that the respondent did pay, she stated that the respondent underpaid child support in the aggregate sum of $10,752 and requests that the Court fix this amount.

[24] Ms. Maslov, in oral submissions, stated that in calculating “net rental income before adjustments” she included in the respondent’s income amounts deducted by him for tax purposes for an allowable capital cost allowance with respect to real property, as provided at Schedule III, para. 11 of the Federal Child Support Guidelines. However, it was not evident from the applicant’s written motion material that this was the basis of her calculation.

[25] The respondent submits that it was improper for the applicant to seek a determination of what is a live issue for final determination in the proceeding, namely the respondent’s retroactive obligation to pay child support, by means of a motion for a temporary order. Moreover, there was no disclosure in the applicant’s motion materials of the basis by which she calculated the respondent’s income, and specifically the basis for adding back amounts into his rental income for the years in question.

[26] The respondent says that, based upon his Line 150 income for the years 2016, 2017, 2018 in 2019, he underpaid child support for the child Alysha in the sum of $722. His child support obligation for 2020 is yet to be determined.

(b) Analysis

[27] Sub-rule 14 of the Family Law Rules provides that a party may bring a motion for:

(a) a temporary order for a claim made in an application;

(b) directions on how to carry on the case;

(c) a change in a temporary order.

[28] In my view the question of whether there are arrears of child support owing by the respondent and if so, the amount thereof, are issues for final determination of the respondent’s Motion to Change at the hearing of the respondent’s Motion to Change either on a paper record or at a trial, or on a motion for summary judgment pursuant to rule 16, and not a motion for a temporary order under rule 14.

[29] There was no indication in the applicant’s motion material that she was seeking summary judgment with respect to the respondent’s retroactive child support obligation pursuant to rule 16.

[30] The applicant did not serve a Factum, Memorandum of Law or Book of Authorities in support of her motion. It was not apparent to the court from reading the applicant’s motion materials that the applicant was relying on Schedule III para. 11 of the Federal Child Support Guidelines to add back into the respondent’s income capital tax allowance that he had deducted in his tax returns for the relevant years. I accept Ms. McLeod’s submission that she was also unaware of this.

[31] In Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271 (C.A.) Doherty J.A., writing for the panel, confirmed the importance of the parties clearly communicating to the opposing party and to the court the basis for claims being advanced, stating as follows at para. 62:

A judgment based on a claim not made or a theory not advanced and argued cannot stand. The fairness and reliability of the adversarial process demand that each side have notice of the other’s claims and a full opportunity to respond to those claims: see Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P. (2011), 2011 ONCA 511, 106 O.R. (3d) 677 (C.A.), at para. 6; Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.

[32] I am not satisfied that determining the respondent’s child support obligations on a retroactive basis by means of a temporary motion would achieve the primary objective of the Family Law Rules stated at sub-rule 2(2) as “to enable the court to deal with cases justly.” The issue has not been subjected to the full adversarial process given the applicant’s failure to communicate the basis of her claim. The applicant’s motion should therefore be dismissed, but without prejudice to her right to bring a motion for summary judgment, if so advised, seeking determination of the arrears of child support, if any, owing by the respondent.

Disposition

[33] For the foregoing reasons, it is ordered as follows:

(a) child support payable by the respondent for the child Alysha Krista Gies-Da Costa (d.o.b. April 20, 2001) (the “child”) shall be terminated effective September 1, 2020;

(b) the applicant shall provide a sworn or affirmed Financial Statement within 30 days hereof;

(c) the applicant shall make disclosure of the following within 30 days of the child enrolling in full-time attendance at a post-secondary educational institution, provided the child has not attained the age of 22 years, or within 30 days of the documents coming into existence, whichever is later:

i. documents evidencing the child’s enrolment in a full-time program of education;

ii. the child’s application for OSAP and the corresponding document showing her entitlement to same;

iii. confirmation as to the child’s living arrangements while attending post-secondary education, including documentation confirming the cost of residence, or a lease/rental agreement;

iv. documentation confirming any applications for any scholarships or grants made by the child and confirmation as to whether she received scholarships or grants and the amount of same;

v. the child’s income for 2020;

vi. the child’s post-secondary school budget; and

vii. all job applications submitted by the child;

(d) the applicant’s motion fixing arrears of child support owing by the respondent shall be dismissed, without prejudice to the applicant’s right to bring a motion for summary judgment for that relief.

Costs

[34] The parties are strongly urged to settle the issue of the costs of the motions.

[35] If the parties are unable to do so, the respondent may make written submissions as to the costs of the motions within 14 days of the release of this Endorsement. The applicant has 10 days after receipt of the respondent’s submissions to respond. The written submissions shall not exceed three (3) double-spaced pages exclusive of Bills of Costs or Costs Outlines, offers to settle and authorities. All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford at the same email address as utilized for the release of this Endorsement.

[36] If the parties are able to settle the question of costs or if a party does not intend to deliver written submissions, counsel are requested to advise the court accordingly.

D.A. Broad, J. Date: March 1, 2021