Matus v. René, 2021 ONSC 1925

Court File and Parties

COURT FILE NO.: FS-08-343911 DATE: 20210315 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Ann Matus, Applicant – and – Sylvain René, Respondent

Counsel: Jerrod Grossman and Ruth D. Richards, for the Applicant Jessica Gagné, for the Respondent

HEARD: In writing; Oral submissions heard on February 25, 2021

Reasons for Decision

M. Kraft, J.

Nature of Hearing

1. This case began in 2008. On March 31, 2009, McWatt, J. [as she then was] made a temporary, “without prejudice” Order, which contained terms relating to the issues of child and spousal support (the “2009 temporary support order”). Pursuant to the 2009 temporary support order, the respondent, Sylvain René, (“the father”) is obliged to pay to the applicant, Julie Ann Matus (“the mother”) the following temporary and “without prejudice” monthly amounts: spousal support in the sum of $1,091 a month; child support for the parties’ three children, in the sum of $2,953 a month, based on the father earning $175,000 a year; and 76% of the costs of daycare and tutoring for the children, being $1,053 a month. The 2009 temporary support order was made “without prejudice” to either party seeking a “retroactive adjustment” to January 1, 2009, once the father’s income was quantified. As will be addressed in more detail below in these Reasons, prior to September 24, 2020, the parties had neither subsequently settled the support issues on a final basis nor proceeded to trial on those claims.

2. Very briefly, the father had brought a motion to vary the 2009 temporary support order in December 2013, which Paisley, J. adjourned. The husband brought the motion back on in July 2014, at which time, Paisley, J. dismissed the motion.

3. On November 18, 2019, the father served a Form 14B motion, in which he sought leave to bring another motion to vary/change the 2009 temporary support order. Leave was granted by Goodman, J.; however, among other things, she ordered that a case conference had to take place before the father could proceed with the motion. The case conference took place before Wilson, J. A settlement conference subsequently took place before Nakonechny, J. on September 24, 2020. At that time, the support-related issues were not resolved. In addressing the next step to be taken in the case, Nakonechny, J. effectively ordered that the child and spousal support claims in this case are to be disposed of on a final basis on the basis of a written record. She set a timetable for the delivery of the “motion” material each party was to deliver for this purpose.

4. Following the September 24, 2020, conference, the parties served and filed the following material:

   i) Father’s material: (1) His Notice of Motion, dated October 16, 2020; (2) His financial statement, sworn September 29, 2020; (3) His affidavit, sworn on October 16, 2021; (4) His affidavit, sworn on November 13, 2020; and (5) His Factum dated November 20, 2020.

   ii) Mother’s material: (1) Her affidavit, sworn on November 2, 2020; (2) Her financial statement, sworn on November 2, 2020; and (3) Her Factum, dated November 20, 2020.

5. The above material was directed to me for consideration on January 29, 2021. After reviewing the written record, I directed the parties to attend before me, to make oral submissions. After hearing the oral submissions made by counsel via Zoom on February 25, 2021, I reserved my decision. The final orders that I have made in paragraph 141 below and the reasons for making these orders follow below.

Procedural History

6. The mother issued the Application in this case on November 7, 2008. The father filed an Answer on December 19, 2008.

7. The parties apparently attended a case conference before Allen, J. on January 7, 2009.

8. On March 31, 2009, the parties signed Minutes of Settlement, the support-related terms of which were incorporated into a temporary, “without prejudice” order by McWatt, J. [This is the 2009 temporary support order referred to in these Reasons for Decision.]

9. The record before me does not refer to the action, if any, that either party took between April 2009 and December 2013, to move the case forward toward either a final resolution or trial.

10. On December 3, 2013, more than 4½ years after the temporary, “without prejudice” support order was consented to and made, the father brought a motion, seeking to change the 2009 temporary order. According to the Endorsement of Paisley, J., he adjourned the father’s motion because the father had not complied with the requirements of filing a Factum; served and filed relevant material or ensured that the Confirmation Form had been fully and correctly completed. The father had apparently indicated that he required at least four weeks to prepare the material. A date for the return of the motion was not set. The motions judge provided directions regarding the fixing of a day(s) on which the issues raised on the motion would be heard. Paisley, J. ordered the father to pay $500.00 in costs to the mother, the costs to be collected by the Family Responsibility Office (“FRO”) as support.

11. The father did not take steps to return his motion to change before the court. He did not pay the costs ordered.

12. On May 15, 2014, the mother brought a motion seeking orders relating to the renewal of the children’s passports and the right to travel with the children, without the need to obtain the father’s consent. In her Endorsement, in addition to ordering the father to pay costs of the mother’s motion, fixed in the sum of $500, Conway, J. noted that the father had not yet paid the costs ordered by Paisley, J.

13. The father did not pay the costs that Conway, J. ordered him to pay on May 15, 2014.

14. The father brought his motion to change the 2009 temporary support order back on before the court on June 24, 2014. Paisley, J. dismissed the motion, ordering as follows:

    (1) The father shall not bring any further motions in this matter without first obtaining leave. The father shall bring a motion in writing, in a Form 14B, and the mother is to be served with the material; (2) The father’s material shall include his financial statement with all financial information. (3) Costs of today are fixed in the amount of $1,250 payable by the father forthwith. The costs are to be collected by the FRO as support.

15. The father did not then proceed to bring a Form 14B motion for the purpose of seeking leave to bring a new “motion to change” the 2009 temporary support based on evidence, that included “his financial statement with all financial information”. Further, the father did not pay the costs of $1,250, which Paisley, J. ordered him to pay to the mother on June 24, 2014.

16. It appears that on November 18, 2019, more than five years after Paisley, J. had dismissed his motion to change the 2009 temporary support order and required that the father seek leave to bring a new motion, the father served the mother with a Form 14B motion, seeking such relief. The motion was subsequently directed to Goodman, J. for consideration. On January 28, 2020, Goodman, J. granted the father leave to proceed with his motion to change the 2009 temporary support order, “without prejudice” to the mother’s right to file responding material on the motion, which also included evidence responding to the evidence that was set out in the affidavit of the father, dated November 19, 2010. Further, she ordered that, before the father brought that motion, a case conference was to take place, to conference the issues that the father proposed to raise on the motion.

17. The steps taken in this case since then are set out in paragraphs 3, 4 and 5 above.

18. On December 3, 2019, through counsel, the father sought disclosure from the mother for the purpose of enabling the father to move his motion forward. The mother did not respond.

19. On July 22, 2020, the father served a Form 20: Request for Information on the mother, seeking information about her income going back to 2009.

20. On August 14, 2020, Wilson, J. presided over the case conference. The case conference that Goodman, J. ordered proceeded on August 14, 2020. In her Endorsement arising from it, noted that although the issues of child and spousal support, both retroactive and ongoing, were canvassed, additional disclosure was needed in order for calculations to be done. She ordered the mother to provide her income tax returns for 2010 to 2019, inclusive, along with her Notices of Assessment for the years 2012 - 2019 by August 21, 2020; a sworn financial statement, including her most recent pay stub; and a sworn affidavit, attaching a chart setting out all s.7 expenses, organized by child by year, from 2010 to the current date, with supporting documentation. She also split the divorce claim from the other claims in the case. A Settlement Conference (“SC”) was to take place on September 24, 2020.

21. On September 24, 2020, the parties attended a SC before Nakonechny, J, at the end of which, she stated as follows:

    “…I agree with Wilson, J., that this matter should proceed by way of a written motion on affidavit evidence only. Neither party has the financial ability to fund a contested hearing. The motion will be for a final order.”

    Nakonechny, J. then set a timetable for the delivery of affidavits and a facta by each party. A conference call was to take place with her on October 9, 2020, to discuss settlement or narrow the issues for the motion. [I have no information about the call.]

22. The parties exchanged the just-mentioned material. The mother also served and filed an updated financial statement, sworn on November 2, 2020. The father’s most recent, sworn financial statement was sworn on September 29, 2020.

23. Again, on February 25, 2021, I heard oral submissions and reserved my decision.

24. It appears that in the summer of 2016, FRO brought an enforcement proceeding in the Ontario Court of Justice, to enforce payment of arrears that had apparently arisen under the 2009 temporary support order. As I understand it, at this point, the Court in that proceeding is awaiting the outcome of this Court’s proceeding.

25. Due to the Covid-19 health crisis, since March 16, 2020, judges hearing matters are not provided with the court file or any part of it in advance of the hearing. The parties neither included the pleadings in the written record nor referred to them during the course of the hearing. For clarity, in disposing of the child and spousal support issues today, the support-related claims in the parties’ pleadings will have been dealt on a final basis. I do not know whether any other claim(s) made in the case by a party have still not been resolved or are perhaps moot at this time, given that the pleadings were served 12 years ago.

The Evidence

26. The parties were married on May 8, 1993. They separated 15 years later, on April 29, 2008.
27. They have three children, namely, Charlotte Rene, born January 23, 1997 (at present, 23 years old); Stephanie Rene, born August 14, 1998 (22 years old) and Philippe Rene, born June 1, 2004 (16 years old). The children were ages 11, 9 and 4 respectively when the parties separated.
28. The father is a family physician. He has a visual disability from an inherited retinal degenerative disease and has been legally blind since 1988 (visual field less than 20 degrees). This condition, however, did not affect the father’s ability to practice medicine both during the marriage and after the separation. At present, he is 57 years old.
29. The mother is employed by a business known as Shred It. In her November 2, 2020 financial statement, she deposes that her then current income (2020) was $53,022.12. Her most recent financial statement, sworn on November 2, 2020, sets out that her then current income (2020) is $53,022.12. At present, she is 51 years old.
30. The 2009 temporary support order was based an income for the father from his medical practice of $175,000.00 a year. Although the Order does not set out an income for the mother, based on her obligation to pay 24% of certain s.7 expenses, it can reasonably be extrapolated that her income was considered to be about $55,260 at the time of the Order. In the years after the 2009 temporary support order was made, the parties’ respective Line 150 incomes have been as follows:

Year	Father’s Line 150 Income	Mother’s Line 150 income
2010	$213,750	$64,377
2011	$103,355	$62,055
2012	$55,331	$63,947
2013	$53,644	$67,557
2014	$100,975	$70,738
2015	$76,997	$72,162
2016	$63,153	$54,251
2017	$97,297	$11,463
2018	$96,555	$36,446
2019	$98,792	$50,141

As seen above, starting in 2011, the father’s Line 150 income (that is, the income reported as his Total Income for tax purposes in his personal tax return) declined significantly from the $175,000 amount upon which the temporary, “without prejudice” order was based, let alone the $213,750 line 150 income reported in 2010.

29. According to the father, his financial circumstances started to decline soon after separation. I was not provided with the father’s tax returns or any other evidence supporting this position. What I do know is that the temporary support order was based on an income of $175,000 and his line 150 income in 2010 income was $213,000.

30. The father explains that the 5-year delay (that is, from mid-2014 to late 2019) in seeking leave between 2013 and 2019, was the result of a number of unfortunate circumstances that occurred in his life, which include those set out in paragraphs [31] to [46] below. [For clarity, comments in square parentheses in these Reasons, including in the just-mentioned paragraphs, are mine.]

31. In June 2008, two months after the parties separated, the mother made a complaint that the father had sexually assaulted her. Between June 2008 and December 6, 2010, when criminal proceedings against him, arising from the allegation, were stayed, the father had spent over $100,000 in legal fees in the criminal case. He deposes that, between April 2008 and March 2009, he had also incurred significant legal fees in this case.

32. On April 14, 2011, the father filed a Notice of Intention to Make a Proposal in Bankruptcy, pursuant to s. 51(4) of the Bankruptcy and Insolvency Act. According to the father, he was not in arrears of child or spousal support at that point. He did, however, have significant credit card debt and other debts owing to Amex, BMO Mastercard, CRA, Havergal College, OHIP, Rogers, Scotiabank, TD Visa and TD Canada Trust, amounting to $306,432.15. On May 31, 2011, at the first meeting of creditors, his proposal was rejected.

33. The next morning, on June 1, 2011, the father lost his central vision. He believes this was connected to the extreme stress that he was under at the time, his bankruptcy proposal having been rejected; his having a not-yet-diagnosed intracranial tumour; and the fact that a complaint that the mother had made to the CPSO (College of Physicians and Surgeons of Ontario in September 2010 - that is, that he was unfit to work as a physician - was still outstanding. [The claim was apparently dismissed by the CPSO on October 3, 2011.]

34. On June 1, 2011, after he lost his central vision, the father went to the CPSO and resigned his medical license. According to the father, he did not have any disability insurance. Within a few days, his central vision returned, and he, therefore, asked the CPSO to reinstate his medical license. He had to start an entirely new application for a medical license, which he submitted in September 2011. On December 21, 2011, the CPSO requested further information from him, which he provided. On February 17, 2012, an Independent Practice Certificate was issued. Thus, between June 1, 2011 and February 17, 2012, he had not been able to not work as a physician in Ontario. During that period of time, $33,805.87 in support arrears accumulated.

35. On July 25, 2011, at the second meeting of his creditors, the father’s creditors rejected his proposal and, according to the father, he was “deemed to be bankrupt”.

36. Beginning on August 1, 2011, the father began to live in a friend’s living room.

37. In September 2011, he was diagnosed with severe obstructive sleep apnea.

38. In March 2012, after an MRI, it was discovered that the father had an intracranial benign tumour, which required surgery. He worked part-time as a physician between February 17, 2012 and the date of his surgery (June 15, 2012). He was debilitated after the surgery and needed rehabilitation. As a result of the surgery, he lost his hearing in his left ear permanently. On July 15, 2012, he was able to return to work on a part-time basis.

39. On September 11, 2013, at his Application for Discharge, the father had unsecured debt, totalling $356,666.67 (of which $309,481.97 was owed to CRA, relating to unpaid taxes and associated penalties for the years 2006 – 2011. He also had secured debt owing to CRA of $23,797). [It is noteworthy that when the father was denied a discharge from bankruptcy, the matter was adjourned, to allow the father time to bring a motion to adjust the support amounts owing by him under the 2009 temporary support order. On October 8, 2013, the father brought the first motion to change the 2009 order, which motion Paisley, J. first adjourned and then dismissed in 2014 because the father had not provided the requisite information, specifically referred to as “documents” in the Court’s 2013 Endorsement and a “financial statement” and “financial information” in the 2014 Endorsement of Paisley, J.]

40. In August 2013, a patient of the father filed an anonymous complaint with the CPSO. On October 24, 2013, the father received a letter from the CPSO, advising him that their inquiry panel had determined that he was incapacitated as a result of the intracranial tumour, which had affected his hearing and balance; his history of visual impairment and brief resignation from the practice of medicine; his “recent stressors” and sleep apnea; and his retinitis pigmentosa. Various conditions were placed on his license to practice medicine. [I was not provided with the particulars of all of the restrictions.]

41. On May 22, 2015, at the second bankruptcy court hearing, the father filed a copy of Justice Paisley’s Order of June 24, 2014, dismissing the motion that he had brought to change the 2009 order. Again, he asserts that he was denied a discharge and remains an “undischarged bankrupt”.

42. In June 2016, CRA began garnishing the father’s OHIP payments (which FRO had already been doing). CRA advised him that, as priority creditors, they would be garnishing 50% of his OHIP receipts in priority to FRO’s garnishments. FRO then garnished 50% of the balance, which left the father with 25% of payments made to him by OHIP. According to the father, he then deposited the balance (25% of the payments OHIP made to him) into the medical practice group’s OHIP account, and where it was used it to pay his office overhead.

43. In March 2017, the Torgan Group/2409 Yonge Holdings Ltd. (the father’s landlord at the site of his medical practice from 1994 to 2017), sent him a demand letter on account of unpaid rent. On May 9, 2017, he was locked out of his office. He then moved to a new practice location. According to his financial statement, sworn on September 29, 2020, the father owed the landlord approximately $45,000 in unpaid rent at that time.

44. On April 16, 2018, the father’s current assistant filed a Ministry of Labour complaint against him. The Ministry determined that he owed her $19,878.25. She continues to work for the father. This debt appears on the father’s September 29, 2020 financial statement.

45. On June 6, 2019, the father’s former assistant filed a Ministry of Labour complaint against him and the Ministry determined that he owes her a total of $5,043.11. This debt appears on the father’s September 29, 2020 financial statement.

46. In June 2018, the restriction placed on the father’s medical practice by the CPSO – that is, that he had to have a practice reassessment - was completed. Since then, the father has had no restrictions on his medical practice, except for having to continue to post a sign in his office regarding his visual impairment.

47. Although at some point after June 2016, CRA had stopped garnishing his OHIP receipts, in June 2018, CRA required that he pay $72,382.58 owing to CRA on account of “pre-bankruptcy” corporate income taxes owing by his professional corporation. CRA began to enforce this debt by garnishing 50% of his OHIP billings, again in priority to FRO’s garnishment rights with the father being left with 25% of the billings. According to the father, his office overhead at that time was 25% of his office billings. In April 2019, the father fully paid off the $72,382.50 amount owing to CRA.

48. In June 2019, the father received another “requirement to pay” notice from CRA on account of unpaid payroll deductions pre-bankruptcy for his corporation, in the amount of $37,715.61. In July 2019, CRA began again to garnish the father’s OHIP billings, again resulting in him receiving only 25% of his OHIP billings [presumably having to apply some portion of it to his ongoing office expenses]. By December 15, 2019, the father had paid off the $37,715.61 amount.

49. It is my understanding that the father continues to owe CRA $215,000 in “pre-bankruptcy” personal income taxes, which they continue to collect, and also “post-bankruptcy” personal income taxes of $39,000. [It is not entirely clear where “pre-bankruptcy” tax arrears end and “post-bankruptcy” arrears start.] According to the father, he cannot be discharged from bankruptcy until the post-bankruptcy taxes are fully paid off.

50. The father deposes that, given his precarious financial circumstances, he has had no alternative but to rely on the generosity of friends for the past several years, to “make ends meet”. Specifically, the father lived in the living room of his friend’s one-bedroom apartment between August 1, 2011 until May 31, 2019. Since then, he has been living in his friends’ basement. His friends also loaned him funds to enable him to retain his current counsel to try to help him.

51. According to the father, in or about 2009, the mother re-partnered. In 2012, she and her “common law partner” purchased the home in which they continue to reside (in Ancaster, Ontario), for $525,000. She has a 50% interest in the property, which is subject to a mortgage in the face amount of $300,000. According to the mother, she contributes one-half of the household expenses, including the mortgage expense. She deposes that she moved in with her partner in order to provide the children with a better standard of living. The mother’s financial statement, sworn on November 2, 2020, indicates that her net worth at that time was $79,594.10.

52. The Form 35A, Director’s Statement of Arrears prepared by FRO sets out that, as of September 24, 2020, the father had accrued child and spousal support arrears of $74,130.62.

53. The 2009 temporary support order remains in force today. The father’s child and spousal support obligations under this temporary, “without prejudice” order have been and continue to be enforced by the FRO since the date of the order. The 2009 temporary support order was based on the father earning an income of $175,000 a year. I am satisfied on the evidence that:

    (a) the s.7 expenses that gave rise to the order that the father pay $1,053 a month toward tutoring and daycare ended at some point, although it appears that the mother is incurring tutoring expenses for Phillippe; (b) Charlotte completed an undergraduate degree at Bishop’s University in Quebec and is now in the second year of a two-year Masters of Biology and Immunology program at the University of Ottawa; (c) Stephanie is in her final year of a Bachelors of Public Affairs undergraduate program, at Carlton University, in Ottawa; and (d) Philippe is the only child who continues to reside with the mother on a full-time basis. He is 16 years old and in Grade 11 at a public school.

54. According to the mother, she continues to support Charlotte, by paying 50% of her rent and contributing to her daily expenses. In 2019, Charlotte’s tuition costs were $4,429.88 and in 2020, her tuition costs were $34,101. Charlotte will complete her graduate studies by April 30, 2021.

55. The mother deposes that, in 2018, Charlotte earned $16,173 and in 2019, she earned $9,391. The mother further deposes that Charlotte has taken significant steps to assist in reducing the costs associated with her post-secondary studies. In 2020, she applied for and was successful in receiving a scholarship in the amount of $47,000. The amount was not paid in one amount. According to the mother, Charlotte applied $34,101 of the amount to her tuition. Thus, Charlotte contributes to her various expenses with her limited income and the Mother hopes to continue to assist Charlotte in keeping her student debts low, by helping her to pay them down with the child support that she receives. Charlotte’s student debts currently exceed $40,000.00.

56. According to the mother, Stephanie has also made efforts to assist in reducing her own expenses. For example, Stephanie applied for and received a 30% discount on her tuition due to ADD and ADHD diagnoses made in 2014. Despite receiving this tuition assistance, Stephanie is still required to cover meal plans, residence and other mandatory expenses, with which the mother assists. Stephanie’s student debts exceed $30,000, even with her grants and bursaries.

57. According to the mother, Philippe’s ongoing expenses include tutoring, twice per week at a rate of $30 an hour, and orthodontics. He has braces for which treatment the mother is currently paying $250 a month (The total cost is $5,750, payable over two years). This treatment is set to be completed in June 2021.

58. Once Phillippe graduates from high school in June 2022, Philippe hopes to study Engineering at the University of Western Ontario.

The Father’s Position

Child Support Issue

59. The father’s position is that because there has been a “material change” in the children’s circumstances and in his income since the 2009 temporary, “without prejudice” order was made, the Court should make the following orders:

    (1) An order terminating child support for Charlotte effective April 30, 2019; (2) An order terminating child support for Stephanie, effective as of April 30, 2021; (3) An order determining his prospective child support obligations for both Stephanie and Philippe, as of May 1, 2021; and (4) An order determining what the arrears of child support are.

60. In support of the above requests he makes for support-related relief on a final basis, the father’s position is as follows:

    (1) Charlotte is now 23 years old and, therefore, is over the age of majority and no longer a “child of the marriage”, as defined by the Divorce Act. Therefore, the mother was not entitled to child support for Charlotte once she finished her undergraduate studies. She completed her undergraduate studies before the end of April, 2019. Thus, child support for Charlotte should terminate, effective as of April 30, 2019, by which time she would have completed her studies in relation to her undergraduate degree. (2) Stephanie is now 22 years old and, therefore, is also over the age of majority. However, it is the father’s position that she remains a “child of the marriage” as defined in the Divorce Act, and is eligible for child support until she completes her first undergraduate degree which will be by April 30, 2021. The father seeks an order terminating his child support obligation for Stephanie, effective as of April 30, 2021. (3) Philippe is 16 years of age and in high school. The father acknowledges he has an ongoing child support obligation for him. He seeks an order setting his child support obligations for Philippe on the basis of his 2019 Line 150 income of $98,752, and that he continue to pay child support for Philippe until the earlier of a) his completion of one undergraduate degree or b) April 30, 2026.

61. The father seeks an order that he pay $1,456 a month (the table amount of child support for two children) for Stephanie and Phillipe, in accordance with the Federal Child Support Guidelines (“Guidelines”), based on his Line 150 income of $98,752, for the period of May 1, 2019 to April 30, 2021, inclusive.

62. He also seeks an order that, starting on May 1, 2021, he pay the table amount for Phillipe only, in the sum of $901 a month, based on his 2019 Line 150 income of $98,752.

63. The father’s position is that if a child ordinarily resided or resides with the mother but resided or resides away from the mother’s home for the purpose of obtaining an undergraduate degree outside of Toronto (or, as I understood the intent of his proposal, for part-time or summer employment or school breaks/vacations), he will not seek a reduction in the table amount. According to the father, he has paid and remains prepared to pay child support on this basis.

64. With respect to the s.7 expenses themselves, the 2009 temporary support order has obliged the father to pay the mother $1,053 a month on account of s.7 expenses since May 15, 2009. According to the father, the s.7 expenses that were to be paid no longer exist. Further, a 76% contribution toward s.7 expenses to which he is obliged to contribute in the future is no longer the appropriate proportionate ratio, based on the parties’ combined incomes. It is his position that the temporary, “without prejudice” s.7-expense order should be terminated, effective as of January 1, 2020, and an order be made, determining that, as of that date, there were no arrears of s.7 expenses.

65. The father seeks an order that he pay his proportionate share of Stephanie’s s.7 expenses for the period between January 1, 2020 and April 30, 2021, inclusive, upon the mother providing proof of the expenses for which she seeks a contribution by him, together with proof of any scholarships, bursaries RESPs and employment income Stephanie earned, so that he can calculate his proportionate contribution to such expenses.

66. The father seeks an order that he pay his proportionate share of Philippe’s s.7 expenses commencing January 1, 2020 and until he no longer has an obligation to pay child support for Philippe, upon the mother providing proof of the expenses for which she seeks contribution, together with proof of any scholarship, bursaries, RESPs and employment income Philippe earned, so that the father can calculate his proportionate contribution to such expenses. It appears that the mother may have been paying tutoring expenses during the period between January 1, 2020 and the current time. If she has been doing so in order to assist Phillipe in improving or ensuring his academic performance, then, starting as of January 1, 2020, such tutoring is to be treated as a s.7 expense to which the father is to contribute 2/3 of the after-tax cost to the mother of such expense after reimbursement to her of any amount(s) covered by a plan referred to above in relation to Stephanie’s orthodontic treatment, starting on January 1, 2020, when such expense is incurred by Phillip while he is a child of the marriage, as defined by the Divorce Act. In addition, she has been paying for Philippe’s braces at a rate of $250 a month ($5,750 over 2 years). These are s.7 expenses to which the father must contribute. On or before April 15, 2021, the mother shall provide proof of payment by her of the tutoring and orthodontia expenses, together with proof all any reimbursements she received on account of the payment, if any, by a benefits plan. to contribute; and proof of any portion of this expense, for which she received a deduction or credit in the calculation of her Line 150 income in 2020 (it being anticipated that she will file her 2020 income tax return early enough such that she can provide the tax return to the father for this purpose).

Spousal Support Issue

67. The father seeks a final order, terminating his spousal support obligation to the mother as of January 1, 2013, when he first brought his motion to change the 2009 temporary support order. His position is that he had thus formally put the mother on notice of his financial difficulties in 2013 and although Paisley, J. dismissed his motion to change in 2014, that did not “affect the substance” of what the mother was made aware of “at that time”, namely, that the father had been living with friends for two years, had been diagnosed with an intracranial tumour and undergone surgery and “rehab” as a result; did not have a medical licence for a period of time between 2011 and 2012; was in the midst of making a bankruptcy proposal; and the CPSO had declared him incapacitated [1].
68. The father’s position is that his proposed termination date for spousal support was chosen because it was at that point that he moved to change the 2009 temporary support order. However, he did not bring the motion until October 3, 2019. The motion was dealt with by Paisley, J. on December 3, 2013. According to the father himself, he brought the motion after September 11, 2013, when his bankruptcy proposal was rejected and that proceeding adjourned, to allow him time to bring a motion to change the 2009 temporary support order.
69. The father also seeks a final order that there are no arrears of spousal support were owed by him as of January 1, 2013.
70. Based on his proposed spousal-support-termination date, he seeks an order that the mother repay to him what he terms “the overpayment” of spousal support he paid, in the sum of $91,644 on account of the period between January 1, 2013 to December 31, 2019, inclusive. [He did not explain the basis for his calculation ending at December 31, 2019. The 2009 order continues in force until this time.

The Mother’s Position

71. The mother’s position on the final order that this Court should make is as follows:

    (1) With respect to spousal support, she is agreeable to an order that the father’s obligation to pay spousal support to her terminate as of September 14, 2020. However, she is not agreeable to the termination of spousal support, effective as of January 1, 2013 (8 ¼ years ago). She opposes an order that would require her to repay temporary spousal support paid under the terms of the 2009 temporary, “without prejudice” order; (2) With respect to her entitlement to child support for Charlotte after Charlotte completed her undergraduate degree, she submits that while Charlotte pursues her graduate degree, Charlotte is still reliant on her for financial assistance and thus remains a “child of the marriage”, as defined by the Divorce Act. As a result, she remains entitled to child support for Charlotte while she completes her graduate degree; (3) With respect to child support for Stephanie, the mother submits that Stephanie is a “child of the marriage”, as defined by the Divorce Act, and will be at least until she completes her undergraduate degree. (4) With respect to child support for Philippe, the mother’s position is that she is entitled to receive child support from the father, at least until Philippe completes one undergraduate degree. (5) According to the mother, FRO’s accounting shows that, as of September 24, 2020, the father owed support arrears of $74,130.62. FRO’s accounting does not break the arrears down in relation to each of the three, monthly, temporary and “without prejudice” payments the father was ordered to make under the 2009 order. According to the mother, she herself calculated that $10,683.00 of the support arrears as of that date are child support arrears and $63,017.52 are spousal support arrears [2]. The mother has not persuaded me that her breakdown between child support and spousal support is accurate. According to the mother, FRO applies payments first to child support amounts owing. Aside from the question of whether they assign support payments made to FRO, pursuant to a court order, to one payment obligation in priority to another one, the mother’s position regarding the amount of arrears owing is non-sensical in light of her position that, prior to September 24, 2020, the father was obliged to pay support under the order and that FRO (and CRA, for that matter), apply payments made to child support. Assuming that the FRO accounting of support paid by the father as of September 24, 2020 is accurate, then based on her own position, the father would have owed no child support to her as of September 24, 2020 and $53,017.52 in spousal support. (6) According to the mother, the father created the precarious financial circumstances in which he finds himself and ought not to be able to rely on those circumstances to vary his child and spousal support obligations downward; and (7) It is not fair that she would owe the father money on account of an “overpayment” of spousal support due to a “retroactive” determination that his spousal support obligation should have terminated as of January 1, 2013, when he waited more than 5 years after his first motion to change the temporary support order was dismissed before he took the steps required to proceed with another motion.

72. The mother also submits on this hearing that the father’s credibility is in issue, for the following reasons:

    (1) The father’s line 150 is not reliable because he is self-employed and his gross income is much higher than his net income. She alleges that the father writes off expenses that are not legitimate in the calculation of his line 150 income; However, it is noteworthy that the mother has had the information about the father’s income for some time and has not pointed to any specific expenses that he wrote off that ought to be added back to the calculation of his income; (2) The father deducts rent expenses in calculating his line 150 income but also claims that he was unable to earn income over the years because he had been locked out of his medical practice for non-payment of rent, which, according to her, does not make sense; (3) The father had advised the mother that he earned cash income, which he had not reported (included, that is) in calculating his income; (4) The father has not adequately explained why he had surrendered his Ontario medical license but had maintained his Quebec medical license; (5) The father had not been forthcoming with his disclosure; and (6) The father prioritized his CRA debt over the children and her, resulting in support arrears accumulating to an amount in excess of $74,000.

Analysis

73. The order of McWatt, J., dated March 31, 2009, is a temporary support order, to which the parties consented almost 12 years ago.
74. Certainly, in the early years of this case, the case could objectively be termed a “high conflict” case. It is to the parties’ credit that they were able to agree on the terms of a temporary, “without prejudice” support order relatively early on. However, over the next four years, a lot went on. As I understand it on the untested record before me, the father was involved in the criminal proceeding and a process resulting from a complaint that the mother had apparently made to the CPSO about the father. The father had to address serious health circumstances. The father made an assignment into bankruptcy. The mother and her partner bought a home. While all of this was going on, both parties worked. The evidence before me does not suggest that the father chose not to work. He apparently worked when he was well enough to and had the medical licence he needed in order to practice medicine in Ontario. The mother apparently assumed the responsibility for the day-to-day care of the three children. Both parties must have been very busy attending to all of the above issues and obligations in the four years that ensued after March 31, 2009. Nevertheless, there is virtually no evidence before the Court as to what each party did to move forward to address the issues in this proceeding, to put himself/herself in a position where he/she could settle the outstanding issues on an informed basis or to have a court decide the issues on a final basis at a trial.
75. While the father was unsuccessful on the motion that he served in 2013, to vary the temporary order, and it was clear that he had not provided evidence that was relevant to his request (specifically, in 2014, financial evidence and information), the evidence suggests that, in 2019, after the father served his material in support of his motion for leave to bring another motion to vary the March 31st, 2019 order, he sought disclosure from the mother, which she did not apparently provide in response. Further, in July 2020, he served a Request for Information on the mother, seeking income information from her going back to 2009. In August 2020, Wilson, J. ordered that the mother provide significant information respecting her income and the children’s expenses that the mother had incurred in relation to s.7 expenses between 2010 and the current time.
76. The mother has raised a concern about the father’s credibility in support of her obvious allegation, essentially, that his line 150 income is lower than the income with which he should be imputed for support purposes. However, she neither provided her position respecting the income with which the father should be imputed for any year between 2009 and the current time where she is not satisfied that the father’s line 150 income is the income upon which support ought to be based nor asked this Court to do so. After receipt of the father’s evidence for purposes of the hearing in writing, she did not seek to delay the Court’s consideration of the “motion”/hearing in writing so that she could cross-examine the father on his evidence nor asked this Court to order a trial in light of the father’s evidence. At any point in time over the last 10 years, say, the mother could have taken steps available to any litigant under the Family Law Rules, to obtain disclosure that would assist her in either determining what the father’s income for support purposes was or to confirm whether the father’s position regarding his income was reasonable in light of the applicable law. Either party could have taken steps, if the other failed to provide court-ordered disclosure. Either party could have taken steps to strike the other’s pleading, if the other party was not co-operating reasonably in this case and he/she wished to move the case forward to a timely trial. The record is void of evidence regarding any steps that the mother took over the past 10 years, in order to put herself in the position where she could reasonably ask a trial judge to impute additional income to the father in any year or years in order to determine what the father’s support obligations ought to have been in that year or those years.
77. The parties served the evidence for this hearing in accordance with the timelines that Nakonechny, J. fixed. Thus, at the time that she ordered that the support issues in this case would be disposed of via a hearing in writing, the parties did not know what the evidence of the other party would be. However, I note from the Endorsement of Nakonechny, J. that a conference call was to take place with her in early October 2020. Had either party had a concern about the hearing proceeding on the written record at that time, he/she could have raised it at that time. Neither party sought to delay the determination of the support “motion”/hearing in writing, in order to cross-examine the other party on the evidence with which he/she was served. Nor did either party seek to have the matter proceed via a trial after he/she was served with the evidence. I infer that the parties agree with Nakonechny, J.’s opinion that the support claims should be determined in the manner fixed by her instead of at a trial for which they were still not ready to proceed in mid-2020. I have thus determined the support issues on a final basis, having regard to the written evidentiary record, the facta, filed, counsel’s oral submissions, and the relevant statutory provisions and relevant jurisprudence.
78. Both parties understand that the 2009 consent order was a temporary order only. Both parties had counsel at the time that the 2009 order was consented to and thus certainly understood that and subsequent determination of support could start at least as early as March 31, 2009. Both parties understand that the support issues are to be determined on a final basis by the “motion”/hearing judge. To be clear, this case arises from an originating claim for child and spousal support made by the mother as opposed to an application by the father, to vary a final support order previously made. In their evidence and submissions, the parties and their counsel framed their submissions, using variation terminology and concepts. The mother actually submits that the issues fall to be determined under ss.17(4) and 17(4.1) of the Divorce Act. They do not. Again, the order in force in this case at this time is a 2009 is a temporary order made under the Divorce Act. Thus, the determination of the support issues on a final basis is governed by sections 15.1 and 15.2 of the Divorce Act.
79. Although the father clearly asserts that, at some point in time, the terms in the 2009 temporary support order were no longer appropriate, given the changes that took place after 2009 (which he has described), he is seeking final orders, which, he submits, must give rise to an obligation that the mother repay money to him when this Court determines the support issues on a final basis. [I note that the father did not refer to the statutory provisions that govern the determination of the support issues.]
80. I note that neither party took the position that the 2009 temporary and “without prejudice” order should be deemed to be a final order and dealt with as a variation of a final order under s.17 of the Divorce Act. Thus, it is not necessary for me to address the issue of whether the Court can proceed in that manner. The child and spousal support issues are disposed of below under ss.15.1 and 15.2 of the Divorce Act.

Child Support

Applicable Legislation

81. The applicable provisions of the Divorce Act, are reproduced below:

    Child support order 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

    Guidelines apply (3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

82. The definition of a “child of the marriage” as set out in the Divorce Act, is reproduced below:

    2) 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;

83. The mother relies on Ethier v. Skrudland, 2011 SKCA 17 (C.A.), in which, at paragraph 29, the Court identified ‘other cause’ as “ …attendance at secondary school or at a post-secondary institution”.

84. To determine whether an adult child is unable to obtain the necessaries of life, coming within the definition of “child of marriage” under the Divorce Act, the court is not to ask the question as to whether the child’s 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 to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the child’s support: Weber v. Weber, 2020 ONSC 4098, at paragraph 58.

85. Pursuant to s.15.1(3), the Child Support Guidelines (“Guidelines”) must be considered when the court is asked to make a child support order in relation to children of the marriage who are over the age of 18. Child support for adult children is addressed in s.3(2) of the Guidelines, which provides as follows:

    3(2) 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.

86. While there is significant jurisprudence on the issue of support for adult children who are pursuing a second/graduate diploma/degree, little concrete guidance as to entitlement or amount is provided in the case law since the decision in each case a fact-driven exercise.

87. Not only must the court find that that an adult child has not withdrawn from parental charge and/or is not yet able to obtain the necessaries of life but the moving party must also demonstrate that the child’s inability to do so is attributable to illness, disability or other “cause”, to establish that the applicant is entitled to child support for the child: Weber v. Weber, supra. and Ethier v. Skrudland, supra.

Charlotte

88. Charlotte has been in a two-year Masters program since 2019. She is scheduled to complete it at the end of April 2021. The mother submits that Charlotte continues to be “child of the marriage”. Due to the demands of her Masters program, Charlotte has been and still is unable to pay for the necessaries of life, without support from the parents. She is unable to withdraw from her parents’ charge while she completes her Masters degree. According to the mother, Charlotte has taken advantage of all bursaries, student loans and scholarships available to her. Further, Charlotte has earned employment income. The mother deposes that she contributed $15,479.79 to assist Charlotte in her out-of-pocket expenses, but she does not breakdown whether she has contributed to this sum on behalf of Charlotte in 2019 or 2020, or another year. Attached as Exhibit “B” to the mother’s affidavit, sworn on November 2, 2020, is a chart she prepared detailing expenses she has paid on behalf of all three children, broken down by calendar year. According to this chart, the mother has contributed $3,011.50 toward Charlotte’s expenses in 2019 and $520 in 2020. The mother deposes that Charlotte’s student debts currently exceed $40,000.

89. The mother submits that the Court has the option to “compartmentalize” the orders it will make for ongoing child support, since two of the children are over the age of majority and, therefore, the Court does not have to follow the Guidelines in making an order for child support for Charlotte and/or Stephanie. The mother relies on Foster v. Foster, [2000] O.J. No. 4006 (Ont. S.C.J.), in which, at paragraph 13, the Court stated,

    “When one child is over the age of majority and one child is under the age of majority, section 3 gives the court the choice of “compartmentalizing” child support. To put it another way, two separate orders can be made in isolation of each other with a possible inequitable result to the payor. In part, it might depend upon which paragraph of subsection 3(3) the court proceeds under and, if the court proceeds under paragraph 3(3) (b), whether the support for the child or children under the age of majority is set first or last.”

90. Foster, supra, gives no concrete direction regarding the factors the Court should consider in determining whether to “compartmentalize” the child support payable where support for one or more adult children is in issue. During the oral submissions, when asked by this Court what the mother is seeking in terms of monthly child support for Charlotte and/or Stephanie, if the Court were to find that the amount of child support for one or both adult children could and should be different than the table amount for the number of children for whom support is payable, as contemplated in Foster, supra. Counsel for the mother advised the Court that the mother would be content to accept a payment of $700 a month, or $350 a month for each child, to assist her with their expenses.

91. Again, the father’s position is that he is agreeable to paying Guidelines child support for each child who is over the age of majority and pursuing one undergraduate degree, even if the child resides away from home to attend school, as was the case for Charlotte and is currently the case for Stephanie. He submits that the usual Guidelines approach is inappropriate because she is pursuing a second post-secondary degree and, given the parties’ means and Charlotte’s ability to earn some income and take advantage of other financial resources such as scholarships or bursaries, he ought not to be required to pay child support to the mother for Charlotte while she has pursued her graduate degree. He relies on Decaen v. Decaen, [2013] O.J. No. 1549, 2013 ONCA 218, at para. 58; and N. (W.P.) v. N.(B.J.), 2005 BCCA 7, 249 D.L.R. (4th) 352, in support of his position that while a parent of significant means may be ordered to pay child support to the other parent while a child pursues a second degree, support while a child is pursuing a second degree is very much subject to the parents’ ability to pay:

92. When the parties attended to make oral submissions, counsel for the mother submitted that the Court should consider what the parents would have done, in terms of supporting Charlotte, had the marriage remained intact and she pursued a Masters program after obtaining an undergraduate degree. In support of the mother’s position that she is entitled to support for Charlotte for the period of Charlotte’s graduate school studies, her counsel referred to the fact that the parties had sent Charlotte and Stephanie to Havergal College, a private high school. First, given that the parties separated 11 years before Charlotte began her graduate degree program, determining what the parents would have decided to do in terms of contributing toward Charlotte’s support after she finished an undergraduate degree would require the Court to engage in mere speculation on issues such as whether the father’s health would have deteriorated to the extent that it did after they separated and whether the mother’s career trajectory would have been different than it was after the separation. As for the relevance of the decision to send Charlotte and Stephanie to a private high school, there is no evidence before the Court as to why or when the parties made this decision. Thus, the Court cannot consider what financial means the parties had at the time that they made the decision. Although Charlotte was only 11 years old at the time of the 2008 separation, it appears from the 2009 temporary, “without prejudice” support order that the parties had agreed at least as early as in March 2009 that the children would attend private school. At that point in time, the incomes upon which the parties appear to have based the terms that are payable monthly under the 2009 temporary support order totalled in excess of $230,000 (based on a $175,000 income for the husband and what appears to have been a $55,260 income for the wife). At the time that Charlotte started her graduate-degree program in 2019, the parties’ incomes for 2018 would or could have been known or determined. The evidence before this Court is that parties’ combined line 150 incomes in 2013 totalled about $113,000, about $117,000 less than the combined amount upon which the 2009 temporary support order was based. I note that the mother’s evidence is that, due to non-payment of school expenses, the children ceased attending that school. To determine whether the children attending private school made it more likely that the parties would have supported Charlotte through a graduate degree would require the Court to engage in mere speculation.

93. I find that Charlotte remained a “child of the marriage”, as defined by the Divorce Act. The Masters degree, which she has pursued since 2019, will undoubtedly assist Charlotte in pursuing a career. The mother’s line 150 income of $50,141 in 2019 and her estimated 2020 income of $53,022.12, are relatively modest. Although the schedule for the delivery of material for the “motion”/hearing in writing did not refer to Family Law Rule 13(12), the mother complied with the Rule. The father did not, although I appreciate that, as of the date by which he had to serve his material for this hearing, he would not have known what his 2020 income would be. While in addressing the issues for this “motion”/hearing, the mother had, again, expressed a concern that the father’s line 150 income might (or, perhaps even, would) not fairly reflect his income for support purposes. However, she at no time took the position that, in disposing of the support issues on a final basis, this Court ought to impute the father with income over and above his line 150 income.

94. The father’s position is that Charlotte was not a “child of the marriage” after April 30, 2019, and that the mother has not met her onus to prove that Charlotte is still a “child of the marriage”. Thus, support for Charlotte should terminate as of April 30, 2019, and the Court should make a final order that, starting on May 1, 2019, and monthly thereafter, he pay the table amount of child support for two children (Stephanie and Phillipe), being $1,456 a month, to the mother for the period from May 1, 2019 to April 30, 2021, inclusive. He will contribute his proportionate share of Stephanie’s post-secondary education expenses incurred during that period, the determination seemingly to be made by him. As I understand it, the mother asks that the monthly amount of support to be paid to her for that period, is $1,061, being the table amount of support for one child (Phillippe), in the sum of $901 (based on a line 150 income of $98,792 for 2019 -2021) plus $350 a month for each of Charlotte and Stephanie, plus his proportionate contribution toward Stephanie’s and Phillipe’s s.7 expenses during the period. She asserts that, in addition to Stephanie’s university-related expenses, she has contributed toward the costs of braces for Stephanie and tutoring for Phillipe. She did not explain why she was seeking an order “compartmentalizing” her request for child support in the way that she did, but I surmise it was to give the Court an option to order some child support for Charlotte and/or Stephanie in an amount other than provided for by the Guidelines.

95. In Naveed v Masir, 2016 ONSC 7878, the Court held that the collective means of the family were modest and insufficient to cover graduate post-secondary educational costs of the children. In the matter before this Court, the parties addressed the support issues on the basis that the parties’ incomes for support purposes were their line 150 incomes. As I understand it, it was in the course of this “motion”/hearing in writing that the mother first submitted that there were credibility issues, which were relevant to the income of the father for support purposes. The mother did not suggest that she had only recently become aware of the facts to which she refers in expressing concern about the income of the father upon which the support issues would be based. While the line 150 income trajectories of the parties may have been upward around the time of the separation, starting in 2011, the father’s income declined significantly, ultimately levelling out in 2017; the mother’s income declined significantly in 2016 and now appears to be levelling out. At the time that Charlotte began her graduate program, the collective means of the family (the parents and children) were relatively modest. While a parent may choose to assist a child voluntarily out of his/her own limited resources, his/her choice to do that does not then dictate that the other parent must do that as well. Particularly given his child support obligations in relation to the two younger children – that is, paying the table amount of child support to the mother for the two younger children and contributing toward their s.7 expenses, it cannot fairly be said that the father then has sufficient resources to contribute as well to the support of the child pursuing her graduate degree.

Stephanie

96. The parties agree that Stephanie, who is over the age of majority but in full-time attendance at a post-secondary educational institution for the purpose of completing her undergraduate degree, is a “child of the marriage,” as defined by the Divorce Act. The mother is, therefore, entitled to child support for her. The father is agreeable to paying table child support to the mother for Stephanie, based on his 2019 Line 150 income of $98,752.00, until she completes her degree, which is expected to be completed in two months, by April 30, 2021. He proposes that he do so monthly, without seeking a reduction in the amount on the basis that the child has spent or spends significant time residing away from the mother’s residence.
97. The father has sought an order terminating the 2009 temporary support order, which requires him to pay the sum of $1,053 to the mother monthly, effective as of January 1, 2020. I have decided to make a final order regarding the parties’ respective obligations to contribute toward the future, effective as of January 1, 2020, as discussed in paragraph 105 below. In her affidavit, filed in response to the father’s motion, the mother addressed Stephanie’s section 7 expenses. It is clear that Stephanie obtained a reduced tuition, given her medical condition. It also appears that Stephanie obtained a loan(s) to assist with her university costs. The mother does not provide a breakdown of the expenses that she incurred in relation to Stephanie in the year 2020. In the Excel spreadsheet that the mother produced regarding the children’s.7 expenses, the mother only shows a rent expense of $450, which is likely a s.7 expense. In her affidavit, the mother asserts that she made payments for the children over the prior 10-year period, which, according to my calculations, total about $138,434.67. This includes her contributions toward Charlotte’s support during the course of her graduate studies. I note that over a 10-year period, the father paid $122,574.90 to the mother on account of section 7 expenses, pursuant to the 2009 temporary order. Even if the mother repays the father the amount he paid to her on account of children’s s.7 expenses from January 1, 2020 onward, it is noteworthy that he did not seek to terminate the monthly s.7 expense order as of April 30, 2019, when Charlotte completed her undergraduate degree. He asked that the s.7 order terminate at the end of December 2020. In addition, the father paid the table amount of support for three children on the basis of an imputed income of 175,000 for 10 years, and did not seek a reduction in the support amount because a child was attending university away from the mother’s home. While the mother deposes that she paid about $138,434.67 in child-related expenses, her Excel spreadsheet lists expenses, which total less than half of that amount. In my opinion, a sharing of the expenses shown in the mother’s Excel spreadsheet, which include the one rent payment, would be reasonable in the circumstances.
98. The mother deposed on November 2, 2020, that she had to pay $4,000 on account of dental surgery, which Stephanie was scheduled to have later that month. In my opinion, this is an appropriate s.7 expense to which a parent should, generally, be obliged to contribute. I appreciate that there is no evidence before the Court as to whether extended health coverage was available to assist with the expense or whether the mother will be claiming the expense as a medical expense for tax purposes.
99. The father should be responsible for his share (2/3) of the expenses referred to for Stephanie in 2020 and the cost of the dental treatment.
100. The parties disagree on the mother’s entitlement to child support for Stephanie after she finishes her undergraduate studies. There is no evidence before the Court that Stephanie is planning to pursue a second degree at this time. Thus, effective as of May 1, 2021, the father shall pay no support for Stephanie.

Phillippe

101. For clarity, starting on May 1, 2021 and monthly thereafter, the father is to pay the Guidelines table amount for 1 child (Philippe) in the sum of $901 a month, based on an income of $98,752. He shall pay child support to the mother for Phillippe for so long as Philippe resides with the mother and is a “child of the marriage”, as defined by the Divorce Act. He proposes that during the course of the child’s undergraduate studies, he will pay support monthly, without seeking to reduce the amount on the basis that the child resides away from Toronto to attend a post-secondary educational institution. The mother did not oppose this proposed term.
102. The mother asserts that she incurs a tutoring expense in relation to tutoring for Phillipe. If Phillipe had any sessions with a tutor on or after January 1, 2020 for which the mother paid, and seeks a contribution by the father of his proportionate share of the cost, then, on or before April 15, 2021, she shall provide the father with copies of the invoices with which she and/or Phillipe were provided and proof that she paid these amounts to the service provider. She shall also provide the father with any documentary proof in her possession, which sets out the reason that a tutor was retained. The father shall similarly pay 2/3 of the after-tax cost of tutoring expenses that the mother has paid for tutoring for Phillipe during this period and shall contribute to these costs unless the parties otherwise agree or a court orders otherwise.

Section 7 Expenses

103. The father seeks an order that the 2009 temporary support order requiring him to pay the mother s.7 expenses in the monthly amount of $1,053 a month be terminated, effective January 1st, 2020.
104. It is not clear why the father seeks an order that the 2009 temporary support order terminate as of December 31, 2019. The father served his Form 14B motion to change the 2009 temporary order on November 18, 2019. On January 28, 2020, he was given leave to bring the motion after a case conference took place. While he could arguably have sought an end date for the payment of this monthly sum as of April 30, 2019, having not chosen to do so, seeking an order terminating the s.7 provision as of November 18th, 2019 also would have made sense. Given the father’s request to terminate the order on December 31, 2019 and the lack of any comment on this issue by the mother, a final order will go, as requested regarding the end date.
105. Given the final orders that I have made in relation to s.7 expenses the mother has incurred for Stephanie and Philippe since December 31, 2019, I order that the s.7 expense obligations of the parties contained in the 2009 temporary orders terminate on December 31, 2019.

Spousal Support

106. The issue of spousal support is the thorny issue.
107. The father seeks an order terminating his spousal support obligation to the mother, effective as of January 2013. His position is that the mother had formal notice of his financial difficulties in 2013 that he was seeking to have his spousal support obligation terminate and, based on that notice, the termination of spousal support ought to be effective from January 1, 2013. The mother takes the position that, for various reasons, this Court ought not to find that she received effective notice of his request to terminate his spousal support obligation to her at that time. First, this case is not one in which one of the issues involved is the date on which a party gave notice of his/her intention to bring a claim for relief, either on an originating basis or by way of a variation application. The mother started an application, which contained support claims in 2008. Notice of her claim is not in issue. While the parties continue to frame their respective cases on changes in the circumstances after the temporary and “without prejudice” order was made, this is not a case in which notice of a request for a variation of an order is involved.
108. In relation to the mother’s claim for spousal support, notwithstanding the length of time it took the parties to move their case to this hearing in writing, the issues before the Court in this case are no different than they are in any other case in which a spouse or former spouse seeks spousal support – is the wife entitled to spousal support and, if she is, the quantum and duration of the support order. Both parties certainly had the right to take the position on this hearing, that: (a) in the case of the mother, for example, she was entitled to spousal support and the final support order should include terms, which grant her a greater amount of support than that which she received under the temporary order during the period of time (or for periods of the time) that the temporary order was in place, up to an including, say, September 24, 2020. In the normal course, the father would receive credit for the spousal support paid under the temporary order, which would effectively terminate when the final order is made; and (b) in the case of the father, for example, a final order should be made, granting spousal support to the mother, in an amount that is less than the amount of spousal support ordered on a temporary basis and terminating on, say, January 1, 2013. He could also seek an order that the mother repay to him the difference between the amount of support ordered on a final basis and the amount of spousal support he paid under the terms of the temporary support order. Thus, in my view, the “effective notice”-of-a-claim issue is not a factor to be considered in determining when spousal support terminates in this case. The Court is not bound to order start or end dates for support that have been proposed by the parties.
109. The statutory provision, which governs the disposition of the mother’s spousal support claim is s.15.2 of the Divorce Act, which is reproduced below:

**Spousal support order**
**15.2 (1)** A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

**Terms and conditions**
**(3)** The court may make an order under subsection (1) or an interim order under subsection (2) 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.

**Factors**
**(4)** In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.

**Spousal misconduct**
**(5)** In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

**Objectives of spousal support order**
**(6)** An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

110. The parties met when the mother was 19 years old. Again, they married when she was 23. They separated after 15 years of marriage. They have three children, who were 11, 9 and 4 years old at the time of the separation. The evidence appears to be that, at least since the separation, the mother had the primary caregiving responsibility for the children. The children did not apparently spend a considerable amount of time with the father. She has thus effectively carried them through their growing-up years.
111. According to the mother, when the parties met, she had a “prominent career” as a freelancer photographer, which she then gave up to support the father’s career goals. She apparently worked as a photographer during the day and worked as an admitting clerk at the hospital where the father was a medical intern. According to the father, at the time of the marriage, the mother was earning $20,000 a year. She was only 23 years of age.
112. The evidence regarding the history of the marriage is not provided in significant detail. The mother asserts that she worked for the father for four years, before Charlotte was born. According to the mother, she worked in the father’s office, helping him establish his practice. She did his “chartings”; completed patient intake; accompanied the father on his home visits and was responsible for all administrative duties. She was not paid for the work she did. After Charlotte was born, an office administrator was hired.
113. No evidence was provided by the parties respecting the incomes they earned in the year of the separation (2008) or earlier than that. Extrapolating from the 24% proportion that the mother was to pay toward certain s.7 expenses under the 2009 temporary order, it appears that she earned about $55,260 in 2009. Her income over the following six years increased gradually, to $72,162. However, for reasons that are unknown by this Court, in 2016 and afterward, her income decreased, only returning to the $50,141 level in 2019. Her income in 2020 was not significantly greater. The mother and her partner own a home. Each pays one-half the house-related expenses.
114. The father was a medical intern when the parties met. The father apparently became a general practitioner. When the parties consented to the 2009 temporary, “without prejudice” support order, they agreed to impute an income of $175,000 to the father for support purposes, although it was clear that the order was made “without prejudice” to either party’s right to later take a different position respecting his income among any of the other issues that might affect a party’s position course regarding the appropriate support terms to be ordered in respect of the period of time during which the temporary order, “without prejudice” order was in place. His Line 150 income for 2010 was $213,750.
115. Thus, in years relatively close to the separation, when the family was intact, the combined income level, based on the parties’ line 150 incomes, was as high as about $278,127 in 2011.
116. The father has not taken the position that the mother was never entitled to spousal support. It is that his spousal support obligation should terminate as of January 1, 2013, based, essentially, on the circumstances, which he framed as changes in circumstances for the purposes of an order “varying” the temporary order by terminating spousal support, as of January 1, 2013. These circumstances are set out in paragraphs 31-50 above.
117. Based on their Line 150 incomes:

(1) In 2010, the father’s Line 150 income was $213,750. The mother’s Line 150 income was $64,377. Thus, she earned about 30% of what the father earned.
(2) The father’s Line 150 income began to decline in 2012, when it was $55,331 (His gross income before expenses was $102,030.81 before expenses), as compared with the mother’s income of $64,947.
(3) Likewise, in 2013, the father’s Line 150 income was less than the mother’s income, at $53,644, as compared to her income of $67,557. (His gross income was $140,519.56 before expenses.) FRO continued to enforce the child and spousal support terms contained in the 2009 temporary order. In 2013, the father brought a motion to change the temporary order. Paisley, J. adjourned it because the father had not filed a document(s) that he had been required to do.
(4) In 2014, the father returned his motion to change the temporary order. It was dismissed by Paisley, J. because the father had failed to provide a financial statement and financial information. However, in 2014, the father’s Line 150 income from his medical practice had increased to $100,975 (His gross income was $151,462 before expenses.) and the mother’s income was $70,738, 70% of what the father earned.
(5) In 2015, the Line 150 incomes of the parties approximated each other ($76,997 for the father and $72,162 for the mother).
(6) In 2016, the father earned $9,000 more than the mother.
(7) In 2017, the father’s Line 150 income increased to $97,297 (His gross income was $182,996.85, before expenses.) and the mother’s income declined to $11,463, 12% of the father’s income.
(8) In 2018, the father’s Line 150 income remained steady at $96,555 (His gross income was now $208,636.14, before expenses) and the mother’s income was $35,446, 38% of the father’s income.
(9) In 2019, the father’s Line 150 income was $98,792 (His gross income was $180,795.35, before expenses.) and the mother’s income increased to $50,141, 50% of the father’s income.
(10) In her financial statement, sworn on November 2, 2020, the mother deposes that her 2020 income was $53,022.12. The father’s most recent financial statement was sworn on September 29, 2020. He did not estimate what his 2020 income would be in 2020. He has relied on his Line 150 income in 2019. To be fair, he is self-employed and 2020 had not ended when his evidence was due under the order of Nakonechny, J.

118. Interim, non-time-limited spousal support orders can be varied before trial where the circumstances of the case justify such an order. Such circumstances may include, for example, where the record shows that the delay in having a determination lies at the feet of the recipient and there is still a significant amount of time before trial; new income information put forth by the payor is essentially unchallenged; and/or where the lifestyle of the recipient will not be negatively impacted: Baker c. Strauss, [2018] O.J. No 431 (Ont. S.C.J.).
119. Interim, non-time limited spousal support orders can be varied before trial where the circumstances of the case justify such an order. Such circumstances may include, for example, where the record shows that the delay in having a determination lies at the feet of the recipient and there is still a significant amount of time before trial; new income information put forth by the payor is essentially unchallenged; and/or where the lifestyle of the recipient will not be negatively impacted: Baker c. Strauss, supra.
120. A motions judge will not usually have all of the evidence before him or her on a motion for interim support, and as a result, must fix such amount “as the Court thinks reasonable” having regard to the factors set out in s.15.2 of the Divorce Act. While the court is to consider the same criteria under s.15.2 when making both final and interim orders, the motion judge is not to make a final determination of the issue of support: Weber v. Weber, supra. The role of a judge on a temporary motion is not the same as that of a trial judge.

Amount of Spousal Support and Termination Date

121. The mother submits that, despite earning an income herself, she was still unable to financially meet the needs of herself and her children after the 2009 temporary order was made because the father never complied with the order in full or on time. As a result, she had to incur significant debt.
122. A temporary order is clearly intended to be just that – a temporary order. The mother asserts that she did not pursue disclosure from the father in the years following March 31, 2009 because FRO was enforcing the arrears. Further, she asserts on this hearing that there are credibility issues relating to the father’s income for support purposes. Yet, it appears that at no time after March 2009 did the mother take steps available to her under the Family Law Rules obtain disclosure of information from the father; question him under oath or move the case to a trial where the credibility issues would be canvassed. The mother’s concern appears to have been that the order be complied with, not the amount of support that the father should pay. I was neither asked to nor would have been able to determine whether the father’s income for support purposes should be imputed at a higher level than his Line 150 income on the evidentiary record before this Court. However, I do note that the father apparently paid for the additional expenses (such as private school and camp), without contribution from the mother, and did not seek to reduce the table amount of support he had been paying for the children (on the basis of an income of 175,000 a year, whether he had earned that amount if a particular year or not) on the basis that a child was residing away from home to attend university.
123. Similarly, although the father seeks a final order, which terminates his spousal support obligation to the mother, effective as of January 1, 2013, he also did little, if anything to advance that position over the 10 years following the date of the temporary order (March 31, 2009), other than bringing the 2013 motion, which was dismissed months later because he had still not served the appropriate material for the hearing of the motion. While he assets that his health issues and inability to work at times, either on a part-time or full-time basis, were responsible for his not seeking any further relief until November 18, 2019, he gave no explanation for his failure to at least provide a sworn financial statement and the financial information to which Paisley, J. referred, to the mother after June 2014. Yet, he had been capable of addressing other issues in his life. pursue his bankruptcy proposal. It is particularly noteworthy that, notwithstanding that he was involved in enforcement proceedings in the Ontario Court of Justice in 2016, he did not take steps in this case to change the order being enforced – that is, among other things, to obtain an order terminating his spousal support obligation, for another three years.
124. The manner in which each party proceeded (or, perhaps better put, did not proceed) over the last 12 years – that is, in terms of seeking disclosure for the purpose of resolving the case; returning to court to obtain a temporary order based on the disclosure he/she had obtained or even taking the step of arranging a case conference to obtain the assistance of the court, leads me to conclude that the parties were content with the support amounts on which they had agreed in March 2009 and that, prior to November 18, 2019, the father had been content to pay spousal support.
125. On the evidentiary record before this Court, I am not satisfied that spousal support should terminate, effective as of January 1, 2013. In addition to the findings I have just made above, I point out that the purposes of a spousal support order are to recognize the economic disadvantages to a spouse arising from the breakdown of the marriage; to apportion the financial consequences arising from childcare and to relieve the economic hardship experienced by a spouse arising from the breakdown of the marriage. Further, the father was continuously behind in his support payments. The mother deposes that she had tremendous difficulty relying on the temporary support payments and thus in promoting her own economic self-sufficiency within a reasonable time. The mother bore the responsibility of caring for the three children after the separation, to the point that each has become a young “adult”.
126. I am not persuaded that the father took any meaningful steps to obtain a termination of his spousal support obligation until November 18, 2019. The mother’s position is that the father’s obligation to pay spousal support should terminate as of September 24, 2010. However, she did not explain why she took the position that this would be the appropriate termination date. I appreciate that she relies on a September 24, 2020 accounting of arrears by FRO, but this is not relevant to the determination of the date on which spousal support is to terminate.
127. I note that the mother has alleged that, in paying monies to CRA, the father had chosen to pay off his own debt rather than keep up with his support obligations. Yet, I also that CRA garnished his OHIP payments on at least three occasions. There is no evidence before this court that the father authorized them to proceed in that manner. Further, there is evidence before the Court that some of the tax arrears that the husband owed to CRA arose in 2006, 2007 and 2008, years in which the parties still lived together for all of part of the year. The parties did not refer to the father’s CRA issues in any detail. On the record before me, I am not able to make a determination that conduct of the husband in relation to the acquisition or repaying of debts constitutes conduct (blameworthy or otherwise) that is relevant to any of the issues I have been asked to decide.
128. Having considered the factors and objectives that a Court must consider in determining the above issues of entitlement, quantum and duration of a spousal support order, having also considered that neither party referred to, let alone made full argument on, any SSAGS provisions that might assist the Court in determining the dispute over the duration of spousal support (as per Fisher v Fisher, 2008 ONCA 11); having considered the relatively limited evidence adduced by the parties in connection with the s.15.2 factors and objectives; the evidence before me regarding the father’s health and the changes in his Line 150 income; the lack of evidence explaining the reduction in the mother’s income in and after 2016; and the fact that the mother is sharing her housing expenses equally with her partner, this Court is satisfied that it would be reasonable that the father cease paying spousal support to the mother on November 18, 2019, as opposed to September 24, 2020 (the mother’s proposed termination date).

Conclusion and Order:

129. For the reasons given above and having considered the issue of the parties’ respective requests in paragraph 130 below, I have made the order set out in paragraph 141 below.
130. The father takes the position that, if successful on the issues raised on this hearing, he will have overpaid support to the mother. He expressly seeks an order that she repay him the amount of $91,664.00 on account of spousal support, based on his request that spousal support terminate as of January 1, 2013. By virtue of the termination of child support in relation to Charlotte as of April 30, 2019, I infer that he seeks relief for the overpayment of child support for the period after April 30, 2019, to the extent that he paid monthly child support after April 20, 2019 in an amount greater than the amount to which he is obliged to pay according to the final order of this Court. As for the monthly $1,053 obligation regarding s.7 expenses, the father seeks an order terminating that provision as of December 31, 2020. Thus, to the extent that he paid any amount on account of the $1,053 s.7-expense term on or after January 1, 2020, I infer that he is seeking a repayment by the mother for any overpayment by him under the 2009 temporary order. The mother claims that, as of September 18, 2020, the father was in arrears of child and spousal support to her under the terms of the 2009 temporary order, in the amount of $74,130.62. The mother’s position is that any “overpayment” of temporary support to her resulting from the determination of the support issues on a final basis should be set off against arrears of support owing to her as the date of the FRO accounting, which, she asserts, total $74,130.62.
131. The father informed this Court that the mother did not include the spousal support, which he paid to her under the 2009 temporary order, in her income for tax purposes and that, as a result, he was unable to deduct the amount. However, he made no attempt to tie this submission to his request for relief. As I referred to above in these Reasons, I do not accept the mother’s explanation for her failure to include spousal support she received in any year at all – that is, between 2009 and 2019, inclusive – in her income for tax purposes. Her explanation is that support paid was treated as child support first by FRO and in light of the father’s failure to pay support in the amounts ordered, she did not have to include any spousal support payments in her income for tax purposes.
132. The September 24, 2020, Statement of Arrears provided by FRO combines the monthly child support obligation regarding the table amount and the monthly spousal support obligation and records the monthly s.7-expense amount separately. I do not purport to know why that is. It is the father who raised the issue of the mother’s failure to include the spousal support he paid under the temporary order and the effect of that on his ability to deduct the payments. He did not take the position, in either his evidence or submissions (written or oral), that the amount of any spousal support arrears owing to the mother should be reduced because the mother had effectively received more support than the parties had anticipated she would net on an after-tax basis and/or that the cost to him of the spousal support payments was greater than they had anticipated it would be when they consented to the 2009 temporary support order. Neither party referred to the provisions of the Income Tax Act [ss. 56(1)(c.2), 60(b) and 60(c.2)], which are relevant to this issue.
133. Although the father did not apparently agree with the mother’s assertion that, as of September 18, 2020, child support under the 2009 temporary order was in arrears in the amount of $10,683 and spousal support was in arrears in the amount of $63,017.52. He took no position, then, as to the amount of spousal support arrears that existed as of September 18, 2020 against which the mother seeks a set-off of any overpayment of support that this Court orders her to pay to him.
134. In the absence of the assistance of the husband as to the relevance of his submission regarding the non-inclusion by the mother of temporary spousal support payments in her income for tax purposes and/or his inability to deduct the support payments to the wife, I am not prepared to speculate as to the impact of this issue on the arrears and overpayment issue.
135. I do point out, however, that I disagree with the mother’s position respecting the breakdown of the arrears. First, the total of the two amounts to which the mother refers as arrears of spousal support and arrears of child support as of September 18, 2020 exceeds the $74,130.62 arrears amount contained in the FRO Statement of Arrears, upon which the mother relies. Further, it is clear that the father made spousal support payments after March 31, 2009 in a total amount, which far exceeds the $10,683 amount the mother claims to be child support arrears. Certainly, for income tax purposes, the arrears of child support as of September 18, 2020 would be treated as $0 and the spousal support arrears would be treated as $74,130.62, if the FRO Statement of Arrears is accurate as of that date. Given that the father will not have to include the receipt of any repayment of spousal support in his taxable income and the mother will not be able to deduct any repayment for tax purposes, given the fact that the support payments that were made were not included by the wife in her taxable income or deducted by the husband in the calculation of his, it is not necessary to worry about the tax impact of any repayment of spousal support under the terms of this order.
136. As I have already stated already in these Reasons but to ensure clarity, I note that the mother served a Financial Statement, sworn by her on November 2, 2020. The father did not file an updated financial statement. I have not drawn an adverse inference against him for not having done so, given that the order of Nakonechny, J. provided that he serve one within 7 days of the settlement conference. The settlement conference judge set specific terms regarding the evidence that the parties were to serve and file for this hearing, Further, because the “motion”/hearing was to take place in writing, a return date did not exist before which a party could calculated a timeline by which he/she had to comply under Family Law Rule 13(12). If the father’s gross income and/or expenses changed materially in 2020, then he had an obligation to address such a circumstance in his evidence on the motion. He did not. Thus, the mother and the Court are entitled to infer that Line 150 income did not change materially in 2020.
137. In her evidence, filed for the “motion”/hearing, the mother deposes that, “[h]ad Sylvain provided [her] with the receipts requested on September 2, 2020, [she] would have been able to do a proper calculation in accordance with the mid-range of the SSAGs to determine [her] spousal support obligation.” (at para. 58 of her Affidavit, sworn November 2, 2020). Yet, in paragraph 62 of that affidavit, she deposes that, “given his lack of willingness to provide the disclosure as requested, [she is] asking that a negative inference be made and his income grossed up, in order to determine his spousal support obligation”. Surely, if the mother is not able to take a position respecting the income with which the father should be imputed for spousal support purposes, she does not expect that this Court would be able to do so.
138. The mother asks that, if she is required to repay money to the father under the terms of the order made in this judgment, she be entitled to set the amount off against any arrears of support payable to her under the terms of the 2009 temporary order. This request is a sensible one.
139. It should be noted that, in referring to amounts payable by the mother to the father on account of overpayments of support and payable by the father on account of s.7 expenses for a particular period, those amounts are to be set off and adjusted for in relation to support that exist as of the date of these Reasons. The $74,130.62 arrears amount referred to by the mother reflects arrears owing under the 2009 temporary order as of September 18, 2020. Prior to the release of these Reasons, further arrears will have accrued under the 2009 temporary order. To the extent that the father may have paid amounts on account of the temporary order after September 18, 2020, which exceed his obligations to the mother under the terms of the order I make below or which are less than the terms that he is obliged to pay according to the order below, then the arrears amount may be higher or lower than $74,130.62.
140. For clarity, as of September 18, 2020, arrears of support payable to the mother, pursuant to the 2009 temporary support order totalled $74,130.62. As a result of the Orders I have made in paragraph 141 below, the arrears of support under the 2009 order, which totalled $74,130.62 on September 18, 2020, shall be adjusted as follows:

Support Arrears as of September 18, 2020: $74,130.62
˗ Less $ 7,780, on account of the overpayment of spousal support for the period November 19, 2019 to September 18, 2020, inclusive. [If spousal support payments were made to the mother after September 18, 2020, then they shall also be set off against the arrears of support.]
˗ Less $15,317, on account of the overpayment of the table amount of child support to the mother for Charlotte in the sum of $901 a month for the period May 1, 2019 to September 18, 2020 ($901 X 17 months), inclusive. [If monthly table amounts of child support were paid to the mother after December 31, 2020, then to the extent that they exceed $1,465, the difference between $1,465 and the amount paid shall also be set off against the arrears of support.]
˗ Less $9,477 on account of the overpayment of the monthly $1,053 amount on account of the s.7 expenses for the period January 1, 2020 to September 18, 2020 ($1,053 X 9 months), inclusive. [If monthly payments were made on account of the s.7 expenses provision contained in the 2009 temporary support order after September 18, 2020, then they shall also be set off against arrears of support.] Far clarity, the section 7 expenses to which the father ought to have contributed for the period following January 1, 2020 are dealt with separately in these Reasons, given that they will not be paid monthly after January 1, 2020.

As of September 18, 2020, the arrears of support owing by the father to the mother totalled $41,530, based on overpayments of support effectively made as of that date.

Order:

141. On a final basis, pursuant to ss.15.1 and 15.2 of the Divorce Act, this Court orders and adjudges as follows:

(1) Effective as of April 30, 2019, the respondent shall pay no child support to the applicant for Charlotte Rene, born January 23, 1997. For clarity, the respondent’s obligation to pay the monthly amount of $2,953 a month to the applicant for the support of the parties’ three children, pursuant to paragraph 7 of the temporary, “without prejudice” order of McWatt, J. (as she then was), dated March 31, 2009, shall terminate, effective as of April 30, 2019.
(2) Commencing May 1, 2019, and on the 1st day of each subsequent month until April 30, 2021, the respondent shall pay to the applicant the table amount of support for two children, namely, Stephanie Rene (born August 14, 1998) and Philippe Rene (born June 1, 2004), in the amount of $1,456.00 a month, based on the respondent’s 2019 Line 150 income of $98,752, pursuant to the *Federal Child Support Guidelines* (“Guidelines”).
(3)
(a) Subject only to paragraph (b) below, the respondent’s obligation to pay child support to the applicant for Stephanie Rene shall terminate, effective as of April 30, 2021.
(b) The order in paragraph (a) above is made, “without prejudice” to either parent’s position respecting the applicant’s right to seek an order for child support, should Stephanie Rene pursue a second diploma or degree in the future and the mother seek an order for child support for Stephanie.
(4) Commencing May 1, 2021, and on the first day of each subsequent month, the respondent shall pay to the applicant the Guidelines table amount of support for one child, namely, Philippe Rene (born June 1, 2004), in the amount of $901 a month, based on the father’s 2019 Line 150 income of $98,752.
(5) Annually, commencing in June 2021, each party shall, on or before June 1st, provide to the other party the necessary income information required by s.21 of the *Federal Child Support Guidelines*. The applicant shall produce her 2020 income tax return, with the. Given that the respondent operates his medical practice as a sole proprietor, he shall produce a copy of his 2020 income tax return, with the Schedules, slips, invoices, receipts and any other attachments provided to CRA attached to it, and his notice of assessment and notice of assessment. He shall also produce the financial statement of his professional practice and a statement showing a breakdown of all salaries, wages, management fees or other benefits paid to, or on behalf of, persons or corporations with whom the respondent does not deal at arm’s length; and proof of any income the respondent receives from employment insurance, social assistance, a pension, worker’s compensation, disability payments or any other source.
(6) Once the new income information is disclosed under paragraph (5) above, the parties shall set the quantum of child support the father is to pay to the mother for Philippe’s child support for the current year, based on the prior year’s income information, retroactive to January 1st. For example, for the 2021 year, the respondent’s child support obligation shall be based on his 2020 income information, retroactive to January 1, 2021. If the respondent has overpaid child support for the months of January to July 1, 2021, inclusive, then he shall reduce his ongoing child support payments by 1/6 of the amount of the overpayment each month over the next six months (July -December). If the respondent has underpaid child support for the months of January to July 1, 2021, inclusive, then he shall increase his ongoing child support payments within the next six months (July to December), paying no less than 1/6 of the additional amount in any month.
(7) The parties shall follow the above-described income disclosure terms and make the adjustment to the child support payable for Philippe annually, from 2021 until 2026.
(8)
(a) Subject only to paragraph (b) below, the respondent’s obligation to pay child support for Philippe Rene shall terminate on the earlier of the completion of Philippe’s first (“undergraduate”) degree and April 30, 2026. (the date by which Philippe ought to have completed his first degree).
(b) The order in paragraph (a) above is made, “without prejudice” to either parent’s position respecting the applicant’s right to seek an order for child support, should Philippe Rene decide to pursue a second diploma or degree in the future and the applicant decide to seek an order for child support for Philippe.
(9) The respondent’s obligation to pay the monthly amount of $1,053.00/month to the applicant, pursuant to the temporary order of McWatt, J., dated March 31, 2009, shall terminate, effective as of January 1, 2020.
(10)
(a) On or before July 1, 2021, the respondent shall pay to the applicant the sum of $9,743 on account of his 2/3 share of the s.7 expenses incurred and to be incurred by the mother for Stephanie Rene and Philippe Rene between January 1, 2020 and April 30, 2021, inclusive. (The father’s 2/3 share of Stephanie’s and Philippe’s s.7 expenses incurred and anticipated to be incurred for the period January 1, 2020 to April 30, 2021, inclusive, being comprised of $692.80, the father’s 2/3 share of the monthly tutoring expense for Philippe for the period January 1, 2021 to April 30, 2021, based on a $30 hourly rate plus HST, twice weekly; $3,905.33, being his 2/3 share of the 2020 expenses relating to Stephanie, referred to in the mother’s Excel spreadsheet of children’s expenses ($1,858) and 2/3 of the cost of Stephanie’s dental surgery ($4,000); and $5,144.84 (being his 2/3 share of the 2020 expenses ($7,717.26) relating to Philippe, referred to in the mother’s Excel spreadsheet, other than for the amounts of $32.74 and $40.00, which would fall into the table amount of support For clarity Philippe’s orthodontic treatment appears to have been dealt with by the mother in her Excel spreadsheet in a lump sum amount.) This amount is subject to adjustment, should either party or both parties seek an adjustment, pursuant to paragraphs (b) and (c) below.
(b)
(i) If, after the disclosure referred to in paragraph (c) below has been provided, the respondent determines that an expense(s) in respect of which the after-tax cost to the applicant was or will be less than the amount referred to in paragraph (a) above; the child was covered or she and/or the child was/were reimbursed for the expense in full or in part by an extended health plan or university health coverage available to the child; and/or an expense referred to in paragraph (a) above was not incurred by the applicant at all or to the extent referred to in paragraph (a), then the respondent may seek an adjustment to the amount he is obliged to pay to the mother under paragraph (a); and
(ii) The mother’s evidence regarding the s.7 expenses she had incurred for the children was last provided by her in her November 2, 2020 affidavit. If she seeks a contribution by the father to s.7 expenses incurred by her after November 2, 2020 and on or before April 30, 2021, then on or before April 30, 2021 she shall provide details of such expense(s) to the father in writing.
(c) On or before April 30, 2020, (a) the applicant shall provide the following information to the respondent: proof of the expenses referred to in paragraph (a) above; proof of payment by her of those expenses and any expense(s) referred to in (b(ii)), which was/were incurred after November 2, 2020 and before April 30, 2020; a copy of any extended health plan or university coverage under which the applicant, her partner and/or or the child was, could have been or is entitled to coverage or reimbursement of all or part of the expense; proof of any claims made for coverage or reimbursement of all or part of the expense and proof of the responses received and amounts covered or reimbursed to the applicant, her partner and/or the child; and a copy of the applicant’s 2020 income tax return, with supporting Schedules, slips, invoices and receipts, for the purpose of determining whether the after-tax cost of the expense to the applicant was less than the amount of the expense referred to in paragraph (a) or (b)(ii). On or before April 30, 2021, the respondent shall provide proof of any extended health coverage he has, under which the child’s expense could have been or can be covered or reimbursed in whole or in part.
(d) If a party seeks an adjustment to the amount payable by the respondent to the applicant under paragraph (a) above, then he/she shall advise the other party in writing of this fact on or before May 15, 2021, including advising the other party of the adjustment he/she is seeking and the basis for his/her request. The parties shall make good faith attempts to resolve the issue before seeking the assistance of the Court. Absent agreement, they shall contact the Family Co-ordinators for the purpose of obtaining a date before me when this issue can be determined. At least 5 days before the appearance before me, each party shall serve and file written submissions of no more than 5 pages, and shall attach any documents supporting his/her position, to his/her submissions.
(11)
(a) Subject only to paragraph 8(b) above, starting on May 1, 2021 and ending on the earlier of the completion of Philippe’s first (“undergraduate”) degree and April 30, 2026, the parties shall share Philippe’s s.7 expenses in proportion to their respective incomes.
(b) If the applicant seeks a contribution by the respondent to a s.7 expense referred to in paragraph (a) above, then for the purposes of the parties calculating the net expense and the respondent’s proportionate contribution to same, the applicant shall provide the respondent with (i) proof of the expense; (ii) proof of payment by her of the expense, where the expense has been incurred in whole or in part; (iii) if the expense is one that is or may, reasonably, be covered by an extended health plan or university coverage under which the applicant, her partner and/or Philippe was, could have been or is entitled to coverage or reimbursement of all or part of the expense, then a copy of the plan(s); proof of any claims made for coverage or reimbursement of all or part of the expense and all responses to the claims; and proof of any amount(s) covered or reimbursed to the applicant, her partner and/or the child in relation to the expense; and (iv) if the expense is relates to Philippe’s attendance at an educational institution, then proof of any financial awards, scholarships, bursaries and/or loans, which Philippe has received or for which he has applied, and proof of Philippe’s income. The parties shall each provide any proof he/she has respecting any RESPs that are available to assist with Philippe’s education.
(12) The respondent’s obligation to pay spousal support to the applicant shall terminate, effective as of November 18, 2019. For clarity, the respondent’s obligation to pay temporary spousal to the applicant, pursuant to paragraph 9 of the Order of McWatt, J. shall terminate, effective as of November 18, 2019.
(13) As of September 18, 2020, the respondent owed arrears of $41,530 to the applicant, after deducting any overpayment to the applicant of support up to that date. If the respondent overpaid support to the applicant after September 18, 2020, the amounts of any such overpayments shall be set off against any outstanding arrears of support.
(14) If a party seeks costs of the “motion”/hearing, then he/she shall file written costs submissions of no more than 3 written pages, not including any Bill of Costs and Offers to Settle, by March 30, 2021.

M. Kraft, J.

Date Released: March 15, 2021

[1] This is the father’s position as set out in paragraph 32 of his Factum, dated November 20, 2020. [2] Set out in the mother’s Factum, at paragraph 25. She does not breakdown how she arrived at these calculations.