Court File and Parties
COURT FILE NO.: FC-2011-259-0002 DATE: 2021-08-31 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Can Oner, Applicant AND Frances Mary McCormick, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Judith Wilcox, Counsel for the Applicant Mimi Marello, Counsel for the Respondent
HEARD: July 30, 2021 by telephone conferencing
REASONS FOR DECISION
M. Smith J
[1] Can Oner ("Father") and Frances Mary McCormick ("Mother") married on January 27, 1996. They have two children: Ozan William Oner, born on March 14, 1999 and Sezen Mary Oner, born on October 9, 2002.
[2] The parties separated on or about October 26, 2004. A comprehensive separation agreement was finalized on September 16, 2008 (the "Separation Agreement"). They were divorced on July 7, 2011.
[3] The parties agreed that the children primarily reside with the Mother. The Father paid child support, based upon his previous year's income and in accordance with the Federal Child Support Guidelines (the "Guidelines"). The Father was required to provide the Mother with a copy of his annual income tax return by April 30 of each year along with the Notice of Assessment. Regarding the special and extraordinary expenses ("section 7 expenses"), the parties agreed that it would be shared equally.
[4] In or around March 2018, the Mother retained the services of counsel given that the Father unilaterally reduced his child support payments and refused to contribute towards the section 7 expenses.
[5] The Mother commenced a Motion to Change on January 27, 2020.
[6] The Father and the children do not have a relationship.
[7] The Mother is seeking retroactive and ongoing child support and section 7 expenses.
[8] The issues to be determined are:
a. Is the Mother entitled to retroactive and ongoing child support? If yes, what is quantum?
b. Is the Mother entitled to retroactive and ongoing section 7 expenses? If yes, what is the quantum?
c. What is the impact on financial support having regard to the relationship between the Father and the children?
[9] For reasons that follow, the Mother's Motion is granted.
ANALYSIS
Issue one: Is the Mother entitled to retroactive and ongoing child support? If yes, what is the quantum?
[10] I am satisfied that an award for retroactive child support is appropriate. Regarding the Father's ongoing obligations, the Father is obligated to continue paying child support for Sezen.
The Law
[11] The leading case in determining the appropriateness of a retroactive child support order is D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. There are four factors to consider: (a) has there been a delay in seeking the support order; (b) has the payor parent engaged in any blameworthy conduct; (c) have the children suffered hardship as a result of the nonpayment of support; (d) would a retroactive award be a hardship on the payor parent.
[12] The Supreme Court of Canada has endorsed the following important principles governing orders for ongoing and retroactive child support: (a) child support is the right of the child; (b) child support should, as much as possible, provide children with the same standards of living they enjoyed when their parents were together; (c) the child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the "necessities of life"; (d) retroactive awards are not truly "retroactive", since they merely hold payors to the legal obligation they always had to pay support commensurate with their income; (e) retroactive awards are not confined to "exceptional circumstances" or "rare cases": Michel v. Graydon, 2020 SCC 24, at para. 10.
Retroactive child support
[13] The Father claims that in March 2017, the parties verbally agreed that child support be reduced to $1,000.00 per month ($800.00 for child support and $200.00 towards Sezen's equestrian training).
[14] The Mother says that the Father made this request because his income was lower than expected and he could no longer afford to pay child support in accordance with the Guidelines. She later found out that he had lied to her as he was earning a six-figure income at that time.
[15] Regardless of the reasons given for the Father's request to reduce child support, I believe that it was unreasonable and contrary to the best interest of the children. Further, in accordance with section 33 of the Separation Agreement, any amendments must be made in writing and signed by all parties. I find the verbal agreement to be invalid and unenforceable.
[16] In weighing the factors and important principles set out in D.B.S., I find that a retroactive child support Order should be made:
a. The parties agreed that every year, the child support payments would be adjusted in accordance with the Guidelines and the Father's income: para. 9(b) of the Separation Agreement.
b. The Father has not paid child support in accordance with his income and the Guidelines:
i. In 2017, based on the Father's 2016 income of $145,322.00, child support payment for the children was $2,009.00 per month. He paid between $800.00 to $1,600.00 per month, resulting in arrears of $10,612.00.
ii. In 2018, based on the Father's 2017 income of $169,050.00, child support payment for the children was $2,292.00 per month. He paid the total sum of $14,165.00, while the payments should have been $22,052.00, resulting in arrears of $7,887.00.
iii. In 2019, based on the Father's 2018 income of $143,300.00, child support payment for one child was $1,241.00 per month. He paid the total sum of $11,215.00, resulting in arrears of $4,425.00.
iv. In 2020, based on the Father's 2019 income of $154,809.00, child support payment for one child was $1,325.00 per month. He paid the total sum of $11,253.00, resulting in arrears of $4,311.00.
v. For the period of January to July 2021, based on the Father's 2020 income of $130,659.00, child support payment for one child was $1,142.00. The arrears owed for this period are $5,399.00.
c. The Mother's delay in making the request for retroactive payment is explained and reasonable. On March 15, 2018, the Father received notice from the Mother's counsel that she was seeking retroactive child support as well as financial disclosure. The Mother was under the mistaken belief that the Father was earning less income. It is only after the Father's refusal to contribute towards post-secondary education costs that the Mother sought financial disclosure from the Father and discovered the income earned by the Father.
d. The Father's conduct is blameworthy. He acknowledges that he inappropriately asked for the reduction of child support payment because he was of the view that the Mother's earnings were greater than his. The Father mistakenly believed that he was able to reduce the child support because the eldest child turned 18 years old and started university. The Father failed to provide financial disclosure as required in the Separation Agreement.
e. The children's needs and expenses have been covered by the Mother. It is undisputed that the Mother has incurred expenses and the Father has not paid his fair share.
f. The Father has not offered any evidence of undue hardship. The Father has a steady income and significant savings. Based on the Father's financial circumstances, I find that he has an ability to pay a retroactive award.
[17] Given the above, I find that it is appropriate to order retroactive child support, effective January 1, 2017. I accept the Mother's calculation and conclude that the amount due and owing for retroactive child support, up to July 31, 2021, is $32,634.00.
Ongoing child support
[18] Ozan is 22 years old and he has completed his fourth year of a five-year Bachelor of Electrical Engineering and a Bachelor of Physics at the University of Ottawa. Ozan no longer resides with the Mother.
[19] Sezen is 18 years old and has just completed her first year of a two-year Business Marketing Program at Algonquin College. She has recently changed programs and has been accepted at St. Lawrence College for welding.
[20] Sezen continues to reside with the Mother. She is entitled to child support in accordance with the Guidelines.
[21] In 2020, the Father earned $130,659.00. The Father suggests that the monthly child support payment should be $1,139.00, while the Mother says that it is $1,142.00. The $3.00 difference in calculation pertains to a deduction for union dues. I agree with the Mother's position. Effective August 1, 2021, the Father shall pay ongoing child support for Sezen, on the first day of the month, in the amount of $1,142.00.
Issue two: Is the Mother entitled to retroactive and ongoing section 7 expenses? If yes, what is the quantum?
[22] I believe that the Mother is entitled to receive a retroactive award for section 7 expenses. The parties agreed to share the section 7 expenses and that consent should not be unreasonably withheld by the parties: paras. 10(a) and 10(b) of the Separation Agreement.
Retroactive section 7 expenses
[23] The Father is prepared to pay retroactive section 7 expenses for Ozan (rent and tuition) in the amount of $17,404.00, covering the period of 2018/2019 to June 30, 2021. For Sezen, the Father is prepared to pay the sum of $2,228.25 for her educational expenses, up to June 30, 2021. The Father's consent to pay these amounts is "subject to communication with the children about their studies and in the case of Sezen, her equestrian activities". He wants to speak to his children regarding their studies, expenses and future plans.
[24] The Father wishes that his children succeed in life and their educational pursuits. Although the Father is prepared to pay for retroactive section 7 expenses, subject to certain conditions, he advances the position that the Mother failed to obtain his consent before incurring the expenses. The Father refers me to section 10(b) of the Separation Agreement, which reads, in part, that: "If a party does not obtain the consent of the other party, he or she shall be solely responsible for the special expense".
[25] The Father relies upon several decisions that stand for the proposition that if a Court Order states that prior written consent is required and that no consent was sought, then the paying party loses their right to seek reimbursement. More specifically, in the decision of O. v. M., 2021 ONSC 787, the Court held that if a previous Court Order (or arguably, a separation agreement) required consultation before incurring the expense, judicial discretion narrows considerably.
[26] The Mother claims that the Father has not been involved in the children's lives due to his lack of interest. He has failed to make any meaningful contributions to any of the children's section 7 expenses. The Mother says that he only contributed $400.00 towards a used computer for Ozan in September 2017.
[27] The Mother states that on December 27, 2017, she requested that the Father contribute towards Ozan's tuition fees. His first response was: "What happened RESP you are putting away from child support payment". When the Mother rightfully pointed out to the Father that he reduced the child support, his further response was: "One or two are welcome to stay at my place". The Father knew or should have known that this was not a viable option, given the strained relationship that existed with his children. Given this refusal, the Mother argues that his consent would never have been provided even if his permission was obtained in advance.
[28] The Mother seeks proportionate contribution from the Father for tuition fees, rent for Ozan and equestrian training for Sezen. The Mother argues that the Father has been aware of the section 7 expenses. He attended Ozan's high school graduation, he contributed towards a laptop for Ozan's post-secondary studies and he attended one of Sezen's equestrian events.
[29] The Father does not raise any concerns with respect to the reasonableness or necessity of these section 7 expenses.
[30] The Father does not dispute that his children are pursuing post-secondary studies.
[31] The Father does not dispute that Ozan is paying rent, but he only wishes to contribute 25%.
[32] The Father has been aware of Sezen's equestrian expense for several years. When he asked to reduce the child support payments to $1,000.00 in March 2017, the Father paid $800.00 towards child support and $200.00 towards Sezen's equestrian training. He acknowledges that the Mother's request to only contribute $200.00 per month towards a $27,000.00 annual expense, is not excessive.
[33] The Father is correct to indicate that the parties are bound by the provisions of the Separation Agreement. Consent needed to be obtained before incurring the section 7 expenses and such consent was not be unreasonably withheld.
[34] The parties did not adhere to the strict terms of the Separation Agreement. The Father failed to pay the appropriate amount of child support and he failed to provide annual financial disclosure. The Mother failed to request consent for each of the expenses incurred.
[35] The Mother's failure to consult the Father before incurring each and every section 7 expense is only one factor for the Court to consider in exercising its discretion: O. v. M., at para. 30.
[36] The Father knew that the Mother was incurring section 7 expenses. He has not presented any evidence that he made any attempts to contribute towards these expenses. Rather, the evidence that is before the Court is the Father's refusal to contribute to Ozan's tuition fees in December 2017. His response demonstrates a lack of cooperation and confirmation that any future advance consultation would be meaningless.
[37] I find that given the Father's conduct, it would be unfair and inappropriate to deny the Mother's request to be reimbursed for the sections 7 expenses. In the children's best interest, these expenses have been reasonably incurred by the Mother.
[38] The Mother sets out in her affidavit (paras. 49-94) the section 7 expenses that she incurred as well as the financial contribution made by Ozan. I am satisfied that the Mother incurred these expenses and that she should be reimbursed by the Father as follows:
a. $8,554.77 for Ozan's tuition fees;
b. $8,849.50 for Ozan's rental costs;
c. $2,228.25 for Sezen's tuition fees; and
d. $10,600.00 for Sezen's equestrian training.
[39] The total amount owed by the Father to the Mother for the retroactive section 7 expenses is $30,232.52.
Ongoing section 7 expenses
[40] The Mother seeks an Order that, on an ongoing basis, the Father contribute 25% of Ozan's rental costs and $200.00 per month for Sezen's equestrian training.
[41] The Father agrees to pay $230.00 per month commencing July 1, 2021 until April 2022. The Father says that this amount represents 25% of Ozan's rental costs.
[42] I am not prepared to fix the amount, as suggested by the Father, because rental costs may increase during the next year. The Father shall pay 25% of Ozan's rental costs.
[43] Regarding the equestrian training, the Father acknowledges that the Mother's request that he contribute $200.00 per month is not excessive considering the total amounts paid by the Mother.
[44] Sezen started riding in 2011 and she is very passionate about equestrian training. She is a very accomplished rider and it is the only extra-curricular activity that she takes part in. The Father does not dispute these facts.
[45] In Sezen's best interest, she should continue riding. The Father does not disagree or state that it is an unreasonable expense. He objects that he was not consulted, but as noted, Sezen has been riding for 10 years. The Mother's request is very reasonable. The Father shall contribute $200.00 per month towards this activity.
Issue three: What is the impact on financial support having regard to the relationship between the Father and the children?
[46] In determining the quantum of support, the Father asks me to consider the fact that both Ozan and Sezen refuse to have contact with him. The evidence is incomplete and conflictual. I am not prepared to find that financial support should be impacted because of the children's lack of relationship with their Father.
The Law
[47] Section 31(2) of the Family Law Act, R.S.O. 1990, c. F.3, ("FLA") states that a parent's obligation to provide support does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
[48] The Father refers me to several decisions regarding the factors that I should consider in deciding if termination of support is justified. One of those decisions is Johnson v. Johnson, 2004 CarswellOnt 3512, where the Court enumerated eight factors (as outlined in Farden v. Farden, 1993 CanLII 2570 (BC SC), [1993] B.C.J. No. 1315). The relevant factor to our proceedings is whether the child unilaterally terminating the relationship with the parent. In making this determination, the Court must make a finding that there has been a complete rejection of a support paying parent by an adult child without any justification.
Have the children unilaterally terminated the relationship?
[49] The Mother has provided some reasons for the children not wishing to maintain a relationship the Father. They include the Father's refusal to assist his son when he was injured, insulting his daughter, and a general lack of interest and involvement in the children's lives.
[50] The Father says that the Mother's portrayal of what transpired in the past is incomplete, untrue, exaggerated and not balanced.
[51] The Father offers his own version of what happened during two incidents raised by the Mother. Even if I accepted the Father's version of events, it is clearly insufficient evidence for me to decide if the children voluntarily rejected their Father.
[52] When the parents separated, Ozan was 5 years old and Sezen had just turned 2 years old. Seventeen years have passed since the separation. I have only been made privy to a few incidents that may have impacted the relationship. In the absence of a complete record regarding the Father's relationship with his children and how it evolved during the last seventeen years, I am not able to conclude if the breakdown of the relationship is due to the Father's actions, the Mother's influence or the children's sole and unjustified rejection.
[53] I am therefore not prepared to apply section 31(2) of the FLA in the determination of the quantum of support that must be paid by the Father.
CONCLUSION
[54] I make the following Orders:
a. The Father shall pay the Mother the sum of $32,634.00 for retroactive child support, up to July 31, 2021.
b. Effective August 1, 2021, the Father shall pay ongoing child support for Sezen, on the first day of the month, in the amount of $1,142.00.
c. The Father shall pay the Mother the sum of $30,232.52 for retroactive section 7 expenses, up to July 31, 2021.
d. Effective August 1, 2021, the Father shall pay 25% of Ozan's rental costs and $200.00 per month for Sezen's equestrian training.
[55] All other terms and conditions of the Separation Agreement remain in full force and effect.
COSTS
[56] If the parties cannot agree on costs, the Mother shall, within thirty (30) days of this decision, serve and file written submissions (no more than 3 pages, excluding the Bill of Costs and/or Offers to Settle). The Father shall, within thirty (30) days of the receipt of the Mother's materials, serve and file written submissions (no more than 3 pages, excluding the Bill of Costs and/or Offers to Settle). The Mother shall serve a reply (no more than 1 page), if required, by no later than five (5) days of the receipt of the Father's submissions.
M. Smith J
Released: August 31, 2021
COURT FILE NO.: FC-2011-259-0002 DATE: 2021-08-31
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Can Oner, Applicant AND Frances Mary McCormick, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Judith Wilcox, Counsel for the Applicant Mimi Marello, Counsel for the Respondent
REASONS FOR ENDORSEMENT
Justice Marc Smith
Released: August 31, 2021

