COURT FILE NO.: FS-20-18104
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES DAVID HOSKINS
Applicant
– and –
MARGARET ANNE MAGEE
Respondent
Jonah Paritzky, for the Applicant
Margaret Anne Magee, on her own behalf
HEARD: September 16, 2021
ENDORSEMENT
P.J. Monahan J.
[1] The Applicant, James Hoskins, seeks a declaration that the parties’ three children are no longer “children of the marriage” as defined in s. 2 (1) of the Divorce Act,[^1] and that he has no ongoing child support obligation. He also seeks a declaration that the arrears that have accumulated in respect of child support should be reduced to zero.
[2] The Respondent, Margaret Magee, does not seek ongoing child support. However, she seeks payments of the arrears of child support that have accumulated since November 2018, as well as an order for child support for the 2009-2011 period. She also seeks relief in relation to information she contends was obtained by the Applicant from a computer hard drive in August 2009.
Background
[3] The parties were married on December 15, 1992, separated in August 2009, and were divorced in August 2019. Over the course of their marriage, the parties had three children together, namely, JAH (born November 16, 1993), PJH (born June 15, 1999) and CBH (born July 27, 2002) (collectively, the “Children”).
[4] In April 2011, the parties reached a comprehensive final settlement of all issues arising from the breakdown of the marriage (the “Minutes of Settlement”). The Minutes of Settlement provided, inter alia, that commencing May 1, 2011, the Applicant would pay $3500 per month to the Respondent for support of the Children. This quantum of child support would be fixed and non-variable for an initial two years, and then be adjusted annually commencing in May 2013 in accordance with updated financial information to be provided in accordance with s. 21 of the Child Support Guidelines (the “CSG”). The Applicant also agreed to pay 75% of the Children’s reasonable post-secondary expenses, including tuition, residence, and school fees.
[5] At the time of the Minutes of Settlement, the Applicant owned and operated a profitable Apple Products dealership in Toronto. However, over the years his business encountered significant difficulties and, in November 2018, he was forced to close the business and sign a consumer proposal with his creditors. The consumer proposal disclosed that the Applicant had assets of $10,963, liabilities of $139,777, and that his creditors could expect to receive $0.13 cents on the dollar.
[6] Since December 2018, the Applicant has been employed by a variety of technology companies. He also received the Canada Emergency Response Benefit (CERB) for a period of time when he was laid off in 2020 due to COVID-19-related cutbacks, and he now receives CPP and OAS income. He states that his 2019 income was $64,000, his 2020 income was $53,899, and that he expects his 2021 income to be approximately $89,000.
[7] From May 2011 until November 2018, the Applicant made the monthly child support payments of $3500 as required under the Minutes of Settlement. However, with the closure of his business in November 2018, he reduced his monthly support payments to approximately $500. In August 2020, he issued a Motion to Change, seeking to terminate his child support obligations for JAH and PJH effective November 2018, and reducing the arrears of child support that had been accumulating since November 2018 to zero.
Positions of the Parties
a. The Applicant
[8] The Applicant argues that since the Children are now all over the age of majority[^2] and are independent of the parties, they should no longer be considered “children of the marriage” for purposes of the Divorce Act. As such he maintains that he has no ongoing obligation to provide child support for any of them.
[9] The Applicant points out that JAH graduated from University in 2015 and was employed full-time for a number of years. He is now 27 years old and is entering his third year of law school at the University of Calgary. According to the Applicant, JAH is funding his own education through a combination of student loans and savings he accumulated through his years of employment.
[10] The Applicant states that PJH, who is now 22 years old, withdrew from high school in or about June 2017 without obtaining his diploma. Since that time, PJH has been employed in a number of different jobs and has lived much of the time in Vancouver. PJH wishes to pursue a career in acting and plans to attend a Theatre school in France starting October 2021.
[11] CBH, who is now 19 years old, completed her first year of undergraduate studies at the University of Victoria in May 2021. She is not attending school in the 2021 – 2022 academic year and it is unclear whether or when she will return to full-time education.
[12] With respect to the arrears of child support that have accumulated since November 2018, which currently amount to $102,431.91, the Applicant argues that as of November 2018 both JAH and PJH were independent adults. He seeks a declaration that his obligation to provide child support for JAH and PJH ceased as of November 2018, and any arrears that have accumulated in respect of them should be rescinded.
[13] The Applicant acknowledges that he has had a continuing obligation to provide support for CBH up until August of 2021. However, he maintains that the quantum of support for CBH should be retroactively adjusted to take account of his actual income following the closure of his business. He argues that the amount he has actually paid since November 2018 (namely, $19,329) is equivalent to what he ought to have paid for CBH and that, therefore, the arrears of support should be reduced to zero.
b. The Respondent
[14] The Respondent does not seek ongoing child support for the Children. However, she maintains that she is entitled to the monthly child support payment of $3500 required under the Minutes of Settlement up to and including August 2021, and that she should be paid the full amount of the arrears owing.
[15] The Respondent points out that although JAH completed university in 2015, he lived with her full-time from May 2016 through to September 2019 at her then-residence on Salt Spring Island,[^3] at which time he began law school in Calgary. With the onset of Covid 19 in March 2020, JAH’s classes went online and he resumed living with the Respondent. Although he returned to Calgary for the 2020 – 2021 academic year, JAH lived with the Respondent from May 2021 to September 2021 in Victoria.
[16] With respect to PJH, the Respondent notes that after PJH left high school in 2017 he continued living with her until September 2019 when he moved to Vancouver, where he worked and supported himself. However, with the onset of the COVID 19 pandemic in early 2020, PJH returned to live with the Respondent. PJH moved back to Vancouver from September 2020 to September 2021, at which point PJH resumed living with the Respondent in Victoria. As noted above, PJH plans to attend a Theatre school in France starting next month.
[17] CBH completed high school in 2020 and attended the University of Victoria in the 2020 – 2021 academic year. She lived in residence in the fall of 2020, but then moved back to live with the Respondent in November 2020. Since April 2021, she has been living with friends in Victoria and has not resumed her university studies.
[18] In addition to claiming the arrears owing, the Respondent is also seeking an order that the Applicant pay $3500 per month in child support for the period August 2009 to April 2011. She argues that the Applicant did not pay any support for this period, and child support should be paid in light of his income and assets.
[19] The Respondent also alleges that in August 2009, the Applicant improperly and in breach of her privacy accessed and downloaded private documents and emails from her computer. The Respondent seeks a return of the hard drive used to download these materials; a return of any documents printed out from the hard drive; an order that he destroy all digital copies of the materials; and an order that the Applicant not discuss or disclose the contents of this material with the Children.
Issues
[20] The following issues arise in this proceeding:
a. Has the Applicant shown that there been a material change in circumstances since May 2011, the effective date of the Minutes of Settlement?
b. If the Applicant has established that there has been a material change in circumstances;
i. does the Applicant have an ongoing obligation to provide child support for the Children?
ii. Should there be any retroactive variation in the Applicant’s child support obligation, with a corresponding adjustment in the amount of child support arrears?
c. Is the Respondent entitled to child support for the period from August 2009 to April 2011?
d. Is the Respondent entitled to relief in respect of data that she alleges was improperly taken from her computer by the Applicant in 2009?
Relevant Legal Principles
[21] While these motions require consideration of a variety of legal principles, there are two categories of principles that are of particular relevance. The first such category relates to the factors and considerations that apply in determining whether a child who is over the age of majority remains a “child of the marriage” for purposes of the Divorce Act. The second category relates to the principles governing claims for retroactive adjustments in child support.
a. Children over the Age of Majority as “Children of the Marriage”
[22] Section 2 (1) of the Divorce Act provides that entitlement to child support for a child who is over the age of majority depends on a finding that the child remains under the charge of a parent and is “unable by reason of illness, disability or other cause” to withdraw from the parent’s charge or to obtain the necessaries of life. The onus of establishing that an adult child is still a “child of the marriage” and entitled to support is on the party seeking the support.[^4]
[23] The fact that an adult child is undertaking educational studies may constitute “other cause” within the meaning of the Divorce Act. While there are a variety of factors that courts have taken into account in such circumstances, the most important factor is whether the child is in fact enrolled in a full-time post-secondary educational program.[^5]
[24] That being said, courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program, may nonetheless remain a child of the marriage.[^6] Similarly, courts have held that a child may require a modest transition period after completing an educational program in order to search for employment. However, apart from these brief periods, courts will generally require full-time attendance at school for an adult child to maintain his or her dependent status. As Charney J. noted in Edwards v. Edwards, adult children “cannot simply choose to remain economically dependent on a parent, they must be “unable” to withdraw from the parents charge.”[^7] Moreover, adult children cannot accumulate multiple gap years to forestall their independence.
b. Framework for Retroactive Adjustments in Child Support
[25] In Colucci v. Colucci, the Supreme Court of Canada set out a comprehensive framework for determining retroactive adjustments in child support.[^8] This framework governs not only applications by a payor to decrease support, but also circumstances in which the recipient applies to retroactively increase child support. The Supreme Court also dealt with situations where a support payor seeks to rescind child support arrears solely on the basis of current and ongoing inability to pay.
[26] The first category of cases involves a payor applying under s. 17 of the Divorce Act to retroactively decrease child support. The payor must meet an initial threshold of establishing a past material change in circumstances. Where that change in circumstance involves a reduction in income, the payor must show that the decrease in income has some degree of continuity, and is not simply a product of the payor’s choice.
[27] Once a material change in circumstance is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary.[^9] In this context, “effective notice” requires clear communication of the change in circumstance, accompanied by the disclosure of any available documentation necessary to allow the recipient parent to substantiate the change and meaningfully assess the situation. This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions.[^10]
[28] Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings. Courts also retain discretion to depart from the presumptive date of retroactivity were the result would otherwise be unfair, in accordance with the factors set out in DBS.[^11]
[29] A similar set of principles applies in the second category of cases, those in which a recipient seeks to retroactively increase child support. The recipient must first meet the threshold of establishing a past material change in circumstances. Once a material change is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice. The court also retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair, in accordance with the DBS factors.[^12]
[30] The third and final category of cases considered in Colucci involves those in which a support payor simply asks for accumulated arrears to be forgiven on the basis of a current and ongoing inability to pay, without challenging the accuracy of the underlying order. The Court held that in this third category, the support payor must overcome a presumption against rescinding any part of the arrears. This restrictive approach to rescission based on current inability to pay is justified on the basis that the interests of the recipient and child in certainty and predictability are paramount, and should not be subverted by a payor’s choice to direct their financial resources elsewhere. The presumption against rescission of support arrears will only be rebutted where the payor parent establishes on a balance of probabilities that, even with a flexible repayment plan, they cannot now, and will not ever be able to pay the arrears.[^13]
Material Changes in Circumstance
[31] The Applicant argues that there are two material changes in circumstance that have occurred since the commencement of his child support obligation in May 2011. The first is that by November 2018, JAH and PJH were no longer children of the marriage; the second is the November 2018 closure of his business and the resulting significant decline in his income since that date.
[32] I agree that as of November 2018, JAH and PJH ceased to be “children of the marriage” and that this constitutes a material change in circumstance justifying a review of the Applicant’s child support obligations in relation to them.[^14]
[33] Considering first JAH, he graduated from university in 2015 and began working full-time. By November 2018 he was 25 years old. Although he was living with the Respondent, there is no suggestion that he was unable to support himself. JAH resumed full-time university studies at age 26 in 2019, but he was supporting himself through student loans as well as savings accumulated during his period of full-time employment.
[34] As noted above, the burden is on the Respondent to establish that an adult child remains a “child of the marriage” and entitled to child support. It would appear that JAH may well have become financially independent by as early as 2015, when he was 22 years old and working full-time. In any event, I find that the Respondent has failed to provide evidence establishing that JAH remained a child of the marriage by November 2018, which is the date sought by the Applicant for the termination of child support for JAH. Nor has the Respondent provided evidence showing that JAH resumed his status as a child of the marriage when he commenced law school in Calgary in September 2019.
[35] PJH withdrew from high school in June 2017 and in November 2018 was working. Although he was living with the Respondent at that time, he had no plans to complete high school or otherwise resume his education. There is no evidence to suggest that by November 2018 he was unable to withdraw from his parents’ charge or to provide for the necessities of life. In fact, in September 2019 PJH moved to Vancouver and was self-supporting. Although he did resume residing with the Respondent for a period of time in 2020 due to the Covid 19 pandemic, by the fall of 2020 he had returned to Vancouver. I therefore find that the Respondent has failed to show that from November 2018 onwards, PJH remained a child of the marriage.[^15]
[36] I also agree that the 2018 bankruptcy of the Applicant’s business is a further material change in circumstance justifying a review of his support obligations. The Applicant has filed uncontradicted evidence indicating that his business was forced into bankruptcy in November 2018. The Applicant’s November 2018 consumer proposal includes the report of the Administrator, a Licensed Insolvency Trustee, who investigated the Applicant’s property and financial affairs so as to be able to assess with reasonable accuracy the Applicant’s financial situation and the causes of his insolvency. The Applicant’s affidavit also explains in some detail the business difficulties which led to the closure of the business. It is clear that the business failure was a result of circumstances beyond the Applicant’s control, and that it has had a significant impact on his income and overall standard of living.
[37] Since November 2018, the Applicant has been employed by a number of different companies at a much reduced level of income, ranging from approximately $54,000 in 2020 to $89,000 in 2021. It is evident that the Applicant diligently sought employment following the closure of his business, since he obtained a position within a month of the closure. There is no evidence to suggest that he has been intentionally unemployed or underemployed since November 2018. He has also provided disclosure of his other sources of income, including CERB, CPP and OAS. I am satisfied that the income reported by the Applicant represents an accurate account of his actual income since November 2018.
[38] The Respondent argues that the Applicant failed to provide adequate financial disclosure of his income dating back to 2009 until the May 2021 order of Leiper J. Yet the disclosure sought by the Respondent related primarily to financial records for the Apple Products business, not the Applicant’s employment income following the closure of the business in 2018. There is no evidence contradicting or calling into question the accuracy of the Applicant’s reported income since November 2018. I am further satisfied, in accordance with the principles set out in Colucci, that the reduction in the Applicant’s income is not transitory. Rather, it results from the permanent closure of his business and his transition from a business owner to an employee.
[39] I therefore find that the Applicant has met his burden of establishing that there have been material changes in circumstance since November 2018 justifying a review of his child support obligations.
The Applicant has No Ongoing Obligation to Provide Child Support
[40] In her submissions, the Respondent indicated that she was not seeking ongoing child support for the three Children as of August 2021. This is consistent with my earlier finding that as of November 2018, both JAH and PJH were independent adults. As for CBH, as of August 2021 she is an adult living on her own and not attending school and thus is no longer a child of the marriage. In these circumstances, it seems clear that none of the three children is currently entitled to ongoing support from the Applicant.
[41] Nevertheless, the Respondent suggested that PJH could become entitled to child support if he were to attend an acting program commencing in October 2018 at the Ecole Philippe-Gaulier (the “EPG”), a Theatre School located in France about a hour south of Paris. It is not entirely clear from the evidence presented whether PJH will actually attend this program. For clarity, I find it appropriate to address this issue.
[42] Very little information was provided with respect to the program operated by the EPG. It appears to consist of a series of workshops, ranging in length from three weeks to eight weeks from October 2021 until June 2022, at a cost of 6900 euros.[^16] Enrollment is on a “first come, first served” basis to anyone 19 years of age and older. There does not appear to be any degree or diploma offered at the conclusion of the program, and there is no evidence as to whether the EPG is accredited or recognized by any independent educational body. Nor has the Respondent provided any evidence as to why PJH wishes to enroll in a theatre program in France as opposed to theatre programs in British Columbia or elsewhere in Canada, and how the program at EPG fits within an overall educational or career plan.
[43] I have earlier found that PJH has been an independent adult for the past three years. I further find that the Respondent has not met her burden of showing that attendance at the EPG would alter that status, or result in an obligation on the Applicant to resume providing him with child support.
Applicant’s Request to Retroactively Reduce his Child Support Obligations
[44] The Applicant seeks two distinct retroactive reductions in his child support obligations. First, he seeks a finding that, since JAH and PJH were no longer “children of the marriage” as of November 2018, any child support arrears that have accumulated in respect of them should be rescinded. Second, he seeks to have his child support payments for CBH from November 2018 to August 2021 reduced to take account of his actual income over that time.
a. Termination of Child Support for JAH and PJH effective November 2018
[45] Given that I have already found JAH and PJH to be independent adults as of November 2018, the only issues that arise in relate to this head of relief sought by the Applicant are: (i) whether the Applicant was required to provide effective notice to the Respondent of JAH and PJH’s change in status in order to trigger the termination of their child support; and (ii) if so, whether such effective notice was in fact provided.
[46] In Colucci, the Supreme Court indicated that in cases where a payor seeks to retroactively decrease child support, the presumptive date of retroactivity is generally the date that effective notice was provided. Yet although not expressly stated, it appears that the requirement of effective notice only applies in cases where the reduction in support is based on a reduction in the payor’s income, as opposed to cases where a child has become an independent adult and for that reason is no longer entitled to support.
[47] Martin J. for the Supreme Court emphasized that the rationale for requiring the support payor to provide effective notice is the informational asymmetry between the parties, since the payor will be aware of the change in his/her financial circumstances but the recipient will not. But there is no such informational asymmetry in cases where a child who is residing with the recipient parent becomes independent and no longer requires support. In such a situation, the recipient parent is just as aware of the relevant circumstances as the support payor.
[48] In fact, this precise issue arose in Colucci itself, where the children had become independent adults in 2012. Mr. Colucci did not provide any notice of that change in status and only commenced his motion to change in 2016, four years later. Despite the lack of any notice in relation to the children’s status as independent adults as of 2012, the Court held that this issue was “relatively straightforward” and that no further child support arrears accumulated after 2012.[^17]
[49] This reading of Colucci appears to be consistent with the requirements of the Divorce Act. The Act’s entitlement to support is provided to “children of the marriage”, which is statutorily defined.[^18] There is no additional or continuing entitlement to child support for adults who are no longer children of the marriage, on the theory that the support payor has failed to inform the support recipient that the children’s statutory entitlement has ceased.
[50] Assuming this is a correct reading of Colucci and of the Divorce Act, the fact that JAH and PJH became independent adults by November 2018 is sufficient, in itself, to terminate their entitlement to child support. There was no further obligation on the Applicant to bring this change in status to the attention of the Respondent in order to trigger the termination of the Applicant’s support obligation for JAH and PJH.
[51] In any event, even assuming that the Applicant was required to bring this change in status to the attention of the Respondent, I find that he satisfied any such obligation. On November 26, 2018, his counsel wrote to the Respondent in order to advise her of the Applicant’s closure of his business and his drop in income. The letter from counsel included the following paragraph:
According to Mr. Hoskins, neither [PJH] nor [JAH] are in school and it is unlikely this will change any time soon. Based on the facts provided to me, it would appear that child support ought to have been adjusted some time ago.
[52] Thus even if I assume that the Applicant was required to provide notice to the Respondent of the change in status of JAH and PJH, I find that he did so through the November 2018 letter from his counsel.
[53] Accordingly, I find that any support arrears that have accumulated in respect of JAH and PJH since November 2018 should be rescinded.
b. Reduction of Child Support for CBH from November 2018 onwards
[54] The Applicant agrees that he had a continuing obligation to provide child support for CBH until August 2021, when she attained the age of majority. However, he seeks to have the support payable from November 2018 to August 2021 retroactively reduced to take account of his actual income for this period.
[55] As discussed above, any such adjustment in child support requires the support payor to have provided the recipient with effective notice of the reduction in income. Moreover, as the Supreme Court in Colucci makes clear, effective notice requires the support payor to have provided evidence substantiating the change sufficient to enable the recipient to independently assess the situation.
[56] Here, the Applicant relies on the November 26, 2018 letter from his counsel as constituting effective notice of his reduction in income. In that letter, counsel advised the Respondent that the Applicant was closing his business and that he had found employment at an annual salary of $45,000. However, the November 2018 letter did not include any documentation substantiating these changes in circumstance. Instead, counsel simply indicated that he had requested the Applicant to provide updated financial information, but that the Applicant “has not completed his personal Income Tax Returns for 2016 and 2017, and his business statements end with that of August 31, 2016.”
[57] Given the complete absence of any documentation regarding the closure of his business or his current income in the November 2018 letter from counsel, I find that this letter failed to satisfy the requirement of “effective notice” as defined in Colucci. Furthermore, there is no evidence that the Applicant provided any further financial information prior to commencing his Motion to Change in August 2020.
[58] The August 2020 Motion to Change does provide appropriate documentation of the Applicant’s changed financial circumstances, since it includes the report of the Administrator in relation to his consumer proposal, along with documentation confirming his subsequent employment income. The concern here, however, is whether the Motion to Change was actually served on the Respondent in a timely way. The Respondent indicates that in August 2020 she only received the first two pages of the document, and that she advised Applicant’s counsel that he should provide her with the complete version. She states that she did not receive the complete document until November 2020.
[59] The Applicant has not provided an affidavit of service or other evidence that the Motion to Change was properly served in August 2020. I therefore accept the Respondent’s evidence that she did not receive the complete Motion to Change until November 2020. Accordingly, I find that child support for CBH should be adjusted to take account of the Respondent’s actual income effective November 2020.
c. Adjusted Quantum of Child Support Arrears
[60] There were no arrears of child support owing as of November 2018, and child support for JAH and PJH terminated as of that date. Thus the calculation of the outstanding arrears requires a determination of the support payable for CBH from November 2018 to August 2021, with the Applicant entitled to a set-off for the actual amount he paid during that period.
[61] The existing table child support payable for CBH, which I determine to be one-third of $3500 or $1167, continued for the 24 month period from November 2018 until November 2020. Thus total table child support payable for this period is $28,008.
[62] I accept the Applicant’s uncontradicted evidence that his income in 2020 was $53,899 and his 2021 income is expected to be $89,000. Based on these income levels, table child support for November and December 2020 was $497 per month for a total of $994, while table child support for January to August 2021 was $826 per month for a total of $6,608.
[63] This results in total table child support for CBH from November 2018 until August 2021 of $35,610.
[64] In addition, the Minutes of Settlement required the Applicant to pay 75% of CBH’s reasonable post-secondary expenses. The Respondent has provided evidence that CBH’s tuition in 2020-21 was $6,309, and her residence cost for a single term was $3600. Thus her total post-secondary expenses were $9,909, with the Applicant’s 75% share being $7,432.
[65] Adding together the table child support of $35,610 and the post-secondary expenses of $7,432, results in a total child support obligation for CBH from November 2018 until August 2021 of $43,042.
[66] The Applicant has actually paid $19,329. Therefore, I fix the outstanding arrears of support as $23,713.
The Respondent’s claim for Child Support for 2009 to 2011
[67] The Respondent is seeking child support of $3500 per month for the period August 2009 until April 2011. She argues that the Minutes of Settlement provided for a review of child support commencing in 2013 and that, therefore, the Minutes left open the possibility that the Applicant could be required to pay child support for a period predating the Minutes.
[68] I see no such ambiguity in the Minutes. The review of child support that was to be undertaken in 2013 and each subsequent year only applied to adjustments in the quantum of child support to take account of fluctuations in the Applicant’s income. The Minutes did not contemplate ordering child support for a period prior to the execution of the Minutes. This is evident from clause 29 of the Minutes, which provided that any adjustment in child support would only be effective May 1, 2013. It is also evident from the fact that the Minutes did not provide for any disclosure or review of the Applicant’s income for the 2009 to 2011 period. The terms of the Minutes were incorporated into the parties’ 2019 Divorce Order.
[69] As discussed above, Colucci holds that a support recipient seeking a retroactive adjustment in child support must show there has been a material change of circumstance since the existing child support order. Given that the Respondent is seeking an adjustment for a period of time that predated the actual execution of the Minutes, she cannot possibly satisfy this requirement. Moreover, even if the Respondent could somehow show a material change of circumstance that occurred following the execution of the Minutes that somehow applied to a period of time prior to the execution of the minutes, any retroactive adjustment could not extend prior to three years from the date of effective notice. There is no evidence that, following the execution of the Minutes, the Respondent provided effective notice of a claim for child support for the 2009 to 2011 period. Thus, the three-year presumptive rule recently affirmed in Colucci precludes any retroactive adjustment in support applicable to a period of over a decade ago.
[70] I therefore dismiss the Respondent’s motion for an order for child support for the 2009 to 2011 period.
Respondent’s claims regarding unauthorized access of her computer in 2009
[71] The Respondent argues that in August 2009, the Applicant improperly accessed her computer and downloaded confidential information. She seeks a return of the hard drive used by the Applicant, a return of all documents he printed out and an order that the Applicant destroy all digital copies of the materials. She further seeks an order that the Applicant not discuss or disclose the contents of the material with the Children.
[72] The relief sought by the Respondent is largely barred by the terms of the Minutes, in which the parties expressly released each other from “all claims either may have against the other, now or in the future, under the terms of any statute or the common law…” This mutual release included a release of claims in respect of possession or ownership of property.
[73] Even if the claims had not been released through the Minutes, any property-related claims would be barred by operation of the Limitations Act, since the Respondent acknowledges that she became aware of the Applicant having accessed this information in September 2009.
[74] The only exception to the above conclusions arises in respect of the Respondent’s claim that the Applicant has recently discussed the information he obtained from her computer with the Children. Despite the fact that the Children are now adults, they should not be drawn into the conflict between these parties. Without making any finding as to whether confidential information was improperly obtained by the Respondent in 2009, I order the Applicant to refrain from discussing with the Children any information he may have obtained from the Respondent’s computer.
Disposition
[75] Order to go as follows:
a. JAH and PJH ceased to be children of the marriage as of November 2018, and the Applicant’s obligation to provide child support for JAH and PJH ceased as of that date;
b. Any arrears of support in respect of JAH and PJH are hereby rescinded;
c. CBH ceased to be a child of the marriage effective August 30, 2021, and the Applicant’s obligation to provide child support for CBH ceased as of that date;
d. the Applicant did not provide effective notice of the reduction in his income to the Respondent until November 2020. Therefore his table child support for CBH from November 2018 to November 2020 continued to be $1167. The Applicant’s child support obligations in respect of CBH should be adjusted to take account of his actual income from November 2020 until August 2021, namely, $53,899 in 2020 and $89,000 in 2021;
e. based on the above findings, the Applicant’s total child support obligations for CBH for the period November 1, 2018 until August 30, 2021 were $43,042 (consisting of table child support of $35,610 and post-secondary expenses of $7,432);
f. the Applicant has paid $19,329 for the period November 2018 to August 30, 2021, resulting in total arrears outstanding of $23,713;
g. the Applicant’s outstanding arrears of child support are hereby reduced from $102,431.91 to $23,713;
h. The Applicant has filed an updated financial statement indicating that he has assets of just $6,000. He is now 65 years old and has a limited number of years of earning capacity. I find it is reasonable and appropriate to provide him with a reasonable period of time to repay these arrears. I therefore order the Applicant to pay monthly installments of $1500 to the Respondent, commencing October 1, 2021, until such time as the outstanding arrears of $23,713 have been repaid in their entirety;
i. the Respondent’s motion for child support for the 2009 to 2011 period is dismissed;
j. the Respondent’s motion for the return of materials obtained by the Applicant from her computer hard drive in August 2009 is dismissed; and
k. without making any finding as to whether the Applicant improperly obtained information from the Respondent’s computer in 2009, the Applicant is ordered to refrain from discussing with the Children any information he may have obtained at that time.
[76] I invite the parties to attempt to resolve amongst themselves the issue of costs. If they are unable to do so, the Applicant may file costs submissions of up to five pages (not including Bills of Costs and Offers to Settle) within 10 days of the release of this Endorsement; the Respondent may file responding costs submissions on a similar basis within 10 days of receiving the costs submissions of the Applicant; and the Applicant may file reply cost submissions of up to two pages within five days of receiving the responding cost submissions of the Respondent.
P. J. Monahan J.
Released: September 24, 2021
Hoskins v. Magee, 2021 ONSC 6319
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES DAVID HOSKINS
Applicant
– and –
MARGARET ANNE MAGEE
Respondent
ENDORSEMENT
P. J. Monahan J.
Released: September 24, 2021
[^1]: RSC 1985, c. 3 (2nd Supp.). [^2]: I note that the age of majority in the province of British Columbia, where PJH and CBH currently reside, is 19 years of age: see the Age of Majority Act, RSBC 1996 c. 7, s. 1 (1) (a). [^3]: I note that prior to early 2021 the Respondent was living on Salt Spring Island, at which point she moved to Victoria. [^4]: Kozak v. Kozak, 2018 ONSC 690 (“Kozak”) at para 62. [^5]: Edwards v. Edwards, 2021 ONSC 1550 ("Edwards") at para 36. [^6]: Musgrave v. Musgrave, 2013 ONSC 7481, at paras 38-39. [^7]: Edwards, at para 39. [^8]: Colucci v. Colucci, 2021 SCC 24 ("Colucci"). [^9]: The three-year presumptive rule in cases where a retroactive variation in child support is sought was established in D.B.S. v. S.R.G, 2006 SCC 37 ("DBS"), and the Court in Colucci affirmed the continued application of this presumptive rule. [^10]: Colucci, at paras 88 and 113. [^11]: Colucci at para 113. [^12]: See generally, Colucci at para 114. [^13]: Colucci at para 135 to 138. [^14]: It is well established that when an adult child ceases to be a “child of the marriage”, this constitutes a material change in circumstances: see Kozak at para 47. [^15]: The Respondent states that PJH has ADHD and a learning disability. However she has not provided any medical evidence establishing these conditions. Nor, in any event, has the Respondent shown how these conditions have prevented PJH from becoming financially independent. To the contrary, the evidence establishes that PJH has been able to live independently, since he has lived on his own and supported himself for substantial periods of time since November 2018. [^16]: This appears to be the cost of tuition only. There was no estimate provided of PJH’s living and travel costs while attending the program at EPG. [^17]: Colucci, at paras. 12 and 60. [^18]: See Divorce Act, ss. 15.1 (1) and 2 (1).