COURT FILE NO.: FC 10-2130

DATE: 20211104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Suzanne Daleman

Applicant (Responding party)

– and –

Paul Daleman

Respondent (Moving party)

Self-represented

Self-represented

HEARD: October 5 to 8, 2021

The Honourable justice h. desormeau

Introduction

[1] If only separated couples learned to put their differences aside and talk to each other, so many matters would not have to end up in family court. Here, the Mother, Ms. Daleman was brought back to Court by the Father, Mr. Daleman, to determine what, if any, child support overpayment has been made to the Mother for the adult child D.

[2] On July 5, 2013, Justice Kane Ordered the Father to pay child support to the Mother, for the benefit of the three children of the marriage, until their 18th birthday, unless (a) they are attending an educational institution on a full-time basis or (b) they are unable to cease being a child of the marriage pursuant to the Divorce Act. The Order placed a positive obligation on the Mother to provide evidence of either criteria for child support to continue to be payable by the Father. The relevant provisions of the Order are set out below.

[3] The Father was not satisfied with the evidence, or lack thereof, provided by the Mother, nor the delay in providing same. He filed contempt motions to obtain the evidence, and then eventually brought a Motion to Change to retroactively terminate the support payable for D to his 18th birthday in 2016, and have the Mother reimburse him the overpayment of support from 2016 to 2020, totalling $28,666.56.

[4] Given their history, which the Mother alleged was fraught with domestic violence, she felt harassed by the Father’s refusal to believe the evidence provided to him. Her position was that D attended school the fours years in question. D is legally visually impaired, and therefore it took him longer to complete a college degree. She consented to the child support being terminated for D as of July 2020, when he left her home. She asserted that the Father should pay 75% of the now adult children’s future tuition fees. She further requested that the Father pay the outstanding tuition fees of $2,668.01 owed by D as this prevents him from re-attending school. She also asked that the Father pay prior legal fees of $7,423.47, which appear to pre-date the Motion to Change. In her Response to Motion to Change, the Mother also sought a permanent restraining Order against the Father due to continuous mental abuse.

[5] In closing submissions, the Mother also advanced a request to readjust both child and spousal support retroactively for the past five years. She further requested that the outstanding spousal support payable until June 30, 2023 be replaced by a tax-free lump-sum payment. These claims were not articulated in the Response to Motion to Change, nor was there any evidence of these requests until final submissions at the trial. Given same, the request to adjudicate on issues not in evidence is hereby dismissed, without prejudice to the Mother’s ability to seek this relief properly.

[6] Given the Mother is visually impaired, I permitted her cross-examination of Mr. Daleman to go through her partner, Mr. Deschênes. During her evidence-in-chief, and cross-examination of Mr. Binggeli, Ms. Daleman was prompted by Mr. Deschênes with a pre-written list of topics.

[7] Hours after the trial was completed, Ms. Daleman uploaded to Caselines the missing two pages of Exhibit A, the letter from Dr. Awan. Because they were not properly introduced as evidence during the trial, the Court will not review the documents listed as items 54 and 55 in Caselines.

The Order

[8] The relevant provisions of Justice Kane’s Final Order dated July 5, 2013 states (hereinafter “the Kane Order”):

1.3 The Applicant [Mother] will keep the Respondent [Father] informed, in a timely fashion, all material issues effecting the health, education and well-being of the children. The Applicant shall respond in a timely fashion to inquires made by the Respondent about the children. All communication between the parties shall be by fact-based email dealing only with child-related issues.

1.4 The Applicant shall provide written confirmation to each of the schools which the children are attending, at the start of each academic year and immediately upon them changing schools, with a copy to the Respondent confirming that there is no impediment to his receiving copies of their school reports.

2.1 Commencing February 1st, 2013, the Respondent shall pay basic monthly child support for the three (3) children [M, born in 1995, D, born in 1998, and S, born in 2000] in the amount of $1,900.00 per month on the 1st day of each and every month, pursuant to the Federal Child Support Guidelines, until there occurs a material change in the financial circumstances of the Respondent and for as long as the three (3) children continue to be financially dependent on the Applicant, as defined by the Divorce Act.

2.3 Commencing February 1st, 2013, and as defined by section 7 of the Federal Child Support Guidelines, future special and/or extraordinary expenses shall be paid in proportion to the parties respective line 150 income, save and except that the Respondent’s share shall never exceed 75% of same.

2.4 The Respondent would not be required to contribute to any special and/or extraordinary expenses unless he has provided his prior written consent to the Applicant before the expense is incurred, such consent not to be unreasonably withheld.

2.6 Both parties shall provide the ongoing annual financial disclosure as contemplated by the Federal Child Support Guidelines, to each other on or before August 1st every year commencing August 1st, 2014.

2.7 Notwithstanding the foregoing:

a. The parties shall also forthwith advise each other of any change in their financial circumstances including his/her employment and provide particulars of his/her new employment income as soon as same occurs to ensure a prompt readjustment to the level of child support in conformity with the Federal Child Support Guidelines.

b. One of the events which could lead to the termination of the Respondent’s child support obligations pursuant to paragraph 2.1 of this Order, is a child turning 18 and not attending school or an educations institution on a full-time basis. To ensure the prompt readjustment to the level of child support in accordance with the Guidelines, the Respondent’s child support shall terminate effective the last day of the month of the academic term or semester, which follows his or her 18th birthday unless:

i) Written confirmation is received by the Respondent from an educational institution prior to the end of the term or semester, that the child is enrolled to attend that institution on a full-time basis during the next semester or terms. AND [sic] written confirmation is also received by the Respondent from the institution by the end of the second week of the term or semester that the child is enrolled in the number of courses or in attendance for a sufficient number of hours to satisfy the definition of a full-time student. OR [sic]:

ii) In the alternative, that the Applicant provides the Respondent with such medical evidence upon which she intends to rely in support of her position that the child or children in question continue to be a child or children of the marriage pursuant to the Divorce Act. Any child support received by the Applicant after any child ceases to become a child of the marriage pursuant to the Divorce Act, shall be the property of the Respondent and shall be immediately returned to him. If the parties are unable to resolve the issue of whether child support should be reinstated, they are at liberty to bring the matter before a Court of competent jurisdiction.

3.1 Based on the Respondent’s current income of approximately $105,000.00/year, the Respondent shall continue to pay spousal support in the amount of $400.00 per month on the 1st day of each and every month, to and including June 30th, 2023.

3.3 All payments made pursuant to this paragraph are deductible in the Respondent’s hands and shall be included as income by the Applicant pursuant to subsection 56.1(3) and 60.3 of the Income Tax Act.

5.1 The Applicant and the Respondent intend this Order to be final except for a variation in the event of a material change in circumstance. In the event of a material change in circumstances, whether such change be foreseeable, unforeseeable, foreseen or unforeseen, only paragraphs 1.1, 1.3, 2.1, 2.3 to 2.7, 3.1 (except that this clause cannot be varied on or after June 30th, 2023 as spousal support will be terminated permanently on that day), 3.2, 3.3, 4.1 and 4.2 can be varied.

11.1 The Applicant will forthwith proceed with the finalization and completion of the divorce proceedings leading to the issuance of a Divorce Order on an uncontested and consent basis at her cost.

Credibility

[9] Mr. Daleman testified in forthright and straightforward manner. During cross-examination, he was able to provide clarity on the issues which troubled Ms. Daleman. For the most part, I found Mr. Daleman credible. As I will discuss further, on the issues of domestic abuse toward the Mother and/or the children, Mr. Daleman provided blanket denials to every allegation. Where Mr. Daleman’s evidence is contradicted by Mr. Binggeli, an independent third party, I prefer the evidence of Mr. Binggeli.

[10] Mr. Deschênes, who is Ms. Daleman’s partner, presented as a neutral witness. He admitted to errors committed in the filing of Ms. Daleman’s Income Tax Returns. He answered questions in a calm, straightforward manner based on his personal knowledge. He did not embellish his answers. Mr. Deschênes appeared sincere in his evidence, in particular regarding D and the issues in dispute.

[11] Ms. Daleman was unable to answer questions in a straightforward manner. Most responses were verbose and repeatedly off-topic. When she cross-examined Mr. Daleman, and examined Mr. Deschênes, she often attempted to present contrary evidence to their answers. She had to be frequently reminded that she would have her turn to present her evidence when she testified, and that her questions, or answers to her own questions, were not evidence.

[12] When Ms. Daleman provided her evidence in-chief, she provided a very detailed history of the couple’s relationship prior to and following separation, including allegations of domestic abuse. She was very detail-oriented regarding events involving all three children post-separation. However, in cross-examination, Ms. Daleman’s answers were often evasive or non-responsive. She would frequently blame her cancer or loss of vision to explain her memory loss and avoid answering the question. On more than one occasion after advising she had no recollection of the event, when questioning pursued, she was suddenly able to respond with fulsome details. While Ms. Daleman objected to being badgered, her evasive answers necessitated further questioning by Mr. Daleman. In the end, I did not find Ms. Daleman to be a credibly witness.

[13] On more than one occasion, Ms. Daleman interfered with Mr. Deschênes’ evidence by providing answers for him or correcting his answers. On at least two occasions, Mr. Deschênes provided the Mother the answer, or a key word, to a question posed in cross-examination. These types of corrections or interjections undermined the weight to be given to parts of their evidence.

[14] Mr. Binggeli’s evidence was straightforward and articulate. There was no doubt that his involvement with the family was a positive one, particularly regarding D. His evidence regarding D was resoundingly neutral. Where Mr. Binggeli had first-hand knowledge, his evidence is accepted.

Issue 1: Child Support

Background evidence

[15] The Father submitted that he overpaid child support for D as he was not in school full time. The period in question was from 2016 to 2020. On consent, both parties agreed that child support should terminate as of July 1, 2020.

[16] The Father asserted that from April 2016 to December 2017, he overpaid child support by paying support on behalf of D, which, based on his income, was an overpayment of $9,870.00 (21 months x $470.00 overpayment). From January 1, 2018 to August 1, 2018, the Father submitted he overpaid child support by $2,032.56 ($254.07 x 8). From September 1, 2018 to June 1, 2020, the Father stated he overpaid child support by $16,764.00 ($762.00 x 22). In total, he claimed reimbursement for the overpayment of $28,666.56.

[17] The Father’s income was $85,000.00 in 2016; $85,000.00 in 2017; $108,623.00 in 2018; $143,798.00 for 2019 and $136,447.00 in 2020.

[18] Though the Father’s 2020 income was initially challenged based on his securities trading, I do not find this argument was made out. I accept the Father’s 2020 income as set out in his Notice of Assessment.

[19] The Mother’s income was $30,375.00 in 2017; $39,634.00 in 2018; $31,890.00 in 2019, and $27,859.00 in 2020.

[20] Ms. Daleman, Mr. Deschênes, and Mr. Binggeli testified that D tried to reach out to his Father on his 17th birthday by telephone, and shortly thereafter by attending the Father’s home and knocking on his door. Both times, D was soundly rejected by the Father. While not directly relevant to the issue of child support from 2016 to 2020, this evidence did speak to the relationship between D and his Father. I accept the evidence on this issue as advanced, despite its denial by Mr. Daleman. I accept that D was extremely hurt by the Father’s rejection. I also accept that from the date of separation until June 2020, the Father’s relationship with D was essentially non-existent.

D

[21] D is now 23 years old. While D has been legally visually impaired since 2003, neither party advanced the argument that the grounds under which he qualified for ODSP continue to make him a child of the marriage.

[22] D was physically attacked by strangers at least twice, leading to two significant concussions and hospitalizations.

[23] D was described by the Mother as intelligent and having a great memory. She desires only the best for him.

[24] Mr. Deschênes’ evidence was that D was a very difficult child who terrorized his siblings. When D was at home, “it was like living in a prison” as he was so difficult to be around due to his behaviours. The Mother was unable to leave D home alone with his siblings as he would attack them. It was uncontroverted that D has also attacked Mr. Deschênes.

[25] As set out by the Mother, D was very abusive following the party’s separation. He would attack his sister(s), and even pick up his Mother.

[26] Mr. Binggeli’s first impression of D was that he was a diligent, hard working, pleasant young man who had a lot of protentional. D assisted Mr. Binggeli with the installation of an above-ground pool in the Mother’s back yard. D and Mr. Binggeli formed a close friendship and mentor-like relationship that continues to this day, with D reaching out regularly to him for assistance.

[27] Mr. Binggeli witnessed what he described as D’s slow descent into drug addiction and mental illness. During the Covid restrictions, which commenced in 2020, his abuse toward everyone in the Mother’s home worsened. In June 2020, when the Mother started to lose her vision, she could not longer keep D under her roof.

[28] Since that time, D became increasingly private. He refused to reveal to Mr. Binggeli, or really in any great detail to anyone else, where he resides and how he is getting by. Mr. Binggeli suspects, as do the Mother and Mr. Deschênes, that D is homeless.

[29] As set out in further detail below, D lived independently for 10 months, from approximately September in 2018 until June 2019. Following this ten-month period, the evidence confirmed D’s downward spiral worsened.

[30] It was uncontested that as of June 21, 2020, due to his behavioural issues, D was no longer welcome to reside with his Mother. The Mother agreed via email correspondence to the Father that child support was no longer payable. At that time, D went to reside with his Father, and then approximately a week later D left to reside elsewhere.

[31] Prior to D leaving the Mother’s home for good, Ms. Daleman was constantly replacing D’s items which were frequently destroyed or broken by him.

[32] Though the Mother blamed the child’s upbringing for his behavioural issues, there was insufficient evidence to reach any conclusions on this point. Further, there was no medical evidence presented regarding D’s medical diagnosis, or what, if any, effect his two significant concussion would have on his behaviour. I do however accept the evidence provided by the Mother and Mr. Deschênes that D was unable to cope with the Mother being diagnosed with life-threatening cancer, followed by her losing her eyesight. This had a direct bearing on D’s significantly escalating behaviour.

[33] The evidence supported that D was, and is, suffering from mental health issues. The Mother suggested that D suffers from psychosis and mania. Mr. Deschênes, Mr. Binggeli and the Mother gave uncontroverted evidence that since approximately 2018, D has gone through a significant change. He has been hospitalized on four occasions due to mental health issues.

[34] By all accounts, it appears D is not ready to accept the help offered by all the parties to address his mental health issues.

Compliance with Court Orders

[35] To demonstrate that the Mother’s actions were in bad faith, the Father directed the Mother to many terms of the Kane Order for which she was allegedly not in compliance. I will only address two examples from the Kane Order, and one from a more recent Order. The first was that the spousal support received by the Mother from the Father was to be included as income by her pursuant to the Income Tax Act. The Mother admittedly neglected to do so, stating that she did not do her own taxes, and this was an oversight or accident. While this created a lot of contention between the parties, I am not persuaded, on this evidence, that the Mother did this in bad faith. It was nevertheless a breach of the Kane Order.

[36] Secondly, contrary to the Kane Order, the Mother did not proceed immediately with the finalization and completion of the divorce proceedings at her cost. Her evidence was that the Father immediately wanted a divorce, so his new wife took the necessary steps. I do not find this to be a flagrant disregard to the Court Order.

[37] Finally, as a third example, the Father alleged that the Mother refused to submit a sworn Financial Statement as directed by Justice Audet’s Interim Order of January 16, 2020, and as directed by Justice Somji’s Interim Order of April 8, 2021. The Mother denied any breach, asserting that her lawyer from 2020 would have had all that was required. She then stated that there should not have been an Order made to begin with as there was a conflict of interest regarding her lawyer and Justice Audet. When questioned about compliance with these Orders, the Mother continuously deflected and went on at great length about the history of the relationship and her more recent health-related hardships. The evidence before the Court confirmed that the only Financial Statement filed by the Mother was dated July 17, 2021, commissioned August 9, 2021. Based on the evidence, I am persuaded that it took at least two Court Orders, numerous requests from the Father, and over 18 months for the Mother to comply with Orders to produce a Financial Statement. I am of the view that this was a flagrant breach by the Mother of Court Orders.

[38] As for the Mother’s Financial Statement, the Father attempted to impugn the Mother’s credibility due to her undervaluing her home in the Financial Statement, thereby underestimating her net worth. Nevertheless, I accept the Mother’s evidence, and that of Mr. Deschênes, that they used the municipal assessment value as evidence of the home’s worth. While not the best evidence available, I accept the explanation provided for using this number. More importantly, contrary to cases dealing with equalization, the question at hand was that of child support paid over a four-year period. The value of the home is a collateral issue and therefore, for these purposes, the municipal assessment value is acceptable.

The Apartment

[39] It was uncontroverted that from approximately September in 2018, for about eight to ten months, D resided independently in his own bachelor apartment. I accept that at the time, D was out of control, extremely angry and abusive toward his Mother, who was battling cancer and losing her eyesight, which ultimately led to this hiatus.

[40] There was no evidence that, until receipt of Mr. Binggeli’s affidavit dated September 24, 2021, the Father was ever advised of the change in D’s residence. In said affidavit, Mr. Binggeli’s evidence was that on April 26, 2018, D physically attached Mr. Deschênes. This was when the Mother was about to start her chemotherapy treatment and had a port installed for the treatment. The port was almost pulled off by D when she and M intervened in D’s attack against Mr. Deschênes. Following this, Mr. Binggeli helped move D into his own apartment. D remained in his own apartment for approximately 10 months, then returned to reside with his Mother. In testimony, Mr. Binggeli could not provide more clarity regarding the exact time period when D resided in the apartment but recalled that in early 2019 that he helped deliver a couch to D’s residence.

[41] The Mother did not dispute that the Father was never advised of this change in circumstance. When questioned about the lack of notice, the Mother’s evidence was that she was dying, and therefore did not turn her mind to the issue of child support.

[42] The Father suggested that child support should not have been payable to the Mother during these 10 months.

[43] The Mother indicated she took care of D’s every need, she bought him food and gave him $350.00 every month. She put money into his bank account for expenses such as his cellular telephone which cost $80.00 per month. She said she gave him $2,000.00 to start for first and last month’s rent. He was eventually kicked out of the apartment for never having paid rent, which begged the question of what happened to the rent money purportedly provided by the Mother. She testified that D did not use the money she gave him as intended by her.

[44] When questioned about his ability to pay the monthly rent, the Mother admitted that D told her he was getting some money. She was not asked to co-sign for the apartment, and she did not pay for any bill for his outstanding rent owed. At this point in the evidence, the Mother admitted that she was aware that D was receiving ODSP but denied being the person who applied for it on his behalf.

[45] While the Mother’s evidence was that D spent half the time in the apartment and half the time in her home, this evidence was refuted in cross-examination. Mr. Binggeli was also not able to shed greater light into how often D would be at the Mother’s home.

D’s income, grants and/or bursaries

[46] The Father submitted that the Mother had an obligation to provide him information regarding D’s other sources of income, such as government allowances, disability pensions, and scholarships.

[47] The Father believed that D has been collecting Ontario Disability Support Program (“ODSP”) income since he turned 18 years of age. The Father’s argument was that D’s ODSP income should be a consideration in determining what support was properly payable on his behalf.

[48] The Father alleged the Mother assisted D in obtaining ODSP by taking him to Toronto to be evaluated and helping D fill out the requisite paperwork. The Mother denied these assertions and denied any knowledge of D receiving ODSP.

[49] The evidence belies the Mother’s statement, as following D leaving her home, the Father texted the Mother, posing as D, asking for his ODSP case number. The Mother readily provided it to him, along with a phone number to call and what she believed to be the caseworker’s name.

[50] Moreover, when questioned about how D was able to afford his apartment in 2018, the Mother admitted to being aware of him receiving ODSP.

[51] To prove that the Mother was aware of D’s ODSP income, he questioned her about what she declared as D’s income as her dependent in her 2019 Income Tax Return. The Mother again denied any knowledge of D receiving ODSP. Her evidence was that she is not the one who completed or filed her Income Tax Returns and believed that number was a number picked out of the air, “to protect themselves as D was living with them”.

[52] Mr. Deschênes never spoke to D about ODSP. He admittedly helped the Mother with her taxes and added to them a random income for D for “preventative measures”, to ensure D did not get the Mother in trouble with the Canada Revenue Agency.

[53] While the Father submitted that the claim of $9,600.00 was exactly was ODSP was paying D, he provided no direct evidence on this issue, such as a pay stub.

[54] On a balance of probabilities, based on the evidence, I am persuaded that D had been receiving ODSP since at least 2019. While I have no concrete evidence of what D did receive from ODSP, I am aware that ODSP income is generally in the range at that which was claimed by the Mother on her taxes. Further, I find that the Mother was aware of D’s ODSP income.

[55] The Father also provided evidence that D had received two very large bursaries/grants or scholarships. Specifically, based on a 2017 T4A from Algonquin College, D received $10,181.94, and in 2018 Algonquin College issued D a T4A for $6,373.72.

[56] The Mother denied any knowledge of these sums being received by D, or that D even applied for them. She was unable to provide any evidence regarding whether these monies had assisted in paying D’s tuition.

[57] Mr. Deschênes meanwhile was aware that D received a scholarship from Algonquin College, but was not aware how much D received. He believed that there was a committee or support group at the college that helped D due to him being visually impaired, and the scholarship was given to him due to being differently abled. I accept Mr. Deschênes’ evidence that D generally did not involve him regarding financial information.

[58] The Mother admitted in her affidavit dated October 5, 2021 to being aware that D was receiving OSAP to help cover some of his school tuition. Given that she was not cross-examined on this issue, I find it was not a contentious or disputed point. I also accept that D received the above-mentioned monies as established by the Father. I cannot conclude however how the money was spent.

D’s schooling

[59] As set out in the Kane Order, one of the events which could lead to the termination of the Father’s obligation to pay child support was the child turning 18 years of age and not attending school on a full-time basis. The Order specifically contemplated an immediate termination of child support effective the last day of the month of the academic term or semester which follows, in this case, D’s 18th birthday unless (a) the Father received written confirmation from the school prior to end of the term, that the child is registered to attend the school full-time during the next semester and (b) written confirmation by the end of the second week of the term that the child is enrolled in the number of courses, or a sufficient number of hours, to satisfy the definition of a full time student, (or) that there is sufficient medical evidence to determine that the child continues to be a child of the marriage. The second part of the test was not advanced by the Mother, and if that argument had been advanced, there was insufficient medical evidence for this Court to determine that D continues to be a child of the marriage.

[60] To summarize the above terms of the Kane Order, the onus was on the Mother to provide evidence from the school that D was registered to attend school full time for the upcoming term, and provide evidence once the term has commenced that D was attending school full-time.

[61] Pursuant to the Kane Order, the Mother was obliged to keep the Father informed, in a timely fashion, of all material issues effecting the children’s education. She was to provide the Father with written confirmation regarding which school the child(ren) were attending, and ensure the Father had no impediments to receiving copies of report cards. While initially the Father alleged this never occurred, he acknowledged the Mother providing him with a timetable for D’s September to December 2019 schooling. His view was that all information was available through ACSIS (Algonquin College Student Information System) via the internet. However, he did not address how the Mother would have access to this information given that D was an adult at all material times.

[62] The Father suggested that the Mother was to provide the report cards to him, however, this is not what was Ordered by Justice Kane. The Kane Order stipulated that the Mother advise the school of the Father’s right to information, and she was not to impede his access to same. I have no evidence that the Mother impeded the Father’s access to this information, nor do I find that she had an obligation to provide the Father with report cards.

[63] For special and/or extraordinary expenses, the Father was only required to contribute to an expense if he had provided his prior written consent to the Mother before the expense was incurred. While there was evidence of this having been an issue regarding M’s schooling, this did not appear to be an issue regarding D’s schooling.

[64] The Father’s evidence was that he was not provided any disclosure from the Mother for the educational status of any of the children, including D. He stated that the Mother was completely uncooperative and rarely responded to requests for disclosure. He was misled by the Mother regarding M’s education, and when he did receive information regarding M, it was heavily redacted. The Father asserted he overpaid child support for M for three years, which was rectified at Court in 2017, terminating support retroactively to 2014.

[65] The Mother submitted that she kept the Father apprised of Ds’ enrollment in Algonquin College. She took the position that D was three credits shy of obtaining his diploma. She stated in her Response to Motion to Change that the Father rejected documents proving that M and D were going to school, demanded to see their grades, and questioned their motives for going to school.

[66] The Mother asserted that the children were within their rights to refuse to provide additional information requested by the Father. She further asserted in her Response that the Father refused to comply with the Kane Order regarding his own financial disclosure and contribution toward the children’s tuition fees. However, apart from these broad assertions, there was insufficient evidence to permit the Court to properly address the allegations regarding the Father’s alleged breaches of the Kane Order.

[67] The Mother was adamant that she satisfied the terms of the Kane Order. Her evidence was that she provided the Father with letters from Algonquin College confirming D’s registration from September 6, 2016 to April 18, 2020. However, the letters were all dated January 15, 2020. There was no contemporaneous evidence of D’s registration or attendance at Algonquin College, or proof of same having been provided to the Father prior to 2020.

[68] Regarding D’s attendance at College, the Mother testified that during his first two years, he spoke about school all the time, he was very open and passionate about it. She was also in constant communication with D during this time due to the two beatings he had received. She was understandably a worried Mother, checking in with her son when he was on the bus, when he arrived at school, etc. She would occasionally drop him off or pick him up either at a closer bus stop or at school. Due to him being visually impaired, D had a helper through the school. This helper would come to the home and ask him questions that were on the computer.

[69] The Mother was an effective advocate for D, ensuring he had everything he needed for school, such as a brail reader.

[70] In 2018, when D finished his second year of College, the Mother was diagnosed with stage 4 cancer, leading her to having a mastectomy, as well as suffering from a brain tumour. When she revealed her health issues to the children, D became very angry and increasingly violent. At that time, he picked up the Mother, threw her, and pushed the port where she had a needle sticking out. D also started acting oddly and started using drugs. He was very disturbed and upset about the Mother’s diagnosis. When the Mother lost her eyesight, D became even more aggressive. He once picked her up and threw her across the kitchen onto the floor. The Mother at that point no longer felt safe with D in the home.

[71] The Mother testified that D gave her every indication he was still going to school. She saw him get up early to get ready for school. She made him lunches, and even purchased him a suit for a school presentation. Her evidence however was that around this time, D was not cooperative with the Mother and cut her off from school information.

[72] During D’s third and fourth year of school, D stopped calling the Mother on his way to school. He would still occasionally tell her when classes would start or end. D had an 8:00 a.m. class, and given it was a two-hour bus ride from her house to the College, the Mother questioned why D would bother getting up so early if it were not for school.

[73] The Mother testified that she would go through D’s room regularly to see if there were signs of him attending school. During his third and fourth year, in his room she saw a computer lent to him by the school, as well as test results.

[74] She testified that she was not involved in D being registered for school after June 2020.

[75] She advised that D had unpaid tuition fees of $2,668.01 and cannot return to college if these fees are not paid.

[76] In January 2020, when the Father brought the Mother to Court, the Mother called D and she could hear the school in the background. She asked D for information to provide to the Father. D only agreed to provide the letters of registration. When the Mother called the registrar’s office, D’s consent was required to obtain more information about his schooling. The Mother was led to believe that the admission letters were satisfactory evidence.

[77] Mr. Deschênes testified that there was no clear indication that D was not attending school. D would leave very early in the day, and at least for the first two to three years, Mr. Deschênes would hear D listening to the courses he was taking. Though Mr. Deschênes recalled people from school went to the home and helped D, he did not specifically recall when this would have occurred. Further, D’s room has a lot of evidence of his ongoing attendance at school.

[78] Both the Mother and Mr. Deschênes testified that during the four years in question, they independently observed D doing homework.

[79] Mr. Deschênes spoke about the Mother having to provide several items to meet D’s needs, and sometimes purchase the same items repeatedly due to D destroying them. For instance, the Mother purchased D three to four computers, frequently replaced his cane and glasses. She tried very hard to help D become independent.

[80] Mr. Deschênes’ evidence was that the Mother begged D for the schooling information to satisfy the Father’s requests. The only thing she was able to obtain were the letters from the College. D refused to give any information and refused to cooperate with the Mother. Mr. Deschênes suggested that the lack of cooperation from D was exactly why the parties had to go to trial.

[81] Mr. Deschênes stated that it was clear that D went to school, however, things did not go well for D after a while. At the end, D struggled with many things, he became increasingly violent, and when Covid started, it became mayhem. Being blind during Covid was very difficult for D as people used to yell at him for being too close. This led, he suggested, to D leaving school. However, D did not speak about leaving school to Mr. Deschênes, nor did he complain about school or it being boring. D would not share any information at all, except to respond to questions about his courses. He never once told Mr. Deschênes that he was not attending school.

[82] Mr. Binggeli was a regular part of D’s life, and believed D was attending school full time from 2016 to 2020. During this time, he frequently drove and/or picked up D from the College. They also spoke often about the college courses D was taking. Mr. Binggeli thought D excelled at school the first two years at school, but the last year did not go well.

[83] In 2019, Mr. Binggeli drove D to Algonquin College and helped him enroll in his last year of the program. Mr. Binggeli described that in early 2019, D was going to school, but something was wrong as D was not happy.

[84] Mr. Binggeli’s affidavit set out that in grade 12, D stopped sharing educational information with is Mother, directing his school not to provide any information to her. Since that time, D has refused to provide any such information to his Mother, regardless of the consequences to her.

[85] Ultimately, Mr. Binggeli had no doubt that D attended the four years of college. However, he admittedly had not seen any report cards or school documents. He had no idea if D was skipping classes. He had never been aware of D’s financial situation, including any income source or support.

[86] I accept the Mother’s evidence regarding D’s behaviour. I accept that from at least 2018 onward, D refused to cooperate with the Mother and limited what she was able to access regarding his schooling.

[87] I also accept the Mother’s, Mr. Deschênes’ and Mr. Binggeli’s evidence that they truly believed D was still in full-time studies at the college.

[88] Despite the terms of the Kane Order, the Father was not satisfied with the letters from Algonquin College. The Father communicated with Algonquin College to help ascertain what a letter from them regarding enrollment represented to them. The Father testified that the letters confirmed the student’s registration and enrollment but could not confirm that the student completed the course.

[89] School transcripts would show whether the courses were completed. Just prior to trial, the Father managed to obtain D’s school transcripts.

[90] The transcripts confirm that D was indeed registered to attend school from September 2016 until May or June 2020.

[91] The transcripts support that D was attending full time studies from September 2016 until at least Spring 2018, where D was in “level 04”.

[92] For level 1, which commenced in September 2016, D passed all six of his classes, receiving marks ranging from D- to A-.

[93] In level 2, which commenced in January 2017, D again passed all six of his classes. His marks ranged from D- to B.

[94] In level 3, which commenced in September 2017, D passed five of his six classes, with marks ranging from D- to A-.

[95] The start date of level 04 was January 16, 2018, where D was signed up for six courses. He withdrew from one course and failed one course. His marks ranged between D- and B+ for the four completed courses. As indicated on the back of his transcript, his grade point average (“GPA”) was 1.94. There was no GPA annotation for the prior levels, or any other commentary.

[96] On September 4, 2018, D was registered to take four courses in level 5. He failed three of the four courses. His GPA for that term was 1.31. He received a C+ for the class he passed. The transcript indicated that the program level required a specific grade point average to progress to the next level, and D was asked to contact the academic department.

[97] On January 7, 2019, D was registered to take five courses in level 6. He failed three of the five courses, and his GPA for the level was 0.67. He received a D- on the two classes he completed. The transcript indicated “You have not completed all required courses for your program of study. You are missing required core courses. You have exceeded the number of F’s for this level; please contact your academic department. This program requires a specific grade point average (GPA) in Order to graduate; please contact your academic department.”

[98] On September 3, 2019, D was registered to take three courses in level 6. He failed all three courses. His GPA for that level was 0.00 The above comments were noted as on the transcript.

[99] On January 6, 2020, D was registered to take six courses in level 6. He failed all six courses, resulting in a level GPA of 0.00. His transcript again had the same comments as above.

[100] D’s cumulative GPA was 1.36.

[101] Given the above, I find D started having difficulties in school in September 2018. In January 2019, D was clearly struggling, completing only two courses where he received D-. He was directed to contact his academic department. I have no evidence that he did.

[102] D continued to be enrolled into school, based on his transcript, until the end of the January 2020 term, likely ending in May or June 2020. He failed all the courses for which he was registered from September 2019 onward.

[103] While the Mother agreed that D did not attend school from May/June 2020 onward, the Father provided evidence that D was in fact registered to attend school both in September 2020 for the Fall 2020 term, and again in January 2021 for the Winter 2021 term. No reference about these sessions were found in D’s transcripts. I accept that D did not attend these sessions.

The Law

[104] The Kane Order was made pursuant to the Divorce Act and referenced the Federal Child Support Guidelines. The specific terms of this Order are set out above and shall not be repeated in their entirety here. Briefly summarized, child support is payable by the Father for the benefit of the child after he/she turns 18 years old, so long as she/he is attending school on a full-time basis, or the child continues to be a child of the marriage pursuant to the Divorce Act.

[105] Section 17 of the Divorce Act (“D.A.”) provides the Court jurisdiction to make an Order varying, rescinding, or suspending, retroactively or prospectively, regarding a support Order or any provision of one, on application by either or both former spouses.

[106] Before the Court makes a variation Order in respect of a child support Order, the Court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support Order or the last variation Order was made in respect of that Order (s.17(4) D.A.) A variation Order for child support, shall be in accordance with the Federal Child Support Guidelines (“F.C.S.G.”) (s.17(6.1) D.A.)

[107] Section 14 F.C.S.G. sets out what constitutes a change in circumstances that gives rise to the making of a variation Order in respect of child support:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support Order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an Order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

[108] The test for entitlement to support for adult children under the Divorce Act allows for the exercise of considerable judicial discretion, and the determination of entitlement is a fact-driven exercise in every case: see Laramie v. Laramie, 2018 ONSC 4740, [2018] O.J. No. 4130 (Ont. S.C.J.); Whitton v. Whitton, 1989 8868 (ON CA), [1989] O.J. No. 1002, 1989 CarswellOnt 265 (Ont. C.A.): See Morden v Kelly, 2019 ONSC 4620, at para. 50.

[109] Notwithstanding the broad powers available to the court, a child support variation proceeding is not an appeal of the original Order. The court hearing the case must assume that the existing Order accurately addressed the financial needs of the child and took into consideration the appropriate legal considerations. The correctness of the previous Order should not be reviewed in the variation proceeding: see Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.) and Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201 (Ont. C.A.): See Morden v Kelly, supra, at para. 46.

[110] The Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. enshrines the objective of creating a shared responsibility between government and families in meeting the needs of adults with disabilities. The receipt of ODSP benefits does not in and of itself lead to disentitlement to child support: see Senos v. Karcz, 2014 ONCA 459, 120 O.R. (3d) 321 (Ont. C.A.); Chittle v. Chittle, 2019 ONSC 1433, [2019] O.J. No. 1382 (Ont. S.C.J.).

[111] Section 3(2) F.C.S.G. provides that where a child to whom a child support Order relates is the age of majority or over, the amount of 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.

[112] As set out by Justice Braid in Morden v. Kelly, supra, at paras. 54 to 56:

In Lewi v. Lewi(2006), 2006 15446 (ON CA), 80 O.R. (3d) 321, 267 D.L.R. (4th) 193 (Ont. C.A.), the Court of Appeal for Ontario outlined the following general principles to calculate support for an adult child:

i. The court starts with the presumption that it should be calculated in the same manner as for a child under the age of majority; that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses. This is described as "the standard Guideline approach." However, the court must then determine whether this approach is "inappropriate" based on the particular facts of the case.

ii. If the court determines that the standard Guideline approach is inappropriate, the court must determine the amount of child support that the court considers appropriate, having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. The court cannot depart from the standard Guideline approach simply on the basis that the amount determined using the standard approach is inappropriate.

iii. Where the court determines that the standard Guideline approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines and without resort to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines, and judicial experience in applying them. For example, the court may Order that expenses be shared between the parents in proportion to their respective incomes, after deducting the contribution of the child.

iv. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has discretion to decide the amount that the child should be required to contribute.

55 An adult child's receipt of ODSP benefits is sufficient to displace the "one-size-fits-most" approach in section 3(2)(a) of the Guidelines in favour of the "tailor-made" approach in section 3(2)(b). There is a potential for overlap between child support payments (which are intended to assist the residential parent to cover the child's needs relating to shelter, food and clothing) and ODSP benefits paid to the recipient child (which cover similar needs). ODSP support reflects society's commitment to sharing financial responsibility for adults with disabilities; therefore, it makes little sense to calculate child support on the basis that this responsibility falls only on the parents. Section 3(2)(b) should be applied to achieve an equitable balancing of responsibility between the adult child, his parents and society: see Senos.

56 If the court determines that the standard Guideline approach for an adult child is inappropriate, the court must carefully consider the child's unique condition, means, needs and circumstances; and the ability of the parents to contribute to the child's support. The relevant legislative provisions provide the court with a wide discretion to determine the appropriate approach to calculating child support, the contribution that the child should make to their own support, if any, and the quantum of child support that each parent should pay, if any. The end result of the quantification analysis pursuant to section 3(2)(b) may still be a child support award close to or identical to the Table amount: see Senos.

Analysis

[113] I start with the premise that the Kane Order is correct.

[114] The first issue I must address is whether a change in circumstances has occurred since the making of the Kane Order.

[115] I am of the view that was a change in circumstance when D was moved out of the Mother’s home on or about September 2018 until June 2019.

[116] An additional change in circumstance was the Mother’s admission that D was receiving ODSP when he was moved out of her home.

[117] The Kane Order imposed an obligation on the Mother to provide the Father with evidence of D being enrolled in school and attending same. The evidence supports a finding that the requisite disclosure was provided no earlier than January 2020. I make this determination based on the uncontroverted evidence from the Mother, Mr. Binggeli, and Mr. Deschênes that D refused to provide the Mother with the necessarily paperwork, or authorizations, until January 2020 to satisfy the Kane Order.

[118] The Mother also did not provide her Financial Statement despite numerous Court Orders until August 2021.

[119] The Father paid child support to the Mother for D’s benefit from 2016 to 2020, despite not having the necessary proof of enrollment and attendance as envisioned in the Kane Order. He is commended for having paid support despite this lack of information.

[120] The Mother, Mr. Deschênes, and Mr. Binggeli truly believed D was attending school full time for the four years in question. They individually saw D leave for school early in the morning or took part in taking him to school or a closer bus stop. Thought D stopped sharing as much information about school as he did in his first two years, he would occasionally speak about his classes. The Mother saw independent evidence such as a computer lent to D from the school, and test results in D’s room during this time. Mr. Binggeli described assisting D attend for enrolment for a 2019 session.

[121] The only evidence which potentially contradicted that of the Mother, Mr. Deschênes and Mr. Binggeli regarding D’s attendance were his grades. The transcripts themselves did not address attendance, but spoke to the number of courses taken by D.

[122] These transcripts, which were only obtained in 2021, show that D took three courses in September 2019. It was not clear, nor was it put into evidence, if three courses constituted full-time studies or not. He was enrolled full time for the January 2020 session.

[123] As noted above, section 3(2) of the Child Support Guidelines provides the Court a great deal of discretion when dealing with adult children of the marriage.

[124] I accept that D is differently abled, is suffering from mental health issues, and may have required more time than the average student to complete his post-secondary education.

[125] The evidence supports a finding that D was not living with his Mother from at least September 2018 until June 2019. I am not persuaded that the Mother assisted D financially as much as she claimed, or that he was at her home at least half the time. The Mother admitted during this period D was in receipt of ODSP, but then claimed to have no knowledge of his income. She did not question how he paid rent, nor was she approached after his eviction to pay the outstanding rents owed. Given her credibility issues and the fact that she hid this very salient information from the Father until eleven days prior to trial, I am of the view that this information was concealed to permit the Mother to continue to collect child support when it ought not to have been payable.

[126] I have considered D’s means, including what he received from the College and ODSP. The Kane Order imposes no obligation on D to contribute toward the cost of his post-secondary education. While D receiving ODSP, grants or scholarships may be a consideration of support, it is not determinative, particularly considering the Final Order.

[127] For all the reasons enunciated above and those that follow, I am of the view that the Father ought not to have paid child support to the Mother, for D’s benefit, from September 2018 until June 2019.

[128] From June 2019 onward, as per the Kane Order, D had to be enrolled in, and attend school full-time for support to be payable.

[129] Given D’s special needs, the significant change to his life due to this Mother’s diagnosis, as well as his recent failed courses in 2018/2019, I am of the view that it was reasonable for D to only take three courses in the September 2019 session. It has not been proven that this is not full-time. Unfortunately, he failed all those courses, as well as the six which he took in January 2020. I am not prepared to conclude that failing the courses equates to D not attending classes, particularly given D’s mental health issues.

[130] On a balance of probabilities, I find that D was enrolled, and did attend school as required.

[131] Ultimately, I find that the Father overpaid child support to the Mother from September 2018 to June 2019, in the amount of $7,620.00.

[132] In consideration of the Mother’s current income, I find that repayment of the child support should be paid at a rate of $300.00 per month, commencing December 1, 2021, until paid in full.

Issue 2: Restraining Order

The Law

[133] Section 46 of the Family Law Act states the following:

46 (1) On application, the court may make an interim or final restraining Order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

(2) A restraining Order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

(3) A restraining Order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

[134] To obtain a restraining Order, the Mother must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining Order cannot be imposed lightly given the respondent's liberty interest and the potential for imprisonment if the Order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19: See JK v RK, 2021 ONSC 1136, at para 29.

[135] So, while the court must assess the applicant's subjective fear, it must only grant the Order where that fear has a "legitimate basis": Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father’s actions or words with the Mother’s fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33: See JK v RK, supra, at para. 30.

Analysis

[136] I must decide whether the Mother has a legitimate basis to fear for her own physical or psychological safety, such that the granting of a restraining Order against the Father would be appropriate. For this, I must consider the Father’s conduct since separation, as well as the interplay between family violence and these family law proceedings.

[137] In both her testimony and affidavit evidence, the Mother alleged a lengthy history of physical and abuse by the Father toward her and the children during their relationship up to its ultimate culmination.

[138] The Mother’s evidence was that she continued to feel intimidated by the Father since separation and is very uncomfortable in his presence. Mr. Binggeli and Mr. Deschênes confirmed their belief that the Mother felt intimidated by the Father. This evidence was not challenged at trial.

[139] The Father completely denied any history of abuse.

[140] The Mother alleged a restraining Order was previously made against the Father due to criminal allegations. This was denied by the Father, though he admitted that around the time of separation, he had conditions of no-contact with the Mother due to criminal charges. Those charges were resolved by way of peace bond. After clarifying the issues with the parties, it was clear they referenced the same prohibition of contact, calling it by different names. The Mother confirmed she was never granted a restraining Order through family Court. On a balance of probabilities, I find that both parties were referencing the same no-contact criminal release conditions, which were followed by a s.810
Criminal Code of Canada peace bond.

[141] The grounds upon which the Mother relied for her request for the restraining Order was her firm belief that the Father was driven by wanting revenge against her for leaving him and wanting to humiliate her. This precipitated the Father bringing her to Court on numerous occasions, forcing her to defend herself against the Father’s aspersions. She qualified this as evidence of mental abuse.

[142] Apart from the Father’s Court-related actions, such as contempt motions, or over-communicating requests for disclosure, the Mother provided very little evidence of harassment, control, or threats by him since separation.

[143] Though not determinative, the Mother did not allege any police involvement since the incident referenced above.

[144] Mr. Deschênes was not with the Mother until after the parties separated, though he was a witness to the acrimony since separation. He advanced no further allegations upon which a restraining Order could be substantiated.

[145] I am mindful that a restraining Order cannot be imposed lightly given the Father’s liberty interest and the potential for imprisonment if the Order is breached.

[146] The evidence was that all the parties’ three children are grown adults. While D’s issues may benefit from the parents working together to help him, that is their decision to make. Further, with spousal support scheduled to terminate on June 30, 2023, there would be no reason at law necessitating any further interaction between the parties.

[147] While I recognize that the Mother may subjectively wish nothing more to do with the Father, I do not find that the grounds advanced amount to a legitimate basis to grant the restraining Order.

Miscellaneous: Unpaid Legal Fees, Unpaid Tuition Fees, Upcoming Tuition Fees, and Spousal Support Received

Unpaid Legal Fees

[148] In her Response to Motion to Change, the Mother sought reimbursement for legal fees incurred in 2020, totalling $7,423.47, where the claims were apparently dismissed by Justice Audet.

[149] This Court has insufficient details to determine the merits of this request. No accounts were provided to support the legal fees claimed, and based on the Mother’s own evidence, the claims were dismissed prior to this hearing. If costs were an issue, they should have been argued at that time, or otherwise preserved. I have not been directed to any endorsement preserving costs. Out of an abundance of caution however, given that costs rulings are normally argued following a determination of the merits of the case, I invite the parties to provide fulsome argument on this point in their cost submissions.

Unpaid Tuition Fees

[150] The Mother sought an Order that the Father pay D’s outstanding tuition fees to permit him to return to school.

[151] The Court has received no evidence of D’s intention or desire to return to school.

[152] Further, this Court has determined that D has been in receipt of ODSP since at least September 2018. He also received over $16,000.00 from Algonquin College to assist him with his education.

[153] While the Kane Order did not impose a term that D have to contribute toward the cost of his education, given the above, I find it is reasonable that should he ever wish to pursue further education, D should be responsible for the outstanding fees owed. The Mother’s claim for same is dismissed.

Upcoming Tuition Fees

[154] The Mother sought an Order that the Father pay 75% of the children’s upcoming tuition fees for all three children. This Court has insufficient evidence to determine whether the children will be returning to school. As such, that claim is dismissed.

Spousal Support Received

[155] As set out in paragraph 3.3 of the Kane Order, the spousal support received by the Mother was to be included as the Mother’s income. During the trial, the Mother and Mr. Deschênes testified that in fact, this had not occurred due to a misunderstanding. The Mother undertook to rectify the issue and committed to re-filing her Income Tax Returns. Given this has been an ongoing issue since the Kane Order, the Court will make an Order confirming what the Mother has undertaken to correct.

Disposition

[156] Child support payable by the Father to the Mother, for D’s benefit, is terminated as of July 1, 2020.

[157] The Father has overpaid child support in the amount of $7,620.00, which the Mother is hereby Ordered to repay to the Father at a rate of $300.00 per month, commencing December 1, 2021, until paid in full.

[158] The Mother’s claim for a restraining Order is hereby dismissed.

[159] The Mother’s claim that the Father pay D’s unpaid tuition fees of $2,668.01 is hereby dismissed.

[160] The Mother’s claim that the Father pay 75% of the children’s upcoming tuition fees for all three children is hereby dismissed.

[161] The Mother’s claims to readjust both child and spousal support retroactively for the past five years is hereby dismissed, without prejudice to her bringing Motion to Change.

[162] The Mother’s claim for a lump sum payment of spousal support is hereby dismissed, without prejudice to her bringing a Motion to Change.

[163] Within 90 days, the Mother shall re-file her Income Tax Returns from 2013 to present in accordance with paragraph 3.3 of the Final Order of July 5, 2013, noting all monies received as spousal support paid by the Father as income to the Mother. The Respondent Father shall also re-file his Income Tax Returns as necessary due to the Mother conforming with the Final Order.

[164] If the parties cannot otherwise agree on the issue of costs, they shall each provide, in electronic format, brief written submissions of no more than 3 pages, plus bills of costs, offers to settle, and case law. The Father has 20 days from the release of this Ruling. The Mother shall have 20 days thereafter to respond, and the Father has a further 5 days after the response is served to reply, if so required.

[165] The Court shall take out the order, inserting D’s full legal name and date of birth.

Justice H. Desormeau

Released: November 4, 2021

COURT FILE NO.: FC 10-2130

DATE: 20211104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Suzanne Daleman

and

Paul Daleman

REASONS FOR JUDGMENT

Justice H. Desormeau

Released: November 4, 2021