COURT FILE NO.: FS-19-13193
DATE: 20211109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRUCE ALAN PENNINGTON
Applicant
– and –
MICHELE SANDRA PENNINGTON
Respondent
James B.C. Edney and Aly Virani, for the Applicant
Harold Albrecht, for the Respondent
HEARD: October 28, 2021
ENDORSEMENT
P.J. Monahan J.
[1] The Respondent, Michele Sandra Pennington (“Michele”), seeks leave pursuant to Rule 11 (3) of the Family Law Rules (the “Rules”) to file an amended Answer. The Applicant, Bruce Alan Pennington (“Bruce”), opposes the motion.
[2] At the conclusion of the oral argument on October 28, 2021, I granted the relief sought by Michele with written reasons to follow. These are my reasons.
Background Facts
[3] The parties were married on August 22, 2002 and separated on March 31, 2010. The parties did not have any children together. However, Michele was previously married and has a daughter from that prior relationship, NRL, who was born in May 1995.
[4] On the date of their marriage, the parties executed a marriage contract (the “Marriage Contract”) which provided, inter alia, that NRL would remain the sole financial responsibility of Michele. Shortly after their separation, the parties entered into a separation agreement (the “Separation Agreement”) dealing with a variety of issues, including provisions stating that Michele would have full care and control of NRL and that neither party would have an obligation to pay child support to the other for NRL.
[5] In March 2019 counsel for Michele wrote to Bruce seeking to renegotiate provisions of the Separation Agreement dealing with payment of spousal support. In the subsequent months, the parties exchanged various proposals with respect to the issue of spousal support but were unable to come to a resolution.
[6] On October 17, 2019, Bruce issued an Application seeking an order terminating his obligation to pay spousal support to Michele. On December 4, 2019, Michele issued her Answer (the “Initial Answer”), in which she sought an increase in the amount and duration of spousal support due to material changes in circumstance since the date of Separation Agreement. The Initial Answer did not make any claims for child support for NRL.
[7] In May 2020, Michele retained new counsel. A case conference brief filed by Michele for a June 23, 2020 case conference (the “June 23, 2020 Case Conference Brief”), advised that she intended to amend her Initial Answer to seek orders that both the Marriage Contract and the Separation Agreement be set aside. The June 23, 2020 Case Conference Brief further advised that Michele’s amended answer would seek an order that Bruce stood in loco parentis to NRL and that, accordingly, Bruce was liable to pay ongoing and retroactive child support for NRL commencing January 1, 2012.
[8] On July 23, 2020, Michele’s counsel provided Bruce’s counsel with a draft amended answer and sought Bruce’s consent for the amendment. On August 12, 2020, Bruce’s counsel advised that Bruce did not consent to the amended answer on the basis that the proposed amendment, specifically in relation to retroactive and ongoing child support for NRL, was “untenable/unmeritorious at law, does not plead a reasonable cause of action and is barred by operation of law.” In subsequent correspondence in September 2020, Bruce’s counsel advised that his position was that at no point had he stood in loco parentis to NRL and that the Marriage Contract and Separation Agreement are valid, binding and enforceable domestic contracts upon which Bruce had relied.
[9] On December 23, 2020, Michele provided a revised draft amended answer providing more particulars with respect to NRL and her relationship with Bruce. On January 14, 2021, Bruce indicated that he did not consent to the revised draft amended answer and advised that a motion would be required to address the proposed amendment of Michele’s Initial Answer. Bruce also proposed that each party file affidavits and that questioning take place prior to the argument of the motion to amend.
[10] On March 15, 2021, Michele provided a further revised draft amended answer (the “Further Draft Amended Answer”) setting out additional particulars of the material facts upon which she relied in support of her claims for relief. The Further Draft Amended Answer is 40 pages long and contains 154 paragraphs outlining the claims of the Respondent. On March 17, 2021, Bruce’s counsel refused to consent to the filing of the Further Draft Amended Answer.
Positions of the Parties
[11] Michele seeks leave to file the Further Draft Amended Answer on the basis of Rule 11 (3), which provides that the court “shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.” Michele points out that the Rule requires the court to permit the amendment absent a showing of prejudice or disadvantage that cannot be cured by either an award of costs to the granting of an adjournment or both. In this case, Bruce has not pointed to any disadvantage or prejudice that he would suffer if the Further Draft Amended Answer were to be accepted. Instead, Michele submits that Bruce is simply seeking to dispute the facts pleaded regarding NRL’s status as a child of the marriage. However, on a motion to amend an Answer the court is required to assume the facts as pleaded to be true. The issue of whether or not NRL is a child of the marriage and entitled to child support is a factual question for trial and does not provide a basis for refusing the proposed amendment.
[12] Bruce argues that recent jurisprudence regarding Rule 11 (3) has made it clear that the court will not be required to allow an amendment where the proposed amendment is untenable at law, regardless of whether the opposing party can be compensated by costs or an adjournment. In his submission, any claim for retroactive and ongoing child support for NRL is untenable in law and has no reasonable prospect of success because NRL is an independent adult who has completed two postsecondary degrees and is now working full-time earning a salary of approximately $68,000 per year. He argues that it is settled law that original orders for retroactive child support under the Divorce Act[^1] can only be made while the child is still considered a “child of the marriage”. Because it is plain and obvious that NRL is no longer a child of the marriage, Michele’s proposed amendments seeking to raise issues of retroactive and ongoing child support for NRL are legally untenable and should be refused. Bruce argues that this result is consistent with the philosophy of active case management in family law litigation, which is designed to weed out unmeritorious claims at an early stage of the litigation in order to save the parties time and money.
Relevant Legal Principles
[13] As noted above, Bruce does not allege that Michele’s proposed amendments seeking retroactive and ongoing child support for NRL would cause him prejudice or disadvantage, as those terms have been interpreted in the context of Rule 11 (3). Rather, he resists the amendments on the basis that the claims for child support for NRL are untenable in law because NRL is no longer a “child of the marriage.”
[14] The relevant principles applicable in determining whether a proposed amendment to a pleading raises a reasonable claim or defence in law are well established, and have recently been summarized by Chappel J. in Smith v. Smith as follows:[^2]
a. the amendment must be granted unless it is “plain and obvious” that it discloses no reasonable claim or defence in law;
b. the court must assume the facts relied on for the proposed amendment to be true unless patently ridiculous or incapable of proof and the only question is whether they disclose a reasonable cause of action;
c. it is not necessary for the moving party to tender evidence to support the claims, or for the court to consider whether they would be able to prove the amended claim;
d. the court should construe the proposed amendment generously and overlook inadequacies that are merely the result of drafting deficiencies;
e. proposed amendment should not be denied as being legally untenable solely on the basis that they raise novel issues or questions of law that are not yet fully settled. Parties should be permitted to advance reasonable novel claims without fear of having them shut down at the pleading stage.
[15] This approach to Rule s. 11 (3) tends to favour the acceptance of amended pleadings, thereby avoiding costly and time-consuming disputes over pleadings which ultimately have the effect of limiting access to the courts.[^3] It is for this reason that, absent evidence of disadvantage to the opposing party that cannot be remedied through costs or an adjournment, Rule 11 (3) directs court to allow parties to amend their pleadings.
[16] Bruce’s specific objection to the amended pleading in this case is that the claim for retroactive child support for NRL is “untenable in law” because NRL is no longer a “child of the marriage”. It is therefore necessary to briefly review the legal principles relevant to this issue.
[17] Section 2 (1) of the Divorce Act defines a “child of the marriage” as follows:
a child of two spouses or former spouses, who, at the material time,
(a) is under the age of majority and who is not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessary necessaries of life. (emphasis added)
[18] In DBS v. SRG,[^4] the Supreme Court of Canada determined that the “material time” for purposes of seeking retroactive child support awards is the time at which the application is made. In other words, DBS holds that courts have jurisdiction to make original orders for child support only where, at the time of the application, the child beneficiary is still a “child of the marriage”. The Supreme Court observed that limiting jurisdiction to make child support orders in this manner reflects the principle that adults (i.e. those over the age of majority and not dependent) are not the type of persons for whom Parliament envisaged child support orders being made. In the Court’s view, child support is for children of the marriage, not adults who used to have that status.
[19] In its recent decision in Michel v. Graydon,[^5] the Supreme Court expressed a willingness to reconsider this aspect of DBS. In her concurring judgement in Michel v. Graydon, Martin J. expressed the view that the “jurisdictional bar” on original orders for child support established by DBS has led to divided and confused jurisprudence and undermined the Divorce Act’s objectives of clarity, certainty and consistency. In Martin J.’s view, the “deleterious effects on access to justice and the relationship between child support underpayment and poverty canvassed above reveal the profound unfairness visited upon children and their custodians by this bar.”[^6]
[20] The majority judgement of Brown J. recognized that unjust results can flow from imposing impediments that prevent otherwise deserving parents from seeking retroactive child support. He therefore agreed with Martin J. that the Court’s interpretation in DBS of the “material time” for purposes of determining jurisdiction to order retroactive child support under the Divorce Act might merit reconsideration.[^7] However Brown J. was also the view that deliberations on this issue would benefit from fulsome submissions directly on point. Because the appeal in Michel v. Graydon could be decided on the basis of provincial legislation alone, Brown J. found it unnecessary to undertake any such reconsideration of DBS at this time.
[21] In the result, while the jurisdictional limitation on ordering retroactive child support for adult children established in DBS has by no means been overruled, all nine judges of the Supreme Court of Canada have expressed doubts over the correctness of the limitation and indicated an openness to reconsidering the issue. Thus, in light of Michel and Graydon, there are now serious questions as to whether DBS’s holding that child support can only be ordered for support beneficiaries who are still “children of the marriage” remains settled law.
Analysis
a. The Further Draft Amended Answer pleads facts that, if proven at trial, would support a finding that NRL continued to be a child of the marriage at the time that notice of the intention to amend the Initial Answer was provided
[22] Michele provided notice of her intention to amend the Initial Answer to include a claim for retroactive and ongoing child support for NRL in the June 23, 2020 Case Conference Brief. Although an actual draft of the proposed amended answer was not provided until July 2020, I find that the date of effective notice of her intention to seek an amendment, namely, June 23, 2020, constitutes the “material time” as that term is defined in DBS.
[23] Assuming, arguendo, that DBS remains good law, the Further Draft Amended Answer pleads detailed facts which could support a finding that, as of the “material time” (June 23, 2020), NRL had been and continued to be a “child of the marriage”. In particular, the Further Draft Amended Answer claims that Bruce stood in the place of a parent to NRL and demonstrated a settled intention to treat her as a member of his family from the time NRL was 3 years old. As for the fact that by June of 2020 NRL was then 25 years old, the Further Draft Amended Answer pleads that although NRL graduated from McGill University with a Master’s degree in Neuroscience in October 2019, she continued to live with Michele and was studying for the Medical College Admission Test (“MCAT”) while also working part-time for a retail store. NRL is said to have written the MCAT in July 2020 and, in the fall of 2020, applied to several medical schools in Canada, the United States and the United Kingdom. The Further Draft Amended Answer further states that in early 2021, NRL was interviewed for admission by Queens University’s School of Medicine and received an acceptance to a School of Medicine in Ireland for the school year commencing in the fall of 2021.
[24] As set out above, 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 fact that an adult child is undertaking educational studies may constitute “other cause” within the meaning of the Divorce Act. Courts have also found that a child taking a brief hiatus from an educational program may nonetheless remain a child of the marriage.[^8] Similarly, courts have held that a child may require a modest transition period after completing an educational program in order to or prepare for further educational studies or search for employment.[^9]
[25] The determination of whether a child who is over the age of majority remains a “child of the marriage” is a fact-driven exercise. The facts pleaded in the Further Draft Amended Answer, which must be taken to be true for purposes of this motion, provides a basis upon which a court could so find in respect of NRL as of the “material time”, namely, June 23, 2020.
[26] Bruce has filed a detailed affidavit denying that he even stood in the place of a parent to NRL. He also states that as of July 2021, NRL was working full-time and living with her partner in Toronto. (Bruce makes no claims with respect to NRL’s activities or relationship with the parties as of the material time of June 23, 2020.) Bruce claims that based on the facts set out in his July 2021 affidavit, it is evident that Michele’s claim for retroactive and ongoing child support for NRL is “not tenable in law and has no reasonable prospect of success.”
[27] In effect, Bruce is attempting to convert this pleadings motion into a motion for summary judgement by challenging the facts as pleaded in the Further Draft Amended Answer. Bruce is arguing that Michele’s claim for retroactive and ongoing child support is not “tenable in law” because the facts upon which her claim is based are wrong.
[28] The obvious difficulty with Bruce’s argument is that he is required to accept the facts as pleaded in the Further Draft Amended Answer as true. The facts as pleaded are not patently ridiculous or incapable of proof, nor is Michele required to show that she will be able to establish those facts at trial. The claim for retroactive and ongoing child support may or may not succeed at trial, but it is not “certain to fail”.
[29] It should also be pointed out that, far from saving time and expense as Bruce has claimed, his attempt to convert this pleadings motion into a motion for summary judgement has had precisely the opposite effect. Michele signalled her intention to amend her Initial Answer in June 2020. Bruce’s refusal to consent to the amendment has resulted in the case remaining stalled at the pleadings stage for over 16 months and, in the process, the parties have collectively spent over $100,000 litigating this preliminary issue. This is the very waste of time and money that Rule 11 (3) is designed to avoid -- and which the “primary objective” in Rule 2 (2) cautions the court and parties against.
[30] I therefore find that Bruce’s objections to the amendment are unfounded and Michele is entitled to serve and file the Further Draft Amended Answer.
b. Even if it were clear that NRL was not a “child of the marriage” as of June 23, 2020, the Further Draft Amended Answer should still be accepted
[31] As discussed above, the Supreme Court of Canada in Michel v. Graydon has called into question the correctness of DBS’s requirement that a support recipient be a “child of the marriage” as of the date of the application. It is well established that a proposed pleadings amendment should not be denied as being legally untenable solely on the basis that it raises a question of law that is not fully settled. Given the uncertainty in the law on this issue, even if it were clear that NRL was no longer a “child of the marriage” as of the date of effective notice of the proposed amendment (June 23, 2020), it would still not have been appropriate to deny Michele leave to amend her pleadings to raise a claim for retroactive and ongoing child support for NRL. The determination of NRL’s entitlement, if any, to child support should be made at trial with the benefit of a full factual record.
Disposition
[32] Michele’s motion is granted and she is given leave to serve and file the Further Draft Amended Answer.
[33] At the conclusion of the oral argument, I encouraged the parties to attempt to resolve the issue of costs between themselves. In the event that they are unable to do so by Friday, November 12, 2021, they may each serve and file written costs submissions of no more than 2 pages, not including Bills of Costs or Offers to Settle.
P. J. Monahan J.
Released: November 9, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRUCE ALAN PENNINGTON
Applicant
– and –
MICHELE SANDRA PENNINGTON
Respondent
ENDORSEMENT
P.J. Monahan J.
Released: November 9, 2021
[^1]: RSC 1985, c. 3 (2nd Supp.).
[^2]: Smith v. Smith, 2021 ONSC 1990, at para 22.
[^3]: Spar Roofing and Metal Supplies Limited v. Glynn, 2016 ONCA 296, at paras 35-36.
[^4]: 2006 SCC 37, [2006] 2 SCR 231 ("DBS"), at paras 88 to 89.
[^5]: 2020 SCC 24 ("Michel v. Graydon").
[^6]: Chief Justice Wagner concurred with Martin J., while Abella and Karakatsanis JJ. agreed both with the “excellent reasons” of Brown J., and with Martin J., whose reasons added “some important policy considerations.”
[^7]: See Michel v. Graydon, paras 12 to 14.
[^8]: Musgrave v. Musgrave, 2013 ONSC 7481, at paras 38-39.
[^9]: Hoskins v. Magee, 2021 ONSC 6319, at paras 22-25.