Court File and Parties
Court File No.: FS-21-98AP Date: 2022-03-17 Ontario Superior Court of Justice
Between: Brenda Desrochers, Applicant (Respondent on Appeal) – and – Rick Smith, Respondent (Appellant on Appeal)
Counsel: Serge Treherne, for the Applicant (Respondent on Appeal) Trent Falldien, for the Respondent (Appellant on Appeal)
Heard: March 7, 2022
Decision on Appeal
r.d. gordon j.
Overview
[1] On consideration of a motion to change brought by Ms. Desrochers in the Ontario Court of Justice, it was determined that Mr. Smith owed arrears of child support amounting to $13,032.78. He appeals that decision.
Factual Background
[2] The parties have a lengthy history of family litigation surrounding the care and support of their child Chelsea who was born on November 2, 1999.
[3] A final order was made on May 2, 2012, by Justice McLeod of the Ontario Court of Justice requiring Mr. Smith to pay child support to Ms. Desrochers in the amount of $415 per month beginning on January 1, 2010.
[4] By way of a motion to change filed on January 4, 2019, Ms. Desrochers sought a retrospective variation of that order alleging changes in Mr. Smith’s income. She also claimed he should pay $3,000 towards expenses incurred for Chelsea’s braces.
[5] Mr. Smith countered by seeking termination of his child support effective June 30, 2018, the date Chelsea would have finished high school.
[6] At the hearing, Ms. Desrochers conceded that child support should terminate on May 1, 2020, the date Chelsea finished an educational program at Modern College. However, Mr. Smith remained steadfast in his view that Ms. Desrochers did not provide sufficient evidence of the child’s academic pursuits or living arrangements to establish her continued entitlement to support beyond the end of high school.
[7] The court found that Chelsea had been pursuing her education and remained dependent upon her mother until she completed school on May 1, 2020. Arrears of child support were calculated by applying the child support guidelines to Mr. Smith’s reported income and determining the balance outstanding.
[8] Mr. Smith has brought this appeal, maintaining that the judge erred in finding that the child was entitled to child support after she had completed high school.
Standard of Review
[9] The standard of review is prescribed in Housen v. Nikolaisen, 2002 SCC 33. On questions of law the standard of review is correctness. On questions of fact, the standard of review is palpable and overriding error. Questions of mixed fact and law lie along a spectrum. If there is a clear and extricable legal question, the standard of review is correctness. If the question involves the application of a legal standard to a set of facts, the standard of review is palpable and overriding error.
[10] It is an error of law to make a finding of fact for which there is no supporting evidence [See R v. J.M.H., 2011 SCC 45].
The Applicable Law
[11] Mr. Smith’s obligation to support his daughter was governed, in this case, by section 31(1) of the Family Law Act:
31(1) Every parent has an obligation to provide support, to the extent that the parent of capable of doing so, for his or her unmarried child who,
(a) Is a minor,
(b) Is enrolled in a full-time program of education; or
(c) Is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
[12] For the period at issue, Chelsea was not a minor. Nor did Ms. Desrochers suggest as part of her case that Chelsea was unable to withdraw from her charge by reason of illness, disability or other cause. Accordingly, the question was whether Chelsea was enrolled in a full-time program of education.
[13] The word “enrolled” signals that the child support obligation exists not only while the child is actually participating in the program but also during those periods of time the child is enrolled but school is not in session. Accordingly, a child who is enrolled in a full-time program of education is typically entitled to support during the summer months, over Christmas holidays, and during school breaks and other holidays notwithstanding that he or she may not be in actual attendance at school during those periods of time.
[14] Given that Mr. Smith would not concede that Chelsea was enrolled in a full-time program of education after she completed high school, the onus was on Ms. Desrochers to prove to the court on a balance of probabilities that Chelsea was so enrolled.
Analysis
[15] The hearing in the Ontario Court of Justice proceeded on affidavit evidence. Although each party was given the right to cross-examine the other, neither did so.
[16] With respect to Chelsea’s enrollment in school, Ms. Desrochers’ full evidence was contained in her affidavit dated February 20, 2020, as follows:
Our daughter is currently attending post secondary school. She was previously attending Cambrian College, which she attended from January 2019 to April 2019.
Attached as Exhibit “A” is a copy of the Academic Transcript.
She has been attending Modern College since August 2019. She is in the Esthetics Program and she will be finished in April.
She felt she had to switch colleges because she was uncomfortable as the Respondent works at Cambrian College and his stepson attends school there.
She does not have a relationship with her father and was afraid of running into him. The stepson has followed Chelsea around the college and on one occasion followed her home. She has also seen the Respondent driving by our home. He has no reason to be in that area.
Chelsea began attending Cambrian College in January 2019, but could no longer attend as her fear of seeing her father overwhelmed her. Richard and his partner’s son frequently followed her off campus and she would see them on our street.
Chelsea is currently attending Modern College and continues to progress despite her struggles with self-esteem…
[17] The transcript from Cambrian College was not an official transcript but showed that Chelsea was enrolled at Cambrian College for the winter semester beginning in January. No independent evidence was filed by Ms. Desrochers with respect to Chelsea’s attendance at Modern College.
[18] Prior to and throughout these court proceedings Mr. Smith requested details of Chelsea’s schooling and living arrangements. There is no evidence that he was provided with anything more than what is noted above. He was unable to secure the evidence on his own as Chelsea was 18 years of age and did not provide the necessary consents for him to do so.
[19] In his opening statement, filed in advance of the hearing in accordance with the endorsement of Justice Mendes, Mr. Smith made clear his position that Ms. Desrochers had not provided sufficient evidence to support her claim for child support, particularly in regard to the academic status and living arrangements of the child.
[20] In his decision, Justice Guay acknowledged that the evidence with respect to Chelsea’s education was scarce, but indicated he was satisfied she was involved in the programs at Cambrian College and Modern College and that any lack of success was due to a combination of her intellectual deficits and her emotional instability. He found that the efforts Chelsea made were “genuine and certainly qualified her for continuing support from her father, at least until the agreed upon support termination date of May 1, 2020.”
[21] Mr. Smith argues there was no evidence to support the court’s conclusion that Chelsea was in school during the contested periods, and it was therefore an error in law to have so found.
[22] I agree in part.
[23] The affidavit of Ms. Desrochers contained her evidence that Chelsea attended Cambrian College from January to April of 2019 and was attending Modern College from August of 2019 through to April of 2020. There were transcripts (albeit unofficial) of Chelsea’s attendance at Cambrian College. Although there could certainly have been more definitive evidence before the court, it cannot be said there was none. There having been evidence that she was in school and no evidence to the contrary, the judge’s finding that she was enrolled in a full-time program of education during those times cannot be said to be a palpable and overriding error.
[24] However, for the periods of July 1, 2018, to December 31, 2018, and May 1, 2019, to August 1, 2019, there is little to suggest that Chelsea was enrolled in a full-time program of education.
[25] There was no evidence of when Chelsea applied to Cambrian College, when she was accepted, why she did not begin attending in the fall of 2018 and what she was doing between the completion of high school and the beginning of her college term in January of 2019. Accordingly, there was no evidence of her enrollment at Cambrian College prior to January 1, 2019, that would obligate the Appellant to support her. It was an error of law to so find.
[26] Similarly, there was no evidence of when Chelsea applied to Modern College or when she was accepted. There is no evidence of what she was doing between April and August of 2019. Without evidence of her enrollment there was no basis upon which to find the Appellant responsible for her support during that period. It was an error of law to so find.
[27] It is incumbent upon the parties, with the assistance of counsel, to put before the court the evidence they say entitles them to the relief requested. When they fail to do so, the court cannot bridge that gap for them. Although common sense tells us it is quite likely Chelsea was enrolled in her college programs for some period of time before her actual attendance at them, the complete and utter lack of evidence to establish when, leaves the court without the ability to make that finding.
Conclusion
[28] The result is that the arrears found to be owing by Mr. Smith were overstated. For the year 2018, he ought to have paid $925.45 from January 1 to June 30 for a total of $5,546.70. He actually paid all 12 months at $415 per month for a total of $4,980. Accordingly, he underpaid by $566 for that year.
[29] For the year 2019 Mr. Smith ought to have paid for 9 months at the rate of $966.48 for a total of $8,698.32. He actually paid all 12 months at $415 per month for a total of $4,980. Accordingly, he underpaid by $3,718.32 for that year.
[30] The arrears/credits owing for the remaining years are as found by Justice Guay. Accounting for these changes, the arrears properly owing by Mr. Smith amount not to $13,032.78 but to $4,564.82.
[31] The appeal is allowed and the arrears owing by the Appellant are reduced accordingly. If the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.
The Honourable Mr. Justice Robbie D. Gordon Released: March 17, 2022