COURT FILE NO.: FC-10-1187-2
DATE: 2022/01/12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jennifer Schultz, Applicant
-and-
Terrance Lassiter, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Katherine Cloutier, for the Applicant
Angela Livingstone, for the Respondent
HEARD: December 21, 2021 by Video Conference
ENDORSEMENT
[1] The Applicant seeks to change child support payable by the Respondent, for the support of their adult disabled child, now age 21. It is not contested that the child is permanently disabled and requires extensive care.
[2] The final hearing to determine the Applicant’s motion to change was held on December 21, 2021. The motion to change was commenced on May 15, 2019. The Applicant amended her motion to change to include health care and medical insurance if the child travels in the U.S. and annual adjustments to child support.
[3] The Respondent resides in the U.S. but he was served in Ontario.
[4] The parties married in 2007 and separated on August 18, 2009. The parties signed a separation agreement on January 8, 2010. The agreement provides for two children of the marriage. The oldest child was 17 in 2010. The youngest child, O, was 8 years old, and is the subject of the child support claimed in this motion to change.
[5] In her motion material, the Applicant provides a copy of a psychological assessment summary for O that was completed in 2011. O has a history of globally delayed development. She has been diagnosed with a rare chromosomal disorder, and a seizure disorder. In 2011, O was assessed as having a mild to moderate developmental disability. The only other medical reports that were provided were reports confirming O’s current medication (the “MyChart”, emergency visit report for May 25, 2021, and drug claim summary), and a speech-language assessment completed in 2016.
[6] The child support provisions that the Applicant seeks to change are set out in the parties’ separation agreement dated January 8, 2010, and filed with the court on May 17, 2010. This agreement requires the Respondent to pay the Applicant child support of $1,000 per month. This amount is inclusive of special expenses. The agreement refers to this child support being payable until the “children” of the marriage are no longer children of the marriage as defined under the Divorce Act. By referring to “children”, rather than “child”, it appears that the child support is payable for both children, but this is not explicitly stated in the agreement. Nor is there any other information in the agreement that explains how this child support was calculated. The agreement does not specify either parties’ incomes, any of the children’s expenses, or any other circumstances that underlay the child support agreement. Neither party provided any other evidence related to the circumstances in 2010 in their evidence filed on this motion to change.
[7] The parties subsequently divorced, but the separation agreement, filed before their divorce, continues to have effect as an order under section 35 of the Family Law Act[^1]. This is therefore a motion to vary the child support order under section 37 of the Family Law Act.
[8] The Respondent continued to pay child support of $1,000 per month to the Applicant, even after the oldest child became independent.
[9] After this motion to change was commenced, the parties consented to a final order dated August 1, 2019, for the Respondent to pay child support of $1,623 per month commencing August 1, 2019, based on his income being $195,000 per year. This consent also provided for the Respondent to maintain medical coverage for the child, and for the Applicant to provide invoices to the Respondent for extra-ordinary expenses for therapy and medical treatment, to be submitted to his insurer for reimbursement to the Applicant. The August 1, 2019 Order also provides for “the balance of the issues” to be reserved to the trial judge.
[10] The August 1, 2019 Order does not identify the balance of the issues. The Applicant’s perspective is that the outstanding issues include additional contributions to s.7 expenses, a retroactive increase in child support to January 1, 2017, and increased life insurance. The Respondent, who was unrepresented at the time of the August 1, 2019 consent, states that he thought the $1,623/m amount was “all in”. There is a dispute about whether the August 1, 2019 Order should be set aside or changed.
[11] The issues to be determined are:
Should the August 1, 2019 consent Order be set aside or changed?
If the August 1, 2019 Order is set aside or changed, has there been a change in circumstances since the 2010 agreement? If so, is the adult child entitled to child support and, if so, in what amount? What order should be made for monthly child support?
What order should be made for s.7 expenses?
Should monthly child support, or contribution to s.7 expenses, be retroactively increased to January 1, 2017?
Should the Respondent be required to secure child support with life insurance coverage of $1,000,000?
Should the Respondent be required to provide health and medical insurance coverage for the child while travelling in the U.S.?
Issue #1: Should the August 1, 2019 consent order be set aside or changed?
[12] I find that the August 1, 2019 consent order should be changed from the outset because it was not based on the child receiving ODSP income of $896 per month or a substantial portion of her expenses being covered through various programs, in particular the Passport funding. At the time that the consent order was agreed to by the Respondent, he was not aware that the child became eligible for monthly ODSP payments upon turning 18 on June 20, 2019, or that a significant amount of her expenses were covered through various programs. The Applicant does not deny that she failed to disclose this information to the Respondent at the time. These factors have a significant impact on the determination of child support – they are material facts that the Applicant did not disclose.
[13] Section 37(2.1) of the Family Law Act provides that a court may vary an order for child support, prospectively or retroactively, if the court is satisfied that there has been a change in circumstances within the meaning of the Child Support Guidelines (CSG) or that evidence not available on the previous hearing has become available. I am satisfied that the Applicant did not provide the Respondent with material evidence at the time of the August 1, 2019 consent order. The August 1, 2019 Order is changed, from the outset, on this basis.
Issue #2: If the August 1, 2019 Order is set aside or changed, has there been a material change in circumstances since the 2010 agreement? If so, is the adult child entitled to child support and, if so, in what amount? What order should be made for monthly child support?
Change in Circumstances
[14] The parties agree that there has been a change in the child’s circumstances since the 2010 agreement, that warrants a change in child support, although they disagree on date and nature of such a change.
[15] Although the Applicant states that there has also been change in circumstances since the 2010 agreement because the Respondent’s income has increased, I do not have any evidence before me about what the Respondent’s income was at the time of the 2010 agreement. Nor do I have any evidence about the other circumstances that underlay the 2010 agreement, such as the Applicant’s financial circumstances, O’s expenses, or other factors.
[16] The separation agreement provides that both parties will provide annual income disclosure to the other. The Applicant also does not contest that the Respondent provided his income information on an annual basis until 2016 or 2017. The Applicant’s evidence is that she asked for his income information after this, but it was not provided. The Respondent’s evidence is that she stopped asking for his income information. I prefer the Respondents’ evidence on this point. The Applicant’s evidence that she asked for the Respondent’s income information is vague, without any specifics such as dates or time periods, and without any supporting documentation.
[17] I have not also been provided with any evidence of what the Respondent’s income was during the period that he provided annual income information.
[18] The Respondent’s evidence, which I accept, is that the Applicant did not provide her income information annually, which is also required under the agreement.
[19] Although the Respondent has provided an updated financial statement sworn December 15, 2021, the Applicant has not. The Applicant is required to file an updated financial statement under the Family Law Rules – her financial circumstances are relevant to the determination of child support given the child is over the age of majority, and she is seeking contribution to s.7 expenses. But I do not have any information about the Applicant’s current financial circumstances except that the Respondent agrees the Applicant’s income is as set out in the Applicant’s child support calculations, bring $79,941 in 2020, $77,322 in 2019, $70,000 in 2018, and $77,322 in 2017.
Entitlement
[20] I find that O continues to be entitled to child support under section 31 of the Family Law Act. Although over 18, O is unable by reason of disability to withdraw from the charge of the Applicant, with whom she continues to reside. The Applicant has been appointed the child’s guardian under the Substitute Decisions Act[^2], pursuant to an application she made in 2019. Both parties agree that the child continues to be entitled to support.
Determining Child Support under Section 3(2) of the Child Support Guidelines
[21] For adult children, child support is determined under s.3(2) of the Child Support Guidelines. The amount of child support is the amount determined as if the child were under the age of majority (in this case, the table amount) or, “if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the conditions, means, needs and other circumstances of the child and the financial ability of each part or spouse to contribute to the support of the child.“
[22] I find that it is inappropriate to determine child support on the same basis as if the child was under the age of majority (i.e. under s.3(2)(a)). This is primarily because O., since turning 18, is entitled to a disability pension under the Ontario Disability Support Plan (ODSP). ODSP income support helps people with disabilities who are in financial need to pay for living expenses like food and housing. It also provides health benefits like drug coverage and vision care. The ODSP income provides a significant contribution to O.’s needs, although neither parent is taking the position that additional financial support is not warranted.
[23] I turn to the conditions, means, needs and other circumstances of O. and the financial ability of each part or spouse to contribute to the support of O.
Payor’s Financial Circumstances
[24] I will first address the Respondent’s income. The Respondent has provided an updated sworn financial statement and his income tax information. The Respondent’s current annual income is $114,715 in U.S. dollars. The Applicant takes the position that the Respondent’s net income (after taxes) should be converted into Canadian dollars, and then grossed up based on what gross Canadian dollar income would be needed to achieve the same net income in Canadian dollars.
[25] The Respondent agrees that his income should be adjusted due to the exchange rate and a lower tax rate, to $198,049 (2020), using an average exchange rate for 2020 of 1.34.
[26] The parties used different exchange rates to calculate the conversion rates, but the Applicant agrees to the rates used by the Respondent. I note that the evidence on exchange rates was lacking. When exchange rates are in issue, the parties either need to agree on the applicable exchange rate or provide admissible evidence to determine the issue. Such evidence needs to be more than simply a print-out from a financial institution’s internet site. The source of the information needs to be reliable. Exchange rates may vary between commercial financial institutions, including whether the rate is for purchasing or selling the requested currency. Again, the parties should strive to agree on exchange rates. The parties in this matter did so at the hearing of this motion to change.
[27] Except for the Respondent’s agreement to apply an increase to his income due to lower tax rates in the U.S., I would not have otherwise included this in his income. This is for three reasons. First, the Applicant’s evidence of the applicable tax rates in Canada and the U.S. is lacking – the Applicant asserts what the effective tax rates are, without supporting documentation. That would normally be insufficient, although in this case the Respondent did not contest this evidence.
[28] The second, more important reason, is that I would have found it necessary to also consider the “bundle of services” provided with the applicable tax rates. As an example, in this case, the Respondent’s financial statement shows that he pays yearly health insurance premiums in the U.S. of $10,356 per year ($U.S.), which would not be payable in Ontario. The Respondent’s health care premiums significantly offset the amount that the Applicant submits he pays in lower taxes.
[29] The third reason is that I would not have accepted the calculations, done through Divorcemate and without expert evidence, on what the comparable income would be for a payor in Ontario to achieve the same net income as the Respondent has in the U.S. In my view, better evidence than this is needed.
[30] The Respondent, however, agrees that his current income for child support purposes is $198,049 (2020). I will proceed on this basis although, given my comments above, this is higher than I would have otherwise ordered.
[31] Although the Respondent has agreed to this higher income for ongoing support, I do not find that he agrees to do so on a retroactive basis. This issue is commented on further in the section dealing with retroactivity.
[32] With respect to the Respondent’s other financial circumstances, the Respondent’s financial statement reports a negative net worth, with few savings and significant debt. The Respondent has life insurance coverage of $250,000 in place on his life, through his employment, which secures his child support obligation to O.
Recipients’ Financial Circumstances
[33] Although the parties agree that the Applicant’s income is as set out in her child support calculations, bring $79,941 in 2020, $77,322 in 2019, $70,000 in 2018, and $77,322 in 2017, I do not have other information about her current financial circumstances.
O’s Financial Circumstances
[34] O has received ODSP income of $896 per month since she turned 18 on June 20, 2019.
[35] Although O is now over 18, and the Applicant is appointed her guardian under the Substitute Decisions Act, I have not been provided with any tax returns filed on behalf of O. The Respondent acknowledges receiving one notice of assessment for O’s, but this assessment is also not filed in the evidence before me. I expect that in addition to her disability income, there are other tax credits and benefits available for O, such as an HST credit and disability tax credit, but evidence of these has not been provided to me. For the purpose of determining monthly child support, I have not included any other tax credits or other tax benefits available to O, other than the personal deduction.
[36] The Applicant’s evidence is that O’s daily expenses, not including room and board, and special expenses, total $646.95 per month. In addition, the cost of her medications, not covered by other plans, is $27.08 per month. These expenses total $8,088.36 per year, not including room and board.
[37] For room and board, the Applicant advises that O’s ODSP payments allocate $400 per month for room and board. I do not find this material to the determination of child support except to provide some context for determining the child’s regular day-to-day expenses.
[38] The only other information provided by the Applicant for the child’s budgeting is the management plan the Applicant filed in 2019 with her application to become O.’s guardian. In this plan, the Applicant estimates O.’s expenses as $21,180, including room and board. This figure includes after-school care, summer care and respite care totaling $10,500 per year. Within this motion, the Applicant’s position is that the childcare and respite care are s.7 expenses, so I have deducted $10,500 in special expenses from the $21,180 total, to arrive at total for “day-to-day” expenses in the management plan of $10,680, including room and board.
[39] In the Respondent’s evidence, he calculates O’s annual day-to-day expenses to total $16,173[^i]. This is higher than the amounts supported by the Applicant’s evidence. The difference, in part, is because the Respondent has assumed a higher figure of $800 per month for O.’s room and board.
[40] I accept the Respondent’s figures for O’s day-to-day expenses and that these total $16,173 per year. Of this amount, O.’s ODSP payments, totaling $10,752, cover all of the day-to-day expenses except for a shortfall of $5,421 per year.
Child Support to Cover Day-to Day Expenses
[41] I find that it is appropriate for the Respondent to pay monthly child support based on his proportionate share of the shortfall in O.’s day-to-day expenses. Based on the Respondent’s income being equivalent to $198,049 (2020) and the Applicant’s income being $79,941 (2020), the Respondent’s share is 71% or $321 per month.
[42] I do not find that there is any basis to support an award of $1,623 in child support per month, which is what the Applicant seeks based on the table amount for the Respondent’s income, in addition to contributions to special expenses. This amount greatly exceeds O.’s day-to-day expenses, even before taking into account O’s ability to contribute to her own expenses through her ODSP income. The full table amount is inappropriate.
[43] There is some suggestion in the Applicant’s motion material that the Applicant seeks a finding that child support, or a certain amount of child support, should be payable for the rest of O’s life. I am not prepared to make such a finding. It may be that at some point in the future, O will cease being entitled to child support from her parents. Other factors, such as her income, her parent’s incomes, O’s expenses, and social supports that impact expenses, may change. Child support remains variable in the event of a change in circumstances as defined under the Family Law Act and CSG.
Issue #3: What order should be made for s.7 expenses?
[44] The Applicant seeks an order requiring the Respondent to pay 75% of O.’s future s.7 expenses. O. is currently eligible for significant funding (up to $38,714 per year) to assist with additional expenses, through the Passport funding program. This Passport funding means that the Applicant is not seeking contribution to s.7 expenses for the period after O’ turned 18, but this funding may change in the future. The Applicant is not seeking an order for the Respondent to pay a specific monthly amount towards future s.7 expenses, just that he be required to contribute in proportion to his income.
[45] The Respondent does oppose contributing to additional expenses for O. He seeks an order requiring a consultation process. I find it is appropriate for the Applicant to consult with the Respondent with respect to s.7 expenses before the expenses are incurred.
[46] It is also appropriate for the Applicant to be more forthcoming with information on proposed expenses, and available funding, than she has to date. Discussion about whether a proposed expense is a proper s.7 expense must take into account the needs of the child, as well as the financial abilities of the parents.
[47] Although the Applicant did not seek an order requiring the Respondent to contribute specific amounts to future s.7 expenses, she provided evidence about her plans for future expenses. The level of information the Applicant has provided is not sufficient to inform a consultation with the Respondent on future expenses. For example:
government funding and programming is likely to change, and current information will need to be exchanged about available options to address O’s needs. The Respondent should also do his own research on what options may be available so that he can propose these to the Applicant.
options may also change depending on when the Applicant may return to work. Although the Applicant’s evidence was that she expects to return to work outside of the home in the spring of 2022, the last 18 months have proven that it is difficult to predict such events. The Applicant needs to proactively share information with the Respondent about when her work arrangements are expected to change, and how this impacts available options for O.’s care.
the Applicant states she expects to incur special items and pay for home renovations to make her home accessible for O. The cost is estimated at approximately $100,000. Although the Applicant has provided quotes for many of these items, she has not provided any medical or professional evidence on the necessity of these expenses.
both parties will need to continue to exchange information about their incomes and financial circumstances. Whether an expense is reasonable and necessary under s.7 includes considering the parties’ financial circumstances. The Respondent has given this information, to date, by providing an updated financial statement. The Applicant has not.
the Applicant needs to be more forthcoming about O.’s financials, including by providing a complete copy of O.’s income tax returns (and her own) to provide transparency on the various credits and deductions related to O.’s expenses and explaining how O.’s RDSP savings of $23,700 (reported as O.’s asset on the management plan) will be used.
Issue #4: Should monthly child support, or contribution to s.7 expenses, be retroactively increased to January 1, 2017?
[48] My decision to provide for monthly child support payments of $321 decreases the Respondent’s child support payments, subject to additional contributions for s.7 expenses. July 1, 2019 shall be the commencement date of this reduction. This is based on my finding that O. turning 18, on June 20, 2019, and becoming eligible for ODSP payments and Passport funding, was a change in circumstances that warrants child support being reduced.
[49] The Applicant seeks a retroactive increase in child support to January 1, 2017. Given my rulings above, the issue then is whether child support should be increased for the period prior to July 1, 2019, when O. turned 18, retroactive to January 1, 2017, the date sought in the Applicant’s Motion to Change.
[50] For this purpose, I have considered the Respondent’s income in 2017, 2018 and 2019. For these years, for the purpose of considering the retroactivity issue, and for the reasons set out above, I am not prepared to impute additional income to the Respondent due to applicable tax rates. The Respondent does not agree to this for previous years, and I do not find that the Applicant has met the onus on her to establish an evidentiary basis to impute additional income for a difference in tax rates.
[51] I have used the exchange rates provided in the Respondent’s material, with are the annual average exchange rates for the applicable year as published by the Bank of Canada. Applying these exchange rates to the Respondent’s U.S income, I find that the Respondent’s income for the years 2017, 2018 and 2019, for the purpose of determining retroactive child support, to be as follows:
| Year | Income in $U.S. | Exchange Rate | Income in $Cdn | Table Amount |
|---|---|---|---|---|
| 2017 | $102,643 | 1.30 | $133,436 | $1,139[^3] |
| 2018 | $103,338 | 1.30 | $134,339 | $1,181[^4] |
| 2019 | $111,483 | 1.33 | $148,272 | $1,286[^5] |
[52] The tables for a payor residing in Ontario are used because the Respondent does not reside in Canada.[^6]
[53] I have considered the principles enunciated by the Supreme Court of Canada in its recent decision of Culucci v Culucci. In particular, I have considered the following factors:
The only evidence I have of the circumstances that underlay the previous child support are the terms of the 2010 agreement. I do not have evidence of the parties’ incomes at the time of the agreement, O’s expenses or other factors. I do not know when child support was no longer payable for the oldest child. I do not know what the Respondent’s income was during the period that he provided annual income disclosure to the Applicant. I do not know the Applicant’s historical income or her financial circumstances. This limits my ability to find that there has been a change in circumstances within the meaning of the CSG since the 2010 agreement. Prior to O turning 18, the only evidence of a change in circumstances is that the table amount payable for the Respondent’s income in 2017, 2018 and 2019 is higher than $1,000 per month.
The parties were in regular contact between 2010 and 2019 and were on good terms.
The 2010 separation agreement requires both parties to provide annual income information and for child support to be reviewed and calculated on an annual basis on the first day of September, unless otherwise agreed.
The parties did not adjust the child support after the 2010 agreement was signed.
The Respondent provided his annual income information up until 2016 or 2017.
I do not have any evidence of what the Respondent’s income was during the period when he provided annual income disclosure, from 2010 to 2016 or 2017.
The Applicant did not provide her annual income information as required in the agreement.
I accept the Respondent’s evidence that the Applicant did not ask to increase the child support prior to commencing this Motion to Change on May 15, 2019.
The Applicant did not consult with the Respondent about expenses incurred for O., nor communicate with him about benefits and subsidies available for O’s expenses.
The Applicant did not request the Respondent to contribute to additional special expenses for the child prior to commencing this Motion to Change, nor provide the Respondent with the particulars of the expenses being incurred.
Although the Respondent believed the parties reconciled for a few months in 2018, this did not change their financial relationship. In particular, the Respondent continued to live in the U.S., and the Applicant and O. continued to live in Ontario.
[54] I do not find that the Applicant gave the Respondent effective notice of her request to increase child support prior to commencing this Motion to Change. I accept the Respondent’s evidence that the Applicant did not ask to increase child support prior to commencing this Motion to Change on May 15, 2019. The presumptive date to change the child support is therefore when this Motion to Change was commenced.
[55] I have discretion to adopt a date earlier than the presumptive date. I am prepared to do so, back to January 1, 2017, with respect to the table amount payable based on the Respondent’s income amounts that I have found above. This is because the separation agreement requires annual income exchange, provides that the child support is payable in accordance with the CSG, and provides for child support to be reviewed and increased annually. The parties’ actual arrangement over the years may have differed from what the agreement actually states, but I still find it is fair, just and appropriate to find that the Respondent should have known of his obligation to pay child support based on increases in his income. The Respondent knew how much he was earning, and what the exchange rate was – he had the information in his possession or available to him to know what his monthly child support obligation under the tables should be. After 2017, the Respondent did not provide his income information to the Applicant, so I do not find that he can rely on her delay in seeking an increase to avoid paying the table amount of child support based on his income, converted to Canadian dollars.
[56] I do not find that the Respondent should have known that his U.S. income was equivalent to an even higher Canadian income because of applicable tax rates. This is not an obvious conclusion, particularly given the cost of his health premiums. This is another reason why I have not imputed additional amounts to his income for tax rates when considering retroactive support.
[57] I do not find that it is appropriate to require the Respondent to pay amounts for retroactive s.7 expenses. The information about s.7 expenses that the Applicant incurred was within the Applicant’s knowledge, and she did not share this with the Respondent prior to this Motion to Change. The Applicant’s financial circumstances are also part of determining s.7 expenses and appropriate to consider on retroactivity, but she has not provided an updated financial statement.
[58] I am also not satisfied with the Applicant’s evidence of the net cost of s.7 expenses she incurred during the period from January 1, 2017, to O.’s 18th birthday. On this motion, I was not provided with the Applicant income tax returns to confirm tax benefits and credits that may be related to these expenses, such as deductions for medical expenses and the disability tax credit. The Applicant provides expenses up to December 2019, after the child turned 18 and became eligible for Passport funding, which means that it is not clear to me whether some of the expenses she claims in 2019 were eligible for Passport funding. I also accept the Respondent’s evidence that the Applicant has not been forthcoming about O’s expenses and benefits. The Applicant did not disclose that O was eligible for ODSP and Passport funding at the time of the August 2019 Order. The Applicant only disclosed that O was receiving Passport funding on January 7, 2021.
Issue #5: Should the Respondent be required to secure child support with life insurance coverage of $1,000,000?
[59] The Respondent has life insurance through his employment with coverage of $250,000. His evidence is that O is the beneficiary of this policy. The Applicant seeks an order requiring him to increase this coverage to $1,000,000. The Respondent’s position is that $250,000 should be sufficient given O’s income and benefits, that additional life insurance coverage is not available to him at a reasonable cost because of health issues, and that the Applicant should also be required to provide life insurance to secure support.
[60] Both parties have a support obligation towards O and should be required to secure this through life insurance coverage that is available to them at a reasonable cost.
[61] I do not accept the Applicant’s position that the Respondent should be required to increase his coverage to $1,000,000. This is because:
The Applicant provides no evidence that supports her assertion that such coverage should be available to the Respondent. Even if such coverage were available, it needs to be available at a reasonable cost;
I do not accept the Applicant’s evidence upon which the $1,000,000 amount is based. The Applicant relies on the Divorcemate calculations, but these are based on full table child support payable until the child turns 65[^7]. The calculations do not take into account the child’s income or other benefits. The Divorcemate calculations themselves are fairly flimsy evidence of the child’s future support needs, particularly without medical evidence as to how her needs may progress, and her life expectancy[^8], which are two crucial factors in determining her future needs.
[62] I, therefore, make the order below for the Respondent to secure his support obligation to O by maintaining life insurance coverage on his life in the amount of $250,000, as long as such coverage is available to him at a reasonable cost.
[63] Given the Applicant’s lower-income, I am ordering the Applicant to secure her support obligation to O by maintaining life insurance coverage on her life in the amount of $100,000, as long as such coverage is available to her at a reasonable cost.
[64] The Applicant seeks an order requiring the Respondent to name the Applicant as the irrevocable beneficiary of the life insurance in trust for O. Given the Applicant’s care of O, I find that this order is appropriate.
[65] The Respondent does not seek an order requiring a specific beneficiary to the Applicant’s life insurance. The order made below reflects the term sought by the Respondent. This will allow the Applicant to make appropriate arrangements for beneficiary terms through her own estate planning, possible through a Henson Trust or other estate planning tools.
Issue #6: Should the Respondent be required to provide health and medical insurance coverage for the child while travelling in the U.S.?
[66] The Applicant seeks an order requiring the Respondent to obtain health care and medical insurance for O sufficient to cover her health care costs while travelling in the U.S. The wording of the order sought by the Applicant is broad, but in her affidavit, the Applicant narrows this to be only if O travels to visit the Respondent in the U.S.
[67] The Respondent agrees to such an order. I have made the order below accordingly.
Disposition
[68] For the above reasons, I make the following orders pursuant to the Family Law Act:
The Final Order of Justice Audet dated August 1, 2019, is changed in its entirety and replaced with the order made below.
The child support provisions of the parties’ Separation Agreement, dated January 8, 2010, and filed with the court on May 17, 2010, , are changed by replacing all of the child support terms with the following:
a. Both parties continue to have an obligation to provide support for the child, O. (insert O’s full name and birthdate), pursuant to s.31 of the Family Law Act, as O. is unable by reason of disability to withdraw from the charge of the Applicant.
b. Commencing January 1, 2017, and continuing on the first day of each subsequent month until and including December 1, 2017, the Respondent shall pay child support to the Applicant for the support of O. (insert O’s full name and birthdate), of $1,139 per month. This is the table amount payable for one child for a payor residing in Ontario earning $133,436/yr. (2011 Tables)
c. Commencing January 1, 2018, and continuing on the first day of each subsequent month until and including December 1, 2018, the Respondent shall pay child support to the Applicant for the support of O. (insert O’s full name and birthdate), of $1,181 per month. This is the table amount payable for one child for a payor residing in Ontario earning $134,339/yr. (2017 Tables)
d. Commencing January 1, 2019, and continuing on the first day of each subsequent month until and including June 1, 2019, the Respondent shall pay child support to the Applicant for the support of O. (insert O’s full name and birthdate), of $1,286 per month. This is the table amount payable for one child for a payor residing in Ontario earning $148,272/yr. (2017 Tables)
e. Commencing July 1, 2019, and continuing on the first day of each subsequent month until varied by further court order or agreement of the parties, the Respondent shall pay child support to the Applicant for the support of O. (insert O’s full name and birthdate), of $321 per month. This child support is based on the Respondent’s proportionate 71% share of the shortfall in O.’s day-to-day expenses after applying her ODSP income.
f. The child support paid by the Respondent to the Applicant under the 2010 separation agreement and August 1, 2019 Order shall be credited towards the above child support payments, including future child support payments.
g. In addition, commencing January 1, 2022, the Respondent shall pay his proportionate 71% share of any additional expenses incurred for the benefit of O as proper s.7 expenses, after deducting any applicable tax credits, tax deductions, tax benefits, insurance reimbursement, or any other applicable funding. If the Applicant seeks to have the Respondent contribute to a s.7 expense, she must meaningfully consult with him about the proposed expenses, including the reasonableness and necessity of the expense taking into consideration the child’s needs and the parties’ financial circumstances. This consultation shall include the parties exchanging disclosure with respect to their financial circumstances, their incomes, the child’s income and financial circumstances, and any available funding programming, The Respondent shall not be required to contribute to an expense unless he agrees to the expense in advance of the expense being incurred, such agreement not to be unreasonably withheld.
h. The Applicant shall continue to ensure that all available funding, including O's ODSP income (currently $896.00 per month), Passport Funding, and the Assistive Device Program, is applied to O's monthly expenses.
i. On an annual basis, on or before July 1st in each year, the parties shall exchange copies of their complete income tax return as filed including schedules and attachments, and notices of assessment for the previous year, plus any other information required to determine their income under s.21 of the CSG. The Applicant shall also provide, by the same deadline, a copy of O’s complete income tax return as filed including schedules and attachments, and notices of assessment for the previous year.
j. To secure their child support obligation to O.:
The Respondent shall maintain an insurance policy on his life, with coverage of no less than $250,000, naming the Applicant as the irrevocable beneficiary in trust for O. He shall maintain this coverage for so long as O is entitled to support under the Family Law Act and such coverage is available to him at a reasonable cost.
The Applicant shall maintain an insurance policy on her life, with coverage of no less than $100,000, and make appropriate beneficiary arrangements so that this coverage is available for O’s benefit in the event of the Applicant’s death. She shall maintain this coverage for so long as O is entitled to support under the Family Law Act and such coverage is available to her at a reasonable cost.
Each party shall provide the other with proof that the above insurance and beneficiary designation is in place within 90 days of this order, and thereafter upon request, not more than once per year.
Each party shall be entitled to seek to reduce the above coverage, from time to time, taking into consideration the amount and expected duration of their support obligation to O.
k. If O travels to the U.S. to visit the Respondent, the Respondent shall be responsible for providing health care and medical insurance for O sufficient to cover her health care costs while travelling in the U.S.
Costs
[69] If the parties are unable to agree on the costs of this motion, the Respondent may file submissions concerning costs on or before February 4, 2022. The Applicant may file submissions concerning costs on or before February 11, 2022. The Respondent shall have a brief right of reply, limited to 2 pages, to be filed by February 16, 2022. Except as specified above, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
[^i]: The Respondent’s evidence of O.’s yearly expenses is:
Justice P. MacEachern
Date: January 12, 2022
COURT FILE NO.: FC-10-1187-2
DATE: 2022/01/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jennifer Schultz, Applicant
-and-
Terrance Lassiter, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Katherine Cloutier, for the Applicant
Angela Livingstone, for the Respondent
ENDORSEMENT
Justice P. MacEachern
Released: January 12, 2022
[^1]: Pursuant to Family Law Act, s.36 [^2]: That the Applicant was appointed under the Substitute Decisions Act is not contested. Although I was not provided with a copy of the order appointing her, and I was not provided with evidence as to whether she is appointed as guardian of the person and/or of property for O. [^3]: Table amount payable for one child for a payor in Ontario using Dec. 31, 2011 tables [^4]: Table amount payable for one child for a payor in Ontario using Nov. 22, 2017 tables [^5]: Table amount payable for one child for a payor in Ontario using Nov. 22, 2017 tables [^6]: Section 20, CSG [^7]: The Applicant’s Divorcemate calculations show that the Respondent’s age is entered as zero, and the life insurance calculation is based on child support being payable until the age of 65. [^8]: The Applicant did provided evidence upon which to conclude that O’s health is deteriorating but I did not have any evidence of her life expectancy, nor medical evidence (other than the dated reports referenced herein) supporting her current and future needs.