COURT FILE NO.: FC1346/18
DATE: May 18, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
A.W.
Applicant
- and -
J.A.G.
Respondent
Counsel: R. Jonathan McKinnon, for the Applicant J.A.G., in person by Zoom, for the Respondent
HEARD: May 12, 13, 2022
TOBIN J.
The Case
[1] The applicant asks that his obligation to pay child support for his two children end and that he owe no arrears of child support.
[2] The respondent opposes this request. She asks that child support for the parties’ younger child continue because, even though he is an adult, he remains a child of the marriage. She also asks for a retroactive variation of child support.
Facts
[3] The applicant (“father”) and the respondent (“mother”) married on […] 1994.
[4] The parties are the parents of two children: N.A.W., born […] 1997 (“N.”); and J.D.W., born […] 1999 (“J.”).
[5] The parties were divorced by divorce judgment granted November 7, 2000. Corollary relief was addressed at a later date.
[6] On February 28, 2001, O’Connor J. granted an order based on a separation agreement the parties executed on February 21, 2001 (the O’Connor order). It provided, in part, as follows:
The father was to pay interim child support for the two children in the amount of $622 per month.
Child support was to be paid until a child became 19 years of age and ceased to attend fulltime in an educational institution.
[7] Though the O’Connor order refers to interim support, it appears the parties treated the order as a final one.
[8] The O’Connor order was varied by the final order of Seppi J. dated June 6, 2011 (the Seppi order). This order provided, with respect to child support, that the father pay $1,049 per month for the two children.
[9] In September 2016, N. attended university in Toronto for a year. After the 2016 academic year, he attended for post-secondary education at an institution in North Bay. He returned to the mother’s home four months each summer in 2017 and 2018. In the summer of 2019, N. resided with the father. N. graduated in April 2020. He then moved to Hamilton, where he found work and continues to reside.
[10] J. graduated from high school in June 2018. He has not attended post-secondary education. In 2020, J. was employed and had an income of $20,900. In 2021, he was employed at a job that paid him $20 per hour. On his November 5, 2021 paystub, it shows that he had gross income of $14,191.90. Regarding his 2022 income, the mother’s evidence is that J. is now in receipt of Employment Insurance benefits.
[11] In addition to this income, J. is sometimes employed to provide foster child respite care for the same entity the mother provides foster care.
[12] Throughout, J. has and continues to live with the mother in her home.
[13] The mother’s evidence is that J. was diagnosed with a number of conditions: attention deficit hyperactivity disorder; attention deficit disorder; oppositional defiant disorder; compulsive disorder; and a learning disability. She states that these conditions prevent J. from being self-sufficient. According to the mother, he is unable to make informed decisions and he has “no motivation to do for himself.”
[14] The mother also described J. as having no friends, low self-esteem and anger problems.
[15] The father describes J. as healthy. He does weightlifting at the gym and is physically fit. The father describes the child as “a little bit withdrawn.” According to the father, J.’s problem is that he will not put in the effort to learn a skill.
[16] No medical or other reports concerning J.’s conditions and employability were provided.
[17] The father’s line 150 income has been as follows:
2016: $70,323 2017: $79,856 2018: $85,868 2019: $82,649 2020: $75,464
Father’s Position
[18] The father claims that child support for J. terminated in June 2018 when he graduated from high school.
[19] Regarding N., the father claims that, after August 2016, his obligation to pay child support for him was limited to the four summer months of 2017 and 2018.
Mother’s Position
[20] The mother’s position regarding N. is that the father’s child support obligation ended in September 2016.[^1]
[21] Regarding J., she claims that child support should be ongoing because he is unable to withdraw from her charge by reason of his disabilities. She asks that child support be recalculated based upon the father’s income.
Discussion and Legal Considerations
[22] The father’s request to vary is based upon Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) s. 17(1)(a), which allows the court to vary or rescind a support order prospectively or retroactively.
[23] Before an existing order can be varied, the court must be satisfied that a change in circumstances has occurred since the order sought to be varied was made: Divorce Act s. 17(4).
[24] The Federal Child Support Guidelines, SOR/97-175 s. 14 provide that a change in circumstances is one which would result in a different child support order.
[25] Once a change in circumstances has been found, the court making a child support variation must do so in accordance with the Child Support Guidelines.
[26] In this case, there has been a change in circumstances based upon a change in the father’s income. As well, there has been a change because of N. having completed his post-secondary education and attaining the age of majority.
[27] The central issue raised by the parties in this case is whether J. remains a child of the marriage as that term is defined in the Divorce Act as follows:
child of the marriage means a child of two spouses or former spouses who, at the material time,
(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 necessaries of life …
[28] The mother claims he is a child over the age of majority who is unable to withdraw from her charge due to his disabilities: Divorce Act s. 2(1).
[29] The burden of proof, on the balance of probabilities, that J. is unable to withdraw from her charge and therefore is entitled to child support, lies with the mother: Beach v. Tolstoy, 2015 ONSC 7248, at para. 32.
[30] J. is over the age of majority. The evidence is clear he remains under the “charge” of the mother.
[31] In Thompson v. Ducharme (2004), 2004 MBCA 42, 237 D.L.R. (4th) 596 (Man. C.A.), Kroft J.A. said, at para. 14:
[W]hile the meaning of "charge" has some uncertainty, the act of withdrawing from the "charge" of a parent is an act performed by the child. The word "charge" may be somewhat ambiguous, but I am quite sure that as used in s. 2(1) of the Act, it is intended to be an economic term. To be in the charge of a parent means, as s. 15.1 says, that a parent pays for the support of the child. That means care.
[32] The mother argues that J. remains entitled to child support because he is “unable, by reason of … disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
[33] In this case, the mother identified a number of conditions that affect J. The court was not provided with any medical or other reports that addressed this claim. The mother said that she sent reports to the court last fall, however, no reports were found in the OneDrive or the court’s paper file. The mother provided the court with a doctor’s note concerning J. that was dated January 2015. After doing so, she stated she did not want it considered as an exhibit. Even if it had been admitted in evidence, it is not clear a seven-year-old doctor’s note would be of much probative value in relation to the issues before the court today. The mother did not try to file any other reports in evidence during the trial. She was given the opportunity to do so.
[34] There is no evidence that the child has applied for any government disability benefits.
[35] Since graduating from high school, J. was able to find employment.
[36] At this time, he is in receipt of Employment Insurance benefits. In order to be eligible to receive these benefits, some of the requirements are: a person had to have been employed; lost their job through no fault of their own; are ready, willing and capable of working each day; and are actively looking for work.[^2]
[37] No evidence was provided which explained why J.’s jobs ended.
[38] The mother’s evidence was that J. worked so that he could save enough money to pay for dental work he wanted undertaken.
[39] I accept the mother’s description of J.’s personality and his apparent lack of motivation. His lack of motivation was also recognized by the father.
[40] It is not evident that this lack of motivation is rooted in a disability or illness that prevents J. from withdrawing from the mother’s charge. He was motivated so that he could pay for dental work he wanted. He successfully obtained employment.
[41] I find that the mother has not sufficiently established on the evidence before the court that J. has a disability or illness that prevents him from withdrawing from the charge of his parents.
[42] In these circumstances, I find that the father’s obligation to support J. ended on December 31, 2018. The additional time he was entitled to child support after graduating from high school was to recognize that some time is needed to transition from school to employment.
[43] Based on these findings, a calculation of the child support that should have been paid by the father can be made.
[44] The Family Responsibility Office’s record of support payments paid shows that, as of December 31, 2015, the father was not in arrears of support.
[45] The calculation of child support (arrears)/over-payment is as follows. The calculation is based upon the father’s income, the children entitled to child support as found by this court and the Family Responsibility Office’s record of support payments paid:
2016 father’s income: $70,323[^3] 8 months, 2 children: $1,041 per month 4 months, 1 child: $642 per month total child support due: $10,896 total child support paid: $12,588 overpayment: $1,692
2017 father’s income: $79,856[^4] 8 months, 1 child: $724 per month = $5,792 4 months, 2 children: $1,170 per month = $4,680 total child support due: $10,472 total child support paid: $12,193.10 overpayment: $1,721.10
2018 father’s income: $85,868[^5] 8 months, 1 child: $800 per month 4 months, 2 children: $1,296 per month total child support due: $11,584 total child support paid: $6,736.59 arrears: ($4,847.41)
[46] The arrears of child support owing by the father to the mother to December 31, 2018 are $1,370. If I have erred in my calculation, I ask Mr. McKinnon and Ms. G. to provide corrected calculations through the trial coordination office.
Order
[47] Accordingly, an order shall go as follows:
The applicant’s obligation to pay child support for the child, N., ended August 31, 2018.
The applicant’s obligation to pay child support for the child, J., ended December 31, 2018.
The applicant’s arrears of child support to December 31, 2018 are fixed in the amount of $1,370.
The applicant’s obligation to pay ongoing child support under the order of Seppi J. dated June 6, 2011 is terminated effective December 31, 2018.
The balance of claims made by each of the parties in their pleadings are hereby dismissed.
Costs
[48] If the parties are unable to resolve the issue of costs, the father may make written submissions within ten days of the release of these reasons. The mother shall have ten days after the receipt of the mother’s submissions to respond. The submissions shall be no more than 3 pages, double-spaced and a minimum of 12-point font, together with a bill of costs and any offers to settle.
“Justice B. Tobin”
Justice B. Tobin
Released: May 18, 2022
[^1]: In these reasons, I find that the father’s position that he was obliged to pay child support for N. is the proper one. The mother should not be prevented from receiving the benefit of the support that was properly due. [^2]: Eligibility requirements from Employment and Social Development Canada EI Regular Benefits - Do you qualify - Canada.ca. [^3]: Child support calculated using the 2011 child support table. [^4]: Child support calculated using the 2011 child support table. [^5]: Child support calculated using the 2017 child support table.