Punit v. Punit, 2022 ONSC 4641
COURT FILE NO.: FS-11-374568
DATE: 20220812
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hemwattie Sandy Punit
Applicant
– and –
Raj Komar Punit
Respondent
Christina Hinds, for the Applicant
Rono Baijnath, for the Respondent
HEARD: January 6 and April 14, 2022 and in writing
PINTO J.
REASONS FOR DECISION
Overview
[1] The parties each bring their own motion in respect of child and spousal support. The applicant mother submits that the respondent father owes her net arrears for the combination of child support, spousal support and section 7 expenses. The respondent father moves to terminate or vary child support and spousal support.
[2] The applicant brought a motion dated March 10, 2021 for the following:
(a) An order that child support payable by the respondent to the applicant be terminated as of July 31, 2020 until the child returns to full-time post-secondary education.
(b) An order that child support be adjusted retroactively in accordance with both the respondent’s 2014-2019 and 2021 income, and the respondent’s overpayment of child support, specifically in the amount of $6,790. This amount should be deducted from his section 7 expenses and spousal support arrears.
(c) An order that the respondent pay the amount of $9,792.76 to the applicant on account of arrears for section 7 expenses.
(d) An order that spousal support payable by the respondent to the applicant be adjusted retroactively in accordance with the respondent’s 2014-2020 income, specifically that arrears of spousal support in the amount of $83,456 be payable by the respondent to the applicant.
(e) An order that the respondent pay ongoing spousal support to the applicant based on the respondent’s 2020 income of $89,105 in the amount of $2,209 per month (without child support formula).
(f) An order that the amount of $67,573.33 held in trust by Bookman Law Professional Corporation (“Bookman Law”) pursuant to the Order of Justice Kiteley dated October 30, 2014 be released to the applicant on account of the respondent’s arrears, as detailed above.
(g) Costs.
[3] The respondent brought a cross-motion dated May 14, 2021, as amended, seeking an order:
(a) Terminating ongoing spousal support;
(b) Adjusting spousal support to $200 per month from 2016 and that it be terminated on December 1, 2022;
(c) Imputing the applicant’s income at $60,000 or an amount deemed just by the court;
(d) Terminating child support on April 1, 2018;
(e) Limiting any section 7 expenses to be paid proportionately in accordance with receipts;
(f) Limiting any section 7 expenses paid after December 1, 2018;
(g) Directing Bookman Law to release the funds held in trust to the respondent; and for
(h) Costs.
[4] The applicant submits that, despite ample time and several demands for compliance, the respondent made no effort to fully comply with the Minutes of Settlement and related orders from 2014. Meanwhile, the applicant claims that she alone has incurred all section 7 expenses relating to the parties’ son while the respondent’s income has increased.
[5] Due to a series of further court attendances involving an adjournment, case conference and orders for further disclosure, the hearing of the motion and cross-motion was delayed until January 6, 2022, at which time I reserved and then asked the parties to make further submissions on April 14, 2022.
[6] For the reasons that follow, the applicant’s motion is dismissed and the respondent’s cross-motion is granted, with costs awarded to the respondent.
Facts concerning the parties
[7] The parties, now in their 50s, were married on May 28, 1994 and separated on November 22, 2011.
[8] They have one child, D, now 23, born June 5, 1999, who resides with the applicant mother.
[9] The applicant originally commenced an application on December 14, 2011 seeking child support, spousal support and the division of net family properties. The parties entered into final Minutes of Settlement (“MOS”) that were converted into a Final Order of Goodman J. dated April 23, 2014.
[10] The applicant brought a motion before Kiteley J. seeking an order that the funds from the respondent’s share of the net proceeds of the matrimonial home be held in trust to secure the payment of monthly child support, section 7 expenses, and medical and dental expenses until such time that the respondent complied with paragraphs 15, 16 and 18 of the MOS.
[11] On October 30, 2014, Kiteley J. ordered the proceeds of sale of the matrimonial home to be paid as follows:
(a) The amount of $67,252.05 to be paid to the respondent’s solicitor to satisfy outstanding legal fees; and
(b) The amount of $226,154.11 to be paid to Bookman Law, the applicant’s lawyer, in trust.
[12] From the $226,154.11 paid to Bookman Law, the amount of $158,580.78 was paid out to the applicant. Kiteley J. ordered that the remainder of the proceeds, namely $67,573.33, be held in trust and not released to the respondent until he complied with paragraphs 15, 16 and 18 of the MOS.
[13] Paragraph 15 of the MOS requires the respondent to maintain coverage for the applicant and son D under the health benefits plan provided by the respondent’s employer.
[14] Paragraph 16 of the MOS requires the respondent to designate the applicant as the irrevocable beneficiary on his life insurance policy.
[15] Paragraph 18 of the MOS requires the respondent to provide the applicant with a duplicate health benefit card from his insurer.
[16] The applicant maintains that the respondent has not complied with paragraphs 15, 16 and 18 of the MOS. The respondent disagrees and, in his responding material, provides evidence that he was purportedly in compliance with the MOS since 2015. He submits that the applicant has refused to authorize the release of his funds being held in trust by Bookman Law.
[17] According to paragraph 8 of the MOS, “the Applicant and the Respondent shall provide up to date financial disclosure, including income tax returns, notices of assessment and T4’s every year by June 1, commencing June 1, 2015.” The parties acknowledge that they did not comply with this provision.
[18] According to paragraph 10 of the MOS, there was to be a review of spousal support on December 31, 2016. Under paragraph 11, it is stated that “[t]he Applicant will use her best efforts to become employed as early as possible.” The parties acknowledge that the review never took place.
The parties’ incomes
[19] The applicant was employed in factory work prior to D’s birth in 1999. Thereafter, she deposes that she has not been employed, except for one year of employment from 2006 to 2007 and six months of employment with Nucap Industry in 2008. At Nucap, she earned $11 per hour.
[20] The applicant provided her Notices of Assessment (NOAs) as follows:
2012 - $14,904
2011 - $6,618
2010 - $1,282
2009 - $4,713
2008 - $16,569
2007 - $1,278
[21] Since August 2012, the respondent has been employed with the Toronto Transit Commission (TTC).
[22] The respondent’s child support and spousal support payment is automatically garnished from his wages by the Family Responsibility Office (FRO). Since the parties entered into the MOS in 2014, the respondent has been paying $573.00 per month in child support and $1,110.00 per month in spousal support based on his 2013 Line 150 income of $63,909. The respondent did not provide updated income disclosure until ordered to do so by Leiper J. on March 18, 2021.
[23] The respondent‘s income is as follows based on his NOAs:
2014 - $73,116
2015 - $76,959
2016 - $79,042
2017 - $80,658
2018 - $83,789
2019 - $86,651
2020 - $89,105
Facts concerning D
[24] D turned 18 on June 5, 2017. He graduated from high school in June 2017 and went on to post-secondary education at York University. D attended York University from September 2017 until the end of the 2017/18 academic year. He took some time off from his studies and then attended York from September 2019 to the end of the 2019/20 academic year. D did not return to York or any other post-secondary institution in September 2020. Throughout his studies at York, D lived with the applicant.
[25] D was employed part-time at Under Armour and at IS2 Workforce Solutions. He worked three to four days per week (four hours per shift) earning minimum wage. His T4 for Under Armour for 2020 was $8,436.91. His T4 for IS2 Workforce for 2020 was $8,293.43.
[26] According to his NOAs, D earned:
2020 - $25,730
2019 - $21,487
2018 - $12,073
[27] The applicant submits that D was a full-time student in 2019/20 since a student is considered full-time at York University if they are taking nine or more credits per term. The applicant states that D did not return to York University in September 2020 due to the ongoing pandemic as classes were proceeding online and D had previously struggled to succeed in online courses. When in-person classes resumed, D was apparently concerned about returning to school since he is immune-compromised. A doctor‘s note was provided indicating that D “has an increased risk of contracting Covid illness and is not able to attend physical class […] during the pandemic.” The applicant claims that D will be returning to full-time studies after the pandemic.
Parties’ positions on the motions
Applicant’s position
[28] The applicant’s position on the motions is as follows:
(a) This is a long-term marriage of 17 years. The parties signed the MOS in 2014 that were converted into a judicial order of Goodman J. and given effect via the order of Kiteley J.
(b) The funds held in trust by Bookman Law were not released because the respondent was in breach of paragraphs 15, 16 and 18 of the Kiteley J. Order.
(c) D was a full-time student at York University to the end of the 2019/20 academic year, albeit he took a one-year hiatus in 2018-2019. The applicant is not expecting the respondent to pay for child support during the hiatus period.
(d) Although D is no longer a minor and did not return to school in September 2020, he may return to full-time studies as a post-secondary student whereupon the respondent’s child support obligations under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”) would continue.
(e) The respondent is obliged to revise his child support payments based on his actual income from 2015 to 2020, and to pay his proportionate share of section 7 expenses.
(f) The applicant’s income should be assessed as zero as, from the time of D’s birth in 1999 except for some short periods, she has been a stay-at-home mother and now, due to health issues, she is not able to work.
(g) The applicant is entitled to ongoing spousal support of $2,209 per month based on the respondent’s 2020 income of $89,105 based on support calculations (without child support formula).
(h) The applicant calculates, with respect to child support, that the respondent has overpaid in the amount of $6,790 (paid $52,470 but should have paid $45,680).
(i) The applicant calculates that, with respect to spousal support, using the mid-point of the Spousal Support Advisory Guidelines (“SSAGs”) formulas, the respondent has underpaid in the amount of $83,456 (paid $99,000 but should have paid $182,456 ).
(j) The applicant states, with respect to section 7 post-secondary tuition expenses, that she has paid these entirely on her own. She calculates that the net payment of post-secondary expenses is $7,000.82 and asks that the respondent’s proportionate contribution, after accounting for D paying one-third of his own expenses, be $3,733.78 (i.e., 80% of $4,667.21).
(k) The applicant calculates, with respect to other non-tuition section 7 expenses, that the respondent’s share of these expenses dating back to 2014 is $6,058.98. Accordingly, the applicant seeks $9,792.75 in section 7 expenses ($3,733.78 for respondent’s contribution to post-secondary tuition and $6,058.98 for other expenses).
(l) The respondent’s cross-motion should be dismissed.
Respondent’s position
[29] The respondent’s position on the motions is as follows:
(a) This was not a long-term marriage, but a 17-year marriage of moderate length. The parties separated in 2011 and it has been more than 10 years since separation. Support calculations indicate a minimum duration of spousal support of 8.5 years and a maximum duration of 17 years from the date of separation.
(b) Here, the review on December 31, 2016 never occurred, and the applicant is in breach of the provision of the MOS that she “use her best efforts to become employed as early as possible.”
(c) The respondent has never denied his child support obligations and is prepared to adjust his payments according to what he actually earned; however, there should be a deduction from his income for union dues. The respondent had difficulty providing his financial disclosure as the accountant he was using abandoned his clients and left the country.
(d) D should only be considered a “child of the marriage” until April 1, 2018, which is when he completed his first year of studies at York University. Thereafter, D did not just take a “hiatus,” but effectively stopped being under parental control as he earned considerably more than the applicant and withdrew from parental control by abandoning his relationship with the respondent. To the extent that D re-enrolled at York University in the 2019/20 academic year, he did not follow a course of studies leading to any meaningful educational or career objective.
(e) The applicant should not be entitled to both “hoard” her section 7 expenses for 2014 to 2020 and then request reimbursement from the respondent. Here, the applicant brought the respondent to court in March 2021 on the basis that the respondent owed $31,000 in section 7 expenses, but then resiled from that position and is now claiming around $9,000 in section 7 expenses.
(f) The applicant does not have a demonstrable disability or reason why she has not been able to be re-employed even at a minimum wage basis. The applicant has not applied for government assistance such as Ontario Works or the Ontario Disability Support Plan (ODSP).
(g) The applicant’s spousal support started at $1,600 a month for 2012 to 2014, reduced to $1,100 a month in the 2014 MOS, and was to be reviewed and reduced in 2016 based on the applicant actively looking for work and being reemployed. Contrary to the MOS, the applicant did not file her financial disclosure until required to do so by the court in the context of these motions.
(h) The applicant’s income should be imputed to around $60,000 annually. She is living rent free with her mother. Based on an assessment of monthly rent from $1,900 to $2,400 a month in Etobicoke, the court should add $2,000 per month ($24,000 annually) to whatever the applicant should earn through employment.
(i) The respondent is not in breach of paragraphs 15, 16 and 18 of the MOS as the applicant and son D have been able to use the respondent’s benefits provided through insurance coverage from his workplace. Rather, Bookman Law has simply held on to the funds held in trust for the respondent. The wider context is that, following the sale of the matrimonial home, the respondent received her proceeds of over $300,000 but has not explained what she has done with these funds, whereas the respondent’s proceeds have been improperly held in trust.
Procedural history
[30] The applicant brought a motion on March 18, 2021 before Leiper J. to enforce the order of Kiteley J. and to have the trust funds released to her. Leiper J. released $30,000 of the trust funds to the applicant, ordered disclosure and adjourned the balance of the motion to May 25, 2021.
[31] On May 17, 2021, the respondent filed a cross-motion to vary spousal support. As per the Order of Kimmel J. dated May 25, 2021, the motions were to be heard together on October 14, 2021. Disclosure was also ordered. Further disclosure was ordered per the Order of Steele J. dated September 24, 2021.
[32] On October 14, 2021, Kraft J. adjourned the hearing of the motions to December 9, 2021 because the applicant had just received information about D’s university attendance from 2017 onwards that was highly relevant to the issues on the motions. Kraft J. awarded costs of $800 to the respondent as the applicant’s disclosure should have been provided earlier.
[33] On December 9, 2021, I further adjourned the hearing to January 6, 2022 as I determined that it was unrealistic for the motions to be heard in the time assigned. Also, it was unclear to what extent previous disclosure orders had been complied with.
[34] The motions hearing proceeded on January 6, 2022 and I reserved. I then determined that further submissions on various aspects of the motions were required. The parties provided written submissions and made further oral submissions on April 14, 2022. On the latter date, the parties agreed that it was not necessary for the respondent to have brought a Motion to Change and that I should proceed to rule on the motions.
Whether the respondent was in breach of the MOS
[35] Paragraphs 15, 16 and 18 of the MOS, which were incorporated into the Order of Goodman J., state as follows:
For so long as either the child or the Applicant qualify, the Respondent shall be required to register the Applicant and the child, D, and maintain their coverage under the health benefits plan provided by his employer.
For as long as child support remains payable the Respondent shall maintain his life insurance policy provided by this employer and register the Applicant as the irrevocable beneficiary of the policy and shall provide annual proof that the policy is in good standing pursuant to the following trust:
(a) The Respondent[^1] shall pay as they become due all child support payments for so long as the Respondent’s estate is required to pay child support for the child D born June 5, 1999; and
(b) Any remaining funds from the death benefit after doing so shall be paid to the Respondent’s estate.
- The Respondent shall request and provide to the Applicant upon receipt a duplicate health benefit card from the TTC health and benefit insurer.
[36] On October 13, 2015, Muneshwar Deopaul, counsel at the time for the respondent, wrote to applicant’s counsel advising that the respondent was in a position to comply with paragraphs 15 and 18; however, with respect to paragraph 16, the respondent could not comply since the TTC had a policy whereby it could not make the beneficiary of the respondent’s insurance policy irrevocable.
[37] With respect to paragraphs 15 and 18, respondent’s counsel attached the following to his letter:
• Confirmation of medical, drug and dental coverage for the applicant and D; and
• A copy of the respondent’s health benefit card from the TTC health and benefit insurer.
[38] Respondent’s counsel also wrote “please note that I have a duplicate of the above-mentioned card in my possession, which will be provided to you upon receipt of a cheque for the full amount of the funds held in trust by you.”
[39] On December 18, 2015, Chris Stankiewicz, applicant’s counsel, wrote to respondent’s counsel advising that there was $67,573.33 representing “the amount [still in trust] after the prior outstanding section 7 expenses, the costs of the motion before Justice Kiteley, and the costs that were subsequently ordered payable to Mr. Punit’s former solicitor were paid out.” Mr. Stankiewicz advised that the respondent was in arrears of child support in the amount of $6,843.15 and that he had not contributed to certain section 7 expenses totaling $955.32. The applicant’s position was that “the child support arrears and section 7 expenses will have to be paid before any funds are released” to the respondent. Further, Mr. Stankiewicz advised that “with respect to the health benefits card, we require the card to be provided to our office in advance of any funds being released to” the respondent.
[40] Mr. Stankiewicz acknowledged that the TTC’s policy was that the beneficiary could not be made irrevocable and agreed with respondent counsel’s proposal that the applicant would receive “written confirmation from TTC that she remains the beneficiary on the policy three times per year to satisfy the requirement of being named an irrevocable beneficiary pursuant to paragraph 16 [of the MOS]”.
[41] There is no evidence that, despite being in possession of the duplicate health benefit card, respondent’s counsel provided it to applicant’s counsel. Moreover, notwithstanding what appears to be the parties’ agreement that the applicant receive confirmation from the TTC that she remained the beneficiary on the policy three times a year, the respondent did not provide such confirmation. Instead, the respondent argued that benefits were always available to the applicant and D (until D refused to provide proof that he was in full time school) and that the applicant always knew this to be the case. The respondent concedes that the applicant never received a duplicate health benefit card but maintains that the respondent had a copy and details of the card and has not been able to show that either herself or D were refused benefit coverage.
[42] I find this a highly unfortunate situation. It appears that applicant’s counsel took a very literal interpretation of the MOS and, notwithstanding the fact that benefits were available to the applicant and D throughout, the applicant maintained that the respondent was not in compliance with the MOS. It is not clear, based on the evidence provided to me, why the respondent did not pursue the release of his trust funds after December 2015. I find that the respondent was not in literal compliance with the MOS. While the respondent is right to argue that he had complied in spirit with the terms of the MOS, given the hard-fought litigation that ensued in 2015, I find that the applicant was within her rights to insist on strict compliance with the MOS. But whether the respondent was previously in breach of the MOS is a different issue than whether the trust funds should be released now and, if so, to which party. Although I find that the trust funds should now be released to the respondent, I am not prepared to charge interest on the funds that were held in trust by applicant’s counsel.
Whether D stopped being a child of the marriage and, if so, when
[43] D turned 18 on June 5, 2017.
[44] Subsection 2(1)(b) of the Divorce Act states that a “child of the marriage” means a child of two spouses or former spouses who, at the material time,
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.
[45] In Licata v. Shure, 2022 ONCA 270, 2022 CarswellOnt 4209, at para. 33 (“Licata”), the Court of Appeal stated:
When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education. [Citations omitted.]
[46] In Licata, the Court of Appeal also referenced the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden, 1993 CanLII 2570 (BC SC), 1993 CarswellBC 619, at para. 15:.
[47] The Farden factors are:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;
(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
(3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
[48] For the reasons that follow, I agree with the respondent that, based on the Farden factors and related jurisprudence, D ceased being a child of the marriage after April 1, 2018, when he completed his first year of studies at York University.
[49] D attended first year at York University from September 2017 until the end of the 2017/18 academic year. He completed 33 credits taking the following five courses:
Introduction to Business
Introduction to Criminology
The Modern Age: Shapers and Definers
Evolution
Introduction to Social Science
[50] D was registered in an Honours Criminology program. He received poor grades in his five courses (two D+, one C and two C+). D did not return to school for the 2018/19 academic year. D worked three to four days per week throughout first year.
[51] D again attended York from September 2019 to the end of the 2019/20 academic year. His program changed to Interdisciplinary Social Science, a General Arts program. He took only three courses and earned 18 credits in total (six per course):
Race, Racism & Popular Culture
Sex, Gender and the Body
Introduction to Sociology
[52] At York, a “full-time” undergraduate student is defined as those taking nine or more credits per academic term. So, while I agree that D was a “full-time” student for the 2019/20 academic year, this was the bare minimum to meet that status. While D received a B+ in Introduction to Sociology, he received a Pass in the other two subjects.
[53] D did not return to York University or enroll in any post-secondary studies in September 2020.
[54] I find that D’s grades were poor in his first year of studies. Subsequently, while a one-year interruption in studies can still be consistent with remaining dependent, D obtained two part-time jobs. Further, upon his resumption of school in September 2019, D took only three courses that appear to have had nothing to do with his previous course of studies and do not appear to be geared towards any particular program. At the end of the 2019/20 academic year, D did not return to school. On these facts, I do not find that D had a reasonable and appropriate plan for advancing his education and gearing it toward a remunerative career. I find that, as of April 1, 2018, there was no real likelihood of D completing his academic program.
[55] The respondent also submitted that D withdrew from parental control effective April 2018.
[56] In Rotondi v. Rotondi, 2014 ONSC 1520, 2014 CarswellOnt 2813 (“Rotondi”), the court held:
[48] Courts have generally not terminated a parent’s obligation to pay child support for a dependent adult child based solely on the absence of a relationship between them. The payor parent must adduce substantial evidence indicating that the child is responsible for the breakdown of the relationship. The courts’ reluctance to put the full blame on the child is evident in Re Haskel and Letourneau. There, the court stated:
...the concept of the “withdrawal from parental control” at age 16 means a “voluntary” withdrawal; the free choice, indeed, of the child to cut the family bonds and strike out on a life of his own. On taking on this personal freedom the child assumes the responsibility of maintaining or supporting himself. It is his choice, freely made, to cut himself away from the family unit. Once this choice is freely made and the responsibility accepted by the child, the family unit has, in effect, been severed and the responsibility of the parents to support the child thus ceases.
[49] The payor parent bears the onus of proving the child’s repudiation of their relationship. In Fitzpatrick v. Karlein, Nasmith J. stated:
...once withdrawal from parental control is established, as it is in this case, the onus, I think, shifts back to the child, as applicant, who has, ostensibly, withdrawn from parental control, to show on the balance of probabilities that she did so without any other choice in the matter.
[50] Nasmith J. noted that courts have interpreted this exception narrowly, but he proposed that it might be time to reassess this approach:
I am persuaded that it is time to ask whether there is a valid basis for the “narrow” approach to the legislation now that the wording of section 31 of the Family Law Act, leaves open-ended the parental obligation to support a child after age sixteen so long as the child remains a full-time student.
The correct approach to the new legislation, in my opinion, once the defence under subsection 31(2) has been raised and it has been established that the child is past sixteen years and outside the control of the former custodial parent, is to assign to the child, as the applicant, the onus of demonstrating that the withdrawal was involuntary whether by reason of eviction or a living situation with the parent that is viewed as unbearable or impossible. If the child wants to do that and can do that, the parental support obligation can be legally sustained. It is not just a matter of showing that the choice to become independent was reasonable or understandable. Under section 31 of the Family Law Act, for a youth past the age of sixteen, who has, ostensibly, withdrawn from parental control to succeed in obtaining court-ordered support, it must be demonstrated by her that the withdrawal was involuntary. [Footnotes omitted; emphasis in original.]
[57] I agree with the respondent that D withdrew from parental control in several ways. First, he worked two jobs. In addition, he refused to inform his father of his studies/plans, attended school minimally or not at all and finally ceased communications with his father.
[58] On the last point, the respondent produced a copy of two text messages to his son. The first text message was partially cut off but states “your day, I hope you had a great day.” The respondent submitted that, given that D’s birthday is on June 5, he was sending wishes for his son’s 19th birthday. D responded via text on June 6, 2018 with “Thank you.” On September 23, 2019, the respondent texted his son “Hi D, TTC is cutting you off from my Greenshield benefits. They need information from you, but you refuse to respond to my phone calls and text messages.” D did not respond to this text message.
[59] I find that the father did attempt to reach out to his son D but that D did not respond whatsoever. The applicant’s motion materials do not suggest otherwise. I find that while there is not a lot of evidence about the relationship between the respondent and D, what evidence there is demonstrates that: (a) The respondent did make phone calls and text messages to his son, including on his birthday; (b) beyond the perfunctory “Thank you,” to his father’s birthday message, the son did not make any contact with the father, including when the father sent him an urgent message that the TTC was cutting off the son from the father’s employment benefits; and (c) the mother did not provide any competing evidence.
[60] Besides, “[a] child’s repudiation of the relationship with a parent is only one factor the court considers in determining whether the child is still ‘a child of the marriage’ entitled to continued child support”: Rotondi, at para. 51.
[61] I also find that, after June 1, 2018, the son was no longer economically dependent on the applicant and that the applicant was not financially responsible for the child. At the material time, the mother acknowledges that she had not earned any employment income. She only received child and spousal support payments from the respondent. The applicant was not even taking care of rent as housing was provided rent-free by D’s maternal grandparents. D had his own vehicle and earned the following income from employment:
2020 - $25,730
2019 - $21,487
2018 - $12,073
[62] In Makdissi v. Masson, 2017 ONSC 6498, 2017 CarswellOnt 16972, at para. 25, the court stated:
The operative words here are “under their charge” and “unable by reason of … other cause to withdraw from their charge”. In short the parent seeking child support must be supporting the child and it must be reasonable for him or her to do so because the child is not able to support him or herself. It is well established that attendance at post-secondary education will satisfy this test but it is rare for the court to find that the obligation to pay support continues once the child has earned two post-secondary degrees. The question however is not whether there is a magical bright line cut-off after one or two university degrees. There is not. The question is whether the parent seeking support remains financially responsible for the adult child and whether or not that is reasonable under all of the circumstances. The key consideration is dependency. [Footnotes omitted.]
[63] In case it remains an issue, I do not find that D was dependent on the mother due to any alleged disability. Clearly, D has been able to work notwithstanding that he had asthma. There was no evidence that his asthma or any other ailment had ever been a disabling condition.
[64] In summary, I find that D was no longer a child of the marriage or dependent on the mother as of April 1, 2018. The respondent was not obliged to make any child support payments or contributions to section 7 expenses after that date.
Adjustments to child support payments
[65] The respondent submitted that, for the purposes of calculating an award under the Federal Child Support Guidelines, SOR/97-175, his union dues of $1,180 should have been deducted from his annual income. The applicant did not oppose this submission.
Spousal support
[66] The applicant seeks:
(a) An order that spousal support payable by the respondent to the applicant be adjusted retroactively in accordance with the respondent’s 2014-2020 income, and more specifically, that arrears of spousal support in the amount of $83,456 be payable by the respondent to the applicant.
(b) An order that the respondent pay ongoing spousal support to the applicant based on the respondent’s 2020 income of $89,105 and in the amount of $2,209 per month (without child support formula).
[67] The respondent disagrees and has brought a cross-motion seeking an order:
(a) Terminating ongoing spousal support; and
(b) Adjusting spousal support to $200 per month from 2016 and terminating on December 1, 2022.
Post-separation increases in the respondent’s income
[68] The parties separated in November 2011. The respondent became an employee of the TTC in August 2012. The parties entered into the MOS based on the respondent’s 2013 Line 150 income of $63,909. Thereafter, the respondent’s income, based on his NOAs, increased as follows:
2014 - $73,116
2015 - $76,959
2016 - $79,042
2017 - $80,658
2018 - $83,789
2019 - $86,651
2020 - $89,105
[69] The applicant seeks an upward adjustment of spousal support based on the respondent’s post-separation increases and submits that:
(a) The respondent’s position at the TTC is as a mechanic, a position related to the position the respondent had while married.
(b) During the marriage, the respondent obtained the skills and qualifications that, post-separation, allowed him to obtain the TTC job and earn the increases that the applicant should now benefit from in terms of spousal support.
(c) This was a long-term marriage of 17 years. The mother raised the parties’ child and this allowed the father to go out and work. She is deserving of the post-separation increases.
[70] The respondent disagrees and argues that:
(a) He got his TTC job in 2012 after the parties’ separation in November 2011. This was not a case where he received salary increases in a position that he was in during the marriage.
(b) His job is as a painter of TTC vehicles. During the marriage he was an auto-mechanic. There is an insufficient relationship between the two positions.
(c) The applicant did not contribute or sacrifice her career in any way such that she should benefit from the post-separation increases in the respondent’s income.
(d) The applicant has not demonstrated any efforts to become self-sufficient and her need for support is not needs-based.
[71] The law concerning post-separation increases in income was summarized by Bale J. in Nault v. Nault, 2022 ONSC 904, 2022 CarswellOnt 1769, relying on Kinsella v. Mills, 2020 ONSC 4785, 2020 CarswellOnt 12428, per Chappel J.:
[38] Mr. Nault argues that Ms. Nault should not be entitled to share in any post-separation increases in his income. He relies on the seminal case of Thompson v. Thompson wherein Chappel J. provided much-needed guidance on how to approach this topic. Notably, Chappel J. updated and refined those principles in the more recent case of Kinsella v. Mills. In Kinsella the court stressed that treatment of this issue is ultimately a matter of judicial discretion, requiring “careful consideration of the unique circumstances and dynamics of each relationship both during the union and following separation.” The guiding principles and considerations are outlined as follows:
A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse’s post-separation increase in income.
The question of whether there should be a sharing of post-separation income increases is not an “all or nothing” matter. Partial sharing of such increases, and/or sharing for a specified period of time, are issues that the court should also consider when the issue arises.
The determination of whether there should be any sharing of income increases, and if so the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation.
The basis of a spouse’s entitlement to spousal support is an important consideration. In both compensatory and non-compensatory cases, the court’s assessment of the needs of the recipient and ability of the payor spouse to pay are significant factors that should inform the court’s analysis regarding sharing of post-separation income increases. However, in cases involving non-compensatory claims, the focus tends to be on maintaining a reasonable standard of living as measured by the standard enjoyed during the relationship, and this is a factor which may impact the decision as to whether a recipient should benefit from the payor’s post-separation income increases. Nonetheless, the circumstances of each case must be carefully considered to ensure a just outcome, having regard for all of the objectives and factors outlined in the relevant legislation. The needs of the recipient spouse are always a very important part of the spousal support analysis and may support a sharing of post-separate income increases [in] purely needs-based claims in appropriate circumstances. For instance, a long-term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases. Even in shorter or mid-length relationships, a strong non-compensatory claim based on factors such as illness, disability or other considerations may support some sharing of income increases to ease the transition to a new post-separation reality.
The existence of a compensatory element to a support claim is an important factor in determining entitlement to share in post-separation increases in income. In addressing this factor, the court must keep in mind the various different indicia of compensatory entitlement and not simply the assumption of child care and home management responsibilities. In these cases, the general strength of the compensatory claim is an important factor. The analysis should therefore include consideration of the length of the relationship, the extent of the recipient’s contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made.
Another important consideration in compensatory situations is whether the recipient’s efforts and contributions during and after the relationship contributed to the payor’s financial advancement during the relationship and post-separation. The court should consider the extent to which the payor ended up in favourable circumstances as a result of the joint enterprise of the relationship. Evidence that the recipient’s sacrifices and contributions during the relationship supported the payor’s financial progression post-separation will typically support a sharing of post-separation income and a higher amount of such sharing. In assessing whether and to what extent the recipient’s efforts contributed to the payor’s ability to advance financially, the court must maintain a broad perspective of the various means by which a spouse’s contributions and sacrifices can support the other spouse’s success both in the short and long-term, including for example assuming primary responsibility for home-management matters, taking on primary child care responsibilities during and/or after the relationship ended, assisting in the establishment and operation of the payor’s business or subordinating their career to that of the payor so that the payor could focus on the development of their skills and career.
The fact that the recipient spouse has continued to be a primary caregiver for the children post-separation is a factor that supports a sharing of post-separation income increases, since this often allows the payor to continue to focus on their career advancement. On the other hand, the fact that the payor has primary care or shared care of children post-separation may also be relevant to whether sharing of such increases is appropriate, and the amount of any such sharing.
The sharing of post-separation income increases is not necessarily dependent on the recipient spouse having sacrificed their own career advancement during the relationship for the benefit of the payor spouse’s progression in their career. However, evidence that they did so is a further factor that may support a sharing of the increases.
In compensatory cases, evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income following the separation were acquired and developed during the relationship is a factor that will favour sharing of post-separation income increases.
The courts often consider the length of time that has passed from the separation until the increase in income occurred. The closer the temporal link, the more likely it is that the court will find that the recipient’s efforts supported the other party’s post-separation financial success.
Another important consideration is whether there were any changes in the payor’s career post-separation that explain the increase in income, such as a new job, position or business reorganization. However, in these circumstances, the court must still consider whether the change in position was attributable to the knowledge, skills and experience that the payor had acquired during the relationship with the support of the recipient’s efforts.
The courts also consider whether the increase in income is primarily attributable to the payor’s decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship.
Evidence that the increased income was attributable to specific, unusual events following the separation, such as unexpected changes in market conditions, is a factor that may weaken a claim to share in the increase.
Evidence that the recipient spouse has not taken reasonable steps towards achieving self-sufficiency is another factor that courts have considered in determining whether there should be a sharing of post-separation income increases, and if so, the extent of any such sharing. In such situations, the shortcomings in the recipient’s self-sufficiency efforts will also be relevant to determining whether income should be imputed to them, but it is not inappropriate to consider the issue from both lines of analysis.
Evidence that the payor has also made contributions to the recipient’s career advancement post-separation will also be relevant. [Citations omitted.]
[72] I have also considered the lengthy discussion of post-separation increases in income in Want v. Gauthier, 2021 ONSC 7595, 2021 CarswellOnt 18143, at paras. 89-110.
[73] I find that the applicant is deserving of some, albeit not the majority, of the post-separation increases in the respondent’s income. I would fix the respondent’s income, for the purposes of support, at $73,116, the amount of income the respondent received in 2014 for the following reasons:
[74] The respondent started an entirely new job at the TTC in August 2012, about ten months after the parties’ separation.
[75] There was limited evidence about the relationship between the respondent’s TTC job and what he did previously during the marriage. On balance, I find that the respondent obtained the skills and qualifications during the marriage that, post-separation, allowed him to obtain the TTC job. However, it is not fair to the respondent to use income greater than $73,116.
[76] I consider the spousal support paradigm applicable in this case to be primarily compensatory rather than needs-based. Although the applicant stayed home and looked after the parties’ son while the respondent worked during the marriage, she had a limited educational background and did not sacrifice her career for the sake of the respondent.
[77] I acknowledge the applicant primarily looked after D post-separation. However, as of 2011, D was 12 years old and attending school full-time.
[78] The more significant salary increases received by the respondent occurred after 2016, some five years after the parties’ separation.
[79] As discussed below, the applicant engaged in minimal efforts to become self-sufficient.
[80] The applicant has received the bulk of the proceeds of the matrimonial home.
The applicant’s income
[81] The respondent argues that the court should impute an annual income of $56,400 to the applicant as follows:
(a) $30,000 based on the argument that the applicant has not sufficiently demonstrated any reason why she cannot earn minimum wage.
(b) $24,000 should be added based on $2,000 a month given that the applicant is living rent-free with her parents and similar apartments in Etobicoke have rent ranging from $1,900 to $2,400 a month.
(c) $2,400 since the applicant would normally have to pay $200 a month for Hydro but she does not have to pay this since she is living with her parents.
[82] Further, the respondent submits that based on a review of the applicant’s financial statement, she must be earning greater income than she is declaring since she bought a car for $8,500, pays over $7,200 a year for car insurance, and has grocery expenses greater than her self-declared income.
[83] The applicant disagrees and submits that:
(a) She was a stay-at-home mother and wife during the parties’ marriage.
(b) She is 54 years old and has not been employed since before she became pregnant with D, with the exception of one year of work from 2006 to 2007 and six months in 2008.
(c) She has never made any income even remotely close to the level that the respondent proposes. The highest income she ever earned was in 2008 when her Line 150 income was $16,569.
(d) The living “rent-free” characterization is improper as she is contributing to her elderly parents’ home in other ways.
[84] I have difficulty accepting the applicant’s financial statement as accurate. Her financial statement shows that her only source of income is spousal support of $1,108 per month, resulting in a yearly income of $13,296 from all sources. Yet, she claims her yearly expenses are approximately $21,000. She has no housing expenses and, on the financial statement, does not pay for any water, heat or hydro bills. Her grocery bill of $400 a month seems very low if, in reality, she was paying for more than just herself.
Whether the applicant should be imputed employment income
[85] The applicant argues that, even if she were deemed to have the skills and education to be employable and earn minimum wage, she cannot do so because of physical ailments and health issues.
[86] The applicant relies on a letter from her family physician. The letter states that the applicant suffers from “chronic back pain due to ligamentous strain in the lumbar spines,” which is “longstanding in part due to mammary hyperplasia.” The letter also states that the applicant has “bilateral carpal tunnel syndrome worse on the right hand. She has had surgery to the left hand and will require surgery to the right hand.” The applicant “continues to have pain and paresthesia of both hands.” The physician’s opinion is that the applicant is “unable to do physical work that requires lifting, bending, prolonged standing and repetitive work at this time.” He suggests that the applicant be reassessed after she has surgery to her right hand.
[87] The respondent submits that the physician’s letter does not confirm that the applicant is not able to work due to disability, and that there is no reason why the applicant cannot work at a job earning minimum wage.
[88] I note that paragraph 11 of the MOS states that the applicant will use her best efforts to become employed as early as possible.
[89] I find that the applicant’s medical evidence does not preclude her seeking employment at a minimum wage level and that she has not submitted any evidence of her attempts to seek employment. First, even taking the physician’s report as uncontested, it does not state that the applicant cannot do any work. Second, the applicant provided no explanation for why she did not get surgery done on her right hand and obtain a reassessment. Third, while the applicant does not have any post-secondary education credentials, I fail to see why she did not seek out positions such as a call centre operator, a driver, or an office helper, or find work in a retail environment. The applicant worked in the 2006-2008 period; in the 2014 MOS, she specifically undertook to become employed using best efforts. Given the MOS, the onus was on the applicant to demonstrate either that she made job search efforts or was medically unable to work. She has not met that burden.
[90] In the circumstances, I am prepared to find that the applicant should be imputed an income of $30,000 effective January 1, 2017 (following what ought to have been a review conducted on December 31, 2016).
[91] I also agree with the respondent’s argument that the applicant’s living condition is such that a further $24,000 should be imputed to her given that she admits to not paying any rent to her parents. I decline to order that a further $2,400 be imputed in respect of her not having to pay hydro or utility bills as I find that I have insufficient information on that point. Accordingly, I find that effective January 1, 2017, the applicant’s income was $54,000.
Duration of Spousal Support
[92] The applicant seeks ongoing spousal support. She relies on the length of the marriage (17 years), the compensatory nature of the spousal support claim given that she was the primary caregiver and continued to raise the child post-separation, her poor health, and her inability to work due to her lack of educational qualifications and sparse work experience.
[93] The respondent seeks termination of spousal support and submits that the very latest that spousal support should terminate is the end of 2022. The respondent reminded the court that when the parties separated in 2011, the applicant was 44 years old and the child was already 12 years old. The respondent added that the applicant has received the bulk of the proceeds of the sale of the matrimonial home, which should have assisted her in obtaining self-sufficiency as underscored by the MOS. The MOS included both a review at the end of 2016 and the applicant’s undertaking to become reemployed.
[94] The SSAGs indicate that the duration of spousal support in this case is in the range from 8.5 to 17 years based on the without child support formula.
[95] I find that if spousal support is terminated at the end of 2022, the duration of support will have been 11 years since separation and six years past the point of review at the end of 2016. While the attainment of self-sufficiency is but one factor in the duration of spousal support, here 11 years represents an appropriate balancing out of the various factors.
Section 7 expenses
[96] Earlier in these reasons, I determined that D was no longer a child of the marriage past April 1, 2018. I direct the parties to recalculate section 7 expenses based on the parties’ incomes as determined in these reasons. Further, I agree with the respondent that he should not be expected to pay new section 7 expenses that were only forwarded to him in 2021: Hiemstra v. Hiemstra, 2006 SCC 37. I would be prepared to consider the respondent obtaining a credit for any overpayment of section 7 expenses based on my ruling.
Costs
[97] The respondent has been substantially successful on the motions and is deserving of costs. If the parties are unable to resolve the issue of costs, they shall make written costs submissions by August 26, 2022. Such written submissions directed to my judicial assistant, Ms. Lyon-McIndoo, at Patricia.Lyon-McIndoo@ontario.ca shall not exceed four double-spaced pages, exclusive of Costs Outlines, Bills of Costs, and Offers to Settle. Authorities are to be hyperlinked or forwarded to me via Ms. Lyon-McIndoo. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs.
Order
The parties shall revise their support and section 7 calculations in light of these Reasons and provide me with a draft order approved as to form and content by August 26, 2022. The parties’ draft order should also deal with the appropriate treatment of the applicant and D’s access to insurance benefits under the respondent’s TTC policy. If this deadline presents a problem, or if the parties seek further clarification, they may contact me through my judicial assistant.
Released: August 12, 2022, Pinto J.
COURT FILE NO.: FS-11-374568
DATE: 20220812
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hemwattie Sandy Punit
Applicant
– and –
Raj Komar Punit
Respondent
REASONS FOR DECISION
Pinto J.
Released: August 12, 2022
[^1]: The MOS states “Applicant,” however, the parties agree that the MOS contain a typographical error and should have stated “Respondent.”