SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-20-062-0000
DATE: 2022/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZELJKO JEFIC
Applicant
– and –
GEORGINA JEFIC (NOW GRUJICIC)
Respondent
Self-Represented
Self-Represented
HEARD: September 12, 13, 14, 15, 26, 27, 28, 29 and November 14, 15, 16 and 17, 2022
Michelle Douglas-Cummings and Melanie Llerena attended on behalf of the Interjurisdictional Support Orders (ISO) Unit as a Friend of the Court
The honourable justice L. Madsen
CORRECTED DECISION: In paragraph 28, the year “2001” was corrected, on January 13, 2023, to read “2021.”
reasons for judgment
I Overview
This is an application by the former husband, Zeljko Jefic (“Mr. Jefic”) to vary the Order of Justice Doyle of the Court of Queen’s Bench (Family Division) of Manitoba, made May 12, 2008 [the “Final Order”].
The variation application is in relation to child support for the parties’ three now-adult children, and spousal support payable to the former wife, Georgina Jefic (“Ms. Grujicic”), under the Final Order.
Mr. Jefic resides in Manitoba and Ms. Grujicic resides in Kitchener, Ontario. The parties are divorced.
This proceeding is brought under sections 31 – 38 of the Interjurisdictional Support Orders Act, 2002, S.O. 2022, c. 13 (“ISOA”), which govern proceedings between provinces where a party outside Ontario seeks to obtain, vary, rescind, or suspend an Order, where the recipient is in Ontario.
The parties’ three children are:
a. Nemanja Jefic, born March 9, 1991 (now age 31), (“Nemanja”);
b. Stefan Jefic, born September 6, 1994 (now age 28), (“Stefan”); and
c. Aleksandar Jefic, born May 29, 2001 (now age 21), (“Aleksandar”).
Mr. Jefic seeks to terminate child support and spousal support payable under the Final Order, but is agreeable to sharing post-secondary expenses for Aleksandar if Ms. Grujicic contributes in equal measure.
In response, it appears that Ms. Grujicic consents to the termination of table child support for Stefan and Aleksandar, but seeks ongoing contributions to Aleksandar’s post-secondary expenses, table child support for Nemanja, and continued spousal support. Although it is unclear from the pleadings (more will be said about this below), she also seeks a retroactive increase in child and spousal support back to the date of the Final Order.
For the reasons set out below:
a. Child support for Nemanja under the Final Order shall terminate as at July 10, 2019;
b. Child support for Stefan under the Final Order shall terminate as at July 10, 2019; and
c. Child support for Aleksandar under the Final Order shall terminate as at July 10, 2019, except for the period from September to December 2021 when he was enrolled in post-secondary studies and residing with Ms. Grujicic;
d. Spousal support under the Final Order shall terminate as December 31, 2022;
e. No adjustment shall be made for payments made on account of special and extraordinary expenses paid for the children, but the obligation to pay same is terminated;
f. There shall be no retroactive amount payable to Ms. Grujicic on account of child support or spousal support, and no credits to Mr. Jefic for any claimed overpayment;
g. The evidence is insufficient to order contributions to Aleksandar’s post-secondary expenses at this time; and,
h. The claim for a restraining Order is dismissed.
II Procedure
Mr. Jefic brought his application in Manitoba, at which time he also served and filed a financial statement and supporting affidavit. The application was transmitted to the ISO unit. Ms. Grujicic filed a response to the application, which also included a financial statement as well as forms setting out the circumstances of each adult child. The materials were then forwarded to this court and the matter was conferenced in the ordinary course.
This decision arises from a 12-day trial, during which the court heard oral evidence from both parties and received extensive documentary evidence in relation to income and other issues.
At the commencement of trial, the court explained the trial process in some detail as both parties are self-represented, including basic principles regarding admissible evidence.
There was considerable animosity during the trial and Ms. Grujicic in particular had difficulty containing her emotions. She was volatile and interrupted frequently. Both parties were directed that name-calling (“liar” and “manipulator”, for example) would not be permitted and the court suggested acceptable ways to challenge evidence in the trial process. The trial required active management to keep the parties focused on the evidence relating to issues in the variation application. Ms. Grujicic had great difficulty accepting that the underlying 2008 Final Order was not being relitigated.
A representative of the ISO unit at the Family Responsibility Office attended on the first and last day of the trial to assist with framing the case and setting out the applicable law. This was helpful to the court.
I note that shortly after the conclusion of this trial, and while this decision was still pending, I was assigned to hear another trial in which Ms. Grujicic was a party. None of the parties in that trial objected. No evidence heard in that trial has been relied upon in reaching the decision herein.
III Brief Background and Summary of the Facts
The parties were married in Bosnia and Herzegovina in 1990, emigrated to Canada in 1996, and separated after 11 years of marriage, in 2001, now 21 years ago. They have the three children named above: Nemanja, Stefan, and Aleksandar.
When the parties immigrated to Canada, they settled in Winnipeg. At or around the time of separation, Ms. Grujicic moved to Kingston, Ontario. She subsequently moved to Waterloo, Ontario with the children.
Ms. Grujicic alleges that Mr. Jefic was abusive during the parties’ relationship and that this caused her to flee to Ontario. She says he was abusive both to her as well as to Nemanja. Mr. Jefic denies the allegations. After separation, Mr. Jefic was criminally charged (details unclear) and a no-contact Order was put in place. The charge was withdrawn, and the no-contact Order was subsequently lifted at Ms. Grujicic’s request.
For a time after separation, Mr. Jefic paid certain amounts on a voluntary basis to Ms. Grujicic for her and the children’s support.
In 2006, Ms. Grujicic initiated court proceedings which were heard in Manitoba. On January 30, 2008, Justice Doyle made a Final Order, the key terms of which, for the purpose of this variation application are:
a. That commencing January 1, 2008, Mr. Jefic pay ongoing child support for the three children of the marriage in the amount of $945 per month, based on his income of $51,700, being his approximate current income when the Order was made;
b. That Mr. Jefic pay retroactive child support then crystallized at $20,194 with credit for payments made; retroactive special expenses in the amount of $6,238; and retroactive spousal support in the amount of $1,900. The combined retroactive amount was $26,432.78, to be paid at a rate of $150 per month;
c. That Mr. Jefic contribute to certain special and extraordinary expenses for the children, including childcare for Nemanja; karate for all three children; swimming lessons for all three children; orthodontic and dental expenses for all three children; and tutoring for Nemanja. The combined contributions totaled $157.42 per month. Ms. Grujicic was to notify Mr. Jefic in writing within 30 days of no longer incurring any of the specified expenses.
d. That Mr. Jefic pay spousal support in the amount of $100 per month on the basis of his income of $51,700, and Ms. Grujicic’s income of $36,246; and,
e. That each party provide the other with a copy of his or her income tax returns and notices of assessment no later than June 30th of the following year.
Ms. Grujicic appealed the decision of Justice Doyle. Her appeal was dismissed by the Manitoba Court of Appeal. Ms. Grujicic sought leave to appeal to the Supreme Court of Canada. Leave was not granted.
Mr. Jefic paid support under the Final Order. Both parties agreed that as at the trial, there were no arrears under the Final Order.
As at the date of this decision, Mr. Jefic has paid total ongoing support, from January 1, 2008 to September 3 2022, of $205,496 (rounded) calculated as:
a. $56,494 from January 1, 2008 to November 30, 2011[^1]
b. $146,095 for the period December 1, 2011 to September 13, 2022[^2];
c. $1,938 for October and November 2022 (during trial).[^3]
d. $969 for the month of December 2022.[^4]
The Final Order also required payment of retroactive support/arrears for prior periods, arising from a readjustment of the ongoing support amounts before the Final Order based on updated income information. Mr. Jefic paid those amounts in full in 2009, and credit for doing so goes towards the period prior to the Final Order, not subsequent to it.
The Manitoba Enforcement Program (“MEP”) terminated the enforcement of support in relation to Stefan as at September 6, 2018; and for Aleksandar, support was suspended for a time but reinstated when he enrolled in post-secondary studies and was residing with Ms. Grujicic.
Following the Final Order, Mr. Jefic made initial efforts to disclose his income tax documents as required. In December 2009, Ms. Grujicic emailed him and said she did not wish to have any further contact from him, whether by email, telephone, or otherwise. In 2011, Mr. Jefic reached out to Ms. Grujicic’s lawyer requesting information as to where he should send the income tax documents, to which the lawyer responded, “Do not use me as a contact person.” Mr. Jefic says he was afraid to contact Ms. Grujicic directly with the tax information because he was worried she would make further allegations against him. Ms. Grujicic says she withheld her address from Mr. Jefic because of the alleged history of abuse.
Following the Final Order, Ms. Grujicic at no point advised Mr. Jefic that the special and extraordinary expenses in relation to the children had stopped, although clearly, several of them would have ceased to be incurred (childcare, for example). Enforcement of the childcare amount was finally stopped by the MEP in October 2021 when the youngest, Aleksandar, was 20. Mr. Jefic continues to contribute to other special expenses listed in the Final Order such as swimming lessons and karate for “children” who are now between 21 and 31 years of age.
Following the Final Order, Mr. Jefic’s income steadily increased. In 2013, he obtained his Canadian engineering credentials, supplementary to his engineering degree from Sarajevo. Mr. Jefic’s income then increased year-over-year. His income is derived from employment.
Following the Final Order, Ms. Grujicic also obtained credentials in Ontario, in addition to the engineering credentials she had obtained in Sarajevo. As at the trial she stated that she has three degrees and has almost completed a fourth degree. Her income has been largely derived from employment although she also receives employment insurance intermittently, as her employment is on a contract basis rather than full time. In addition, Ms. Grujicic also earned rental income until she sold her second property, a condo, in 2021.
The evidence of the parties’ respective incomes since the Final Order is as follows:
Year
Mr. Jefic
Ms. Grujicic
2008
$57,178
$42,909[^5]
2009
$63,068
$63,862[^6]
2010
$66,368
$23,889[^7]
2011
$72,448
$17,766[^8]
2012
$77,925
$33,131[^9]
2013
$82,262
$37,693[^10]
2014
$93,862
$50,552[^11]
2015
$95,073
$40,434[^12]
2016
$99,480
$45,213[^13]
2017
$105,095
$79,185[^14]
2018
$100,910
$64,333[^15]
2019
$103,470
$132,602[^16]
2020
$100,948
$81,926[^17]
2021
$109,057
$92,330[^18]
Mr. Jefic’s incomes set out above are based on the income tax information in evidence before the court. Notwithstanding repeated allegations in the trial that Mr. Jefic “hid income” from the court in the proceeding before Justice Doyle, Ms. Grujicic indicated that she accepts Mr. Jefic’s reported incomes from 2008 to the present as complete and accurate.
Ms. Grujicic’s tax materials are less clear. She has not consistently declared spousal support each year. There are numerous reassessments by the CRA. The table above attempts to back out spousal support from her income for each year in which it was declared. Rental income – whether positive or negative – has been included.
Ms. Grujicic testified that she anticipated her 2022 income to be approximately $62,000 and provided year-to-date paystubs confirming same. When asked about why her income had significantly declined from levels between 2019 and 2021, she stated that this was due to various health issues affecting her ability to work and her efforts to assist Nemanja. I note that Ms. Grujicic spent three months in Bosnia in 2022, which likely reduced her income.
Ms. Grujicic anticipates her 2023 income to be similar to her 2022 income. It was not clear to me why it would not return to the higher income shown in 2019, 2020, and 2021.
Mr. Jefic’s 2022 income is anticipated to be similar to 2021, approximately $109,000.
Following the Final Order, Ms. Grujicic continued to reside in Ontario and Mr. Jefic had parenting time in Ontario on a supervised basis, approximately quarterly. The visits took place at a facility in the community. Supervision stopped when Aleksandar turned 16. Mr. Jefic was estranged from Stefan for many years and much of this supervised parenting time did not include him.
Currently, Mr. Jefic visits the now-adult children approximately 3 times per year. Mr. Jefic testified that he tries to make these visits coincide with the children’s birthdays.
In summary, the children’s current circumstances are as follows:
a. Nemanja: Nemanja is 31 years old. He has intellectual challenges and experiences mental health issues. Nemanja has a six-year-old daughter, E., but as at this trial, was not in a parenting role with her. Nemanja presently lives with Ms. Grujicic, although he has lived independently at various points since he graduated from high school in June 2010. Nemanja is in receipt of payments from the Ontario Disability Support Program (“ODSP”). Until recently, he received $1,269 per month. The evidence is that he currently receives $1,327 per month. He pays Ms. Grujicic approximately $740 per month as a contribution to Ms. Grujicic’s expenses. Ms. Grujicic says Nemanja has a difficult time managing his money as he is impulsive.[^19]
b. Stefan: Stefan is 28 years old. In 2014, he completed a post-secondary program at Conestoga College. In 2020, Stefan was accepted into another full-time academic program but attended for only two weeks. Stefan works full time and earns an income. He does not reside with Ms. Grujicic. In oral evidence, it became clear that Ms. Grujicic consents to a termination of child support for Stefan as at July 2019. Mr. Jefic stated he seeks termination from September 6, 2018 when enforcement of support for Stefan was terminated by the MEP. However, Mr. Jefic’s variation application seeks termination from July 10, 2019.
c. Aleksandar: Aleksandar is 21 years old. The evidence is that he completed high school in June 2019 but did not graduate at that time. In the two years between July 2019 and July 2021, he completed two remaining high school credits, lived independently for at least six months, worked intermittently, and, according to Ms. Grujicic, spent considerable time online gaming. In September 2021, he enrolled in a full-time academic program at Conestoga College while residing with Ms. Grujicic. He did not wish to get vaccinated against Covid-19, so he was unable to continue in his studies in January 2022. He was out of school from January to August 2022. In September 2022, Aleksandar commenced a four-year program in computer science, also at Conestoga College. He currently resides with his brother Stefan. He has apparently received student loan funding for the current academic year, although it is unclear how much. Mr. Jefic co-signed for that funding. Ms. Grujicic did not.
IV The Parties’ Positions
- In short, it appears that the parties’ positions are as follows:
Re: Nemanja
- Mr. Jefic seeks to terminate child support under the Final Order as at July 10, 2019 on the basis either that Nemanja is independent but chooses to live with his mother, or, if he is dependent, that ODSP in any event adequately covers his needs. Ms. Grujicic seeks ongoing table child support for Nemanja on the basis that he is a “lifelong dependent,” who she says is incapable of withdrawing from parental control.
Re: Stefan
- Mr. Jefic seeks termination of child support as at September 6, 2018, although his pleading seeks termination as at July 10, 2019. Ms. Grujicic agrees to termination of child support as at July 10, 2019.
Re: Aleksandar
- Mr. Jefic seeks termination of child support under the Final Order as at July 10, 2019, but is prepared to pay child support for the period September 2021 to December 2021 when Aleksandar was enrolled in post-secondary studies. He is presently prepared to pay 50% of Aleksandar’s post-secondary expenses (commencing September 2022) after accounting for Aleksandar’s contribution from student loans or otherwise. Ms. Grujicic agrees that monthly child support may be terminated but seeks proportionate contribution to Aleksandar’s post-secondary expenses.
Re: Retroactivity
- Ms. Grujicic seeks upward retroactive adjustment of child support from the date of the Final Order. Ms. Jefic opposes such adjustment.
Re: Special and extraordinary expenses
- Mr. Jefic seeks an Order that the obligation to contribute to special expenses terminate and that he receive a reimbursement for the expenses back to 2013 for childcare; 2013 for karate; 2013 for swimming lessons; 2009 for tutoring; and September 2019 for orthodontic and dental expenses. Ms. Grujicic appears to oppose the termination of these payments and any retroactive adjustment in relation to same.
Re: Spousal Support
- Mr. Jefic seeks a termination of spousal support as at July 10, 2019. Ms. Grujicic seeks ongoing spousal support in an amount to be determined by the court based on the parties’ respective incomes.
Re: Restraining Order
- Well into the trial, Ms. Grujicic stated for the first time that she is seeking a restraining Order against Mr. Jefic. Mr. Jefic opposes such an Order being made.
V Legal Issues and Analysis
- Below I address the following issues:
a. The role of pleadings
b. Variation of support
c. Entitlement to child support for adult children
d. Retroactive child support and/or adjustment
e. Spousal support – retroactive and ongoing
f. Restraining Order
a. The Role of Pleadings
Pleadings frame the case before the court. They tell the court what the case is about and they are the mechanism by which parties tell one another the case the other has to meet. Thus, generally, a court will not make an Order on a motion or at trial that has not been sought in the underlying pleadings.
Having said that, where parties are clearly on notice of one another’s positions in a matter, and there is no element of surprise or inability to know the case to be met, courts have taken a practical and non-technical approach to this principle in many cases. The authority for so doing is often cited as Rule 2 of the Family Law Rules, which provides that the primary objective of the FLR is to deal with matters justly. This includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with a case in a manner that is appropriate to its importance and complexity, and giving appropriate resources to the case recognizing the need to give resources to other cases. See for example: Magcalas v. Magcalas, 2020 ONSC 595 at 65; Smith v. Smith, 2016 ONSC 1157 at 167 - 175; and Adorno v. Adorno, 2019 ONSC 5517 at 13. Applications of Rule 8 of the FLR similarly emphasize practicality and a non-technical approach where both parties have been clearly aware of the claims in the case. It is fair to say that where parties are self-represented, a broad and practical approach to pleadings will assist in treating matters justly.
Mr. Jefic’s pleadings are sparse and simply set out his request for a termination of support as at July 10, 2019. However, in his opening statement, he seeks reimbursement of amounts paid in relation to special and extraordinary expenses after certain dates. In his affidavit sworn September 24, 2019 in support of his variation application, Mr. Jefic does not request reimbursement. Indeed, he states that while he knew his children were no longer involved in the activities covered by the special expense payment, he chose not to seek to vary the Final Order on that basis until table support would no longer be payable for any of the three children, because he knew his income had increased, and he thought the section 7 amount would help ensure he was meeting his obligations.
However, the Trial Scheduling Endorsement Form (“TSEF”), which was completed February 1, 2022 by Justice Breithaupt Smith during a trial management conference makes clear that the issue was raised and included as an issue for trial. Ms. Grujicic was thus on notice at least eight months before trial that this claim was being made and has had full opportunity to respond to it. In the circumstances, the claim for retroactive reimbursement of special expenses will be considered, notwithstanding that it was not pled.
Ms. Grujicic’s pleadings are similarly sparse. In her Answer to the application, dated June 11, 2020, she sets out, without further detail, that she does not agree with the application. In the “Form L’s” in relation to each child, she particularized why, in her view, she continued (at that time) to be entitled to child support for each adult child. The focus seems to be a request that support continue, not a claim to retroactive support based on higher income.
However, in Ms. Grujicic’s affidavit sworn February 28, 2022, also eight months before trial, she clearly states that she is seeking retroactive adjustment of child and spousal support to the date of the 2008 Final Order. This issue was also included as an issue for trial in the TSEF. Mr. Jefic has been on notice regarding that claim since at least that time, and while there should, technically, have been an amendment to the pleadings, he would have known what was being sought. In his opening statement he sought an Order that the court reject Mr. Grujicic’s claims to reassess child and spousal support retroactively, showing his knowledge of that claim against him. Accordingly, the claim is considered, below.
As noted above, during the trial Ms. Grujicic also advanced a request that the court make a restraining Order, on what she referred to as “the strictest possible” terms. This was not sought in her pleadings, not referred to the TSEF, and not mentioned in her opening statement. She did not cross-examine Mr. Jefic on issues that might be relevant to the making of a restraining Order. In the circumstances, the claim for a restraining Order not having been pled and Mr. Jefic not having been on notice until late in the trial that it was being sought, I decline to consider this claim. However, in the event that I am wrong on this, the claim is briefly assessed below and I would in any event dismiss the claim on the merits.
b. Variation of Support
i. [ISOA](https://www.canlii.org/en/on/laws/astat/so-2022-c-13/latest/so-2022-c-13.html)
As noted, this is a variation application under ss. 31 – 38 of the ISOA. Although the parties are divorced, the Order sought to be varied was made under provincial legislation in Manitoba, including The Interjurisdictional Support Orders Act, C.C.S.M. c. I60 and The Family Maintenance Act, C.C.S.M. c. F20. The Divorce Order contains no corollary relief and grants only the divorce.
Section 35 of ISOA addresses choice of law rules in ISOA proceedings. In this case, the children’s and Ms. Grujicic’s entitlement to support will be determined under Ontario law, as will quantum of support, if any.
Under s. 36 of ISOA, the court may make a support variation Order, adjourn a hearing with or without making a temporary Order, or refuse to make a support variation Order. As seen below, this court will make a final Order varying the 2008 Final Order. Section 36(2) of ISOA permits this court to address issues of retroactivity.
ii. Variation under the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html)
As the Final Order was made under provincial legislation, any variation of the Order also proceeds under provincial legislation. This court cannot vary under the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) an Order made under The Family Maintenance Act of Manitoba.
Section 37 of the Ontario Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) governs variation applications under that statute in this case, and s. 37(1) provides that the variation application may be brought by a dependant or respondent named in the Order. In this case, the variation application is brought by the respondent named in the 2008 Final Order, Mr. Jefic.
Under s. 37(2.1), before a child support Order is varied, the court must satisfy itself that a “change of circumstances” has taken place since the child support Order was made. Case law has established that this means a “material” change of circumstances. This means that the change must be such that, if known at the time of the making of the Order, it would likely have resulted in different terms: see L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. The focus is on circumstances that have arisen since the making of the Order sought to be varied.
Under s. 37(2.1), before a spousal support Order is varied, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support Order or the last variation Order made in respect of that Order, and, in making the variation Order, the court shall take that change into consideration. Again, the change must be “material.”
On a variation application, the onus is on the moving party to show both the change of circumstances upon which they rely, as well as the appropriateness of the relief sought. In so doing, the court must consider the evidence and arguments of both parties: see Weber v. Weber, 2020 ONSC 4098, at para. 44, citing Punzo v. Punzo, 2016 ONCA 957, 90 R.F.L. (7th) 304, at para. 43.
I have no difficulty finding that a material change of circumstance has taken place since the child support Order was made. Indeed, numerous material changes have taken place, including significant increases in Mr. Jefic’s and Ms. Grujicic’s incomes over time; the children all becoming adults; Nemanja’s entitlement to and receipt of ODSP; and the changes in the children’s residential arrangements.
c. Entitlement to child support, including the issue of inability to withdraw from parental control
Section 31 of the FLA establishes that every parent has an obligation to provide support to his or her unmarried child, to the extent that he or she is able to do so, where the child is a minor, enrolled in a full-time program of education, or unable to withdraw from parental charge due to illness, disability, or other cause.
Section 3(2) of the Ontario Child Support Guidelines, O. Reg. 391/97, as amended (the “Guidelines”) applies to child support for adult children and states as follows:
Child the age of majority or over
(2) Unless otherwise provided under these guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
- The onus of establishing entitlement to child support for an adult child is on the party claiming support: see Rebenchuk v. Rebenchuk, 2007 MBCA 22, 389 W.A.C. 261, at para. 64. See also Vohra v. Vohra, 2009 ONCJ 135, at para. 13.
i. Post-secondary studies
Section 31 of the FLA explicitly provides that there is an obligation to provide support where a child, including an adult child, is attending a full-time program of studies.
Whether that support then includes table support, or what the contributions to the special and extraordinary expenses will be, depends on the circumstances of the parents and the child.
Courts increasingly recognize that there may be a transition period between children’s completion of high school or post-secondary studies and their ability to become independent. It is not always a straightforward matter to enter the workforce and child support may, in some cases, be appropriate during a transitional period: see K.M.R. v. I.W.R., 2020 ABQB 77. See also Boomhour v. Huskinson, [2008] 54 R.F.L. (6th) 297, 2008 CanLII 26261 at 40 – 46, and Rebenchuk v. Rebenchuk 2008 MBCA 22 (Man. C.A.) at 57.
Where an adult is attending post-secondary studies and a claim for support is made, the court must consider how much, if any, support should be paid to the claimant parent, as well as how post-secondary expenses should be shared, having regard to the means of the child and the incomes of the parents.
ii. Illness or disability as basis for inability to withdraw from parental charge
As also seen in s. 31 of the FLA, illness or disability is one of the bases upon which a child support obligation may persist in relation to adult children, where that results in an inability to withdraw from parental charge.
Being under parental charge includes consideration of whether the child remains financially dependent on a parent: see Warner v. Warner, 2017 ONCJ 920, at paras. 50 - 54, citing Oates v. Oates, 2004 CanLII 2544 (S.C.), [2004] O.T.C. 626. See also Rebenchuk, at para. 25. It also includes consideration of whether the child is unable to manage daily living without the consistent and direct monitoring, care, and support of a parent: see Weber, at para. 57, citing Senos v. Karz, 2014 ONCA 459, 120 O.R. (3d) 321, at para. 6.
Disability in and of itself does not, without more, ground entitlement to child support for an adult child. As set out in Weber, the court requires credible and trustworthy evidence that the child: (1) does in fact have that disability; (2) is under the charge of the claimant parent; and (3) is unable to withdraw from that parent’s charge due to inability to manage daily living on their own without that parent’s consistent care, monitoring, and support, or, is unable, due to the disability, to obtain the necessaries of life. See also Scott v. Scott, 2004 NBCA 99, 278 N.B.R. (2d) 61, at para. 46.
There must be evidence regarding the nature of the disability or illness, and specifically how that results in an inability to withdraw from parental charge or obtain the necessaries of life: see Weber, at para. 65 and K.M.R. v. I.W.R., 2020 ABQB 77, at para. 36. Evidence should be led regarding medical condition, treatment, and functioning of the adult child and how that does or does not support the claim: see Weber, at para. 88.
That an adult child is in receipt of disability benefits through government or other assistance may be relevant to whether the child is able to withdraw or obtain the necessaries of life but is not determinative: see Wetsch v. Kuski, 2017 SKCA 77, 1 R.F.L. (8th) 290, leave to appeal to S.C.C. refused, 2018 CanLII 53455.
However, a child who can meet his or her economic needs may remain eligible for support if he or she continues to require daily caregiving of a parent. In that circumstance, entitlement to child support will be shown, and the question is the quantification of child support, if any, in the circumstances: see Weber, at para. 67.
The court should also consider employability of the adult child, irrespective of receipt of disability payments. That the adult child is in receipt of such benefits is not proof of inability to earn income: see Weber, at para. 68.
The “means” of an adult child where a claim is made based on disability thus go both to the question of entitlement to child support as well as to the quantification of any support if inability to withdraw is established.
Where an adult child meets the entitlement criteria based on disability or illness, the question is then how to quantify the child support payable, if any, having regard to all of the circumstances of the child and the ability of the parents to contribute to the child’s support. The child’s means are relevant in this assessment.
One form of “means” of a disabled child may be disability payments, such as payments from ODSP. The leading case on how to account for such payments is the decision of the Ontario Court of Appeal in Senos, cited above. That case determined that the responsibility to support an adult disabled child is shared between parents and the state, and that the receipt of ODSP is sufficient to displace the table support approach under section 3(2)(a).
Under Senos, in the determination of an amount of child support in respect of a child in receipt of ODSP, s. 3(2)(b) of the Guidelines is to be applied in a manner that achieves an equitable balancing of responsibility between a child, the parents and society. The court should have regard to the disability amount being paid, and the needs and expenses of the adult child. This requires a comprehensive analysis, for which a full evidentiary record is required: see Weber, at para. 97.
iii. Findings regarding child support entitlement
- I find that for the purpose of the overall analysis herein, and notwithstanding that the claim for termination as set out in Mr. Jefic’s pleadings is only from July 10, 2019, it is necessary, given Ms. Grujicic’s claim to retroactive adjustment, to set out when the legal entitlement to child support in respect of each of the parties’ three children terminated, in addition to whether there is continuing entitlement.
Regarding Nemanja (age 31):
- I make the following findings regarding entitlement to child support for Nemanja:
a. On the evidence before the court, child support entitlement in respect of Nemanja ceased June 30, 2010 when he completed high school.
b. In seeking retroactive adjustment of child support for Nemanja, the onus is on Ms. Grujicic to establish entitlement to child support for Nemanja after he turned 18.
c. Nemanja turned 18 on March 9, 2009. He graduated from high school in June 2010. I find that child support was appropriate after he turned 18 and until he graduated from high school approximately one year later.
d. However, on the evidence before the court, I am unable to find continued entitlement to child support after Nemanja graduated from high school in June 2010.
e. While the court accepts that Nemanja has disabilities, the most recent medical evidence before the court is from 2007, 15 years ago. The assessment report, which was tendered by both parties in their evidence and admitted on consent is thus very dated. Ms. Grujicic offered hearsay testimony that she had been told that given the nature of Nemanja’s disabilities, nothing would have changed. Even if that statement were admissible, which it is not, it would be inefficient evidence to meet Ms. Grujicic’s onus.
f. As indicated, Nemanja graduated from high school. While Ms. Grujicic stated that this was only due to her significant efforts, nevertheless, this shows capacity on Nemanja’s part.
g. Nemanja resided with a partner (and not with Ms. Grujicic) for a period of approximately two years, between 2014 and June 2016. Thereafter, he resided independently until November 2017. This is a substantial period of time to have been able to live independently. Nemanja is also the father of a six-year old girl, although minimally involved in parenting at this time.
h. The court was provided little evidence regarding Nemanja’s efforts to obtain employment or pursue further studies. Much was made of employment he obtained at Staples in Kingston many years ago, but the court heard little evidence regarding why he had not sought similar employment since then. Ms. Grujicic stated that Nemanja was a valued employee and that Staples wanted him to continue working there. She blamed Mr. Jefic for Nemanja’s loss of this job but could not explain why Nemanja had not sought similar employment in Kitchener-Waterloo.
i. The court was not provided with any updated educational or occupational assessments which would assist in determining whether Nemanja’s disabilities prevent him from being independent. Nor was the court provided with documentary evidence of the basis upon which ODSP was approved or is being paid.
j. Nemanja has been able to travel independently, including recently residing in Bosnia and Herzegovina for eleven months between September 2021 and July 2022.
k. Nemanja has been in receipt of ODSP payments since he was 18 years old. Little historical evidence was provided regarding Nemanja’s needs over time, the amounts paid by ODSP, or the extent to which his needs were not met by ODSP.
l. As at the trial, Nemanja had been receiving $1,268 per month from ODSP. Ms. Grujicic stated that this amount was about to be increased to $1,327 per month. Again, there was little evidence regarding Nemanja’s needs, or why those needs could not be fully met on the ODSP amounts being paid. Ms. Grujicic testified that Nemanja transfers between $740 and sometimes up to $850 to her to cover the costs she says she incurs for him. There was little evidence of any shortfall attributable to accommodating to Nemanja.
On the evidence (or lack of evidence) as set out above, I find that Ms. Grujicic has not met her onus to show that Nemanja remained entitled to child support after June 30, 2010. She has not shown that he is under her “charge” and unable to obtain the necessaries of life, notwithstanding that he has resided with her for periods of time since then.
If I am wrong about this and Nemanja remains entitled to child support by reason of disability under s. 31 of the FLA, I find that Ms. Grujicic has provided insufficient evidence to determine the appropriate quantum of child support, if any, under s. 3(2)(b), whether retroactively or prospectively, having regard to the ODSP income.
I note that Ms. Grujicic’s budget as set out in her financial statement sworn June 11, 2020 does not particularize expenses related to Nemanja. Further, the table support for one child based on Mr. Jefic’s income of $109,057 is $981 per month. The amount presently received by Nemanja for ODSP is well in excess of that and Ms. Grujicic is reasonably compensated by Nemanja for housing and board.
Child support for Nemanja under the 2008 Final Order shall be terminated as sought by Mr. Jefic as at July 10, 2019 and retroactive adjustments of support are calculated below based on a June 30, 2010 termination date.
Regarding Stefan (age 28):
- I make the following findings regarding Stefan:
a. On the evidence before the court, I find that Stefan ceased to be a child of the marriage for the purpose of child support as at June 30, 2014 when he completed his post-secondary studies and was 20 years of age.
b. Since then, while he may have had intermittent financial troubles as asserted by Ms. Grujicic, and while Ms. Grujicic may have assisted him financially from time to time, that assistance was voluntary and does not attract a child support obligation from Mr. Jefic.
c. Stefan lives independently. He has been working more or less full-time since 2014 and has been earning an income.
d. Ms. Grujicic consents to a termination of child support in relation to Stefan as at July 10, 2019. While Mr. Jefic stated that he seeks a termination of support from September 2018 when the obligation was suspended by the MEP, his pleadings requested termination as at July 10, 2019. I grant the termination of Mr. Jefic’ obligations under the Final Order in respect of Stefan as at July 10, 2019.
e. As the parties consent to a termination of child support for Stefan, this finding that Stefan ceased to be entitled to child support as at June 30, 2014 is applied only to my calculation in respect of Ms. Grujicic’s claim to retroactivity, below.
Regarding Aleksandar (age 21)
- I make the following findings regarding Aleksandar:
a. On the evidence before the court, I find that entitlement to table support for Aleksandar ceased on June 30, 2020, one year after he left high school. While he did not obtain his high school diploma until June 2021 (two years after he left high school), I find that a two-year transition period during which he took only two courses, worked intermittently full-time, and at times did not reside with Ms. Grujicic, is unreasonably long in the circumstances. I allow a one-year transition period.
b. I find entitlement to table support resumed briefly in September 2021 when Aleksandar entered full time post-secondary studies and was residing with Ms. Grujicic and terminated in December 2021 when he declined to continue his studies. Entitlement to table support has not resumed again since then. He now lives independently with his brother Stefan.
c. While Aleksandar has now again resumed full-time post-secondary studies and would in the ordinary course be entitled to contributions to post-secondary expenses, I am unable to make that Order. The court was not provided with a budget for the cost of his studies, any invoice or receipt for the cost of enrollment, any evidence of how much Aleksandar may have available through savings, no evidence of what he received from student loans, or any evidence of other expenses for him. Further, Ms. Grujicic was clear that to the extent that Aleksandar has post-secondary expenses, she has not been paying for them.
d. However, to assist the parties and to reduce the possibility of further litigation, I would suggest the following approach to determining parental contributions to Aleksandar’s ongoing post-secondary expenses, while he is enrolled in full-time post-secondary studies, at least for a first degree:
i. Determine Aleksandar’s academic budget;
ii. Ascribe 30% of the responsibilities of those costs to Aleksandar (OSAP would likely meet this obligation);
iii. Determine the shortfall;
iv. Share the shortfall in proportion to incomes;
v. I recommend that the amount be paid directly to Aleksandar to eliminate interactions and conflict between the parties.
e. To be clear, the approach set out in paragraph 88 (d) above is not an Order, it is a recommendation.
In summary:
Child support for Nemanja under the Final Order shall terminate as sought by Mr. Jefic on July 10, 2019. For the purpose of retroactive calculations, child support entitlement will be deemed to have ceased June 30, 2010.
Child support for Stefan under the Final Order shall terminate as sought by Mr. Jefic (in his variation application, not in his opening statement) as at July 10, 2019. For the purpose of retroactive calculations, child support entitlement will be deemed to have ceased June 30, 2014.
Table child support for Aleksandar under the Final Order shall terminate June 30, 2020, with a further period of table support from September to December 2021. This court does not have the evidence to order contributions to post-secondary expenses.
d. Retroactive Child Support and/or Adjustment
Three significant cases of the Supreme Court of Canada guide this court’s analysis of retroactive support: Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183; Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147; and D.B.S. v S.R.G, 2006 SCC 37, [2006] 2 S.C.R. 231.
Those cases set out principles including the following:
a. The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility.
b. Retroactive support simply holds a payor to his or her existing but unfulfilled support obligations.
c. Retroactive variation of child support can be brought even if the child or children are no longer children of the marriage.
d. Once a material change of circumstances is established, a presumption arises in favour of increasing child support to the date the recipient gave the payor effective notice, up to three years before formal notice.
e. A failure to disclose material increases in income is blameworthy conduct, justifying variation to the date of the change in income, not only in the most egregious cases. In practice, retroactivity frequently aligns with the date of the material increase.
f. It would be “untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application”: Colucci, at para. 43. The exercise of judicial discretion must encourage financial disclosure and in no way reward those who withhold disclosure.
g. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
- As indicated, Ms. Grujicic has taken the position that child support should be recalculated back to the date of the Final Order on the basis of Mr. Jefic’s increases in income and what would have been increases in child support. I accept her position, albeit with some hesitation, and from 2009 rather than 2008, for reasons including the following:
i. The 2008 Final Order contained a clause which required annual financial disclosure by both parties. Mr. Jefic only disclosed his income for the first several years.
ii. While I accept Mr. Jefic’s evidence that Ms. Grujicic told him by email in 2009 not to contact her, I am unable to accept that he had no way to get in touch with her thereafter. Mr. Jefic was travelling to Ontario for access several times per year and would have been able to make arrangements to provide the disclosure set out in the Order, through third parties, if necessary.
iii. Mr. Jefic knew that his income was increasing and that his child support obligations were increasing in corresponding measure. By his own admission during trial, he made a strategic calculation that if he continued paying the amounts ordered in 2008 for longer than strictly necessary, he would be meeting his obligations. In my view, that, in part, accounts for his failure to make diligent efforts to disclose.
iv. I find that rather than being unable to locate Ms. Grujicic, Mr. Jefic followed the path of least resistance. When he wanted to bring his variation application, he did, and was able to locate Ms. Grujicic to serve her with the required documents. He could have – and should have – made further efforts to disclose his income on an ongoing basis as required by the Court Order.
v. At the same time, Ms. Grujicic was clear in her evidence that she did not, in fact, want to be located. She blacked out her address on tax returns she did disclose in 2014. She did not disclose changes in the children’s situations as they reached adulthood. She did not disclose the termination of the enumerated special expenses. She did not make herself easy to locate.
vi. Thus, while I find that retroactive calculation is appropriate, I also find that Ms. Grujicic is at least partly responsible for the lack of timely information exchange that the Order required.
vii. In determining that, on balance, recalculation is appropriate in this case, I am privileging the children’s interest in appropriate table support for the years during which they were entitled to child support, as I weigh the long-standing non-disclosure by Mr. Jefic against Ms. Grujicic’s stated opposition to being contacted.
i. Retroactive table support analysis
The Final Order is dated January 30, 2008, but the ongoing amounts commence January 1, 2008.
The income set out in the Final Order for Mr. Jefic was $51,700 and for Ms. Grujicic was $36,246. Mr. Jefic’s actual income for 2008 was $57,178, and Mrs. Grijicic’s actual income was $42,909. That is, both parties’ incomes were somewhat higher that year than anticipated by Justice Doyle. I do not find that a material change took place that year.
However, in 2009, Mr. Jefic’s income increased to $63,068 and Ms. Grujicic’s income significantly increased, to $66,862. In my view, those increases constitute a material change, and recalculation to determine retroactivity appropriately commences as at January 1, 2009. In accordance with the governing caselaw, the appropriate approach to quantification here is to consider the applicable table support amounts, year by year, from the date of the material change.
However, at the same time, it is appropriate to calculate those obligations on the basis of the applicable termination dates at law, rather than as set out above (termination date of the terms of the existing Order sought as at July 2019). That is, calculations should be based on table amounts for Nemanja terminating as at June 30, 2010, for Stefan terminating as at June 30, 2014 and for Aleksandar terminating as at June 30, 2020 (with the additional four months in 2021 as set out above).
Attached to this decision as “Schedule A” is a table setting out the amounts owed by Mr. Jefic as table support on the basis of his income in each year, with reference to the applicable Guidelines and the number of children entitled for each period of time. On that basis, by my calculations, he would have owed table child support of $145,891 from January 1, 2009 to December 2021. Neither party provided the court with any calculations.
As at the commencement of trial, Mr Jefic had paid $205,496 in total ongoing support (table support, special and extraordinary expenses, and spousal support, combined – see para 22, above) from January 1, 2008 to the last day of trial. Backing out 2008 (before the material change) leaves total payments made on account of ongoing support from January 1, 2009 of $191,072.[^20]
Of the $191,072 paid from January 1, 2009 to December 31, 2022, $16,800 was on account of spousal support (168 months x $100/m). This means that a total of $174,272 can be considered to have been paid on account of child support and special expenses from January 1, 2009 to December 31, 2022.
On these calculations, it appears that Mr. Jefic paid an “excess” of $28,381, over and above what his table support amounts would have been if adjusted in accordance with his income.
In Summary:
Total Ongoing Support paid
January 1, 2009 to December 2022 $191,072
Less Spousal Support Paid
January 1, 2009 to December 2022 ($16,800)
$174, 272
Less Table Support Obligation
Based on entitlement as found above ($145,891)
“Excess” $28,381
ii. Retroactive special expense adjustment request
As indicated, Mr. Jefic seeks certain retroactive adjustments for what he says are overpayments of special and extraordinary expense amounts.
The 2008 Final Order imposed a positive obligation on Ms. Grujicic to disclose when special expenses ceased to be incurred. She did not deny her failure to do so. She testified that the expenses were replaced by other expenses along the way, some of which were not special expenses at all. These include her expenses in a separate court case involving parenting of Nemanja’s child, and renovation expenses on her condo which she says were made to accommodate Nemanja (there was no evidence of this in the trial), for example.
As at the commencement of trial, the MEP continued to enforce special expense amounts for karate, swimming lessons, tutoring and dental expenses in the combined amount of $146.00. But for the historic underpayment of table support, this is ridiculous on its face.
The court simply does not have the evidence to make a determination as to when, exactly, each of these expenses ceased being incurred, and whether it is appropriate to credit Mr. Jefic with any overpayment in all of the circumstances. Given his strategic choice not to bring his variation application until he thought the duration of support outweighed any shortfall, I also do not think the burden falls on the court to prepare micro-calculations to ascertain minor adjustments. The court is being asked to unscramble the egg. The best I can do, on the evidence presented in this trial, is an omelet.
I utilize instead the following global analysis which in my view is a reasonable and proportionate manner in which to consider the issue:
a. As between all three children, from January 1, 2009, there was an entitlement to 226 individual “months” of child support (18 months for Nemanja, with support ending June 30, 2010; 66 months for Stefan with support ending June 30, 2014; and 142 months for Aleksandar with support ending June 30, 2020, and the further four months Sept – Dec 2021).
b. The “excess” child support paid using those termination dates totals $28,381 (total child support paid of $174,272 less table support that would have been owed of $145,891).
c. If one apportions that excess across 226 “child support months,” the resulting section 7 amount would have been approximately $126 per month, per child.
d. This is not an unreasonable amount per child for special and extraordinary expenses having regard to the parties’ respective incomes in the years in question.
While Ms. Grujicic absolutely should have disclosed when the various expenses terminated, Mr. Jefic should have disclosed his income so child support could be adjusted in a timelier manner.
The children resided with Ms. Grujicic full time and Mr. Jefic had very limited parenting responsibilities in the course of any given year. She would have incurred virtually all of the legitimate special and extraordinary expenses for them since the 2008 Final Order. In all of the circumstances, I am not prepared to make any adjustment to amounts paid to special and extraordinary expenses.
In conclusion, on the evidence before the court, although I have found that a retroactive calculation is appropriate in the circumstances of this case, I have also found that Mr. Jefic has met his obligations. Ms. Grujicic shall have no further claim to retroactive child support to the date of this decision. Further, there shall be no adjustment in Mr. Jefic’s favour.
e. Spousal Support
Mr. Jefic seeks a termination of spousal support as at July 10, 2019. Ms. Grujicic seeks ongoing spousal support in an amount to be determined by the court in all of the circumstances. She also asks that support be adjusted retroactively. Neither party provided any calculations to assist the court in addressing either retroactive or ongoing spousal support.
Subsections 33(8) and (9) of the FLA set out the purposes of a spousal support Order and the principles for consideration in the determination of any amount.
In this case, I have little difficulty concluding that at separation, Ms. Grujicic had an entitlement to spousal support that was compensatory in nature, both due to roles played during the parties’ marriage, and to disadvantage arising at separation. All three children remained with her at separation, and she was virtually solely responsible for all tasks associated with their upbringing in Ontario, while Mr. Jefic remained in Manitoba.
While this court was provided only with the 2008 Final Order of Justice Doyle and not his Reasons, compensatory grounds likely formed the basis for at least part of Ms. Grujicic’s entitlement to support under the Order.
Where entitlement is shown, the issue becomes quantum and duration, recognizing that the recipient spouse has an obligation to contribute to her own support to the best of her ability. There is no presumed termination date where parties separate and children remain with the recipient spouse.
The parties were married 11 years, from 1990 to 2001. As at the Final Order, Mr. Jefic’s income was $51,700 and Mr. Grujicic’s income was $36,246. On that basis, after the payment of child support in the amount of $945 per month and special expenses in the amount of $157 per month, Justice Doyle set spousal support at $100 per month. That amount is presumed to be correct and presumed to recognize the relevant factors before the court at that time. It is not this court’s role to second guess that.
Justice Doyle also set arrears of spousal support at that time at $1,900, being spousal support from July 1, 2006 to January 1, 2008. Again, that amount is presumed to have brought Mr. Jefic’s spousal support obligations current to that date, which was already seven years after the termination of the 11-year marriage.
Having regard to the parties’ incomes after 2008, it is possible that for a time Ms. Grujicic would have been entitled to a higher quantum of spousal support than provided for in Justice Doyle’s Order. This could particularly be so when less children became entitled to child support resulting in a greater capacity to pay spousal support.
However, even in 2010, when Mr. Jefic’s income was $66,368 and Ms. Grujicic’s income was only $23,889, DivorceMate calculations (prepared by the court in the absence of any having been provided by the parties) show no spousal support amount owing at any range in the Spousal Support Advisory Guidelines after accounting for table child support under the 2006 Federal Child Support Guidelines in the amount of $1,294 (in accordance also with the retroactive child support calculations undertaken above). The same result obtains even when table support dropped down to being payable for two children from July 1, 2010 (when, as found above, entitlement to child support for Nemanja would have ceased), when the table support amount for two children was $992 per month. Still, no spousal support amount is generated in the DivorceMate calculation. (In finding, above, that Mr. Jefic, overall, met his child support obligations, it is appropriate to reflect the actual table amounts per “Schedule A” in arriving at this conclusion rather than the court-ordered amounts.)
In other years, the calculation may have been favourable to Ms. Grujicic, although as indicated, I was not provided with that evidence.
The parties have now been separated for 22 years after an 11-year marriage. All of the children are adults. Ms. Grujicic has taken many steps to advance her education (as indicated, she has “almost” four degrees) and she states she is an expert in special education. Her income in recent years is upwards of triple that at separation. In 2019, her total income was $132,602 compared with Mr. Jefic’s $103,470; in 2020 it was $81,926 compared with Mr. Jefic’s $100,948; and in 2021 it was $92,330 compared with his $109,057.
In my view, there is insufficient evidence before the court to award retroactive spousal support to Ms. Grujicic for periods after the 2008 Final Order.
Further, there is no longer a basis to award ongoing spousal support. On all of the evidence, and to Ms. Grujicic’s credit, she has overcome such disadvantage as may have flowed from roles played during the marriage or on account of caregiving after the separation. There is no question she has worked hard to arrive at this position economically, and she is commended for doing so. However, at this time, no further spousal support is payable.
Mr. Jefic sought a termination of his obligation to pay spousal support as at July 10, 2019. However, spousal support under the Final Order shall terminate as at December 31, 2022. I make this determination having regard to the total amount of spousal support paid by him, which I find to have been modest in all of the circumstances. Given the compensatory basis of Ms. Grujicic’s entitlement, I am not prepared to order any repayment to Mr. Jefic. Spousal support shall simply terminate as at December 31, 2022 with no adjustment in either party’s favour.
f. Restraining Order
As seen above, Ms. Grujicic advanced a claim for a restraining Order against Mr. Jefic towards the end of the trial.
As indicated above, as the claim was not pled, and Mr. Jefic had no notice that this Order was being sought until well into the trial (the issue not even being raised in Ms. Grujicic’s opening statement), I find it is inappropriate to allow the de facto amendment to her pleadings now.
However, in the event that I am wrong on that and the claim should be considered, I would dismiss the claim for a restraining Order for reasons including the following:
a. The onus is on the party seeking a restraining Order to establish on a balance of probabilities that he or she have reasonable grounds to fear for their safety or that of a child. There must be a legitimate fear of acts being committed against them. The fear may be subjective but must be understandable on all of the evidence: see Gauthier v. Lewis, 2021 ONSC 7554 (S.C.J.) at paras 36. 37.
b. The court must exercise caution in granting a restraining Order, since it is quasi-criminal in nature and the sanctions for breaching it include possible imprisonment. Restraining Orders should therefore not be granted lightly, and should only issue with good reason and where a clear case has been made out: see Gauthier above, at para. 33; Reis v. Lovell, 2022 ONSC 1201 at para 58.
c. It is not sufficient to argue that there would be no harm in granting the Order. Bare allegations and conclusory statements that are not supported by other evidence will not suffice to obtain a restraining Order: see Noriega v. Litke, 2020 ONSC 2970, at para. 40; Yenovkian v. Gulian, 2019 ONSC 7279.
d. I am unable to find on the evidence that Ms. Grujicic has a legitimate fear of Mr. Jefic at this time. The parties have been separated since 2001. They reside in separate provinces. There was no allegation that Mr. Jefic has, since separation, attended at her home without permission, threatened her or the children, attended at her workplace, or otherwise done anything that would suggest that a restraining Order is now appropriate or necessary.
e. Thus, if the request for a restraining Order should be considered in this case, it is in any event dismissed.
VI ORDER
- In conclusion, I make the following Order:
a. Child support for Nemanja under the 2008 Final Order shall terminate as sought as at July 10, 2019;
b. Child support for Stefan under the 2008 Final Order shall terminate as sought (in the Application) as at July 10, 2019; and
c. Child support for Aleksandar under the 2008 Final Order shall terminate as sought as at July 10, 2019, except for the period from September to December 2021 when he was enrolled in post-secondary studies and residing with Ms. Grujicic;
d. Spousal support under the 2008 Final Order shall terminate as at December 31, 2022;
e. No adjustment shall be made for payments made on account of special and extraordinary expenses paid for the children to the date of trial, but the obligation to pay same under the 2008 Final Order is terminated as at July 10, 2019;
f. There shall be no retroactive amount payable to Ms. Grujicic on account of child support or spousal support and no credit or repayment to Mr. Jefic on account of any claimed overpayments;
g. The evidence is insufficient to order contributions to Aleksandar’s post-secondary expenses at this time.
h. The claim for a restraining Order is dismissed.
VII COSTS
The parties’ success in this matter is divided.
Mr. Jefic has been successful in terminating child and spousal support. He has not been successful, however, in his claim for retroactive payment to him on account of section 7 expenses. He was also not successful in resisting a recalculation of child support obligations based on his lack of disclosure.
Ms. Grujicic was not successful in obtaining continued child support for Nemanja nor in securing continued spousal support. She was successful in having the court recalculate child support retroactively but it did not result in any adjustment of support.
In all of the circumstances, unless offers to settle were exchanged in advance of the trial, I would find that success is divided and each party should bear their own costs.
If either or both parties served an Offer or Offers in accordance with Rule 18 of the FLR, I will accept costs submissions as follows:
a. From Mr. Jefic by January 16, 2023;
b. From Ms. Grujicic by January 23, 2023;
c. Reply of Mr. Jefic by January 30, 2023.
Submissions must not exceed four pages double spaced with 12-point font. Reply submissions must not exceed two pages double spaced with 12-point font. Bills of costs must be included with submissions if costs are claimed.
Submissions should be directed to my attention and may be emailed to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca and copied to the other party, at the following email addresses: zjefic@hotmail.com and ggrujicic@gmail.com.
Timelines for filing such submissions may not be extended without my permission. If submissions are not received in accordance with the timeline set out in paragraph 134, costs shall be deemed to have been resolved on a final basis between the parties.
L. Madsen J.
Released: December 23, 2022
Schedule A: Jefic v. Grujicic Retroactive Table Support Calculations
Year
Income
Children
Monthly Owed
Annual Owed
2009
$63,068
3
$1,234
$14,808
(2006 CSG)
2010
$66,368
Jan-Jun[^21]
3
$1,294
$7,764
Jul-Dec
2
$992
$5,952
2011
$72,448
2
$1,070
$12,840
(2011 CSG)
2012
$77,925
2
$1,146
$13,752
2013
$82,262
2
$1,199
$14,388
2014[^22]
$93,862
Jan-Jun
2
$1,340
$8,040
Jul-Dec
1
$831
$4,986
2015
$95,073
1
$841
$10,092
2016
$99,480
1
$876
$10,512
2017
$105,095
Jan-Nov
1
$920
$10,120
(2011 CSG)
Dec
1
$951
$951
(2017 CSG)
2018
$100,910
1
$917
$11,004
2019
$103,470
1
$938
$11,256
2020[^23]
$100,948
Jan-Jun
1
$917
$5,502
2021[^24]
$109,057
Sep-Dec
1
$981
$3,924
Total owed (table support)
$145,891
COURT FILE NO.: FC-20-062-0000
DATE: 2022/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
ZELJKO JEFIC
– and –
GEORGINA JEFIC (NOW GRUJICIC)
REASONS FOR JUDGMENT
L. Madsen J.
Released: December 23, 2022
[^1]: Table support of $945, plus s. 7’s of $157, plus spousal support of $100 for a total of $1,202 per month, for 47 months, which the parties agreed was paid as ordered. [^2]: In accordance with calculation of the Manitoba Enforcement Program for the period December 2, 2011 to September 13, 2022, made Exhibit 25 in the trial. [^3]: Calculated as child support for Nemanja and Aleksandar currently being enforced at $723 per month, spousal support of $100 per month, and s. 7 expenses of $146 per month, per Exhibit 37. [^4]: In accordance with the ongoing enforcement by the MEP of $969 per month. [^5]: 2008: Total income: $42,909, no spousal support reflected. [^6]: 2009: Total income: $68,062, less taxable support shown as $4,200 = $63,862. [^7]: 2010: Total income: $25,089 less $1,200 spousal support. [^8]: 2011: Total income: $17,766 no support reflected on final ITR. [^9]: 2012: Total income: $34,331 less $1,200 spousal support. [^10]: 2013: Total income: $38,893 less $1,200 spousal support. [^11]: 2014: Total income: $50,552, no spousal support reflected on ITR. [^12]: 2015: Total income: $41,634 less $1,200 spousal support. [^13]: 2016: Total income: $46,413 less $1,200 spousal support. [^14]: 2017: Total income: $80,385 less $1,200 spousal support. [^15]: 2018: Total income: $65,533 less $1,200 spousal support. [^16]: 2019: Total income: $133,502 less $900 declared spousal support. [^17]: Per 2020 Notice of Assessment; spousal support was not declared. [^18]: Estimate based on T4’s ($71,834 from Conestoga College; $16,725 from the Waterloo Region District School Board; and $3,771 from Employment Insurance). This does not include capital gains income from the sale of condominium, or rental income either from Nemanja or from tenants in the condo before it was sold. [^19]: Ms. Grujicic testified that before the advent of COVID-19, ODSP paid an amount to her directly for Nemanja’s room and board and a separate amount to Nemanja. She stated that more recently, however, ODSP has moved to paying the entire amount to Nemanja and she requests rent from him. [^20]: $42,070 from January 1, 2009 to November 30, 2011 (35 months); $146,095 for the period December 1, 2011 to September 13, 2022; $1,938 for October and November 2022 (during trial); and $969 for December 2022 in accordance with the enforcement in place. This totals $191,072. [^21]: Nemanja turned 18 March 9, 2009; termination June 30, 2010, when he graduated from high school. [^22]: Stefan finished post-secondary studies June 2014, termination of child support June 30, 2014. [^23]: Table support for Aleksandar until June 30, 2020, one year after leaving high school. [^24]: Table support for Aleksandar Sept – Dec 2021 (4 months) while in full time post-secondary studies.