NEWMARKET COURT FILE NO.: FC-13-42559-01
DATE: January 4, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
C.Z.
Applicant
– AND –
J.Y.
Respondent
Self-Represented
Self-Represented
HEARD: November 21 and December 9, 2022
WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.—(7) Order excluding media representatives or prohibiting publication. Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged. The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
REASONS/RULING
JARVIS J.
[1] On January 12, 2021 a final Order (“the Order”) was made by Himel J. dealing with property claims and child and spousal support. Both parties now seek to change certain terms of that Order. The respondent (“the father”) moves to terminate support payable to the applicant (“the mother”) for the parties’ oldest child (CZ): the mother wants to change several terms of the Order dealing with s. 7 expenses for the parties’ two children.
[2] This matter was scheduled to proceed as a long motion on November 21, 2022 but was adjourned by the court shortly after the hearing began because there was information lacking from the parties essential to the relief each was claiming. Directions were given.
[3] The parties complied with the Court’s directions.
Final Order
[4] Pursuant to the Order the father was ordered to pay $4,039 a month for child support based on an imputed income of $313,523. He wishes to reduce the amount he is paying to the mother by terminating CZ’s support to $2,476 a month for the parties’ other child (DY) who primarily lives with her. When the trial was held (early December 2021) CZ was not living with either parent. The local Children’s Aid Society (“the Society”) had become involved with the family in January 2020 following which CZ went to live with a family friend on June 16, 2020. This arrangement was formalized by a Kinship Service Agreement in September 2020 that continued until December 22, 2020. Until then, the Society had not provided any financial assistance to CZ or to anyone on her behalf. The support Order that included CZ was predicated on the child returning to live with her mother as noted in paragraphs [262] and [263] of the Decision[^1]:
[262] As per the wife’s recent affidavit, the child is currently quarantining at one of the Toronto Condos, with the intention of returning to her home on January 17, 2021. On the assumption that the child will be residing primarily with the wife as by January 31, 2021, I am suspending the child support from July 1, 2020 and reinstating it on February 1, 2021. During this period the child support shall be adjusted so that the husband is only liable for the table amount payable for one child plus $7,000 on behalf of CZ.
[263] If the above assumption about the child returning to the wife’s primary care is incorrect, the parties are directed to include this information in the affidavits that will accompany their costs submissions. I will then correct this mistake.
[5] The father does not dispute that CZ returned to live with her mother or that she is attending university away from her mother’s residence. It is his position that CZ is no longer a child of the marriage requiring him to pay child support to the mother and that as a result of financial arrangements made between the child and the Society, he has either overpaid the mother for child support, and is therefore entitled to a support credit, or he is no longer obligated to support CZ. Underpinning his overpayment complaint is the mother’s position that she should continue to receive full table support for CZ even when she is living at university. Paragraph [279] of the Reasons for Decision (including an explanatory footnote reproduced below) set out guidance from Himel J. for dealing with post-secondary education child support:
[279] I provide the parties with the following guidance with respect to support once either child (who is a child of the marriage) attends a post-secondary educational institution. If either child resides with either parent full-time (and does not incur expenses for an apartment or residence), the payor should pay the table amount to the recipient parent. If the child resides with a parent during the summer and school breaks, then a reasonable approach is for child support to be paid for 5/12 months.[^51] In either scenario, the RESPs are not typically used to pay the table amount of support but for the child’s tuition, residence/rent, food, books, transportation, computer and other incidentals.
[6] Paragraphs 4 and 7 to 11 of the Order are relevant to the mother’s claim (the terms which the mother wishes to change, and how, are italicized):
Child support shall end for either child when she is no longer a child of the marriage as defined by the Divorce Act. The recipient shall notify the payor immediately if either child is no longer a child of the marriage for support purposes.
If either Child enrolls in a full-time post-secondary education program and resides primarily with either party after they reach the age of majority (18 years of age), Guideline child support may continue to be payable for that Child to the party with whom they primarily reside, until such time as the Child no longer primarily resides with either parent or support is otherwise terminated as per paragraph 4 above.
The Respondent’s share for all section 7 expenses incurred up to January 31, 2021 shall be fixed at $3,281. The Respondent shall pay $3,281 to the Applicant within thirty (30) days.
Commencing on January 1, 2021, the Respondent and the Applicant shall share all special or extraordinary expenses for the Children on a 68% (Respondent) and 32% (Applicant) basis, as follows:
a. The section 7 expenses shall be as agreed to by both parties, in writing, in advance and such consent shall not be unreasonably withheld (the mother wishes this term deleted);
b. A full, proper and legible copy of the receipt for the section 7 expense, containing the full contact information of the service provider, shall be provided to the other party within seven (7) days;
c. Upon request by the other party, the party incurring the section 7 expense shall provide any required consent or authorization for the other party to contact the service provider to verify the section 7 expense; and,
d. Subject to the above criteria being met, the other party shall reimburse the party who incurred the expense within seven (7) days.
- The following expenses qualify as section 7 expenses, subject to paragraph 9 above:
a. Music lessons (up to $2,000 per year per child unless otherwise agreed to by the parties);
b. Spring / summer camp programs (up to $2,000 per year per child unless otherwise agreed to by the parties);
c. Tutoring;
d. Sports and music training;
e. Counselling / psychologist / psychiatrist; and,
f. Uninsured medical expenses for the children or, alternatively, the children’s portion of medical coverage obtained by the Applicant on their behalf;
g. One laptop every 2 years, and replacement, upgrade for the laptop in case of lost, stolen, damage, and data recovery (the mother wishes this term added).
- The parties shall share in the cost of the children’s post-secondary educations inclusive of the first degree (and additional degrees as agreed to by the parties or ordered by the Court), as follows:
a. Post-secondary expenses that are not funded by the two RESP accounts (Account#: 1458 5290248, Balance: $48,066.82 Account#: 1458 5448125, Balance: $56,061.99) shall be shared proportionately (Respondent (68%) and Applicant (32%)), unless otherwise agreed to by the parties or ordered by the Court.
b. All education expense payments from these accounts shall be made directly to the education institutions, the landlord or directly to the child. The expenses include:
i.Tuition and related school /administration fees;
ii.Residence or similar accommodation if the children are not residing in residence;
iii.Books;
iv.Meal plans or similar food budget if the children are not residing in residence;
v.One laptop (the mother wishes to add “…every two years, and replacement, upgrade for the laptop in case of lost, stolen, damage, and data recovery”);
vi.Cell phone and a phone plan (the mother wishes to add “…and replacement, upgrade for the cell phone in case of lost, stolen damage, and data recovery”); and,
vii.Travel to and from school for holidays.
[7] The mother also seeks an Order for retroactive support from July 2020 through to January 2021 for both children.
[8] Although each party filed updated financial statements reflecting incomes different from those imputed to them by Himel J. (the mother’s imputed income was $70,166) neither has raised the other’s income as an issue for this motion. The parties’ collective income is $383,689.
The Society’s financial involvement
[9] The child is receiving financial assistance from the Society. Section 77 of the Child, Youth and Family Services Act[^2] (the “Act”) deals with extended financial support for a child sixteen or seventeen years old:
77(1). The society and a child who is 16 or 17 may make a written agreement for services and supports to be provided for the child where,
(a) the society has jurisdiction where the child resides;
(b) the society has determined that the child is or may be in need of protection;
(c) the society is satisfied that no course of action less disruptive to the child, such as care in the child’s own home or with a relative, neighbour or other member of the child’s community or extended family, is able to adequately protect the child; and
(d) the child wants to enter into the agreement.
(2) The agreement may be for a period not exceeding 12 months, but may be renewed if the total term of the agreement, as extended, does not exceed 24 months.
(3) A child may enter into an agreement under this section regardless of any previous or current involvement with a society, and without regard to any time during which the child has been in a society’s care pursuant to an agreement made under section 75 (1) or pursuant to an order made under clause 94 (2) (d) or paragraph 2 or 3 of subsection 101 (1).
(4) A party to an agreement made under this section may terminate the agreement at any time by giving every other party written notice that the party wishes to terminate the agreement.
(5) No agreement made under this section shall continue beyond the 18th birthday of the person who is its subject.
(6) Despite subsection (3), an agreement may not come into force under this section until any temporary care agreement under section 75 or order for the care or supervision of a child under this Part is terminated.
(7) The Children’s Lawyer may provide legal representation to the child entering into an agreement under this section if, in the opinion of the Children’s Lawyer, such legal representation is appropriate.
[10] In two conference events preceding this hearing, Himel J. directed the Society to provide information relating to its involvement and financial assistance to CZ. Lisa Nyborg, a Children’s Services Worker, responded in two letters to the court which were then incorporated into an affidavit from her:
In December 2020, [CZ] was involved in discussions around entering into a Voluntary Youth Services Agreement (“VYSA”) and appointed a lawyer through the Office of the Children’s Lawyer (“OCL”) to review the agreement and her options. The Society determined [CZ] was a “child in need of protection” as outlined in the Child, Youth and Family Services Act (“CYFSA”) and on December 22, 2020, [CZ] signed a Voluntary Youth Services Agreement (“VYSA”) with the Society. While on the VYSA, the Society provided [CZ] with regular follow up service and monthly financial support.
In January 2021, CZ made the decision to return to her mother’s home and remained in the home until she moved into the University residence in September 2021. As a result of CZ moving back home, the VYSA had to be terminated. In discussions with myself and her appointed OCL she was informed that her VYSA would be terminated and that there would be a 3 month termination period which subsequently extended her agreement to her 18th birthday ([...], 2021).
CZ was eligible to receive Continued Care Support Services for Youth (“CCSY”) supports and services as she was on a VYSA agreement with the Society prior to her 18th birthday. The CCSY agreement is voluntary and renewed on an annual basis until her 21st birthday at which point services with the Society will conclude. On January 18, 2021, after meeting with her OCL, CZ made the decision to continue to receive services and support from the Society and signed the CCSY agreement on her 18th birthday. Once CZ signed the CCSY agreement and turned 18 years old, she was no longer deemed a “child in need of protection”. While on the CCSY agreement, the Society has been providing [CZ] with regular follow up service and monthly financial support.
CZ resided in her mother’s home from January 2021 until September 2021, at which time she moved into residence at the University of Guelph. While residing in her mother’s home, the Society provided CZ with monthly financial support in the amount of $1082.00 from January 2021 to June 2021. In July 2021, the monthly financial support was increased to $1200.00. CZ continues to receive this monthly financial support by the Society.
[11] Ms. Nyborg later expanded on her advice to the Court, the pertinent details of which include the following:
(a)A VYSA and a CCSY are voluntary agreements made between a youth such as CZ and the Society. The parents are not involved. The Society is not required to obtain financial disclosure/records from the youth before entering into either agreement, nor is there any authority to request financial disclosure from the youth or the youth’s parents about other sources of financial support;
(b)Generally, the Society’s financial support does not end earlier than a youth’s twenty-first birthday;
(c)The Society is required to give three month’s notice of terminating a VYSA or CCSY and will continue its support during the notice period;
(d)CZ signed the CCSY Agreement (“the Agreement”) on March 3, 2021. It was renewed in March 2022;
(e)The Society expects, but does not monitor, a child to use the monthly funds for living expenses, rent, groceries, clothing and personal hygiene. The Society cannot dictate how the funds are spent;
(f) The youth is not expected to return any funds paid to them by the Society;
(g)In addition to monthly funds paid to CZ, the Society assisted her by providing gift cards in modest amounts during the holiday seasons;
(h)The Society intended to review the financial component of the Agreement before its March 2023 renewal date, in part due to additional information obtained by the Society, including the father’s role in supporting her, but it was unclear whether the Society’s financial support would be reduced or ended following the March 2023 renewal date;
(i) CZ applied for, and received, a bursary from the York Region Children’s Fund (due to privacy constraints, the amount of this bursary could not be disclosed without CZ’s consent).
[12] Several reasons were given why the Society believed that the Agreement was in CZ’s best interests:
(a)The Society was concerned about the high level of conflict between CZ and her mother. Although the family was participating in counselling, that process had just started;
(b)CZ’s return to her mother’s care was recent;
(c)CZ had plans to leave home to attend university outside of Toronto in September 2021 and was entering a difficult and stressful period in her life; and,
(d)The Society continued to have concerns about CZ’s mental health and her ability to navigate that issue without support and guidance.
[13] When the trial was held Himel J. was only aware that the Society had arranged a VYSA on December 31, 2020, which provided some financial assistance when the child was not residing with her mother. The Court was concerned with what it described was the mother’s “highly problematic” actions in failing to disclose changes in CZ’s residential status, continuing to accept financial support for two children (when only DY was living with her) and hiding “[CZ]’s changed circumstances from the husband and the Court”.[^3]
Material change
[14] The support Order was made pursuant to the Divorce Act[^4], sections 17(1)(a), (4) and (6.1) of which are relevant:
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(a) a support order or any provision of one, on application by either or both former spouses;
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
[15] Section 14(a) of the federal Child Support Guidelines[^5] (“the CSG”) deals with variation of a support Order such as that made in this case:
- For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;…
[16] There must be a “material” change in circumstance from what existed when a final support Order was made. What that means was addressed by the Supreme Court in Willick v. Willick[^6]:
“In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation…The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa (1990), 1990 CanLII 3966 (ON SC), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 110-11 is apt:
It is established beyond dispute that a dependent child is entitled to look to both parents for support. It is also established beyond dispute that each parent has an obligation to provide for the support of the child. The amount of the support to be provided is the amount that will meet the needs of that particular child. The measure of those needs depends on a number of factors including the age of the child and the standard at which that child could reasonably expect to be supported. The reasonableness of the expectation is to be measured against the means and circumstances of the parents who have the obligation to provide the support. I know of no reason why that expectation should be any different for a child who is the innocent victim of the breakdown of the relationship between its parents. If the ability of the parents or either of them increases or decreases, it is reasonable to expect that the level of support of the child will increase or decrease. [Emphasis added.]”
[17] In LMP v. LS,[^7] the Supreme Court revisited the “material change” threshold for variation, although in the context of spousal support:
[30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370. Like the order at issue in this case, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporated provisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act, the predecessor provision to s. 17(4.1).
[31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.
[32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.
[35] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40, at para.49). Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).
[18] More recently the Ontario Court of Appeal reaffirmed in Licata v Shore[^8] the articulation of the test on a motion to change child support, in that case for children enrolled in post-secondary studies:
[19] Section 17(1)(a) of the Divorce Act gives a court of competent jurisdiction the power to vary a support order. Section 17(4) precludes the court from varying a child support order unless there has been a “change of circumstances” since the initial support order or the last variation order was made. Section 14(b) of the Federal Child Support Guidelines, SOR/97-175, contemplates that a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. As reviewed above, the 2017 Order also contained a term allowing for the variation of support when there is a material change in circumstances.
[20] In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688.
[21] The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:
a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
the change must materially affect the child; and
the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[19] As already noted, the mother seeks a retroactive Order for child support for two children for the July 2020 to January 2021 period when, in fact, only one child (DY) was living with her. The trial evidence disclosed that CZ was not living with her mother between mid-June 2020 until, it was anticipated, some time in January 2021 (which is what happened). Child support for CZ was suspended from July 1, 2020 to February 1, 2021. Himel J. accepted the mother’s evidence that she had directly and indirectly provided CZ with about $2,000 in cash and supplies and factored this evidence into the Court’s child support calculation.[^9] The Order was never appealed. There is no evidence before this Court warranting any change to this part of the Order.
[20] The mother (as noted in the italicized wording in paragraph 6 above) also seeks to vary paragraphs 10(g) and 11(b)(v) and (vi) of the Order. This request likely stems from the mother’s claimed difficulty in obtaining the father’s consent to contribute to these additional expenses, hence her request to delete subparagraph 9(a) of the Order requiring both parties’ consent to payment of a s. 7 expense, such consent not to be unreasonably withheld. This was a significant issue at trial, comprehensively addressed by Himel J. and which resulted in a duty to consult being ordered along with the suggestion that the parties consider mediation or mediation/arbitration if they were unable to agree, for example, on post-secondary expenses. Again, the Order was never appealed. The mother does not address what term, if any, should replace the duty to consult, thus implying that only she should have the right to determine what s. 7 expense should be incurred and its amount. Given the findings of Himel J. in her Reasons for Decision about the mother’s lack of financial probity and the Court’s observations when awarding the husband $65,000 costs that the mother “repeatedly crossed the line that ventures between full disclosure and careless, cavalier and/or conscious non-disclosure”[^10] with respect to the father, this Court is skeptical that the mother would exercise any duty to consult in good faith. Continuing conflict is not a material change in circumstances.[^11]
[21] Accordingly, the mother’s request to change the Order is dismissed.
[22] Conversely, there has been a material change in circumstances warranting a change in the Order dealing with the father’s child support obligations. It is his evidence, which this Court accepts, that while he was aware that CZ had signed a VYSA agreement, he never discovered that it had been replaced by the CCSY agreement even though he was paying (as ordered by Himel J.) table child support for CZ and DY. Nor was the father aware, nor the Court, about the extent of additional financial support being provided to the child by other third parties (i.e., bursaries, OSAP grants, etc.) despite the father’ repeated requests, and ultimately this Court’s direction, until the mother delivered her November 30, 2022 affidavit. None of this information was available to, or known, when the Order was made.
Child Support
[23] Sections 3(1) and (2) of the CSG deal with the presumptive rule applicable to child support for children under and over the age of majority (18 years old in Ontario):
- (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).
Child the age of majority or over
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child. O. Reg. 391/97, s. 3 (2).
[24] Two issues are engaged in this case: the first is whether the application of the presumptive rule is appropriate; and the second is whether, assuming the presumption has been rebutted on clear and compelling evidence, what amount for child support should be ordered. In Senos v. Karcz[^12] the Court of Appeal dealt with the approach to be taken to both issues:
[37] In Francis v. Baker, at paras. 42-49, the Supreme Court discussed the circumstances in which the presumptive Table amount in the Guidelines can be displaced. Section 3 of the Guidelines establishes a presumption in favour of the Table amount and the party seeking to deviate from that amount bears the onus of rebutting the presumption. That party is not obliged to call evidence and may simply choose to question the opposing party's evidence. However, the evidence must, in its entirety, be sufficient to raise a concern that the Table amount is inappropriate. There must be "clear and compelling evidence" for departing from the Guidelines amount. The factors to be considered in determining both whether the Guidelines approach is "inappropriate" and the "appropriate" level of support, are the conditions, means, needs and other circumstances of the child and the financial ability of both parents to contribute. Only after examining all the circumstances of the case should a Court find the table amount to be inappropriate and craft a more suitable support award. To determine "appropriateness", the Court must have sufficient evidence. Trial judges have the discretion to determine on a case-by-case basis whether a child expense budget is required and they have the power to order it. When the presumption in s. 3(2)(a) is rebutted, child support can then be set above or below the Table amount.
[25] In Lewi v. Lewi[^13] the Ontario Court of Appeal addressed the issue of the application of the presumptive rule to children such as CZ the age of majority or older:
[126] Section 3(1) provides that the “amount of a child support order” for a minor child is composed of two components: the amount set out in the applicable table and the amount, if any, under s. 7. The tables referred to in s. 3(1)(a) are the Federal Child Support Tables set out in Schedule I of the Guidelines. Section 7 allows a court to provide for an amount to cover all or any portion of special or extraordinary expenses. As I read s. 3(1), expenses ordered under s. 7 are not added to the amount of a child support order, but are part of it. I understand Laskin J.A.’s comment at para. 25 of Andrews v. Andrews (1999), 1999 CanLII 3781 (ON CA), 45 O.R. (3d) 577 (C.A.) to describe an expense under s. 7 as an “add-on” to the table amount. While the application of s. 3(1) is subject to the exception “unless otherwise provided under these Guidelines,” there is a presumption in favour of the amount determined by s. 3(1): Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250 at para. 42.
[127] Section 3(2) provides two ways of determining the amount of child support for a child of majority age. Under s. 3(2)(a), the amount of support for a child over the age of majority is calculated in exactly the same way as that for a minor child. The opening words of s. 3(2)(b) indicate that the amount determined by applying s. 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency and efficiency in the resolution of disputes concerning the amount of support for children of majority age.
[128] Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. It is apparent that the word “approach” was chosen with care, as the word “amount” is used six times in the section. In this way, s. 3(2)(b) differs from s. 4, which provides the court with discretion to depart from the “amount” determined under s. 3 where it considers that amount to be inappropriate. The words “that approach” refer to the technique dictated by s. 3(2)(a) namely applying the Guidelines “as if the child were under the age of majority”. I will refer to that technique as the “standard Guidelines approach”. Before resorting to its discretion under s. 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the child who is actually of majority age were a minor.
[129] The word “approach” makes it clear that the court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under s. 3(2)(a), i.e., the table amount or additional expenses under s. 7, to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate; clearly an exceptional situation rather than the rule. This further promotes predictability, consistency and efficiency in family law litigation.
[26] What is the clear and compelling evidence in this case that the standard Guidelines approach is inappropriate and the amount of the support Order should be changed? This is the evidence:
(a)From January 2021 to June 2021 CZ was paid $1,082 a month by the Society for her living expenses, rent, groceries, clothing and personal hygiene. This was increased to $1,200 a month in July 2021. Entitlement, but not necessarily the amount, is expected to continue until CZ’s 21st birthday on [...], 2024;
(b)Before she started university in September 2021, CZ was awarded a $5,000 BMO Capital Markets Scholarship to assist with her post-secondary education for 2021/2022 payable in two $2,500 tranches in September 2021 and January 2022;
(c)CZ’s first term university expense (the Fall Term) was $10,428.37. Of this amount $5,539 was paid by the Ontario Government to the university pursuant to its “Youth Leaving Care” initiative. Another $2,500 was awarded to CZ by the university as an “Accessibility Bursary”, thereby reducing the balance payable to the university to $2,189.27;
(d)On September 29, 2021 CZ was advised that she had been awarded a $2,300 bursary by the Canadian Federation for University Women Markham/Unionville to assist with her post-secondary education for the 2022(sic)/22 school year;
(e)The mother’s evidence is that while CZ had a room on the university campus and a meal plan (both included in the Fall and Winter Term expenses, along with a broad range of other expenses such as athletic fees, hygiene products, student health services and medical insurance) she spent much of that Term and the next living at home and attending courses on-line;
(f) CZ’s second term university expense (the Winter Term) was $10,052.77. The Ontario Government paid $5,539 and CZ was credited with another $2,500 Accessibility Bursary, reducing the balance (excluding the second $2,500 BMO Capital Markets Scholarship tranche) to $2,103.77;
(g)CZ transferred to another university for the 2022/2023 academic year. Its Fall Term expense was $10,161.85. In addition to tuition, a university residence and meal plan, a broad range of additional expenses similar to what was covered during her first university year was included. CZ applied for, and was awarded, financial assistance of $11,423 to be released in late November of which $3,060 was an Ontario Student Grant, $2,943 was for a Canada Student Grant for Full-Time Students and $5,420 was a Canada-Ontario Integrated Student Loan. Of this amount, $9,661 was paid directly to the university and $1,762 deposited to CZ’s bank account;
(h)On August 22, 2022 CZ was informed by the Society that she had been awarded a $1,500 grant to assist with her post-secondary education for the 2022/2023 school year;
(i) CZ was also awarded $6,002 payable between January 3 and January 5, 2023 to her school representing a $3,060 Ontario Student Grant and a $2,942 Canada Student Grant for Full-Time Students. Her request for a $1,613 Canada-Ontario Integrated Student Loan was not included because CZ did not request a loan. The mother’s evidence is that CZ was ineligible for a Fall term bursary from her new university because she was on academic probation from the first university and the application deadline had passed. However, CZ would be able to apply for this further bursary in the 2023 Winter Term;
(j) The mother estimated that the Winter Term university expense for CZ (tuition, fees) would be $10,161.85, like the Fall Term, but that there could be added a $750 “Possible Co-Op fee”) and other, unidentified miscellaneous costs of $2,500.
[27] Despite guidance from the trial judge that it would be reasonable to adjust the table amount of support if CZ undertook post-secondary education and lived for part of the year away from home, that never happened. The father paid, and continues to pay, $4,039 a month child support for two children.
[28] The application of the standard CSG approach is inappropriate in this case. Section 15.1(1) of the Divorce Act dealing with child support provides that “on application by either or both spouses” (italics here and following added) a court may order a spouse to pay child support. Section 1(a) of the CSG identifies that one of its objectives is “to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses”. This obligation includes a “child’s needs for shelter, food, clothing and the multitude of other expenses associated with raising a child”.[^14] But as Senos articulated there is also a societal dimension to financial support of a child that factors into the determination of the proper approach. The issue in that case was whether an adult child’s receipt of income support pursuant to the Ontario Disability Support Plan, 1997[^15] (“ODSPA”) made the presumptive “Table” approach to child support inappropriate. In finding that the standard Guideline approach was inappropriate the Court observed:
[67] The Table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society.
[29] There is no difference in principle between an adult child receiving ODSPA financial assistance and an adult child receiving financial assistance pursuant to a CCSY agreement or, for that matter, other third-party funding sources, although the latter may be less reliable in terms of eligibility, amount and duration. Where, as in this case, CZ is receiving significant third-party financial assistance for her daily living, personal and post-secondary expenses, it cannot be said that the standard Guideline approach is appropriate. Rather, the issue is determining an amount that fairly balances between CZ, her parents and, to a lesser extent, society the responsibility for her support.
[30] What change, or changes, then should be made to the support Order? For the most part, this involves an inquiry into the condition, means, needs and other circumstances of CZ.
Table support
[31] CZ returned to live with her mother in mid-January 2021 and began to receive directly from the Society $1,082 monthly for, as Ms. Nyborg explained, her living expenses, rent, groceries, clothing and personal hygiene. The father began paying $4,039 monthly child support for CZ and DY on February 1, 2021 this amount also intended to cover (as observed in Senos) shelter, food, clothing and other child-related expenses. While there is obviously an overlap in terms of what the expenses for which the Society was contributing and what the father was obliged to pay, the Court has no authority to deviate from the presumptive rule, except in circumstances of hardship (which don’t obtain in this case[^16]), until CZ’s majority in late [...] 2021. There shall be no table child adjustment, or credit, in favour of the father for February and March 2021.
[32] Between attaining her majority and August 31, 2021 CZ continued to receive $1,082 from the Society, this increasing in July and August 2021 to $1,200 a month. Despite the impracticality of trying to parse overlapping expenses for CZ during this period, this Court allocates to CZ a contribution to her living expenses with her mother of $600 a month for five months (i.e., April to August 2021, a $3,000 credit to the father).
[33] As already noted, Himel J. provided guidance to the parties how table support should be adjusted if and when CZ began living away from home attending university (i.e., $3,127 average child support a month over a twelve month period-see paragraph [5] above). This Court agrees with that approach for the period from September 1, 2021 to and including February 1, 2023.[^17] This amount should be further discounted by $600 monthly (as above) representing CZ’s contribution to her living expenses with her mother attributable to the funds received from the Society over the same period. The father is entitled to an overpayment credit of $27,216 (i.e. [18 months x $4,039] less [18 months x ($3,127-$600)]).
[34] In her submissions to the Court and in her evidence the mother stated that CZ spent more than seven months at home between September 2021 and August 2022 and, for the Fall term 2022, was living at home weekly from Thursday night to either Sunday evening or Monday morning. It was likely too that she would be undertaking a Co-Op program that over four or five terms would involve term placements alternating between on campus study and a work term likely in the GTA. Given the historical disclosure challenges in this case and the uncertainty of CZ’s actual living and schooling circumstances (a moving target) the Court is not prepared to speculate further about other adjustments.
[35] Effective March 1, 2023 the father shall pay $2,527 to the mother for support for their two children representing table support for DY and support for CZ adjusted pursuant to s. 3(2)(b) of the CSG. In the event that the Society should vary the monthly amount payable to CZ by the Society before [...], 2024 (CZ’s twenty-first birthday) this amount may be varied on motion to this court by either party.
S. 7 expenses.
[36] The evidence is that almost the entirety of CZ’s post-secondary education has been funded by third parties, even though each of her parents has a substantial net worth.[^18] Taking into account the $2,500 BMO Capital Markets Scholarship for CZ’s first year of university (see paragraph 26 above) all her post-secondary 2021/2022 expenses were collectively funded (and more) by the Ontario government, bursaries, grants and scholarships, with no repayment obligation except for the $5,240 Canada-Ontario Integrated Student Loan (see paragraph 26 above).This Court is very troubled that any such loan was ever considered, or even granted, when the parents’ net worth is close to $5,000,000 and there is over $100,000 in RESPs.
[37] In his evidence the father calculated that for the 2021/2022 post-secondary academic year CZ’s funding from all sources (including $5,000 from one of the RESPs administered by the father) exceeded her expenses by $13,316. 96. The Court agrees with this calculation, supported as it is by both parties’ disclosure.
[38] For her 2022/2023 Fall term CZ’s funding from third parties exceeds her expenses by $7,761.15 (this includes $5,000 paid to CZ by her father on November 28, 2022 from one of the RESPs as ordered by this Court on November 21, 2022 but does not include a Winter term bursary for which CZ would be applying (see paragraph 26 above)). While this Court has no information about the funding and expenses for CZ’s Winter term, it is not unlikely that they will be similar to the previous three terms.
Disposition
[39] While this Court is understandably concerned about CZ, her mental health, well-being and commends her academic efforts and resilience, it is disturbed by the parents’ reliance on government and other programs to fund her post-secondary education when their collective net worth is almost $5,000,000, of which nearly $1,000,000 (mostly the father’s savings) is liquid. Surely this is taking society’s interest in ensuring appropriate financial support for a child to an unacceptable extreme, the outer limits.
[40] In his Motion to Change the father sought an Order declaring CZ no longer a child of the marriage and claimed a child support overpayment credit of $35,049 for the period from February 1, 2021 to December 2022. There is no merit to his claim that CZ is not a dependant child of the marriage entitled to financial assistance from both her parents. He is entitled, however, to a child support overpayment credit of $30,216 payable by the mother (see paragraphs [32]and [33] above).
[41] The mother’s claims to change the Order are dismissed.
[42] When this Court adjourned the parties’ Motions to Change on November 21st for further evidence, the father was directed to outline his proposal for accessing the RESPs on a going-forward basis for the children. He provided two scenarios, one where the CCSY agreement continued and the other where it was terminated by CZ. While the father provided explanations for each proposal, they did not address his monthly child support obligation or how that interacted with the other s. 7 compensable expenses referenced in the final Order and the mother’s complaints about his lack of co-operation in seeking reimbursement. Himel J.’s suggestion that the parties consider mediation or mediation/arbitration was prescient. They should also consider engaging legal assistance. They can certainly afford both.
[43] As for costs, the father was significantly more successful than the mother. She is ordered to pay him all-inclusive costs of $5,000.
[44] Accordingly:
(a) The mother shall pay to the father the sum of $30,216 representing an overpayment of child support for the period from April 1, 2021 to February 28, 2023. This amount shall be paid in three tranches, a payment of $10,000 on or before February 28, 2023, a further $10,000 on or before May 31, 2023 and the balance on or before August 31, 2023. None of these payments shall attract interest unless there is default not cured within ten days of the payment due date;
(b) Paragraph 3 of the Amended Order of Himel J. dated January 12, 2021 is changed by ordering the father to pay $2,527 child support for the parties’ children starting March 1, 2023;
(c) In the event that the Society should change the amount payable to CZ pursuant to the CCSY agreement before [...], 2024, either party may seek leave of the Court by 14B motion on six days’ notice to the other party for directions with respect to varying the monthly child support payable by the father;
(d) The mother shall pay to the father all-inclusive costs of $5,000 within thirty days;
(e) In all other respects the terms of the Amended Order of Himel J. are unchanged;
(f) The balance of relief claimed by the father in his Motion to Change is dismissed;
(g) The relief claimed by the mother in her Response to the Motion to Change is dismissed.
[45] The amount payable by the mother in paragraph 44(a) above is predicated on the father complying with all the payment terms of the Order made by Himel J. including for the months of January and February 2023.
[46] A Support Deduction Order shall issue.
[47] Court administration is directed to have this Order issued and released to the parties.
Justice David A. Jarvis
Date: January 4, 2023
[^1]: C.Z. v. J.Y., 2021 ONSC 256.
[^2]: S.O. 2017 C. 14, Schedule 1.
[^3]: C.Z. v. J.Y, at paras. 258 to 260.
[^4]: R.S.C. 1985, c. 3 (2nd Supp.) as am.
[^5]: SOR/97-175, as am.
[^6]: [1994] 3 SCR 670, 1994 CanLII 28 (SCC), at para. XX.
[^7]: [2011] 3 SCR 775, 2011 SCC 64.
[^8]: 2022 ONCA 270.
[^9]: C.Z. v. J.Y., at para. 261.
[^10]: C.Z. v. J.Y., 2021 ONSC 1115, at para. 48.
[^11]: Goldman v. Kudelya, 2017 ONCA 300, at para. 41.
[^12]: 2014 ONCA 459.
[^13]: Lewi v. Lewi, 2006 CanLII 15446 (ON CA), at paras. 126-129.
[^14]: Senos, at para. 62.
[^15]: S.O. 1997, c. 25, Sched. B.
[^16]: The father’s financial statement sworn on February 15, 2022 disclosed a net worth in excess of $3,600,000 almost all of which was liquid. This does not include the two RESP accounts totaling $110,382.90 in the aggregate as of September 30, 2022.
[^17]: This is an arbitrarily chosen date by the court to ensure that the Family Responsibility Office can amend its records in a timely way upon receipt of a copy of this Ruling and Support Deduction Order.
[^18]: The mother’s financial statement sworn on February 22, 2022 disclosed a net worth in excess of $1,300,000, almost $500,000 in savings.
[^51]: For example, if CZ returns home and goes away to school in September 2021 but continues to reside with the mother during summer and school breaks the pro-rated payment over 12 months ($4,039 x 5) + ($2,476 x 7) = $37,527 is per year or $3,127 per month.