COURT FILE NO.: FS-03-FA011752-F1S DATE: 20240408 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHEN GILCHRIST Applicant – and – LESLEY MOSES Respondent
COUNSEL: J. Rechtshaffen and K. Davis, for the Applicant J. Miliaris, for the Respondent S. Sadacharam, for the Family Responsibility Office
HEARD by videoconference: February 29, 2024
Leiper, J.
REASONS FOR DECISION
INTRODUCTION
The Applicant’s Motion
1This is a decision on a motion brought by the Applicant father, Stephen Gilchrist, seeking to reduce longstanding s.7 expense arrears owed in relation to his two children, who are now young adults and a cross-motion brought by the Respondent mother, Lesley Moses.
2The parties were last in a Canadian court in 2003. There were two orders which addressed s. 7 expenses. The first order, made on April 7, 2003 by MacDonald, J. (the “April Order”) and the second order on July 10, 2003 (the “July Order”) by Spiegel, J. Both orders have provisions requiring the father to pay, among other things, s. 7 special and extraordinary expenses for the children.
3In the period since the orders were made, the Applicant has paid nothing toward his children’s section 7 expenses. He asks this court to reduce his arrears to $12,545.35. Pursuant to r. 14.1 of the Family Law Rules; he also seeks orders declaring that he is no longer obliged to pay child support and setting aside the provisions in the April Order and the July Order to pay s. 7 expenses.
The Respondent’s Cross-Motion
4On February 15, 2024, the Respondent served a cross-motion in which she sought to update the amounts she has spent, supported by receipts, for s. 7 expenses that she has actually paid, including for post-secondary studies. She acknowledges that the arrears calculated by operation of the Support Deduction Order made in 2003 are higher than her actual expenses and agrees that some of the arrears should be reduced.
5In her amended Notice of Motion, the Respondent seeks to bring her cross-motion contemporaneously with the Applicant’s motion, and for orders as follows:
a. an order vacating paragraph 1 of the order of Black, J. made January 31, 2024 which stayed any enforcement proceedings in Florida,
b. an order dismissing the Applicant’s motion on the grounds that there is no statutory authority for the relief sought, or alternatively
i. an order pursuant to the Divorce Act, and further to the April and July Orders, that the Applicant pay s. 7 child support arrears fixed in the amount of $122, 667.98 plus interest calculated in accordance with the underlying orders and section 129 of the Courts of Justice Act within 30 days, an order that the Applicant contribute 50% to the children’s additional s. 7 expenses pursuant to the April and July Orders for post-secondary expenses, health expenses or in the further alternative ,
ii. that the Applicant pay to the Respondent child support arrears fixed in the amount of $83,432.08 plus interest calculated in accordance with the underlying orders and section 129 of the Courts of Justice Act, R.S.O. 1990, c.C.43, within 30 days;
c. an Order that costs are payable further to the July Order at paragraph 8 thereof together with interest in the total amount of $4,074.81 ($1,500 costs plus interest calculated from date of Order to and including March 20, 2024) be collectible as child support and enforced by the Family Responsibility Office pursuant to section 1(1)(g) (definition of “support order”) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c.31 and section 129 of the Courts of Justice Act;
d. an Order that interest be calculated on the support amounts owing in accordance with the underlying Court orders and section 129 of the Courts of Justice Act; and
e. a further Order that any interest calculated and ordered to be collectible as child support and enforced by the Family Responsibility Office pursuant to section 1(1)(g) (definition of “support order”) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c.31;
f. an Order awarding costs of this motion to the Respondent on a full indemnity basis, including disbursements and GST, with any costs ordered to be collectible as child support and enforced by the Family Responsibility Office pursuant to Rule 24 of the Family Law Rules and section 1(1)(g) (definition of “support order”) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c.31;
6The Applicant asked the court not to consider the Respondent’s cross-motion on the basis that the Respondent had not moved expeditiously to seek adjustments based on additional s. 7 expenses incurred on behalf of the two children, and only raised them when his motion put the amount of arrears in play.
7For the reasons set out below, I found that the best interests of the children, and the record fully supported hearing both motions. Leave is granted to the Respondent to bring her cross-motion. I have fixed the arrears of s. 7 expenses, supported by the updated material filed by the Respondent and considering the updated FRO records filed post-argument, at $83,432.08. I make the orders requested by the Respondent for costs plus interest as ordered in the July Order in the amount of $4,074.81 and for interest payable on the varied amount of s. 7 arrears ordered to be paid. These amounts shall be collected as child support and enforced by the Family Responsibility Office. I order that paragraph 1 of the order of Black, J. dated January 31, 2024 be vacated.
8These are my reasons for making these orders.
BACKGROUND
9The Applicant and the Respondent are the parents of two children, C. born in 1997, and A. born in 2001. The Applicant is an architect in Florida with several business enterprises. The limited disclosure he has provided shows that he is debt-free and has been involved in buying and selling properties with his current spouse.
10The Respondent is an accountant and is self-employed. She raised C. and A. on her own. C. has completed her post-secondary studies and A. is looking for employment. They have a close and loving bond with their mother. She described her pride in their accomplishments in her affidavit material. Financially though, she has not fared as well as the Applicant. She has had health challenges flowing from a serious motor vehicle accident 2006 and recently has had invasive surgery for cancer. She is also carrying debt on a line of credit. She has had to take on debt over the years for expenses to raise the two children.
11The Respondent has provided detailed receipts, diplomas and information concerning the expenses of raising her children. Where she has not been able to locate receipts, she has detailed the reasons for doing so. I accept her evidence on the basis that it is logical, careful and consistent with her life experience, her training in financial matters but also due to the passage of time.
12The parties were married for less than a year in 1997. They separated and then were divorced on June 16, 2000. In 2001, they reconciled and resumed living together. They had their second child, A. in 2001. On August 11, 2001, the parties separated again after an incident in the home.
The Post-Separation Litigation in 2003
13In 2003, the Applicant issued a Statement of Claim seeking relief from the Respondent including access to his children. The Respondent served a Defence and Counterclaim. Those proceedings ended abruptly when the Applicant disengaged from the litigation process and left Canada. He began a new life in Florida where he has lived since his move there.
14On April 7, 2003, the parties attended a case conference before MacDonald, J. and signed minutes of settlement. Each was represented by counsel. Justice MacDonald signed the April Order based on the parties’ minutes of settlement.
15The April Order provided interim access to the children for the Applicant, an order for a clinical assessment of the Applicant, child support based on his income set at $70,000, various income disclosure orders and an order for proportionate contribution to s. 7 expenses as follows:
THIS COURT ORDERS that on the premise that each party earns $70,000 per year they shall each contribute 50% toward the net cost of any section 7 expense. The Defendant shall provide proof of her income to the Plaintiff within the next 14 days.
16The April Order provided for interest payable at the rate of 4% from the date of any default of the order.
17Shortly after this attendance, the Applicant stopped exercising his right of access, ceased communicating with his lawyer and did not appear at any further court appearances. The Respondent brought a motion returnable before Justice Speigel for a further order addressing arrears of s. 7 expenses, costs of the clinical assessment for the Applicant, retroactive child support, and specific prospective s.7 expenses for which she sought contribution.
18At the motion before Spiegel J on July 10, 2003, the Applicant did not appear although he was served with notice.
19Based on the material before her and the submissions from counsel for the Respondent, Justice Spiegel made the July Order which granted interim and permanent custody of the children with the Respondent, no access to the children by the Applicant without a psychological evaluation, and an order for child support in favour of the Respondent, without prejudice to her right to seek a further adjustment once the Applicant’s income from all sources was known.
20Spiegel J. also ordered the Applicant to pay 50% of s. 7 expenses accrued since April 30, 2003, fixed at $5544.06 with the Applicant’s share fixed at $2772.03 and ordered the Applicant to contribute 50% towards the cost of the children's ongoing Section 7 expenses, specifically consisting of:
i. Daycare - $375 per month; ii. Aftercare - $216 per month; iii. Summer camps - $110.17 per month; iv. Gymnastics: $16.67 per month; v. Skating: $8 per month; and vi. Swimming lessons: $13.33 per month.
21These amounts were totalled and included in the Support Deduction Order provided to the Family Responsibility Office. Since 2003, save for an adjustment made by the FRO in 2013 to remove the daycare component, these amounts have accrued and make up the arrears that are in dispute.
22In the years following the April and July Orders, the Applicant did not seek any contact with the two children. He did not follow through voluntarily on any of the orders for disclosure of income in the orders, payment of child support or section 7 expenses. He did not pay the costs awarded against him or his share of the cost of the clinical assessment.
23The Applicant did not return to court at any time to vary the order, and as the children grew up their expenses changed. They no longer required daycare but there were other expenses as detailed in the Respondent’s affidavit. They stopped going to summer camp and the other activities listed above, but the eldest attended university and teachers’ college and the youngest has had some special medical needs. The arrears continued to be calculated based on this “snapshot” in time of the children’s expenses.
24All of these expenses are detailed and described in the Respondent’s affidavit, which I have accepted as reliable evidence on the cross-motion.
Attempts to Enforce the Support and s. 7 Expense Orders by the Family Responsibility Office
25Information received from FRO on this motion explains why child support as ordered, but not the s. 7 expenses have been collected in Florida, leading to the reason for this motion.
26On November 19, 2003, FRO’s “ISO Unit” sent the April and July Orders to the Florida Central Registry for registration and enforcement where the Applicant resided.
27In her affidavit, the Respondent states that she hired a private investigator at a cost of $5,000 to find the Applicant’s address in Florida so that the FRO could locate him for the purposes of enforcement. Further, he participated in the processes in Florida because he was on the brink of not being able to renew his driver’s licence due to unpaid child support.
28On April 4, 2004, FRO was advised by the Child Support and Enforcement Office in Green Cove Springs, Florida that they had verified the Applicant’s location. The order was forwarded to the clerk’s office at the local courthouse for registration.
29The FRO Director’s records show that the Applicant advised FRO on October 29, 2004 that he had completed paperwork to vary the amounts he was to pay for support. He was informed he would have to file a request to vary the order for support in Ontario.
30On November 10, 2004, the Applicant advised FRO that “the Floridian judge does not know about the ISO process or how to vary the support order.”
31On November 12, 2004, the Applicant contacted FRO to inquire how he could vary the existing support order.
32On December 14, 2004, the Florida Maintenance Enforcement Program advise the FRO that there were enforcement proceedings in Florida ongoing at which the Applicant disputed the amounts owing. The presiding judge requested clarification about the court orders.
33In the affidavit filed by FRO, the next step in those proceedings involved a Floridian judge ordering enforcement of child support from the Canadian orders, but not the s. 7 expenses. As the FRO affiant explains:
- On February 7, 2005, the Department of Revenue/Child Support in Florida advised the ISO Unit that a hearing was held on January 25, 2005, wherein the Magistrate decided that Florida would only enforce the ongoing monthly obligation of $755.00 USD, with represents the “basic support obligation” (i.e. table support) “without the extras” (i.e. section 7 expenses). The ISO Unit was further advised that the Payor’s “attorney implied that the additional amount [was] subject to further scrutiny and that the attorney would be filing a motion in Ontario to modify the current order”.
34On February 25, 2005, the FRO Director received the Florida order from the Circuit Court, Fourth Judicial Circuit of Clay County court. The FRO affidavit states that the preamble to that decision stated that the “cause came before the court upon a motion to modify child support and motion for contempt.” The Applicant had counsel representing him at the hearing and the Department of Revenue appeared as well.
35The court ordered monthly payments of $755.00 USD towards child support, $100.00 USD towards arrears of child support, commencing March 1, 2005. The court reserved the right to make further modifications pending “the outcome of a modification hearing in Canada.”
36The Applicant brought no motion to modify or vary the April or July Orders. In his affidavit of June 23, 2023, at paragraph 15, he stated that he was not aware of the July Order or of the motion that gave rise to that order because he had left Canada.
37The records contradict the Applicant’s evidence that he did not know about the July Order. The Florida Department of Revenue provided a copy of the Applicant’s supplemental petition for modification in 2005, to the FRO which included a copy of the July Order. That information was placed before the court on this motion from the FRO.
38Pursuant to the April and July Orders according to the FRO, the Applicant owes arrears as of February 28, 2024 are $122, 667.98
39Those proceedings were temporarily stayed by the order of Black, J. who held two case conferences prior to this motion. Black J. ordered both parties to exchange updated financial information and information about the expenses of the children. Both parties have had partial success in locating the relevant documentation, but given the length of time covered, that disclosure is incomplete. For example, the Applicant was only able to locate the first page of some of his past tax returns. Despite this reality, the parties wished to proceed to adjudication of the issues on the available records.
Positions of the Parties
40The Respondent does not agree with the Applicant’s proposed reduction of arrears for s. 7 expenses. She agrees that the FRO arrears should be adjusted in his favour and proposes that his contribution should be adjusted to reflect the actual s. 7 expenses for both children since the date of separation. She has filed receipts and information in support of a reduced amount of s. 7 arrears of $83,432.08.
41This order would align with the April order which required the Applicant to pay 50% of the children’s s.7 expenses since separation.
42The Applicant seeks a reduction based on his interpretation of the July order for expenses limited to those listed in that order, for which the Respondent has produced receipts, and to have his responsibility for the children’s expenses terminated on payment of those arrears.
Analysis
43The Applicant’s motion concerns the alleged misapplication of the July order which led to an accrual of arrears that he challenges as being too high and not responsive to the actual s. 7 expenses for the two children. The Respondent’s cross-motion and response to the main motion proposes an overall adjustment to the arrears in line with the April and July orders which provided for a 50% sharing of s. 7 expenses and a reduction of the arrears to accord with actual amounts spent as supported by the receipts she has provided in response to the Applicant’s motion.
44Section 17 of the Divorce Act permits the court to retroactively decrease child support owing or forgive arrears owing. As the Supreme Court noted in Colucci v. Colucci, 2021 SCC 24: “In an ideal world, when parents work together in the best interests of their children, they will provide full and accurate income information every year and recalculate the proper amount of support owing.” Section 17 of the Act provides the court with broad powers to adjust child support provisions because “wide judicial discretion is necessary to respond to the multiplicity of factual situations produced by human behaviour: Colucci at para. 29.
45Child support under the Divorce Act is determined in accordance with the Guidelines, enacted pursuant to s. 26.1 of the Divorce Act. Section 1 of the Guidelines sets out four overarching objectives that must be borne in mind in any child support proceeding in which the Guidelines apply:
a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
d. to ensure consistent treatment of spouses and children who are in similar circumstances.
46The Guidelines rest on the principle that "spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation": Divorce Act, s. 26(2).
47In S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, the court confirmed the long-established principles that support is the right of the child and parents have a financial obligation to their children arising at birth and continuing after separation: D.B.S. at paras. 37-38; Colucci at para. 36.
48While this is an atypical situation and does not involve a question of retroactive support based on changes of circumstances or changes in income, I am guided by the balancing of interests with the goal of achieving a fair result discussed in Colucci at para. 46:
[F]irst and foremost, the child's interest in receiving the appropriate amount of support to which they are entitled; second, the interest of the parties and the child in certainty and predictability; and third, the need for flexibility to ensure a just result in light of fluctuations in payor income [citations omitted] 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 (Emphasis added.)
49The supplemented record on this motion shows that the Applicant attempted to vary his obligations to support his children in Canada pursuant to both the April and July Orders. He has paid base child support by virtue of the enforcement processes in Ontario and Florida, but because the Florida court declined to enforce the s. 7 expenses ordered in Canada, those arrears have accrued, unpaid for years. He clearly had obligations in that regard pursuant to both orders and whether the parties agree about the meaning of the s. 7 portion of the July Order, the fact remains the court now has a picture of actual s. 7 expenses and the accumulated arrears. There is no reason not to give effect to these orders that require his 50% contribution to those expenses.
50Given the limited financial information available, it may be that this is more than fair to him, as there is some circumstantial evidence to suggest that he is in a better position financially during the children’s adolescent years than the Respondent. However, the Respondent is content with a 50% shared arrangement as ordered in 2003.
51The Respondent has covered the children’s s. 7 expenses which have changed over time from gymnastics, dance and day care to medical and post-secondary education expenses. She took every step available to enforce the orders via FRO. FRO registered both orders in Florida and the Applicant knew and attempted to modify them there. He did not return to court in Canada despite his lawyer’s submission to that effect in Florida.
52I find that the Respondent did not delay or fail to pursue her rights to receive contribution on behalf of the children for her s. 7 expenses. She pursued enforcement in Florida and at court proceedings there, the Applicant represented he would be seeking a variation in Canada. It appears that he did not follow through, although he was aware of both orders. I find he knew about his obligations and paid only when required to be because of some pending action against him. Otherwise, he was content to let the Respondent take the additional financial responsibility. He should now contribute to his share of the actual expenses and pay the costs and interest ordered in the July Order which have accrued based on his choice to ignore his s. 7 responsibilities to his two children.
Order
53Accordingly, I order as follows:
a. The Applicant shall pay to the Respondent s.7 child support arrears fixed in the amount of $83,432.08 plus interest calculated in accordance with the underlying orders and section 129 of the Courts of Justice Act, R.S.O. 1990, c.C.43, within 30 days;
b. The Applicant shall pay to the Respondent costs as ordered in the July Order in the total amount of $4,074.81 ($1,500 costs plus interest calculated from date of Order to and including March 20, 2024) which shall be collectible as child support and enforced by the Family Responsibility Office pursuant to section 1(1)(g) (definition of “support order”) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c.31 and section 129 of the Courts of Justice Act;
c. The Applicant shall pay interest on the s.7 support amounts owing in accordance with the underlying Court orders and section 129 of the Courts of Justice Act; and
d. Any interest calculated and ordered to be collectible as child support shall be enforced by the Family Responsibility Office pursuant to section 1(1)(g) (definition of “support order”) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c.31;
e. Paragraph 1 of the order of Black, J. dated January 31, 2024 shall be vacated and this Order shall be enforceable in the United States.
54The parties have not uploaded costs outlines to CaseLines. If they have not agreed as to the costs of this motion, they shall provide up to three pages in costs submissions, in writing not including costs outlines and caselaw on or before April 18, 2024.
Leiper, J. April 8, 2024