Court File and Parties
COURT FILE NO.: FS-17-21639-1 DATE: 20240809 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Shawna Sheridan, Applicant – and – Gregory Herbert Schultz, Respondent
Counsel: Self-represented, for the Applicant Self-represented, for the Respondent
HEARD: October 3 & 4, 2023
KRISTJANSON J.
1This is a trial on a motion to change the order of Justice Kaufman dated November 19, 2010, and the order of Justice Akbarali dated October 2, 2019, as amended October 16, 2019. The parents, who never married or lived together, have a twenty-year-old son who graduated from high school in June 2023. The primary issues on the motion to change are table child support and section 7 expenses. I find that the obligation to support the son ceased upon graduation. The mother relied on the son’s diagnosis of the autism spectrum disorder, but she did not prove on a balance of probabilities that the child is unable to withdraw from parental charge because of a disability. The mother also sought an advance ruling that would compel the father to contribute eighty percent of the costs of the son’s future post-secondary expenses. There was no evidence that the child was enrolled in post-secondary education: the whole issue is speculative. I make minor changes to child support in the period 2020-2023 due to the father’s increased income, and dismiss the balance of the mother’s motion to change.
History of the Case
2The parents have one child, W.S., born in August 2004 and now 20 years old. The parents never married and never lived together. In August 2006, there was a court order that the father have no access to the child. This matter has been before the Courts continuously since 2005, in Oshawa and Toronto. The parents have no contact with each other, and both have been subject to restraining orders. The parents have a high conflict relationship: there have been many court attendances, including nine case management attendances on this motion to change.
3The motion to change is based on the June 9, 2023 Amended Motion to Change. I do not consider any affidavit evidence served by the mother, or further amendments after June 9, 2023, in accordance with the order of the case management judge and to ensure fairness to the respondent.
Issues
4The main issues on the motion to change are:
(1) What is the father’s income for the purposes of child support from 2020 to 2023? Are adjustments to table child support required?
(2) Should the 2019 consent order requiring the father to pay section 7 expenses capped at $1,500 per year be varied to require section 7 expenses capped at $4,000 per year from 2020 onwards?
(3) Is the child unable to withdraw from parental charge because of a disability? If not, should child support be terminated in June 2023, when the child graduated high school?
(4) Should the father now be ordered to pay 80% of the child’s post-secondary education expenses?
(5) Should the permanent restraining order against the mother be vacated?
Issue #1: Table Child Support and the Father’s Income
5The mother argues that the father has reduced income for child support purposes by improperly taking deductions for mileage and health and safety cleaning charges. I do not agree. I make minor variations to child support 2020-2023. Further, I find that the obligation to pay child support ceased August 31, 2023 and order the mother to repay child support paid after September 1, 2023.
6The father's line 15000 income for 2020 is $131,729. From this, union dues of $1309 are to be deducted in accordance with the Child Support Guidelines, O. Reg. 391/97, section 16 and Schedule III, and Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), para. 8(1) (i). Union dues are to be deducted from total income every year.
7The mother sought to disallow the respondent’s deductions from his total income for mileage and cleaning charges. In some circumstances, mileage and car expenses may be claimed as deductions, reducing income for child support purposes: Child Support Guidelines, O. Reg. 391/97, section 16 and Schedule III, and Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), para. 8(1) (h) and 8(1) (h.1). The father established on a balance of probabilities that the mileage and car cleaning/decontamination expenses are deductible in accordance with these provisions. The father was required to pay the expenses in the performance of the duties of his employment, and the allowance received from the employer in relation to the expenses was included as a taxable benefit in computing his income. The same applies for 2021, 2022, and 2023. As a result, they are allowable deductions.
8The father sought to deduct that portion of life insurance premiums attributable to W.S., presumably relying on the Child Support Guidelines, s. 7(1) (b). However, that section applies only to medical and dental insurance premiums attributable to the child, not life insurance. Annual income for child support under the Child Support Guidelines does not include any deduction for life insurance. As a result, this deduction is disallowed.
9The evidence as to how much the father paid for child support is somewhat chaotic. The Akbarali Order set child support at $1,124 in October 2019. Justice O’Brien set child support at $1,185 on February 1, 2022. Finally, on July 1, 2023, the father began paying at the rate of $1,229 per month, as evidenced by the letter from FRO. For earlier amounts paid each year, where available I rely on the deductions recorded on the father’s pay stubs. Neither party filed a FRO Statement.
10The father’s total income for 2020 is $131,729 less union dues of $1,309, less cleaning costs of $350, and less mileage of $61.60=$130,008. Child support payable is $1,146 per month. The father paid $1,124 monthly in accordance with the 2019 Akbarali Order. He owes $22x12 months = $264.00.
11The father’s total income for 2021 is $138,243.52, less union dues of $1,342, less cleaning fee of $350, less mileage of $61.60, for annual income for child support purposes of $136,467. Child support payable is $1,196.55 a month. He paid child support in the amount of $1,124 per month. The father owes $72.55x12=$870.60.
12The father’s total income for 2022 is $142,592.25. From this are deducted union dues of $1,365, cleaning fees of $350, and mileage of $20.90, for annual income for child support purposes of $140,584.37. Child support payable is $1,244.26. He paid $1,185 per month on a without prejudice basis commencing February 1, 2022, pursuant to the order of Justice O’Brien. The father owes $120.26 for January, plus $59.26x11=$772.12.
13In 2023, the respondent’s income was $142,592, from which income union dues of $1,397 are to be deducted, plus leaving income for child support purposes of $141,345. Child support is owed of $1,234.62 per month. The son graduated high school in June 2023. Giving time for transition, I find child support to be owed to the end of August 2023. The total monthly amount payable for the first eight months of 2023 was $1,234.62 per month. The father was paying child support for the first six months at the rate of $1,185. On July 1, 2023, the father began paying at the rate of $1,229 per month. For the first eight months, the father owes $49.62x6 = $297.72. For July and August, the father was paying $1,229 per month, and owes $5.62x2=$11.24, for a total of $308.96.
14The mother owes the father a refund for child support paid after August 31, 2023, in the amount of $4,916 for the four months of 2023, and $9,832 for eight months in 2024, for a total of $14,748.
15The amount of $2,215.68 owed by the father to the mother is to be set off against amounts owed by the mother to the father ($14,748.00), so that the mother is to pay the father the amount of $12,532.32, payable in thirty days.
Is the Child Unable to Withdraw from Parental Charge Because of a Disability?
16W.S. graduated from high school in June, 2023, and is now 20 years old. On this motion to change, the applicant seeks continued child support under section 31(1) of the Family Law Act, RSO 1990, c F.3, on the grounds that the child is “unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.” Alternatively, the applicant seeks an order to continue child support to “benefit [W.S.’s] future financial needs while we await a new assessment regarding [W.S.’s] disabilities.”
17The burden was on the applicant mother to prove at this trial, on a balance of probabilities, that W.S. is unable to withdraw from parental charge due to a disability. The applicant failed to meet her burden. The applicant brought a motion to change on the grounds of disability, yet seeks to continue child support while awaiting a new assessment. This is a trial on a motion to change brought by the applicant. The applicant was obliged to produce all relevant evidence for the trial, and is not entitled to a holding order while she tries to find other evidence.
18The applicant relies on a 2016 letter from a pediatrician, conducted when W.S. was 11 years old. The letter contains a diagnosis of autism spectrum disorder (ASD). The letter is attached to the mother’s affidavit. I do not admit this letter into evidence for the truth of its contents. There is no expert report as required by Family Law Rule 20.1, there is no Form 20.2 acknowledgment of expert duty, and the pediatrician was not called as a participant expert under Rule 20.2.
19The importance of calling evidence and complying with the Family Law Rules was carefully explained by the Case Management Judge, Justice Davies. The self-represented applicant was advised by Justice Davies in her endorsement of September 27, 2022:
The burden will be on Ms. Sheridan to prove that their son is unable to withdraw from parental charge because of his ASD. Ms. Sheridan will likely require expert evidence on how her son has been impacted by ASD and the likelihood he will be able to live independently.
20In her Case Management Endorsement of October 8, 2022, Justice Davies again informed the mother of her burden to establish, on the evidence, that W.S. was unable to withdraw from parental charge because of a disability. She advised the parties of specific Family Law Rules, including that Rule 20.1 outlines the duties of expert witnesses, and Rule 20.2(2) describes what must be included in an expert report. Justice Davies’ endorsement explained the importance of complying with the expert evidence rules, stating: “I explained to Ms. Sheridan that her experts will be required to testify, or be questioned by Mr. Schultz. She cannot just file a report from an expert. Mr. Schultz will be given a right to challenge or question the experts on their opinions.”
21The mother relied on the diagnosis of ASD, which she called a lifelong disability. But in any event, even if W.S. has ASD, the diagnosis does not establish that W.S. is unable by reason of disability to withdraw from the charge of his parents. It is not enough to simply assert that that ASD is a life-long disability with no "cure". Many people with ASD live fully independent lives as adults. ASD affects people differently. For some, the symptoms of ASD will severely impact their ability to function independently. For others, their ASD symptoms have a much less significant impact.
22The applicant relies on a disability tax credit which was approved in respect of W.S. Putting aside that there is no expert evidence as to what that disability tax credit means, it simply does not establish on its own that W.S. is unable to withdraw from parental control. As set out by Madsen J., as she then was, in Jefic v. Jefic (Grujicic), 2022 ONSC 7240 at paras. 72-74:
Disability in and of itself does not, without more, ground entitlement to child support for an adult child. As set out in Weber v. Weber, 2020 ONSC 4098, 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).
23The applicant failed to lead any evidence as to specifically how ASD affects the son in being unable to manage daily living on his own without her consistent care, monitoring, and support, or is unable to obtain the necessaries of life.
24On cross-examination, when asked about her son’s employment, she conceded that the child was “working somewhat”, although claimed that the answer was privileged. She testified that to the best of her knowledge he had not been fired from his job. The mother travelled from P.E.I. to Ontario for the trial. When asked where her son was, she testified “I’m not sure, today he’s independent.” She then testified that he was with friends. Her response to these questions demonstrates her inability to make concessions or provide evidence in a straight forward manner. She conceded that her son had been prescribed medications by a psychiatrist, but chose not to take the medications.
25The mother’s 2021 tax return includes an amount for W.S.’s income of $3,500, on a line on the tax return that requires a party to enter: “Your eligible dependant's net income from line 23600 of their return.” On cross-examination, she denied that the son had earned this income, and said that the tax return that she provided was incorrect. She did not explain why this was incorrect, how such a mistake could have been made, nor that she ever corrected the income tax return. Her testimony is at odds with contemporaneous documentary evidence that she produced, and is implausible. I find that W.S. earned $3,500 in 2021.
26The mother conceded that she had purchased a pick-up truck for W.S., and the truck is registered in his name. The son can drive a truck.
27The father asked the mother whether W.S. played on a soccer team which won a provincial bronze medal, and she denied this. And when shown a newspaper article listing him by name as a team player, with a team picture, she testified that he “practiced” with the team. This explanation is implausible. I find that W.S. did play on a soccer team at a provincial level.
28I accept the father's evidence, and the evidence from the mother’s cross-examination, that W.S. drives, has held down jobs, drives a truck, played soccer at a provincial level, went on holidays with friends, and graduated high school.
29Other than relying on the diagnosis of ASD, the applicant called no evidence that would prove on a balance of probabilities that W.S. is reliant on the mother for activities of daily living, or daily monitoring and caregiving. Other than the 2016 letter from the specialist, the applicant failed to produce any of W.S.’ medical records connecting the medical condition to the alleged inability to withdraw from parental charge. Although the mother gave anecdotal evidence about W.S.’s struggles with school, she did not produce any report cards or communications from school authorities. She failed to produce evidence one would expect her to produce.
30I find that the mother was not a credible witness in respect of W.S.’s abilities and capacities. In McBennett v. Danis, 2021 ONSC 3610, at para. 41, Chappel J. sets out several factors to be considered in undertaking a credibility assessment, including:
a. inconsistencies in the evidence between a witness’ evidence and other evidence, including the evidence of other credible witnesses, the documentary evidence, or the witness’ previous evidence.
b. whether the evidence is inherently improbable and implausible. That is, whether the evidence is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?": Faryna v. Chorny, [1952] 2 DLR 354 (B.C.C.A.) at p. 357.
c. Whether there is other independent evidence that confirms or contradicts a witness’s testimony, or lack of independent evidence where some might be expected.
d. Whether a witness is straightforward or “evasive, strategic, hesitant or biased”.
e. Whether a witness is able to make concessions, or gives self-serving evidence.
31The mother was evasive in her testimony, and was unable to make concessions. Her testimony was contradicted by contemporaneous documents. She failed to produce documents that one would expect her to produce. Her testimony was in many respects implausible.
32I find it the mother has failed to prove on a balance of probabilities that W. S. is unable to withdraw from parental charge by virtue of a disability. I find that W.S. graduated from high school in June, 2023. I order that support payments continue until the end of August, 2023, to provide some period of transition. The support deduction order is terminated at August 31, 2023.
Section 7 Expenses Other Than Post-Secondary
33The parties consented to a final order regarding the father’s contribution to section 7 special and extraordinary expenses in October 2019. Justice Akbarali’s Order of October 2, 2019, amended by a further order of October 16, 2019 (collectively, 2019 Akbarali Order), sets a cap on the father’s contribution at $1,500. The 2019 Akbarali Order provides that the section 7 expenses would consist of (i) uninsured or co-pay expense for prescription glasses, (ii) audiology testing, (iii) band trip with school, (iv) uninsured or co-pay expense for pharmacological expenses (v) uninsured or co-pay expenses for dental expenses, and (vi) co-pay expenses for insured health services.
34It is certainly up to the parties to agree that section 7 expenses will be capped, and the parties did so in the consent order of October, 2019. To change the cap, the mother would have to demonstrate a material change in circumstances in respect of special or extraordinary expenses since October 2019. She has failed to do so.
35The mother seeks to increase the amount of the father’s contribution to section 7 expenses to $4,000 annually commencing January 1, 2019. She did not provide evidence of a material change in circumstances leading to this change, particularly considering that on consent, the parents agreed to cap the father’s expenses at $1,500 in October 2019. The expenses remain capped at $1,500. There is a dispute about prescription sunglasses costing over $900. The insurer refused because the son had already received the maximum for prescription glasses. To the extent that there was room within the $1,500 cap, that expense could have been put in for reimbursement. Otherwise, it is above the agreed-upon limit.
36The mother seeks to add new items beyond those agreed to in January 2019. These include drivers’ education lessons and the cost of a learner’s permit. The total cost was $660, of which the applicant seeks payment of $550. I must determine whether these expenses fall within one of the enumerated categories of section 7 of the Child Support Guidelines, are necessary in relation to the child's best interest, and reasonable in relation to the means of the parents and the child. The costs might fall in the category of education, or extraordinary expenses for extracurricular activities. For both, I must determine whether the expenses are extraordinary. There is no evidence that W.S. required a car for school. I find that the drivers’ education lessons and learner’s permit are included in the table amount for support in this case, and in any event are not extraordinary: Brock v. Sorger, 2015 ONSC 7478.
37The mother also claims that the cap should include physiological therapy. There was no evidence of physiological therapies, that the services were reasonable and necessary, nor any evidence about medical benefit coverage. It is unclear to me what physiological or other therapy was provided to W.S., or what uninsured costs remain.
38The claim in respect of car insurance was not pursued at trial.
39These claims are dismissed.
Post Secondary Education
40The applicant came to court seeking an order that the father contribute 80% of the child’s future post-secondary education costs:
That the Respondent shall contribute 80% to [the son’s] post secondary schooling, for the following Tuition, Student Union, Lab Fee, Health Insurance Fee, First Aid/WHMIS, Graduation Fee additional cost as currently described as books, Materials/Supplies, Uniforms/Safety Shoes/Boots/License Fee, Equipment/tools Registration Fee, Plus Accommodation the Respondent shall contribute 80 percent for all cost before scholarships, grants and bursaries are to be counted Everything must be in writing so the Respondent cannot say he did not agree to the terms of the agreement.
41The mother testified that the son graduated in June 2023, and she expected that he would enroll in a post-secondary course in about January 2024, after the trial. The court does not make speculative orders. There is no absolute right to a contribution to post-secondary education expenses: it is a discretionary decision. Further, the court will consider not just the contribution of the parents, but also the contribution of the child. In cases where the child and the parent are estranged, the court may also consider whether there should be any contribution, or may make the parental contribution contingent on accountability by the child. The decision is fact-based, and cannot be made in a vacuum. Where the child is not even enrolled in post-secondary education, there is simply no basis on which a court can make these determinations. The issue at present is speculative. For this reason, the claim is dismissed.
42On the last day of the hearing, after the father had already testified, the applicant sought to introduce into evidence an email purportedly from an educational institution to the son, sent that very day, referring to a confirmation of enrollment. I did not allow that email into evidence given the late production, and the fact that there was absolutely no information as to the nature, appropriateness, or cost of the program.
43The mother’s Motion to Change was constantly shifting. This, in part, necessitated the nine Case Management attendances. In her order of May 9, 2023, Justice Davies ordered Ms. Sheridan to serve and file an Amended Form 15 Motion to Change no later than June 9, 2023, and directed that she not be allowed to change the relief she is seeking on the motion to change after June 9, 2023. She limited Ms. Sheridan to the evidence in the materials set out in the May 9, 2023 endorsement. In her May 9, 2023 Case Management Endorsement, Justice Davies held that: “Ms. Sheridan will not be allowed to produce any new evidence. She will not be allowed to rely on any document she did not deliver to Mr. Schultz on or before April 28, 2023 without permission from the hearing judge (or from me).”
44Whether or not a parent is required to contribute to post-secondary education isn't just determined on the basis of an email in court handed up after the trial evidence has concluded. The court must review several aspects of any claim to contribution to expenses of educational studies, summarized in A.E. v. A.E., 2021 ONSC 8189 at para. 186. None of the relevant information was filed in time.
45Since W.S. was not enrolled in post-secondary education, and the mother sought a form of advance ruling without calling the required evidence, the claim for a contribution to post-secondary education expenses is dismissed, without prejudice.
Alleged Arrears
46The applicant claims that there is an arrears payment owing from a missed payment in October 2019. The applicant has not established this missed payment. The matter was raised with Justice Akbarali, who did not agree that there was an error. The FRO letter from 2021 to the father indicates that there are no arrears. The applicant has not established a missed payment on a balance of probabilities.
Other Children
47The mother sought to introduce evidence of financial arrangements made by the father for his other children, citing the financial arrangements as precedent. However, the court did not admit any such evidence. It is irrelevant. Each case is decided on the facts before the court. Evidence of treatment of other children is collateral and not material.
Restraining Order
48The mother seeks to remove a restraining order against her. On November 19, 2010, Justice Kaufman issued a final restraining order against the mother as follows:
Shawna Sheridan …shall not (a) contact or communicate directly or indirectly with the following people: Gregory Herbert Schultz… (b) the Applicant, shall not molest, annoy or harass the other party either directly or indirectly. including contacting the other party's family, employer, co-workers or friends or attend at the place of employment of the other party or such extension of place of employment where either party is likely to be in attendance in the performance of his or her employment duties. This provision shall not apply if the child is contacted by members of the Respondent's family provided that such contact is initiated by the Respondent's family members.
49The Applicant appears to be practically ungovernable. Previous judges have commented that her conduct borders on vexatious. She fails to comply with court orders. She continues to make allegations about the Respondent which are irrelevant and concerning. The Respondent states that she continues to email him at work despite the restraining order. Her animosity is clear. The mother has not established, on a balance of probabilities, that there is a material change in circumstances which justify removing the permanent restraining order imposed by Justice Kaufman.
Offers to Settle
50Both parties referred to Offers to Settle in their materials. All references to Offers to Settle, or comments a judge allegedly made at a conference, are excluded from the evidence.
Service of Documents
51Both parties raised concern about service issues. The mother sought to change paragraph 5 of Justice Kaufman’s November 19, 2010 order, which provides:
Neither party shall contact or meet with the other party, either directly or indirectly, except through written registered mail. In the event of future litigation between the parties, they shall effect service of any documents by process server (which may include a friend or relative) at the other party's residence unless otherwise ordered by the Court pursuant to a written request, on notice, for substituted service.
52The mother sought to replace this with the following: “The Respondent shall not contact or meet with the other party, either directly or indirectly, except through email.”
53I decline to amend the 2010 order Justice Kaufman. Further, the Applicant must comply with the remaining relevant provisions of Justice Kaufman’s Order and the procedural requirements set out in Justice Akbarali’s October 16, 2019 Order.
Costs
54The father was successful on the motion to change, and is presumptively entitled to costs. The father may send his costs submissions (limited to five pages of submissions, plus Bill of Costs, plus Offers to Settle) through the Family Portal to my attention, and copied to the applicant, within 14 days. The mother shall have 14 days to respond (limited to five pages of submissions, plus Bill of Costs, plus Offers to Settle) sent through the Family Portal to my attention, and copied to the respondent. If the mother claims undue hardship or inability to pay, she shall also serve and file with the Costs Submissions an updated Form 13.1 Financial Statement, copies of monthly statements of all bank and investment accounts for the period March through July 2024, copies of her 2023 income tax return and notice of assessment, and full disclosure of all assets held by her or in her name as at June 2024. This would include real estate letters of opinion for properties owned by her or held in her name, and up to date mortgage statements for properties owned by her or held in her name.
Order
THIS COURT ORDERS THAT:
The Respondent Mr. Schultz owes the Applicant Ms. Sheridan the amount of $2,215.68 for child support January 1, 2020, to August 31, 2024. The Applicant Ms. Sheridan owes the Respondent Mr. Schultz $14,748.00 for overpayment of child support from September 1, 2023, to August 31, 2024. The amount owed by the Respondent is to be set off against the amount owed by the Applicant, so that the Applicant Ms. Sheridan shall pay the Respondent Mr. Schultz the amount of $12,532.32, payable in 30 days.
This order bears interest at the rate of seven percent per year on any payment or payments in respect of which there is a default from the date of default.
The support deduction order in respect of W.S. is terminated effective August 31, 2023.
The Applicant’s claim for a contribution by the Respondent to post-secondary education costs is dismissed, without prejudice to a future motion to change seeking a contribution to post-secondary education costs, which shall be brought only if the son W.S. is enrolled in a post-secondary education program.
All other claims in the Applicant’s Amended Motion to Change are dismissed, with prejudice.
The parties are to continue to comply with the procedural orders set out in paragraph 2 of the declaratory provisions of Justice Akbarali’s order dated October 16, 2019.
Kristjanson J.
Released: August 9, 2024
