Court File and Parties

COURT FILE NO.: FS-05-1151-0001

DATE: 2024 09 17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.K.

Self-Represented

– and –

L.K.

Self-Represented

HEARD: April 2, April 3, April 4, April 5, June 20, and June 21, 2024

REASONS FOR JUDGMENT

Conlan J.

The Trial

[1] A six-day trial was held before this Court, both parties being self-represented (though the mother was assisted by a lawyer agent for the first few days of the trial). The Applicant mother is A.K., and the Respondent father is L.K.

[2] There were three witnesses at trial: (i) the mother, (ii) Mr. Warren Brown – the father’s long-time accountant, now retired, who was called as an expert witness to testify by the mother, and (iii) the father.

[3] During his opening statement at trial, the father indicated that he disputed everything contained in the mother’s draft order that was presented to the Court, except the relief claimed by the mother with regard to life insurance.

The Parties and the Children

[4] The parties share two children, now 22 (K.) and 21 (A.) years of age.

[5] The mother works as an employee of the Canadian Cancer Society. She has had that employment since 2021, and she is a T4 employee. She lives in Burlington, Ontario with A., and A. is attending, full-time, McMaster University. K. lives in London, Ontario and is attending, full-time, Western University.

[6] K. started her university education in 2019 and is expected to be completed, or is already completed, either earlier this year (per the father) or in April 2025 (per the mother). A. began her university studies in 2021 and is expected to be finished either in April 2025 (per the father) or in April 2026 (per the mother). While K. has been away from home attending classes at Western University, she has often returned to Burlington (the mother’s residence) on weekends, school breaks, holidays, and summers.

[7] The father has a new family, including a relatively young child with his current partner. He works as a software engineer, in a consulting capacity (not as an employee). He operates through a numbered Ontario corporation for which he is the sole director and shareholder, and he has done so since September 2021.

[8] The father has demonstrated mental health issues. He has been treated for those issues by medical professionals, including by staff at the Centre for Addiction and Mental Health (Exhibit 59).

The Court Order in Effect Today

[9] The parties were married in 2001 and were divorced in 2006.

[10] The Final Order of Speyer J. (Exhibit 3), dated March 8, 2006, at clause 14, provided that the father pay child support of $850.00 monthly based on an annual gross income of $62,000.00. Further, the parties were to pay for section 7 expenses for the children proportionately, in accordance with their respective incomes – clause 15 of Exhibit 3.

[11] The Order of Justice Speyer has never been changed since.

[12] The trial before this Court was in relation to the mother’s Motion to Change that Order, which proceeding was commenced by the mother in September 2022.

[13] The Order of Speyer J., at clause 16, required that the parties continue to jointly own the life insurance policy that they had at the time, with Canada Life, with the father being responsible for payment of the premiums.

The Issues

[14] During her testimony at trial, the mother acknowledged that the father is not in arrears of any child support payments under the Order of Justice Speyer.

[15] By the conclusion of the trial, the contested issues to be decided by this Court were more identifiable, and I thought that it was prudent to (i) allow the parties to file written closing submissions, which would give them more time to think about and prepare those arguments, and (ii) release a very detailed Endorsement which would, hopefully, help the parties with what they should include in their written closing submissions.

[16] That Endorsement, made on June 21, 2024, is set out below in its entirety (the only changes thereto are with regard to the surname of the parties; the original Endorsement included that surname unedited, but below that name has been replaced with “K.” in order to protect the privacy of the parties and their children).

Trial concluded, but for closing submissions. Courtroom sealing order lifted.

Closing submissions shall be delivered in writing (typed). Each submission shall be limited to ten (10) pages in length, double-spaced, regular margins, minimum 12-point font. Ms. K. shall serve and file hers by 4:00 p.m. on July 12, 2024. Mr. K. shall serve and file his by 4:00 p.m. on July 26, 2024. There shall be no reply submissions by Ms. K., except with leave of the Court.

As part of each party’s closing submissions, but not included in the 10-page limit, the party shall file a draft Final Order which sets out, specifically, the Order that the party wants this Court to make.

The parties must address these questions in their materials.

1. How much money, if anything, is owed by Mr. K. to Ms. K. in terms of section 7 expenses arrears to date? Refer to the specific evidence that supports that.

2. How much money, if anything, is owed by Mr. K. to Ms. K. in terms of child support arrears to date? Refer to the specific evidence that supports that, including what income to be used for Mr. K. for each year and why.

3. What child support order should be made on a go-forward basis? Refer to the specific evidence that supports that, including what current income to be used for Mr. K. and why.

4. On a go-forward basis, how should the section 7 expenses for the children be divided between the parties? Be specific.

5. What specific language, if any, should be used for the life insurance clause that Ms. K. is seeking?

Any failure by either party to comply strictly with the requirements of the closing submissions, outlined above, will mean that the Court will ignore those submissions and decide the case without any regard for those submissions.

Costs of the proceeding will be dealt with after the Court renders its judgment on the merits of the case.

The Positions of the Parties

The Position of the Mother

[17] The mother’s draft final order filed along with her written closing submissions provides for:

• the father to pay $1481.00 monthly child support for the two children, commencing on September 1, 2024, based on an annual gross income of $141,220.00;
• the father to pay retroactive child support, commencing January 2017 or 2018, in the amount of $50,000.00;
• the father to pay retroactive section 7 expenses in the amount of $30,000.00;
• on a go-forward basis, the parties to share specified section 7 expenses (enumerated a. through k., with a residual clause for other items), 65% for the father and 35% for the mother, based on their respective annual gross incomes of $141,220.00 (the father) and $78,041.00 (the mother);
• the parties to share with each other financial disclosure on an annual basis;
• the father to maintain the mother as the irrevocable beneficiary of his life insurance policy, and other related relief; and
• costs in favour of the mother.

The Position of the Father

[18] The father’s draft final order filed along with his written closing submissions provides for:

• termination of child support for K.;
• the father to pay child support directly to A. (no monthly amount is stipulated, and no income figure is suggested);
• the parties to share, proportionate to their respective incomes, section 7 expenses for A. (no income figures are stipulated for either party); and
• with regard to life insurance, the “[mother] should be beneficiary for $50K or less”.

[19] It can fairly be ascertained from the father’s written closing submissions that the Court is being urged to find that he owes no arrears of either table child support or section 7 expenses.

Analysis of the Issues

Arrears of Child Support, including Section 7 Expenses

[20] When it comes to arrears of child support allegedly owing by the father to the mother, including for section 7 expenses, the trial left an awful lot to be desired.

[21] First, several hundreds of pages of documents were simply dumped on the Court. Only bits and pieces of those documents were ever the subject of any testimony at trial, from any witness, or explanation by the parties in their opening or closing addresses.

[22] This Court is not a forensic accountant.

[23] Second, having commenced the Motion to Change in late 2022, there is no adequate explanation that has been advanced by the mother as to why this Court should make an order for arrears of child support that goes back to the beginning of 2017, or even back nine years to 2015. That another justice, on a motion for disclosure, “ordered disclosure back to 2015” (page 2 of the mother’s written closing submissions) is, with respect, not an answer. That the parties allegedly “accepted this date for claiming retroactive support” (page 2 of the mother’s written closing submissions) is also, with respect, not an answer. The disclosure motion referred to by the mother was contested, and there is nothing in the Endorsement made by the presiding Justice, Chown J., dated May 11, 2023, that would suggest that any determination had been made about the start date for any claim for retroactive support.

[24] Third, the mother’s own written closing submissions state that her formal communications to the father about his income for child support purposes commenced in 2021 (page 3 of the mother’s written closing submissions). Not in 2015. Not in 2017.

[25] Fourth, the implied argument by the mother that the father ignored her informal communications to him about his income, pre-2021, and thus she could not make any demands of him to pay more child support or commence any legal proceeding against him regarding child support, is, respectfully, unpersuasive. She knew that the Final Order of Speyer J. was very old. She knew that the father was working steadily between the date of that Final Order and September 2022. She knew that the father stopped paying child support in 2021 (page 2 of the mother’s written closing submissions), yet she still waited until September 2022 to commence the Motion to Change.

[26] Fifth, there is insufficient information contained in the evidentiary record at trial and, just as important, in the mother’s written closing submissions, to help this Court understand the bases for the amounts of arrears being sought by the mother in her draft final order - $50,000.00 for table child support and $30,000.00 for section 7 expenses.

[27] For example, on the section 7 expenses, at page 6 of the mother’s written closing submissions, the mother states that the father owes her $35,000.00 for section 7 expenses dating back to 2018 – that is a different amount than the $30,000.00 that is in the draft final order submitted by the mother. The mother also states that the father owes her $29,840.00 for OSAP loans to the two children, which is also a different amount than what is contained in the mother’s draft final order, and further, as indicated by this Court below in these Reasons for Judgment, there is no explanation offered by the mother as to why the children themselves ought not to be responsible for paying anything towards their OSAP loans.

[28] As another example, on the table child support, the mother’s chart included within her written closing submissions shows arrears of either $73,876.03 or $80,264.03 (depending on whether the Court goes back to 2018 or 2017), both numbers of which are different than the figure of $50,000.00 shown in the mother’s draft final order. Here, I think the mother is simply attempting to be gracious to the father because she has used the word “lowered” when referring to the amount of $50,000.00 for table child support arrears (clause 2 of the mother’s draft final order attached to her written closing submissions). But there is no evidence adduced at trial that would support the adjustments made to calculate the father’s income over the years, and certainly none referred to by the mother, in order for this Court to understand the table child support arrears calculations arrived at by the mother (and shown in her chart referred to above).

[29] Sixth, on section 7 expenses, I agree with the father (at page 2 of his written closing submissions) that the mother is “applying double standards by counting all her alleged section [7] expenses and dismissing all of [his]”. This is evident, for example, when the mother states, repeatedly, in her written closing submissions that certain funds provided by the father to the children, which funds were indisputably given, were indisputably sizeable, and were indisputably paid by the father for some of the same types of things that the mother herself wants to be reimbursed for, like sports equipment and items for K.’s student housing in London, Ontario while attending university, were actually gifts by the father or were unnecessary and are, therefore, not proper section 7 expenses. I think that such a position on behalf of the mother is unreasonable.

[30] For all of these reasons, this Court makes no order about section 7 expenses except that made below, with regard to go-forward section 7s commencing on September 1, 2024. There is no order being made for alleged arrears of section 7 expenses.

[31] Table child support arrears is a different matter, however. Despite the messy evidentiary record, this Court cannot turn a blind eye to the father’s decision to simply stop paying child support in April 2021. The father admits that (page 1 of his written closing submissions). The father’s position is that he did that as the result of some agreement with the mother, which the mother denies.

[32] On that contested point of fact, I accept the mother’s evidence. The mother’s evidence on that factual issue is more consistent with the events that followed, which events are not in dispute. The mother’s formal communications to the father, about his income and him paying proper child support, started in 2021. She would have had no reason to do that if there was some agreement between the parties that the father not pay child support but instead pay to the children directly certain amounts of money to cover their expenses (as alleged by the father at page 2 of his written closing submissions).

[33] April 1, 2021 is the proper start date for calculating table child support arrears owing by the father. That is when he improperly stopped paying. That is approximately the same time that the mother started formally making demands of the father, effectively putting him on notice that she was not content with the Final Order of Speyer J. That is approximately 1.5 years before the mother commenced the Motion to Change, which, on the facts of this case, is a much more reasonable period of time to go back, as opposed to some five years or so (as requested by the mother in her written closing submissions).

[34] I have reviewed the financial records filed at trial; they are contained, mainly, in Exhibits 62 and 63. I have compared those financial records with the chart included with the mother’s written closing submissions. But for a relatively small amount that the mother added to the father’s reported total income for the year 2022, the adjustment being $3360.00, for the years 2021, 2022, 2023, and 2024, the chart is correct in all respects. In fact, none of the inputs is disputed by the father.

[35] The result is that the father owes $24,036.03 in table child support arrears - $10,458.00, plus $18,128.00, minus $12,473.97, plus $7924.00.

[36] This Court orders that the father shall pay to the mother lump-sum table child support arrears in the amount of $24,036.03, and that sum shall be paid in full by the father to the mother by no later than December 20, 2024, failing which the said amount shall be enforced by the Family Responsibility Office.

Go-Forward Child Support, including Section 7 Expenses

The Father’s Income

[37] The father’s income documentation is contained in trial Exhibit 62. There is no dispute between the parties that the father’s total income for the year 2022 was $141,220.00 (see the document at Case Center page Master B3260, Current B1037). There is also no dispute between the parties that the said income figure for the father is the most recent one as reflected in any Canada Revenue Agency documentation that is before the Court.

[38] The mother is content to rely upon that income figure for the father, $141,220.00, notwithstanding that other documents contained in Exhibit 62, including paystubs for the father in the year 2023, show a slightly higher total income for the father (the mother’s position in that regard is made clear in her written closing submissions, at page 8).

[39] The father’s written closing submissions, including the draft final order attached thereto, are silent on what income figure this Court should use for his ongoing child support obligations. At page 3 of the father’s written closing submissions, he simply states that (i) he should pay child support only for A., and (ii) he should pay it directly to A., and (iii) he currently has no job.

[40] At the time that he testified at trial, and at the time that the trial evidence concluded, the father was working as a software engineering consultant, although he did testify that he thought that the said position would likely be coming to an end in the very near future.

[41] To his credit, the father does not argue that he should not pay any child support, despite the apparent “no job” status at the time that he filed his written closing submissions. The evidence at trial, in its totality, reveals that the father has always been an industrious person. He works hard. He is a very intelligent man, and that was evident to this Court every time that he spoke during the trial. His skills are highly sought-after in the current labour market. When one consulting position ends, he quickly finds another. Going back to the year 2018, the father’s total income has ranged between just under $100,000.00 to just over $300,000.00.

[42] For those reasons, for the purposes of ongoing child support payable by the father, this Court fixes his total income at $141,220.00.

The Mother’s Income

[43] In terms of the mother’s income, which determination is relevant for ongoing section 7 expenses for the children, I do not accept the mother’s position as submitted at pages 8-9 of her written closing submissions. The father has provided no assistance to the Court in deciding what income should be used for the mother, but the Court still has a duty to analyze whether the trial evidence supports the mother’s position – that position being that her total income should be fixed at $78,041.00.

[44] With respect, the trial evidence does not support that position. In her direct evidence at trial, on day 2 of the trial, April 3, 2024, the mother testified that her 2023 income had two components – employment income of $81,000.00 and rental property income of $21,600.00. It is true that she also stated that she did not yet have her 2023 tax documentation and may be losing money on the rental property because of higher expenses, but the best and most recent evidence of the mother’s total income is her own testimony at trial and not the figure shown in her 2022 Income Tax and Benefit Return.

[45] There is no reliable evidence before the Court as to what the mother’s net rental property income was in 2023, and it is the net figure that would normally be included in the calculation of total income for child support purposes, including for the purposes of fixing proportionate share ratios for section 7 expenses. A.(L.C.) v. A.(R.J.), 2003 CanLII 52484 (ON CJ), at paragraphs 49-51.

[46] The onus was on the mother to provide that evidence of the expenses on the rental property in 2023, that is if she wanted this Court to limit her total income to $81,000.00 or less. At the same time, it is reasonable to assume that there were some expenses.

[47] In the circumstances, I am prepared to reduce the $21,600.00 figure by 50%. The mother was generally a credible and reliable witness at trial. I accept her oral evidence that the expenses on the rental property were significant in 2023, but, in the absence of some independent evidence about the rental property, I am not prepared to make the conclusion that the mother had zero net income from the rental property in 2023.

[48] Thus, I fix the mother’s current total income at $91,800.00 ($81,000.00 from employment and $10,800.00, which is half of $21,600.00, from the rental property).

Should there be Child Support payable for K.?

[49] The next question to determine is whether there should be child support payable by the father for K. The mother says yes. The father says no. The crux of their disagreement depends on whether K. is still in full-time university, and that is a rather straightforward factual issue that the parties simply cannot agree on.

[50] This Court finds as a fact that K. is still in full-time university studies, specifically, she is in her 5^th year at Western University in London, Ontario. She will be done her schooling in or around April 2025. In the Faculty of Social Science, K. is completing a 4-year undergraduate Bachelor of Arts degree with a major in psychology.

[51] Those findings of fact are all based on the trial evidence of the mother, which evidence I accept on this point, and confirmed by the documents at Case Center, pages Master A3406 and A3407 (Exhibit 54).

[52] It is the mother who has had regular contact with K., not the father. It is the mother whose home K. stays at when not in London, Ontario, not the father’s. There is no reason for the mother to lie to this Court about K.’s schooling.

[53] The father’s submissions, on page 3 of his written closing address, that K. already has two degrees and is not currently enrolled in any program of education, are not accepted by this Court. He must be mistaken. His evidence is not supported by anything independent that exists anywhere in the evidentiary record at trial. His bald assertion that K. already has two degrees, a simple oral statement made by the father during the mother’s cross-examination of him on the final day of the trial, on June 21, 2024, is not compelling.

[54] The mother’s evidence regarding K.’s university studies is not only more credible than that of the father, and not only more reliable in the sense that it is confirmed by documentation from the institution, but it also makes common sense in relation to the timeline. Both parties agree that K. started her university career in 2019. With having taken one year in business to start, K. would now be in her final year of the 4-year psychology program and in her 5^th year, in total, at Western University.

[55] Besides his assertions that K. is not in school and has already completed two degrees, which evidence I do not accept, there is no other basis put forward by the father as to why K. would not be eligible for child support.

[56] She remains in an undergraduate (not a graduate) program. She is attending university full-time. She has had very limited income of her own over the years (see Exhibit 43), which is not surprising given her competitive athletic activities, which activities both parties have supported. She continues to spend considerable time at the mother’s residence when not attending classes at Western University. The father has the continuing ability to pay child support. These are just a few of the factors that a court may consider in assessing child support for an adult child, as observed by Professor Nicholas Bala and J.D. Candidate John Abrams in their helpful paper presented at the National Judicial Institute, Family Law Program, Toronto, Ontario, February 16, 2023, which paper may be found at 2023 CanLIIDocs 1212, titled Child Support for Adult Children in Canada: When does Childhood End?.

Should the Father pay Child Support directly to A.?

[57] The next question to determine is whether the child support for A. should be paid by the father directly to A.

[58] The answer to that question is no. It should be enforced by the Family Responsibility Office. If the father is worried about toxicity between the parties, which is what he has indicated in his written closing submissions at page 3, then it is best to avoid altogether any direct payments within the family.

Order of the Court

[59] Given all of the above, this Court orders that, commencing on September 1, 2024 and on the first day of each consecutive month thereafter, the father shall pay child support for the two children, K. and A., in accordance with the Federal Child Support Guidelines, based on an income of $141,220.00.

[60] The order for child support shall be enforced by the Family Responsibility Office. A Support Deduction Order shall issue.

[61] In the mother’s draft final order attached to her written closing submissions, the mother has the monthly child support award at $1481.00. On my review, however, that amount may be incorrect. My review of the Federal Child Support Guidelines, for Ontario, for that income and for two children, is that the monthly child support award ought to be $1974.55.

[62] When the mother takes out the formal Final Order arising from these Reasons for Judgment, which is her responsibility to do, she should seek the help of the lawyer agent that assisted her during the first few days of the trial. The Final Order, once prepared, shall be forwarded to the trial office of the Superior Court of Justice in Milton, Ontario and brought to my attention for review. The Final Order need not be approved by the father before it is submitted to the trial office.

[63] In terms of ongoing section 7 expenses, this Court orders that, commencing on September 1, 2024, the parties shall contribute to the children’s section 7 expenses in proportion to their respective incomes - $141,220.00 for the father and $91,800.00 for the mother. The father’s share is 60.5%. The mother’s share is 39.5%.

[64] At clause 4 of the draft final order attached to the mother’s written closing submissions, there are 11 itemized section 7 expenses, a. through k. The father, in his written closing submissions, takes no issue with any of those. I am satisfied that all of those items, except one, are proper section 7 expenses as they generally fall under the categories of (i) university education expenses, (ii) dental and medical expenses not covered by insurance, and (iii) particularly expensive sports equipment.

[65] This Court orders that all of those items shall be included in the Final Order to be issued by this Court, except c. – OSAP loans. I will need to hear further from the parties about the OSAP loans. The parties may address that issue when they make their oral submissions on costs. I am not inclined to order that the children not have any responsibility to pay something towards the OSAP loans, which is effectively what the mother is asking the Court to do.

[66] There is other language contained in the draft final order attached to the mother’s written closing submissions, at clauses 4 through 8, all related to section 7 expenses, covering details such as how to deal with an expense that is not one of the itemized expenses (clause 4), the requirement of a receipt and the time for reimbursement by the other party (clauses 5 and 6), ongoing financial disclosure between the parties (clause 7), and how to deal with tax credits received for section 7 expenses (clause 8). The father, in his written closing submissions, takes no issue with any of those clauses. They are all fairly standard provisions in a court order dealing with section 7 expenses.

[67] This Court orders that all of that language referred to immediately above shall be included in the Final Order to be issued by this Court.

Life Insurance

[68] During his opening statement at trial, the father indicated that he was not disputing the relief being claimed by the mother with regard to life insurance. Nothing changed during the father’s trial testimony.

[69] At the time that the father delivered his opening statement at trial, the mother’s case had been completed. The mother had testified. The mother had provided to the father, and uploaded to Case Center, and filed with the Court, her draft final order. In fact, the mother’s draft final order had been disclosed to the father and uploaded to Case Center before the trial even started.

[70] In terms of the clauses dealing with the life insurance (clauses 9 through 13), the mother’s draft final order included in her written closing submissions is a carbon copy of the draft final order that was known to the father before he delivered his opening statement at trial. Put another way, with regard to life insurance, the clauses are identical in the two draft final orders filed by the mother.

[71] There is no reason why the father should not be held to the position that he took at trial.

[72] Further, this Court is making an ongoing child support order. There is nothing unusual about the life insurance provisions being sought by the mother. There is also no prejudice to the father, as he submits that the mother is already “100% beneficiary” of his life insurance policy (see the father’s written closing submissions dated July 26, 2024, at page 4).

[73] There is nothing in the evidence at trial or in the written closing submissions of the father that would justify some arbitrary limitation that the mother be the beneficiary “for $50K or less”, as stipulated in the father’s draft final order attached to his written closing submissions.

[74] For those reasons, with regard to life insurance, the relief sought by the mother is granted. This Court’s Final Order shall include clauses 9 through 13 in the draft final order that was served by the mother on the father on July 4, 2024 and filed together with the mother’s written closing submissions, titled “Applicant’s Closing Statement”.

Other Relief

[75] On costs, we will deal with that issue by way of oral submissions by the parties. The court attendance for costs will be by Zoom. That court attendance will be scheduled for 40 minutes total. Each party will have 20 minutes, which time includes anything that the party wants to say about the OSAP loans issue referred to above in these Reasons for Judgment. The mother will go first, followed by the father.

[76] Not later than two clear business days before that court attendance, each party, if s/he is seeking costs to be paid to her/him, shall serve on the other, file with the court office, and upload to Case Center a Bill of Costs or a Costs Outline which clearly shows the amount of costs being sought and for what, including disbursements. If that mandatory direction is not followed, then the party that has failed to adhere to it will not receive any costs.

[77] After receiving and reviewing these Reasons for Judgment, either party is free to contact the Superior Court of Justice trial office in Milton to arrange for the scheduling of the court attendance referred to above.

Conlan J.

Released: September 17, 2024