Court File and Parties

Court File No.: FS-10-00365110-0001 Date: 2024-11-18 Ontario Superior Court of Justice

Between: Marina Phillips, Applicant And: Richard Phillips, Respondent

Counsel: Marina Phillips, Self-Represented Jonah Paritzky, for the Respondent

Heard: March 11 - 13, and April 18, 2024

Before: Rhinelander, J.

Reasons for Decision

[1] The parties separated in 2010, when their son was 10 years old. From a young age, G.P. was reported to be seriously delayed in his development and displayed characteristics of autism. Throughout school, he had an individual education plan and supports in place. G.P. is now 23, diagnosed with Autism Spectrum Disorder, Bipolar Disorder, Persistent Depressive Disorder (moderate in severity), Post Traumatic Stress Disorder, and Anxiety. Doctors have described him as not being self sufficient or able to be independent. He requires some supervision and help from his mother, and will need ongoing support, guidance, and assistance for his daily needs.

[2] The Applicant filed a motion to change the Final Order of Hood, J. dated September 29, 2017, seeking to increase table child support in accordance with the Respondent’s increase in income since 2018, and retroactive arrears for underpayments of table child support.

[3] The Respondent opposed the Applicant’s motion and sought to terminate child support and section 7 expenses. The Respondent was self-represented during the trial. He retained counsel to assist with submissions at which time he conceded and agreed G.P. remained a “child of the marriage” entitled to child support. Thereafter, the Respondent requested an Order to i) reduce his child support obligations, ii) find he has overpaid child support retroactive to January 1, 2019; iii) recover the overpayments of child support from the Applicant, and iv) costs.

[4] The issues to be determined are:

i. Has there been a material change of circumstances? ii. Does G.P. remain entitled to child support? iii. If yes, how should child support be calculated pursuant to section 3(2) of the Federal Child Support Guidelines? iv. What quantum of child support should be payable? v. How should the Court address retroactive overpayments or underpayments?

Background

[5] The parties were married for over 19 years and separated in 2010. G.P.’s primary residence, after separation, has always been with the Applicant. The Applicant is currently 59 years old, and the Respondent is 63 years old.

[6] The parties, on consent, resolved corollary relief pursuant to a Final Order which addressed child support, section 7 expenses, annual disclosure, and benefits for G.P. The order requires the Respondent to pay table child support. In 2017, the Respondent’s annual income was $77,297, and table child support was $703 per month.

[7] The Respondent is also required to make monthly contributions of $232 towards G.P.’s section 7 expenses. The Applicant is permitted to allocate these funds towards any special or extraordinary expenses for G.P. The Applicant must provide receipts by December 31 of each year. The Final Order was clear this amount did not include post-secondary expenses, medical, dental, and extended health expenses not covered by any benefit plans in place for G.P. or any amounts not covered by extended benefit plans.

[8] The Order is specific that both parties are equally responsible for any costs of post-secondary education expenses, medical, dental, and extended health expenses not covered by benefit plans for G.P. The Applicant is required to provide receipts for all these expenses to the Respondent.

[9] The parties are required to exchange copies of their income tax returns, notices of assessment/reassessment or other disclosure as requested for the previous year by June 1.

[10] It is not disputed the Respondent has paid monthly child support of $703 and section 7 expenses of $232 since 2017, and the parties exchanged annual financial disclosure.

[11] The Order included the following term regarding subsidies at paragraph 16:

a. The Applicant/Mother shall accept the Special Services at Home subsidy on the Child's behalf; and any other subsidies he may be entitled to, and this shall not affect the amount of child support payable or amount payable towards the Child's Section 7 Special or Extraordinary Expenses. The Applicant/Mother shall provide an accounting of the monies received with backup documentation.

[12] The Order set out that child support would terminate if the following occurred:

a. The Child ceases to be a child, as defined in the Divorce Act; b. The Child no longer resides with the Applicant/Mother; c. The Child turns 18; unless the Child is in his final year of high school, in which case child support shall continue until the school year is over and the Child has graduated, unless he is unable to become self-supporting due to illness, disability, education or other cause that has been certified by an Ontario qualified medical professional or officer of the Court and that said qualification is to be provided in writing to the Respondent/Father within 30 days of notification or as soon as possible thereafter; d. The Child becomes self-supporting; e. The Child obtains one post-secondary degree or diploma; f. The Child turns 21 years of age, unless the Child is in his final year of school, in which case support shall continue until the school year is over and the Child has graduated; g. The Child married; h. The Child dies; i. The Respondent/Father dies. The Respondent/Father shall maintain a life insurance policy at the time of death and the Child shall be irrevocable beneficiary of said policy as set out in Paragraph 18 below.

Summary of the Evidence

[13] The Applicant loves G.P. very much and has been a strong advocate for him throughout his life. She is aware and has explored available supports and subsidies for G.P. over the years and provided him with security and stability before and after the breakdown of the parties’ marriage. The discord between the parties remains and was evident in this trial. Allegations of abuse, family violence, and police involvement, continued as part of the narrative in these proceedings, as the parties explained the path to where they are today.

[14] The Respondent and his family have not had contact with G.P. since 2016. A series of chance meetings and interactions with G.P. that summer resulted in the police being contacted and extended family accused of stalking and/or harassing G.P. Although no charges were laid, family members opted to not interact with G.P., or the Applicant based on advice from police. Two of the Respondent’s brothers and one sister testified regarding their brief exchanges with G.P. and his expressions of happiness upon seeing them. The exchanges were either described differently by G.P. to the Applicant or mischaracterized or misunderstood by her, which led to relations with G.P.’s paternal side of the family being non-existent for the past 8 years.

[15] The Applicant submits the Respondent and his family want nothing to do with G.P. They are embarrassed by his disabilities and size. The Respondent disagreed with this suggestion and argued the Applicant has created walls and obstacles that included police involvement, which made things too difficult and risked his and his siblings’ livelihoods and employment. Because of the Applicant’s actions, he does not engage or send gifts or acknowledge birthdays or holidays for fear of it being misconstrued.

[16] G.P. did not graduate high school in June 2019, as he failed English and math. He enrolled in an adult high school that September where he completed the two courses and received his diploma. On advice of a guidance counsellor, G.P. registered in a constructions trade program at a local college that began in January 2020. This was a one-year program. G.P. struggled with portions of the course but ultimately finished and received a certificate in December 2021. After this program, he started an 8-month program at Humber College in millwrighting. However, due to low marks and difficulties completing assignments it was recommended he try something else. G.P. did try a welding program offered at George Brown College, where G.P. once again struggled with maintaining the required marks.

[17] The Applicant has encouraged and enrolled G.P. in the above post-secondary courses. She has pushed G.P. in his education as she is concerned for his future. She stated she requires financial support from the Respondent so G.P. can complete his college. She provided receipts for initial deposits required for G.P. to enroll and accept offers of admission to the above programs. She did not, however, advise the Respondent that G.P. was in receipt of OSAP grants to assist with his tuition, books, and supplies prior to the commencement of these proceedings. Between 2021 to 2023, G.P. received a total of $24,799 in funding, all but approximately $2,000 were grants. No evidence was adduced regarding the exact amount or terms of repayment of this loan.

[18] G.P.’s most recent attempt at education is the Transitions to Post-Secondary Education program offered at George Brown College. It is a full-time Ontario College Certificate, that takes one academic year at a minimum to complete. It consists of three semesters and is funded by the Ontario Ministry of Health and Long-Term Care and the Ministry of Training, Colleges, and Universities. Students enrolled in this program are not eligible to receive OSAP, and the program does not fund computers or transportation. G.P. began the program on January 8, 2024.

[19] The Applicant testified that G.P. has difficulties following instructions and staying focused. This has affected his schooling and his part-time employment at a local grocery store. The Applicant testified G.P.’s employment is through a disability program. Due to G.P.’s inability to focus, the store has recently been cancelling his scheduled shifts by calling G.P. to advise he is not required.

[20] G.P. has struggled with his mental health and well-being resulting in several trips to the hospital in recent years due to attempts at self-harm and suicidal ideologies, especially when overwhelmed. He has begun to exhibit more aggressive behaviour, including causing damage within the apartment complex, and to himself.

[21] The Applicant testified that the parties have exchanged financial documents each year. The Respondent’s income has increased over the years. The Applicant has requested the Respondent increase monthly child support to accord with the Federal Child Support Guidelines for his income and one child. The Respondent has not increased monthly child support in accordance with the Guidelines and his annual income but continued to pay the amount set out in the Final Order.

[22] The Applicant consulted a worker at the ODSP and confirmed receipt of child support would not interfere or affect G.P.’s eligibility. The Applicant provided a break down regarding the child support arrears she believes are owed to G.P. from January 1, 2018, to the present.

[23] With the assistance of the Applicant, G.P. began receiving ODSP on his 18th birthday. He was approved for Passport funding commencing April 1, 2019. The Applicant did not inform or advise the Respondent that G.P. began receiving ODSP effective 2018 when he turned 18 years of age. Nor did she tell the Respondent that G.P. was in receipt of Passport funds, a similar subsidy previously received when G.P. was under 18, but for individuals over the age of majority. The Respondent was only provided with this information after the Applicant was ordered to do so by Kraft, J. on October 17, 2023.

[24] ODSP income support is depended on basic needs and a shelter allowance. The basic needs portion is to assist with the cost of food, clothing, and other personal items. The shelter allowance is to assist with rent, heat, utilities, and insurance. G.P. receives the full ODSP benefit rate as opposed to the “board and lodge” rate which is less.

[25] The Passport program is to assist adults with developmental disabilities participate in their communities and live as independently as possible. It also provides caregivers a break from their caregiving responsibilities. The program provides reimbursement of eligible expenses up to a maximum of $5,000 per annum. Eligible expenses include community participation supports and activities of daily living such as programs, classes, and supports that encourage and develop independence, communication, and life skills. It also includes gym memberships, fees, and admissions to activities, transportation costs to these activities, and hiring a support worker to assist with daily living activities and/or to provide respite for caregivers.

[26] The Respondent provided evidence the Passport program will cover funding up to $3000 for laptops, tablets, cell phone and cell phone plans, internet fees, amongst other training and skills classes as part of the $5,000. The Applicant testified she was unaware that it covered phones and a computer, however, she used the funding for respite. She hired support workers to care for G.P. to provide herself with time to rest. This is an eligible or admissible expense.

[27] Despite G.P. receiving monthly benefits from the ODSP, the Applicant maintains table child support is critical to enable her to provide the necessities of life for G.P., his education, clothing, food, and living amenities. She testified she cannot meet these expenses on her small income and acknowledged she buys or gives G.P. whatever he wants without restraint. When asked whether she has put together a budget for G.P. she said no, they just live as they go and if there is something G.P. needs, she will buy it.

[28] Having been diagnosed with bipolar disorder, some of the various medications have caused G.P. to gain a significant amount of weight. The Applicant has consulted dieticians and taken different steps to assist G.P. in controlling his weight. The Applicant explained G.P.’s needs are greater due to his physical size. She described G.P. as 6’4 and almost 400 pounds. He wears a size 16 shoe and 3X clothing. The cost for G.P.’s clothing is more than double the cost for regular size shirts and pants. The Applicant is required to shop at speciality stores or online and tries to find clothing that is age and style appropriate for G.P. His size requires some clothing to be custom made and shipped to their home.

[29] The Applicant had worked at the Globe and Mail for approximately thirty years. Her job was downsized, and she received a severance package. She relied on these funds to provide for her and G.P. The Applicant has since found other employment that permits her to work from home. It allows her to be present to supervise or assist G.P. when needed. However, there is very little respite for the Applicant, and she is exhausted and worn down. She testified that she is getting older and has health issues of her own. It has been difficult for her maintaining full time employment and caring for G.P. on her own.

[30] The Applicant acknowledged her failure to provide annual receipts and proof of payment for section 7 expenses including health and dental benefits, school uniforms, and tuition. She has maintained G.P. on her health and dental benefits and told the court, he receives coverage for all dental, health, and prescriptions through ODSP.

[31] Medical evidence was called to establish G.P.’s diagnosis and prognosis. The doctors were clear that while G.P. can function on his own and complete some tasks unassisted, he still requires assistance and supervision. Examples of tasks G.P. can do on his own included walking his dogs, being in public by himself, ordering items from UberEATS, taking public transportation, attending school and employment. Dr. Maragh testified G.P. requires organizational supports to assist him with financial and personal care, and daily living. He can manage the basic tasks of daily living but requires assistance with the more complex tasks such as self-care.

[32] The Respondent called evidence from family members to explain the discord and backdrop of why he does not have an active role in G.P.’s life. He also presented evidence regarding G.P.’s income from ODSP, Passport funding, OSAP, and employment. Between 2019 to 2023, G.P. received income of $95,596.77 over the five years.

[33] The Respondent testified he has paid $56,100 from January 1, 2019 to December 31, 2023, in monthly child support of $703 and $232 for monthly section 7 expenses. Although the Applicant is required to provide him with receipts every year, she has failed to do so.

[34] The Respondent identified that many of the items the Applicant provided him with receipts for section 7 expenses are all items that are eligible for coverage through Passport funding. The Respondent testified regarding his belief of overpayments of child support and section 7 expenses and monies owed to him by the Applicant. He expressed concerns of the Applicant mismanaging monies that would be better spent on programming and skills training for G.P.

Analysis

i. Has there been a material change of circumstances?

[35] Section 17(1) of the Divorce Act provides courts with the power to change the terms of an order, either prospectively or retroactively; and can also suspend or discharge the order, either in whole or in part, and on a prospective or retroactive basis.

[36] The parties agree there has been a material change of circumstances since the final order of Hood, J. was made in 2017 but for different reasons.

[37] The Applicant’s position is the Respondent’s income has increased by approximately $40,000, however, there has never been a change to table child support or section 7 expenses.

[38] The Respondent’s position is G.P. is an adult and receives ODSP, Passport funding, income from part-time employment, and received OSAP when attending school.

[39] I find that there has been a material change in circumstances as claimed by both parties that warrants a variation of the final order regarding child support.

ii. Does G.P. remain entitled to child support?

[40] Pursuant to section 15.1 of the Divorce Act, entitlement to child support is dependent on a child being a "child of the marriage". The definition of "child of the marriage" is set out in section 2 of the Divorce Act, which is as follows:

"child of the marriage" means a child of two spouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [Emphasis added]

[41] This was a key issue when the trial started as G.P. is over the age of majority. After the evidence had been heard, the matter was adjourned for written and oral submissions. The Respondent conceded “that the medical evidence presented at trial establishes that G.P. remains “a child of the marriage” under the Divorce Act”.

[42] As both parties agree G.P. remains a child of the marriage, and is unable to withdraw from parental charge, I do not have to determine this issue, but based on the medical evidence and the testimony of two of G.P.’s doctors I would have come to the same conclusion.

iii. If yes, how should child support be calculated pursuant to section 3(2) of the Federal Child Support Guidelines?

[43] Section 3(2) of the Federal Child Support Guidelines provides for the following:

Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is,

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[44] The parties agree G.P. is unable to withdraw from parental charge, and therefore I must determine pursuant to s. 3(2) of the Guidelines how child support should be calculated. Table child support will be ordered for a child over the age of majority unless a court considers it “inappropriate”, in which case the quantum of support shall be determined pursuant to s. 3(2)(b).

[45] The party seeking to set aside the presumptive table amount as recommended by the Guidelines, bears the burden of rebutting the presumption that the table amount is inappropriate. See Francis v. Baker, [1999] 3 S.C.R. 250. If the presumption in s.3(2)(a) is rebutted, child support can be set above or below the table amount.

[46] The Applicant argued child support should be calculated pursuant to s.3(2)(a) and the Respondent required to pay full table child support commensurate with his income effective January 1, 2018, including further contributions towards section 7 expenses.

[47] The Respondent argued table child support is inappropriate in the circumstances and the court should determine child support based on G.P.’s condition, means, needs, and other circumstances pursuant to s.3(2)(b). He relies on evidence that demonstrates G.P. receives ODSP, employment income, and Passport funding. Based on the government benefits, his child support contributions should be reduced if not terminated.

[48] I must now determine whether table child support as set out in the Guidelines is appropriate and if not, how it should be calculated.

[49] The Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. enshrines the objective of creating a shared responsibility between government and families in meeting the needs of adults with disabilities. The receipt of ODSP benefits does not in and of itself lead to disentitlement to child support: see Senos v. Karcz, 2014 ONCA 459, 120 O.R. (3d) 321; Chittle v. Chittle, 2019 ONSC 1433, [2019] O.J. No. 1382; Morden v. Kelly, 2019 ONSC 4620.

[50] The issue of whether the receipt of income support under the ODSP by an adult child makes the presumptive “table” approach to child support inappropriate was determined in Senos v. Karcz. Strathy, J.A., delivered the judgment of the court, where they confirmed the purpose and intent of the ODSPA is to provide income support, health benefits, and employment supports to people with disabilities in financial need, and for society to share the responsibility of caring for adults with disabilities (paragraphs 41 – 42). I have emphasized the word “share” to be interpreted for its true meaning. The financial responsibility for the costs for caring for disabled adult children has not shifted solely to the state, but rather is to be shared with both parents of the child. Courts have held there needs to be an equitable balancing of financial responsibility.

[51] The Applicant relied upon several articles and commentaries regarding child support for a disabled adult. A “child” forever? Child Support for the Disabled Adult discussed the decision in Coates v Watson, that struck down the predecessor section 31 of the Family Law Act finding it violated section 15 of the Charter. This led to Bill 177 which amended the wording of section 31 to include the right to child support for adult children with disabilities. For the issues in this case, this article does not assist as the Divorce Act is the applicable legislation.

[52] The article by Nicholas Bala and Brittany Chaput, written in 2015 before Bill 177, compared the provisions of the Divorce Act and the Family Law Act and identified the differences between the legislation and cases interpreting the competing sections at that time. It discussed child support where an adult child has a disability, and the obligation to continue support, and acknowledged that social assistance and disability pensions will be considered in setting the amount of this obligation. [Emphasis added.] Chittle v. Chittle, and Morden v. Kelly provide further guidance on how to approach calculating child support for a disabled adult child.

[53] Both courts considered and relied upon the general principles set out by the Ontario Court of Appeal in Lewi v. Lewi, 2006 ONCA 459, 80 O.R. (3d) 321 which outlined the approach to calculate support for an adult child as follows:

i. The court starts with the presumption that it should be calculated in the same manner as for a child under the age of majority; that is, by calculating the applicable Table amount and adding any contribution to section 7 expenses. This is described as “the standard Guideline approach.” However, the court must then determine whether this approach is “inappropriate” based on the particular facts of the case. ii. If the court determines that the standard Guideline approach is inappropriate, the court must determine the amount of child support that the court considers appropriate, having regard for the conditions, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. The court cannot depart from the standard Guideline approach simply on the basis that the amount determined using the standard approach is inappropriate. iii. Where the court determines that the standard Guideline approach is inappropriate, the analysis should be carried out entirely pursuant to section 3(2)(b) of the Guidelines and without resort to section 7. However, in carrying out the section 3(2)(b) analysis, the court may draw upon the principles set out in section 7 and other provisions of the Guidelines, and judicial experience in applying them. For example, the court may order that expenses be shared between the parents in proportion to their respective incomes, after deducting the contribution of the child. iv. Section 3(2)(b) requires the court to consider the means of the child along with the means of the parents in determining an appropriate amount of child support. The court has discretion to decide the amount that the child should be required to contribute.

[54] As set out by Braid, J. in Morden v. Kelly, 2019 ONSC 4620 at paragraph 50, “The test for entitlement to support for adult children under the Divorce Act allows for the exercise of considerable judicial discretion, and the determination of entitlement is a fact-driven exercise in every case: see Laramie v. Laramie, 2018 ONSC 4740, [2018] O.J. No. 4130; Whitton v. Whitton, [1989] O.J. No. 1002, 1989 CarswellOnt 265 (Ont. C.A.).

[55] Courts have held that an adult child’s receipt of ODSP benefits is sufficient to displace the “one-size-fits-most” approach in section 3(2)(a) of the Guidelines in favour of the “tailor-made” approach in section 3(2)(b). There is a potential for overlap between child support payments (which are intended to assist the residential parent to cover the child’s needs relating to shelter, food and clothing) and ODSP benefits paid to the recipient child which cover similar needs. ODSP support reflects society’s commitment to sharing financial responsibility for adults with disabilities; therefore, it makes little sense to calculate child support on the basis that this responsibility falls only on the parents. Section 3(2)(b) should be applied to achieve an equitable balancing of responsibility between the adult child, his parents and society: see Senos v. Karcz and Morden v. Kelly.

[56] G.P. receives monthly benefits from the ODSP and has received Passport funding from the provincial government since April 1, 2019. In addition, G.P. has maintained a part-time job at a local grocery store for a maximum of four hours a week. G.P. can contribute to his own living expenses and activities to a limited extent. Therefore, child support should be calculated pursuant to section 3(2)(b) of the Guidelines.

iv. What quantum of child support should be payable?

[57] Having determined the standard Guideline approach for an adult child is inappropriate, I must carefully consider the child’s unique condition, means, needs and circumstances; and the ability of the parents to contribute to the child’s support. The relevant legislative provisions provide a wide discretion to determine the appropriate approach to calculating child support, the contribution that the child should make to their own support, if any, and the quantum of child support that each parent should pay, if any. The result of this quantification analysis pursuant to section 3(2)(b) may still be a child support award close to or identical to the Table amount: see Senos v. Karcz and Morden v. Kelly. Courts have taken different approaches to quantifying child support in different cases.

[58] The Respondent proposed a budgetary approach and relied on percentages for rent and other living expenses used in Morden v. Kelly. The Respondent invited the court to calculate an appropriate budget using the Applicant’s financial statement dated March 1, 2023. Upon determining an approximate calculation of G.P.’s total average monthly living expenses, deducting his monthly disability benefits, the shortfall should be apportioned between the parties to their respective incomes. The Respondent argued this approach achieves a balancing or sharing of the financial responsibility of G.P., his parents, and the state.

[59] No separate budget was provided specific to G.P.’s monthly living expenses. The Applicant testified that all household funds were deposited together and used to cover their living expenses and needs. G.P. is provided funds by the Applicant to a separate account for him to use for small expenditures or purchases. She is unable to provide G.P. with the full quantum of his benefits or he would spend it all immediately without regard for rent or other household necessities. Using the Applicant’s March 2024 financial statement, I have determined reasonable living expenses for G.P. as set out below.

[60] The Applicant and G.P. reside in an apartment and the rent is $1750.72 and insurance is $22.02. I have no evidence what the extra cost is attributable to having G.P. live there. Therefore, I shall exercise my discretion and attribute $600 to G.P. for monthly rent and insurance.

[61] In the absence of evidence regarding the proportion of utility expenses attributable to G.P., I have allotted 50% of the monthly costs to him included on the Applicant’s statement for a total of $96.39. Likewise, I have determined 50% of the transportation and health benefits should be attributable to G.P. of $286.99 and $37.15 respectively.

[62] According to the Applicant’s sworn Financial Statement of March 4, 2024, monthly household expenses of $1,830 include $1,000 towards groceries. Based on the evidence at trial, it would be unfair to divide the grocery budget equally. I have budgeted $415 of the household expenses to G.P. in addition to $600 of the grocery bill for a total of $1015.

[63] Under other expenses, the Applicant included vacations, school fees and supplies, clothing for children, children’s activities, debt payments, and other expenses not included above. I have not allocated any amount for vacations as this is not a basic living expense. Nor I have allocated the debt payments and school fees and supplies. The latter can be calculated as a section 7 expense and the former did not have a sufficient evidentiary basis to determine this is attributable to G.P. I have no information what the other expenses of $200 is for and therefore decline to assign a portion to G.P. The other items claimed for clothing and children’s activities are clearly for G.P. of $337.

[64] Under personal expenses, the Applicant included clothing, hair care and beauty, entertainment, and gifts. I have not apportioned these expenses to G.P. as the Applicant set out a monthly estimate for his clothing under other expenses. I have budgeted a monthly amount of $150 for personal toiletries, non-prescription medicines, entertainment, and haircuts for G.P.

[65] I have concluded a reasonable monthly budget for G.P. is $2,521.53, or $30,258.36 per year.

[66] G.P.’s sources of revenue are his ODSP benefits and part time employment income. He earned approximately $3,700 last year. The Applicant testified the store has been cancelling his shifts this year. It is unclear if he will still receive remuneration for the cancelled shifts. No evidence was called on this issue. If I average out his income from the grocery store for the two most recent years, it is approximately $3,500. On this basis, G.P. can anticipate receiving revenue of approximately $18,833 this year or $1,569.17 per month.

[67] The shortfall between G.P.’s current average monthly living expenses and his current income or revenue source is $952.36. The amount of child support payable by the parties shall be based on their respective incomes. If this is the same as last year, the Respondent shall be responsible for $647.60 per month. The Final Order makes clear that the parties must provide updated income disclosure to each other by June 1.

[68] To ensure the Respondent is informed of G.P.’s revenue each year, the Applicant shall immediately disclose to the Respondent copies of G.P.’s income tax returns, notices of assessment, T4s from employment, any changes in the amount of G.P.’s ODSP benefits, OSAP, and Passport funding, including any increases to annual limits, and copies of all claims she submits to Passport for reimbursement.

[69] I did not include the Passport funding in this calculation as it is only paid if the expense is incurred and upon presentation of receipts. The Applicant testified she relies upon this funding to obtain respite throughout the year. The Respondent has no relationship with G.P. and does not have parenting time with him. Therefore, the only break or relief the Applicant receives is from neighbours, family, and through Passport.

[70] The Respondent argued these funds should be used for transportation, activities, cellphone, computers, and other items he has had to contribute to over the years. It is not for the Respondent to direct how the available Passport funds are used. Respite is a permissible expense and there is no reason it can not be used for that purpose and considered a contribution by G.P. to his own special and extraordinary expenses.

[71] The Applicant argued G.P. is entitled to receive child support while in receipt of ODSP and Passport funding. This is not disputed. She understood receiving these benefits would not interfere with the child support. It does not, in the sense that any child support G.P. is entitled to is not deducted dollar for dollar from what he receives from ODSP. However, I have determined table child support is inappropriate in this case, as G.P. receives ODSP. I have determined the quantum each parent is to contribute pursuant to section 3(2)(b).

[72] The Respondent made submissions regarding paragraph 16 of the Final Order and that its interpretation should not apply to G.P.’s entitlement to ODSP. I agree. The ODSP benefits are specific to daily living expenses including clothing, rent, and groceries, all items specifically excluded under the Passport funding and the Special Services at Home subsidy for children under the age of 18.

[73] Lastly, the Final Order made clear the monthly $232 payable by the Respondent to the Applicant was to be allocated towards any section 7 expenses for G.P. The Applicant was permitted to use the funds for any such expenses and required to provide receipts to the Respondent by December 31 of each year. The Applicant acknowledged she failed to do this.

[74] Setting a fixed amount for section 7 expenses is discretionary under s.3(2)(b). The total amount of the annual receipts adduced at trial, were far less than the amount the Respondent had been paying and would have resulted in a much higher overpayment but for post-secondary expenses. I have decided to exercise my discretion and not impose a set monthly amount.

[75] As stated above, Hood, J. made clear this amount did not include any post-secondary education expenses. This means any such expenses, including tuition, books and supplies, and public transportation to attend school, not covered by OSAP or other grants are to be shared equally between the parties.

v. How should the Court address retroactive overpayments or underpayments?

[76] The Respondent continued to pay monthly child support of $703 per month and $232 a month towards section 7 expenses since 2017. The Applicant claims the Respondent owes her arrears and the Respondent claims he has overpaid both child support and section 7 expenses.

[77] The Applicant filed receipts for each of the years 2018 to 2023. In her calculations, she failed to deduct the monthly amount of $232 the Respondent contributed to section 7 expenses, thus lowering any arrears he may have owed her and instead creating an overpayment owed to him.

[78] In 2018, G.P. was still in high school and had not turned 18 until the end of the school year. The Respondent’s income increased to $77,883 per annum. Table child support was $725.77 per month. Therefore, the Respondent owes the Applicant $273.24 in arrears for that year.

[79] Between January 1, 2019, and December 31, 2023, the Respondent paid $13,920 towards section 7 expenses. The receipts the Applicant introduced at trial, included post-secondary expenses totalling $19,967.41 for that timeframe. It left a shortfall of $6047.41. The parties are both required to contribute equally to post-secondary expenses. For ease of calculations, I have shared the shortfall between the parties for a total attributable to each as $3,023.70. Therefore, the Respondent owes the Applicant $3,023.70. In coming to this conclusion, I appreciate both parties are required to contribute equally, and I acknowledge the Respondent has paid monthly section 7 expenses since 2017, and the Applicant has failed to provide receipts each year as required.

[80] Had the Respondent received receipts, he may have chosen to bring a motion to change much earlier to reduce the section 7 expenses. Paragraph 13 of the Final Order is hereby deleted and the requirement for the Respondent to pay the monthly amount of section 7 special or extraordinary expenses is terminated. This does not relieve the Respondent from paying his portion of section 7 expenses pursuant to other terms in the Final Order.

[81] Having determined arrears for the child support payable in 2018, and the section 7 expenses, I must now consider any over/under payments for 2019 to the present. For simplicity, I opted to use the approach the Respondent took in his submissions regarding calculations of calculation of child support. I have used the same monthly budget for G.P. retroactive to January 1, 2019, as there is nothing to suggest major fluctuations during this time. For ease of reference, I have set out the following chart:

[82] Based on the above, Applicant owes the Respondent $7,192.95 in overpayments for child support less arrears owing to her for 2018 of $273.24 and less section 7 post-secondary expenses owed to her of $3,023.70. Therefore, the Applicant owes the Respondent $3,896.01 in overpayments.

[83] Unless the parties agree otherwise, the Applicant shall make monthly installments of $100 until the balance is paid in full.

Costs

[84] As a result of my decision, I urge the parties to discuss the issue of costs and recommend each party be responsible for their own costs. Neither party achieved full success. The Applicant was successful in having G.P. remain a child of the marriage, an issue hotly contested by the Respondent until all the evidence was complete. The Respondent obtained a degree of success insofar as the monthly section 7 contributions have terminated. Neither party “won” regarding the issue of arrears and quantum owing. At the end of the day, G.P. should be the priority.

[85] If the parties are unable to come to an agreement, they shall serve and file their written submissions within twenty-one days of the release of this decision. Submissions shall not exceed one page double spaced not including any offer to settle or bill of costs.

Rhinelander J. Date: November 18, 2024