Houston v. Houston, 2025 ONSC 1563

Court File No.: 1088/23
Date: March 10, 2025
Superior Court of Justice – Ontario

Re: Scott Gregory Houston, Applicant
And: Sharon Ann Houston, Respondent

Before: Alex Pazaratz
Counsel: Self-Represented Applicant; Self-Represented Respondent
Heard: March 4, 5, 2025

Endorsement

Introduction

[1] This was scheduled as a three-day oral hearing of a motion to change child support relating to an adult disabled child.

Background

[2] The background:

a. The Applicant father and the Respondent mother are each 60 years old.
b. They started living together in 1985.
c. They were married October 10, 1987.
d. They separated June 26, 1998.
e. They have one child, a son BH who is now 28 years old.

The Disability

[3] The disability:

a. By the time he was five years old BH was diagnosed with PDD-Nos (Pervasive Development Disorder, non-specific) placing him on the Autism Spectrum.
b. Since the date of separation, BH has resided with his mother.
c. In November 2015 BH started to receive approximately $900.00 per month through the Ontario Disability Support Program (ODSP). The amount has increased over the years. He has also received other government assistance as a result of his disability (through the Passport Program and Disability Tax Credits, for example).
d. In their pleadings, the parents gave conflicting versions of the extent of BH’s limitations and personal potential. But as with many issues on this motion, the debate about the extent of BH’s disability turned out to be a needlessly time-consuming distraction.
e. At the hearing of the motion, the father fully acknowledged that BH remains a “child of the marriage” as defined by the Divorce Act; that BH is entitled to ongoing child-support; and that the only real issue is quantum of support.
f. (With that acknowledgement we were able to dispense with a professional witness, and shorten the trial.)

Prior Orders and Agreements

[4] The parties initially resolved all issues including child support in an April 9, 1999 separation agreement.

[5] The February 10, 2000 Divorce Order of Justice Potts includes the following terms:

a. The action was not responded to by the mother.
b. Divorce granted.
c. The custody, access and support provisions of the parties’ April 9, 1999 Separation Agreement were incorporated into the order.
d. The father and mother have joint custody of BH.
e. They will confer on all important matters relating to the child’s health, residence, welfare, education and upbringing. Mechanisms were set out for dispute resolution.
f. Father to pay mother $840.00 per month child support, until a number of contingencies occur including “the child is no longer a child of the marriage.”
g. Father to pay 75% of post-secondary education. Mother to pay 25%.
h. Each party pays their own child care expenses. If father’s monthly child care expenses exceed $260.00 he may, in his discretion, deduct any amount over $260.00 of child care expenses from his monthly child support.

[6] The May 29, 2012 final order of Justice Murray was based upon minutes of settlement and includes the following terms:

a. The father’s child support payments were reduced to $462.00 per month commencing December 1, 2011, based upon the father’s “agreed annual income of $50,000.00, being his Line 150 total income of $23,000.00 plus an agreed amount of $27,000.00 being an agreed-upon current gross-up.”
b. Section 7 expenses to be shared 75% by father, 25% by mother.
c. Father’s child support arrears were fixed at $12,539.00 as of December 1, 2011.
d. $1,470.00 of the child support arrears are owing to Ontario Works, repayable at $100.00 per month commencing December 1, 2011.
e. The remaining child support arrears ($11,069.00) are owing to the mother and are repayable at $100.00 per month commencing December 1, 2011. Once the arrears owing to Ontario Works are paid off, the repayment rate to the mother shall be increased to $200.00 per month.
f. Father to provide to the mother by July 1st annually (commencing July 1, 2013):
i. Income Tax Returns and all attachments for the previous year;
ii. Financial statements for his sole proprietorship;
iii. Proof of year to date income from all sources; and
iv. Notice of assessments and or reassessments.
g. Parties to attend mediation to address any future disagreements regarding support.

[7] The parties subsequently attended mediation. They blame one another for the fact that ongoing disputes about child support were not resolved.

The Motion to Change

[8] The father’s September 5, 2023 motion seeks to change the May 29, 2012 order, to reduce child support from the $462.00 per month to zero. He set out the basis for his request:

a. BH was then 16 years old.
b. The child receives disability income for Aspergers Syndrome. He has been receiving government assistance since age 18. The mother has controlled BH’s finances.
c. BH has worked/volunteered at Little Ray's Nature Centre for more than 10 years. His responsibilities include cleaning, attending to the animals and assisting and attending to guests visiting the zoo.
d. BH has no therapeutic activities or expenses due to his disability.
e. Mediation was attempted in June 2019, but it was terminated at the beginning of the second session because the mother would not provide disclosure with respect to BH’s expenses and his contribution to the household budget. The father had requested this information in March 2019, three months prior to mediation commencing.
f. The mother increased BH’s involvement in the Passport Program from once a week to twice a week. The father provided $1,000.00 to get BH started in the government supported Passport Program for outside help. However BH stopped participating in the program after 3 months, so he lost entitlement to some benefits. The $1,000.00 intended for the Passport Program was never returned to the father.
g. The father has worked in the live entertainment industry for 36 years, starting his own company in 2009. In 2020 the industry shut down due to the pandemic. Most of his clients either retired or permanently closed due to the pandemic. His business is operating at 10% of pre-pandemic levels.
h. As of December 2023 FRO confirmed that there are no arrears of child support.

[9] The mother’s November 1, 2023 Response to Motion to Change (prepared when she was representing herself) includes the following narrative:

a. The father only sees BH 12 hours per year. He misunderstands both BH’s diagnosis and capabilities.
b. The father has demonstrated a persistent pattern of non-payment or an attempt to decrease and/or stop child support payments altogether, to the detriment of the mother’s physical and mental health.
c. The father has misrepresented the circumstances of BH’s volunteering at Little Ray's Nature Centre, where he receives no remuneration.
d. There is reason to believe that the father has misrepresented his assets.
e. The father has made no effort to find interim employment and his industry is currently making a strong comeback.
f. By the father’s own admission, both parents continue to be responsible for the ongoing financial support of their adult child of the marriage.

[10] The father’s May 3, 2024 Amended Motion to Change includes the following modifications of his position:

a. Rather than asking that child support be reduced to zero, he is requesting that it be reduced to $200.00 per month.
b. Rather than ask for repayment of an overpayment, he seeks an order that he receive a credit for $4,804.00 as a lump sum child support contribution, to be factored into the overall determination of child support.

[11] The mother’s June 21, 2024 Amended Response to Motion to Change (prepared after she retained counsel) includes the following amended claims:

a. She asks that the father pay retroactive support from 2015 until December 31, 2023 based upon an imputed income of at least minimum wage, unless his actual earnings were higher than minimum wage – plus at least $27,000.00 gross-up as set out in the May 29, 2012 order.
b. She seeks a final order of child support that is not subject to future change through litigation or mediation, to protect her from ongoing and future harassment by the father.

Narrowing of Issues

[12] So, when the parties scheduled this three-day oral hearing at a Trial Scheduling Conference on October 29, 2024, it looked like there were a lot of serious issues.

[13] But by the time the trial was reached at the beginning of March 2025 the mother was again representing herself (the father had been representing himself all along), and for a number of reasons various issues were either resolved or they weren’t pursued very vigorously. Both parties ultimately left the ambiguity and evidentiary deficiencies to be resolved by the trial judge.

[14] For example, at the outset of the trial, the father stated he would be asking that child support be reduced to zero.

a. I reminded him that in his initial Notice of Motion he proposed that child support be reduced to zero. But in his subsequent amended Notice of Motion he specifically increased his child support proposal from zero to $200.00 per month.
b. The father acknowledged that he had never further amended his motion to request anything other than $200.00 per month. Nor had he provided the mother with formal notice that he would be changing his $200.00 per month proposal at trial.
c. After reviewing the issue, the father confirmed that he was indeed proposing that he continue to pay child support but in the reduced sum of $200.00 per month.

[15] Similarly, in his opening statement at trial the father indicated he would be requesting reimbursement of an overpayment of child support fixed at $26,000.00. But when he was reminded that in his amended Motion to Change he set out a claim for $4,804.00, he immediately acknowledged that he was only seeking the lower amount (plus a small increase for continuing overpayments since the date of his May 3, 2024 amended Motion to Change).

[16] But perhaps the most important factor in reducing the scope of this trial was a detailed, itemized Request to Admit which the father served on the mother on January 9, 2025.

a. The Request to Admit included factual determinations of a number of key financial issues and calculations.
b. The mother acknowledged that she had received the Request to Admit; she reviewed it; and she failed to respond to it in any fashion. She offered no explanation other than a general suggestion that she thought her lawyer had taken care of it (she no longer had counsel of record by the time the Request to Admit was served).
c. Understandably, the father took the position that pursuant to Rule 22(4) the mother’s failure to respond to the Request to Admit results in a determination that the facts presented by the father are true.

[17] The mother made no serious effort to avoid the consequences of an unanswered Request to Admit, or to request that her deemed admissions be withdrawn. And in the circumstances of this case, it would be inappropriate to disregard or undermine the important function of a Request to Admit.

a. It’s not just the Request to Admit that the mother ignored. She also ignored disclosure orders and mis-stated the facts.
b. Disclosure by the mother has been an ongoing problem. The father had to bring at least two motions to compel disclosure, and even at trial the mother hadn’t produced some of the documents she was ordered to produce (with respect to unredacted bank records, for example).
c. During cross-examination, the father pointed out a series of claims by the mother for expenses which turned out to be significantly over-stated (or completely subsidized).
d. As well she filed sworn materials outlining how she was sharing costs with her partner, even after she had separated from her partner.
e. The parties’ October 9, 2024 Trial Scheduling Endorsement Form included a requirement that both parties file updated sworn financial statements. The father complied with this. The mother did not. Under cross-examination she explained that this litigation and preparing for trial has made her ill, and because of her poor memory she has a difficult time remembering what she’s supposed to do.
f. There were other examples of the mother simply not paying attention to the file, and not really being prepared for trial.

[18] It is not uncommon for self-represented parties to feel confused or even overwhelmed. That’s why judges provide accommodation, patience and even latitude with respect to rules and formalities. And that’s what I attempted to do for both of these self-represented parties.

[19] But equally, the objectives of our family court system will crumble if we allow a double standard, where lawyers have to strictly follow the rules while self-represented parties can ignore them. Lowered expectations for self-represented parties will have the unintended consequence of creating more self-represented parties (why pay for a lawyer when non-lawyers seem to get a free pass?).

[20] Here, as in many cases, fairness is a double-edged sword.

a. The mother wasn’t sure how to respond to a Request to Admit? Do we ignore Rule 22?
b. But the father is also self-represented. And he learned exactly how to use a Request to Admit. Quite effectively. Do we ignore Rule 22?
c. If we ignore rules – for anyone – then there’s no point in having rules.

[21] I agree with the father that pursuant to Rule 22, the mother is deemed to admit the facts set out in his 20 paragraph Request to Admit, including some key determinations on this motion:

a. The mother did not notify the father when BH started receiving ODSP payments in 2015, and Passport Program payments in 2016.
b. BH graduated from high school in 2017.
c. He graduated from Mohawk College in 2019, on the Dean’s list.
d. BH’s income from all sources in 2024 was $18,728.30 or $1,560.69 per month. The ODSP portion is $1,037.00 per month.
e. The annual total of household bills disclosed by the mother was $22,322.48 or $1,860.21 per month. The mother says one-third should be attributed to BH. 33% amounts to $619.45 per month (which is less than the amount the mother was attributing to her son).
f. The father has made an overpayment of support in the sum of $8,458.00.

Remaining Issues

[22] So after a year and a half of bitter litigation, it gradually became apparent during the first morning of trial that these parties really weren’t that far apart.

a. The father said his income had decreased from 2012. The mother was prepared to acknowledge a decrease.
b. The father acknowledged the adult disabled child’s entitlement to ongoing child support.
c. The father’s overpayment of past child support had been fixed at $8,458.00.

[23] So the only remaining issues for me to determine were:

a. Quantum of ongoing child support.
b. How to factor in the father’s $8,458.00 overpayment.

[24] Sounds fairly straightforward. Except when these two parties finally got the oral hearing they insisted upon, they both had remarkably little to say and little to ask one another.

[25] Ultimately, during closing submissions on the second and final day of the trial, they helped me a bit more.

a. The father amended his position and acknowledged that income should be imputed to him in the amount of $30,000.00.
b. The mother amended her position and ballparked that income should be imputed to the father in the amount of $34,000.00. Not much of a difference.

Imputing Income: Legal Principles

[26] Courts have considerable discretion in determining whether to impute income and, if so, in what amount. The considerations include:

a. Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected must be grounded in the evidence. Drygala v. Pauli; D.D. v. H.D., 2015 ONCA 409; Fraser v. Fraser, 2013 ONCA 715; Cordi v. Cordi, 2021 ONSC 128; Moreton v. Inthavixay, 2020 ONSC 4881.
b. The onus is on the spouse seeking to impute income to establish the evidentiary foundation: Berta v. Berta, 2015 ONCA 918; Norris v. Riley, 2023 ONCJ 121.
c. The court must consider the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court must determine what income the party could earn if he or she worked to capacity. Lawson v. Lawson; C.S. v. K.M., 2023 ONCJ 106.
d. Regardless of the basis upon which income is imputed, the court has a broad discretion in determining an amount to impute, if any. Drygala v. Pauli; Gill v. Gill, 2020 ONSC 1176; Daciuk v. Daciuk, 2023 ONSC 70.
e. In exercising its discretion, the court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support. Riel v. Holland; Manis v. Manis, [2000] O.J. No. 4539 (SCJ); C.V. v. S.G., 2019 ONCJ 159.

[27] My resolution of the narrow income dispute was straightforward.

a. The father has consented to income being imputed in the amount of $30,000.00.
b. The mother suggested $34,000.00, based on her general view that he could be earning minimum wage. She offered no specific evidence on this topic.
c. In the absence of any other information about a payor’s situation, courts will often impute a minimum wage income. Pustai v. Pustai, 2018 ONCA 785; McChesney v. McChesney, 2023 ONSC 5388; de Pimentel v. Rodriguez, 2024 ONSC 2844.
d. But, particularly in the current economy, courts should not default to making assumptions that people can earn a minimum wage income at full-time hours. The reality is that there are now far more part-time workers that come before the court. T.M.B. v. B.P.G., 2018 ONCJ 435.
e. The father has provided considerable evidence about his income, including factors relating to his age, health, and economic conditions in his line of work. His second-day-of-trial suggestion of $30,000.00 is supported by the evidence.
f. The mother provided no evidence to justify the minor increase she sought to $34,000.00.

[28] The mother’s income is modest and wasn’t disputed.

[29] Having determined the income levels for the parents and the child, and the specific expenses relating to the child, the next issue was quantum.

Quantum of Child Support

[30] Again, as the trial progressed the parties seemed to continuously change their positions.

a. During closing submissions the father continued to propose that he pay $200.00 per month.
b. At the end, the mother lowered her request to $250.00 per month.

[31] Throughout the trial the mother repeated that she was seeking the full table amount of child support. Her $250.00 figure appears to be a rounding of the table amount of $256.00 for one child based on a $30,000.00 income. But it’s not that simple.

Legal Framework: Adult Children and Support

[32] Section 15.1 of the Divorce Act states a court may on application by either or both spouses make an order requiring a spouse to pay for the support of any or all "children of the marriage."

[33] Section 2(1) of the Divorce Act provides that entitlement to child support for a child who is over the age of majority depends on a finding that the child remains under the charge of a parent and is “unable by reason of illness, disability or other cause” to withdraw from the parent’s charge or to obtain the necessaries of life. Section 2(1) states:

"child of the marriage" means a child of two spouses or former spouses who, at the material time,
a) is under the age of majority and who has not withdrawn from their charge, or
b) 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.

[34] Section 3(2) of the Child Support Guidelines provides that there is significant discretion in setting the amount of child support payable for a child over the age of majority:

3(2) Child the age of majority or over — Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the 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.

[35] So section 3(2) of the Guidelines requires the court to apply the usual Guidelines approach unless it considers that approach to be "inappropriate" based on the particular circumstances of the case.

[36] BH’s primary source of income is $1,037.00 per month from ODSP.

Application of Senos v. Karcz

[37] In Senos v. Karcz, 2014 ONCA 459 – a similar case in which an adult disabled child received $10,000.00 in annual ODSP benefits – the Ontario Court of Appeal set out the analysis to be applied in determining child support:

a. An adult disabled child’s receipt of ODSP benefits constitutes a material change in circumstances for purposes of a potential variation of child support.
b. While the receipt of provincial disability benefits can affect the quantum of child support payable, it does not necessarily eliminate entitlement to child support.
c. ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. But the entire burden of caring for adult children has not shifted to society.
d. The table amount under the Guidelines is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. Accordingly, the assumption of some responsibility by the state, and the disabled child’s receipt of income, renders the presumptive approach to table support under s. 3(1)(a) of the Guidelines inappropriate.
e. The child’s receipt of ODSP benefits requires the court to apply the discretionary approach under s. 3(2)(b) of the Guidelines for the determination of the payor parent’s child support, in order to achieve an equitable balance between the adult child, the parents and society.
f. The resulting s. 3(2)(b) analysis requires the court to consider the adult disabled child’s “condition, means, needs and other circumstances” -- in addition to the financial ability of the parents to contribute – in order to make an informed decision.
g. In addition to financial disclosure relating to each parent, the analysis will generally require a child support budget; a personal budget for the child; an itemized description of how the ODSP funds are being applied; and identification of the proposed use of any additional support being sought. Information about the child’s potential employability or ability to supplement income (within the boundaries permitted by ODSP) should also be provided.
h. There is a real 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. For example, if the child’s ODSP payment includes a budgetary item for board and lodging, it is reasonable for the child to contribute that sum to the residential parent – which then eliminates those budget items from the support analysis.
i. There are no automatic formulas. There is no presumption of a dollar-for-dollar reduction. In some cases, there may be no need for parental support in addition to ODSP funding. But ODSP recipients may have extra expenses not contemplated by the table amount. Accordingly in some cases the table amount may still prevail, even after taking into account receipt of ODSP.
j. Child support for adult children is based upon dependency, not age. There are no automatic cut-off dates.

[38] I have done my best – based on imperfect evidence – to consider all of the factors including BH’s personal situation, his finances, his available opportunities and his budget.

[39] The reality is that both of these parents are in difficult financial circumstances. They are both doing their best to assist their son.

Disposition

[40] I find that the father’s proposal of $200.00 per month is reasonable.

[41] Finally, there is the issue of the father’s overpayment of $8,458.00.

a. Both parties explored the options of repayment at either $50.00 or $100.00 per month.
b. Either way, it’s going to take a long time.
c. I find that any repayment at a rate greater than $50.00 per month would jeopardize the child’s immediate and ongoing needs.

[42] The May 29, 2012 final order of Justice Murray is changed to provide the following:

a. Commencing February 1, 2025 the father shall pay to the mother support for the adult child BH in the sum of $200.00 per month, based upon the father’s imputed income of $30,000.00.
b. The father’s overpayment of child support (as of January 31, 2025) in the sum of $8,458.00 shall be repaid by the mother at the rate of $50.00 per month, to be deducted from the ongoing monthly support, until repaid. Repayment commences February 1, 2025.
c. The parties shall provide one another with copies of their respective income tax returns and notices of assessment annually by June 30, commencing June 30, 2025.
d. The father shall also provide annually by June 30 a written summary of all income and expenses from self-employment or any business activity he is engaged in.
e. The mother shall also provide annually by June 30 written corroboration of BH’s income from all sources, and a summary of his expenses.
f. The terms herein shall be subject to variation in the event of a material change in circumstances. This order is made without any presumption as to any retirement date.

[43] If any issues other than costs remain to be addressed, the parties may arrange a date for this matter to be spoken to, by Zoom.

[44] If only costs remain in issue, written submissions no more than two pages long (hyperlinked re case law) plus any offers, are to be served and filed on the following timelines:

a. Father’s written submissions by March 31, 2025.
b. Mother’s written submissions by April 11, 2025.
c. Father’s reply (if any) by April 18, 2025.
d. If father didn’t initially request costs, Mother’s reply (if any) by April 25, 2025.

Alex Pazaratz
Date: March 10, 2025