Superior Court of Justice

Court File Number: FS-11-3349-02
Address: 7755 Hurontario Street, Brampton ON L6W 4T6

Trial Endorsement

Date: March 19, 2025

Parties and Counsel

Applicant:
Suzanne Elizabeth Smith (as observer)
☒ Present
Email: suzanne_smith@live.ca
Counsel: ☐ Present
☐ Duty counsel

Respondent:
Milton Edwards
☒ Present
Counsel: Keethanjan Raveendran
☒ Present
☒ In person
Email: keeth.raveendran@horrafamilylaw.com
☐ Duty counsel

Presiding Judge: McGee

Overview

[1] This is Mr. Edwards’ Rule 15 Motion to Change the final Order of Justice Bloom dated April 30, 2015 (“the final Order”). His Motion to Change was served on April 25, 2023, and no Response to the Motion to Change (Form 15B) has ever been served or filed by Ms. Smith.

[2] The Trial was heard on March 12, 2025, on an uncontested basis.

[3] Ms. Smith has received several opportunities to participate in this proceeding which seeks to adjust the payment of table child support and the proportionate sharing of section 7 expenses for the parties’ three children, now ages 26, 20 and 15. She has declined to do so, despite prior conferencing opportunities and receiving leave to late file her materials on July 19, 2024, from Justice LeMay.

[4] Ms. Smith appeared in person today and audited the proceeding without rights of participation.

[5] In accordance with the Orders set out below, Mr. Edwards’ child support obligation is adjusted in accordance with the Federal Child Support Guidelines. Support Deduction Order to issue.

Terms of the Final Order To Be Varied and Deeming Provision

[6] The significant procedural background to this matter is set out in the endorsement of Justice Dennison dated January 25, 2025. It need not be repeated here, but to set out the relevant terms of the final Order and provide context for a deeming Order.

[7] The last judicial treatment of the children’s support is found in the Temporary Order of Justice Bielby dated September 13, 2011. Monthly child support is set at $1,844 which corresponds to the December 31, 2011, table amount for three children on income of $100,000. Mr. Edwards did not participate in the original proceeding and ultimately, the final Order of April 30, 2015, was made on Uncontested Trial without his participation.

[8] The April 30, 2015, Order granted Ms. Smith sole custody (now decision-making responsibility) for Nicollete born July 15, 1998, Mya born April 8, 2004, and Peter born May 25, 2009. Additional parenting terms addressed parenting time, passport application and the provision of information.

[9] Relevant to this Motion to Change, the final Order also provides for:

a. (para 4) the proportionate sharing of section 7 expenses and the educational expenses of the children at the rates of 74% for Mr. Edwards (based on annual income of $104,629) and 26% for Ms. Smith (based on annual income of $38,000).

b. (para 5) Monthly payment of $371.95 towards the current section 7 expenses of the children starting April 1, 2015.

c. (para 6) per verbatim
“Under section 7, the respondent shall be responsible for paying 74% and the Applicant shall be responsible for paying 26% of the balance of the children’s future post-secondary education expenses, including tuition, books, and transportation costs, after RESP payments are deducted. Any reasonable contribution by the children through part-time or summer employment or student loans are to be deducted before those percentages are applied and are not to exceed $6,000.”

d. (para 7) per verbatim
“The Applicant shall provide the respondent each school term with: proof of the children’s enrolment in university or college, transcripts, details of student loans is any, tuition, book and transportation expenses and income. She is to immediately notify him and the Family Responsibility Office if any child stops attending school.”

e. (para 8) per verbatim
“The parties shall exchange copies of their Notices of Income Tax Assessment every year by July 15, starting in 2015, pursuant to sections 21 and 25 of the [Federal] Child Support Guidelines.”

f. (para 9) per verbatim
“Fifty percent of the value of the Respondent’s Pension held with Bell Canada, shall be transferred to and vested in the Applicant, Suzanne Smith on account of outstanding equalization payment, mortgage and insurance payments, pursuant to the Order of Justice Beilby, dated September 13, 2011, outstanding child support arrears (including section 7 expense) and costs incurred in pursuit of child support and section 7expenses.” (emphasis added)

[10] The final Order did not confirm the ongoing, temporary child support of $1,844 ordered by Justice Beilby on September 13, 2011. I deem the payment of $1,844 as a term of the final Order of April 30, 2015, for the following reasons:

a. The final Order was obtained by Ms. Smith on Uncontested Trial, by way of a paper record with a draft Order attached. Any error in construction must be interpreted contra preferendum.

b. The April 30, 2015, Order was clearly drafted as a final Order. It addressed equalization, transfer of pension credits and costs on a final basis. There was no further litigation within the original proceeding.

c. The April 30, 2015, Support Deduction Order prepared by Ms. Smith listed the temporary amount of $1,844 as a final amount and has been enforced by the FRO as a final Order throughout.

Relevant History of Enforcement

[11] I have been provided with a FRO Statement of Appears for the period of January 11, 2012, to October 21, 2022. The Statement of Arrears informs me of the following. I have bolded the transactions relevant to my final Order within this Motion to Change:

a. As of May 1, 2015, Mr. Edwards had a FRO Case Balance (i.e. child support and section 7 balance under enforcement) of $16,134.62. This means that para 9 of the final Order (see above for the terms) was not enforced. Ms. Smith was vested with the whole of the realizable value in Mr. Edward’s pension (only 50% being available pursuant to the Pension Benefits Act) in exchange for et alia, outstanding child support arrears and section 7 expenses. The balance as of April 30, 2015, was therefore ordered to be zero.

b. Through voluntary payments, garnishments and diversions, Mr. Edwards paid on average $1,300 to $1,500 a month towards his court ordered table support and section 7 obligations.

c. On September 2, 2015, the amount of $330.34 for section 7 expenses was adjusted to $371.95 pursuant to the final Order. A further adjustment for $636 was made on January 14, 2021. I have no evidence of its purpose and in the absence of any evidence, will assume that it is correct.

d. On June 3, 2021, Mr. Edwards brought his balance owing to zero. On June 4, 2021, his account under enforcement was increased by $15,684.15 as a result of a direct, written submissions from Ms. Smith to the FRO for arrears arising from para 6 of the final Order.

e. As of October 21, 2022, the last date on which I have evidence of the amount under enforcement Mr. Edwards had $15,328 under enforcement and an ongoing monthly obligation of $2,215.95 ($1,844 + $371.95). At the same time, the children were 24, 18, and 13; Ms. Smith having breached her obligation to inform the FRO that Nicollette was finished school per para 7 of the final Order.

Statutory Basis for Variation

[12] The parties are former married spouses who separated on July 14, 2011, after four years of marriage. Section 17(1) of the Divorce Act provides that a court may make an Order varying, rescinding, or suspending, retroactively or prospectively, a support Order or any provision of one, on application by either or both former spouses. Because a final Order is deemed correct, any term for the variation, rescinding or suspension of a term cannot be effective in this proceeding prior to April 30, 2015.

[13] Section 17(4) provides that before the court makes a variation order in respect of a child support order, the court is to satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order in respect of that order.

[14] Section 17(6.1) confirms that when making a variation order in respect of a child support order, the court is to apply the applicable child support guidelines.

[15] Child support is the statutory and societal obligation to financially provide for one’s child(ren) who are able to withdraw from parental dependency up until they attain the later of (a) the age of majority (18) or (b) when they finish full-time education. There can be periods of suspension of child support when adult children come in and out of full-time education.

[16] A payor has an obligation to support his or her child(ren) in accordance with income pursuant to section 16 to 19 of the Federal Child Support Guidelines. The recipient has an obligation to refuse payment of child support to which she/he/they are not entitled. The refusal can take the form of informing the FRO that the enforcement must cease, returning a voluntary payment and/or agreeing to vary any enforceable term within a Court Order or a Domestic Contract.

[17] The consequences to a payor and to a recipient for failing to meet these obligations are significant. For the payor, the FRO can prevent the renewal of a driver’s license and passport, affect credit facility of the payor in default and ultimately, imprison. For the recipient, an overpayment will be a credit that must be offset before any future support moneys are enforced and/or actioned for private enforcement.

Analysis

[18] The timely and effective suspension, variation, and termination of child support within Canadian law is premised on honesty and good faith.

[19] Ms. Smith has breached that premise, and the terms of the final Order by failing to advise Mr. Edwards of when each child ceased full-time education, refusing to provide proof of enrolment in post-secondary education and never providing a budget for post-secondary education expenses. Specifically:

a. Ms. Smith has never provided Mr. Edwards with proof of enrollment, a post-secondary education budget, an accounting for the use of the RESP, the amount of an adult child’s earnings/contribution or OSAP finding.

b. Ms. Smith has refused Mr. Edwards’ efforts to obtain such information directly.

c. Ms. Smith has never informed Mr. Edwards of when the two older daughters ceased full-time education, but for contradictory messages through her prior counsel at earlier states in this litigation.

d. Ms. Smith has never provided the supporting documentation for the $15,684.15 in arrears submitted to the FRO on June 4, 2021. I have no evidence as to how the amount is calculated, whether it represents the whole of the costs or 74%, the net of tax cost of any tuition claimed, whether the RESP was used to fund the expense or whether it is after deduction of the adult child’s contribution.

e. Ms. Smith has never provided proof of ongoing section 7 expenses for which $371.95 is Mr. Edwards’ ongoing proportionate share pursuant to the April 30, 2015 Order.

[20] Mr. Edwards is a repair technician with Air Canada and a pastor, having lost his prior employment with Bell Canada. In 2016 he declared bankruptcy. He has a steady income that increases modestly in years in which he receives overtime. He currently lives with an adult daughter from another relationship. He is estranged from the three children whom he fathered with Ms. Smith.

[21] Because he is estranged from Nicollette, Mya and Peter, he has no information as to their status, activity costs or educational expenses. He testified that he was blocked as a contact at their High School, and he has been refused confirmation as to whether their daughters continue in full-time post-secondary education. The refusal has endured even in the face of his employer’s requirement that he provide written confirmation that the adult daughters are eligible for health, medical and dental benefits.

[22] Mr. Edwards is at an informational disadvantage with respect to their daughters’ eligibility for child support. It continues to be unknown to him whether Nicolette finished her full-time education in 2019 or 2020.

[23] Parties to litigation are subject to a general obligation to disclose all information that is relevant and material to the case, see Kinsella v. Mills, 2020 ONSC 4785. Relevant to this proceeding, a support recipient bears the onus to provide evidence of eligibility. No child support is payable in the absence of evidence that a child continues in full-time education after attaining the age of 18 or evidence that the adult child is unable to withdraw from parental control.

[24] Mr. Edwards testified that Ms. Smith has been or is employed as a qualified law clerk working in a family law firm. She has attended the scheduled court proceedings. Prior endorsements of this Court show that she has been advised that she bears the onus to prove that Nicollette and Mya are eligible for child support.

[25] Ms. Smith’s failure to do so results in two adverse inferences:
a) that she is not entitled to the arrears submitted to the FRO on June 4, 2021, and
b) that each adult child ceased to be eligible for table child support as of June 30th in the year that each would have finished High School.

[26] Counsel for Mr. Edwards does not seek the latter relief with respect to Nicollette. He has instructions to continue table support for Nicollette until January 31, 2020, the year in which she turned 22.

[27] I have no evidence supporting the continuation of the $371.95 in section 7 activity costs for the three children, or a breakdown of what 74% of expenses are being paid by Mr. Edwards. In the absence of any evidence, I will continue to accrue that amount until January 31, 2020, at which time Nicollette’s end of eligibility would terminate at least her portion of the section 7 activity expenses and require a recalculation as to ongoing entitlement, if any.

[28] The terms of the final Order, and Ms. Smith’s breach of the disclosure and information terms in the final Order, which she drafted and obtained on an uncontested basis; and her failure to provide evidence that supports any ongoing entitlement to child support or section 7 expenses within this Motion to Change is a sufficient evidentiary basis for my decision below.

Terms of Variation

[29] I have received Mr. Edwards’ Notices of Assessment for the years of 2016 to 2023 and his T4 for 2024. Using the incomes shown on the Notices and incorporating the bolded provisions above, final Orders on this Motion to Change shall issue as follows:

1. Arrears of table child support and section 7 expenses are fixed at zero as of April 30, 2015.
2. The accrued support arrears of $15,684.15 placed under enforcement with the FRO on June 4, 2021, is disallowed and the enforcement vacated.
3. Commencing January 1, 2016, until December 31, 2016, the final Order is varied to provide that table child support for three children is payable to Ms. Smith in the amount of $1,670 based on Mr. Edwards assessed 2016 income of $88,898.
4. Commencing January 1, 2017, until December 31, 2017, the final Order is varied to provide that table child support for three children is payable to Ms. Smith in the amount of $1,821 based on Mr. Edwards assessed 2017 income of $98,516.
5. Commencing January 1, 2018, until December 31, 2018, the final Order is varied to provide that table child support for three children is payable to Ms. Smith in the amount of $2,023 based on Mr. Edwards assessed 2018 income of $106,511. [1]
6. Commencing January 1, 2019, until December 31, 2019, the final Order is varied to provide that table child support for three children is payable to Ms. Smith in the amount of $1,891 based on Mr. Edwards assessed 2019 income of $98,109.
7. Child support for the month of January 2020 is varied to provide that Mr. Edwards shall pay table child support for three children to Ms. Smith in the amount of $2,039 based on Mr. Edwards assessed 2020 income of $107,573.
8. The payment of $371.95 in section 7 activity costs per the April 30, 2015, final Order is terminated as of January 31, 2020.
9. Commencing February 1, 2020, until December 31, 2020, the final Order is varied to provide that table child support for two children is payable to Ms. Smith in the amount of $1,564 based on Mr. Edwards assessed 2020 income of $107,573.
10. Commencing January 1, 2021, until December 31, 2021, the final Order is varied to provide that table child support for two children is payable to Ms. Smith in the amount of $1,548 based on Mr. Edwards assessed 2021 income of $106,227.
11. Commencing January 1, 2022, until June 30, 2022, [2] the final Order is varied to provide that table child support for two children is payable to Ms. Smith in the amount of $1,872 based on Mr. Edwards assessed 2022 income of $130,316.
12. Commencing July 1, 2022, until December 31, 2022, the final Order is varied to provide that table child support for one child is payable to Ms. Smith in the amount of $1,148 based on Mr. Edwards assessed 2022 income of $130,316.
13. Commencing January 1, 2023, until December 31, 2023, the final Order is varied to provide that table child support for one child is payable to Ms. Smith in the amount of $1,101 based on Mr. Edwards assessed 2023 income of $124,238.
14. Commencing January 1, 2024, the final Order is varied to provide that table child support for one child is payable to Ms. Smith in the amount of $1,012 based on Mr. Edwards assessed 2024 income of $112,864.
15. All child support payments made to date shall be a credit to this Order. An overpayment of child support shall be applied to ongoing payments of child support until extinguished.
16. Support Deduction Order to Issue.
17. Ms. Smith’s consent to the form and content of this Order is not required and for further clarity, is dismissed.
18. Support for Peter, who turns 16 this year may be varied as of December 31, 2024, after Mr. Edwards’ 2025 income is known. Mr. Edward shall email to Ms. Smith his 2024 Notice of Assessment and his 2025 T4 upon receipt with a Form 15C Consent to Motion to Change.
19. Mr. Edward shall email Ms. Smith with his 2025 Notice of Assessment and his 2026 T4 upon receipt with a Form 15C Consent to Motion to Change.
20. Mr. Edward shall email Ms. Smith with his 2026 Notice of Assessment and his 2027 T4 upon receipt with a Form 15C Consent to Motion to Change.
21. In the absence of proof of enrolment in full-time education, Peter’s child support shall end on June 30, 2027, when it would be anticipated that he would finish High School.

Costs

[30] Costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules. See: Mattina v. Mattina, 2018 ONCA 867.

[31] Mr. Edwards is entitled to an award of costs. He has been successful in varying the terms of the final Order. Ms. Smith has unreasonably refused to participate in a process that would have made certain that the parties’ three children received an updated and corrected amount of child support and section 7 expenses.

[32] The proceeding has also had a cost to the justice system. There have been court attendances and ultimately, findings have been required to be made over a ten-year period to adjust child support and section 7 expenses. In the ordinary course, eligibility and income information is exchanged between the parents, and adjustments are resolved. Consent variation Orders can be obtained “over the counter” by way of a Form 15C Consent.

[33] Mr. Edwards seeks his costs of this Motion to Change in the full recovery amount of $28,461.88 being fees and disbursements of $25,187 and HST thereon. A prior award of costs against Ms. Smith in the amount of $1,000 remains outstanding.

[34] In my view, a full recovery of fees is not available because Mr. Edwards has never served an Offer to Settle. Although there remains no statutory obligation to make an Offer to Settle, the Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. See: Beaver v. Hill, 2018 ONCA 840.

[35] This was not the rare case in which the result was “all or nothing,” such as when one side would win and one side would lose in a binary contest, as was the case in Kostyrko v. Kostyrko, 2020 ONSC 3537. Little weight can be given to Offers to Settle in such a case. Here, an Offer at an earlier stage might have served to narrow the issues, or at a minimum, to have alerted Ms. Smith to the risk of paying a full recovery of costs should she continue to unreasonably refuse to provide disclosure.

[36] Offers to Settle are one of the most powerful litigation tools available to parties within a disputed proceeding. They place the opposing party at risk should they fail to accept an Offer with terms that prove to be as good as, or better than those achieved at court, whether or not that party is participating in the determination of the issues.

[37] The updated Family Law Rules continue to prioritize Offers to Settle and the costs consequences to parties of failing to make an Offer or failing to accept an Offer with terms as good as, or better than the result. The prior provision found at Rule 18(14) is now embedded in the expanded Rule 24 at Rule 24(12) and it is to be considered at every step of a proceeding. None of the provisions in the former or the updated Rule 24, specifically Rules 24(3), 24(7), 24(8), 24(12) and 24(14) are limited in application to a defended proceeding.

[38] At the same time, Mr. Edwards is entitled to a substantial award of costs in this undefended trial. His materials were well organized, and his counsel’s hourly rate and time have been reasonably expended. Although I have left the task of recalculating child support to the FRO, I give effect to counsel’s time in recalculating the child support overpayment, which appears to be in the range of $36,000.

[39] In reviewing Mr. Edward’s Bill of Costs, the factors in Rule 24(14) of the Family Law Rules and recognizing that counsel will need to expend a further number of hours to draft the resulting Order and Support Deduction Order, I find that the fair, reasonable and proportionate amount of costs to be paid by the unsuccessful party is $22,600, being the rounded amount of $20,000 in fees and disbursements, plus HST of $2,600 for a total of $22,600.

[40] Costs fixed in the amount of $22,600 are payable in 30 days.

Restriction on Further Steps

Ms. Smith May Not Take Steps in This Proceeding or a Related Proceeding Until Costs Are Paid.

[41] Pursuant to Rule 1(8) of the Family Law Rules, Ms. Smith may not take steps in this proceeding or a related proceeding until she pays the costs of $1,000 previously adjudicated and the costs of $22,600 fixed in this proceeding.

McGee

[1] 2018 table support switches to the November 21, 2017 table amount from the December 31, 2011 amount.

[2] The month in which Mya would have finished High School.