Reasons for Decision

Court File No.: FS-17-21714-01
Date: 2025-06-13
Ontario Superior Court of Justice

Between:
James Longmire, Applicant
– and –
Dyan Longmire, Respondent

Heard: In Writing at Toronto

Appearances:
Applicant: Self-represented
Respondent: Self-represented

Judge: Natasha Mathen

Introduction

[1] This is an interjurisdictional support variation application brought under s. 18.1(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) by the applicant husband, James, who lives in Nova Scotia. James seeks to terminate an Ontario child support order and to rescind arrears. The respondent wife, Dyan, lives in Ontario.

The Order Sought to be Varied

[2] Originally, spousal support was set by a final order issued in the Supreme Court of Nova Scotia on December 4, 2011. Paragraph 6 provided that the applicant would pay the respondent $800 per month for the two children of the marriage – T.S. born May 13, 2000, and K.S. born March 2, 2004. The amount was based on James’ projected annual income of $56,200. Support would continue “until such time as the children are no longer dependent children of the marriage within the meaning of the Divorce Act, 1985.”

[3] On July 27, 2018, Justice Kitely of the Superior Court of Justice of Ontario varied the 2011 final order. Both parties appeared but neither was represented by counsel. The parties consented to the following:

a. As of June 30, 2018, the arrears owing from James to Dyan were set to $22,158.64.
b. James would pay ongoing child support in the amount of $616 per month based on a 2018 annual income of $72,000 “until such time as K.S. is no longer a dependent child of the marriage”.
c. James would pay a further $250 per month on account of the arrears.
d. Given that the children lived in Ontario and James lived in Nova Scotia, James would contribute to section 7 expenses, but child support would not be decreased “due to the increase in parenting time costs”.

[4] The Notice of Hearing for this decision is dated September 9, 2024. A certificate attesting to service of the Notice on Dyan is dated December 31, 2024.

Facts

[5] The parties were divorced on December 6, 2011. They are parents to two children.

[6] James swore a 2-page affidavit on April 4, 2023, in which he deposed that K.S. began living with him full-time in Digby, Nova Scotia on January 1, 2019. As she was nearly 15 years old, he did not feel he could force her to return to Dyan. In April 2019, K.S. refused to get on the plane after he bought her a ticket to Toronto.

[7] The Supreme Court of Nova Scotia issued an order on May 10, 2019, which found that:

a. K.S. at the time was habitually a resident of Ontario;
b. The Supreme Court of Nova Scotia granted primary care of K.S. to Dyan on December 6, 2011, and “no variation of the primary care granted under this Order has been issued by any court from that date”;
c. K.S. was to be immediately returned to Dyan;
d. The file was to be transferred to the Superior Court of Justice of Ontario.

[8] Despite the above order, K.S. did not return to Ontario. James deposes that he continued to pay child support for K.S. until June 1, 2021. By that time, she had been living with him for almost 30 months. James deposes that he paid $19,561.55 in support to Dyan while K.S. was solely in his care, i.e., from January 1, 2019.

[9] K.S. swore an affidavit on April 4, 2023, when she was nineteen years old. K.S. confirmed that she lived with James from January 1, 2019. K.S. said she was enrolled at a community college in Yarmouth, Nova Scotia and living independently.

[10] The Maintenance Enforcement Program of Nova Scotia informed James by letter that it would stop enforcing maintenance for K.S. effective March 2, 2022, because a Child Status Report was not provided. The letter included the following:

The decision to end enforcement of ongoing child support does not necessarily mean entitlement to support for the child has ended. Entitlement to child support is a legal matter for which you may want to seek legal advice or ask a court to decide.

[11] As of January 23, 2023, the Maintenance Enforcement Program set all arrears at $6,160.

[12] In Dyan’s affidavit, dated February 18, 2025, she details James’ and her family history and a long list of financial maltreatment of her at James’ hands. Much of the information in the affidavit predates the couple’s separation and divorce – and is thus irrelevant to the issues before this court.

[13] Dyan deposes that K.S. had a child in 2024.

[14] Dyan does not make a crossclaim, but says “I need a reprieve, a refund and the insanity to stop.”

Issues to be Decided

[15] The issues for me to decide are:

a. Is K.S. still a dependent child of the marriage?
b. Should there be a rescission of James’ child support arrears?

Legal Framework

[16] An order for spousal support is subject to variation, rescission, or suspension pursuant to s. 17 of the Divorce Act. Subsection 17(4) of the Divorce Act permits variation of an existing order for child support upon proof that a change of circumstances has occurred.

[17] The approach to s. 17 is found in Willick v. Willick, [1994] 3 S.C.R. 670. The party seeking a variation must establish a material change of circumstances. A “material change” signifies a change that, if known at the time of the initial order, would likely have resulted in different terms. It is presumed that the existing order is correct. A judge has no jurisdiction to vary the order because they regard it as inappropriate: Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 8th ed (Toronto: Irwin Law, 2020), p. 309.

[18] The Supreme Court of Canada describes “three general types of variation” in Colucci v. Colucci, 2021 SCC 24, para. 30:

1. The recipient seeks to retroactively increase support because of a past change in circumstances, with the change usually being an increase in the payor’s income. In such circumstances, the existing order or agreement underestimates the payor’s income.
2. The payor seeks a retroactive decrease in support because of a past change in circumstances. The paradigmatic change is a drop in income that impacts the payor’s ability to make payments as they come due. In such circumstances, the existing order or agreement overestimates the payor’s income. [“retro down”]
3. The payor seeks to rescind or suspend arrears because of current and future inability to pay rather than a past change in circumstances. [“rescission of arrears”]

[19] At para. 8, the Supreme Court says the following about rescission:

In [such] cases, the court order or agreement reflects the correct amount of child support owing, but the payor has failed to keep up with payments as they fell due. The payor subsequently asks the court to forgive all or part of the accrued debt because of present financial hardship. When the arrears reflect the amount that ought to have been paid, the payor cannot rely on a past decrease in income to explain why there are arrears. In these cases, there is a presumption against rescinding any part of the arrears, as courts have a range of other remedial options. Rescission sits at the far end of the range because it wipes out a legally recognized debt. As such, rescission is only appropriate in exceptional circumstances.

Analysis

Issue One: Is K.S. still a dependent child of the marriage?

[20] James and K.S. both depose that K.S. has been living independently. Neither gives a precise date on which this occurred. K.S.’s affidavit was sworn on April 19, 2023. At the time, she says, she was engaged in post-secondary education.

[21] Dyan deposes that K.S. had a child in 2024.

[22] Based on the evidence, I find that K.S. ceased to be a dependent child of the marriage as of April 19, 2023. Consistent with the terms of Justice Kitely’s 2018 order, James’ child support obligations shall be terminated as of that date.

Issue Two: Should there be a rescission of James’ child support arrears?

[23] James, who is self-represented, did not state a legal argument. However, based on his affidavit, I take him to be making a combination of claims. First, he argues that a material change occurred on January 1, 2019, when K.S. decided to live with him instead of Dyan. Second, because of the support he nevertheless continued to pay between January 1, 2019, and May 25, 2021, he argues for a rescission of his existing child support arrears.

[24] Therefore, the questions to be answered are:

a. Was there a material change in circumstances?
b. If the answer to (a) is yes, how should the 2018 order be varied?
c. Is James entitled to have his arrears rescinded?

Has there been a material change in circumstances?

[25] James claims a material change in circumstances occurred as of January 1, 2019, because K.S. was living primarily with him. This assertion is supported by K.S.’ affidavit.

[26] However, in May 2019, the Nova Scotia Supreme Court found that K.S. was in Nova Scotia in breach of the 2011 court order granting primary parenting to Dyan. The court ordered that K.S. be returned to Dyan’s care and that any further proceedings be dealt with in Ontario.

[27] K.S. was not returned to Ontario. James deposes that, since K.S. refused to return, he had no choice but to care for her. K.S.’s affidavit confirms that she refused to return to Ontario.

[28] I appreciate that K.S. was living in Nova Scotia and not in Ontario and that, in James’ eyes, the circumstances had changed.

[29] However, the matter was before the Nova Scotia Supreme Court in May 2019. That court found that K.S. was a habitual resident of Ontario and should have been returned there. The court also transferred jurisdiction over the matter and all future proceedings to Ontario.

[30] James could have started proceedings in Ontario to formalize his parenting arrangement and vary the 2018 order. He could have sought child support from Dyan. He did not. Instead, he now seeks to retroactively vary the 2018 order.

[31] James continued to pay child support until May 25, 2021. At that point, he deposes, he stopped making any payments “due to the child’s primary residence being with him.”

[32] James’ position is confusing. He knew that the Nova Scotia Supreme Court found that K.S. was a resident of Ontario in May 2019. There is no evidence he sought to appeal that order. He continued to pay child support for thirty months after what he claims, and what he perceived at the time, was a material change in circumstances.

[33] In May 2021, James engaged in self-help by ceasing to comply with the terms of Justice Kitely’s 2018 order.

[34] James claims that the material change occurred as of January 1, 2019. His position cannot be reconciled with the Nova Scotia order that K.S. was a habitual resident of Ontario in May 2019.

[35] There is some evidence that K.S.’s residence did change after May 1, 2019. However, without more evidence, it is impossible to determine how that change would have affected the original order. James’ position rests on the assumption that he would not have paid any child support to Dyan. I find there is insufficient evidence to draw that conclusion.

[36] Nevertheless, for the purpose of my analysis, I will assume that there was a material change in circumstance as of January 1, 2020 – one year after James and K.S. depose that she started living with him. I will further assume that, had K.S. been living primarily with James and not Dyan in 2018, it is likely that the terms of the Kitely Order would have been different.

If the answer to a. is yes, how should the order be varied?

[37] I have assumed that as of January 1, 2020, there was a material change in circumstance because K.S. was residing primarily with James not Dyan.

[38] James does not seek retroactive child support from Dyan. There is no evidence before the court to determine what child support might have been ordered.

[39] Nevertheless, for the purposes of the present analysis and given the nature of the material change, I am prepared to assume further that the 2018 order would not have required James to pay table child support to Dyan.

Is James entitled to rescission of arrears?

[40] As I noted, James does not seek retroactive child support from Dyan. Instead, he seeks an order rescinding his current arrears of $6,160. He does not seek the rescission because of inability to pay (Colucci), but as a remedy for his alleged overpayment of child support to Dyan after K.S. came to live with him on January 1, 2019.

[41] James’ request does not fall within the framework developed in Colucci. That framework addresses rescission based on current inability to pay. It says nothing about reducing arrears because of a separate support issue, such as overpayment.

[42] The Supreme Court’s analysis of rescission is nevertheless applicable in the following respects:

a. Child support arrears represent a debt by the payor.
b. The debt must be repaid.
c. Rescinding the arrears amounts to forgiving the debt, and therefore is reserved for exceptional cases.
d. Courts should be mindful of, and apply, alternatives to rescission.

[43] Adapting that framework to the current case, I find that James is improperly conflating his argument regarding ongoing child support with his argument over his child support arrears. If James believes that he has overpaid child support for K.S., he can initiate a proceeding to seek repayment from Dyan. There is nothing in the record to support the idea that James can obtain a remedy – rescission – developed to address an entirely separate situation.

[44] The record before the court does not contain sufficient evidence, such as proof of current hardship, for James’ request for rescission of arrears. It was James’s burden to establish the appropriateness of rescission on a balance of probabilities. He failed to do so. James’ request is therefore dismissed.

Order

[45] In conclusion, I make the following order:

a. Pursuant to the Divorce Act, 1985, as of April 19, 2023, the child K.S. born March 2, 2004, ceased to be a dependent child of the marriage between the Applicant, James Dennison Longmire, and the Respondent, Dyan Longmire. The Applicant’s child support obligation to K.S. is thereby terminated.
b. The Applicant’s claim for rescission of child support arrears is dismissed.

Natasha Mathen
Released: June 13, 2025