Reasons for Judgment
Court File No.: FC-08-FO000160-0003
Date: 2025-01-28
Ontario Superior Court of Justice, Family Court
Between:
Katelyn Jean Ruth Olthof, Applicant
– and –
Ryan Christopher Gagnon, Respondent
Appearances:
K. Morris, for the Applicant
R. MacIntosh, for the Respondent
Heard: January 20–23, 2025
Justice: R. B. Reid
Introduction
[1] The applicant made a motion to change the final order of Justice W. B. Stead dated June 19, 2009 and Justice K. A. Sherwood dated June 25, 2012. The motion was dated July 13, 2023.
[2] In the motion, the applicant seeks an order retroactively adjusting child support and ordering payment of arrears, as well as an order for ongoing child support. In addition, she seeks adjustment to the language concerning payment of section 7 expenses and as to healthcare and life insurance coverage.
[3] Both parties acknowledge that there has been a material change in circumstance since the 2012 support order by virtue of the respondent’s increases in annual earned income.
[4] The respondent’s rate of income since the support order was made is also conceded. The amount of support to be payable annually is acknowledged to be pursuant to the Child Support Guidelines.
[5] It is conceded that the respondent will maintain the child on his drug, health and dental care benefits through his employment as long as the plan permits him to do so.
[6] The issues for decision are:
a. From what date should support be adjusted?
b. How are any arrears created by the support adjustment to be paid?
c. For how long is child support to be paid?
d. Is any change needed in the order as regards s. 7 expenses?
e. Is any change needed in the order as regards the child’s entitlement to life insurance benefits?
Background
The Parties’ Circumstances
[7] The parties are the parents of ELPS. She was born October 20, 2002, and is currently 22 years of age. The parties were never married and separated shortly before ELPS was born, after a brief relationship.
[8] The applicant married her current husband in October 2008. He is employed at the Legislative Assembly of Ontario and earns approximately $95,000 annually. They have two children of their union.
[9] The applicant operates her own business as a registered massage therapist. Her self-employment income for 2024 after expenses was about $11,000. Between 2017 and 2021, her annual income including the subleasing of workspace has been between approximately $24,000 and $40,000. She is presently also engaged in a course of study for a Bachelor of Health Sciences degree.
[10] The applicant and her husband share a house in Delhi, Ontario with her grandmother, mother and stepfather. The house is owned jointly between her husband and her grandmother. Common expenses are divided, with the applicant and her husband taking responsibility for one third.
[11] The respondent is a member of the Hamilton Police Service. He earned approximately $120,500 in 2023. His spouse, to whom he was married in 2008, is also an officer with the Hamilton Police Service and earns about $115,000 per year. They own a house in Hamilton jointly between them and have two children of their union.
The Child’s Education History and Plans
[12] After completing high school, ELPS enrolled in a two-year program at Georgian College studying nursing, with the expectation of two further years at York University to complete a Bachelor of Nursing degree.
[13] ELPS has worked as a lifeguard and swimming instructor in the summertime, while continuing to live at home with the applicant.
[14] In September 2021, ELPS began her nursing program at Georgian College in Barrie, Ontario. She lived in residence until November 2021 when she suffered a serious knee injury which required surgery.
[15] As a result of the injury, ELPS had to withdraw from the program because she was unable to participate in the practical portion of it. She returned to live in the applicant’s home in Delhi. There was no academic penalty from Georgian College because the withdrawal was for medical reasons.
[16] ELPS enrolled in a pre-health science program through Mohawk College for the semesters beginning January 2022. She completed that program in August 2022 and received a certificate. During her tenure at Mohawk College, ELPS continued to live with the applicant.
[17] In September 2022, ELPS began a two-year social service worker diploma program at Fanshawe College in London, Ontario. She completed that program in April 2024 and received a diploma. She commuted to Fanshawe from her home.
[18] In September 2024, by virtue of her diploma from Fanshawe, ELPS was permitted to enter year two of a two-year social science program at Kings University College at the University of Western Ontario in London. She intends to apply for and hopefully will be admitted into a further two-year Bachelor of Social Work program (“BSW”) at Kings to commence in September 2025, for which the social science program is a prerequisite. Her plan is to graduate in spring 2027 with a BSW degree.
[19] Ultimately, ELPS would like to undertake graduate level study to attain a Master of Social Work degree (“MSW”).
Prior Litigation
[20] The parties were represented by counsel when, on consent, an order was made dated June 19, 2009 providing that they have shared custody of ELPS with primary residence to the applicant. The respondent was to pay child support pursuant to the Child Support Guidelines. His 2008 income was $47,000.
[21] Pursuant to the order, each of the parties was to pay 50 percent of any special or extraordinary expenses incurred by the applicant for the child and the applicant was to consult with the respondent prior to incurring any expense to which she expected contribution. She was to provide receipts of any expenses incurred and the respondent was to reimburse her within 21 days of receipt.
[22] Also pursuant to the order, the child was to receive dental and health care benefits available through the respondent’s employment and he was to irrevocably designate the child as the sole beneficiary of his policy of life insurance through his employment for so long as he is obligated to pay child support. The order provided the amount of the designated benefit may be renegotiated from time to time, but with the child to be the sole beneficiary until further order or agreement.
[23] The order of June 25, 2012 occurred as a result of a consent motion to change as to child support. Under that order, the 2009 order was amended as to child support commencing July 1, 2012 with support payable in the monthly amount of $790.19 based on the respondent’s 2011 income of $88,665. That order as to child support remains in effect to date. The respondent is not in arrears.
[24] A further order was made dated May 1, 2013 by Justice Sherwood, primarily relating to parenting time. The applicant was represented by counsel and the respondent was not represented. The order included a provision that the respondent will “annually provide proof that the [life] insurance policy remains in effect and that he has not transferred it, borrowed against it or pledged it as security”, and that he would immediately provide the applicant with the new policy benefits coverage information, including but not limited to the policy number, member number and a copy of the current benefits booklet.
Retroactivity Date
[25] Support claimed after the motion was issued July 13, 2023 is prospective, not retroactive support. There is no dispute that support should be paid at the level established by the Child Support Guidelines from the issue date of the motion to the present.
[26] In Colucci v. Colucci, 2021 SCC 24, para. 114, the Supreme Court of Canada set out the framework that should be applied for retroactive applications to increase support:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
[27] In this case, the income earned by the respondent from 2015 to 2023 is admitted.
[28] The applicant requests a retroactive adjustment in child support from 2015, while the respondent submits that the adjustment should occur as of March 2021, or at earliest from three years prior to the motion, namely July 2020.
[29] There is a dispute in the evidence about the date on which the respondent provided information about his income. There is no dispute that the respondent did not comply with the order of June 25, 2012, which provides that he must make annual income disclosure by July 25 each year, until the information was provided in 2021.
[30] According to the Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37, para. 121, a retroactive support adjustment can be triggered by giving “effective notice”, which is:
[A]ny indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.
[31] The applicant asked in an email of September 24, 2015 (Exhibit 1) for a copy of the respondent’s “2013 and 2014 income tax return and/or T4.” Her evidence was that there was no response by the respondent. His evidence was that he provided the information in hard copy when he attended to pick up ELPS shortly after the request was received. In either event, there was no follow-up by the applicant. It is reasonable to assume that the applicant chose not to proceed to claim a support adjustment based on those two years of the respondent’s income and no claim was advanced at this trial for retroactive support during those years.
[32] The applicant asked again for income disclosure, this time for details of the respondent’s 2015 and 2016 income, by email dated August 8, 2017 (Exhibit 2). The applicant testified that details were not provided until March 2021. The respondent’s evidence was that he provided it promptly on request. No other correspondence on the subject of income disclosure or support adjustment was exchanged until 2021.
[33] The applicant’s email request dated March 19, 2021 (Exhibit 3) stated in part:
I know that every year around June 1st, I was supposed to be provided with either a T4 or a Notice of Assessment for you so that we could adjust the support payments according to the table amount. I have not received one of these in several years. I know that from 2015 to 2019 (and I am assuming your 2020 will be similar) your income was quite a bit more then [sic] it was listed on the court order.
The following is what I have come across:
2015 - $115,485.32
2016 - $112,768.52
2017 – $115,159.67
2018 – $107,484.83
2019 – $113,248.86I know we are both really busy and I believe we can figure this out, without having to bring any sort of legal team into it. If you would email me copies of the above Notices of Assessments from the above mentioned plus your 2020 T4 or Notice of Assessment that would be greatly appreciated. I will work on the paperwork to update the information from 2015 to December 31, 2020. If you could send me the information before March 31st 2021, that would be great!
[34] The applicant testified that she found the income information referenced in her email through accessing the “Sunshine List” which shows salaries of public employees in Ontario over $100,000. Her email does not suggest that she had knowledge of the requested information in 2017, and as such is not consistent with the respondent’s evidence that he had provided that information promptly in 2017 when asked.
[35] In response, the respondent gave income information by email dated March 20, 2021 (Exhibit 38). In it, the respondent states that the last T4 he provided was for 2015.
[36] It makes sense that the applicant would not have sent the March 19, 2021 email if she already had the 2015- and 2016-income information in hand. It is unlikely that she had simply forgotten that she received it. The relationship between the parties had become increasingly strained concerning ELPS after 2015, such that there was virtually no direct contact between them. Other than his recollection of having provided the income information directly to the applicant in hard copy on one of the rare occasions that they were face to face when ELPS was picked up or dropped off, there is no proof that he did so.
[37] The requested information in March 2021 was obviously for the purpose of support adjustment, and as such, it constitutes notice on that issue.
[38] The applicant’s entitlement to an adjustment for the period from 2015 to 2021 is contentious. As with the situation regarding the respondent’s 2013 and 2014 income, no action was taken by the applicant after her email of August 8, 2017 and no direct demand was made: there was only the implicit intention to make a claim which could follow disclosure of the requested information.
[39] The applicant explains her failure to pursue the matter more assiduously during those years by relating that ELPS was having severe mental health issues, including multiple hospitalizations for attempted suicide or suicidal ideation. ELPS was engaged in extensive and repeated sessions of treatment and counselling and needed constant supervision by the applicant and her family. The respondent was not aware of or involved in ELPS’s care or treatment (with the exception of two occasions of hospital visits) based on ELPS’s direction to the applicant that the respondent not be involved.
[40] In D.B.S. v. S.R.G., 2006 SCC 37, para. 99, the court outlined factors that a court should take into account in dealing with retroactive applications, none of which are decisive or take priority and all of which should be considered in a global analysis. They include:
a. Whether the recipient spouse has provided a reasonable excuse for the delay in applying for support;
b. The conduct of the payor parent;
c. The circumstances of the child;
d. The hardship that the retroactive award may entail.
[41] In this case, the applicant has provided an explanation for her delay in seeking support. It is understandable that she was preoccupied with care for ELPS, although it would not have been onerous to send email correspondence about support to the respondent at some point between 2017 and 2021, especially considering that she did contact the respondent with some frequency concerning her claims for reimbursement of s. 7 expenses including claims for reimbursement of counselling costs which had to be submitted by the respondent to his insurer.
[42] As I have noted, the respondent did not provide annual statements of his income as required by the court order. He paid his portion of s. 7 expenses when asked, albeit not always as quickly as the order required. His lack of involvement with the applicant and ELPS was not by his choice, but was imposed by ELPS.
[43] ELPS would undoubtedly have benefitted from increased support payments, although to the applicant’s credit, ELPS appears to have been well cared for and not deprived of amenities.
[44] The respondent and his spouse have lived off their combined income and incurred normal debts for a home mortgage on a house that they own jointly, a pop-up vacation trailer, and vehicles. They have taken regular vacations. There is not a storehouse of extra cash with which to make a retroactive payment if ordered, but neither is there any apparent undue hardship which will occur as a result of an order of retroactivity.
[45] There was no demonstrated concern on the part of the applicant for the cost of litigation, or fear of reprisal.
[46] In exercising the court’s discretion as to the period of retroactivity, and considering the D.B.S. factors, there needs to be an acknowledgement that the payor spouse is obligated to provide income information and make payments as determined by the Child Support Guidelines. Failing to do so has the effect of privileging the payor’s interests over that of the payee, which has been characterized by the court in Colucci as blameworthy conduct. That having been said, it is still incumbent on the payee spouse to take some corresponding responsibility to make a claim promptly.
[47] In this case, I consider that fairness can be achieved by considering the clear indication of a support claim on March 19, 2021 to be the date of formal notice, and applying the presumptive three-year rule to that date, such that support will be adjusted retroactively from April 1, 2018. Alternatively, I come to the same conclusion even if the date of March 2021 was effective notice rather than formal notice, exercising my discretion to depart from an otherwise presumptive date where the result otherwise would be unfair in the particular circumstances.
[48] Retroactive child support will therefore be established based on applying the Guidelines to the respondent’s income set out in the statement of agreed facts (Exhibit 61), with 2023 and 2024 income as per the January 2, 2025 financial statement. Those amounts are as follows:
2018: $108,476
2019: $113,784
2020: $108,267
2021: $106,388
2022: $121,817
2023: $120,552
2024: $120,552
[49] Credit will be given for payments as per the June 25, 2012 order of $790.19 per month. Prejudgment interest on the arrears will be applied at the rate of 4.8 percent per year on the accumulating arrears from April 1, 2018 to date. Post-judgment interest will apply to the arrears from the date of this decision at the rate of 5 percent per annum.
[50] The respondent sought a temporary suspension of his support obligation for the two-and one-half months ELPS attended Georgian College. She was not living at home, and he was paying towards the post-secondary education expenses. However, the applicant contributed to the costs of setting up ELPS in her residence and some of the food costs in addition to maintaining the home to which ELPS returned after her injury. In those circumstances, fairness does not require the adjustment sought.
[51] Further, the respondent sought an adjustment to the s. 7 payments made, in that he paid a full share of the costs for ELPS’s fall term at Georgian College as to residence fees and tuition. The evidence was that the applicant paid all of the tuition costs that ELPS incurred during her tenure at Mohawk College in 2022. On balance, the sharing of expenses was fair and does not require an adjustment.
[52] A support deduction order will issue.
Duration of Child Support
[53] As is indicated above, ELPS has been in continuous attendance at post-secondary institutions since leaving high school, except for a short gap from November 2021 following a serious knee injury. Her attendance has continued notwithstanding the mental health issues with which she has had to contend for many years. She has maintained a part-time job and pays for her own transportation expenses, while living at home with the applicant and commuting to college and university. She has been in receipt of scholarship income and has accessed OSAP student loans.
[54] Her initial plan was to complete a four-year degree program in nursing at the combination of Georgian College (two years) and York University (two years). The injury caused a change in plans when she could not manage the practical requirements of the program.
[55] The initial alternative was to maintain school attendance at Mohawk College in a pre-health sciences program followed by a return to Georgian College. Instead, she made a change to a social service worker diploma program at Fanshawe College (two years) and as a result received one year advanced standing at King’s University College where she entered year two of the social science program. She is scheduled to complete that program in spring of this year. Her hope is that she will be accepted into the related two-year program toward a BSW degree at Kings.
[56] In effect, the four-year nursing degree program has been replaced with a five-year social work degree program, combined with the “loss” of a year due to the injury and follow-up Mohawk courses. Instead of graduating in spring 2025 as originally planned, she expects to graduate in spring 2027.
[57] Although admission to the BSW program is not guaranteed, ELPS appears to have been an excellent student throughout her studies and has received and maintained scholarships. It is reasonable to presume that she will continue to succeed.
[58] This is not a situation where a child chooses to be a permanent student, taking course after course, in program after program. There was a singular change in direction, prompted by an injury. While as noted there has been a two-year increase in the total post-secondary education period, it is not an unreasonable extension in the circumstances.
[59] As such, the support obligation should continue through to the anticipated conclusion of the BSW degree program in just over two years time.
[60] Likewise, it is not reasonable to limit support to the end of the diploma program given ELPS’s apparent capabilities. Her career prospects will be enhanced by securing a BSW degree as opposed to relying on a diploma as an entry level social service worker. If she chooses to enter a master’s program towards an MSW degree to further her career objectives, her parents may continue to support her, but it will be without the requirement of a support order.
[61] The respondent has the financial capability to provide support to ELPS in securing her BSW degree.
[62] The applicant expressed concern that ELPS’s mental health situation has worsened recently, with the potential for her attendance at school to be interrupted. Hopefully, that eventuality will not occur. If it does, it follows that the respondent should not be required to pay either child support or s. 7 expenses (other than as to medical benefits available under his health care plan). Those support obligations will be suspended and will be reinstated upon ELPS returning to her program.
[63] Therefore, child support will continue for ELPS for as long as she remains enrolled in King’s University College in the social sciences program or BSW program, with child support to terminate upon ELPS’s completion of her BSW degree. If ELPS takes a break from her studies for a semester or more but with a plan to return to complete her courses, the applicant is to advise the respondent forthwith, in writing. Support will be suspended, to resume when ELPS returns to her studies. Despite any interruption in support, payment of any outstanding arrears will continue.
Payment of Arrears
[64] The Family Responsibility Office will calculate the amount of arrears owing pursuant to this order. A rough calculation shows approximate arrears including interest established will be in the range of $22,000.
[65] The respondent will need to pay those arrears to the applicant within a reasonable time, but in keeping with his ongoing support obligations as set out above.
[66] Therefore, there will be an order that the respondent pay to the applicant the sum of $250 monthly on the arrears commencing March 1, 2025. His financial ability to pay arrears will change once his support obligations to ELPS end. At that point, his payments on arrears will increase to $1,200 per month until fully paid.
Section 7 Expenses
[67] In the consent order of June 19, 2009, a 50-50 sharing of responsibility for s. 7 expenses was established. Given their respective incomes, that arrangement heavily favours the respondent. No request has been made for a change in that aspect of the existing orders.
[68] The respondent has complied with his obligations to support the post-secondary courses undertaken by ELPS as requested by the applicant to date.
[69] The June 2009 order provided that the applicant consult with the respondent prior to incurring any expense for which contribution was to be sought. She was to provide receipts to the respondent for expenses which were then to be reimbursed by the respondent within 21 days.
[70] The applicant seeks a removal of the requirement for consultation. I disagree. It is not reasonable for the respondent to be treated only as a banker for ELPS. He is entitled to be involved as a parent. Ideally there will be some concerted effort by both parties and with ELPS, who is an adult, to repair the relationship. In any event, the existing requirement for consultation will continue and will hopefully be a pathway for more parental involvement by the respondent.
[71] The applicant seeks an order that the responsibility for s. 7 expenses relating to ELPS’s post-secondary education be calculated after applying the contribution by ELPS to her expenses, to the extent that she is reasonably able to do so, including earned income, scholarships, bursaries, and OSAP loans.
[72] I agree that it is appropriate for ELPS to contribute as the applicant suggests and for the s. 7 expenses to be reduced accordingly.
[73] As a result, there will be a requirement that the applicant secure from ELPS a statement of her contributions annually to be provided to the respondent by September 30 each year for so long as support is payable, with the s. 7 expense total reduced accordingly, as a prerequisite to continuing s. 7 payments.
Life Insurance Benefits
[74] The June 19, 2009 order required that the respondent irrevocably designate ELPS as the sole beneficiary of his policy of life insurance through his employment for so long as he was obligated to pay child support. The order also provided that the amount of the designated benefit may be renegotiated from time to time, but that the child would be the sole beneficiary until further order or agreement.
[75] There has been no further order or agreement other than the requirement in the May 1, 2013 order that the respondent annually provide proof that the insurance policy remains in effect and that he has not borrowed against it, transferred it, or pledged it as security.
[76] Unilaterally, and contrary to the order, the respondent designated his spouse as 75 percent beneficiary and reduced the share of ELPS to 25 percent. The respondent seeks to have his change approved. There is no evidence of the face value of the policy. The respondent also proposes making ELPS the sole beneficiary of his accidental death and dismemberment policy. The applicant seeks an order requiring ELPS to be designated as the beneficiary of no less than a $100,000 share of the respondent’s life insurance policy.
[77] The purpose of life insurance pending the completion of support obligations is to ensure that the payee, and indirectly the child, receives funds equivalent to the payment of support and s. 7 expenses, notwithstanding the death of the payor.
[78] In this case, the support obligation is to end by about June 2027 when ELPS finishes her BSW degree. Insurance coverage in the amount of $75,000 will be sufficient to provide for an alternative source of funds if needed.
[79] Therefore, there will be an order that the respondent designate ELPS as the beneficiary of $75,000 (or of a percentage of the total coverage which would produce an equivalent payment) from the life insurance policy provided by his employer. Proof of the designation and the face value of the policy is to be provided to the applicant. There will be no order as to the AD&D policy.
Conclusion
[80] For the reasons set out above, there will be a change to the orders of Justice W. B. Stead dated June 19, 2009 and Justice K. A. Sherwood dated June 25, 2012 as follows:
a. Support for ELPS will continue for so long as she continues to live at home and remains enrolled at Kings University College in the social sciences program or the Bachelor of Social Work program, with child support to terminate upon ELPS’s completion of her BSW degree.
b. If ELPS takes a break from her studies for a semester or more but with a plan to return to complete her courses, the applicant is to advise the respondent forthwith, in writing. Support will be suspended, to resume when ELPS returns to her studies. Despite any interruption in support, payment of any outstanding arrears will continue.
c. The applicant will secure from ELPS a statement of her contributions to post-secondary expenses annually to be provided to the respondent by September 30 each year for so long as support is payable, with the s. 7 expense total reduced accordingly, as a prerequisite to the respondent continuing s. 7 payments.
d. Retroactive child support will be paid from April 1, 2018 based on applying the Guidelines to the respondent’s income as set out above, with credit to the respondent for support paid pursuant to the order of June 25, 2012.
e. Prejudgment interest on the arrears will be applied at the rate of 4.8 percent per year on the accumulating arrears from April 1, 2018 to the date of this decision.
f. Post-judgment interest will apply to the arrears from the date of this decision at the rate of 5 percent per annum.
g. Arrears of support will be paid at the rate of $250 per month commencing March 1, 2025 for as long as support is payable, and thereafter at the rate of $1,200 per month until fully paid.
h. A support deduction order will issue.
i. The respondent will designate ELPS as the beneficiary of $75,000 (or of a percentage of the total coverage which would produce an equivalent payment) from the life insurance policy provided by his employer. Proof of the designation and the face value of the policy is to be provided to the applicant.
j. On consent, the respondent will maintain ELPS on his drug, health and dental care benefits through his employment as long as the plan permits him to do so.
Costs
[81] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a Bill of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:
- The respondent is to serve his Bill of Costs and submissions by February 7, 2025;
- The applicant is to serve her Bill of Costs and submissions by February 14, 2025;
- The respondent is to serve his reply submissions, if any, by February 21, 2025;
- All submissions are to be filed with the court with a copy to St.Catharines.SCJJA@ontario.ca and uploaded to Case Center by February 24, 2025.
[82] If no submissions are received by the court by February 24, 2025, or any agreed extension, the matter of costs will be deemed to have been settled.
Released: January 28, 2025
Justice R. B. Reid