The mother brought an appeal from an Order which terminated child support for the two eldest children as well as the cost order that was made against her in the amount of $80,183.06.
The parties were married for 20 years and separated in 2014. The parties have three children together but only two were the subject of this appeal. In 2015, the parties entered into a Separation Agreement which was turned into a 2017 Consent Order. The Order required the father to pay $2,895.00 per month in child support for the three children. The Order also included a review clause which stipulated that the quantum of child support could be varied if there was a material change in circumstances.
The father brought a motion to change seeking to terminate child support for the two older children. On March 9, 2020, the motion judge terminated child support for the oldest child because she was over the age of majority and was not devoted to her university studies. With respect to the middle child, while she had reached the age of majority, she was enrolled in a full-time university program and as such, the motion judge found that the father should continue to pay child support. However, the mother was required to provide proof of the child’s enrollment within 45 days of the end of each academic term.
Sevens months following the release of the costs endorsement, the father brought a 14B Motion to settle the order and included a term terminating child support for the middle child. On May 11, 2021, the motion judge released an Endorsement approving the draft Order proposed by the father. There were no reasons provided by the motion judge as to why she made this order. The mother appealed.
The court began by acknowledging that a court should not overturn an order dealing with support unless the reasons disclose an error in principle, demonstrate a significant misapprehension of the evidence or result in an award that is clearly wrong.
The court agreed with the mother that the motion judge erred in her application of the test to be applied on a Motion to Change with respect to child support. Section 17(4) precludes a court from varying a child support order unless there has been a material change of circumstances since the support order was made and a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. In Gordon v Goertz, the SCC stated that a material change in circumstances includes: (a) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs; (b) the change must materially affect the child; and (c) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial Order.
The court found that the motion judge erred in principle because she started from the premise that there had been a material change because the eldest child had reached the age of majority and then required the mother to prove they could not withdraw from parental control. The child was already over the age of majority and attending university when the 2017 Order was made and as such, there was no material change. The court found that the motion judge further erred by placing the burden of proof on the mother to show that the child required continual child support. The court went on to say that the motion judge had conflated the test on an Application with that on an Motion to Change. Had this been an Application, the mother would have had the onus to prove that the child still required child support. However, since this was a Motion to Change, the court reversed the onus to the father to prove there had been a material change in circumstances. The court found that child support for the eldest child should not be terminated until the father could demonstrate there had been a material change.
The court also agreed with the mother’s position that the motion judge erred in terminating child support for the middle child as the order she approved was inconsistent with her reasons. In her original decision, the motion judge found that child support for the middle child should continue. The motion judge also rejected the father’s argument in his cost submissions to terminate child support for this child. However, her costs Endorsement directed that the “costs award be taken out as drafted in the ‘order’ regarding the trial results as prepared by the father’s counsel”.
The court found that it was an error for the motion judge to approve the order proposed by the father which included a provision that child support be terminated for this child. In particular, the court took issue with the fact that no reasons were provided by the motion judge. The court also found that the materials presented by the father did not support the unequivocal finding that the child was not enrolled in full-time education. Additionally, the court also believed that the motion judge had made the same error of misapplying the test to be used on a Motion to Change.
The Court allowed the mother’s appeal in finding that the motion judge erred in terminating child support. The court reinstated the support payments for the eldest child that were required until the 2017 Order and set aside the Order terminating child support for the middle child.
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