



COURT OF APPEAL FOR ONTARIO

CITATION: Licata v. Shure, 2022 ONCA 270

DATE: 20220401

DOCKET: C68543

Feldman, Roberts and Favreau
    JJ.A.

BETWEEN

Alfonso Licata

Applicant (Respondent)

and

Julia Shure

Respondent (Appellant)

Theodore Nemetz, for the appellant

Kristen Normandin and Cara Senese, for
    the respondent

Heard: March 18, 2022 by video
    conference

On appeal from the order of Justice Susanne
    Boucher of the Superior Court of Justice, dated March 9, 2020, and signed May
    11, 2021.

Favreau J.A.:

[1]

The appellant mother, Julia Shure, appeals an
    order terminating child support for the two oldest children from her marriage
    to the respondent father, Alfonso Licata. She also seeks to appeal the costs
    order made against her in the amount of $80,183.06.

[2]

For the reasons below, I would allow the appeal.

BACKGROUND

[3]

The parties were married for twenty years and
    separated in 2014.

[4]

The parties have three children, including H.S.L.
    (born in 1998) and A.E.L. (born in 2000).

[5]

In 2015, the parties entered into a separation
    agreement, which formed the basis for a consent order dated March 10, 2017, signed
    by J. Wilson J. (the 2017 Order). The 2017 Order resolved the issues of
    spousal support, child support, special and extraordinary expenses, division of
    property, and parenting arrangements.

[6]

With respect to child support, the 2017 Order required
    the father to pay $2,895.00 per month to the mother for all three children. The
    order also provided a formula for the parties to share special and
    extraordinary expenses, which included post-secondary education and related
    expenses for the children and specified amounts for tutoring expenses for each
    child.

[7]

Additionally, the 2017 Order included the
    following term:

[T]he quantum of support set out in this Court
    Order may be varied if there is a material change in the circumstances of
    either party or the Children, which may include any of the following events:

(a)
Any of the Children residing away from home for the purposes of
    pursuing post-secondary education;

(b)
Any of the Children changing their residence(s);

(c)
A significant change in the quantum of the Childrens special or
    extraordinary expenses; or

(d)
A material change in the Applicant/Husbands income, being an
    increase or decrease in his annual income of 15% or more.

[8]

In 2019, the father brought a motion to change the
    2017 Order pursuant to s. 17 of the
Divorce Act
, R.S.C. 1985, c.
    3 (2nd Supp.). He sought termination of child support for H.S.L. and A.E.L.,
    and reimbursement for various payments. The mother responded to the motion to
    change seeking, among other orders, an order for increased spousal support.

[9]

In a decision dated March 9, 2020, the motion judge
    terminated child support for H.S.L. In doing so, she held that there was a
    material change in circumstances because H.S.L. had reached the age of majority.
    She then reviewed H.S.L.s record as a university student and determined that, given
    that H.S.L. had obtained very few credits in her program, she was not devoting
    herself to university studies and could instead work to support herself. The motion
    judge concluded that H.S.L. could therefore withdraw from parental control. On
    that basis, the motion judge terminated child support for H.S.L.

[10]

With respect to A.E.L., the motion judge found
    that, despite also having reached the age of majority, she was enrolled in a
    full-time university program and, accordingly, the father should continue to
    pay child support for her. However, as a condition of continuing child support,
    the motion judge directed the mother to provide proof of A.E.L.s full-time enrolment
    in post-secondary studies within 45 days of the end of each academic term.

[11]

The motion judge declined to order an increase
    in spousal support for the mother.

[12]

Following the release of the motion judges
    reasons, the parties were invited to make submissions on costs. As part of his submissions,
    the father provided some information that A.E.L. was not enrolled in full-time university
    studies, and therefore asked that child support for A.E.L. be terminated as
    well.

[13]

In a costs endorsement dated May 1, 2020, the motion
    judge awarded $80,183.06 in costs to the father. In doing so, she found that he
    was substantially successful in bringing his motion to change and in defending
    against the mothers response to the motion to change requesting increased
    spousal support. As well, the motion judge explained that the mothers conduct throughout
    the litigation justified awarding costs on a substantial indemnity basis.

[14]

Seven months following the release of the costs
    endorsement, the father filed a Form 14B notice of motion under rr. 14(10) and
    25(1) of the
Family Law Rules
, O. Reg. 114/99, for the purpose of settling
    the order. As part of the materials filed on the motion, the father again
    renewed his position that child support for A.E.L. should be terminated, and he
    provided a draft order to that effect.

[15]

On May 11, 2021, the motion judge released an
    endorsement approving the order as proposed by the father, which included a provision
    terminating child support for A.E.L. The motion judge did not provide reasons for
    doing so other than stating that she had reviewed the affidavit and email
    materials filed on the motion.

DISCUSSION

[16]

The mother challenges the termination of child
    support for H.S.L. and A.E.L., as well as the costs order.

[17]

It is acknowledged that on appeal from a decision
    dealing with a support order, the court should not overturn the order 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 is not to overturn a support order merely because it would have reached a
    different decision or balanced the factors differently:
Gray v. Rizzi
,
    2016 ONCA 152, 129 O.R. (3d) 201, at para. 18, referring to
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at paras. 11-12. However, as reviewed below, I
    have concluded that the motion judge made errors in principle in terminating
    child support for H.S.L. and A.E.L. Given that conclusion, I would also set
    aside the costs.

Issue 1: The termination of child support for
    H.S.L.

[18]

The mother argues that the motion judge erred in
    her articulation and application of the test on a motion to change. I agree.

[19]

Section 17(1)(a) of the
Divorce Act
gives
    a court of competent jurisdiction the power to vary a support order. Section
    17(4) precludes the court from varying a child support order unless there has
    been a change of circumstances since the initial support order or the last
    variation order was made. Section 14(b) of the
Federal Child Support Guidelines
,
    SOR/97-175, contemplates that 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. As reviewed above, the 2017 Order also
    contained a term allowing for the variation of support when there is a material
    change in circumstances.

[20]

In conducting an inquiry into whether there is a
    material change in circumstances, courts have required the party seeking the
    variation to demonstrate a material change of circumstances that was not
    contemplated by the parties at the time that the initial order was made and
    that, if such a change had been known, would likely have resulted in different
    terms:
L.M.P. v. L.S.
, 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32,
    citing
Willick v. Willick
, [1994] 3 S.C.R. 670, at p. 688.

[21]

The Supreme Court of Canada set out the test for
    determining whether there has been a material change of circumstances in
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27, at paras. 10-13. This court, in
N.L. v.
    R.R.M.
, 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that
    test as having three components:

1) a change in the condition, means, needs or
    circumstances of the child and/or or the ability of the parents to meet those
    needs;

2) the change must materially affect the
    child; and

3) the change was either not foreseen or could
    not have been reasonably contemplated by the judge who made the initial order.

[22]

In this case, the motion judge described her
    approach to deciding whether there had been a material change in circumstances
    as follows:

Because [A.E.L.] and [H.S.L.] have reached the
    age of majority, their ages would constitute a material change in circumstances
    justifying variation of the 2017 order, unless there is evidence that they are
    unable by reason of illness, disability or other cause, to withdraw from the
    charge of the parents.
Divorce Act s.2(1)(b)
;
s.17(4)
.
The
    person who seeks support to continue for a child over the age of majority bears
    the onus of establishing the need for continued support, but the court looks to
    the overall evidentiary record to determine the issue.

[23]

On this basis, the motion judge started from the
    premise that there had been a material change in circumstances because H.S.L. had
    reached the age of majority. She then required the mother to demonstrate that H.S.L.
    was not capable of withdrawing from parental control. This was an error in
    principle. H.S.L. was already over the age of majority when the 2017 Order was
    made, at which time she was also already attending university. There was no
    material change in circumstances from the time of the 2017 Order.

[24]

Notably, the 2017 Order specifically
    contemplated a child residing away from home for the purposes of pursuing
    post-secondary education as an example of a material change in circumstances
    that would warrant a change in the amount of support. The presence of the
    additional requirement of the child residing away from home clearly implies
    that attending post-secondary education would not in and of itself create a
    material change in circumstances attracting a variation of support.

[25]

Accordingly, at the time that the 2017 Order was
    made, the parties had clearly contemplated that support would continue after
    H.S.L. was 18 years old and that she would attend university. This was the appropriate
    starting point for assessing whether there had been a material change in
    circumstances that justified terminating or reducing child support for H.S.L.;
    not whether H.S.L. had attained the age of majority.

[26]

The motion judge further erred by placing the
    burden on the mother to prove that H.S.L. required continuing child support. She
    conducted this inquiry as though it was an initial application for child
    support pursuant to s. 15.1(1) of the
Divorce Act
, which would require
    a determination of whether H.S.L. was still a child of the marriage as
    defined in s. 2(1).

[27]

In doing so, the motion judge reviewed the
Farden
factors, which assist in determining whether an individual is a child of the
    marriage:
Farden v. Farden
(1993), 48 R.F.L. (3d) 60 (B.C. S.C.).

[28]

The motion judge then considered H.S.L.s
    progress in her university program:

[H.S.L.s] university transcripts show that
    she has completed only about 3.5 credits in 4 years, and a degree at her
    university generally requires at least 20 credits.
From the transcripts, it
    seems [H.S.L.] has been a full-time student or nearly a full-time student at
    various points, but she did not necessarily attain credits for all her courses
.
    [Emphasis added.]

[29]

The motion judge went on to review the mothers explanation
    for this slow progress, which she accepted as a finding of fact:

[The mother] says that [H.S.L.] has learning
    disabilities and that she is completing her university courses slowly. She says
    that [H.S.L.s] issues have been present since she was in the third grade,
and
    that [the father] has always been aware of this
. She says he has paid for [H.S.L.s]
    tutoring for many years and was involved in the original hiring of the tutor.
I accept [the mothers] evidence on the point
. [Emphasis added.].

[30]

Nevertheless, the motion judge ultimately found
    that H.S.L.s progress in university was not reasonable and that H.S.L. should
    therefore not be considered a child of the marriage. In particular, the motion
    judge stated that there was no evidence about H.S.L.s educational limitations
    or career plans. On that basis, the motion judge concluded that the mother had
    not met what she characterized as the mothers onus:

Because [H.S.L.] is over the age of
    majority, it is [the mothers] onus to establish that [H.S.L.] is unable to
    withdraw from parental control
. There is
    insufficient evidence before the court of her inability to withdraw from her
    parents at present according to the
Divorce Act
definition, given the
    evidence that she works at least part time and the insufficient justification
    advanced for the supported pursuit of her current educational plan. [H.S.L.] is
    no longer a child of the marriage. [Emphasis added.]

[31]

The motion judge erred by reversing the onus and
    requiring the mother to prove that H.S.L. was not able to withdraw from
    parental control.

[32]

On an initial application for child support
    pursuant to s. 15.1(1) of the
Divorce Act
, a court may make an order
    for the payment of child support for any or all children of the marriage. For
    children who are at the age of majority or older, s. 2(1) of the
Divorce
    Act
defines them as being a child of the marriage if they are under [parental]
    charge but unable, by reason of illness, disability or other cause, to withdraw
    from their charge or to obtain the necessaries of life.

[33]

When a parent claims child support for a child
    who is at the age of majority or older, that parent has the onus of proving
    that the child remains under parental charge:
Whitton v. Whitton
(1989), 21 R.F.L. (3d) 261 (Ont. C.A.), at p. 263;
Dring v. Gheyle
,
    2018 BCCA 435, 430 D.L.R. (4th) 181, at para. 49;
Olson v. Olson
, 2003
    ABCA 56, 225 D.L.R. (4th) 735, at para. 13. This onus can be satisfied by identifying
    circumstances such as, for example, the child being enrolled in higher
    education: see
W.P.N. v. B.J.N.
, 2005 BCCA 7, 249 D.L.R. (4th) 352, at
    para. 18.

[34]

In this case, it was an error for the motion judge
    to treat this as an initial request for child support for a child who is at or above
    the age of majority. The parties had already agreed and obtained an order in
    2017 that contemplated that support was to be paid for H.S.L. The only relevant
    question at the variation stage was whether the father had proven that there had
    been a material change in circumstances since the 2017 Order, and specifically
    whether it was beyond the parties contemplation at that time that H.S.L. would
    take an extended period of time to complete her university studies.

[35]

Based on the record before the motion judge, had
    she conducted the proper inquiry, she should have found that the father had not
    established a material change in circumstances. As reviewed above, the evidence
    was that H.S.L. was a full-time student or nearly a full-time student during
    the relevant period. The motion judge noted that the 2017 Order contemplated
    payments for a tutor for H.S.L. In addition, the motion judge accepted the mothers
    evidence that the father was familiar with H.S.L.s learning challenges. In the
    circumstances, the motion judge should not have found that the mother failed to
    prove that H.S.L.s course of study was reasonable. Rather, she should have
    found that the father had failed to meet his burden of proving that there was a
    material change in circumstances from the time that the 2017 Order was made.

[36]

This does not mean that the father should be
    required to pay child support for H.S.L. indefinitely. But child support should
    not be terminated for H.S.L. until the father can demonstrate that there has
    been a material change in circumstances not contemplated at the time of the 2017
    Order and that H.S.L. is able to withdraw from parental control.

[37]

Accordingly, the order terminating child support
    for H.S.L. cannot stand. Instead, I would reinstate the support payments for
    H.S.L. that were required under the 2017 order, supported by a Family
    Responsibility Enforcement order.

Issue 2: The termination of child support for
    A.E.L.

[38]

The mother argues that the motion judge also erred
    in terminating child support for A.E.L. because the order that she approved was
    inconsistent with her reasons. I agree.

[39]

As reviewed above, in her original decision, the
    motion judge found that child support for A.E.L. should continue as long as the
    mother provided proof that A.E.L. was enrolled in a full-time university
    program within 45 days after the end of each academic term.

[40]

In the context of submissions on costs, the father
    again sought an order terminating child support for A.E.L., claiming that she
    was not enrolled in a full-time university program. In her costs endorsement,
    the motion judge appeared to reject this argument as follows:

[The father] takes the position in his
    written brief that because [A.E.L.] is enrolled in 4 courses rather than 6,
    that this disentitles her to support. I do not agree with this position
. I would note for the parties that full-time school attendance may
    not necessarily be required of the children of the marriage, depending on their
    overall limitations at any given time, based on any [medical] or psychological
    issues, and given the overall circumstances that present. For example, less
    than full time attendance, if caused by outside employment or other activities
    may reduce the amount that [the father] would be required to pay for their
    support or may disentitle them to support, depending on the overall
    circumstances. Less than full-time attendance because of a medical or
    psychological issue may require full support, however continued slow progress
    may not merit continued support periods if the lack of progress extends beyond
    a reasonable period of time, depending on the overall goals. All this is to
    point out that a motion to change would be required to stop the requirement to
    pay support for the children if they are enrolled in less than full-time school,
    so that the judge could analyze whether the children still fall within the definition
    under the
Divorce Act
, given the governing caselaw. [Emphasis added.]

[41]

However, later in her costs endorsement, the motion
    judge directed that the costs award be taken out as drafted in the order
    regarding the trial results as prepared by [the fathers] counsel.

[42]

This appears to have led to disagreement between
    the parties over the terms of the order, given that the order proposed by the father
    included a term ending child support for A.E.L.

[43]

The father then brought a Form 14B motion,
    seeking to settle the order. His materials on the motion included an affidavit
    that attached various documents from A.E.L.s university program. The documents
    included a letter from the university stating that A.E.L. was indeed enrolled in
    full-time studies. The materials also included a transcript showing that A.E.L.
    was enrolled in four courses in her first two terms. Finally, the materials
    included pages from a university calendar listing the full-time course load in
    the first year of A.E.L.s university program as consisting of 6 specified courses
    in the first semester and 5 specified courses in the second semester.

[44]

The motion judge released her endorsement regarding
    the Form 14B motion on May 11, 2021. Her endorsement did not explicitly address
    the issue of whether child support for A.E.L. should be terminated. Rather, she
    granted the fathers motion and signed the draft order provided by his counsel
    [b]ased on [her] review of the affidavit and email materials filed, as well as
    the application and the consents signed by the parties.

[45]

I find that it was an error for the motion judge
    to approve the order proposed by the father, which included a provision
    terminating child support for A.E.L. It is not clear whether this error was
    inadvertent or substantive. It was nevertheless an error.

[46]

If the motion judges intention was to terminate
    A.E.L.s child support based on the fathers position that she was not enrolled
    in a full-time university program, no reasons were provided for this finding. Notably,
    the termination of child support for A.E.L. contradicts the paragraph in the
    costs endorsement where the motion judge directly addressed this issue, and where
    she explicitly stated that another motion to change would be required to determine
    whether child support for A.E.L. should be terminated. No such motion appears
    to have been brought.

[47]

In any event, the evidence put forward by the father
    does not support an unequivocal finding that A.E.L. was not enrolled in full-time
    university studies. The materials the father provided to the motion judge included
    a letter from the university stating that A.E.L. is enrolled in a full-time
    program. The only evidence to the contrary was the fathers interpretation of a
    general statement in the calendar for A.E.L.s university program characterizing
    a full-time course load for first-year students in the first semester as requiring
    six courses.

[48]

Finally, the motion judges initial approach to
    determining whether child support should be continued for A.E.L. was the same
    as her approach to child support for H.S.L. Ultimately, as reviewed above,
    child support for A.E.L. could only be terminated if the father had been able
    to establish a material change in circumstances since the time of the 2017
    Order and that A.E.L. is able to withdraw from parental control.

[49]

While I have concluded that the motion judge
    erred in terminating child support for A.E.L. based on the discrepancies
    between her reasons for decision and her final order, I note that any future motion
    to change would have to be based on a proper evidentiary foundation and an analysis
    of whether there was a material change in circumstances, and cannot simply be
    based on evidence that A.E.L. is no longer enrolled in full-time studies.

[50]

Accordingly, the order terminating child support
    for A.E.L. is set aside. Instead, the 2017 order requiring the father to continue
    paying child support for A.E.L. is reinstated, supported by a Family
    Responsibility Support enforcement order.

Issue 3: Costs order

[51]

The mother argues that the costs order should be
    set aside because the motion judge erred in finding that the father was
    substantially successful.

[52]

It is not necessary to decide whether the motion
    judge erred in awarding costs to the father given that the appeal is allowed on
    the two other issues raised. The entitlement and quantum of costs for the
    proceedings below will have to be decided afresh based on the outcome of this appeal.
    Directions are provided below for the submission of materials on this issue.

DISPOSITION

[53]

In conclusion, I would allow the appeal and: (a)
    strike paragraphs 2, 3, and 9 of the motion judges order dated March 9, 2020
    (signed May 11, 2021); and (b) make an order requiring the father to pay
    ongoing child support for H.S.L. and A.E.L. according to the terms of the 2017
    order.

[54]

Because I would allow the appeal, the mother is entitled
    to the return of the amount that she posted as security for costs. Accordingly,
    I would order that the sum of $100,000 posted as security for costs by the mother
    is to be released to her.

[55]

The parties should try to agree on costs below
    and for the appeal. If they are unable to agree, they may make brief
    submissions (no longer than three pages) within three weeks of the release of
    these reasons, addressing the costs of the appeal as well as costs of the
    motions below.

Released: April 1, 2022 K.F.

L.
    Favreau J.A.

I
    agree. K. Feldman J.A.

I
    agree. L.B. Roberts J.A.


