Court of Appeal for Ontario

Date: May 17, 2019 Docket: C66002

Judges: Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

Between

Margaret Elizabeth Dancy Applicant (Respondent)

and

James Ian Allan Mason Respondent (Appellant)

Counsel

R. Steven Baldwin, for the appellant

Mark A. B. Frederick, for the respondent

Heard: May 9, 2019

On appeal from the order of Justice Gary W. Tranmer of the Superior Court of Justice, dated September 11, 2018.

Reasons for Decision

Background and Facts

[1] Dr. James Mason and Margaret Dancy separated on August 31, 2005, after approximately 19 years of marriage, preceded by two years of cohabitation. They had four children together. Ms. Dancy had a law degree when she met Dr. Mason. She mostly stayed home with the children until the youngest child was eight, at which point she undertook a teaching career. In 2008, the parties entered into a separation agreement that provided for spousal support. At that time, Dr. Mason's line 150 gross income was $330,000 and Ms. Dancy's was approximately $67,500. In 2010, they entered into an amending agreement for a higher level of support. In 2016, Ms. Dancy brought a motion seeking a further increase in spousal support, and Dr. Mason responded with a cross-motion to terminate spousal support as of July 1, 2018.

[2] By order dated September 11, 2018, the motion judge increased the spousal support payable to Ms. Dancy from $9,300 to $12,000 per month. Using Dr. Mason's full 2016 income of $632,827 as the input number, the motion judge described this support amount as "just below the low end of the [Spousal Support Advisory Guidelines] range". He ordered this amount retroactive from October 1, 2016 until July 1, 2021, followed by a gradual step-down ($9,000 per month from August 1, 2021 to July 1, 2024 and $5,000 per month from August 1, 2024 to July 1, 2026), after which spousal support will be terminated.

[3] Dr. Mason appeals, and Ms. Dancy cross-appeals, that order. Ms. Dancy also seeks leave to appeal the motion judge's order that each party bear his or her own costs of the variation motions.

Current Circumstances

[4] At the time of the motion, Ms. Dancy was a math professor and coordinator at the Lawrence Kinlin School of Business. Her income in 2017 was $104,542. Dr. Mason is a medical doctor whose income in 2017 was $646,180. His income has increased substantially since the parties' separation. Both have re-partnered. Ms. Dancy re-married a lawyer, who has seven children, and an income of approximately $200,000 a year. Dr. Mason has a partner with a modest income. Ms. Dancy and her new husband have a marriage contract that provides that neither of them will pay the other spousal support. The parties' four children are now successfully independent.

Motion Judge's Findings

[5] The motion judge found that there had been a material change in circumstances since the parties amended their separation agreement on March 9, 2010, such that the precondition in s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3, for making a variation order had been satisfied. He also found that there was an original compensatory basis for support for Ms. Dancy. Those findings are not at issue.

Appellant's Arguments

[6] Dr. Mason argues that the motion judge should have terminated, or at least reduced, spousal support. He submits that the support he has paid since 2005 has fully compensated Ms. Dancy for the economic disadvantages accruing from their 19-year marriage and its breakdown. At this point, Ms. Dancy is not suffering any economic hardship and is economically self-sufficient.

[7] Dr. Mason argues that the motion judge erred in principle by failing to consider whether any economic disadvantage and hardship were caused by the marriage or its breakdown, as required by s. 17(7) of the Divorce Act. He submits that the causal link to any economic disadvantage and hardship – Ms. Dancy's contribution to his career during their marriage by assuming a disproportionate share of childcare responsibilities – is now too remote. Similarly, he argues that the increase in his income relied upon to order the increased support is so far removed from Ms. Dancy's contribution to his career during their marriage by assuming a disproportionate share of childcare responsibilities that he should not be required to share some of it with her. He further argues that the motion judge's factual findings of economic disadvantage and hardship were unsupported by the evidence.

Respondent's Arguments

[8] In turn, Ms. Dancy argues that, based on the length of the marriage and the parties' current incomes, spousal support should have been increased to the mid-range of the Spousal Support Advisory Guidelines (SSAGs), namely $14,484 per month, and that there should have been no step-down or predetermined termination of the spousal support. She says the order for a step-down and termination is premature. How, she asks, can the motion judge know that termination in five years is appropriate?

Standard of Review

[9] We begin by noting that the standard of review for family support decisions is significant deference. This is informed by both the discretion involved in making support orders and the importance of finality in family law litigation. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error of law. An appeal court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.

Court's Analysis

[10] We are not persuaded that there is any basis for this court to overturn the variation order. The motion judge considered the evidence, including the parties' original separation agreement, the objectives enumerated in s. 17(7) of the Divorce Act of an order varying spousal support, the applicable jurisprudence, and the SSAGs. He made no error in principle and made no palpable and overriding errors in his fact-finding process.

[11] In considering any economic advantage or disadvantage to Ms. Dancy arising from the marriage or its breakdown, the motion judge made a number of findings, which are supported by the record: the spousal support being paid in this case is compensatory in nature; Dr. Mason's medical career progressed uninterrupted as a result of the contributions made both by him and Ms. Dancy; her law career was interrupted by the birth of triplets, and the arrival of a fourth child, less than two years later; she was out of the workforce effectively from 1987 to 1998, 11 years, as a result of assuming childcare responsibilities; and she then chose a teaching career, at least in part based on her childcare responsibilities.

[12] He concluded that Ms. Dancy remains disadvantaged as a result of assuming the childcare responsibilities, being out of the workforce for 11 years, and narrowing her career options to teaching because of her childcare responsibilities. Contrary to Dr. Mason's assertion, the motion judge specifically considered, and found, that there was a causal link between her relative disadvantage and the marriage.

[13] Further, the motion judge found that, in addition to the disparity in their incomes, Dr. Mason had achieved a relatively higher standard of living, comparing the parties' net worth, homes, savings and debt situation. Although she had contributed for 21 years to Dr. Mason's highly successful medical career, Ms. Dancy will not share fully in his success.

[14] The motion judge also found that while Ms. Dancy had achieved a "measure of self-sufficiency", the level at which she is able to be self-sufficient is lower than Dr. Mason's – which, as the motion judge noted, Moge v. Moge, [1992] 3 S.C.R. 813, at p. 876, directs is an appropriate consideration.

[15] Importantly, the motion judge also appropriately took the parties' original agreement into account – an agreement based on Dr. Mason's income of $330,000, contemplating an increase in support if his income rose by more than 5%, and not specifically contemplating an end date – and aimed to assess how to appropriately vary the parties' agreement in light of the change in circumstances: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775.

[16] In the application judge's view, the compensatory nature of the original spousal support order would no longer exist at the ordered termination date.

[17] In light of all of these circumstances, the motion judge's decision to increase support from $9,300 to $12,000 for a few years, reflecting Dr. Mason's attainment of significantly higher earnings than what was contemplated at the time of the separation agreement, and then to gradually step-down support to a termination date coinciding with Dr. Mason's anticipated retirement, was a reasonable exercise of his discretion.

Spousal Support Advisory Guidelines Analysis

[18] We note that the amount ordered is not actually accurately described as "just below the low end of the [SSAG] range". This is because the SSAGs suggest that for payor income over the $350,000 ceiling, there is also a range of appropriate income input from $350,000 to the payor's actual income amount: see SSAGs at s.11.1-11.3 and this court's decision in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671. This means that for payor incomes above $350,000, in addition to the low, mid-point and high-end amounts suggested by the SSAGs, there is also a "range" of possible appropriate payor income inputs. In this case, for example, the motion judge could equally appropriately have selected a payor income of $491,000, namely the half-way point between $350,000 and his total income of $632,827. This would have generated a monthly support range from $9,531 to $12,708, placing the actual amount awarded at the "high-end" of that range. This does not, however, change our assessment of the motion judge's award as being well within his discretion.

Disposition of Appeal and Cross-Appeal

[19] For these reasons, the appeal and cross-appeal of the variation order are dismissed.

Costs Order

[20] Turning to the costs order, Ms. Dancy argues that the motion judge erred in characterizing this as a matter of "divided success", and, for that reason, ordering that each party should bear his or her own costs of the motions. She submits that she was substantially more successful before the motion judge than Dr. Mason and was entitled to costs of the motions. We are not persuaded that the motion judge's costs order is clearly wrong. Leave to appeal costs is granted rarely and only in "obvious cases where the party seeking leave convinces the court there are 'strong grounds upon which the appellate court could find that the judge erred in exercising his discretion'": Brad-Jay Investments Ltd. v. Szijjarto, 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. Leave to appeal the motion judge's costs order is denied.

[21] The parties agreed that the successful party before this court would be entitled to costs in the amount of $17,500, inclusive of HST and disbursements. In our view, success before this court was divided. Accordingly, neither party is entitled to costs.

"Alexandra Hoy A.C.J.O."

"P. Lauwers J.A."

"B. Zarnett J.A."