Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210923 DOCKET: C67873
Strathy C.J.O., Pepall and Pardu JJ.A.
BETWEEN
Lisa Ellen Skinner Applicant (Appellant in Appeal)
and
Michael Wayne Skinner Respondent (Respondent in Appeal)
Counsel: Emily M. Carroll, for the appellant Eric Sadvari and Ramanjit Gill, for the respondent
Heard: September 16, 2021 by video conference
On appeal from the order of Justice Jennifer Breithaupt Smith of the Superior Court of Justice, dated December 2, 2019, with reasons reported at 2019 ONSC 6949.
Reasons for Decision
Overview of the Facts
[1] The parties were married in 1998 and separated sometime in 2006 or 2007. There are two adult children of the marriage. The court below made orders dealing with parenting and support issues on January 12, 2009 and April 27, 2010. Both the appellant and the respondent sought to change the most recent order due to material changes in circumstances. The respondent also argued that the appellant was no longer entitled to spousal and child support. Justice Breithaupt Smith found that there had been material changes to the respondent’s circumstances and reduced the arrears owing based on her recalculations. Justice Breithaupt Smith also found that the appellant’s entitlement to spousal support ended as of June 30, 2019 and her entitlement to child support ended as of December 31, 2017 and December 31, 2019. The appellant seeks to appeal Justice Breithaupt Smith’s order to this court.
Overview of the Appeal
[2] The appellant advances five grounds of appeal:
Breithaupt Smith J. erred in finding that there had been a material change in circumstances warranting a reduction in the respondent’s support obligations;
Breithaupt Smith J. erred in finding that the respondent was excused from his intentional underemployment for the years of 2011-2016;
Breithaupt Smith J. erred in reducing arrears back to 2011;
Breithaupt Smith J. erred in failing to address the children’s Section 7 extraordinary expenses accumulated after March 31, 2011; and
Breithaupt Smith J. erred in finding that Steven was not a “child of the marriage” in 2018 and 2019, and that Hailey did not qualify for child support effective December 31, 2019.
The appellant also requests that the costs order in the amount of $17,313.24 be set aside.
[3] The appellant, Lisa Ellen Skinner, and the respondent, Michael Wayne Skinner, were married on February 14, 1998 and separated sometime in 2006 or 2007. There are two children of the marriage: Steven, born May 12, 1998, and Hailey, born May 16, 2001. The parenting and support issues were first addressed on January 12, 2009 in the final order of Justice Bean (the “Bean Order”). The respondent brought a motion to change the Bean Order to accord with his actual income and to address certain parenting issues, which were addressed on April 27, 2010 in the final order of Justice Epstein (the “Epstein Order”). The respondent owed arrears at the time.
[4] The respondent then sought to change the Epstein Order, stating that his inability to work consistently due to his illness constituted a material change in circumstances. He requested that the court rescind the arrears accumulated since the date of the Epstein Order or, in the alternative, recalculate child and spousal support to reflect his actual income and adjust the arrears accordingly. He also requested that spousal support be terminated effective April 27, 2011 and for child support to end as of the children’s 18th birthdays. The appellant also sought to change the Epstein Order, arguing that the $5.38 increase in the respondent’s hourly rate as of 2011 constituted a material change in circumstances justifying a retroactive increase in support. The motion to change the Epstein Order was heard on November 22, 2019, and it is this order that is under appeal.
[5] In her endorsement dated December 2, 2019, the motion judge found that material changes in the respondent’s circumstances took place as of the date of diagnosis and identification of serious health issues affecting him and also as of the date of the increase in his hourly rate. In arriving at this conclusion, the motion judge applied the legal test for a material change in circumstances as determined in Willick v. Willick, [1994] 3 S.C.R. 670 at p. 688: “a change, such that, if known at the time, would likely have resulted in different terms.” She found that there had been a material change in circumstances as of July 10, 2015, when the respondent was diagnosed with a significant illness. She also found that there had been an earlier material change in circumstances as of April 1, 2011, when the respondent returned to work at a higher hourly rate. As a result of these material changes in circumstances, the Epstein Order was reviewable and Breithaupt Smith J. conducted a fresh analysis of the issues dating back to 2011.
[6] The motion judge also considered whether income should be imputed to the respondent with a view to assessing his support obligations. Applying Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, she held that the health needs of the respondent excused his underemployment for the period from 2011 to 2018, but that there was insufficient evidence to excuse his underemployment for 2017-2018. Once the respondent’s illness was properly treated, he was able to increase his working hours.
[7] In dealing with child support the motion judge applied the criteria described in Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440 (Ont. S.C.) to assess whether a child over the age of 18 continued to be a child of the marriage for support purposes. She concluded that the evidence was not sufficient to establish that the child Steven continued to be a child for whom support was payable after 2017 and was insufficient to establish that Hailey was a child for whom support was payable after December 31, 2019, although the motion judge left open the possibility of a future motion for child support, without the necessity of demonstrating a material change, upon better evidence. In that regard, she noted that her decision on termination of child support was subject to review and reinstatement effective January 1, 2020, based on production of more evidence.
[8] The motion judge also terminated the appellant’s entitlement to spousal support as of the end of 2019. She noted that the appellant had completed a program of education that significantly increased her earning potential and that the academic year 2018-2019 was her youngest child’s fourth year of high school. She observed that application of the Spousal Support Advisory Guidelines would have suggested spousal support of 4.75-12 years duration, post separation. Here, with termination of support ordered by the motion judge, spousal support had been paid until a date approximately 12 years after separation.
[9] With all of these findings in hand, the motion judge went on to calculate the support that should have been paid from 2011.
Analysis
[10] The parties agree that the appropriate standard of review is “palpable and overriding error.” The standard of review for family support decisions demands 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 in law: see Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 12.
[11] The motion judge cited the applicable authorities and correctly distilled the governing tests. The appellant essentially submits that the motion judge ought to have weighed the evidence differently. We do not agree. The conclusions reached by the motion judge were reasonable, based on the evidence before her. The motion judge logically and carefully explained her conclusions. There is no basis to find any error in her reasoning, let alone palpable and overriding error.
[12] While the motion judge did not directly address retroactive s. 7 expenses for the children, the appellant would have had to establish that the expense was necessary, in the children’s best interests, and reasonable in relation to the means of the spouses and children and the family’s spending pattern before separation. Given the paucity of evidence on these points, the motion judge did not err in not making an order for s. 7 expenses.
[13] The appellant also submits that the motion judge erred in ordering her to pay costs to the respondent in the sum of $17,313.24. The respondent had offered to settle with the appellant on terms that were more favourable to her than the judgment on the motion. We see no basis to interfere with the motion judge’s decision on costs.
[14] Accordingly, the appeal is dismissed with costs payable to the respondent fixed at $5000.00 all inclusive.
“G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”
