Court File and Parties

Citation: Adamson v. Steed, 2008 ONCA 375 Date: 2008-05-12 Docket: C46333

Court of Appeal for Ontario Before: Doherty, Moldaver and Cronk JJ.A.

Between:

Patricia Mary Adamson Applicant (Respondent)

and

William James Steed Respondent (Appellant)

Counsel: D. Smith for the appellant Harold Niman for the respondent

Heard: May 12, 2008

On appeal from the order of Justice Thea P. Herman of the Superior Court of Justice dated November 7, 2006.

Appeal Book Endorsement

[1] The appellant raises four arguments.

[2] The argument that the support payments made by the appellant should have been deducted from his income for the purposes of delivering his percentage of contribution to the education expenses raises a definition of income which is not found in the agreement and which, in our view, contradicts the position taken by the parties at trial. We reject this ground of appeal.

[3] The second ground of appeal assumes that the order made is statutorily based. We disagree. This was an order made for payment of arrears owing under the agreement between the parties.

[4] The third argument urges the court to imply a term into the agreement. Counsel submits that the "first educational degree" limit written into s. 6 (education costs) should be implied into s. 5 (the support obligation). The standard for implying a term into a contract is very high. Courts will not rewrite contracts to reflect changed circumstances or more equitable results. The court will imply a term where it is necessary to give the agreement efficacy by avoiding the undermining of the very rationale for entering into the agreement: Murray v. Murray, 2005 CanLII 30422 (ON CA), [2005] O.J. 3563 para. 33 (Ont. C.A.).

[5] The appellant has not demonstrated this prerequisites for implying a term into the contract. This ground fails.

[6] Finally, the appellant submits that under s. 5.1(a) of the agreement, Robin no longer qualified for support as she was no longer under the respondent's parental control after 2002. The trial judge's findings of fact are contrary to this submission, e.g. see reasons at para. 110. This ground fails.

[7] The other grounds of appeal found in the notice of appeal and factum were not advanced in oral argument.

[8] The appeal fails. Costs to the respondent in the amount of $7,500, inclusive of disbursements and GST.