Court of Appeal for Ontario

Date: 2022-02-25 Docket: C68822

Judges: Tulloch, Pardu and Roberts JJ.A.

BETWEEN

Stephen Harold Hendriks Respondent

and

Eleanor Dawn Hendriks Appellant

Counsel: Michael Ruhl and Ashley Timm, for the appellant Michael Stangarone and Stephen Kirby, for the respondent

Heard: June 16, 2021 by video conference

On appeal from the order of Justice Erika Chozik of the Ontario Superior Court of Justice, dated October 9, 2020.

Tulloch J.A.:

[1] The parties were married for 18 years and separated in 2010. During their marriage, they had three children: Tyas, Garett, and Corinne. Following their 2010 separation, they litigated until May 12, 2015, at which time they entered into a consent final order (“the Mossip Order”) that incorporated terms set out in minutes of settlement. The Mossip Order provided for child support and spousal support.

[2] In August 2018, the respondent began new employment in Qatar and his income increased significantly from approximately $78,000 to approximately $214,000. Following the respondent’s post-separation increase in income, the appellant brought a motion to vary child support and spousal support, among other relief. The motion was dismissed in its entirety.

[3] The appellant now appeals. She argues that the motion judge made several errors in her application of the law and apprehension of the evidence.

[4] For the reasons that follow, the appeal is allowed in part.

Background Facts

[5] The relevant terms of the Mossip Order were as follows:

• The respondent would pay ongoing child support for the three children in the amount of $1,506 per month, based on an income of $78,528.
• The respondent was to make a one-time payment of $3,108 in retroactive child support.
• The respondent would pay 75 percent of the children’s future s. 7 expenses.
• The respondent would make a one-time payment of $4,000 for retroactive s. 7 expenses.
• The respondent would contribute to s. 7 expenses in the amount of $33 per child per month.
• The respondent was to make a one-time payment of $3,000 in retroactive spousal support.
• The respondent would pay ongoing spousal support in the amount of $150 per month, based on an income of $78,528.

[6] For clarity and ease of reference, I have set out below, a timeline of the relevant events that are the subject of the various support orders, and that were under consideration by the motion judge:

Date	Event
August 15, 1992	The parties are married. During the marriage, the appellant operates a pottery business and teaches classes.
September 2002	The respondent begins his Master’s degree in Social Work (“MSW”).
2005	The respondent completes his MSW. The family moves to accommodate the respondent’s new employment.
December 27, 2010	The parties separate. The appellant finds employment outside the home.
October 25, 2012	The parties are divorced. The children reside with the appellant.
May 12, 2015	Divorce litigation is resolved by a Final Consent Order of Justice Mossip (“Mossip Order”), which incorporates minutes of settlement executed by the parties.
November 2015	The respondent makes a lump sum payment in the amount of $22,066.22 (being $22,825 less notional disposition costs). The appellant delays acknowledging receipt with the Family Responsibility Office (“FRO”) until March 2018, resulting in continued payments for the eldest child after his support terminates on July 1, 2016.
July 1, 2016	Child support is supposed to terminate for the eldest child. This is not confirmed until March 2018.
2016 to 2018	The respondent participates in ongoing training and development in his field.
July 2017	The eldest child stops living with the appellant.
December 2017	The appellant confirms with the FRO there were no arrears owing under the Mossip Order, following receipt of $22,066.22 from the respondent.
February 2018	The middle child moves in with the respondent in Barrie. The appellant mother does not pay any child support for the middle child despite the change in residence. The respondent asks FRO to adjust child support only for the youngest child, but FRO is unable to confirm facts with the appellant. The respondent continues to pay child support for all three children.
March 2018	The parties consent to the termination of child support for the eldest child. The parties agree to terminate child support for the middle child, since he no longer resides with the appellant. The appellant alleges that at this time, the respondent stopped paying all child and spousal support. The respondent claims that his overpayments in support effectively pre-paid support until February 2020.
May 16, 2018	Child support for Garett, the middle child, ends when he moves in with the respondent.
June 2018	The middle child graduates from high school.
August 2018	The respondent and the middle child move to Qatar for the respondent’s new employment. The respondent’s income increases to approximately $214,000 (untaxed and subject to gross-up).
August 7, 2018	The appellant files a motion to change, seeking a change in child support, sharing of s. 7 expenses, and a change in spousal support. The respondent seeks an order terminating spousal support and adjusting child support. The appellant mother’s motion is dismissed by Justice Chozik (“Chozik Order”). Spousal support is not terminated, and no retroactive child support is awarded to either party.
February 2019	The middle child moves back in with the appellant.
July 2019	The middle child finds full-time employment.
February 2020	The respondent resumes paying child support for the youngest child, Corinne only, in the amount of $2,200 per month.
March 31, 2020	The appellant’s employment is terminated by restructuring due to COVID-19.
June 2020	The youngest child graduates from high school.
September 2020	The youngest and middle child both commence full-time post-secondary studies. Both reside with their mother due to COVID-19. The youngest child maintains a part-time job, and the middle child receives the Canada Emergency Response Benefit.
September 2020	The appellant commences full-time studies, working towards a Bachelor of Arts in Global Business and Digital Arts.
October 2020	The appellant alleges the respondent stops paying child support for the youngest child. The respondent states that child support terminated under the Chozik Order.
November 2020	The respondent resumes paying spousal support in accordance with the Mossip Order.

Decision Below

[7] In August 2018, the appellant filed a motion to change the Mossip Order, seeking: 1) the enforcement of amounts she claimed remained outstanding; 2) variation of spousal support; 3) variation of the child support termination date for both the older and middle children; 4) an order for payment of future s. 7 expenses for both the middle and youngest child; and Table amount child support commencing September 1, 2020 for the middle and youngest child.

[8] The motion judge refused to grant any of the relief sought.

[9] First, the motion judge found that the amounts the appellant claimed were outstanding were satisfied. The respondent had paid the appellant $18,435 in net proceeds from the sale of the matrimonial home, paid the appellant’s share of a joint line of credit in the amount of $2,520.60 and transferred $22,825.60 to the appellant from his RRSP. She determined that this was more than sufficient to cover the outstanding amounts, and that the appellant had previously confirmed with the FRO that all arrears were satisfied.

[10] The motion judge refused to vary the spousal support. Because the Mossip Order incorporated minutes of settlement, she held that the appellant’s entitlement to spousal support was solely contractual in nature. Neither the Mossip Order nor the minutes of settlement contained terms that would permit a variation of support, and there was no finding that the appellant was entitled to compensatory or needs-based support. The motion judge further determined that the respondent’s increase in income was not a material change in circumstances because, on the appellant’s own affidavit evidence, it was in line with their expectations when the respondent began his MSW. Additionally, the increase in income was attributable to an intervening cause: the reorganization of his employment arrangements, his new marriage, and his lifestyle changes, including his move to Qatar. The appellant was therefore not entitled to share in the post-separation increase.

[11] The motion judge also refused to vary the termination date of child support for the oldest child or the middle child. Child support for both children was terminated on consent, and there was no evidence that either child remained a child of the marriage beyond the termination dates. Moreover, the motion judge determined that the respondent overpaid child support because the FRO could not confirm with the appellant whether an adjustment of child support was needed. Because the appellant failed to communicate promptly with the FRO, the respondent had continued to pay child support for three children until March 2018. The appellant also continued to collect child support while the middle child was no longer living with her.

[12] With respect to the request that the respondent pay s. 7 expenses as of September 1, 2020, the motion judge noted that the Mossip Order also provides for these expenses to be shared between the parties, but that the appellant must provide an accounting of these expenses and has never done so. There was no reason to change the Mossip Order in this regard.

[13] Lastly, the motion judge declined to order Table amount child support for the middle child or the youngest child. The motion judge reviewed the jurisprudence on determining child support for a child of majority age who is attending post-secondary school. Due to a lack of evidence regarding the children’s financial circumstances and the appellant’s means and needs, the motion judge declined to order Table amount child support. The motion judge again noted that the Mossip Order already provides for sharing of s. 7 expenses.

Issues

[14] The appellant argues that the motion judge erred in several respects, both in determining the child support issues and the spousal support issues.

[15] The issues with respect to child support are the following:

1. Did the motion judge err in finding that the respondent overpaid child support?
2. Did the motion judge err by failing to consider whether child support arrears were owing for Corinne between August 2018 and February 2020?
3. Did the motion judge err by failing to apply the Child Support Guidelines for Garett and Corinne?

[16] The spousal support issues are the following:

1. Did the motion judge err by finding the respondent’s post-separation increase was not causally connected to the appellant’s contributions to the marriage?
2. Did the motion judge err by finding that the appellant’s spousal support entitlement was contractual, and no further inquiry was required?

Standard of Review

[17] At the outset, it is important to note that the decision of a motion judge is owed a very high degree of deference. I am guided by the instructions of the Supreme Court in Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 11-12:

Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.

There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [Emphasis added.]

[18] In this case, however, I am satisfied that the motion judge significantly misapprehended the evidence of child support overpayments, which in turn affected her analysis on whether arrears were owing. I am also satisfied that the motion judge erred in law in her analysis of the appellant’s spousal support entitlement and whether there was a material change in circumstances.

Analysis

(1) Child Support Issues

(a) Did the Motion Judge Err in Finding the Respondent Overpaid Child Support?

[19] The motion judge made findings that there was an overpayment in child support in the amount of $36,000:

…[O]n the evidence before me, I am satisfied that the Applicant overpaid child support significantly. The Applicant puts the amount of his overpayment at $36,000. This amount is not disputed by the Respondent. The overpayment resulted in part from the Respondent’s delay of more than 20 months in confirming to FRO that the RRSP transfer had been made.

I also find that the Applicant overpaid child support. In February, 2018 the Applicant asked FRO to adjust the child support to be for one child. FRO attempted to confirm with the Respondent that an adjustment of child support was needed because Tyas had graduated from high school almost two years earlier and Garrett was no longer living with her. The Respondent failed to respond promptly to FRO. This resulted in a significant overpayment by the Applicant of child support. The Respondent continued to collect child support for three children until March, 2018 – well after Tyas had graduated from high school. She did not pay any child support for Garrett for a year knowing that she should be because he was not living with her. She continued to collect child support for Garrett until May 2018, even though he moved to live with the Applicant in February 2018. There was an overpayment of child support as a result.

[20] The appellant mother argues the motion judge erred in finding that the respondent father overpaid $36,000 in child support. The appellant argues the motion judge misapprehended the FRO statement of account which showed a $36,000 credit applied on March 19, 2018. The appellant contends that the subsequent adjustments on March 19 and 20, 2018, resulted in no overpayment of support. The amounts credited to the respondent by the FRO were for amounts owing to the appellant in accordance with the Mossip Order. The appellant further argues that the respondent admitted that any perceived overpayment was “dealt with through FRO”.

[21] The respondent disputes that the motion judge erred and states that the he did in fact overpay.

[22] I agree with the appellant that the motion judge misapprehended the evidence in finding an overpayment of $36,000. The statement of accounts from the FRO shows that beginning November 1, 2015, monthly payments were made to the FRO in the amount of $1,755, which total comprises child support for the three children, spousal support, and monthly s. 7 expenses as ordered in the Mossip Order. These payments continue until March 1, 2018. As noted above, March 2018 was when the parties confirmed with the FRO that support for the oldest child should have ended in July 2016 when he graduated high school, and that support for the other two children should have changed in February 2018 when the middle child moved in with the respondent.

[23] On my calculation based on the statement of accounts, the respondent paid a total of $36,855 between July 2016 and March 2018, which is equivalent to $1,755 per month. However, the monthly rate of $1,755 was based on child support and s. 7 expenses for three children. When child support ended for the eldest in June 2016, the monthly payments should have changed.

[24] The credits applied by the FRO reflect that these monthly payments were incorrect. Between July 2016 and January 2018, the respondent should have only been paying child support for two children. Between February 2018, when Garett moved in with the respondent father, and May 2018, when support for Garett ended, the respondent father should have been paying child support for only the youngest child. The monthly payments for these obligations would almost certainly have been less than $1,755 per month. Therefore, it is true that there was an overpayment; however, the motion judge misperceived its quantum.

[25] The $36,855 the respondent paid between July 2016 and March 2018 was not over and above what he was required to pay; only a portion of the $36,855 was an overpayment, because the respondent was still obligated to pay child support for his two other children and pay spousal support. Based on a review of the statement of accounts, from July 2016 to January 2018, the period of time when support was owing for the appellant and for two children, the respondent should have paid $1,396 per month. From February 2018 to May 2018, when support was owing for the appellant and only one child (because the middle child began residing with the respondent in February 2018 and then his child support entitlement terminated in May 2018), the respondent should have paid $896 per month. In total, this amounts to $29,595 the appellant should have actually paid, leaving an overpayment of $7,260.

[26] The last adjustment made by the FRO is in May 2018, when support for the middle child would have ended. From then on, the statement of accounts shows regular debits for $896, presumably the support cost for one child and for spousal support. The monthly payments are taken from the $7,260 credit remaining on the account; this credit runs out by the end of January 2019. Therefore, beginning in February 2019, the respondent should have resumed making payments for child support for the youngest child and for spousal support. He did not: the parties agree that payments did not resume until February 2020.

[27] This misapprehension of the statement of accounts affected the motion judge’s analysis on whether child support arrears were owing, which I address next.

(b) Did the motion judge err by failing to consider whether child support arrears were owing for the youngest?

[28] The motion judge did not address the issue of child support for the period between March 2018 and February 2020.

[29] The appellant argues that the youngest child was entitled to child support between March 2018 and January 2020, but that the respondent did not make any such payments. The respondent takes a somewhat internally inconsistent position: he acknowledges that the overpayment credit was exhausted by 2019 but also argues that the $36,000 overpayment covered March 2018 to February 2020, and therefore it was not the case that the respondent did not make payments during this period.

[30] The last payment made by the respondent was in March 2018. Between April 2018 and January 2020, the youngest child was still a minor residing at home with the appellant and attending high school. There is no evidence that any payments were received for this time period, aside from the credits applied from the overpayment which were exhausted by the end of January 2019, as described above.

[31] The parties agree that the respondent recommenced making payments in the amount of $2,200 in February 2020. This amount roughly corresponds to monthly Table support for one child and the $150 per month required by the Mossip Order. This leaves a period of 12 months during which the respondent did not pay spousal or child support for the youngest child, then in high school and living with the appellant.

[32] I would fix the arrears of child and spousal support owed for this period at $26,400.

(c) Did the motion judge err by incorrectly applying the Child Support Guidelines to the youngest and to the middle child?

[33] On the motion, the appellant sought $4,000 per month in Table support, since both the middle and youngest children would be residing with her while they attended full-time post-secondary studies beginning in September 2020. The respondent argued that while the children should be supported, the evidence demonstrated that their expenses would be covered by grants and scholarships available to them.

[34] The motion judge declined to order Table support, citing a lack of evidence regarding the children’s and appellant’s financial means and needs. She also stated it would be preferable to employ “an approach [presumably under either s. 3(2)(b) or s. 7] that takes into account the children’s expenses and incomes, as well as the means of each parent and puts into place an appropriate budget to be shared by the parties”. The motion judge further noted that the Mossip Order provides for the sharing of s. 7 expenses, and that the appellant is required to provide an accounting to the respondent under the Mossip Order.

[35] In my view, the motion judge did not err in not ordering ongoing child support. The onus is on the party seeking support to demonstrate that the adult child requires educational support: see Rebenchuk v. Rebenchuk, 2007 MBCA 22, at para. 63. This consideration arises even before the judge must determine whether the presumptive amount or an amount determining by a different approach applies. The insufficient evidence provided by the appellant failed to discharge that onus.

[36] The motion judge concluded that there was inadequate evidence to order support beyond the sharing of the s. 7 expenses. I agree with the motion judge that the Mossip Order already accounts for the children’s post-secondary expenses to be shared by the parties.

[37] In all the circumstances, I find that the motion judge did not err here.

[38] However, a child of the marriage should not be prejudiced by the self-represented appellant’s inability to master the intricacies of litigation. If the youngest child, in particular, continues to reside with the appellant, the appellant likely incurs costs for her shelter and food. The appellant would be at liberty to apply for support in addition to the s. 7 expenses, upon presentation of adequate evidence, described by the motion judge for the period accruing after the October 9, 2020 order, if so advised.

(2) Spousal Support Issues

(a) Did the Motion Judge err by Finding the Post-Separation Increase was not Causally Connected to the Appellant?

[39] The motion judge determined that the respondent’s increase in income was attributable to intervening causes:

The increase in the Applicant’s income is attributable to an intervening cause, unrelated to the parties’ marriage or the roles they adopted during the marriage. The Applicant’s increase in income is as a result of the reorganization of his employment arrangements, with new responsibilities, a new marriage, and as a result of significant lifestyle changes he has made since the separation including moving to Qatar. The passage of time alone–eight years–indicates that the Respondent’s contributions during the marriage are not causally related to the Applicant’s post-separation income increases. [Citation omitted.]

[40] These are all factual findings which the motion judge was entitled to make. In my view, there is no indication that the motion judge misapplied the law or misapprehended evidence, and there is no basis to interfere with the conclusion reached. This aspect of the decision is owed deference.

(b) Did the Motion Judge Err in Finding the Appellant’s Spousal Support Entitlement was Contractual and No Further Inquiry was Required?

[41] There are three bases for entitlement to support, as explained by the Supreme Court in Bracklow v. Bracklow, [1999] 1 S.C.R. 420: contractual, compensatory, and non-compensatory (also called “needs-based”). The contractual entitlement to support reflects “the idea that parties’ agreements on support should influence their rights and obligations during the marriage and upon its breakup”: Bracklow, at para. 18. Under s. 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court must have regard to any “order, agreement or arrangement relating to support of either spouse”.

[42] The compensatory basis for entitlement applies “where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage”: Bracklow, at para. 18. The court in Bracklow, at para. 39, further notes:

Under the Divorce Act, compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument.

[43] Lastly, the court in Bracklow, at paras. 40-41, describes the non-compensatory basis for entitlement. This requires:

…[T]he court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application…

…Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense…

[44] These bases for spousal support are complemented by the objectives of variation orders for spousal support set out in s. 17(7) of the Divorce Act:

17 (7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[45] It is with these policy objectives in mind that the appellant’s motion for a variation in spousal support must be assessed.

[46] The motion judge made the following finding as to the nature of the appellant’s entitlement to spousal support:

I am satisfied that the Respondent’s [mother] entitlement to support is contractual in nature. The Minutes of Settlement and the Final Order do not contain any terms permitting the Respondent to seek increased spousal support in the future. There was no finding as to her entitlement to compensatory or needs based support. While she may have had a claim in this regard at the time, it is not the basis upon which the Final Order was made.

[47] The appellant argues that an entitlement to spousal support is not contractual simply because an order for support incorporates minutes of settlement, and that such an order does not erase any underlying bases for entitlement to support. The motion judge erred by failing to determine whether the support order should be varied on another basis.

[48] The respondent submits that the minutes of settlement create an entitlement to support that is only contractual, and the support available to the appellant was therefore circumscribed by the terms set out in the Mossip Order. Additionally, unlike a judge on an initial application for spousal support, the motion judge did not have the discretion to change the terms of the spousal support, because once an initial court approves a support order, there is a presumption that the terms of the order comply with the Divorce Act.

[49] The motion judge also concluded that the respondent’s increase in income did not constitute a material change in circumstances:

Furthermore, the Respondent’s [appellant on appeal] own evidence in her sworn affidavit dated March 2, 2020 contradicts her submissions that the Applicant’s increase should be regarded as a material change in circumstances. In her affidavit, the Respondent states that the Applicant’s new position is exactly in line with what they had discussed when he undertook a master’s degree program in social work. It cannot therefore be said that the change was not contemplated by the parties at the time they entered into the Minutes of Settlement that led to the Final Order.

[50] In my view, it was an error for the motion judge to hold that the appellant’s spousal support could not be varied because the Mossip Order did not contain a term permitting variation. While s. 15.2(4)(c) of the Divorce Act provides that the court shall consider “any order, agreement or arrangement relating to the support of either spouse”, this does not end the inquiry required. The appellant’s motion would have been an application under s. 17 of the Divorce Act. The Supreme Court in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at para. 41, “even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted”.

[51] While the motion judge was entitled to make a factual finding that the evidence regarding the respondent’s income increase did not support a finding that there was a material change in circumstances, her analysis fails to ask whether the appellant faced a material change in circumstances. The court in L.M.P., at para. 29, is clear that the question of a material change applies to both parties:

In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order. [Italics in original; underlining added.]

[52] Therefore, despite the existence of an order incorporating an agreement, a judge retains jurisdiction to consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse, and having regard to any existing agreement.

[53] The Spousal Support Advisory Guidelines provide for differing amounts of spousal support, depending on whether child support is or is not payable. The motion judge declined to order ongoing Table amount child support for the middle and youngest children. The reduction or termination of child support constitutes a change in circumstances for the purposes of seeking a variation in spousal support: Divorce Act, s. 15.3(3). Therefore, after child support obligations are reduced or cease, a spousal support award may increase: see as examples Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 43; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654 at para. 114; and Wharry v. Wharry, 2016 ONCA 930, 408 D.L.R. (4th) 548, at paras. 90-92.

[54] Although the trial judge found that the changes in the respondent’s circumstances were sufficiently disconnected from the marriage so as to not qualify as a material change in his circumstances, the respondent’s means may still be relevant to the determination of the extent to which he is now able to temper any continuing economic disadvantage resulting from the marriage still suffered by the appellant.

[55] It was an error for the motion judge not to undertake this analysis, especially in light of her recognition that the appellant may have had compensatory or needs-based entitlements when the Mossip Order was made. This is an error that warrants correction.

[56] When spousal support was set at $150 per month, the respondent was paying the Table amount of support for three children, plus s. 7 expenses. That he is no longer paying Table support for three children constitutes a change in circumstances for the purpose of seeking a variation order under s. 15.3(3) of the Divorce Act, and therefore satisfies the threshold for variation. The question then becomes, what is the appropriate variation? The court in L.M.P. provides guidance on the analysis required, at paras. 47 and 50:

If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change. As Justice L’Heureux-Dubé, concurring in Willick, observed: “A variation under the Act is neither an appeal of the original order nor a de novo hearing” (p. 739). As earlier stated, as Bastarache and Arbour JJ. said in Miglin, “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order”.

In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), . . . [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.

[57] The court must first consider the impact of the respondent’s post-separation increase in income, which is a complicating factor: see Gray, at para. 45. As explained above, the motion judge’s finding that the appellant is not entitled to share in the respondent’s post-separation increase in income is owed deference. Therefore, the assessment of the appropriate variation should proceed using the respondent’s income at the time of the Mossip Order, which was $78,528.

[58] The appropriate variation is one that will remedy the economic disadvantage suffered by the appellant from the roles the parties adopted during the marriage. On review of the record, I am satisfied that while both parents contributed to household and childcare responsibilities, the majority of these responsibilities fell to the appellant and had an impact on her ability to pursue her business and career. The respondent completed his MSW over three years, during which time he worked two jobs. This would have required the appellant to take on increased childcare responsibilities. The respondent’s MSW was funded by himself, through his RRSPs and student loans. Though she continued to work in pottery in some capacity, the appellant was not able to advance her career, unlike the respondent. After the separation, the children also resided primarily with the appellant, which continued her disadvantage.

[59] The Guidelines, while not binding, are recognized for their utility in determining the quantum and measure of spousal support. On my calculation, at the time of the Mossip Order, the range for spousal support under the Guidelines, without child support would have been between $1,356 and $1,808 per month. Pursuant to the Mossip Order, the appellant received $150 per month. I find that an appropriate amount of varied spousal support is in the mid-range, at $1,500.

[60] As to duration, the Mossip Order did not time-limit the spousal support that would be paid to the appellant. However, I find it appropriate to limit the varied spousal support payments to 108 months, which is at the low end for what the appellant would have received under the without-child formula at the time of the Mossip Order. The record demonstrates that the appellant has been able to attain higher income levels since the time of the Mossip Order, and she has managed to save money. The appellant is also currently pursuing her Bachelor of Arts. Given the appellant’s means and optimistic future, indefinite spousal support would not be appropriate.

[61] I am satisfied that this variation is appropriate: it reflects the economic disadvantages the appellant suffered as the primary, though not sole, caregiver for the family. In my view, it will also promote the appellant’s self-sufficiency by providing her the financial security she needs to complete her education and make herself competitive in the job market.

Disposition

[62] In conclusion, the appeal is allowed in part.

[63] I find that the motion judge misapprehended the evidence regarding an overpayment of child support, and this affected her analysis of whether there was support owing for the youngest child between February 2019 and January 2020. With respect to the children’s post-secondary education expenses, I do not find that the motion judge made a palpable and overriding error that warrants appellate interference.

[64] With respect to the motion judge’s findings on the respondent’s post-separation increase in income, I do not find that the reasons disclose any reversible error; as such, deference is owed to the motion judge’s findings on this ground. However, in my view, the motion judge erred by failing to assess whether the spousal support order could be varied simply because the order incorporated minutes of settlement. I would therefore vary spousal support to $1,500 per month for 108 months, retroactive to July 1, 2020.

[65] Each of the parties may make brief written submissions as to the costs of the motion to vary, and the costs of the appeal, due from the appellant within 15 days after the date of the release of these reasons, and due from the respondent within 7 days after he receives the appellant’s costs submissions.

Released: February 25, 2022 “M.T.” “M. Tulloch J.A.” “I agree. G. Pardu J.A.” “I agree. L.B. Roberts J.A.”