Court File and Parties

Ontario Court of Justice

Date: 2017-02-10

Court File No.: Halton 504/14

Between:

Eric Beaudan Applicant

— And —

Alison Phillips Respondent

Before: Justice Victoria Starr

Heard on: February 6 and 7, 2017

Reasons for Judgment released on: February 10, 2017

Counsel:

• Johnathan Stankewicz, counsel for the applicant
• Susan Kania, counsel for the respondent, did not participate

VICTORIA STARR J.:

INTRODUCTION

[1] This is the court's decision with respect to a motion to change brought by the applicant (father) Eric Beaudan, and which proceeded by way of uncontested trial.

[2] The respondent (mother), Allison Phillips, filed a Writ of Seizure and Sale with the Sherriff to enforce arrears of child and spousal support owed under the parties' separation agreement dated February 19, 2008. As at November 14, 2014, the total arrears claimed as owing by the father was $205,265.62. Of this total $124,020 represented child and spousal support arrears. The balance is interest.

[3] The father denies that he owes or ought to owe anything. He seeks certain declarations and an order, inter alia, retroactively varying his child support obligation and rescinding all arrears including interest.

[4] This matter proceeded by way of uncontested trial because the mother's claims were dismissed as abandoned on July 4, 2016, and her subsequent motion to have that order changed (set aside) and for this matter to return to proceed in the ordinary course was dismissed.

[5] The issues this court must decide are:

a. Is this an appropriate case for the court to retroactively vary child support and if so, as of what date, and what is the father's new support obligation?

b. Is this an appropriate case for the court to rescind or reduce child support arrears, and if so, what should arrears be fixed at?

c. What is the father's ongoing child support obligation?

d. Should this court order that a parent's consent to contribute towards a s.7 expense shall be required if that expense is to be shared?

e. Is this an appropriate case for the court to rescind or reduce spousal support arrears, and if so, what are the arrears, if any?

f. Should this court declare the mother's Statement of Money Owing, to be inaccurate and rescind the Writ of Seizure and Sale?

g. What costs, if any, should the mother be ordered to pay to the father on account of this motion to change?

[6] The deep issue in this case is where the responsibility for accumulated arrears lies and how, as a result of that responsibility, the arrears should be treated.

BACKGROUND

Material Reviewed by the Court

[7] In addition to receiving brief oral evidence from the father on the day of the hearing, the court reviewed the father's Affidavit for Uncontested Trial sworn February 1, 2017, (a two volume affidavit including exhibits), the various records and documents of the mother included as exhibits to the father's affidavit (i.e. her financial statement sworn December 19, 2015, and income tax returns), the mother's response to motion to change sworn December 9, 2015, and the two affidavits sworn by her and filed for use at the 14B Motion to set aside: one sworn by her on February 3, 2017 and the other sworn by her on February 6, 2017.

[8] The mother's response to motion to change affidavit is a pleading/affidavit prepared and filed at a time when the mother was represented by counsel. The response to motion to change is sparse with the only substantive facts alleged being:

a. Troy is not independent. He continues to live with the mother and to rely on her for support. Troy will be returning to full-time school in January 2016;

b. The father has not completed paragraph 10 of his change of information form where it asks for the amount of the arrears (this is not exactly true as he put TBD).

c. She deposes that "he is completely aware of the fact that he has substantial arrears" and that she was forced to obtain a judgment against him in this court regarding the arrears. The arrears total $124,020 and interest continues to accumulate on that amount; and,

d. She denies the facts set out in paragraphs 16 – 24 of the father's motion to change (which I take to mean his change of information form as there are no paragraphs 16 - 24 in the motion to change form). The substantive paragraphs are 16 and 24 and they deal with the following:

i. His claim that his employment with Rogers was terminated in or around October 2009 and his income decreased substantially as a result and impeded his ability to pay support;

ii. His claim that Troy turned 18 on March 16, 2013, and failed to graduate from high school. He ceased attendance at school on a full-time basis on or around June 30, 2013. Troy ceased being a child of the marriage for child support purposes early to mid- (an order was made to this effect on consent on May 4, 2016).

iii. Paragraph 24 merely sets out the order that the father was seeking.

[9] The evidence of the father is very, very detailed and thorough. He had documentary evidence to support all amounts he claims he paid to the mother or on behalf of the mother in lieu of support from the date when the separation agreement was signed onwards. Counsel also submitted a factum and sizeable brief of authorities. Counsel also addressed the many questions the court had about the evidence and his argument.

[10] The uncontested trial took one and a half days to complete.

THE GENERAL LEGISLATION AND LEGAL FRAMEWORK

[11] The sections of the Family Law Act, R.S.O. 1990, c. F.3 (the Family Law Act) that apply to this motion to change are:37(1),(2), (2.1), and (2.2). The powers of the court are set out in s. 37(2) and (2.1):

Powers of court: spouse and parent support

37(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependent's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.

Powers of court: child support

37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

RETROACTIVE CHILD SUPPORT

The Evidence Relevant to all Sub-issues

[12] The parties separation agreement (dated February 19, 2008) requires the father to pay $1800 per month in child support for the parties' two children: Troy Alexander Beaudan, born March 16, 1995 (now 21) and Ashley Anne Beaudan, born June 1, 1999) (now 17 years old). Child support payments were to begin on March 1, 2008.

[13] The separation agreement does not indicate how the parties determined that $1,800 was the appropriate level of support payable. There is no mention of either parties' income. It does however indicate that the parties were also agreeing to joint custody and that their time with the children would be divided on a 60\40 basis in favour of the mother on terms to be agreed upon.[1]

[14] It is clear from the preamble of the separation agreement that the agreement was intended to be replaced by a comprehensive separation agreement and that until such time, the agreement would remain in full force and effect unless otherwise amended by the parties. There is no clause that requires amendments to be in writing.

[15] I find that the parties subsequently verbally agreed to a temporary adjustment in the level of child support payable. The father gave evidence of three phone calls that he had with the mother about his child support obligation between 2009 and 2013. The first phone call was after the father lost his job. During that call he told her of his termination and that as a result he would not be able to pay the $1800 a month due in child support but would pay what he could, when he could. He told her that once he was on his feet again and could afford the payments, he would resume paying the full amount, the $1800 a month due under the agreement. The mother, he says, told him that was fine; she did not need the money as she had remarried to a wealthy man, and did not need the money.

[16] The second phone call took place at some point after the father got his new employment, which he deposes was in April 2010. His evidence is that he spoke to the mother and told her that it was temporary work, a six month contract, but that he thought that it could lead to permanent work and that it could lead to him earning a significant income once again. He told the court that the mother said that it sounded like a good opportunity to pursue and essentially wished him luck. He again assured her he would pay what he could afford when he could and would resume paying the $1800 once he could afford to. She again said this was fine.

[17] The father described his relationship with the mother between 2008 and 2012 as positive, very cordial. He said that this changed once he remarried and moved with his wife out of the common neighborhood he and the mother had been living in (occurred in June 2013). This evidence accords somewhat with the mother's affidavit evidence. There she states that she has no way to contact him as he asked to stop being contacted in 2012.

[18] The third phone call he says took place around the time when Troy turned 18 (March 16, 2013). The father says that he told the mother that he did not think he needed to continue paying support for Troy because Troy had turned 18 and his understanding of the law was that he was no longer required to support him. His evidence is that the mother said she did not think this was the case. As I have noted, the mother states in her affidavit that she had not talked to him since 2012. There is thus reason to wonder if this conversation ever happened or if perhaps, the mother has her years mixed up. What is clear from the father's evidence is that the mother did not agree that child support should be reduced.

[19] During his oral evidence the father gave several different answers when asked when this third call took place. I did not get the sense that he was lying or trying to mislead the court but rather that he got confused and his memory was not clear. In any event, it does not matter whether the phone call took place or not. What I find material, is the fact that they both agree – the mother did not agree to terminate support for Troy or to accept any reduced support; and, the father unilaterally decided to do what he wanted. That is, he stopped paying child support for Troy (the last payment of $1800 was made in February 2013), and starting March 1, 2013, he began paying ½ of the amount of child support due under the separation agreement - $900 a month – as support for his daughter, Ashley.

[20] In June 2013 both children began residing with the mother full-time. Contact between the children and the father became sporadic according to the father and ended altogether at some point in 2014. The latter from the mother's lawyer is, according to the father, the next time he heard anything from the mother. Again, this accords with the mother's evidence.

[21] I find that there was essentially radio silence between the parties from either 2012 or 2013 onwards – until the father received the letter dated March 4, 2015, from the mother's lawyer. That letter advised the father that he was in breach of the February 19, 2008 separation agreement, that there was $124,020 in unpaid support arrears plus interest, and that pursuant to the judgment obtained in the Ontario Court of Justice a Writ of Seizure and Sale had been obtained and registered with the Sheriff for the City of Toronto. A copy of the writ was attached and showed that the total amount of $205,265.02 was owing as at November 14, 2014 with interest to accumulate thereafter at the rate of 18% per year beginning on that date.

[22] The father's evidence is that he immediately wrote to the mother's counsel to protest (a copy of the letter was provided to the court and is dated April 20, 2015). Thereafter he retained counsel and there were some negotiations. Significant efforts were made to obtain all of the backup documents the father needed to prove his case. This took some time as the father had to obtain records dating as far back as March 2008. Once everything was available, the father started these proceedings. That was in November 2015. The backup documents were served with the father's motion to change.

[23] The following additional findings can be made based on the evidence before me and which are relevant to the issues to be decided:

[24] There is no annual exchange of financial disclosure required under the separation agreement and no annual review or annual re-calculation clause;

[25] Prior to 2015, neither party ever asked for or gave the other a copy of their income tax returns or notices of assessment;

[26] Prior to 2015, the father provided no financial disclosure to the mother to evidence his termination of employment or severance package and terms; nor, did the mother ever request to see such documentation;

[27] The mother has never asked for nor has the father provided detailed information and documentation relating to his consultant work (such as an offer of employment, his consultant - employment contract, details of his remuneration, etc.).

The Father's Position

[28] It is the father's position that his "circumstances changed as a result of the change of his employment status and financial means as at the time of the termination of his employment with Rogers forward, and followed by the securement of employment with Odgers Berndtson and further fluctuation of salary between 2010 and present". His support obligation should also be retroactively changed to reflect the fact that his obligation to support Troy ended on June 30, 2013, and because the children's residency changed from that of shared residency to residing with their mother as at around June 2013, which represents a change in the children's circumstances.

[29] He asks this court to change his support obligation starting October 2009 (although this is not certain as he also referred to a start date of January 2010) and to base his support obligation on the Guideline Table amount that corresponds to his Line 150 income and either one or two children, depending on the date. He asks the court to go back and do this for each of the last eight years. Based on such a recalculation, he submits that he has overpaid child support by $19,848.00. In the alternative he asks this court to rescind all or part of the arrears, or, at least reduce them.

[30] I am satisfied that the figures used for each party's incomes, the Guideline amounts, the set off amounts, and as to what the father ought to have paid and actually paid are all accurate.

The Law and General Approach

[31] Section 14 of the Child Support Guidelines, O Reg 391/97 (the Guidelines) provides that one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.

[32] In Gray v. Rizzi, 2016 ONCA 152, the Ontario Court of Appeal states at paragraph 39, that a material change in the financial means or circumstances of a payor can constitute a change in circumstances for the purpose of a motion to change child support or spousal support.

[33] In Gray v. Rizzi, the Ontario Court of Appeal states at paragraph 59, that "where a payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. The court is not tied to any particular approach. The court may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears.

[34] At paragraphs 43, 45, 55-70, the same court states that once the threshold for a variation of child support has been met, the next question is how to approach the retroactive variation in a motion to change. The court adopted the analysis in the case Corcios v. Burgos, 2011 ONSC 3326 (Ont. S.C.J.), which modified the S.(D.B.) v. G.(S.R.), 2006 SCC 37[2] principles to a motion to change based on a payor's reduced income. The court states that when applying the adapted S.(D.B.) principles to retroactively vary child support, one must keep in mind the best interests of the child the goal is to ensure that the children benefit from the support they are owed when they are owed it.

[35] At paragraph 60, the court states that while there is no fixed formula a court must follow, the following factors act as a guide to the court in determining whether to grant retroactive relief, to determine the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory, or judicial.

2. The ongoing needs of the support recipient and child.

3. Whether there is a reasonable excuse for the payer's delay in applying for relief.

4. The ongoing financial capacity of the payer and his ability to make payments towards the outstanding arrears.

5. The conduct of the payer including whether the payer has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears.

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears.

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears or by an order requiring the payment of substantial arrears.

[36] The same court at paragraph 64 stated, "with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply."

[37] In deciding the issue of retroactive relief I have asked and answered four questions:

a. Has there been a change in circumstances sufficient to changing the support obligation?

b. Is this an appropriate case to grant retroactive relief?

c. If it is, what is the effective date of notice / the date of retroactivity?

d. What is the quantum of relief?

[38] I address each of these questions below.

Question 1: Did a change in circumstances take place during the time that arrears were accumulating which rendered the father unable to make child support payments for a substantial period of time, or which would justify a change in the level of support?

[39] I find that there have been several changes, any one of which could justify rescinding arrears or retroactively changing the level of child support. These are:

a. The material change in the father's financial circumstances when he was terminated from employment and his severance terminated on February 8, 2010;

b. The father's change in income once he began working as a self-employed consultant contracted exclusively by one client and which occurred in April 2010;

c. The change in the children's residential schedule sometime in June 2013;

d. The change in Troy's status: Troy ceased to be a child of the marriage on June 30, 2013 for child support purposes. An order has already been made terminating the father's obligation to pay support for Troy effective June 30, 2013.

Question 2: Is this an appropriate case to grant retroactive relief?

[40] As noted earlier, to decide if this is an appropriate case to award retroactive relief, I must consider the 7 factors set out by the Ontario Court of appeal in Gray v. Rizzi.

The nature of the obligation to support, whether contractual, statutory, or judicial

[41] In the present case the nature of the obligation started off as contractual, but became judicial (as if it were an order of the court) upon the mother's filing of the separation agreement with the court on October 27, 2014 pursuant to s.35 of the Family Law Act.

The ongoing needs of the support recipient and child

[42] The father did not suggest that Ashley does not have ongoing needs. The father did argue that Troy does not have ongoing needs and would not benefit from any repayment of arrears. He also argued that there is no evidence that the mother has incurred debts or some deprivation because of the non-­ payment of support for which compensation would be now equitable. I am not persuaded by the father's arguments.

[43] I find that it is more likely that Troy will benefit (both directly and indirectly) from any payment by the father on account of arrears because it is more likely than not that he still relies on and is dependent on his mother financially. I make this finding based on this evidence:

a. He still lives in her home;

b. He is only 21;

c. Although he may work full time, the chances that he is paid a significant wage are low, particularly given his young age, the fact that he is unskilled and working in a warehouse, and has not completed grade 12 yet; and,

d. His mother's evidence (see her affidavit sworn February 3, 2017) is that: she still incurs expenses for all of the children (which includes her husband's children); and, (see her affidavit sworn February 6, 2017), she has not gone on vacation in three years in order to "provide the children with the support they require and a secure home".

[44] With respect to the ongoing needs of the mother, counsel pointed out that there is no evidence before the court that the mother incurred debt or suffered deprivation for which compensation would now be equitable. He also took the court to the mother's financial statement sworn December 17, 2015 to demonstrate that there is no evidence of ongoing need as the mother's means exceed her expenses. He points out that in addition to her own income (which her income tax returns evidence a range of income over the past three years from $42,000.00 to $73,063.00), she states in her December 17, 2015, financial statement that her husband earns $100,000 a year. They also own a $700,000 home and about $16,000 in savings.

[45] Despite this evidence, I find that it is quite possible that the mother does have ongoing need and that she may very well have incurred debt or some deprivation because of the non-payment of support for which compensation would be now equitable. I make this finding for these reasons and based on this evidence:

a. Her financial statement indicates that she and her husband are supporting four children in addition to themselves;

b. It also shows she has credit card debt of $33,854.15 and approximately $191,000 in the form of lines of credit or other loans from a bank or finance company;

c. Further, in her affidavit sworn February 6, 2017, the mother indicates that her financial circumstances changed dramatically over the course of 2016 – since she swore the 2015, financial statement counsel has relied on. For example, she says in the spring of 2016 her family's circumstances changed for the worse and she found herself unable to pay a number of expenses and unable to pay her lawyer. Her landline was cut off. She also indicates that her husband's business is not doing so well; that she and her husband had to use the equity in their home to purchase shares to save the business; and, that the interest on the shares alone along with their household expenses and expenses for their children were very difficult to manage. She deposes that the situation is not going to improve until the company recovers from the events that negatively affected it, and they begin to make money again. She goes on to say that she is now working for her husband's business, but without payment, as they cannot afford her salary until the company begins to be profitable again.

[46] Counsel for the father argued that I should put little weight on the mother's affidavits, for these reasons: the affidavits consist of bald assertions of fact with no backup documentation; the mother has not filed a further financial statement in these proceedings; and, the mother's evidence has not been subjected to cross-examination. I am not prepared to place no wait whatsoever on her evidence particularly, when the reason the mother cannot be cross-examined is because the father was successful in thwarting her alternative request to be allowed to participate in the trial for the purpose only of making submissions and putting in evidence to challenge the father's evidence.

[47] I have not placed great weight on her affidavit evidence but the weight I have given it is sufficient for me to find that the evidence the father wishes to rely upon no longer reflects the mother's financial circumstances and is thus, no longer reliable. Further, as the only form of evidence I have about the mother's current circumstances, is what she states in her most recent two affidavits which suggests both need and some deprivation], I conclude that the mother likely has ongoing need related to her ability to support the children and that some form of equitable compensation could relieve some of this need and improve her ability to support the children, and particularly, Ashley.

[48] What I cannot do because of the lack of reliable evidence, is get a sense of the degree of any benefit Troy may derive, or the level of equitable compensation the mother may be entitled to. The fault for this lies at the feet of the mother.

Whether there is a reasonable excuse for the payer's delay in applying for relief

[49] I find that the father did not delay in seeking relief with respect to the mother's claim that he is in arrears. There was no possible way that the father would have known that the mother had any intention to enforce the agreement as she did not do so for approximately 6½ years post first default, and did not advise the father of her steps to enforce the agreement for an additional 5 months after registering the agreement with the court and obtaining the Writ. I accept this explanation as it pertains to why he did not deal with the issue of his arrears sooner.

[50] Once he found out about the mother's claim, he responded very quickly. He wrote to the mother's counsel to protest, he forthwith retained counsel, had his counsel communicate with the mother's counsel, and submitted a comprehensive request to his financial institution for disclosure dating back to February 2008. He received the requested disclosure over a period of six months, at which time his counsel prepared the court materials necessary for litigating the matter. The father is absolved of any fault in dealing with the arrears, once he learned of the mother's position in March 2015.

[51] The father has not just advanced a claim to rescind child support arrears, however. Had he done so, that would at least be consistent with his evidence and rationale for not doing anything earlier – "I thought we had a deal that I would pay what I could afford until I got on my feet again, and paying what I could of the $1,800 due each month; and I did that". Had he only sought to reduce or rescind arrears I might have found that he is like the payor in the case of MacKinnon v. Duffy. In that case, the court found that while was unwise and improper to leave the matter as it was left, the payor's actions were not arbitrary and deliberate, but based on blissful ignorance. The court found that the payor's conduct was not high handed, he passively, not actively, avoided his support obligations and was not guilty of bad faith. His belief that he escaped the obligation to pay support was not wholly unfounded.

[52] The father in this case has gone much farther and in doing so has yielded the moral high ground; undermined the righteousness of his indignation. The relief he seeks - a retroactive downwards adjustment of his obligation to pay support going back to 2008, 2009, or 2010, so as to end up in a place where the mother owes him $19,848, is completely inconsistent with his justification for not addressing the issue of arrears.

[53] With respect to his delay in advancing his claim for retroactive adjustment of his obligation to accord with the Guidelines, now, rather than when his income changed in 2010, I find his delay and conduct almost as egregious as the mother's. Like her, he gave no notice of his intent to assert such a claim for roughly 6.5 years. Like she did to him, he likewise lulled her into thinking that all was just fine and that all he wanted, (until March 2013 when he asked for support for Troy to be terminated) was to follow the separation agreement and the bargain he says they later made. Like the mother, he has offered no explanation for the delay.

[54] In fact, it's pretty obvious from the evidence and from his inaction that he would not have advanced such a claim but for the mother's actions. He would have blissfully gone along satisfied with his obligation under the separation agreement to pay $1,800 as long as he could adjust it from time to time as he needed. [3] It is obvious from his inaction that he would have gone on as he was until support for Ashley terminated. In the circumstances it would be fundamentally unfair to allow him to advance a claim that would, in effect, result in the mother repaying him $19,848.

[55] The father has also failed to explain why he delayed in seeking an order terminating his obligation to support Troy. His position, even in 2013, was that it terminated in March of that year. It turns out that he was wrong about that. He knew that the mother did not agree to the termination, yet he went ahead and unilaterally reduced his support obligation. He had no authority to do this and he did so prematurely. The separation agreement clearly stated that it would only be amended by further agreement and that until such agreement, it remained in full force and effect. The separation agreement did not specify when support for a child ends. We now know that his obligation ought to have terminated on June 30, 2013. He knew that the mother did not agree to amend the agreement, why did he do nothing for another 3 years? Why did he delay in coming to court to ask for the relief? He does not say.

The conduct of the payer

[56] With the exception of the high handed, questionable and unexplained conduct I have just highlighted, I find the father's conduct to have been exemplary. He is not a shirker of his financial obligation to support his children. He appears to me to be a man of integrity.

[57] In this regard I point out the following:

a. He has not had contact with his children since 2014, yet he still pays his child support, as he should;

b. With the exception of 4 months in all this time when he did not pay anything, he has ensured that something in the way of child support has been paid, each and every month.

c. Although he could have taken advantage of the mother's agreement that he could pay what he could of the $1,800, by paying nothing or by making minimal payments each month, he did not do so. Instead he paid a significant portion of the $1,800 due each month and for more than half of the months between 2009 and 2016, paid the $1,800 due. For example, while the father did not pay the full $1,800 in either February, March, or April 2010, he resumed his payments of $1,800 a month in May 2010. Further, with the exception of the months of August and September 2010, he paid the $1,800 religiously that entire year. Also, although in 2011, there was not a single month when he paid the full $1,800, his payments ranged between $800 and $1200 a month. Further, in 2012, he paid $1,200 for four months, $1800 for five months, and $900 for the remaining 3 months. Finally, for the first two months of 2013, he paid the full $1,800.

d. At no time between February 8, 2010 (when his severance terminated), and December 30, 2016 (shortly before this hearing), has the father's income ever been at a level where he would have been required to pay $1800 in Table support for either two children or one alone. The highest he would have paid for two children based on his Line 150 income during that period would have been $1686. Yet, in many, many months, he paid the full $1,800.

e. When he lost his job, he did not delay. He secured a six month contract working as a consultant less than 60 days after his severance pay terminated (secured it in April 2010). Although it started off as temporary contract work at a level of income far below what he had been historically earning, the father, it turns out, was absolutely right about his hunch that this would turn into lucrative full time permanent work. This has ultimately worked out to the benefit of his children, who, received more in child support than they would have had their father been timelier and come to court to vary his support obligation in October 2009, when he was terminated.

f. He provided all of the disclosure the mother would need to assess the merits of his claim, at the time when he started these proceedings. There was no need for nor did she ever make any request for further financial disclosure.

g. He tried to work cooperatively with the mother to address the child support issue;

h. While he was wrong about support for Troy terminating in March 2013. It did terminate by the end of the grade 12 year, so he was not that far off legally speaking.

Delay on the part of the support recipient

[58] The father referred the court to several cases which stand for the principle that delay in seeking to enforce an order may defeat an order. This is because at some point the delay becomes a signal of acquiescence to the payor's conduct, or, either caused the payor to alter his position in reasonable reliance on the recipient's acceptance of the status quo or permitted a situation which it would be unjust to disturb. [see MacKinnon v. Duffy, Hutcheon v. Bissonnette and Ministry of Community and Social Services, 2016 CarswellOnt 6562, 2016 ONSC 2785, and Pietrocupa v. Pietrocupa, supra.

[59] In this case, I find the mother's 6½ year delay from the date of first default of child support and 5½ year delay after the date of first default of spousal support, was unreasonable.

[60] With respect to spousal support, the date of last default March 15, 2013, yet the mother still waited 1.5 years to file the agreement for enforcement, even though she only received one payment for spousal support in 2009 in the amount of $5,000.00.

[61] The mother never provided any explanation to this court with respect to the delay and abandoned her claims.

The ongoing financial capacity of the payer and his ability to make payments towards the outstanding arrears; and, any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears or by an order requiring the payment of substantial arrears

[62] These two considerations, in this case, can be analyzed together.

[63] Counsel argued that the father does not have the capacity to make payments towards any outstanding arrears and that forcing him to pay the arrears now would cause him and his family financial hardship. He pointed out that the father's wife is in school and earns only $60,000. He suggested that the income available in the father's household was not sufficient to meet the household's expenses. The court is not persuaded by this argument at all.

[64] I find that the father does have the means to pay any arrears of support and that doing so would not cause the father financial hardship particularly, if he is given some time to pay them.

[65] In reaching this conclusion the court compared the father's two financial statements sworn almost 12 months apart (one sworn October 27, 205 and the other sworn November 22, 2016). After some discussion with counsel regarding necessary adjustments to the way in which the father has shown the income available to fund household expenses, counsel conceded that the father's household budget more likely operates on an annual surplus of about $16,872. Second, the father's budget has many luxuries included. A tightening of the financial belt, would free up more disposable income. Third, the father has liquid able assets in excess of $100,000.

[66] Finally, I also considered the father's sizeable income, particularly over the last three years. In that regard I note his income as follows:

i. 2013 - $122,065.00;

ii. 2014 - $150,281.00.

iii. 2015 - $130,999.00.

Conclusion

[67] I find that this is an appropriate case for the court to grant relief with respect to the arrears of child support only. In making this finding I have given the greatest weight to:

a. My very positive findings with respect to the father's conduct in terms of his payment history and in not shirking his obligation to support his children;

b. My finding that the father did not delay in dealing with the arrears issue once he became aware of the mother's claims and thereafter did all that he could to try and resolve the issues and move them forward to timely disposition;

c. The father's failure to explain the 6.5 year delay in seeking a retroactive variation of his support obligation;

d. The mother's lack of explanation for the 6.5 year delay in enforcing arrears;

e. The need to adjust arrears to reflect that the father's obligation to pay child support for Troy ended, by order of this court, effective June 30, 2013;

f. The father's ability to pay arrears and the lack of minimal financial hardship this would cause him.

[68] I am persuaded that this is an appropriate case to rescind or reduce arrears.

Question 3: What is the Effective Date of Notice / Dates for which the arrears should be reduced?

[69] As the Court of Appeal directs in Gray v Rizzi, if the court finds that retroactive reduction of child support is appropriate, the court must determine the date from which the reduction should take place and the extent of the reduction. Following S. (D.B.), a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given. [See paragraph 61]. Further, the court states at paragraph 62 of its decision:

62 Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide "reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately." As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred.

[70] In this case the father gave notice of the likelihood that he would fall into arrears when he first spoke to the mother to let her know that he had lost his job. Second notice was given when he started his new job. In between these two dates the father failed to pay the full $1,800. This was February 1, 2010. This is a third occasion when the mother would have been put on notice. As this is the only date of the three potential dates that is known, I have set this as the date of effective notice viz a viz arrears that accumulated while the parties verbal agreement was in effect.

[71] I also have no difficulty finding that both parties gave notice of how they intended to treat the shortfall in the $1800 due in child support from March 1, 2013 onwards, by March 2013. The father also reduced his support payment on March 1, 2013 to $900 to reflect his position that he should only pay ½ of the $1800 due under the separation agreement. As support for Troy continued to be payable until terminated on June 30, 2013, the date of effective notice viz a viz arrears relating to Troy's support is June 30, 2013.

[72] As I have said, the father asks this court to go back farther. He asks for a reduction of his support obligation to match his reported income and to accord with the Guidelines, all the way back to October 2009 or January 2010. There is no evidence of any notice to the mother of his intention to advance such a claim prior to the start of these proceedings (November 2015). As such I find the effective date of notice viz a viz this claim is November 2015.

Question 4: What is the appropriate quantum of relief?

[73] At paragraph 64 of the Gray v Rizzi decision, the Ontario Court of Appeal clearly confirms the third step in the stages of the S. (D.B.) test. That third step is for the court to determine the quantum of any reduction in arrears and of any retroactive child support order.

64 Finally, "with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating."

[74] In setting the quantum of arrears for the period of June 30, 2013 to December 31, 2016 (the period where the father should only have been paying support for Ashley), I have used the Guideline Table amount for one child based on the father's income in 2013, 2014, 2015 and 2016. I have followed this approach because the $1800 payable under the separation agreement is for two children. I also did so because using the $900 the father paid would result in a level of support for Ashley that falls below the Guideline Table amount in some instances. Using that benchmark, and, the amounts he has proven he paid during that period, I set his arrears for this period at $10,626.

[75] To determine the actual arrears that accumulated between January 2010 and June 30, 2013, I used the total due under the parties' separation agreement and deducted the amounts the father has proven he paid during that period. The shortfall was about $24,400. I next considered my finding that the parties agreed that the father would pay whatever he could whenever he could until he got on his feet again, and then resume paying the $1,800 due under the separation agreement. I do not accept that the father was not on his feet again until June 2013. I considered that he resumed paying $1,800 in May 2010 and that he had by that time, secured his 6 month contract position and that as such, the mother would likely infer from these two events that he was "back on his feet again". I also considered that the father's contract was at that point temporary and that he told the mother this in his second conversation with her, when he again confirmed the earlier agreement would continue.

[76] The father gave me no date by which his position became permanent or when he considered himself to be "on his feet again". This was problematic because it gave me no benchmark to gage how many months' of arrears to grant him relief for. I have considered his payment history during this period and while there are many months when he paid the $1,800 there are also many months when he paid less. The inconsistency in amounts paid continued until March 2013. I also looked at the increases in the father's income and the closer the father came to paying the full $1,800 in each subsequent year. Having considered all of these circumstances, I find that the father was on his feet again by December 31, 2011. I have reduced the arrears that accumulated between January 2010 and December 31, 2011, by $8,600, and set those arrears at $15,800 [$24,400 less $8600].

[77] There is one last matter with respect to the arrears claimed by the mother that needs to be addressed and that is the need to determine the arrears owing for 2008 and for 2009. In the Statement of Money owed filed by the mother she claimed that in 2008 the father paid only $6,380.00 in child support that year. The father's evidence, supported by documentary proof of the payments, is that he paid $12,930.00 in child support plus an additional $4,815.01 by way of verbal agreement with the mother that he pay for her car payments and car insurance payments in lieu of a portion of the child support payments due. The evidence confirms the payments were made. The total of his child support obligation for 2008 was $18000. He paid (including car lease and insurance payments in lieu) a total of $17,745.01. His arrears of child support for that year are fixed at $254.99.

[78] In 2009 the father's evidence is that he paid a total of $16,300 in child support. The total due was $21,600. The shortfall is $5,300.

Conclusion

[79] For all of these reasons I dismiss the father's request for a variation of his support obligation to accord with the Guideline Tables, but I grant his request for a reduction of child support arrears. I fix child support arrears as at December 31, 2016 at $31,980.99 ($10,626 plus $15,800 plus $254.99 plus $5,300).

RESCISSION OF SPOUSAL SUPPORT ARREARS

The Evidence

[80] The parties separation agreement required the father to pay the mother spousal support in the sum of $10,000 per year for a period of five years commencing March 15, 2009, and on March 15 in each following year to and including March 15, 2013. The separation agreement does not indicate the basis of the mother's entitlement. That is, it does not say whether the basis was contractual, compensatory, or needs based. The separation agreement does not indicate the mother's income at the time.

[81] The father made one lump sum payment only. He paid $5,000 in 2009.

[82] Unlike the situation with child support, there is no evidence that the parties ever discussed the subject of spousal support or the father's non-payment of it after the separation agreement was signed. The mother never demanded payment and took no enforcement measures until October 2014, 5½ years after the date of the first default.

The Father's Position

[83] The father's position is that all arrears of spousal support should be rescinded because of the mother's lack of action over time coupled with the passage of some 5.5 years since his first default in payment of spousal support. Essentially, he claims that her actions caused him to believe that she had acquiesced to his breach of contract.

The Legal Test

[84] In support of his position the father relied on, among other cases, MacKinnon v. Duffy. In that case the court states that, "procrastination in enforcing arrears under a spousal support order is treated differently by the courts than in the case of arrears under a child support order because spousal support orders are made to satisfy a financial need of the payee spouse and there is good reason for the court to be vigilant against hoarding. Simple fairness or unfairness is the test. In fairness, what portion, if any, of the spousal support arrears should be forgiven?"

ANALYSIS

[85] In this case I have decided to grant the father's request, in part. I have rescinded ½ of the $45,000 that remains outstanding, not including interest. I have thus set his arrears at $22,500. I have made this decision based on several considerations: First, I have considered the jurisprudence which clearly suggests that some reduction is required. I also considered all of my findings above with respect to the factors that must be considered and weighed in deciding whether it is appropriate to grant retroactive relief. Third, I have considered and given some weight to the father's argument that the mother did not and does not need the support as she remarried in 20111 to a wealthy man.

[86] I am not prepared to rescind all of the arrears for these reasons: First, while I agree that 5.5 years lapsed from the date of the first default before the mother took any enforcement action, the mother's delay in enforcing the arrears was only about one year from the date of the last default. This reduces the significance to be afforded to delay in enforcement.

[87] Third, the father's own actions likely influenced the mother's delay in pursuing enforcement sooner. By this I mean, the father told the mother in 2009 that he had lost his job and could not afford to pay the full child support amount due pursuant to the separation agreement. He told her this again in 2010 when he told her that he had obtained temporary work and would still need time to develop this potential and to get on his feet. It stands to reason that the mother, who had also told him that she did not need his money at the time as she had married a wealthy man, was content to also give him some additional time to pay what he owed her in spousal support. I simply cannot find that the operative cause of the accumulated arrears is solely the fault of the mother.

[88] Fourth, I also reject the father's suggestion that the sole basis for the mother's entitlement when the parties entered into their agreement was need. There is no real evidence of this. In addition, based on the time sharing regime set out in the separation agreement and the fact that the children came to live with her full time in June 2013 and Ashley's young age at that time, the mother has born the greater responsibility for caring for them, particularly Ashley. Although not a strong basis of entitlement this post separation assumption of greater child care responsibility creates some measure of post separation entitlement to compensatory support.

[89] Fifth, while an adjustment to arrears seems fair, it would be unjust to allow the father, who is now on his feet again and financially able to honour his spousal support obligation to benefit from his deliberate and willful breach of contract. Unlike child support, his failure to pay what he ought to have paid seems to have nothing to do with the loss of his employment as his first default in payment occurred before he was terminated. To rescind all arrears would not only condone the father's highhanded and unjustified breach of the agreement but would allow him to profit from it.

CONCLUSION

[90] Ultimately the test to apply here is fairness and I find a complete rescission of arrears to be an unfair result. An equitable result is for the parties to share responsibility for the accumulation of arrears. The result that accomplishes this given the circumstances of this case, is for the arrears to be reduced by ½.

[91] For these reasons I grant the father's request to rescind arrears in part. I reduce and fix the arrears of spousal support as at February 10, 2017, at $22,500 (1/2 of the outstanding $45,000).

INTEREST

The Evidence

[92] The separation agreement also addressed the issue of what would happen in the event of default of child and\or spousal support payments. The agreement directs that in such an event the father shall pay to the mother interest on the unpaid amounts at the rate of 18% per annum, compounded semi-annually from the date of default. The father is also to pay the mother's legal expenses on a full indemnity basis for any costs she may incur in enforcing the support provisions of the agreement.

[93] A large part of the arrears of both child and spousal support claimed is made up of interest. The mother attached to her Statement of Money Owed, sworn February 14, 2014, detailed calculations of the arrears and interest she claimed was owing then. She calculated the interest using the rate of 18%. The total interest she claimed as owing as of that date was $81,245.62.

[94] The post judgment interest rate pursuant to the Courts of Justice Act for the period of 2008 through to and including the first quarter in 2017 has varied from year to year and quarter to quarter, however, the highest it has been during that period is 4.8% in the first quarter of 2008 and .5% in 2010.

[95] The father gave evidence about how it came to be that an interest rate of 18% plus the cost penalty came to be included in the parties' separation agreement. His evidence was that there was pressing need to get an agreement in place right away. The father needed to close on the purchase of his new home (which had not closed as scheduled for February 15, 2008 - the same day the sale of the matrimonial home closed - due to the lack of any signed separation agreement).

[96] He had had a lawyer but by the time the agreement was to be signed he was no longer represented. He did not think he needed one as the negotiations had been completed and all that remained was for the agreement to be signed.

[97] He received a last minute call from the mother and her counsel demanding that the clause regarding the interest rate and costs payable if the mother was forced to enforce be added. He was under pressure and agreed. He did not have independent legal advice with respect to the inclusion of this last minute term.

Father's Position

[98] The father is requesting that the interest on arrears of both child support and spousal support be rescinded in full.

Analysis

[99] The court has the discretion to relieve the father from the payment of part or all of any interest due on arrears of either child and spousal support pursuant to sections 37(2) (b) and 37(2.1) (b) of the Family Law Act. In this case I have decided to rescind the interest due on arrears completely. My decision is based on my assessment of what is fair, the general willingness on the part of courts not to order interest when arrears are being recalculated after a significant passage of time, as well as their general disapproval of penalty clauses in the guise of interest.

[100] For example, in Levesque v. Levesque, 2009 CarswellOnt 3079 and in MacKinnon v. Duffy and FRO, 2000 CarswellOnt 2752, the Ontario Superior Court of Justice dealt with situations not dissimilar to the instance case. In both cases the arrears were enforced but the court disallowed the interest as too much time has passed for the amounts outstanding prior to the date of the order.

[101] Counsel presented the court with a number of cases that stand for the proposition that the requirement of a payment to compel performance as opposed to a pre-genuine estimate of the liquidated damages which are likely to be actually suffered as a result of the breach, is a penalty in law. A penalty clause is one where the amount to be charged is "in terrorem" [see Dundas v. Schafer, 2014 MBCA 92, the Manitoba Court of Appeal at paragraph 54].

[102] In Dundas v. Schafer, the court also states at paragraph 55, that the question of whether a clause is a penalty depends on its construction and on the circumstances at the time of contracting. The court states that (1) the clause will be declared a penalty if the sum stipulated is "extravagant and unconscionable in amount when compared with the greatest loss that could conceivably be proved to have followed from the breach"; (2) if the contractual obligation is to pay a fixed sum of money by a fixed date and there is default, the obligation to pay a larger sum will be deemed a penalty; (3) there is presumption that a clause is penal when "a single lump sum is payable on the occurrence of one or more events some of which may occasion serious and others but trifling damage"; (4) "it is no obstacle to the sum stipulated being a genuine pre-estimate of damage that the consequences of breach are such as to make precise pre-estimation almost an impossibility."

[103] In Pacific Playground Holdings Ltd. v. Endeavour Developments Ltd et al., 2002 CarswellBC 126, the British Columbia Supreme Court dealt with a case in which it was to decide whether a default interest provision in a mortgage contract was a penalty contrary to the Interest Act. At paragraph 10, the court finds that the face rate of interest payable on the mortgage was 7% per annum. However, the mortgage had the following term, in addition to the prescribed standard mortgage terms: "any interest or principal not received by the due date as required under the terms hereof shall bear interest at the rate of 24%."

[104] In the same case, the court finds that the agreement was negotiated between two experienced businessmen on a relatively equal footing and the clause was intended to deter payment being allowed to fall into arrears. However, the court states that, that, by its very nature, makes the provision a penalty. Further, the increase in the interest rate is from 7% to 24%, could not be said to be a genuine pre-estimate of damages, particularly given that no justification was put forward for such a large increase.

[105] The court then considered the magnitude of the increase in the interest rate from the face rate to the default rate and found that when one balances the injustices of enforcing a 24% interest rate against the injustice of allowing a party who negotiated such a provision to pay interest at a lower rate than might otherwise have been negotiated if the penalty clause was not included, the balance is in favour of not enforcing the 24% interest rate.

[106] In the present case, a plain reading of the relevant paragraph of the parties' agreement suggests that the provision is a penalty clause. This is evidenced by the exorbitant interest rate compounded semi-annually. The inclusion of the provision that the father must pay for the mother's legal costs to enforce the support provisions of the agreement also suggests that the intent of the clause was to intimidate and/or frighten the payor and penalize him in the event that he defaulted in payment.

[107] There were also no real negotiations with respect to the inclusion of paragraph 4 of the separation agreement. The father received a phone call the day prior to the scheduled execution of the agreement from his wife whom requested that the paragraph be included. The father did not receive legal advice with respect to the inclusion of the penalty provision and signed the agreement the following day out of necessity. The necessity was that his lending financial institution required a separation agreement to be able to provide him with financing for his home purchase (of which the mother was well aware). The home had already been delayed from closing by two weeks from the original scheduled date because there was no separation agreement executed. The father felt he had no choice but to sign the agreement with the interest provision included in the agreement.

[108] The parties did not have any discussions regarding the reason for choosing an 18% interest rate nor did they have any discussions regarding tangible and intangible losses for any default in support payments; nor why the father should be responsible for the mother's legal costs if she must enforce the terms of the agreement. There was no genuine pre-estimate of damages that would flow from a default support payment. Interest rates were much lower in 2008 than the stipulated 18% rate. According to the Courts of Justice Act, interest rates were 5.0 to 6.0 percent in 2008.

[109] I find, that the term was a penalty clause, and the amount of interest due "extravagant" and "unconscionable" in amount compared to the greatest loss that could have flowed from any breach. These amounts are also larger than what is due in principal and as such must be deemed a penalty.

CONCLUSION

[110] In all the circumstances it would be unfair to include in the father's arrears any amount on account of interest or costs incurred by the mother to enforce the agreement. I have ordered that all interest on support arrears is rescinded.

RESCISSION OF WRIT OF SEIZURE AND SALE AND STATEMENT OF MONEY OWED

[111] It is the father's position that the Statement of Money Owed should be declared inaccurate and the writ of seizure and sale rescinded.

[112] I grant this relief because it is not accurate. The writ, which is based on inaccurate facts must be rescinded.

CONSENT AND FUTURE SECTION 7 EXPENSES

[113] The father asks this court to impose, as a precondition to a party's liability to contribute towards any future section 7 expenses, that the party's consent to the expense be secured first.

[114] Counsel indicated that this concern arises because Ashley may go on to post-secondary studies soon. In her February 2017, affidavit the mother also raises a concern about Ashley's potential upcoming post-secondary education expenses. It is one of the reasons she identifies as why she wanted to be allowed to participate in these proceedings. Clearly this is an issue that needs to be addressed.

[115] There needs to be a process for the parties to follow in order to avoid future litigation, or at least delay that may negatively affect Ashley's ability to attend university or college. I have, in the order below, set out such a process as well as a means for the parties to share information. I have also given directions for advance notice of a section 7 expense to be given along with a request for the other party's consent and set a timeline for requests to be responded to. I have also made allowance for a party to come to court to seek relief if consent is unreasonably withheld.

THE FATHER'S CHILD SUPPORT OBLIGATION MOVING FORWARD

[116] The father's line 150 income for 2015 was $130,999. The Guideline table amount payable based on this level of income and one child is $1122. I have ordered that the father pay this in ongoing child support for Ashley starting January 1, 2017 and on the first day of each month thereafter.

[117] The problems that these parties have encountered and which have resulted in these proceedings arise in part because of their failure to communicate and failure to ask for or give fulsome financial disclosure. I have made provision below for the annual exchange of financial disclosure and recalculation of the father's support obligation.

[118] I am concerned by the fact that no income information was available at this trial with respect to the father's 2016 earnings. As such, the level of support set above as the father's ongoing child support obligation starting January 1, 2017, is based on his 2015 income. To ensure that proper support is paid going forward, I have included in my order, terms to govern the process of setting the appropriate new level of child support each year, starting this year, 2017.

COSTS

[119] The court will hear the father's oral argument with respect to costs of this motion to change, on Friday February 10, 2017 at 2:30 p.m.

FINAL ORDER

For all these reasons I make the following final order.

THIS COURT ORDERS ON A FINAL BASIS THAT:

Child Support

1. The Applicant, Eric Beaudan, shall pay child support to the Respondent, Alison Phillips, for the child, namely, Ashley Anne Beaudan, born June 01, 1999; in accordance with the Child Support Guidelines, in the amount of $1,122.00 each month, based on the Applicant's 2015 line 150 income of $130,999.00, commencing January 01, 2017 and continuing on the 1st day of each month thereafter. The Applicant has already paid a total of $1,800.00 for the months of January and February 2017.

Arrears

2. Arrears of child support for the period of March 1, 2008 through to and including December 31, 2016 are fixed at $31,980.99. These arrears are to be paid by the Applicant to the Respondent as follows: $15,990 on or before April 1, 2017 and $15,990 on or before September 1, 2017.

3. Arrears of spousal support are fixed at $22,500 as at February 10, 2017. These arrears are to be paid by the Applicant to the Respondent as follows: $11,250 on or before April 1, 2017 and $11,250 on or before September 1, 2017.

Special & Extraordinary Expenses

4. Subject to the terms set out below, the parties shall share the net cost of Ashley's future section 7 expenses proportionate to their respective incomes (Line 150) for the previous taxation year.

5. Unless a court orders otherwise such as in the instance where consent is unreasonably withheld, if a party is seeking contribution to a special and extraordinary expense, advance written notice and consent of the other party shall be required for the expense to be shared. A party is not to withhold his or her consent unreasonably.

6. On or before May 1, 2017, the mother shall ensure that the following disclosure, at minimum, is provided to the father:

(a) Full disclosure regarding Ashley's 2016 and year to date 2017 income with the required documentation such as income tax returns, assessments, T4 slips, etc.

(b) whether or not Ashley has applied for or is eligible for student loans or other financial assistance;

(c) Ashley's career plan in order to know whether Ashley has some reasonable and appropriate plan;

(d) A proposed budget for Ashley's 2017 – 2018 post-secondary education costs as well as a budget setting out the cost to the mother of supporting Ashley, if Ashley will be living away from home to attend the program;

(e) Copies of any applications made to post-secondary institutions (program and residence) along with copies of any responses, including any acceptance letters received.

7. In addition to the forgoing, if Ashley accepts an offer of attendance at a post-secondary institution, the mother shall ensure that the father is provided with a copy of any and all correspondence sent to her or to Ashley in this regard, within 7 days of her or Ashley's receipt of same.

8. Each party shall respond to any additional requests for disclosure regarding child support or section 7 expenses from February 10, 2017, onwards, within 7 days of such a request being made.

9. If the parties cannot agree upon the father's obligation to pay child support and to contribute to the cost of any post-secondary education program that Ashley becomes enrolled in, the issue shall be decided summarily, on motion returnable before me on a date in August 2017. The parties are to follow these terms with respect to the motion:

(a) Evidence in-chief will be given by affidavit only;

(b) Each party will be permitted 2.5 hours within which to conduct any cross-examination on affidavit material filed, and for submissions.

(c) The parties are to cooperate with one another to secure a date in August 2017 for a 5 hour hearing on or before June 1, 2017.

(d) All affidavit material to be relied upon by either party are to be filed by no later than 4 days in advance of the hearing.

(e) The parties are to work together to come up with a schedule for the exchange of materials so that the final filing deadline can be met. If they cannot do so by June 15, 2017, ether may bring a 14B Motion on notice to the other and returnable before me, seeking an order directing the timetable for the exchange of evidence.

Termination of Interest Provision

10. Paragraph 4 of the separation agreement is deemed of no further force and effect. Any and all interest which accrued on the Applicant's support obligations pursuant to the separation agreement dated February 19, 2017, is rescinded in full, effective February 10, 2008.

Statement of Money Owed and Writ of Execution

11. The Statement of Money Owed dated November 14, 2014, in the name of Alison Anne Phillips, court file #504/14, shall be rescinded and shall not be enforceable.

12. The Writ of Seizure and Sale issued February 10, 2015, is rescinded.

Annual Disclosure and Recalculation of Child Support Obligation

13. For as long as the Applicant has an obligation to support a child under this order, the Applicant and Respondent shall, by the 15th day of May in each year commencing May 15, 2017, provide the other with full financial disclosure pursuant to Section 25(1) of the Child Support Guidelines, including:

(i) the documents required in s. 21(1) of the Guidelines that have not previously been provided;

(ii) current information about the child's special or extraordinary expenses;

(iii) details of child tax benefits or other child benefits received in the previous year and anticipated in the coming year; and

(iv) any other information needed to review child support;

14. For as long as the Applicant has an obligation to support a child under this order, the parties shall recalculate the Applicant's child support obligation each year on or before June 1st, starting June 1, 2017. Child support shall, unless a court orders otherwise, be based upon the Applicant's previous years' Line 150 Income, subject to any adjustments permitted under the Guidelines, and the new level of child support for Ashley shall commence on June 1st of each year starting June 1, 2017.

15. For as long as the Applicant has an obligation to support a child under this order, each party shall advise the other, in writing, of any changes in their employment, income or such other factor as may be relevant to the issue of child support within 15 days of such a change occurring as well as provide full particulars and evidence from his or her employer of the change.

Other

16. A separate Support Deduction Order shall issue;

17. Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the Party to whom they are owed.

18. If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.

19. This order bears the post judgment interest at the rate of 2 % per annum effective from the date of this order. Where there is default in payment, the payment in default shall bear the interest only from the date of default.

20. The judicial secretary is directed to email a copy of this judgment to both counsel and court services to mail a copy.

Released: February 10, 2017

Signed: "Justice Victoria Starr"

[1] Counsel argues that the $1800 is close to the set-off amount based on the parties' 2008 incomes and thus, that I should infer from this and the reference to a 60/40 split that the parties intended and agreed to set support based on set off. I have not drawn this inference and am not prepared to find that the parties ever agreed to use the set off approach to set the level of child support. That is not what the agreement says; I do not have evidence of either party's 2008 incomes other than the father's statement that his was $219,811 that year; and, I find it unlikely that the level of support would have been based on either party's 2008 income given that they signed the agreement in February 2008 and thus, could not have known their 2008 incomes yet. I also have no evidence about what income levels were used, what their respective incomes were in 2007, or about the reason why they settled on $1,800.

[2] S. (D.B.) v. G. (S.R.) (2006), 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, 61 Alta. L.R. (4th) 1, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, [2006] 2 S.C.R. 231 (S.C.C.)

[3] See his comment in his April 20, 2015 letter to the mother's counsel where he states: "I have been making my child support payments to Allison Philips since our separation agreement in 2008, and continue to do so via email bank transfers which your client is accepting every month – currently $900 for Ashley. Per the agreement, I stopped paying for Troy's child support since he turned 18 in March 2013" and "the one item on our Agreement which I contested is the Spousal support in the amount of $50,000 ....."