Court File and Parties

Court File No.: D90228/16 Date: May 16, 2017 Ontario Court of Justice

Between:

Laurie-Ann Francisco Applicant

— AND —

Stephen Francisco Respondent

Heard on: March 31, 2017 Submissions on: April 20, 2017 Reasons for Judgment released on: May 16, 2017

Counsel:

• R. Nusinoff, for the applicant(s)
• V. Pohani (submissions only), for the respondent(s)

Judgment

Justice D. Paulseth:

A. Overview

[1] This case is about a motion by mother to change the terms of a Separation Agreement (the Agreement) in order to increase child support, enforce special expenses, and extend spousal support paid by father.

[2] The parties are the parents of two children: Karen, born June 6, 1995 and Michael, born December 26, 1998. The parties became common law partners in 1986, married in September of 1990, and separated on August 30 of 2006. The children remained with mother.

[3] On April 3, 2007, the parties entered into a Separation Agreement dealing with child support, special expenses for the children, and spousal support. Custody and access were dealt with in a later separate document.

[4] The parties divorced on February 2, 2009.

[5] In 2003, mother was downsized from IBM, where both parents worked. She then obtained an education degree in 2005/06 and was on a supply teaching list for part time work when the parties separated. It was a stated assumption in the Agreement that her income for the purpose of child support was zero but for the purpose of spousal support her income was $40,000, described as equivalent to the salary for a first year teacher. She never attained that goal. Father's stated income in the Agreement was $138,000.

[6] Father continued to pay child and spousal support based on the amounts set out in the 2007 Agreement, despite his income rising over the years to over $150,000.

[7] Although the Agreement contained a dispute resolution process which included mediation and court, the parents never agreed upon an increase to child support and never agreed upon the father's contributions to the two children's post-secondary expenses. Karen is now in her fourth year of a degree at the University of Guelph and Michael is in his first year at McMaster.

[8] Mother fell upon hard financial times. By 2010, there was a hiring freeze for teachers in the two school boards for which she worked. She and the children moved into her parents' home in Milton which, fortunately, was large enough for all of them. Her health began to deteriorate in 2008 first with thyroid surgery, and then the onset of neck and back pain and finally depression and anxiety, which exacerbated all of her physical issues. She was intimidated by father's refusal to negotiate any financial matters without a full accounting of how she was spending the child support money. Her expenses are not large and she continues to earn about $25,000 a year in supply teaching.

[9] Both children have been affected by the financial situation of the mother. At times, father would refuse to see or speak with them because of the financial issues between him and the mother. They chose to stay at home for university and commute by car to their respective institutions in nearby Guelph and Hamilton. Mother purchased a car for Karen and leased a car for Michael. Father disagreed with this decision and has only recently paid $1600 towards the additional costs of university. Both children are very smart and hard-working. They have earned scholarships and bursaries. Karen also suffered from stress and anxiety issues. In her early university years, she had difficulty working in the summers but has now picked up part-time work at Pita Pit and contributes to her expenses. Michael did work part time in grade 12 and last summer before starting university. He, too, will continue to work in the summers.

[10] Both children have applied for and received loans and grants under the Ontario Student Assistance Program (OSAP). They have used the grant portions to pay towards the costs for tuition and saved the loan portion in a separate savings account so it is readily available for re-payment following the conclusion of their university careers. Karen has over $23,000 in loans in a savings account, ready to be re-paid when due. Michael has $4,541 in loans also in a savings account ready for re-payment when it is called due.

[11] Father has continued with his employment at IBM and received moderate raises every year. He has re-married and in 2012, he and his wife purchased a home for over 1.1 million dollars. His wife has a daughter from a previous relationship who lives with them and goes to university locally. Coincident with this Motion to Change, father and his wife transferred this home into his wife's name. He has contributed sizable amounts to the mortgage and repairs. That home is now mortgage free. He had over $550,000 in savings as of March, 2017.

[12] Mother is seeking child support based on the Child Support Guidelines (the guidelines), retroactive to 2007. She would like a fair contribution from father to the cost of university and some previous special and extraordinary expenses not covered by father. She wants the spousal support to continue past the agreed upon end date of December of 2017, as that agreement was based on the assumption she would obtain full time work.

[13] Father wants the mother's Motion to Change dismissed. When pressed by the court to offer something for the university expenses, father has offered to pay a share of the tuition and books but not the car expenses or food. I should note the only food cost requested was a small $200 meal plan for first year university for Karen. He wants the children to pay one third of the net costs after deducting the car, loans, grants and amounts drawn from the Registered Education Savings Plan (RESP). If they had gone away to school, he says he could have reduced his child support payments. He has not sought that relief in this proceeding. He did not agree to the other school expenses or driver training in advance, as required by the Agreement, so he will not pay. He did provide a cheque for just over $200 before the hearing began for the past medical and dental costs not covered by his benefits.

[14] Both parents are now 51 years of age.

[15] Mother wept quietly throughout the hearing. Father's wife was so persistent in providing gestures and mouthing assistance from the body of the courtroom to father in the witness stand that she had to be asked to leave the hearing.

B. The Separation Agreement

[16] The following paragraphs set out the relevant terms of the Agreement:

Section 3: Child Support

[17] Mother's income is presumed to be zero and father's to be $138,546. Father is to pay child support based on that income.

[18] Special expenses are to be agreed upon in advance, such agreement not to be unreasonably withheld, or to proceed to the "dispute resolution" section. Daycare expenses were presumed to be special at that time. Father's proportionate share is to be 85.3% and mother is to provide receipts.

[19] Child support terminates on the child turning 23 or ceasing to be in school full time or obtains one degree post-secondary or no longer resides with the custodial parent (excluding school, vacation, or summer employment).

[20] Child support will change when a child goes away to a post-secondary institution. Father and mother will then each pay a proportionate share of tuition, residence or alternate shelter, food, books, and supplies. The particular child's educational savings should be applied first. If parents cannot agree they are to use the "dispute resolution" section.

[21] By June 30th annually, the parents are to review the child support arrangements and if they do not agree, they are to use the "dispute resolution" section.

[22] Material change includes the June 30th review, a material change in a parent's financial position, change in the child's special expenses, or a change in the child's needs. I note that the Family Law Act (the Act) only requires a "change" not a "material change".

[23] These circumstances would not justify a change: a child earning up to $10,000 from earnings, loans, scholarships, gifts, or a child living with father during the summer.

[24] By January 1st, father is to give post-dated cheques for the year to mother for child support.

Dispute Resolution Section

[25] The dispute resolution section includes a notice and disclosure period, negotiation, mediation, and then court.

No Family Responsibility Office (FRO):

[26] Child and spousal support is to be paid directly to mother. If father does not pay promptly, mother is to file the agreement and support is to be enforced through FRO.

Section 5: Spousal Support

[27] Spousal support of $1659 a month is to be paid by father to mother until December 31, 2017. For the purpose of spousal support, mother's income is imputed at $40,000. This estimate is based on a first year teacher's salary. One section says the December 31, 2017 termination date cannot be changed. Another section indicates that spousal support can be changed: if either party has a different financial position, mother does not obtain full time employment, or there is a change in child support arrangements.

[28] Property, custody and access issues were to be decided in a separate agreement that would work "in conjunction with this agreement".

[29] There is a specific provision indicating that failure to insist on strict performance of any term of the agreement is not a waiver.

[30] The parties were divorced in 2009. The Agreement was filed with the court on February 4, 2016, pursuant to section 35 of the Act.

[31] On March 1, 2016, mother filed a Motion to Change this Agreement with the Ontario Court of Justice in Toronto.

C. The Hearing

[32] The court and the parents relied on sub-rule 15(26) and sub-rule 1 (7.2), of the Family Law Rules, both of which permit discretion to direct a hearing with some oral evidence as well as affidavits and relevant documents for a Motion to Change proceeding. The parties agreed to a hearing that would provide some additional evidence by way of cross-examination on affidavits. Both parents were cross-examined. The paternal grandmother filed an affidavit and was briefly cross-examined. The parties agreed upon the filing of documentary evidence that included updated financial statements, all relevant income tax assessments and receipts, as well as doctors' reports. No one sought to cross-examine mother's doctors.

D. Position of the Parties

[33] Mother is seeking:

a) Ongoing and retroactive child support to 2007, based on father's Canada Revenue Agency (CRA) assessed income. In 2008, after she had executed the agreement in April of 2007 based on father's stated income of 138,546, mother received his income tax assessment for 2007 with line 150 income of 173,508. She requested a re-calculation and father refused. For the next few years she requested increases sporadically but found father to be very aggressive so she just agreed to the same amount every year;

b) Retroactive section 7 expenses to 2010, to include medical and dental costs not covered by father's benefits, high school trips, and driver training costs;

c) Ongoing section 7 expenses to include proportionate costs of post-secondary for both children, including costs for a subsequent Masters' or post grad Diploma program. Mother has found that father's anger about financial planning has spilled over onto his relationship with both children. Father has very irregular contact now with the children; and,

d) Spousal support amended to reflect actual incomes and to continue after the December 31, 2017 deadline, in order to take into account her inability to work fulltime due to medically diagnosed anxiety disorder and chronic neck/back pain. Spousal Support Advisory Guidelines (SSAG) for various scenarios were provided to the court.

[34] Father is seeking to have the Motion to Change dismissed, because:

a) He has paid promptly all child support and spousal support since the date of the agreement;

b) He has provided his income tax returns annually and confirmed annually with mother via email that she is satisfied with the payments; and;

c) Neither mother nor the children would accept any advice from him regarding university decisions. He has given 1600 last year towards post-secondary costs. When pressed by the court to offer something, Father has calculated the net costs for Karen, for example, as the cost of tuition and books and then subtracted the funds from grants and RESP. In his view, Karen should provide one third of the shortfall and mother and father sharing the remaining two thirds shortfall in a proportion that remains the same as it was in 2007. Father believes that his regular child support more than adequately covers his share of the net shortfall but, if pressed, would offer Karen a further $6000 toward the total cost of the four years. To be clear, father will not pay towards the cost of the car or any transportation.

d) Regarding the portion of dental and medical costs not covered by his benefits plan, mother had never mentioned them before filing the Motion. Before the hearing, he gave mother $200 for this expense.

e) Father believes that mother is intentionally under-employed because she has excellent education and experience: a Bachelor of Mathematics and an Education degree, with 14 years' experience at IBM before being downsized in 2003. He agrees that she was only working part time when they separated. In his view, mother did not apply to enough school Boards and should have applied to alternative education centres. Mother had never mentioned health or anxiety issues to him. Her doctor's letter of February 27, 2017 indicates her condition can be managed by medication and lifestyle choices;

f) Mother lives with her parents and the children in a large home and has provided no evidence of payments for rent or other expenses. Each of the five of them in that home now has a car; and,

g) Mother raised emotional abuse allegations against the father for the first time in her trial affidavit of February 27, 2017. He denies these allegations emphatically and is considering suing her.

[35] Before the matter came before the court, Father refused to participate in mediation when mother suggested it. When the matter was before the court and mediation was again suggested, he agreed subject to spousal support not being on the table as an issue. Mediation was not successful.

E. Jurisdiction

[36] A plain reading of the Family Law Act (the Act) clearly indicates that private agreements between the parties are to be respected. Subsection 2(10) of the Act provides that if a domestic contract deals with a matter that is also dealt with in the Act, the domestic contract prevails unless the Act specifically provides otherwise.

[37] A domestic contract is defined in section 51 of the Act to include a separation agreement. In section 54 of the Act, two people who are no longer living together may enter into an agreement dealing with support obligations.

[38] Section 35 of the Act permits a party to an Agreement to file it with the court for the purpose of enforcing or changing support provisions. Other sections of the Act also permit the court to interfere with provisions in an agreement for specific purposes; such as, in subsection 33(4) where the court finds a particular provision unconscionable in the circumstances of that case. Once the Agreement has been filed, any child or spousal support provision may be varied under section 37 of the Act as if it was a court order made under the Act.

F. Material Change

[39] The Agreement provided examples of material changes that would trigger changes to the payments and, failing agreements, a court process for final dispute resolution. Examples such as: father's income changing, mother not being able to obtain full-time employment, special expenses, including post-secondary costs. On the father's own evidence, his income increased and they cannot agree on post-secondary costs. The extent to which these changes and possibly others necessitate changes to the agreement are dealt with in the following sections by issue.

G. Income of Each Parent

[40] Incomes for both parents according to their income tax assessments are:

Year	Father	Mother (+$20,000 for spousal support)
2007	173,508	9,587
2008	139,687	19,504
2009	141,409	19,720
2010	140,762	21,662
2011	143,000	25,263
2012	146,962	23,782
2013	145,788	24,418
2014	144,530	26,259
2015	148,718	24,755
2016	152,833	23,893

[41] Mother has had post-secondary expenses of about $12,000 per year for Karen since 2013/14 and about the same amount for Michael starting this past school year of 2016/17.

[42] The affidavit of Dr. Graham, attaching her reports from November 25, 2016 and February 6, 2017, describes her diagnosis of mother with generalized anxiety disorder, which has exacerbated her underlying physical difficulties relating to hypertension, neck and shoulder pain, and her partial thyroidectomy. The anxiety disorder is a lifelong condition that will require ongoing management and will carry with it the risk of uncontrolled severe anxiety with possible clinical depression. The culmination of these physical and mental challenges has made it impossible for the mother to work full time.

[43] The recent report of Dr. Clark, a specialist in physical and rehabilitation medicine, indicates that her chronic neck pain will continue indefinitely and he also identified cervical myofascial pain and possible occipital neuralgia.

[44] As a result, mother cannot earn now or in the foreseeable future more than her current average of about $25,000 a year from occasional and supply teaching.

[45] Father contends that mother did not make much effort to obtain full time teaching work in the early years. It was the evidence of the paternal grandmother that mother said she had actually been offered a full time physical education teaching job and turned it down. This conversation occurred during an access exchange at the maternal grandparents' home sometime between 2009 and 2013. Mother denies this.

H. Ongoing and Retroactive Child Support

[46] At the opening of the hearing, counsel provided a consent for ongoing child support commencing January 1, 2017 of $2044 per month on father's income from 2016 of $152,833. A previous adjustment had also been made on consent during the course of this proceeding, commencing January 1, 2016.

[47] Once a material change has been established, the court undertakes a fresh examination of all the child support factors. In particular, for children enrolled in post-secondary education, the table amount of child support should be applied, unless the payor establishes that it is inappropriate (Lewi v Lewi). Father is not suggesting in the hearing that the table amount is inappropriate. In the midst of this litigation, he agreed to increase his child support based on his income and consistent with the guideline table. He wanted disclosure that his children were actually attending college and he wanted to have some influence in the financial decisions made by the children and their mother. Various emails dating back to early 2013 indicate that father knew about the children's post-secondary institutions and what they were studying. Mother even sent him a copy of Karen's marks at one point.

[48] In particular, Father thought that purchasing or leasing a car was not financially sound given the commuting distance from mother's home to Guelph and Hamilton. He argued that for similar or less amounts of money they could have rented apartments.

[49] Mother would like the father to pay child support consistent with his income and the corresponding Guideline amount, retroactive to 2007. She received father's income tax assessment for 2007 in 2008. The total income for father in 2007 was $173,508 which well exceeded the amount of $138,546 that he stipulated in the Agreement. E-mails between the parties later in 2008 indicated that mother wanted an adjustment for that year. Father said that it was the result of collapsed stock options that had already been accounted for in their property equalization. Mother replied by email and indicated that even after deducting the value of the stock options she was still seeking increased child support on a net income of $161,429. Apparently no resolution was reached.

[50] Neither party enforced the terms of the agreement for adjusting child support or registered with the Family Responsibility Office or went to dispute resolution or sought to vary in a court process until mother filed the Agreement on February 4, 2016 and her Motion to Change on March 3, 2016. The Agreement did not provide for automatic adjustments to table child support with income changes.

[51] Mother deposed that she found the father very aggressive when she attempted to discuss financial issues with him. Father would ask her for a detailed breakdown of how she was using her current child support payment, and call her a "freeloader" who was trying to "milk" him for money. This was of particular concern when in the early part of 2013, she was trying to negotiate Karen's post-secondary plans.

[52] Father provided emails to the court wherein he suggested and mother agreed to keep the same amounts for child and spousal support for 2012, 2013, 2014, and 2015. Meanwhile, as their daughter prepared to enter university for the fall of 2013, they were having real disputes about the cost of post-secondary and the father's share of that cost. Father was of the firm view that his child support payments should cover post-secondary, despite the wording of the Agreement to the contrary.

[53] The Supreme Court of Canada, in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra 2006 SCC 37 (DBS) held that one of the circumstances in which it will be appropriate to order retroactive support is when there has been a previous agreement between the parties. The court also set out these principles to consider:

• The obligation to pay child support arises automatically at birth.
• Child support is the right of the child.
• As income levels rise and fall, so will the parties' contributions to their children's needs, just as if the family remained together.
• The underlying theory of the Guidelines is that support fluctuates with the payor's income.
• By not matching support with income, the child loses.
• Retroactive may be misleading in that the obligation existed at the relevant time.
• Retroactive awards are not simply for exceptional circumstances but need to be balanced against the certainty that fairness to payor's demands.

[54] DBS also set out the following factors to be considered:

• Is there a reasonable excuse for the delay in applying to the court?
• The conduct of the payor?
• The circumstances of the children?
• Hardship for the payor?

[55] A reasonable delay can be established in circumstances where the recipient of the support has justifiable fears that the payor may respond vindictively to the detriment of the family or where the recipient lacks the emotional or financial means to bring the matter to court. (see DBS; Haist v Haist, 2010 ONSC 1283; Kase v Bazinet, 2011 ONCJ 718).

[56] There are 4 possible dates for the commencement of retroactive child support:

• The date of the court Application;
• The date of formal notice;
• The date of effective notice; such as broaching the topic; or
• The date when the child support should have increased.

[57] Father's emails to mother indicate his views that their respective financial situations have not changed significantly so he wants the amount of support to stay the same. In one year, he says his salary increase is only 2%. It is true that mother's salary does not change much, staying around $25,000 from 2011 until 2016. Father's salary for the same period increases about $10,000.which is a significant amount of child support for two growing children.

[58] In DBS, the SCC held that blameworthy conduct is anything that benefits the payor over the interests of the children. Continuing to underpay child support while refusing to contribute to special expenses has been found to be blameworthy conduct (see Kaze v Bazinet, supra). In this case, father's blameworthy conduct includes: continuously underpaying child support, demanding particulars of how mother was using his child support payments, demanding that mother use the child support payments to fund all post-secondary costs, refusing to negotiate special expenses, and finally aggressive and bullying tactics to ignore his financial responsibilities to his children.

[59] The father's overall financial situation continued to improve over this same period of time. In 2012, he and his wife purchased a home worth over a million dollars, after selling their condo. His salary increased and his savings and RRSP's increased.

[60] At about this same time, Karen is trying to plan for university for September, 2013. Father does not contribute to her costs and does not contribute to Michael's university costs until a cheque for $1600 is given as part of this litigation.

[61] In this case, mother had reason to delay from about the time they started discussing university costs as she could see the negative financial outcomes for her and the children. Father insisted that she provide a detailed accounting of her use of the child support payments. He also insisted that the child support was also to be used for most if not all of the university costs.

[62] Father's relationship with both children is very strained. At times he has rejected seeing them due to one of the many financial disputes with their mother. Originally, he believed the agreement absolved him from paying any post-secondary costs, only child support. This position is described by him in a chain of emails with mother in September of 2013. He then said he didn't want them to have cars to commute to school as it would be less expensive to live in Guelph and Hamilton. The children reside with their mother and grandparents in Milton, which is not a far commute from their respective universities.

[63] The impact on the children was twofold: firstly, they could not afford to move away for university and secondly, they watched their mother dissipate her own funds to cover as much as she could of their costs.

[64] In considering all of the circumstances, I would fix the commencement date for retroactive child support as January 1, 2013. I base this decision on the above findings and, in particular:

• Father knew his salary was increasing and that meant his child support obligations were as well.
• Father began to demand particulars of how mother was spending her child support when post-secondary discussions arose in early 2013 for Karen.
• These same discussions were about to be repeated for Michael's post-secondary plans in the fall of 2015 and early 2016.
• Father knew that mother's salary had not really changed.
• Mother gave notice in 2008 of her concern that his salary was higher than he disclosed but she took no further step until filing the Agreement in February, 2016. With formal notice, the court is permitted to go back three years.
• By 2013, mother began to realize that father was not going to cooperate with the children's university expenses and the entire dispute became very stressful and difficult for her.
• Father did not negotiate the post-secondary costs in good faith.
• Father should not benefit from mother's inability to enforce her agreement; in particular, he should not benefit over the interests of his children.

[65] The adjustments for underpayment of child support are these:

• Commencing January 1, 2013, father paid $1858 a month, instead of $1963 a month on his income of $145,788= 105 X 12 = $1260
• Commencing January 1, 2014, father paid $1858 a month, instead of $1949 a month on his income of $144,530= $91 X 12 = $1092
• Commencing January 1, 2015, father paid $1858 a month, instead of $1998 a month on his income of $148,718 = $140 X 12 = $1680.

[66] The total payable for retroactive child support is $4032. The years of 2016 and 2017 have already been adjusted and his ongoing for 2017 is $2044 on 2016 assessed income of $152,833.

I. Ongoing and Retroactive Section 7 for Post-secondary

[67] The Separation Agreement very clearly indicates that the parents want to fund post-secondary education for each of their children, without the need for loans. A joint RESP had been established early on by the parents and was used to defray the costs of university each year. On several occasions, father delayed agreeing to the use of the funds in a timely manner.

[68] The same legal analysis applies to retroactive special expenses as to retroactive child support.

[69] The mother explains in great detail how she and the children assessed their financial situation and the distance from Milton to Guelph and Hamilton. The cost of residence was found to be in the range of $10,000 to $11,000 a year and was considered financially unmanageable. The cost of a local apartment could be slightly less than the residence depending on a number of factors. The cost of the car with gas/parking and insurance is less than residence and other costs of living away from home. Cost of repairs and maintenance is not included for the purpose of section 7. Mother and the children pay for these.

[70] Both children work hard and do well at school. They apply for and receive scholarships and bursaries, in addition to their OSAP grant and loan strategy.

[71] A summary of the cost and revenue for Karen since she began attending the University of Guelph is:

2013/14

• Cost: $8687 for tuition, fees, books and a small meals plan
• Cost of car: Payment, parking and gas $5893 plus insurance of $3466
• Revenue: $3286 in OSAP grant and $2000 in scholarship, $2500 RESP
• Net Cost: $11,260

2014/15

• Cost: $7770 for tuition, fees, and books
• Cost of car: Payment, parking, gas of $5214 and insurance of $3885
• Revenue: $3744 in OSAP grant, $1000 in scholarships, $1500 RESP
• Net Cost: $10,626

2015/16

• Cost: $8037 tuition, fees and books
• Cost of car: $5334, and insurance of $3198
• Revenue: $2574 OSAP grant, $400 bursary, and $1000 RESP
• Net Cost: $12,596

2016/17

• Cost: $7782 in tuition, fees, and books
• Cost of car: $5213 payment, parking, gas and $2574 in insurance
• Revenue: $3000 in OSAP grant, $1000 from RESP
• Net Cost: $11,569

[72] Michael has just begun university at McMaster. His costs and revenue are:

2016/17

• Costs: $9258 for tuition, books, and laptop
• Car: $4560 for lease, parking, gas and $5793 for insurance
• Revenue: $3200 OSAP grant, $1500 in scholarships, and $2500 RESP.
• Net Cost: $12,411

[73] There is $5513 remaining in the RESP account, sufficient to give Michael $1800 per year for the next 3 years.

[74] It was very industrious of the children to apply for OSAP and to save the loan portion for prompt repayment. The use of a car is a very reasonable expense where the child is staying at home to save money. It is less than the cost of residence. It is certainly more costly to do laundry and eat away from home. Father cannot dispute the amount of the cost when he has actually offered nothing and paid nothing, until the $1600 last year. Father cannot use university costs as a way to control the children's views about access to him and his new family. It is father who has created the stressful situation for mother and the children with his demands and his rules. (See also Kaze, supra)

[75] Father does not want to pay for Michael's laptop because if Michael had asked him, father says that he could have obtained one for him for a lesser amount through work. It is a great shame that this information couldn't have been forthcoming from father over the many years when these children could have used a laptop or home computer. It would be extremely hard not to consider this expense to be a reasonable section 7 as many cases have done so over the years- see Bertram v Murdock (2006) ONCJ 69 and Penn v Penn (2014) and I so find.

[76] The court has broad discretion to consider the appropriate contributions of a child and each of the parents to the cost of post-secondary, taking into account the necessary expenses, the means of the family, and the intention of the family prior to separation – see Lewi (supra). In this case, Karen did not work in the early years of her university career but is now and Michael has earned good money during grade 12 and in the summer before university. They can use their earnings to assist in defraying their personal expenses, including the cost of gas.

[77] The Agreement clearly indicates that the parents intended to fund one degree for the children without the children incurring student loan debt. The mother is prepared to pay her fair share and the father can afford to pay his fair share. The children have also helped with their grants and scholarships. They are working during the summer breaks and can contribute to their own expenses.

[78] Mother believes that both children will benefit from a second degree or post graduate program of some sort. Karen has already chosen one based on her skills, talents, and the advice of her professors. The agreement references one post-secondary degree as an event possibly triggering a change, which reflects the parents' intentions. Based on the incomes of the parents and their stated intentions to fund their children's post-secondary education, I will hold the parents' contributions for special expenses to one post-secondary degree.

[79] Section seven expenses for post-secondary for Karen should have begun in 2013, and father's contribution should have been 85.3% of those expenses, which I fix in the following paragraphs.

[80] By April 1, 2017, father owes mother 85.3% of the net costs that mother has incurred for Karen ($46,054.21, as set out in paragraph 67 above), less the $1600 he has already paid, which equals $37,684.24.

[81] Karen plans to continue for another term in order to complete her degree. I find one additional term to be reasonable, given the difficulty of her chosen field in science. Each full year appears to cost about $12,000, based on the average of the last two years. She will need approximately 50% of the cost for a year for this one term, of which father's share will now be 69.6% or $4176, spread over 8 months. Commencing May 1, 2017, that is $522 a month for the fall of 2017 term, until and including December 1, 2017.

[82] For Michael, I fix the current special expenses in the following paragraphs.

[83] Section 7 expenses for Michael began in spring of 2016 and will continue until spring of 2020, for a four year degree, and one possible further term is also allowed for him. This past year cost mother $12,885.39 (see paragraph 68 above)and father's 85.3% share is $10,991.24. By April 1, 2017, father owes mother this amount for special expenses.

[84] The approximate cost for Michael will be $12,000 a year. Father's ongoing monthly share is 69.6% of $12,000 or $8352 divided by 12, which is $696 per month, commencing May 1, 2017.

J. Ongoing and Retroactive Section 7 Expenses, excluding post-secondary costs

[85] Mother is seeking additional section 7 expenses.

[86] She is seeking a proportionate recovery of dental, medical and vision care costs over and above the amounts covered by father's insurance. The expenses relate to a broad time period of 2010 until 2017 and each expense is for less than $100. , except Michael's glasses, which totalled $221 for 2011 to 2015. These net costs are so small as to be easily covered by the monthly CSG amount. See also subsection 7(c) of the Child Support Guidelines that refers to expenses that exceed reimbursement by at least $100. I was told in submissions that father has just provided a cheque for $200 to defray the costs of some of these. For all of these reasons, I am removing these past items from this discussion. On a go forward basis, any additional cost to mother of $100 or more over and above the amount paid by father's benefits shall be paid by father within 15 days of receiving the benefit statement or mother's copy, whichever is sooner.

[87] Both Karen and Michael took driver education courses, which cost $824 each and obtained their licences, the total cost of which was $2020. It is entirely reasonable and necessary for children to take the available drivers' education courses because it is excellent training and it reduces their insurance costs. Given the means of their parents and the parents intention to share necessary extra costs, it is inexplicable that father would not have anticipated and agreed to these costs. Although I am finding the effective date for retroactive child support is January 1 of 2013, this expense should not be funded for one child and not the other. I find that the cost of driver education training and licencing is a special expense and should be funded by mother and by each child to a total of 50% of the cost. Father's share should be 50% of $2020, which is $1010 payable within 90 days.

[88] There is a claim by mother for high school trips for each of the children:

[89] In 2011 Karen went to Florida/Disney for her business class at a cost of more than $1100.

[90] In 2014, Michaels' business class also went to Florida/Disney and the cost was more than $1400; He also went to Chicago for a music class trip in 2016 at a cost of more than $1000.

[91] I find that these high school trips were special expenses within the meaning of section 7.

[92] It is sad that father would not engage his children in discussions about these types of educational opportunities. Father also had direct access to their school information pursuant to the Children's Law Reform Act. This would have provided him with whatever information he needed about these courses and the connection to the travel. Again there is a fairness factor for both children. I would ask mother and the children to contribute 50% of the cost. I order father to pay 50% of these items, which would be $1750, within 90 days.

K. Spousal Support

Jurisdiction of Ontario Court of Justice

[93] In this case, the agreement was entered into before the Divorce and filed with the court for enforcement and variation after the Divorce.

[94] In Huazarik v Fairfield, (2004), 48 RFL (5th) 275 Justice Blishen held that spousal support provisions in a separation agreement entered into after the divorce could not be varied under section 37 of the Family Law Act (FLA). In particular, she relied upon the provisions of the FLA that provided that a filed agreement could be varied as if it were an order of the court. If, at the time of the agreement, the parties were not spouses within the meaning of the FLA, then the court could not have made such a spousal support order. In obiter, Justice Blishen opined that if the parties had been spouses at the time of signing the agreement, then it could be filed and varied under sections 35 and 37 respectively. At no place does Justice Blishen opine that the agreement must be filed before the Divorce.

[95] In Abernethy v Peacock ,(2009), 68 RFL (6th) 456, Justice Herman also in obiter, opined that in order for the court to have jurisdiction to vary spousal support, the parties had to have been married at the time the agreement was signed and at the time the agreement was filed with the court.

[96] The Ontario Court of Appeal in Grosman v Cookson, (2012) ONCA 551, considered a fact situation where the parties entered an agreement in February 2004 and divorced later that same year. The Agreement was filed in February of 2011, long after the parties were divorced. It is implicit in the Court of Appeal's decision that had the parties not contracted out of subsection 35(2)(b) of the Act, the court could have been asked to vary the support provisions in the agreement.

[97] Generally, the trial courts have followed Abernethy without analysing whether it was necessary to draw a distinction among the three dates. For example, see Verhey v Verhey (2017) OJ No 510 (SCO) and Crosby v Crosby (2016 OJ No 3566(SCO)).

Of what importance is the date of filing of the Agreement?

[98] Filing of the Agreement is a formal notice to the other party that you intend to enforce and/or to change that agreement. The date of filing has no other significance in the Act or the case law. Section 35 of the Act clearly refers to varying an agreement as if it was a court order and any person who is a party may file it. The court must find a material change in circumstances since the signing of the agreement not since the date of filing it. Therefore the agreement is capable of being a court order as of the date of signing the agreement and not the date of filing it. Filing simply moves the matter into a court process.

[99] For the above reasons, and particularly these:

• The parties intended the Agreement to be capable of being a court order from the date of signing.
• The parties were spouses as of the date of signing the Agreement.
• The parties relied on the Agreement from the date of signing it.
• The Act outlines a process to vary the Agreement as if it was a court order, with the required change in circumstances to be assessed from the date of signing the agreement and not the date of filing it with the court.
• The Act and case law assume that the parties may go on to obtain a divorce and remarry or re-partner.
• The Act does not assume the Agreement is null and void following a divorce or re-partnering.

[100] I find the date of divorce not relevant to the issues before the court. The Agreement is to be treated as a court order and therefore the court has jurisdiction to change it.

Principles of Spousal Support and Entitlement

[101] Section 30 of the Act provides that every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need, to the extent that he or she is capable of doing so. Subsection 33(8) of the Act outlines the purposes of spousal support:

• To recognize contributions to the relationship and economic consequences of the relationship;
• To share the economic burden of child support fairly;
• To make fair provision to assist a spouse to become able to contribute to his or her own support; and,
• To relieve financial hardship, if it has not been addressed through property division.

[102] At the time of the marriage breakdown and the Separation Agreement, mother had been downsized from her position at IBM in 2003 and was re-training to be a teacher. She was not working full-time. She was a secondary earner in the family unit. The Agreement provided her with compensatory support. She had been the primary parent and had supported the father in his career.

[103] The Agreement anticipated that she would be able to reach a full-time position earning $40,000. Her efforts with two school boards did not yield full time work. Her health deteriorated sometime after 2008 and it is very clear that since 2016 she will never be able to work full time. Her health needs compromised her economic self-sufficiency. All of these factors point to spousal support as also a non-compensatory claim. (Bracklow v Bracklow SCC 1999 Can LII 715; Gray v Gray, 2014 ONCA 659).

[104] The material change can be one that, if contemplated at the time of the Agreement, would have resulted in different terms. That is certainly the case here. There does not have to be a causal connection between the changed circumstance and the marriage (Miglin, supra; K.D. v N.D., 2011 BCCA 513).

[105] Where a spouse has failed to become self-sufficient as anticipated in the Agreement, the time limitation on support can be varied. Change can be the non-occurrence of something expected to happen. (MMF v RB, 2010 BCSC 1268; Morgan v Morgan, 2001 BCSC 874)

[106] Counsel for mother also argued that Subsection 33(4) of the Act provides a further mechanism to vary an Agreement that would result in an unconscionable situation. I agree that it would produce an unconscionable result if spousal support terminated just when mother is at her lowest economically and emotionally.

Mother's Needs

[107] Mother is seeking a change to spousal support effective March 1, 2016, the date this Motion to Change was served upon father. The variation is based upon the terms of the agreement and subsections 37(2) and 33(4) of the Family Law Act. Under the terms of the Agreement her income was presumed to be $40,000.

[108] Father seeks to impute more income to the mother. He contends that she did not make much effort to obtain full time teaching employment in the early years. It was the evidence of the paternal grandmother that mother said she had actually been offered a full time physical education teaching position and turned it down. According to the paternal grandmother, this conversation occurred sometime between 2009 and 20013. Mother denies this. I accept the mother's evidence as the timing of the conversation is in credibly vague.

[109] The evidence of her family doctor and a specialist is that she is unlikely to ever reach that income. I accept the totality of mother's evidence in this regard for several reasons. Her income has been relatively steady for the past 6 years. The medical reports are clear and consistent. Dr. Graham has been her family doctor for a number of years. Dr. Graham is a graduate in 2000 from the McMaster family medicine program and is in good standing with her licensing college, the college of family physicians and the Canadian medical Association. Her report of May, 2016 lists the mother's medical issues as hypertension, diverticulosis, neck pain, gastritis, allergies and anxiety. She indicates that the mother is compliant with medical advice but cannot work any more hours or days than she already is. Further details were provided in her November, 2016 report and I quote:

"Ms F has suffered from Generalized Anxiety Disorder during the time I have known her (sic 6 years). The Generalized Anxiety Disorder has caused her the following symptoms: panic attacks, insomnia, fatigue, flushing, shaking, rapid heart rate, increased blood pressure (as high as 160/110), feeling overwhelmed, tearfulness, avoidance of conflict in relationships, headaches, back and neck tension causing pain, excessive worry, comfort eating leading to obesity, vertigo, catastrophizing regarding any health issues, excessive fear of prescription side effects."

[110] In addition to the Anxiety Disorder, mother has many medical health issues. She had part of her thyroid removed in 2008/9 due to concerns that it may be cancerous, and continues to have this monitored on an annual basis. This is confirmed by a Consultation Note from her Endocrinologist.

[111] Since 2011, she takes three different medications to control her hypertension. The doctor adds that her blood pressure is also a challenge, requiring frequent monitoring and two medications. These issues are complex and have required multiple office visits. An Emergency Record from July 20, 2012, documents these concerns.

[112] The current stress of the litigation has exacerbated her neck and shoulder pain, which is moderate to severe. A specialist, Dr. Clark, has assessed her with cervical spine degenerative changes in her neck. His consultation notes are provided.

[113] The prognosis is for a lifelong condition that requires continuous management. She is at risk for Clinical depression and possible suicide. The complicated health issues have resulted in many sick days. Improving the use of her sick days as part of employment expectations has placed additional stress on her.

[114] The family doctor concludes that full time employment has become impossible for mother. In her opinion, it is imperative that mother reduces her stress.

Duration and Amount: The Termination Date

[115] Generally, separation agreements that are consistent with the legislative intentions for separating spouses are to be given significant and determinative weight. The Supreme Court of Canada in Miglin v Miglin (2003) 2003 SCC 24, 1 SCR 303 discusses the principles to be applied in order to balance the need for finality with the unique and unforeseeable concerns that can arise in post separation families.

[116] The agreement in this case is vague regarding the termination date for spousal support. It states that it cannot be changed but no clear waiver was executed and the variation section does not clearly indicate that it is only for variation of amount. At the time the agreement was made the parties clearly anticipated that mother would be able to get a full-time teaching job at some point. Her income for child support was set at zero and for section 7 her percentage was set at 15%. Both parties had independent legal advice at the time of signing the agreement.

[117] Given the mother's continued entitlement and her needs, particularly after using her savings and the capital from the sale of the matrimonial home (approximately $125,000 in 2007), the termination date must be varied or set aside.

[118] In order to determine the amount of spousal support, subsection 33(9) of the Act sets out some factors for the court to consider in looking at all of the circumstances of the parties:

• length of cohabitation
• current and likely future assets and means
• each party's capacity
• age, physical, and mental health
• needs relative to the accustomed standard of living
• available measures to assist a party in becoming independent
• care of children over 18 who are dependent because of education

[119] The findings above set out the answers to these questions in this case.

[120] The Court of Appeal in Fisher v Fisher, 2008 ONCA 11 has stated that the Spousal Support Advisory Guidelines (SSAG) are a useful starting point to assess quantum and duration of spousal support. In 2016, the Court of Appeal considered the SSAG again and cautioned courts against defaulting to the mid-range, as each case requires a contextual analysis (Mason v Mason, 2016 ONCA 725).

[121] In general, highly compensatory cases and cases of illness and disability, tend to have awards in the higher amount and longer duration range (Wharry v Wharry, 2016 ONCA 930).

[122] Counsel for mother provided SSAG numbers which indicate a range of $1470 to $2379 a month, with continued table child support and approximately $12,000 a year in section 7 for post-secondary. I would place the mother in this case in the upper ranges because:

• It was a longstanding relationship and a marriage of 16 years.
• Mother has had and continues to have the primary care of the children.
• She has not worked fulltime since 2003.
• Mother was re-training and hoping to work fulltime at the time of the Agreement.
• The full time job market for teachers became very challenging shortly after the Agreement.
• Mother's health deteriorated in several areas.
• Mother has continued to support her dependent children through the post-secondary years.

[123] I find spousal support payable, commencing March 1, 2016 at $2200 a month for an indefinite period. This leaves father over 40% of the net disposable income and even more after the special expense for Karen concludes this calendar year. Father has been paying $1659 a month. As of May 31, 2017 father then owes mother $8115 for arrears of spousal support (2200-1659 X 15 months). Thereafter, commencing June 1, 2017, father is to pay $2200 a month for spousal support.

L. The Final Order

Ongoing Child Support

1. Commencing January 1, 2017, and on the first day of each month thereafter, the Respondent/Father shall pay child support to the Applicant/Mother for the support of the two children; namely Karen Francisco, born June 6, 1995 and Michael Francisco, born December 26, 1998 in the table amount of $2044 per month in accordance with the father's T4 income of $152,833, with credit for any support payments made. This amount is enforceable through FRO.

2. On or before May 1st of each year, the parties will exchange their complete income tax assessments, including schedules and attachments. The amount of child support will then be adjusted each year effective June 1st, in accordance with the most recent income and the Child Support Guidelines. The parties are also to adjust their percentage share of special expenses as set out below.

3. Paragraphs 3.4, 3.5, and 3.6 of the Separation Agreement dated April 3, 2007 (the Agreement) shall be varied as follows:

a. The children's special expenses are:

i. Medical/dental expenses not covered by OHIP or private insurance, in the amount of $100 per year or more;

ii. Post-secondary expenses including tuition, books, transportation costs, car insurance; with any amount of grants, scholarships, bursaries, and RESP contributions are deducted

iii. Such further expenses as the parties may agree upon or this court order

b. Commencing April 1, 2017. The Respondent/Father shall contribute his proportionate share of the children's special expenses as set out in paragraph 3a)(i) and (iii) above,( which is 69.6%) and the Applicant /Mother shall pay 30.4% of the expenses. The Applicant/Mother will pay the expense directly and Respondent/Father will reimburse her directly within 15 days of receiving the proof of payment or the invoice or the statement from the insurer. If there is a default in the payment, the amount is enforceable through FRO.

c. Commencing May 1, 2017, the respondent/Father shall pay $522, (which is 69.6%), a month for Karen's post-secondary expenses until and including December 1, 2017. This ongoing payment is enforceable through FRO.

d. Commencing May 1, 2017, Respondent/Father shall pay $696, (which is 69.6%), per month for Michael's post-secondary expenses until and including the end of his fourth year in undergraduate studies, and a further term if Michael remains in undergraduate studies. This ongoing payment is enforceable through FRO.

Retroactive and Arrears' Amounts

4. On or before July 1, 2017, the Respondent/Father shall pay to the Applicant/Mother, by way of certified cheque or bank draft:

a. $4032 on account of child support adjusted from January 1, 2013 until January 1,2016, as set out above

b. $37,684.24 on account of his proportionate share of Karen's post-secondary expenses from 2013 until present which were paid by the mother, as set out above.

c. $10,991.24 on account of his proportionate share of Michael's post-secondary expenses for the 2016/17 school year.

5. Within 15 days of this Decision, father to pay to mother directly by way of certified cheque or bank draft $2,760, which is his share of past special expenses paid by mother.

6. If there is a default in the payment of these retroactive or arrears amounts, the amounts are enforceable through FRO.

Spousal Support

7. On or before July 1, 2017, Respondent/Father to pay to the Applicant/Mother arrears of spousal support from March 1, 2016 until May 31, 2017, equal to $8115., by certified cheque or bank draft. Any default is to be enforceable by FRO.

8. Commencing June 1, 2017, Respondent/Father to pay to Applicant/Mother spousal support in the amount of $2200. a month, enforceable by FRO.

9. In any year where the parties' financial position changes by 10% or more, or averaged over 3 years has changed by 10% or more, spousal support should also be adjusted. If the parties cannot agree on the correct amount, the matter may return to court for a determination.

Material Change

10. A material change in any of the financial situations of the parties related to the above issues or as set out in paragraphs 3.16, 3.17, or 5.9 of the Agreement may warrant a variation through the court.

M. Costs

[124] Counsel for both parties requested to deal with costs through written submissions. Counsel for the Applicant may serve and file with the trial coordinators' office costs' submissions of no more than 3 pages, with a bill of costs and any Offer attached within 15 days of this decision. Counsel for the Respondent/Father may respond with submissions of no more than 3 pages, with a Bill of Costs and any offer attached within 15 days. A one page reply may be served and filed within 4 days.

[125] I thank counsel and the parties for their focused evidence and succinct attention to the relevant legal framework.

Released: May 16, 2017

Justice D. Paulseth