Court File and Parties

Court File No.: 138/01 Date: December 15, 2017 Ontario Court of Justice

Between:

Sherry Monique Ridley, Applicant

— AND —

Stefano DeRose, Respondent

Before: Justice Barry M. Tobin

Heard on: June 7, 8, 9, 12, 13, 14, 15, November 23, and December 7, 2017

Released: December 15, 2017

Counsel:

• Cheryl Hodgkin, for the Applicant
• Richard Gordner (Counsel acting under a limited scope retainer), for the Respondent

Reasons for Judgment

1: Introduction

[1] The parties entered into a Separation Agreement intending that it resolve issues arising from their cohabitation and subsequent separation. It has not entirely fulfilled that purpose. In this case, the parties raised issues about their respective obligations and entitlements under the Separation Agreement, as well as the validity of the spousal support provisions contained within it.

2: Overview of Facts

[2] The following is a brief outline of the facts relating to the relationship of the parties beginning 1994. Greater detail regarding relevant facts will be set out in relation to the issues raised.

[3] The Applicant and Respondent met sometime in 1994.

[4] By October 1994, the Applicant and Respondent began cohabiting. The Applicant's son from a prior relationship, Joshua Jerome Ridley, born May 17, 1991 ("Joshua") also lived with them.

[5] They briefly separated in 1997 for approximately four months.

[6] While they cohabited the parties had two children together, Adrian Stefano DeRose, born October 26, 1998 ("Adrian"), and Luca Marco DeRose, born March 9, 2000 ("Luca").

[7] The Applicant did not work outside of the home while the parties cohabited. She was a homemaker. The Respondent provided financially for their family. He did so from compensation he received each month from an annuity derived from a structured settlement awarded in a personal injury case. He was also involved in some construction enterprises.

[8] The Applicant assisted the Respondent in the administration of his business by paying some bills for concrete and lumber. She also did some ordering of supplies and on occasion dealt with his trade creditors.

[9] According to the Separation Agreement, the parties started to live separate and apart, though under the same roof, on September 15, 2000. They remained in their home until February 2001 when it was sold and they then started to reside in separate residences.

[10] The Separation Agreement entered into by the parties was signed by them on October 17, 2000. It was prepared by a lawyer retained by the Applicant, and dealt with all matters arising from their cohabitation and separation.

[11] The Respondent did not retain a lawyer. He signed an Acknowledgment and Confirmation as part of the Separation Agreement to the effect that he read and understood its terms and that he refused to obtain independent legal advice before signing it despite the recommendation of the Applicant's lawyer that he do so.

[12] With respect to custody, child support and spousal support, the parties agreed within the Separation Agreement that:

a) The Applicant would have custody of the children;

b) The Respondent would pay the Applicant $2,500.00 per month for child support. This was based upon him having an annuity payment of $12,407.71 per month which payment was not taxable in his hands;

c) The amount of child support was to increase every third year, beginning February 1, 2002 "and continuing until the youngest child attained the age of 18 years". The amount of the increase in child support was to equal "one half of the increase in the monthly payments to the [Respondent]";

d) The Respondent would pay to the Applicant as spousal support $700.00 per month until she remarried or died. Once the Respondent's child support obligation ended, spousal support would increase to $2,000.00 per month until the Applicant remarried or died; and

e) The provisions concerning custody, access, child support and spousal support could be varied in the event of a material change in circumstances. A process for considering a variation request was also provided for in the Separation Agreement.

[13] In accordance with the terms of the Separation Agreement, the children resided with the Applicant following their physical separation in February 2001 and the Respondent paid to the Applicant child support of $2,500.00 per month and spousal support of $700.00 per month.

[14] In 2004, just before his 13th birthday, Joshua moved from the Applicant's home. Notwithstanding this move, the parties orally agreed that the Respondent would continue to pay the Applicant child support of $2,500.00 per month.

[15] Even though the parties entered into a Separation Agreement as described above, they maintained a relationship that the Applicant described as being an "on again off again" one, though they did not resume cohabitation. This relationship was a tumultuous one. The Applicant twice filed the Separation Agreement with the Clerk of this Court for enforcement by the Family Responsibility Office. Both times she withdrew from the Family Responsibility Office because of the Respondent's threats. In 2004 he pleaded guilty to a criminal charge arising from an incident of domestic violence between them. The Applicant applied for peace bonds against the Respondent in 2008, 2010 and 2011.

[16] The Applicant started this court case by Application issued July 7, 2011 in the Superior Court of Justice. In it she sought:

a) Compliance with paragraph 14(c) of the Separation Agreement, dated October 16, 2000;

b) Payment of the child support owing under the said agreement; and

c) Child support for Adrian and Luca.

[17] The Respondent delivered an Answer and Claim by Respondent whereby he sought custody of Adrian and Luca and an order setting aside the support provisions of the Separation Agreement.

[18] This case was traversed from the Superior Court of Justice to the Ontario Court of Justice pursuant to the Order of Justice George King of the Superior Court of Justice, dated October 9, 2015. The matter was before Justice King on the Respondent's motion to dismiss the Applicant's claims regarding enforcement of the Separation Agreement on the basis that the Superior Court lacked jurisdiction to do so. Justice King agreed with the Respondent based on the following:

a) The Separation Agreement that is at the centre of this case was filed with the Ontario Court of Justice on March 5, 2002. Subsection 35(1) of the Family Law Act provides that once properly filed, a Separation Agreement can be enforced or varied as if it were an order of the court where it is filed; and

b) Once filed in the Ontario Court of Justice, it is not subject to "review, revision or amendment by the other court."

[19] The case proceeded to trial in this court once the parties were ready to do so.

[20] Both Adrian and Luca continue to reside with the Applicant and both are currently enrolled in school.

3: Issue #1: Is Adrian Entitled to Child Support from the Respondent?

[21] Adrian is now 18 years old. This makes him an adult for the purpose of considering his entitlement to child support.

[22] Section 31 of the Family Law Act (the "FLA") provides that an adult child is entitled to child support if enrolled in a full-time program of education.

3.1 Facts

[23] Adrian completed high school in June 2016. He was then 17 years old.

[24] Beginning in September 2016 he was enrolled on a full-time basis in the Electrical Techniques course at St. Clair College. He was interested in this course because he was aware there were jobs in this field. He found the program very difficult and consequently stressful. While enrolled in this program he sought medical attention for stress because it brought out in him symptoms of depression and anxiety.

[25] Despite attending classes regularly, Adrian did not pass the fall 2016 semester. He tried again the next term beginning in January 2017. When he testified at the trial he had not yet received his marks for the January 2017 term but feared that he had been unsuccessful again in this program.

[26] Acknowledging that he did not have an aptitude for the electrical program, he applied and was accepted to the full-time Culinary Management program at St. Clair College beginning in September 2017. Adrian is enthusiastic and confident about completing this program. He has enjoyed and has had an interest in cooking for some time. His goals are to become a Red Seal chef and one day own his own restaurant.

3.2 Position of the Parties

[27] The Respondent argues that Adrian is not entitled to ongoing support because:

a) he was not diligent in trying to complete his first and second semesters of post-secondary education;

b) anxiety and depression as an excuse for his scholastic failure was not proved. There were no medical reports submitted in evidence; and

c) there is nothing to suggest that he will be any more successful in this new program.

[28] The Applicant submits that Adrian experienced a misstep in his first year of college. His failure was not due to irresponsible behaviour.

3.3 Legal Considerations

[29] The onus of demonstrating eligibility for child support rests with the party seeking it: Aubert v. Cipriani, 2015 ONSC 6103 (para. 24).

[30] The purpose of child support for an adult child under the Act is to ensure ongoing assistance to children who are pursuing an educational program and remain dependent on their parents while they complete their education. Aubert v. Cipriani, supra (para. 23).

[31] Where the claim for support relates to an adult child there must be tangible evidence of a child's enrollment, attendance and participation in a full-time program of education. In order to remain eligible for support the child's participation must be meaningful from a quantitative and qualitative standpoint: Vohra v. Vohra, 2009 ONCJ 135, referred to in Aubert v. Cipriani, supra, (para. 24).

3.4 Application of Legal Principles

[32] I am satisfied that Adrian remains entitled to child support from the Respondent.

[33] Adrian started his post-secondary education immediately after completing high school. He was then 17 years of age. The course he chose was one he expected would lead to employment. He enrolled on a full-time basis. I accept Adrian's evidence that he attended his classes. His inability to achieve success caused him stress which caused him to seek medical attention for symptoms of anxiety and depression. Despite experiencing these symptoms, he persisted in his attempts to complete this course during the first and second semesters.

[34] Adrian enrolled in the Electrical Techniques program for a legitimate purpose – to obtain a skill that would lead to employment and independence – and I accept his evidence that he made a genuine effort to succeed. He did so despite the stress it caused him. I did not understand Adrian's evidence to be that symptoms of anxiety and depression caused his scholastic failure. I accept that Adrian's lack of aptitude was the reason he was not successful and which brought on the stress. A medical report would not have been of assistance to the Court in coming to this conclusion.

[35] At 18 years of age, Adrian should not become disentitled to support because he genuinely tried and failed in a program.

[36] Adrian is enrolled again on a full-time basis in a program that has the potential to allow him to become independent, and of more importance to this young man, to pursue a career about which he is passionate.

4: Issue #2: What is the Respondent's Income for Child Support Purposes?

[37] Having found that Adrian remains a dependant for child support purposes, the next step is to determine the Respondent's annual income in accordance with the provisions of the Child Support Guidelines (Ontario) ("the Guidelines").

[38] The parties identified the following issues in connection with the determination of the Respondent's income:

a) is the money the Respondent receives from a structured settlement, income for support purposes?;

b) if the structured settlement funds are to be considered for support purposes, should they be grossed-up because they are received by the Respondent on a tax-free basis?; and

c) should income be imputed to the Respondent based upon unreported income or interest income that the Respondent could earn on structured settlement funds?

4.1 The Structured Settlement

[39] Is the money or any part of it, received by the Respondent, from a structured settlement annuity payment, income for child support purposes?

4.1.1 Position of the Parties

[40] The Applicant argues that the money received by the Respondent from the structured settlement annuity should be considered as income for child support purposes based on the decision of the Ontario Court of Appeal in Hunks v. Hunks, 2017 ONCA 247. This case held that structured settlement annuity payments were income for spousal support purposes.

[41] The Respondent's position is that money received from the structured settlement annuity related to pain and suffering or future care costs is not income for child support purposes. The evidence in this case is that at most 10 percent of the settlement proceeds were attributable to a loss of future wages. The Respondent argues that Hunks is distinguishable because the structured settlement annuity payments in that case were attributable to damages for future wage loss. He further argues that the structured settlement annuity payments reflect a capital fund (as opposed to property) that should not be considered for child support purposes.

4.1.2 Facts

The Injuries Sustained by the Respondent

[42] When the Respondent was eight years old he was seriously injured as a result of the explosion of a gasoline container. The explosion caused 60 to 65 percent of his body to be covered in third degree burns. This means that his skin was damaged almost to the layer of his nerves. The areas of his body that were injured included from his knees to his feet and from his waist to his head. At the time of the explosion the only clothing he was wearing was short pants.

[43] The Respondent spent nine or ten months in the hospital and had many surgeries. He received treatments until he was approximately 16 ½ years old. Some of these treatments took place in the United States. From the time he was 11 years old until he was 16 ½ years old, he would be taken from time to time to Cincinnati, Ohio for skin grafts and reconstruction.

[44] His physical injuries are significant and permanent. He has hearing loss of 60 percent in his right ear. His entire face is disfigured because of the third degree burns and scarring. His arms and hands are also scarred. On his right hand he has three one-half digits. On his left hand he has two one-half digits.

[45] The scar tissue is subject to contractures. This means a tightening occurs. The Respondent testified that sometime in the future he may have an operation to loosen up the contractures in his neck. No further evidence than that was provided about anticipated medical treatment. He also has to watch his waistline. The problem is the skin above the waist does not stretch. When his waist expands it pulls on the scar tissue and this is very painful.

[46] The Respondent can lift his right arm only to his head level because beyond that it pulls the scar tissue down to his waist. The Respondent also described that because his skin was covered in third degree burns, he has lost the pores that healthy skin use to breathe. This causes him to sweat profusely. As well, he must stay out of the sun because if he does not, his skin will crack.

The Personal Injury Lawsuit

[47] As a result of the injuries sustained by the Respondent, his parents retained Martin Wunder Q.C., a well-respected and experienced personal injury lawyer to represent them and their son.

[48] Mr. Wunder died on January 13, 2015.

[49] The Court heard evidence about the structured settlement from Theresa Wunder. She was Mr. Wunder's spouse and legal assistant. She worked with him on the case pertaining to the Respondent. She assisted in document preparation and meetings with the Respondent and his parents. The file was in Mr. Wunder's office for about six to eight years. She described the case as the most important they had at the time due to the severity of the Respondent's injuries. The case presented complicated issues related to liability and damages. From her evidence, it is clear that both Mr. Wunder and Ms. Wunder cared a great deal for the Respondent while he was a client of Mr. Wunder's and that she continues to be most supportive of him.

Settlement of the Personal Injury Litigation

[50] On March 15, 1982, an infant settlement was approved by Justice Haines of the Supreme Court of Ontario. The substantial portion of the settlement approved by the Court was for the purchase of a non-assignable, non-commutable annuity issued by the Manufacturer's Life Insurance Company. This appears to have been arranged by McKellar Structured Settlement Inc.

[51] Ms. Wunder testified that the money award was based upon the Respondent's pain and suffering as well as the then current and future needs for treatments and assisted devices. At the time the settlement was approved it was expected that the Respondent would need extensive medical and psychological future care, along with assistive devices and medical costs not covered by government insurance.

[52] In her evidence in-chief, Ms. Wunder did not allow that the global settlement provided for a claim for future wage loss. She stated that her "recollection is that no part of his damage award, including the portion that was structured, was related to any future wage loss claim." At best, she testified, as part of the global settlement there may have been a small award respecting the compromise of the Respondent's competitive position in the labour market.

[53] With respect, I find that this is speculative on the part of Ms. Wunder.

[54] Ms. Wunder, as involved as she was in her late husband's practice and this case, cannot reliably say how the settlement was arrived at by the parties.

[55] This case was settled 35 years ago. While Ms. Wunder continued to work in her late husband's practice until his death two years ago, she did not have available to her for review any contemporaneously made notes or other file contents, except for the final order granted on the infant settlement.

[56] She was not part of the settlement discussions that Mr. Wunder engaged in with other counsel.

[57] Counsel for the Applicant submits that the concept of future wage loss claims for young children was not unknown at the time the Respondent's personal injury case was resolved. Counsel for the Applicant points out that the same Mr. Wunder was counsel on the leading case of Teno v. Arnold, [1978] 2 S.C.R. 287. In that case, the infant plaintiff, a four-year-old, crossed the street with her brother to make a purchase from an ice-cream vending truck. She was hit by a car after being served and suffered catastrophic injuries. The Supreme Court of Canada had to address the basis upon which an award of damages could be made to cover the income "the infant plaintiff would have earned had she grown…and joined the workforce." (See para. 96).

[58] As difficult as it was to make the assessment, the Court held it must make an award for this head of damages. (See paras. 98, 99 and 101).

[59] All of this is to say that Mr. Wunder was part of a group of lawyers who were instrumental in having the Supreme Court of Canada address this issue of an award of damages for future wage loss for a young child.

[60] It is not speculative to find that Mr. Wunder would have been keenly aware that future wage loss was a significant and available head of damages to the claim being made on behalf of the Respondent.

[61] I find that it is not possible to determine the breakdown of the settlement achieved by the Respondent in the personal injury action. It was a global settlement. While I accept Ms. Wunder was an honest witness, I do not accept as reliable her evidence that at best 10 percent of the damage award related to loss of competitive position in the labour market.

[62] It is not possible to apportion the global damages to any particular head of damages. The Order of Justice Haines does not include a breakdown of the heads of damages that comprise the settlement reached.

[63] Ms. Wunder conceded in cross-examination that she had no idea what the defendants in the lawsuit considered when reaching a settlement. It was also her evidence that she was not part of the negotiations that resulted in the settlement being reached. Ms. Wunder testified without the benefit of reviewing Mr. Wunder's file pertaining to the Respondent. She did not know where it was located.

[64] Ms. Wunder was not able to recall the amount of money used to fund the structured settlement.

The Monies Received from the Structured Settlement

[65] From the structured settlement, the Respondent receives a monthly payment that is not subject to income taxes.

[66] Since July 2011, the month the application that is before the case was started, the Respondent has received structured settlement annuity payments as follows:

Year	Amount per month
From February 2011	$17,175.18
From February 2012	$17,690.44
From February 2013	$18,221.15
From February 2014	$18,767.78
From February 2015	$19,330.81
From February 2016	$19,910.73
From February 2017	$20,508.05

How the Structured Settlement Annuity Funds are Used

[67] The Respondent did not provide evidence he needs day-to-day care for his injuries. He did not identify any past or anticipated care expenditures since he started to receive the structured settlement annuity payments at age 18. The Respondent did not provide evidence of past or expected significant medical or assistive device costs except for a possible operation to loosen the contractures in his neck.

[68] The Respondent has and continues to use the structured settlement annuity income to pay his ongoing living expenses. He lives on the structured settlement annuity income.

[69] In his financial statement sworn May 1, 2017 (Exhibit 28), the Respondent states that he has been unemployed since 2013. He claims monthly expenses of $20,319.00. He does not include the annuity payment in the income part of his financial statement. Instead, he lists as an asset the annuity payment of $20,506.00 per month for 2017. These are the funds he uses to meet his and his family's ongoing expenses.

4.1.3 Hunks v. Hunks, 2017 ONCA 247

[70] As the Applicant relies upon Hunks in support of the proposition that the structured settlement annuity payment is income for support purposes and Respondent seeks to distinguish Hunks from the case at bar, a close examination of that decision is required.

[71] In Hunks, the Ontario Court of Appeal dealt with the following issue:

"… are the [structured settlement] annuity payments to be treated as property or income under the Family Law Act… ?" (para. 3).

[72] The Appellant in Hunks was seriously injured while shopping in a supermarket. The ensuing personal injury litigation was resolved by way of minutes of settlement that provided that the appellant would receive $571,383.00. The minutes specifically provided that she was at liberty to use some or all of the settlement monies to purchase a structured settlement. Evidence was provided which set out the various heads of damages and the amounts attributable to each. Out of the total settlement funds, the sum of $302,100.00 was attributed to future income loss. The Appellant purchased the structured settlement annuity with $302,306.00 from the settlement funds. The structured settlement was non-commutable, non-assignable and non-transferable. It provided monthly payments for the duration of the Appellant's life and a minimum guarantee of 25 years. It also provided that she would receive four equal lump sum payments.

[73] Sometime after the structured settlement annuity was acquired the Appellant and the Respondent in that case, who were married, separated. In proceedings arising due to the separation the Court was called upon to decide if the structured settlement annuity was property or income within the meaning of the FLA. If income, the payments were to be taken into account when determining spousal support. If property, the Court would need to determine the extent to which it would be considered as excluded property under ss. 4(2)3 of the FLA.

[74] The Court overturned the trial judge's decision and held that the structured settlement annuity payments should be considered as income for the purposes of spousal support, and not property under Part I of the Act. It did so because: (1) the structured settlement annuity arose from a structured settlement; and (2) the structured settlement annuity is analogous to disability benefits and not a pension.

[75] The Court explained that a structured settlement is created when some or all of a personal injury settlement is deposited with a life insurance company in exchange for guaranteed tax-free payments for a specific number of years, or for the recipient's lifetime. The Canada Revenue Agency does not view payments from a structured settlement as income in the hands of the recipient (para. 51). It is the casualty insurer that owns and is the beneficiary under the annuity contract and reports as income the interest element inherent in the annuity contract while the payments received by the claimant represent non-taxable payments for damages (para. 53). While the Appellant received payments from the structured settlement annuity, she did not own it nor did she have constructive receipt of the settlement monies used to create it (para. 55).

[76] The Court also held that the structured settlement annuity is more analogous to disability benefits than to a pension (para. 57).

[77] The Respondent argues that Hunks can be distinguished from the case at bar. In Hunks, according to the Respondent, the Court decided that the structured settlement annuity was income and not property because the funds used to purchase it were attributable to the future income loss head of damages.

[78] With respect, I disagree with the Respondent that Hunks stands for the proposition that to be considered income, the structured settlement annuity had to be purchased with damages arising from loss of future income for these reasons:

(a) (i) The characterization of the funds used to purchase the structured settlement annuity as damage for future wage loss was not a factor in the Hunks decision.

(ii) The parties in Hunks disagreed about the source of the structured settlement annuity.

(iii) Counsel for the Respondent in Hunks submitted that it was reasonable to infer on the balance of probabilities that the annuity was purchased with the amount of funds attributable to the future wage loss claim (paras. 20 and 48). The Respondent in the case at bar urges this Court to find that this was an essential element in the Court in Hunks finding as it did. However, in Hunks, the Appellant's position was that the annuity was not purchased with any specific head of damages funds (para. 20). This factual dispute was not resolved by the trial judge.

(iv) The Court held that the parties had agreed on the facts necessary to decide the legal issue – income or property – even though there was no finding of fact as to the source of the funds used to purchase the annuity (para. 35).

(v) In essence, the source of the funds was not an essential element of the determination of the legal issue.

(b) At para. 28 of the Hunks decision where the issues to be decided were set out, the Court simply addressed whether structured settlement annuity payments were property or income. It did not identify the source of the funds as a necessary consideration in determining the issue.

(c) Also at para 49. the Court states that it concluded the structured settlement annuity payment were income for two reasons:

i. The structured settlement annuity arises from a structured settlement; and

ii. The structured settlement annuity is analogous to disability benefits and not a pension.

Again, the Court did not identify the source of funds as being a consideration.

(d) (i) The decision of Hunks was considered by the Divisional Court in Phelps v. Childs, 2017 ONSC 1443 (Ont. Div. Ct.). Counsel did not refer to this case in their written submissions. They were asked to do so and appeared on November 23, 2017 to make further submissions. The Respondent argued that Hunks and Phelps were distinguishable because the funds used in both cases to purchase an annuity came from damages for future wage loss. He based this upon the Court in both cases likening the structured settlement annuity payments as an income stream to replace what was lost due to their personal injuries. He also argued that the settlement funds used to purchase the structured settlement annuity was capital and not property. With respect, I do not agree with these submissions.

(ii) In Phelps, the Court observed that in that case, the evidence did not establish that the structured settlement annuity was purchased with funds paid as damages for the costs of future care (para. 36). Further, it could not be inferred that the funds used to purchase the structured settlement annuity were for future care. Virtually, all of the income received was treated as family income. This is the same circumstances in the case at bar.

(iii) The Court in Phelps also interpreted Hunks to provide that "…the source of the funds used to purchase the annuity is irrelevant on the issue of … whether the annuity is income or property" (at para. 39).

(iv) In other words, the Court of Appeal's analysis was based on the instrument used to provide the Appellant with a stream of income to replace what she lost, not what part of the settlement was used to pay for it.

[79] The structured settlement annuity in this case is not distinguishable from those in issue in either Hunks or Phelps.

[80] As a matter of law, Hunks held that payments received from a structured settlement annuity are income and not property under the FLA (Phelps, para. 34).

[81] I also disagree with counsel for the Respondent that there is any merit in trying to distinguish a capital fund from property. I understand counsel to argue that even if the structured settlement annuity is not property, under the authority of Hunks, it should be considered as capital. I do not see a difference. No cases to support this distinction were provided.

[82] For these reasons, I find that the structured settlement annuity payments received by the Respondent are income for support purposes under the FLA.

[83] In Hunks, the Court found that the structured settlement annuity payments were income in the context of a spousal support claim. In this case, the Applicant seeks both spousal support and child support based upon the Respondent's structured settlement annuity.

[84] I find that the structured settlement annuity payments received by the Respondent are income for child support purposes as well. See Rilli v. Rilli, 2006 O.J. No. 4142 SCJ at para. 16.

4.2 Imputing Income in the Alternative

[85] However, if I am wrong in my interpretation of Hunks, I would impute income to the Respondent pursuant to s. 19 of the Guidelines having regard to the monthly payment he receives for the reasons set out below.

4.2.1 Legal Considerations

[86] The Guidelines at sections 15 to 19 provide the methodology for determining a parent's annual income for child support purposes.

[87] As the structured settlement annuity is not taxable, it is not included in the calculation of the Respondent's "total income", that is, in line 150 of his T1 tax return (Guidelines s. 16). However, ss. 19(1) of the Guidelines provide that a court may impute such amount of income to a parent as it considers appropriate in the circumstances, which circumstances include those enumerated. The receipt of income from a structured settlement annuity is not set out in the circumstances listed. However, the circumstances listed in ss. 19(1) are not exhaustive. The Court can impute income in appropriate circumstances bearing in mind the objectives of the Guidelines: see Bak v. Dobell, 2007 ONCA 304.

4.2.2 Application of Legal Considerations

[88] In this case, I find it would be appropriate to impute income, or rather attribute the structured settlement annuity payments to the Respondent as income because:

a) the payments are received in predictable amounts, recurring on a monthly basis and are non-assignable;

b) the structured settlement annuity payments fund all of the Respondent's expenses and his financial obligations. His financial statement discloses that this is the case. He also acknowledged this in his oral evidence. One of his most important financial obligations is to provide for his children to the extent he is capable of doing so: see FLA, ss. 31(1); and

c) according to Hunks, the structured settlement annuity payments are income for spousal support purposes. Courts generally treat income for spousal support purposes the same as income for child support purposes: see Rilli v. Rilli, 2006 O.J. No. 2142 SCJ, para. 14.

4.3 Gross-up for Taxes

4.3.1 Position of the Parties

[89] The Applicant asks that the amount of the structured settlement annuity payments be grossed-up to take into account the fact that there is no tax payable upon them by the Respondent.

[90] The Respondent argues that there should be no or in the alternative, limited gross-up because:

a) the parties agreed in the Separation Agreement that support would be based on the actual payment;

b) there are special provisions in the Separation Agreement that would allow the Court, pursuant to FLA ss. 37(2.3), to make an order other than in accordance with the Guidelines; and

c) if the gross-up to taxes is found to be appropriate it should apportioned only to 10% of the structured settlement annuity payment as this is the amount he argues was at most attributable to wage loss.

4.3.2 Additional Facts

[91] The Separation Agreement also addressed property issues. Title to the jointly-owned family residence was transferred to the Applicant. Debts were also dealt with by apportioning responsibility for specific debts between the parties.

4.3.3 Legal Considerations: Gross-up

[92] The Guidelines permit a court to impute income to a support payor in circumstances where that person has a lower income tax obligation than is usual. (See Guidelines cls. 19(1)(b)(c) and (h)). The usual or prototypical support payor is one who derives income that is taxable, such as from wages, investments or rental income. Section 19 allows the Court to impute income to those payors who do not fit this prototype: See Rivard v. Hankiewicz, 2007 ONCJ 180 (para. 26).

[93] One of the objectives of the Guidelines is to "ensure consistent treatment of spouses and children who are in similar circumstances." (See Guidelines ss. 1(d)).

[94] The Guidelines provide that parental responsibility for child support is based upon before tax income: (see Guidelines s. 16).

[95] Grossing-up the income of support payors with a lower than usual tax obligation ensures consistent treatment of spouses and children who are in similar circumstances.

4.3.4 Legal Considerations: Special Provisions

[96] Subsection 37(2.2) requires the Court to make any child support variation order in accordance with the Guidelines. However, if the agreement contains special provisions, the Court can make an order not in accordance with the Guidelines. The special provisions must benefit the child such that the application of the Guidelines would produce an inequitable result (ss. 37 (2.3)).

[97] The case of Wright v. Zaver, [2002] O.J. No. 1098 (Ont. C.A.) addressed ss. 37(2.3) and provides that:

a) The term "special provisions" is not to be read restrictively or limited to "out of the ordinary or unusual" provisions, so long as the provisions replace in whole or part the need for child support in accordance with the Guidelines;

b) The special provisions must benefit the children; and

c) The special provision must lead to a result that the application of the Guidelines would produce an amount of support that would be inequitable – that is the equities between the parties would be out of balance – given the special provisions.

4.3.5 Application of Legal Principles

[98] I do not agree with the Respondent that within the Separation Agreement the parties agreed to calculate child support indefinitely on the actual account of the structured settlement annuity payment. The Respondent's proposed interpretation of the agreement does not necessarily follow when the entirety of the child support provisions are considered.

[99] What is clear in the Separation Agreement is that:

a) The parties agreed to an amount of child support; and

b) They acknowledged the amount of the structured settlement annuity payment at the time and that it was a tax-free amount.

[100] What is not clear from the Separation Agreement is the relationship between:

a) the amount of child support agreed to;

b) the structured settlement annuity payment; and

c) the Guidelines.

[101] The parties did not expressly, nor do I find impliedly agree to a regime of child support only in accordance with the actual amount of the structured settlement annuity payment. Had they wished to do so they could have clearly included this in the Separation Agreement.

[102] The parties recognized within the Separation Agreement that the structured settlement annuity payment was received on a tax-free basis and did so presumably as this was a benefit to the Respondent. They did not articulate how or if the benefit factored into the amount of child support the Respondent was to pay then and into the future.

[103] It is for these reasons that I do not accede to the Respondent's interpretation of the agreement in this regard, nor do I find the s. 15(2) of the Guidelines is engaged.

[104] I also respectfully disagree with the Respondent's submission that there are special provisions within the agreement.

[105] The Separation Agreement does not contain any wording to the effect that the property, child support or spousal support provisions whether looked at individually or collectively amount to or were expected to be special provisions as contemplated under FLA ss. 37(2.3). An explicit reference is not a necessary feature of a special provision on its own, but is one factor to be considered.

[106] At most, the amount transferred was $9,000.00 and debt assumed was also $9,000.00. The Respondent has not demonstrated how the transfer of his equity in the family residence in conjunction with the apportionment of debt benefited the children, directly or indirectly.

[107] Further, the Respondent has not demonstrated that grossing-up the Respondent's structured settlement annuity payment for the calculation of child support would put the equities of the parties out of balance.

[108] The Respondent argues in the alternative that at best ten percent of the structured settlement annuity is attributable to wage loss, so the gross-up should only be on that amount. For reasons set out earlier in this decision, I find that the entirety of the structured settlement annuity is to be treated as income for the purpose of calculating support.

[109] The structured settlement annuity is used to meet all of the Respondent's expenses and financial obligations. He has married and uses these funds to support his spouse and her three children.

[110] There is no amount out of these funds that is being used or is expected to be used at this time for significant medical or other expenses arising from the Respondent's injuries.

[111] Grossing-up all of the Respondent's structured settlement annuity income will put him in the same position as those support payors who receive income that is taxable and use it to meet their ongoing expenses. This will allow for the Respondent's children to receive support in a manner that is consistent with other children who are in similar circumstances.

[112] I find that all of the funds received by the Respondent from his structured settlement annuity ought to be grossed-up to reflect their tax-free receipt, not just ten percent of them.

4.4 Unreported or Undisclosed Income

[113] The Applicant submits that income should be imputed to the Respondent on account of unreported earnings. She also sought to impute income on interest the Respondent could earn on his structured settlement annuity payment. In her written submissions, the Applicant stated that she would not pursue this claim if the Court found that grossed up structured settlement annuity payments were treated as income for support purposes. Having found that they are, I make no order that the Respondent have income imputed to him on the basis of unreported income. Regardless of the Applicant's conditional concession, I would not have made such an order.

[114] I accept the Respondent's evidence that he has not had unreported income to such an extent that income on this basis should be imputed to him. In the past he had one significant business venture, building homes, and in the end it was not successful. The Applicant gave evidence that she was contacted on occasion by people looking for the Respondent to collect money owed to them arising from this business venture.

[115] The Respondent has also undertaken small and infrequent concrete installation jobs. I find that he did attend at some jobsites. However, I also accept his evidence that he was not physically able to do all of the work so he had help, often from relatives. The Applicant put in evidence photographs of the Respondent sitting in construction equipment. I accept his evidence that in these photographs he was posing. He did not appear to be actively engaged in the operation of the equipment when photographed.

[116] I also take into account that in his income tax filings the Respondent did include business income in some years.

[117] I also accept that because of his physical limitations the Respondent did not work as an excavator operator on the Parkway project. I find that Dr. Lee misinterpreted his statements to her in this regard.

[118] Finally, I accept the Respondent's submissions that any additional income he has received was nominal and that it is not appropriate on the evidentiary record before the Court to impute income to him on this basis.

[119] I would not impute income on the basis of income that could be earned on the structured settlement annuity payment. These funds are used to a significant extent to meet the Respondent's ongoing expenses.

5: Issue #3 – What Should be the Start Date for Prospective Child Support?

[120] In Mackinnon v. MacKinnon (2005), 75 O.R. (3d) 175 (Ont. C.A.), the Court held that a support claimant is presumptively entitled to prospective support from the date that notice was given that a support claim was being pursued. I find that there is no reason in this case to depart from the presumptive entitlement. In this case, the Application was issued July 7, 2011. It was served upon the Respondent on July 12, 2011. Included in this Application is a claim for child support. Neither party blamed the other for inordinate delay while this case was before the Superior Court of Justice.

[121] The start date for prospective child support shall be August 1, 2011 being the first day of the month next following the issuance and service of the Application.

6: Issue #4 – What Has the Respondent's Grossed-up Income Been Since August 1, 2011?

[122] For the reasons set out above, I find that the Respondent's income for child support purposes is the amount grossed-up for taxes of his structured settlement annuity payments. The Applicant used DivorceMate to calculate the gross-up. These calculations were not disputed by the Respondent. Accordingly, I find that the Respondent's annual income for the calculation of prospective child support has been as follows:

Period	Annual Income
August 1, 2011 to January 31, 2012	$349,186.00
February 1, 2012 to January 31, 2013	$359,603.00
February 1, 2013 to January 31, 2014	$370,760.00
February 1, 2014 to January 31, 2015	$394,834.00
February 1, 2015 to January 31, 2016	$423,237.00
February 1, 2016 to January 31, 2017	$438,213.00
February 1, 2017 and ongoing	$452,662.00

7: Issue #5 – What Amount of Child Support Should be Ordered Where the Respondent's Income is Over $150,000.00 Per Year?

[123] The next issue raised by the parties is whether the Table amount of child support the Respondent is to pay should be adjusted if his income is determined to be over $150,000.00 per year.

7.1 Statutory Provisions

[124] Section 4 of the Guidelines provides that where a payor's income is over $150,000.00 the amount of child support can be other than the Table amount if that amount would be inappropriate.

[125] Section 4 provides as follows:

Incomes over $150,000

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

7.2 Position of the Parties

[126] The Respondent argues that the Table amount of child support is inappropriate because it exceeds the Applicant's expenses for the children.

[127] The Respondent further argues that the Applicant should have provided a childcare expense budget but did not. Counsel for the Respondent cross-examined the Applicant at the trial on her most current financial statement. On the basis of that financial statement and the cross-examination, the Respondent submits that the expenses related to the children, Adrian and Luca, total $1,986.65 per month. The Table amount of child support for the two children based upon the Respondent's non-grossed-up annuity payment at this time is $3,107.00. This amount, he argues, exceeds the children's needs based on their, what he describes as comfortable, but not extravagant lifestyle.

[128] The Applicant's position is that the Table support is appropriate having regard to the condition, needs, means and other circumstances of the children and the respective abilities of each to contribute to their support.

[129] The Applicant further argues that the children's expenses as suggested by the Respondent are not accurate because it fails to take into account that he calculated her total monthly expenses at $5,353.00 and did not consider that these expenses were after tax ones to her. He did not take into account that she has had to borrow money to meet ongoing needs. She has had capital expenses to help her meet the needs of the children, including purchasing a vehicle necessary to transport them, continue repairs to her home and purchase life insurance for the children.

[130] As well, the Applicant argues that the Respondent incorrectly apportioned expenses between the Applicant and the children. On the support received she has not been able to save any money for her future or purchase a second vehicle for the use of the children.

7.3 Legal Considerations: Income Over $150,000.00

[131] Section 4 of the Guidelines provides the Court with two options when dealing with a payor whose income is over $150,000.00 per year.

[132] The first option is to award Table support and an amount for special and extraordinary expenses.

[133] The second option arises if the Court considers the first option to be inappropriate.

[134] If the second option is found to be appropriate, then child support will be determined in a three-step process:

a) Table support is calculated on the payor's first $150,000.00 of income;

b) In respect of the payor's income in excess of $150,000.00, the Court must determine an amount it considers appropriate having regard to:

(i) the condition, means, needs and other circumstances of the children;

(ii) the financial ability of each parent to contribute to the children's support.

c) An amount for special or extraordinary expenses is determined.

[135] There is a presumption that Table support is the appropriate amount to award: Francis v. Baker, [1999] 3 S.C.R. 250 para. 42.

[136] A payor who wants the Court to order a different amount bears the onus of rebutting that presumption by "clear and compelling evidence". Francis v. Baker, supra para. 43. The onus is to demonstrate on the evidence that the Table amount of support would be inappropriate.

[137] The Supreme Court of Canada addressed the meaning of the word "inappropriate" in the context of s. 4 in Francis v. Baker, supra. The Court held that "inappropriate" is to be broadly defined to mean "unsuitable" rather than merely "inadequate" (para. 40).

[138] The Court also considered the objectives of child support under the Divorce Act when considering what would be an inappropriate amount of support. The case before this Court is brought under the FLA which addresses the purposes for child support at ss. 33(7) as follows:

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the Guidelines.

[139] These purposes are similar to those set out in the Divorce Act.

[140] The Court in Francis v. Baker addressed standards of living and a child's needs in paragraph 41 as follows:

41 "…While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child's reasonable needs. In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children's reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support. I wholly agree with the sentiment of Abella J. A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support. But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4 (b)(ii) of the Guidelines. Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4. In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines' objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children's reasonable needs so as no longer to qualify as child support. This is only possible if the word "inappropriate" in s. 4 is interpreted to mean "unsuitable" rather than merely "inadequate".

[141] The Court then addressed how "inappropriateness" is established at paragraphs 42 – 44:

42 "…under s. 4(b)(ii) any amount attributable to income above the $150,000 threshold can be reduced or increased by a court if it is of the opinion that the amount is inappropriate having regard to the condition, means, needs and other circumstances of the children, and the financial abilities of the spouses. Nevertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts… Accordingly, the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate…

43 The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence. No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a party may not be able to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party…

44 While there must be an "articulable reason" for displacing the Guideline figures … relevant factors will, of course, differ from case to case. …[T]he factors relevant to determining appropriateness which Parliament expressly listed in s. 4 (b)(ii), that is, the condition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to the initial determination of inappropriateness. Only after examining all of the circumstances of the case, including the factors expressly listed in s. 4 (b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards."

[142] In assessing the needs of the children – one factor in the inappropriateness inquiry – the Court considered evidence that may be found in a child expense budget at paragraph 45 as follows:

"The task of determining whether Guideline figures are inappropriate under s. 4 must be undertaken by courts armed with all of the necessary information. Given that, as I explained above, children's needs are one of the factors to be considered in assessing appropriateness under s. 4, child expense budgets which provide some evidence, albeit imperfect, of the children's needs will often be required in contested case is consistent with s. 21(4) of the Guidelines, which requires custodial parents to provide certain financial information within a specified time after learning that the paying parent's annual income exceeds $150,000… However, unlike the forms of financial disclosure expressly required under s. 21(4), Parliament did not choose to create a blanket rule requiring custodial parents to produce child expense budgets in all cases where s. 4 of the Guidelines is invoked. I would therefore leave it to the discretion and experience of trial judges to determine on a case-by-case basis whether such budgets will be required."

[143] However, the Court also recognized at para. 49 that there are problems with childcare budgets:

49 While child expense budgets constitute evidence on which custodial parents can be cross-examined, their inherent imprecision must be kept in mind. Where one figure is overestimated, it is possible that another is underestimated. Furthermore, as the trial judge recognized and counsel for the appellant conceded in oral argument, the unique economic situation of high income earners must be acknowledged. Child expenses which may well be reasonable for the wealthy may too quickly be deemed unreasonable by the courts. Of course, at some point, estimated child expenses can become unreasonable. In my opinion, a proper balance is struck by requiring paying parents to demonstrate that budgeted child expenses are so high as to "excee[d] the generous ambit within which reasonable disagreement is possible": [Citation omitted].

[144] In R. v. R, the Court found that in a s. 4 analysis, the family's lifestyle and pattern of expenditures were relevant in determining appropriateness.

7.4 Application of Legal Considerations

[145] The Respondent wants the court to find that the Table support is inappropriate because it would be excessive having regard to the needs of the children. In order to consider this argument, the presumptive amount of child support must be identified. These amounts, since 2011, for the two children, have been provided by the Applicant in her DivorceMate calculations. They are:

Year	Monthly Table Amount
2011	$4,283.00
2012	$4,401.00
2013	$4,529.00
2014	$4,803.00
2015	$5,127.00
2016	$5,298.00
2017	$5,462.00

[146] The Applicant did not provide a child expense budget for any of these years.

[147] While the parties cohabited, they resided in homes owned by one or both of them.

[148] The Applicant remained at home with the children while the Respondent for part of the time they cohabited operated an unsuccessful home building business and occasionally contracted small concrete jobs. They managed to meet family expenses out of the structured settlement annuity payments. Financial difficulties arose as the construction business failed and the Respondent gambled away more money than he could afford. Shortfalls in finances were on occasion made up by borrowing from their respective parents and other borrowing.

[149] After the separation, the children's needs were met by the child support payments made by the Respondent under the Separation Agreement of $2,500.00 per month, and when she was working, from the Applicant's employment income. She also received sporadic child support from her eldest son's father until that child moved from the mother's home. In 2004, the Applicant declared bankruptcy but was able to keep her home because she then had little equity in it.

[150] Since starting this case in 2011, the Applicant has supported herself and the children with the support payments she receives from the Respondent under the Separation Agreement, and when working, employment income. In 2011 and 2012 the Applicant had rental income of $4,200.00.

[151] In her financial statement sworn June 17, 2011, the Applicant claimed expenses for the two children and her in the amount of $3,090.00 per month. The children were then 13 and 11 years of age.

[152] In her financial statement sworn September 26, 2016, the Applicant anticipated annual income of $10,000.00 from employment. She also claimed monthly expenses of $6,585.20. Her monthly deficit based on that financial statement was $2,400.00 per month. It is not clear from the evidence how such a deficit would have been financed.

[153] In her April 21, 2017 financial statement, the Applicant swore that her monthly expenses for the children and her were $5,363.23.

[154] It is not possible to extrapolate from these expense budgets an accurate or even somewhat reliable child expense budget. The Respondent attempted to do so in his submissions, however, it is arbitrary in the apportionment of the expenses between the Applicant and the children. I do not find it to be a reliable children's budget for the purposes of this inappropriateness analysis.

[155] The evidence does disclose that the Applicant is able to meet the needs of the children except for being able to purchase them a car, take vacations and participate in counselling, having regard to the standard of living they can afford. There are no excessive expenses, nor does it appear that there is much, if any, discretionary spending on their behalf.

[156] The Respondent's financial statement sworn August 12, 2011, claimed expenses for himself in the amount of $16,716.00. This included a payment of $5,700.00 to his mother each month. These expenses were all paid out of his structured settlement annuity payment.

[157] The Respondent married and began living with and supporting his wife and her three children on September 26, 2015.

[158] The Respondent swore a financial statement on December 14, 2016. In it he claimed monthly expenses of $21,069.00. This included a $6,000.00 monthly repayment of a loan to his mother. The budget also includes $2,450.00 for household expenses and $2,745.00 for transportation. It does not include any medical expenses for himself. He had two vehicles and $40,000.00 in savings.

[159] In his financial statement sworn May 1, 2017, the Respondent claims monthly expenses of $20,319.00. Included in this sum, is the amount of $6,000.00 on account of a repayment of a loan to his mother and $3,200.00 on account of child support and spousal support. The financial statement also discloses that he has three vehicles and savings. The financial statement also discloses that he owes his mother $160,000.00 but no corresponding asset or purpose for the loan is shown within the financial statement.

[160] In his oral evidence, the Respondent described the monies owing to his mother as accumulating over the years. He always borrowed monies from her, although he did not really keep track of it all but included in it were monies he borrowed from his mother to repay gambling debts he incurred. His indebtedness to his mother was paid in full at some point and then he borrowed again $190,000.00 from his mother.

[161] The Respondent's evidence is that in November 2016 he borrowed $190,000.00 from his mother. He used these monies to pay legal expenses, a loader for a farm, to pay off credit card debt and $40,000.00 for his wedding.

[162] The Respondent's financial statements of December 14, 2016 and May 1, 2017 show that he is able to support himself, his wife and her children, accumulate assets and pay a substantial amount to his mother on account of indebtedness owed to her. His financial statement suggests that he has enough to fund discretionary expenses, especially for household expenses, transportation and personal expenses. I also take into account the apparently arbitrary amount of the monthly debt payment he makes to his mother.

[163] When balancing all of the foregoing in the context of ss. 4 (b), I find that the Respondent has not shown by way of clear and compelling evidence that the presumptive amount under the Tables is or has been inappropriate since the commencement of this case in July 2011.

[164] The amount of support payable pursuant to the Table is in excess of the amount the Applicant was able to budget or use for the children's needs. She managed her affairs responsibly in this regard. These children should have and should continue at this time to receive the benefit of the Table amount of the Guidelines. The amount of child support under the Tables is not so in excess of these children's reasonable needs – in the context of the resources available to the Applicant and Respondent – that the payment amounts to a functional wealth transfer to the Applicant or de facto spousal support. In this case, I recognize the Table support will provide some indirect benefit to the Applicant but not to the extent that it makes the Table amount inappropriate, that is, unsuitable.

[165] In addition to the Table amount of child support, the Respondent shall be required to pay his proportionate share of post-secondary education expenses.

[166] For these reasons, the Respondent is to pay to the Applicant Table amount of child support for the two children from August 2011. The annual increase in child support shall be calculated and commence in February of each year as this coincides with the month there is an increase in the structured settlement annuity payment to the Respondent. The Respondent is to be given credit for all of the child support payments he has made since August 2011 under the terms of the Separation Agreement and temporary court orders. The Respondent is also to pay his proportionate share for Adrian's post-secondary education. He is to be given credit for his contribution of $4,000.00 towards this expense previously provided.

8: Issue #6 – What Are Adrian's Post-Secondary Education Expenses and How Much Should the Parties and Adrian Contribute?

[167] The tuition costs for Adrian's first year in the Culinary Management Program at St. Clair College which began September 2017 is $4,314.75. The tuition cost for the second year of this program is expected to be $4,181.87.

[168] Before determining the amount each parent should contribute I must consider what amount if any Adrian should contribute towards this expense.

[169] In the 2016 tax year Adrian earned total income of $3,910.00. This income was earned in part during the school year while he worked part time approximately 15 hours per week. With his earnings he pays for a certain of his own expenses. He did not save any of this income to assist with paying for his post-secondary education expenses.

[170] Adrian received no bursaries or scholarships in the past nor is there any evidence that he will for this academic year.

[171] Adrian must contribute a reasonable amount of money toward his needs including his post-secondary education cost. The only means he has to do this at this time is out of his part-time employment income. Adrian has demonstrated that he understands his responsibility in this regard by maintaining part-time employment.

[172] I find that it is not necessary for Adrian to apply for student loans. He and his parents together have the means to pay for his post-secondary education costs that he will incur at St. Clair College.

[173] Based on:

1. the costs of the program he is to engage in;

2. his ability to earn income and meet his expenses; and

3. the necessity that he be able to devote considerable amount of his time towards his academic pursuit so that he does not again experience that which he did in his first attempt at St. Clair College

I find that Adrian should contribute $1,000.00 toward his post-secondary education costs at St. Clair College for the academic year 2017-2018 and a further $1,000.00 for the academic year 2018-2019.

[174] The Applicant and the Respondent are to contribute their respective proportionate share towards Adrian's post-secondary education expenses less the $1,000.00 to be paid by him each year in keeping with the guiding principle set out at ss. 7(2) of the Guidelines. These expenses will include those identified by St. Clair College together with text book costs.

[175] For the purpose of determining the parties' respective proportionate shares, I find that the 2017 income of the Respondent for child support purposes is $452,662.00 and the Applicant's is $21,949.17 based on her 2016 income from employment. The parties shall also take into account s. 3.1 of Schedule III of the Guidelines which provides as follows:

3.1 To calculate income for the purpose of determining an amount under section 7 of this Regulation, deduct the support, not including child support, paid to the other parent or spouse and, as applicable, make the following adjustment in respect of universal child care benefits:

(a) deduct benefits that are included to determine the parent or spouse's total income in the T1 General form issued by the Canada Revenue Agency and that are for a child for whom special or extraordinary expenses are not being requested; or

(b) include benefits that are not included to determine the parent or spouse's total income in the T1 General form issued by the Canada Revenue Agency and that are received by the parent or spouse for a child for whom special or extraordinary expenses are being requested.

[176] The same considerations should be made for the academic year 2016-2017. For that year the Respondent's income was found by me to be $438,213.00. The Applicant's income was $31,069.17 and Adrian's $3,910.00. He should have contributed $1,000.00 toward his post-secondary education expenses for that academic year as well. Again, the s. 3.1 of Schedule III considerations are to be factored in the calculation.

9: Issue #7 – What Are Luca's Orthodontic Expenses and Are They Special Expenses?

[177] The Applicant asks the Court to order the Respondent to pay his proportionate share of Luca's orthodontic expenses.

[178] Orthodontic treatment is an expense, the payment of which, is to be shared in accordance with s. 7 of the Guidelines (ss. 7(1) (c) and (2)).

[179] This orthodontic expense has not yet been incurred by the Applicant. It is not yet known whether orthodontic treatment will be necessary. The Applicant's evidence is that the necessity for treatment will not be known until Luca stops growing. This is advice that she has received from the Orthodontist consulted by her. Until the need for this expense is determined, the Court will not make an order requiring a specific contribution be made at some time in the future. Too many of the variables the Court must determine under s. 7 are not yet known. The calculation can be made when it is determined, if the treatment is needed and the expense is known.

10: Issue #8 – Retroactive Child Support

Child Support: Prior to the Commencement of This Case

[180] The parties have put in issue the Respondent's child support obligation from the date of separation to the date this case was started.

[181] Counsel referred to this as a retroactive child support obligation. I will use the term 'retroactive' to refer to that period.

10.1 Position of the Parties

[182] In her written submissions the Applicant claims that the Respondent is in arrears under the Separation Agreement as he did not increase child support tri-annually as provided for in cl. 14(c) of the Separation Agreement. The amount calculated and claimed by the Applicant as owing during the retroactive period is $63,942.06. She asks that the Respondent be ordered to pay this amount to her on account of retroactive child support.

[183] Alternatively, the Applicant claims the Table amount of child support for the retroactive period based on the Respondent's grossed-up annuity payment for two children – Adrian and Luca – throughout this period. She argues that the child support provisions in the Separation Agreement were never intended to apply to Joshua.

[184] The Applicant calculated the difference between the amount paid and the Table amount that should have been paid as $128,298.00. She asks that if arrears are calculated on this basis, that the Respondent only be required to pay $75,000.00.

[185] The Respondent argues that he has paid all that was required of him during the retroactive period. The basis of this submission is that he honoured the oral agreement made by the parties after Joshua moved from the Applicant's home. It is his position the child support provisions pertained to three children and the reason for the oral agreement was to reflect that Joshua had moved from the Applicant's home but that the amount of $2,500.00 would be paid and no tri-annual increased would be sought.

[186] If the Court calculates retroactive child support based on the Guidelines, the Respondent submits in the alternative that he has underpaid child support in the sum of $19,747.00 to January 1, 2016. This calculation is based on the Respondent's actual annuity payment, three children to 2004 and two children thereafter. He asks that if the Court finds that there are any arrears owing they be rescinded. He relies upon D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231 ("DBS").

10.2 Discussion

[187] For the reasons that follow, I find:

1. The child support provisions in the Separation Agreement as drafted pertain to three children;

2. The arrears that accrued during the retroactive period are $63,942.00 based upon cl. 14(c) of the Separation Agreement; and

3. The arrears that accrued should be rescinded.

10.2.1 Did the Child Support Provisions of the Separation Agreement Pertain to Two Children or Three Children?

[188] The parties spent a considerable amount of time during this trial dealing with this issue. In submissions, they referred to the Separation Agreement and parol evidence of surrounding circumstances when the agreement was made.

[189] In order to determine this issue, I will first consider just the cl. 14.

[190] Cl. 14(a) of the Separation Agreement provides as follows:

"14(a) Commencing on the first day of the month following the sale of the home, or in the event that the home is not sold and the wife has refinanced the mortgage, on the first day of the first month following same, and on the first day of each and every month thereafter, the husband shall pay to the wife the sum of $2,500.00 per month for the support of the children of the marriage until one or more of the following occurs…"

[191] This clause specifically provides that the Respondent is to pay child support for the "children of the marriage." The clause then deals with the events that will result in the termination of a child support obligation for a child.

[192] The next reference in the Separation Agreement relevant to this issue is to the Applicant being entitled to claim tax benefits for the "children" (cl. 14(b)).

[193] The particular words "support for the children of the marriage" in cl. 14 do not specifically set out whether the child support provisions relate to two children or three children. The term "children of the marriage" is not defined within this clause. The phrase "children of the marriage" is inappropriately used as the parties were not married. The fact that they cohabited and were not married is specifically referred to in the background clause of the agreement at paragraph 2(a) which provides:

"2(a) The husband and the wife never married, although they have lived in a common law relationship commencing in October, 1993;"

[194] In interpreting cl. 14, I would not rely on the words "of the marriage" and simply read the claim as providing for child support for the "children". This alone does not resolve whether the term refers to two children or three children.

[195] It is necessary therefore to consider cl. 14 in the context of the agreement as a whole.

[196] I take note that in cl. 14(a) the commencement of child support is to take place in relation to the sale or refinancing of "the home." The phrase "the home" is not defined in cl. 14(a). It is not defined anywhere in the agreement. However, in the definitions section there is a definition of "family residence" and it meant the property, lot and buildings located at 2255 Forrest, Windsor, Ontario. Again, it is necessary to contextually read the definition of the "home" as being the "family residence".

[197] The Respondent is described in the Separation Agreement as standing in loco-parentis to the child, Joshua (cl. 1(a) and 2(d). In the past, such a description grounded an obligation upon that person to pay child support for that child. The Child Support Guidelines now provide at s. 5 that this obligation is imposed upon a person who "stands in the place of a parent for a child." In the context of the Separation Agreement as a whole, I interpret loco-parentis as used in it as creating a child support obligation upon the Respondent with respect to Joshua.

[198] In the definition section of the Separation Agreement "children" is defined at cl. 1(a) iii as follows:

" Children" means Adrian Stefano DeRose, born October 26, 1998, and Luca Marco DeRose, born March 9th, 2000, who are children of the relationship and Joshua Jerome Ridley, born May 19, 1991, who was not the biological child of the husband, however, the husband has stood in loco-parentis.

[199] In the background section of the Separation Agreement it provides at cl. 2(d):

"There are three children of the relationship, namely, Joshua Jerome Ridley born May 19, 1991, Adrian Stefano DeRose born October 26, 1998 and Luca Marco DeRose born March 9th, 2000. Joshua Jerome Ridley, is not the biological child of the husband, however the husband has stood in loco-parentis to this child."

[200] Throughout the custody and access provisions of the Separation Agreement the parties' rights and obligations are to their "children". One can reasonably conclude that the rights and obligations relate to the children whose custody is being dealt with, that is, the three children.

[201] When looked at in the context of the entire agreement, I find that the child support provisions contained in paragraph 14 pertain to the three children at the time the agreement was made.

[202] If I am wrong and there can be said to be ambiguity in the meaning of "children of the marriage" within cl. 14, I would consider parol evidence to resolve this issue.

Parol Evidence – Legal Considerations

[203] The parol evidence rule is a general principle of Contract Law prohibiting the use of extrinsic evidence to interpret a contract: See Rateja v. Rateja, (2008), 57 R.F.L. (6th) 408 at 5.

[204] There are exceptions to the parol evidence rule. One of the exceptions arises where there is ambiguity in the contract. If the Court finds ambiguity exists, the Court, in certain circumstances may look at extrinsic evidence to resolve the meaning of an ambiguous term: See Rateja, para. 10.

[205] When the issue of parol evidence arose during the trial I allowed such evidence to be admitted on the basis that in my view, the evidence was relevant and potentially probative of the issue raised: See Corey Developments Inc. v. Eastbridge Developments (Waterloo) Ltd. (1997), 34 O.R. (3d) 73.

[206] I have considered the following parol evidence.

[207] I find that the Respondent treated the child Joshua as his own. The child called him "Dad." The Respondent provided for his support while the parties cohabited. He took Joshua on a trip to Disneyland on his own. The Applicant received only sporadic support from Joshua's biological father and the child rarely saw that person. The Respondent provided financially for the child. The parties' family was comprised of the two adults and the three children. This is reflected in the custody and access provisions of the Separation Agreement. The Respondent was to have reasonable access.

[208] I do not accept the Applicant's evidence that she told the Respondent at or before the time the Separation Agreement was made that child support was only for two children and that she would not make him pay for a child who was not his. The agreement specifically provides that the Respondent stood in loco-parentis to the child, Joshua. He was part of their family while the parties cohabited. The Applicant's evidence on this issue is inconsistent with the weight of all the surrounding circumstances of the family and the wording of the Separation Agreement.

[209] I do not consider it helpful as suggested by counsel for the Respondent to compare the amount of child support agreed to in the Separation Agreement with the Guideline Tables in force at the time. The Respondent submitted that based on his structured settlement annuity payment being $148,884.00 per year the table amount of child support for the three children at that time was $2,282.00. He asked the Court infer that the $2,500.00 per month figure must therefore be for three children. However, the only evidence that explains how the amount of support was arrived at was given by the Applicant. She explained that when she was a child her father was required to pay her mother $32.00 per month. On this basis she told the solicitor she retained to draft the agreement that she wanted $3,200.00 per month in support. It was the lawyer who apportioned the requested sum between child support ($2,500.00) and spousal support ($700.00). The basis for doing so was not provided in evidence.

[210] Taking into account the facts that led to the making of the Separation Agreement and the circumstances as they existed at the time it was entered into I find that the children referred to in cl. 14 are the three children referred to in the definitions section of the Separation Agreement.

10.2.2 What, If Any, Arrears Accrued During the Retroactive Period?

[211] The formula to calculate the child support increases the Respondent should have paid during the retroactive period was set out at cl. 14(c). As stated earlier in these reasons, this clause provides that there be tri-annual increases based upon the increase in the Respondent's annuity payment. I accept as correct the mathematical calculation of the formula mandated by cl. 14(c) made by the Applicant. That calculation is the difference between what should have been paid during the retroactive period and what was paid. This amount is $63,942.06. This is what the Separation Agreement provided.

Is the Oral Agreement Enforceable?

[212] What the parties did do was come to an oral agreement to maintain child support at $2,500.00 per month for Adrian and Luca once Joshua moved from the Applicant's care. Both the parties acted on this oral agreement until the Applicant felt compelled to bring this proceeding in July 2011.

[213] The Respondent argues that this oral agreement should be enforced against the Applicant when determining what amount of support he should have paid during the retroactive period.

[214] With respect, I find that the oral agreement is unenforceable on its own because:

1. The parties agreed in the Separation Agreement at cl. 39 that any amendments to the agreement would be unenforceable unless made in writing and signed by both parties before a witness; and

2. ss. 55(1) of the FLA provides that an Agreement to amend a domestic contract is unenforceable unless the formalities described in that subsection are met, that is, the agreement must be in writing and signed by both parties before a witness.

[215] In this case, the formalities required for the amending agreement were not met. The Respondent argues that the lack of formalities should not render the oral agreement unenforceable.

[216] He relies upon MacNamara v. MacNamara, 2010 ONSC 3785, for the proposition that a collateral oral contract amending a prior written agreement is valid so long as it is not inconsistent or contradictory to the agreement. In that case, the parties were found to have orally agreed to reduce the amount of child support provided for in their written Separation Agreement because of increased access costs incurred when the custodial parent moved away. Their written agreement also contained a clause that amendments had to be in writing.

[217] There are factual similarities between MacNamara and this case. In both cases:

(1) There was an oral agreement to vary a child support provision;

(2) Both agreements contained a clause requiring any variations be in writing; and

(3) Both agreements considered when a change in child support would be appropriate.

[218] Despite these similarities and with respect, I am not able to rely on MacNamara to find the oral agreement enforceable, as requested.

[219] I do so for two reasons:

1. Both of the cases relied upon in MacNamara to support the validity of the oral agreement were decided in the context of ­­­­­­­­­­­­­­­commercial litigation: Shelanu Inc. v Print Three Franchising Corporation concerned a franchise dispute and Hawrish v. Bank of Montreal concerned a guarantee of indebtedness. Principles of contract law derived in commercial cases may not always be applicable to family law cases. Subsection 55(1) specifically requires that certain formalities are required for a domestic contract to be enforceable. This recognizes the unique circumstances found in the formation of domestic agreements. Subsection 55(1) does not appear to have been considered specifically by the Court in MacNamara; and

2. The parties specifically agreed in their Separation Agreement that to be enforceable, any amendments had to be in writing and signed before a witness. I would give effect to the parties stated intentions which were unambiguously expressed in the agreement.

[220] While I find that the oral agreement to vary the separation agreement is not enforceable as he requests, I will consider it in the context of the Respondent's request to rescind arrears.

10.2.3 Should the Arrears Found to Have Accumulated During the Retroactive Period Be Reduced or Rescinded?

[221] The additional evidence of the parties relevant to the determination of this issue follows.

Evidence of the Applicant

[222] In 2001, the Applicant and three children moved from the home they resided in with the Respondent, to Amherstburg. She filed the Separation Agreement on March 31, 2001 in the Ontario Court of Justice so that enforcement could be undertaken by the Family Responsibility office ("FRO"). She withdrew from the FRO because the Respondent told her he would "cut me off" if she did not "pull out of the FRO."

[223] On February 1, 2002 the first increase in child support under the Separation Agreement was scheduled to occur. On March 5, 2002, the Applicant again filed the Separation Agreement with the Ontario Court of Justice so that enforcement through the FRO could take place. Again the Applicant stopped pursing enforcement of the Separation Agreement through the FRO because the Respondent told her he would cut her off and that she and the boys would end up in her mother's basement. Also at this time, she and the Respondent were dating off and on and she felt that she could not afford to lose support.

[224] The Respondent never increased the amount of child support he paid under the Separation Agreement. As described in these reasons the parties had a turbulent, on and off again relationship after the Separation Agreement was signed until this court case was started.

[225] Joshua went to live with his father just before his 13th birthday in 2004. The Respondent became aware of this move but he did not reduce or seek to reduce the amount of child support he paid to the Applicant after this occurred. Instead, they agreed to keep the child support payment at $2,500.00 per month. She told him that she would not seek increases in child support under the Separation Agreement if he did not harass her or try to take away the children from her.

[226] The Applicant's evidence is that she did not seek to enforce the increase of child support due to her under the Separation Agreement until she started this case because of the Respondent's behaviour toward her.

[227] The Applicant also testified that whenever she wanted to end her relationship with the Respondent he would harass her with numerous phone calls and on occasion followed her to her place of work.

[228] On one occasion she claims he entered her home through a window without her agreeing or knowing that he was doing this. He admitted doing so to her in a subsequent conversation when the relationship was in an "on" period. She believes he installed a listening device on her phone. Her belief is grounded on the Respondent knowing certain things that she had not told him. I am not able on the balance of probabilities to find that he installed a listening device. He had a key to the house. There was not clear evidence that a listening device was found.

[229] The Respondent's behaviour towards the Applicant resulted in the following circumstances:

a) The Respondent was convicted of assaulting the Applicant. He received a conditional discharge that included a non-association provision and one that he attend Anger Management Counselling;

b) The Respondent spent 14 days in jail for breaching the non-association condition;

c) The Applicant applied for a peace bond in 2008. But because they were still seeing each other she withdrew this request;

d) The Applicant applied for and was granted a peace bond against the Respondent in 2010; and

e) Again, in 2011 the Applicant was granted a peace bond against the Respondent.

Evidence of the Respondent

[230] The Respondent's evidence is that on October 16, 2000 the Applicant presented him with a Separation Agreement. He described this as being "dropped on me like a bomb." They had not had a discussion about the contents of the Separation Agreement beforehand. The Applicant went to a lawyer, had it drafted and then presented it to him. After reading the agreement that day the parties discussed some of its contents. The Respondent was not surprised that it referred to the three children, but nonetheless asked her about this aspect of the agreement. The Applicant told him that he was like a father to Joshua and that Joshua lived with them.

[231] On the morning of October 17, 2000 the Respondent spoke on the telephone with the lawyer who drafted the Agreement. He sought clarification from the lawyer about the calculation of child support increases. He was aware that the lawyer was not providing him with legal advice. Sometime later that day the Respondent signed the Separation Agreement.

[232] In 2004, he became aware that Joshua moved from the Applicant's home so he called her about this. He wanted to speak with her about his child support obligation under the Separation Agreement. When he called he told her that now that Joshua was gone they had to figure something out, that is, adjust the child support payment. The Applicant hung up on him. He tried again about a week later to speak with the Applicant and this time they came to an agreement: he would continue to pay child support of $2,500.00 per month, she would not ask for an increase and he would not "go after custody of the children."

[233] He continued to pay $2,500.00 per month in child support and $700.00 per month in spousal support. Between 2004 and 2010 the Applicant did not approach him or discuss with him increasing support.

[234] The Respondent also testified that he and the Applicant continued to have an intimate relationship between 2001 and 2010. They saw each other a couple of time a month and spoke on the phone. He had regular access with the children and would on occasion purchase items for them. Their relationship remained consistent in its nature even though he was convicted of assaulting her, and was subject to peace bonds. They still saw each other. When they argued, the Applicant would on occasion be physical with him. She would slap or push him. He did not complain to the police because he was embarrassed to do so.

[235] He denies stalking, spying or intercepting her phone communications. He had keys to her home because she gave them to him. He gave back these keys in 2010. He described the situation as throwing the keys on a table in her home when he dropped off the children. I accept his evidence of not intercepting her phone communications.

Legal Considerations: Rescind Arrears

[236] As the Separation Agreement was filed in this court, it is as if it were an order of this court. The jurisdiction of this court, therefore, to determine the issue of child support payable prior to the commencement of this application is found in FLA s. 37(2.1) which provides as follows:

(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.

[237] A change in circumstances occurred for the purposes of the Guidelines when Joshua ceased to be in the Applicant's care: See Guidelines, s. 14¶2.

[238] Both counsel submit that in these circumstances, the issue of retroactive child support is to be determined having regard to the DBS principles.

[239] In D.B.S. v. S.R.G. the Supreme Court outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the Court raised:

1. Reasonable excuse for why support not considered earlier;

2. Conduct of the payor parent;

3. Circumstances of the child; and

4. Hardship occasioned by the retroactive order.

[240] The Respondent asks that the arrears be rescinded.

[241] In Gray v. Rizzi, 2016 ONCA 152 the Ontario Court of Appeal set out the considerations for the court to apply when determining a retroactive downward variation of child support by a payor. That in effect, is the request of the Respondent.

[242] The Court set out that where a payor seeks a retroactive downward variation in support, the D.B.S. factors remain relevant (para. 51).

[243] In paragraph 60, the Court stated that the following factors should guide a court in determining whether to grant retroactive relief, 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 the child;

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

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor 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. As stated by Chappel J.:

"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. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

Application of Legal Principles

[244] I find that the Applicant did not bring this case until July 2011 because she and the Respondent made and followed the oral agreement reached after Joshua moved from her care. They agreed that the amount of child support would not increase or decrease.

[245] I also find that the Respondent did engage in behaviour as described earlier in these reasons that resulted in a criminal conviction for assault and peace bonds being granted. The Respondent was abusive toward the Applicant. He intimidated her from seeking FRO assistance to collect support in the years 2001 and 2002. Thereafter, his behaviour toward the Applicant was calculated to maintain their relationship.

[246] Financial matters related to support arose again in 2004 when Joshua moved from the Applicant's care. That issue was resolved by them. Neither would seek to change the amount the Respondent was to pay. Their relationship, tumultuous as it was, continued. For example, peace bonds were granted but not honoured by either party.

[247] The Respondent made the payments expected of him until 2011 when he reduced his support payment by $1,000.00 per month for a period of four months. He did so because he said to the Applicant that he had to pay legal fees for the peace bond case. The FRO was able to recoup these monies and it is in this timeframe that this court case was started, including the claim for retroactive child support.

[248] The Applicant submits that the evidence of Dr. Lee also supports her claim that the Respondent's coercive power and control and manipulation of her affected her ability to bring this case. While Dr. Lee is a well-qualified and respected custody and access assessor, I did not find her evidence helpful on this issue. Her involvement was in early 2012 when custody of the children was in issue. The Respondent sought a change in custody at that time principally because of the presence of a certain person the Applicant was associating with and was introducing to the children. I agree with Mr. Gordner's submission that in her evidence, Dr. Lee seemed aligned with the Applicant and that a number of facts pertaining to the Respondent that she relied upon were not proved in evidence in this proceeding.

[249] There is no evidence that the Respondent was asked for financial disclosure prior to the commencement of this court case. He, and the Applicant were content, at least until this case started, to act upon their oral agreement.

[250] In light of the oral agreement reached and acted on by the parties, I am not able to find that the Respondent was engaged in blameworthy conduct by not increasing the support that he was otherwise obliged to pay under the written Separation Agreement. Both appeared content to abide by their oral agreement.

[251] The Court was not provided with much helpful detail as to the circumstances of the children from 2002 until 2011. This was a period when Adrian was between four years old and 13 years old. He is now almost 19. Luca was between 2 years of age and 10 years of age. He is now 17. It is not clear to me what a retroactive award would accomplish in this case for a period that started 15 years ago and ended 6 years ago.

[252] The Applicant submits a retroactive award may be appropriate to compensate a child who suffered hardship in the past when needs were not being met. In this case, she argues there could have been counselling for the children and participation in extra-curricular activities.

[253] The Respondent argues that his financial responsibility to meet the needs of the children were met by the ongoing support payments he did make, as well as additional purchases for their benefit.

[254] A payment of retroactive support in the amount of $63,942.06 would cause financial hardship for the Respondent at this time. This is so because of his ongoing child and spousal support obligations to the Applicant, as well as his other reasonable expenses. While he has some savings, they are not enough to pay the Applicant's claim. Enforcement of a retroactive award would be imposed in the circumstances where both he and the Applicant had long-ago agreed as to what his child support obligations should be. I also take into account that there will be immediate arrears of ongoing child support by virtue of these reasons.

[255] In D.B.S. Justice Basterache states that:

"At all times, a court should strive for a holistic view of the matter and decide each case on its particular factual matrix."

[256] When taking all of these factors into account, I conclude that it would not be appropriate to order a retroactive child support award for the period prior to the start of this case.

[257] There has been a considerable delay in seeking enforcement of retroactive child support that is not adequately explained by the relationship between the parties other than that they both accepted and honoured their oral agreement. A retroactive award at this time and in the circumstances described in these reasons would not make up for what otherwise might have been expected from the Respondent for the benefit of the children. The retroactive award requested would be an unduly financially onerous one for the Respondent, even with a creative repayment plan.

[258] Finally, such an award would be so remote from what are the purposes of child support.

The Applicant's Claim for Retroactive Table Support

[259] Having regard to D.B.S. and the circumstances and reasons described above, I would not impose upon the Respondent a retroactive support obligation in accordance with the Table as requested by the Applicant.

11: Issue #9 – Spousal Support

[260] The Respondent seeks an order effective January 1, 2016 terminating his spousal support obligations to the Applicant under the Separation Agreement. This request is based on four separate grounds.

[261] First, the spousal support provisions should be set aside under ss. 56(4) of the FLA.

[262] Second, the spousal support provisions in the Separation Agreement resulted in unconscionable circumstances, as contemplated in cl. 33(4)(a) of the FLA.

[263] Third, under a Miglin analysis, the duration of spousal support provided for in the Separation Agreement is not in keeping with the purposes of spousal support provided for at subsections 33(7) and (8) of the FLA.

[264] Fourth, he submits that there has been a material change in circumstances that justifies spousal support being terminated.

11.1 Subsection 56(4) – Setting Aside a Domestic Contract

[265] Subsection 56(4) of the FLA provides as follows:

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

Is Relief Under ss. 56(4) Available Where the Separation Agreement Was Filed With the Court?

[266] Subsection 56(4) allows the court to set aside a provision in a domestic contract if certain circumstances exist.

[267] The Respondent submits that the relief available under ss. 56(4) applies to a Separation Agreement even though it has been filed with the court under ss. 35(1). I agree.

[268] Subsection 35(2) provides that a provision for support contained in a contract may be varied under s. 37 "as if it were an order of the court ..."

[269] It is the Respondent's position that even though the support provisions may be varied as if they were an order, the ability to raise contract defences continues.

[270] Even though a contract is filed under ss. 35(1) it remains open to a party to challenge the validity or enforceability of that contract under ss. 56(4). The mere filing of a contract under ss. 35(1) that is invalid or unenforceable, does not prevent a ss. 56(4) argument from being raised: See Jansen v. Karassik, 2009 ONCA 245 paras. 33 and 34.

Legal Considerations: ss. 56(4)

[271] The Respondent must first prove that one or more of the circumstances set out in s. 56(4) exist. If proved, the Court must then consider whether it should exercise its discretion to set aside the provision: See LeVan v. LeVan, 2008 ONCA 388.

[272] The Respondent relies upon ss. 56(4) and asks that the spousal support provisions in the Separation Agreement be set aside on the following bases:

a) He did not understand the nature or consequences of the spousal support provisions;

b) Undue influence;

c) Duress; and

d) Unconscionability.

Basis of the Respondent's ss. 56(4) Request

[273] The factors the Respondent asks this court to consider in assessing his position under ss. 56(4) are these:

a) the Respondent's lack of higher education and training,

b) his emotional and psychological state at the time the Agreement was presented and executed,

c) the pressure applied by the Applicant regarding the children,

d) the length of the cohabitation,

e) the lack of independent legal advice,

f) the total length of time he had possession of the Agreement,

g) the fact the Applicant told him regarding spousal support " we will worry about that later",

h) the fact that the applicant was only 35 years old at the time of the execution of the Agreement and according to the Agreement spousal support continues indefinitely for the entire life of the Applicant (so long as the Respondent lives),

i) the fact that the spousal support only terminates if the Applicant " remarries or dies " but not if the Applicant cohabits in a spousal relationship,

j) the fact that the duration of the spousal support and the increase described in the Agreement deviates substantially from the purposes of spousal support and the determination of the duration set out in s. 33(8) and (9) of the FLA,

k) the fact that the annuity represents pain and suffering and future care and is not income for the purposes of spousal support.

Nature or Consequences of the Spousal Support Provisions: cl. 56(4)(b)

[274] The meaning of the "nature" of the domestic contract relates to an understanding of the fundamental nature of the document. The word "consequences" relates to the effect or impact of the terms of the contract. See Moses Estate (Trustee of) v. Motzar, 2016 ONSC 1765 para. 137.

[275] I do not accept that the Respondent failed to understand the nature or consequences of his spousal support obligations under the Separation Agreement.

[276] He received the Separation Agreement on October 16, 2001. While I accept that he was upset when it was provided to him, the evidence does not support a finding that the emotional shock he experienced when the Separation Agreement was first provided lasted very long or that this affected his ability to discuss it with the Applicant, later consider it on his own, speak with the Applicant's lawyer and decide to sign it.

[277] He was not denied the opportunity to take the time to understand the agreement. After receiving the Separation Agreement from the Applicant they had a discussion about it. The discussion included the spousal support provisions. He knew that these provisions required him to pay spousal support after the children were finished their schooling. He asked the Applicant about this. She said they would speak later about it. He was not prevented from speaking about it later.

[278] He did not want to sign the agreement at that time. He kept it overnight.

[279] The next morning he contacted the lawyer who drafted the agreement on behalf of the Applicant to ask some questions. In response to a statement made by the lawyer, the Applicant said he stated that he did not want legal advice but wanted to know about his support obligations. This information was given to him including that it was based upon his annuity.

[280] After speaking with the lawyer the Respondent decided that he was going to sign the agreement and he did so that evening. He chose not to obtain independent legal advice.

[281] On this evidence, I find that the Respondent did understand the nature of the agreement and its consequences.

[282] He knew the agreement would govern his child support and spousal support obligations. He knew and understood that these obligations would start when their house sold or refinanced and be ongoing into the future, even after the children were finished their schooling. He knew how much he was expected to pay.

[283] The Respondent was not then nor is he now an unsophisticated person. The manner in which he gave his evidence is a factor in this finding. He was able to answer the questions asked of him in a focused and responsive manner. His use of language was consistent with him understanding the issues and facts before the Court.

[284] Not having a post-secondary education did not, on the evidence in this trial, impair or prevent the Respondent from knowing or understanding that he was to pay spousal support even after child support was no longer payable. I also take into account the Respondent had enough education and sophistication to engage in a home building business.

[285] The Respondent took advantage of the opportunity to speak with the lawyer who drafted the agreement. He was able to ask and have answered questions he posed.

Otherwise in Accordance With the Law of Contract: cl. 56(4)(c)

[286] The Respondent relies upon Toscano v. Toscano, 2015 ONSC 487, a decision of Justice Blishen. In this case, the Applicant sought to set aside a marriage contract based upon the grounds provided for in ss. 56(4), including unconscionability, undue influence and duress.

Unconscionability

[287] In addressing unconscionability the Court held at para. 63 and 64 as follows:

"…in general the doctrine of unconscionability with respect to domestic contracts focuses on whether or not there were unconscionable circumstances surrounding formation of the contract. It is the circumstances at the time of the drafting and signing of the contract which must be examined, not the results, under this criterion.

…The question to be asked is whether there were any "circumstances of oppression, pressure, or other vulnerabilities, and if one party's exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation."

[288] The questions the Court must consider where a claim of unconscionability is made are these:

a) was there an inequality between the parties? and

b) did the stronger party take advantage of this inequality to prey upon the other party?

[289] The Respondent has not demonstrated that there was an inequality between the parties or that he was preyed upon by the Applicant.

[290] The Respondent's initial reaction to receiving the Separation Agreement was short-lived. He was able to speak with the Applicant about the Separation Agreement. He then took it so he could consider it on his own, which he did. There is no evidence that the Applicant exerted or was in a position to exert pressure to make the Respondent sign the agreement. The house was not listed for sale yet. There is no evidence of an external factor or relationship dynamic that gave the Applicant such power over the Respondent as to render their positions unequal.

[291] Nor can it be found that she preyed upon the Respondent. He had time to consider the agreement on his own. He had the opportunity to speak to a lawyer of his own choosing. He chose to call the Applicant's lawyer. This lawyer did not exert influence or pressure the Respondent into signing the agreement. He was encouraged to seek his own counsel. He chose not to do so. There is no evidence that she pressured him to sign the agreement.

[292] In sum, the evidence does not demonstrate that the Applicant took advantage of the Respondent or that he had any vulnerability that was exploited.

Undue Influence

[293] With respect to undue influence Justice Blishen stated at para. 69:

" In considering undue influence, the court must inquire into whether there was: (i) an improvident bargain, and (ii) if so, whether there was inequality in bargaining power (see Hyldtoft v. Hyldtoft (1991), 33 R.F.L. (3d) 99 (Ont. Gen. Div.) at paras. 26-28). To establish undue influence or inequality in bargaining power, "the plaintiff must prove the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power" (see Segal v. Qu (2001), 17 R.F.L. (5th) 152 (Ont. S.C.J.) at para. 59).

[294] The record does not support a finding that there was an inequality in bargaining power. Once the Separation Agreement was provided to the Respondent, he was not prevented in any way from considering its terms, seeking clarification of expectations arising from it, or suggesting different terms.

[295] The Applicant did not have any discernable advantage or power over the Respondent such that she could take advantage of him. He alone chose the steps he would take before signing the agreement.

[296] The Applicant did not direct or interfere with the steps the Respondent took to satisfy himself before signing the agreement. The Respondent acknowledged that the lawyer did not give him any legal advice.

[297] The Respondent has not demonstrated that the Separation Agreement and in particular, the spousal support provisions were made as a result of undue influence.

Duress

[298] In Toscano, Justice Blishen addressed duress as follows at para. 72:

" Duress involves a coercion of the will of one party or directing pressure to one party so they have no realistic alternative but to submit to the party (see Berdette v. Berdette (1991), 81 D.L.R. (4th) 194 (Ont. C.A.) at para. 22). Equity recognizes a wider concept of duress including coercion, intimidation or the application of illegitimate pressure."

[299] There must be something more than the stress associated with the breakdown of the relationship. (See Ludmer v. Ludmer, 2013 ONSC 784 (Ont S.C.J.) at para. 53).

[300] The Respondent returns to the same factors relied upon with respect to unconscionability and undue influence to support his claim of duress. There is no credible evidence that the Respondent had no alternative but to sign the agreement. He was not threatened into signing the Separation Agreement. He was not prevented from taking as much time and taking such steps as he thought would benefit him before signing the Separation Agreement.

[301] The claim of duress has not been made out.

Legal Considerations: Cl. 33(4)(a) of the FLA - Unconscionable Circumstances

[302] Cl. 33(4)(a) provides that the Court may set aside a provision for support in a Separation Agreement if the support provision results in unconscionable circumstances.

[303] Though not cited by the parties, ss. 35(3) of the FLA provides that s. 33(4) applies to a contract that has been filed with the clerk of the court.

[304] In Schell v. Henkelman (2001), 52 O.R. (3d) 1 (Ont. C.A.) cited by the Respondent, the Court dealt with a release of support contained in a cohabitation agreement. Separating after 10 years of cohabitation the Appellant sought to override the support release provision by relying upon ss. 33(4). The issue to be decided was whether the Appellant had demonstrated that the waiver of a right to support had resulted in unconscionable circumstances within the meaning of s. 33(4) at the time she started her application (para. 18). The Court held that s. 33(4) concerns unconscionable circumstances or results and not unconscionable agreements (para. 15). An agreement which is fair and reasonable when it is signed, may, through circumstances that occur in the future, result in unconscionable circumstances at the time of a support application (para. 15).

[305] The use of unconscionable in this section means whether something is shocking, oppressive or not in keeping with a caring society (para. 19).

[306] If the Court finds the results of the agreement to be unconscionable, it may set aside the support provision and impose some other obligation (para. 25).

[307] As set out above, I find that the circumstances surrounding the making of the agreement were not unconscionable nor was there undue influence. The parties knew what their obligations would be under the Separation Agreement.

[308] At the time the Respondent delivered his Claim by Respondent and at the time of the trial of this matter the spousal support provisions do not impose a significant economic burden upon the Respondent in relation to all of his other expenses, including child support.

[309] The Respondent argues that he has been paying spousal support for approximately 16 years. He asks the Court to find that this is too long a period where the period of cohabitation was approximately 6 years. He claims this makes the support provision unconscionable at this time and in the future. This is especially so he argues, as under the terms of the agreement he may be required to pay for as long as he or the Applicant are alive and the Applicant has not made bona fide efforts to become self-sufficient.

[310] I agree with counsel for the Applicant that the amount of spousal support provided for in the Separation Agreement is significantly below what would otherwise be suggested by the Spousal Support Advisory Guidelines based upon the party's circumstances both at the time the agreement was made, when the application was started and at present. The Spousal Support Advisory Guidelines also provide that the duration of support is in part a function of the amount being paid. A lower amount of spousal support being paid would justify spousal support being paid for a longer period.

[311] I also take into account that the Applicant has a strong compensatory claim for support. She stayed at home to care for the children at the request of the Respondent. She made attempts following the separation to secure gainful employment but has not been successful for a number of reasons. Some include circumstances beyond her control and others concern her fears or concerns regarding her health.

[312] I cannot hold at this time that it would result in unconscionable circumstances for spousal support to continue once both children have completed their respective education.

[313] In summary, I do not find that the support provisions contained within the Separation Agreement are so shocking such that they should be set aside.

Miglin v. Miglin 2003 SCC 24, [2003] 1 S.C.R. 303

[314] Relying upon the Supreme Court of Canada decision in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 ("Miglin") the Respondent next argues that the spousal support provisions in the Separation Agreement be "set aside" effective January 1, 2016.

What is the Miglin Analysis?

[315] In Smith v. Smith, 2017 ONCA 759, the Ontario Court of Appeal succinctly explained the Miglin analysis as follows:

7 In Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 (S.C.C.), the Supreme Court of Canada set out a two-stage analysis to be applied in dealing with initial applications for spousal support in the face of a release. The first stage considers the circumstances at the time the agreement was created. This stage of the analysis is subdivided into two parts:

(1) A consideration of the circumstances surrounding negotiation and execution of the agreement to determine whether there is any reason to discount it.

(2) A consideration of the substance of the agreement to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time of its formation.

8 The second stage of Miglin requires the court to consider, at the time of the application for spousal support, whether the applicant has established that the agreement no longer reflects the original intention of the parties, and whether the agreement is still in substantial compliance with the objectives of the Divorce Act.

[316] Miglin was a case decided under the Divorce Act and considered the objectives of spousal support under that Act.

[317] The case before this court is brought under the FLA which sets out the purposes of spousal support at s. 33(8) as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

Does the Miglin Analysis Apply in This Case?

[318] Before considering the substance of the Respondent's argument, first it is necessary to consider whether the Miglin test applies in the circumstances of this case.

[319] In her paper entitled Spousal Support Agreements and the Legacy of Miglin, Professor Carol Rogerson, at page 17, considered what types of cases engaged the Miglin test. She writes:

"The Miglin test, as originally articulated, was designed to deal with cases involving final agreements, i.e. agreements that purport to be a final resolution of the support obligation and which, … exclude the possibility of future variation or modification."

[320] Professor Rollie Thompson in his paper entitled To Vary, To Review, Per Chance to Change: Changing Spousal Support interpreted Miglin as did Professor Rogerson. He wrote at page 6:

"The full force of Miglin is only intended to apply to "final agreements" i.e. agreements in which spousal support is waived or time limited.

To be obvious, if the agreement contains a variation clause (or a review clause), then the agreement is not "final" in the Miglin sense."

[321] Professor Thompson, also at page 6, explains why an agreement with a variation clause is not "final" as follows:

"The parties themselves have explicitly recognized their ability, or that of the courts to change spousal support. If the agreement is then incorporated in a court order … the ordinary law of variation (or review) applies. On a variation, the material change test apples."

[322] A "final" agreement is one that provides a release or waiver or time-limited support, or a single lump sum payment.

[323] I also take into account that in Smith v. Smith supra, the Court stated that Miglin set out the "two-stage analysis to be applied in dealing with initial applications for spousal support in the face of a release" (para. 7). The Court is describing an agreement that excluded the possibility of future variations – a final agreement.

[324] In the case at bar, the Separation Agreement made by the parties contains a material change in circumstance clause specifically referable to spousal support.

[325] When the agreement contains a material change in circumstances clause, the Respondent is able to ask for the agreement to be applied, that is, to change support due to a material change. As Professor Rogerson stated, "… [a]n agreement providing for variation or review is not a 'final' agreement" making a Miglin analysis unnecessary. (page 19).

[326] I find that the spousal support provisions contained in the separation agreement made by the parties is not a final agreement.

[327] In addition to the terms of the Separation Agreement allowing for a variation, the Respondent is able to apply to vary the spousal support provisions contained in the Separation Agreement pursuant to FLA ss. 35(1)(2)(b) and 37(2). The Respondent has the ability to seek a variation of the spousal support provisions on the basis of material change. He has made this argument and it is dealt with later in these reasons.

Conclusion

[328] As the operative spousal support provisions are not final, and either party can move to vary the spousal support provisions under the FLA, the Miglin analysis is not applicable to this case.

Material Change in Circumstances

[329] Finally, the Respondent argues that there has been a material change in circumstances that justifies termination of his spousal support obligation to the Applicant.

[330] He relies upon L. M. B. v. L. S. 2011 SCC 64, [2011] 3 S.C.R. 775. This case concerned the proper approach to an application for variation of a spousal support order where the support terms of an agreement have been incorporated into the order. It also considered whether it required the court to determine if the approach differs from initial applications for spousal support under the Divorce Act. The majority of the Court held that the proper approach was to vary the support order under the Divorce Act pursuant to s. 17. The Court is to determine whether there has been a change in circumstances since the making of the prior order. The onus is on the party seeking a variation to establish such a change (para. 31).

[331] In this case, the Respondent argues that the material change arises because the Applicant has not taken reasonable steps to become self-sufficient and as a result spousal support has been paid for an extended period of time. He also asks the Court to take into account that he is married and has the responsibility of supporting his spouse.

Analysis

[332] The parties contemplated that spousal support would increase once the respondent's child support obligation was completed. The children remain in school and the Respondent's child support obligation continues. This does not constitute a material change.

[333] As I found earlier in these reasons, the Applicant has not achieved self-sufficiency because of her child care responsibilities, her time out of the work force, her skills and her concerns about her health. She has acted reasonably, for the most part, in attempting to secure employment. Her concern for her health may not be warranted to the extent the Applicant suggests. No medical evidence was provided concerning her health concerns. Other than this, her attempts to secure and keep employment have been reasonable. I find that the Applicant has taken reasonable steps to become self-sufficient while still caring for Adrian and Luca. She has retrained and tried many different types of employment. She has tried her hand at self-employment. Sometimes she has been successful, at other times she has not. Her entitlement to spousal support on a compensatory basis remains.

[334] For these reasons, I find that there has not been a sufficient material change in circumstances that would justify the termination of spousal support as of January 1, 2016 as requested by the Respondent.

12: Repayment of Arrears Arising

[335] The Respondent will be in arrears of ongoing child support by reason of the Order of this Court. A schedule to allow the orderly repayment is required. I have considered the financial circumstances of the Respondent including: the amount of the structured settlement annuity payments he will continue to receive, and his obligation to provide ongoing support to the Applicant, their children and his wife and her children.

[336] While he remains obliged to pay child support for his two children, arrears will be paid at the rate of $1,000.00 per month. Once this child support obligation ends, the arrears shall be paid at the rate of $4,500.00 per month until paid in full.

13: Order

[337] For these reasons an order shall issue as follows:

1. The Applicant's claim for retroactive child support from the period commencing February 1, 2002 to and including July 31, 2011 is dismissed.

2. The amount of arrears of child support owing by the Respondent to the Applicant for the period ending July 31, 2011 is fixed at nil.

3. Commencing on the 1st day of August 2011 to and including the 31st day of January 2012 the Respondent shall pay to the Applicant for the support of the children Adrian Stefano DeRose, born October 26, 1998, and Luca Marco DeRose, born March 9, 2000, the sum of $4,283.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $206,100.00 grossed-up for income taxes to an annual income of $349,186.00 and Guidelines cl. 3(1)(a) and s. 4.

4. Commencing on the 1st day of February 2012 to and including 31st day of January 2013 the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $4,401.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $212,280.00 grossed-up for income taxes to an annual income of $359,603.00 and Guidelines cl. 3(1)(a) and s. 4.

5. Commencing on the 1st day of February 2013 to and including 31st day of January 2014 the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $4,529.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $218,652.00 grossed-up for income taxes to an annual income of $370,760.00 and Guidelines cl. 3(1)(a) and s. 4.

6. Commencing on the 1st day of February 2014 to and including 31st day of January 2015 the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $4,803.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $225,204.00 grossed up-for income taxes to an annual income of $394,834.00 and Guidelines cl. 3(1)(a) and s. 4.

7. Commencing on the 1st day of February 2015 to and including 31st day of January 2016 the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $5,127.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $231,970.00 grossed-up for income taxes to an annual income of $423,237.00 and Guidelines cl. 3(1)(a) and s. 4.

8. Commencing on the 1st day of February 2016 to and including 31st day of January 2017 the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $5,298.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $238,928.76 grossed-up for income taxes to an annual income of $438,213.00 and Guidelines cl. 3(1)(a) and s. 4.

9. Commencing on the 1st day of February 2017 to and including 30th day of November 2017 the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $5,462.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payments of $246,086.60 grossed-up for income taxes to an annual income of $452,662.00 and Guidelines cls. 3(1)(a), 3(2)(a) and s. 4.

10. Commencing on the 1st day of December 2017 and on the first day of each month thereafter the Respondent shall pay to the Applicant for the support of the children as named above, the sum of $5,708.00 per month based upon: a) the Respondent's receipt of structured settlement annuity payment of $246,086.60 grossed-up for income taxes to an annual basis of $452,667.00; and b) the November 22, 2017 Table and Guidelines cls. 3 (1)(a), 3 (2)(a) and s. 4.

11. The Respondent shall be credited with the sum of $2,500.00 per month that he has paid from August 1, 2011 to and including October 2016 and $3,500.00 per month from November 2016.

12. The Respondent shall pay to the Applicant his proportionate share of the child, Adrian Stefano DeRose's (born October 26, 1998), post-secondary education expenses as provided for in these reasons. If the parties are unable to agree on this calculation, they may arrange to appear before the Court as arranged with Trial Coordination.

13. The Respondent shall be credited with $4,000.00 paid by him on account of past s. 7 expenses pursuant to the order of this court dated November 18, 2016.

14. The Applicant shall provide the Respondent with Adrian DeRose's confirmation of registration within 30 days of each semester starting and further the Applicant shall provide the Respondent with Adrian DeRose's grades within 30 days of each semester ending or upon the grades becoming available.

15. The Applicant's claim for the proportionate share of the child Luca's orthodontic expenses is dismissed on a without prejudice basis as it is premature for this claim to be made at this time.

16. Any arrears of support created by the terms of this order shall be paid at the rate of $1,000.00 per month starting the 1st day of March 2018 and on the first day of each month until the month the Respondent's obligation to pay child support ends, and thereafter on the 1st day of each month in the amount of $4,500.00 until paid in full.

17. The Respondent's claim to terminate his spousal support obligation under the terms contained in the Separation Agreement filed with this court shall be dismissed.

18. A support deduction order shall issue.

[338] If either party wishes to make a claim for costs, the Applicant may do so within 20 days of the release of these reasons and the Respondent shall have 15 days thereafter to respond. Written submissions are not to exceed four pages and shall have attached to them any offers to settle, a bill of costs and dockets.

Original signed and released

Justice Barry M. Tobin

Released: December 15, 2017

Corrigendum

December 18, 2017

Paragraph 4 was amended by changing the date from 2004 to 1994 as follows:

[4] By October 1994, the Applicant and Respondent began cohabiting. The Applicant's son from a prior relationship, Joshua Jerome Ridley, born May 17, 1991 ("Joshua") also lived with them.

Paragraph 5 was amended by changing the date from 2007 to 1997 as follows:

[5] They briefly separated in 1997 for approximately four months.

January 12, 2018

Paragraph 3 was amended by changing the date from 2004 to 1994 as follows:

[3] The Applicant and Respondent met sometime in 1994.