Court File and Parties

Ontario Court of Justice

Date: July 30, 2018

Court File No.: Toronto DFO 14 119900

Between:

David Andrew Young Applicant

— And —

Nazanin Zaatri Respondent

Endorsement

Counsel:

• Heather Hansen/Valarie Matthews for the Applicant
• Nazanin Zaatri, Respondent, on her own behalf

Before: Murray, E.B.

Introduction

[1] This is my decision on the Applicant Father's motion to change the child and spousal support terms of the parties' separation agreement of August 16, 2013. The agreement was registered with this court in 2014. Pursuant to section 37(2) and (3) of the Family Law Act, if the court finds that there has been a material change in circumstances, the court may discharge, vary or suspend any provision for child or spousal support in the agreement, prospectively or retroactively.

[2] The parties were married for nine years. They have one daughter, S., 11, who lives primarily with the Respondent Mother, and sees the Applicant Father on alternate weekends.

[3] The separation agreement provided as follows with respect to child and spousal support:

• The Applicant was to pay child support of $766 monthly, based on his 2012 income of $85,520.
• With respect to s. 7 expenses agreed to in advance by the parties, the Applicant was to pay 70% and the Respondent was to pay 30%, based on an income imputed at $21,350 (minimum wage at the time).
• The Applicant was to pay spousal support of $898 monthly. Spousal support was subject to change upon a material change in circumstances as well as a review which either party could institute on or after December 2015.

[4] The Applicant's employment at Starbucks was terminated in December 2017. He received no severance and was not eligible for Employment Insurance benefits. He commenced this action in January 2018, asking that child support be suspended until he obtained employment and that spousal support be terminated.

[5] The Respondent indicated in her Response to the Motion to Change that she did not accept that the Applicant had really lost his job, suggesting that he had manipulated circumstances to make it only appear that he was unemployed.

[6] The Applicant produced his notice of termination for cause. I am satisfied that his termination occurred, and that his unemployment was involuntary.

[7] I address the issues raised by the motion.

Spousal Support

[8] The Applicant asks that his obligation to pay spousal support be terminated, based on the parties' agreement set out in texts in April 2014 that spousal support would terminate because of the Respondent's remarriage. The Respondent denies that she agreed to the termination and opposes the order sought.

[9] The separation agreement provided that the Respondent's remarriage would be a material change in circumstances. The Respondent remarried in February 2014. The Applicant learned of this in April 2014 and asked her whether she would agree that he stop paying spousal support. I find that the Respondent texted her agreement. The Applicant replied that he would stop paying spousal support, and as of May would only pay child support.

[10] The separation agreement contained a standard provision that any amendment must be in writing, signed, dated and witnessed. The parties did not execute such an agreement.

[11] The Applicant asked the Respondent to meet with her lawyer to sign an amending agreement. The Respondent refused to retain a lawyer, saying she did not wish to incur the cost. The Applicant indicated that he would have his lawyer draw up an amending agreement. He did not do so.

[12] Caselaw provides that, despite a provision in an agreement stipulating that amendments must be in writing and witnessed, oral agreements to vary may be accepted as valid. MacNamara v. MacNamara

[13] The evidence indicates that the parties acted in accordance with the April 2014 text agreement for almost 4 years.

• There is no evidence that the Respondent complained to the Applicant after May 2014 that he was not paying spousal support or asked him to resume paying spousal support.
• Although the Respondent registered the separation agreement with the court in 2014, she did not file a statement claiming arrears of spousal support until after the Applicant commenced his motion to change.
• Neither party initiated a review of the Respondent's entitlement to spousal support and quantum or duration of support in December 2015. The failure to do so is consistent with an understanding by each party that spousal support had already ended.

[14] After the Respondent was served with the Applicant's Motion to Change, she filed a statement of arrears with the court and Family Responsibility Office (FRO) claiming arrears of spousal support since November 2014. The first that the Applicant learned of this was when he received a letter from FRO on April 27, 2018, advising of arrears of $35,784. This resulted in seizure by FRO of the Applicant's tax return of $3,934, which was paid to the Respondent.

[15] The Respondent was employed during her marriage to the Applicant. She stopped working in 2012, and says that she is supported by her current spouse. There is scant information about her circumstances in her Response and financial statement. Her financial statement says that, except for child tax benefit, she has no income. She has assets of less than $2,000 and owes debt of $50,000. She indicates in her material that her husband is unemployed. Evidence suggests, however, that the family enjoys an affluent lifestyle; they reside in an upscale neighborhood and drive luxury cars.

[16] I find that the parties agreed in their text exchange in 2014 that the Applicant could "stop paying" spousal support as of May 2014. The Applicant was entitled to rely upon the agreement when he stopped paying spousal support. He continued to rely on this agreement for the four years following.

[17] I order that arrears with respect to spousal support that have accumulated with respect to any payments owing after April 30, 2014 are rescinded, and that prospective payments of spousal support are suspended.

[18] Despite the agreement in the parties' 2014 text exchange, I am unwilling to make an order now based on the present record that terminates the Respondent's entitlement to spousal support. I say that for two reasons:

• There is no evidence that the Respondent had legal advice when the text agreement was made.
• There is nothing in the exchange of texts that speaks to whether the Respondent's entitlement to receive spousal support was to be extinguished forever, regardless of any change of circumstances.

[19] If I was to consider a termination of the Respondent's entitlement, I would want evidence on the following issues:

• Whether the Respondent's entitlement to spousal support in the separation agreement was based on compensatory factors as well as need, and, if so, whether she has been adequately compensated by support received to date.
• The Respondent's education and work history.
• The reasons why the Respondent is not employed.
• The source of funding of the Respondent's apparently affluent lifestyle, given her statement in her financial statement that neither she nor her spouse are in receipt of any income.

[20] Based on the parties' 2014 text agreement, I find that the Respondent engaged in blameworthy behavior when she triggered an enforcement of spousal support "arrears" in 2018. Pursuant to s. 8.4(4) of the Family Responsibility and Support Arrears Enforcement Act, I order that she repay the Applicant the sum of $3,934 that she received as a result of her actions by October 1, 2018.

Child Support

[21] The Applicant acknowledged when he commenced this motion that he had failed to provide annual income disclosure to the Respondent, as required by the separation agreement. He made this disclosure and paid $6,424 to her through FRO in January 2018, an amount which represented the additional support which should have been in prior years. He acknowledges that he under-calculated the amount owing by $326.

[22] After his termination, the Applicant looked for new employment but was unsuccessful until May 2018. Despite having no income, from January to April of 2018 the Applicant paid the Respondent the full amount of child support provided for in the separation agreement, adjusted upward to reflect what his line 150 income had been in the prior year. That amount totaled $3,795. The Applicant drew on savings to make these payments.

[23] The Applicant asks now that the court find that he owed no child support for the months January-April 2018, and order the Respondent to repay the $3,795 he paid during those months, less his under-calculation of support arrears of $326.

[24] In May 2018 the Applicant obtained employment with an annualized salary of approximately $25,000, an income which results in a table amount of support owing of $199 monthly. He paid child support for the months May to July 2018 of $200 monthly.

[25] Recently the Applicant secured new employment paying a salary of $90,000 annually. He starts this position on August 7, 2018. He proposes that for August 2018 he pay pro-rated support of $645, and commencing September 1, 2018 that he pay the required table amount of $834 monthly.

[26] I find that the Applicant's termination of employment in December 2017 was a material change justifying a change in his child support obligation, and order that he is obligated to pay child support as follows:

• For the months January-April 2018, zero $;
• For May-July 2018, the sum of $200 monthly;
• For August 2018, the sum of $645;
• Commencing September 1, 2018 and on the first day of each month following, the sum of $834 based on an annual income of $90,000.

[27] In Meyer v. Content, Justice Chappel identified factors relevant to a court's discretion to order repayment of monies pursuant to s. 8.4(4) and (5) of the Family Responsibility and Support Arrears Enforcement Act. I have considered the Applicant's request for return of the $3,795 he paid for support in January-April of this year in light of these factors and decline to make the order sought. In the circumstances, it was reasonable for the Respondent to accept and use the funds forwarded by the Applicant for the child's support during this period. The evidence indicates that the Applicant's current financial circumstances are far superior to those of the Respondent.

Section 7 Expenses

[28] The Respondent cross-claims for over $6000 for s. 7 expenses which she says were not paid by the Applicant. These expenses primarily involve the fees for S.'s ballet classes. The Applicant replies that he agreed to contribute to the cost of one lesson each week (total cost $900 annually), and that the Respondent has enrolled her in many more classes, classes to which he did not agree. The Respondent admits that the Applicant did not agree to further classes. She argues that the child loves ballet, wanted to take further lessons, and benefits from these lessons. She estimates that she spends $2,500-3,000 annually for these lessons.

[29] I find that pursuant to the terms of the current agreement, the Applicant does not owe further monies now for s. 7 expenses. I find the parties have been unable to communicate effectively about what are reasonable s. 7 expenses. I find that it is reasonable and necessary to structure the order to permit the child to pursue her passion for ballet to a greater extent than lessons once each week will permit, and that the cost will be an "extraordinary" expense.

[30] I order as follows:

• For the purpose of contribution to s. 7 expenses, the Applicant's income is $90,000 annually and the Respondent's annual income is imputed at $29,120 (current minimum wage income).
• The Applicant shall pay 70% and the Respondent shall pay 30% of the expenses set out below, and further s. 7 expenses agreed to in advance, with agreement not to be unreasonably withheld.
• The parties shall contribute to a budget for S.'s ballet courses which is fixed at $2,000 annually. For that purpose, the Applicant shall pay 70% of those expenses in an amount of $116 monthly, commencing September 1, 2018.
• The Respondent shall forward to the Applicant on a regular basis for his information invoices for the child's ballet lessons. She shall advise him when these lessons are decreased in frequency or terminated. Such events will be a material change with respect to this s. 7 expense.

Costs

[31] If the Applicant seeks costs with respect to this motion, written submission of no more than 6 pages shall be served and filed within 20 days. The Respondent shall serve and file any response within a further 20 days.

Released: 30 July 2018

Signed: Justice E.B. Murray