COURT FILE NO.: F 106/05

DATE: 2012/05/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gen Maria Menegaldo

Applicant

– and –

Adrian Mario Menegaldo

Respondent

Steven McCutcheon, counsel for the Applicant

Gloria Nardi-Bell, counsel for the Respondent

HEARD: January 9, 10, 13, 16, 17, 18, 19, 20, 24 and 25, 2012

Judgment of the Honourable Madam Justice D.L. Chappel

INTRODUCTION

[1] The Applicant Gen Maria Menegaldo (“the Applicant”) and the Respondent Adrian Mario Menegaldo (“the Respondent”) separated on December 6, 2004. There are three children of their marriage, namely Laura Menegaldo (“Laura”), born […], 1985 (now twenty six years old), Christopher Lucas Menegaldo (“Christopher”), born […], 1993, who is now eighteen years of age, and seventeen year old Michael Nicholas Menegaldo (“Michael), born […], 1995. The parties’ separation and events which have occurred since that time have taken a devastating toll on this family. Laura and Christopher no longer speak with their father. Michael no longer speaks with his mother, and his relationships with his siblings are now virtually non-existent. On paper, this trial was about whether the Respondent should continue to pay spousal support to the Applicant and child support for Christopher. In reality, the trial focussed primarily on why this family has become so firmly entrenched into two separate “camps,” who was primarily responsible for the development of this divide, and whether the law relating to spousal support and child support should be used as a tool for redressing any wrongs that may have contributed to this state of affairs.

[2] My task in this case was simply to decide the issues of child support and spousal support. However, my hope is that a decision from this court regarding these financial issues will help the parties to put their financial issues to bed, and allow them to turn their minds to the more pressing issue of how they may resume the task of trying to repair the family fabric that once united their family members. If there is one message that I hope the parties will hear and take to heart from this judgment, it is that one. On that important preliminary note, I turn to the financial matters.

THE ISSUES IN THIS PROCEEDING

[3] The parties resolved the Family Law issues arising from the breakdown of their relationship by way of Minutes of Settlement which they executed in May, 2007. On October 24, 2007, Pazaratz, J. granted a final order, on consent of both parties, pursuant to the terms of those Minutes of Settlement. This Order granted the Applicant custody of Christopher and Michael and required the Respondent to pay spousal support and child support to the Applicant.

[4] The Respondent commenced these proceedings on March 20, 2009 to request changes to the October 24, 2007 order. The issues which the parties have asked me to determine are as follows:

1. Whether the Respondent’s obligation to pay spousal support to the Applicant should be terminated.

2. In the alternative, whether the Respondent’s spousal support obligation should be reduced.

3. Whether the Respondent’s obligation to pay child support for Christopher and Michael should be adjusted for the years 2008 and 2009 based on changes in the Respondent’s income in those years, and if so, the quantum of child support payable for those years.

4. Whether there should be a set-off for the child support payable by the Respondent for Christopher as of January 1, 2010, based on the fact that Michael began residing with the Respondent effective December 19, 2009, and if so, the quantum of child support payable by the Respondent as of January 1, 2010.

5. Whether the Respondent’s obligation to pay child support for Christopher should be terminated as of Christopher’s eighteenth birthday on […], 2011 and if so, the amount of child support which the Applicant should pay the Respondent for Michael as of that date.

6. If the Respondent’s obligation to pay child support for Christopher did not terminate as of July 1, 2011, what is the appropriate quantum of child support payable by the Respondent for Christopher since that time?

[5] For the reasons that follow I have determined that the Respondent’s obligation to pay spousal support should not be terminated, and that the existing order dated October 24, 2007 requiring him to pay spousal support in the amount of $1,000.00 per month should remain in full force and effect. I have also determined that his obligation to pay child support for Christopher did not terminate as of Christopher’s eighteenth birthday. However, I have made adjustments to the child support payable by the Respondent from 2008 onward.

BACKGROUND AND HISTORY OF COURT PROCEEDINGS

[6] I make the following findings of fact regarding this family’s background and the history of court proceedings based on the Agreed Statement of Facts executed by the parties on October 21, 2011 and the evidence adduced at trial.

[7] The Applicant was born on […], 1959 and is therefore now fifty three years old. The Respondent was born on […], 1956 and is now fifty five years of age. The parties were married on May 27, 1978, when the Applicant was nineteen years old and the Respondent was twenty two. They separated on or about December 6, 2004 after a twenty six year marriage.

[8] The Applicant remained in the matrimonial home located at 396 Eaglewood Drive, Hamilton following the parties’ separation in December 2004, and the children resided primarily with her. The Applicant purchased the Respondent’s interest in the matrimonial home during the course of bankruptcy proceedings which the Respondent commenced in March 27, 2006. In addition, she initiated Family Law proceedings which, as indicated above, were resolved by way of Minutes of Settlement executed in May 2007. As of that time, the relationship between the Respondent and the children was estranged, and the terms of settlement sought to address this concern. The order of Pazaratz, J. dated October 24, 2007, which incorporated the terms of the Minutes of Settlement, was made on a consent basis, and included the following terms which are significant for the purposes of this proceeding:

1. The Applicant was granted sole custody of Christopher and Michael.

2. The parties were required to engage the services of Mr. Paul Rickets for the purpose of exploring the potential for the establishment of autonomous and regular access between the Respondent and the children Christopher and Michael, and if such potential existed, to reinstate contact as determined by Mr. Ricketts. The order directed the parties to cooperate fully with Mr. Ricketts.

3. The parties were ordered to refrain from exposing the children to negative commentary about each other, and to use best efforts to ensure that significant others in their lives also refrained from doing so.

4. Both parties were granted the right to have the issue of access between the Respondent and the children returned to the court for further Case Management or for trial upon the written request of counsel.

5. Child support payable by the Respondent to the Applicant for the children Christopher and Michael was fixed for the years 2005 and 2006. Commencing January 1, 2007, the Respondent was ordered to pay child support for the two children in the amount of $1,069.00 per month, based on his annual income of $77,000.00.

6. The Respondent was also ordered to pay the Applicant his proportionate share of the children’s section 7 expenses.

7. The child support payable by the Respondent was to be adjusted annually in accordance with the Federal Child Support Guidelines[^1] (the “Guidelines”) upon receipt by the Applicant of the Respondent’s Income Tax Return and Notice of Assessment for the previous year, which the parties contemplated would not be later than July 1st annually.

8. Spousal support owed by the Respondent to the Applicant for the years 2005 and 2006 was fixed. In addition, based on the Respondent’s annual income of $77,000.00 and the Applicant’s imputed income of $16,935.00, the Respondent was ordered to pay the Applicant spousal support on an indefinite basis in the amount of $1,000.00 per month commencing January 1, 2007.

[9] The October 24, 2007 order was not issued by the court until September 3, 2008. Shortly thereafter, on October 6, 2008, the parties were granted a divorce.

[10] The Respondent issued his initial Motion to Change the October 24, 2007 order on March 20, 2009. At that time, he requested that his spousal support obligation be terminated, or in the alternative, that it be reduced to an amount to be determined upon receiving full financial disclosure.

[11] On December 19, 2009, the child Michael had a dispute with his mother and left her home to reside with the Respondent. He has remained in the Respondent’s care on a consistent, full time basis since that time. In response to this development, the Respondent commenced a second Motion to Change Final Order on February 10, 2010, seeking custody of Michael, an order for access to the Applicant in accordance with Michael’s wishes and preferences, and a termination of his child support obligation respecting Michael effective December 19, 2009. He also requested an order for child support for Michael, including a contribution to Michael’s section 7 expenses, and an order reducing his child support obligation for Christopher effective December 19, 2009 to $699.00 per month based on his 2009 income of $77,364.12.

[12] On February 19, 2010, Pazaratz, J. granted a temporary order on the consent of the parties, which included the following terms:

1. The Respondent was granted custody of Michael.

2. The parties were ordered to engage the services of Mr. Paul Ricketts once again for the purpose of exploring the potential for establishing autonomous and regular access between the Applicant and Michael.

3. The Respondent’s obligation to pay child support for Michael was suspended effective January 1, 2010, and the Respondent was ordered to pay ongoing child support effective January 1, 2010 for Christopher in the amount of $699.00 per month, based on the Respondent’s estimated 2009 income of $77,364.12.

4. The issue of the Applicant’s obligation to pay child support for Michael was to be reviewed in three months.

5. The Applicant was directed to advise all medical professionals involved with Michael, and the principal of Michael’s school, of the change of custody. However, the order provided that the Applicant would remain entitled to receive information about Michael from these professionals.

[13] At the commencement of this trial on January 9, 2012, the Respondent brought a Motion requesting leave to advance additional claims for an order terminating his obligation to pay child support for Christopher, or in the alternative an order that the Applicant support the child Christopher and the Respondent support the child Michael. I made an order on January 10, 2012 amending the Motion to Change Final Order issued on February 10, 2010 to include these claims.

[14] In addition, on January 9, 2012, I granted an order on consent of the parties dealing with the issues of custody and access in relation to Michael. Pursuant to that Order, the Respondent was granted sole custody of Michael, and the Applicant was granted access to Michael in accordance with Michael’s wishes and preferences.

CREDIBILITY

[15] The testimony of the Applicant and the Respondent differed significantly on a number of matters that were highly relevant to the determination of the issues in this case. Each party urged me to make a general finding that they were more credible than the other, and that their evidence should be globally accepted over that of the other party. Upon carefully reviewing all of the evidence and considering the presentation of the witnesses, I have concluded that there are concerns regarding the credibility of both parties. As a result, I have not accepted either party’s evidence in its entirety, nor have I preferred the evidence of one party over the other. Rather, I have approached the testimony of each of them with caution, and have assessed their credibility on an issue by issue basis, having regard for the totality of the evidence on the issues in question.

[16] In weighing the credibility of the parties on various important issues, I have given significant weight to the evidence of other witnesses who I found to be credible. For instance, I found Mr. Ricketts, the social worker who was involved with the family, and the school professionals who were called as witnesses, namely Gemma Monaco, Kenneth John and Peter Messina, to be highly credible. In addition, I found the parties’ daughter, Laura, and the Applicant’s siblings, Carmen and Domenic Cifani, to be very credible. The testimony of these individuals was not undermined in cross examination, and they all presented as having a sound recollection of the events in question.

[17] Some of the significant examples that have caused me to have concern about the credibility of both parties are as follows:

1. The Respondent adamantly denied the Applicant’s allegations that he was physically or verbally aggressive during the parties’ relationship. However, as discussed in further depth below, Laura gave credible evidence to the contrary on this point which substantiated the Applicant’s evidence.

2. The Respondent denied the Applicant’s allegation that he did not make any significant efforts to see the children for many months after leaving the matrimonial home. However, Domenic Cifani corroborated the Applicant’s evidence on this point, and described in detail an incident in the spring of 2005 when he saw the Respondent at a grocery store and encouraged him to make an effort to see and call the children more often since the children missed him.

3. I had concerns regarding the accuracy of the Respondent’s Financial Statements. For instance, in the various Financial Statements which were filed as evidence in this proceeding, the Respondent swore that he had $400.00 in his TD Trust bank account. In fact, the evidence before the court indicates that this account did not have $400.00 in it at any time during the relevant periods. For instance, in his Financial Statement sworn August 24, 2010, he swore that he had $400.00 in this account. However, his bank statement for August, 2010 indicates that on August 19, 2010, he had $1,055.23 in this account, and that on August 25, 2010, he had $958.49. Furthermore, no value is included for a pension in the Respondent’s Financial Statements, when in fact the Respondent does have a pension through his employment which was assessed as having a midpoint value of $82,860.00 as of November, 2005. The Respondent’s explanations for these deficiencies in his Financial Statements were not in my view convincing and did not alleviate my concerns about the inaccuracies.

4. The Respondent argued that he was completely blameless for the breakdown in his relationship with the children following the separation. However, as described in further depth below, I did not find him to be credible on this point.

5. The Respondent was cross examined about his statement in his Change Information Form dated March 17, 2009 that he anticipated that his income would decrease in 2009, when in fact his income increased. His explanation was that his job classification changed, which resulted in a higher income for him. However, this was not consistent with the fact that his income in 2010 decreased by several thousand dollars.

6. The Respondent testified that he contacted Mr. Ricketts on a number of occasions after December 2008 to attempt to re-establish contact with Christopher. Upon further questioning, his testimony was that he made attempts at least twice. However, Mr. Ricketts testified that the Respondent never made any such calls to him after December 2009.

7. The Applicant was not credible on issues relating to her finances. For instance, she was able to explain a number of deposits into her bank account with certainty, but stated that she had no recollection of the precise origins of various deposits in the amount $250.00. She suggested that she often received financial assistance from her family members. This was the amount which she testified that she had previously received from her sister for cleaning her sister’s work premises, yet she denied that the ongoing deposits related to cleaning work which she was carrying out. Her lack of recollection in relation to these various deposits is in sharp contrast with her clear recollection about the origin of other funds which were deposited to her account, and I did not find her credible at all in testifying about the source of the deposits.

8. The Applicant produced a Customer Statement dated April 27, 2009 that she stated was submitted to the CIBC for the purpose of obtaining financing. In this Customer Statement, she indicated that she was earning income of $1,256.00 per month carrying out cleaning services for the Hamilton Wentworth Catholic School Board. This information is inconsistent with her testimony regarding her work history, during which she stated that she has not been working since approximately July 2008, when she quit her job cleaning an office building in Hamilton. On the other hand, in her Financial Statement sworn March 2, 2011, she stated that she had been unemployed since July 2007.

9. The Applicant testified that the Respondent did not provide any financial assistance to her during the months following the parties’ separation in December 2004. However, the Respondent adduced documentary evidence which supported his evidence that in fact, the Applicant continued to withdraw significant amounts of money from the parties’ account following the separation to cover expenses, and that the Respondent also made a number of payments to Applicant in the months after the separation, including payments of $1,100.00 on December 23, 2004, $700.00 in January 2005, $600.00 on February 18, 2005, $600.00 on March 7, 2005, $125.00 on April 8, 2005 and $1,000.00 on May 6, 2005.

[18] Both parties have developed firmly entrenched, diametrically opposed perspectives about the underlying causes of the conflict that has torn this family apart. The Applicant lays the blame entirely at the feet of the Respondent. The Respondent states that he is blameless and that complete responsibility lies with the Applicant. As the discussion set out in the remainder of these Reasons indicates, both perspectives are flawed. The evidence leads me to conclude that in truth, both parties have played a role in the conflict that has developed. Their inability to acknowledge and accept at least partial responsibility for this situation causes me to have concerns about their general reliability in testifying about important points in this case.

CLAIMS RELATING TO SPOUSAL SUPPORT

I. THE POSITIONS OF THE PARTIES

A. The Respondent’s Position

[19] The Respondent seeks to terminate his obligation to pay spousal support, or in the alternative to reduce his spousal support obligation. He argued that there have been a number of changes in circumstances which justify changes to the existing spousal support order. First, he states that the terms of the October 24, 2007 order reflected an expectation between the parties that both parties would work cooperatively with Mr. Ricketts with the goal of achieving a reconciliation between the Respondent and the children Michael and Christopher, but that the Applicant failed to follow through with this expectation. Instead, according to the Respondent, the Applicant engaged in conduct which had the effect of “completely alienating” the children from him, to use the words from his Change Information Form dated March 17, 2009. The Respondent claims in his Change Information Form that “there should be some consequences to her [the Applicant] as a result of her actions,” and that there should be some financial compensation for the heartache and grief which he has suffered as a result of the alleged conduct in the form of either a termination or reduction of spousal support.

[20] Counsel for the Applicant referred to the jurisprudence of the Supreme Court of Canada in Moge v. Moge[^2] and Bracklow v. Bracklow[^3] in which the Court established that there are three main grounds of entitlement for spousal support, namely contractual, non-compensatory or “needs-based” support, and compensatory support. She argued that the Respondent’s job in this family was to support the children and the Applicant financially, and that the Applicant’s job was to maintain the home, raise the children and support the relationship between the Respondent and the children. Applying an income replacement model of support, she compared the situation in this case to that of an employee who does not do their job properly and is therefore either terminated for cause or subjected to a wage reduction. Referring to the compensatory basis for spousal support, counsel for the Respondent argued that a compensatory spousal support award assumes that the recipient will continue to carry out the responsibilities that they carried out during the marriage and which formed the basis of a compensatory spousal support award. Her argument was that the Applicant’s alleged undermining of the relationship between the Respondent in the children constituted a breach of her ongoing responsibilities in relation to the children and the Respondent which justified either a termination or reduction of spousal support.

[21] The Respondent acknowledged that he has not suffered any economic hardship as a result of the alleged alienating behaviour of the Applicant. However, he states that the Applicant’s behaviour has caused him significant emotional distress. Counsel for the Respondent recognized that spousal misconduct in relation to the marriage is not in and of itself relevant to the spousal support analysis. She argued, however, that misconduct occurring after the marital relationship ends is relevant, as are the emotional effects of misconduct even if those emotional effects do not have any economic impact on the spouse who has been affected.

[22] The Respondent requested as an alternative to terminating spousal support that I either reduce the spousal support payable or establish a spousal support review date. He argued that a reduction of support or a review date for support would give the Applicant an incentive to make meaningful efforts to support his relationship with the children. Furthermore, he argued that a reduction or review of support is appropriate based on changes in the parties’ circumstances since 2007. Specifically, with respect to his financial situation, he states that the October 24, 2007 order was based on an income of $77,000.00, and at that time it was reasonably foreseeable that his income would increase. In fact, he argued that his actual income in 2007 was only $70,045.00, and that his average income since that time has also been lower.

[23] In regard to the Applicant’s financial situation, the Respondent argued that there has been a change in circumstances since 2007 in that there was an expectation on the part of the parties that the Applicant would attempt to improve her financial situation and work towards greater self sufficiency, but she has failed to do so.

[24] Counsel for the Respondent took the position that the Applicant should be imputed an income equivalent to a full time, minimum wage income. She argued that an imputation of income to the Applicant is appropriate on the basis of deliberate underemployment, her failure to maximize her means of support, and her failure to make full and candid disclosure of her financial situation. On the basis of this argument, the Respondent’s position is that the Applicant should be imputed an annual income for the years 2008 to 2011 as follows:

• 2008: full time minimum wage of $8.75 per hour ($18,200.00)
• 2009: full time minimum wage of $9.50 per hour ($19,760.00)
• 2010 and 2011: full time minimum wage of $10.25 per hour ($21,320.00)

[25] With respect to 2012, the Respondent argued that since Christopher is now attending university away from home, the Applicant should be able to rent out 2 rooms in her home to students, at a rate of $500.00 per month for each room, or should be expected to downsize and use her portion of her equity in the house to support herself. He argued that an imputed income to the Applicant of $33,320.00 for 2012 was appropriate (ie. 2011 imputed income plus an additional $12,000.00 in rental income).

[26] Counsel for the Respondent submitted that the appropriate spousal support amounts from April 1, 2009 (the month after his Motion to Change was commenced) onward should be calculated each year using the following formula, which he stated would preserve the ratios agreed to in the October 24, 2007 order:

Respondent’s annual income ratio x $1,000.00 (amount of support under existing order), Applicant’s annual income ratio

[27] This formula yields the following monthly spousal support amounts since April 1, 2009:

• 2009 (commencing April 1): $877.00
• 2010: $720.00
• 2011: $808.00
• 2012: $490.00

[28] The 2012 calculation was reached using an income for the Respondent of $74,000.00, rather than the $78,351.98 reflected in his year end pay statement from Dofasco. Counsel for the Respondent used the average of the Respondent’s annual incomes for the years 2007 to 2011 inclusive, on the basis that the Respondent received additional, atypical bonuses in 2009 and 2011 which resulted in his income being higher in those years. Counsel for the Respondent submitted that the spousal support amounts set out above should be further reduced by 50% to compensate the Respondent for the emotional consequences of the Applicant’s alleged alienating behaviour.

[29] Finally, the Respondent argued that if income is not imputed to the Applicant as requested, I should order a review of spousal support in five years, at which time spousal support should be based on the Applicant’s efforts to maximize her income earning potential and the Respondent’s line 150 income on his Income Tax Return.

B. The Applicant’s Position

[30] The Applicant requests that the Respondent’s Motion to Change Final Order as it relates to spousal support be dismissed, and that the existing spousal support award of $1,000.00 as set out in the order of Pazaratz, J. remain in full force and effect. In regard to the Respondent’s request for a termination of spousal support on the basis of the Applicant’s alleged alienating behaviour with respect to the children, counsel for the Applicant submitted that section 15.2(5) of the Divorce Act, precludes the court from considering spousal misconduct in relation to the marriage, and argued that the alleged conduct which the Respondent complains of falls within the scope of this prohibition. He argued that in any event, the evidence does not support a finding that the Applicant alienated the children or even caused estrangement between the children and the Respondent, and that the Respondent’s behaviour has been the main cause of the breakdown in his relationship with the three children of the marriage.

[31] With respect to the Respondent’s claim for a reduction of spousal support, the Applicant’s position is that there has been no change in circumstances since the October 24, 2007 was made that would warrant a downward adjustment of child support. According to the Applicant, the fact that Michael is no longer in her care and that she is not receiving child support for him could in fact form the basis of a claim by her for increased spousal support. She disputes the claim that her failure to achieve a greater degree of financial independence constitutes a change in circumstances justifying a variation of spousal support, stating that there was no expectation at the time that the order was made that she would be able to improve her economic situation. In any event, she alleged that there is no evidence that she has ever had the actual capacity to earn the $16,935.00 that was imputed to her in 2007, and that her financial situation has actually deteriorated, rather than improved, since October 2007. Counsel for the Applicant further submitted that even if the Applicant’s financial situation had improved since 2007, such a change would not necessarily justify a decrease in her spousal support since the existing order was based on a strong compensatory claim. Finally, the Applicant argued that there is no credible evidence to support a finding that the Respondent’s income has decreased in any material way since the October 24, 2007 order was made.

II. THE LAW

A. Statutory Framework

[32] The legislation that applies in relation to both the spousal and child support issues in this case is the Divorce Act[^4] (“the Act”). Section 17(1) of the Act provides that the court may, on application by either or both former spouses, make an order varying, rescinding or suspending prospectively or retroactively a support order or any provision thereof. In making any such order, the court may include a provision that could have been included in the order in respect of which the variation order is sought.[^5] Section 17(4.1), which outlines the factors which the court must consider on an application to vary a spousal support order, establishes a threshold requirement of showing that there has been a “change in the condition, means, needs or other circumstances” of either spouse since the making of the existing spousal support order. That section also directs the court to take that change into consideration in making the variation order.

[33] Section 17(6) provides that on a spousal support variation application, the court shall not take into consideration any conduct that it could not have considered under the Act in making the existing order. It is necessary to read this provision in conjunction with section 15.2(5) of the Act, which addresses the issue of spousal misconduct in the context of originating proceedings as follows:

Spousal misconduct

15.2(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

[34] In deciding a spousal support variation application, the court must consider the objectives of spousal support variation orders, which are described in section 17(7) of the Act as follows:

Objectives of variation order varying spousal support order

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

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

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

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

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

[35] Section 17(10) of the Act sets out additional factors which the court must consider when a request is made to vary time-limited spousal support orders.

B. The Proper Approach to Variation of Spousal Support Orders Which Incorporate Spousal Support Agreements: Does the Miglin v. Miglin Analysis Apply?

[36] The Supreme Court of Canada recently summarized and clarified the general principles that apply in applications under the Act to vary spousal support orders in L.M.P. v. L.S.[^6] and R.P. v. R.C.[^7]. In L.M.P., the court settled the debate that has developed as to whether the principles which the court established in Miglin v. Miglin[^8] respecting variation of spousal support agreements in the context of original spousal support applications apply in proceedings under s.17 of the Act to vary orders that simply incorporated spousal support agreements. This issue is important in the case at hand, as the October 24, 2007 order that the Respondent seeks to vary incorporated the terms of Minutes of Settlement which the parties executed in May, 2007.

[37] The Supreme Court held in L.M.P. that the analyses under section 15.2 and section 17 of the Act are distinct, even in circumstances where the order being considered in a variation proceeding simply incorporated the terms of a spousal support agreement reached by the parties. It held that the approach set out in Miglin does not apply in the section 17 analysis, as Miglin responded to the specific statutory directions set out in section 15.2 of the Act, including the direction under section 15.2(4)(c) that the court consider any order, agreement or arrangement relating to spousal support. It noted that section 17(4.1) of the Act does not specifically refer to agreements. In considering these differences between the two provisions, the court explained that in an original spousal support application under section 15.2 in circumstances where there is a pre-existing spousal support agreement, the court is concerned with the extent to which the terms of the agreement should be incorporated into a first spousal support order. By contrast, in a proceeding to vary an order which incorporated the agreement, the court’s task is to determine whether to vary or rescind the support order as a result of a change in the parties’ circumstances.

[38] The court clarified in L.M.P. that the proper approach in proceedings to vary orders which incorporate the terms of spousal support agreements is that which the court adopted in Willick v. Willick[^9] and B. (G.) v. G. (L.).[^10] Specifically, the court must first satisfy itself that there has been a change in the condition, means needs or other circumstances of either spouse since the making of the existing order. Once this change of circumstances has been established, the court must decide what variations to the existing order should be made, if any, in light of the change.

C. Change in a Spouse’s Condition, Means, Needs or Other Circumstances

1. The Scope of “Condition, Means, Needs and Other Circumstances”

[39] Pursuant to section 17(4.1) of the Act, the change that justifies a spousal support variation proceeding must relate to a spouse’s “condition, means, needs or other circumstances.” Although this phrase is very broad, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge, and are circumscribed by that purpose. As L’Heureux-Dube, J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,”[^11] and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.”[^12] The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.

[40] The condition of a spouse includes such factors as their age, health, needs, obligations, dependants and their station in life.[^13] A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits.[^14] The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay.[^15]

2. The Need for a “Material” Change

[41] In L.M.P., the Supreme Court of Canada confirmed the principle established in Willick and B.(G.). that a change in a spouse’s condition, means, needs or other circumstances must be “material” to justify a variation to an existing spousal support order under section 17 of the Act. The term “material” has been interpreted as having both a quantitative and qualitative connotation. On a quantitative level, trivial, insignificant or short-lived changes will not justify a variation.[^16] However, the sufficiency of the change must always be evaluated in light of the particular facts of each case.[^17]

[42] On a qualitative level, in order to be material, the change must be such that if it had been known at the time, it would likely have resulted in different terms. If the matter which is relied upon as constituting a change was known or contemplated by the parties at the relevant time, it cannot form the basis for a variation of the existing order.[^18] The fact that a change was objectively foreseeable does not necessarily mean that it was contemplated by the parties. The material change can be based on an unexpected change in either or both of the parties’ circumstances, or on evidence that an anticipated set of specified circumstances failed to materialize.[^19]

[43] The onus is on the party seeking to vary the order to establish such a change.[^20] The analysis of whether there has been a change in circumstances involves a careful review of the basis upon which the existing order was made. The importance of leading evidence respecting the parties’ circumstances when the existing order was clearly highlighted in the decision of the Supreme Court of Canada in R.P. In that case, the payor spouse was unsuccessful in changing the spousal support order largely because he failed to adduce evidence at trial respecting his financial situation at the time the existing order was made.

3. Failure to Achieve Self-Sufficiency

[44] The Respondent’s alternative claim for a reduction in spousal support in the event that a termination is not granted is based in part on his position that the Applicant has failed to make reasonable steps to achieve increased or full self-sufficiency since the October 24, 2007 order was made. The Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge, Leskun and L.M.P. It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable.” The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.

[45] Given that there is no presumption that spouses in receipt of support have an ongoing duty to pursue self-sufficiency, the question of whether a failure to make reasonable efforts to achieve self-sufficiency will constitute a material change in circumstances justifying a variation proceeding will depend very much on the facts of every case. Specifically, the court must receive evidence regarding the circumstances when the existing order was made, and determine whether the parties realistically contemplated that the recipient would be able to improve their financial situation in the future. This inquiry must be undertaken with an eye to the fact that self-sufficiency is a relative concept. The Ontario Court of Appeal emphasized in Fisher that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. As the court stated, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.”[^21]

[46] The extent to which the court will consider the standard of living during the marriage in setting the standard for self-sufficiency will depend on the particulars of the marital relationship. L’Heureux-Dubé, J. made this point in Moge, where she stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”[^22]

[47] Keeping these principles in mind, where the evidence indicates that there was no reasonable expectation on the part of the parties at the time the existing spousal order was made that the recipient spouse would be able to achieve self-sufficiency, the recipient’s failure to take steps to become financially independent will not necessarily, in and of itself, constitute a change in circumstances justifying a spousal support variation.[^23] By contrast, if the evidence demonstrates that there was a reasonable contemplation on the part of the parties that a greater degree of self-sufficiency could be achieved in the future, the threshold test for a variation proceeding may be satisfied.

[48] Finally, in deciding a spousal support variation proceeding, the court must have an understanding of the basis upon which the recipient was found to be entitled to support for the purposes of the preceding order. Failing to do so can result in inappropriately “un-doing” spousal support awards that are intended to compensate a spouse for contributions made to the marriage, including sacrifices which that spouse made to their career and income earning potential as a result of caring for children and/or maintaining the home, and advantages which they conferred on the other spouse in terms of their professional advancement.[^24] For example, if the spousal support order was based either entirely or in large part on a compensatory claim, an improvement in the recipient spouse’s financial means to the point where that spouse may objectively be considered self-sufficient, or a failure on that spouse’s part to achieve greater financial independence, will not necessarily justify a decrease or termination of the spousal support award. In such cases, the court will need to undertake a more global analysis of whether the general circumstances of the parties are such that the compensatory objectives of the existing order have been achieved.[^25] In such circumstances, while increases in the recipient spouse’s financial resources may be relevant, they will not necessarily be a determinative.[^26]

D. The Appropriate Variation Order

1. General Principles

[49] Once the court is satisfied that there has been a material change within the meaning of section 17(4.1) of the Act since the existing order was made, it must determine the appropriate variation, if any, that should be made to the existing order. Even if the threshold test of a change in circumstances is met, it does not necessarily follow that a change to the existing order must be made.[^27] In deciding whether the order should be varied, the court must take into consideration the change in condition, means needs or other circumstance that justified the variation proceeding and the objectives of a variation order as set out in section 17(7) of the Act.[^28] The Supreme Court of Canada has held that in spousal support cases, all of the statutory objectives set out in the Act must be considered, since no single objective is paramount.[^29] However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties.[^30]

[50] As the Supreme Court emphasized in Miglin and L.M.P., a variation proceeding is not an appeal or the existing order or a de novo hearing of the spousal support issue. The court dealing with the variation must presume that the judge who made the order knew the law and applied it correctly.[^31] Furthermore, the role of the court in a variation proceeding is not to consider all of the factors and objectives to make a new order that is unrelated to the existing order. Rather, the court’s task is to make a variation order that satisfies the objectives set out in section 17(7) against the backdrop of the change in circumstance(s) that justified the proceeding.[^32] As the Supreme Court stated in Miglin, in the context of discussing the scope of the court’s authority pursuant to section 17 of the Act, the objectives of finality and certainty “caution against too broad a discretion in varying an order that the parties have been relying on in arranging their affairs.”[^33]

2. The Relevance of an Agreement that Formed the Basis of the Existing Order

[51] The Supreme Court of Canada has held in both Miglin and L.M.P. that the terms of an agreement that formed the basis of the existing order may be relevant evidence in variation proceedings, both on the issue of whether a change in circumstances has occurred and to the question of what variation to the order, if any, should be made having regard for that change.[^34] As the court stated in Miglin:

Consideration of the overall objectives of the Act is consistent with the non-exhaustive direction in section 17(7) that a variation order “should” consider the four objectives listed there. More generally, a contextual approach to interpretation, reading the entire Act, would indicate that the court would apply those objectives in light of the entire statute. Where the order at issue incorporated the mutually acceptable agreement of the parties, that order reflected the parties’ understanding of what constituted an equitable sharing of the economic consequences of the marriage. In our view, whether acting under s. 15.2 or 17, the Court should take that into consideration.[^35]

[52] As the Supreme Court stated in L.M.P., the agreement that formed the basis of the existing order could address future circumstances and predetermine which party will bear the risk of any changes in circumstances. It may also either expressly or by necessary implication identify certain changes which the parties contemplated would or would not give rise to variation, and their intentions in the event of any such changes. The court emphasized that such terms are of great assistance to the court in determining whether the parties contemplated the circumstances leading to the variation application, and whether the order was intended to capture the changed circumstances that are being relied on.

[53] The court is not limited to considering the terms of spousal support agreements in attempting to understand the parties’ intentions and deciding whether a particular change in circumstance is material. It may consider all available evidence on this issue, including documentary material setting out the parties’ intentions regarding the implications of changed circumstances in the future.[^36]

[54] In L.M.P., the Supreme Court discussed the significance of terms in agreements subsequently incorporated into orders which provide that the agreement is final, or which imply finality. The court reiterated the principle established in Miglin, B.(G.), and Leskun that such clauses do not oust the court’s jurisdiction under section 17, and that the court must always embark upon an analysis of whether a material change of circumstances as defined in Willick has occurred. The court noted that in practice, the existence of a finality clause in and of itself provides little guidance in determining whether the change relied on in the variation proceeding was contemplated by the parties when the order was made, or the consequences which the parties would have ascribed to that circumstance at the time.

3. Spousal Misconduct in Relation to the Marriage

[55] As previously noted, sections 15.2(5) and 17(6) of the Act prohibit the court from taking into consideration “any misconduct of a spouse in relation to the marriage” in making a spousal support order. This case raises the following issues respecting the scope of this provision:

1. Does the prohibition apply only to misconduct during the course of the marriage, or does it also extend to misconduct that occurs or continues after the marriage has ended?

2. Does the prohibition cover only misconduct in relation to the relationship between the spouses or former spouses, or should it be construed more broadly to include misconduct in relation to the children of the marital relationship?

3. If the prohibition does not extend to misconduct in relation to the children of the marriage, what type of misconduct is relevant, and should the court rely on the terms of section 33(10) of the Family Law Act[^37] for interpretive assistance on this issue?

4. If misconduct in relation to the children of the marriage is relevant to the spousal support analysis, should it go to the issue of entitlement, quantum or both?

5. If the prohibition does not extend to parental alienation, are the effects of the alleged misconduct only relevant to the spousal support analysis if they impact on the parties’ ability to support themselves financially, or are emotional consequences that have no effect on the parties’ ability to support themselves also relevant?

[56] The starting point for a discussion regarding the scope of section 15.2(5) is the Supreme Court of Canada decision in Leskun. The Supreme Court confirmed that sections 15.2(5) and 17(5) of the Act clearly establish that spousal misconduct should not in and of itself be considered as a relevant “condition” or “other circumstance” in the spousal support analysis, and that the policy of the 1985 Divorce Act was to avoid the attribution of fault in the spousal support analysis. However, it emphasized that there is a distinction between misconduct in and of itself, and the consequences of such misconduct, which may be relevant to the spousal support analysis if they have impacted on the ability of a spouse to become self-sufficient.

[57] In Leskun, the Supreme Court of Canada did not specifically address head-on the questions set out in paragraph 55 above regarding the scope of sections 15.2(5) and 17(5). In answering these questions, it is necessary to consider the principles established in Leskun in conjunction with the purpose of the spousal support provisions of the Act as discussed in paragraph 39 above. In Moge, L’Heureux-Dubé, J. summarized this purpose as follows:

Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each other’s economic prospects.[^38]

[58] The message which L’Heureux-Dubé, J. clearly conveyed in Moge is that spousal support is not to be relied upon as a tool in Family Law litigation to achieve purposes unrelated to the objective of addressing the economic consequences of the marriage or its breakdown. The court reiterated this message in Leskun, where Binnie, J. noted that the purpose of the spousal support provisions of the Act is to sort out the economic consequences of marriage and its breakdown, and that the attribution of fault is irrelevant to this analysis.[^39] Given these comments and the policy underlying the 1985 Divorce Act of eliminating the attribution of fault, I conclude that the prohibition against considering spousal misconduct set out in section 15.2(5) and section 17(6) should be accorded a broad and generous interpretation so as to prevent misconduct per se from seeping back into the spousal support analysis.

[59] Keeping in mind the general principles described above, I turn to the first question set out in paragraph 54 above. Does the prohibition set out in section 15.2(5) and section 17(6) apply only to misconduct during the course of the marriage, or does it also extend to misconduct that occurs or continues after the marriage has ended? I conclude that section 15.2(5) and section 17(6) are not limited in scope to misconduct that occurs before a divorce order is granted. To draw a line between spousal misconduct which occurred during marriage and that which occurred after the marriage ended is artificial and does not make sense in principle keeping in mind the purpose of the spousal support provisions. Misconduct on the part of a party considered in isolation, without regard to how the consequences of such misconduct impact on the objectives of spousal support, is irrelevant to the spousal support analysis regardless of whether the misconduct occurred before or after the marriage ended in divorce. To conclude otherwise would be tantamount to manipulating section 15.2(5) and section 17(6) so as to invite spousal misconduct per se back into the fray once again.

[60] Turning to the second question set out in paragraph 54 above, does the prohibition set out in section 15.2(5) and section 17(6) cover only misconduct in relation to the relationship between the spouses or former spouses, or should it be construed more broadly to include misconduct in relation to the children of the marital relationship? The Supreme Court of Canada’s decision in Edmonton Journal v. Attorney General of Alberta[^40] is in my view determinative of this issue. In that case, the court was asked to determine the constitutionality of section 30 of the Alberta Judicature Act, which set out a broad prohibition against the publication of a number of matters, including matters “in relation to marriage.” During the course of its analysis, the court considered the meaning of the phrase “in relation to marriage.” Cory, J. concluded that this phrase is a broad one that encompasses not only issues respecting the relationship between the spouses, but also matters relating to custody of and access to children, division of property, and payment of support. Based on this decision, I conclude that the phrase “spousal misconduct in relation to the marriage” in sections 15.2(5) and 17(6) of the Act encompasses spousal misconduct relating to custody of and access to the children of the marital relationship, including parental alienation of the children.

[61] Finally, counsel for the Respondent argued that the Supreme Court of Canada’s reference in Leskun to the consequences of misconduct being potentially relevant to the spousal support analysis was not limited to consequences that impact on the parties’ ability to support themselves financially. She suggested that emotional consequences of misconduct, without any associated economic consequences, are relevant and can provide a basis upon which to either reduce or terminate spousal support. I do not agree. In Leskun, the court was specifically dealing with a situation where the emotional consequences of the misconduct had had an economic effect on the wife. Although the court referred in paragraph 21 of the judgment to the distinction between “emotional [emphasis added] consequences of misconduct and the misconduct itself,” it is clear from other portions of the judgment that the court was referring to emotional consequences that impact on the financial situation of the parties. For instance, at paragraph 23, the court acknowledged that marriage breakdown precipitated by spousal misconduct will perhaps inevitably lead to shock and emotional trauma for the wronged spouse, but emphasized that “Parliament has concluded that the attempt to get to the bottom of all the rights and wrongs that contributed to the break-up is likely impossible and in any event irrelevant to the task of sorting out the financial consequences.” The cases decided since Leskun have held that emotional consequences of misconduct, without corresponding effects on the capacity of a spouse to achieve self-sufficiency, are not relevant to the spousal support analysis.[^41] The approach suggested by counsel for the Respondent is tantamount to re-opening the doors wide open to spousal misconduct in and of itself, since it is difficult to conceive of a case in which spousal misconduct would not have some type of emotional impact on one or both of the parties.

[62] Counsel for both parties accepted that if parental alienation was conduct that the court could consider in the spousal support analysis under the Act, the conduct would have to be of a nature comparable to the conduct which the court can consider pursuant to section 33(10) of the Family Law Act[^42] in determining the quantum of spousal support. Section 33(10) provides as follows:

Conduct

33(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

[63] The phrase “course of conduct” makes it clear that something more than an isolated event is required in order for section 33(10) to come into play. Nasmith, J. articulated the test to be used in determining whether section 33(10) applies in the case of Morey v. Morey[^43] as follows:

1. The course of conduct must be exceptionally bad. In this regard, the court quoted the definition of “unconscionable conduct” in Black’s Law Dictionary as being “conduct that is monstrously harsh and shocking to the conscience.”

2. The conduct must be such as could reasonably be expected to destroy the relationship.

3. The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse.

4. The commission of a so-called matrimonial offence is not necessarily sufficient by any means.

5. The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test can be satisfied while acknowledging the risks of punitive costs if the Court finds on the whole of the evidence that the issue is frivolous.

6. The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the Court can make a preliminary ruling based on the likelihood of the test being met.

[64] Quinn, J. commented on the stringent nature of the test to be met for conduct to fall within section 33(10) in Bruni v. Bruni, and emphasized that “it will be the rare case that meets the test.”[^44]

E. Income Determination

[65] The financial means of a spousal support recipient and the payor spouse are critical factors in determining the issues of whether there has been a change in circumstances, ongoing entitlement, quantum and duration of spousal support in a variation proceeding. The income of the parties is one of many factors that are relevant to the parties’ financial means.

[66] For the purposes of the Support Advisory Guidelines[^45] (“SSAG”) sections 15 to 20 of the Guidelines are the starting point for determining the income of the parties. While the scope of the application of the SSAG in variation proceedings has yet to be determined by the Supreme Court of Canada, the courts have typically adopted the same approach to the determination of income in variation proceedings as in originating proceedings.

[67] Section 16 of the Guidelines provides that the starting point for the determination of annual income is the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency. The total of these sources of income is then adjusted in accordance with Schedule III under the Guidelines. While in practice, litigants often rely on the payor’s previous year’s total income as set out in the T1 General Form for the previous year as a basis for determining ongoing child support, section 16 does not dictate this approach. Rather, the goal is to ascertain current income based on the sources set out in the T1 form.[^46] Accordingly, subject to any agreement to the contrary, where the payor’s income changes, child support should be calculated on the basis of that changed income rather than by relying on the payor’s line 150 income from the previous year.[^47] In these circumstances, the court should determine the party’s Guidelines income for the upcoming twelve months from when child support will be paid.[^48]

[68] Section 17 of the Guidelines addresses how the court should deal with a situation where the payor parent’s income fluctuates from year to year. It provides that the court may have regard for the payor’s income over the last three years if necessary in order to determine an amount that is fair and reasonable in light of any “pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.”

[69] The determination of income for the purposes of applying the SSAG differs than for child support cases in that social assistance is not treated as income for the purposes of the SSAG, but the Child Tax Benefit and other government child benefits are included in income under the “with child” formula.[^49]

[70] In this case, the Respondent has requested that income be imputed to the Applicant for the purposes of calculating the appropriate amount of both spousal support and child support. The principles that apply in determining whether to impute income are the same in both child support and spousal support cases.[^50] The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[71] The list of circumstances set out in section 19 provides a useful summary of when it may be appropriate to consider imputing income in spousal support cases. This list is not exhaustive, and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income.[^51]

[72] The onus is on the party requesting the court to impute income to establish the grounds for this request.[^52] However, the support payor has an obligation to disclose all information that is relevant to their position, which includes full and frank disclosure of all information required to properly assess their income, their income earning potential and efforts which they have made to maximize their earnings.

[73] The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court is required to consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.[^53]

[74] Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.[^54] Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.[^55]

III. ANALYSIS AND RULINGS RESPECTING SPOUSAL SUPPORT CLAIMS

A. Claim for a Termination or Reduction of Spousal Support Based on the Applicant’s Alleged Parental Alienation

[75] Upon considering the principles summarized above and the evidence adduced by the parties, I have concluded that the Respondent has not made out a claim for a termination or reduction of his spousal support obligation based on the Applicant’s alleged alienation of Christopher and Michael from the Respondent. This claim fails both on a strict legal analysis and due to the Respondent’s failure to establish the evidentiary foundation upon which he bases his case.

[76] I have no doubt based on the Respondent’s evidence and his demeanour when testifying about the history of his relationships with his children that the breakdown of his relationships with Christopher and Laura, and the previous difficulties which he had in his relationship with Michael, have had a significant emotional impact on him. However, even if I were to assume that the Applicant alienated the children from the Respondent, this type of conduct falls within the purview of section 17(6) of the Act and cannot, in isolation, be considered in deciding a spousal support variation proceeding. A finding that the alleged alienating behaviour continued after the parties’ marriage ended in divorce would not alter this conclusion. If the effects of the alleged conduct on the Respondent had been such that his ability to support the Applicant financially had been impaired, this may have constituted a material change in circumstance justifying a change to the spousal support order. However, the Respondent acknowledged through his counsel at trial that the alleged behaviour on the part of the Applicant and the problems in his relationships with his children have not had an impact on him from a financial standpoint.

[77] As noted previously, counsel for the Respondent argued that the alleged alienating behaviour on the part of the Applicant disentitles the Applicant to spousal support on the basis that a continuation of spousal support presupposes that the recipient will continue to carry out the responsibilities which they carried out during the relationship and which contributed to the finding of entitlement to spousal support. Specifically, she argued that in this particular case, the award of spousal support was made with the expectation that the Applicant would continue to carry out her maternal role in a responsible manner, which includes fostering a relationship between the children and their father. This argument is problematic for two reasons. First, it does not assist the Respondent in surmounting the hurdle created by section 17(6) of the Act, which as I have found precludes me from considering alleged parental alienation in carrying out the spousal support analysis. Second, there is no authority for the proposition that spousal support carries with it implicit conditions that the parties will continue to carry out defined roles in the future. To adopt the approach suggested by counsel for the Respondent would be to essentially re-write the philosophical underpinnings of spousal support law. Furthermore, this approach does not recognize the hard reality that in many cases, marriage breakdown seriously undermines the financial position of both parties, and forces them to adopt new roles which they never imagined they would have to assume in order to meet their basic financial needs.

[78] My conclusions set out above are sufficient to dispose of the Respondent’s claim for a termination or reduction of spousal support founded on the Applicant’s alleged parental alienating conduct. However, even if I had found that the prohibition in section 17(6) of the Act did not extend to the alienation alleged by the Applicant, I would have dismissed this aspect of the Respondent’s claim on the basis that the Respondent has not proven the facts which he relies upon to support his case. The Respondent’s claim is based on his allegations that the Applicant’s alienating behaviour was the sole or primary cause of the difficulties between him and the children when the October 24, 2007 order was made; that the Applicant’s alienation continued unabated after October 2007 despite the fact that both parties retained Mr. Ricketts; and that the Applicant’s alienating conduct caused the destruction of his relationships with Laura and Christopher and threatened to destroy his relationship with Michael. The change in circumstance which he alleges is that the Applicant was expected to correct her behaviour and work with Mr. Ricketts to resolve the breakdown in the Respondent’s relationships with his children, but that she failed to do so.

[79] I conclude that the Respondent’s reasoning as described above is flawed for a number of reasons. First, I find that the difficulties in the Respondent’s relationship with his children as of October 2007 were not due solely to the Applicant’s behaviour. Rather, they were attributable to numerous dynamics and events within this family, including the unrelenting conflict between the parties and inappropriate conduct by both of them, all of which caused Laura, Christopher and Michael to feel that they could not easily straddle the divide that emerged between their parents following the separation. Similarly, the evidence does not support a finding that the ongoing difficulties in the Respondent’s relationship with his children since the October 24, 2007 order was made have been due solely to the Applicant’s conduct. Rather, I find that these ongoing problems continued due to the enduring effects of the difficulties that predated the order, the ongoing intense conflict between the parties, their inability to communicate and inappropriate behaviour on the part of both of them. In short, there has been no change in circumstances whatsoever in regard to the problems in the relationship between the Respondent and his children and the underlying causes of those problems. Finally, I find that although the Applicant has played a role in the difficulties which have developed between the Respondent and the children, her conduct in this regard does not satisfy the test which the Respondent states applies, namely the test set out in section 33(10) of the Family Law Act as elaborated upon in the case-law.

[80] A detailed discussion of my findings that support the above-noted conclusions is warranted, as these findings are relevant not only to the Respondent’s spousal support argument but also to his request to terminate child support for Christopher based on his position that Christopher has unilaterally repudiated his relationship with the Respondent.

[81] Although this is a variation proceeding, this is a case in which an understanding of the history leading up to the October 24, 2007 order is required in order to gain a fulsome understanding of the dynamics that have led to the divisions within this family, and to properly assess the Respondent’s claim that the Applicant is entirely responsible for these difficulties. The Respondent testified that he had a positive relationship with the children Laura, Christopher and Michael during the parties’ relationship. He acknowledged that he and the Applicant had many arguments near the end of their relationship, but stated that these were due to the Applicant’s difficult moods. He denied being verbally or physically aggressive towards the Applicant or the children.

[82] According to the Respondent, the Applicant told him that if he left the relationship, he would not see the children again. He stated that in fact, the Applicant interfered with his efforts to see the children following his decision to separate. He testified that shortly after the separation, the Applicant reported to police that he had illegally stored guns in the matrimonial home, and alleged that he had threatened to kill the Applicant and the children. He denied having made these threats, but stated that these allegations resulted in criminal charges being laid against him, which created difficulties for him in attempting to see the children. However, he did not adduce any evidence indicating that there were terms imposed in the criminal proceedings prohibiting or restricting him from seeing the children or contacting the Applicant, and the Applicant denies that any such terms existed.

[83] The Respondent alleged that he only saw the children a handful of times in 2005 and 2006, due to various allegations that the Applicant made including suggestions that he was suicidal. He recalled that a Children’s Lawyer, Mr. Michael Nash, was appointed, and that a social worker, Ms. Lourdes Geraldo, was assigned to assist Mr. Nash. During their involvement, arrangements were made for him to call the children during the week between the hours of 4:00 p.m. and 7:00 p.m., but the Respondent alleged that when he called, he would either get no answer or someone would hang up the telephone.

[84] The Applicant had a very different version of the events that led up to the October 24, 2007 order and the involvement of Mr. Ricketts. She denied interfering with the Respondent’s contact with the children. She alleged that for a period of approximately six or seven months after the separation, the Respondent did not make efforts to see or call the children. She remembered calling the Respondent at his mother’s home to arrange visits, and the Respondent telling her not to ever call him again. The Applicant’s understanding of the reasons for the Respondent’s request for the involvement of the Office of the Children’s Lawyer in early 2005 was that the Respondent did not want to communicate with her to address the access issues. She stated that she had no objection to the Respondent calling the children and arranging visits, but acknowledged that neither she nor the Respondent were speaking with each other. The Applicant testified that she encouraged the children to visit with their father if he called to ask for visits, and that they actually went on outings with the Respondent on a number of occasions when the Respondent called them.

[85] The Applicant stated that access between the Respondent and the children was problematic after the separation because of the children’s resistance to seeing their father. She explained that the home environment was “loud” before the separation, due to frequent arguments between the parties, and that the children talked about enjoying the peace and quiet after the Respondent left the home. She explained that the Respondent’s failure to maintain contact with the children for several months after he left upset the children, and made them feel as if he had walked out on the family. However, according to the Applicant, she continued to encourage the children to see their father following the separation, and told them that the issues between her and the Respondent should not affect their relationship with the Respondent. She denied interfering with the Respondent’s telephone calls to the children, but explained that when the Respondent called, the children would often simply refuse to go to the telephone.

[86] The parties’ daughter Laura testified at trial. As noted previously, I found her to be a very credible witness. She was able to recall significant details of the events which she described. Furthermore, her testimony was consistent with information which she relayed to Mr. Ricketts during his interview with her in November 2008. The Respondent suggested that the Applicant had influenced Laura to lie about her allegations against him, but he did not lead any credible evidence to support this accusation. He also suggested that Laura had a motive to lie, but I found his testimony on this issue to be unconvincing.

[87] Laura denied that her mother had ever discouraged her or her brothers from maintaining a relationship with her father, and stated that in fact, the Applicant encouraged her many times to reconnect with the Respondent. She stated that the children’s resistance to maintaining contact with the Respondent was due to the atmosphere in the home prior to the parties’ separation, and numerous incidents which caused the children to be fearful of and angry towards their father. These incidents included the Respondent referring to the Applicant and Laura in foul and demeaning terms, yelling at members of the family, and incidents of aggression towards Laura, the Applicant and Michael. Laura described incidents that occurred when Christopher was young during which the Respondent yelled so loudly that Christopher would run to Laura’s room for safety out of fear that he would be hit. She recalled a particularly upsetting incident when the Respondent knocked her and the Applicant to the ground and threw her bed on top of them. She also described that on the night when the Respondent left the home in December 2004, he knocked over a glass bowl and then threw it across the room and accidentally hit Michael on the leg. She described the Respondent as a “tyrant,” and testified that she encouraged her mother to leave him because she felt that he was abusive towards her. Despite these concerns, she stated that she attempted to re-establish contact with her father, but that the Respondent insisted on speaking negatively about the Applicant during these contacts. According to Laura, she told the Respondent that she did not wish to maintain a relationship if he continued to speak negatively about her mother, and the Respondent ceased trying to connect with her after that conversation.

[88] The Applicant’s siblings, Domenic Cifani and Carmen Cifani, also testified at trial. As noted previously, I found them both to be very credible witnesses. They both stated that they never heard the Applicant saying negative things about the Respondent within earshot of the children, or suggesting to the children that they should not maintain a relationship with their father. Ms. Cifani testified that both Michael and Christopher were upset that their father left the home, and that they both talked to her about feeling hurt that the Respondent did not come to see or call them for many months after the separation. Mr. Cifani confirmed the Applicant’s testimony that the Respondent did not make any efforts to see or call the children for several months after he left the home. He also stated that the Applicant asked him a number of times to talk to the children for the purpose of encouraging them to see their father, and that he had had these conversations with Christopher and Michael.

[89] Based on the evidence discussed above, I find that breakdown in the relationship between the Respondent and the children over the period from 2004 until Mr. Ricketts became involved in 2007 was the culmination of numerous factors. Because of my general concerns regarding the credibility of both parties, I find that the truth regarding the events that occurred during this period of time lies somewhere in the middle of their respective versions. I find that the Respondent did not make as many efforts as he should have to connect with the children following the separation, but I also find that the Applicant harboured a great deal of anger towards the Respondent and was not as encouraging and supportive of access as she should have been. I accept the evidence of Laura that the children were somewhat fearful of their father following the separation due to events that had occurred in the home prior to the separation. Having regard for the details which Laura provided regarding various incidents of aggression and inappropriate verbal comments by the Respondent, and my assessment of her credibility, I do not accept the Respondent’s complete denial that he engaged in any such conduct.

[90] I find that all three of the Menegaldo children also became aligned with the Applicant following the parties’ separation in part due to the impact of the separation on the Applicant. Mr. Ricketts’ evidence indicated that the Applicant suffered significant emotional distress following the separation, and that Laura felt that she had to take care of her mother and brothers emotionally, which caused her to have feelings of resentment towards her father. In addition, I conclude based on the evidence that Laura was very open and ardent about her views regarding the Respondent, and that this also contributed to the children’s alignment with their mother following the separation. Laura acknowledged in her testimony that she openly discussed with her mother her views that the Respondent was abusive towards the family, and that she felt the Applicant should leave the relationship. The evidence of Mr. Ricketts indicated that Laura was very actively involved in trying to convince Michael not to leave the Applicant’s home in December 2009, when he went to live with the Respondent.

[91] I also find that the schism that developed between the Respondent and the children was severely exacerbated by the intense conflict that evolved between the parties post- separation. I find that the parties were unable to communicate with each other at all regarding issues involving their children, including issues about access and important matters in the children’s lives. This made efforts to coordinate contact between the Respondent and the children problematic, and resulted in the Respondent not receiving important information about the children. For instance, the Applicant acknowledged that she did not call the Respondent to advise him about Christopher’s confirmation in the spring of 2007, but explained that she did call because the Respondent had threatened to call the police if she ever called his cell phone. She provided the same explanation for failing to call the Respondent to advise him about Michael’s confirmation. I find that the children were acutely aware of the intense conflict between their parents and their dislike for each other, and found it more peaceful to remain in one camp than attempting to negotiate relationships with both parents.

[92] In short, the situation respecting the Respondent’s relationship with his children as of October 24, 2007 was not solely of the Applicant’s making. The Respondent played an equal role. Neither of the parties managed their conflict or their family relationships in a responsible manner following the separation, and their children were the innocent victims of their shortcomings in this regard. This was the situation that presented itself when Mr. Ricketts began his involvement with the family in 2007.

[93] Unfortunately, the situation has not changed since 2007. In fact, it has worsened. The two camps that emerged following the parties’ separation have remained intact, but their membership has changed. Michael no longer has contact with his mother, and his relationship with his siblings is virtually non-existent. The Respondent attempted during this trial to lay the blame for the ongoing problems in the relationships between the parties and their children entirely on the Applicant. I reject this proposition, and find that in truth, both parties have remained equally responsible for the persistence of this intensely regrettable situation.

[94] In support of his position that the Applicant has engaged in a course of parental alienation since the parties separated, the Respondent relied on evidence that an alert referred to as a “Code 99” had been issued against him and placed on the children’s school files. He called Mr. Kenneth John and Ms. Gemma Monaco as witnesses to testify on this issue. Mr. John was the Vice Principal of St. Jean Brébeuf Catholic Secondary School in 2009, when Michael began grade nine at the school. Christopher was also attending the school at that time. Mr. John explained that a Code 99 is an alert which signifies that a parent is not permitted to have contact with a child, to receive information or reports respecting the child, or to attend the school premises due to safety concerns. He stated that this alert is placed on the file either by a school clerk or administrator, and is issued when the school receives information from either a parent, the court, a lawyer or through other means that raises safety concerns. He testified that he learned in September 2009 that a Code 99 had been issued against the Respondent. Mr. John testified that the Code 99 was issued before Christopher and Michael began attending St. Jean Brébeuf, and that he contacted Ms. Gemma Monaco, the principal of the children’s previous school, to make inquiries as to how the Code 99 came to be placed on the children’s school files. Neither Mr. John nor Ms. Monaco were able to determine how, when or why the Code 99 was issued against the Respondent. Ms. Monaco’s uncontested testimony, however, was that it was placed on the files prior to her tenure as Principal at Mother Theresa Catholic School, which began in September 2005. Mr. John stated that he contacted the Applicant to discuss the Code 99, and to request whether it could be lifted. I find that the Applicant responded by stating that she had no knowledge of how the alert had come into effect, and that the Respondent should be able to see the children and receive information about them. She consented to the Code 99 being lifted without any difficulty.

[95] The Respondent requests that I draw an inference that the Applicant was responsible for the Code 99 against the Respondent being placed on the children’s files. The evidence does not support any such inference being drawn. I find based on the evidence of the Applicant and Mr. John that the Applicant was genuinely perplexed as to how the Code 99 came into being. There is no evidence before the court that the Applicant or her lawyer requested that the alert be issued. The ease with which the Applicant consented to the alert being removed is inconsistent with the argument that she was responsible for implementing the Code 99 and with the suggestion that she played a role in maintaining the alert in effect.

[96] The Respondent also relied on the Applicant’s reaction to him asking the school principal, Mr. John, to pass on Christmas cards from him to Christopher and Michael as evidence of the Applicant’s alienating behaviour. I find based on Mr. John’s evidence that the Applicant responded on both occasions when this occurred by becoming angry that the children had been given the cards at school, and stating that she should have been present when this occurred. Given the history of the dynamics between the family members, and the conflicted nature of the children’s relationship with their father at the relevant time, I conclude that the Applicant’s concern about the children receiving cards from their father during school time and without her there to support them if they reacted negatively was reasonable. I also find based on the Respondent’s own evidence that the Respondent had given the boys cards every year at Christmas and on their birthdays prior to that time without incident or objection from the Applicant.

[97] The Respondent relied heavily on the evidence of Mr. Ricketts to support his argument that the Applicant completely alienated him from his children. Mr. Ricketts testified that the parties retained him to explore the possibility of a reconciliation between the Respondent and the children Christopher and Michael. His involvement with the family began in September 2007, and he remained involved until January 2011.

[98] Mr. Ricketts’ impressions regarding the dynamics in this family can be summarized as follows:

1. He concluded that the relationship between the parties was deeply troubled and conflictual, and this conflict was exacerbated by the fact that the parties are both “passionate people who are highly sensitive, highly emotional and strong-willed.”

2. He found that the Respondent in particular was unhappy, irritable and frustrated during the marriage, and had exhibited anger management issues in the past.

3. The perception of Laura and Christopher was that the Respondent had left the family, and both of them expressed anger about the Respondent’s decision to leave and the impact which this decision had had on their mother.

4. His impression was that the Applicant did not actively promote the relationship between the Applicant and the children following the separation. The Applicant admitted to Mr. Ricketts that she threatened the Respondent that he would never see the children if he left the home. Mr. Ricketts did not feel that the Applicant was genuinely interested in repairing the relationship between the Respondent and the children, and was of the view that the Applicant was not giving the children permission to see their father.

5. Mr. Ricketts felt that the relationship between the Respondent and the children would not progress unless the Applicant told Christopher and Michael in his presence that she believed it was important for them to have a relationship with their father, and that visits with their father should occur. When he arranged a meeting between the parties and the boys for the purpose of the Applicant relaying these messages to the children, the Applicant told Michael and Christopher that it was fine with her if they wanted to see their father, but that she would not force them to do so if they did not want to see him. Mr. Ricketts felt that if the Applicant had conveyed the messages which he had suggested, progress could have been made in the relationship between the Respondent and the children.

6. Mr. Ricketts’ role changed following Michael’s decision to move to his father’s residence in December 2009. He remained involved as a source of support for Michael, and met with Michael several times in that capacity. He only met with Michael and the Applicant once, on February 26, 2010.

7. Michael told Mr. Ricketts that he left his mother’s home due to conflict with his mother in late 2009 around issues relating to his sexuality, and him not following rules and directions. Mr. Ricketts’ impression following his meeting with Michael and the Applicant was that both of them remained extremely hurt and angry with each other, and that neither of them were ready at that stage to accept responsibility for their role in the difficulties which had developed between them. Michael gave the Applicant a letter to read during the meeting, the contents of which Mr. Ricketts did not review. The letter was clearly extremely upsetting to the Applicant, and the meeting concluded with the Applicant telling Michael that he was no longer her son and that he should “go to hell.”

8. Mr. Ricketts had concerns after December 2009, based on information which Michael relayed to him, that Michael was being pressured by his siblings and extended maternal family members to return to his mother’s home. He was concerned that this pressure would have the effect of driving Michael further away from his mother and siblings, and therefore eventually recommended in January 2011 that contact between Michael and his maternal family members be at Michael’s discretion.

9. Based on his communications with Michael, Mr. Ricketts did not feel that the Respondent had influenced Michael’s decisions not to maintain contact with his mother, siblings and extended family members after Michael moved to his father’s home. His impression was that Michael had genuine issues in his relationship with his mother, and that Michael simply could not manage the pressures that would be brought to bear upon him again if he initiated contact with any members of his extended maternal family.

10. Mr. Ricketts was questioned by counsel for the Respondent as to whether the Applicant’s conduct in this case could be characterized as parental alienation. He declined to assign this label to the Applicant’s behaviour, and instead responded by repeating his conclusion that the Applicant was unable to effectively support the relationship between the children and the Respondent. I note that in his report dated June 13, 2008, which was completed following his initial round of interviews with all members of the immediate family and the observation visits between the Respondent and the boys, Mr. Ricketts referred to the situation between the Respondent and the children as one of “estrangement” rather than alienation.

[99] The evidence of Mr. Ricketts provided very helpful insight into the role which the Applicant has played in the situation that has developed between the parties and their children. I accept Mr. Ricketts’ evidence that the Applicant’s responsibility for the dysfunctional dynamics that have emerged since the parties separated is significant. I agree with him that the Applicant did not support the relationship between the Respondent and the children as strongly as she should have. I also find based on the evidence of the Respondent, Ms. Monaco, Mr. John and Mr. Ricketts that the Applicant’s personality can be difficult and reactive at times. However, I find that the evidence does not support a finding that the relationships between the Respondent and his children could have been repaired but for the conduct of the Applicant. Based on my assessment of all of the evidence in this case, much of which was not available to Mr. Ricketts, I conclude that the reasons behind the breakdown in family relationships and the ongoing difficulties in this family are much more complex. They include historical and ongoing inappropriate conduct by both parties, historical and ongoing conflict and communication problems between the parties, and significant pressure from immediate and extended family members.

[100] While Mr. Ricketts commented on the Respondent’s responsibility in creating the situation that developed between him and his children during the period leading up to October 2007, he did not have the benefit of much of the evidence which I heard as the trial judge hearing the sworn testimony and cross examination of the various witnesses in this matter. For instance, the testimony of Mr. and Mrs. Cifani and Laura at trial confirmed the Applicant’s and Laura’s evidence that the Respondent did not make meaningful efforts for many months after the separation to maintain face to face or even telephone contact with the children. Taking this evidence into consideration, the children’s impression that the Respondent abandoned them is understandable, and was not simply attributable to how the Applicant described the situation to them. In addition, Mr. Ricketts did not have the benefit of hearing from Mr. and Mrs. Cifani regarding the extent to which the Applicant encouraged the children to visit with their father following the separation, and Mr. Cifani’s meetings with Christopher and Michael at the specific request of the Applicant to encourage them to visit with the Respondent. Furthermore, Mr. Ricketts did not have the benefit of the evidence which I heard about the Respondent’s threats to call the police if the Applicant attempted to contact him. The Respondent’s stance on the communication issue significantly undermined the parties’ ability to work through access and other issues respecting the children, and greatly increased the conflict between them which, in my view, has been the primary underlying cause of this family’s division into two factions.

[101] Mr. Ricketts referred in his report to the evidence regarding the Respondent’s history of detachment from the children and verbal abuse and physical aggression towards family members. I find that these factors have had a significant and enduring impact on the children’s emotions and have contributed to their decision to remain aligned with their mother following the separation. The fact that all three children discussed these concerns with Mr. Ricketts three years after the parties’ separation supports this conclusion. The intensity of Laura’s anger and hurt around the Respondent’s behaviour to this date, as demonstrated during her testimony at trial, also speaks to the enduring impact of the Respondent’s conduct.

[102] Finally, Mr. Ricketts did not have the benefit of hearing evidence about the overall family situation and dynamics after Michael moved to his father’s residence. His involvement after Michael moved to his father’s home in December 2009 focussed primarily on providing support for Michael, and the information which he received came almost exclusively from Michael. The events which occurred following Michael’s move to the Respondent’s home and which contributed to Michael now having no contact with his mother, siblings and extended maternal family are highly relevant in that they provide a more fulsome understanding of all of the factors that have caused the dysfunction in this family. They shed light on the Respondent’s attitude towards the Applicant, and demonstrate the extent to which he has contributed to the intense conflict between the parties that has, in my view, been the root cause of this family’s difficulties.

[103] The Applicant is not blameless for the ongoing problems within this family since Michael moved to his father’s home. Most significantly, I find that her initial reactions to Michael’s decision to leave her home were severe and hurtful to Michael. However, I highlight the concerns respecting the Respondent, as he is the one who states that he has been blameless, and who seeks to lay responsibility for the problems in his relationships with his children completely on the Applicant to support his claim for a termination of spousal support.

[104] By way of summary, I find that there have been numerous occasions since December 2009 when the Respondent has demonstrated an inability to support Michael’s relationship with his mother, siblings and other maternal family members, and has instead fuelled the difficulties that have arisen between Michael and these people. Examples of the Respondent’s inappropriate responses include the following:

1. I find that on the night before Michael left his mother’s home, the Applicant called the Respondent to discuss the situation and to advise him that Michael was talking about going to live with him. The undisputed evidence of the Applicant was that she told the Respondent that Michael was having some difficulties, and that rather than problem-solving with the Applicant around the issues, the Respondent simply stated that the Applicant was the one who had the problem.

2. I find that on December 18, 2009, the night when Michael decided to leave his mother’s home, the Respondent picked Michael up and drove directly to the police station to report that Michael was in his care. He did so without making any effort whatsoever to resolve the situation directly with the Applicant. He did not call the Applicant at any point confirm Michael’s whereabouts. His explanation for attending the police station was that he was not the custodial parent, and he wanted there to be a record that he was taking Michael because Michael did not want to remain with the Applicant.

3. I find that following Michael’s decision to live with his father, Michael received text messages, calls and emails from his sister Laura, maternal family members and family friends, urging him to return to his mother’s care and work out his issues with the Applicant. Michael felt pressured by these numerous contacts. Instead of attempting to contact these individuals directly to discuss the situation and to explain how the communications were impacting Michael, the Respondent had his counsel send correspondence to the Applicant’s counsel, in which the prospect was raised of initiating legal proceedings for restraining orders against Laura and the other individuals in question. When Laura and Michael’s maternal aunt and uncle, Carmen and Dominic Cifani, continued to try to reach out to Michael and the Respondent in early 2010 to discuss the situation, the Respondent had his counsel send them all letters threatening to initiate legal proceedings if they persisted in what the Respondent considered to be harassment.

4. The Respondent testified that for Michael’s sixteenth birthday, the Applicant took the initiative to obtain Michael’s school photograph and placed an announcement in the newspaper with Michael’s picture, congratulating him and wishing him well. Instead of framing this gesture as a positive one, and using it as a means of working towards a reconciliation between Michael and the Applicant, the Respondent characterized it as a “throw in his face,” since it deprived him of the opportunity to place the announcement for Michael himself. The Respondent testified that Michael “took care” of this situation by calling the newspaper and insisting that the announcement in the paper and on the internet be removed, and stated that this was what he was teaching Michael, that is “to stick up for his rights.”

5. The Applicant sent Michael an email on February 19, 2010, a week before she and Michael met at Mr. Ricketts’ office, telling Michael that she was not angry with him, that she understood if he wanted to live with his father, but stating that she wished to see him. Again, instead of viewing this email as a positive gesture and as an opportunity to work towards a reconciliation between Michael and his mother, the Respondent characterized this communication as part of the “bombardment” of messages which Michael received after he left his mother’s home.

6. The Respondent and Michael were involved in a car accident on September 26, 2010, and Michael was transported to hospital by ambulance. Instead of contacting the Applicant immediately to apprise her of the accident and Michael’s well-being, he left a message for his lawyer advising her of the situation. His only explanation for not calling the Applicant was that he did not feel that they could have a civil conversation. I find that the Applicant found out about this accident approximately one month later, when she received an ambulance bill relating to Michael’s transportation to the hospital in the mail. Based on the Respondent’s evidence, I find that the Applicant called him at home and on his cell phone in an angry state to inquire about what had occurred and why she had not been informed of the accident, and subsequently attended at Michael’s school and asked to see Michael to inquire about his well-being. Instead of continuing to address the Applicant’s concerns directly with the Applicant, the Respondent’s reaction was to call the police and accuse the Applicant of harassment.

7. In November 2011, Michael received an award at school for making the Honours Roll. The Applicant attended the awards ceremony, and her uncontroverted evidence is that the Respondent and his partner pushed Michael away from her when she attempted to approach Michael to greet and congratulate him. The Respondent testified at trial that in his view, the Applicant’s presence at the ceremony resulted in the event being “ruined” for Michael.

[105] The significance of these events is that they demonstrate how the Respondent has been an active participant in the development of the poisonous conflict that exists between the parties and other family members, and how this conflict has resulted in the Menegaldo children feeling that they do not have the permission of either party, not just the Applicant, to enjoy a happy and healthy relationship with both of their parents. The battle lines created by this conflict have, quite simply, been too difficult for the children to cross. The Applicant summed up the major underlying difficulty in this family most aptly when she stated in her testimony that “the problem was us hating each other.”

[106] Again, I emphasize that the Applicant has not been blameless in this case. However, I reject the argument of counsel for the Respondent that the Applicant’s conduct has been such that it would satisfy the test of unconscionable conduct within the meaning of section 33(10) of the Family Law Act. Although the Applicant did not give the children precisely the message which Mr. Ricketts asked her to convey, she brought the children to all appointments with Mr. Ricketts and visits with the Respondent, and attended all meetings that Mr. Ricketts asked her to attend. She gave Mr. Ricketts photographs of the children to give to the Respondent. There is no evidence whatsoever that she ever told any of the children that they should not see their father, or that she orchestrated others to relay any such messages to them. Nor is there any evidence that she stone-walled any pre-arranged access visits. I find that she has kept scrapbooks for the children in which she has included cards which they have received from their father, and that she has made sure that the children have their father’s home and cell phone numbers. Her conduct has been far from perfect. However, it has not been “monstrously harsh and shocking to the conscience,” as the test in Morey v. Morey requires for conduct to be considered in the spousal support analysis under section 33(10) of the Family Law Act. Furthermore, for all of the reasons articulated above, the requirement set out in Morey that the Respondent be virtually innocent and blameless has most certainly not been met in this case.

B. Claim for Reduction of Spousal Support Based on a Decrease in the Respondent’s Income and the Applicant’s Failure to Work Towards Self-Sufficiency

[107] The Respondent’s alternative claim is that spousal support should be reduced because his income has decreased since 2007, and the Applicant has failed to make efforts to achieve self-sufficiency. I conclude that the Respondent’s claim for a reduction of spousal support on these grounds fails for the following reasons:

1. The change in the Respondent’s income does not satisfy the threshold test of a material change in circumstances;

2. The Applicant’s failure to achieve a greater degree of financial independence since 2007 also fails to meet the test of a material change in circumstances; and

3. The spousal support award granted in 2007 was based on compensatory grounds of entitlement, and the compensatory aspect of the award has not been satisfied.

[108] I elaborate on each of these conclusions below.

1. Has the Respondent Established a Material Change in his own Condition, Means Needs and Circumstances?

[109] The Respondent has continued to work at Dofasco since 2007. A review of his income as set out in line 150 of his Income Tax Returns for the years 2007 to 2010, and as reflected in his year end pay statement for the year 2011, indicates that his income has fluctuated since 2007. Based on those sources of information, I find that his income since that time has been as follows:

• 2007: $70,045.00
• 2008: $73,980.00
• 2009: $77,755.00
• 2010: $70,061.00
• 2011: $78,351.98

[110] The Respondent testified that his regular work hours per paycheque are 84 hours. He is paid $32.00 per hour for these regular hours, and receives premiums if he works on Saturdays, Sundays, afternoons or nights. His last paycheque for 2011 indicates that he did receive premium payments for weekend work and both afternoon and night shifts during the last 2011 pay period. He testified that his shift premium varies from paycheque to paycheque, depending on his schedule.

[111] The Respondent explained that in addition to his regular pay, he receives a Variable Compensation Payment (“VCP”), which is a form of bonus that is payable depending on the performance of the company from year to year. He explained that the VCP for any given year is paid out to employees in the February of the following year. Based on this evidence, I find that the figure for his 2011 income of $78,351.98 as reported at trial in January 2012 included his VCP for the year 2010.

[112] The Respondent’s highest income years since 2007 have been 2009 and 2011. He testified that his income was unusually high in those years because there was a miscalculation by the company for the VCP, resulting in him receiving two VCP payments for those years. In addition, he stated that the VCP was unusually high during those years because the company performed well. He stated that the total VCP for the 2010 year, which he received in 2011, was approximately $8,800.00. According to the Respondent, over the 38 years that he has been working for Dofasco, he has only ever received two VCP payments in relation to one calendar year in 2009 and 2011, and this is why his income was higher for those two years.

[113] The Respondent testified that Dofasco employees are typically told at the company’s quarterly meetings whether they will be getting a VCP for the year. He stated that at the last quarterly meeting, employees were informed that they would not be receiving a VCP anywhere near the amount which they had received in 2011. The Respondent stated that he anticipated that the VCP payout will be low in 2012 based on his information regarding the company’s performance.

[114] With respect to this 2012 income, the Respondent testified that he expected to earn at minimum an income in the area of $70,000.00 plus premium payments on top of that amount for weekends and afternoon and night shifts, as well as a VCP payment if there is one payable in relation to the year 2011. His 2011 final pay statement reflected his 2011 income including both regular pay and premium payments. That pay statement showed premium payments totalling $89.95 for that paycheque. Based on that amount, I conclude that a reasonable estimate for premium pay for 2012 would be approximately $2,338.70 ($89.95 X 26 pay periods= $2,338.70). I therefore estimate that the Respondent’s 2012 income, without VCP, will be in the area of at least $72,338.70. Even if he receives a VCP payout for the year 2011 at only 50% of the amount which he received in 2011 based on his evidence that he will not be receiving two payouts in 2012, this would bring his income to somewhere in the range of $76,738.70, which is very close to the figure of $77,000.00 which the October 24, 2007 order was based on.

[115] There are a number of gaps in the evidence relating to the Respondent’s income which I consider to be significant for the purposes of his claim to reduce spousal support. First, he explained that the spikes in his income for 2009 and 2011 were due to double VCP payments and unusually good performance on the part of the company for those years, but did not provide any independent evidence from Dofasco or any other professional on these issues. Furthermore, he did not provide any sound explanation for the variations in his income for the years 2007, 2008 and 2010, when he did not receive two VCP payouts. For instance, I have no idea why he earned $73,980.00 in 2008, but only $70,061.90 in 2010. This gap in information is of particular concern given that he testified during cross examination that his base income actually increased from 2008 to 2009 because his job classification changed. Furthermore, he did not provide any evidence respecting the VCP payments which he received for the years 2007 to 2010. Accordingly, I do not have any sense of what his base earnings were during those years and what his VCP payouts were, or whether there was a general pattern to the amounts of the VCP payouts for those years. The Respondent has also failed to provide a specific breakdown of the history of his shift and weekend premiums for the years 2007 to present, including whether such premiums were available to him at various times, whether he was able to increase his premium payments depending on his choices regarding shifts and weekend work, whether he voluntarily made changes to his work patterns and schedules which resulted in decreases in his income, or conversely whether he availed himself of opportunities to increase his premium income. Without this information, it is not possible to make an informed assessment regarding his patterns of work over these years and whether he could have earned more income than he actually earned.

[116] The onus is on the Respondent in this case to demonstrate that there has been a material change in his income since 2007. I conclude that the significant gaps in the evidence, as described above, preclude me from making such a determination. Alternatively, given the evidence that the income of the Respondent changes from year to year depending on whether a VCP is payable, and if so the amount of this payment, I conclude that the most appropriate approach to determining whether there has been a change in the Respondent’s income since the order of 2007 was made is to determine the Respondent’s average income from 2007 to 2011 inclusive. I have not included the year 2012, as I did not receive evidence regarding the expected VCP payout for 2012. The Respondent’s average income for the years 2007 to 2011 inclusive was $74,038.00. The preliminary question to be decided is therefore whether a change in income from the $77,000.00, which formed the basis of the October 24, 2007 order, to $74,038.00 is sufficient in and of itself to establish that there has been a material change in the Respondent’s condition, means, needs or other circumstances since the October 24, 2007 order was made.

[117] In determining whether there has been a material change as required by section 17(4.1) of the Act, the question to be answered is whether the change is such that it would have resulted in a different order being made if it had been known at the time. As a preliminary point, I find that the difference in income between $77,000.00 as agreed to in 2007 and the average figure referred to above of $74,038.00 is only $2,962.00. It is not in my view a significant amount having regard for the Respondent’s income level. However, the more compelling difficulty with the Respondent’s case is that the Respondent has not led any evidence whatsoever of his financial circumstances in 2007, apart from his income in that year. While the Respondent’s income would have been an important consideration in deciding upon the spousal support amount of $1,000.00 in 2007, it was not the only relevant factor. Spousal support awards must take into consideration all of the relevant conditions, means, needs and other circumstances of the spouses. Similarly, the court cannot in variation proceedings take a simplistic approach of comparing income at the time the order was made to income at the time the variation proceeding is heard. Section 17(4.1) of the Act directs to the court to consider whether there has been a material change in the “condition, means, needs and other circumstances” of either spouse, and not simply their incomes. As noted previously in these Reasons, the Supreme Court of Canada emphasized in R.P. the importance of laying the proper evidentiary foundation for a variation of spousal support, including documentary or other evidence regarding the party’s specific financial circumstances at the time the order was made. In the absence of information regarding the Respondent’s overall financial situation as of October 2007, it is not possible to conduct a meaningful assessment of how the Respondent’s current economic circumstances compare to those which existed in 2007.

[118] By way of example only, even if it is accepted that the Respondent’s income has decreased for legitimate reasons since the existing order was made, this may not be sufficient to justify a variation of spousal support if his overall expenses and debt load have also decreased significantly. On this point, I find based on the Respondent’s Financial Statement sworn October 7, 2011 that the Respondent has no debt, and that he has a pension through his employment with Dofasco. His monthly expenses, including spousal and child support, but not including transfers which he makes to Michael’s account for the child’s Child Tax Benefit which he also included in income on that Financial Statement, are approximately $5,738.00 per month. Using the average annual income of $74,038.00 referred to above as a benchmark, this would place him in a monthly surplus situation of approximately $431.83 per month. While I have no information before me regarding the Respondent’s overall economic situation in 2007, I am satisfied that maintaining the current spousal support amount would not place him in a deficit situation.

[119] Based on the foregoing, I conclude that the Respondent has not established on a balance of probabilities that there has been a material change in his condition, means, needs or other circumstances since 2007.

2. Should Spousal Support be Varied Based on the Applicant’s Failure to Increase Her Income?

[120] I turn to the Respondent’s alternative basis for reducing spousal support, which is that the Applicant has failed to take steps to increase her income and acquire a greater degree of financial independence since 2007. As stated previously, the Ontario Court of Appeal held in Fisher that the threshold test in an application to vary spousal support may be met “when an anticipated set of specified circumstances fails to materialize.”[^56] In this regard, the court provided the specific example of where “an initial order specifies a trial judge’s anticipation that the recipient spouse will or should be able to earn a given income within a particular timeframe.” [^57]

[121] I find that there is no evidence before me upon which I can conclude that it was anticipated as of October 2007 that the Applicant would be able to improve her financial situation in any significant way, or even to a minimum wage level. There is no reference in the order to any such expectation, and there was no other evidence adduced suggesting that there was such an expectation on the part of both parties.

[122] Furthermore, I find that there is no evidence to support a conclusion that the Applicant could realistically improve her income significantly above the $16,935.00 that was imputed to her as of October 2007. I have reached this conclusion based on the following findings respecting the Applicant’s educational background, her employment history, the role which she assumed during her relationship with the Respondent, her employment and income history and her vocational skills:

1. The Applicant only achieved a grade eleven education, and completed an English course in 2003. She has not had any other formal educational training.

2. The Applicant worked during part of the first year of the parties’ marriage for Serca, making sandwiches for catering trucks. She left this job because working with food exacerbated the eczema which she had on her hands. She assumed a full time homemaker role in 1979, with the encouragement and support of the Respondent, and did not work at all again until 2002.

3. The Applicant does not have a driver’s licence. She attempted to learn to drive when Christopher was born, with the Respondent’s assistance, but she failed the driver’s test. She did not try again, as she assumed that the Respondent would always be there to help her with transportation.

4. In 2002, the Applicant assumed a part-time contract position with the Hamilton Wentworth Catholic District School Board as a lunchroom supervisor at Mother Theresa Catholic School. She held this position until 2005, working approximately five hours per week when school was in session, at a wage of $14.95 per hour. There were issues regarding her performance in this position, and therefore her contract was not renewed.

5. The Respondent’s employment income for the years 2002 to 2005, when she worked as a lunchroom supervisor, was as follows:

• 2002: $470.45
• 2003: $1,368.07
• 2004: $1,964.00
• 2005: $2,876.00

6. In or around July 2006, the Applicant was able to secure part time employment cleaning an office building, working five days per week for five hours each day from approximately 5:30 p.m. until 10:30 p.m., and earning a minimum wage salary. She continued this work until approximately July 2008. From 2006 to 2008, the Applicant’s income, excluding spousal support payments, was as follows:

• 2006: $7,584.00
• 2007: $11,837.32
• 2008: $6,478.02

7. The Respondent suggested that the Applicant earned additional income “under the table” over the years cleaning her sister’s work premises and the homes of other people. He estimated that the Applicant earned $250.00 per week from cleaning her sister’s work premises, but acknowledged that he did not know how much she earned from the other alleged cleaning jobs and that he never actually saw the money that the Applicant brought home from this work.

8. The Applicant testified that the only other cleaning job that she had was cleaning her sister’s work premises, which she stopped doing in 2006 and for which she received $250.00 per month. Her sister, Ms. Cifani, corroborated this evidence in her testimony, and I found her credible on this point. Thus, I find that the Applicant earned an additional $250.00 per month, or $3,000.00 annually, under the table until 2006 cleaning her sister’s premises.

9. Counsel for the Respondent cross examined the Applicant on a number of ongoing deposits to her bank account after 2007 in the amount of $250.00. As noted previously in these Reasons, the Applicant was unable to provide any clear explanation for these deposits, despite the fact that the bank account statements produced revealed that these deposits were made on a fairly consistent basis from November 2007 until September 2008 (ie. $250.00 deposits were made monthly in November and December 2007, and from February to September 2008). Based on Ms. Cifani’s evidence, I accept that the Applicant was not working for her sister after 2006. However, I find on a balance of probabilities that the Applicant continued to do cleaning or other work on the side for other individuals, earning approximately $250.00 per month. This conclusion is supported by the fact that the Applicant’s own counsel, Mr. Graham, confirmed in correspondence dated May 22, 2007 and May 23, 2007 that the Applicant had a sole proprietorship cleaning business. Furthermore, I note that the $250.00 deposits ceased in September 2008, soon after the Respondent’s counsel sent the Applicant’s counsel a letter advising that the Respondent was seeking a reduction of spousal support. This work would have increased her income by approximately $3,000.00 per year, plus a gross up for tax.

10. The income of $16,935.00 that was attributed to the Applicant in October 2007 was imputed to her, as the most which she had actually earned in her adult life up until that point was $11,837.32 in 2007, plus the money which she earned from cleaning.

11. The Applicant quit her job cleaning offices in approximately July 2008, because the evening/night hours were not conducive to ensuring that Christopher and Michael were appropriately supervised, and the Applicant could not arrange appropriate alternative supervision for them.

12. The Applicant has no clerical or retail skills or experience, no computer skills, and no other skills apart from her cleaning experience that could assist her in obtaining a higher degree of self-sufficiency. She has applied for other regular cleaning jobs without success. She feels that this is the only type of work that she can reasonably do. She has contacted her former employer of the company that had the office cleaning contract, but the employer did not get back to her.

[123] Although the Applicant states that she is not currently working, she is not asking that the court increase spousal support based on the change in her income since 2007. For the purposes of the spousal support calculation, she is simply asking that the court continue to impute to her the $16,935.00 income that was imputed in 2007. Having regard for the above noted findings, and her current age of 53, I conclude that her request is reasonable. The role which she assumed during her lengthy relationship with the Respondent resulted in her having no significant job skills that would allow her to improve her financial situation. To expect her to retrain and attempt to compete with other younger potential employees at this point in her life is not realistic.

[124] The Respondent argues that since Christopher is now attending university and Michael is no longer living with the Applicant, it is reasonable to require the Applicant to supplement her income by renting out a room in her home, or alternatively to sell the home to improve her financial situation. In addressing these arguments, it is important to maintain a focus on the principle that the concept of self-sufficiency must be considered in light of the lifestyle which the parties enjoyed during the course of the relationship, and which they can reasonably sustain after the separation.

[125] I find that the parties were able to enjoy a comfortable standard of living during the course of their relationship as a result of the Respondent’s steady employment with Dofasco throughout the years. Having regard for the length of the marriage, and the economic disadvantage which the Applicant sustained as a result of the role which she assumed, she is entitled to enjoy a reasonable standard of living that is relatively commensurate with that which the Respondent is able to enjoy at this point in his life. The Applicant has no pension, whereas the Respondent has a pension through Dofasco which he will be able to draw upon in his retirement years. I find that the Applicant purchased the matrimonial home, where she continues to reside, at a reduced rate as part of the property settlement which the parties negotiated following the separation. This home is her only significant asset, and I accept her counsel’s argument that it is an asset that she will in all likelihood need to capitalize upon to fund her retirement. In the circumstances, to require the Applicant to sell the home at this point so as to allow the Respondent to reduce his spousal support obligation is not reasonable, and would not be consistent with the objectives set out in section 17(7) of the Act.

[126] With respect to the suggestion that the Applicant should rent out a room in her house to supplement her income, there is no evidence that the parties had an expectation as of October 2007 that she would supplement her income in this way once the children went to university. I find based on the Applicant’s evidence that the expectation is that her home will continue to be Christopher’s “home base” throughout his post-secondary education years, as Christopher anticipates that he will be returning to her residence for weekends, holiday periods and school breaks and during the four month summer school break. The home does not have a separate apartment unit, and therefore the suggestion is that she and Christopher share personal living space, including bathroom and kitchen facilities, with a tenant. Having regard for the parties’ standard of living during their relationship, and the Respondent’s current standard of living, I find this suggestion unreasonable.

[127] Finally, even if I had concluded that a minimum wage income should be imputed to the Applicant, I would have reached the same conclusion that a reduction in her spousal support would not be appropriate for two reasons:

1. First, Michael is no longer living with her, and this has resulted in a reduction of her child support from the Respondent. Part of the child support payable for Michael was to assist in defraying her housing expenses, and she has lost the benefit of this financial assistance in managing these costs. This change in circumstances could have arguably formed a basis for her requesting an increase in her spousal support payments. She has chosen not to make such a request, even in the face of the Respondent’s attempts to terminate all support for her and Christopher.

2. Second, I find based on the evidence adduced that the spousal support order made on October 24, 2007 was based on a compensatory claim. While the order did not specify the basis for the spousal support award, the evidence clearly supports such a finding. Taking this into consideration, I would have concluded that an increase in the Applicant’s income from the imputed $16,935.00 to minimum wage would not have constituted a material change in circumstances justifying a variation in the spousal support award at this time. The evidence does not satisfy me that the passage of time and the circumstances of the Applicant are such that the compensatory purposes of the spousal support award have been achieved. The Applicant’s financial situation and income earning potential have not improved since October, 2007. Furthermore, even if the Applicant was earning a minimum wage income, this income plus spousal support at the current level of $1,000.00 per month, and ongoing child support for Christopher would not in my view bring her anywhere near to the standard of living which the Respondent enjoys at this time.

[128] The Respondent has put forward an alternative position that if spousal support is not terminated or reduced, the court should order a review of spousal support within a specified time frame. I have considered the criteria which the court articulated in Leskun for determining when spousal support review orders should be considered, and the types of terms that such orders should include. The court held that review orders have “a useful but very limited role”, and are typically only appropriate where there is serious doubt at the time of the hearing regarding the financial prospects of one or both of the parties that could not be resolved at the hearing. The court noted that “insofar as possible, Courts should resolve the controversies before them and make an order which is permanent, subject only to change under section 17 on proof of a material change in circumstances.”[^58] Having regard for my findings set out above regarding the Applicant’s income earning history and her potential for improving her financial situation in a meaningful way in the future, I conclude that this is not an appropriate case for a review order. I am not satisfied that the financial situation of either of the parties will change in a material way in the foreseeable future.

CLAIMS RELATING TO CHILD SUPPORT

I. POSITIONS OF THE PARTIES

[129] As noted previously in these Reasons, the order dated October 24, 2007 provided that the Respondent was to pay the Applicant child support in the amount of $1,069.00 per month for both Christopher and Michael commencing January 1, 2007, based on the Respondent’s income of $77,000.00. Paragraph 15 of the order provided that this amount would be adjusted annually in accordance with the Guidelines upon receipt by the Applicant of the Respondent’s Income Tax Return and Notice of Assessment, which was contemplated by the terms of the order to occur no later than July 1st each year.

[130] The Respondent agrees to an order retroactively adjusting the child support payable to the Applicant for the years 2008 and 2009, when both children continued to reside with the Applicant, in accordance with the Tables under the Guidelines and based on the annual adjustment clause contained in the October 24, 2007 order. This would result in child support being increased to $1,043.00 per month for the year 2008 and $1,086.00 per month for the year 2009. The Applicant did not take issue with this position.

[131] The Respondent submits that there have been material changes in circumstances that justify additional variations to the child support order as of January 1, 2010. Specifically, he relies on the following:

1. He argues that Christopher lost his entitlement to child support effective July 1, 2011, when he turned eighteen years of age.

2. He relies on the fact that Michael has been in his care since December 19, 2009.

3. He states that the changes in his income, coupled with the Applicant’s failure to achieve a greater degree of self-sufficiency, constitute material changes in circumstances.

[132] Based on these alleged changes, the Respondent’s position on the issue of child support from January 1, 2010 onward can be summarized as follows:

1. He argues that for the year 2010, his child support obligation to the Applicant should be reduced to $465.00 per month, which is the set-off amount pursuant to section 8 of the Guidelines based on Christopher residing with the Applicant, Michael residing with the Respondent, the Applicant having an imputed minimum wage income of $21,320.00 per year and the Respondent’s 2010 income of $70,061.00.

2. His position is that for the period from January 1, 2011 until June 20, 2011, his child support obligation to the Applicant should be set at $525.00 per month, which is the set-off amount based on the Applicant having an imputed annual income of $21,320.00 and the Respondent’s 2011 income of $78,352.00.

3. His position is that his obligation to pay child support for the child Christopher should terminate effective July 1, 2011, when Christopher turned eighteen years of age, based on what he characterizes as Christopher’s unilateral repudiation of his relationship with him without cause.

4. While the Respondent seeks to terminate his support obligation for the child Christopher effective July 1, 2011 on the basis set out above, his position is that the Applicant’s obligation to pay child support for Michael continued despite the lack of contact between Michael and the Applicant after July 1, 2011. He argues that the Applicant’s obligation to pay child support for Michael should be set in the amount of $182.00 per month commencing July 1, 2011 based on an imputed minimum wage income to the Applicant of $21,320.00 per year. Further, he argues that the Applicant’s child support obligation for the child Michael should be set at $285.00 per month commencing January 1, 2012 based on an imputed income to the Applicant of $33,320.00 per year (full time minimum wage income plus rental income of $12,000.00 per year).

5. In the alternative to the above noted position, the Respondent submits that effective July 1, 2011, there should be an order that the Respondent support the child Michael and that the Applicant support the child Christopher.

6. In the event that the court determines that the Respondent has an ongoing obligation to support Christopher, the Respondent’s position is that child support should be based on the Respondent’s proportionate-to-income share of the cost of Christopher obtaining an education in the Hamilton area, after appropriate adjustments are made for tax credits and Christopher’s contribution by way of student loans and other monies which he is reasonably able to earn.

[133] The Applicant acknowledges that there has been a material change in circumstances based on Michael’s move to his father’s home on December 19, 2009. She urged me to reject the Respondent’s argument that child support for Christopher should be terminated effective July 1, 2011, since in her view the breakdown of Christopher’s relationship with the Respondent is primarily attributable to the Respondent’s behaviour both before and after the parties’ separation.

[134] With respect to the quantum of child support, the Applicant argued against a set-off of child support being applied pursuant to section 8 of the Guidelines effective January 1, 2010, stating that the parties negotiated the issue of child support in February 2010 and agreed that the Respondent would pay the full Table amount of child support for Christopher without a set-off to take into account the fact of Michael being in the Respondent’s care. Her position was that any set-off in relation to child support should be effective only as of February 1, 2012.

[135] Counsel for the Applicant further argued that the Applicant’s income has never approached the $16,935.00 that was imputed to her in 2007, and that her ongoing inability to achieve this level of income is a change in circumstance that justifies a variation to the child support order. He submitted that the Applicant’s income should be imputed at $12,500.00, which is more closely aligned to the highest income that the Respondent has ever actually earned.

[136] With respect to the proper approach to the child support calculation as of the commencement of Christopher’s post-secondary studies, counsel for the Applicant argued that the relationship between the parties is such that an order requiring them to exchange information and co-operate in adjusting child support annually based on variations in the cost of post-secondary education expenses is not realistic or workable. He argued that in the circumstances of this case, the most appropriate approach is to grant the Applicant the Table amount of child support for Christopher, with a set-off for the Table amount which she owes the Respondent for Michael, and in addition to order the Respondent to pay a fixed sum of $5,000.00 each year to the post-secondary educational institution where Christopher is attending, for a maximum of four years commencing September 1, 2011.

II. THE LEGISLATIVE FRAMEWORK

[137] The parties agree that the applicable legislation respecting the child support issues in this case is the Divorce Act. Section 15.1 of the Act stipulates that a court may on application by either or both spouses make an order requiring a spouse to pay for the support of any or all “children of the marriage.” The definition of “child of the marriage” is set out in section 2 of the Act, which provides as follows:

“child of the marriage”

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

1. is under the age of majority and who has not withdrawn from their charge, or

2. is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life

[138] Section 15.1(4) of the Act provides that in deciding a child support application, the court may make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[139] Section 17 of the Act outlines the principles that apply on an application to change an existing child support order. Section 17(1) directs that a court may make an order “varying, rescinding or suspending, prospectively or retroactively” a support order or any provision of the order. Before varying a child support order, the court must satisfy itself that there has been a change of circumstances as provided for in the Guidelines since the making of the existing order.[^59] Section 14 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different child support order or any provision thereof constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor spouse’s income, or evidence that the child is no longer a “child of the marriage” as set out in section 2 of the Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made.

[140] In making a variation order under the Act, the court is presumptively required to do so in accordance with the Guidelines.[^60] There are two exceptions to this rule set out in section 17. First, section 17(6.2) allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 17(6.4), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.

[141] The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

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

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[142] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[143] The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows:

7(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[144] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[145] The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient.[^