CITATION
Shedden v. Shedden, 2012 ONSC 3980
Court File and Parties
Newmarket Court File No.: FC-09-033075-00
Date: 2012-07-05
Superior Court of Justice - Ontario
Re: Brenda Shedden, Applicant
And: Brian Shedden, Respondent
Before: McGee J.
Counsel: Both parties self-represented
Heard: July 4, 2012
endorsement
Background
[1] On April 13, 2010 the applicant, Brenda Shedden and the respondent, Brian Shedden signed comprehensive and final Minutes of Settlement (“the Minutes”) at the offices of the applicant’s counsel. The respondent was self represented at the time of signing.
[2] The parties had been married for 26 years before separating in 2009. At the time of signing the Minutes they were 47 and 49 respectively. Their four adult children ranged in age from 19 to 23. The youngest had, and continues to manage significant special needs. She is not able to withdraw from parental control.
[3] The applicant experienced the litigation preceding the signing of the Minutes as high conflict, and doubted her ability to maintain the costs and trauma of ongoing litigation. Rather than face annual challenges for section 3(2) and 7 child support, she proposed a non-reviewable, non-variable amount of spousal support in the mid range of the Spousal Support Advisory Guidelines without child support. The respondent accepted.
[4] The portions of the Minutes relevant to this endorsement are as follows, with emphasis added :
The parties hereby agree to settlement in full of the within proceeding on the following terms:
The respondent shall pay non-reviewable, non-variable support to the applicant, in the amount of $2,500.00 per month, commencing January 1, 2010 and monthly thereafter, such payments to cover support for the previous month. Support will terminate forever after the November 1, 2025 payment, when the respondent turns 65 years of age.
No change in circumstances whatsoever shall result in an increase or decrease to spousal support.
The respondent to maintain in good standing and at his expense, a policy of insurance on his life in the amount of $100,000 while he is obligated to pay support to the applicant, naming her as an irrevocable beneficiary. The respondent will provide proof of continued coverage not more than once each calendar year, at the request of the applicant. The applicant may carry excess coverage on the respondent’s life, naming the applicant as irrevocable beneficiary (the respondent to, forthwith, cooperate in naming the applicant as irrevocable beneficiary and evidencing such designation to the satisfaction of the applicant and her counsel), such excess coverage to be paid for by the applicant.
The respondent shall forthwith withdraw his Answer and the applicant shall proceed to obtain a Final Divorce Order incorporating the substantive portions of the within Minutes of Settlement.
The within document shall constitute Minutes of Settlement in the within proceeding and shall also constitute a Domestic Contract within the meaning of the Family Law Act and all provisions of the within document shall be of full force and effect whether or not such provision is incorporated in the Consent Final Divorce Order.
These Minutes of Settlement are being signed at the offices of Dunsmuir Advocates and the parties agree as follows:
(1) that neither is bound to settle this matter today but that each desires to do so without further pause or delay;
(2) that the respondent is entitled to independent legal advice but is choosing to settle this matter in full today, having been afforded the opportunity to obtain independent legal advice and having declined such opportunity, wishing to move ahead and sign the Minutes today, understanding that the Minutes of Settlement will be of full force and effect just as soon as both parties have signed;
(3) that Kevin S. Dunsmuir and Dunsmuir Advocates (and any lawyers and law clerks of the firm) represent the applicant and not the respondent and have not and will not give legal advice or advice regarding the Minutes of Settlement or their legal effect to the respondent notwithstanding that he has chosen not to have counsel and that he has chosen to be self-represented;
(4) that each party wants to enter into the settlement provided by the within Minutes of Settlement in order to gain certainty and predictability in their matter, long term, that will provide a full and final resolution of all property, debt and spousal support issues whatsoever, now and forever, that is intended to be full and final and not capable of being changed or amended by either party now or in the future, regardless as to material, radical or catastrophic change in circumstances for either party.
[5] The applicant’s counsel proceeded on a 14B motion in May of 2010 to obtain a Divorce Order inclusive of a Final Order on the terms of the Minutes of Settlement. The motion was originally rejected on the basis that the materials did not satisfy the court that adequate financial arrangement had been made for the four children. (The Minutes do not provide for any child support).
[6] The applicant filed additional materials in November of 2010 which included her affidavit of September 10, 2010. That affidavit identifies the absence of child support as the consideration for “non-reviewable, non-variable” spousal support.
[7] At the time of entering the Minutes of Settlement it was well known, and is not disputed that the applicant was in a committed relationship with a new partner.
[8] Upon reviewing the September 10, 2010 affidavit, the court was satisfied that adequate provision for the children’s financial needs had been met per section 11 of the Divorce Act . The respondent withdrew his Answer, and a Final Order for divorce was granted on March 18, 2011. The Final Order included terms at paragraphs 1, 2 and 3 that:
The respondent shall pay non-reviewable, non-variable support to the applicant, in the amount of $2,500.00 per month, commencing January 1, 2010 and monthly thereafter. Support will terminate forever after the November 1, 2025 payment, when the respondent turns 65 years of age.
No change in circumstances whatsoever shall result in an increase or decrease to spousal support.
Respondent to maintain in good standing and at his expense, a policy of insurance on his life in the amount of $100,000 while he is obligated to pay support to the applicant, naming her as an irrevocable beneficiary. The respondent will provide proof of continued coverage not more than once each calendar year, at the request of the applicant.
[9] Mr. Shedden served a Motion to Change the Final Order of March 18, 2011 eight months later. He seeks an order terminating spousal support solely on the basis that his former spouse remarried on October 15, 2011.
[10] Within the Motion to Change dated November 15, 2011, Mr. Shedden also seeks compliance on a term of refinancing a previously jointly owned property. That issue has been addressed through subsequent Case Conferences. As it does not relate to a variation of a court order, but rather, the enforcement of an order, it is not properly the subject matter of a Motion to Change and will not be further dealt with in this endorsement.
[11] Ms. Shedden responded to the Motion in December of 2011. Following on the First Appearance, a dispute resolution officer met with the parties on January 16, 2012 and the matter was set before Justice Rogers for a Case Conference on February 3, 2010. The conference was not confirmed, and was later rescheduled to March 16, 2012. It proceeded on that day and continued on April 20, 2012. Justice Rogers organized this motion as a stated case per Rule 16 of the Family Law Rules . Within both endorsements, Justice Rogers records her guidance to the parties that they ought to seek legal advice.
[12] The applicant’s motion to dismiss the November 15, 2011 Motion to Change proceeded before me this day. Neither party was represented by counsel. Neither party had lengthy submissions or referenced the Family Law Rules .
[13] Ms. Shedden relies on the strict language of the Minutes of Settlement and the Final Order in seeking an order that the Motion to Change be dismissed. She cites Bhupal v. Bhupal 2009 ONCA 521 as support of the proposition that remarriage does not necessarily terminate spousal support.
[14] Mr. Shedden proposes that a boyfriend is different than a husband and that it was no more reasonable for him to anticipate his former wife’s remarriage as it is for the law to allow ongoing spousal support in the face of remarriage. He made ample use of the term “distasteful” when describing his former wife’s remarriage, and the prospect of an ongoing obligation for spousal support.
[15] Although not mentioned in his oral submissions, Mr. Shedden did include in his June 12, 2012 supporting affidavit extensive references to the Frustrated Contracts Act, RSO 1990 C.F.34. That Act has no relevance to these matters.
Analysis
[16] Subsection 12 of Rule 16 of the Family Law Rules provides that:
MOTION FOR SUMMARY DECISION ON LEGAL ISSUE
(12) The court may, on motion,
(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) dismiss or suspend a case because,
(i) the court has no jurisdiction over it,
(ii) a party has no legal capacity to carry on the case,
(iii) there is another case going on between the same parties about the same matter, or
(iv) the case is a waste of time, a nuisance or an abuse of the court process. O. Reg. 114/99, r. 16 (12) .
[17] It is well settled law that remarriage does not of its own accord terminate spousal support. It is a change in a party’s financial status that may give rise to a variation, not one’s marital status.
[18] The respondent’s Motion to Change can only succeed on the basis of a variation per section 17 (1) (a) of the Divorce Act provided that a court is first satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order. The nature of that change must be of such an effect and consequence that if known at the time, would have likely resulted in different terms of the order.
[19] Mr. Shedden asserts that he wishes to terminate the payment of spousal support, not to vary it. But this is a distinction without a difference. Spousal Support already has a termination date within the Minutes: November 1, 2025. Mr. Shedden in effect seeks to vary the termination date and bring it forward to the first of the month following the applicant’s remarriage.
[20] A final order which is silent as to any review or variation mechanism allows for a consideration of whether a party’s remarriage is such a change giving rise to a variation.
[21] A final order that parties agree is to be non-reviewable, non-variable and not subject to a change in circumstances does not permit a variation per section 17 (1) (a) of the Divorce Act by either party.
[22] It is Mr. Sheddon’s prerogative to seek legal advice, or to proceed in its absence. And while there may be other remedies available to him, they do not lie within a variation of the terms of the March 18, 2011 final order. No reasonable claim in law is set out within his November 15, 2011 Motion to Change.
[23] The Motion to Change is struck out.
Justice H. McGee
Date Released: [Click and Type Date]