COURT FILE AND PARTIES

COURT FILE NO.: FC-12-774
DATE: 2012/09/19
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patricia Ann McKim, Applicant

AND

Ralf Massar, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Patricia Ann McKim, self-represented

Diana Carr, for the Respondent

HEARD: September 10, 2012

ENDORSEMENT

[ 1 ] This matter comes before me for Confirmation of a Provisional Order of Justice J.M. Ross of the Court of Queen’s Bench of Alberta dated October 12, 2011. She varied the Divorce Judgment of Justice K.D. Yamauchi of the Court of Queen’s Bench of Alberta dated February 12, 2008 on a provisional basis. The Divorce Judgment itself was based on Minutes of Settlement between the parties dated June 27, 2007.

[ 2 ] The process is set out in the Divorce Act , R.S.C. 1985, c.3, sections 18 and 19.

[ 3 ] The parties per their factums agree that Mr. Massar’s Registered Retirement Savings Plan (RRSP) income should not be included for the purposes of calculating either child or spousal support, which is reasonable in the circumstances of this case.

Matters Confirmed

[ 4 ] The paragraphs of the Provisional Order that are not varied and not in contention are 1, 8, and 9. These are confirmed.

Matters Varied on Consent

[ 5 ] The following paragraphs are varied by agreement in light of the parties’ factums.

(a) Paragraph 2 is varied to read: “The obligation of Ralf Massar to pay support for the child Jacqueline Marie Massar is terminated effective August 31, 2009.”

(b) Paragraph 4 is varied to read: “The Respondent shall pay ongoing monthly child support for Daniel Joseph Massar, born October 13, 1993, commencing May 1, 2012 in the amount of $1,189 based on an income of $140,056 as long as Daniel continues in a full time program of education and resides with the Applicant.”

(c) Paragraph 5 is varied to read: “There are no section 7 expenses owed by the Respondent for the child Jacqueline.”

(d) Paragraph 6 is varied to read: “The Respondent shall continue to pay all post secondary expenses for Daniel, including living costs, tuition and books not covered by contributions from him, grants, student loans, or scholarships.”

Variation not on Consent

[ 6 ] This leaves two contentious issues. The first is the amount of child support arrears/overpayment. The second is ongoing spousal support.

(i) Child Support Adjustments

[ 7 ] Ms. McKim’s position is that retroactive child support should go back to 2008, the result being that with the other orders set out above there is an overpayment of child support by Mr. Massar of $284. Mr. Massar’s position is that child support cannot be adjusted further back than June 1, 2009. If he is correct then he has overpaid child support in the amount of $6,760.

[ 8 ] Mr. Massar relies on the Minutes of Settlement for his position. It states clearly at paragraph 3.4 that there shall be no review of child support prior to June 1, 2009. This provision was included as paragraph 10 of the Divorce Judgment. Paragraph 5.2 of the Minutes of Settlement states that if there is a review prior to this time contrary to the intention of the parties any increase will result in a corresponding decrease of spousal support so that the total amount of support received by Ms. McKim prior to June 1, 2009 would stay the same. The agreement notes in paragraph 6.1(f) that any unequal division of matrimonial property to the wife is to be characterized as lump sum spousal support.

[ 9 ] The Minutes of Settlement is a complicated legal document. Both parties had legal advice in entering into the agreement and in paragraph 14.6 they indicate understanding it and covenant to comply strictly with its terms. There is no application in this proceeding to set it aside.

[ 10 ] Overall, I do not find that the payor parent has been deficient in his support obligation to his children such that it is necessary for me in light of the above to vary the Judgment retroactively beyond June 1, 2009. Therefore paragraph 3 of the Provisional Order is varied to read: “Per the calculations in the Respondent’s Factum on page 2, the Respondent has overpaid child support for the two children Jacqueline and Daniel in the amount of $6,760. This amount shall be reimbursed to him in (12) monthly installment of $563 each and he shall be entitled to offset these payments against his spousal support payments.”

(ii) Spousal Support

[ 11 ] A material change in circumstances is required by section 17(4) of the Divorce Act before a variation to a spousal support order can be made. This was not argued before me, it does not appear to have been argued in the Alberta Court, and indeed there is no specific mention of it in the Provisional Order. Given the changes to both parties’ financial situations and the changes in the children’s circumstances since the Divorce Judgment, I attribute this lack of reference to an implicit understanding that the threshold has been met, and so find.

[ 12 ] The Provisional Order required Mr. Massar to pay Ms. McKim $3,900.00 per month spousal support based on the incorrect information that he was earning $173,695 per year. Ms. McKim alleged that Mr. Massar failed to disclose his recent earnings and asked the Court to therefore impute as his current earnings what he received in 2008. That amount included a very significant one time travel expense re-imbursement and significant withdrawals that Mr. Massar took from his RRSP to fund in part the children’s special expenses.

[ 13 ] There is evidence that Ms. McKim had obtained disclosure in the mediation process before the Provisional Hearing and was therefore aware that Mr. Massar was earning far less than $173,695 per year. Along those lines Mr. Massar is further frustrated with Ms. McKim’s lack of disclosure to the Alberta Court in that she cited having another brain tumor which is not supported by her recent medical disclosures, and she stated that she had never had a vacation since 2008 when it is clear by her own subsequent admissions that is incorrect. He is also skeptical of the claim that Ms. McKim is medically unable to work, and he argues that, notwithstanding the January 11, 2011 report of Dr. Dorcas S. Fulton, this has not been establised.

[ 14 ] In responding to Mr. Massar’s materials, Ms. McKim has now provided new Spousal Support Advisory Guidelines (“ SSAG ”) calculations based on her own earnings from her two pensions (employment and disability) and on Mr. Massar’s actual earnings. She is now seeking a ‘mid-range’ amount of spousal support at $2,702 per month.

[ 15 ] Ms. Massar has provided his SSAG calculations as Exhibit 1 using the same base numbers, and the amounts are very close to Ms. McKim’s calculations (slightly higher). However, he argues that spousal support should be less than even the low-range number and reflective of more balanced Net Disposable Income calculations that he includes in the Exhibit. He argues that he is still paying special expenses for the children, even though the two oldest are no longer children of the marriage, and he remains constantly in a deficit position because of his support obligations. He asserts that as Ms. McKim has indicated in her materials that she is able to get by on a monthly budget of $3,600, he should only be required to top-up her pension income to that amount, or in other words to pay spousal support of roughly $1,250.

[ 16 ] I am mindful of the objectives of a variation order in subsection 17(7) of the Divorce Act . Providing Ms. McKim support that only allows her to meet her current expenses ignores the length of the marriage and her current circumstances. This was a 21 year marriage that ended only six years ago. Ms. McKim did have significant child care responsibilities both before and after separation. Need is only one of the considerations.

[ 17 ] Regarding Ms. McKim’s income Dr. Fulton declared, based on Ms. McKim’s self-reporting and on a “mini-mental status examination”, that Ms. Kim is unable to work at any type of employment because of “significant memory impairment.” Without more, I do not find that the evidence establishes such a limitation. However, whether Ms. McKim would be able to earn substantially more than the disability benefit she is receiving from the Canada Pension Plan is unknown. Currently she is not employed, and worries about her future given her previous brain tumor and concerns about further complications.

[ 18 ] I do give significant weight to Ms. Massar’s financial commitment to his children and his heavy financial load occasioned by his assistance with their University expenses.

[ 19 ] In factoring in all the above, I do not hesitate to make an order that would fall at the low-range of the Ontario SSAG calculations. Paragraph 7 shall be varied to read: “Spousal support shall be varied commencing November 1, 2011. The Respondent shall pay to the Applicant the sum of $2,400 per month until further order.”

Costs

[ 20 ] Ms. McKim in her factum seeks costs. While the result is mixed, she has had success in obtaining an overall increase in the ongoing support payable. There is a presumption that a successful party is entitled to costs. However, Mr. Massar has also urged me to consider making a costs order in his favour noting his concerns as set out in paragraph [13] above. Unreasonable behavior and bad faith can not only deprive a successful party her costs but can even result in an award against her on a full recovery basis. Weighing these factors my decision is to confirm the Provisional Order which makes no order as to costs.

Mr. Justice Timothy Minnema

Date: September 19, 2012

COURT FILE NO.: FC-12-774
DATE: 2012/09/19

ONTARIO SUPERIOR COURT OF JUSTICE
RE: Patricia Ann McKim, Applicant
AND Ralf Massar, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Patricia Ann McKim, self-represented
Diana Carr, for the Respondent

ENDORSEMENT

Mr. Justice Timothy Minnema

Released: September 19, 2012