ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-FL-312-2
DATE: 2013/01/22

BETWEEN:

SHERRY MARIE MACEY

Applicant

– and –

ROBERT CHARLES MACEY

Respondent

Virginia G. Ollerhead, for the Applicant
Gil D. Rumstein, for the Respondent

HEARD: November 14, 2012

REASONS FOR JUDGMENT

Kane J.

[1] The parties were married to one another on June 10, 1989 and separated on December 30, 2005. There are two children of the marriage, namely, Ryan, born June 22, 1992 and Amber, born June 10, 1995.

[2] Following separation, the parties entered into comprehensive final Minutes of Settlement which was incorporated into a final Order of Cosgrove J. dated July 26, 2006, (“Order #1”) which Mr. Macey now seeks to vary. Ms. Macey seeks to update Order #1 and recover arrears thereunder.

[3] The children have always lived with their mother. Ryan is presently in third year university in Ottawa. He is very bright and resourceful. He financed, through part time work, scholarships and some money from his paternal grandfather, the cost of the first two years of his university education. Those costs included residence fees during first year university.

[4] Amber is in her last year of high school. She wants to attend university outside Ottawa. She has chosen a course which apparently is not offered in any of the three Ottawa universities.

[5] Regrettably, Mr. Macey has not been very present in the lives of his children since separation. He, in addition, has chosen to not see them since the summer of 2011.

[6] There is a consent order varying one term of Order #1, namely the Order of Ray J. dated October 1, 2007 (“Order #2”), under which the monthly child support of $1,174 (based on income of $81,457) in Order # 1 was reduced to $1,093 (based on annual income of $74,649).

[7] There is an interim consent without prejudice Order of Beaudoin J. dated June 19, 2012, (“Order #3”) amending Order #2 by increasing monthly child support to $1,152 (based on annual income of $78,399).

[8] Order #1 requires annual adjustments to child support payments in accordance with the Federal Child Support Guidelines, S.O.R./97-175, S.O.R./97-175, as am. (“Guidelines”). Order #1 contains an annual cost of living formula to spousal support. Mr. Macey has defaulted in relation to both such obligations.

CHILD SUPPORT

[9] Mr. Macey seeks an order varying the amount of child support. The mother seeks child support be set at $1,140 based on the mutual acceptance that the father’s current annual income is $78,736. The Guidelines provide that monthly child support in this case is $1,147. Child support in that amount is hereby ordered, commencing January 1, 2013. To that extent, Order #2 is varied accordingly.

CHILD SUPPORT ARREARS OR OVER PAYMENTS

[10] Ms. Macey alleges that these arrears as of October, 2012, total $1,060, including overpayments in 2008/2009 and 2009/2010 and underpayments in 2010/2011 and 2011/2012.

[11] Mr. Macey does not dispute the above calculations but states he has overpaid child support and seeks a refund because Ryan stayed in university residence and paid his own expenses in 2010/2011. He argues, as a result, he should not have paid child support. This ignores the fact that in first year, Ryan was living at home on weekends, holidays, four months over the summer, and used part of his “inheritance” from his paternal grandfather to cover some of his expenses.

[12] Ryan’s financial dependency continued throughout his first two years of university.

[13] Mr. Macey is required to pay child support arrears as claimed in the amount of $1,060 by January 30, 2013. He did not overpay child support.

SECTION 7 EXTRAORDINARY EXPENSES AND ARREARS

[14] Paragraphs 7 and 9 of Order #1 are very clear and do not merit variation. The parties, on a final basis, agreed:

(a) To pay a fix sum per month towards anticipated future extraordinary expenses. These monthly amounts have been paid, however Ms. Macey seems to treat this money as regular child support and directs the children on occasion to request contribution from their father for individual expenses;

(b) That university costs are a s.7 additional expense. They agreed however that only the net costs thereof, after application of educational funds, loans, bursaries, scholarships, the child’s employment earnings and any other funding available, are to be contributed to by the parents proportionately.

[15] Ms. Macey faults this father for refusing to contribute towards his son’s university costs which, to the extent of the monthly payment of $135/month, is incorrect. She quotes and compares the amount of financial assistance her partner contributes towards the cost of his children’s education. The only thing relevant is what these parents agreed to in the final order and their income levels, not what other parents earn or pay for in relation to their children.

[16] Rather than being protected from the above issue, Ryan has been pulled into it. He was requested and therefore filed an affidavit in support of his mother repeating his mother’s complaint that Mr. Macey refused requests for financial contribution towards his university costs.

[17] Mr. Rolston has also filed an affidavit as to this university cost issue. He repeats Mr. Macey’s alleged refusal to contribute to this expense.

[18] What Ms. Macey ignores is Exhibit G to her Response dated January 24, 2012. It speaks to the resourcefulness and talent of Ryan, his success through part time jobs, scholarships, and gifts from his grandparents etc. to fully pay the cost of his first two years of his university, including tuition, books, as well as his residence fees and food in his first year, without incurring a student loan.

[19] Ms. Macey ignores that, if one attributes one-half of the $135 s.7 payment, the father has paid in each year of university some $810 towards Ryan’s university expenses, in addition to regular monthly child support.

[20] If the allowance of $100 paid by the mother to Ryan is considered as a contribution towards Ryan’s university costs and payment of a s. 7 expense, which is a questionable argument, Mr. Macey would have paid $810 of this $1,200 paid annually to Ryan.

[21] For the above reasons, Mr. Macey did not default under Order #1 in the requirement to pay s. 7 expenses in the first two years of Ryan’s university costs and, in fact, contributed towards them as agreed upon under Order #1 to the extent of $1,620.

[22] Ms. Macey further ignores the fact that her annual $15,000 employment income and that of Mr. Macey at $78,000, after paying child and spousal support, does not allow her and the children to the lifestyle of parents who earn more, or to every wish a child, justifiably as they may be, expresses.

[23] This Court acknowledges the reality of children’s wishes and the value of things such as the experience of residence in university, trips in high school to Rome, Italy, sports camps in Vermont and $4,000 annual swimming fees plus travel costs. What Ms. Macey has forgotten however is that she and her former husband, regrettably, cannot financially afford this level of benefits for their children given the separation, two resulting households and their lower income levels. Given those limited earnings, these additional expenses are beyond their means.

[24] Regrettably, these children have been led by their mother to believe that their father has defaulted and breached his legal obligations by denying contribution towards those luxuries items which these parents financially could not afford.

[25] Ryan is to be commended for his ability and resourcefulness re his university costs. What he has done is exceptional, is to be celebrated but not used against a parent.

[26] This father and mother agreed in 2006 to a court order by which they are not financially obligated for university costs other than provided for under paragraph 9 of Order #1.

[27] Providing accommodation and food to, doing some laundry for, or giving a monthly allowance to a child, are costs child support is intended to cover. Ms. Macey assumed these responsibilities in obtaining custody. Mr. Macey has, in paying child support, appropriately contributed towards those costs as required by law.

[28] When Amber is admitted to and attends university, paragraph 9 will again potentially expose each parent to contribute towards the cost thereof. Mr. Macey is not, as he in the past suggested, entitled to offset his obligations thereof by the amount of regular, monthly child support.

[29] As to the claim for arrears of s. 7 costs; driver education and something towards swimming are appropriate s. 7 expenses, minus however the s. 7, $135 payments made towards such expenses.

[30] These costs will include $700 a year for swimming for the past three years plus driver education at $870 for Amber. The father’s share is 84% ($78K versus $15K), or $588 for swimming and $730 for the driving lessons in the third year, less $810 per year paid as s. 7 expenses (one-half of $135 x 12). That results in a credit to the father of $220 for two years and a deficit of $508 in the third year, resulting in a balance owing of $298 for year three, ($700 + $730 – $810 and – credit of $210). Mr. Macey shall pay such arrears of $298 by February 1, 2013.

[31] Ryan’s driver education cost of $675, (84% is $567) is offset by one-half of the s. 7 payment in that year for him of $810. No other s. 7 arrear costs are claimed for Ryan in the last three years beyond the $100 allowance, at least part of which is regular child support. The arithmetic, at best, for Ms. Macey is: (84% of $100 = $84 x 24 = $2,016, plus $567 = $2,583 minus $810 paid x 3 = $2,430). This leaves a maximum balance owing of $153. Based on these facts, this claim for arrears of s. 7 expenses is dismissed.

[32] Mr. Macey’s refusal to pay his son’s return Quebec City bus ticket was immature, in that he stranded his son and failed to realize the pressure his son felt to support his mother.

[33] Ms. Currie’s comments to the daughter were irresponsible, created pressure on her partner and caused problems in the father’s relationship with his daughter and son.

[34] The children deserve an apology for both of these events from Mr. Macey and Ms. Currie.

SPOUSAL SUPPORT

[35] What these proceedings are primarily about is Mr. Macey’s request to eliminate or reduce spousal support which he has paid now for six years at the rate of $1,400/month. His reasons are that:

(a) Ms. Macey moved in with and has lived with Mr. Rolston since July, 2010. Her partner pays the mortgage, taxes and insurance of that property; and

(b) The swimming cost and Ryan’s sport cost in 2006 have ceased.

[36] Ms. Macey counters that she has not paid a reduced rent of $500/month to her partner (versus the $1,400 rent she was paying post separation and before living with Mr. Rolston) because her partner kindly suggested she put the $500 into savings for her daughter’s university costs. She claims that $500/month as part of her monthly expenses.

[37] Ms. Macey’s current and past part-time income of $15,000/year cannot be increased due to health limitations. Combined with spousal support of $16,800, her gross income is $$31,800 plus the child tax credit which she claims. Since 2005, she has on average earned $14,670 gross but uses a gross income of $13,000 in her present DIVORCEmate calculations which is not accurate. It should be $15,000.

[38] Ms. Macey declares her monthly expenses include $306 for utilities, $1,106 for household expenses which includes $850 for food, $725 for automobile costs including $400 for gas and oil for a Toyota Echo, $400 for personal expenses and $500 for future university costs of her daughter. Her declared monthly expenses of $3,970 exceed her monthly revenue of $2,660. She has an outstanding line of credit of $2,990 and a debt to Mr. and Mrs. Kealy of $33,490 with no payments on the latter. The above debt level calls into question the monthly expense level declared. Her expenses do not incorporate the $1,400 monthly child support she receives.

[39] Ms. Macey’s present standard of living, which includes paying part of the cost of a recent cruise and a trip for herself to the US, coupled with a capacity to save some money, refutes her claim that her lifestyle is “approaching” what she had pre-separation. The couple’s debt level and lack of equity on separation was problematic.

[40] Mr. Macey’s financial position in his financial statements is understated and inaccurate in order to reduce what he pays in support.

[41] Mr. Macey states that he and Ms. Currie keep separate finances. That is untrue as he transfers to her some $2,000 plus per monthly, presumably towards expenses.

[42] He and/or his partner own a house and a cottage. The fact that he is not a registered owner of either may at least partially be a wish to understate his financial position and protect those assets.

[43] He declares $3,990 in monthly expenses, including a monthly pension contribution through employment of $549 which is forced savings for him. His expenses include $630 for his car which is high, as well as housing expenses of $325. He has averaged some $2,500/month of purchases on his credit card over the last 1.5 years.

[44] Mr. Macey’s monthly declared gross income of $6,561 exceeds his declared monthly expense of $3,990 before paying spousal and child support of some $2,652, including the s. 7 payment.

[45] Ms. Currie’s annual gross income is and has been in the range of $76,000 to $79,000 since the start of this variation application, not the $48,000/year Mr. Macey declares it to be.

[46] Mr. Macey and Ms. Currie have travelled abroad occasionally. That combined with the cottage, indicates a comfortable lifestyle but primarily because of the addition of a second income in the home earned by Ms. Currie.

[47] Ms. Macey’s lifestyle and that of the children has improved since she began living with Mr. Rolston who earns some $107,000 annually. Theirs is a relatively shorter term union at this point.

[48] The DIVORCEmate calculations submitted by the parties are informative. Ms. Macey’s calculations are understated as she used a gross annual income of $13,000.

[49] Mr. Macey’s calculation results vary depending on whether his monthly contributions to his pension are deducted from income. The case law on this point is divided. That difference may in some cases depend upon how limited the income level is of the parties, as in this case.

[50] Given the limited incomes here of each party, that deduction should not be made from Mr. Macey’s income prior to calculations of spousal support. Mr. Macey has a limited income and his pension payments are obligatory. It is savings however for his future benefit.

[51] At $15,000 annual income and the health limitations on Ms. Macey, it would be improper to allow the pension contribution deduction to Mr. Macey in order to calculate spousal support.

[52] Duration for spousal support is shown as between 8 to 16 years in this case. The income levels of the parties and the grounds to vary relied upon do not at this time justify termination of such support.

[53] Ms. Macey’s materials repeat factual circumstances prior to Order #1. This Court must accept the appropriateness of the provisions of that Order.

[54] It is artificial to ignore the financial improvement resulting from Ms. Macey’s current union with her partner, just as she argues the financial benefits resulting from Mr. Macey’s union with Ms. Currie. The current benefit enjoyed by Ms. Macey did not exist upon separation when spousal support was set and agreed upon. The result is a material change in circumstance sufficient to justify a variation.

[55] The range of spousal support with the appropriate inputs on the tables are $731,$962 and $1,223, all of which are below the $1,400 now paid. These amounts result in NDI to the payee of between 56.6 to 61.9%, each of which are high. This is using $78K, $15K, with no deduction for pension contributions and $1,149 child support.

[56] Income of $800 per month and $15,000 annually is low; however, $78,000 annual income less child support, s. 7 expenses, obligatory pension contributions and the priority for child support limits at this point what is available for spousal support.

[57] Based on the above factors, spousal support will be reduced to $800 per month commencing February 1, 2013. Order #1 is varied accordingly.

[58] Paragraph 11 of Order #1 will continue to apply to this revised spousal support.

SPOUSAL SUPPORT ARREARS

[59] Mr. Macey knew under paragraph 11 of Order #1 that he was obliged to adjust annually pursuant to the formula therein. He refused without justification to do so. The arrears claim for the period January 1, 2010, until December 30, 2012, is granted in the amount of $3,418 which shall be payable by March 1, 2013. The claim for arrears for the two years prior thereto is not granted due to the time delay.

LIFE INSURANCE PROTECTION

[60] Order #1 requires that Mr. Macey keep in place two life insurance policies, namely his employment group life policy and a term $200,000 State Farm life policy. He has failed to provide proof to Ms. Macey that she is the sole designated beneficiary under the former and is again ordered to do so by January 30, 2013, failing which he will be in contempt of court.

[61] The monthly cost of the latter policy has increased from $26 to some $90 per month. His disposable income permits this increase even with his lower income level. Mr. Macey can afford this increase in cost given the reduction of spousal support ordered. Both policies are to be maintained which respects the parties’ original agreement. Mr. Macey is required to provide Ms. Macey with annual proof from State Farm that this policy is in force, commencing February 1, 2013.

Costs

[62] The parties may within two weeks from this decision submit short written submissions as to costs.

Kane J.

Released: January 22, 2013