Griff v. Brown

CITATION: 2014 ONSC 1513

COURT FILE NO.: 525/01

DATE: 2014-03-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shoreen Griff, Applicant

AND: Cahl Brown, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Mr D. Toppari for the Applicant

The Respondent in person

HEARD: 2014-03-07 at St Catharines

ENDORSEMENT

[1] The parties divorced in 2001. One child of the marriage remained. Pursuant to minutes of settlement Scott J. ordered the Respondent husband to pay child support at a rate of $572 a month based on an “expected” income of $70,000, and spousal support at a rate of $1628 a month for six years, provided that if child support terminated within that time, spousal support would be increased to $2,200 a month. Both orders commenced on March 1, 2002.

[2] The Respondent husband is moving to vary the order. The motion to vary was brought in September 2012. The parties declined to call viva voce evidence. The motion proceeded on the continuing record. The parties agree that the daughter finished high school in June 2007 and did not start university until September 2010. She is expected to complete her first degree next month. She has immediate plans to enter graduate studies. There is mention of some college courses between June 2007 and September 2010, but I was given no firm dates and there is no admission or evidence on the record on this subject.

[3] The husband’s motion is based on the evidence that while he made more than $70,000 in 2003 and 2004, ever since he has made much less. He is willing to pay an increased amount of support for 2003 and 2004 but submits that his obligation should be decreased for the other years. He does not make an issue of the daughter’s year or so off before entering university.

[4] As far as spousal support is concerned, I conclude from the wording of the order in the context of the case that the parties intended a firm amount of spousal support to be paid for a fixed period, whatever income the husband actually earned, and that the order be varied only in the specified circumstance of termination of child support. After a 20-year marriage, the wife might well have argued for indefinite spousal support. Both parties knew that the husband’s income was uneven year to year and that in any given year it was not a straightforward calculation. I conclude that they compromised by agreeing on a set amount for a fixed period. The order itself says that it is based on “expected” income. I think that the husband agreed to take on the risk that his income might decrease, while the wife took on the risk that it might increase.

[5] As far as child support is concerned, different considerations apply.

[6] First, the husband asks for retroactive review of the entire 10 years between the order and the motion to vary. He deposes that he became depressed after the divorce and for that reason he did not ask sooner for a variation. I do not accept his explanation because his depression did not stop him from earning $128,000 in 2004 and $76,824 in 2005. I do not find any justification to go back more than three years. I start, then, at September 2009.

[7] That decision is subject to one exception. There can be no justification for continuing child support when the child is not a child of the marriage within the meaning of the Divorce Act. Notwithstanding the husband’s position, I am obliged to terminate child support as of the month of the child’s 18th birthday, June 2007, which is also the month when her secondary education ended.

[8] It is then a question of what child support should be paid during the child’s post-secondary education from September 2010. The wife says that it should be based on the husband’s income and the child support guidelines. The husband agrees.

[9] The evidence shows that the husband’s income was $9,351 in 2010 and $11,101 in 2011. The husband admits that he earned about $42,500 in 2012 and $24,400 in 2013. The matter is complicated by the fact that these are the net amounts claimed on line 150. The gross amounts are greater and the deductions claimed for earning the money are not necessarily correct. I accept them as within a reasonable range, but the best I can do is impute a fair income for purposes of child support.

[10] I do not think that I should order the parents to contribute to the child’s advanced degrees. I have no evidence that she will have any need for such support. She may well have funding for graduate school. The matter can be decided in further proceedings on proper evidence if necessary.

[11] For these reasons I order as follows:

a. Child support ordered by Scott J. is terminated as of June 30, 2007.

b. Spousal support ordered by Scott J. is increased to $2,200 a month commencing July 1, 2007; this spousal support terminates on February 29, 2008 in the terms of Scott J.’s order;

c. The Respondent is ordered to pay child support to the Applicant at a rate of $303 a month based on an imputed income of $35,000 a year, commencing September 1, 2010 and ending April 20, 2014.

d. A support deduction order will issue.

[12] There will be no order as to costs.

J.A. Ramsay J.

Date: 2014-03-07