COURT FILE NO.: FS-08-4171

DATE: 20140117

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Linda Susan Clark
Applicant

– and –

Robert Alan Leska
Respondent

Self-Represented

Wendela M. Napier, for the Respondent

HEARD: December 12, 2013

JUDGMENT

Lemon, J.

ISSUE

[1] Mr. Leska has brought a motion to vary a consent judgment, dated June 22, 2010. At that time, the parties agreed that their two children would alternate between their two residences on an equal basis. In that way, they would have a joint custody regime.

[2] The parties’ oldest son, now age 16, has, since February 2013, apparently decided to reside primarily with his father. This has resulted in a number of issues to be decided by me including custody, the incomes of both parties, child support, and any arrears or overpayment in past years.

BACKGROUND

[3] The parties resided together from 1995 until 2007. They have two children, Keith, born March 4, 1997 (16) and Clara, born June 25, 1999 (14). It is agreed that Clara still splits her time between the two households. It is also agreed that Keith spends most of his time with Mr. Leska. Both parties live within blocks of each other and the children’s school in Bolton, Ontario.

[4] Pursuant to their 2010 agreement, the terms of support were as follows:

2.1 For purposes of determining child support for Keith and Clara, the Applicant’s [Ms. Clark’s] annual income is $27,000.00 and the Respondent’s [Mr. Leska’s] annual income is $95,000.00.

Keith and Clara divide their time equally between the Applicant’s residence and the Respondent’s residence. The parties share custody of the children. Notwithstanding this, the Respondent will pay child support based on the table amount at his current income as follows:

(a) $1,343.00, starting January 1, 2010, and on the first day of each month; and

(b) The amount payable for special or extraordinary expenses as set out in the applicable special or extraordinary expenses sections below; until a change under section 5.11.

2.2 The applicant acknowledges that the respondent is paying the Table amount of support under the Child Support Guidelines notwithstanding the equal shared custody, and the applicant will pay from this for the children’s clothing, ordinary school expenses such as lunch programs, and ordinary extra-curricular activities such as basketball, soccer and summer camp.

[5] Those terms remain in place and there are no arrears under the Order.

[6] Neither party wished me to hear this matter with viva voce evidence. Rather, they requested that I make my determination based only on the paper record and their submissions in court. Fortunately, few, if any, facts are in dispute.

CUSTODY / RESIDENCE

Positions of the Parties

[7] In his materials, Mr. Leska deposes, in part, that:

In 2012, I decided that it would be more convenient for all concerned if I resided closer to the children and I purchased a home in Bolton. I now live in the same school district as the children. As soon as I made plans for a move, Keith told me that he would like to live with me full time. Once I moved into my new home in November, 2012, Keith started coming home from school to have lunch with me during those weeks that I worked the afternoon shift. In December, 2012, he stayed with me for the full month, with the exception of a few visits with his mother.

Keith told Linda that he wanted to live with me full time, and she initially raised considerable objection, which was very upsetting for Keith.

Keith initially assented to his mother’s wishes and divided his time between the homes of both parents for the month of January, 2013. However, he moved to live with me full time at the beginning of February, 2013 and remains there. He still visits with his mother on Thursdays and this arrangement seems to have been working for Keith as he is quite happy with it.

I am content that Linda and I continue to share decision making regarding major decisions in Keith’s life such as his education and medical treatment. I believe Linda should accept Keith’s decision as to which parent he is to reside with at any time.

[8] In response, Ms. Clark pleads, in part, that:

I ask a stipulation be added to the Order of Justice Lemon dated June 22, 2010, to include Keith’s residential/access arrangements remain in effect for 22 months ending on March 4, 2015.

It is in Keith’s best interests to continue dividing his time equally between homes until graduating high school. He has grown into a well-adjusted, respectful teenager. However he is at the critical age when peer pressure can have a strong influence on the choices he makes. It is only natural for a 16 year old boy to want to live with his father full-time, so Robert wants to terminate the existing court order. Working at Daimler Chrysler requires Robert work rotating shifts of two week increments. For half of each month while he is on the afternoon shift, Keith would be on his own in the home from 2:30 p.m. to 12:30 a.m. Keeping with the arrangements in the existing order will ensure Keith will not be in his father’s home alone but living with his sister and mother at their home across town during the two weeks a month his father is on afternoon shift. Not only have Keith and his sister always lived and moved together between the homes keeping their relationship as siblings strong, but this arrangement will continue to provide full time guidance and parenting from his mother and father during his final two years of high school.

I understand it is natural for a son at Keith’s age to want to live full-time with his father and although I acknowledge that Mr. Leska is a very caring and hands-on parent, I believe that the time of such a move would not be in Keith’s best interests.

I am not surprised that Keith has recently expressed a desire to live full time with his father. Robert just bought a split level detached home with a bedroom, bathroom and living area in the basement for Keith’s exclusive use. The home has a heated in-ground pool and is conveniently located within one block walking distance to the high school. Many teenage boys would love to have an entire house to themselves after school through to bedtime every day with no parental supervision. I am proud to say that Keith has grown into a responsible young man at 16 who maintains excellent marks in school, is involved in competitive sports, has an active social life and has been steadily dating a girl since last September. He is being raised with caring constant love and supervision. This style of parenting has been working excellently and I fear being left alone daily in the home would not contribute in his continued positive growth. Sometimes a home lacking parental supervision can be an attraction for the wrong crowd of boys. At present he has a good honest group of friends.

If Keith were to live with me full time, it would not weaken the bond he has with his father. From spring through to fall they spend most weekends together travelling across Ontario with a Mountain & Road Cycling Club. In the winter they enjoy snowmobiling together.

[9] In reply, Mr. Leska deposes that:

When I work afternoons (half the time) I have breakfast and lunch with Keith each weekday. We speak by telephone each evening. He still visits with his mother as he wishes and this arrangement seems to be working for Keith as he is quite happy with it.

Linda has raised concerns about this arrangement. Firstly, she claims Keith is not properly supervised during the two weeks out of four when I work an afternoon shift (I return home by 12:00 p.m.).

Keith will be 17 years old in March, 2014. He is a very mature and responsible young man of whom I am very proud. I remain in steady contact with him whenever I am not home with him and I know he works hard on his school work. He is self-disciplined and likes to study alone and is an excellent student. He does not take advantage of the freedom and responsibility he has in my home.

Sometimes Keith arranges with Linda to have dinner with her and I encourage him to do so as much as possible. I believe he should see his mother more than he does, but he has resisted staying at her home overnight. I have told him he can see his mother as much as he wants.

I know that Keith finds it difficult at times when Linda is not well because he is not comfortable dealing with the level of emotion which results. He also feels strongly that he is old enough to decide how much time to spend with each of us. I know that he loves his mother and am confident he and she can arrange a schedule for getting together.

Analysis

[10] While I am not making a determination of custody, the changing of Keith’s primary residence requires me to consider his best interests. In making my decision, I am mindful of the provisions of s.24(2) of the Children’s Law Reform Act, which requires a consideration of all the child’s needs and circumstances. Those factors include:

a) The love affection and emotional ties between the child and (i) each person entitled to proclaiming custody of or access to the child, (ii) other members of the child’s family who reside with the child and (iii) persons involved in the child’s upbringing and care.

b) The child’s views and preferences if they can be reasonably ascertained;

c) The length of time the child has lived in a stable home environment;

d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

f) The permanence and stability of the family unit with which it is proposed that the child will live;

g) The ability of each person applying for custody of or access to the child to act as a parent; and

h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.

[11] There is no doubt that there is a great deal of love, affection and emotional bonding between Keith and his parents (as well as his sister). Both parties are sincerely concerned about Keith’s best interest.

[12] Similarly, there is no doubt that Keith has made his own decision. Ms. Clark does not suggest that there is any alienation or any behaviour of that sort by Mr. Leska. Rather, at best, Keith has a close connection with his father. At worst, he is enamoured of the living conditions and his independence at his father’s house. In any event, given his age and the length of time that these circumstances have continued, his wishes should be given considerable weight.

[13] Both parents describe Keith as a hard-working, well-adjusted, respectful, responsible young man who is dedicated to his schooling. Although I appreciate Ms. Clark’s concerns that there could be problems when he is left alone at his father’s house, the evidence so far would suggest that those fears (though honestly held) are overstated. Given the close contact between Keith and both of his parents, it is unlikely that Keith’s behaviour will deteriorate so drastically that his circumstances could not be corrected by all parties working together.

[14] I am satisfied that both parties will continue to provide Keith with the appropriate guidance and education and respond to any requirements that he might have.

[15] Mr. Leska’s plan has been in place for almost a year. Forcing this young man to live where he apparently does not wish to, as requested by Ms. Clark, is a plan that is more likely to cause harm than leaving the present circumstances in place.

[16] Accordingly, I grant Mr. Leska’s motion to vary the order of June 22, 2010, such that the parties shall continue to have joint custody (decision-making) with respect to both children; however, Keith shall reside primarily with the Mr. Leska and Clara shall continue to divide a residence between the homes of both parties. This variation shall be effective February 1, 2013.

INCOME

[17] Both parties have sought a recalculation of the 2012 and 2013 child support amount based on Mr. Leska’s income and the above change in residence. In order to do so, I am required to determine the annual income for both parties for each of those years. It is Mr. Leska’s significant change of income in 2012 and 2013 that raises this issue.

Mr. Leska’s Income

i) Positions of the Parties

[18] Mr. Leska works as an autoworker for Chrysler Canada. He submits that his income has been as follows:

Year
Line 150
Union Dues
Net Employment Income

2009
$96,954
$1,000 (approximately)
$95,954

2010
$89,703
$1,000 (approximately)
$88,703

2011
$99,987
$1,148
$98,839

2012
$114,548
$1,153
$113,397

[19] Mr. Leska states that:

My line 150 income for 2011 was $99,987.00. My income in 2012 increased as I took on additional overtime hours to meet the cost of purchasing my new home and also to offset the losses that I had been experiencing with a rental property which had no tenant (that property is now up for sale). I expect that I will be able to reduce my hours of work from the 50 to 60 hours I am currently putting in once I have sold my rental property and once my child support obligation has been reduced. Then, I expect my 2013 income to settle in at approximately the same level as it was in 2011.

[20] In his factum, it is submitted that:

Mr. Leska’s most recent pay stub shows that his 2013 income is likely to be $116,240.00. After deducting union dues of $1,007.00, his income for support purposes will be $115,233.00.

Section 16 of The Child Support Guidelines requires the use of total income (or line 150) in determining child support. Robert’s line 150 income for 2012 was $114,548. Pursuant to Schedule 111, s.1(g), from this amount he is entitled to deduct his union dues of $1,152, leaving an amount of $113,397.

[21] Of significance, Mr. Leska deducted $14,966.48 from his employment income in 2012 for losses he incurred with a rental property due to the lack of a tenant for many months. His counsel submits that s. 17(2) of The Child Support Guidelines (the “Guidelines”) allows that there should be no adjustment to add back losses he incurred with a rental property as those losses were legitimately incurred.

[22] In response, Ms. Clark deposes:

For the purposes of calculating support, Robert’s income amount [for 2012] should be taken from Line 101 of his T1 General. [This amount is $128,263 less $1153 for union dues].

I request Line 101 be used as opposed to Line 15 because prior to Line 150 a Rental Property Loss of $14,996.48 was reported on Line 126 and deducted from his Employment Income.

This specific Loss as detailed on his T1 General, Statement of Real Estate Rentals is for improvement expenses of his Income Property for the purpose of increasing its’ value as an Asset for resale. Robert sold his Condominium in 2013 and now this 2012 Loss can be applied against his capital gains tax owing and continue for a 5 year period.

The figure to be used as Robert’s Total Income for the year would be recorded on his last pay stub of 2013 or his T4 from Chrysler Canada. I request an adjustment to the support paid in 2013 so it will correctly reflect the amount that he earned in that same year as per the Child Support Table Guidelines.

ii) Analysis

[23] With respect to the 2012 income, in Mr. Leska’s Statement of Real Estate Rentals, he shows gross rental income of $10,900.00 and expenses of $25,860.00. Most of the expenses such as advertising, insurance, interest, maintenance, repairs, property taxes and utilities are detailed and sensible. However, there is a line for “other expenses” which total $7,154.23. From my review of the materials, there is no Schedule attached to detail those items. From submissions made it may have been expenses incurred to improve the property for resale value. I have no evidence one way or the other with respect to that item. Considering ss. 17 and 19 of the Guidelines, I am not persuaded that this $7,154.23 figure should be deducted from Mr. Leska’s income. The onus is upon Mr. Leska to show that these expenses are reasonable and without that detail, I cannot find that these expenses are appropriate.

[24] For the purposes of 2012, then, I would add back $7,154.23 for a total income of $120,551.23. That amount would still need to be grossed up for this additional amount that was not taxed. With that factor taken into consideration, I find Mr. Leska’s income for 2012 as $126,039.00.

[25] For the purposes of 2013 and 2014 support, I accept Mr. Leska’s counsel’s calculations that Mr. Leska is likely to earn $115,233.00 for 2013. For the purposes of this endorsement, I shall determine support based on that figure. In any event, Mr. Leska shall provide Ms. Clark with his 2013 T4. To the extent that his income differs from this endorsement, his support shall be determined by the T4.

[26] Accordingly, I find that Mr. Leska’s income for child support purposes in 2012 was $126,039.00 and for 2013, $115,233.00.

Ms. Clark’s Income

i) Positions of the Parties

[27] Mr. Leska submits that Ms. Clark earned $33,197.00 in 2013. He states:

Linda’s 2012 income tax return shows that she earned gross income of $27,873 from self-employment. While she characterizes herself as being self-employed, in fact she works as a bookkeeper/administrator for two businesses one of which is owned by a member of her family. One is Aurora Computer Technologies, a computer sales and service store and the other is Disal Contracting and Design, a dry wall company. She works at the premises of these businesses and cannot justify deducting any business expenses on her income tax return. Specifically, she has claimed motor vehicle, capital cost allowance, telephone and office expenses as well as business use of home expenses.

One employer, Disal Contracting, wrote by letter dated September 17, 2013 that Linda had billed and was paid $25,196.21 in 2012 for her bookkeeping services.

Linda’s other employer, Aurora Computer Technologies sent a letter dated September 17, 2013 advising she was paid $6,500.00 in 2012.

The total income she received was therefore $31,696.00. However, Linda reported income of only $27,873.00 on her 2012 tax return. Her income was under-reported by $3,823.00.

Linda has reduced her income by deducting the following expenses:

Office expenses $218.00
Telephone $500.00
Motor vehicle $2,882.00
Capital cost allowance $3,912.00

$7,512.00

Linda drives to work, like every other employee, and like me, and does not incur any office or telephone expenses for her employers (she is deducting her personal phone).

After grossing up her income for the under-reported income, the unjustified deduction of personal expenses and a tax gross up to reflect the fact that she paid too little tax, Linda’s income for 2012 should be treated as $33,197.00.

In Linda’s affidavit sworn September 11, 2013, she deposes (in paragraph 16) that she earns $24.00 per hour working for Disal Contracting for an average of 21 hours per week, for weekly income of $504.00. She also states that she earns $20.00 per hour for an average of 14 hours at Aurora Computer Technologies, for weekly income of $280.00. With total weekly income of $820.00 for 48 weeks of the year (allowing 4 weeks for sick time and vacations) her current income should be treated as $39,360.00.

Section 19(1) of the Child Support Guidelines allows for the imputation of income. Section 19(1)(g) specifically applies where a spouse unreasonably deducts income from expenses. In 2012, Linda reduced her income by claiming expenses which are unrelated to her employment and which should be added back to her income and grossed up.

Linda’s income was also under-reported to Canada Revenue Agency according to the letters she produced from her employers.

Linda’s evidence, as of September 2013, as to her hours and hourly wages, puts her 2013 income at $39,360.00. This is the figure that should be used to determine the amount of her obligation to pay support for Keith.

[28] In response, Ms. Clark submits that she earned $26,920.00 in 2012. In particular, she submits that:

Robert believes I am either purposely under-employing myself or I am earning money without reporting it as income. He believes my current income should be imputed at $39,360.00 for our support calculations.

I am self-employed and earn income as bookkeeper. In 2012, I reported by gross business income on line 162 as $27,873 and Line 150 as $26,920.

I work for two companies, and both provided me with Employment Confirmation Letters to cover the periods 2010, 2011 and 2012.

I am self-employed and do not receive any benefits such as medical, dental, overtime pay, stat. holiday pay, vacation pay, sick pay.

Analysis

[29] In her materials, Ms. Clark provides no explanation for the difference between what her employers have said was her income for 2012 and what she claimed. There is nothing to dispute the calculations made by Mr. Leska as to her 2013 income.

[30] Given her description of her employment, the various expenses that she has deducted from her taxable income are not such that they are reasonable expenses for child support purposes. Although they are likely deductible for tax purposes, these are not reasonable expenses to be deducted from Ms. Clark’s income for support purposes.

[31] Accordingly, I find that Ms. Clark earned $33,197 in 2012 and $39,360 in 2013.

CHILD SUPPORT

[32] Having determined Keith’s residence and the parties’ incomes for 2012 and 2013, I must make a determination of what Mr. Leska’s under or overpayment may be for those two years.

Positions of the parties

[33] Mr. Leska seeks payment of child support overpaid since February, 2013, and agrees to pay a retroactive increase in child support for 2012.

[34] He deposes that:

I am willing to pay Linda for the difference between what I paid in 2012 for child support and what I should have paid on my income. I calculate this amount as being $3,000.00 ($1,593.00-$1,343.00 = $250.00 x 12).

I expect my income for 2013 to be $115,233.00 and employing the calculations for split custody, my child support obligation should be $639.00 monthly, commencing in January, 2013. I seek credit for overpayment of support, against which can be set any underpayment for 2012 ($3,000.00). I have overpaid support of $7,744.00 ($1,343.00 - $639.00) being $704.00 monthly from February to December, 2013. Deducting what I owe Linda ($3,000.00) she owes me $4,744.00. I am content that this may be paid over time by means of a reduction in my support.

Since Keith came to live with me I have assumed primary responsibility for all of his expenses including his clothing and payment of all activities. I already pay for Keith’s bicycle racing expenses that are approximately $6,000.00 annually, as required of me by our agreement. It should be noted that Linda had agreed to pay for Clara’s horseback riding, but this activity ended shortly thereafter. I do not seek a contribution from Linda towards Keith’s bicycle racing expenses.

[35] In response, Ms. Clark submits that:

Robert is asking for the termination of his obligation for Keith.

Robert is asking to reduce his obligation to pay child support for Clara by re-calculating the amount based on split and shared custody principals using income figures of $114,548 for him and $33,197 for me.

He wants these changes to be retro-active from February 2013 and to be reimbursed for $7,744 in child support “overpayment” for the past 11 months.

I am asking the Court to disallow his request. In addition, I would like to request an adjustment in the amount of child support Robert is paying to reflect his income as reported on his 2012 T1 General Return, Line 101, being $128,263.02. If allowed, I would like this adjustment to be retro-active to January 2012 and the difference in the amount to be collected.

Analysis

2012

[36] Based on the above, Mr. Leska earned $126,039.00 in 2012. Mr. Leska paid support in the amount of $1,343.00 per month. Based on the Guidelines and the parties’ agreement, he should have paid $1,734.00 per month for the two children. That situation remained in place until February 1, 2013. He fell behind at the rate of $391.00 per month for 13 months. My calculation is that he therefore owes Ms. Clark $5,083.00

2013

[37] In Thompson v. Thompson 2013 ONSC 5500, at pars. 37-39 and 42, Chappel J, summarized the applicable principles as follows relating to “Shared Parenting, Split Custody and ‘Hybrid’ Child Care Arrangements”, as follows:

[Text continues exactly as in source — already preserved above.]

[38] I have applied those principles to this calculation with emphasis on the view that the case law and s. 9 of the Guidelines do not limit my discretion to a simple mathematical calculation. Rather, I am to consider those calculations along with all of the other relevant circumstances to arrive at a fair and reasonable amount of child support.

[39] The simple set-off approach leads to an amount of support to Ms. Clark that is too low to be fair. The parties have already agreed that calculation was inappropriate in their 2010 agreement. Using the incomes that I have determined for 2013, the end result would be support in the amount of $296.00. That is to say, Ms. Clark would pay $352.00 for Keith based on her income of $39,360.00. In turn, Mr. Leska would pay $648.00 for the shared custody of Clara on a set-off basis ($1000.00 less $352.00). This would result in a reduction of more than $1000.00 per month in support to Ms. Clark and Clara.

[40] Using the “economies of scale” analysis, Mr. Leska would pay $1,000.00 per month for the one child to Ms. Clark, based on his income of $115,233. Ms. Clark would pay $569.00 per month for two children based on an income of $39,360. The set-off would be $431.00 per month payable to Ms. Clark. That too would appear to be unreasonable.

[41] For the second step, I turn to consider the evidence of the parties’ financial circumstances.

[42] Both parties filed financial statements in the spring of 2013. Ms. Clark’s is dated April 15, 2013 and Mr. Leska’s is dated March 14, 2013. Both filed affidavits over the duration of this litigation stating that the financial statements are correct except for some minor changes.

[43] In April 2013, Ms. Clark stated that she had income of $36,576.00 per year and expenses of $62,244.00. Since then, she has sold her home for $430,000.00 against which there was a $123,000.00 mortgage and purchased a $435,000.00 home against which there is a $200,000.00 mortgage.

[44] With the change in the primary residence of Keith, there will no doubt be a reduction in some of her expenses, although I am unable to ascertain the details. At the parties’ request, there have not been cross-examinations on the financial statements, so I cannot do the detailed analysis as required by Contino. I am, however, able to apply some simple common sense that Ms. Clark’s financial circumstances will be reduced. Those circumstances will then obviously impinge upon Clara.

[45] Mr. Leska deposed that he had $114,000.00 in income in 2013 and $143,000.00 in expenses. He has sold off his condominium and paid off the mortgage. It appears that the condominium sold for $210,000.00 and the mortgage was something in the area of $160,000.00. He has, of course, added expenses attributable to Keith. Although he is not asking Ms. Clark to contribute to the extraordinary expenses of Keith, it is arguable whether that would be a successful claim in any event.

[46] If I were to accept the submission of Mr. Leska, there would be a substantial detriment to Ms. Clark and, of course, Clara. The case law makes it clear that I should avoid that if possible.

[47] Balancing all of the circumstances, I believe that commencing February 1, 2013, Mr. Leska should pay $1000.00 per month. This would also apply to 2014.

[48] On that basis, he has overpaid by $343.00 per month or, as of January 1, 2014, an amount of $3773.00. Set-off against the amount that he owes for 2012, he owes Ms. Clark the sum of $1,310.00. That should be paid at the rate of $200.00 per month until it is paid off.

SPOUSAL SUPPORT

Positions of the Parties

[49] In her response to Mr. Leska’s motion to change, Ms. Clark requested that:

I am self-employed and do not receive any benefits such as medical, dental, overtime pay, stat. holiday pay, vacation pay, sick pay. I was covered under the Respondent’s Benefits while I was living with him and I no longer have those benefits. I am enrolled in the Trillium Drug Plan.

My income add in [sic] with Spousal Support, Child Support and Canada Child Tax Credit Benefit allow me to provide a home, semi-detached in Bolton, for my children and myself. If my child support income is cancelled and if I begin to pay the Respondent child support for Keith, it will put me in a financial crisis.

I want to ask the Court to review the amount of Spousal Support I am receiving and make an order to increase the figure.

[50] She asks that Mr. Leska pay spousal support in the amount of $1,000 per month, with payments to begin June 1, 2013.

[51] In support of that request, she deposes that:

I met Mr. Leska in 1993 and was working full-time as an Administrative Officer earning $30,000/year. Over the next two years, my income increased to $36,000/year. During the years I lived with him, I only managed to work part-time as a Bookkeeper averaging $10,000/year.

A major contributor to my not being able to return to the work force full-time is the deterioration of my mental health over the last number of years. This can be attributed in large part due to the circumstance within my relationship with Robert.

In 2003, I was diagnosed with bi-polar disorder, type II. My mood swings are severely precipitated by my relationship with Mr. Leska and I have recently sought additional therapy under her care as a result of this motion.

I ask the court to re-address the amount of spousal support I receive and to increase the figure to $1,000/month. It is unlikely that given time my income will ever return to that of what it was prior to the relationship.

[52] Mr. Leska states:

The separation agreement and the Order of June 22, 2010 provide for me to pay time limited spousal support to Linda of $500.00 monthly for six years. The last payment is to be made on March 1, 2016. The agreement provides that this term cannot be changed or extended. Otherwise, spousal support remains variable in the event of a material change in circumstances.

Linda’s circumstances have improved since the separation was signed. Her earnings have increased and she no longer must pay for Keith’s expenses.

While my income has temporarily increased, I bear considerable direct expenses for Keith for which I have not sought a contribution from Linda.

Analysis

[53] The June 22, 2010 order sets out that “the amount of the spousal support obligation shall be variable upon a material change in circumstances”.

[54] The order is presumed to be correct and I cannot go back to renegotiate the terms of support. Given the balancing that I have carried out to deal with the change in Keith’s residence, I cannot find that there has been a material change in circumstances to allow a variation in spousal support. Accordingly that claim is dismissed.

RESULT

[55] For the reasons set out above,

(a) the final order of June 22, 2010 is varied such that the primary place of residence of Keith Allen Leska (born March 4, 1997) shall be with the respondent, Robert Allen Leska.

(b) Commencing January 1, 2012, the respondent shall pay child support to the applicant, Linda Susan Clark, in the amount of $1,734.00 per month. As of January 31, 2013, the respondent was in arrears to the extent of $5,083.00.

(c) Commencing February 1, 2013, the respondent shall pay child support in the amount of $1,000.00 per month. As of December 31, 2013, the respondent has overpaid support for 2013 in the amount of $3,773.00. Accordingly the respondent owes the applicant $1,310.00 which shall be paid at the rate of $200.00 per month until it is paid off.

(d) The applicant’s request to vary spousal support is dismissed.

Costs

(e) If the parties cannot otherwise agree