ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-1171/07
DATE: 2014-01-22
BETWEEN:
Mira Joan Soutar
Applicant
– and –
Ian Duncan Soutar
Respondent
Joel B. Kerr, Counsel for the Applicant
Appearing in Person
HEARD: January 9 and 10, 2014
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] Although the parties entered into final minutes of settlement in November 2009, the issue of spousal support was not resolved.
Background
[2] The parties met in 1984 and commenced cohabitation in 1985 after the birth of their first child. They married on August 2, 1987. Separation occurred on October 24, 2005. Mira Soutar is 53 years of age. Ian Soutar is 58.
[3] Three children were born to the relationship: Olin Soutar on May 26, 1985; Warren Soutar on September 28, 1986; and Preston Soutar on April 16, 1988. The children are all adults and living independently.
[4] Ms. Soutar commenced this proceeding by application issued on June 29, 2007, seeking a divorce, child and spousal support, equalization of net family properties and related relief. Mr. Soutar delivered an answer dated August 10, 2007. He opposed the claims of Ms. Soutar and requested a divorce, spousal support and equalization of net family properties.
[5] A case conference was held on November 21, 2007. A settlement conference was scheduled for January 28, 2008 but adjourned on several occasions. On May 16, 2008 an order was granted severing the divorce. A divorce was granted on that date.
[6] As hereafter discussed, the parties entered into temporary minutes of settlement in March 2008 and final minutes of settlement in November 2009. Property issues were resolved. Spousal support was addressed but it was never finalized.
[7] The spousal support claim of Ms. Soutar presented at trial was for two time periods:
(a) from November 2009 to August 2012 in accordance with the final minutes of settlement; and
(b) from the date of separation (October 2005) to March 2008 when the temporary minutes of settlement were signed, despite the release contained in the final minutes of settlement, having regard to the principles established in Miglin v. Miglin, 2003 SCC 24.
[8] A claim for ongoing or future spousal support and to set aside the final minutes of settlement were abandoned at the commencement of the trial.
[9] The property issues were resolved. Pursuant to the temporary minutes of settlement, the net sale proceeds from the matrimonial home were divided equally between the parties. The anticipated sale of the cottage did not occur and, in February 2010, Mr. Soutar paid $41,250 to Ms. Soutar and assumed liability for the related debt to resolve that item. No mention was made as to other property claims or resolution.
Children
[10] Reference is made to the children, now adults, as Mr. Soutar seeks an offsetting award for child support. The evidence was incomplete.
[11] Following separation, the children would reside with one or the other of the parties, although Olin and Warren initially remained with their mother for several years. Olin commenced a college program in North Bay in September 2005 but dropped out in December 2006. Warren started at MacMaster University, also in September 2005, quitting three months later, and then attending Mohawk College for several months.
[12] Olin returned to college briefly in the Fall of 2009. Warren was at college from September 2011 to January 2012. During these time periods, the boys resided with their father.
[13] Ms. Soutar said she did not receive child support from Mr. Soutar in the initial time period. No evidence was presented as to the financial circumstances of the children or how the post-secondary education expenses were paid. The children also pursued employment in the relevant time periods.
[14] None of the children are dependants at this time.
Employment History
[15] At the start of the relationship, Ms. Soutar was working in her parents’ restaurant. She would continue to assist her parents for a number of years, on an irregular basis, but not earning a wage. Rather, the benefit received was some cash, food and, from time to time, rent free accommodation for her and the family.
[16] Ms. Soutar was employed by Toyota in Cambridge from 1988 to 1991. She would then devote her time to raising their children and working in her parents’ restaurant.
[17] In 2005, Ms. Soutar enrolled in a course to become qualified as an instrument sterilization technician. Coincidentally, the marriage was in decline, separation occurring prior to her graduation. On May 1, 2006 she obtained a position in her field at Joseph Brant Hospital. This employed has continued to the present time.
[18] Mr. Soutar has had a number of employment positions over the years. At the start of the relationship, he was employed in the insurance industry. He returned to school in 1987. In 1991, Mr. Soutar was working for Quaker Oats in Peterborough, returning home on weekends. A year later, he was working in Toronto.
[19] At the time of separation, Mr. Soutar was employed by a company working on health records for the Ministry of Health. In September 2008, several months after the temporary minutes of settlement were signed, Mr. Soutar lost his job. In March 2009, he commenced employment with the Ontario Public Service. He continues to be so employed at the present.
[20] Mr. Kerr prepared a most helpful chart showing the employment incomes of the parties during the relevant time period, the accuracy of which I have verified from the documents filed, as follows:
Year Ms. Soutar Mr. Soutar
2006 $28,347 $100,000
2007 $37,200 $108,528
2008 $45,641 $108,171
2009 $42,478 $ 64,229
2010 $42,933 $ 76,868
2011 $46,341 $ 93,356
2012 $48,369 $ 99,752
2013 $45,642 $ 98,448
Temporary Minutes of Settlement
[21] After several court appearances, the parties, and their then respective counsel, were engaged in resolution negotiations. On March 28, 2008, temporary minutes of settlement were signed, providing, in summary form, as follows:
(a) the net sale proceeds from the matrimonial home, after payment of the balance owing on Mr. Soutar’s vehicle, were divided equally (each party would have received approximately $6,475);
(b) the division of the net sale proceeds was without prejudice to the determination of the equalization of net family properties;
(c) Mr. Soutar to pay temporary spousal support to Ms. Soutar in the monthly amount of $1,000, commencing March 1, 2008;
(d) the spousal support provision was without prejudice to Ms. Soutar’s claim for retroactive support; and
(e) the parties to co-operate regarding the sale of the cottage property.
Support Paid
[22] Prior to March 2008, Ms. Soutar indicated that sporadic payments were received from Mr. Soutar, usually in the amount of $500. She also said child support was never received nor paid by her.
[23] Pursuant to the temporary minutes of settlement, Mr. Soutar commenced payment of the monthly spousal support of $1,000. He discontinued the payments following the loss of his job in September 2008. A total of $7,000 was paid in this time period.
[24] Despite obtaining employment thereafter, Mr. Soutar did not reinstate spousal support payments.
Final Minutes of Settlement
[25] Further negotiations resulted in minutes of settlement being signed by the parties in November 2009. This document was prepared after a four way meeting. Ms. Soutar reported being unhappy with the proposed minutes yet, after having an opportunity to review the document, she signed it in the presence of her then counsel.
[26] The preamble to the minutes indicates “the parties agree to settlement of all outstanding issues between them including their respective claims in this proceeding …”.
[27] In summary form, the parties’ agreement on settlement was as follows:
(a) they would continue to cooperate in the sale of the cottage, dividing the net sale proceeds as follows:
(i) one-half plus $6,500 to Mr. Soutar; and
(ii) one-half less $6,500 to Ms. Soutar; and
(b) a spousal support waiver on specific terms.
[28] As the support waiver is a significant issue in this case, paragraphs 3, 4, 5 and 6 are reproduced as follows:
The parties acknowledge that they have equalized their respective net family property and all the other financial entitlements and obligations (including but not limited to retroactive spousal and child support claims) by both the terms of these Minutes of Settlement and terms of previous settlements including the distribution of the net proceeds from the sale of the matrimonial home.
Any potential entitlement by the Applicant to spousal support from the Respondent and potential obligation of the Respondent for payment of spousal support to the Applicant shall be restricted and limited to the following after which the Applicant shall not be entitled to any spousal support from the Respondent or to make any claim for same regardless of any anticipated or unanticipated change in financial and/or other circumstances of either party. In the event the Respondent obtains employment with an income not less than $60,000.00, the Applicant shall be at liberty to request spousal support from the Respondent payable for a period of time up to but no later than August 31, 2012, after which the Applicant shall be disentitled to requesting and/or receiving any spousal support from the Respondent. In the event that the Applicant’s request for such spousal support is successful, the Respondent’s obligation to pay spousal support to the Applicant, and the Applicant’s entitlement to receive spousal support from the Respondent, as determined and/or settled shall be for a period of time up to but not exceeding August 31, 2012. Neither party shall be at liberty to request and/or receive any extension or decrease in the respective periods of time identified herein.
The Respondent shall inform the Applicant upon obtaining employment with an annual income of not less than $60,000.00.
In the event the Respondent is not required to pay any spousal support to the Applicant, the Respondent releases the Applicant from any past, present or future obligations to contribute to the financial support of any child of the marriage who is primarily resident with the Respondent who is a full-time student, including the child Olin Soutar who at present is a full-time student at Mohawk College. In the event the Applicant is successful in her request for spousal support, the Respondent shall be at liberty to advance a claim for child support with respect to any “child of the marriage” who is residing with the Respondent.
[29] Ms. Soutar’s counsel prepared a draft final order following the signing of the minutes of settlement. It was presented to the court, following approval from Mr. Soutar’s counsel, on an ex parte basis. Pazaratz J. dealt with the matter, in chambers. He rejected the draft order.
[30] In his endorsement, dated November 30, 2009, Pazaratz J. wrote, in part:
I have no difficulty with the terms the parties have agreed to, but some of the language related to releases and disentitling people from returning to court are contractual and cannot be included in the order.
More specifically …
An order can include a time limit re spousal, but cannot rule out “unanticipated changes” and the court cannot “disentitle” parties from making requests (even if those requests are not successful) …
- It may be more appropriate to incorporate the problematic wording in a domestic contract. However, if they wish, counsel may submit a revised draft order.
[31] For some unexplained reason, counsel did not deliver a revised draft order for consideration. Nor was a domestic contract prepared. The file, essentially, remained in abeyance until January 2013.
Subsequent Events
[32] As indicated in the prior income chart, Mr. Soutar’s employment income was never less than the threshold amount of $60,000. Yet spousal support was not fully addressed after signing the minutes of settlement.
[33] Between July and November in 2010, Mr. Soutar’s counsel and Mr. Soutar would exchange e-mails. Counsel proposed monthly spousal support of $600. Mr. Soutar would not commit to payment. No agreement was reached.
[34] Ms. Soutar reported being unaware of this communication at the time. By November 2010 she became discouraged with the unresolved issue and terminated her counsel’s retainer.
[35] Ms. Soutar consulted Mr. Kerr in January 2011. He initially wrote to Mr. Soutar’s counsel on January 28, 2011, as a notice of change had not been served or filed. Mr. Kerr requested financial disclosure and ongoing spousal support. Failing a response, Mr. Kerr delivered a similar letter to Mr. Soutar on April 11, 2011. Mr. Soutar ignored the correspondence.
[36] In January 2013, Mr. Kerr prepared and served a notice of motion on behalf of Ms. Soutar. The request was for payment of spousal support, financial disclosure and to set aside the minutes of settlement. Mr. Soutar would respond to the motion.
[37] Ms. Soutar explained the two year delay as being financial. The matrimonial home sale proceeds had been used to pay part of prior legal fees and she was not receiving spousal support.
[38] The motion was adjourned on several occasions. On March 22, 2013, the presiding judge directed a settlement conference. At the conference, on May 7, 2013, a trial was directed with provisions regarding scheduling and other events.
[39] The case ultimately came before me for trial on January 9 and 10, 2014.
Cottage
[40] The cottage did not sell as anticipated. In February 2010, Mr. Soutar paid $41,250 to Ms. Soutar for her interest in the property. He also assumed liability for the related line of credit and property taxes, both then in arrears.
[41] Ms. Soutar suggested the resolution of this property issue was less than fair. She indicated the property had been appraised at $321,000 and the outstanding debt was $60,000. Mr. Soutar reported the cottage value in his financial statement at $140,000.
[42] The parties were still represented by counsel when the cottage issue was resolved. As to why she agreed to an unfair result, Ms. Soutar said she gave up fighting.
Discussion and Analysis
[43] As previously stated, Ms. Soutar’s spousal support claim is limited to two time periods, namely:
(i) October 2005 to March 2008; and
(ii) November 2009 to August 2012.
[44] The support obligation is thus time limited and terminated in August 2012, as previously agreed to by the parties.
[45] In addressing these claims, the temporary minutes of settlement and the final minutes of settlement must be considered.
[46] Regardless, there can be no dispute, Ms. Soutar’s entitlement is based on both compensatory and non-compensatory principles. This was a long term marriage. Child care obligations delayed Ms. Soutar’s employment endeavours.
[47] The practical difficulty in the analysis is the incomplete evidentiary record, particularly when applying the Miglin test. Mr. Soutar chose not to testify. His financial circumstances, other than as reported in his financial statement, are less than clear.
(i) 2005 to 2008: The Retroactive Claim
[48] The final minutes of settlement contain a waiver regarding retroactive spousal support.
[49] The court may override an agreement regarding spousal support in limited circumstances. Miglin provides for a two stage process:
(a) consideration of the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it and whether it is in substantial compliance with the objectives of the Divorce Act; and
(b) inquiry as to whether enforcement of the agreement still reflects the original intention of the parties and the extent to which it is in substantial compliance with the objectives in the Divorce Act.
[50] Ms. Soutar does not seek to have the minutes of settlement set aside. Had this occurred, spousal support could be determined in the first instance and based solely on the stated objectives that apply. Miglin does not require the agreement be set aside; however, the analysis engages a detailed review of a number of factors. Simply put, spousal support cannot be determined in isolation.
[51] As I understood Ms. Soutar in her testimony regarding the settlement, she was not satisfied with the representation by her former counsel. The inference is, perhaps, solicitor’s negligence or, at least, that the representation is to be considered in light of the Miglin test. The former is not an issue before me. The latter relies on an incomplete evidentiary record.
[52] Minutes of settlement, as with most agreements in a litigation process, are presumptively valid. The onus is on the party advancing the support claim to tender evidence as to why the minutes ought be discounted.
[53] The minutes of settlement were negotiated and signed following a lengthy litigation process. Both parties were represented by counsel. There is no suggestion of undue influence or lack of financial disclosure. Indeed, the issues pertaining to the dispute between the parties were straightforward. Resolution would have been expected.
[54] The position advanced on behalf of Ms. Soutar is that the minutes of settlement are inherently unfair in regards to the waiver of retroactive spousal support. Mr. Kerr argues unconscionability and unfairness, within the Miglin context.
[55] On its face, the minutes of settlement appear unfair. There was a clear and obvious spousal support entitlement, particularly on a compensatory basis, and the income difference was substantial. A contextual approach, however, requires consideration of all financial matters. The property resolution may, for example, take into account a support entitlement.
[56] The objectives set out in section 15.2, Divorce Act, are of obvious importance. Substantial compliance is required. Miglin directs consideration of all factors, not just the objectives in isolation.
[57] There was no evidence to support a finding as to a fundamental flaw in the negotiation process. There is no suggestion of an imbalance in power or that Mr. Soutar took advantage of the vulnerability of Ms. Soutar. The involvement of counsel, despite Ms. Soutar’s complaint, is an important consideration. As well, Ms. Soutar had time to review the minutes of settlement, returning later to her counsel’s office to sign.
[58] On this evidentiary record, there is a compelling argument to suggest the minutes of settlement did reflect a mutual desire to attain a comprehensive resolution of all financial matters.
[59] Having regard to the totality of the minutes of settlement, I am unable to find there was a flaw in the process or that the terms are not in substantial compliance with the support objectives. The appearance of unfairness or non-compliance are not sufficient.
[60] Accordingly, I decline to override the minutes of settlement. The claim for retroactive spousal support from 2005 to 2008 is denied.
(ii) 2009 to 2012: Minutes of Settlement
[61] The minutes of settlement preserved a spousal support claim, essentially time limited to August 31, 2012. Mr. Soutar acknowledges the entitlement of his former spouse. The dispute is with quantum and whether there is an offsetting child support award.
[62] While a child support entitlement was protected in paragraph 6 of the minutes of settlement, no evidence was tendered to establish the claim. The onus was on Mr. Soutar. He chose not to testify.
[63] Ms. Soutar acknowledged that two of the children returned briefly to college while residing with Mr. Soutar. But the boys were then twenty-five and had been previously working. The children’s financial circumstances, such as income, savings or college expenses, were not addressed in evidence.
[64] Child support is the right of the child. When dealing with adult children, it is not a presumptive right. The evidence does not establish a child support entitlement.
[65] In result, the determination of quantum of spousal support does not include an offset for child support.
[66] Both parties say quantum should be determined within the framework of the spousal support advisory guidelines (“SSAG”). I agree.
[67] Mr. Soutar submits his support obligation is $27,959 and is prepared to pay same as a lump sum. He calculated spousal support, he says, between the midpoint and high end of the SSAG but deducted child support. He restricted the time period to April 2010 and August 2012. Mr. Soutar did not present DIVORCEmate printouts to demonstrate the calculations.
[68] Mr. Kerr provided DIVORCEmate printouts from 2006 to 2012 using the incomes of the parties as set out in the chart previously provided herein. I am satisfied these printouts provide the range of spousal support to be considered. Mr. Kerr requests support at the high end of the SSAGs.
[69] As the minutes of settlement were signed in November 2009, I conclude spousal support ought to have commenced on December 1, 2009. The threshold income was stated to be $60,000. Mr. Soutar’s employment income was never below this amount. Indeed, in 2008, when he discontinued paying spousal support, Mr. Soutar’s income was $108,171. It was $64,229 in 2009.
[70] In my view, spousal support should be awarded at the high end of the SSAGs. It ought be paid as a lump sum. I adopt the comments of J. MacKinnon J. in Cuffe v. Desjardins, 2013 ONSC 4044, at paragraphs 64-70 on these two points.
[71] Of particular importance is that Mr. Soutar knew he had a spousal support obligation. Ms. Soutar approached him in March 2010 requesting payment when she discovered he was working. There were communications between Mr. Soutar and counsel for Ms. Soutar that followed. Mr. Soutar could have delivered voluntary support payments. He chose to wait until trial.
[72] Ms. Soutar has been delayed in receiving support. This resulted in financial difficulty. In 2011, for example, she had to cash in part of her registered retirement savings plan to meet expenses.
[73] Lastly, this is a past support obligation terminating in August 2012.
[74] I calculate spousal support as follows:
Year Monthly Number Yearly
Amount of Months Total
2009 $ 725 1 $ 725
2010 $1,131 12 $13,572
2011 $1,567 12 $18,804
2012 $1,713 8 $13,704
[75] Accordingly, I direct Mr. Soutar to pay a lump sum for spousal support to Ms. Soutar in the amount of $46,805, said payment to be delivered to her, or as she directs in writing, within 60 days of the release of this decision.
Summary
[76] A final order is granted on the terms herein. As well, a support deduction order shall issue.
[77] If necessary, leave is granted to seek a charging order in the event of non-payment of the lump sum.
[78] If the parties are unable to agree on the issue of costs, brief written submissions are to be exchanged within 30 days. I am satisfied Mr. Soutar is able to deal with the issue in this manner, having regard to the documentation he previously presented and as he acknowledged consulting counsel from time to time for advice. Mr. Kerr is directed to deliver all written submissions to my chambers in Cayuga immediately after the 30 day time period.
D.J. Gordon J.
Released: January 22, 2014
COURT FILE NO.: D-1171/07
DATE: 2014-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
Mira Joan Soutar
Applicant
– and –
Ian Duncan Soutar
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: January 22, 2014
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