ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-13354
DATE: 2014Nov24
BETWEEN:
VAUGHAN ERNEST HOGAN
Lisa DeLong, for the Applicant
Applicant
- and -
CHRISTINE JULIA RAYMER
Birkin J. Culp, for the Respondent
Respondent
HEARD: June 16, 17, 2014
The Hon. Mr. Justice R. J. Harper
Issues
[1] There are multiple motions brought by the Applicant father (Vaughan), and the Respondent mother, (Christine). The issues are as follows:
a) The quantum of child support that Vaughan should pay for the two children, namely, Michael James Hogan, born June 12, 1993 (presently 21 years of age) and Tyler Graham Hogan, born May 5, 1995, (presently 19 years of age).
i. Vaughan claims that he should only pay for the two children until April 30, 2013; and for one child until April 30, 2014;
b) The quantum of payment that Vaughan should contribute for post-secondary expenses of the children;
c) What, if any, are the retroactive payments owing for child support given Vaughan’s increase in income and the children’s section 7 expenses.
d) Whether Vaughn is required to continue to name Christine as the beneficiary of his life insurance policy;
e) Whether Christine can reinstate spousal support to be paid by Vaughan;
Background
[2] Vaughan and Christine started to cohabit on September 15, 1992. They married on June 4, 1994 and they separated on October 15, 2000. This amounts to a period of 8 years of combined cohabitation and marriage. They had two children from their marriage, as set out above.
Separation Agreement
[3] Vaughan and Christine entered into a separation agreement on April 24, 2001.
Custody
[4] Christine was given custody of the two children and Vaughan had specific access terms that included alternating weekends, some access time during the week and a specific schedule of holiday access.
Child Support
[5] Vaughan was to pay child support in the amount of $800 per month subject to consumer price index adjustment. Certain extra-curricular activities of the children were to be paid by Vaughan. If and when the children incurred other special expenses, Vaughan was to pay 75% of such expenses.
Spousal Support
[6] Vaughan was to pay Christine two types of support as set out in the agreement.
[7] “Type A” support in the amount of $800 per month subject to consumer price index adjustment. This Type A support could be varied pursuant to paragraphs 33 and 34 when one of the following events occurs:
(a) Christine remarries;
(b) Christine cohabits with another man in a conjugal relationship for a period of three years;
(c) Christine has become self-sufficient;
(d) There is a reduction or termination of child support;
(e) There has been any material change in the financial circumstances of Vaughan or Christine.
[8] Paragraph 33 provided that the only provisions of this agreement which shall be subject to variation shall be those regarding custody of and access to the children, support for the children, “Type A” support for Christine and the provisions of life insurance (emphasis mine). Those provisions could only be varied if there was a material change in the circumstances that affects the children’s welfare or the financial needs of either Vaughan or Christine.
[9] Paragraph 34 provided for a notice period in order to effect a change as per paragraph 33.
[10] Paragraph 37 of that agreement provided that in the event that either Christine or Vaughan obtained a judgment or decree of divorce, all of the terms and provisions if this agreement shall continue in full force and effect.
Divorce Order of Justice Taylor dated September 21, 2006
[11] The parties obtained an order from Justice Taylor on September 21, 2006. That order was made pursuant to minutes of settlement signed by the parties. It changed some of the terms of the Separation Agreement of 2001.
[12] The order provided:
Increased Child Support
- Paragraph 2 states: “commencing on the first day of October, 2006 and on the first day of each month thereafter, the Applicant shall pay to the Respondent child support in the amount of $1,098.00 for the children of the marriage…based upon the following;
a) The Applicants income of $75,043,00 and
b) The Child Support Guidelines.
Special and Extraordinary Expenses
Paragraph 3 states: “The Applicant shall be responsible for and shall pay for the children’s expenses connected with athletic activities, including equipment, uniforms, registration, tournament fees and related travel and accommodation.”
Paragraph 4 states: “The Applicant shall pay 75% and the Respondent shall pay 25% of the children’s special and extraordinary expenses other than athletic equipment and fees and medical expenses not covered by the Applicant’s plan.”
When Child Support Terminates
- Paragraph 6 states: “The Applicant’s obligation to pay support to the Respondent for a child shall continue until one of the following occurs with respect to that child:
a) the child ceases to reside primarily with the Respondent (“reside full-time” includes the child living away from home to attend an educational institution, pursue summer employment or to take a vacation while otherwise maintaining a permanent residence with the Respondent)
b) the child becomes 18 years of age and ceases to be in full-time attendance at an educational institution;
c) the child is awarded a post-secondary degree, diploma or certificate;
d) the child has attended one or more post-secondary educational institutions for a total of four years
e) the child attains the age of 23 years;
f) the child marries;
g) the child dies; or
h) the Respondent dies.
Retroactive Payment of Child Support
[13] The order also provided at paragraph 7 that: “the Applicant shall pay $3,000.00 for retroactive child support, to be paid by monthly instalments of $125.00 per month until the amount is fully paid”.
Disclosure Duty
[14] The parties were to exchange Tax Returns and Notices of Assessments in each year by June 1.
Increased Spousal Support and Termination in Part
[15] Paragraph 10 of that order provided for an increase in the amount of monthly spousal support for “Type A” support with a time limitation. That paragraph states:
[C]ommencing October 1, 2006 and on the first day of each moth thereafter, the Applicant shall pay to the Respondent for her support the amount of $1,300.00 per month to and including October 1, 2008 at which time the Applicant’s obligation to pay Type A spousal support as stated in the Separation Agreement dated April 24, 2001 to the Respondent shall terminate.”
Extended Medical Coverage
[16] The Applicant was required to keep in force his extended medical, hospital, dental, prescription drug and optical services (through his employment, or future employment), for the benefit of the children. This was to continue so long as the plan permits him to cover the children and permits him to cover his spouse.
[17] For the above expenses not covered by his plan, the Applicant was required to pay 75% and the Respondent was required to pay 25% of the costs in certain circumstances.
Life Insurance
[18] The Applicant has a life insurance policy on his own life with his employer. At paragraph 13, the Order requires the applicant to keep this policy or any replacement policy in full force and effect and to designate the Respondent as the beneficiary, in trust for herself and the children. He was also required by the following two paragraphs of the Order to provide copies of the policies, and provide proof annually that the policies are in full force and effect.
[19] Paragraph 16 provided that if the Applicant died while he had an obligation to provide support to his wife or either of the children, the wife shall use the proceeds of the policies for her support and the support of the children.
[20] On January 9, 2014, the husband brought a motion to change the order of Justice Taylor dated September 21, 2006 and the agreement for support between the parties. This motion did not provide a date for the agreement that is set out above.
Motions to Change Chronology
Motion to Change # 1
[21] Vaughan brought a motion to change returnable on January 9, 2014. In his motion, he sought to change the Order of Justice Taylor dated September 21, 2006. He did not seek to change any other term of the Separation Agreement dated April 24, 2001 that was not affected by this motion to change. His first motion to change, among other things, asked for the following:
He claimed that he now earned $94,612.00 and he requested table amount of support for the two children in the monthly amount of $1,342.00 per month.
He also asked that the life insurance designation only be required so long as support is payable. At the time that he filled out his Change of Information Form, he noted the children were 20 and 18 years of age respectively.
He noted in the above Change Form that the existing Divorce Order of Justice Taylor dated September 21, 2006 required him to pay child support in the amount of $1,098,00 per month plus 75% of s. 7 expenses. Vaughan stated that his income had increased and his eldest son should stop being a dependent as of the end of April 2014 and his youngest son would stop being a dependent as of the end of April 2015. He noted that both his children were in college as of the date of this motion to change.
Vaughan asked for an order that he pay the amount of increased child support “immediately.” He also asked that the child support cease upon the child no longer being a dependent.
The second part of this motion to change request was to require that the Respondent only be named as beneficiary of his life insurance policy so long as support is payable. As it currently stands, the Respondent is to be named indefinitely.
Motion to Change # 2
[22] Christine filed a response to Vaughan’s change motion on February 3, 2014. She claimed the following:
That both the Divorce Order of Justice Taylor and the Separation Agreement of 2001 must be considered. According to her, there continues to be spousal support obligations. She refers to paragraph 27(i) of the Separation Agreement of 2001 that provided for replacement equalization with “Type B” support. She states that pursuant to section 25, of the Separation Agreement, the “Type A” support can be varied (reinstated) when the child support ceases or other material changes occur. She does not refer to the fact that the Divorce Order of 2006 apparently changed Spousal Support “Type A” by increasing the amount and then terminating it in 2008.
Christine also claims that the child support payments have not been properly made as the contributions to section 7 expenses have not been paid.
She also claims retroactive child support should be paid in accordance with the guidelines to reflect the proper amount of support according to the actual income Vaughan earned for 2009 and 2010.
Uncontested Facts
[23] Income of Mr Hogan:
2007 - $74,129.00
2008 - $88,136.00
2009 - $88,146.00
2010 - $90,866.00
2011 - $93,457.00
2012 - $91,572.00
2013 - $94,613.00
[24] Vaughan is a teacher with the Brant Haldimand Norfolk Catholic District School Board. Christine has had various low paying jobs since separation. She either worked in retail, fast food, or other forms of waitressing. She also took numerous upgrading courses at Fanshawe College in the Building and Health and Safety field. She also took continuing education in computers at the Durham Catholic Continuing Education Program in 2013. She recently lost her job and has not secured alternate work by the time of the argument of these motions. Her salary was in the range of $10,000.00 to $17,000.00 per annum, excluding support payments.
Christine’s claims relative to her seeking reinstatement of spousal support.
Acting to her career detriment during the marriage;
[25] She states that she left her 15 year position at the City of Toronto in order raise the two children. Despite her efforts, she has not been able to secure stable and consistent employment as a result of the role that she played within the marriage, and the child care responsibilities she has had since separation.
Excess burden of parenting after separation:
[26] Christine claims that although Mr Hogan was given extensive access to the children, including alternating weekends and 4 weeks holiday time, he refused to exercise his access. As a result she had the extra responsibility and expenses of having the children 24/7.
Material Change contemplated in the 2001 Separation Agreement;
[27] Paragraph 25 of the Separation Agreement outlines material changes, as discussed above. For ease of reference, it is repeated here:
- The amount of Type A support to be paid by Vaughan to Christine may be varied pursuant to paragraphs 33 and 34 on each occasion when one of the following events occurs:
a) Christine remarries;
b) Christine cohabits with another person in a conjugal relationship for a period of three years;
c) Christine has become economically self-sufficient;
d) There is a reduction in or termination of child support;
e) There has been any other material change in the financial circumstances or Vaughan or Christine.
February 26, 2014 activity in Ontario Court.
[28] Vaughan states that despite this matter being an active file in the Superior Court of Justice, Christine filed the 2001 Separation Agreement in the Ontario Court of Justice on February 26, 2014. She filed the agreement in order to enforce its terms, pursuant to the Family Law Act s. 34. She did not advise the Ontario Court at the time that the above motions to change were before the Superior Court. Vaughan claims that she refuses to withdraw the filing and the Family Responsibility Office is attempting to enforce the arrears, as they are calculated according to the representations of Christine, with respect to the s. 7 expenses.
[29] The affidavit of February 26, 2014 of Christine in support of her filing the agreement in the Ontario Court stated in paragraph 2: “the contract/agreement has not been set aside or disregarded by a court nor has it been changed by agreement of the parties”. This is clearly a misrepresentation. The agreement was changed in substantial ways by the order of Justice Taylor of 2006 that was entered into by minutes of settlement of the parties.
February 26, 2014 activity in Superior Court
[30] In this Superior Court action, the parties entered into another agreement that resulted in a court order at a case conference on February 26, 2014. The Order of Justice Flynn increased the child support from $1,098.00 per month to $1,348.00 per month for the two children. This was based on Mr Hogan’s income for 2013 being $94,612.00. It was also based on the representation that both children were still in school at Durham College.
More relief sought: Motions and Counter Motions April – June 2014
[31] Vaughan brought a further motion dated May 2, 2014 and returnable on May 23, 2014, to seek an order that his child support payments for his two children end as of April 30, 2014.
[32] Christine brought a further motion of her own, dated May 14, 2014 and returnable May 23, 2014. She seeks the following:
Child Support
(1) An Order that the Applicant pay to the Respondent for underpayment of child support in the amount of $4,524.00 for the period from 2009-2010;
(2) An Order the that Applicant reduce the amount payable to the Respondent for extraordinary expenses in the sum of $1,177.00 (75% of second term tuition as per the Separation Agreement, date April 24, 2011);
(3) An Order that the Applicant to continue to pay child support for the Child Tyler as he is suffering from major depression and is still a dependent who is not able to work, and will be continuing his education at Durham College in September 2014.
Extraordinary Expenses
(4) An Order for the Applicant to pay the Respondent his 75% of the tuition for Durham College at least for the first semester before July 2, 2013 in the amount of approximately $1,547.68. She claims she did not receive Mr Hogan’s tuition contribution for 2013;
Life Insurance
(5) An Order compelling the Applicant to disclose his life insurance policies of the International Brotherhood of Electrical Workers and the Brantford Haldimand Catholic School Board. Such disclosure to include policy numbers, certificate numbers, and evidence that the Respondent is the designated beneficiary pursuant to the above mentioned Separation Agreement.
Pension
(6) An Order compelling the Applicant to disclose to the Respondent facts related to “Type B” support under the Separation Agreement, including his estimated date of retirement, and his total monthly amount of pension expected.
Spousal Support
(7) A Variation Order reinstating the “Type A” spousal support in the amount of $1,600.00 per month starting June 1, 2014. She claims material changes in circumstances that were contemplated in sections 25 and 33 of the Separation Agreement have occurred. She claims she is unemployed and has done everything possible to gain employment. She asserts that she is in a position of financial despair while the Applicant would not be in his position as a teacher and earning $95,000.00 per year if not for her.
Medical Insurance
(8) An order that the Applicant accept directly by email medical receipts for her children that she can forward to the insurance company for quick payment. This is in order to avoid having to go through FRO who refuses to take the medical receipts.
Further Order of Superior Court May 23, 2014
[33] On May 23, 2014, Justice Sloan made a temporary order lowering the Applicant’s child support from $1,324 per month to $837.00 per month, and ordered that the arrears for s. 7 expenses be suspended. This adjustment reflected a change from two dependent children to one. Justice Sloan observed in his Order that Tyler is currently 19 and is medically depressed, but will return to school in September 2014, despite dropping out of school December 2013. No one had informed the Applicant that the child had dropped out of school at that time.
The Law and Analysis
[34] Justice Gillese introduced the Ontario Court of Appeal decision on Bemrose v. Fetter, 2007 ONCA 637 with the comment at paragraph 1 of the decision:
This family law case illustrates the problems that arise when matters are permitted to proceed without focus or direction.
[35] All too often, judges are faced with the need to sift through years of litigation events in order to determine what the real issues are, what the evidence is and where the evidence is. This is a prime example of such a case. It represents a never ending volley of motions and counter motions. The parties have been negotiating, settling then re-litigating issues of child and spousal support over a 13 year period. This has resulted in a Separation Agreement in 2001 that was partially changed by a court order that was made pursuant to minutes of settlement in 2006. This was followed by attempts to enforce the agreement that was partially changed, and then a plethora of motions to change starting in February 2014.
[36] After reviewing this lengthy file, hearing counsel submissions and sifting through the files once again, I shall deal with what I find to be the outstanding issues as follows:
A. What is the impact of the 2006 Order on the Separation Agreement of 2001 with respect to spousal support, child support, health benefits, and life insurance?
B. Under what circumstances can spousal support that has been terminated be reinstated?
C. What, if any, child support arrears are outstanding after considering the payor father’s increase in salary? How far back should that child support adjustment go?
D. Do the clauses in the Separation Agreement that deal with Life insurance beneficiary designation still apply? Can they be changed without a material change in circumstances?
The impact of the Order of Justice Taylor on the Separation Agreement
[37] Justice Gordon in Kudoba v. Kudoba, 2007 41273 (ON SC) stated:
[47] The Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, considered the threshold test for judicial intervention in the face of an existing separation agreement. While Miglin dealt with spousal support, the principles are relevant in a child support case, particularly with reference to the discussion regarding the objectives of the Divorce Act as related to the settlement agreement of the parties.
[48] Bastarache and Arbour JJ., writing for the majority, and with reference to the court’s prior decision in Pelech v. Pelech, 1987 57 (SCC), [1987] 1 S.C.R. 801, referred to a “contextual assessment” in their discussion at paragraphs 44-47, as follows:
45 …The fact that judicial and societal understandings of spousal support have changed since the release of Pelech and the adoption of admittedly competing factors in s.15.2(6) does not lead to an unfettered discretion on the part of trial judges to substitute their own view of what is required for what the parties considered mutually acceptable. In this respect, we agree in principle with Wilson J.’s comments in Pelech, supra, at p.853:
Where parties, instead of resorting to litigation, have acted in a mature and responsible fashion to settle their financial affairs in a final way and their settlement is not vulnerable to attack on any other basis, it should not, in my view, be undermined by courts concluding with the benefit of hindsight that they should have done it differently.
46 Nevertheless, the language and purpose of the 1985 Act militate in favour of a contextual assessment of all the circumstances. This includes the content of the agreement, in order to determine the proper weight it should be accorded in a s.15.2 application. In exercising their discretion, trial judges must balance Parliament’s objective of equitable sharing of the consequences of marriage and its breakdown with the parties’ freedom to arrange their affairs as they see fit. Accordingly, a court should be loathe to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act. This is particularly so when the pre-existing spousal support agreement is part of a comprehensive settlement of all issues related to the termination of the marriage. Since the issues, as well as their settlement, are likely interrelated, the support part of the agreement would at times be difficult to modify without putting into question the entire arrangement.
[49] Reference was then made to the objectives of the Act. At paragraphs 52 – 54, they said:
52…In our view, these objectives are not intended to dictate by themselves the precise terms of an enforceable negotiated agreement dealing with spousal support, distribution of assets and child support. In the first place, the language of s.15.2(6) is suggestive only:
15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should [emphasis added.]
Compare this provision with the mandatory language adopted in s.15.2(4), which expressly directs the court to take certain factors into account in exercising its discretion to make an award:
15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including…[emphasis added.].
Nothing in these provisions indicates a duty on the court to subject a comprehensive agreement to scrutiny based solely on the objectives in s.15.2(6) or to assume that any agreement by the parties will be enforceable only when its provisions substantially mirror what a trial judge, unfamiliar with the parties’ motivations and subjective understanding of their relationship, would have awarded on the basis of these criteria alone.
54 …Without some degree of certainty that the agreement will be respected by the court, parties have little incentive to negotiate a settlement and then to comply with the terms of their undertakings. The policy goal underlying s.9(2) would then be entirely defeated.
[50] At paragraph 64, the proper approach was set out in the following manner:
64 An initial application for spousal support inconsistent with a pre-existing agreement requires an investigation into all the circumstances surrounding that agreement, first, at the time of its formation, and second, at the time of the application. In our view, this two-stage analysis provides the court with a principled way of balancing the competing objectives underlying the Divorce Act and of locating the potentially problematic aspects of spousal support arrangements in their appropriate temporal context.
[51] Further discussion by Bastarache and Arbour JJ. led to these concluding remarks, at paragraphs 67 and 77 – 78:
67 Having said this, we are of the view that there is nevertheless a significant public interest in ensuring that the goal of negotiated settlements not be pursued…with such a vengeance that individual autonomy becomes a straitjacket (emphasis added). Therefore, assessment of the appropriate weight to be accorded a pre-existing agreement requires a balancing of the parties’ interest in determining their own affairs with an appreciation of the peculiar aspects of separation agreements generally and spousal support in particular.
78 Therefore, in searching for a proper balance between consensus and finality on the one hand, and sensitivity to the unique concerns that arise in the post-divorce context on the other, a court should be guided by the objectives of spousal support listed in the Act. In doing so, however, the court should treat the parties’ reasonable best efforts to meet those objectives as presumptively dispositive of the spousal support issue. The court should set aside the wishes of the parties as expressed in a pre-existing agreement only where the applicant shows that the agreement fails to be in substantial compliance with the overall objectives of the Act. These include not only those apparent in s.15.2 but also, as noted above, certainty, finality and autonomy.
[52] The two stage approach, previously mentioned in paragraph 64, was set in greater detail. At paragraph 91, this summary was provided:
91 …We do not agree with the Ontario Court of Appeal when it suggests at para. 71, that once a material change has been found, a court has “a wide discretion” to determine what amount of support, if any, should be ordered, based solely on the factors set out in s.17(7). As La Forest J. said in his dissent in Richardson, supra, at p. 881, an order made under the Act has already been judicially determined to be fit and just. The objectives of finality and certainty noted above caution against too broad a discretion in varying an order that the parties have been relying on in arranging their affairs. Consideration of the overall objectives of the Act is consistent with the non-exhaustive direction in s.17(7) that a variation order “should” consider the four objectives listed there.
Retroactive Child Support
[38] In Miglin v. Miglin, at paragraphs 131 – 135, Bastarache J. outlined some of the significant considerations relating to child support:
131 Child support has long been recognized as a crucial obligation that parents owe to their children.
132 In the context of retroactive support, this means that a parent will not have fulfilled his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly…Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactive award that enforces the unfulfilled obligations that have accrued over time.
133 …The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.
134 Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating.
135 The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. …Thus, while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a pointwhen a retroactive award is needed.
[39] In the circumstances of this case, the proper amount of child support payments up to the Order of Justice Taylor dated September 21, 2006 was $800/month. At that time, Taylor J. ordered that the child support payments were to increase for the two children from $800 to $1,098.00.
Analysis
[40] The Separation Agreement of 2001 provided for a scheme of child support consistent with the Child Support guidelines. It also provided for scheme of spousal support that created a unique division of spousal support into Type A and Type B. Type A support is the more traditional support that was not time limited. It was consistent with the guidelines and it also provided for variation if there was a change in the circumstances of the parties. One of the contemplated changes was the fact that the children may no longer qualify for child support. In that event Christine could bring a change motion to ask for increased spousal support.
[41] In 2006, the parties obtained a Divorce and changed the Type A support that was set out in the 2001 agreement. It should be noted that the Type A spousal support was the only form of support that could be subject to changes in accordance with the 2001 agreement. The 2006 Minutes of Settlement did not supersede all of the terms of the 2001 agreement. However, the 2006 Minutes of Settlement did change what was to happen with the Type A support. It increased the amount of spousal support and required that increased payment to be paid until 2008 at which time it would be terminated.
[42] I agree with the British Columbia Court of Appeal in K.D. v. N.D., 2014 BCCA 70:
With respect to the duration of support, the appellant quotes from the without child support formula in the SSAG, which provide a duration of 0.5 to 1 year of spousal support for each year the spouses have cohabitated. For situations with child support, the duration formula is different and specifically provides that initial orders are indefinite. The time limits are “softer” when there are dependent children and “are intended to structure the process of review and variation of initial orders that are indefinite in form; they are not intended to give rise to time-limited orders, at least not initially” (SSAG at 83). Not only was the judge entitled to make an indefinite order, the SSAG suggest that this is usually the approach that judges ought to take.
[43] In the case before me, the 2006 agreement that was incorporated into the Divorce Order effectively provided support to Christine for 8 years after an approximate 8 year cohabitation and marriage. In my view the length of the cohabitation brings this case into the realm of short to intermediate marriage. Had there been no children, the spousal support period duration in the circumstances would be sufficient. However, as set out in K.D., the fact that children are involved means I must look at the objectives of the Divorce Act in order to determine if the agreements of these parties are consistent with the objectives of the Act.
[44] In this case, Christine not only took on the primary caregiving role of the children during the period of cohabitation, she also took on the excess burden of child care when the father chose not to see the children on his access times. One of the considerations the Divorce Act directs the court to consider is the impact of child care both before and after marriage. I find that in the circumstances of this case, Christine’s child care responsibilities had a negative impact on her ability to secure consistent and secure employment that would allow her to even approach an appropriate standard of living. I find that the present financial circumstances are not caused by any of her actions. She tried her best to re-educate and train in order to become self-sufficient. I find that Christine is entitled to spousal support as of the date that her eldest son, Michael, no longer qualifies as a child, i.e. when he ceases to be enrolled in a full time educational institution. That date was May 1, 2014.
Child support for the youngest child, Tyler
[45] Tyler did not complete his course at Durham College. He left school in December, 2013. Medical evidence was filed that reflected a diagnosis that Tyler was suffering from a “major depression” and anxiety. The anxiety and depression had a direct negative impact on Tyler’s ability to be in social settings and inhibited his ability to attend school. It was anticipated that he may again attend school as of September 2014. There was no evidence that he was in fact able to recommence his education.
[46] Counsel for Vaughan submitted that if I allowed Tyler to be considered as a child who could not leave the control of the parent due to depression, the flood gates would open to support claims by thousands of teens with depression. I completely reject that submission. The diagnosis in Tyler’s case is “Major Depression”. It has a direct impact on his ability to function as a student. I find that under these circumstances he cannot leave the charge of a parent and is entitled to support pursuant to the guidelines. Tyler’s medical and educational status may be reviewed at the end of December 2014.
[47] I find that in the circumstances it would be shocking for the court to be bound by the parties’ 2006 agreement that terminated spousal support in 2008. The 2001 agreement contemplated a change of circumstances for when the children no longer qualified for support.
Order
[48] As a result of my findings I make the following order:
Child Support
[49] Retroactive for Michael and Tyler, from January 2009 to April 30, 2014 as per the guidelines and income set out above in the amount of $11,271 in total. For the purposes of these calculations, where an Order was made in the middle of the month, it was assumed that payment at the new rate began the first of the following month.
[50] Child support for Tyler from May 1, 2014 until a review at the end of December 2014 in the amount of $834 per the guidelines and income as set out above.
Spousal Support
[51] I order Vaughan to pay Spousal Support for Christine from May 1, 2014 at the mid-range of the SSAG with one dependent child, at $2118/month. This support is to be reviewed at the end of December 2014 in order to consider if both children are still entitled to child support and the status of Christine’s employment.
Section 7 arrears.
[52] Counsel agree that the items set out for $354 (for Timberland boots), second semester tuition at Durham College, in the amount of approximately $1,177, and $100 for a tuition late payment fee shall be removed from the list of extraordinary expense claims. The Respondent shall pay the adjusted amount at 75%, including Tyler’s Durham College tuition for the first semester before July 2, 2013 in the amount of approximately $1,547.68.
[53] I decline to change any other provision of the 2001 and 2006 agreements and court order with respect to the life insurance, health benefits and Type B support. These are all issues that in my view were properly within the ability of the parties to come to agreement. The agreement the parties made complies with all of the objectives of support. To the extent that Type A support is considered it is a creation of the parties in lieu of equalization. The parties’ agreement should be respected in that regard.
HARPER, J.
Released: November 24 , 2014
COURT FILE NO.: FS-11-13354
DATE: 2014Nov24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Vaughan Hogan
Applicant
- and -
Christine Raymer
Respondent
REASONS FOR JUDGMENT
HARPER, J.
Released: November 24 , 2014