SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-09-1010-01

DATE: 20140126

RE: Brian Steven Greig, Applicant

AND:

Wendy Lynn Young-Greig, Respondent

BEFORE: The Hon. Mr. Justice J.P.L. McDermot

COUNSEL:
Jodi A. S. Armstrong, for the Applicant

S. Lawrence Liquornik, for the Respondent

HEARD: December 5, 2013, January 9, 2014

ENDORSEMENT

Introduction

[1] On December 5, 2013 and January 9, 2014, I heard motions by both parties for an interim variation of support set out in a separation agreement entered into between the parties on February 3, 2012. The Applicant’s motion to change was commenced on August 15, 2012 and the parties were in a case conference before Eberhard J. on April 2, 2013 and a settlement conference before McCarthy J. on July 26, 2013. The parties have been unable to settle their issues, even on a temporary basis, and this is the first opportunity for a court to adjudicate on the support issues arising out of the motion to change.

[2] Parties often expend an inordinate amount of resources on issues concerning custody and access of older children when relationships between those children and their parents are often quite volatile, especially in the emotional undertow arising out of a separation. As perhaps somewhat understated by Mr. Liquornik, “[t]eenagers being what they are,”[^1] an older child may very well shift households from where the parties have agreed that he or she live. That is exactly what occurred in the present case when the parties’ oldest daughter moved to her father’s residence in 2012. Since then, the parties have been unable to agree on the resultant change in support.

[3] For the reasons set out below, I have made an interim order varying the separation agreement as follows:

a. Commencing May 1, 2012, the agreement shall be varied to provide that the Applicant shall pay the Respondent temporary child support of $403 per month and $320 per month in temporary spousal support;

b. From January 1, 2013 to December 31, 2013, the agreement shall be varied to provide that the Applicant shall pay the Respondent temporary child support of $242 per month and no spousal support; and

c. From January 1, 2014 on, the agreement shall be varied to provide that the Applicant shall pay the Respondent temporary child support of $303 per month and temporary spousal support of $150 per month.

Background Facts

[4] The Applicant and the Respondent were married on April 3, 1994 and they separated on August 31, 2008. There are two children of the marriage, namely Dakota, who is now 18 and attending Georgian College, and McKensie, who just turned 16 and continues in high school. When the parties separated, the children remained with their mother, the Respondent, Wendy Lynn Young-Greig; they saw their father on Thursday nights and weekends.

[5] Prior to and since separation, the Respondent has worked as a dental assistant in Newmarket, Ontario. Her income has fluctuated between $40,000 and $50,000 per annum. The Applicant works in sales at Cansave in Barrie; his income appears to be largely based upon performance bonuses and fluctuates substantially; it has been as low as just under $40,000 per annum in 2009, and as high as $95,000 per annum in 2013. One of the reasons that argument on this motion was not completed on December 5, 2013 was because the Applicant’s income was on track as being $73,000 for 2013; he was not sure, however, whether he would receive a bonus prior to the end of 2013 which might have changed that income substantially. In fact, the Applicant’s 2013 bonus was about $3,000 making for a total income of $74,312.52.

[6] Because the children lived with Ms. Young-Greig, Mr. Greig agreed to pay her child support and his income fluctuations were most probably the reason that the parties entered into an agreement which allowed for, inter alia, the adjustment of the support on an annual basis according to the Applicant’s previous year’s income. As noted above, the agreement was entered into in February, 2013 and it provided that the parties would have joint custody of the children, who would continue to live in the Respondent’s residence. The Applicant would see the children, as also noted above, on Thursday evenings and on alternate weekends.[^2]

[7] The agreement further provided that Mr. Greig would pay child support in the amount of $1,214 per month based upon his 2010 income and suggested that the support would be adjusted in June of each year according to his previous year’s income: [^3]

4.1 Commencing June 1, 2011, and on the first day of each month, Brian will pay Wendy child support in the amount of $1,214 per month, in accordance with the Tables for two children, based upon Brian’s 2010 income of $84,516.

4.2 On June 1st every year the parties will provide to each other the income information referred to in the Guidelines and the parties will then determine the appropriate Table amount of support to be paid by each party for the coming year. Any adjustment will be made as of June 1st.

4.3 If the parties do not make an annual adjustment as set out in sub-section 4.2 and neither obtains a court order fixing the amount of child support, the support payments referred to in sub-section 4.1 will continue until further agreement or court order.

[8] This was not the first agreement that used the Applicant’s prior year’s income for child support purposes. On June 25, 2009, the parties entered into a interim separation agreement which provided that Mr. Greig would pay child support of $1,034 per month.[^4] Although not stated in the agreement, it was submitted by Ms. Armstrong that this amount was based upon Mr. Greig’s 2008 income of $72,370.31;[^5] it certainly was not based upon his 2009 income which was only $39,858.10. This agreement was presented as evidence that the parties had always negotiated support based upon Mr. Greig’s prior year’s income.

[9] The final separation agreement further reserved the Respondent’s right to spousal support through a nominal amount of support of $1 per year.[^6] The parties finally agreed that Mr. Greig would make an equalization payment of some $17,000 to be rolled into Ms. Young-Greig’s RRSP from his LRSP.[^7] It is common ground that this clause of the agreement was frustrated by Mr. Greig’s inability to transfer more than one half of that asset into Ms. Young-Greig’s name, a fact that was not known by the parties when they signed the agreement. According to his materials, Mr. Greig was only able to transfer $8,667.78 into Ms. Young-Greig’s RSP; this means that he owes her a further $8,332.22 which amount must, however, be adjusted for taxes.

[10] More importantly, however, the agreement was also frustrated by the deteriorating relationship between the Respondent and her older daughter, Dakota. That relationship appears to have broken down by the end of April, 2012, less than four months after the agreement was signed. At that time, Mr. Greig says that Dakota left her mother’s care and moved in with him. Ms. Young-Greig denies that it was that soon, but acknowledges that Dakota had moved in with Mr. Greig by the end of July, 2012. Dakota herself has sworn an affidavit in support of her father’s motion; she says that she moved in with her father on April 30, 2012; although she says she could not initially take many of her things, she deposed that after April 30, she “rarely stayed overnight at my mom’s home.”[^8]

[11] On June 14, 2012, Applicant’s counsel wrote to the Respondent requesting that the child support be reviewed, and suggesting that support be reduced to a differential amount of $175 per month.[^9] According to the draft amending separation agreement attached to this letter, this was based upon the parties’ previous year’s incomes of $68,530.17 for the Applicant and $50,124 for the Respondent with the custody of the children being split.[^10] On June 28, 2012, Mr. Liquornik responded to that correspondence, suggesting that no steps be taken until Dakota returns to school, and as well stating that “it will also probably not come as a surprise to you that Dakota is giving her mother conflicting information about her intentions.”[^11] Ms. Armstrong responded on July 4 advising that this was unacceptable and that she required either a withdrawal from Family Responsibility Office enforcement or the signed Amending Separation Agreement before week’s end, failing which she was instructed to commence proceedings.[^12]

[12] Mr. Greig stopped paying the support under the agreement in August, 2012 and then began to pay the differential child support of $175 per month instead of the amount due under the agreement. The Director has not received joint confirmation of the split custody of the children, and has since been deducting $569.54 every two weeks from the Applicant’s pay. This works out to $1,233 per month which is close to the amount payable under the Separation Agreement.[^13]

[13] The motion before me was to set differential child support based upon the fact that Dakota has now moved in with her father. The Respondent brings a motion for temporary spousal support to make up for the amount not being paid by the Applicant. Both parties agree that I can amend support at least back to August, 2012, when both parties acknowledge that Dakota had finally moved into the Applicant’s care.

Analysis

[14] Both parties acknowledge that there is a material change in circumstances which would warrant an interim variation in support under the agreement pursuant to s. 37 of the Family Law Act.[^14] Both parties have agreed that the interim variation in support may be retroactive to when that change occurred, being when Dakota elected to move in with her father.

(Decision continues verbatim with all remaining paragraphs and footnotes exactly as provided in the source HTML.)

McDERMOT J.

Date: January 26, 2014

[^1]: Respondent’s affidavit sworn November 30, 2013, Ex. A.
[^2]: Separation Agreement dated February 3, 2012, paragraph 3.
[^3]: Ibid., paragraph 4
[^4]: Interim separation agreement dated June 9, 2009, paragraph 2
[^5]: In fact, according to the guidelines, the income used for child support was just under $70,000 per annum, which was less than Mr. Greig’s actual 2008 income. The agreement itself does not recite the basis for support or the income used for child support purposes.
[^6]: Separation Agreement dated February 3, 2012, op. cit.., paragraph 5
[^7]: Ibid., paragraph 9.1(a)
[^8]: Affidavit of Dakota Leigh Greig sworn December 3, 2013, paragraph 9.
[^9]: Affidavit of Applicant sworn September 30, 2013, Ex. B
[^10]: Ibid., Ex. B, Paragraph 6.2 of the Draft Amending Separation Agreement attached thereto
[^11]: Affidavit of the Respondent sworn November 30, 2013, Ex. A.
[^12]: Affidavit of the Applicant sworn September 30, 2013, op. cit., Ex. C
[^13]: See paragraph 17 of the Applicant’s affidavit sworn September 30, 2013. The support that is presently being paid by the Applicant was confusing to me. The Applicant stated that he was paying $569.34 every two weeks which works out to $1,233 per month as set out above. The Draft Amending Separation Agreement states that the director had “enforced $1,034.00 per month and Brian made a top-up payment directly to Wendy in the amount of $180 per month” which confirms the amount payable under the agreement of $1,214. I was told, however, during argument that Mr. Greig is still only paying $1,000 or so per month, which seems to imply that the director is only enforcing the payment of $1,034 per month as recited in the Amending Separation Agreement, which does not seem to account for the fact that the Respondent says that there are arrears owing of over $2,000 due to the fact that the Applicant underpaid support for several months. That is also contrary to Mr. Greig’s sworn statement that he is paying $569.34 every two weeks.
[^14]: R.S.O. 1990, c. F.3