SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Susan Smith v. Jeffrey Angel
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Applicant without counsel Martin Kenny as agent for Sean Jones, for the Respondent (Moving Party) Jeffrey Angel
DATE HEARD: January 21, 2014
E N D O R S E M E N T
1This was a Motion to Change brought by the respondent Jeffrey Angel and heard on affidavit evidence. Mr. Angel was seeking to vary the consent order of Ratushny J. dated March 4, 2005, which was based on Minutes of Settlement, and the consent order of Linhares de Sousa J. dated December 18, 2009. Those orders provided for child support and expenses payable by Mr. Angel regarding Harrison Frederick Smith Angel, born May 2, 2000, as well as set his arrears of child and spousal support. The Respondent Mother, Susan Smith, sought relief of her own. Having been married previously, both parties were relying on the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, and the Federal Child Support Guidelines, SOR/97-175, as amended.
2The parties agreed at the conclusion of the hearing that (1) subject to any order I may make with respect to Guideline section 7 expenses, there were no child support arrears owing as of December 31, 2012, and (2) the arrears of spousal support payable by Mr. Angel as of that date were $38,843. The remaining issues set out below are from the factums filed and the argument at the hearing, namely the ones that both parties understood that I would be addressing. The adequacy of the pleadings was not raised by either party.
Issues
3The issues in this case are:
- Determining Mr. Angel’s income and his child support obligation from January 1, 2013 forward.
- Determining Mr. Angel’s contribution to section 7 expenses from 2010 forward.
- Whether Mr. Angel should be relieved of paying half of Harrison’s private school fees.
- Whether Mr. Angel’s obligation to pay spousal support arrears should be suspended.
- Whether the parties should share Mr. Angel’s access travel costs equally.
Background Facts
4Mr. Angel is 47 years of age and Ms. Smith is 44. They married in 1995 and separated in 2001. Harrison is their only child, now 13 years old. He has resided with Ms. Smith in Ottawa since separation, and Mr. Angel has always resided elsewhere. Mr. Angel currently resides in Alberta. Both parents are well educated and have historically been employed in the field of Public Relations and Communication.
5The March 4, 2005 consent court order for the most part follows the provisions of the Divorce Act and Guidelines regarding child support and expenses, although there is a special provision at para. 4.2 with respect to Harrison’s private school. Even though Mr. Angel was earning considerably more money than Ms. Smith at the time, the parties agreed that the private school cost would not be split proportionate to their incomes, but rather would always be split 50/50.
6Significant support arrears accumulated in part as a result of poor communication between Mr. Angel and his legal counsel many years ago, and he reports having successfully sued the lawyer.
7The December 18, 2009 order set the amount of what were by then significant support arrears, and adjusted the ongoing payments for child support and day-care expenses. In all other respects it confirmed the provisions of the 2005 order. Ms. Smith’s 2008 income was noted to be $108,052, and Mr. Angel’s was $280,522, with his income anticipated to be $209,804 in 2009. Mr. Angel was working for the Canadian Energy Pipeline Association (“CEPA”) at the time. Although not mentioned in that order, on September 15, 2009, prior to it being made, Mr. Angel filed for personal bankruptcy in Alberta.
8Mr. Angel lost his employment in the spring of 2010, shortly after CEPA learned that he was attending Alcoholics Anonymous. As part of his severance package CEPA paid for an addictions program that Mr. Angel completed in May of 2010.
9On October 28, 2010, the Court of Queen’s Bench of Alberta made an ‘Order Setting Terms for Discharge of Bankrupt’. It required Mr. Angel to pay a sum of $23,000 in monthly installments of $500. Mr. Angel explained that the first $6,000 was for the Trustee in Bankruptcy, and the remaining $17,000 was for the Alberta Maintenance Enforcement Program for the spousal support arrears in this case. He indicated that he has made only nine payments for reasons that follow, and that he therefore currently owes $18,500. As such, when he pays this debt, the first $1,500 will go to the Trustee and the remaining amount will go to the spousal support arrears.
10After a period of unemployment, Mr. Angel was hired by the City of Edmonton as its chief communications officer starting in June of 2011. His salary was approximately $199,000 per year. He was terminated from that position in February of 2012.
11This Motion to Change by Mr. Angel is dated September 10, 2012.
12After a period of unemployment and unsuccessful attempts to find work in his field, Mr. Angel started as a car salesman with a Nissan dealer in March of 2013. In September of 2013 he changed employers to work at a Chrysler dealer, still selling cars. He continued and continues to look for employment in the Public Relations and Communications field. Ms. Smith disputes the sincerity of his effort, convinced that jobs are available.
13Despite the periods of unemployment, with his severance packages from both the Canadian Energy Pipeline Association and the City of Edmonton, and with some Employment Insurance benefits, Mr. Angel’s income for 2010 was $163,239, his income for 2011 was $129,256, and his income for 2012 was $161,092. For the approximately eight months that he was with the Nissan dealer in 2013 he earned $31,461 and for the last three months of 2013 with the Chrysler dealer he earned $12,226. When those amounts are added to the $2,592 he received in Employment Insurance that year, his total income for 2013 was $46,279.
14Ms. Smith has had steady income. For the years 2010 to 2012, her income was $117,879, $135,336, and $172,293 respectively. Her most recent Financial Statement shows her income for 2013 as $150,960.
Issue One: Mr. Angel’s Child Support Obligation from January 1, 2013, Forward
15Mr. Angel submits that his child support should be calculated using his income as determined per s. 16 of the Federal Child Support Guidelines (“Guidelines”), namely what would be his Line 150 income from his 2013 income tax return. Ms. Smith disagrees, and submits that an annual income of $151,810 should be imputed to Mr. Angel per subsections 19(1)(a) and (d) of the Guidelines, which she bases on the average of his incomes from 2010, 2011, and 2012.
Overview of the Law
16The threshold requirement in s. 17(4) of the Divorce Act and s. 14 of the Guidelines puts the onus on the person seeking a variation of a child support to establish a change in circumstances.
17The other relevant sections of the Guidelines in light of the parties’ positions are as follows:
Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
(1) The court may impute such an amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; …
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; …
18The parties also have provisions in the March 4, 2005 consent order dealing with child support, including the following paragraph:
4.5 Commencing July 1, 2006, the parties will also adjust retroactively, the child support paid for each prior 12 month period, from July to July, to reflect the parties’ incomes.
Analysis
19The ‘material change’ threshold was not argued by either party, understandably so as Mr. Angel’s income is markedly different than it was in 2005 and 2009. I find that there has been a material change in circumstances.
20Is imputation of income per s. 19 of the Guidelines appropriate in this case?
21I have outlined Mr. Angel’s job history above, marked by a descent from being a high-paid executive to one of more modest employment. Mr. Angel acknowledges that being a car salesman is not the ideal job for him, and he is still seeking employment in his field. Ms. Smith is critical of his efforts, pointing out that he has ‘only’ made 10 job applications in 2012, and 29 applications in 2013. However, it is not disputed that Mr. Angel did not quit any of his previous jobs, except for the second to last one to move to a different car dealership in an attempt to earn more income. With his job applications he is clearly making an effort to move back into his preferred field. I am unable to find that Mr. Angel is intentionally under-employed.
22Ms. Smith also argues per s. 19(1)(d) of the Guidelines that income can be imputed to Mr. Angel given that he lent or gave $30,000 to his mother when he had court-ordered obligations for support that he was not meeting. However, I find that this allegation does not meet the test in that subsection to allow me to impute income. It is a one-time event and the allegation is not that income was being diverted; rather it is that existing monies were not being prioritized to pay support.
23Given the above, I find that there is no basis for imputing income to Mr. Angel.
24Ms. Smith also argued that Mr. Angel is on track to earn more in 2014 than he did in 2013, and that his ongoing child support should be calculated on a projected income. I do not agree in the circumstances of this case. His current job is in sales, it is still new, and, as noted, the parties had previously agreed to deal with such differences by making retroactive adjustments. I therefore find that child support should be based on his expected Line 150 income for 2013, subject to later adjustments once the actual numbers for that year and this year are known, per para. 4.5 of the March 4, 2005 order.
25Given the above, effective January 1, 2013 and ongoing until further order or agreement, Mr. Angel shall pay $370 per month for child support based on his 2013 income of $46,279.
Issue Two: Section 7 Expenses from 2010 Forward
Additional Facts / Positions
26The March 4, 2005 consent order says at para. 4.8:
The parties will contribute proportionately to their incomes to Harrison’s section 7 expenses, aside from Harrison’s private school costs and child care expenses, provided that both parties consent to the expense, which consent will not be unreasonably withheld. Susan will provide ongoing disclosure of Harrison’s section 7 expenses, including private school costs, and daycare costs.
27The first mention of the s. 7 expenses is in para. 45 of Ms. Smith’s December 6, 2012 affidavit where she says “[t]he Respondent … has not contributed at all to Harrison’s special expenses such as ski lessons and equipment, school trips, nor his Kumon Math expenses.”
28Mr. Angel notes that the first time Ms. Smith presented him with any proof of s. 7 expenditures was at the Case Conference on December 13, 2012. Indeed her first Financial Statement, sworn on December 6, 2012, had no amounts entered in ‘Schedule C – Special or Extraordinary Expenses for Child(ren)’. Mr. Angel said that he had never been contacted previously and has not had the ability to consent to or dispute those expenses. He argued that most of the items Ms. Smith brought forward were not special or extraordinary in any event. For the years 2010 to 2012 his annual income averaged approximately $150,000 and hers averaged approximately $140,000. He maintained that at these income levels the expenses for sports, camps, school events, and the like, were assumed in the Guideline table calculations. He accepted the legitimacy of only the dental and tutoring as special expenses back to 2010, although his position was that as he was not consulted and as those expenses were only recently brought forward, his obligation should be calculated using current incomes.
29With respect to Mr. Angel’s comments about a lack of notice, Ms. Smith relied on one email thread that spanned from February 2 to April 20, 2012. It was for the summer of 2012 and although she mentioned three different camps and provided Mr. Angel with some information about the camps, nothing was said about costs or reimbursement. His response was “Ok next year Susan please talk to me before you book the camps” referring to scheduling, to which she replied “I apologize if you haven’t felt in the loop on the summer camps. I thought I had given you a heads up in January when I booked Olympia with Harrison’s friends …”
30Ms. Smith submitted a Financial Statement dated October 6, 2013 with a completed Schedule C. Along with the math tutoring and school tuition, she listed expenses for ski lessons, three summer camps, two terms of drama courses, braces, and swimming courses, attaching some receipts and noting the maximum available tax deductions. There was no other comment or explanation on these expenses in the accompanying affidavit or any evidence of a discussion with Mr. Angel relating to them. In her last Financial Statement filed, the Schedule C was similar, although it attached an estimate regarding braces. The Factums did not address many of these items.
Law
31Neither party cited any case-law. However, section 7 of the Guidelines was set out in their materials, and contains the test for special or extraordinary expenses. As a quick summary, each expense must meet the two-part test of being both necessary and reasonable. The special expenses that can be considered are listed, one of them being “extraordinary expenses for extracurricular activities” (s. 7(1)(f)). “Extraordinary expenses” is defined in part in sub-section (1.1): if the expense exceeds what the spouse requesting it can reasonably cover, it is extraordinary; if it does not, the expense can still be considered extraordinary upon a consideration of the five factors listed in 7(1.1)(b).
Analysis
32The parties in their consent order turned their minds to and dealt specifically with the major anticipated expenses for Harrison, namely his private school and daycare.
33Other than the Kumon/tutoring and dental expenses, which Mr. Angel has accepted, and the tuition expense dealt with separately below, I find that most of the expenses addressed by the parties in their factums, spanning the three years 2010 to 2012, are not extraordinary on their face. They are of the kind that would be incurred by the spouses as a matter of course, and would be reasonably expected to be covered from a combination of Ms. Smith’s income and the table support she would receive from Mr. Angel: $77 for uniform/lunch; $9.99 for scholarly books; $16 and $12.60 for school events; $290 for a school trip; $104 for athletic clothes; $165 and $55 for soccer; $40 for basketball; $55 for soccer; $234 for canoe club; and $225 for rowing clubs. I am unable to find that these are allowable s. 7 expenses in the circumstances of this case.
34Four of the bigger expenses were for camps: $242 for day camp (March 2010); $571.50 for basketball camp (July & August 2011); $745 for Olympia Sports Camp (July 2011); and $774 for Olympia Sports Camp (July of 2012). If the camps were to provide care for the child while Ms. Smith worked, they might have met the ‘child care expense’ category in s. 7(1)(a). However, there was no evidence provided along those lines, and, indeed, the 2009 order had a separate child care amount paid over twelve months. Ms. Smith did not provide evidence or argument as to why these expenses were either necessary in relation to the child’s best interests or reasonable. There is no evidence that she discussed the camp expenses with Mr. Angel and sought his consent. This was contrary to the expectations of the parties in the 2005 consent order. As such, I find that Mr. Angel should not have to bear a portion of those expenses: see Luftspring v. Luftspring, [2004] O.J. No. 1538 (C.A.), Park v. Thompson, 2005 14132 (ON CA), [2005] O.J. No. 1695 (Ont.C.A.), and Dover v. Timbers, [2012] O.J. No. 2457 (S.C.J.).
35As to the other more recent expenses noted in Ms. Smith’s last two Financial Statements, for similar reasons she has not established that these meet the tests. Other than being listed with proof of payment for some, there is no evidence of necessity or reasonableness, or that Mr. Angel’s consent had been sought. There was no evidence the orthodontic work had begun. I find that I am unable to make an order for payment regarding the Schedule C items in Ms. Smith’s latest Financial Statements.
36As noted, Mr. Angel has agreed that the 2010 to 2012 dental and tutoring expenses are legitimate. However, I cannot accept his argument that he should have to pay these based on his current income. The sharing of the expense is covered by s. 7(2) of the Guidelines:
- (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
37Per section 2 of the Guidelines, “income” means annual income determined under sections 15 to 20.
38If the parties are sharing the expense in proportion to their annual incomes, it would seem to me that the relevant time to look at the incomes is when the expense was incurred and when the sharing should have occurred. Child support is an ongoing obligation. I find that the obligation to contribute to the expense should be assessed in light of the circumstances at the time. To accept Mr. Angel’s proposition that they be assessed based on his lower income now would stray from one of the stated objectives in s. 1 of the Guidelines, which is to ensure consistent treatment of spouses and children who are in similar circumstances.
39I therefore find that as Mr. Angel earned $163,239 and Ms. Smith earned $117,879 in 2010, Mr. Angel is responsible for 58.07% of the combined dental and Turnbull Learning Centre costs ($11,529) for that year being $6,695.
40I find that as Mr. Angel earned $129,256 and Ms. Smith earned $135,336 in 2011, Mr. Angel is responsible for 48.85% of the combined dental costs of $170 for that year or $83.
41I find that as Mr. Angel earned $161,092 and Ms. Smith earned $172,293 in 2012, Mr. Angel is responsible for 48% of the Turnbull Learning Centre and Kumon costs ($4,690) for that year or $2,266.
Issue Three: Private School Costs
Additional Facts / Positions of the Parties
42The March 4, 2005 consent order states as follows:
4.2 The parties acknowledge that Harrison is in private school and will continue to attend private school. Each party shall pay one-half of the private school costs for Harrison and Jeffrey’s obligation to contribute to private school costs for Harrison will not, now or in the future, exceed nor, be less than 50% of these costs.
43Harrison has been going to the Turnbull private school since the 2004/2005 year. The tuition has risen from $12,446 at that time to $18,750 for 2013/2014. This is his last year at the school and Ms. Smith advised that the final tuition payment was made in 2013. It is not clear from the materials what, if any, arrears there are for past years. In the 2009 consent order Mr. Angel was ordered to continue making monthly payments based on one-half of the annual tuition at that time. Mr. Angel now seeks “[a]n Order for the parties to share the child’s private school costs in proportion to their incomes.”
44It is not disputed that Mr. Angel earned considerably more than Ms. Smith did from 2005 to 2009. The huge historic disparity in incomes can be quickly seen just by looking at the amounts set out in the 2005 and 2009 orders that are under review. Following that, for the years 2010 to 2012, Ms. Smith’s average income was approximately $142,000 and, despite his job instability, Mr. Angel still averaged a higher income of approximately $151,000 for those years. It follows that Mr. Angel is only seeking to avoid paying his one half share for the 2013/2014 year, or his half of $18,750. He submits that this payment would amount to a ‘transfer of wealth’ rather than child support.
45Ms. Smith submits that allowing Mr. Angel to avoid this obligation would create a very unfair result in that he has been relieved by the consent order of paying his proportionate share of this expense for many years when his income was significantly higher than hers.
Law
46Section 17 of the Divorce Act governs variation of support orders “or any provision thereof”. The relevant subsections related to this issue are as follows:
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
The “applicable guidelines” provision here is s. 7(2), quoted at para. [36] above.
Analysis
47Ms. Smith notes that the private school is important for Harrison, and he has special needs that it addresses. This is not disputed. Mr. Angel is not opposed to Harrison attending the school; he is only saying that he cannot afford to continue to contribute 50% of the expense. As such, I find that this provision in the 2005 order both directly and indirectly benefits the child, and that s. 17(6.2)(a) of the Act has been satisfied.
48The question then is whether pursuant to s. 17(6.2)(b) of the Act, my applying s. 7(2) of the Guidelines (proportional sharing) to this expense now would be inequitable.
49Mr. Angel argues that I should give significant consideration to what he is currently earning, and not consider what he was earning back to at the time of the 2005 consent order. He relies on two cases.
50MacKay v. Butcher (2001), 2001 NSCA 120, 21 R.F.L. (5th) 336 (N.S.C.A.) looked at s. 17(6.2)(b) of the Act in the context of table support where there had been a previous lump sum payment. It noted at para. 51:
In assessing “inequitablility” it is the payor’s current financial situation that is relevant, not the circumstances as they were at the time the “special provision” was made. There may be occasions, however, where the court will take into account the payor’s former financial circumstances.
This passage cannot be taken to mean that the court should ignore the “special provision” or its past effect, as that would be contrary to the plain wording of s. 17(6.2)(b). Indeed the court in that case went on in para. 53 to assess past circumstances in arriving at its decision:
The lump sum payment here, while a substantial single sum, does not remotely compare to that basic Guideline support. To require the Mr. Butcher now pay the Guideline sum would not, in my opinion, result in an amount of maintenance that is inequitable. It does not produce an overpayment taking into account the pre-paid lump sum.
51Mr. Angel also relies on Dickie v. Dickie (2001), 2001 28203 (ON SC), 17 R.F.L. (5th) 304 (Ont. S.C.J.). It was not an s. 17(6.2) case and I fail to see how it bears on this issue.
52Neither of the above cases, both dealing with table support, stands for the proposition that I am limited to only looking at current incomes. I find that I need to consider the past financial circumstances of the parties here in deciding whether my applying the “guiding principle” in s. 7(2) of the Guidelines to the tuition payment now would be inequitable given the special provision for an equal sharing.
53I cannot follow the ‘transfer of wealth’ argument Mr. Angel makes. We are dealing with an expense that has been incurred each year since 2005. He has kept far more of his earnings since that time as the beneficiary of the agreement/order that limited his contribution to 50%. It would be patently unfair, in my view, if in his very first and only year of being the significantly lower income earner, he obtains relief based on inequity when in the past Ms. Smith was left to shoulder one half of these expenses when she was the lower wage earner, at times by a large margin. Had it been calculated proportionally from the outset, Mr. Angel will still have paid significantly less in total towards this expense than he should have.
54I find on the facts that applying s. 7(2) of the Guidelines to the tuition expense would be inequitable given the special provision. I note that this is consistent with the analysis in MacKay v. Butcher, the difference being that no inequity was found on the facts there. As such, I dismiss Mr. Angel’s request to vary para. 4.2 of the 2005 order.
Issue Four: Request to Suspend Payment of Spousal Support Arrears
Additional Facts / Positions of the Parties
55Mr. Angel seeks an order suspending the payment of spousal support arrears to avoid a double payment as a result of his bankruptcy. As noted, pursuant to the bankruptcy order he still has to pay $18,500 before he can be discharged. The stated payment schedule is $500 per month. The first $1,500 will go to the Trustee, and the remaining amount will go to the Alberta Maintenance Enforcement Program (“AMEP”) for spousal support arrears. As he will then be paying spousal support arrears, Mr. Angel asks for a suspension of other enforcement on those same arrears until he has been discharged. He admits that no $500 monthly payments to the Trustee were made in 2013, despite the court order.
56Ms. Smith has provided documentation from AMEP showing that Mr. Angel also has not made any separate payments on spousal support arrears since January of 2013.
Law
57Mr. Angel relies on s. 17(1) of the Divorce Act which says that the court “…may make an order … suspending, prospectively or retroactively, (a) a support order or any provision thereof …”
58While that section gives me the authority to do what is requested, there is little legislative guidance. As to caselaw, Mr. Angel relies on Pipitone v. Pipitone (2000), 2000 49234 (ON SC), 8 R.F.L. (5th) 401 (Ont. S.C.J.). However, while a spousal support case, it does not deal with what factors the court should consider in granting the suspension sought here.
Analysis
59Even if Mr. Angel started making his payment to the Trustee now, nothing would go towards the spousal support arrears for three months. I cannot see the fairness of suspending enforcement of spousal support arrears for three months in deference to the Trustee’s payment.
60Mr. Angel’s request is to suspend enforcement of arrears for more than three years. I find that such an order is not appropriate. No payments have been made to either the Trustee or AMEP as of now for approximately one year. If I suspend payments to AMEP and therefore all enforcement for that length of time, I have no assurance that the payments to the Trustee will be made, and there is no guarantee Ms. Smith’s long overdue support will be addressed.
61I am not prepared to make the order requested as I do not find that it would be fair or reasonable in the circumstances. For those reasons, this request for relief is dismissed.
Issue Five: Request to Split Access Travel Costs Equally
Additional Facts / Positions of the Parties
62Mr. Angel lives in Calgary. Per the 2005 consent court order he currently pays for all the travel for access, which is for the most part airfare. He indicates that he has access with Harrison “about” three times per year and that the return airfare is approximately $1,000 per visit plus activities. He says that the access takes place over Christmas, the summer holidays, and the March break, times when airfares are generally higher in cost than usual. Mr. Angel argues in his Factum that his net annual income is $38,600, and from that he must pay $4,400 ongoing support per year (which corresponds to the order I have made above), $6,000 to the Trustee (which I note he has not been paying), s. 7 expenses, and his share of Harrison’s tuition (he says $1,890 per annum but it is actually higher given the above, although this is the last school year). He claims his own basic personal expenses are $24,420, leaving him with $1,890 per year to pay for the three trips.
63It has to be noted, however, that in his last Financial Statement his income and expenses and are close to balancing. This is despite some relatively high monthly expenses, such as a cell phone at $235, groceries and dining out at $722, and vacations at $250. Already included in those listed expenses is $250 per month for “Access costs (flight, hotel taxi)”.
64Ms. Smith maintains that Mr. Angel sees Harrison twice one year and three times in the next, for an average of 2.5 trips per year not three. Indeed, the order indicates that the parents alternate the March break. She says that even before the 2005 order Mr. Angel has always chosen to live and work in cities apart from Ottawa. Harrison has resided in Ottawa his whole life.
Law
65There are two possible ways to obtain relief for high access costs: as an adjustment to a child support order by way of a Guideline s. 10 undue hardship claim; or as part of a custody/access order, namely per s. 16(6) of the Divorce Act in this case: see Jamieson v. Jamieson (2005), 2005 NSSC 114, 232 N.S.R (2d) 345 (N.S.S.C.) at para. 55, and Morrone v. Morrone (2007), 44 R.F.L. (6th) 389 (Ont. S.C.J.) at paras. 26 and 44.
Analysis
66For the reasons below, I find that the relief sought here should have been pursued and assessed by way of an undue hardship claim. However, that was not the approach taken.
Undue Hardship
67No undue hardship claim has been made. As noted in Morrone v. Morrone, supra, at para. 31, the burden of proof is on Mr. Angel to show undue hardship if he is to obtain relief, and the threshold is a high one. Mr. Angel does not frame this request as an adjustment of child support, but rather he seeks an order that his access travel costs be shared equally. No evidence has been put forward regarding Guideline the test. His Financial Statements did not complete ‘Schedule B – Other Income Earners in the Home’, required when making such a claim. With no case presented, I find that I am unable to grant relief on this basis.
Variation of the Custody Order
68That ruling will come as no surprise, as Mr. Angel seems to be relying solely on s. 16(6) of the Divorce Act to support his request. Indeed, he provided a number of previously decided cases for me to consider in that regard. Before I can get there, however, section 17(5) of the Divorce Act has to be addressed:
17(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
69Per section 2(1) of the Act “custody order” means an order made under subsection 16(1), and that includes the access order here.
70I find that before I can consider varying the existing order, I must first be satisfied that a material change regarding access to Harrison has occurred relating to his best interests. Harrison has continued to live with his mother and have access with his father, who has continued to live away from him since before the 2005 order. There is no change being put forward relating directly to that access. The only change relates to the father’s income and finances.
71I would not rule out the possibility that in some cases an access parent’s financial situation might be considered “a change in the condition, means, needs or other circumstances of the child”. An example might be where the parent suffers an inability to exercise access. Here, Mr. Angel averages 2.5 visits per year, flight costs are about $1,000 per visit, and his latest Financial Statement has an ‘access costs’ expense line totaling $3,000 per year. There is no evidence that access has been missed, and the evidence does not establish that it will have to be missed if the relief is not granted.
72I am unable to find a material change in circumstances regarding access that affects Harrison’s best interests, and as such cannot grant Mr. Angel’s request that Ms. Smith pay one half of his travel costs pursuant to s. 16(6) of the Divorce Act.
Decision
73In summary of the above, I make the following orders:
(a) On consent, spousal support arrears are fixed as $38,843 as of December 31, 2012. There is no ongoing spousal support payable.
(b) On consent, child support arrears are fixed at zero as of December 31, 2012.
(c) Mr. Angel shall pay on going child support to Ms. Smith commencing January 1, 2013, in the amount of $370 per month based on his 2013 income of $46,279.
(d) Mr. Angel shall pay to Ms. Smith the sum of $9,044 as the arrears of Guideline section 7 expenses owing as of the date of this order. All future claims shall comply with para. 4.2 of the March 5, 2005 order, which remains in force. For clarity, the orthodontic future expense has not been dealt with in this order.
(e) Mr. Angel’s request to vary the requirement that he contribute to Harrison’s private school tuition at Turnbull on an equal basis is dismissed.
(f) Mr. Angel’s request to have the enforcement of spousal support arrears suspended is dismissed.
(g) Mr. Angel’s request for an order that Ms. Smith pay for one half of his access costs is dismissed.
(h) Except as varied by the above, the previous final orders remain in force.
74I note that the parties have had mixed success with respect to their positions, and as such I am not inclined to make an order for costs. However, if either still wishes to address me they can provide brief written submissions within thirty days.
Mr. Justice Timothy Minnema
RELEASED: March 24, 2014
COURT FILE NO.: FC-08-1664-1
DATE: 2014/03/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Susan Smith v. Jeffrey Angel
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Applicant without Counsel Martin Kenny as agent for Sean Jones, for the Respondent (Moving Party) Jeffrey Angel
ENDORSEMENT
MINNEMA J.
RELEASED: March 24, 2014
