Smith v. Smith, 2015 ONSC 772

COURT FILE NO.: D21758/09

DATE: 2015-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Cheryl Ann Smith

Applicant

• and -

Scott Talbot Smith

Respondent

Self-represented Applicant

Steven L. Nagy, Counsel for the Respondent

HEARD: January 26-27, 2015

REASONS FOR JUDGMENT

Introduction

1This is a motion by a husband to vary a divorce order by requiring his wife to pay to him increased support for their son and to require her to pay her proportionate share of his tuition to attend a community college. The wife claims arrears of spousal support and the cost of medical prescriptions. The wife was self-represented. The husband was represented by Mr. S. Nagy.

The Parties

2Scott Smith (Scott) was born on May 28, 1966. He is 48. Cheryl Smith (Cheryl) was born on March 28, 1968. She is 46. Scott and Cheryl were married on February 14, 2000. Cheryl brought two children into the marriage – Douglas Smith (Douglas) born May 4, 1994, age 20 and William Smith (William) born August 23, 1989, age 25. Scott adopted both children.

The Evidence

3The only witnesses were Scott and Cheryl. The parties separated in April, 2007. Scott lives in the house that the parties occupied when they were married. Cheryl has often resided with her mother in Niagara Falls, but has also lived in different places, all in the Niagara Region or not greatly distant from it.

4Douglas was 13 at the time of the separation. There has been no communication between Douglas and his mother since the separation. Both Scott and Cheryl testified that they understood that this was because Douglas wanted no contact with his mother. He has resided with Scott since the separation. William was 18 at the time of the separation. He was partly living on his own when his parents separated. He has frequently lived on his own since the separation, but he and his mother have always communicated. He is presently living with Cheryl.

5The parties each retained lawyers. Cheryl’s lawyer issued a Notice of Application on her behalf on January 7, 2009. Scott’s lawyer filed an Answer dated February 6, 2009, on his behalf. There was a case conference on June 18, 2009. There was a settlement conference on September 8, 2009 at which time, on consent, the Office of the Children’s Lawyer was appointed and the settlement conference was adjourned to October 26, 2009. On that date the case was ordered to be put on an Assignment Court on November 10, 2009. At the Assignment Court the case was set for trial to commence on June 14, 2010, with an estimated time of 3 days. The parties entered into Minutes of Settlement dated June 14, 2010. These minutes were incorporated into the Divorce Order of Justice Tucker dated June 22, 2010.

6The Divorce Order provided for the following:

1. Scott shall have custody of Douglas, and Cheryl to have reasonable access to him in accordance with his wishes.

2. Cheryl shall pay to Scott support for Douglas in the amount of $163 per month given an “estimated income” for her of $18,900 for 2010 based on the child support guidelines.

3. Scott and Cheryl shall contribute to the special and extraordinary expenses of Douglas in accordance with s. 7 of the Child Support Guidelines.

4. Scott shall pay support to Cheryl in the amount of $347 on the first day of each month for 36 months.

5. Scott shall designate Cheryl as beneficiary of any group benefits available to him through his employment until July 31, 2013.

6. The parties shall withdraw from the enforcement provisions of the Family Responsibility Office.

7. Scott shall provide Cheryl with 36 post-dated cheques of $184, being the difference between the spousal support which Scott owed Cheryl and the child support which Cheryl owed Scott.

8. Each party shall provide the other with current income information annually, 30 days after the date of the order. (i.e. July 22).

9. Scott shall pay to Cheryl $38,000 for arrears of support, costs and equalization of net family property.

7Scott married Susan Smith on September 13, 2013. Scott has lived with her for 5 years. There are 6 children living with them – 4 of 5 whom Susan brought into the marriage from a previous marriage, 1 of their own and Douglas. The children living with them are ages 20, 16, 13, 12, 7 and 3. Susan is a registered nurse. She has not worked for 6 years in her profession. She has a marketing business which produces about $4,000 per year. She is not currently otherwise employed outside their home.

8Scott is a heating and air conditioning mechanic. At the time of the divorce Scott was working for the Buffalo and Fort Erie Public Bridge Authority. In February, 2013 he changed his employment to Johnson Controls, at a substantially increased income. Scott’s income for employment purposes in 2012 and 2013 is as follows:

Employment WSIB Total

2012 $48,068 $12,213 $ 60,281

2013 $106,166 $ 6,624 $112,790

His income to January 24, 2005, excluding expenses is $8,499.29 per month. By my calculations, if he continues to earn income at this rate throughout 2015, he will have an income for 2015 of $129,260.04.

9Cheryl has had a heart condition from at least the time of the separation. She had a serious operation on her heart on or about July 30, 2014 and another less serious operation on her heart in November, 2014.

10Cheryl left school in Grade 7. She was a stay at home mother for much of the 6 ½ year marriage. When she has been able, she has a history of working in a factory which she found adversely affected her health and then as a cook at restaurants. She has been paid at minimum wage. She has received Ontario Works since November, 2014. She receives $748 per month. This is determined as follows:

Basic needs $280

Shelter $376

Employment Expense $ 92

Total: $748

Her basic monthly expenses include the following:

Rent $ 850

Hydro $ 200

Gas $ 150

Total: $1,200

This does not include food, TV and car expenses. She is living with William, who contributes what he can.

11Cheryl is actively looking for work as a cook. She wants to work and she is required to look for work by her social worker at Ontario Works. She has recorded, on her cell phone, many applications for employment that she has made.

12Cheryl’s income for support purposes in 2012 and 2013 is as follows:

Employment EI Total

2012 $28,476 $28,476

2013 $11,124.43 $ 6,803 $17,927

13Cheryl testified that Scott gave her the 36 post-dated cheques for $184 each, referred to in the Divorce Order. She placed these cheques with a Toronto Dominion bank branch in Wellandport, where she has her account. She gave the bank instructions to deposit each of the cheques in her bank account when they became due. They did this until March 1, 2013.

14She testified that Scott stopped payment on the cheques for April 1, May 1, June 1 and July 1, 2013, which amounts to a total of $736. She presented an email that Scott sent to her dated March 28, 2012, in which he threatened to cancel the post dated cheques. She presented another undated email from Scott to her, in which he advised her that he had cancelled the post dated cheques and requested that she return the remaining cheques to him. She presented documents from the bank in Wellandport, including the cheque dated April 1, 2013 signed by Scott, drawn on the Meridian Credit Union which is Scott’s bank, to confirm that he had stopped payment on that cheque. She testified that she went to her bank and obtained from the bank the cheques dated May 1, June 1 and July 1, 2013, that she had place with them. She presented these in court. They were all signed by Scott and drawn on his account at the Meridian Credit Union. They were entered as exhibits. Scott denied that he had stopped payment on the cheques. Clearly his evidence is false.

15The Divorce Order required Scott to keep Cheryl covered on his group benefits available to him through his employment until July 31, 2013. He did this until he commenced employment with Johnson Controls in February, 2013. After this he was unable to do so because the group benefits plan at Johnson Controls would not cover divorced spouses of employees. At least prior to the operation in July, 2014, Cheryl required prescription medications to manage her heart condition at a cost to her of $1,126.11 per month. She also needed 2 leg braces at a cost of $3,200 and orthotics at a cost of $1,000, as a result of arthritis. She was not able to buy these items or pay for her drug prescriptions after she was no longer covered under Scott’s benefit plan from February, 2013. Her prescription drug expenses are now paid through Ontario Works. She requests an order that Scott pay her medical prescriptions and further spousal support.

16Douglas is attending Mohawk College in Hamilton where he is taking a 4 year program in electrical engineering. He drives daily to Hamilton. He is also working at 2 jobs for 27 hours per week. Scott’s tuition for Mohawk College in 2013 was $8,785. He had prescription drug expenses in February 2013 for treatment of an ADHD disorder in the amount of $366.85 for a total of $9,924.41. For child support purposes, in 2012 Scott’s income is 70% and Cheryl’s income is 30% of their joint income.

17Cheryl’s income in 2012 was $28,476. Applying the Child Support Guidelines, this would require Cheryl to pay support for 1 child at the rate of $232 per month. The spousal support order for 36 months is $347 per month. This would result in a set-off of $115 per month, rather than the set off of $184 per month which was ordered. Scott seeks an adjustment of the amount paid by Cheryl to him for 2013 based on these figures to July 2013. Assuming that he had paid $184 per month, this would result in an overpayment by him of 7 payments of $69, being the difference between $184 and $115. He submits that for the remainder of 2013 Cheryl should have paid to him $232 per month for child support for Douglas.

18Cheryl’s 2013 income was $17,927. The amount of child support to be paid for 1 child on this income is $141. Scott submits that Cheryl should have been paying child support to him for Douglas at this amount for 2014. This would result in total child support arrears for 2013 of $1,643 and for 2014 of $1,692 for total child support arrears of $3,335. The total amount of tuition expenses and drug expenses for Douglas for 2013 is $9,924.41. Implicit in Scott’s evidence is that he has paid the total amount. Scott submits he should be responsible for 70% of this amount and Cheryl should be responsible for 30%. This would result in Cheryl owing Scott $2,977.12 for the special and extraordinary expenses for Douglas, which with the child support arrears of $3,335 would result in Cheryl owing Scott $6,312.32. Scott asks the court to impute an income to Cheryl for 2015 of $20,000. This would require Scott to pay to Cheryl child support in accordance with the Guidelines of $160 per month.

19Scott seeks an order varying the Divorce order as follows:

1. That the Divorce Order of Justice Tucker dated June 22, 2010 be amended to require Cheryl to pay support to Scott, pursuant to the Child Support Guidelines, based on an imputed income of $20,000 in the amount of $160 per month.

2. That Cheryl pay to Scott arrears in child support and special and extraordinary expenses of $6,312.32, as at December 31, 2014, payable at the rate of $200 per month.

Analysis

20The decision of the Supreme Court of Canada in the judgment of Justice Bastarache in D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 S.C.R. 231 is the seminal case on the variation of support orders and claims of retroactive support. Justice Bastarache stated the following:

65 In my view, a court order awarding a certain amount of child support must be considered presumptively valid. This presumption is necessary not only to maintain the certainty promised by a court order, but also to maintain respect for the legal system itself. It is inappropriate for a court, just as it is inappropriate for a parent, to assume that a previously ordered award is invalid.

66 The presumption that a court order is valid, however, is not absolute…. Thus, where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations.

99 … At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.

21In Farden v. Farden, 1993 CanLII 2570 (BC SC), [1993] B.C.J. No. 1315, at issue was the duty on a father to contribute to the post-secondary education costs of a 19 year old boy, who without good reason, refused to see him. One of the factors that Master Joyce thought relevant was the following:

… at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

He relied on Law v. Law (19860, 1986 CanLII 6291 (ON SC), 2 R.F.L. (3d) 458, a decision of the late Justice Fleury who sat for many years in the court house in Welland where I am now who stated at p. 462 the following:

... It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child's neglect of his or her filial duties.

(p.5 of QL version of Farden)

22Cheryl did not complete grade school. She can only do manual labour at minimum wage. She has experienced serious health problems. She has been off work since the end of July, 2014. She believes that she can work as a cook. She wants to work. She is actively looking for work. She will need some time to adjust to the demands of working again – “work hardening” time in that expressive phrase found in some union contracts. She is estranged from Douglas. The only evidence that I have of the reason for this is from both parties that Douglas does not wish to see her.

23Scott is a much physically stronger person than is Cheryl. He has a substantial capacity to produce income. When he changed employers in February, 2013, his income more than doubled from about $50,000 to over $100,000. Because of this, he does not seek a contribution from Cheryl for the special and extraordinary expenses of Douglas since the time that he commenced his new employment.

24In June of 2010, on the eve of trial, the parties entered into a settlement. They were each represented by a lawyer. A lawyer from the Office of the Children’s Lawyer was also present. The marriage lasted 6 ½ years. The settlement considers custody and access in relation to Douglas, child support, spousal support, costs and division of property. I must assume that the lawyers advised their clients to enter into the settlement, taking into account many factors. I must also assume that the clients expected it to be permanent.

25The Regulations establishing Federal Child Support Guidelines state the following:

19(1) The court may impute such amount of income to a 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 or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;

26Cheryl wants to work. She has done everything that she can to obtain work. She does not like being dependent on Ontario Works. The reason that she is unemployed is that she has been unable to find work. She is not “intentionally underemployed or unemployed”.

27A Divorce Order can be varied to increase the amount of child support to be paid only when there is a “material change” in circumstances. Scott submits that Cheryl’s increase in income from her “estimated” income of $18,900 in 2010 to her employment income in 2012 of $28,476 is a material change in circumstances which would support an increase in the child support that she should pay to him for Douglas. Her income in 2013 consisted of employment income of $11,124.43 and employment insurance of $6,803, for a total of $17,927. This is about $1,000 less than her estimated income in 2010. Her income for 2013 is not in evidence. It would consist of whatever she could earn at minimum wage as a cook with her heart condition. Her income for 2014 is also not in evidence. It would consist of whatever she could make at minimum wage as a cook from January to July and then employment insurance as long as she was able to collect it and then Ontario Works. Taking a “holistic” approach, I find that there has not been a material change in circumstances that should result in an increase of the child support that Cheryl should pay to Scott for the support of Douglas.

28Scott turned 18 on May 4, 2012. The evidence is that he is living with his father, who has a substantial income, that he is working 2 jobs, that he has attended Mohawk College in Hamilton since September, 2012 and that he has refused to communicate with his mother since his parents separated in 2007. I find that Cheryl’s legal obligation to support Scott ended when he turned 18 on May 4, 2012.

29Scott did keep Cheryl covered under his group benefits available to him through his employment until February, 2013, after which he was unable to do so as a result of his change of employment. I find that Cheryl is bound by the Minutes of Settlement, as is Scott.

Result

301. Scott’s application is dismissed.

2. Scott shall pay to Cheryl arrears of spousal support fixed at $776 to be enforced by the Family Responsibility Office. The balance of Cheryl’s claims set out in her Response to Motion to Change are dismissed.

Success has been divided. There will be no order as to costs.

31The Local Registrar’s Office, following their usual practice, should assist Cheryl in having the order issued and entered and filed with the Family Responsibility Office.

P.B. Hambly J.