CITATION: Albergaria v. Albergaria, 2016 ONSC 1666

COURT FILE NO.: 3791/10

DATE: 2016 03 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Elena Maria Albergaria

Applicant

– and –

Daniel Paulo Albergaria

Respondent

Chukwuma Chuks Oriuwa for the Applicant

Adam Black, for the Respondent

HEARD: February 11, 2016

REASONS FOR JUDGMENT

Trimble J.

1Elena Albergaria, the Applicant, brings this Motion to Change the Judgment of Coats J. of November16, 2012. Daniel Albergaria resists, and requests a review of spousal support under the Order, and a finding that Elena is no longer entitled to receive support.

2The trial of this Motion to Change, by agreement, proceeded on a written record.

3I dismiss Elena’s motion for two reasons. First, Elena’s Motion to Change, in reality, is a Motion to set aside the spousal and child support provisions of the Agreement they reached. She is unhappy with the bargain she reached, but there is no legal reason to set it aside. Second, there is no material change in circumstances, which, if known at the time of the Agreement and Order, would have led to a different result.

Procedural History:

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Procedural History

The dissolution of the Albergaria marriage was and continues to be contentious. Every bit of ground was bitterly fought over. Settlements were reached then broken, orders made then violated, ignored, and challenged. It has been the gift that keeps on giving. As Herold J. observed:

“The parties are either unwillingly, or quite possibly even constitutionally incapable of agreeing about anything; one or both, it is not clear to me at this stage who, is far more interested in scoring points, and being “right”, than in looking at the big picture and trying, at long last, to put the best interests of [the children] in the forefront. The only way, unfortunately, is to let the litigation play out, and let the chips fall where they must.”

a) Round 1

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Round 1

Elena brought her Application for Divorce in early 2010. Between then and Coats J.’s Order of November 16, 2012, there were eleven attendances at Court. The matter was placed on the trial list in March, 2011 then put over to the November, 2011 list, the week of January 20, and the week of November 15, 2012. Resolution came only on the eve of trial. The parties reached an agreement on custody and access of the two children on March 28, 2011. Coats J. incorporated the custody and access agreement into a final order.

6The custody and access agreement and Coats J.’s Order of March 28, 2011 did not hold. The parties continued to wrangle. After a long negotiation on the eve of trial, in which both parties had competent, experienced family counsel, they suspended their differences log enough to reach a settlement of all issues. Their Agreement was incorporated into Coats J.’s Order of November 16, 2012.

b) Round 2

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Round 2

Round two began in the fall of 2013. Daniel brought a Motion to Change Coats J.’s Final Order re joint custody. In 2014, Elena brought her Motion to Change the child and spousal support provisions of Coats J.’s Order.

8The parties’ approach to the termination of their union did not change. Between May, 2014 and February 11, 2016 when I heard Elena’s motion to change, there were ten attendances in Court between the two motions. Elena’s motion was on the trial list twice.

9Daniel’s motion was determined by LeMay J. on June 3, 2015. He dismissed it, but clarified ambiguities in the parenting agreement and dispute resolution mechanism incorporated into Coats J.’s Order. Daniel said that Elena had repudiated the agreement by failing to abide by the dispute resolution mechanism in the Agreement, and failed to follow counselling recommendations. Therefore, he wanted sole custody of the children.

10Because of ambiguities in the Agreement’s dispute resolution mechanism, LeMay J. did not find that Elena had repudiated the Agreement. However, he did find that Elena, by refusing to pay for her share of the mediation/arbitration process, was attempting to renegotiate the Agreement. He was critical of Elena, saying:

“To be clear, any further attempts by Elena to renegotiate the payment provisions of the agreement in her favour will be considered resiling from the agreement if she uses a renegotiation of the payment provisions as a reason to delay mediation or arbitration” [Para. 29].

11LeMay J. pointed out that while Daniel wishes to move matters along, Elena wants to consider everything, in every aspect, which frustrates decisions being made and actions taken. For example, he faulted Elena for cancelled counselling for the children at ROCK in 2013. He said at paragraph 45:

"As I noted above, I do not have sufficient information to determine who caused the cancellation of the counselling services in 2013. Two points should be made, however. First, the evidence I do have suggests that, if blame is to accrue for this issue, it rests with Elena and not Daniel as it was her (sic) who cancelled the sessions because she had a belief that Daniel had met with staff without her presence. Second, Elena’s constant references to this issue are exactly the sort of conduct that Herold J described in his May 1, 2014 endorsement as “scoring points, and being right” instead of looking at the best interests of the children.”

12Elena persisted in her uncooperative behaviour throughout 2014, such that the children’s counselling did not recommence until early 2015. She continued to blame Daniel and his conduct in 2013 for the delay. As LeMay J. said at para 49, “It leads almost inescapably to the conclusion that Elena is deliberately delaying counselling. It also raises questions about the genuineness of Elena’s suggesting that counselling take place in May of 2014, and the genuineness of the other issues that she raised about why counselling could not proceed promptly.”

13LeMay J. did not reserve his criticism for Elena alone. He criticized both parents for discussing litigation with the children.

14Notwithstanding that Daniel’s Motion to Change was dismissed, LeMay J. awarded him costs in part because he had modest success on some aspects of his motion, and because of the way Elena had conducted herself.

Coats J.’s November 16, 2012 Order re Child and Spousal Support and Background Information:

a) Coats J.’s Order

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Coats J.’s November 16, 2012 Order and Background Information

Coats J.’s order was a consent order which incorporated an Agreement reached between the parties on all issues, including custody, access, child and spousal support, and parenting. The parties agree that this Agreement arose from a long negotiation, for which both were represented by experienced family law counsel.

16The Agreement and Order provided for child support payable at $880/month and spousal support at $630/month based on Elena’s attributed income of $21,000 and Daniel’s 2012 income of $80,425. Both levels of support were fixed until August 31, 2014. Thereafter, child support would be adjusted annually based on Daniel’s actual income and the greater of $21,000 or Elena’s actual income. Spousal support would be adjusted annually based on the lower of Daniel’s actual income or $82,000 and the greater of $21,000 or Elena’s actual income.

17At the time of the Agreement, Elena was not employed. She had just finished training as an educational assistant, and was looking for work in that field. Daniel was a firefighter, earning $80,425. His wage had been frozen since 2010 when the Toronto Firefighters’ contract with the City of Toronto expired.

18In 2013, after arbitration under section 50 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, a new collective agreement was put in place retroactive to the end of the contract in 2010. Pursuant to the new collective agreement, Daniel received $20,513.84 in September, 2013, topping up his wages from 2010-2013, apportioned as follows:

2010 $1,923.02

2011 $4,817.85

2012 $7,217.11

2013 $6,555.86

19Daniel declared the whole payment as income in 2013.

20The parties incomes are as follows:

Year	Elena	Daniel1
2010	21,0002	80,230
2011	21,000	81,220
2012	21,000	82,771
2013	24,428	114,1133
2014	33,496	97,930
2015	31,547	94,509
2016 (est)4	43,7345	95,5096

b) Elena’s position

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Elena’s Position

Elena raised a number of alleged material changes. In oral argument she limited the material changes to two: the lump sum that Daniel received in 2013, and that his increases since 2012 have been far above the norm. Tied to this, Elena alleges that Daniel withheld information about his wages, namely with respect to the arbitration process ongoing at the time of the negotiation for the Agreement that might lead to greater income than that known at the time of the Agreement.

22Elena says that, with respect to child support, the lump sum payment Daniel received in 2013 is a material change, which if known at the time the Agreement was made, would have resulted in a different Agreement and Order. Therefore, child support should be re-calculated from 2011 onward.

23With respect to spousal support, the lump sum is a material change which opens up spousal support from 2010 onward, and Daniel’s increases after September 1, 2014 are so out of the ordinary that the cap on his wages for spousal support calculation purposes should be removed for spousal support in the future.

24She argued two other changes: Daniel’s failure to pursue a review of support when asked, and tutoring needs for one of the children.

c) Daniel’s Position

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Daniel’s Position

Daniel says that a deal is a deal, especially one so hard fought. The Court should not set it aside.

26In any event, Daniel says that there is no material change. He withheld no information. Elena knew from 2010 onward that his wages were frozen and that the contract between the City of Toronto and its firefighters was in arbitration. He had no idea when the arbitration would end or what the result would be. Even if the changed income was a material change, it would not have altered support materially. In other words, the change in his income would not have made a material difference in child or spousal support.

27Daniel says that child and spousal support were fixed until September, 2014, in part, because of the property settlement in the Agreement. Since those parts are interrelated, one cannot change the fixed time period or support required. In any event, the parties agreed that material change was available as a reason to change support only after September 1, 2014.

28Finally, Daniel says that he has continued to pay child and spousal support at the amounts contained in the Agreement and Order. Because of Elena’s increased income, Daniel claims that he has overpaid spousal and child support by $6,678. He says that going forward, there should be no support payable to Elena given that she is earning what she is capable of earning; she is back on her feet.

29With respect to one child’s tutoring needs, Daniel says that this is covered by the Agreement and its dispute resolution mechanisms. With respect to the “failure” to deal with adjusting support after September, 2014, the issue was in litigation by that time.

Analysis:

a) Agreement

a. The Law

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Analysis

Section 54 of the Family Law Act, R.S.O. 1990, c. F.3, permits two persons who are separating to enter into a separation agreement. Under section 56(1), the court may set aside or disregard any portion of a domestic contract if it is in the best interests of the child, or under subsection (4) if one party has failed to disclose assets, debts or liabilities in existence when the contract was entered into, of one party did not understand the nature or consequences of the domestic contract, or otherwise under the law of contract. Section 33(4) permits the Court to set aside a domestic contract where it is unconscionable.

31Section 15.2(4)(c) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides that in making a final or interim spousal support order, the court shall take into consideration, the means, needs and other circumstances of each spouse, including any agreement or arrangement relating to the support of either spouse.

32In Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, Hartshorne v. Hartshorne, 2004 SCC 22, and LMP v. LS, 2011 SCC 64, [2011] S.C.J. No. 64, the Supreme Court of Canada discussed the deference that domestic contracts should be shown where domestic contracts deal with support. Parties should be encouraged to resolve their obligations at the end of their marriage. Courts should be reluctant to second guess arrangements on which the parties agreed, and reasonably rely upon. Separation agreements, as the Supreme Court said in Hartshorne, deal with compromises made by the parties, to existing rights and obligations, in order to achieve a resolution. The onus is on the party seeking to set aside the contract or a provision (see: Danylkiw v. Danylkiw, 2004 CanLII 34838 (ON CA), [2004] O.J. No. 4411 (C.A.)).

33The analysis is two step: does the party seeking to set aside the contract or a provision demonstrate that one of the subsections of 56(4) have been triggered, and is it inappropriate for the court to exercise its discretion to aside the contract or provision (see: LeVan v. LeVan, [2006] O.J. No. 358 (S.C.J.), aff’d 2008 ONCA 388, [2008] O.J. No. 1905 (C.A.), leave to appeal refused [2008] S.C.C.A. No. 331 (SCC) and Virc v. Blair, 2014 ONCA 392, [2014] O.J. no. 2301 (C.A.)). In exercising its discretion in setting aside a domestic contract, the court should look at a number of factors including whether there was concealment of information or material misrepresentation, whether the petitioning party failed to pursue full disclosure or moved expeditiously to have the agreement set aside, whether the petitioning party received substantial benefits under the contract or has fulfilled his/her obligations under the contract and whether material misrepresentation induced the petitioning party to enter the agreement (see Dochuk v. Dochuk, 1999 CanLII 14971 (ON SC), [1999] O.J. No. 363 (Gen. Div.).

34Justice Perkins, in Rosenberg v. Minster, 2014 ONSC 845, held at paragraph 68-69 that under section 56(1) of the Family Law Act, the Court may set aside an arbitration agreement if it is in the best interests of the child(ren) to do so. An arbitration agreement is a specific form of domestic contract. Justice Perkins held, however, that while the Court can set aside an arbitration agreement where it is in the best interests of the child(ren) to do so, it should do so cautiously (especially where the arbitrator has particular subject matter expertise), and should do so (however cautiously) on evidence supplied by the parties. In deciding as he did, Justice Perkins extends a line of cases counselling restraint in setting aside the parties’ agreements (see Wainright v. Wainright, 2012 ONSC 2686; Lenny v. Lenny (1996), 1996 CanLII 10601 (AB KB), 194 A.R. 50 (Alta. Q.B.); Thomson v. Thomson, 2012 ONCJ 141; E.(E.) v. F.(F.), 2007 ONCJ 456).

b. Application

35In this case, there is no basis for setting aside the support provisions of the agreement. Elena raises only the failure to disclose, at the time of the Agreement’s signing, that the firefighters were in arbitration and that Daniel was likely to receive a lump sum once the arbitration was finished. Elena knew at the time of separation that Daniel’s income was frozen because the firefighters were working without a contract. She and her lawyer knew or ought to have known that under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, firefighters’ contracts were subject to arbitration failing an agreement. This is a matter of statute. I accept Daniel’s evidence that he had no way of knowing what the outcome would be of the arbitration.

36There is no reason to set aside the support provisions of the Agreement or Order because of any misrepresentation.

37I also see do not see that it is in the best interests of the children to set aside the child support provisions of the Agreement and Order. Support for the children is according to the Guidelines, as is the calculation of future support.

b) Material Change

a. Intertwined Obligations

i. The Law

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Material Change

Where property division, child support, and child support provisions in an Agreement are intertwined, it is not appropriate to change only one aspect of them (see: Church v. Church, 2003 CanLII 1942 (ON SC), [2003] O.J. No. 2040 (SCJ) at para. 40.

ii. Application

39Child and spousal support in the parties’ Agreement are intertwined by their nature. Elena seeks increased spousal support in excess of the Guidelines, which would result in an underpayment of child support. In any event, it appears from the face of the Agreement and Order, that the parties settlement of property claims was also intertwined with support(and debts) were not shared equally.

b. Material Change re Child Support

i. The Law

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Material Change re Child Support

Under s. 17(4) of the Divorce Act, a Court may alter a child support order where a change in circumstances provided for in the Guidelines has come about since the order was made. Under subsection (4.1) a spousal support order may be varied where there has been a change in the condition, means, needs or other circumstance of either former spouse since the order was made. The change under either subsection, in order to succeed on a Motion to Change, must be one that if known at the time the order was made would likely have resulted in a different order (see Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670).

41In Willick at paragraphs 91 to 108 (approved in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775) the Court set out a two-step analysis in order to determine whether there should be a variation in an order for child support. First, the variation should be justified. Second, the Court must look at the extent of the variation.

42The first step (is the variation justified?) has itself two parts. First, the Court must determine if there has been a change in the condition, means, needs or other circumstances of the parties. Second, is the change “sufficient”? A minimal change is not a “sufficient” change. A small change may be “sufficient” to meet the threshold for a change if in the original order the children’s needs are inadequately or just barely being met. A change, to be sufficient, must be seen in the context of the parties overall financial position.

43Once the change is justified, the court must address the extent of the variation. It must determine what, if any, change is required. In other words, given the change, are the arrangements for the children under the existing order still reasonable, in light of the financial means of both parents.

ii Application

44Elena argues that the only change in circumstances for child support is the lump sum payment Daniel received for past wages in 2013. Daniel says that since that income was declared in 2013, before the date on which the parties agreed that child support could be revisited.

45Elena fails to establish that the lump sum payment is a material change.

46At the time the Agreement was negotiated, Elena was aware that Daniel’s income was frozen as the contract with the City of Toronto had expired. The mediation/arbitration provisions affecting firefighters are contained in a public statute. Elena, through her lawyer, knew or reasonably ought to have known that the City and the Union would negotiate, that if negotiations failed the parties would arbitrate. She knew or reasonably ought to have known when she entered into the Agreement in 2012 that it was possible that either the negotiation or subsequent arbitration might result in a change in Daniel’s remuneration for the years between the expiry of the contract in 2010 and the finalization of the new contract in 2013. Therefore, knowing of this possibility, it cannot be said that the change that came about was unknown at the time the Agreement was entered into.

c. Material Change re Spousal Support

i. The Law

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Material Change re Spousal Support

The Supreme Court of Canada held in Hickey v. Hickey 1999 CanLII 691 (SCC), [1999] S.C.J. No. 9, that in determining whether there has been material change sufficient to vary a spousal support award, the court must be satisfied that there has been a material change in the conditions, means, needs or circumstances of one or the other spouses, which if known, would have resulted in a different order. That change cannot be trivial. Once that threshold is met, the Court must look at the objectives set out in s. 17(7) of the Divorce Act to determine whether a change should be made, and if so, the extent of the change.

ii. Application re Spousal Support, 2010-2013

48For the same reasons expressed in the section on child support, there is no material change that would affect spousal support in 2010 and 2013.

iii. Application re Spousal Support, September 1, 2014 onward

49Elena has failed to establish that there has been a material change in circumstances in the period following September 1, 2014. I say this for a couple of reasons.

50First, Elena says that the increases Daniel received after the review period are far in excess of what was contemplated at the time of the Agreement, or the norm. She has led no evidence of this.

51Second, the thrust of Elena’s argument is that she made a bad bargain in 2012, and now seeks to change it. As indicated already, the parties negotiated the Agreement over an extended period of time. They fought tooth and nail. They had experienced family law counsel. They entered the agreement well advised, fully informed, and with their eyes wide open. The Agreement stipulates that support was to be paid at the mid to low end of the range. It could be triggered by a change in specified changes (see para. 25 Minutes of Settlement). Any review of spousal support would be calculated on the greater of Elena’s income or $21,000 and the lesser of Daniel’s actual income or $82,000 (see para. 20, Minutes of Settlement and para. 17 of Coats J.’s Order).

52I see no reason in law to set aside the spousal support provisions of the Agreement, or to hold that there is a material change that warrants altering the spousal support provisions of Coats J.’s Order.

d. Material Change re Failure to Review Support

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Material Change re Failure to Review Support

Elena alleges that Daniel breached the Agreement by refusing to engage in a review. I disagree. Daniel refused Elena’s overtures to review, which began in May, 2014. The purpose of the support standstill agreement was to allow these two warring spouses to disengage. Once discussion began, they were interrupted by the absence of counsel. After that, the Motions to Change were in full swing. Daniel chose to rely on para. 27 of the Minutes of Settlement which provide that until spousal support is adjusted by the Court or Agreement, Daniel is to pay based on the most recent Agreement, which is the Agreement entered into in 2012.

e. Material Change re Failure to Agree on Tutoring

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Material Change re Failure to Agree on Tutoring

Elena argues that Daniel has failed to agree re tutoring for one of the children. If this is so, it is not a material change. Rather, it is a parenting issue subject to the dispute resolution provisions of the Agreement.

Costs

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Costs

Daniel has been wholly successful in this motion. He is entitled to his costs. I will receive submissions from the parties on the quantum of costs. Daniel’s are to be served and filed by March 28, 2014 and Elena’s served and filed two weeks after that.

Trimble J.

Footnotes

1. 1Actual income, without accrual of $21,512 to earned year.
2. 2$21,000 is attributed per Agreement.
3. 3Includes $93,601 regular pay, and $20,512 top up paid in September, 2013. Daniel says it should be $107,559.
4. 4According to Daniel.
5. 5Elena says that her 2016 income should be approximately $33,000 and that this income is the full time salary.
6. 6Daniel expects that his 2016 income will be approximately the same as in 2015.