Walsh v. Davidson, 2016 ONSC 7318

CITATION: Walsh v. Davidson, 2016 ONSC 7318

OSHAWA COURT FILE NO.: FC-11-1314-01

DATE: 20161123

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Amber Walsh

Applicant

– and –

Terence Davidson

Respondent

Mark S. Borden, for the Applicant

Self-Represented

HEARD: November 15, 2016

REASONS FOR DECISON

CHARNEY J.:

Introduction

1This is a motion by the respondent father to change the final consent order of Rowsell J. dated April 8, 2013 (the final order). The motion was originally filed on May 22, 2015. The motion sought to change the order to expand the father’s access during the Christmas and summer vacations, reduce the father’s child support and terminate spousal support being paid to the applicant mother.

Background Facts

2The parties were married on May 24, 2004 and separated on May 4, 2011. They have three children born in March 2005, October 2006 and May 2009.

3In the final order the parties agreed to the following terms that are relevant to this motion:

a) The mother and father have joint custody, the childrens’ primary residence remaining with the mother.

b) The father will have access on an alternating week basis from Thursday afternoon until Sunday evening at either 6:00 or 8:30 p.m. (alternating).

c) The father will have two non-consecutive weeks with the children in the summer vacation.

d) The mother will have the children on Christmas Eve and Christmas Day until noon, the father will have the children from noon on Christmas Day until Boxing Day at 6:00 p.m. The remaining time of the two week Christmas break will be divided with the mother having the first week and the father having the second week.

e) The father shall pay child support in the amount of $2,069.00 commencing April 1, 2013, based upon his prior year’s line 150 income, to be adjusted effective June 1st of each year commencing in 2014.

f) The father shall pay the mother spousal support in the amount of $1,000.00 per month commencing April 1, 2013 and ending on December 31, 2016. On December 31, 2016, spousal support ends forever. Spousal support shall be adjusted every June 1, commencing in 2014. In the event that the father’s income increases/decreases, spousal support shall be adjusted upward/downward by the percentage of the increase/decrease in the father’s prior year’s line 150 income as reported to CRA.

4On March 23, 2016 Nicholson J. held a settlement conference in which he ordered that the father’s motion to change should proceed as a focused hearing to determine whether a material change in circumstances had occurred since the final order to justify a variation of child support and/or spousal support and if so what is the proper amount of child support and spousal support. The mother had also brought a motion to be permitted to move to Kingston, Ontario with the children, but this motion was later abandoned.

5The father’s motion to change was adjourned at the request of the mother from July 7, 2016 and was heard by me on November 14 and 15, 2016.

6At the hearing, the parties were able to resolve the issue relating to summer vacation and Christmas vacation access for the father. The parties agreed to amend the final order so that the parties would equally share the summer vacation and would alternately share the division of Christmas Eve/Christmas Day. The mother takes the position that this agreement completely disposes of the only access issue raised in the father’s notice of motion. The father takes the position that he is still seeking increased access or “shared parenting” so that he can have the children at least 40% of the time.

Motion to Change

7It is well settled that a party seeking to vary a final order must establish that there has been a material change of circumstances since the making of the prior order. In P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819, the Supreme Court of Canada stated at para. 25:

Under s. 17(4.1) of the Divorce Act, the moving party must establish that there has been a material change of circumstances since the making of the prior order or variation … To be material, a change must be one which, if known at the time, would likely have resulted in different terms to the existing order. On an application to vary, the court should consider the terms of the order and the circumstances of the parties at the time the order was made to determine whether a particular change is material. The existing order is deemed to have been correct and only if the requirements of s. 17 of the Divorce Act are met will there be a variation.

8In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at para. 39 the Supreme Court explained that the terms of the agreement or order are an important consideration in deciding whether a particular change is “material” in the circumstances:

Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances.

9If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change (L.M.P.at para. 47).

10In Hickey v Princ, 2015 ONSC 5596 at para. 50 the Divisional Court summarized the relevant legal principles as follows:

This mandates a two-step process, as described in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 and L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. First, the court must consider whether the conditions for variation exist, i.e. whether there has been a change in the condition, means, needs or other circumstances of either former spouse since the order was made. The change must be “material”, meaning that it must be a change that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The onus of proving a material change is on the party seeking variation. Once the court decides that the threshold for variation has been met, the court must decide on the variation to be made in view of the change, based on the objectives set out in s. 17(7) of the Act.

Spousal Support

11As indicated above, the final order provided that spousal support should be paid from April 1, 2013 until December 31, 2016, on which date “spousal support ends forever”. That means that when the father’s motion to change was heard by the court he had only one more spousal support payment to make on December 1, 2016.

12The respondent argues that the court should vary this term of the consent order so that spousal support terminates retroactively to February 1, 2016, because that is the date that the mother began to cohabit with her new partner. She had a child with that partner in August, 2016. The respondent takes the position that since the applicant has a new spouse who earns approximately $70,000 per year she no longer requires financial support in the form of spousal support.

13In Shedden v. Shedden, 2012 ONSC 3980 at paras. 17-18 McGee J. held:

It is well settled law that remarriage does not of its own accord terminate spousal support. It is a change in a party’s financial status that may give rise to a variation, not one’s marital status.

The respondent’s Motion to Change can only succeed on the basis of a variation per section 17 (1)(a) of the Divorce Act provided that a court is first satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order. The nature of that change must be of such an effect and consequence that if known at the time, would have likely resulted in different terms of the order.

14In Boland v. Boland, 2012 ONCJ 102, at para. 106, Murray J. stated:

A former spouse who is in receipt of spousal support is not automatically disentitled from receipt of support because she or he repartners. Repartnering is simply a factor to be taken into account in the assessment of entitlement to and quantum of support.

15In determining whether remarriage or cohabitation is a material change in the circumstances, Murray J. set out the following factors for consideration (at paras. 107 and 108):

i. the duration and stability of the new relationship;

ii. the value to the support recipient of any benefits she or he receives by reason of this new relationship;

iii. the existence of any legal obligation of the new partner to provide support;

iv. the economic circumstances of the support recipient’s new partner, sometimes in comparison to his or her former partner.

16See also: J.M.G. v. L.D.G., 2016 ONSC 3042, at paras. 283-285 and Strifler v. Strifler, 2014 ONCJ 69 at para. 76.

17Spousal support is not only based on need, but on compensation for lost opportunity to earn income if, for example, a spouse remained at home to take care of children (Moge v. Moge, 1992 25 (SCC), [1992] 3 SCR 813) To the extent that the basis for the spousal support was compensatory, remarriage or cohabitation is not a material change in circumstances because the remarriage does not absolve the compensating spouse of his obligation to pay compensation to the receiving spouse, see: Kelly v. Kelly, 2007 BCSC 227 at para. 49 “Re-marriage does not compensate the receiving spouse for that which was foregone during an earlier marriage”.

18The mother takes the position that the spousal support agreed to by the parties and ordered by the court was primarily compensatory in nature. This assertion is derived from the following factors:

a) The mother took time off from her career when she had the three children in 2005, 2006 and 2009. Following the marriage breakdown she retrained as a real estate agent so that she could become independent.

b) Spousal support was ordered for a short, strictly time limited duration of 33 months. This limited duration is more indicative of compensatory support. Spousal support based on need is more likely to be for a longer or indefinite period of time.

c) The order expressly provides for adjustments to the level of spousal support based on the increase or decrease of the father’s income. There is no suggestion that adjustments to spousal support will be based on changes to the mother’s income. If spousal support were based on need the order would require adjustments based on both parties’ income.

d) The parties agreed to a termination date following which “spousal support ends forever”. This provision was included precisely because the parties did not want to have to return to court to litigate the duration of support. What is sauce for the goose is sauce for the gander, and the agreed termination date should preclude litigation over both extensions and early terminations.

e) Both parties were in their early thirty’s when they signed the agreement, and the likelihood of repartnering was within their contemplation.

19Based on the terms set out in the spousal support provisions of the final order I agree with the applicant mother that the agreed spousal support was primarily compensatory in nature and that the mother’s cohabitation with a new partner does not qualify as a material change in circumstances in the context of this case. If the amount or duration of spousal support were dependent on such factors as the mother’s individual or family income I would have expected the court order to specifically provide that the amount or duration was subject to adjustment based on the mother’s individual or family income. Accordingly, I will not vary the final order by terminating spousal support on a date earlier then the date agreed to by the parties and ordered by the court in its final order.

Child Support/Access

20The final order already provides that the father’s child support payments will be adjusted on June 1 of each year based on line 150 in his income tax return of the previous year. Thus, the order already provides a mechanism for increasing or decreasing his child support payments based on his income without the need for him to bring a motion to vary.

21The father’s argument with respect to child support is based on the premise that the court should make a shared parenting order that gives him a right of access to the children for 40% to 50% of the time. If such an access order were granted the amount of child support he pays would be reduced by virtue of s. 9 of the Federal Child Support Guidelines, which provide:

Shared custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

22The father argues that if his right of access is increased to 40% or more his child support payments should be reduced by setting off the mother’s nominal child support payments based on an imputed income against his child support payments.

23This is not a calculation that I will have to undertake because the father’s right of access - four days every two weeks, shared summer vacation and shared Christmas vacation - does not approach the 40% threshold required by s. 9 of the Federal Child Support Guidelines regardless how the percentage is calculated (see: Scott v. Chenier, 2015 ONSC 7866 at paras. 37 – 42).

24There are two reasons for this conclusion. Firstly I agree with the applicant mother that the respondent’s Notice of Motion to Change the final order sought relief only with respect to his access during the summer and Christmas vacation. Those amendments were agreed to by the parties, and it did not bring the father’s access to 40%. The father’s notice of motion did not indicate an intention to seek any other changes to the access schedule, and it would be unfair to the mother to permit him to request such a fundamental change without proper notice.

25Second, the applicant has provided no evidence to meet the requirements of s.17(5) of the Divorce Act, which provides for variations of custody and access. In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at paras. 10 – 13 the Supreme Court of Canada established the principles applicable to a variation of a final order under s.17(5):

Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: …

The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued…

What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way… The question is whether the previous order might have been different had the circumstances now existing prevailed earlier…

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

26The father has provided evidence that the communications between him and the mother are frequently marked by conflict. Much of this conflict seems to have arisen only after the father brought this motion to change. The parties each presented a litany of complaints against the other. This is unfortunate, because, despite this animosity, they each appear to be responsible and loving parents who have established strong relationships with their children. Both parents appear to be complying with the access schedule, and their ability to reach an amicable agreement on the amendment to the summer and Christmas vacations schedules demonstrates their ability to cooperate and put their childrens’ best interests first. The children, from all accounts, are doing very well and maintain close and loving relationships with each parent. The complaints that I heard were more in the nature of minor irritations than serious grievances.

27The children have been in the mother’s primary care for six years. There is no evidence of any change in the condition, means, needs or circumstances of any of the children or the ability of either of the parents to meet the needs of the children since the final order was signed little more than three years ago.

Overpayments

28While the final order contemplates annual adjustments to both spousal and child support payments, the parties never formally adjusted the amount of child support in accordance with the order. The final order was based on an income to the respondent of $114,000 less union dues. The respondent’s income has fluctuated only slightly in the past few years.

29The applicant has provided a detailed calculation setting out what the respondent would have paid if the support adjustments contemplated by the final order had been made. In one year he would have paid less, in another year he would have paid more. Based on her calculations the respondent still owes her arrears of child support in the amount of $294.00. On the other hand, he appears to have overpaid in spousal support in the amount of $576.00. The difference is $282.00.

Conclusion

30Based on the foregoing the respondent father’s motion to change the final order of April 8, 2013 is dismissed.

31The applicant mother is presumptively entitled to costs for this motion. If the parties are not able to agree on costs, the applicant may file written submissions of not more than 3 pages plus a costs outline and any offers to settle within 20 days of the release of this decision, and the respondent father may file responding submissions on the same terms within 10 days thereafter.