CITATION: Smith v McQuinn, 2016 ONSC 7997

COURT FILE NO.: 00-FL-3015A

DATE: 2016/12/20

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: John Joseph Augustin Smith, Applicant

AND

Deborah Ann McQuinn, Respondent

BEFORE: Madam Justice A. Doyle

COUNSEL: Mark W. Smith, Counsel, for the Applicant

Timothy N. Sullivan, Counsel, for the Respondent

HEARD: November 24, 2016

ENDORSEMENT

[1] The Applicant has brought a Motion to Change the Final Order of Justice Sheffield (“Final Order”) dated December 2, 2003 terminating spousal support and security for support. The Respondent brings a Motion to Change, requesting retroactive s. 7 expenses for the children’s post-secondary expenses. In addition, the Respondent brought a Contempt Motion against the Applicant for his failure to maintain a life insurance policy in accordance with the Final Order.

[2] The issues for determination are as follows:

i) Has there been a material change of circumstances since the Final Order?

ii) If so, should the Final Order be varied?

iii) Should the Applicant be required to pay a share of the children’s post-secondary expenses?

iv) Should there be a finding of contempt against the Applicant?

[3] For reasons set out below, the Court varied the Final Order as follows:

i) No spousal support is payable by the Applicant as of June 1, 2015;

ii) Commencing June 1, 2017, the parties will exchange their most recent income tax return and notice of assessment. Spousal support may be varied upon a material change of circumstances;

iii) The Court dismisses the Respondent’s motion for payment of post-secondary educational expenses; and

iv) The motion for a finding of contempt against the Applicant is dismissed.

Background

[4] The parties were married on May 14, 1981 and separated on September 15, 1998.

[5] At the time of the separation, Shawn born September 1, 1982 was financially independent. Laura born April 5, 1984 and Candice born January 14, 1986 were financially dependent children.

[6] The Final order incorporated the parties’ Minutes of Settlement which provided for the following:

1. For the purposes of determining spousal support, the Applicant’s income was $75,480 and the Respondent’s income was $33,000;

2. The Applicant would pay spousal support in the amount of $1,000 per month, plus an annual cost of living index and child support in the amount of $977 per month;

3. The Applicant would maintain two life insurance policies with no set amount naming the Respondent as irrevocable beneficiary as security for support; and

4. In the event that the Respondent incurred special or extra-ordinary expenses on behalf of the children, including, but not limited to post-secondary education, the Applicant would pay his share of those expenses in accordance with the provisions of the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”).

5. Factoring in the annual cost of living index, the spousal support increased to $1,220.02 per month.

[7] The Respondent is requesting that the Applicant pay his proportionate share of the s. 7 expenses incurred for Laura $63,465.09 and for Candice $29,580.05. She admits that she did not review the receipts and calculations of the same, as an independent accountant assembled the receipts and made the calculations.

[8] At the time of the commencement of the Motion to Change in 2012, the Applicant’s 2012 annual income was $57,126. The Respondent’s annual 2012 income without spousal support was $46,208.00.

[9] Both parties are currently 62 years of age.

[10] The Applicant worked with Computer Media until 2009. He then worked in a sales job with Eugene Gagnon. His income has been:

− 2009: $54,201

− 2010: $31,086

− 2011: $49,730

− 2012: $57,126

− 2013: $67,001

− 2014: $62,182

[11] His job with Eugene Gagnon terminated in 2015, at which time he brought a motion before Justice Minnema who suspended spousal support payments effective June 1, 2015.

[12] The Applicant then obtained employment with Lighting Enhancement Corporation and earned $30,000 per year with commissions. This work ended in the fall of 2016. He is currently in receipt of EI benefits and receives approximately $21,000 per annum.

[13] The Respondent works at the Champlain Community Care Access Centre and earns $48,000 per year.

[14] The Respondent had the following employment income:

− 2009 - $42,101

− 2010 - $43,489

− 2011 - $44,427

− 2012 - $46,208

− 2013 - $46,191

− 2014 - $46,889

− 2015 - $41,849

[15] Her 2016 employment income is expected to be $48,000.

Has there been a material change of circumstances justifying a variation of Justice Sheffield’s Order?

Applicant’s Position

[16] The Applicant indicates that there has been a material change of circumstances in that his income has substantially decreased since the Final Order, and the Respondent’s income has increased.

Respondent’s Position

[17] The Respondent states that there has been no material change of circumstances because:

1. There should be an adverse inference as he did not provide proof of commissions as he undertook to do at questioning, and as such, the Court should assume he earns an annual income of $75,000; and

2. She does not contest that he has been terminated from employment but submits that the letter of termination filed did not appear to be a “standard” letter of termination with notice period and/or severance pay, nor was a Record of Employment filed.

Law

[18] Before a Court can make a change, s. 37 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) stipulates that:

(1) An application to the Court for variation of an order made or confirmed under this Part may be made by,

(a) a dependent or Respondent named in the order;

(b) a parent of a dependent referred to in clause (a);

(c) the personal representative of a Respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.

(2) In the case of an order for support of a spouse or parent, if the Court is satisfied that there has been a material change in the dependent’s or Respondent’s circumstances, or that evidence not available on the previous hearing has become available, the Court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the Respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33. 1997, c. 20, s. 6; 1999, c. 6, s. 25 (12); 2005, c. 5, s. 27 (16).

[19] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

Analysis

[20] The Court finds that there has been a material change of circumstances for the following reasons:

1. The amount of the parties’ respective incomes have substantially changed, and if known at the time of the Final Order, would have resulted in a different order;

2. The Respondent’s income has increased by almost 50% from the time of the Final Order;

3. The Applicant’s income has decreased and fluctuated since the time of the Final Order;

4. His last income was $30,000 plus commissions for a total of approximately $37,000 per year; and

5. The Respondent does not dispute that the Applicant has been terminated from his employment.

[21] The Court is not prepared to make an adverse inference. The Respondent did answer his undertaking by providing his most recent paystub as he promised on page 10 of the transcript of his Questioning.

If so, should the Final Order be varied?

[22] For the reasons set out below, the Court varies the Final Order so that no spousal support is payable.

[23] At the time of the Final Order, the Applicant was earning over $74,000 per annum. He is now in receipt of Employment Insurance benefits, earning approximately $21,000 per year and actively seeking employment.

[24] He started with Lighting Enhancement Corporation in September 2015 and at the time of questioning in July 2016, his income was $30,000 plus commissions.

[25] On page 8 of the transcript, he stated that he earned $10,000 in four months and commission amounts of $7,500 per year. Total income would have been approximately $37,500 per year at his last employment.

[26] On the other hand, the Respondent earns $48,000 per year, which is 50% more than she earned at the time of the Final Order.

[27] The Respondent has been paying spousal support pursuant to a court order for 12 years. At this time, he is not in a position to continue to pay spousal support. He is actively seeking employment. Given his past experience and work history, he should be able to find employment.

[28] Therefore, the Final Order will be varied so that spousal support is no longer payable as of June 1, 2015 and the security for support is no longer necessary.

[29] Commencing June 1, 2017, the parties will exchange their most recent income tax return and notice of assessment. Spousal support may be varied upon a material change of circumstances.

Should the Applicant be required to pay a share of the children’s post-secondary expenses?

Respondent’s Position

[30] The Respondent submits that in 2007, her lawyer notified the Applicant regarding the children’s post-secondary educational expenses. In addition, since he had been un-cooperative regarding the repayment of a health plan benefit, she did not attempt to pursue these s. 7 expenses.

[31] The Respondent submits that her accountant compiled the receipts, and the expenses listed were $63,465.09 for Laura and $29,580.05 for Candice. She is submitting that the children be responsible for 1/3 of their expenses. Hence, she is claiming that the Applicant pay his proportionate share of 60% or at least 50% of 2/3 of the costs. This would amount to $11,713 or $9,761 for Candice’s expenses and $25,132 or $20,943 for Laura’s expenses.

[32] She submits that the Applicant has a pattern of ignoring obligations and has taken no steps to find out what he should be paying. She felt it was too expensive to pursue the issue but decided to do so as a response to his current Motion to Change.

[33] In addition, she submits that she was abused by him and hence did not want to ask him for the educational expenses.

[34] The Respondent submits that this is not a retroactive claim as the Final Order required this payment and therefore it is simply a claim for the father to abide by the terms of the Final Order.

Applicant’s Position

[35] The Applicant states that since the children were no longer financially dependent at the time of the issuance of her Motion to Change and as such, the Respondent cannot claim retroactive s. 7 expenses.

[36] Alternatively, he claims that, as required under the Final Order, there is no evidence that she actually incurred the expenses. Rather, he submits that there is evidence that the children covered their own costs through earnings, savings and student loans. She was unable to obtain written confirmation that the girls were authorizing her to proceed with this application. In addition, the receipts show expenses such as clothing which are covered by child support.

[37] The Applicant submits that he should not be responsible for providing financial support toward a 2^nd post-secondary degree for the children as this was not provided for in the Final Order.

[38] The actual receipts filed are $21,256.20 for Laura and $27,031 for Candice.

[39] He denies there have been past abuse issues. There was only one event in 1987 in Nova Scotia and no charges were laid. The Applicant spent one night in jail as he says he had no other place to stay. There was nothing in the original materials regarding the issue of abuse.

[40] One misunderstanding occurred regarding a benefit plan, as the carrier required that he had to change plans to his current wife’s plan, as she was older than him.

[41] The Applicant paid child support even when the children were not living at home and while Laura was attending the University of Waterloo.

Analysis

Can the Respondent bring a claim for retroactive support when the children were not dependent at the time of the issuance of the motion to change?

[42] The Court agrees with the line of cases which state that in a variation application, the children do not need to be dependents at the time of the variation application.

[43] The analysis under the Divorce Act regarding this issue was fully explored in the cases below.

[44] D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, the Supreme Court held that the child needs to a child of the marriage at the time of the application to request s. 7 expenses.

86 A first circumstance is where an application is brought which concerns a child who is no longer eligible for support under the relevant scheme. While the federal and provincial regimes differ in how they classify children — the Divorce Act refers to a “child of the marriage” while the Parentage and Maintenance Act refers to children under 18 years of age — a problem will always arise where a retroactive award is being sought for a person for whom the court does not have jurisdiction to order child support.

[45] Then at para. 88, the Court states:

The question then arises when the “material time” is for retroactive child support awards. If the “material time” is the time of the application, a retroactive child support award will only be available so long as the child in question is a “child of the marriage” when the application is made. On the other hand, if the “material time” is the time to which the support order would correspond, a court would be able to make a retroactive award so long as the child in question was a “child of the marriage” when increased support should have been due.

[46] Justice Zisman followed this approach in Zdyb v. Scalisi, 2010 ONCJ 425. The motion was a Motion to Change a separation agreement dated 2004. The proceedings were made pursuant to the FLA. The Court found that the mother was not entitled to claim retroactive child support for the child, as she was no longer dependent as of January 2009. The mother had claimed that payment was due under the separation agreement and that she had verbally requested payment from the father. She failed to provide proof of the expenses. She did not respond to father’s counsel’s letter. She only made a claim after the father commenced proceedings. The Court found that she did not provide a reasonable excuse for her delay for not proceeding.

[47] See also MacCarthy v. MacCarthy, 2014 BCSC 2229 where the Court found that retroactive child support and s. 7 expenses, cannot be ordered after the children have ceased to be eligible for support. See also Selig v. Smith, 2008 NSCA 64.

[48] However, there is a line of cases which draw a distinction between an originating application and a variation application. In Lemay v Longpre 2014 ONCS 5107, Justice Labrosse considered the applicability of this principle and referred to Buckingham v. Buckingham 2013 ABQB 155, where the court stated at paragraph 32:

However, closer inspection of the DBS decision suggests that a third interpretation of the relevant paragraphs of DBS is possible. I find, for the reasons set out below, that it is more likely that the SCC did not intend to create a strict jurisdictional rule for variation orders under s. 17 of the Divorce Act. While courts might be jurisdictionally limited to granting “child support orders” under s. 15.1(1) of the Divorce Act only while the child is a “child of the marriage,” the same rule should not apply to “variation orders” for the following reasons: it does not accord with an ordinary interpretation of the statute; and in application, it will either create a framework that treats parents inequitably, or one that conflicts with the principles of child support as outlined in the DBS judgment.

[49] At para 39,

Thus, while Bastarache J earlier concluded that a child must be a “child of the marriage” when an application for a child support order is made, he later finds with respect to the variation application in Henry that because some form of implied notice was provided while the child was still a child of the marriage, the court had jurisdiction to consider the application.

In DBS, the analysis of the status of the child under the Divorce Act is brief. While the meaning of s. 2(1) is considered, neither Bastarache J nor Payne provide any analysis of how this definition fits with s. 17(1)(a). Henry involves variation of an existing order, which would have to arise under s. 17(1) of the Divorce Act. Nevertheless, there is no explicit discussion, interpretation or analysis of s. 17(1)(a), and in application of the law to the facts, the jurisdictional limit is not applied in this case. It therefore is unclear whether, and if so how, this rule should be applied with respect to variation orders.

Section 17(1) provides that:

A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses;

It does not refer to “children of the marriage” like s. 15.1(1), nor does it give any specific directions with regard to the timing of a variation application. Thus, while the wording of s. 15.1(1) makes it clear that an original application for support must be brought while the child is still a “child of the marriage,” the same statutory language that Bastarache J interprets in order to arrive at this conclusion in the context of an original application does not appear in s. 17(1)(a). Upon reading s. 17(1)(a) in context, it appears that Parliament may have had a different intention with regard to this section.

[50] Justice Labrosse found that by virtue of s. 17 of the Divorce Act, the children did not need to be “child of the marriage” at the time of the application.

[51] Justice Kershman in Charron v. Dumais, 2016 ONSC 7491, confirmed that in a Divorce Act variation application, the children need not be a “child of the marriage” at the time of the issuance of the motion for the recipient to receive retroactive support.

[52] In Diaz v. Pena, 2016 ONCJ 88. Justice Curtis accepted that there was a distinction between originating and variation applications under the FLA. She refers to: Browning v. Browning, 2008 ONCJ 388, 2008 ONCJ 388 (Ont. Ct.); P.M.B. v. A.R.C., 2015 ONCJ 720, [2015] O.J. No. 6747 (Ont. Ct.), para. 78, 79.

[53] In Catena v. Catena, 2015 ONSC 3186, the Court found that a child did not need to be a dependent at the time of a variation application pursuant to the FLA. Justice Henderson refers to the following cases that held that in a variation application brought pursuant to s. 17 of the Divorce Act, a child need not be a “child of the marriage” at the time of the commencement of the variation application: Simone v. Herres, 2011 ONSC 1788, [2011] O.J. No. 1626, George v. Gayed, 2014 ONSC 5360. In the latter case, the Court permitted an exception to the DBS rule where the recipient parent has been unable to pursue a variation within time because of the payor’s misconduct. In Simone, the father’s deliberate deception in thwarting the mother’s efforts to contact him worked against him.

[54] This issue has been explored in cases under the FLA.

[55] Section 31(1) of the FLA states:

Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31

[56] Section 29 of the FLA sets out the definition: “dependent” means a person to whom another has an obligation to provide support under this Part.

[57] Neither s. 29 nor s. 31 contain the qualification “at the material time” found in s. 2(1) of the Divorce Act, upon which Bastarache J. relied on when imposing the limitation he did.

[58] Chappel J., in Meyer v. Content, 2014 ONSC 6001, addressed this same issue in respect of s. 37. After an extensive review of current law, she concluded that the time for determining dependency is the time when the order was made.

1. It would create a situation where a Respondent named in the order under consideration could bring a motion to change despite the child no longer having dependent status when the motion is commenced, whereas the same individual would be unable to do so if they happened to be the Applicant in the previous proceeding in which the order was made;

2. It would preclude a payor who has not been advised of changes in a child’s circumstances that result in the child no longer being a dependent from seeking relief to terminate child support; and

3. It would result in situations where a payor parent named as a respondent in the order could seek to retroactively reduce child support after the child is no longer a dependent, whereas the recipient parent in the same case who was named as an applicant would not be able to advance a counterclaim for a retroactive increase in child support.

[59] In summary, the case law has created exceptions to the DBS analysis in the following circumstances:

a) In variation proceedings where there is an existing order and an established support obligation under the Divorce Act, 1985, c. 3 (2^nd Supp.) (“Divorce Act”);

b) In motion to change proceedings where there is an existing order and an established support obligation under the FLA; and

c) When there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient’s failure to bring the retroactive support claim within the requisite time.

Should there be a retroactive award?

The Law

[60] In Wharry v. Wharry, 2016 ONCA 930, the Court of Appeal when reviewing the retroactive issue of spousal support concluded that the Judge erred when mandating the three year limit from the trial date for retroactive child support.

[61] The Court stated that DBS established that the date of effective notice would serve as the date for choosing the date of retroactivity. However, the court stated at para. 56:

Despite this general default to effective notice, the Supreme Court in DBS added at para. 123 that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given: see also Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, at paras. 45 and 61. One of the reasons for this general rule was to ensure that recipients move discussions forward after providing effective notice. The Supreme Court stated at para. 123:

Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

[62] At para 59, the Ontario court of Appeal stated:

Nevertheless, as the Supreme Court stated in D.B.S. at para. 64, “parents should not have the impression that child support orders are set in stone.” A court should consider four main factors before making a retroactive child support order: (i) the reason for the delay by the recipient parent; (ii) the conduct of the payor parent (e.g., any blameworthy behaviour);(iii) the circumstances of the child; and (iv) any hardship occasioned by a retroactive award: D.B.S., at paras. 94 to 116. The Supreme Court cited Tedham v. Tedham, 2003 BCCA 600, 20 B.C.L.R. (4th) 56 for the proposition that “[n]one of the factors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in no blameworthy conduct”: D.B.S., at para. 99

[63] In the DBS, the Supreme Court of refers to the “balance between certainty and flexibility” in this area of the law, describing it as fairness to children and certainty for the payor.

Decision

[64] The Court makes the following findings:

1. The mother provided notice to the father by letter from her lawyer dated January 9, 2007, indicating that Candice had commenced a two-year program at Algonquin College – Perth Campus in August 2005 and that Laura had started a four-year arts program at Waterloo University in September 2004.

2. The lawyer’s letter attaches a schedule of their expense with their earnings and bursaries and student loans and requested financial information and his position regarding post-secondary expenses.

3. The schedule sets out the children’s income from all sources and expenses as follows:

Candice:

2005: as follows: $8,024 earnings, bursary $500, expenses $4,484, gas $390

2006: her earnings $9,093, expense $4,500, and gas $1,200

Laura:

2003: applications $1002 and $332 and earnings of $6680

2004: expenses $14,869, and income $15,966

2005: earnings $16,559, and expenses $11,862

2006: income $18,963, and expenses $15,035.

6. The children’s income from employment earnings and student loans surpass their post-secondary expenses;

7. This letter was sent three years after Laura had started her university course and two years after Candice had commenced her college courses.

8. In her materials, the Respondent confirmed that she had incurred the expenses. The court finds that she did incur some of the expenses. At her questioning, she admitted that she did not look at the spreadsheets as they were compiled by an accountant Barbara Gladwish. She did not look at the receipts. She could not confirm if the contents of the spreadsheets are correct or incorrect. It is not clear what expenses were paid by her or the children.

9. Child support ended in 2007 when the matter was in court and the Respondent does not explain why she did not pursue her claim for s. 7 expenses at that time.

10. The children would have finished their first post-secondary programs in 2007/8 (5 to 6 years before the Respondent’s motion to change).

11. She made her claim only in response to his Motion to Change in 2013. She delayed in bringing this matter to Court. The court finds that she brought this to Court only because he initiated the application.

12. Some receipts included clothing and food expenses which would be covered by child support.

13. The father paid for child support when one child was away in Waterloo.

14. The children were not prepared to co-operate with their mother in responding to undertakings regarding their incomes and student loans.

15. The total figures did not add up to what the Respondent claimed, i.e., receipts were neutrally calculated with $21,256.20 produced for Laura and $27,031 for Candice.

[65] In addition, pursuant to the Final Order, the Applicant would have only been responsible for the first post-secondary degree. Both children obtained second degree/diplomas:

• Laura started at university in 2003 when she was 19 years of age after completing an extra year of high school. Receipts were filed from 2003 to 2006. After she completed her four year program she attended the University of Surrey in England for her Master’s for 9 months at a cost of $29,000. She did not speak to the father about this expense.

[66] The receipts filed for Candice show expenses from 2005 to 2007 plus further expenses from 2010 to January 2013 for her second post-secondary diploma. Candice went to Algonquin College for nursing when she was 24 for the two-year program. The Final Order requires the Applicant to contribute only to the first post-secondary degree/diploma.

[67] In DBS, the Supreme Court sets out the factors that a court should consider and balance in reconsidering a request for a retroactive increase in child support, none of which is decisive. The factors are discussed below:

1. the recipient’s reason for not seeking support earlier

She provided effective notice in 2007 and did not pursue it. She said that he was abusive; a fact which the Respondent denies. There is no evidence of abuse and only one incident. There was only evidence of one request from a child for a health reimbursement and he explained that there was a policy change as his wife’s plan had to be used first as she was older.

2. the conduct of the payor

There is no evidence as to whether the father responded to the Respondent’s solicitor. Nevertheless, he continued to pay child support until it was terminated in 2007 as the children had ceased being dependents.

The Court accepts that the Respondent would have financially assisted the children with their own education. However, other than the letter dated 2007 which was her effective notice, no evidence was filed to show what other efforts were made by the Respondent to pursue expenses from the Applicant.

The Court finds that the recipient should have moved promptly after the effective notice to formally proceed with her claim. She waited 6 years to bring the claim and only in response to the Applicant’s Motion to Change.

3. the circumstances of the child

A review of the material filed showed that the children were able to substantially fund their own education through earnings, bursaries and student loans. The Respondent incurred some expenses but it unclear and uncertain what she actually paid as she admits she did not look at the spreadsheets, confirm the quantum of expenses nor did she prepare them. In fact, she could not respond as to whether the Applicant’s suggested calculation was correct.

The Court finds that the children did cover an amount of their post-secondary expenses as set out in the schedule attached to the Respondent’s lawyer’s letter of 2007. She did not obtain the girls’ cooperation in answering undertakings regarding details of income and student loans. There was no answer to an undertaking that she would ask Laura if she received any scholarships or bursaries while at U of Waterloo and whether she received student loans.

Furthermore, her affidavit of March 18, 2013 states that the girls incurred some of the expenses. Although, she states that she wants to be reimbursed for expenses she incurred, paragraph 2 (d) of this affidavit states that any money she received will be applied to the children’s student loans and given back to the children. Hence, the Court concludes that there are outstanding student loans but no amount has been confirmed at the children were not prepared to co-operate.

4. the hardship occasioned by a retroactive award

A retroactive support order would place some financial burden on the Applicant, especially at a time when he is unemployed. He has no pension and few assets.

[72] The Court has considered the four factors and weighed each of them in dismissing her claim. In addition, the court has considered the fairness of the overall objective as set out by DBS. That is, the Applicant’s need for certainty must be balanced with the need for fairness and flexibility. Here the Respondent has not provided the Court with a reasonable excuse for her considerable delay in bringing forward these claims that commenced in 2003 (10 years before her motion to change was instituted as a response to the Applicant’s motion to change). The Applicant regularly paid his child support (and spousal support). The children had means to pay for their education. In light of the Applicant’s current financial circumstances, there would be hardship suffered by the Applicant if ordered to pay a substantial retroactive award. The Respondent’s motion is dismissed.

Should there be a finding of contempt against the Applicant?

Respondent’s position

[68] The Respondent submits that the Applicant breached the agreement as well as the Court order. In questioning, he stated that he did not have a policy in place since 1999, which was before the signing of the Minutes. He said he could not afford it. In his affidavit filed on August 18, 2016, he corrected his answer and indicated that the group life insurance policy ended in 2009 when his employment ended. He did not seek replacement insurance as required by the Minutes.

[69] Even though the amount of the life insurance policy was not determined, that did not absolve him from obtaining a life insurance policy. The lack of an amount does not obviate his obligation to have a policy in place as security for spousal support. There is no clear evidence that he was uninsurable and no evidence was submitted that he actually even attempted to obtain a replacement policy.

[70] The Applicant has an obligation and the Respondent should not have to incur costs to pursue litigation against the estate. He was not before Justice Minnema with clean hands when he asked for suspension of support payments.

[71] She requests a penalty in the form of a lump sum payout of $199,822.

Applicant’s position

[72] The Applicant submits that the motion must be dismissed as it does not meet the criteria required to make a finding of contempt. No quantum of life insurance was included in the agreement.

[73] The order was not clear and unequivocal.

[74] In addition there were other provisions to protect the Respondent as pursuant to para. 7.9, she would have a right to a lien against his estate should life insurance not been in place.

[75] The Applicant submits that he was following the Final Order to the best of his ability. In any event, no one was hurt as security for support did not become crystallized and had it been, then she would have a lien against the estate and a claim under Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “Act”)..

[76] In the event that the Court finds contempt, the remedy claimed is excessive.

The Law

[77] The Ontario Court of Appeal in Prescott-Russell Services for Children and adults v. N.G. et al, 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686, at para. 27 stated:

The criteria applicable to a contempt of court conclusion are settled law. A three-pronged test is required. First, the order that was breached must state clearly and unequivocally what should and should not be done. Secondly, the party who disobeys the order must do so deliberately and wilfully. Thirdly, the evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order. See 884772 Ontario Ltd. (c.o.b. Team Consultants) v. SHL Systemhouse Inc., [1993] O.J. No. 1488, 41 A.C.W.S. (3d) 505 (Gen. Div.), at para. 18; Children's Aid Society of Ottawa v. C.B., [2003] O.J. No. 1451, 121 A.C.W.S. (3d) 1043 (S.C.J.); Children's Aid Society of Ottawa-Carleton v. D.S., 2001 CanLII 28152 (ON SC), [2001] O.J. No. 4585, 22 R.F.L. (5th) 14 (S.C.); L.J. v. G.B., [2000] O.J. No. 3030 (S.C.J.); Melville v. Beauregard, [1996] O.J. No. 1085, 62 A.C.W.S. (3d) 127 (Gen. Div.), at para. 13.

[78] Therefore, a contempt can be found when the following exists:

(1) the order must be clear and unequivocal

(2) disobedience was deliberate and willful

(3) evidence must show contempt beyond a reasonable doubt.

Analysis

[79] The order must be clear and unequivocal. The order did not specify an amount. It lacks specificity. It lacks certainty. The parties never turned their minds to the amount expected to be obtained.

[80] The Applicant cannot be expected to comply with an order that did not stipulate a face amount for the life insurance.

[81] Therefore, the Court does not find that the Applicant is in contempt of the Final Order beyond a reasonable doubt.

Conclusion

[82] Therefore, the Court orders:

1. The Motion for contempt is dismissed.

2. The Motion for s.7 expenses’ contribution is dismissed.

3. There will be no spousal support payable effective June 1, 2015.

4. Commencing June 1, 2017, the parties will exchange their most recent income tax return and notice of assessment. Spousal support may be varied upon a material change of circumstances.

5. There is no requirement that the Applicant maintain a life insurance policy as set out in the Final Order.

[83] If the parties cannot agree on the issue of costs, they can provide their two-page written submissions, along with their Bill of Costs and any Offers to Settle by January 30, 2017.

Madam Justice A. Doyle

Date: December 20, 2016

CITATION: Smith v McQuinn, 2016 ONSC 7997

COURT FILE NO.: 00-FL-3015A

DATE: 2016/12/20

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: John Joseph Augustin Smith, Applicant

AND

Deborah Ann McQuinn, Respondent

BEFORE: Madam Justice A. Doyle

COUNSEL: Mark W. Smith Counsel, for the Applicant

Timothy N. Sullivan Counsel, for the Respondent

ENDORSEMENT

Madam Justice A. Doyle

Released: December 19, 2016