SUPERIOR COURT OF JUSTICE

ROBERT SHEWFELT Applicant

v.

TIFFANY SHEWFELT Respondent

Reasons

BEFORE THE HONOURABLE JUSTICE C.J. CONLAN On Thursday, April 6, 2017, at Owen Sound, Ontario

APPEARANCES: Mr. G. Deakin, Counsel for Robert Shewfelt Mr. E. Treslan, Counsel for Tiffany Shewfelt

Shewfelt v. Shewfelt, 2017 ONSC 2390

THURSDAY, 6TH APRIL, 2017:

CONLAN, J. – Orally:

I. Introduction

This was a one-half day trial with one witness, the applicant, Mr. Shewfelt.

The background is undisputed.

In June 2010 Mr. Shewfelt and the respondent, Ms. Shewfelt, signed a separation agreement. Each party had counsel.

The preamble to the agreement reads as follows:

“A. Robert and Tiffany were married on September 10, 1999.

B. There are two children of the marriage, Isaac Peter Miller, born January 21, 1997; and Austin Morley Shewfelt, born October 11, 2002. Robert is not the biological father of Isaac.

C. The parties have agreed to live separate and apart and have agreed to treat June 6, 2007 as their date of separation for all purposes.

D. The parties agree that each is financially self-sufficient of the other.

E. The parties have agreed to the terms and conditions set out herein, with the understanding that this agreement will resolve and settle all of the outstanding issues between Robert and Tiffany.”

Clauses five (5) through seven (7) of the agreement dealt with child support and provide as follows:

“5. Tiffany shall be responsible for all expenses relating to the support of Isaac, including special/extraordinary section 7 expenses.

6. Robert shall be responsible for all expenses relating to the support of Austin, including special/extraordinary section 7 expenses.

7. The reference to special/extraordinary section 7 expenses shall exclude post-secondary expenses. Either party may proceed with a claim against the either in the future for contribution towards post-secondary expenses incurred by Isaac and/or Austin, subject to any defences or claims to setoff which may be raised by the responding party at that time. Subsection 16(1)(c) of the Limitations Act 2002 shall apply to any claim (or claim to setoff) relating to this paragraph.”

The agreement was signed by both parties with certificates of independent legal advice attached.

Clause 26 of the agreement states the following:

“Robert and Tiffany each acknowledge that he or she:

a) has received independent legal advice;

b) has read the agreement in its entirety and has full knowledge of the contents;

c) understands his or her respective rights and obligations under this agreement, the nature of this agreement, and the consequences of this agreement;

d) has made full and complete disclosure of his or her financial circumstances to the other, including but not limited to his or her income, assets, debts, or other liabilities;

e) acknowledges that the terms of this agreement are fair and reasonable;

f) is entering into this agreement without any undue influence, fraud, or coercion whatsoever;

g) is signing this agreement voluntarily.”

Mr. Shewfelt has brought an application which likely ought to have been a motion to change. In any event, we will treat the proceeding as having been properly constituted.

Mr. Shewfelt seeks an Order that Ms. Shewfelt pay base child support as per the Guidelines for the benefit of Austin, now 14 years old.

Austin is currently in police custody facing numerous criminal charges. His school attendance has been abysmal. The boy has lived steadily with Mr. Shewfelt since June 2010. He is expected to return to his father’s residence in Tara after his release from custody.

II. The Law

A youngster is no longer a “child of the marriage” if he has withdrawn from the charge of his parents, even if still under the age of majority. See section 2 of the Divorce Act.

In determining whether a domestic contract ought to be set aside, there is a two-stage analysis that must be undertaken.

First, I should look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. There is no exhaustive list of factors that can be considered. However, they include oppression, pressure or other vulnerabilities. The totality of the circumstances must govern the analysis. The context and duration of the negotiations and whether professional assistance was obtained, are also relevant.

In the Family Law context, unconscionability is not necessarily required to set aside an agreement. Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at page 348.

If it is decided that the conditions under which the agreement was negotiated are satisfactory, the Court must then turn its attention to the substance of the contract. I must assess the extent to which the agreement takes into account the factors and objectives listed in the legislation, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown, if the provisions in question deal with support for example, or the best interests of a child if the provisions deal with custody or access as another example.

Does the agreement achieve the goal of the legislation?

Only a significant departure from the legislative objectives will warrant the Court’s intervention. The entire agreement needs to be analyzed. Miglin, supra, at page 350.

It must be remembered that it is possible to set aside part of a domestic contract. Miglin, supra, at page 350.

Generally speaking, courts are loath to set aside domestic agreements. It is desirable that parties settle their own affairs, and there is a need for certainty, otherwise, nobody would enter into such agreements. Clayton v. Clayton, [1998] O.J. No. 2028 (Gen. Div.), at paragraph 27.

At stage two of the analysis where the parties find themselves down the road in circumstances not contemplated at the time that the agreement was executed, upon an application being brought, the Court should assess the extent to which the agreement still reflects the original intention of the parties, and the degree to which it is still in substantial compliance with the legislative objectives. Miglin, supra, at page 351.

Usually, a significant change in the parties’ circumstances would be required before a court concludes that it is no longer appropriate to accord the domestic contract binding weight. Miglin, supra, at pages 351 to 352.

In the case of Innes v. Innes [2005] O.J. No. 1839, at paragraph 19, Ontario’s Divisional Court had this to say:

“More recently, the Supreme Court of Canada has discussed the material change of circumstances test in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, in the context of determining whether spousal support should be awarded given a release of spousal support in a separation agreement. At paragraph 88 the Court stated:

“The parties’ intentions, as reflected by the agreement are the backdrop against which the Court must consider whether the situation of the parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight. We note that it is unlikely that the Court will be persuaded to disregard the agreement in its entirety, but for a significant change in the parties’ circumstances from what could reasonably be anticipated at the time of negotiation. Although the change need not be radically unforeseen and the applicant need not demonstrate a causal connection to the marriage, the applicant must, nevertheless, clearly show that in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties and have led to a situation that cannot be condoned.””

III. Analysis

In my view, Mr. Shewfelt has failed to demonstrate, on balance, that there has been a material change in circumstances, and further, I reject the argument advanced on behalf of Mr. Shewfelt that there is anything ambiguous about the separation agreement.

On the former, it is true that Isaac left the charge of these parties in January 2014 when he was turning 17 years old. He has remained independent since and now lives in Owen Sound, and has a child of his own.

The agreement, by specifically referring to “children of the marriage” in its preamble, clearly contemplated that the child support provisions in paragraphs five (5) through six (6), would persist only while Isaac and Austin fit that description. That, combined with Mr. Shewfelt’s candid admission during his testimony at trial, that it was obvious to everyone in June 2010 that because of the sizeable age difference between the boys, child support would be payable for Austin longer than it would be for Isaac, are fatal to the relief he now seeks.

On the latter, I disagree that the absence of termination dates for the child support referenced at clauses five (5) and six (6) of the agreement, means that there is anything ambiguous about the contract.

The parties did indeed look to the future, as evidenced by clause seven (7) of the agreement, dealing with post-secondary expenses for the boys.

There was no need to stipulate termination dates at paragraphs five (5) and six (6) of the agreement. Clearly, child support would end upon the beneficiary no longer being eligible to receive it by, for example, ceasing to be a child of the marriage.

For those reasons, the application must be dismissed.

This decision is not meant to dismiss, what I perceive as genuine love and commitment to the boys on the part of Mr. Shewfelt. I hope that things turnaround for the young man, Austin.

I have endorsed the matter:

Trial held. For oral Reasons given, Mr. Shewfelt’s application is dismissed.

Do counsel want to speak to anything else?

MR. TRESLAN: Your Honour, I have a cost outline. I’m happy for you to deal with costs now or to reserve on that.

THE COURT: I’m prepared to deal with it now.

MR. DEAKIN: I haven’t seen the document.

THE COURT: I’ll give you time to have a look at it Mr. Deakin.

MR. TRESLAN: And when reviewing that Your Honour, keep in mind that we only came on the record on March the 2nd, and the costs are only sought from March 2nd forward.

THE COURT: All right.

MR. TRESLAN: That’s March 2nd of this year.

THE COURT: Just while I’m looking at this - Madame Reporter, for your benefit, when you are preparing the transcript for the Court and the counsel may wish copies of the transcript as well, you may wish to refer to the separation agreement that is in the trial record because I quoted from it and it will help you in preparing the transcript. In terms of the case law citations, they are in there as well.

COURT REPORTER: Thank you Your Honour.

THE COURT: Okay. I have had a chance to look at the cost outline prepared on behalf of the respondent. Mr. Deakin, do you have any submissions that you would like to make?

MR. DEAKIN: I would suggest Your Honour, that the application was fairly brought by Mr. Shewfelt. Under the circumstances, you can anticipate there is a 14 year old child who is not being supported, and it seemed reasonable to Mr. Shewfelt to bring the application. I would suggest that this was not brought frivolously, and there has been, in fact, pre-trials and other opinions have been provided to Mr. Shewfelt about the likelihood of his success. So he did not pursue this in, contrary to what....

THE COURT: I agree. It is by no means a frivolous application.

MR. DEAKIN: And no, by no means, I would suggest, obviously given the thoughtfulness Your Honour put into the, the decision. With respect to the, the fees themselves, I can indicate they are likely in line with the, the fees that I had calculated. All I would suggest is Your Honour consider the circumstances of Mr. Shewfelt, and I appreciate that the ability to pay is not necessarily one of the criteria that Your Honour consider, but as you have heard, he is the sole provider for a family, and may require some discretion with respect to the, the fees that are being granted.

THE COURT: Thank you. Mr. Treslan, anything to add to what’s contained in the document?

MR. TRESLAN: No Sir.

Reasons on Costs

CONLAN, J. – Orally:

The respondent, Ms. Shewfelt was successful and ought to receive some costs. That is the presumption. Those will be very modest however.

Mr. Shewfelt is not wealthy. He is doing his best to support Austin, and these are very trying times.

Five hundred dollars ($500) in costs – all inclusive, ordered to be paid by Mr. Shewfelt within 90 days of today.

It’s a very modest award, but I’m rather sympathetic to Mr. Shewfelt’s current circumstances.

MATTER IS CONCLUDED

Form 1

CERTIFICATE OF RECORDING

Evidence Act (subsection 5(1))

I, Linda J. Thompson, certify that Recording 1011-crtrm#201-20170406-094356-10-CONLANC.dcr is the recording of the evidence and proceedings in the Superior Court of Justice held at 611 9th Avenue East, Owen Sound, Ontario on Thursday, April 6th, 2017, and that I was in charge of the sound recording device during those proceedings.

Form 2

CERTIFICATE OF TRANSCRIPT

Evidence Act (subsection 5(2))

I, Linda J. Thompson, certify that this document is a true and accurate transcript of the recording; Robert Shewfelt v. Tiffany Shewfelt, in the Superior Court of Justice, held 611 9th Avenue East, Owen Sound, Ontario taken from Recording which has been certified in Form 1.