COURT FILE NO.: FS-841-15 DATE: 2017/05/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL ROBERT STRANGWAY, Applicant AND: CHRISTINE LOUISE HOWARD, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Robert Bickle, for the Applicant Jessi L.N. Stanfield, for the Respondent

HEARD: April 24, 2017

Endorsement

Background And Nature Of The Motions

[1] The parties were married on April 28, 1988 and separated in September, 2007. They were divorced on November 14, 2009. The parties disagree on when they commenced living together. The applicant says that it was in October, 1987. The respondent says that it was in June, 1987.

[2] The parties have three children together, namely Cody Strangway, born May 16, 1988, Kasie Strangway born May 12, 1992, and Daniel Strangway born September 27, 1997. All three children are currently living independently, however Daniel is recently registered to attend a community college in Peterborough, Ontario commencing in September, 2017.

[3] An order was made, on consent of the parties, by Justice Hockin on September 1, 2009 providing for payment of child support by the applicant/father Daniel Robert Strangway to the respondent/mother Christine Louise Howard in the sum of $928 per month for the children Kasie and Daniel, based upon the applicant’s then income of $72,200 per year. The Hockin order recited that the amount of child support was less than the guideline amount to account for expenses the applicant was then paying toward the care of Cody. The order provided that it was reviewable if Cody graduates from college or ceases to reside with the applicant.

[4] The Hockin order also provided for the applicant to pay spousal support to the respondent in the sum of $850 per month, with the issue of spousal support to be reviewable three years from the date of the order.

[5] The child support provisions of the Hockin order were changed by the order of Justice Haines dated July 20, 2011 pursuant to Minutes of Settlement entered into by the parties. The Haines’ order provided for suspension of child support payable by the applicant for the child Kasie effective August 1, 2011 and specified that if she fails to attend post-secondary education, then support for her shall be deemed to be terminated effective September 1, 2012. The Haines' order provided further that commencing August 1, 2011 the applicant shall pay child support to the respondent for the child Daniel in the sum of $753 per month, based upon his 2010 income of $84,318.

[6] The applicant brought a motion to change on October 15, 2015 terminating child support for the child Daniel effective October 1, 2015 on the basis that he attained the age of 18 years on September 27, 2015 and was not in full-time attendance in school. The applicant also claimed that any overpayment of child support made by him after September 27, 2015 be reimbursed to him by the respondent.

[7] By notice of motion dated February 3, 2017 the applicant brought his motion to change on for hearing. The respondent, by notice of motion dated April 12, 2017, made a motion that spousal support be amended to be payable by the applicant to her in the sum of $1,603 per month commencing October 1, 2015, that any overpayment of child support be applied to satisfy retroactive spousal support, that there be no retroactive tax adjustment for spousal support payable from October 1, 2015 in exchange for the respondent seeking no contribution from the applicant for the expenses she is incurred to date for the children’s education, that each party be required to contribute his or her proportionate share towards the unfunded portion of the child Daniel’s post-secondary educational costs, and that the issue of spousal support be reviewed in three years.

Position Of The Applicant

[8] The applicant says that his obligation to pay child support ceased on September 27, 2015 when Daniel turned 18 and was no longer attending a full-time program of education. He requested the respondent to agree to a termination of child support by letter from his counsel dated August 12, 2015, however the respondent has refused to agree to such termination. The applicant says that from the end of September, 2015 to the end of April, 2017 he will have overpaid child support in the sum of $14,307. Since these payments have been characterized as child support, the applicant has not received any tax deduction in respect of them. He says that in the event that the overpayment in respect of child support is to be credited to spousal support, the amount ought to be grossed up to account for the tax deduction which would have been available to him. Based upon his marginal tax rate of approximately 29.65% he estimates the tax reduction that he would have been entitled to, had the over-payment been treated as spousal support is approximately $4,674.

[9] The applicant says that he should not be ordered to pay child support when Daniel begins attending post-secondary education in September, 2017, on the basis that Daniel has been living independently from the respondent and will continue to do so, and it is the applicant’s intention to contribute to Daniel’s post-secondary education expenses directly as he did with Kasie when she attended post-secondary education.

[10] The applicant submits that the relationship between the parties was a “medium length” relationship and it is reasonable to expect that the respondent would either become financially independent or transition from the marital standard of living after a reasonable period of time. He says that the Spousal Support Advisory Guidelines (SSAG) provides for a duration of 9.5 to 19 years for a 19 year marriage. He says that as of September, 2017 he would have paid spousal support to the respondent for approximately 9 years. If there was any compensatory the basis for the spousal support provided for in the Hockin order, the support that he has paid to date has compensated the respondent for her role in the marriage. He says that she has upgraded her education, retrained and has found employment on a full-time basis. He says that his obligation to pay spousal support should be terminated either immediately or should be ordered to terminate on a fixed date, and no later than September 1, 2020. He says that in the event that spousal support is not terminated immediately it ought to remain at the existing level.

Position of the Respondent

[11] The respondent acknowledges that there should be a suspension of child support for Daniel from the date that he turned 18 until he commences college, for which he has enrolled, in September, 2017. However, she states that the amount payable to her for spousal support should be increased to $1,603 per month from and after October 1, 2015, and any overpayment of child support should be applied to satisfy retroactive spousal support with no retroactive tax adjustment, in recognition of the expenses that she has incurred for the children’s education.

[12] The respondent submits that an order should be made requiring each party to contribute his or her share, proportionate to their respective incomes, towards the unfunded portion of Daniel’s post-secondary educational costs. She says that the applicant failed to contribute to the costs of Kasie’s education on a consistent and predictable basis, which was very problematic, causing undue stress on Kasie which affected her health and educational progress.

[13] The respondent submits that the parties’ marriage was a long-term “traditional” marriage where she was a homemaker, working part-time only on an intermittent basis, and the applicant was the breadwinner. She says that she subordinated her career development to accommodate the applicant’s career. She says that she contributed to the applicant’s current success and would be living a significantly improved lifestyle had the parties not separated. She says that she has made reasonable efforts to become self-sufficient, however, she has significant health issues, having been diagnosed with lupus, which complicates her ability to continue increasing her income and improving her lifestyle. She says the termination of spousal support is not appropriate in the circumstances.

Analysis

[14] The parties are agreed that no amount was payable by the applicant for child support from and after the date that Daniel attained the age of 18 years, being September 27, 2015. The overpayment of child support from that date until April 30, 2017 is the sum of $14,307.

[15] I am satisfied, based upon the respondent’s evidence, including her Financial Statement, that she has no ability to fund the reimbursement of the overpayment of child support. Moreover, as discussed below, I am of the view that the amount payable by the applicant to the respondent for spousal support should be increased in accordance with the SSAG from and after October 1, 2015, and the overpayment of child support by the applicant should be credited against the retroactive increase in spousal support payable by him from and after that date.

[16] In my view, is not necessary to undertake a calculation of a gross up of the overpayment of child support to account for the tax deduction. It is more appropriate to order that the overpayment be characterized as spousal support for the relevant period to permit the parties to file amended tax returns in order to achieve the appropriate tax treatment for the 2015 and 2016 taxation years. Counsel for the respondent submits that the tax impact on the respondent would be reduced by taking this approach, with no prejudice to the applicant. In my view this is appropriate as it replicates the tax treatment that would have applied had the amount of the overpayment been treated as spousal support in the first place.

[17] I am also satisfied that it is appropriate to make an order that each of the parties contribute to the unfunded portion of Daniel’s post-secondary education on an annual basis proportionate to their respective incomes. I accept that the ad hoc approach taken to contributions by the applicant to Kasie when she was in college was problematic, and the obligations of the parties to contribute to Daniel’s education should be supported by an order which should provide a greater measure of consistency and predictability. The difficulty is that there is no evidence on the record currently before the court with respect to the budget for Daniel’s educational expenses and the amount of the contribution towards those expenses that he should be required to contribute from OSAP loans or grants, summer or part-time earnings, and savings. The order should therefore provide that either party may bring the matter back on, supported by appropriate evidence, for a determination of the parties’ specific obligations to contribute, upon a failure of the parties to agree.

[18] In my view is not appropriate to terminate the applicant’s obligation to pay spousal support, nor to set a fixed date for such termination of September 1, 2020 (based on a 13 year total duration) or otherwise. There is a dispute as to whether the duration of the parties’ cohabitation exceeded 20 years. If it was less than 20 years it was only marginally so. Although the parties did not, in their consent to the Hockin order, specify that there was a compensatory basis for the order for spousal support, a finding of such a compensatory basis is not precluded upon the review contemplated in that order. In my view, based upon all of the evidence before me, I am satisfied that the relationship had the hallmarks of a long-term traditional marriage.

[19] Following separation there was a significant disparity in the parties’ respective standards of living, and the applicant has continued to enjoy a much higher standard of living and has achieved greater financial security than the respondent. Although the respondent did take some retraining, she was not able to secure employment in the field that she trained in, namely carpentry, and she was forced to return to relatively low-paying employment in the retail field. Notwithstanding her diligence, she has not been able to achieve any degree of real financial security and her financial position is, if anything, more tenuous than it was during the marriage.

[20] I also accept that although the precise diagnosis of lupus was not made with respect to the respondent’s condition until after separation, she did experience symptoms during the marriage which were characterized at that time as rheumatoid arthritis. The impact that the respondent’s medical condition may have on her ability to continue to support herself is still unknown. It is inappropriate to set a fixed date for termination of the applicant’s obligation to pay spousal support in the circumstances. The respondent is content to provide for a review of spousal support in three years. I find that this approach is appropriate.

[21] The applicant’s 2015 income from employment was $87,113. The respondent’s income from employment for that year was $33,470. Under the SSAG, the mid-range of spousal support based upon these incomes, utilizing the “without child support” formula, was approximately $1,565 per month.

[22] The applicant’s 2016 income was the sum of $87,113, and the respondent’s 2016 income from her employment was $36,247.84, including annual profit sharing offered by her employer. Under the SSAG, the mid-range of spousal support based upon these incomes, utilizing the “without child support” formula, would be approximately $1,400 per month.

Disposition

[23] Based upon the foregoing, it is ordered as follows:

(a) periodic child support payable by the applicant Daniel Robert Strangway for the child Daniel Christopher Strangway born September 27, 1997 shall be terminated effective October 1, 2015;

(b) the applicant shall pay spousal support to the respondent in the sum of $1,565 per month for the period commencing October 1, 2015 to December 1, 2016, and in the sum of $1,400 per month commencing January 1, 2017;

(c) the overpayment of child support by the applicant to the respondent for the period October 1, 2015 to April 30, 2017 in the sum of $14,307 shall be credited against the amount owing by the applicant to the respondent in respect of increased spousal support for the period commencing October 1, 2015;

(d) the parties shall each file amended income tax returns with Canada Revenue Agency within 60 days hereof to reflect the adjustments to child and spousal support provided by this order;

(e) the issue of spousal support is reviewable three years from the date hereof;

(f) each of the parties shall contribute to the portion of the post-secondary education expenses of the child Daniel Christopher Strangway, in excess of the amount which the said child is reasonably able to contribute from his own resources and from OSAP funding, on an annual basis commencing September 1, 2017 proportionate to their respective incomes;

(g) either party may bring a motion, supported by appropriate evidence, for a determination of the parties’ specific obligations to contribute to the post-secondary expenses of the said child, upon a failure of the parties to agree to the amounts of their respective shares;

(h) Support Deduction Order to issue.

[24] The parties are strongly encouraged to agree upon costs. In the event that they are unable to agree, they may make brief written submissions with respect to costs. The respondent shall have 21 days from the date hereof to deliver her submissions, and the applicant shall have 14 days thereafter to deliver his submissions. Such submissions shall not exceed three double-spaced typed pages, exclusive of Bills of Costs or Costs Outlines and Offers to Settle and shall be delivered to my chambers at 85 Frederick Street 7th floor, Kitchener, Ontario, N2H 0A7.

D.A. Broad, J.