Court File and Parties

Court File No.: 2829/13-01 Date: 2017-04-28 Ontario Superior Court of Justice

Between: Stephanie Montgomery (formerly Stephanie Burt), Applicant – and – Shane Burt, Respondent

Counsel: Bonnie L. Ostroski, for the Applicant Self-Represented, for the Respondent

Heard: February 16, 2017

Before: Rasaiah J.

Reasons for Decision on Motion

Overview

[1] The respondent filed a motion to change November 22, 2016, returnable January 5, 2017, seeking to terminate, effective July 17, 2016, spousal support payable by him to the applicant, by the order of McMillan J. dated December 16, 2013. The order was made on claims made by application under the Family Law Act, R.S.O. 1990, c. F.3, as am. (“Family Law Act”) and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am.

[2] The applicant failed to attend the first appearance on the motion to change and Gareau J. (noting that the applicant had been duly served, paged and not having answered the page), made an order: suspending spousal support payable by paragraph 5 of McMillan J.’s said order effective January 1, 2017; adjourning the matter to January 19, 2017; and requiring a copy of the endorsement to be served on the applicant.

[3] The motion to change was so adjourned to permit the case to proceed to a case conference January 30, 2017 and for the applicant to file her materials by January 20, 2017.

[4] On January 19, 2017, the applicant filed a response to the motion to change in which she sought a change of her own including: retroactive variation of child support commencing January 1, 2014; payment of section 7 expenses (hockey expenses); an order fixing and setting the payment of unpaid child and spousal support arrears; and an order setting aside the order of Gareau J. dated January 5, 2017 (“suspension order”).

[5] The case conference was held and the claims ordered permitted to proceed to the next step.

[6] On February 16, 2017, both parties sought to argue the motion to change based on the materials filed in the continuing record.

Terms of the Orders

[7] Paragraphs 3, 4, 5, and 10 of the order of McMillan J. dated December 16, 2013 provide:

3. The Respondent Shane Burt pay child support to the Applicant Stephanie Burt for the benefit of the child Seth Burt, born February 3, 2004, in the sum of $825.00 per month in accordance with his average annual income for the last three years of $92,980 and the child support guidelines commencing August 1, 2013.

4. The Section 7 extraordinary expenses shall be agreed upon by the parties and shall be paid in proportion to the respective incomes of the parties.

5. The Respondent Shane Burt shall pay spousal support to the Applicant in the amount of $500.00 per month commencing August 1, 2013.

6. The Respondent Shane Burt shall provide to the Applicant his income tax returns and Notices of Assessments by May 1st of each year.

[8] McMillan J.’s order contains no variation clause or termination clause specifically within the order itself in respect of spousal support.

[9] The endorsement of Gareau J. dated January 5, 2017, Gareau J. provides:

…Pending the adjournment, the spousal support provision in paragraph 5 of the order granted on December 16, 2013 by Justice I.S. McMillan is suspended effective January 1, 2017.

Positions

[10] At the hearing of the motion the respondent did not dispute his obligation to pay regular child support. He did not contest same, or the amounts calculated by the applicant, and/or how his income was calculated by the applicant to determine the amounts owed, namely the averaging his income each year based on his last three years income.

[11] The respondent however, submitted more than once that he had no ability to pay arrears (child and/or spousal support) and relied on his current circumstances and financial statement.

[12] In respect of section 7 expenses the respondent’s argument was that he paid what he could and just has no finances at this time to pay section 7 expenses. He did not submit that hockey was not an appropriate section 7 expense for which he should pay his pro rata share of. His sole issue was ability to pay, as with the arrears.

[13] As for spousal support, the respondent asked that it be terminated on the basis of his financial circumstances and on the basis that the applicant was living in a common law relationship with her partner effective July 17, 2016.

[14] At the hearing of the motion, the applicant sought the child support relief claimed in her response to the motion to change as set out above.

[15] On the issue of arrears the applicant suggested that the court fix same and order payments if the court accepted the respondent had an inability to pay them.

[16] On the issue of section 7 expenses, the applicant was seeking payment of section 7 expenses related to the child’s hockey activities, as set out in her affidavit, for the 2016/2017 hockey season, which were not contributed to by the respondent pursuant to the McMillan J. order.

[17] Finally, the applicant asked that the respondent’s motion to terminate her spousal support be dismissed with costs and that the suspension be lifted effective January 1, 2017. She argued that there had been no material change in circumstances that would or should alter the spousal support order.

Background

[18] The parties started living together on or about April 1994. They were married August 15, 1997. They separated November 2012, after an approximately an 18 year and seven month relationship. They have two child of their marriage, namely Stephen Burt, born February 19, 1994 (independent now), and Seth Burt, born February 3, 2004 (“the child”), who lives in Sault Ste. Marie with the applicant. The respondent has reasonable access on reasonable notice to the applicant.

[19] The respondent is 46 years of age and currently lives in Sault Ste. Marie. He is an iron worker and member of Ironworkers Local 786. The respondent at the time of the hearing was unemployed, having been laid off September 28, 2016.

[20] The applicant is 42 years of age and employed full-time in human resources at Extendicare Van Daele.

[21] The applicant is currently living with a new partner who is a pharmacist. Her partner earns $120,000 annually. This new residency arrangement commenced on or about July of 2016. The applicant’s partner does not contribute to her expenses or the child’s expenses. She and her partner each pay self-assigned expenses of the home that they reside in together. The applicant’s partner pays for his expenses and his two children’s expenses. Together, they have three children living with them regularly, sometimes four (his two and the parties’ two children).

[22] The respondent’s notices of assessment/reassessment for 2013 indicate that the respondent earned line 150 income of $125,233 and received a refund of $6,277.25.

[23] The respondent’s notices of assessment/reassessment for 2014 indicate that the respondent earned line 150 income of $104,143 and received a refund of $3,560.84.

[24] The respondent’s notices of assessment/reassessment for 2015 indicate that the respondent earned line 150 income of $81,747 and received a refund of $6,468.41.

[25] The respondent’s employee statement of earnings from Waiward Steel LP for period 40, pay date October 6, 2016 showed gross income to the respondent of $88,748.19.

[26] The records of employment from Waiward Steel Limited Partnership indicate that the respondent was laid off due to shortage of work/end of contract or season, twice in 2016.

[27] Since his lay-off, the respondent has received $940 biweekly employment insurance benefits.

[28] The respondent in his first financial statement filed, recorded his monthly income as $11,956.91. His housing costs, including rent and apartment insurance were recorded as $725 per month; transportation costs including gas and oil, car insurance and license, repairs and maintenance, and loans and lease payments at $1,751.54 per month; health expenses including dental expenses at $50 per month; personal expenses including clothing for work boots ($400), hair ($100) and alcohol and tobacco ($600), cell phone, cable and internet at $1,320 per month; household expenses including groceries ($400), supplies ($100), meals outside of the home ($300) and laundry at $840 per month; entertainment expenses at $75 per month; and other expenses including flights (reimbursed via pay) at $1,500 per month. The respondent owns a 2012 Tundra, a 2014 Polaris four wheeler, and a utility trailer estimated at $28,156 in value. The respondent claims debts of $78,228.39 (truck loan, line of credit, Desjardins and MasterCard) which require monthly payments collectively of $2,066.50 per month.

[29] The respondent subsequently updated his financial statement and indicated his income for 2016 (including EI) was $93,354.19, identifying that $88,748.19 of it was from his employment with Waiward Steel LP. He added further assets including an enclosed trailer and a bank account, valued collectively at $4,000.

[30] The respondent’s father has been paying a number of the respondent’s expenses since the respondent’s lay-off including child and spousal support.

[31] The respondent stated that he has applied to different jobs all over Canada so that he can return to some kind of normality in his life. He stated the work portfolio is low right now.

[32] In 2016, the applicant’s paystub for December 29, 2016 showed year to date income of $35,334.49.

[33] In 2015, the applicant earned line 150 income of $39,543 and received a refund of $2,115.19.

[34] In 2014, the applicant earned line 150 income of $42,130 and received a refund of $1,822.43.

[35] In 2013, the applicant earned line 150 income of $37,666 and received a refund of $2,715.44.

[36] In her financial statement, the applicant claims housing expenses of $996.48 per month; utilities of $576.80 per month; housing expenses of $800 per month; transportation expenses of $870.27 per month; health expenses of $10 per month; personal expenses of $400 per month, and other expenses of $1,007.60 per month. She owns her own home, a 2016 Forerunner, household contents, has two bank accounts, an RESP, RRSP, pension, and TFSA. She has debts of $178,331.84 including mortgage, line of credit and vehicle loan, which require monthly payments of $1,654.10.

[37] The applicant pays utilities, including heat and electricity, land line, cable and internet at the home she lives in, her own cell phone, a portion of the groceries for herself, Stephen and the child. All the expenses in the financial statement are hers and not contributed to by her partner.

[38] The applicant claims to receive annual rental income of $13,200 for her home that she owns. This happened it appears sometime after she moved into her partner’s home with his two children, and the parties’ children Seth and Stephen. The actual date that she started to rent out the home is not known. She claims she has net rental loss of $1,041.36.

Issues

[39] The issues are:

1. Spousal Support: (a) Has there been a material change in the applicant’s or respondent’s circumstances? (b) Based on the answer to the above, what should the court do with the spousal support term and suspension order?

2. Child Support: (a) Calculating the respondent’s income; (b) Has there been a change in circumstances per the Child Support Guidelines? (c) Based on the answer to the above, what should the court do with the child support term?

3. Arrears of Child and Spousal Support: (a) What is the amount of outstanding child and spousal support? (b) What relief if any, should the respondent receive in respect of payment of outstanding child and spousal support?

4. Section 7 expenses: (a) What is the respondent’s share of the hockey expenses, and what relief if any should the respondent receive from paying same or part thereof based on the means of the parties and child?

5. What costs should be paid on this motion to change, if any?

Law

[40] The Family Law Act provides in section 37:

37. (1) An application to the court for variation of an order made or confirmed under this Part may be made by, (a) a dependant or respondent named in the order; (b) a parent of a dependant 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.

Powers of court: spouse and parent support

(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 dependant’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).

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines 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 for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

Application of child support guidelines

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. 1997, c. 20, s. 6.

[41] O. Reg. 391/97: Child Support Guidelines (“Child Support Guidelines”) under the Family Law Act, subsection 7(1)(f), and sections 14 through 17 provide:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: (f) extraordinary expenses for extracurricular activities.

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
    1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
    2. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.
    3. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
    4. In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act.

Determination of annual income

15. (1) Subject to subsection (2), a parent’s or spouse’s annual income is determined by the court in accordance with sections 16 to 20.

Calculation of annual income

16. Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Pattern of income

17. (1) If the court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. O. Reg. 446/01, s. 5.

[42] In Gray v. Rizzi, 2016 ONCA 152, the Ontario Court of Appeal addressed the principles to be applied when a support payor moves to retroactively change a support obligation based on a reduction in income, the factors to consider and how it should be calculated. At paras 55 through to 64 where the court wrote:

55 In Corcios v. Burgos, 2011 ONSC 3326, Chappel J. adapted the D.B.S. principles to a motion to change a child support order where the payor requested a retroactive decrease in support or rescission of arrears. I find it hard to improve on the analysis set out at para. 55 of her reasons. I adopt her analysis and summarize the key principles below.

56 First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

57 Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.

58 A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

59 Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: "[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly."

60 … While there is no fixed formula a court must follow when exercising its discretion in this circumstance, Chappel J. identified the following factors to guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor's delay in applying for relief;
4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";
6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; and
7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.: “[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.”

61 If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following S. (D.B.), a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

62 Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide "reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately." As put by Chappel J.: “A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred.”

63 This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor's financial situation. A payor's failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

64 Finally, "with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating."

[43] The definition of spouse in the Family Law Act includes either of two persons who are not married to each other and have cohabitated, (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child: Family Law Act, s.29.

Analysis

Ongoing Child Support and Variation

[44] I am satisfied, as it had been previously consented to (McMillan J.’s December 16, 2013 order), and not objected to by the respondent at the hearing, that the fairest determination of his income, given its continuing pattern of regular fluctuation, would be an average of his income over the last three years.

[45] I am satisfied that there has been a change in circumstances within the meaning of the Child Support Guidelines to vary the child support. The respondent’s income has changed which would have resulted in a different order of support per the Child Support Guidelines.

[46] As for calculations, the applicant submitted a summary table of her calculations in her materials.

[47] My calculations regarding income and child support obligations are set out in the table that follows. My figures differ slightly from that of the applicant due to the applicant not having the respondent’s full income information at the time her summary table was prepared. In addition, the rental income was not claimed in the income section of the applicant’s financial statement. Her net loss does not match the calculation of rental income less expenses claimed on the financial statement (based on how she identified them). The expenses are $996.48 per month (not $1,186.78) per her financial statement. The rental income is $1,100 per month and therefore the net income is $103.52 for additional annual net income of $1,242.24. It is not clear when this income commenced but she moved in with her partner on or about July of 2016.

Year	Respondent’s Line 150 Income	Average of previous three years Line 150 income	Applicant’s Line 150 Income	CSG Table Amount based on foregoing averaged income	CSG % based on foregoing averaged income and $500/mo spousal support	Number of months payable
2011	97,009.05	n/a	n/a	n/a	n/a	n/a
2012	97,729.00	n/a	46,923	n/a	n/a	n/a
2013	125,233.00	92,980 (as agreed in the order) 106,657 (actual)	37,666	825 932	66.6	5
2014	104,143.00	109,035.00	42,130	950	68.2	12
2015	81,747.00	103,707.67	39,543	909	67.9	12
2016	93,354.19	93,081.39	35,334 (Unknown months of rental income at $103.52/mo, 6 months included)	826	67.5	12
2017	Unknown at this time	93,081.39	35,334 (plus 1,242.24 rental)	826	67.3

[48] Based on the above, the ongoing table child support amount commencing January 1, 2017 should be $826 per month.

[49] As to retroactive variation, based on the law and facts of this particular case I find that the claim for retroactive variation is appropriate and that it is appropriate to extend the variation back to January 1, 2014 as claimed by the applicant in her response to the motion to change. Many of my findings on this issue are set out below in the section addressing the claims regarding arrears of child and spousal support.

[50] The retroactive variation amount would amount to $2,520:

Year	Guideline Amount	Order Amount	Difference
2014	11,400	9,900	1,500
2015	10,908	9,900	1,008
2016	9,912	9,900	12
Total:			2,520

Arrears of Child and Spousal Support

[51] In terms of the issue of arrears and applicable to retroactive variation dealt with above, I find that the respondent failed to advise the applicant as required of his income. It is clear by the McMillan J. order that he had the obligation to do so. The respondent did not deny that he failed to provide his income information as required in his materials or at the hearing. In one of the years, he made $125,233 which was a significant increase in income compared to the amount the McMillan J. order was based on. In all three of those years he received tax refunds, totally a little over $16,000.

[52] In respect of payment of support, the nature of the obligation to pay support was judicial.

[53] The income information from the applicant establishes that the support was needed.

[54] I reviewed the bank records. I find that prior to the McMillan J. order being re-registered with Director, Family Responsibility Office (“FRO”) for enforcement, the respondent had failed to pay all of his ordered support. The bank records reflect that there were occasions where the respondent failed to pay the full child support amount plus paid zero of his spousal support obligation.

[55] Based on the income information filed, during the time frame of accumulation of arrears, the respondent was making sufficient income to pay his obligations. There was only one year he made less than the actual income on which the order was based, but using the averaging of income determination, there were no years in which he made less than the income on which the order was based. Over the three years, the arrears accumulated the respondent earned $311,123.

[56] The applicant described the respondent as abusive and difficult to deal with, and that in instances that she attempted to address support issues with him, she was met with profanities and verbal abuse. The reasons for the breakdown of the marriage she stated included verbal abuse. The applicant was also of limited resources, not being paid the full support and earning the income she was earning. The applicant filed an example of a text message conversation regarding hockey expenses for the child that she had with the respondent in which the response unfortunately expresses a number of profanities/derogatory statements directed at the applicant and the child. The respondent did not deny that he sent this text message in his material or at the hearing.

[57] The applicant states that she was forced to re-register the order with FRO because the respondent refused to pay her the full amount of support he was to pay her.

[58] When the support order was re-registered with FRO, it was the respondent’s parents, not the respondent who paid the support, notwithstanding he was working and made more income in 2016 than the income on which the order was based.

[59] Based on the above, I accept the applicant’s evidence that the respondent, for her, was a very difficult person to deal with, and that she was of limited finances. The foregoing combined with his failure to disclose income information to her, constitutes an acceptable explanation for why she waited for the motion to change to seek the variation and payment of arrears.

[60] I have reviewed the FRO Director’s Statement of Arrears (“DSOA”) closely. The issue with it not indicating what is actually owed appears to have been caused by the withdrawal from FRO, the re-registration with FRO ($50 fee added), the applicant’s support recipient statement of arrears (“SOA”) prepared by the applicant (which was done incorrectly), and the suspension order (which stopped accrual on all support effective February 2, 2017).

[61] As to payments, the respondent states that he paid all support via payments through the bank. The bank records were provided by both parties. I went through those records. The respondent did not establish payments over and above the ones recorded by the applicant. Many of his records matched her records. The respondent from August 1, 2013 to and including January 1, 2016 was to make payments totaling $39,750. He paid $28,189.54 from the records filed. Accordingly I find he underpaid the respondent based on the order by $11,560.46, not the $10,754.46 the applicant calculated in the SOA as she stated.

[62] The DSOA starts February 2, 2016. Eleven payments of the full support ordered were paid to and including the December 1, 2016 payment due. January 1, 2017 payment was accrued but then the order was suspended by the suspension order and I see no further accruals thereafter or payment of that January 1, 2017 accrual. Next, the DSOA shows the SOA arrears and then the credit that the applicant gave the respondent on the SOA, which was too high by $806 which is supported by the bank records I reviewed. Therefore, without having any regard to variation/termination of the order, the outstanding arrears as at January 5, 2017 when the suspension order was made is $12,885.46 (The arrears reflected by FRO in the DSOA are $$12,129.46. It correctly displays 42 accruals of support of $55,650 less payments he said were made by his parents of $14,575 and less the incorrect credit the applicant gave him of $28,995.54 equals $12,079.46, plus the enforcement fee of $50 equals $12,129.46. DSOA balance $12,129.46 plus $806 error = $12,885.46).

[63] I am not satisfied that the respondent demonstrated and/or that the evidence supports a past inability to pay causing accumulation of arrears.

[64] In respect of the respondent’s financial statement and current situation, I am of the view that there were some expenses and some non-essential items that appeared very high and not justified by the evidence filed, included but not limited to alcohol and tobacco, hair expenses, meals outside of the home, clothing and work boots. I also note that he is not without extracurricular assets, such as trailers and a four wheeler. Finally, one of the respondent’s big issues appears to be debt, which he claims requires monthly payments of $2,066.50. Whether this is the case or not, I find his debts do not take priority over child and spousal support in this case. There was no evidence that the respondent has taken steps to seek financial counselling to address these debts. He simply has been asking his parents to pay his bills. Further, I agree with the submission that the respondent, knowing that he is a seasonal worker, should have, and should continue to order his finances accordingly to account for same. Accordingly, I am not satisfied that the respondent has demonstrated that his present ability to pay justifies relief from payment of arrears.

[65] Further, I am not satisfied that the respondent has demonstrated that he has a future inability to pay. He has not taken the position that he will not be returning to work. His history is that he is a seasonal worker with periods of lay-off. He indicated to the court that he was leaving to find work (next week).The parties’ son Stephen is also an Ironworker and has returned to work. The respondent did not not file any documents or affidavits satisfactorily establishing that there is no work available to him at this time and/or any proof of what efforts he has or is making to be employed.

[66] Based on the above, I decline to make an order relieving the respondent from the payment of part or all of the arrears of child and spousal support.

[67] I do not know what the respondent has paid by way of child support from the last date set in the DSOA and as such, I will only fix arrears to and including January 1, 2017. FRO will adjust the statement of arrears to address my within order for the time frame that follows.

Section 7 Expenses

[68] The child plays hockey. Hockey is the child’s only extracurricular expense. The respondent did not submit that he did not agree to the activity or that the activity was not in the child’s best interests or unnecessary. Even if he did, I find that the facts establish that he had agreed; he contributed to expenses for the 2015/2016 season. Further, the activity is reasonable in relation to the child’s best interests and necessary based on the fact that this is the child’s only activity and he benefits from it. As such, McMillan J.’s order requires that the respondent pay his share.

[69] The hockey expenses for the 2016/2017 season are outlined in the applicant’s affidavit. The total amount is $2,660.76. The amount claimed is not an unreasonable amount considering it includes, league and team fees, equipment and tournament costs. The parties collective gross means are approximately $130,000.

[70] The respondent has not contributed to/paid for any of these said expenses. The applicant states the respondent paid team fees and for one pair of hockey pants (amount unknown) for the 2015 to 2016 season only.

[71] His share of the $2,660.76 based on his income as calculated for support purposes and based on payment of spousal support of $500 per month is 67.5 per cent. Accordingly, the respondent’s share is $1,796.01 based on 67.5% as calculated in the table above.

[72] For the same reasons as set out regarding spousal and child support arrears, I am not satisfied that the respondent has an inability to pay this amount and I decline to make an order relieving the respondent from payment of part or all of his share of this expense.

Spousal Support

[73] In respect of spousal support, I am not satisfied that there has been a material change in either the applicant’s or respondent’s circumstances to discharge the spousal support.

[74] The respondent’s circumstances, namely being laid off, are a regular occurrence in his line of work and it was so at the time the McMillan J. order was made. Experiencing periods of unemployment is not new for the respondent. The respondent is a seasonal iron worker.

[75] The applicant is now living with another, but that relationship is still very new. Her new partner is not factually, and is not obliged in law to support the applicant at this stage of the relationship. They have not been in a continuous relationship for three years in duration.

[76] Even if the applicant’s financial circumstances can be described as better with her new living arrangements and having rented out her home, the improvement is not significant. If I add the rental income of $13,200 to the applicant’s income, this provides her with sources in the amount of $64,812.12 including all the child support and her tax credits/benefits to pay her expenses of $64,345.56.

[77] Further, in my view, the facts regarding the relationship and roles during the marriage would have supported a compensatory entitlement and not just a “needs based” entitlement. This was an 18 year 7 month relationship. The respondent worked for most of his career outside of Sault Ste. Marie, leaving the applicant to care for the parties’ two children full-time on her own. Her career was guided by that fact which the respondent took whatever work he chose.

[78] The applicant continues to have primary care of the child. The respondent’s work schedule continues to interfere with his ability to exercise access. His access is often exercised by his parents.

[79] Further, the amount of spousal support that was previously ordered in 2013 was less than the low range of applicable spousal support, based on the parties’ incomes as determined for child support purposes. The applicant claims that due to years of verbal abuse and threats she had accepted an amount of spousal support below the Spousal Support Advisory Guidelines (“SSAG”) to resolve the issue. It may well have been that the applicant was entitled to more; support in the mid to high range. The current monthly SSAG range based on the present income of the parties is $375; $754 and $1,126 (low, mid and high). I would have placed her in the mid to high range. McMillan J.’s order provides for $500 monthly which is between the low and mid-range. I do not accept and the respondent provided no evidence that he retained family debt at separation over and above what equalization would have required.

[80] In summary, I do not find that the circumstances submitted by the respondent constitute material changes in circumstances in this case, and even if they did, this case is not one where such circumstances would or should result in a change in the spousal support term.

Costs

[81] The applicant provided a bill of costs. The applicant in the bill of costs seeks $10,311.58 inclusive of disbursements and H.S.T. The amount represents time spent on pleadings, court attendances and appointments and administrative matters relating to the motion to change and her claim in the response to the motion to change.

[82] The applicant is the successful party on the motion to change and the claim made in her response to the motion to change.

[83] The issues were not complex.

[84] The hourly rates charged based on years of experience are not unreasonable.

[85] The disbursements are reasonable.

[86] Costs were not sought (that I can see from the file) for any of the court attendances prior to the hearing, which amount to $752.50. Some of the pleadings time includes the case conference brief and confirmation.

[87] While the remaining steps do not inappropriately reflect steps related to the motion to change and response to the motion to change and hearing, the amount claimed is an amount based on full-recovery basis and I find they are high for this case, even though I appreciate that bank records needed to be obtained and reviewed.

[88] No offers of settlement were exchanged.

[89] I do not find that either party behaved unreasonably from a cost perspective; except for the fact that it did not appear that the respondent had taken the time to send a demand letter prior to commencing the motion to change.

[90] I am mindful and consider that by the orders I am making, I will be requiring the respondent to pay ongoing support, section 7 expenses and payment of the arrears which are substantial.

[91] Again, the bill of costs reflects full recovery, which I do not find is warranted in this case.

[92] Balancing all of the above, I do find that I ought to and I do exercise my discretion to award some costs. I find that balancing all of the above considerations that $4,000 is a fair and reasonable amount. That being said, given the obligations for child support and spousal support and arrears and the respondent’s income, I find it is reasonable to postpone the payment of costs.

Order

[93] Based on all of the above, I make the following final order:

a. The suspension of paragraph 5 of the order of McMillan J. dated December 16, 2013 that was ordered by the order of Gareau J. dated January 5, 2017 is hereby set aside effective January 1, 2017.

b. The child support payable by the order of McMillan J. dated December 16, 2013 is varied, namely, paragraph 3 thereof vacated, and replaced with the following: i. Commencing January 1, 2017 and on the first day of each month thereafter until further order of the court, the respondent, having average income over the last three years of $93,081.39, shall pay support for the child Seth Burt (“child”), born February 3, 2004, in the amount of $826.

c. Pursuant to paragraph 4 of the order of McMillan J. dated December 16, 2013, the respondent shall pay to the applicant on account of the child’s hockey expenses for the 2016/2017 season in the amount of $1,796.01.

d. The arrears of child and spousal support owing to and including January 1, 2017 by operation of the order of McMillan J. dated December 16, 2013 and this order are hereby fixed at $15,405.46 (outstanding arrears of $12,885.46 (inclusive of FRO $50 fee) plus retroactive variation amount of $2,520), payable at the rate of $200 per month commencing June 1, 2017. When the respondent’s obligation to pay child and/or spousal support ends, if the said arrears have yet to be paid in full, the applicant may apply to change/increase the said monthly arrears payment.

e. The respondent shall pay costs to the applicant on account of legal fees and expenses arising in relation to the motion to change support in the amount of $4,000. Payment of these costs shall be postponed until such time as the respondent’s obligation to pay child and/or spousal support ends.

Rasaiah J. Released: April 28, 2017

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: STEPHANIE MONTGOMERY (formerly STEPHANIE BURT) – and – SHANE BURT REASONS FOR decision on motion Rasaiah J. Released: April 28, 2017