Court File and Parties
Court File No.: 35-1931627 Date: 2017/06/29 Ontario Superior Court of Justice
Re: Tanya Fenton, Creditor And: William Wayland Fenton, Debtor
Before: Justice H. A. Rady
Counsel: Norman M. Aitken, for the creditor W. Scott Gallagher, for the debtor
Heard: June 27, 2017
Endorsement
[1] The Creditor, Ms. Fenton, seeks payment from the debtor, Mr. Fenton, of $19,293.49. The sum is comprised of two components. The first is the net amount said to be owing, arising from a $30,000 lump sum payment. It was ordered on April 25, 2014 by Justice Korpan to be made by Mr. Fenton to Ms. Fenton in the context of matrimonial litigation. The other component is for spousal support alleged to be owing to Ms. Fenton.
[2] Her order reflected the terms of Minutes of Settlement signed by the parties resolving all outstanding issues between them. It dealt with custody and access; child support; spousal support and equalization; debts; and pensions.
[3] Her order provided as follows:
The Respondent’s wife’s claim for spousal support shall be dismissed on the merits.
In full and final satisfaction of his spousal support and equalization payment obligations, the Applicant shall pay the non-taxable lump sum amount of $30,000.00 by certified cheque or bank draft payable to the Respondent’s solicitor, Norman M. Aitken in Trust, on or before June 9, 2014. This certified cheque or bank draft shall be delivered to the office of the Respondent’s solicitor at Suite 201, 390 Commissioners Rd. W., London, Ontario on or before 5:00 p.m. on June 9, 2014. After this payment has been made in a timely way, the parties are financially independent of each other and the Respondent releases her rights to spousal support from the Applicant, now and forever. Upon that payment being made in a timely manner, the Respondent further acknowledges and agrees that the payment includes an equalization payment in full satisfaction of all of her claims under Part 1 of the Family Law Act, the Divorce Act or the Succession Law Reform Act, as common law or equity.
[4] After the order was signed, Mr. Fenton made an assignment in bankruptcy. It is common ground that a bankruptcy does not extinguish the obligation to pay spousal support. See s. 178(1)(c) of the Bankruptcy and Insolvency Act.
[5] Mr. Fenton did not make the payment mandated by para. 22 of the Korpan order. Consequently, Ms. Fenton submits that his obligation to pay spousal support remains, which she calculates that to be $11,476.00. She arrives at that sum by assuming his income to be $35,000 and hers to be zero. That yields a SSAG calculation at the mid-range of $302.00 per month. On that basis, arrears of $11,476 are said to have accrued. I pause here to note that Mr. Fenton’s income is based on the sum attributed to him for child support purposes in the Korpan order.
[6] In my view, this application is misguided. I agree that Ms. Fenton’s agreement to relinquish her spousal support claim was predicated upon a timely payment of $30,000. That did not occur. The condition precedent was not satisfied. Consequently, her right to claim spousal support survives.
[7] However, in my view, Ms. Fenton must still establish her entitlement to spousal support and the appropriate quantum. The attribution of no income to her may or may not be appropriate and the issue of retroactivity is also live. Those determinations must be made in the Unified Family Court on application. In the meantime, Mr. Fenton will pay Ms. Fenton $7,817.49, as agreed, on account of the lump sum that was ordered.
[8] The application is dismissed. If the parties cannot agree, I will receive brief written submissions by July 19, 2017.
“Justice H. A. Rady” Justice H. A. Rady Released: June 29, 2017