CITATION: Verhey v. Verhey, 2017 ONSC 837
COURT FILE NO.: FC-10-1358-4
DATE: 2017/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TRACEY LYNN VERHEY
Applicant
– and –
BRENT JAMES VERHEY
Respondent
Rachelle Laforge, counsel for the Applicant
Christopher Rutherford, counsel for the Respondent
HEARD: September 20, 2016
Endorsement
OVERVIEW
[1] The moving party (“Brent”) and the responding party (“Tracey”) married each other on August 3, 1985. There are two children of their marriage namely Amanda, born August 31, 1993 and Emily, born December 17, 1995. They separated on November 1, 2008.
[2] At the time of the separation, the two children were entitled to support. In the fall of 2011, the parties settled all of the issues arising out of their separation by Minutes of Settlement\Separation Agreement (“Minutes of Settlement”) dated September 20, 2011. On September 22, 2011, Tracey filed the Minutes of Settlement with the Superior Court.
[3] On October 5, 2011, Justice Aitken granted a Divorce Order that granted the parties an divorce and stated at paragraphs 2 and 3 the following:
The final Minutes of Settlement\Separation Agreement dated September 20, 2011 shall remain in full force and effect.
Except as contained in the final Minutes of Settlement\Separation Agreement dated September 20, 2011, all other claims are dismissed without costs.
[4] In December 2011, the parties signed an Amending Agreement to the Minutes of Settlement dated September 20, 2011, amending the contribution to section 7 expenses and varied the quantum of spousal support because Tracey had obtained employment after the issuance of the Divorce Order.
[5] In September 2013, Brent lost his job and complied with the terms of the child support provisions of the Minutes of Settlement and the spousal support provisions of the Amending Agreement
[6] Brent submits that he sustained a material change in circumstances permitting him to vary the child support, the expenses related to postsecondary education, the spousal support and life insurance provisions of the Minutes of Settlement dated September 20, 2011 and the Amending Agreement dated December 20, 2011.
[7] In April 1, 2014, Brent filed a Motion to Change. By Notice of Motion dated May 19, 2016, Brent sought the following relief:
(a) an order determining Brent’s retroactive periodic child support obligations for the support of Amanda and Emily for the years 2013, 2014 and January 2015 to May 31, 2015;
(b) an order determining Brent’s retroactive periodic child support obligations for the sport of Emily for the period from June 1, 2015 to present day;
(c) an order determining Brent’s required contribution to the post-secondary education expenses of Amanda and Emily for 2013, 2014 and up to May 31, 2015 having regard to each child’s contributions;
(d) an order determining Brent’s required contribution to the post-secondary education expenses of Emily from June 1, 2015 to present;
(e) a declaration that Emily is no longer a child of the marriage upon her completion of post-secondary education studies in May 2017;
(f) an order determining Brent’s spousal support obligations for the support of Tracey retroactively to 2013 and prospectively;
(g) an order determining Brent’s obligation to maintain security for the support of Emily and Tracey and if established, the duration, and quantum;
(h) costs on a substantial indemnity basis; and
(i) such further and other relief that counsel made advise and this honourable Court may permit.
[8] By Notice of Motion dated July 7, 2016, Tracey seeks the following relief
(a) an order determining Brent’s income for the years 2013, 2014, 2015 and 2016;
(b) in the event that Brent’s income is deemed to be lower than $100,000 in any aforementioned years, an order imputing income to Brent for the same amount;
(c) an order that Brent pays 64% of the children’s postsecondary tuition fees for the years 2013 through 2017 as provided for by the party separation agreement;
(d) an order that Brent pay a lump sum of spousal support as calculated by the DivorceMate calculation based on Brent’s income and a duration up to Tracey’s 67th year pursuant to Section 15(2) of the Divorce Act;
(e) in the event that lump sum spousal support is not ordered, an order that Brent name Tracey as a revocable beneficiary of a life insurance policy worth not less than $50,000;
(f) an order for costs on a substantial indemnity basis; and,
(g) such further and other relief as this honourable Court deems just.
Jurisdictional Issue
[9] In Brent’s Factum and argument, he sought the variance of the child support , spousal support and life insurance provisions pursuant to Section 37 of the Family Law Act , R.S.O. 1990, c. F.3 while Tracey contested the relief based on Section 17 of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.) . Further, Tracey sought a lump sum payment of spousal support based on Section 15.2(1) of the Divorce Act.
[10] In December 2016, I raised an issue regarding the Court’s jurisdiction to vary the Minutes of Settlement, the Divorce Order and the Amending Agreement. I requested that the parties provide written submissions on this issue. On January 23, 2017, the parties filed a joint submission in which they submit that the Court has jurisdiction under Section 17 of the Divorce Act, to vary the terms of the Minutes of Settlement and Amending Agreement and, in the alternative, that the Court has jurisdiction under section 37 of the Family Law Act to vary these agreements.
Does the Court have jurisdiction to vary the Divorce Order and the Minutes of Settlement dated September 20, 2011 and the Amending Agreement dated December 21, 2011 under Section 17 of the Divorce Act?
[11] The parties submit that the Court can vary the terms of the Minutes of Settlement dated September 20, 2011 pursuant to section 17 of the Divorce Act because paragraphs 2 and 3 of the Divorce Order states that the Minutes of Settlement remains in full force and effect and dismissed all other claims. No jurisprudence was provided to support this submission.
[12] In Stobo v. Stobo, 2016 ONSC 5805, Doyle J, found that where the Divorce Order was silent as to any corollary relief, the Court could not vary the spousal support provisions of a Separation Agreement under Section 17 of the Divorce Act. Instead, the proper procedure was to commence an originating application for spousal support under section 15 (2).
[13] If the Divorce Order has adjudicated on spousal support, then there is no jurisdiction under the Family Law Act to vary the spousal support provisions (See: Gaughan v. Gaughan (1998), 45 R.F.L. (4th) 147).
[14] In this case the Divorce Order did not incorporate the terms of the Minutes of Settlement. Certain provisions of the Minutes of Settlement could not be incorporated into a Divorce Order such as the release clauses. I reject the submission that the effect of paragraphs 2 and 3 of the Divorce Order is to declare the Minutes of Settlement to be an order of the court. The terms of the Minutes of Settlement were not incorporated into the Divorce Order.
[15] Further, the Amending Agreement was signed after the Divorce Order and therefore was not part of the Divorce Order.
[16] I find that since the Minutes of Settlement were not incorporated into the Divorce Order, I do not have jurisdiction to vary the Divorce Order.
[17] Even if the Court had jurisdiction to vary the Divorce order, which I reject, I find that since the Amending Agreement was signed after the Divorce Order, I do not have jurisdiction to vary under Section 17. Brent seeks to vary the quantum of spousal support set out in the Amending Agreement. The jurisdiction of the Court under Section 17 is to vary court orders. The Amending Agreement was never a court order.
[18] On the issue of child support, I find that I have no jurisdiction to vary the child support provisions as they were not incorporated into the Divorce Order.
Does the Court have jurisdiction under section 37 of the Family Law Act to vary the Minutes of Settlement and the Amending Agreement filed with the Family Court of the Superior Court of Justice?
[19] The parties submit that if I do not have jurisdiction under the Divorce Act, I have jurisdiction under Section 37 of the Family Law Act.
[20] Section 35(1) of the Family Law Act provides that a person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court.
[21] Section 35(2) of the Family Law Act provides that a provision for support or maintenance contained in a contract that is filed in this manner,
(a) may be enforced;
(b) may be varied under section 37; and
(c) except in the case of a provision for the support of a child, may be increased under section 38.
[22] Section 37(2) of the Family Law Act provides that 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 the court considers appropriate in the circumstances referred to in section 33.
[23] Section 37(2.1) of the Family Law Act provides that in the case of an order for support of a child, if the court is satisfied that there has been a material change in the 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.
[24] In Huazarik v Fairfield, 2004 48161 (ON SC), 48 R.F.L. (5th) 275, Blishen, J stated:
[13] Section 37(2) of the Family Law Act provides that in the case of an order or agreement filed under s. 35 for support of a spouse, the court may vary a term of the order or agreement if the court is satisfied that there has been a material change in circumstances. There must be an order or agreement for support of a spouse.
[14] Spouse is defined, for the purposes of support obligations, under s. 29 of the Family Law Act to mean:
… a spouse as defined in subsection 1 (1), and in addition includes either of a man and woman who are not married to each other and have cohabited
(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. ("conjoint") R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2)
[15] Subsections (a) and (b) were designed to enable common law spouses to claim support. The parties in this case were married to each other and then subsequently divorced. Therefore, it is necessary to consider the definition in s. 1(1) which states as follows:
"spouse" means either of a man and woman who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. ("conjoint") R.S.O. 1990, c. F.3, s. 1 (1); 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1)
[16] Mr. Huazarik and Ms. Fairfield were not “spouses” when the Agreement was signed nor when the motion was brought. Therefore, it is not possible to make an order for spousal support under s. 33 or vary an order or agreement filed with the court under s. 35 for support of a spouse, as the parties are no longer married.
[17] In contrast to the Family Law Act, s. 15 of the Divorce Act, R.S. 1985, c. 3 (2nd Supp.) specifically states that in dealing with corollary relief in sections 15.1 to 16, “spouse” includes a former spouse. Therefore, it is possible under the Divorce Act to make an order for spousal support after the parties are divorced. There is no provision in the Divorce Act for the filing of a separation agreement for the purposes of variation or enforcement.
[18] If Mr. Huazarik and Ms. Fairfield had signed their Separation Agreement before the divorce when they were still spouses as defined under the Family Law Act, then the Agreement could have been filed under s. 35 and varied under s. 37.
[25] In Abernethy v. Peacock (2009), 2009 25128 (ON SC), 68 RFL (6th) 456 (Ont. S.C.) Herman J. sitting in appeal of a trial decision of the Ontario Court of Justice, found that the Ontario Court of Justice had jurisdiction to vary a separation agreement that was registered for enforcement two years before the parties obtained a Divorce Order. Herman J. stated:
[12] Section 37, which deals with variation applications, does not state that an application for variation must be made by a spouse. Rather, it says that the application may be made by a dependant or respondent named in the order. Ms. Abernethy is such a person. The court has the authority to discharge, vary or suspend a term of the “order for support of a spouse”. In this case, the order that was made is an “order for support of a spouse” because Ms. Abernethy was a spouse at the time she filed the agreement, at which point it became an order of the court.
[14] In the case of Huarzek v. Fairfield, [2004] O.J. No. 798 (Sup. Ct.), the court considered whether a divorced party could vary spousal support under the Family Law Act where the support was set out in a separation agreement signed after the divorce. Blishen J. held that, because the parties were not spouses when the agreement was signed, the court could not vary an order or agreement filed with the court. She contrasted this to the situation that is before me, stating in obiter that, had the parties signed their separation agreement before their divorce, they could have filed it under s. 35 and varied it under s. 37.
[24] In my opinion, the ability to apply for a variation of support under the Family Law Act is not limited to persons who are currently married. Rather, the jurisdiction of the court under that Act may be invoked if the persons were married at the time the order was made or the agreement filed with the court and the issue was not adjudicated on in the divorce.
[26] In Crosby v Crosby, 2016 ONSC 4194, Mitrow,J, in dealing with a Motion to Change of an Ontario Court of Justice support order based on minutes of settlement, followed the dicta of Herman J in the Abernethy (supra) case where he stated at paragraph 46 :
The reasons of Herman J, confirm that, where an order for spousal support is made in the Ontario Court of Justice pursuant to the Family Law Act (or is deemed to be by the filing of the separation agreement) while the parties are still married to each other, then the Ontario Court of Justice retains jurisdiction under the Family Law Act to vary spousal support even though the parties were subsequently divorced so long as the divorce order does not deal with the spousal support.
Analysis
[27] The facts of this case are as follows:
(a) on September 20, 2011, the parties entered into Minutes of Settlement, resolving all issues between them on a final basis;
(b) on September 22, 2011, Tracey signed a form 26B, Affidavit for Filing Domestic Contract with the Superior Court to enforce the support provisions of the attached Minutes of Settlement dated September 20, 2011;
(c) the Divorce Order dated October 5, 2011 granted the parties an order of divorce and stated at paragraphs 2 and 3 the following:
The final Minutes of Settlement\Separation Agreement dated September 20, 2011 shall remain in full force and effect.
Except as contained in the final Minutes of Settlement\Separation Agreement dated September 20, 2011, all other claims are dismissed without costs.
(d) on December 21, 2011, the parties signed an Amending Agreement to the September 20, 2011 Minutes of Settlement, varying the percentage of the sharing of the special or extraordinary expenses, varying the amount of spousal support, and confirming that all other terms of the parties’ original Minutes of Settlement dated September 20, 2011 shall remain in full force and effect;
(e) on December 22, 2011, Brent signed a form 26B, Affidavit for Filing Domestic Contract, with the Superior Court, including the amendment to the Minutes of Settlement so that the support provisions could be enforced or changed as if they were a court order.
[28] Tracey filed the first agreement with the Superior Court for enforcement on September 22, 2011, thirteen days before the Divorce Order was granted. Brent subsequently filed the Amending Agreement with the Superior Court for enforcement on December 22, 2011.
[29] In Brent’s affidavit dated May 19, 2016, at paragraph 4, he sets out what he seeks in his Motion to Change where he states:
- I am seeking to change my Separation Agreement dated September 20, 2011(as confirmed by the Divorce Order dated October 5, 2011) and my Amending Agreement dated December 21, 2011.
[30] Based on the jurisprudence, for me to have jurisdiction under section 37 of the Family Law Act, to vary the spousal support provisions of the Amending Agreement, the parties must have been married at the time that they signed the Amending Agreement and filed it with the Court. The parties were divorced on October 5, 2011, the parties signed the Amending Agreement on December 20, 2011 and filed with the Court on December 21, 2011.
[31] I find that I do not have jurisdiction to vary the spousal support provisions of the Amending Agreement as the parties were not married at the time of the signing of the Amending Agreement.
[32] I find that I have jurisdiction to vary the child support terms under Section 37 of the Family Law Act. The provision is not mandatory but is permissive.
[33] I note that rule 2 of the Family Law Rules, O. Reg. 114/99, requires the Court to
ensure that the procedure is fair to all parties;
save expense and time;
deal with cases in a way that are appropriate due to their importance and complexity; and
give appropriate court resources to the Court while taking account of the need to give resources to other cases.
[34] As stated by Aston, J. in Carpenter v Carpenter, 2000 22443 (ON SC), 11 R.F.L. (5th) 281, “the parties cannot, by consent, clothe the court with a jurisdiction it does not otherwise have.”
Disposition
[35] As spousal support is a major issue in this proceeding, rather than dismiss the Motion to Change for lack of jurisdiction on the issue of spousal support, the parties may schedule a date before me through the Office of the Trial Coordinator to advise how they wish to proceed on all issues.
Shelston, J
Released: February 2, 2017