CITATION: Leeson v. Bildy, 2017 ONSC 998
COURT FILE NO.: FD119/96-1
DATE: February 16, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Carol Dianna Leeson, applicant
AND: Alec Stephen Bildy, respondent
BEFORE: MITROW J.
COUNSEL: Carol Dianne Leeson in person Scott Merrifield for the respondent
HEARD: November 10, 2016
ENDORSEMENT
INTRODUCTION
[1] The applicant had commenced a motion to change pursuant to s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] issued September 2, 2014 seeking further spousal support and, for the youngest child, seeking payments for arrears of child support and ongoing child support payments.
[2] The respondent brought a motion for summary judgment seeking a dismissal of the applicant’s motion to change. It was this motion that was heard by the court on November 10, 2016.
[3] For reasons that follow, the respondent’s motion for summary judgment is granted and the applicant’s motion to change is dismissed.
BRIEF BACKGROUND
[4] The parties were married to each other in 1982 and separated approximately twelve-and-a-half years later in February 1995.
[5] The parties were divorced in 1996.
[6] The parties have two children, Stephan and Michael, who, respectively, were ages 28 and 26 as at the date of the hearing of the summary judgment motion. As at that date, each party was age 57. Stephan is married and self-supporting.
[7] The respondent is an experienced senior lawyer at a large law firm in London. The respondent has remarried; his wife does not work outside the home; the respondent and his wife have two teenage children.
[8] The applicant resides on her own. It is her position that she requires further spousal support from the respondent.
LITIGATION HISTORY
[9] As explained below, the parties’ litigation history has spanned a time period in excess of 20 years.
[10] At one point during the course of the current litigation, being the applicant’s motion to change, the clerk issued a notice of approaching dismissal. The respondent’s motion for summary judgment was first returnable on April 13, 2016 and has been adjourned from time to time, with some of the adjournments to permit the applicant to retain counsel and/or provide sufficient time for her to file her responding material.
[11] Given the length of time the current motion to change has been before the court, and having regard to the fact that affidavit material was filed prior to the service of the summary judgment motion, the parties agreed, during the hearing of the summary judgment motion, as to the affidavit evidence that comprised the evidentiary record on the summary judgment motion.[^1]
A. The Trial Judgment
[12] The trial was heard by Beckett J. spanning a period of four days during March 1997. Judgment was rendered on May 7, 1997 and is reported at Bildy v. Bildy, 1997 12240 (ON SC).
[13] Most of the issues, including quantum of spousal support, were settled prior to the commencement of trial. The issues that were tried before Beckett J. related to whether spousal support should be time-limited and “some relatively minor matters with respect to the equalization of net family property” (para. 1).
[14] The parties had entered into minutes of settlement in relation to custody, access and child support and an order was made after trial reflecting those partial minutes of settlement. A copy of this order was not produced as part of the evidentiary record on the motion for summary judgment.
[15] The trial judgment confirmed the following:
a) following high school, the applicant was employed for six years from 1976 to 1982 at London Life; the evidence was that she was “successful and competent in her position and was soon promoted to secretary of the manager” (para. 2);
b) the parties met in 1977;
c) the respondent graduated with a law degree in 1982, following which the parties married and moved to Calgary where the respondent articled with a law firm and was then hired as an associate in that firm;
d) in 1984, the respondent attended Cambridge to obtain his LL.M. degree; according to the reasons, that year was financed by some small savings and a loan from the respondent’s parents and also, while there, the applicant worked as a secretary (para. 3);
e) the parties returned to Calgary in July 1985 where the respondent rejoined his law firm; the applicant returned to her previous employment and she continued with that company until 1988; the reasons described the applicant as being “successful” in her employment and she rose to the level of salary of $27,000 (para. 4);
f) the parties returned to live in London, Ontario in May 1988; the respondent joined a law firm; the applicant did not return to work after returning to Ontario as their eldest son was born soon thereafter (para. 5);
g) by 1983, the respondent’s income had reached $140,600 and, the year prior to separation, the respondent had a gross income of about $220,000 and, at the time of trial, the respondent’s income was approximately $240,000 annually (para. 6);
h) the minutes of settlement provided that the applicant would have custody of both children, with frequent and generous access to the respondent including every other weekend, every Wednesday overnight and various times during the year; in relation to child support, the parties agreed that the respondent would pay $60,000 annually ($30,000 per year per child) and, for spousal support, the parties had agreed that the spousal support would be $30,000 per year, payable $1,400 monthly and an additional $3,300 quarterly; the child support was described as being “indexed” and was taxable to the applicant and tax deductible to the respondent (para. 7-8);
[16] In relation to the duration of spousal support, the respondent’s position was that the spousal support should be time-limited to a period of five years, whereas the applicant’s position was that the spousal support should not be time-limited.
[17] The trial judge found that the applicant had not worked outside the home except briefly as a census worker, plus a few hours per week in a neighbourhood daycare; the applicant also took a short self-improvement course. The trial judge stated in part at para. 9:
… [The applicant] said that she plans on taking a career counselling course but has not as yet done so. She also said that she intends on being assessed for job aptitude, but again, this has not occurred. The children, who are now nine and nearly seven, are in full-time attendance in public school in London and as a result, she has most days for herself. She is apparently in good health and struck me as being very intelligent and capable. She has however, to date, made no substantial inquiries as to the possibility of employment or retraining. Mr. Bildy has supplied her with lists of possible employers who are advertising and has offered to pay for her retraining, but she has not followed up. He testified that they discussed her return to employment prior to separation.
[18] The trial judge made the following findings as to the applicant’s desire to work outside the home, at para. 10:
… I get the impression from the applicant's evidence and the manner in which she answered questions that she continues to harbour considerable bitterness and resentment towards Mr. Bildy and for that, or perhaps other reasons, is not anxious to return to work and become self-supporting. I was not assured by her evidence that she has any intentions of doing so in the near future or that she feels any obligation to do so. …
[19] It was noted in the trial judge’s reasons that the respondent took the position in his evidence at trial that following separation he did not expect the applicant to seek employment outside the home while the children were still at home but that the respondent took the position that the applicant should look for employment when the children were in school fulltime (para. 10).
[20] On May 7, 1997, the trial judge ordered that spousal support payments shall start in April 1997 and shall terminate on April 30, 2002. The trial judge hence accepted the respondent’s argument to time-limit the spousal support for five years.
[21] In relation to net family property, it was ordered that the applicant had to pay an equalization payment to the respondent in the amount of a little over $43,000 and those payments were ordered to be made monthly at the rate of $500 until paid, together with interest.
B. Applicant’s Appeal to the Ontario Court of Appeal
[22] The applicant appealed the trial decision to the Ontario Court of Appeal. That decision is found at Bildy v. Bildy, 1999 9319 (ON CA), [1999] O.J. No. 501 (Ont. C.A.).
[23] The issues on appeal related to duration of spousal support and costs.
[24] The Court of Appeal found that the trial judge erred in placing too much emphasis on self-sufficiency:
14 It is unfortunate that this matter was presented to the trial judge with such limited options. On this record, the appellant has never earned as much as $30,000 a year and it is acknowledged that that figure by itself would not make her self-sufficient. The goal in this case must surely be to encourage her to be self-sufficient, while still recognizing that support payments will be necessary from the respondent for some time in the future. With respect, the trial judge was in error in placing so much emphasis on self-sufficiency in this case.
[25] In allowing the appeal, the Court of Appeal found that if the support payments would continue for another four years, to April 30, 2006, then that would give adequate recognition to the need to encourage the applicant to take positive steps towards self-sufficiency by finding employment. The court then permitted a review of the applicant’s entitlement to spousal support and to any continuation of spousal support on the expiry of the spousal support payments. The foregoing was explained by the Court of Appeal in para. 16-17:
16 This was a marriage of 13 years duration and the children are presently 11 and 9 years of age. They will require continuous supervision by the appellant until they are in their late teens. Additionally, the spousal support payments are not overly generous in the first place and are subject to the obligation of the appellant to pay the equalization payment until 2004. In my view, an order for the continuation of the $30,000 spousal support payment until the year 2006 gives adequate recognition to the need to encourage the appellant to take some positive steps towards self-sufficiency by finding employment. At that time, either of the parties should have the right to review the quantum of the support payments.
17 Accordingly, I would allow the appeal, and vary the order of Beckett J. to provide that the spousal support payments of $30,000 a year are to commence on April 30, 1997 and terminate on April 30, 2006. At that time, either party may apply to the court to reconsider the appellant's entitlement to support and any continuation of support. The quantum of support, if any, should be decided in light of all of the circumstances as may then exist and upon the application of ss. 15(5) and (7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). There should be no costs to either party with respect to the proceedings before Beckett J.
C. Proceeding to Review the Order made on Appeal
[26] In her affidavit material, the applicant deposes that she had to start litigation in 2006 after the respondent “stopped” paying her spousal support. The applicant would have been referring to the respondent’s obligation to pay spousal support terminating as of April 30, 2006 in accordance with the judgment of the Court of Appeal.
[27] There is, however, no dispute between the parties that the “review” proceeding commenced by the applicant in 2006 resulted in a settlement of all issues. That settlement encompassed two sets of minutes of settlement incorporated into one final court order.
[28] The first minutes of settlement were signed May 31, 2007 by the applicant and the parties’ son Stephan and shortly thereafter the said minutes were signed by the respondent (“the May 2007 minutes”).
[29] The May 2007 minutes dealt in a comprehensive way in respect of all issues relating to child support for both children. These minutes also confirmed that the issue of the duration of spousal support remains outstanding. The settlement that was reached regarding the child support can be summarized as follows:
a) in the preamble, it was recited that the parties have settled “on a full and final basis” all of the issues relating to child support as well as the children’s special and extraordinary expenses;
b) in relation to Stephan, the respondent agreed to pay a “comprehensive amount” for regular child support and special and extraordinary expenses in the total sum of up to $35,000 Canadian for each academic year while Stephan was in attendance on a fulltime basis at Berklee College of Music in Boston, Massachusetts for up to four academic years, commencing in 2007;
c) in relation to Stephan, the minutes of settlement were structured such that all payments were made by the respondent either directly to Stephan or to third parties; for example, the minutes authorized the respondent to make direct payments for tuition to Berklee College of Music;
d) the minutes also contained a number of provisions dealing with disclosure of information to the respondent as to Stephan’s progress and status at the Berklee College of Music and providing the respondent with copies of relevant receipts and obligating Stephan and the applicant to sign all necessary directions for disclosure of relevant information to the respondent;
e) importantly, the minutes contained an acknowledgement that the provisions as set out in the minutes in relation to Stephan’s education costs were in “full and final satisfaction of all past, present and future child support obligations” in relation to both regular support and for the payment of special and extraordinary expenses, and the parties agreed that these provisions took into account the legal requirements for payment of support pursuant to various named subsections of s. 15.1 of the Divorce Act;
f) pursuant to the minutes, the regular periodic child support contained in the order of Beckett J. continued for both Stephan and Michael up to and including the month of August 2007, at which time any child support obligations pursuant to that order would cease;
g) at the time of the execution of these minutes, Michael was age 16 and the minutes provided that the respondent would pay to the applicant $3,000 per month for the support of Michael on “an assumed income” of $386,000 annually; there were five conditions attached to the respondent’s payment of child support and these conditions included a requirement that Michael be in fulltime attendance at high school, that the table amount of support would be reviewed when Michael attends a post-secondary educational institution and that the support would not be varied downwards by the respondent unless his annual income fell below $300,000;
h) the May 2007 minutes further recite that the parties, as well as Stephan, have executed the minutes to show their agreement with the terms contained in the minutes; it was further acknowledged by the signatories that any term not incorporated in the court order shall survive as a contractual obligation.
[30] On November 21, 2007, a further set of minutes of settlement was signed by both parties that resolved the issue of spousal support on a final basis (“the November 2007 minutes”). In addition, these minutes also deal with Michael’s post-secondary education costs and in that respect the November 2007 minutes amend the May 2007 minutes.
[31] Following are the salient provisions of the November 2007 minutes in relation to spousal support:
a) the respondent was to pay to the applicant the lump sum of $35,000 for spousal support respecting the time period from June 2006 to and including November 2007;
b) the respondent further was to pay ongoing spousal support to the applicant in the amount of $2,500 per month commencing December 1, 2007 up to and including May 1, 2013;
c) importantly, the minutes provided that the spousal support payments shall be non-variable at the instance of either party, either in amount or duration, “for any reason whatsoever, irrespective of the financial resources of either party or the health conditions of either party, and the payments will constitute a full and final satisfaction of all spousal support obligations …” owing by the respondent to the applicant “now and at all times in the future” (para. 11);
d) in addition, the applicant agreed to sign a spousal support release clause in the form and content as set out in a schedule appended to the minutes; this release clause was signed by the applicant on November 23, 2007;
e) the spousal support release clause is broad and wide-reaching; the applicant acknowledges that support payments are non-variable for any reason irrespective of financial circumstances of either party or the health conditions of either party or any other circumstance whatsoever; the applicant acknowledges that she is expected to be self-supporting, that she will take necessary steps to become self-supporting and that irrespective of whether or not she is able to become self-supporting, the applicant shall not be entitled under “any circumstances” to a change in the spousal support as set out in the minutes; the applicant accepts the minutes in full satisfaction of all claims and causes of action against the respondent for support pursuant to the Divorce Act, the Family Law Act, R.S.O. 1990, c. F.3 and the Succession Law Reform Act, R.S.O. 1990, c. S.26; the applicant releases the respondent from all obligations to provide support or interim support pursuant to the aforementioned legislation at any time in the future other than as provided in the minutes of settlement;
f) the release also contains the applicant’s acknowledgement that there may be future changes to her financial circumstances for reasons of health and employment, financial mismanagement or otherwise, and the applicant agrees that no change whatsoever will allow her to claim spousal support even if the change is a “catastrophic, drastic, material, profound or radical one, whether or not the change was foreseeable, foreseen, unforeseeable or unforeseen, whether or not the change is causally connected to the relationship, and whether or not such change arises from a pattern of economic dependency related to the relationship”;
g) in addition, the applicant agrees specifically that she has been fully compensated for her contribution to the relationship and has suffered no economic hardship or disadvantage as a result of the relationship or its breakdown; that there are no economic advantages or disadvantages to the applicant that have not been fully compensated in the arrangements set out in the minutes; and finally the applicant acknowledges her obligation and her ability to be self-sufficient and that she is solely responsible for her own support;
h) there is also an acknowledgement by the applicant referencing a consideration of the economic consequences of the relationship and its breakdown in agreeing to the final release and that the applicant has considered specifically the provisions of s. 15.2 of the Divorce Act;
i) the applicant also acknowledges that there are no circumstances that will allow her to apply to court for spousal support and that the release may be pleaded as a “complete defence to any claim brought by [the applicant] for spousal support in contravention of the terms of this paragraph” (para. 10 of the release).
[32] The November 2007 minutes deal with Michael’s post-secondary education costs; the minutes provide that the applicant will not be required to provide any pro-rata contribution toward post-secondary education costs subject to the following conditions:
(i) the table amount of support for Michael shall terminate if post-secondary education costs include residence/food costs;
(ii) Michael is expected to make a reasonable contribution to his own costs;
(iii) the respondent’s obligation to fund post-secondary education costs shall be met by the respondent making direct payments to applicable third parties, the educational institutions and/or Michael; and
(iv) the respondent will deal directly with Michael regarding all matters associated with Michael’s post-secondary education in the same manner as he is dealing with Stephan.
[33] The provisions of both the May 2007 and November 2007 minutes of settlement were incorporated into the final order made by Vogelsang J. on March 19, 2008. All of the details regarding the child support as set out in both minutes of settlement were incorporated into the order. However, in relation to spousal support, the November 2007 minutes provided specific wording to be incorporated into the order in dismissing the claim for spousal support. The November 2007 minutes were deemed to constitute a separation agreement under the Family Law Act. Save and except the following paragraph contained in the order, there is no other provision in the order itself that references spousal support:
The applicant’s application to change the order of the Ontario Court of Appeal with respect to spousal support is dismissed without costs, but with prejudice.
[34] The applicant and respondent each had been represented throughout by senior and experienced family law counsel at trial, on the appeal and in the resolution of all issues in 2007 pursuant to both sets of minutes of settlement and the final order of Vogelsang J.
THE LAW
A. Motion for Summary Judgment
[35] In his motion for summary judgment, the onus is on the respondent to demonstrate that there is no genuine issue requiring a trial of the claims advanced by the applicant in her motion to change (“variation proceeding”). Rule 16 of the Family Law Rules, O. Reg. 114/99 governs motions for summary judgment and includes the following:
EVIDENCE REQUIRED
16(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
EVIDENCE OF RESPONDING PARTY
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
EVIDENCE NOT FROM PERSONAL KNOWLEDGE
(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
NO GENUINE ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
POWERS
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
ORAL EVIDENCE (MINI-TRIAL)
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[36] There will be no genuine issue regarding a trial when a judge on a summary judgment motion is able to reach a fair and just determination on the merits. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada instructed the lower courts as to the principles to be applied in dealing with a motion for summary judgment. Although Hryniak dealt with summary judgment motions pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the principles discussed would apply equally to the Family Law Rules, especially considering the recent amendments to R. 16 that included the expanded powers in subrules (6.1) and (6.2), which are similar to the expanded powers in R. 20 of the Rules of Civil Procedure. In Hryniak it was stated:
49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
57 On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact finding.
B. Material Change in Circumstances
[37] The decision of the Supreme Court of Canada in P.(L.M.) v. S.(L.), 2011 SCC 64 (“LMP”) informs substantially the analysis to be applied in deciding the present case. Unless otherwise stated, references to LMP in these reasons are references to the majority decision.
[38] In LMP, the husband and wife had consented to a final order for child support and spousal support in favour of the wife pursuant to an agreement incorporated into a final order under the Divorce Act. Subsequently, on the ex-husband’s variation application to vary spousal support, the trial judge provided for reduced spousal support over a period of time following which no spousal support was ordered. The ex-wife’s appeal to the Court of Appeal was dismissed. The Supreme Court of Canada allowed the appeal and restored the original consent order.
[39] The applicant’s variation proceeding seeks to vary the final order of Vogelsang J. dated March 19, 2008 (“final order”) made under the Divorce Act. s. 17 of the Divorce Act deals with variation proceedings and includes the following:
Order for variation, rescission or suspension
17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
Factors for child support order
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
Factors for spousal support order
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
Objectives of variation order varying spousal support order
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
Limitation
(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that
(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and
(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.
[40] As will be apparent in the reasons below, the applicant’s request to vary spousal support is, to a significant degree, a more substantive issue than her claim for child support arrears and the variation of child support. Accordingly, the discussion that follows focuses on variation of spousal support; the applicant’s request to vary child support is dealt with separately.
[41] As explained in LMP, the starting point is the Willick test (being a reference to Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670) that requires a court to find that there has been a material change in circumstances before an existing final order can be varied. Although the relevant statutory provision in s. 17(4.1) requires the court, first, to satisfy itself that there has been “… a change in the condition, means, needs or other circumstances of the former spouses …”, the jurisprudence establishes that the change in circumstances must be a material change in circumstances, even though the word “material” does not appear in that subsection. As stated by the court in LMP at paras. 32 and 44:
32 That "change of circumstances", the majority of the Court concluded in Willick, had to be a "material" one, meaning a change that, "if known at the time, would likely have resulted in different terms" (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.[^2]
44 In sum, it bears repeating that the threshold question under s. 17, whether or not there is an agreement, is the one Sopinka J. described in Willick, namely:
In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.
[42] Consistent with the discussions in LMP at para. 33: a) the analysis in the present case is on the final order and the circumstances in which it was made; b) this court ought not to consider the correctness of the final order nor should it be departed from lightly; c) it is presumed that the judge who granted the final order knew and applied the law and that the final order met the objectives for spousal support contained in the Divorce Act; and d) in this way, the Willick approach to the variation application requires appropriate deference to a prior order, whether or not that order incorporates an agreement.
[43] LMP summarizes that the threshold variation question is the same irrespective of whether or not a spousal support order incorporates an agreement; the court first must determine whether a material change of circumstances has occurred since the making of the order: para. 36.
[44] Where an agreement is incorporated into an order, that does not mean that the agreement is irrelevant, and where an agreement is embodied in the order, then it is necessary to consider what additional effect is to be accorded to that fact: para. 37, LMP quoting Willick.
[45] Importantly, LMP explains that the agreement may address future circumstances, it may predetermine who will bear the risk of any changes that may occur or it may deal specifically as to whether a contemplated future event will or will not amount to a material change in circumstances: para. 38. The importance of considering the agreement of the parties is underscored in LMP at para. 39:
39 Parties may either contemplate that a specific type of change will or will not give rise to variation. When a given change is specified in the agreement incorporated into the order as giving rise to, or not giving rise to, variation (either expressly or by necessary implication), the answer to the Willick question may well be found in the terms of the order itself. That is, the parties, through their agreement, which has already received prior judicial approval, have provided the answer to the Willick inquiry required to determine if a material change has occurred under s. 17(4.1). Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.
[46] In the present case, the final order, in relation to spousal support, only incorporated the provisions in the minutes of settlement dismissing the applicant’s claim for spousal support; in fact, the terms of the November 2007 minutes contemplated that only that paragraph would actually be embodied in the order.
[47] I find it is appropriate to characterize the final order in relation to spousal support as “incorporating” the agreement of the parties. Alternatively, if that is not the case, little turns on that issue because even where an agreement is not incorporated into the final order, the examination of the change of circumstances remains the same; as stated in LMP at para. 46, in part:
The examination of the change in circumstances is exactly the same for an order that does not incorporate a prior spousal support agreement as for one that does. …
[48] At one time, the jurisprudence suggested that an order dismissing spousal support, such as the final order does in the present case, was not capable of variation. However, a five-member panel of the Court of Appeal for Ontario in Tierney-Hynes v. Hynes, 2005 CarswellOnt 2632 (Ont. C.A.) concluded that the state of the law, taking into account amendments to the Divorce Act, had progressed to the point where a court had jurisdiction to vary a dismissal of spousal support pursuant to s. 17 of the Divorce Act.
[49] The respondent’s factum submitted that the court should apply the two-step analysis prescribed by Miglin[^3] given the existence of the agreement reached by the parties in 2007. However, neither the respondent’s factum, nor the applicant’s factum, referred to LMP where, at para. 28, it was held that the Miglin approach was not to be imported into an analysis under s. 17:
28 The approach developed in Miglin, then, was responsive to the specific statutory directions of s. 15.2 of the Divorce Act and should not be imported into the analysis under s. 17.
[50] The parties were given an opportunity during argument to consider LMP and to make submissions on its applicability.
DISCUSSION
[51] The main evidence comprising the background facts, including the events that occurred subsequent to the final settlement in 2007, was contained in affidavit material filed in 2014 relating to the applicant’s emergency motion first returnable September 3, 2014 seeking various interim relief including interim spousal support in the amount of $2,500 per month.
[52] The applicant’s emergency motion, it appears, was never heard. Oral questioning never took place despite an order made on October 15, 2014 requiring oral questioning to take place forthwith. In November 2014, the applicant became self-represented. The respondent, not surprisingly, seemed content to let the applicant take the initiative to move this case forward, which occurred following the notice of approaching dismissal and which in turn eventually lead to the respondent bringing his motion for summary judgment.
[53] Much of the applicant’s material is repetitive, deals substantially with historical events predating the final order and some portions of her material are inadmissible. The respondent took the position that he did not want to delay this case by bringing a motion to strike. He left it to the court to sift through the applicant’s material to determine what is relevant. To the extent that the applicant has included unsworn exhibits as part of her evidence, I have considered those exhibits; I infer that the respondent does not object to same given his failure to bring a motion to strike.
[54] The applicant’s resume shows that she commenced working at Danier Leather in 2006; she deposes in her September 2016 affidavit (paragraph 34) that in August 2007 that she finally found a job in retail for minimum wage on a fulltime basis. The applicant’s fulltime status occurred several months prior to the November 2007 minutes resolving spousal support.
[55] The gist of the applicant’s evidence is that, subsequent to the final settlement in 2007 and the final order, she continued to work in retail. Her income appeared to be in the low to mid $20,000 range, based on the financial disclosure that was filed. The applicant’s 2013 employment income was just under $24,000.
[56] In her first affidavit (August 2014), the applicant noted her hours at the retail store were decreasing. The applicant also earned some income tutoring three hours per week at $25 per hour, but the applicant deposed that the tutoring employment ended effective August 2014. In May 2014, the applicant was hired fulltime to sell packages of medical cosmetic treatment to clients. However, that employment was terminated by her employer on the expiry of the three-month probationary period.
[57] In her material, the applicant emphasizes her financial struggles. Subsequent to the final order, the applicant had declared bankruptcy; when the spousal support payments terminated May 1, 2013, the applicant claimed substantial hardship, deposing that she had to move multiple times with Michael and alleging that she was homeless for a number of months, in 2013, staying at a family member’s residence.
[58] The applicant points to the respondent’s lifestyle and income and contrasts that with her own situation. Each party filed only one financial statement and that occurred in 2014. The applicant’s financial statement shows a negative net worth. The respondent’s financial statement shows total assets of over $1.2 million, with debts of just under $222,000 (but those debts are comprised solely of notional tax liability on his substantial RRSP holdings and notional tax on dividends paid by his law professional corporation).
[59] Viewed through the lens of the applicant, she perceives a substantial injustice – she struggles financially while the respondent, in her view, enjoys an affluent lifestyle. The applicant points to being a stay-at-home parent and forsaking her employment career while at the same time the respondent was free to pursue his career. Now, at age 57, the applicant worries about her future; she has minimal assets, no savings, no pension and no financial security; the applicant is troubled about her employment prospects and her ability to support herself.
[60] In her pleadings, the applicant seeks indefinite spousal support retroactive to June 1, 2014.
[61] The respondent points to the many years that he has paid spousal support. He submits that he has met all his spousal support obligations to the applicant pursuant to the Divorce Act; further, he relies on the final settlement in 2007, and the applicant’s release as to any further claims for spousal support. While the respondent does not dispute the applicant’s precarious financial circumstances, he submits that the applicant’s current situation is a result of her own doing, for which he cannot be held responsible.
[62] As the applicant did not file an updated financial statement, her income history for the past several years is unknown and her current income is not known. However, the applicant has deposed that she will be attending school in January 2017 for the Emergency Telecommunications Program with the assistance of the Second Career Program “… to obtain secure employment with approx. (sic) salary of $29/hour …” (September 2016 affidavit, paragraph 14).
[63] In relation to spousal support, the issue to be examined is the following: Is there a genuine issue requiring a trial on the threshold question as to whether there has been a material change in circumstances subsequent to the final order? The answer is no.
[64] As explained in LMP, the final order is presumed to be correct, and further it is presumed that the final order that was based on the November 2007 minutes met the objectives set out in the Divorce Act.
[65] Consistent with the discussion in LMP, the November 2007 minutes do assist the court in determining whether there has been a material change in circumstances. The parties themselves agreed that the applicant assumed responsibility for her own support and that she is not entitled to any further spousal support from the respondent. The intent of the parties, clearly, was finality. This is emphasized by the fact that the spousal support payments were non-variable by either party as to quantum and duration. The fact that the periodic payments were not inserted into the court order is evidence of an intention by both parties to further insulate the agreement from future litigation.
[66] The parties’ intention to promote finality is reflected also by the comprehensive release executed by the applicant while represented by counsel. It would be challenging, I would think, to draft a spousal support release clause that could be more comprehensive and more clear as to finality than the one signed by the applicant.
[67] An agreement incorporated into an order, which includes a term that it is final, cannot oust the court’s jurisdiction under s. 17, however, any aspect of an agreement can be considered, including terms as to finality, as part of the Willick inquiry to determine if there has been a material change in circumstances: LMP, para. 41.
[68] The Willick test, as summarized in LMP at para. 44, explains that the material change in circumstances means a change, such that if known at the time of the final order would likely have resulted in a different order. In the present case, the final order was made in contemplation of circumstances that cast on the applicant the responsibility for her own support and, accordingly, even if the applicant currently was not self-supporting, that possibility clearly was contemplated by the parties and cannot now constitute a material change in circumstances.
[69] Although the parties cohabited for approximately twelve and a half years, the duration of court-ordered spousal support, plus spousal support paid pursuant to the November 2007 minutes, covered a period of time starting in April 1997 and ending May 2013, thereby spanning a period of over 16 years. Further, the trial judge (para. 7, reasons) found that the respondent had met his obligations to the applicant from the date of separation to the time of trial. This adds a further period of over two years, meaning that the respondent had supported the applicant post-separation for over 18 years.
[70] Aside from the expectation of the parties, as detailed in their final settlement, there is little, if any, evidence in the record that would support a finding of a material change in circumstances. The applicant has had a work record for many years following the final order. Although the applicant currently is taking a course, she fails to provide an adequate explanation as to why she did not pursue more vigorously retraining or education following the final order.
[71] While the applicant’s perception of injustice in relation to spousal support is heard, and is acknowledged, this perception does not inform the proper legal analysis.
[72] In his factum, the respondent had advanced an argument of delay as against the applicant, but that argument was abandoned. Also, although the respondent addressed s. 17(10) of the Divorce Act in his factum, the respondent conceded that that section has no application.
[73] Finally, no material facts are in dispute and a fair and just determination on the merits can be achieved based on the material filed on the motion for summary judgment.
A. Child Support
[74] In relation to child support, the applicant’s claims were all in respect to Michael. She sought the following: retroactive child support of $119,000 for the period July 1, 2010 to April 30, 2013; retroactive child support from May 1, 2014 to August 31, 2014 in the amount of $2,039 per month; child support to be paid to her commencing in 2015 for maintaining a home for Michael while he attends York University; and, finally, the applicant sought an order requiring the respondent to pay to Michael $600 monthly for his living expenses while attending York University and an order requiring the respondent to pay off Michael’s credit card.
[75] As explained below, there is no merit to any of those claims.
[76] The respondent’s evidence is that Michael finished high-school in June 2010. Michael’s high-school transcript, appended to the applicant’s first affidavit, confirms that Michael took his last high-school course in the spring of 2010, although his diploma was not issued until December 2010. The respondent deposes that he continued to pay the full table amount of child support to the applicant, as ordered, while Michael was in high school. That evidence is not in dispute; furthermore, the respondent’s evidence that he continued to pay to the applicant the full table amount of child support for Michael until August 2010 as a transition measure is not disputed by the applicant.
[77] There was some suggestion by the applicant that it took Michael longer than June 2010 to finish high school, but the applicant’s own documentary evidence belies that allegation.
[78] Michael was almost age 20 when he finished high school. The applicant does not dispute the respondent’s evidence that even though Michael, at times, had a lacklustre attendance record, and was not in high school fulltime, that the respondent nevertheless paid the full table amount even though the final order stated that the table amount was payable on condition that Michael attended high school fulltime.
[79] Further, there is no dispute that from September 2010 until April 2013 that Michael did not attend school. As explained by the respondent, Michael did have some temporary, insecure low-paying jobs during that time. Pursuant to the final order, no child support was payable during this period because Michael was not in school.
[80] The foregoing demonstrates that the retroactive child support claim for $119,000 has no basis in law. There are no child support arrears.
[81] Both parties agree that Michael enrolled in Fanshawe College effective May 2013 while still residing with the applicant and that the respondent immediately recommenced paying child support as required by the final order. The respondent had forwarded a detailed letter to the applicant explaining the calculation of child support, a portion of which was paid to Michael for spending money and living expenses, with the sum of $2,039 per month being paid directly to the applicant. There was no suggestion by the applicant that the respondent failed to comply with the final order once Michael started attending Fanshawe College. The applicant further confirms that the respondent paid Michael’s tuition as required by the final order.
[82] The respondent also deposes that he continued to pay $2,039 per month to the applicant until April 2014. The applicant agrees with that fact. However, starting with at least December 2013 up to and including April 2014, the facts are clear that the respondent was not obligated to make the monthly payment of $2,039 to the applicant for two reasons. The first reason is that, by the latest, Michael had moved in to live with his girlfriend effective December 2013. Secondly, and perhaps more importantly, Michael stopped attending Fanshawe College in December 2013 and starting January 2014, Michael was no longer in school. Any requirement by the respondent to pay child support to Michael pursuant to s. 7 was dependent on Michael attending school.
[83] Both parties agree that, in early 2014, Michael joined his brother, Stephan, in Toronto. The applicant does not challenge the respondent’s evidence that he continued to fund Michael’s living expenses while Michael was living in Toronto and not attending school.
[84] The parties agree that, effective May 2014, Michael began attending York University. There is no evidence from the applicant contradicting the respondent’s evidence that the respondent has continued to fund all of Michael’s post-secondary education costs and living expenses while Michael is attending York University. It is noteworthy that Michael filed no affidavit.
[85] Accordingly, the applicant’s claim for $2,039 per month for the period May 1, 2014 to August 31, 2014 is puzzling because, pursuant to the final order, the applicant is not entitled to receive child table amount of support while Michael is attending college or university where his post-secondary education costs included residence and food costs; the final order authorizes the respondent to deal directly with Michael, including making payments, such as tuition fees, directly to third parties (see para. 15, final order).
[86] It is appropriate to add that the evidentiary record shows that the respondent over all the years always paid all child support and spousal support payments as they fell due; in addition, he made child support payments to both children directly, and at times to the applicant, when there was no legal obligation requiring the respondent to do so. Also, the applicant does not dispute the respondent’s evidence that after August 2010 he made payments of over $17,000 towards the applicant’s car loan, although having no legal obligation to do so.
[87] During oral argument, in relation to her claims regarding Michael, the applicant did concede that the respondent has met all his child support obligations for Michael. That concession is supported, unequivocally, by the evidentiary record.
[88] As to the applicant’s claims regarding child support, I find: a) there is no genuine issue requiring a trial; b) there is no change in circumstances, let alone material change in circumstances subsequent to the final order; and c) the applicant’s claims for arrears of child support have no basis in fact or reality.
B. Costs
[89] Although the order below does provide for cost submissions, the parties are encouraged, strongly, to resolve costs considering the disparate nature of their respective financial circumstances.
ORDER
[90] For the foregoing reasons, I make the following order:
The respondent’s motion for summary judgment is granted and the applicant’s motion to change issued September 2, 2014 is dismissed.
If the parties are unable to settle costs, then written costs submissions may be forwarded to the Family Court trial coordinator as follows: the respondent shall serve and file his costs submissions within 14 days of the date of this order; the applicant shall serve and file her responding submissions within 14 days thereafter; and the respondent shall serve and file his reply, if any, within 7 days thereafter; all costs submissions are limited to three typed pages, double-spaced (two typed pages for reply) plus copies of any authorities, offers to settle, lawyer’s bills and time dockets.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: February 16, 2017
[^1]: In addition to sworn financial statements, the affidavits that form the evidentiary record on the motion for summary judgment consisted of the applicant’s affidavits sworn August 29, 2014, September 23, 2016 and October 27, 2016; and the respondent’s affidavits sworn September 15, 2014, March 22, 2016 and October 12, 2016.
[^2]: The reference to G.(L.) in para. 32 refers to G.(L.) v. B.(G.), 1995 65 (SCC), [1995] 3 S.C.R. 370.
[^3]: Miglin v. Miglin, 2003 SCC 94