Salanki v. Toth, 2018 ONSC 2324

COURT FILE NO.: D21877/09

DATE: 2018-04-11

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: David Gabriel Salanki, Applicant

AND: Deborah Ann Toth, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Mary Anne Cummings for the Applicant; Patricia Lucas for the Respondent

HEARD: April 10, 2018 at Welland

ENDORSEMENT

[1] The Applicant moves under s. 17 of the Divorce Act to vary the order for child support and spousal support made on May 14, 2012 by Matheson J.

Amendment of the pleadings

[2] The Applicant’s motion requests termination of child support from May 24, 2016. At the outset of the trial, the Applicant made an oral motion to vary his pleadings by adding a request that child support be terminated as of earlier dates with respect to each of the two children of the marriage, based on changes in the children’s residences. I denied leave to amend. These are my reasons for so doing.

[3] The motion was brought in late 2016. I made a temporary order terminating child support as of December 15, 2016, the date of the order, without prejudice to the position at trial. On that date I also gave the Applicant leave to amend his pleadings with respect to the date of termination of spousal support. A settlement conference was held in April of 2017, followed by a trial management conference in July of 2017. The trial was scheduled for today, in the third week of the sittings. Amendment would necessitate an adjournment of the trial to the November sittings. The issue of retroactive amendment of the pleadings was mentioned in the trial management brief, but no motion was brought.

[4] Rule 11(3) requires me to grant leave except in narrowly defined circumstances, to wit: when the prejudice to the Respondent cannot be compensated in costs. The Respondent could be compensated for costs thrown away, but could not be compensated for the psychological component of having the matter hanging over her for so long. Neither could she be compensated for the apparent injustice in being brought to court by the wealthier ex-spouse, only to be delayed for months at his instance for no good reason.

[5] I note that this proposed addition to the motion to vary has little apparent merit. The order of Matheson J., which was made pursuant to minutes of settlement, contemplated the older daughter living with the Applicant and the younger daughter living with the Respondent. The Applicant paid child support for the younger child based on his agreed income of $250,000 a year, less a set off for the Respondent’s obligation based on her agreed income of about $10,000 a year. The Applicant wants to ask for termination of support for the younger child from September 2013 when she started post-secondary education, except for the summer months, and for complete termination from the end of May 2016 when she no longer returned to the Respondent’s home for the summer and began living on her own.

The Applicant’s obligation for the younger daughter

[6] According to paragraph 15 of the order, “the child does not cease to reside in the home of the Applicant/Respondent when the child is temporarily away from home to attend an educational institution, to work at summer employment or to enjoy a reasonable holiday.” The Applicant’s obligation on account of the younger daughter continued until the end of May, 2016 notwithstanding her absences during the school year.

The Respondent’s obligation for the older daughter

[7] The Applicant would also ask for child support for the older daughter while she was attending post-secondary education until the spring of 2017. The parties agreed, and Matheson J. ordered, that child support would terminate on the child’s 23rd birthday. The older daughter turned 23 on October 15, 2015. At that point, child support was still payable by the Applicant for the younger daughter and he was still getting the benefit of the set off for the younger daughter’s child support. No child support was payable by the Respondent after October 15, 2015. In fact, the Applicant should not even have been getting the set off after that date.

[8] In all these circumstances, I denied the Applicant leave to amend his pleadings. The remaining issues proceeded based on the written record.

Termination of child support

[9] On consent I make a final order terminating child support payable by the Applicant for both children commencing May 24, 2016.

Retroactive extraordinary expenses

[10] The Applicant is claiming for contribution by the Respondent to extraordinary expenses for post-secondary education. He has paid $52,000 out of the children’s RESP and $108,000 himself. The Respondent has not made any specific contribution.

[11] During this time, the Applicant was getting the benefit of the set off of child support. Not all of the post-secondary expenses are necessary or affordable, in particular the overseas portions, about which the Respondent was not consulted. Taking into account the parties’ incomes and the amounts that the children might be expected to contribute I think the Respondent’s share of the amounts that were not taken care of by the RESP, and which were necessary and affordable, is $5,000.

[12] The older daughter needed counselling at one point while child support was payable by the Respondent. I think the Respondent should be responsible for part of that expense in proportion to her income. I fix her share at $350.

Termination of spousal support

[13] The minutes of settlement provide:

28. The Applicant and the Respondent acknowledge and agree that spousal support has been determined on the premise that the parties have no other source of income, have disclosed all sources of income and that neither party is living with or entitled to be supported by any other person or from any other source.

[14] The order of Matheson J. provides:

29. Either party may request a review of spousal support if there is a material change in circumstance. A material change in condition, means, needs or other circumstances of the Applicant and the Respondent may be foreseen or unforeseen, foreseeable or unforeseeable and may include, but is not limited to:

a. A change causing undue hardship for either party;

b. In the event to Respondent dies (sic);

c. In the event the Applicant dies and has life insurance in place as set out herein;

d. A change in the Respondent’s need for support, i.e. remarries or cohabits in a conjugal relationship;

e. The involuntary retirement of the Applicant shall constitute a material change in circumstances.

31. In addition to paragraph 29, the amount of the payment and the terms for payment as provided herein for the support of the Respondent shall be varied: …

b. After a divorce is granted, if there is a change in circumstances of the Applicant or Respondent such that a court of competent jurisdiction in the same circumstances would vary an order for support made in the same amount and terms under the Divorce Act on the effective date of this order.

[15] Under the terms of the order, then, if the Respondent remarries or cohabits in a conjugal relationship, the Applicant can move to vary the order. The amount of spousal support may be varied as a court would vary spousal support under the Divorce Act.

Is the Respondent cohabiting in a conjugal relationship?

[16] The Respondent has never denied a longstanding relationship with Brian Strawn. In fact, the Applicant cites this relationship as a reason for the separation. The Respondent maintains, however, that she and Mr Strawn do not cohabit. They travel together and he stays over when he is in town, but he has his own residence in Newcastle, Ontario.

[17] On 14 occasions between June 2011 and November 2015 the Applicant’s private investigator conducted surveillance at the Respondent’s residence. Mr Strawn was there every time. He was doing things such as cutting the grass, putting out the garbage and going grocery shopping with the Respondent. The Respondent has the use of a Hyundai Vera Cruz that is registered to and insured by Mr Strawn. His address is in Newcastle. He stays in Newcastle when he is in town. He travels for business a great deal of the time. But the house in Newcastle is now owned by his son and daughter-in-law.

[18] On the undisputed facts the relationship is a conjugal relationship that resembles a marriage. Many married couples in which one spouse has a job that requires travel might live the same way. That does not tell me to what extent Mr Strawn supports the Respondent financially, but that aspect is not decisive, as in my view the spousal support still has a compensatory aspect.

Should the amount of spousal support be changed?

[19] The Divorce Act provides:

17. (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.

(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.

[20] The parties married in 1989 after a brief period of cohabitation. They separated in 2007. This was, then, a relationship lasting a period approaching 20 years. They had two children. The Applicant worked as a chiropractor. The Respondent worked in his business as an office manager at a salary of $80,000, an amount which, I think, reflects a combination of work done and income splitting. She lost that job after separation and worked at a number of other jobs, none of which lasted. She has continued to seek work and expects to start a new job next week at an annual salary of $33,000. She is now 53 years old and the Applicant is 60.

[21] Under the minutes of settlement, the Applicant’s annual income was agreed to be $250,000 and the Respondent’s $10,080. Since then she has generally earned in the neighbourhood of $20,000 a year in addition to spousal support.

[22] The Respondent received an equalization payment of $25,000 in addition to an equal share of the value of the matrimonial home and the cottage. She held on to RRSPs in her own name worth over $200,000.

[23] In 2016 the Applicant made about $250,000. In 2017 the Respondent made $71,000, including the $56,652 in spousal support.

[24] Since separation the Applicant has depleted his investments in part to pay for his daughters’ educations. The Respondent has depleted her investments in part for renovations to her home that were made to accommodate her aging parents and in part by living above her means.

[25] The Applicant seeks a variation of spousal support on four bases:

a. The Respondent’s need is diminished because of her relationship with Mr Strawn.

b. She earns more than she did at separation.

c. She has been receiving support for eight years; and

d. The Applicant is approaching the end of his career.

[26] Whatever the nature of her relationship with Mr Strawn, the Respondent’s need for spousal support is undoubtedly somewhat diminished. I still do not think she can be expected to do much better than the thirty-odd thousand dollars a year she is now earning. At the end of the marriage, at age 47 it was reasonable to expect her to return to work, but she does not seem capable of doing much better than she has. Her earning ability was disadvantaged by the marriage and its breakdown. Starting over at 47 she was never going to arrive at the place where she might have been. She was owed significant compensation. She has received significant compensation from equalization and eight years of spousal support but I do not think that her entitlement has been exhausted. In another five years I might think differently. Furthermore, at that point the Applicant will be at a normal retirement age and his ability to pay spousal support will be seriously diminished. The Respondent has to realize that spousal support will not go on forever. She will have to take care of her own retirement by saving now or living on less later. But I do not think that things have yet changed to the extent that a variation in spousal support is justified.

Orders

[27] The Respondent is ordered to pay retroactive child support to the Applicant for the two children of the marriage on account of extraordinary expenses under s.7 of the Guidelines in the single sum of $5,350 forthwith. This amount may be set off against future payments of spousal support by the Applicant to the Respondent. A support deduction order will issue. Otherwise the motion to vary the order of Matheson J. is dismissed.

[28] If either party wants to ask for costs, he or she may do so by brief written submissions made within 7 days. If either party asks for costs, I shall give a further written direction inviting a response from the other party within a prescribed time.

J.A. Ramsay J.

Date: 2018-04-11