NATURE OF MOTION

[1] This motion requires the court to determine whether a recipient spouse, who seeks to enforce the term of a final order for child support requiring the payor spouse to file a Form 15D to effect an automatic adjustment of child support based on a change in the payor spouse’s income, must seek that relief by means of a motion to vary a final order under Rule 15 of the Family Law Rules and whether, if she does not do so, her motion should be delayed until it can be heard with the payor spouse’s cross-motion to reduce his support obligation and rescind his arrears of support based on a material changes in circumstances.

[2] Debbie Mackenzie, (“Ms. Mackenzie”), the Applicant, seeks an Order which would increase child support, restore spousal support (which Trimble J. terminated in his final Order), and would find that Grant Mackenzie, (“Mr. Mackenzie”), the Respondent, is in breach of the final Order of Trimble J., dated June 6, 2016.

[3] Mr. Mackenzie seeks the dismissal of Ms. Mackenzie’s motion or, in the alternative, an order adjourning it to be heard at the same time as his own Motion to Change Trimble J.’s final Order. He argues that Ms. Mackenzie’s motion seeks substantive changes to the final Order regarding the amount of child support and her entitlement to and amount of spousal support amount to a motion to change, and not simply a motion to enforce the final Order.

BACKGROUND FACTS

[4] Ms. Mackenzie is 55 years old (born September 24, 1964) and Mr. Mackenzie is 59 (born October 2, 1960). Ms. Mackenzie currently resides in Mississauga, Ontario, and Mr. Mackenzie resides in West Vancouver, British Columbia. Since March 29, 2016, Mr. Mackenzie has been employed as the Chief Executive Officer of Peoples Trust, a Financial Institution in Canada.

[5] The parties were married on November 17, 1990, and separated after ten years, on November 10, 2000. The parties were divorced by the Family Court of the State of Delaware, in the United States of America, on May 6, 2002. Mr. Mackenzie commenced that proceeding. Ms. Mackenzie did not attend the hearing on May 6, 2002, and the court adjourned issues of custody, access, and child support to be addressed at mediation.

[6] The parties have two children. Madison Mackenzie is 22 years old (born February 19, 1996). She completed her first university degree and resides with Ms. Mackenzie. Currently, she works full time in her field of study as a kinesthesiologist. Connor Mackenzie is 20 (born July 8, 1997). He is attending his third year at Carlton University, after working full time in the United States from January to April 2018. The parties differ as to whether Madison will resume being a Child of the Marriage if she returns to school for a further degree, as she intends to do in September 2018, and as to whether Connor is now a Child of the Marriage, having interrupted his studies to work in the United States, and may or may not reside with Ms. Mackenzie when he is not attending school.

[7] Ms. Mackenzie began a proceeding in the Superior Court of Justice in Toronto in which she sought corollary relief arising from the parties’ marriage. On May 28, 2004, Rivard J. made a final Order in that proceeding. Ms. Mackenzie later made a Motion to Change that Order.

[8] The parties settled Ms. Mackenzie’s Motion to Change by Minutes of Settlement signed on May 2, 2016. The terms of the settlement were later incorporated into the final Order of Trimble J. dated June 6, 2016. That Order contained the following terms:

(a) Paragraph 6: Spousal support for Ms. Mackenzie was to terminate June 30, 2016.

(b) Paragraph 7: Beginning April 1, 2016, Mr. Mackenzie was to pay Ms. Mackenzie child support for Madison and Connor in the amount of $2,915.00, based on Mr. Mackenzie’s 2015 income of $286,000.00.

(c) Paragraph 8: Mr. Mackenzie was to pay monthly child support based on the average of table child support payable for one child and the table support payable for two children.

(d) Paragraph 9: Mr. Mackenzie was to pay 78.9 percent and Ms. Mackenzie was to pay 21.1 percent of the children’s reasonable section 7 expenses that were agreed to in writing, and from which the parties were to deduct any applicable tax benefit/credit and/or subsidy.

(e) Paragraph 16: Unless the parties agreed otherwise in writing, each year by June 25^th, the parties were to sign a Form 15D Consent Motion to Change Child Support and any other required supporting documentation that reflected the adjusted amount of table child support payable to Ms. Mackenzie and the adjustment to each party’s proportionate share of section 7 expenses. Mr. Mackenzie was to file the Form 15D with the Ontario Court, take out the amending order arising from it, and file the amending order and support deduction order with the Family Responsibility Office when there was a decrease in child support. Ms. Mackenzie was to file the Form 15D with the Ontario Court, take out the amending order arising from it, and file the amending order and support deduction order with the Family responsibility Office when there had been an increase in child support.

[9] At the time of Trimble J.’s final Order, Madison was enrolled at the University of Toronto, and Connor was about to attend Carleton University in Ottawa.

[10] On April 18, 2018, Ms. Mackenzie made a motion in Form 14 in which she seeks the following:

a) A finding that Mr. Mackenzie is in breach of the final Order of Trimble J. dated June 6, 2016, and that his breach be immediately rectified;

b) An Order increasing the table child support payable to her to $3,575.00 per month, retroactive to July 2017;

c) An Order increasing Mr. Mackenzie’s proportionate share of the children’s section 7 expenses to 85.4 percent, retroactive to July 1, 2017; and

d) An Order that her spousal support pursuant to the Order of Rivard J. dated May 28, 2004, resume on the ground that Mr. Mackenzie failed to comply fully with the Minutes of Settlement that the parties signed on May 2, 2016.

[11] Mr. Mackenzie responded, on May 3, 2018, with his own Motion to Change in Form 15, to change the final Order of Trimble J. dated June 6, 2016. Mr. Mackenzie asserts that there have been material changes in circumstances since that time in the following respects:

a) Madison completed her degree in kinesiology on April 20, 2018, and obtained full time paid employment as a kinesthesiologist beginning April 23, 2018. Mr. Mackenzie asserts that Madison ceased being a Child of the Marriage at that point within the meaning of the Divorce Act, and that Ms. Mackenzie ceased to be entitled to receive child support for her.

b) Connor commenced studies in Engineering at Carleton University in Ottawa. During the winter term of 2017, he failed a course, resulting in his having to attend summer school, with the result that he resided with Ms. Mackenzie for a total of two months. Connor did not attend university from January to April 2018, instead obtaining employment unrelated to his university program in New York City. He worked full time from February 5 to April 27, 2018, earning approximately $18,000.00 USD. His tuition for his cancelled winter 2018 semester was refunded to him. Mr. Mackenzie paid Connor’s rent while he was not in school, and living and working in New York. Connor is not attending his final year of university at Carleton from May 2018 to April 2019. He has obtained paid employment for the company Pensivo, and will be working part time while he resides in Ottawa.

[12] Mr. Mackenzie seeks an Order that terminates child support for both children effective April 30, 2018. Additionally, he asserts that he has over-contributed towards the children’s special and extraordinary expenses and claims a reimbursement of at least $5,832.31 from Ms. Mackenzie for those over-payments.

[13] Both motions were before this Court for hearing as a regular motion, not to exceed one hour, on May 8, 2018. It would have been possible to hear Ms. Mackenzie’s motion in the one hour allotted to regular motions on May 8. Mr. Mackenzie’s motion required in excess of an hour to argue, and therefore required an appointment for hearing as a long motion. Additionally, the parties wish to conduct cross-examinations on the affidavits filed in that motion, and factums will be required.

[14] The earliest date available from the Trial Office for a long motion was December 2018. Mr. Mackenzie requested an adjournment of both motions to be heard together as a long motion. As a result, the parties argued only the contested request for adjournment of the motions on May 8, 2018. After argument, judgment was reserved. These reasons address the issue of priority as between the two motions, and Mr. Mackenzie’s request for adjournment of Ms. Mackenzie’s motion.

ISSUES

[15] This motion requires the court to determine the following issues:

a) Is Ms. Mackenzie, who seeks to enforce the term for annual disclosure and automatic adjustments of child support in Trimble J.’s final Order dated June 6, 2016, required to make a Motion to Change a final order under Rule 15 of the Family Law Rules?

b) Should Ms. Mackenzie’s motion be adjourned, to be heard with Mr. Mackenzie’s Motion to Change Trimble J.’s Order by terminating his child support obligation, rescinding his arrears of child support, and ordering reimbursement of over-payments of s. 7 expenses, based on material changes in the children’s circumstances?

PARTIES’ POSITIONS

[16] Ms. Mackenzie argues that her motion is brought pursuant to Rule 1(8) of the Family Law Rules, to enforce an existing Order. That motion should not be delayed for eight months by Mr. Mackenzie’s Motion to Change the final Order of Trimble J.

[17] Mr. Mackenzie argues that Ms. Mackenzie’s motion amounts to a Motion to Change the final Order of Trimble J., having regard that it seeks a substantial retroactive increase in child support and a resumption of the spousal support that Trimble J. ended on June 30, 2016. It therefore requires a Motion to Change in Form 15 and should be argued on a long motion date. Mr. Mackenzie further argues that granting Ms. Mackenzie the relief she seeks at this time will have the effect of increasing the overpayment that is owing to him, as he has already over-paid the children’s section 7 expenses and will be entitled to a termination or reduction of child support based on material changes in the children’s circumstances that have occurred since Trimble J. made his Order.

ANALYSIS

a) Is Ms. Mackenzie, who seeks to enforce the term for annual disclosure and automatic adjustments of child support in Trimble J.’s final Order dated June 6, 2016, required to make a Motion to Change a final order under Rule 15 of the Family Law Rules?

[18] When the Federal Child Support Guidelines were implemented, the Divorce Act was amended to make the application of the Guidelines mandatory not only for original child support orders under the Divorce Act, but also for variations of final child support orders.

[19] The Court of Appeal for Ontario, in Sherman v. Sherman (1999), 1999 4701 (ON CA), 44 O.R. (3d) 411 (Ont. C.A.), dismissed an appeal from a motion judge’s dismissal of a motion to vary a final Order made prior to the issuance of the Guidelines to adjust the amount of child support based on an increase in the payor’s income and the introduction of the Guidelines. The Court of Appeal endorsed and followed the reasoning and conclusions of Madam Justice Huddart in Wang v. Wang (1998), 1998 6374 (BC CA), 39 R.F.L. (4^th) 426 (B.C.C.A.). The Court stated at para. 6:

In our view, Justice Daudlin erred in his interpretation of s. 14(c). This section merely provides a triggering mechanism to permit a review of the circumstances to see whether there is a sufficient change, under the jurisprudence on “change in circumstances”, that a variation should be made in the support payments: see B.(G.) v. G.(L.), 1995 65 (SCC), [1995] 3 S.C.R. 370, 15 R.F.L. (4^th) 201; Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, 6 R.F.L. (4^th) 161; and Meloche v. Kales (1997), 1997 12292 (ON SC), 35 O.R. (3d) 688, 35 R.F.L. (4^th) 2297 (Gen. Div.).

[Emphasis added]

[20] In Sherman, the application of the Guidelines amount would have had the effect of reducing the child support amount. On the facts of the case, the payor’s income was found to have increased with no change in the recipient’s income. Although the application of the Guidelines would have reduced the amount of child support, the Court, in the exercise of its discretion, declined to vary the amount.

[21] In D.B.S. v. S.R.G, 2006 SCC 37, the Supreme Court of Canada canvassed the various factors to be considered in retroactive child support cases, including the child’s and custodial parent’s need for financial support, the need for flexibility in order to ensure a just result, and the interest of the payor parents in ensuring certainty and predictability when obligations appear to be settled. The court articulated a threshold test for pursuing retroactive child support. Chappel J. described the test in the following terms in Meyer v. Content, 2014 ONSC 6001, at para. 58:

…This test is a highly discretionary one which requires the court to consider the following general factors before allowing a retroactive claim to proceed:

Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier.
The conduct of the payor parent, and in particular, whether there4 is evidence that the payor has engaged in blameworthy conduct relevant to the child support issue. The court characterized “blameworthy conduct” as “anything that privileges the payor parent’s own interest over his/her child’s right to an appropriate amount of support”. It emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments.
Consideration of the present circumstances of the child.
Any hardship that may be occasioned by a retroactive order.

[22] In Meyer v. Content, the payor spouse, who then resided in Illinois, made a motion pursuant to the Interjurisdictional Support Orders Act (S.O. 2002, c. 13) (“ISOA”), to vary the parties’ Separation Agreement, which had been filed with the court and enforced as an order. The Agreement imposed an obligation on the parties to make annual financial disclosure and to adjust support based on their respective incomes. Mr. Meyer sought an order terminating his child support obligation and an order requiring the recipient spouse to reimburse him for alleged overpayment of child support during a six month period.

[23] Justice Chappel distinguished the analysis in D.B.S. from that which applied in the case before her, which entailed the enforcement of automatic adjustments to child support. She stated:

Where a Separation Agreement or court order clearly establishes an obligation to make annual income disclosure and to adjust child support in accordance with increases in income, a subsequent proceeding by the recipient to pursue increased support in accordance with the terms of the agreement or order is a matter of enforcement rather than a claim for retroactive support….

The threshold test which the Supreme Court set out in D.B.S. evolved largely out of the court’s concern for the payor’s need for predictability and certainty, and the hardship that could ensue for the payor as a result of an unexpected retroactive claim. These concerns do not arise in circumstances where an agreement or order clearly sets out the payor’s obligation to make changes to support. In such circumstances, the payor knows or should be aware of their obligation to adjust support. A term in an order or agreement requiring automatic adjustments to child support based on income changes establishes a legal obligation on the payor to take the initiative and make the necessary adjustments, given that the payor is the party who has the income information in their possession. It does not create a legal obligation on the recipient to annually pursue the payor and pressure them to comply. The recipient is entitled to expect compliance. Extending the test in D.B.S. to a proceeding by a recipient to compel compliance in these circumstances undermines the integrity of court orders and domestic agreements. It places an improper burden on the recipient to jump hoops to explain why they should be granted the privilege to seek the court’s assistances to secure compliance. The proper approach in these circumstances is to place the burden unequivocally on the payor to explain why they should be released in whole or in part from their obligations under the order or agreement. The challenge in these cases is to determine whether the proceeding is truly just an attempt to enforce clear terms in an agreement or order, or whether there is a claim to change the order or agreement so as to seek increased support on a retroactive basis. The threshold test set out in D.B.S. would apply in the latter situation.

[Emphasis added].

[24] In Lalande v. Pitre, 2017 ONSC 208, the mother/recipient moved for an Order requiring the father/payor to contribute to s. 7 expenses pursuant to an Order made five years earlier, which required the parties to exchange annual financial disclosure and adjust their payment of s. 7 expenses accordingly. The mother characterized the motion as one to enforce the existing Order; the father characterized it as a motion to change the Order. Justice Corthorn, relying on Chappel J.’s reasoning in Mayer, held that the motion was one for enforcement. She stated:

[68] I acknowledge that in Meyer, Chappel J. was required to determine a motion to vary based on legislation other than the Divorce Act. However, her review of the principles established in DBS, and the manner in which those principles have been applied historically in this Court, is sufficiently broad to apply to the matter before me pursuant to the Divorce Act.

[69] There is no concern on the motion before me that the father is facing an unexpected retroactive claim. The parties consented to the terms of the Order, which clearly set out the financial disclosure obligations and the potential for adjustments to the father’s support obligations over time. The Order does not include any term requiring the mother to pursue the father on an annual basis to comply with those obligations.

[70] I agree with the conclusions of Chappel J. in Meyer that in circumstances such as those before me:

• To require the support recipient to compel compliance on the part of the support payor undermines the integrity of existing orders.

• The burden is not on the support recipient to “jump hoops to explain why they should be granted the privilege to seek the court’s assistance to ensure compliance.”

• The burden is unequivocally on the support payor to satisfy the Court that it is appropriate to release them from all or a part of their support obligations.

[Emphasis added]

[25] Mr. Mackenzie characterizes Ms. Mackenzie’s motion as a motion to change a final Order. He does so based on its potential effect of increasing the child support he must pay and restoring the spousal support that Trimble J. terminated as of June 30, 2016. While this is a potential effect of Ms. Mackenzie’s motion, it cannot reasonably be described as its character or intent. The need for that motion arose from Mr. Mackenzie’s failure to comply with Trimble J.’s Order. While Mr. Mackenzie sought to enter into settlement discussions based, in part, on the same material changes he relies on in his Motion to Change, he failed to make the financial disclosure required by Trimble J.’s Order or to make the necessary adjustments without, at the same time, making changes based on the material changes. This was not the intent of Trimble J.’s Order. It is also not a permissible approach, generally, to orders that require annual financial disclosure and automatic adjustments of child support.

[26] Based on the foregoing, I find that Ms. Mackenzie is correct in characterizing her motion as one made pursuant to Rule 1(8) to enforce the final Order of Trimble J., and not one that must be made in Form 15, to change a final Order.

b) Should Ms. Mackenzie’s motion be adjourned, to be heard with Mr. Mackenzie’s Motion to Change that Order, based on material changes in the children’s circumstances?

[27] Mr. Mackenzie argues that the effect of granting the relief that Ms. Mackenzie seeks will be to increase his over-payment of support and s. 7 expenses until his motion to change Trimble J.’s final Order can be heard. While this may be true, that is a matter for the judge hearing Ms. Mackenzie’s motion to consider after determining the issues raised in her motion. To adjourn Ms. Mackenzie’s motion for eight months to await the hearing of Mr. Mackenzie’s motion would have exactly the effect that Chappel J. alluded to in Meyer, which is to say it would undermine the integrity of existing orders. Moreover, it would reward Mr. Mackenzie for failing to make the adjustments required before making any necessary motion to change the final Order himself.

[28] If the judge hearing Ms. Mackenzie’s motion finds that it would create a hardship for Mr. Mackenzie to require him to pay increased amounts for child support or to reinstate spousal support pending a hearing of his motion to change the final Order, relief can be granted by staying the order made, or portions of it, pending the hearing of Mr. Mackenzie’s motion. That cannot be determined until the adjusted amounts to be paid by Mr. Mackenzie are determined.

CONCLUSION AND ORDER

[29] For the foregoing reasons, it is ordered that:

Ms. Mackenzie’s motion to enforce Trimble J.’s final Order shall be heard before Mr. Mackenzie’s motion to change the Order.
Ms. Mackenzie’s motion shall proceed on a date which she shall arrange with the Trial Office, in consultation with Mr. Mackenzie, on a Tuesday, Thursday or Friday appointed for the hearing of regular motions.
The motion shall be heard without reference to the changes that Mr. Mackenzie relies on in his motion to change.
The judge determining Ms. Mackenzie’s motion shall determine, at the conclusion of the hearing, whether the enforcement of the Order should be stayed pending the hearing of Mr. Mackenzie’s motion to change.
The timetable for Mr. Mackenzie’s motion to change shall be determined after Ms. Mackenzie’s motion is determined.
The costs of the hearing on May 8, 2018, are reserved to the judge hearing Ms. Mackenzie’s motion.

Price J.

Released: May 16, 2018

COURT FILE NO.: FS-15-0053

DATE: 2018-05-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DEBORAH LOUISE MACKENZIE

Applicant

– and –

GRANT MACKENZIE

Respondent

REASONS FOR ORDER

Price J.

Released: May 16, 2018

Mackenzie v. Mackenzie, 2018 ONSC 3090

Case Summary

NATURE OF MOTION

BACKGROUND FACTS

ISSUES

PARTIES’ POSITIONS

ANALYSIS

a) Is Ms. Mackenzie, who seeks to enforce the term for annual disclosure and automatic adjustments of child support in Trimble J.’s final Order dated June 6, 2016, required to make a Motion to Change a final order under Rule 15 of the Family Law Rules?

b) Should Ms. Mackenzie’s motion be adjourned, to be heard with Mr. Mackenzie’s Motion to Change that Order, based on material changes in the children’s circumstances?

CONCLUSION AND ORDER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2