Court File and Parties

COURT FILE NO.: FC-16-583-1 DATE: 2018/11/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Donald Edwards Applicant – and – Patricia Lisa Marie Edwards Respondent

Counsel: Erin Lepine, for the Applicant Loreen Irvine, for the Respondent

HEARD: September 18, 2018

REASONS FOR Decision

j. Mackinnon j.

[1] Mr. Edwards’ motion seeks to change a final order dated October 31, 2016. That order was made on consent pursuant to Minutes of Settlement signed in September 2016. The material changes he asserts are that one child moved from shared to primary residence with him as of November 1, 2016 as did the second child on February 1, 2017. He also seeks to change spousal support based on a term in the final order deeming a change in child support to be a material change in relation to spousal support.

[2] Ms. Edwards denies that Lauren is a child of the marriage as of November 1, 2016. Alternatively, she submits that the table amount is not the appropriate amount of child support for Lauren. She also submits that Mr. Edwards’ misconduct caused the change in residential arrangements and disentitles him to child support.

[3] Ms. Edwards brought her own motion to change seeking to increase spousal support. She seeks support at the high end of the Spousal Support Advisory Guidelines (SSAG) prepared for the Department of Justice Canada, July 2008 pursuant to the With Child Support formula effective November 1, 2016 based on shared custody of one child; and from February 1, 2017 according to the Without Child Support formula based on her position that no child support is payable by her from that point forward.

Has the applicant established a material change in circumstances?

[4] The final order was based on the parents’ annual incomes of $181,238 and $102,231 respectively, and the provision for equal shared residential time. Paragraph 16 dealt with child support as follows:

The applicant will pay to the Respondent child support for two children in the amount of $2,368 per month, starting on the first day of the first month that the Respondent vacates the matrimonial home, and on the first day of each month thereafter until varied or terminated, and the Respondent will pay the Applicant child support for two children in the amount of $1,443 per month, starting the first day of the first month that the Respondent vacates the matrimonial home, and on the first day of each month thereafter until varied or terminated. For convenience, the Applicant will pay the Respondent a net set off amount of $925 per month.

[5] The applicant relies on the change in the children’s residential arrangements as the material change in circumstances.

[6] Lauren was born on August 20, 1997. She is now 21 years old. The shared residential schedule contemplated in the final order did not materialize. By Lauren’s own decision, she has resided primarily with her father since November 1, 2016. Lauren never spent more than a few days at a time in her mother’s apartment. In December 2016 she told her mother she had decided not to move in with her because her apartment was noisy and she would find it awkward and inconvenient moving back and forth between homes.

[7] It is admitted that Lauren has lived primarily with her father since November 1, 2016. I find it was Lauren’s decision to do so and that the material change in circumstances entitling the applicant to seek a change to the child support order for her has been established. The child support payable by the applicant to the respondent for Lauren pursuant to the final order is terminated effective November 1, 2016.

[8] Stephanie did reside with both parents as contemplated by the final order until February 1, 2017, when she took up primary residency with the applicant father. This fact is not denied. It provides the material change of circumstances necessary to change child support for Stephanie. The respondent has not asserted any factual or legal basis entitling her to continue to receive child support for Stephanie. The applicant’s child support obligation to the respondent for Stephanie pursuant to the final order is terminated effective February 1, 2017.

Has the Applicant disentitled himself to child support?

[9] The applicant claims child support from the respondent from the dates each of Lauren and Stephanie took up primary residence with him. The respondent resists this claim based on her allegation that the applicant undermined the shared parenting arrangements, thereby breaching the final order and disentitling himself to child support.

[10] I reject the factual basis of this allegation as it relates to Lauren. I have already found that she made the decision not to alternate between homes for reasons she explained to her mother.

[11] Stephanie stopped moving between residences when her father no longer allowed her to take the car he provided for her to her mother’s. The respondent says this was a purposeful breach of the shared residency arrangement, done with intent to interfere with her relationship with Stephanie. The applicant made his decision when the respondent answered his request that she share in Stephanie’s car expenses by proposing to contribute $30 per month. The respondent argues the request was contrary to the final order which provided that she did not have to contribute to these expenses. The order did say this, but it did not require the applicant to provide a vehicle for Stephanie or, if he did, to allow to her to use it at both parent’s homes.

[12] At first Stephanie told her mother she was staying with her father because of the car. Subsequently she told her the decision had nothing to do with the car. She explained her “genuine” reasons and said she had told her mother it was about the car as a way not to hurt her feelings. The respondent infers that Stephanie was influenced by her paternal aunt and/or her father to write this message. This has not been established.

[13] Whatever Stephanie’s reason the applicant is not in breach of the court order. There was no merit in the respondent’s submission that he should not be “rewarded” by child support. The law is clear that child support is paid for the benefit of the child, not as a reward for a parent. As stated by the Supreme Court of Canada in [D.B.S. v. S.R.G., 2006 SCC 37], [2006] 2 S.C.R. 231 at para 104, “… I am keeping in mind this Court's jurisprudence that child support is the right of the child…”

[14] The conduct of an adult child in unilaterally terminating her relationship with a parent is a factor to consider in determining whether that parent should be required to contribute to the child’s support. See for example, [A.C. v. M.Z, 2010 ONSC 6473], and cases referred to there. Those are not the facts here. Both children continue to have a relationship with their mother. Neither has rejected her.

[15] Accordingly, I find that the respondent is obliged to pay child support to the applicant for Stephanie commencing on February 1, 2017 and ending as asked on August 31, 2017. From that date on the final order provides that the parents will share her post-secondary education expenses given that she is attending university away from home.

[16] The issue of ongoing support for Lauren turns on a different issue.

Is Lauren a child of the marriage?

[17] Paragraph 21 of the final order sets out terminating events for child support. Those applicable here provide that:

Child support ends for each child when:

a) The child ceases to be a “child” as defined in the [Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)]; c). the child turns 18, unless she is unable to become self-supporting due to illness, disability, education or other cause; d). the child becomes self-supporting;

[18] The parties focused their submissions on whether Lauren was a child of the marriage as defined by Section 2 (1) of the Divorce Act at the material times. It provides as follows:

Child of the marriage means a child of two spouses or former spouses who, at the material time,

(a) Is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[19] The onus is on the applicant to establish that Lauren was a child of the marriage as defined. He relies primarily on Lauren’s medical condition in support of his position. Lauren had been seeing a psychologist from May 2010 to October 2011, then from December 2012 to June 2013, and again from March 2015 to date. Lauren was diagnosed with depression prior to her parent’s separation. She struggled in her last year of high school on this account.

[20] When the Minutes of Settlement were being negotiated and when the final order issued, both parties clearly considered Lauren a dependent child. The respondent’s understanding then was that Lauren was not attending university and was still recovering from depression. Lauren was seeing her psychologist once per month. She had also been working part-time throughout 2016 to her parents’ knowledge.

[21] These are important facts because they are evidence of circumstances accepted by the parents as bringing Lauren within the definition of child of the marriage at the time of the final order.

[22] In September 2016, Lauren was registered for two courses at Carleton University. She stopped attending because as she told her mother, her anxiety was so bad she could not go to school. Later that fall she registered for and completed a half credit course in the Academic Survey at Carleton University.

[23] The respondent deposed that Lauren was ramping up her work hours towards the end of that year. Lauren’s line 150 income for 2016 was $13,102. No breakdown was provided to show how much was earned at what point during the year.

[24] I conclude that not much had changed in Lauren’s health, employment or school attendance by the end of 2016.

[25] The respondent thought Lauren worked full time from January to July 2017. In August her condition worsened. She started seeing her psychologist twice per month. In September she registered with Athabasca University for one online, three credit course. At this time she also reduced to part time hours of work. The applicant says Lauren stopped working completely in December in consultation with her psychologist.

[26] Lauren’s line 150 income for 2017 was $22,710. She must have been working full time hours or very close to it in the early part of the year given that she reduced her hours in September and stopped working altogether in December.

[27] It is unclear exactly when in 2018 Lauren resumed part time work. Most likely this was in April after she completed a course she had started in the fall. She was working full time as a Nanny in May 2018 for $17.00 per hour. This job required two overnights a week in her employer’s home. The rest of the time she continued to live with her father. Lauren also works part time in a barn to cover the cost of her riding lessons. No year to date income was provided for 2018.

[28] There was no specific evidence about whether Lauren has taken any courses since the end of March 2018. The applicant said her plan is to take one online course at a time for the next year or so.

[29] The applicant relies significantly on two reports provided by Lauren’s psychologist to show that Lauren has continued to be a child of the marriage throughout.

[30] The first is dated October 3, 2017. At that time Lauren was being treated for Major Depressive Disorder with Anxious Distress (moderate severity). She also exhibited personality functioning lags which manifest in a lack of self-direction and interpersonal struggles. The psychologist wrote that, “Lauren’s personality function lags coupled with her mood disorder have resulted in academic impairments including deficits in memory, focus and concentration, indecisiveness and confusion regarding aspirations. Specifically, Lauren has had a very difficult time choosing an area of study.”

[31] The psychologist also noted that Lauren had been working part time to full time hours depending on symptom severity, and that she was presently also attempting to return to part time studies at Athabasca University. The psychologist approved of online learning to decrease the pressure of deadlines and to build mastery in her learning at university level studies. Her recommendation was that Lauren remain a part-time student, starting with one course and potentially adding one or two more courses depending on the stability of her symptoms, until her symptoms had been in remission for approximately six months.

[32] The second report is dated April 12, 2018. At that time Lauren met the DSM-5 criteria for “Major Depressive Disorder with mixed anxious distress, recurrent episode, moderate severity, in partial remission.” The psychologist noted that Lauren’s symptoms have remitted for significant periods (several months) only to return when faced with a significant life stress. She described Lauren as oscillating from periods of functioning independently in activities of daily living to periods of low functioning. She stated in her report that Lauren is gradually increasing her distress tolerance and ability to self-regulate. “Specifically, Lauren is able to manage moderate stress when mood and the demands of daily living are stable and, due to personality functioning lags, is unable to manage when stress rises to more than moderate levels as can be predicted when she attempts to attend school and /or work full time (or close to full time) hours.” At such times she has become unable to cope resulting in dysfunctional thinking, behavioural avoidance and a major depressive episode.

[33] The psychologist stated, “Treatment will focus on sustaining motivation during periods of stress, reducing behavioural avoidance and increasing Lauren’s ability to attend to the tasks of daily living required of an adult (e.g. banking, bill payments, meeting deadlines, consistent attendance at school or work, increasing workload at school, self-advocacy, complex problem solving and decision making). I anticipate these changes will take some time for Lauren (a year or more) and she will continue to oscillate in her functioning until normal stress reactivity has been re-established.”

[34] The psychologist was asked to address whether or not Lauren could be classified as dependent, or whether she was ready for independence. She said that Lauren did not meet the definition of dependence in clinical psychology which is defined as “severe and disabling impairment in cognitive and emotional functioning, and consequent dependency on another for the mental functions necessary for everyday life outside of what could normally be expected for the person’s stage of development.” That said, the psychologist added that, “due to her mood disorder she experiences fairly significant periodic deficits in the activities of daily living in comparison to age related norms for independent functioning.”

[35] The applicant’s position is that Lauren is unable to withdraw from parental charge due to illness or disability. His submission is that her mental health symptoms impact her ability to function in traditional school and work settings, that her condition is essentially unchanged since the final order, and that she remains a child of the marriage despite her ability to undertake some courses and some employment.

[36] The psychologist’s reports establish that Lauren is not able to attend school full time. There is no doubt that her educational progress has been delayed by problems with mental health. Those facts do not bring her within the definition of child of the marriage for child support purposes.

[37] I accept that depression and anxiety are illnesses, and that Lauren has and does suffer from both. Her psychologist’s opinion that the symptoms of her illness have been periodic is consistent with the other evidence before me.

[38] Accepting the applicant’s position would require finding that despite the fluctuation in her functioning, the recurrent nature of depressive episodes brings Lauren within the definition such that she should be eligible for child support throughout. I am unable to accept this proposition for two reasons. There have been periods of time when she has undertaken significant employment and earned significant income. In those periods she has demonstrated that she is able to obtain the necessaries of life and could support herself, although she has not done so. Second, although the psychologist described low functioning periods during which Lauren’s ability to attend to adult daily tasks of living declines in relation to age related norms, she does not say that during such times Lauren is unable to live independently or that she requires to live under the supervision of and with the assistance of a parent during such times.

[39] I find her illness rendered her unable to withdraw from parental charge in November and December 2016, in September to and including December 2017, and in January 2018 to including April 2018.

[40] I find that during the other months she has been working full time or close to full time hours, that her illness has not impeded her from so doing, and that she did not meet the definition of child of the marriage for child support during those months. Having regard to the psychologist’s opinion she may regain that status due to a decline in her health.

Is the Guideline Approach Appropriate

[41] Section 3(1) ,(a),(b) and 3(2) of the Federal Child Support Guidelines, SOR/97-175, state:

Amount of Child Support

Presumptive rule

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[42] The respondent relies on Lauren’s income to meet her onus to establish that the table approach is inappropriate. The Court of Appeal addressed this issue in [Lewi v. Lewi] and more recently in [Senos v. Karcz, 2014 ONCA 459].

[43] In Senos the court referred to [Francis v. Baker, 1999 SCC 659], [1999] S.C.J. No. 52 where the Supreme Court addressed whether a high income parent (above $150,000 annually) should or should not pay the table amount based on income. Section 4 of the Child Support Guidelines applied and provided that the amount shall be the table amount unless the court considers that amount inappropriate. In Lewi the Court of Appeal distinguished the use of the word “amount” from the use of the word “approach” in section 3(2) (b). Lewi held the focus should be on the approach not the amount and that a court may not depart from the Guidelines simply because it considers the amount determined under s. 3 (2) (a) i.e. the table amount plus additional expenses under s.7 to be inappropriate.

[44] In Senos the Court of Appeal noted this distinction then referred to the commentary of James C. MacDonald and Ann C. Wilton in Child Support Guidelines: Law and Practice, 2nd ed. looseleaf (Toronto: Carswell, 2004) vol. 1 at p. 3-10:

The usual Guidelines approach is based on factors that normally apply to a child under the age of majority; that is the child resides with one or both parents, is not earning an income and is dependent on his or her parents. It is also based on the understanding that, though only the income of the person paying is used to calculate the amount payable, the other parent makes a significant contribution to the costs of that child's care because the child is residing with him or her. The closer the circumstances of the child are to those upon which the usual Guidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate. The opposite is also true. Children over the age of majority may reside away from home and earn a significant income. If a child is not residing at home, the nature of the contribution towards the child's expenses may be quite different. [Emphasis added].

[45] The issue in Senos was whether the adult child’s circumstances, including his receipt of ODSP income support and his disability made the Guidelines approach inappropriate. At para. 64 the Court held that the assumption of some responsibility by the state and the adult child’s income support for his board and lodging made the Table approach inappropriate:

64 ODSP reflects society's commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and Antoni's receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on Antoni's unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support

[46] The Court added:

65 It is useful to analogize to the cases involving adult children attending university, living away from home and earning an income, thereby contributing to their own education and support. There are numerous cases in which courts have concluded that these circumstances make the usual Guidelines approach "inappropriate" because the assumptions underlying the approach are not present. The Saskatchewan Court of Appeal noted in [Geran v. Geran, 2011 SKCA 55], 371 Sask. R. 233 that the fact that the child is earning a substantial income serves to displace one of the basic assumptions on which the Table amounts are based: namely, that children under the age of majority have no incomes of their own. This operates in turn to throw the appropriateness of the table amount into doubt, which suggests in general that the amount is more appropriately determined pursuant to subsection 3(2)(b): Geran v. Geran, at para. 65. See also [Rebenchuk v. Rebenchuk, 2007 MBCA 22], at paras. 29-32; [W.P.N. v. B.J.N., 2005 BCCA 7], at para. 42.

67 The Table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2) (a) approach inappropriate, and s. 3(2) (b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society.

[47] The respondent deposed that Lauren pays for her own clothes, make up, entertainment, meals out, and fitness membership. No dollar figure was provided for these responsibilities. Lauren has an arrangement with her father whereby she is supposed to contribute $160 per month to her car insurance. If she doesn’t make the payment he covers it, with the expectation that she will reimburse him. He also pays the balance up to $285. He recently paid for a vacation she took, with the same expectation of repayment.

[48] Lauren resides with the applicant. He covers Lauren’s expenses including housing and related expenses, groceries, and part of her car insurance, other transportation expenses, her cell phone and school fees. The applicant did not provide a child support budget. His lawyer reviewed his financial statement, pointing to expenses incurred for Lauren’s benefit. These included some clothing expenses, in addition to what Lauren herself paid for. My conclusion is that the applicant covers most of Lauren’s necessary expenses and that she uses her part time income for some personal expenses as set out above. This is a common arrangement for children under and over the age of majority who live at home and have a part time job.

[49] Both parents incur uninsured counselling expenses for Lauren with her psychologist.

[50] I conclude the respondent has not established that the Guidelines approach is inappropriate. During the periods of Lauren’s eligibility for child support these circumstances are closer to those upon which the usual Guidelines approach is based than not. Her income was on a part time basis and was not the type of substantial income that might displace the Guidelines approach. Lauren’s ability to earn the income that she did earn led to my finding that she was not eligible for child support during significant portions of 2017 and 2018. Deviating from the Guidelines approach during periods of eligibility based on part time employment would in this case be tantamount to finding that the table amount is inappropriate, which is not the test under s.3(2).

Retroactive Issues pertaining to child support

[51] [D.B.S. v. S.R.G., 2006 SCC 37] is the authority governing the exercise of the court’s discretion to make an award of retroactive child support. The court’s lengthy discussion is captured in four factors:

a) Whether there was a reasonable excuse for why the claimant did not pursue child support earlier; b) The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support. The Supreme Court described this as anything that privileges the payor parent’s interests over the child’s right to appropriate support; c) Consideration of the present circumstances of the child, and the extent to which they may benefit from a retroactive award, and; d) Any hardship that may be occasioned by a retroactive order.

[52] The applicant did not delay in his request to change child support. He agreed to the respondent’s suggestion to address the matter as part of the June readjustment. When no agreement was reached he commenced his motion to change the next month. He continued to comply with the court order in full despite the children’s residence with him, at the same time as he was supporting them in his household. The respondent earns a good salary herself. The claim for retroactivity is not taking her by surprise. She cannot establish hardship should a retroactive order be made.

[53] The status of the respondent as a payor of child support to the applicant ought not to be overlooked. Despite the convenience of the set off amount of child support paid from him to her she is also a child support payor. Her conduct has been blameworthy within the meaning of D.B.S. The respondent has favoured herself by receiving child support payments she was not entitled to and by failing to pay any child support when the children took up primary residence with the applicant.

[54] The applicant claims reimbursement of the $20,350 he has overpaid in child support since November 1, 2016. The court has the authority to order reimbursement of some or all of this amount pursuant to section 8.4(4) and (5) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31:

Order to repay

(4) A court that finds that a support obligation has terminated may order repayment in whole or in part from a person who received support after the obligation was terminated if the court is of the opinion that the person ought to have notified the Director that the support obligation had terminated. 2009, c. 33, Sched. 8, s. 2 (12).

Same

(5) In determining whether to make an order under subsection (4), the court shall consider the circumstances of each of the parties to the support order. 2009, c. 33, Sched. 8, s. 2 (12).

[55] Various factors have been identified in the case law for consideration in the exercise of judicial discretion in relation to whether or not to order repayment: See [Meyer v. Content, 2014 ONSC 6001] at para 100 where the court lists several factors for consideration. The factors appear to derive from D.B.S. Those findings support my conclusion that the applicant should be reimbursed in full.

[56] The respondent knew of the changes when they happened. The applicant drew her attention to both the propriety of ending his payments to her and for her to pay child support to him. I place particular weight on my finding that the respondent has no reasonable explanation for why she continued to accept child support from the applicant after each child was living primarily with him. Even if the respondent thought she had an arguable case not to contribute to the support of their children when they were living with their father, she had no lawful basis on which to conclude that she might still be entitled to receive child support from him.

[57] Further, the position the respondent takes is an implicit admission that the applicant is entitled to reimbursement. She submits that excess amounts paid by him should be offset against the increase in spousal support she is seeking from November 2016 forward. Her claim to increase spousal support did not entitle her to continue to receive child support payments for children not residing with her. Like all self-help remedies the court frowns on this one.

RESP and Trust Account

[58] The final order provides that the applicant will be the sole owner of Lauren’s RESP and of Stephanie’s trust account, and that the respondent will be the sole owner of Stephanie’s RESP and of Lauren’s trust account. The respondent seeks an order transferring ownership of Lauren’s RESP and of Stephanie’s trust account to her. Her submission is that having ownership will facilitate her relationship with her children. The applicant is opposed to this order.

[59] The final order did provide for a transfer of one RESP from one party to the other, and of the trust accounts from joint ownership to the sole names of each parent. That order was made on consent.

[60] I was not provided with any authority for or against the request to change the final order as to ownership of these assets. I am unaware of any jurisdiction in the court to change ownership of an asset as determined in a final order.

[61] Changing the trustee designation for the account the applicant owns and holds in trust for Stephanie would require an application to remove the trustee. Such application has not been brought. Nor does the material before the court provide grounds for removing the trustee.

Expense Reimbursement

[62] The respondent claims that the applicant owes her $1,473.78 by way of reimbursement for his share of section 7 expenses she has incurred. The applicant agrees that he owes her $973.78. The difference between them of $500 relates to expenses the respondent says she asked the applicant to submit for reimbursement by his insurer but that he failed to do in time. The respondent has not backed up her assertions with available documentary proof. For this reason I am constrained to disallow her claim as it relates to the $500.

Spousal Support

[63] The applicant seeks a change in spousal support effective when Lauren began to reside with him, again when Stephanie began to reside with him, and finally when Stephanie no longer qualified for support. His position is that spousal support should be adjusted to the mid-range of the custodial payor formula.

[64] The respondent also seeks a change in spousal support. She seeks support at the high end of the SSAG pursuant to the With Child Support formula effective November 1, 2016 based on shared custody of one child; and from February 1, 2017 according to the Without Child Support formula.

[65] Both parties submitted their own affidavit evidence plus additional supporting affidavits directed to the issue of the nature of the respondent’s entitlement to spousal support at the date of the final order. These were detailed and revealed significant factual disputes between the parties including with respect to roles and responsibilities during marriage, with particular focus on child caregiving, and changes in career, education and career related activities undertaken or available to each of them during marriage. In other words the issue of the nature of the respondent’s entitlement to spousal support which had been settled in the final order was debated in the Motion to Change on a de novo basis.

[66] It is important to identify the basis of the entitlement to spousal support at the time of the final order as part of the judge’s inquiry on a Motion to Change. I disagree that it should be done in the manner proposed by counsel. My reasons go beyond the difficulty in determining disputed facts on a written record.

[67] There is a more fundamental issue which cannot be corrected by cross examinations or a trial of an issue. The final order is a decision pronounced by a court of competent jurisdiction that had before it the very issue of the nature of the respondent’s entitlement to spousal support. It was made on consent. In Sopinka, Lederman & Bryant, The Law of Evidence in Canada, third edition LexisNexis, the authors state at page 1293, “Subject to certain exceptions in cases of fraud or mistake, judgement by consent raises an estoppel in the same manner as a judgment which has been contested.” The nature of the respondent’s entitlement was a substantive issue in the former litigation. The issue was not litigated but was assumed in the final order awarding spousal support. It cannot now be litigated by the same parties, for the same purpose, namely to identify the basis of her entitlement to spousal support at the time the final order was made.

[68] Had the issue been litigated the findings in the reasons for judgement would be available. Without them, the basis of the respondent’s entitlement to spousal support at the time of the final order should be determined by reference to facts and inferences available from the consent order itself.

[69] The parties married in September 1995. Their two children were born in 1997 and 1999. On April 3, 2015 they separated during their 20th year together. They lived separate and apart in the matrimonial home with the children until after their divorce was granted on October 31, 2016. The respondent then moved out.

[70] At the time of separation the respondent was 54 years of age. She worked for the Federal Government throughout the marriage and had established a significant pension. As part of the final order she was to transfer $136,158.77 to the applicant from it. He was to pay her $147,000 for her interest in the matrimonial home, which she then transferred to him. These transactions concluded the equalization of net family property between the parties. I infer that they properly equalized their net family property according to law.

[71] The final order provided for shared custody of the children. The parents agreed to pay each other set off child support. The applicant’s annual income for support purposes was $181,238. The respondent’s annual income for support purposes was $102, 231.

[72] The final order recites the parties’ agreement to contribute to section 7 expenses for the children on an equal basis, said to be in proportion to their incomes after taking into consideration spousal support. I infer they had or intended to have equal net disposable incomes as result of the child and spousal support orders.

[73] The final order provided for spousal support as follows:

32. The Applicant will pay the Respondent spousal support of $1,000 per month, starting on the first day of the first month that the Respondent vacates the matrimonial home. … This spousal support is a compromise amount in order to settle this matter on a final basis, and is without prejudice to either parties’ rights or position in any future variation of spousal support, including a variation of spousal support that may occur if a child lives away from home to attend university and/or child support ends for a child under the terms of this Order.
33. Spousal support may be varied in the event of a material change in circumstances, even if the change was foreseen or foreseeable, including upon the end of the Applicant’s current employment acting position and upon a change in child support.

[74] No terminating events for spousal support were included in the final order. It falls into the indefinite, subject to a material change in circumstances category of awards. I do not infer that the support was necessarily intended to be paid forever. The provision for security by life insurance includes a reference to ending this obligation when the applicant’s obligation to pay spousal support to the respondent terminates.

[75] Counsel for the applicant advised court that the sum of $1,000 per month was above the mid-range SSAG at the time of the final order. Neither party provided a 2016 SSAG reflective of all the terms of child and spousal support in the final order. I infer from the order that the amount of spousal support was between the mid-range and high end SSAG and was a compromise amount sufficient to equalize the parties’ net disposable incomes, consistent with the shared parenting agreement.

[76] I conclude that there was a needs based entitlement to spousal support reflected in the intention to equalize NDIs.

[77] The agreement to link a change in child support to the ability to seek a change in spousal support is also instructive. The terms of the final order are reminiscent but not identical to section 15.3 of the Divorce Act. It provides:

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

[78] I infer from the absence of terminating events and from the agreed upon deeming provision that there was also a compensatory basis to the respondent’s entitlement to spousal support. This finding is consistent with the duration of the marriage, the position in the SSAG range of the compromise figure, the income discrepancy between the spouses at the end of their cohabitation, and my finding that needs based entitlement had been addressed.

[79] Accordingly I find that the respondent’s entitlement to spousal support at the time of the final order was both needs based and compensatory.

[80] It was agreed that the respondent remains entitled to spousal support at this time.

Next Steps

[81] A number of support calculations are required to complete this matter. For child support the outcome is that:

• Set off support is payable on the basis that one child resides with each parent in November and December 2016.
• The applicant pays child support to the respondent for one child (Stephanie) in January 2017.
• The respondent pays child support to the applicant for one child (Stephanie) from February 1, 2017 to and including August 2017.
• The respondent pays child support to the applicant for one child (Lauren) from September 2017 to and including December 2017.
• The respondent pays child support to the applicant for one child (Lauren) from January 2018 to and including April 2018.

[82] The annual June readjustment for 2017 and 2018 income changes also need to be addressed with respect to child support.

[83] The potential change to the amount of spousal support for the respondent remains to be addressed. The With Child Support Formula applies in November, December 2016, and in January 2017. The Custodial Payor Formula applies from February 1, 2017 to and including April 2018. Thereafter the Without Child Support Formula comes into play.

[84] Counsel shall have the opportunity to prepare support calculations, to exchange them and to endeavour to agree on a set of calculations to forward to me. If they cannot agree on one set of calculations then they shall each forward one set to me, highlighting the points of difference between them for each calculation. Counsel may also exchange and provide to me their client’s position as to quantum of spousal support in each scenario.

[85] I invite counsel to calculate any payments due as between their clients as result of the terms of my order as it relates to child support only.

[86] These calculations and submissions should be completed by January 15, 2019.

[87] Costs are reserved until the completion of the specifics of the child support order and the determination of the change(s), if any, to be made to the spousal support award.

Madam Justice J. Mackinnon

Released: November 19, 2018

COURT FILE NO.: FC-16-583-1 DATE: 2018/11/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Michael Donald Edwards Applicant – and – Patricia Lisa Marie Edwards Respondent

REASONS FOR decision J. Mackinnon J.

Released: November 19, 2018