COURT FILE NO.: 15-127 (M 1) DATE: 2018 12 03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Nicholas Cassidy Anteneh F. Kassa, for the Applicant Applicant

• and -

Anne Elizabeth Cassidy Glenna G. McClelland, for the Respondent Respondent

HEARD: July 5, 6, and October 25, 26, 2017

REASONS FOR JUDGMENT

BARNES J.

INTRODUCTION

[1] The Respondent, Anne Cassidy, brings a motion to change the final orders of Justice MacKenzie: R.N.C. v. A.E.C., 2011 ONSC 7466, dated April 13, 2012, (the “April order”) and Cassidy v. Cassidy, 2012 ONSC 4612, dated August 22, 2012 (the “August order”). The Respondent, Robert Cassidy, requests that Ms. Cassidy’s motion be dismissed and has sought his own changes to the April and August orders.

[2] I have thoroughly considered the evidence and the submissions of counsel, however, I have only reproduced and referred to evidence to the extent necessary to provide context and to explain the conclusions I have reached in this case.

BACKGROUND

[3] The parties were married on June 23, 1984. They were married for 18 years. They have 10 children: Joshua, Benjamin, Zachary, Jacob, Joseph, Mary, Hannah, Caleb, Rachel and Rebekah.

[4] The parties separated on September 19, 2002. They have been involved in endless litigation and have been the subject of several orders of judges of the Superior Court. In these reasons I refer to only some of the orders.

[5] On November 14, 2007, Justice Thompson issued an order based on Minutes of Settlement to settle all issues between the parties (the November, 2007 order). At that time there were 7 children at home with Ms. Cassidy. Joshua, Benjamin and Zachary were in university.

[6] Ms. Cassidy and Mr. Cassidy brought motions to vary aspects of the November 2007 order. This was resolved by a trial before Justice MacKenzie, who issued the April and August final orders. In April, 2012, five of the children were with Ms. Cassidy (at home). One of them was about to start university in September 2012, and two were already in university. In July 2017, Rebekah, Rachel and Caleb were at home. Three children, including Hannah, were in university. In October 2017, Rebekah and Rachel were at home. Five of the children including Hannah and Caleb were in university.

[7] The parties have raised children who seem to be on track for financial and professional success. Joshua completed a degree in illustration and competed in the Paralympic games in 2008, 2012, and 2016. Benjamin completed Bachelor of Arts and Master’s degrees in psychology and is currently in medical school. Zachary completed a Bachelor of Arts degree and is self-employed in non-destructive evaluations and sub-contracts to Ontario Power Generation and Bruce Power. Jacob has completed a Master’s degree in education and is employed as a teacher.

[8] In April 2012, Mary was attending university, Joseph was attending an extra year of high school, Hannah was in high school, Caleb was in high school, and Rebekah and Rachel were in elementary school.

[9] At the time of this trial: Joseph was in university. Mary was in university. She is employed by Bruce Power. Hannah was in university. Caleb has graduated high school and was named class valedictorian. Caleb is scheduled to commence post-secondary education in fall 2018. Rebekah and Rachel are in high school.

ISSUES

[10] Ms. Cassidy seeks orders to: 1) enforce the disclosure provisions of the November 2007 and April 2012 orders, namely for Mr. Cassidy to produce his pay stubs and income tax fillings annually; 2) require Mr. Cassidy to pay retroactive and ongoing child, spousal and s. 7 expenses; 3) require Mr. Cassidy to contribute to Hannah and Caleb’s post-secondary education expenses; and 4) require Mr. Cassidy to return the children’s passports to her possession.

[11] Mr. Cassidy seeks: 1) termination of spousal support on the date Ms. Cassidy married Mr. McMillan, July 6, 2013; 2) termination of child support for the adult children of the marriage (Hannah and Caleb); 4) no obligation to contribute to post-secondary expenses of the children; 5) no order for spousal or child support or s. 7 expense arrears; 6) credit for child and spousal support payments already made; and, 8) financial credit for balance of mortgage and s. 7 expense arrears set off.

[12] The issues to be resolved are:

1. Has there been a material change in circumstances warranting a variation of the April and August orders?

2. Does Ms. Cassidy’s marriage to Mr. McMillan disentitle her to spousal support?

3. How should the parties inform each other of their annual income?

4. What is the annual income of the parties?

5. Should Mr. Cassidy contribute to the post-secondary education expenses of Hannah and Caleb?

6. What amounts should be paid for ongoing child support?

7. What amounts, if any, should be awarded for spousal support?

8. Should retroactive child, spousal support and s. 7 expenses be awarded?

9. Who should have possession of the children’s passports?

PRELIMINARY MATTERS

Mary:

[13] The parties agree that their daughter Mary is an independent adult. Ms. Cassidy’s claim for ongoing child support for Mary was abandoned. Mary Anne Elizabeth Cassidy ceased being entitled to child support on September 1, 2012.

Caleb:

[14] Neither party pursued the issue of Caleb’s custody which had been requested by Mr. Cassidy. Caleb has reached the age of majority and can choose where he wants to live.

The April order:

[15] In April 2012, Justice MacKenzie ordered the following:

1. Mr. Cassidy to pay spousal support of $600 per month until the day he returns to full-time employment, retroactive to August 2011.

2. Effective January 2010, and based on his disability income, Mr. Cassidy was to pay $1,743 monthly in child support for the five children.

3. The monthly child support was to increase to the guideline amount once Mr. Cassidy returned to full-time employment.

4. The amount of child support was to decrease by 20% if any one child ceases to be a child of the marriage.

5. Mr. Cassidy was to pay 90% of the s. 7 expenses until Ms. Cassidy earned over $15,000 per year.

6. Mr. Cassidy was to direct his employer to provide Ms. Cassidy with an annual statement of his income.

7. Mr. Cassidy owed $32,764 in child support arrears. Ms. Cassidy owed Mr. Cassidy $42,000 under the mortgage on her farm. The $32,764 in arrears plus any accumulated arrears, plus interest shall be set off against the $42,000 mortgage.

8. The previous consent order on joint custody and access to remain unchanged: See April order, at para. 68.

The August order

[16] In the August order, Justice MacKenzie clarified aspects of the April order as follows:

1. Effective July 4, 2012, Mr. Cassidy shall pay spousal support in the amount of $725 per month.

2. Effective July 4, 2012, Mr. Cassidy shall pay child support in the amount of $3,500 per month.

3. The $9,235.41 Ms. Cassidy owed to Mr. Cassidy was to be applied against additional s. 7 arrears of $4,903.23 and $6,357.83, effectively wiping out the set off balance of $9,235.41: See August order, paras. 10-18.

The mortgage and support arrears set off:

[17] In the August order, Justice Mackenzie added accumulated s. 7 arrears of $4,903.23 and $6,357.83 to the $32,764.59 in support arrears from the April order. This effectively wiped out the $9,235.41 credit to Mr. Cassidy. Therefore, Mr. Cassidy is not entitled to a payment of $9,235.41 as credit.

Spousal support per the April and August orders:

[18] The parties cannot agree on whether Mr. Cassidy’s current support obligations are $600.00 per month or $725.00 per month. I find that Mr. Cassidy’s current spousal support obligations are $725.00 per month.

[19] In the April order, Justice Mackenzie ordered Mr. Cassidy to pay interim spousal support of $600.00 per month. This was to commence on September 1, 2011, and continue until Mr. Cassidy resumed full-time employment. At the time of the order Mr. Cassidy was on disability. When Mr. Cassidy resumed full-time employment this amount was subject to review and adjustment in accordance with the Spousal Support Advisory Guidelines [SSAGS]: April order at para. 68(2).

[20] In his August order, Justice Mackenzie found that Mr. Cassidy returned to regular full-time employment on July 4, 2011. Justice Mackenzie determined that Mr. Cassidy’s annual gross income for 2012 was $150,810.84. Applying the Child Support Guidelines [CSG] and the SSAG to Mr. Cassidy’s income, Justice Mackenzie ordered Mr. Cassidy to pay child support of $3,500 per month and spousal support of $725.00 per month, both effective July 4, 2011: August order at paras. 7-11.

1) Has there been a material change in circumstances?

[21] The parties seek to vary aspects of a final order. Variation is sought in two broad categories: child support and spousal support. A final order can only be varied where there has been a material change in circumstances since the order was made: Divorce Act, R.S.C. 1985, c. 3, s. 17(4.1). I conclude that there has been a material change in circumstances warranting a review of the April and August orders.

Material change in circumstances:

[22] A change is material where: if known at the time the order was made, it would have resulted in different terms; the change has “some degree of continuity, and [is] not merely a temporary set of circumstances”. The party seeking the variation has the onus of demonstrating that there has been a “material” change warranting the variation: L.M.P. v. L.S., 2011 SCC 64 at paras. 31, 32, 35. In variations of spousal support orders under the Divorce Act, the statutory threshold set out in s. 17(4.1) of the Divorce Act applies.

[23] The threshold question is “whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order: L.M.P. at para. 29, emphasis original. It is presumed that the judge who made the initial order knew the law and made the order in accordance with the spousal support objectives set out in section 15.2(6) of the Divorce Act. Therefore, “[t]he focus of the analysis is on the prior order and the circumstances in which it was made”: L.M.P. at para. 33. Should a court find that a material change has been established, the court should only make the order that is appropriate and justified by that change: L.M.P. at paras. 47, 50. The task should not be approached as if it were an initial application for support under section 15.2 of the Divorce Act: L.M.P. at para. 50.

Repartnering as a material change:

[24] To receive an order for spousal support a spouse must first establish that he or she is entitled to spousal support. Entitlement is a threshold issue which can be established in three ways. First is the compensatory claim. In this claim the potential recipient must demonstrate that he or she has suffered economic loss as a result of roles adopted during the marriage or because the recipient conferred some economic benefit on the payor without compensation. Second is the non-compensatory claim. In this claim the recipient must establish that he or she has suffered economic hardship as a result of the marriage break down. The third way is on the basis of a contract between the parties: Bracklow v. Bracklow, 1999 SCC 715 at paragraphs 41, 43, 44 and 49.

[25] “[T]he mere passage of time itself does not constitute a material change in circumstances in respect of a spousal obligation”: Hess v. Hamilton, 2018 ONSC 661 at para. 100. In circumstances where the original basis for entitlement was compensation, repartnering is unlikely to constitute a material change in circumstances: Walsh v. Davidson, 2016 ONSC 7318 at para. 19. This is because compensatory support is intended to compensate for economic loss or disadvantage caused by roles adopted during the relationship. This is a retrospective analysis: see Wegler v. Wegler, 2012 ONSC 5982. The focus of the analysis is on where the recipient would have been if they had entered or remained in the labour force.

[26] Where entitlement is established on the basis of economic hardship, a repartnering is likely to constitute a material change in circumstances: Strifler v. Strifler, 2014 ONCJ 69 at para. 82. This is because a needs-based entitlement is intended to address needs that have arisen as a result of the breakdown of the relationship: see Wegler at para. 92.

Position of the parties:

[27] Mr. Cassidy submits that Ms. Cassidy’s re-marriage constitutes a material change in circumstances, ending her entitlement to spousal support. This is because as a result of her remarriage, Ms. Cassidy has access to the benefits of Mr. McMillan’s income (approximately $200,000 per year) and now enjoys a higher standard of living than Mr. Cassidy.

[28] Mr. Cassidy submits that Ms. Cassidy never intended to complete her university degree, nor did she have any career aspirations. It was her choice to live on a farm and raise the children. He explained that he abandoned his dream of being a fighter pilot; has been an effective and frequent caregiver to his children and gave up an opportunity to occupy a prestigious position at NORAD for his family. Mr. Cassidy submits that Ms. Cassidy is not entitled to spousal support on compensatory, non-compensatory or any other grounds.

[29] Ms. Cassidy submits that the issue of entitlement was conceded at the time of the April and August orders and should not be re-opened. According to Ms. Cassidy, in the event that her remarriage constitutes a material change in circumstance, she continues to be entitled to spousal support on a compensatory basis and thus repartnering does not extinguish her entitlement to spousal support. She explains that in order to stay home and raise 10 children she gave up her dream of being a teacher; gave up her earning potential from a career as a teacher; abandoned her university education; and the role she adopted as a stay at home mother in her marriage to Mr. Cassidy allowed him to pursue his career. This is benefit conferred on him for which she has not been adequately compensated.

Discussion:

[30] At the time of the April and August orders Ms. Cassidy’s entitlement to spousal support was conceded. At that time the parties had been married for 18 years, they separated on September 19, 2002, and divorced on November 14, 2007.

[31] They have 10 children together. Four older children, Joshua, Benjamin, Zachary and Jacob were independent adults and lived independent of Ms. Cassidy and Mr. Cassidy. The younger six children: Joseph, Cassidy. Mary, Hannah, Rachel and Rebekah lived with Ms. Cassidy.

[32] The parties met in university in 1984. Mr. Cassidy was enrolled in the Canadian Forces Regular Officer Training Plan (ROTP). This is a pilot training program which allowed him to attend the University of Ottawa. Ms. Cassidy was in her second year of university studying general science. Ms. Cassidy subsequently changed her degree to general arts.

[33] Both parties made career sacrifices for their children. In 1984 Ms. Cassidy was pregnant with Joshua. The parties married in June 1984. At the time of marriage, Mr. Cassidy and Ms. Cassidy had completed two years of their university education. Joshua was born with serious medical complications. This forced Ms. Cassidy to eventually give up her studies to care for Joshua and forced Mr. Cassidy to quit the ROTP program and enroll in the Officer Cadet Program. Thus giving up getting a university degree but continuing his training to be a pilot. This allowed Mr. Cassidy to earn an income.

[34] The parties moved to Trenton, Ontario, so that Joshua could get medical care at Toronto Sick Children’s Hospital. Due to the needs of the family, Mr. Cassidy put his fighter jet pilot training on hold and took a job as a search, rescue and transport pilot. Ms. Cassidy enrolled in some university correspondence courses but the demands of caring for Joshua forced her to abandon her university education.

[35] Mr. Cassidy re-entered the fighter pilot world by joining the snowbirds. He had a successful two-year career. Mr. Cassidy was offered a prestigious position as an Executive Assistant to a Canadian General at NORAD in Colorado Springs, Colorado. The job required extensive travel and for family reasons Mr. Cassidy declined the offer and took a job as an instructor pilot with the Canadian Forces in Portage La Prairie, Manitoba.

[36] Mr. Cassidy obtained a civilian pilot license and operated a small Cessna airplane where he took people on sightseeing tours around Owen Sound. In 1995 he was hired by Air Muskoka and within a year he was the chief pilot of the company. In the fall of 1996, Mr. Cassidy was hired by Air Canada. This allowed Mr. Cassidy to be at home half of the time each month. He did not join the management team because of his family.

[37] The parties cashed in Mr. Cassidy’s service gratuity, severance pay and RRSPs and purchased a farm near Port Elgin, Ontario. They lived on the farm and raised their ten children. Ms. Cassidy stayed at home to raise the children. Mr. Cassidy assisted her whenever he was home.

[38] On separation, Mr. Cassidy rented a home from his parents in June 2005. In August 2008, Mr. Cassidy‘s parents sold this home. In 2009, he rented a basement room in Brampton in order to be close to work. He did not have a vehicle. In 2010, Mr. Cassidy rented a home in Owen Sound purchased by his parents. This home had four bedrooms to accommodate a shared custody arrangement with Ms. Cassidy for the children.

[39] At the time of the April order, Mr. Cassidy was subject to a child support order of $3,000 monthly for six children based on an income of $113,419. Ms. Cassidy earned an annual income of $6,832. Mr. Cassidy was on disability with an income of $67,192 per annum. Mr. Cassidy owed $34,764 in child support arrears. See April order, at paras. 20, 22, 25, 27 and 31.

[40] At the time of the August order: Mr. Cassidy had resumed full-time employment on July 4, 2012 and was earning $150,810 per annum. The set-off of support arrears against Ms. Cassidy’s mortgage debt left a balance owing by Ms. Cassidy. Justice Mackenzie, as noted above, applied s. 7 arrears to Ms. Cassidy’s debt, effectively wiping it out: see August order, paras. 6, 15.

[41] The parties agreed on Ms. Cassidy’s entitlement to spousal support and thus a detailed analysis on the issue was unnecessary. The only significant reference to the subject was made by Justice MacKenzie at para. 31 of the April order as follows:

There is nonetheless no issue as to entitlement of the respondent to spousal support; this was a long-term marriage and the respondent was essentially a stay-at-home mother for the ten children of the marriage.

[42] In the context of the prevailing circumstances at the time it is reasonable to conclude that Justice MacKenzie found Ms. Cassidy to be entitled to spousal support on a compensatory and non-compensatory basis. Both parties had made sacrifices for their children, however, Ms. Cassidy’s entitlement on non-compensatory grounds was due to the fact that she stayed home to raise their ten children. She was the primary care giver. Mr. Cassidy was the primary income earner and she experienced economic hardship from the breakdown of the marriage. Her entitlement on compensatory grounds was because she had forgone her university education and career prospects to stay home to raise the children. She had wanted to be a teacher. She had suffered economic loss because of the role she adopted during the marriage.

[43] Ms. Cassidy’s marriage to Mr. McMillan was not contemplated at the time the April and August orders were made. She has been married to Mr. McMillan for five years. Mr. McMillan contributes to household expenses, family trips and vacations. There is no expectation that he contribute to any of the children’s child support or s. 7 expenses. He claims Ms. Cassidy’s proportionate share of s. 7 expenses for the children and splits his income with Ms. Cassidy to achieve the best advantage for tax purposes. Ms. Cassidy pays the mortgage on the farm.

[44] Mr. Cassidy was the primary income earner during their marriage. He earned a six-figure income. When her marriage ended Ms. Cassidy lost access to this income. This is the basis of her non compensatory entitlement. Ms. Cassidy’s marriage to Mr. McMillan has increased Ms. Cassidy’s financial resources by giving her access to a gross annual income comparable to Mr. Cassidy’s gross annual income. The marriage to Mr. McMillan helped reduce the economic hardship Ms. Cassidy suffered as a result of the breakdown of her marriage to Mr. Cassidy. Ms. Cassidy’s marriage to Mr. McMillan is of short duration and may not necessarily result in a significant spousal support award should entitlement be determined.

[45] Ms. Cassidy’s remarriage to Mr. McMillan has increased her financial resources. This is a long term change. It is a change which, if known at the time of the order, would likely have resulted in different terms. This is a material change that eradicates Ms. Cassidy’s entitlement to spousal support on non-compensatory grounds.

Material change – reduction of Child Support by 20% clause

[46] The request for Mr. Cassidy’s contribution to the post-secondary expenses of Hannah and Caleb, in the particular circumstances of this case, is a material change in circumstances warranting a review paragraph 68(1)(b) of the April order which states:

“Upon any of the several children ceasing ti be child of the marriage, the child support payment shall be reduced by 1/5 or 20%”

Position of the parties

[47] Mr. Cassidy submits that this 20% reduction clause should not be varied because at the time of the April order the trial judge contemplated that the children will at some point no longer be children of the marriage and instituted a formula intended to reduce the amount of child support as each child became independent. Mr. Cassidy submitted that the trial judge made this order because he determined that, pursuant to section 15.2(3) of the Divorce Act, such an order was “fit and just” under the circumstances.

[48] Mr. Cassidy submits that Ms. Cassidy had the option of appealing the 20% reduction clause but chose not to do so.

[49] Ms. Cassidy submits that there is reason to doubt the correctness of the 20% child support reduction order as contrary to applicable legislation and thus it should be deleted. In addition, Mr. Cassidy failed to provide his income tax returns and notices of assessment, thus frustrating the support calculation process. He is in arrears for child support, s.7 expenses and spousal support and refuses to consider Hannah and Caleb as “children of the marriage” as defined in the Divorce Act, thus refusing to contribute to their post-secondary expenses.

[50] Ms. Cassidy submits that all of these factors warrant a review of the 20% child support reduction provision, and an order for s.7, child and spousal support arrears, a revision of ongoing child and spousal support and section 7 expense contributions.

Discussion

[51] In 2012, the court was asked determine child support for five children of the marriage. Joseph was over the age of majority and was excluded, even though he was at home with Ms. Cassidy. He had returned to high school for an additional year. Six was the maximum number of children covered by the Ontario Child Support Guideline tables. Ms. Cassidy had a low income. Mr. Cassidy was the family’s primary income earner and he was on disability. His income was also low in relation to the number of children and a spouse entitled to support.

[52] The children, Joshua, Benjamin, Zachary and Jacob were no longer children of the marriage. Joseph had attained the age of majority and was residing with Ms. Cassidy. He returned to high school for an additional year. Mr. Cassidy had never contributed to the post-secondary education of Joshua, Benjamin, Zachary and Jacob and it was not contemplated that he would such make a contribution. The expectation was the same with respect to Joseph.

[53] The order instituted child support for only the children under the age of majority who resided with Ms. Cassidy: Mary, Hannah, Caleb, Rebekah and Rachel. No mention was made of Joseph. Prior family precedent and how child support for Joseph was handled demonstrated that contributions to post-secondary education expenses by either parent was not contemplated.

[54] Section 7 of the Federal Child Support Guidelines (CSG) permits a court to make a child support order to cover special or extraordinary expenses that are reasonable, necessary, affordable and in the best interest of the child. An extraordinary expense is an expense that exceeds what the spouse requesting an amount for extraordinary expense can reasonably cover: CSG s. 7(1)(a).

[55] Expenses for a child’s post-secondary education falls under this category: CSG, s. 7(1)(e). Each spouse’s contribution to an extraordinary expense is determined in proportion to their respective incomes after deducting any contributions from the child: CSG: s. 7(2).

[56] I have described some of the prevailing circumstances when the 20% child support reduction clause was ordered. In that context, it is reasonable to conclude that in crafting the clause the court adopted a holistic approach and considered the family history in relation to post-secondary expenses. In fact, had contributions to post-secondary education been contemplated, the application of the 20% support reduction clause would be cumbersome and different terms would have be ordered.

[57] In effect, there was a family benchmark for post-secondary education. The expectation was that when a child reached the age of majority they ceased to be children of the marriage and were responsible for expenses associated with their post-secondary education. This is evidence by: 1) the large number of children relative to the CSG tables; 2) the incomes of the parties at the time of the order; and 3) the older children: Joshua, Benjamin and Zachary had paid for post-secondary education on their own. Therefore, this is one of those cases where the request for post-secondary education expense contribution creates a material change in circumstance, warranting a review of the 20% child support reduction clause.

2) Does Ms. Cassidy’s marriage to Mr. McMillan disentitle her to spousal support?

[58] Ms. Cassidy’s marriage to Mr. McMillan does not change her entitlement to spousal support on compensatory grounds. Ms. Cassidy gave up her potential career as a teacher to raise ten children. Mr. Cassidy also made career adjustments for the family. He gave up his dream to be a fighter pilot, however, he replaced it with a career as a commercial airline pilot with Air Canada.

[59] This position does not in any way detract from the fact that Mr. Cassidy contributed to child care during the marriage and after separation. Neither is the fact that Mr. Cassidy gave up his dream of becoming a fighter jet pilot discounted, however, Ms. Cassidy’s role as primary care giver allowed Mr. Cassidy to leave home to pursue his career. The role she adopted in the marriage conferred an advantage on him for which she should be compensated. Mr. Cassidy provided for his family during the marriage but the benefit to him is evidenced by the fact that he is able to continue earning income as an airline pilot.

[60] There is no basis to reject Ms. Cassidy’s statement that she wanted to be a teacher. The objective evidence supports this. Her career was impacted by Joshua’s illness, the fact that the family moved wherever possible in accordance with the location of Mr. Cassidy’s employment, and the number of children raised and who remain to be raised. Ms. Cassidy is now in her early fifties. She has two part-time jobs but her income growth potential has been severely limited by education and career opportunities forgone by the role she adopted during her marriage to Mr. Cassidy. The vexing is question what should be the total quantum and duration of such compensation?

3) How should the parties inform each other about their income?

[61] To address a finding that there had been difficulties in obtaining information about Mr. Cassidy’s income, Justice MacKenzie ordered Mr. Cassidy to issue an “irrevocable direction in writing to Air Canada or any subsequent employer to supply on a timely basis a written statement of Mr. Cassidy’s annual income”. This was to direct Air Canada or subsequent employer to send this information directly to Ms. Cassidy for as long as she was entitled to receive child support: April order at paras. 3, 40.

[62] In the August order, Justice MacKenzie noted that Air Canada had provided income information in a letter dated May 15, 2012, ostensibly in response to the April order, however, the letter provided an income “to date” for Mr. Cassidy of $55,480.08. Justice MacKenzie found that information unhelpful in calculating Mr. Cassidy’s annual income: August order at paras. 9-10. Justice MacKenzie did not vary his April order.

[63] In the November 2007 order, at para. 19, Justice Thompson ordered the parties to: exchange pay stubs within 5 days of receipt; 2) exchange their complete tax returns by May 15 of each year, and 3) exchange their Notices of Assessment or Re-Assessment within 10 days of receipt.

[64] The parties have advanced contrary positions about the impacts and meaning of the order for Mr. Cassidy to provide his employer with an irrevocable direction to provide a letter setting out his income and whether Mr. Cassidy has complied with this order. They also present different positions about the impacts of the order to send an irrevocable direction to Air Canada on the November 2007 income disclosure order and whether Mr. Cassidy has complied with the income disclosure provision orders.

[65] For greater clarity the parties are reminded that nothing in the April and August orders changed the income disclosure obligations set out in the November 2007 order as follows:

18. The applicant, Robert Cassidy and the Respondent, Anne Elizabeth Cassidy shall provide to each other their last pay stub(s) within 5 days of receipt of same in every year when support is payable.

19. each and every year that support is payable the Applicant, Robert Nicholas Cassidy and the Respondent, Anne Elizabeth Cassidy shall exchange the following: (i) by May 15 th their complete income tax returns (ii) Their Notices of Assessment or Re Assessment within 10 days of receipt of same.

[66] Both parties are bound to comply with that order. I am satisfied the difficulties with obtaining information about Mr. Cassidy’s income persist.

[67] There is no basis to conclude that the April and August orders changed the income disclosure obligations mandated by the November 2007 order. The irrevocable disclosure clause was an additional safe guard imposed by Justice Mackenzie to ensure that Mr. Cassidy provided his annual income information to Ms. Cassidy on a timely fashion.

[68] In March 2013, Mr. Cassidy provided Ms. Cassidy with a pay stub for a lower-paid friend and colleague Michael Portryla. Mr. Cassidy said it was sent in error and he did not intend to mislead Ms. Cassidy. Mr. Cassidy did not provide his 2012 tax return until 2014. He could not provide a satisfactory reason why. In April 2015 he produced his T4 slips for 2013 and 2014.

[69] These delays made it difficult to properly determine child and spousal support for the years 2013 and 2014. I am satisfied that had the difficulties arising from Air Canada’s response and the parties interpretation of the irrevocable direction been known at the time the order was made it would have resulted in different terms.

[70] This circumstance is a material change in circumstance which warrants a deletion of paragraph 68(3)(i) of the April order. That paragraph shall be replaced with the following: “Mr. Cassidy shall forthwith issue an irrevocable direction in writing to Air Canada or his subsequent employer. This irrevocable direction shall authorize Air Canada or Mr. Cassidy’s subsequent employer to: 1) On or before May 15th, of each year to provide directly to Ms. Cassidy, a letter indicating Mr. Cassidy’s total annual income for the immediate preceding year; 2) Ms. Cassidy’s contact information for purposes of the employer sending her the letter directly; 3) this irrevocable direction shall be in effect until a court orders that Ms. Cassidy is no longer entitled to receive spousal support and child support; and 4) to provide a copy of the annual letter sent to Ms. Cassidy to Mr. Cassidy.”

[71] Mr. Cassidy shall provide Ms. Cassidy with a copy of this irrevocable direction with proof that it has been sent to Air Canada or Mr. Cassidy’s subsequent employer forthwith.

4) What is the income of the parties?

[72] Ms. Cassidy’s updated calculations of Mr. Cassidy’s income filed as Exhibit 21 were not challenged. All reported income for Mr. Cassidy is reduced by his union dues for that year. Mr. Cassidy’s income for 2012 was $177,945.00. Ms. Cassidy’s was $4,269.78. His 2013 income was $202,558. Ms. Cassidy’s was $8,764.24. In 2014, Mr. Cassidy’s income was $184,567.00. Ms. Cassidy’s was $7,658.71. In 2015, Mr. Cassidy was on disability for part of the year. His income, including disability payments, was $146,209.00. Ms. Cassidy’s was $8,743.72. Mr. Cassidy’s 2016 income was $128,882.00. Ms. Cassidy’s was $8,637.28. Mr. Cassidy’s income for 2017 was $231,272.00. Ms. Cassidy has agreed a minimum wage income can be attributed to her for 2017, which puts her income at $24,300.00.

5) Should Mr. Cassidy contribute to the post-secondary education of Hannah and Caleb?

[73] Mr. Cassidy submits he should not contribute to the post-secondary expenses of Hannah and Caleb because the six older children attended post-secondary education and the parties did not make any meaningful financial contribution. All the children knew that they will have to pay for their own post-secondary education; Ms. Cassidy has not contributed to the children’s post-secondary education and only made this request because she knew upon her marriage to Mr. McMillan her entitlement to spousal support would end.

[74] Ms. Cassidy submits that the older children are in debt from post-secondary education and the younger children (Hannah and Caleb) cannot afford to pay for their post-secondary education so contribution from Mr. Cassidy is warranted.

[75] Exhibit 17 is a volume of Hannah’s tax returns. Exhibit 18 summarizes her expenses for post-secondary education for the 2016/2017 academic year as $22,000.00.

Discussion

[76] Post-secondary education is a special and extraordinary expense and Mr. Cassidy is obliged to contribute to reasonable, necessary and affordable expenses of his children engaged in post-secondary education after deducting contributions from the children and any grants or scholarships available to be applied towards the expense. After such deduction, Mr. and Ms. Cassidy contribute to the balance in proportion to their incomes: CSG, s. 7 (1) (a) (2) (3). The fact that the older children had always paid their own post-secondary education expenses does not excuse either party from contributing to s. 7 expenses.

[77] The contribution to s. 7 expenses is a material change for the family. Given the pervious family bench mark of no contribution to s. 7 expenses by the parents due to the number of children. Due to my concern about affordability of the totality of retroactive payments warranted in this case, the parties’ obligations to the post-secondary education of Hannah and Caleb shall commence from the 2017/2018 academic year onwards.

[78] Caleb and Hannah shall submit their post-secondary expenses (actual and estimated) in writing to Mr. and Ms. Cassidy by March 1, 2019, and the parties shall make contributions in accordance with the following formula: On the 31st day of July of each year retroactive to July 31, 2017, Hannah and Caleb shall advise Ms. Cassidy and Mr. Cassidy in writing about: 1) their projected post-secondary expenses for the coming school year; 2) shall provide proof of their enrolment in the upcoming school year by providing a copy of a current student card or copy of class schedule for the upcoming year or other official document confirming enrolment in the upcoming year of study; and, 3) their contribution to this expense from employment income, grants, scholarships etc.

[79] Mr. Cassidy and Ms. Cassidy shall contribute to the balance in amounts proportionate to their respective annual income for the preceding year. Ms. Cassidy and Mr. Cassidy shall make their post-secondary contributions directly to Hannah and Caleb and shall be prepared to provide documentary proof should the court require. As per s. 7 of the CSG the parties’ obligations to pay section 7 expenses extend to Rachel and Rebekah and the same process I have articulated shall be followed. The parties shall pay for ongoing section 7 expenses as set out in the April 2012 order at para. 68.

6) How much ongoing child support should Mr. Cassidy pay?

[80] Hannah was attending university from January 2017. She was home for the summer in 2017. Caleb was in high school in 2017 and began university in October 2017. Hannah is expected home each summer during her post-secondary education. Home means residing with Ms. Cassidy. Rebekah and Rachel are at attending high school and are home with Ms. Cassidy.

[81] Based on his 2017 income of $231,272.00 and Ms. Cassidy’s 2017 income of $24,300.00, Mr. Cassidy shall pay CSG child support of $4,009 per month for the period January 1 to September 30, 2017. This represents the amount for three children with Ms. Cassidy during the year plus one child with Ms. Cassidy during the summer months.

[82] Mr. Cassidy shall pay $3,197.00 per month retroactive to October 1, 2017 and ongoing for Rebekah and Rachel at home with Ms. Cassidy and with Hannah at home with Ms. Cassidy during the summer.

[83] For reasons previously articulated, I have concluded that in the unique circumstances of this family, the order for the parties to contribute to the post-secondary expenses of Hannah and Caleb creates a material change in circumstances such that the 20% child support reduction formula in the April order is cumbersome. Therefore, that provision is deleted and replaced with the following:

Commencing June 1, 2019, the Applicant, Robert Nicholas Cassidy and the Respondent, Anne Elizabeth Cassidy shall make necessary adjustments to child support on January 1 of each year in accordance with the Child Support Guidelines based on the Applicant’s preceding year’s income.

7) How much ongoing spousal support should Mr. Cassidy pay?

[84] Despite her marriage to Mr. McMillan Ms. Cassidy is entitled to spousal support from Mr. Cassidy on compensatory grounds.

[85] In reaching this conclusion I do not in any way minimize the fact that Mr. Cassidy gave up his dream to be a fighter pilot and gave up a prestigious military position in order to support his family. His dream to be a pilot was fulfilled albeit in a modified form. He went from the cockpit of a fighter jet to that of commercial airliner. Despite some disappointments he has had some highlights, such as working as part of the Snowbird.

[86] Mr. Cassidy’s career advancement would have been impossible but for the contributions of Ms. Cassidy. In raising ten children, Ms. Cassidy received help from Mr. Cassidy when possible, but she ultimately sacrificed an education and a career in order to properly care for the children. Her status as at-home caregiver also allowed the family to move as needed by Mr. Cassidy’s work. In reaching this conclusion, I recognise that Mr. Cassidy tried to be home often to assist with childcare needs. Nonetheless, Ms. Cassidy, by virtue of caring for their children, lost the economic opportunity of entering the workforce and proceeding through an uninterrupted career.

[87] Mr. Cassidy worked to support his family and that fact must be acknowledged. However he continues to benefit from the economic advantage he gained by being able to have an uninterrupted workplace participation despite fathering ten children. This is the basis for which Ms. Cassidy must be compensated despite her new marriage to Mr. McMillan.

[88] Mr. Cassidy has submitted that Ms. Cassidy has been compensated enough because Mr Cassidy paid support to Ms. Cassidy for 15 years despite a shared parenting arrangement; Ms. Cassidy receives between $1400 and $2,000 per month in child tax credits; and Ms. Cassidy benefited from a $70,000 dollar life insurance policy, upon which Mr. Cassidy paid the premiums ($22,000.00) and has not been reimbursed.

[89] Mr. Cassidy argues that when the parties equalized net family property Ms. Cassidy received a windfall from an alleged $120,000.00 loan from her mother. He submits that Ms. Cassidy’s net worth is $443,500.00 while Mr. Cassidy’s net worth is $147,004.46; Ms. Cassidy receives income from the farm and owns the farm, valued at $1,000,000.00. Mr. Cassidy does not own property and Ms. Cassidy has received financial benefits from her marriage to Mr. McMillan.

[90] The characterisation of the life insurance policy; whether the $120,000 dollars was or was not a loan, the value of the farm and the accuracy of Mr. Cassidy’s net worth are all matters in dispute. I am not satisfied that these issues can be resolved on the basis of the evidence at trial, however, had I accepted Mr. Cassidy’s assertion as fact (and I do not), the factors he enumerated are not sufficient at this time to meet the objectives of spousal support set out in section 17(7) of the Divorce Act, such as to extinguish Ms. Cassidy’s entitlement to spousal support on a compensatory basis.

[91] The August order fixed Mr. Cassidy’s spousal obligation at $725.00 effective July 4, 2011: August order at para. 11. Exhibit 20 demonstrates that Ms. Cassidy has received total spousal support payments of $39,852.00 since the parties separated.

[92] The marriage to Mr. McMillan has been of relatively short duration. This impacts issues of entitlement and spousal support quantum, from that marriage, should such a consideration be necessary. There are still two to three of Mr. Cassidy’s children living at home with Ms. Cassidy. Ms. Cassidy works part time and has child care responsibilities, is almost in her mid-fifties; and her lack of career experience means her ability to earn beyond her imputed income for 2017 is limited.

[93] For all these reasons, while the introduction of Mr. MacMillan’s income to the equation has reduced the economic hardship Ms. Cassidy has suffered from the breakdown of her first marriage, it has not changed the opportunities Ms. Cassidy gave up. Mr. Cassidy’s income has increased since the initial support order was made in April and August 2012. The number of children in Ms. Cassidy’s care has decreased from five to two year-round, or three or four in the summer time depending on whether Hannah and Caleb stay with Ms. Cassidy. The circumstances, needs and conditions of both parties has changed: see Divorce Act s. 17(4.1)- (7). Mr. Cassidy earns just in excess of $200,000 annually, and without discounting any other expenses, his primary obligations are spousal and child support to Ms. Cassidy and his children. Legal fees are not a basis to relieve him of his responsibilities.

[94] Unlike CSG the Spousal Support Advisory Guidelines (SSAG) are non-binding, however, SSAG provides a useful framework to determine the duration and quantum of spousal support. Mr. Cassidy shall pay ongoing spousal support at the SSAG-influenced amount of $3,000.00 per month retroactive to January 1, 2017 and ongoing from the first of each month commencing January 1, 2019. This amount is just above the low-end SSAG amount.

[95] I have awarded spousal support below the medium- and high-end SSAG amounts in recognition of the fact that Mr. Cassidy will also contribute to the post-secondary expenses of Hannah and Caleb. Any reduction or termination of child support shall constitute a material change in circumstances for a review and variation of this spousal support order: Divorce Act, s. 15.3(3).

[96] The record reveals that the inability of Mr. Cassidy to disclose his income as per the provisions of the November 2007 order is chronic. I reiterate that compliance with the November 2007 income disclosure order applies irrespective of Air Canada’s response to the irrevocable consent direction.

[97] In recognition of this ongoing difficulty and pursuant to sections 17(3) and 15.2(3) of the Divorce Act, it is fair and just in all the circumstances to craft the following order: 15 days after Mr. Cassidy fails to produce his income in accordance with the November 2007 order, his spousal support payments shall automatically increase to $4,000 on the first of the month immediately following this violation.

[98] Spousal support shall return to the monthly amount of $3,000 on the first of the month immediately following compliance with the November 2007 order. Mr. Cassidy shall not receive any financial credit toward his spousal support obligation for the year arising from the additional $1,000.00 payment imposed because of his noncompliance with the November 2007 income disclosure order.

[99] This spousal support order is for an indefinite period but shall be reviewed five years from December 3, 2018. However, it shall remain in effect until the review is completed and the court orders otherwise. The spousal support review shall not require a material change in circumstances.

[100] This review will allow the court to consider factors affecting duration and quantum of spousal support such as the impacts of the marriage to Mr. McMillan. On review, the impacts of this remarriage can be assessed by considering relevant factors such as those articulated in Boland v. Boland, 2012 ONCJ 102, at para. 107, as: the duration and stability of the new relationship; the value of any benefits received by the support recipient; legal obligations of the new partner to the support recipient and the economic circumstances of the new partner compared to the old partner. It is prudent to treat this list as non-exhaustive and guided by the circumstances of each case to consider any other relevant factors.

8) Should retroactive child, spousal support and s. 7 expenses be awarded?

[101] Ms. Cassidy’s figures for s. 7 expense arrears, spousal support and child support arrears and post-secondary expenses were not challenged. Mr. Cassidy challenged the interpretation of the April order with respect to spousal support and challenged the recipient’s entitlement to extraordinary expenses and post-secondary education expenses.

[102] Exhibit 19 shows the s. 7 expenses for the children for the period from January 1, 2010, to June 31, 2017. Mr. Cassidy’s share is $7,194.00. Exhibit 28 is a summary of Rachel, Rebekah and Caleb’s s. 7 expenses from January 1 to October 20, 2017. The April order placed Mr. Cassidy’s proportionate share at 90% unless Ms. Cassidy earned more than $15,000.00: paragraph 68(1)(iv) of the April order. Based on this, Mr. Cassidy’s share is $4,022.13. His total section 7 arrears are $11,216.13.

[103] Exhibit 21 shows calculations for spousal support payments as updated to accord with changes in Mr. Cassidy’s income. In accordance with para. 68(2) of the April order monthly spousal support was to be adjusted in accordance with the mid-range amount of the SSAG when Mr. Cassidy resumed his regular employment. I conclude that yearly adjustments in accordance with the April order leaves Mr. Cassidy with spousal support arrears of $40,127.00. Exhibit 21 also shows the calculations for child support arrears of $316.00.

9) Who should have possession of the children’s passports?

[104] The record reveals that the parties have had issues complying with para. 5 of the November 2007 order, which required them to cooperate in preparing the children’s passports and for Mr. Cassidy to pay for the costs of renewing the passports. Mr. Cassidy was to maintain possession of the children’s passports. The record demonstrates that this provision has proved unworkable. Therefore, that provision of the November 2007 order shall be deleted and replaced with the following:

Robert Cassidy shall cooperate with Elizabeth Cassidy to renew passports of the minor children upon the request of Anne Elizabeth Cassidy. He shall provide executed documents within 10 days of receiving the request from her by email, text message or in other written form. Anne Elizabeth Cassidy shall keep the passports in her possession and shall deliver them to Robert Nicholas Cassidy in the event that he has arranged to travel with the children and he shall return them to Anne Elizabeth Cassidy upon completion of such travel.

Retroactivity

[105] Mr. Cassidy is required to make a number of retroactive payments as stipulated: the factors to consider in determining whether a retroactive award should be made are: 1) the reason for the delay in asking for support; 2) the conduct of the payor; 3) past and present circumstances of the children [or support beneficiary]; 4) the children’s[or support beneficiary’s] needs at the time the support should have been paid; and, 5) the hardship to the payor: D.B.S. v. S.R.G., 2006 SCC 37.

[106] The chronic delays in the provision of Mr. Cassidy’s income in accordance with the November 2007, April and August orders, resulted in difficulties in making timely adjustments in his spousal, child and s. 7 expense payments. Ms. Cassidy may have suffered as a result of arrears in spousal support. The income disclosure orders are unambiguous and clear and should have been followed in a timely fashion.

[107] There is no direct evidence of any hardship to Ms. Cassidy or the children as a result of the accumulation of these arrears, however, I accept that Hannah and Caleb have difficulties paying for their post-secondary education expenses on their own. The introduction of Mr. McMillan’s income has eased any economic hardship Ms. Cassidy may have faced. I am satisfied that a well-structured retroactive award payment plan will not cause Mr. Cassidy hardship.

ORDERS

[108] Paragraph 68(3)(i) of the April order shall be replaced with the following: “Mr. Cassidy shall forthwith issue an irrevocable direction in writing to Air Canada or his subsequent employer. This irrevocable direction shall authorize Air Canada or Mr. Cassidy’s subsequent employer to: 1) On or before May 15th, of each year to provide directly to Ms. Cassidy, a letter indicating Mr. Cassidy’s total annual income for the immediate preceding year; 2) Ms. Cassidy’s contact information for purposes of the sending her the letter directly; 3) this irrevocable direction shall be in effect until a court orders that Ms. Cassidy is no longer entitled to receive spousal support and child support; and 4) to provide a copy of this annual letter to Mr. Cassidy.”

[109] Mr. Cassidy shall provide Ms. Cassidy with a copy of this irrevocable direction with proof that it has been sent to Air Canada or Mr. Cassidy’s subsequent employer forthwith.

[110] Caleb and Hannah shall submit their post-secondary expenses (actual and estimated) in writing to Mr. and Ms. Cassidy by March 1, 2019, and the parties shall make contributions in accordance with the following formula: On the 31st day of July of each year retroactive to July 31, 2017, Hannah and Caleb shall advise Ms. Cassidy and Mr. Cassidy in writing about: 1) their projected post-secondary expenses for the coming school year; 2) shall provide proof of their enrolment in the upcoming school year by providing a copy of a current student card or copy of class schedule for the upcoming year or other official document confirming enrolment in the upcoming year of study; and, 3) their contribution to this expense from employment income, grants, scholarships etc. This obligation extends to Rachel and Rebekah.

[111] Mr. Cassidy and Ms. Cassidy shall contribute to the balance in amounts proportionate to their respective annual income for the preceding year. Ms. Cassidy and Mr. Cassidy shall make their post-secondary contributions directly to Hannah and Caleb and shall be prepared to provide documentary proof should the court require. The same process shall be followed for Rachel and Rebekah.

[112] Based on his 2017 income of $231,272.00 and Ms. Cassidy’s 2017 income of $24,300.00, Mr. Cassidy shall pay CSG child support of $4,009 per month for the period January 1 to September 30, 2017. This represents Rebekah, Rachel and Caleb being with Ms. Cassidy during the school year and Hannah being with Ms. Cassidy during the summer months.

[113] Mr. Cassidy shall pay $3,197.00 per month retroactive to October 1, 2017 and ongoing for Rebekah and Rachel at home with Ms. Cassidy and with Hannah at home with Ms. Cassidy during the summer.

[114] Mr. Cassidy shall pay ongoing spousal support at the SSAG-influenced amount of $3,000.00 per month retroactive to January 1, 2017 and ongoing from the first of each month commencing January 1, 2019.

[115] Paragraph 68(1)(b) of the April order is deleted and replaced with the following:

Commencing June 1, 2019, the Applicant, Robert Nicholas Cassidy and the Respondent, Anne Elizabeth Cassidy shall make necessary adjustments to child support on January 1 of each year in accordance with the Child Support Guidelines based on the Applicant’s preceding year’s income.

[116] 15 days after Mr. Cassidy fails to produce his income, in accordance with the November 2007 order, his spousal support payments shall automatically increase to $4,000.00 on the first of the month immediately following this violation.

[117] Spousal support shall return to the monthly amount of $3,000 on the first of the month immediately following compliance with the November 2007 order. Mr. Cassidy shall not receive any financial credit toward his spousal support obligation for the year arising from the additional $1000.00 monthly spousal support payment imposed because of his non-compliance with the November 2007 income disclosure order.

[118] This spousal support order is for an indefinite period but shall be reviewed five years from December 1, 2018. However, it shall remain in effect until the review is completed and the court orders otherwise. The spousal support review shall not require a material change in circumstances.

[119] Mr. Cassidy shall pay section 7 expense arrears of $11,216.13 by July 3, 2019 and child support arrears of $316.00 by February 3, 2019.

[120] Mr. Cassidy shall pay spousal support arrears of $40,127.00 by December 3, 2019. This is a lump sum spousal support award and pursuant to the provisions of the Income Tax Act R.S.C., 1985, c. 1 (5th Supp.), this amount is not tax deductible: Charron v. Carrière, 2016 ONSC 7523 par. 14 to 18.

[121] Unless otherwise specified all retroactive awards shall be paid by December 31, 2019. Support deduction order to issue for all ongoing child and spousal support orders.

[122] Paragraph 5 of the November 2007 order shall be deleted and replaced with the following:

Robert Cassidy shall cooperate with Anne Elizabeth Cassidy to renew passports of the minor children upon the request of Anne Elizabeth Cassidy. He shall provide executed documents within 10 days of receiving the request from her by email, text message or in other written form. Anne Elizabeth Cassidy shall keep the passports in her possession and shall deliver them to Robert Nicholas Cassidy in the event that he has arranged to travel with the children and he shall return them to Anne Elizabeth Cassidy upon completion of such travel.

COSTS

[123] Should the parties be unable to agree on costs a three-page cost outline will be submitted to the court within 20 days.

Barnes J. Released: December 3, 2018 Note: Minor corrections made to paragraphs 63, 79, 83, 97, 102, 110, 107, 113, 119, 120, 121, 122.