Court File and Parties

COURT FILE NO.: D18596/97 DATE: 2019-02-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BARBARA JEAN ROBINSON PUGA (NEE LOCHHEAD), Applicant AND: JOHN ROBERT BRUCE LOCHHEAD, Respondent

BEFORE: Gray J.

COUNSEL: Laura E. Oliver, for the Applicant Hendrick Keesmaat, for the Respondent

HEARD: November 22 & 23, 2018, and January 31, 2019

Endorsement

[1] The respondent has brought a Motion to Change the Order of Carnwath J. dated January 4, 1999, as varied by the Order of Baltman J. dated January 16, 2006. Carnwath J. had ordered that spousal support in the amount of $1,000 per month be paid until December 1, 2000, and child support in the amount of $900 per month be paid for the support of two children. It was ordered that the quantum of child support be reviewed in October, 2000, and the respondent was to provide copies of his 1999 income tax return, Notice of Assessment for 1999 and his six most recent pay stubs. It was ordered that child support and spousal support were based on the respondent having a gross income of $84,000 per year and $66,000 per year after expenses. The respondent was ordered to designate the applicant as irrevocable beneficiary of certain life insurance policies for so long as child and spousal support were payable.

[2] In the proceedings before Carnwath J., the applicant was represented by counsel and the respondent appeared on his own behalf.

[3] The Order of Baltman J. dated January 16, 2006 ordered the replacement of the insurance policy to be maintained by the respondent, and terminated an obligation of the respondent to maintain a benefit package. In addition, it required the respondent to provide disclosure of his income tax returns and his Notice of Assessment each year, commencing with the 2005 taxation year. Otherwise, there were no amendments to the Order of Carnwath J.

[4] The Order of Baltman J. was made pursuant to Minutes of Settlement. The respondent was represented by counsel, and the applicant was represented by duty counsel.

[5] The parties have two children, Blake Alexander Duncan Lochhead, born January 31, 1995, and Victoria Sloane Lochhead, born April 11, 1996. It is not disputed that child support for both children is no longer payable. However, the parties disagree as to the date that child support ceased to be owing.

[6] In response to the respondent’s Motion to Change, the applicant has now claimed a retroactive increase in child support, and has claimed s.7 expenses, retroactive to at least the year 2000.

[7] There is a good deal of dispute as to the facts. However, having regard to the view I take of this matter, most of the disputes are not particularly relevant.

[8] The respondent is self-employed, working as a commissioned salesperson for a dental supply company. While his income has varied somewhat over the years, it has not varied significantly from the perspective of the issues in this case. Counsel for the respondent has filed a helpful chart based on the evidence, that shows three-year averages of the respondent’s income, starting with 2001, 2002, and 2003. The three-year averages starting with 2001 show an average annual income for the respondent between $72,545 and $75,456. For the years starting with 2002, the average is between $57,035 and $80,008. For the averages starting with 2003, the amounts are $64,044 to $77,601.

[9] Until this Motion to Change was commenced, the respondent never provided the applicant with any of the disclosure he was required to make under the Orders of Carnwath J. and Baltman J. By the same token, no demand was made by the applicant for the disclosure until commencement of these proceedings.

[10] The respondent faithfully complied with the Order of Carnwath J. for the payment of both spousal support and child support. Since the year 2000, only child support in the amount of $900 per month was payable.

[11] The parties’ son, Blake, attended a university in the United States, until May, 2018. He then started living with the respondent. The respondent facilitated the obtaining of summer employment with the dental supply company while Blake was in university.

[12] The respondent assumed that Blake had a full scholarship to the university in the United States. It turned out that the scholarship he had did not pay for everything. The applicant assisted Blake with some of his expenses, and the respondent did also. Neither party was aware of what was being paid by the other party.

[13] The parties’ daughter Sloane attended one year at Ryerson, but dropped out before the completion of the first year. She was employed thereafter part of the time. When the applicant moved to Spain with her current husband, Sloane went with them but returned subsequently to Ontario and became self-employed. Apparently, she may eventually return to university.

[14] The applicant claims that on June 12, 2014, she emailed the respondent alerting him to the fact that the children would both be attending university, and impliedly requested the respondent to contribute. The respondent insists that he did not receive the email, and points out that he had changed his email address approximately a year before the email was sent.

[15] The applicant now contends that she expended considerable amounts on s.7 expenses for the children. The respondent points out that he was not consulted in any way as to the expenses allegedly incurred, and in any event he claims that he has spent approximately $80,000 on extra-curricular activities and other matters for the children. Neither of the prior orders required a contribution to s.7 expenses.

Submissions

[16] Mr. Keesmaat, counsel for Mr. Lochhead, requests an order terminating child support for Blake effective May 1, 2018, and for Sloane effective February 1, 2017.

[17] Mr. Keesmaat submits that there should be no retroactive increase in child support, and that there should be no order that Mr. Lochhead pay any s.7 expenses.

[18] Mr. Keesmaat points out that Mr. Lochhead faithfully complied with the Orders of Carnwath J. and Baltman J. He acknowledges that the disclosure requirement of the Orders was not adhered to, but submits that in the absence of a demand that he furnish the disclosure it can only be assumed that the applicant was content with what was being paid.

[19] Mr. Keesmaat points out that Mr. Lochhead’s income has not fluctuated appreciably since the orders were made and that there would be no justification in any event to retroactively increase the child support owing.

[20] Mr. Keesmaat points out that there was nothing in either order that required Mr. Lochhead to contribute to s.7 expenses. He had no opportunity to have any input into what activities should be contributed to, and in any event he has paid a considerable amount on his own towards extra-curricular activities and other matters that would constitute s.7 expenses.

[21] Ms. Oliver, counsel for the applicant, submits that her client, quite justifiably, did not make any demand for disclosure or demand for an increase in child support or the payment of s.7 expenses. She submits that her client was afraid of the respondent, who had been abusive to her during the marriage, and continued his abusive ways after separation. Ms. Oliver points out that during the proceedings before Baltman J. the applicant was not represented by counsel, and simply relied on duty counsel.

[22] Ms. Oliver points out that an email was sent to a lawyer purporting to represent the respondent in 2002, in which a request was made for a contribution for s. 7 expenses. Furthermore, an email was sent to Mr. Keesmaat in 2005 regarding s.7 expenses.

[23] Ms. Oliver submits that in the absence of disclosure, as required by the earlier orders, the applicant was in no position to make any informed request for an increase in child support or a contribution to s.7 expenses.

[24] Ms. Oliver submits that payment of child support should be considered to be no longer payable for Blake, effective September 20, 2018, and for Sloane, effective February 1, 2017.

Analysis

[25] I am persuaded that child support should cease for Blake effective May 1, 2018. That is when he completed his degree, and commenced living with the respondent. The fact that he has some additional courses to make up through the internet should not affect the matter.

[26] I order that child support for Sloane cease effective February 1, 2017.

[27] I direct that the amount being held by Ms. Oliver in her trust account be remitted to Mr. Lochhead. No other repayment is ordered.

[28] I reject the claim of the applicant for an increase in child support retroactively, and her request for a contribution, retroactively, to s.7 expenses.

[29] Putting aside the delay of the applicant in requesting an increase in child support, I am persuaded that, based on the averages of the respondent’s annual incomes over the years, no increase in child support is warranted. While a detailed analysis of each three-year average might produce a slight increase, or even decrease, in the amounts payable, inactivity on the part of the applicant over the years suggests that she was more or less content with what was being paid as a reasonable amount.

[30] There are several difficulties with the applicant’s claim for a contribution to s. 7 expenses.

[31] First, apart from some general emails there was no formal request for a contribution to specific special expenses. Ordinarily, parties would discuss which specific activities or other matters would legitimately constitute a special expense, to which both parties should contribute, and court action, in the event of disagreement, could sort out the matter at the time. That did not happen.

[32] Furthermore, at this point it would be difficult to determine, with any accuracy, exactly what contributions either party has made to what could legitimately be considered to be special expenses. Both parties have attempted to do so, but I am not convinced that their calculations are particularly accurate.

[33] With respect to the issue of educational expenses, pursuant to Lewi v. Lewi (2006) , 80 O.R. (3d) 321 (C.A.), a cost-sharing arrangement among the two parents and the child is to be fixed. As it happens, with respect to Blake his educational expenses have been shared, as a practical matter, among Blake and his two parents. At this point, it would be difficult, if not impossible, to arrive at what would be a reasonable cost-sharing arrangement, and it would appear that such an arrangement has been effected as a practical matter. As far as Sloane is concerned, she only attended university for less than one year, and she has been both employed and unemployed since then. It is not practical to work out any cost-sharing arrangement for the brief period of time she attended Ryerson.

Disposition

[34] For the foregoing reasons, I order that child support for Blake be discontinued effective May 1, 2018, and for Sloane effective February 1, 2017. The amount being held by Ms. Oliver shall be furnished to Mr. Lochhead forthwith. I make no other order.

[35] I will entertain written submissions as to costs, not to exceed three pages, together with a costs outline. Mr. Keesmaat will have five days, and Ms. Oliver will have five days to respond. Mr. Keesmaat will have three days to reply.

Gray J. Date: February 15, 2019