Court File and Parties
NEWMARKET COURT FILE NO.: FC-09-33597-00 DATE: 20190927 CORRIGENDA DATE: 20191104
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Dane Mugford, Applicant -and- Yvonne Mugford (Silva), Respondent
BEFORE: The Honourable Madam Justice S.E. Healey
COUNSEL: Heather Saunders, for the Applicant Yvonne Mugford (Silva), Respondent, Self-Represented
HEARD: June 10, 11, 12, 17, 18 and 20, 2019
REVISED JUDGMENT
The text of the original Reasons for Decision has been corrected with the text of the corrigendum (released September 27, 2019)
Nature of the Proceeding
[1] This is the trial of a motion to change certain terms of the final order of McDougall, J. made on July 21, 2004 (the “final order”). The applicant, Dane Mugford, began the motion to change in September, 2009. The response to the motion to change filed by the respondent, Yvonne Mugford (Silva), is dated October, 2009.
[2] This proceeding took so long to arrive at a final hearing that the relief pertaining to access requested in both the motion to change and in the response has become moot. At the time of trial each of the parties’ three children had surpassed the age of majority, now being 26, 21 and 19 years of age. The children are Lauren Mugford born August 4, 1992, Robyn Mugford born July 20, 1997 and Dylan Mugford born August 15, 1999.
[3] The remaining issues are financial in nature. Over the decade of this litigation, the relief sought in each of the parties’ pleadings has become refined, either through attrition or through conferencing and temporary orders. The parties have had seven conferences in this proceeding.
Brief History of the Parties
[4] The parties were married on July 8, 1989, separated on January 31, 2003 and were divorced on January 3, 2006.
[5] Mr. Mugford is currently 52 years old and Ms. Silva is 53 years old.
[6] The family lived in Ajax, Ontario when the parties separated. At that time the children were 10, 5 and 3 years of age.
[7] At the time of separation, Mr. Mugford moved out of the family residence and went to live in Toronto with his mother and stepfather for the next four years. In 2007 he moved to a rented apartment in Woodbridge, where he continues to reside.
[8] Ms. Silva remained with the children in Ajax until 2006. In that year she sold the former matrimonial home and purchased a new home in Woodbridge, with substantial financial assistance from her sister.
[9] Mr. Mugford started a proceeding in the Family Court in Oshawa shortly after separation as court file 465/03 (the “Oshawa proceeding”). Mr. Mugford’s evidence is that he was motivated primarily by the difficulties he was having obtaining access to the children. Although the parties attended mediation on several occasions, they were not able to resolve their conflicts. A parenting coordinator was involved at one point, but access and parenting appear to have always been contentious, even up to 2017 when issues surrounding Dylan arose. Financial issues, including income disclosure and sharing of medical, dental and other s. 7 expenses, have likewise plagued these parties during the 16 years following their separation.
[10] The Oshawa proceeding was prolonged. Although a final order was made in 2004, orders continued to be made until January 18, 2007. Those later orders attempted to give effect to that final order. Unfortunately, the financial issues that were never fully resolved in the Oshawa proceeding necessarily had to be delved into and resolved in the present proceeding, as will be more fully explained below.
[11] This motion to change has taken over 10 years to bring to trial.
[12] The file lay dormant after the first case conference on February 22, 2010 until its administrative dismissal on December 6, 2010. Mr. Mugford successfully moved to set aside the dismissal order at the beginning of 2011, but the court ordered that a settlement conference was to be peremptory on both parties. For reasons now unimportant, two successive settlement conference dates were unproductive and the third, substantive settlement conference held on June 23, 2011 did not resolve the issues.
[13] Again, the file lay dormant between that settlement conference and 2017. Mr. Mugford explained that he took no steps after the settlement conference because he no longer had the money for legal fees. He was also receiving negative comments from the children about the case, so he decided to “back off” for a while so that it would not affect his relationship with them.
[14] Mr. Mugford revived the proceeding in 2017 by serving a notice of case conference. It is his evidence that, since pursuing the matter, his relationship with both Robyn and Dylan has suffered, and he had not been able to make contact with them for about a year. For this reason he had limited information about their employment and educational plans.
Issues
[15] The issues to be addressed on this motion to change are: retroactive adjustment of child support, termination of child support, retroactive adjustment of spousal support, termination of spousal support, life insurance coverage, sharing of post-secondary expenses, retroactive s. 7 expenses, maintenance of health coverage for the respondent and any dependent children, calculation of the balance of the equalization payment owed to Mr. Mugford, payment of costs previously ordered, execution of releases previously ordered, and costs of this proceeding.
[16] The applicant seeks a termination of spousal and child support. He agrees to adjust both child and spousal support retroactively for the years 2009 to 2017 so that the quantum comes into line with his increased income over those years. He seeks a determination of the equalization payment that he is to receive by order dated October 25, 2005. He seeks to recover costs previously ordered against the respondent on September 21, 2006, and enforcement of the provisions of an order requiring the respondent to provide him with signed releases. Finally, he seeks to terminate the order requiring him to designate the respondent as the beneficiary of a policy of life insurance in the amount of $200,000.
[17] The respondent also seeks a retroactive adjustment to child support based on increases in the applicant’s income over the years. In her response to the motion to change, Ms. Silva asks that retroactive child support be paid to 2004. By order of Graham, J. dated November 21, 2018, her response is deemed to seek an increase in child and spousal support retroactive to 2004, although her entitlement to each remains a triable issue. The respondent agrees to a termination of support for Lauren, but submits that the end date for her support should be December 31, 2015 or later. She takes the position that Dylan remains a dependent. She seeks cost-of-living increases to the spousal support on an annual basis commencing in 2006.
[18] The respondent also asks that Mr. Mugford be ordered to reimburse her for her payment of non-insured medical expenses and other s. 7 expenses going back to 2006, in proportion to his income, and similarly for post-secondary education costs for Lauren and Robyn. Finally, she seeks an order requiring the applicant to cover her and any dependent children under the health benefit plan available to him through his employment.
The History of the Orders Made
[19] On June 9, 2003 a temporary order was made on consent in the Oshawa proceeding. That order required the applicant to pay child support in the amount of $690 per month and spousal support of $1,100 per month commencing June 9, 2003, based upon his annual income of $36,500.
[20] That temporary order also required the applicant to provide the respondent with documentation regarding his efforts to find more lucrative employment, as may be requested by the respondent’s counsel from time to time. Ms. Silva argued that the above provision was an endorsement by the court that Mr. Mugford was under-employed. Such an argument cannot be sustained because the order was made on consent, and therefore no such finding was made by the court.
[21] That order further provided that “the quantum of support shall be ‘revisable’ and, if the applicant obtains new employment, a salary change shall constitute a material change in circumstances for the purpose of reviewing support.”
[22] By the time the parties were next back in court on September 8, 2003, the respondent was not yet receiving money through the support enforcement mechanism of the Family Responsibility Office. A statement of account from the Family Responsibility Office indicates that the first support payment was not sent to Ms. Silva until September 24, 2003.
[23] The next event that affected the parties’ financial circumstances was the final order of McDougall, J. dated July 21, 2004, made on consent. The relevant provisions of the final order are as follows:
The children shall not be enrolled in any extraordinary extracurricular activities whereby one party seeks contribution from the other party, without their prior consent.
Child support shall terminate for each of the children when they are no longer a child of the marriage as defined by the [f]amily and children legislation of the Province of Ontario.
On or before June 1 each year, commencing June 1, 2005 the parties shall each provide to the other a copy of their income tax return and notice of assessment together with supporting documents. The parties shall also, on request not more than twice each year provide the other with evidence of their efforts to gain, maintain, and improve their employment status or income.
Spousal support shall be reviewed:
(1) after March 30, 2007;
(2) if the Respondent remarries;
(3) if the Respondent resides in a common law relationship for a period of two years;
(4) if the Applicant retires;
(5) when either party suffers or enjoys a material change in their financial circumstances.
Upon a request for a review the parties will exchange income information and the information set out in paragraph 9 above.
2.[^1] The Applicant shall provide all medical insurance/drug/dental coverage available from his employer as a benefit for the children and the Respondent. The parties shall share in the payment of non-insured health and dental costs of the children according to their incomes.
The Applicant shall forthwith commence paying the Respondent child support in the amount of $690 per month, biweekly, commencing June 9th, 2003, in accordance with the Child Support Guidelines table amount for three children based on his $36,500.00 annual income.
The Applicant shall maintain in force his $200,000.00 life insurance policy with the Respondent as named beneficiary and shall from time to time furnish proof that it remains in force.
Commencing April 1, 2004 the Applicant shall pay spousal support of $845.00 per month. The Order of June 9, 2003 is hereby amended accordingly.
The issue of equalization of net family property shall be resolved by motion for judgment. On a date to be fixed by the Trial Coordinator in Oshawa. Both parties shall provide all affidavits in support of this motion and shall serve and file all material at least 10 days prior to the scheduled date for the motion. [emphasis added]
Any and all arrears of child and spousal support shall be deducted from the equalization payment owed by the Respondent to the Applicant. When this payment is made by the Respondent to the Applicant, the Respondent shall transfer his interest in the matrimonial home to her. The Respondent shall have possession of the home in the interim. The Respondent shall prepare, register and pay for this transfer.
[24] On October 25, 2005 the parties appeared at an exit pretrial to deal with the property issues pursuant to paragraph 18 of the final order. On that date they entered into final minutes of settlement, which was an attempt to resolve all remaining issues. At paragraph 1, the order of October 25, 2005 provides that the parties’ net family properties would be equalized as follows:
(a) Within 30 days the Respondent shall pay to the Applicant the sum of $45,500.00 less any and all arrears of child and spousal support that have accrued between the parties up to October 1, 2005. This sum shall be payable to [Applicant’s counsel], in trust.
(b) Within 5 days [herein] the Respondent shall provide an up-to-date statement of arrears from the Family Responsibility Office. Counsel will agree with the arrears owing in advance of the payment set out above.
(c) The Applicant shall transfer his interest in the matrimonial home to the Respondent. The Respondent shall pay all costs for this transfer. The Applicant shall sign any and all documents to effect the said transfer.
(d) The Applicant shall transfer his interest in the Pontiac Montana minivan to the Respondent as is and shall execute any and all documents provided to effect the said transfer in a timely fashion.
(e) The Respondent shall deliver to the Applicant full releases from the Respondent’s parents and Ms. Maria Silva for any and all indebtedness incurred by the Applicant alone or with the Respondent. The Releases shall be prepared by the Applicant’s counsel.
(f) Except as set out herein, each party shall retain all assets and liabilities currently in their name or possession free from any claim by the other. There are no other contents to be exchanged.
[25] The parties entered into another consent order on March 23, 2006 in the Oshawa proceeding, which further detailed the mechanics of the transfer of the matrimonial home and the determination of the equalization payment. At paragraph 5 of their consent they agreed:
Counsel for the parties shall meet on March 30/06 to finalize and exchange documentation concerning child support, arrears, equalization and any other related matters. The date may be changed if Mr. Goddard is called to his long motion during the trial sittings.
[26] On September 21, 2006, Salmers, J. heard what appears from his endorsement to have been three motions. It is not clear from the record exactly what relief was being sought by each of the parties, but I infer from all of the evidence that at least two of the motions were contempt motions. Ms. Silva was found to be in contempt of various orders relating to access to the children and the hiring of a parenting coordinator. Ms. Silva was ordered to pay Mr. Mugford’s costs of all the motions, fixed at $1,500 “payable only after applicant has paid all child support and there are no child support arrears”.
[27] By January 18, 2007 the parties had yet to work out final numbers for the equalization. By that time the respondent had paid the applicant $20,000 and the home had been transferred into her name. However, they had not agreed on the retroactive adjustment of child and spousal support, and therefore the balance of the equalization payment owing had not been settled. The endorsement from that date is helpful, as it sets out that:
(a) the applicant[^2] had not prepared his income tax returns since 2003 and had not filed since that date;
(b) the parties agreed that the arrears of child and spousal support up to October 1, 2005 were $12,000 and accordingly, taking into account the wife’s $20,000 payment, she owed $13,500 and interest as of January 18, 2007;
(c) the applicant acknowledged that the child support should be adjusted retroactive to January 1, 2005;
(d) the respondent intended to bring a motion to change child support retroactive to January 1, 2005;
(e) the parties agreed that the amount owing by the respondent to the applicant regarding equalization could be offset by “calculated retroactive readjustment for child support”;
(f) the parties agreed to attend mediation to attempt to settle ongoing and retroactive child support to January 1, 2005, ongoing spousal support, payment of the equalization after the retroactive child support was factored and s. 7 expenses; and,
(g) both parties agreed to send the other their income tax returns and any notice of assessment for 2004, 2005 and 2006 by February 28, 2007.
[28] It is of particular significance in this proceeding, as it was in the Oshawa proceeding, that Mr. Mugford did not prepare his income tax return for 2004 and provide it to Ms. Silva by June 1, 2005 as required by the final order, nor did he do so on a timely basis in several subsequent years, as will be detailed below. The impact of this oversight cannot be overstated; it had a domino effect that played a significant part in leading the parties to where they are today.
[29] Mr. Mugford acknowledges that he failed to file a return for 2003 and 2004 on a timely basis, and I accept his evidence that he genuinely regrets that neglect. But if there was ever a key moment in the history of the parties’ litigation it was the passage of June 1, 2005 without Mr. Mugford providing his tax return. Mr. Mugford had gone from earning a high income in the range of $90,000 in the few years before the parties’ separation, then had taken a new job in June, 2003, at a salary of $36,500, just days before the first temporary order. Ms. Silva was highly suspicious of the reasons for this drop in income; as the terms of the temporary order of June 3, 2003 show, she believed him to be capable of finding more lucrative employment. I find that the provision in the final order requiring the exchange of income tax returns and notices of assessment ensured, for her, that there would be a review of child support, just as it furthered Mr. Mugford’s objective of monitoring Ms. Silva’s employment status.
[30] Ms. Silva has always believed that there has been an underpayment of child support based on income. She has always believed that she needed proof of income, as ordered, to be capable of determining the amount that she ultimately owes Mr. Mugford for his equalization payment and the proportionate sharing of medical expenses, and that his income back to as far as 2004 was needed in order to fairly determine those amounts. And she was correct. His accurate income figures were the kingpin that would have solidified all of the outstanding financial issues, and the absence of their proof no doubt contributed to the toxic relationship of the parties and their poor parenting dynamic. This is not to ignore that the evidence and, not insignificantly, the finding of contempt, bears out that Ms. Silva shares in the responsibility for that state of affairs.
[31] Further, without filing, Mr. Mugford’s refund was never available in the relevant years to satisfy his support obligations. The evidence is that the arrears grew steadily after the first temporary order and regularly stood between $10,000 to over $13,000 between July, 2004 and May, 2008. The arrears began steadily declining thereafter until finally brought to a zero balance on March 24, 2009, primarily as a result of a large income tax refund owed to Mr. Mugford.
[32] The primary issues in this litigation revolve around this income disclosure and its timing, and accordingly it is necessary to scrutinize this disclosure since the time of the final order.
Disclosure of Income
[33] Mr. Mugford’s evidence regarding when he actually complied with paragraph 9 of the final order is accepted.
[34] There is no proof as to when Mr. Mugford provided a copy of his notice of assessment for 2003 to Ms. Silva. However, I find that that has never been a relevant issue, given the final order that was agreed to on consent. If Ms. Silva had any reservations about the amount of Mr. Mugford’s earnings in 2003 that might impact on the amount of child or spousal support that had been paid from the date of the temporary order, the time to address that was when the final order was made on consent.
[35] Mr. Mugford gave evidence that he provided his T4 statement for 2004 to Ms. Silva through his former counsel. This evidence is corroborated by correspondence dated November 21, 2005 from his former counsel to Ms. Silva’s former counsel, in which his T4 for 2004 is referenced as being enclosed. The letter states “[m]y client has not yet filed his income tax, however, he has no income from any other source”. That letter proposed a retroactive amendment to June 1, 2005 based on the information disclosed in Mr. Mugford’s 2004 T4.
[36] Provision of the T4 statements is not compliance with the final order. I find that it was not unreasonable in the circumstances for Ms. Silva to insist on receiving, at a minimum, a copy of Mr. Mugford’s income tax return before proceeding. I reach this conclusion because not only did child support hinge on income, but so did spousal support, proportionate sharing of uninsured health and medical costs, and the execution of paragraph 19 of the final order concerning the equalization payment. But it is noted that Mr. Mugford did attempt to negotiate a higher amount of child support.
[37] The T4s for 2005 to 2008 were also provided to Ms. Silva directly or through counsel, but again, this is moot. The T4s alone were not enough proof given all that hinged upon proof of income, and Ms. Silva had the right to know whether Mr. Mugford had income from more than one source.
[38] Mr. Mugford’s evidence is that he filed his 2003 income tax return in 2004, but that H & R Block had not correctly done the deductions for spousal support. This problem occurred in all of his tax returns up until 2006. For the 2004 and 2005 taxation years, Mr. Mugford delayed in originally filing and also delayed in having his returns reassessed once the error was discovered.
[39] In evidence is a notice of contempt motion signed on March 20, 2006 by Ms. Silva’s former counsel in the Oshawa proceeding. The motion seeks to have the applicant found in contempt of paragraph 9 of the final order. As previously indicated, this may or may not have been one of the motions referred to in the endorsement of Salmers, J. dated September 21, 2006. I infer, however, that Ms. Silva did not have Mr. Mugford’s income tax return or notice of assessment for 2004 by the time of her motion, because with her limited financial resources she would not have spent money on legal fees had she been in possession of the documents.
[40] It is not at all clear on the evidence when Mr. Mugford first filed his taxes for 2004, 2005 and 2006, but the evidence does establish that they were not provided to Ms. Silva until 2007. The endorsement of Hatton J. from January 18, 2007 certainly suggests that they were not available as of that date. However, Mr. Mugford appears to have complied with her deadline, as confirmed by a letter written to Ms. Silva on April 18, 2007. That letter also notes that Ms. Silva had not reciprocated by submitting her income tax returns to him.
[41] Mr. Mugford testified that he also delayed in getting his returns done for the 2007 taxation year. His evidence was that historic tax information was lost as a result of his relocation to a new residence in 2007. A Form 13A: Direction to Canada Revenue Agency filed in evidence shows that he signed such form on September 14, 2007, seeking copies of income and deduction printouts showing his income as assessed or reassessed for 2004, 2005 and 2006.
[42] His evidence is that he was reassessed in 2009 for the tax years 2003 to 2006.
[43] What is clear is that, by the time Ms. Silva filed her response to the motion to change in 2009, she had copies of Mr. Mugford’s income tax returns and/or notices of reassessment for the taxation years 2004 to 2008. I say this because she includes a handwritten history of income for Mr. Mugford in her response, which accurately lists his line 150 income and the amount of the refunds owed to him in those tax years. She could not have accurate knowledge of the amount of the refunds without one or the other of those source documents.
[44] In summary, where Mr. Mugford is concerned, there is no evidence that true compliance with the final order occurred until September, 2009 for the years 2004 to 2007 inclusive. Then, there was further delay in providing 2008 to 2010, which were provided in a settlement conference brief in 2011. Notices of assessment for the years 2011 to 2013 inclusive were mailed to Ms. Silva in a timely way. Notices of assessment for 2014 to 2016 inclusive were not provided until 2017. Both the 2017 and 2018 notices of assessment were provided in a timely way.
[45] As for Ms. Silva, there is very little evidence that she complied with the income disclosure terms of the final order. She provided a letter dated May 22, 2012 in which she averts to her 2011 Notice of Assessment being enclosed. Beyond that, the January 18, 2007 endorsement of Hatton, J. required both parties to send to the other their income tax returns and notices of assessment for 2004-2006 by February 28, 2007. I infer from this that Ms. Silva had not done so before that conference. And I infer from Mr. Mugford’s letter of April 18, 2007 that she had not met the deadline set by the court.
Income and Employment
Ms. Silva’s Employment History
[46] Prior to marriage, Ms. Silva attended vocational school to become a hairdresser. Mr. Mugford gave evidence, not disputed by Ms. Silva, that before marriage she held a job as a hairstylist and worked for a real estate agent.
[47] Mr. Mugford gave evidence that during the marriage Ms. Silva continued to occasionally perform hair cutting and styling services for family, friends and neighbours, both at the matrimonial home and at her mother’s house in Toronto. There was no evidence provided about how frequently she performed the services or how much money she earned. It is Mr. Mugford’s evidence that she did not report the cash income earned from doing hair services while they were married.
[48] Mr. Mugford believes that Ms. Silva has continued to receive cash income as a hairstylist since their separation up until the present date. He admitted that he has no specific proof that she has performed hairdressing services since moving to her Woodbridge home. I find as a fact that given the various physical problems Ms. Silva has had since the early 2000s, as will be elaborated upon, it is not likely that she has been capable of working as a hairstylist since the parties separated.
[49] Beyond that, Ms. Silva has no job history, as she was the homemaker during the marriage. She has not worked outside of the home since 1992. She has not looked for work since separation, which she explains is as a result of health problems.
[50] The final order contemplated that Ms. Silva would be looking for employment. Paragraph 9 of the final order cannot be interpreted any other way. I find that there is no evidence that she provided any proof of a job search to Mr. Mugford, although evidence exists that several requests were made for such proof in 2006 and 2007. Mr. Mugford testified that he never received a response to those inquiries. The earliest evidence of her employment status is a brief note from Ms. Silva’s family doctor dated February, 2011, which states that Ms. Silva is unable to seek employment due to severe headaches caused by Arnold-Chiari malformation.
Mr. Mugford’s Employment History
[51] Mr. Mugford graduated in the spring of 1988 with a diploma in computer engineering technology. He denied that Ms. Silva paid any portion of his education costs, which he said were paid by his parents. He conceded that it was possible that she paid for some of his books and a computer, and agreed that she was making an investment in their future.
[52] After graduating Mr. Mugford obtained a job immediately, doing software programming. His initial income was in the low $30,000 range. The job ended within two years because the company was not successful.
[53] His next job lasted 12 to 13 years. He worked for a company called Digital Service Controls, which developed a software program for alarm systems. This job changed the trajectory of his career, as he ended up managing the computer programming department as it grew. As a result of managing the projects and employees, his programming skills were not kept up to date and quickly became obsolete. His testimony was that he could no longer perform the programming that was being done by the employees that he was managing.
[54] Digital Service Controls was bought out and six months later Mr. Mugford was among 30 staff members who were laid off. He received a severance payment. Seven months of unemployment followed.
[55] Mr. Mugford next obtained a job with a securities brokerage. He was let go from that position toward the end of 2002. His evidence is that the job was a bad fit for him. Another seven months of unemployment followed. During that time, he took a three-month long course at Durham College in Project Management, which was in line with the experience that he had at Digital Service Controls.
[56] Mr. Mugford then accepted a position with Frisco Bay on June 6, 2003, three days before the first temporary order in the Oshawa proceeding. The position was administrative/project coordinator, at an annual base salary of $36,500. He was also eligible to participate in a company profit sharing program with variable compensation calculated on company revenue. Health benefits began three months after his start date of June 11, 2003. I accept Mr. Mugford’s uncontested evidence that the final order was based on his income of $36,500 because he had not received a raise since being hired in June, 2003.
[57] Mr. Mugford’s evidence is that he later became a project manager at Frisco Bay, at which time he received a car allowance. This occurred sometime between the final order in July, 2004 and when he swore a financial statement dated July 28, 2005. Frisco Bay was eventually bought out by Stanley. Mr. Mugford remained with the company until he was laid off due to downsizing in September, 2016. However, he continued to receive a salary from Stanley until January, 2017, after which he received a severance of approximately $38,000.
[58] As a result of the severance payment, there was no loss of income between September, 2016 and January, 2017, when Mr. Mugford secured his current position at Nabco. He is now in a sales position, selling commercial and industrial doors. His evidence is that he receives a base salary of $65,000 plus commission.
[59] In her Response, Ms. Silva requests that, effective September 1, 2009, income be imputed to Mr. Mugford such that child support going forward from that date be based on an annual income of $91,000 (this is not to ignore that she is seeking a retroactive adjustment of child and spousal support to 2004). She asks for an order that income be imputed due to Mr. Mugford remaining intentionally underemployed. Her rational for this request is that Mr. Mugford has a history of income higher than his current income. She attached to her Response Mr. Mugford’s notice of assessment for 2001 which shows total income of $91,023.
[60] As the party asserting that the opposing party is deliberately underemployed, Ms. Silva bears the burden of proving that allegation. I find that the evidence does not satisfy that burden. At the time that Mr. Mugford was earning over $91,000, he was in a supervisory position at Digital Service Controls and was receiving bonuses and overtime pay. I accept his unchallenged evidence that he was no longer engaged in software programming, and that his formal education in that respect was obsolete. When he found himself unemployed, he obtained additional education in order to bolster his employment prospects. Ms. Silva led no evidence to show that jobs have been available to Mr. Mugford over the years, for which he would be qualified by reason of training, education or experience, but which he refused to accept.
[61] Mr. Mugford denied that he has ever been deliberately underemployed, and I find that the evidence does not allow for a different conclusion. He has been flexible in response to the demands of the job market, which certainly in the software development field has seen enormous change over the last 21 years since his graduation from college. It has taken Mr. Mugford years to reach, and now surpass, his 2001 income, but I find as a fact that he has always applied himself to the goal of having employment and has never been deliberately underemployed.
Arrears
[62] I also accept Mr. Mugford’s testimony with respect to the accrual of arrears. He first fell into arrears immediately after the temporary order of June 9, 2003. The support order was more than 50% of his salary and therefore could not be fully paid each month. Furthermore, systemic delays in the Family Responsibility Office prevented quick enforcement after that order was made; once Mr. Mugford realized that the garnishment was not occurring he contacted the Family Responsibility Office to facilitate that process.
[63] However, as I have indicated, there was some delay in filing tax returns, and errors made in the initial filing for some years. In the result, refunds that should have been available to satisfy arrears were not available in a timely way.
[64] Also, Mr. Mugford explained that he ran into difficulties with consumer debt in the years after separation. At some point he made a consumer proposal to retire approximately $30,000 in debt. As a result, he was unable to get a loan to satisfy the arrears. He operated under a strict budget and paid off the debt in about three years.
[65] Mr. Mugford also testified that he has been in arrears two times since obtaining his latest job at Nabco. There was, as usual, the initial delay between his employer and the Family Responsibility Office to effect the support deduction, during which time arrears built up. Then Nabco changed the company that did its payroll, and Mr. Mugford explained that the support was being deducted from his pay but not remitted to the Family Responsibility Office. He was unaware of the problem until contacted by the Family Responsibility Office; he then ensured that the human resource department sent the lump sum owing.
[66] Neither party presented evidence of whether there were any arrears owing as of the date of trial. The most recent Schedule A from the Family Responsibility Office that was provided to the court ended in June, 2018. It confirms that after the arrears were brought to zero in March, 2009, a small monthly balance – generally less than $1,000 – remained until 2013. At that point, other than the problems that Mr. Mugford experienced with the support deductions through Nabco, his support began to be paid in full on a regular basis. As can be seen below, this generally follows the trend in his income.
[67] It is important to note that despite his position and the length of delay in this case, Mr. Mugford has continued to pay the full amount of child and spousal support required by the final order.
The Parties’ Income
[68] Based upon the tax returns, tax return summaries, notices of assessment or reassessment filed in evidence I find as a fact that the parties’ respective line 150 incomes from 2003 to 2019 were as follows:
| Year | Mr. Mugford’s Income | Ms. Silva’s Income | % of Total |
|---|---|---|---|
| 2003 | $25,902 | unknown | |
| 2004 | $46,068 | unknown | |
| 2005 | $51,789 | unknown | |
| 2006 | $52,361 | $9,613 | 84/16 |
| 2007 | $85,299 (T4 $55,350) | $10,140 | 85/15 |
| 2008 | $65,524 | $10,140 | 87/13 |
| 2009 | $65,308 | $11,122 | 85/15 |
| 2010 | $67,461 | $10,141 | 87/13 |
| 2011 | $68,903 | $10,140 | 87/13 |
| 2012 | $70,453 | $10,140 | 87/13 |
| 2013 | $77,599 | $10,140 | 88/12 |
| 2014 | $90,568 | $10,140 | 90/10 |
| 2015 | $91,562 | $10,140 | 90/10 |
| 2016 | $95,995 | $10,460 | 90/10 |
| 2017 | $127,332 | $10,140 | 93/7 |
| 2018 | $101,031 | $10,140 | 91/9 |
[69] Based on the statement of earnings and deductions attached to his financial statement sworn June 7, 2019 for the pay period ending May 4, 2019, which shows total earnings of $49,016.75 over the first 18 weeks of this year, Mr. Mugford is projected to earn more in 2019 than in 2018, but only if commissions remain at their current level.
[70] Mr. Mugford’s income in 2007 was an anomaly. In that year he cashed RRSPs. His income from employment was $55,351, and the balance is comprised of RRSP income. Similarly, in 2017 he earned higher than normal income because of receiving a severance payment from Stanley in that year.
[71] When considering Mr. Mugford’s pattern of income overall, I find that including the RRSP proceeds in his income for 2007 would not be the fairest determination of his income for support purposes. Mr. Mugford’s evidence was that he collapsed his RRSPs in order to pay consumer debt. As earlier indicated, his debt drove him to make a consumer proposal, and the RRSP money was needed for that purpose. Excluding that additional income is necessary in order to arrive at an amount that is fair and reasonable in light of that non-recurring amount and the pattern of his income in the three years preceding and following 2007: Ludmer v Ludmer, 2014 ONCA 827 (Ont. C.A.).
Retroactive Child Support Adjustment
[72] Some time was spent during the trial over the fact that, on its face, Mr. Mugford’s motion to change states that he is seeking a termination of child support. I find as a fact that this was inadvertent. It is clear from a review of the change information form that at the time the motion was filed Mr. Mugford was only seeking to terminate spousal support. In two areas within that document Mr. Mugford noted that “when the Table child support amount is adjusted, the Applicant will not be able to pay spousal support to the Respondent”.
[73] Although Ms. Silva could not remember having seen the change information form, the affidavit of service in the continuing record indicates that the process server provided the change information form to Ms. Silva personally on September 25, 2009, at the same time as the motion to change and Mr. Mugford’s financial statement.
[74] I find as a fact that when Mr. Mugford initiated this motion to change in 2009, he knew that such action would mean that his child support payments would increase.
[75] The analysis in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 [“D.B.S.”] applies. I am aware that in first deciding whether retroactive support should be ordered, all applicable factors should be considered and that this court must take a holistic approach by considering all of the facts of this particular case: D.B.S., at para. 99.
[76] I find that is a case in which a retroactive award of child support should appropriately be made for the following reasons:
(a) Ms. Silva has several valid reasons why increased child support was not sought earlier: the legal fees incurred up to the final order and beyond; the non-production of proper proof of income despite requests; the fact that the issue of equalization payment remained unsettled – it is hard to fault her for not beginning a new proceeding when the former one had not been brought to a close; the many years of arrears; and being the parent tasked with the vast majority of the day to day child rearing when, as I will explain later, she was also coping with several illnesses and health problems;
(b) Mr. Mugford has known of Ms. Silva’s demands for proper proof of income throughout, and delayed in much of that disclosure. I do recognize, however, that Mr. Mugford did not attempt to hide any income, and that he provided his T4 statements to Ms. Silva or her counsel in a timely manner. I also accept Mr. Mugford’s evidence that he has, in adulthood, been diagnosed with ADHD and that this condition has at times caused him to avoid and procrastinate. The direction of the Court in D.B.S. is clear, though; blameworthy conduct is anything that privileges the payor parent’s own interests over his children’s right to an appropriate amount of support: (para. 106). In this case, Mr. Mugford was aware that he was not paying the appropriate Guideline support as far back as 2005. When he was not successful in negotiating that amount, he still waited until 2009 to commence this motion to change. However, I again take into account how unpalatable it would be for him to do so when the equalization question had not yet been resolved;
(c) As a result of findings made further in these Reasons, none of the children are now dependents, so this retroactive award will be made when none of them are still eligible for prospective support. However, the younger two continue to live at home and the eldest lives with a relative. There is no evidence that any of the children are currently living a high standard of living. The uncontested evidence of Ms. Silva is that there were many activities that all three children were unable to participate in, not only because the consent of both parents was required, but because of cost. I accept that they lived a diminished standard of living in their childhoods compared to what they would have experienced had support been paid at the appropriate level when they needed it most. The unfulfilled obligation of the support adjustment contemplated in the final order should be enforced for their benefit; and,
(d) Hardship in this case is tempered by the fact that a retroactive child support award can be offset in part against the equalization payment owed to Mr. Mugford. I am aware of the court’s obligation to craft a retroactive award that attempts to minimize hardship to Mr. Mugford: D.B.S., at para. 116.
[77] The general rule is that the award should be retroactive to the date of effective notice: D.B.S., at para. 118. Given Ms. Silva’s requests to have proof of income as far back as 2005, Mr. Mugford’s acknowledgment as far back as 2005 that support should be adjusted in accordance with his increased income, as well as the clear contemplation by the parties of an annual adjustment as reflected in the final order, together with the delayed disclosure by Mr. Mugford of his income tax returns and notices of assessment, and I find that it is fair in the circumstances of this case to ensure that child support is adjusted retroactively to January 1, 2004. Even though there is a period prior to 2009 in which there is no evidence of ongoing requests by Ms. Silva for income disclosure for the purpose of adjusting child support, this does not affect the result. The evidence shows that Mr. Mugford was aware of the need for an increase, and the appropriate disclosure was required by the final order even in the absence of any request.
[78] Awarding retroactive support back to the date of separation as requested by Ms. Silva in her closing submissions, or to the date of the first order in June, 2003, will not occur because this could have been raised and dealt with at the time of the final order in July, 2004, and accordingly, such relief is res judicata.
Quantum of the Retroactive Award of Child Support
[79] Applying the Guidelines that were in force at the relevant times, retroactively, would result in a total child support award for the period of January 1, 2004 to August 31, 2019 of $102,357. However, I find that this is a case in which there are reasons to reduce that quantum.
[80] D.B.S. directs that courts ordering a retroactive award pursuant to the Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)) must still ensure that the quantum of the award fits the circumstances: (para. 128). One of the ways that this may be accomplished is to exclude any period in which there is unreasonable delay after effective notice was given: (para. 130).
[81] In this case, I find that both parties should share equally the responsibility for the delay between 2009, when the motion to change was commenced, and the date of the hearing. It is impossible to completely unravel the various actions of each party in those intervening years, but a few points stand out to lead me to the finding of shared responsibility for the delay.
[82] First, the income disclosure had been satisfied by Mr. Mugford by 2009, and the arrears had been eliminated. The motion to change, and the issue of the equalization payment, stood poised to be settled at that point.
[83] Second, although the parties always had a dispute about entitlement to payment of s. 7 expenses, the correspondence sent by Mr. Mugford before and after 2009 displays an openness to address and resolve all issues.
[84] Third, when the file was to be administratively dismissed in 2010, it was Mr. Mugford who moved to set it aside. I find that this demonstrates his commitment to having the issues resolved, even though he was aware that it would result in increased financial burden to him. It is an acknowledgment by him that the correct amount of child support was due, and proof that he was not intending to avoid his obligation.
[85] Fourth, when the file lay dormant between the 2011 settlement conference and 2017, Mr. Mugford explained that he chose not to proceed because he was getting negative feedback from his children. I find as a fact that the children were exposed to too much of this litigation over the years from Ms. Silva, and that Mr. Mugford was sincere in attempting to “park” the litigation to try to preserve his relationship with them. This estrangement began as early as 2005; a letter written by Mr. Mugford to Ms. Silva’s former counsel in May, 2006 states that he had not had contact with Lauren since the previous October. During this trial the court heard evidence that on the only trip that Mr. Mugford took with the children, Ms. Silva decided to go to the same country, and ended up at the same resort one evening. I find as a fact that this was not a coincidence, and an example of how Ms. Silva’s interference in Mr. Mugford’s relationship with his children over the years was deliberate.
[86] Fifth, it was Mr. Mugford who revived the proceeding in 2017 through scheduling a case conference.
[87] Sixth, there is insufficient evidence for me to conclude that timely financial disclosure was made by Ms. Silva, and in fact evidence that she was non-compliant with the final order by not producing proof of income, attempts to find employment or reasons for not doing so, and by not providing signed releases as ordered;
[88] Last, from 2009 to 2019 there is no evidence that Ms. Silva took any initiative to move her claims forward, although she did correspond with counsel, complied with financial disclosure and submitted briefs as required. Even recognizing that she did not have counsel, a decade is an unreasonably long time to allow this matter to languish, particularly given she was regularly receiving Mr. Mugford’s financial information throughout those years.
[89] During the period January, 2009 to August, 2019, retroactive child support totals $79,865. This sum will be reduced by 50% to $39,932.50. When the pre-2009 period of retroactivity is added, the total retroactive child support award is $62,424.50.
Termination of Child Support
[90] The final order states that child support shall terminate for each of the children when they are no longer a child of the marriage as defined in the provincial legislation. However, the Family Law Act, R.S.O. 1990, c.F.3, does not link the definition of a dependent to marriage. Nonetheless, I infer that the parties sought to use the definition of a dependent set out in the Family Law Act, which, pursuant to s. 31, would oblige each of the parties to support a child who is a minor, or enrolled in a full-time program of education, or unable to withdraw from the charge of his or her parents due to illness, disability or other cause.
[91] Mr. Mugford’s position is that his child support obligation for Lauren should terminate effective April 30, 2015, coinciding with her graduation following her fifth year of post-secondary education, and that it should terminate for Dylan effective August 31, 2017, following his graduation from grade 12 and decision not to return to school or obtain employment. With respect to Robyn, who expresses a desire to go back to school to obtain a teaching certificate, he proposes that support terminate effective April 30, 2019, coinciding with her completing a four-year undergraduate degree, to be reviewed when and if she resumes post-secondary education.
[92] The evidence is that Lauren spent her first year at the University of Western Ontario, where she lived in residence. She returned to her mother’s house at the end of April, 2011. She spent the next three years at York University, during which time she lived at her mother’s home. She attended York University between September, 2011 and April, 2014, graduating with a four-year undergraduate degree. Her notice of assessment for 2014 shows total income of $1,110. She then took a one-year public relations program at Seneca and graduated with this final diploma in April, 2015. After graduation she resided with her mother while completing an internship, which lasted from July or August to December, 2015. No evidence was provided as to whether this was a paid internship. No evidence has been filed of her income after 2014. After completing her internship, she left her mother’s home and now resides with her grandmother. The parties agree that she is now self-supporting.
[93] Given the lack of evidence about Lauren’s 2015 income from Ms. Silva, who bears the onus of proving that Lauren remained a dependent during her internship, I find that it is fair for support to terminate for Lauren as of August 31, 2015.
[94] Robyn lived with her mother throughout her post-secondary education at York University. She completed her program in the spring of 2019 and graduated during the course of this trial. The parties agree that it has always been Robyn’s plan to attend teacher’s college. The evidence is that she has not yet been accepted, although Ms. Silva testified that she has two applications outstanding. Since graduation, she has not obtained employment. According to Ms. Silva, Robyn’s intention is to obtain volunteer experience to bolster her application, but there is no evidence that she has been successful in that endeavour since completing her classes and exams earlier this spring.
[95] Given the lack of certainty about Robyn’s future educational plans, and considering that any employment that she might have obtained during the summer of 2019 would not likely to have put her in a position of economic independence, I find that it is fair for support to terminate for Robyn as of August 31, 2019.
[96] The evidence is that Dylan entered the workforce after graduating from high school in June, 2017. He began factory employment in August or September, 2017. His T4 statements for 2017 indicate that he earned a total of $10,364 in that four or five month period. He also spent some time working with an arborist, although it is not clear whether he was paid.
[97] It was Mr. Mugford’s evidence that Dylan resided with him for 11 months between February 2017 and December, 2017. Thereafter he returned to live with his mother and remains there now. Ms. Silva disputes that Dylan lived with his father for 11 months, but conceded that he lived primarily with his father from August 2017 to December 2017.
[98] The evidence surrounding Dylan’s living situation between February and December, 2017 is conflicting. Neither party is trying to mislead; each just has his or her own interpretation of Dylan’s behaviour at the time. Weighing the totality of the evidence, I find as a fact that it is more likely than not that Dylan had his primary accommodation at his father’s home during that period, but that there was an open door policy at his mother’s home during that same time. While it is probably fair to say that Ms. Silva’s fridge, shower and other amenities were likely accessed by Dylan – and given the circumstances he likely kept his father in the dark about his day to day comings and goings – overall I find that it is fair to conclude that support should not be paid by Mr. Mugford for Dylan as of February, 2017.
[99] Dylan has ulcerative colitis. He receives drug infusions every six weeks. This medication is partly covered by the drug plan that is available through Mr. Mugford’s employer’s medical benefit coverage and a portion is paid “through the government”, presumably through the Ontario Drug Benefit program, as there is no evidence that Dylan receives income from any government-sponsored support plan such as Ontario Works or Ontario Disability Support Plan.
[100] There is evidence that counselling has been arranged for Dylan; Ms. Silva testified that he grapples with emotional issues as well. There is no objective evidence of whether his emotional issues persist, or whether they are severe enough to currently limit Dylan’s ability to work.
[101] The only objective evidence of Dylan’s health status is contained in two letters from Dr. Brian Stotland, a gastroenterologist, the first dated November 8, 2017 and the second dated July 10, 2018. The contents of the earlier letter confirms Dylan’s history of ulcerative colitis. Dr. Stotland goes on to state that, at that time, he was not entirely certain whether Dylan was in a complete endoscopic remission. He noted that Dylan had recent nausea, which the physician considered may also be attributable to frequent marijuana use and advised against. While investigations were to continue at that time, the doctor noted that, overall, Dylan had been doing fairly well. The evidence establishes that Dylan was well enough to travel on vacation with his father to Cuba in 2017. The second letter was prepared by Dr. Stotland for employment purposes. The letter notes that Dylan has a history of ulcerative colitis, and as such there are times when he may need increased access to a washroom. This letter is instructive, as it does not provide an opinion that the frequency of Dylan’s need to access a washroom would render him unemployable.
[102] Dylan has not worked at all in 2018 or 2019. There is no objective medical evidence of his inability to do so.
[103] Given that there is no current medical evidence from which this court could conclude that Dylan is unable to work, and given a work record showing that he was able to earn money in the fall of 2017, I must conclude that Dylan is no longer a dependent, and that he ceased to be as of August 31, 2017. However, at that time he was living with his father and, as previously determined, had been since February 2017.
[104] In these circumstances, no order can be made requiring that Mr. Mugford ensures that Dylan continue to be covered under his medical benefit plan. Nonetheless, I anticipate that Mr. Mugford will continue to do so for as long as Dylan remains eligible under the terms of the plan.
Section 7 Expenses
[105] Ms. Silva is seeking an order that Mr. Mugford pay his proportionate share of expenses incurred by her for the children as far back as 2003. Attached to her response to the motion to change is a list of activity costs and medical expenses not covered by benefits, up to 2009. After that date, she also seeks the ongoing school activity costs, medical expenses not covered by insurance, and costs relating to Lauren and Robyn’s post-secondary education.
[106] The final order is silent with respect to education and activity costs.
[107] It is Ms. Silva’s evidence that she provided the original receipts to her counsel when she was represented. She no longer has access to those receipts. She also stated that she provided receipts and statements to Mr. Mugford as they arose, or, in later years, she was aware that Lauren and Robyn gave him receipts directly.
[108] Mr. Mugford denies that he failed to pay for any requested costs, unless receipts were not produced by Ms. Silva when requested.
[109] It would be easy to dismiss these claims given the passage of time and the lack of proof, but I am persuaded that recovery of these expenses from Mr. Mugford has been a perennial problem for Ms. Silva. I make this finding for several reasons. The record contains several letters in which requests were made by Ms. Silva for the payment of these expenses, expressing her frustration that payment has been ignored. Also, given the support arrears that built up, together with Mr. Mugford’s consumer proposal and his evidence that he has had to live a frugal lifestyle in order to satisfy the terms of that proposal, I conclude that he did have difficulty meeting these types of requests for payment. Finally, there is Mr. Mugford’s evidence that he and the respondent long ago agreed that they would each pay 50% of the uninsured portion of medical and dental expenses, despite the terms of the final order. He argues that Ms. Silva’s conduct in accepting one-half of these expenses is evidence of that agreement. He denies that she ever resisted that arrangement once it was agreed upon.
[110] I cannot accept this assertion. Ms. Silva was without recourse; as she testified, she took what she could receive from Mr. Mugford, but I accept that it was under duress. Like him, she did not have the funds to pay lawyers to continue to try to recover the amounts owed to her. There is nothing in writing establishing an agreement by her to accept his proposal that she pay 50% of such costs. Nor was such an arrangement warranted, given the disparity in their incomes.
[111] I find that Mr. Mugford’s outlook shows that he was prepared to resist paying what he was legally required to pay where these “add-on” expenses are concerned, and so where there is a conflict in the evidence about whether the children’s expenses were paid by him, I accept Ms. Silva’s evidence in preference to his.
[112] However, in trying to reach a decision that is fair to both parties, I must take into account that Ms. Silva has provided very few receipts, and that some of the expenses claimed do not qualify as extraordinary expenses for extracurricular activities. I also take judicial notice of the fact that there would have been ongoing costs required to meet the annual needs associated with raising three children, and a myriad of costs that arose from day to day. None of the expenses listed by Ms. Silva, in any category, are unusual or excessive. But I must also consider that Ms. Silva did not pay for some undetermined amount of these expenses on her own. She has had the ongoing help of her sister, as her evidence established. While it is not the responsibility of her family to assist, the fact is that they have, and Ms. Silva’s financial statement does not show a debt owing to either her sister or her mother for medical and dental expenses, or children’s activities.
[113] Dealing first with expenses related to the children’s activities and primary/secondary school costs, during the trial no evidence was given by Ms. Silva with respect to the expenses listed in Schedule B to her response for the period 2003-2005, and accordingly no relief can be given in respect of those expenses listed. Similarly, there was no evidence provided for some of the expenses listed in Schedule B for 2006-2009; no relief can be given in respect of those expenses not discussed during the trial. However, evidence was provided for expenses falling within this category for later years, which I find would fall within either of s. 7 (d) or (f) of the Guidelines. These are: Lauren’s driving lessons and self-defence class totalling $395; Lauren’s school trips for grade 7 and 8 totalling $295, Robyn and Dylan’s grad trips totalling $389.54 and $295 respectively; and enrollment and other fees payable to St. Jean de Brebeuf Catholic Highschool totalling $579. These amounts total $1,953.54.
[114] The final order is silent with respect to the sharing of post-secondary education costs. Mr. Mugford’s evidence is that he and Ms. Silva likewise agreed that they would share equally the cost of any loans incurred by the children for post-secondary education. Again, I reject that position, as there is no evidence of that agreement other than the actual payment by Ms. Silva of 50% of Lauren’s OSAP debt once all of her schooling had concluded. Ms. Silva has never been in a financial position to make that agreement, particularly given the accumulation of arrears of the periodic support throughout the years. I accept her evidence that she made the payment because she knew that she would have to do so before Mr. Mugford would initiate payment toward his share.
[115] Ms. Silva’s evidence is that she borrowed $14,000 to pay off one-half of Lauren’s total student loans, which I accept. Exhibit 12 is a cheque payable to Ms. Silva in the amount of $13,500 from her mother dated June 15, 2015, which indicates that it is in regard to a loan for Lauren’s education.
[116] Mr. Mugford’s evidence is that he made monthly payments of $180 for the amount of the loan outstanding after Ms. Silva had contributed her share, and then paid off the balance of Lauren’s student loan from his savings in 2019, which at the time was approximately $7,000.
[117] As I understand the evidence, Lauren’s OSAP loan is now paid in full. The actual amount of the loan outstanding was $27,861. Given that Ms. Silva paid $14,000, I infer, in the absence of evidence to the contrary, that Mr. Mugford paid $13,861.
[118] Still unresolved is an alleged payment made by Ms. Silva in 2010 for Lauren’s residence and meal plan cost at the University of Western Ontario. A statement of account in Lauren’s name from UWO indicates total residence and meal plan costs for the 2010/11 year in the amount of $9,125. This does not include tuition. Ms. Silva also filed evidence of a payment from her own account on March 3, 2011 in the amount of $3,525 for UWO housing. The student loan history for Lauren indicates that she only received $8,258 in combined loans and grants for that year. It is obvious that that was not enough to cover tuition and housing, books and incidentals. Although Ms. Silva should have gone farther to provide evidence of the tuition costs for that year, I anticipate that such costs would be substantial. Other than the payment from her mother’s account, it has not been established how Lauren funded the expenses of that year that could not be covered by OSAP, and I do not have sufficient evidence to make inferences. I am satisfied that the payment of $3,525 for housing could not have been funded by OSAP and should be shared. There are also receipts for textbooks for Lauren totalling $266.24, which should be shared by the parties.
[119] Mr. Mugford also indicated a willingness to pay for 50% of Robyn’s OSAP debt, but that total was not known at the time of trial.
[120] For both Lauren and Robyn, Mr. Mugford should pay his proportionate share of these post-secondary expenses. The parties appear to have agreed that none of their children should bear the cost of paying off their student loans. This court must honour that agreement, even though there is recognition in the case law that children should make a contribution. Further, given that these parties paid for five years of education for Lauren, the same should apply to Robyn and potentially Dylan, especially since Mr. Mugford’s income has increased in the relevant period. As I understand it, the only part of this that Mr. Mugford does not agree with is that he should bear more than 50% of these costs.
[121] Moving on to dental costs, the final order provides for non-insured dental expenses to be paid in proportion to the parties’ incomes. Lauren and Robyn both had wisdom teeth pulled, for which Ms. Silva paid a total of $2,620, and was reimbursed $2,428 by Mr. Mugford, either privately or through his benefit plan, leaving a difference of $192. Both daughters also had Invisalign braces installed in the amount of $1,500 each; Mr. Mugford paid 50%. Dylan had orthodontic work provided in the total amount of $6,060, for which Mr. Mugford paid $2,978.42, either privately or through his benefit plan, leaving a difference of $3,081.58 that must have been paid by Ms. Silva. There are dentistry invoices from 2010 and 2011 for all three children, which break out the uninsured amount, which totals $455.77. There is no evidence of contribution from Mr. Mugford toward this amount. For the same reasons previously set out, I do not accept that there was any enforceable agreement between the parties to depart from the terms of the final order with respect to paying in proportion to income.
[122] Turning now to medical costs, there are numerous medical expenses which Ms. Silva seeks to have reimbursed. Some of these are massage fees for Lauren and Robyn, and chiropractic fees for Dylan and Robyn. However, no evidence has been provided for why the services were incurred, and therefore this court has no way to assess whether they were a reasonable and necessary expense to be borne by the parties.
[123] There are numerous vision-related expenses. Ms. Silva has provided receipts totalling $4,473, but for reasons unexplained, is claiming only $4,272. There is evidence that $1,009 of this latter amount has been paid by Mr. Mugford, either directly or through application of his benefits, leaving a difference of 3,263.
[124] There is a record from Shoppers Drug Mart for Lauren during the period of time that she remained dependent showing uninsured drug costs of $144.48, and no evidence of contribution from Mr. Mugford.
[125] Mr. Mugford denies that he has ever failed to submit a medical or dental receipt provided to him by Ms. Silva, except for when she would give the receipt to him after the one-year expiry date, too late to be entitled to reimbursement under the plan. He also denies ever holding back funds paid by the insurer for services paid out-of-pocket by Ms. Silva. His evidence is that he would historically endorse the insurer’s cheque to her, and that after direct deposits were implemented, he would provide her with cash.
[126] I accept that this is true for some, but not all of the expenses being claimed by Ms. Silva. I have examined the payment summary from Sunlife that Mr. Mugford has filed in evidence. It shows the dental and medical benefits that were paid out for the children between October 24, 2011 to Oct 24, 2018. Of the $121,608.95 in claims that Mr. Mugford submitted for his children during that period, $36,056.83 was not paid by his group plan. And Mr. Mugford has not produced evidence of payment of nearly that amount. He has produced a few pages from cheque ledgers for the years 2011 to 2015. In arriving at the sums owed by Mr. Mugford, I have credited him with all of the payments shown in that ledger, except where this has not been possible. This has not been possible where his notations indicated that the payments were for a combination of services, some of which I have not allowed as reimbursable s. 7 expenses.
[127] Beyond the expenses listed above, I am not prepared to allow any further amounts claimed by Ms. Silva either due to lack of evidence or because the amount claimed was too minimal to constitute an extraordinary expense.
[128] As the chart of the parties’ historic income shows, Mr. Mugford has always had the benefit of over 80% of the parties’ incomes. Over the 13 years for which all information is available, the average percentage of his income is 88%. This is the percentage that will be used to determine the amount owed to Ms. Silva for the allowable s. 7 expenses.
| Item | Total Amount | Mr. Mugford’s proportionate share | Payment to be credited to Mr. Mugford | Total owed to Ms. Silva |
|---|---|---|---|---|
| School activities | $1,953.54 | $1,719.12 | $0 | $1,719.12 |
| Lauren’s OSAP | $27,861 | $24,517.68 | $13,861 | $10,656.68 |
| UWO housing | $3,525 | $3,102 | $0 | $3,102 |
| Lauren textbooks | $266.24 | $234.29 | $0 | $234.29 |
| Wisdom teeth | $192 | $168.96 | $0 | $168.96 |
| Invisalign braces | $3,000 | $2,640 | $1,500 | $1,140 |
| Dylan orthodontics | $6,060 | $5,332.80 | $2,978.42 | $2,354.38 |
| Dental | $455.77 | $401.08 | $0 | $401.08 |
| Vision | $3,263 | $2,871.44 | $0 | $2,971.44 |
| Prescriptions | $144.48 | $127.14 | $0 | $127.14 |
| Total | $22,875.09 |
[129] In summary, I find that Mr. Mugford is to pay to Ms. Silva his proportionate amount of these s. 7 expenses in the amount of $22,875.09.
Termination of Spousal Support
[130] Mr. Mugford’s position is that spousal support should be terminated effective December 31, 2016, after having been paid for 13 ½ years. He says that Ms. Silva has taken no steps to become economically self-sufficient over the years following their separation, and that he should not have to pay for her failure to do so. He does not agree that she has medical issues of a severity that would make her unemployable. He also takes the position that, in the calculation of any retroactive spousal support, a modest amount of income should be attributed to her, beginning in 2013, in the amount of $5,000, on an escalating scale up to $15,000 by 2016. Despite his testimony with respect to the availability of cash income for her hair styling services, Mr. Mugford would not have income imputed to Ms. Silva until 10 years post-separation, when the children would have been 13, 16 and 20 years old, respectively.
[131] With respect to any retroactive adjustment, he argues that Ms. Silva has waited too long to change the support. The final order offered a review as early as April 1, 2007, but Ms. Silva never requested such review. The first indication that he ever had that Ms. Silva wished to address the quantum of spousal support was when he received her response to the motion to change. As earlier indicated, the response as filed only sought an order increasing spousal support by the cost of living. By virtue of the order of Justice Graham dated November 21, 2018, her response is deemed to seek an increase in spousal support retroactive to 2004. It is Mr. Mugford’s position that Ms. Silva is not entitled to an increase in spousal support at all, and certainly not prior to making her claim in 2009.
[132] Mr. Mugford acknowledged that Ms. Silva had surgery on her dominant hand for a trigger finger before separation, but other than time allotted for her recovery from the surgery, his evidence was that she had no functional issues with her hands that prevented her from cutting his own hair and the children’s hair.
[133] Mr. Mugford testified that over the years, he or his counsel sent a number of letters to Ms. Silva requesting that she provide information about her efforts to obtain employment or retraining and never got a response. The terms of the final order are clear that she must provide this information, if requested.
[134] In terms of his financial resources other than income, Mr. Mugford owns no real estate. His only significant asset is his locked-in pension from Stanley, and RRSPs totalling $100,637. He had savings at the time of trial of $12,670, which was the remaining severance from Stanley and income tax refunds. He received a refund of $12,605 for 2018. He drives a 5-year-old vehicle, against which there remains a loan of over $10,000. He testified that the only vacation that he has taken since separation was with the children to Cuba in 2017 after receiving his severance payment from Stanley, and that his vacations have consisted mainly of camping at provincial parks. He has some life insurance through work, but has to pay for an additional policy to comply with the final order that requires him to maintain $200,000 in insurance. He pays for Dylan’s cell phone. Given the support obligations that he has had since separation, and the expense of legal fees for lengthy periods during those years, I accept his evidence that he does not live in relative luxury, as alleged by Ms. Silva.
[135] Ms. Mugford resides in Woodbridge. The property owned by her had an assessment value in 2016 of 800,000; very likely its fair market value is now higher. She moved to Woodbridge to be closer to her family, but testified that her expenses are higher there than they would be had she remained in Ajax. There is no evidence to support that assertion. The home is mortgage-free, but I accept that she owes her sister over $230,000 for loans that have allowed her to purchase both this home and the former matrimonial home. Ms. Silva also owes her sister for a loan used to purchase her vehicle. Ms. Silva says that she still pays for her daughters’ cell phones. It is her evidence that her mother and sister have helped her with groceries and other daily expenses over the years, which I believe to be true. Nonetheless, Ms. Mugford’s home is a considerable asset.
[136] It is Ms. Silva’s position that she has health issues that prevent her from becoming self-sufficient. Her primary difficulty arises from a what is known as an Arnold Chiari malformation, a condition which affects the brain and spinal cord. Individuals with this condition have a portion of the cerebellum (the tonsils) protrude into the spinal column, resulting in compression of the brainstem and spinal cord. The evidence filed by Ms. Silva is that this condition triggers sharp headaches, neck pain, dizziness, nausea, impaired balance and urinary incontinence, along with other symptoms that affect other systems of the body. Her testimony is that the symptoms all exist, but their presence and severity varies every day. She has issues with noise, fluorescent lighting, music, speaking on a phone for too long, following television programs, and driving at night. She gave testimony that she takes a medication for these symptoms, which interferes with her ability to concentrate. It was not contested by Mr. Mugford that this is a congenital condition, which is progressive and has no cure.
[137] During the trial it was obvious to me that Ms. Silva was, at times, experiencing problems with her focus and concentration, and that her movements were slow and laboured. There was no reason to believe that these difficulties were being feigned.
[138] While I accept that Ms. Silva has been able to represent herself during most of this proceeding, and has operated a computer and prepared all of the material for trial herself, these achievements cannot be translated into evidence of job skills or stamina, in the face of the objective medical evidence.
[139] The medical evidence establishes that Ms. Silva began to be investigated for the symptoms now known to be caused by the Arnold Chiari syndrome in 2009, as an MRI was done at North York General Hospital in that year. On the evidence provided, I find that she has established that she suffers from this condition and has for at least 10 years. And I find that it is progressing, with the evidence establishing that the prolapse of her cerebellar tonsils has moved from 5 mm to 8 mm. On the basis of this evidence and the symptoms described by her, which I accept, I find that this condition, which will not resolve or improve, but on balance is likely to deteriorate, stands as a complete impediment to her obtaining employment. Taken together with the rest of her challenging health conditions, including pain and lack of full mobility in her fingers and hands bilaterally, I find that there is no prospect of future employability.
[140] Ms. Silva also has flexor tendon sheath disease, for which she had surgery on her left hand in 2003 and on her right in 2007. As I understand her evidence, this leads to a triggering of one or more of her fingers, with difficulty grasping objects and opening and closing her hand. In 2005 she was diagnosed with chronic rotator cuff impingement tendonosis in her left shoulder. She has seen a cardiologist for irregular heartbeats. She also has hypertension.
[141] Ms. Silva provided some evidence that she applied for benefits under the Ontario Disability Support Plan in 2011 but was turned down due to being a homeowner and receiving support. She did not provide her application or other documents to show the reason for the denial.
[142] Ms. Silva has filed a medical report completed by her family doctor for the purpose of applying for CPP disability benefits, dated July 8, 2018. The physician notes on the form that Ms. Silva has diagnosis of headaches related to Arnold Chiari syndrome, cardiac arrhythmia and high blood pressure, arthralgia in her hands, specifically finger joints and urinary incontinence. The headaches were noted to be frequent, severe and can be incapacitating. Medication caused gastrointestinal symptoms. She has also provided reports from her treating neurologist and cardiologist, and from a rheumatologist with whom she consulted in 2015.
[143] The CPP disability application had not been submitted by the time of trial because Ms. Silva had an appointment scheduled with her neurologist this past July, and was waiting for the results to determine whether the condition has advanced. She has also just recently undergone extra testing for sleep apnea, the results of which were to be submitted with the application.
[144] Accordingly, although Mr. Mugford seeks to have this court impute income to Ms. Silva starting in 2013, I find as a fact that even prior to that year Ms. Silva was experiencing the symptoms that would prevent her from seeking and holding gainful employment.
[145] Mr. Mugford has been able to maintain Ms. Silva on any benefit coverage that has been available through his various employers. She is now covered under his current benefit plan, as Mr. Mugford has explained to his employer that it is required under the final order. This has been an enormous benefit to the parties given that Ms. Silva takes various prescription medication on a regular basis.
[146] So this is a case of a marriage of less than 14 years, producing 3 children who Ms. Silva has had primary care of both before the separation and after. It was unarguably a traditional marriage, with Ms. Silva never returning to the workforce after the birth of the first child. It is a case for both compensatory and needs-based support. Even before the marriage ended, Ms. Silva had developed problems with her hands that have never resolved, and which would have effectively terminated her career as a hair stylist if it had not already been paused for childrearing. Then, post-separation, Ms. Silva’s deteriorating health has been caused primarily by a condition that she was born with and which appears that she can do very little to correct. She testified that she has been told that surgery would be necessary if her condition progresses to a point where she has difficulty swallowing and was choking on food.
[147] The final order entitles the parties to a review of spousal support in several circumstances, as previously outlined. The order permits for a broad review, contemplating a variation both upward or downward, and allowing for adjustment in quantum. Particularly relevant is the provision that allows for a review when either party experienced a material change in his or her financial circumstances.
[148] I find that Ms. Silva has gone further and has established that she has experienced a material change in her circumstances since the final order, as defined in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. Had Ms. Silva known in 2004 that she would develop the symptoms that led to the diagnosis of Arnold Chiari syndrome, I find on the balance of probabilities that she would have sought indefinite spousal support at that time or otherwise addressed her health in the final order. She has been diagnosed with a health condition (the Arnold Chiari malformation) that has gone on to progress to a point where the associated symptoms prevent her from holding employment. This is not a temporary illness, but one that it appears she will have for the remainder of her life, along with the arthralgia in her finger joints. She has suffered from both conditions for over a decade. She has experienced a material change in her financial circumstances because she is unlikely to ever achieve financial self-sufficiency.
[149] Furthermore, Ms. Silva has shown a material change in Mr. Mugford’s financial circumstances, as his income has materially increased since 2004.
[150] The original claim for spousal support was sought both under the Divorce Act, the Family Law Act, and the final order is silent about which statute applies to the support order. As a divorce was sought and eventually granted, I consider that this variation is governed by s. 17 of the Divorce Act.
[151] Section 17(7) of the Divorce Act provides:
A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[152] Turning first to the issue of retroactivity, there is no doubt that the factors governing whether retroactive support should be paid as discussed in D.B.S. apply to cases in which retroactive spousal support has been claimed: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.). However, Cromwell J. articulated, at para. 208, that unlike the situation with child support, a spouse is generally not under any legal obligation to look out for the separated spouse’s legal interest because spousal support is not “automatic”. As a result, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.
[153] Many of the same facts that were relevant to retroactive child support apply when considering a retroactive spousal support award in this case. However, what makes the difference is the issue of hardship. Mr. Mugford, I find, generally strove to meet his obligations in the context of great uncertainty created by ongoing litigation for 15 years. He has worked to ensure that his arrears were brought up to date. He has worked to obtain jobs that would provide a better standard of life for all concerned, even if his children will be receiving that support later than should have been the case. As a result of the child support awards made in this case, he will owe Ms. Silva a considerable sum of money even after the credit for his equalization payment is applied. His savings will be sufficient to meet this debt, but thereafter his only remaining asset will be his pension. If the recommendations in the Spousal Support Advisory Guidelines (SSAG) were applied to a retroactive spousal support award going back to January, 2004, at a minimum Mr. Mugford would be faced with a further award of $25,855. This assumes that no income will be imputed to Ms. Silva.
[154] Also, I find that Ms. Silva did nothing to indicate an intention to have spousal support varied or reviewed until filing her response to the motion to change. At that time, she sought only to have support indexed since the final order. I recognize that she was self-represented when she prepared and filed that document. Nonetheless, she knew enough to seek increased child support. Then, as previously mentioned, she did virtually nothing for a decade to advance any of her claims. Her delay has not been adequately explained. She has definitely not actively asserted a claim for increased spousal support throughout the past 15 years.
[155] Additionally, there is no evidence that Ms. Silva sought even part-time work in the earlier years, or that she provided the evidence of job searches required by the final order.
[156] Taking into account all of the facts of this case, fairness dictates that no retroactive spousal support award be made.
[157] The more difficult questions are, should spousal support be paid prospectively or should it terminate?
[158] As previously noted, as of this past July support has been paid for 15 years. It was also paid under a temporary order for another full year preceding the final order. The SSAG formula results in spousal support for an indefinite duration, subject to variation and possibly review, with a maximum duration of 14 years.
[159] Section 17(4.1) of the Divorce Act requires the court, when making a variation order after being satisfied of a material change, to take that change into consideration. In this case Ms. Silva’s health is to be taken into account, as is Mr. Mugford’s changed income.
[160] The case of Elaschuk v Elaschuk (1997), 1997 CanLII 24539 (ON SC), O.J. No. 1869 (Ont. Gen. Div.); affirmed 1999 CarswellOnt 2024 (Ont. Div. Ct.) offers guidance. The parties had a six-year marriage and separated in 1970. The wife had full custodial and most financial responsibility for their one child. The wife was diagnosed with Multiple Sclerosis in 1983 and the husband consented to an order increasing the amount of spousal support, when the wife was still working full-time. In 1996, by that time fully disabled, the wife successfully applied for a variation despite 26 years of receiving payments of spousal support. Spousal support was increased from $250 to $700 per month, payable indefinitely. The wife’s disability and inability to earn any income from employment were held to be a material change in her circumstances. In upholding the trial decision, the Divisional Court said, at para. 5:
Mr. Zuly’s primary argument is that the fact of marriage does not alone entitle one of the spouses to a pension for life. The recent decision of the Supreme Court of Canada in Bracklow v. Bracklow (1999), 1999 CanLII 715 (SCC), 44 R.F.L. (4th) 1 (S.C.C.) however indicates that it may: see esp. at paras. 46 to 48.
[161] More recently, in Gray v. Gray, 2014 ONCA 659, the appellant wife’s health prevented her from working. At para. 28, Lauwers, J. quoted from Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.), “in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less.” (at para. 48). In Gray, Lauwers, J. agreed that support should be indefinite, even though it had already been paid for 16 years, the maximum recommended by the SSAG.
[162] As stated by McLachlin, J. in Bracklow, at para. 57, “[m]arriage, while it may not prove to be ‘till death do us part’, is a serious commitment not to be undertaken lightly. It involves the potential for life-long obligation. There are no magical cut-off dates.”
[163] The underlying basis for the support in this case is both needs-based and compensatory. Ms. Silva’s career ended in 1992, first as a result of the children, then compounded by serious health issues. A spousal support award promotes the objectives of a variation order by continuing to recognize, as the final order did, the economic disadvantages to Ms. Silva of both the marriage and its breakdown, the necessary apportionment of the financial consequences of child-rearing, an attempt to alleviate the economic hardship arising from the breakdown, and the reality that Ms. Silva has been legitimately unable to achieve self-sufficiency. Even if there may be some years in which Ms. Silva could have attempted to retrain or to make reasonable efforts to obtain a relatively unskilled position, during the period in which she was clearly entitled to and in need of support, her medical issues would have brought such employment to an end. Her more serious health problems developed during the critical period of time in which she was otherwise expected to progress in the goal of returning to the workforce.
[164] For now, until there is another material change in circumstances such as Mr. Mugford’s retirement, spousal support must continue in order to give effect to the objectives of s. 17(7) of the Divorce Act. The last factor, the promotion of economic sufficiency, is not achievable and weighs heavily in my determination of this matter, in addition to my previous findings relevant to s. 17(7) (a) through (c).
[165] At some point all who have the means to do so are expected to begin drawing down capital. Typically, this occurs upon retirement. But for Ms. Silva, that time is now. Her home is an asset that is capable of earning income, either through taking in boarders, having those children living at home pay rent, or from sale. I find that a modest income of $12,000 per annum should be imputed to her on the basis that she can obtain income from utilizing her real estate. She should not be able to collect support without first resorting to that asset to help assist her with her livelihood.
[166] There does not appear to be an issue that the SSAG applies to the determination of amount and duration on variation or review, and I apply them in this case. Due to my findings, no child support is payable after August 31, 2019, and so the “without child support” formula applies. This produces a range of child support between $1,558 and $2,077 per month, given Mr. Mugford’s income of $101,030 and Ms. Silva’s imputed income of $12,000.
[167] Turning to the range of support, I consider that it is appropriate to use the midpoint of the range, for these reasons:
(a) although there is a compensatory component to this support, Mr. Mugford has had a post-separation date increase in income that has come about more from his own efforts to retrain and apply himself than from Ms. Silva’s initial contribution to his education;
(b) the above is weighted against the fact that Ms. Silva’s primary caretaking allowed Mr. Mugford to focus on a career;
(c) over time, Ms. Silva has developed a stronger asset position than Mr. Mugford;
(d) the length of time over which spousal support has been paid;
(e) the financial synergy that exists from receiving child support, even if retroactively;
(f) even with the retroactive child support ordered, Mr. Mugford has the ability to pay this amount; and
(g) the quantum of support in the mid-range meets Ms. Silva’s needs.
[168] Accordingly, as of September 1, 2019, spousal support shall be paid monthly in the amount of $1,818.
Medical Benefits
[169] Mr. Mugford must continue to provide health benefit coverage to Ms. Silva for as long as it is available through his employment.
Life Insurance
[170] Life insurance continues to be required to secure the support payment to Ms. Silva. Given Ms. Silva’s age and the indefinite support order, it is not yet time to reduce the amount of the coverage. However, over time the amount of insurance should reduce, and an order is needed to permit Mr. Mugford to gradually decrease this amount.
[171] Ms. Silva is now 53 years old. The amount of insurance should decrease to $100,000 when Mr. Mugford turns 60, to $75,000 when he turns 63, and may be terminated when he turns 65. This order takes into account that Ms. Silva has a substantial asset from which income can be generated in the future when sold, if necessary. This order will be subject to variation in the event of a material change in circumstances.
Equalization Payment
[172] Both parties agree that the starting point for calculation of the equalization payment is the amount of $25,500, pursuant to the order of October 25, 2005, as $20,000 has already been paid.
[173] The primary issue is whether post-judgment interest should be allowed. The order of October 25, 2005 required Ms. Silva to pay the applicant the sum of $45,500, less any arrears of child and spousal support that had accrued between the parties up to October 1, 2005. There was an added condition, which was that counsel were to agree with the arrears that were owing before such payment was made. This amount was to be paid within 30 days, or by November 25, 2005. As I interpret the order, there was little room for negotiation, requiring only that the parties’ lawyers ensure the Family Responsibility Office’s records were accurate.
[174] As of October 1, 2005, the Director’s Statement of Arrears shows that the arrears totalled $11,525.28. As of November 25, 2005, Ms. Silva was to have paid $33,974.72. The order was not complied with; she paid $20,000, leaving $13,974.72 owing to Mr. Mugford. I do not have clear evidence of when the $20,000 was paid, but it was sometime after an order dated March 23, 2006. That order gave her 14 days within which to pay that sum (by April 7, 2006).
[175] The evidence bears out that the amount of arrears was never agreed upon by Ms. Silva or her counsel, first because she insisted that the s. 7 expenses be included in the calculation of arrears, and later, after this motion to change was initiated, she insisted that any retroactive adjustments in support should be set off against that amount. However, by the time of a conference on January 18, 2007, the endorsement states that both parties agreed that the arrears of child and spousal support up to October 1, 2005 were $12,000. Calculations similar to those in the preceding paragraph were done, with the endorsement concluding that, as of the date of the conference, Ms. Silva owed $13,500 and interest. Still, Ms. Silva did not complete the equalization payment. Even when the arrears were brought current in March, 2009, she did not complete the payment.
[176] This is unfortunate, as at no time was there an order that permitted Ms. Silva to suspend payment of the equalization payment indefinitely until such time that the parties had determined the amount of s. 7 expenses that were owed to her, or until a retroactive adjustment of support had occurred. To be clear, the order that determined the equalization payment on October 25, 2005 referenced periodic support only, and not add-on expenses.
[177] Further, none of the later orders made in the Oshawa proceeding, or this proceeding, suspend the accrual of interest, even though some have obviously referenced the equalization payment.
[178] Accordingly, I find it fair for post-judgment interest to run at the applicable rate of 4% per annum from November 25, 2005 to April 7, 2006 on the sum of $45,500 ($4.986 x 133 days = $633.18), and from April 8, 2006 to the date of this judgment on the sum of $26,163.18 ($2.865 x 4,898 days = $14,032.77). Post-judgment interest, therefore, totals $14,695.95.
[179] However, I also find it just to reduce this amount to take into account that Ms. Silva has never received interest on the support arrears, which as currently outlined were not initially paid up to date until sometime in 2009. She has also never received interest on the s. 7 expense payments owed to her, although the larger of the payments made by her were paid more recently.
[180] Taking a very broad view of the matter in an attempt to be fair to both parties, I reduce the post-judgment interest owed on the equalization payment to $10,000.
Costs Order dated September 21, 2006
[181] Now that the calculation of retroactive support owed by Mr. Mugford has been completed, it is appropriate to set off the costs award of $1,500 owed to him since 2006. Post-judgment interest will run, as per the order of September 21, 2006 from the time there were no support arrears. That date was March 17, 2009 according to the FRO statement filed in evidence. The post-judgment interest rate in September 2006 was 6% and, accordingly, post-judgment interest to August 31, 2019 is $894.
Calculation of Retroactive Support and other Financial Issues
[182] The calculations of retroactive child and spousal support, and other financial determinations made by this court results in the amount of $47,405.50 being owed by Mr. Mugford to Ms. Silva as of August 31, 2019.
[183] These calculations are set out in the Support Adjustment Summary attached as Schedule A to these reasons.
Releases
[184] The Order of October 25, 2005 made in Oshawa provides that the respondent shall deliver to the applicant full releases from the respondent’s parents and his sister, Ms. Maria Silva, for any and all indebtedness incurred by the applicant alone or with the respondent. The releases were to be prepared by the applicant’s counsel. These releases had to do with loans advanced during the marriage and the calculation of the parties’ net family properties.
[185] There is evidence that releases were provided to Ms. Silva’s former counsel by Mr. Mugford’s former counsel on November 1, 2005. There is no evidence about why they may not have been signed at the time, nor whether they were signed but not returned – Ms. Silva is uncertain. Because Ms. Silva was unrepresented for periods of time in the former proceeding, as well as in this proceeding, I suspect that the releases may have “fallen through the cracks” along the way, perhaps now part of Mr. Goddard’s file long since closed and in storage. Or they may have been delivered to Ms. Silva, and she perhaps resisted signing them for the same reasons that she testified to in this proceeding. In the final analysis, there is no clear trail of evidence providing clarity with respect to these events.
[186] More importantly, I find that enforcement of that order is problematic. Although the order was made on consent, this court has no ability to force non-parties to execute releases, absent their consent.
[187] Searching for a practical result, I proposed to Ms. Saunders and Ms. Silva that this court could make a finding that any claims that Ms. Silva’s surviving parent or her sister may seek to make against Mr. Mugford would be statute barred. Mr. Mugford agreed to this proposal; Ms. Silva did not. I do not fault her for this, as she did not have counsel to confer with to understand the impact of this proposal.
[188] Nonetheless, for the sake of finality for these parties, I am undertaking the analysis to show that Ms. Silva’s family would be past the time permitted by law to make a claim against Mr. Mugford, for the purpose of determining this issue.
[189] The payments/loans were given to the parties for the purchase of the matrimonial home prior to January 1, 2004. Accordingly, the transition sections of the Limitations Act, 2002, S.O. 2002, c. 24, would operate to provide those individuals with six years within which to make a claim against Mr. Mugford or Ms. Silva. That six-year period would run from the time that they made a demand for payment or knew that repayment or acknowledgement of the debt was being resisted by one of these spouses at the time. All of the available evidence suggests that monies provided by Ms. Silva’s family members was an issue in the Oshawa proceeding up until the equalization payment was determined by the order of October 25, 2005. Given the evidence that I have heard at this trial, including that Ms. Maria Silva had to retain her own counsel in the Oshawa proceeding to protect her interests, I have no difficulty concluding that the respondent’s family members were aware or should have been aware prior to October 25, 2005 that they could assert a claim for recovery of the debt against Mr. Mugford or Ms. Silva, or both. In the event that I am not correct and these family members were not aware of their claim until January 1, 2004 or later, then their claim would be subject to the two-year basic limitation period set out in s. 4 of the Limitations Act. Either way, they are well out of time to make a claim against Mr. Mugford, now or in the future.
[190] Accordingly, I find that any claim that the respondent’s mother or sister may make against Mr. Mugford for monies advanced to either of the parties during the marriage is now statute-barred. Accordingly, Ms. Silva is no longer required to provide the executed releases as ordered.
Orders Made
[191] For the preceding reasons, the final order of July 21, 2004 shall be changed as follows:
The applicant’s obligation to pay child support for Lauren Mugford born August 4, 1992, shall terminate as of August 31, 2015.
The applicant’s obligation to pay child support for Robyn Mugford born July 20, 1997 shall terminate as of August 31, 2019.
The applicant’s obligation to pay child support for Dylan Mugford born August 15, 1999 shall terminate as of January 31, 2017.
The applicant shall pay the amount of $47,405.50 to the respondent, which is comprised of $85,299.50 in retroactive child support and s. 7 expenses (the “retroactive child support”), minus credit for amounts owed to him by the respondent for the equalization payment, costs and post-judgment interest.
The applicant shall pay the retroactive child support in instalments of $1,000 per month commencing September 1, 2019.
Commencing September 1, 2019, the applicant shall pay spousal support to the respondent in the amount of $1,818 per month.
The parties shall pay their proportionate share of Robyn’s total OSAP debt, proof of which shall be provided to the applicant by the respondent. In determining their proportionate share, the net disposable income of each party as of September 1, 2019 shall be used so that the applicant shall pay 63% and the respondent 37%.
If Robyn attends a fifth year of post-secondary education; the parties shall pay their proportionate share after deducting any grants, awards or bursaries available to him.
If Dylan attends a program of post-secondary education, the parties shall pay their proportionate share after deducting any grants, awards or bursaries available to him.
The applicant shall provide health benefit coverage to the applicant for so long as it is available through his employment.
The applicant shall continue to maintain in force a life insurance policy in the amount of $200,000 naming the respondent as the only beneficiary. He shall be entitled to reduce the face value of the coverage to $100,000 upon his turning age 60, to $75,000 upon his turning age 63 and may terminate the coverage upon his turning age 65.
The award of spousal support, its quantum and duration, and the order in respect of life insurance may be varied in the event of a future material change in circumstances of either party, including but not limited to:
(a) The respondent’s receipt of benefits from any benefit plan, such as CPP and ODSP;
(b) The applicant’s retirement; and
(c) Any material change in either party’s incomes or assets.
On or before June 1 each year, the parties shall provide each other with a copy of their income tax return and notice of assessment for the previous year.
This court orders that any claims against the applicant for debt or loans made by the respondent’s family during the marriage are barred by the Limitations Act, 2002, S.O. 2002, c. 24.
Costs
[192] If the parties are unable to agree upon costs, they may each make brief written submissions not exceeding four pages plus any offers to settle. The applicant’s are due by October 18, 2019, and the respondent’s by October 31, 2019. All are to be submitted to the office of the judicial secretaries at 75 Mulcaster Street, 4th Floor, Barrie, Ontario, L4M 3P2.
Healey J.
Released: November 4, 2019
SCHEDULE “A”
SPOUSAL SUPPORT ADJUSTMENT SUMMARY
| YEAR | DANE/ YVONNE INCOME | CHILD SUPPORT MONTHLY (PAID) / CSG DUE | YEARLY CHILD SUPPORT ADJUSTMENT UNDER PAID | OVER PAID |
|---|---|---|---|---|
| 2004 Jan - Mar | $46,068 / $0 | ($690) / $905 | -$645 | |
| 2004 Apr - Dec | $46,068 / $0 | ($690) / $905 | -$1,939 | |
| 2005 | $51,789 / $0 | ($690) / $1,020 | -$3,960 | |
| 2006 | $52,361 / $0 | ($690) / $1,032 | -$4,104 | |
| 2007 | $55,350 / $0 | ($690) / $1,089 | -$4,788 | |
| 2008 | $65,524 / $0 | ($690) / $1,278 | -$7,056 | |
| FATHER COMMENCED MOTION TO CHANGE | ||||
| 2009 | $65,308 / $0 | ($690) / $1,274 | -$7,008 | |
| 2010 Jan -Aug | $67,461 / $0 | ($690) / $1,314 | -$4,992 | |
| 2010 Sept- Dec | $67,461 / $0 | ($690) / $1,110 | -$1,680 | |
| 2011 Jan - Apr | $69,903 / $0 | ($690) / $1,146 | -$1,824 | |
| 2011 May- Dec | $69,903 / $0 | ($690) / $1,357 | -$5,336 | |
| 2012 | $70,453 / $0 | ($690) / $1,364 | -$8,088 | |
| 2013 | $77,599 / $0 | ($690) / $1,491 | -$9,612 | |
| 2014 | $90,568 / $0 | ($690) / $1,696 | -$12,072 | |
| 2015 Jan - Aug | $91,562 / $0 | ($690) / $1,712 | -$8,176 | |
| 2015 Sept - Dec | $91,562 / $0 | ($690) / $1,313 | -$2,492 | |
| 2016 | $95,995 / $0 | ($690) / $1,367 | -$8,124 | |
| 2017 Jan | $127,332 / $0 | ($690) / $1,806 | -$1,116 | |
| 2017 Feb - Dec | $127,332 / $0 | ($690) / $1,125 | -$4,785 | |
| 2018 | $101,030 / $0 | ($690) / $918 | -$2,736 | |
| 2019 Jan - Aug | $101,030 / $0 | ($690) / $918 | -$1,824 | |
| SUBTOTALS | -$102,357 |
$102,357 UNDERPAID CHILD SUPPORT
$62,424.50 UNDERpaid child support (January 2004 to August 2019) 22,875.00 UNPAID s.7 expenses (January 2004 to August 2019) $85,299.50 Subtotal
( 25,500.00) Equalization Payment owing ( 10,000.00) Interest on Equalization payment ( 1,500.00) Costs owing ( 894.00) Interest on Costs $47,405.50 TOTAL
CORRIGENDA
Paragraph [1] – the Applicant’s name was misspelled and has been corrected to read “Dane”.
[^1]: The numbering in the final order is not always sequential and there are several paragraphs that begin with the same number. [^2]: Incorrectly identified as “respondent” in the endorsement.