Court File and Parties

COURT FILE NO.: FC-16-1103-1 DATE: 2019/09/30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Hanh Chi Thi Applicant

– and –

Tay Thanh Nguyen Respondent

Counsel: Yvette Virok, Counsel for the Applicant Jennifer Johnston, Counsel for the Respondent

HEARD: May 31, 2019

REASONS FOR JUDGMENT

Justice Engelking

[1] This is the Respondent, Mr. Nguyen’s Motion to Change the parties Separation Agreement dated December 22, 2008. Mr. Nguyen brought his Motion to Change on October 14, 2016. In it, he is seeking to terminate child support for the three children of the marriage, Vivian, Eric and Jacqueline as of their respective 23rd birthdays, to terminate spousal support as of November 1, 2016, and to set any arrears owing by him at zero. The Applicant, Ms. Thi, filed a Response to the Motion to Change on December 15, 2016. She opposes Mr. Nguyen’s request, in part, and cross-moves for retroactive adjustments to child support from 2009 on an imputed income to Mr. Nguyen.

The Issues

[2] The issues in this Motion to Change are as follows:

1. Should there be a termination of support for Vivian as of July 16, 2015?
2. Should there be a termination of support for Eric as of September 26, 2016?
3. Should support for Jaqueline terminate as of February 24, 2020?
4. Should there be a termination of spousal support as of October 14, 2016, (the commencement of the Motion to Change)?
5. If the answer to #4 above is no, what is the appropriate quantum and duration of spousal support payable?
6. Should retroactive arrears of child or spousal support, if any, be rescinded as of October 16, 2016?

[3] For the following reasons, I find that there has been a material change in circumstances such that the support provisions of the parties’ Separation Agreement may be varied. Child support for Vivian shall terminate as of July 16, 2015; child support for Eric shall terminate as of September 26, 2016; and, commencing October 1, 2016, Mr. Nguyen shall pay child support to Ms. Thi for Jacqueline in accordance with a “summer child support” calculation. Mr. Nguyen shall be required to pay spousal support on a “with child formula”, considering the above-noted termination dates, with such support to end 13 years from the date the parties entered into their Separation Agreement, or as of November 30, 2021. I decline to impute income to Mr. Nguyen for 2014, 2015 and 2016. I also decline to make any retroactive variation. Both child support for Jacqueline and spousal support for Ms. Thi shall thus be calculated on the incomes identified below.

Background Facts

[4] The parties were married on September 1, 1990, and separated on November 5, 2003, though they continued to live separate and apart in the same residence until 2008. Three children were born of the marriage: Vivian Nguyen, born on July 16, 1992, now 26 years of age, Eric Nguyen, born on September 26, 1993, now 25 years of age, and Jacqueline Nguyen, born on February 24, 1997, now 22 years of age. Since separation, the children have lived primarily with Ms. Thi, though Mr. Nguyen maintains a regular and positive relationship with them.

[5] The parties entered into a Separation Agreement on December 22, 2008. Pursuant to the Separation Agreement, Mr. Nguyen was to pay $1,387 per month in child support based on an annual salary of $71,800. He was also to contribute proportionally to the children’s section 7 expenses, with Ms. Thi’s salary to be noted as “minimal”, and to pay $900 per month in spousal support. Mr. Nguyen was also to maintain life insurance sufficient to secure his support obligations. Any amendments to the Agreement were to be done in writing, signed by both parties, dated and witnessed.

[6] For a few months post-separation, Mr. Nguyen paid the full amount of $2,287 per month for child and spousal support. In or about May of 2009, Mr. Nguyen reduced the support he was paying to $1,500 per month. Mr. Nguyen’s evidence is that he was laid off from fulltime employment shortly before the Separation Agreement was entered into, but he was in receipt of severance pay at the time, and the income attributed to him in the agreement was as per his recent employment. Mr. Nguyen indicated that by May of 2009, he was unable to find work at a comparable salary and he advised Ms. Thi that he would need to reduce the total amount he was paying to her to $1,500 per month. Mr. Nguyen indicated that Ms. Thi did not object at the time and his cheques for this amount were accepted by her. In May of 2011, Mr. Nguyen increased the amount he was paying to $1,800 per month for both child and spousal support. He has paid Ms. Thi $1,800 per month since May of 2011, except for the month of October of 2016, when he paid $1,400.

[7] Mr. Nguyen indicated that in 2014, he sought to claim his spousal support payments with the Revenue Canada Agency (“CRA”), but that Ms. Thi would not provide him with proof of the amount paid for spousal support. This was the case, as well, for 2015 and 2016. Mr. Nguyen was not, therefore, able to receive a tax deduction for spousal support for these years. Mr. Nguyen also solely contributed a total of $69,950 to a RESP for the children’s benefit.

[8] In 2016, Ms. Thi filed the parties’ Separation Agreement with the Family Responsibility Office (“FRO”), and FRO began to enforce the support. According to a FRO Statement of Arrears from October of 2016, Mr. Nguyen accumulated $47,421 in arrears from May of 2009 to October of 2016.

[9] The parties attended a case conference on December 19, 2016, at which time it was agreed that $900 per month in spousal support would continue to be paid by Mr. Nguyen to Ms. Thi, and enforced by FRO. FRO was to cease to enforce the support arrears pending further order of the court, and it was to continue to collect $660 per month of child support but was to hold those funds until further order of the court. On agreement of the parties, $5,000 being held by FRO was released to Ms. Thi to obtain her expert report critiquing Mr. Nguyen’s expert’s report on his available income for spousal support.

[10] Paragraph 4.6 of the parties’ Separation Agreement dated December 22, 2008 provides:

4.6 Child support ends for the children when:

(a) A child ceases to be a “child” as defined in the Divorce Act,

(b) A child no longer resides with the custodial parent, (“resides” includes a child living away from home for school, summer employment or vacation),

(c) A child turns 18, unless he or she is unable to become self-supporting due to illness, disability, education or other cause,

(d) A child becomes self-supporting,

(e) A child turns 23 years of age,

(f) A child marries,

(g) A child dies, or

(h) Tay dies, provided that the security in the section of this Agreement entitled “Life Insurance” is in place at the time of the death.

[11] Paragraph 4.7 provides that “the parties will review child support arrangements on an annual basis”, and will exchange the previous year’s income tax returns and notices of assessment by June 1st of each year. A change in support was to be effective July 1st of each year, with the first review to be in June of 2009.

[12] Commencing December 1, 2008, Mr. Nguyen was to pay spousal support of $900 per month to Ms. Thi; entitlement to support was to be reviewed one year from the date of the Agreement. Pursuant to paragraph 5.3, Ms. Thi was to “make reasonable efforts to support herself”, and “reasonable efforts to find reasonable employment or become self-employed”.

[13] Vivian turned 23 on July 23, 2015. She completed her first undergraduate degree in April of 2016.

[14] Eric turned 23 on September 26, 2016. He has been working on a fulltime basis for Ampherol since February of 2019.

[15] Jacqueline will turn 23 on February 24, 2020. She continues to be engaged in her first post-secondary degree.

[16] Mr. David Clarke, a Chartered Professional Accountant and Chartered Business Evaluator with Collins Barrow Ottawa prepared a report regarding the “Calculation of Income Available for Spousal Support Purposes From 2014 – 2016” dated April 19, 2018. In it, Mr. Clarke concluded that Mr. Nguyen’s available income for support purposes for those years was $47,062 in 2014, $38,841 in 2015 and $65,753 in 2016. Mr. Clarke also testified in the Motion to Change hearing.

[17] Mr. Marc-Andre Richer, a Chartered Professional Accountant and Chartered Business Evaluator with Richer Valuations and Consulting prepared a “Limited Critique Report Mr. Thanh-Tay Nguyen – Income Available for Support Purposes” dated December 6, 2018. In it, Mr. Richer concluded that Mr. Nguyen’s income available for support purposes was $94,883 in 2014, $135,539 in 2015 and $140,781 in 2016. Mr. Richer also testified in the Motion to Change hearing.

Material Change of Circumstances

[18] The first step in any Motion to Change is to determine whether a material change in circumstances has occurred which would give rise to the Court making variations to a previous order or agreement. The change in the parties’ affairs which triggered this Motion to Change was the filing by Ms. Thi of the parties’ Separation Agreement with the Family Responsibility Office (FRO) in 2016. The material changes in circumstances which would give rise to the Court now making an order, however, are that two of the three subject children have turned 23 years of age since the Agreement was made. Mr. Nguyen has submitted additionally that his income for the years following the Separation Agreement was lower than that which was agreed to at the time. He seeks, essentially, for the court to acknowledge a “consent variation” of the support terms from 2008 to 2015 based on what he actually paid over that period. He requests that any arrears of child support which may have accrued in accordance with the Separation Agreement be rescinded. Ms. Thi submits that income should be imputed to Mr. Nguyen for the years 2014, 2015 and 2016, and seeks a variation of both child and spousal support based on the imputed income.

[19] Mr. Nguyen argued that pursuant to DBS[^1], Ms. Thi is barred from seeking retroactive adjustments to support for the two oldest children, as they no longer fit the definition of child of the marriage “at the time of the Application”, which is an originating proceeding and not a variation of a previous court order. Ms. Thi relies on s. 35(1) and (2)(a) and (b) of the Family Law Act[^2], which provide for the filing and enforcement of a domestic contract. As in the case of Newell v. Gaudet, 2018 ONSC 55, the parties in this case signed their Separation Agreement prior to divorcing, and they did not incorporate the child support terms from the contract into the Divorce Order. Justice Minnema found at paragraph 18 of Newell that what was before him was a variation application pursuant to section 37 of the FLA. In respect to the claims made by Ms. Thi, I too find that what is before me is a variation application pursuant to section 37 of the FLA.

[20] I find that in all the circumstances, there has been a material change since the parties entered into their Separation Agreement in December of 2008 such that some adjustments can now be made.

Issue #1 - Termination of Child Support for Vivian

[21] As I have indicated above, the parties agreed in paragraph 4.6, subparagraph (e) of their Separation Agreement dated December 22, 2008, that support for the children would end when each child reached the age of 23 years. Section 3(2) of the Federal Child Support Guidelines[^3] provides that where a child is of an age of majority, the amount of support is the amount determined by the Guidelines unless the court determines that amount to be inappropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.

[22] The parties contracted for child support for each of the children to end at 23 years of age. While it is trite law to say that parents cannot waive a child’s right to support, 23 is an age at which one might reasonably expect that a young person would finish their first undergraduate degree or post secondary diploma. In situations where the young person’s needs reflect that they will require support beyond what would be the typical time period in which to complete a first degree or diploma, support may be extended to account for those needs.

[23] Vivian turned 23 on July 23, 2015. She completed her first undergraduate degree from the University of Ottawa in April of 2016. Vivian resided with Ms. Thi fulltime while she was in her undergraduate degree. Although Mr. Nguyen indicated in his affidavit evidence that Vivian took five years to complete her degree, no evidence was led before me that Vivian had any particular needs resulting in her requiring either extra time or support for her schooling. Subsequent to her degree from Ottawa University, Vivian moved to Toronto to attend Seneca College and is now enrolled at Concordia University in Montreal. According to Mr. Nguyen, she lived with her boyfriend in Toronto and continues to do so in Montreal.

[24] Both parties acknowledge that Vivian, indeed all three children, worked part-time during the school year and/or fulltime over the summer at Phu-Yen, a restaurant in which Mr. Nguyen was a 50% shareholder and manager. Neither gave specific enough information regarding the actual means of the child to contribute to her own support. Nevertheless, Vivian was clearly making money which she could apply to her own support. Ms. Thi additionally referred to the children having obtained some OSAP loans, from which they would also be expected to contribute to their own support. Mr. Nguyen’s evidence was that significant portions of the children’s costs were also covered by their RESP, precisely so that they would not have to incur substantial debt in obtaining their undergraduate degrees. But for Ms. Thi’s evidence that she initiated the RESP with a $400 contribution, there was no dispute between the parties that it was Mr. Nguyen who thereafter solely contributed to the RESP. Under all the circumstances and taking into consideration section 3(2) of the Federal Child Support Guidelines, I find that it is reasonable to terminate support for Vivian as of July 23, 2015.

Issue #2 - Termination of Support for Eric

[25] Eric turned 23 years old on September 26, 2016. I have no affidavit evidence as to on what date Eric completed his first undergraduate degree, though Ms. Thi’s Response to Motion to Change sworn on December 8, 2016 indicated at paragraph 15 on page 8 that “he is still in a full-time university program, aiming to complete his first degree at Carleton University”. In his affidavit sworn on May 21, 2019, Mr. Nguyen indicated in paragraph 115 that Eric commenced his undergraduate degree in September of 2011 and took approximately seven years to complete it. He would, then, have completed his undergraduate degree in or about April of 2018. Mr. Nguyen indicates in his affidavit that Eric has been working fulltime as of January of 2019, and lives in one of his rental units rent free. Based on the same logic applied to the issue of Vivian’s support, I find that Eric would have been expected to contribute to his own support, both by virtue of his employment at the restaurant and any OSAP loans he may have accessed. Again, although it appears that it may have taken Eric up to seven years to finish his first degree, I received no evidence as to any needs Eric may have had that would have resulted in him requiring more time or support to complete his degree than what is considered reasonable, and indeed, than what the parents agreed upon in their Separation Agreement. I find that child support for Eric shall terminate as of September 26, 2016.

Issue #3 - Support for Jacqueline

[26] Jacqueline continues to attend the University of Guelph, in which town she resides during the school year. Ms. Thi indicates in her evidence that Jacqueline continues to return home on holidays and certain weekends and has resided with her during the summer months. Mr. Nguyen indicates in his affidavit that Jacqueline returned to live with her mother during the summer of 2018, and worked at the restaurant, but that she was remaining in Guelph for the summer of 2019 and working at the University. Jacqueline would, in my view, be entitled to table support commencing October 1, 2016, such support to be in accordance with a “summer child support” calculation from the date she commenced university if she, in fact, lived with Ms. Thi over the summer. Jacqueline will turn 23 as of February 24, 2020. Jacqueline also appears to be working, at least over the summer months (as she did previously at the restaurant), and likely has some ability to contribute to her own support. Additionally, as with the other children, Mr. Nguyen has paid for her tuition for her post-secondary education via the RESP. He also indicates that he has contributed to the purchase of books, computers and other materials for the children. He provided them with cell phones, cars and car insurance, a portion of the costs of which could be deducted as expenses for the restaurant as they were used for deliveries. I am uncertain as to when Jacqueline is expected to complete her undergraduate degree, but it is, again, not an unreasonable expectation that support for her should end as of her 23rd birthday, or February 24, 2020.

Issue #4 - Should there be a termination of spousal support as of October 14, 2016?

[27] Mr. Nguyen seeks a termination of spousal support as of the date of the filing of his Motion to Change. Ms. Thi seeks a continuation and a variation based on an imputed income to Mr. Nguyen for the years 2014, 2105 and 2016. Mr. Nguyen submits that he has been providing support to Ms. Thi for more than the length of the marriage already, from the date of separation in 2003 to the present, and that his obligation should end.

[28] Ms. Thi’s entitlement to spousal support appears to be based on both compensatory and non-compensatory factors. Although she acknowledges receipt of support from December 1, 2008 onwards, based on the provisions of the parties’ Separation Agreement, she claims that: a) the amount of support payable ought not to have been unilaterally changed by Mr. Nguyen, b) it ought to have been higher for the years 2014, 2015 and 2016 based on an imputed income to Mr. Nguyen, and c) she continues to be in need.

[29] From the date of separation on November 5, 2003 until sometime in 2008, the parties lived separate and apart in the same residence. Although Mr. Nguyen states that he was providing for the family during that time, the evidence also demonstrates that Ms. Thi was working at the family restaurant over many of those years. The degree to which she worked and was paid for that work is uncertain, however, I am of the view that she was contributing to the household, either monetarily or in kind via unpaid work at the restaurant over that period. Both were, therefore, supporting the family between 2003 and 2008.

[30] As I have indicated, the parties entered into a Separation Agreement on December 22, 2008, at which point Mr. Nguyen became obligated to pay monthly spousal support for Ms. Thi commencing December 1, 2008. Although he has done so, it has not been in accordance with the provisions of the agreement. According to the agreement, Mr. Nguyen was to pay to Ms. Thi $1,387 per month in child support and $900 per month in spousal support, for a total of $2,287 per month. Mr. Nguyen argues that he continued to pay $900 per month in spousal support, however, Ms. Thi’s evidence is that as the overall payment was reduced, she needed to apply whatever support she was receiving to the needs of the children.

[31] The agreement contained a provision that Ms. Thi was to “make reasonable efforts to support herself”, and “reasonable efforts to find reasonable employment or become self-employed”, and that entitlement to support was to be reviewed one year from the date of the Agreement. No such review was done between 2009 and 2016, when Mr. Nguyen commenced this proceeding, and support has continued to be paid as set out above.

[32] Ms. Thi currently works at two part-time jobs for a total of approximately 30 hours per week. Ms. Thi works part-time at the Comfort Inn Hotel and part-time at The Redwoods Retirement Residence. Her combined income from these pursuits is approximately $24,000. She also receives $900 per month in spousal support for a total annual income of approximately $35,000.

[33] Ms. Tyi completed an accounting/administration course at Everest College in 2013-14 but indicates that she has not been able to find employment in this field. She indicated that as her English is poor and her only previous experience was working at the restaurant, it has been very difficult for her to secure employment since 2008. She did not, however, provide any evidence of any efforts made by her, such as job applications or a list of available options, to support this contention. Ms. Tyi states that she is now 56 years old and does “not foresee being able to find more remunerative work” at this phase of her life.[^4]

[34] While that may be the case, Mr. Nguyen is not required to support her indefinitely. Spousal Support Advisory Guidelines calculations reveal that for a marriage of this length with three children, the range of duration of spousal support is from 6.5 to 13 years. Mr. Nguyen argues that he has been supporting Ms. Thi since separation, or for well over 13 years. I have found, however, that both were contributing to the support of the family while they lived separate and apart in the same residence. I find that Ms. Thi is still entitled to support pursuant to the parties Separation Agreement. Such support shall end 13 years after it began , or as of November 30, 2021.

Issue #5 - What is the appropriate quantum support payable?

[35] In order to determine the quantum of spousal and child support payable, both retroactively and prospectively, it is necessary to determine the issue of imputation of income.

Ms. Thi

[36] As I have indicated above, Ms. Thi is employed part-time in two jobs for a total of about 30 hours per week. She provided no evidence to the court to demonstrate what efforts she has made to either find other employment or increase her hours of work per week. Nor is her current employment status resulting from “the needs of a child of the marriage” or her own “reasonable educational or health needs” as per Section 19(1)(a) of the Federal Child Support Guidelines. While I find, based on the above, that Ms. Thi is “intentionally underemployed” as per the pronouncements of the Ontario Court of Appeal in Drygala v. Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.), I must also determine if Ms. Thi is earning less than she is capable of earning. To do so, it is of assistance to consider the factors identified by Justice Chappel in Smith v. Smith, 2012 ONSC 1116 of what is reasonable in the circumstances. At paragraph 81, Justice Chappel lists those factors to include “the age, education, skills and health of the party, the party’s past earning history and the amount of income the party could reasonably earn if they had worked to capacity”.

[37] In this case, I find that Ms. Thi’s capacity to earn income has been limited historically. Given her current age and the skills and experience she possesses, I find that her income earning capacity over the years is question is $24,000 per annum.

Mr. Nguyen

[38] With respect to the issue of whether income should be imputed to Mr. Nguyen for the years 2014, 2015 and 2016, both parties sought the assistance of experts in determining his appropriate income. Ms. Thi asks that Mr. Nguyen’s income be imputed to that identified by her expert. The onus is, of course, on her to persuade the court that it should be so imputed.[^5]

[39] Mr. Clarke determined that Mr. Nguyen’s available income for support purposes was $47,062 in 2014, $38,841 in 2015 and $65,753 in 2016. Mr. Richer disputed that those were the correct figures for essentially three reasons: 1) there should be an amendment to Mr. Nguyen’s 2016 personal income from Phu-Yen; 2) inconsistencies in Mr. Nguyen’s Form 13 Financial Statement; and 3) potential for personal expenses and/or undeclared income.

[40] The biggest adjustment identified by Mr. Richer has to do with the $31,358 owed by Mr. Nguyen to Phu-Yen in 2016, which was the same year Mr. Nguyen sold his 50% shares in the restaurant to his then partner, Mr. Jim Wood. Pursuant to the Share Purchase Agreement, Mr. Nguyen was to receive $32,000 in consideration for the sale, to be paid to him at the rate of $2,000 per month without interest until satisfied. Mr. Richer’s position was that pursuant to Section 15(2) of the Income Tax Act[^6], the $31,358 owed by Mr. Nguyen should be included in his 2016 income, because there was no indication that the “indebtedness” was repaid within one year as per Section 15(2.6) of that Act. Mr. Nguyen’s evidence, however, is that the debt, which consisted of an accumulation of business expenses that were made by the restaurant but owed by him (many having to do with expenses paid for the children), was essentially paid off by being forgiven by the $32,000 owed to him in consideration of his sale of his shares. With this, I agree for the simple reason that it is logical. Mr. Nguyen owed the business $31,385 and the business owed Mr. Nguyen $32,000. Mr. Nguyen’s evidence was that he never received any payment of $2,000 per month as per the Share Purchase Agreement; instead, his debt of essentially an equal amount was forgiven. I was provided with no evidence which indicated anything to the contrary.

[41] With respect to the issue of business expenses which may be personal, and therefore added back into Mr. Nguyen’s income for support purposes, I find that they would be minimal. Many such expenses, moreover, related to the vehicles, vehicle insurance and cell phones for the children, and did not benefit Mr. Nguyen directly. I decline to impute any income to Mr. Nguyen on account of such expenses.

[42] With respect to the issue of personal or unreported income, Ms. Thi’s evidence was that when she worked at the restaurant, which was for some periods between 1997 and 2008, significant income was earned in cash and not reported. She did not outline to what that would specifically amount. Mr. Nguyen’s evidence was that most transactions at the restaurant during the period in question were done by card, and additionally that he would not keep unreported cash income in any event, because he had a business partner to whom that would be unfair. In my view, Ms. Thi’s evidence in this regard is both dated and too vague for me to find that there is a source of undeclared income which should be imputed to Mr. Nguyen.

[43] Overall, I accept the evidence of Mr. Clarke with respect to the determination of Mr. Nguyen’s income for support purposes. I find that his income was $47,062 in 2014, $38,841 in 2015 and $65,753 in 2016.

Issue #6 - Should retroactive arrears of child or spousal support, if any, be rescinded as of October 16, 2016?

[44] As indicated above, as of October of 2016, Mr. Nguyen had accumulated $47,421 in arrears of support. He seeks to have those arrears rescinded on the basis that there was a material change to his income, and that child support ought to have been adjusted every year. For that to happen, however, Mr. Nguyen would have needed to provide his proof of income on an annual basis as per the parties’ Separation Agreement such that adjustments could be made. He did not do so. Rather, Mr. Nguyen unilaterally changed the support he was providing to Ms. Thi, down from a monthly total of $2,287 to $1,500 by May of 2009, and then back up to $1,800 from May of 2011. He did not provide her with any proof of income to demonstrate the basis upon which those changes were made. Although the agreement additionally provided for any changes to it to be made in writing, witnessed and executed, Mr. Nguyen did not at any point seek to do that.

[45] As is noted in another case of Justice Chappel, Laramie v. Laramie[^7], at paragraph 50: “even if entitlement is established, retroactive child support is ultimately a matter of judicial discretion”.

[46] At paragraph 52 of Laramie, Justice Chappel stated:

52. The court in S. (D.B.) ultimately adopted a highly discretionary approach to retroactive child support claims, and outlined the following general factors which judges should consider in determining the issue of entitlement to retroactive relief:

53. Whether there was a reasonable excuse for why the claimant [in her case] did not pursue child support or increased child support earlier;

54. The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support;

55. Consideration of the present circumstances of the child, and the extent to which they may benefit from a retroactive award; and

56. Any hardship that may be occasioned by a retroactive order.

[47] The first factor, therefore, to be considered in any DBS[^8] analysis is whether the payor had a reasonable excuse for delay in pursuing a decrease in support earlier. Mr. Nguyen wishes to rely on Ms. Thi’s acceptance of the amounts he was paying as his reasonable excuse for delay in seeking to vary it formally. Mr. Nguyen argued that based on Ms. Thi’s acceptance of the payments and her lack of protest over the changes, he formed an honest belief that he was fulfilling his support obligations. Ms. Thi’s evidence, which I accept, is that based on her and the children’s needs, she had no choice but to accept what Mr. Nguyen was giving her. It was, however, not what he ought to have been giving her and to accept it retroactively without him having made any effort to formally change it until such time as she registered their agreement with FRO would be unfair to her. I agree, and I find, based on the formal requirements of the Separation Agreement, that Mr. Nguyen had no reasonable excuse for delay in seeking to vary his support obligations. Having so found, no assessment of additional SDB factors is required. The result is that Mr. Nguyen is required to pay support pursuant to the parties’ Separation Agreement from December 1, 2008 to September 30, 2016. As of October 1, 2016, the month in which Mr. Nguyen brought his Motion to Change, he will be required to pay support as per his annual income. Mr. Nguyen’s post-2016 income shall be as per Line 150 of his Notices of Assessment.

[48] Mr. Nguyen has also sought to have certain third-party payments acknowledged as support and/or counted against any arrears owing. I decline to do so on the bases that, firstly, he had an obligation to pay his proportionate share of the children’s section 7 or extraordinary expenses, so to the extent he did so they cannot be “double counted” against arrears. Secondly, some of the expenses, such as trips he paid for with or for the children, are simply expenses he chose to undertake. Third, that he gave money directly to the children did not take away from the support obligation he had to Ms. Thi.

Order

[49] My final order will be as follows:

1. Child support payable by the Respondent to the Applicant for the child Vivian Nguyen, born on July 16, 1992, shall terminate as of July 16, 2015;

2. Commencing August 1, 2015, the Respondent shall pay to the Applicant table support of $1,062.84 per month for two children based on an income of $71,800;

3. Child support payable by the Respondent to the Applicant for the child Eric Nguyen, born on September 26, 1993, shall terminate as of September 26, 2016;

4. Commencing October 1, 2016, the Respondent shall pay to the Applicant table support of $601.08 per month for one child, Jacqueline Nguyen, born on February 24, 1997, based on an annual income of $65,753, until such time as Jacqueline commenced university in Guelph, Ontario. Thereafter, the Respondent shall pay child support for Jacqueline in accordance with a “summer child support” calculation based on the below identified incomes. Child support for Jacqueline Nguyen shall terminate as of February 24, 2020;

5. Commencing October 1, 2016, the Respondent shall pay to the Applicant spousal support in the high range on a “with child formula”, considering the above-noted termination dates, and based on the Respondent and Applicant’s incomes noted below, such support to terminate as of November 30, 2021;

6. The Respondent’s income for support purposes is $65,753 for 2016;

7. The Respondent’s income for support purposes is $71,111 for 2017;

8. The Respondent’s income for support purposes is $70,111 for 2018;

9. The Applicant’s income is $24,000 for 2016 onwards; and,

10. The Family Responsibility Office shall make all necessary adjustments to the arrears owed by the Respondent based on this order. Arrears found to be owing by the Respondent, if any, shall be payed by lump sum payment within 30 days of the adjustment having been made by FRO.

[50] The parties are to redo DivorceMate calculations for the child support for Jacqueline and the spousal support payable by the Respondent as per paragraph 49 above. A draft final order can then be submitted to me via the Trial Coordinator’s office for execution. If the parties are unable to agree on what the calculations should be, a further appearance can be arranged before me through the Trial Coordinator.

Costs

[51] In the event the parties are unable to agree on liability for costs of the Motion to Change by October 15, 2019 (unless a further appearance is required), written submissions of no more than three double-spaced pages along with Bills of Costs and Offers to Settle can be made to me at 10 day intervals, and I shall make an order thereafter.

Justice Engelking

Released: September 30, 2019

[^1]: S. (D.B.) v. G.(S.R.) 2006 SCC 37, at para. 88 and 89 [^2]: R.S.O. 1990, c. F.3 [^3]: SOR/97-175, as am [^4]: Affidavit sworn on May 24, 2019, paragraph 35. [^5]: Drygala v. Pauli 2002 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.) [^6]: Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.)) [^7]: 2018 ONSC 4740, 2018 CarswellOnt 13078 [^8]: S. (D.B.) v. G.(S.R.), supra