CHATHAM COURT FILE NO.: FS-09-11184-0002

DATE: 20191003

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOANN DUNN

Applicant

– and –

RICHARD DUNN

Respondent

Stephen J. Andari, for the Applicant

David A. Maslak, for the Respondent

HEARD: March 4 and 5, 2019

REASONS FOR JUDGMENT

HOWARD J.

Overview

[1] The applicant, Joann Dunn, was born on April 30, 1966, and was 52 years of age at the time of the hearing. Ms. Dunn resides in Wallaceburg, Ontario.

[2] The respondent, Richard Dunn, was born on April 13, 1965, and was 53 years of age at the time of the hearing. Mr. Dunn resides on the shores of Lake Simcoe, in Keswick, Ontario.

[3] The parties began living together in 1988, were married on September 7, 1991, separated on October 19, 2008, and divorced on September 28, 2011. Theirs was a relationship of some 20 years.

[4] There are three children of the marriage, namely, Megan Dunn, born April 24, 1993 (now 26 years of age), Sara Dunn, born June 25, 1996 (now 23), and Riley Dunn, born February 20, 2000 (now 19).

[5] Ms. Dunn commenced this variation application by motion to change issued February 14, 2017, seeking a retroactive variation in the child support payable for Sara and Riley under the divorce order of Patterson J. dated September 28, 2011, and the subsequent order of Thomas J. dated November 17, 2014, as well as a variation in the spousal support payable under the two said orders, all retroactive to 2015.

[6] There is no issue and no claim for child support in respect of the eldest daughter, Megan, who lives independently.

[7] The second daughter, Sara, entered the graphic design program at Fanshawe College in September 2015 and graduated in April 2018. Sara obtained employment at a graphic design firm in Sarnia, where she currently resides, shortly after graduation.

[8] The son, Riley, continues to reside with his mother at their home in Wallaceburg. At the time of the hearing, Riley was in his fifth year of secondary school and needed four more credits that semester to graduate.

[9] The position of Mr. Dunn is that he has already satisfied his child support obligations for their daughter Sara and that there should be an order terminating child support for Sara effective May 1, 2018, after she graduated from college. Mr. Dunn also submits that child support for their son Riley should be retroactive, at most, to a date not earlier than the commencement of the proceeding in February 2017.

[10] In respect of the spousal support for Ms. Dunn, Mr. Dunn does not contest her continuing entitlement to support. His position is that his spousal support obligations should return to that provided for under the divorce order of Patterson J. dated September 28, 2011.

[11] The variation application was heard before me on March 4 and 5, 2019. The only two witnesses to give evidence at the hearing were Ms. Dunn and Mr. Dunn.

Factual Background

[12] I do not propose to summarize at length the evidence of each of the witnesses who testified before me at the hearing. There is no need to repeat all of that detail here. However, the parties should know that while I have considered all of the evidence presented at the hearing,[^1] my decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in question or provide sufficient context for the determination of those issues.

[13] Mr. Dunn did his initial post-secondary training in a two-year program at Humber College in 1983-1985, where he studied to become a mechanical numerical control engineering technician. The focus of that program was the programming of machines. He graduated top of his class.

[14] As I have said, Mr. Dunn resides in Keswick, Ontario, in a home on the shores of Lake Simcoe, about 15 minutes north of Newmarket. He resides with his current wife, Ms. Sonya Dunn. There are no children of that marriage.

[15] The evidence of Mr. Dunn was that when he met the applicant, Ms. Dunn, he was employed at AarKel Tool and Die Inc. (“AarKel”) in Wallaceburg, Ontario, a family-run company that was engaged in the business of producing plastic-injection molds and high-pressure diecast dies in connection with the automotive industry. He started at AarKel not long after he graduated from his program. Initially, Mr. Dunn was employed as a “CNC programmer” or a computer numerically controlled programmer. He occupied that position for about ten years.

[16] In or about 2004 (having married Ms. Dunn in 1991), Mr. Dunn received a promotion and became vice-president of operations for AarKel, a position that he held for about eight months before AarKel was sold in 2005 to a Japanese company. Under the new ownership, Mr. Dunn was then employed as a Machining and Technology Manager and was the lead manager at one of the three plants operated by the company.

[17] As I have said, the parties separated on October 19, 2008. The divorce order of Patterson J. dated September 28, 2011, provided that, inter alia:

a. Mr. Dunn shall pay child support to Ms. Dunn for Sara and Riley in the amount of $1,656 per month based on his annual income of $121,400 in 2011 with AarKel.

b. Mr. Dunn shall pay spousal support to Ms. Dunn in the amount of $1,900 per month based on his annual income of $121,400.

c. The said spousal support may be varied, pursuant to the express provisions of para. 13 of the divorce order if there is a material change in circumstances, which was expressed to include, in sub-para. 13(a), “a change in either party’s remuneration from employment.”

d. That for long as spousal support is payable, the parties shall make income tax disclosure by June 1st and within 14 days of receipt of a notice of assessment or re-assessment.

[18] Mr. Dunn decided to leave AarKel in 2012 for a variety of reasons arising out of the new management style of the company under the new owners.

[19] Subsequently, through a recruiting agency, Mr. Dunn ended up at an interview meeting with the owners of Exco Engineering (“Exco”) held in the Detroit airport on Friday, September 28, 2012. He then met with the plant manager of Exco in Newmarket on Sunday, September 30, 2012. At the end of that meeting, he was offered a job at Exco as a manufacturing consultant on a six-month contract, with some overtures being made by the owners that the plant manager might retire in the short term and that his position would then be available to Mr. Dunn.

[20] After extensive consideration and consultations with his current wife, Sonya, concerning, among other things, the future of her restaurant business that she owned and he helped operate, Mr. Dunn decided to resign from his employment at AarKel and take up the position with Exco. He began employment with Exco on November 2, 2012.

[21] Later in 2012, Mr. Dunn received a contract extension. His evidence was to the effect that the company recognized that he had certain shortcomings. He did not have a university education; he had a two-year college diploma. Moreover, he had been at the same job for some 27 years.

[22] That said, in hiring Mr. Dunn, Exco made representations to him to the effect that the then current plant manager had been there for 50 years and, on a technical level, was running the operation “like a 1970s tool shop.” The evidence of Mr. Dunn was that the Exco owners indicated to Mr. Dunn that they wanted an “outside opinion” and wanted “someone who’s worked closer to the Windsor area, where the tooling environment is much more aggressive than, say, Newmarket.” Mr. Dunn had that experience by reason of his years at AarKel.

[23] Accordingly, over the course of the 2013-2014 years, the owners of Exco “invested in” Mr. Dunn, sending him to a Harvard negotiations seminar in 2013, as well as different travel assignments in Japan and Europe, ultimately promoting Mr. Dunn to plant manager at Exco in October 2014.

[24] The final order of Thomas J. dated November 17, 2014, which was made on consent on the basis of minutes of settlement filed at a settlement conference, provided that, inter alia:

a. Paragraph 6 of the divorce order of Patterson J. dated September 28, 2011, should be varied to require Mr. Dunn to pay child support to Ms. Dunn for Sara and Riley in the amount of $1,367 per month based on his “annual income with Exco Engineering in the sum of $96,000.00 in 2014.”

b. Paragraph 11 of the divorce order should be varied to require Mr. Dunn to pay spousal support to Ms. Dunn in the amount of $1,000 per month based on Mr. Dunn’s “annual income with Exco Engineering in the sum of $96,000.00 in 2014,” and Ms. Dunn’s self-employment income as a personal support worker of $19,968.

c. Paragraph 7 of the order of Thomas J. dated November 17, 2014, required the parties to provide annual updated income disclosure to each other within 30 days of the anniversary of the date of the order, for as long as child is payable.

d. I also note that the order of Thomas J. dated November 17, 2014, did not vary, amend, or delete para. 13 of the divorce order in any way.

[25] It is apparent that between the time of the divorce order of Patterson J. dated September 28, 2011, and the consent variation order of Thomas J. dated November 17, 2014, Mr. Dunn’s income decreased from $121,400 in 2011 to $96,000 in 2014. It would also seem apparent that both parties accepted that, by definition, that decrease in his income constituted a material change in circumstances for the purposes of para. 13(a) of the divorce order and, as a result, Mr. Dunn’s child support and spousal support obligations were both reduced accordingly.

[26] It is clear that the annual income of Mr. Dunn has since increased significantly since his income of $96,000 in 2014, as recorded in the consent variation order of November 2014.

[27] Based on the evidence before me, I find that the Mr. Dunn’s annual income for the years in questions was as follows:

a. For the 2015 taxation year, Mr. Dunn had a total income (line 150 on his income tax return) of $292,482. There was evidence that Mr. Dunn received a car allowance in 2015, and there was a suggestion that the value of the allowance was $6,000. However, there was no documentary evidence to support that figure, which struck me as being more in the nature of a “guesstimate.” The point was neither developed nor clarified in the evidence. In the circumstances, I am not satisfied that the amount of the car allowance has been properly established on a balance of probabilities. As such, I find that Mr. Dunn’s annual income for support purposes for 2015 is $292,482. I also note that Mr. Dunn received a refund of about $49,717 for the 2015 tax year. His refund was considerably more than what he paid in spousal support.

b. For the 2016 taxation year, Mr. Dunn had a total income (line 150) of $310,533. I find that his annual income for support purposes for 2016 is $310,533. Mr. Dunn received a refund of $6,939 for 2016. I note that his tax refund was about half of what he paid in spousal support.

c. For the 2017 taxation year, Mr. Dunn had a total income (line 150) of $241,386. I find that his annual income for support purposes for 2017 is $241,386. Mr. Dunn received a refund of more than $12,782 for 2017. I note that his tax refund was slightly more than what he paid in spousal support.

d. For the 2018 year, the evidence was that Mr. Dunn had year-end income of about $241,000, and I would use that amount for support purposes for 2018.

[28] It appears from the evidence of Ms. Dunn that their marriage was a fairly traditional one in terms of their respective roles. Ms. Dunn testified that they agreed that she should stay home to care for their three children while Mr. Dunn went to work. Indeed, the evidence of Ms. Dunn was that in 2006 she quit the night courses she had been taking to obtain her early childhood education qualifications because there was no one home after school with the children, and Mr. Dunn had told her that “her job” was parenting the children and that she had to be home with the kids. That evidence was not challenged by Mr. Dunn.

[29] In fact, consistent with that unchallenged evidence, counsel for Mr. Dunn conceded in closing argument that there was no question of Ms. Dunn being the “primary caregiver or primary in-home parent.”

[30] It is clear that the career path of Ms. Dunn took a different route than that of Mr. Dunn. While I find it unnecessary for present purposes to detail all of the particulars of Ms. Dunn’s somewhat checkered employment history, I would attempt to summarize the relevant chronology as follows:

a. In 1986, following her graduation from high school in or about 1985, Ms. Dunn was employed in the cafeteria at North American Plastics for a period of about six months, preparing and serving food and working the cashier.

b. The parties began living together in 1988.

c. From about 1988 to 1992, Ms. Dunn was employed at St. Clair Tool & Die, making wire harnesses for trucks and cars. She received no special education for this position. She was working in this capacity when she married Mr. Dunn on September 7, 1991, at the age of 25 years.

d. On April 24, 1993, their first child, Megan, was born, and Ms. Dunn resigned from her employment with St. Clair to stay home with their daughter.

e. On June 25, 1996, their second daughter, Sara, was born.

f. After Sara came along, Ms. Dunn baby-sat two or three other children, in addition to her own, and was effectively running a “small day care.” Ms. Dunn testified that she did that for about two years.

g. On February 20, 2000, their son, Riley, was born.

h. In September 2004, Riley started to attend junior kindergarten at St. Elizabeth Catholic School in Wallaceburg. At the time, Sara was in Grade 4 and Megan was in Grade 7.

i. In 2006, as I have referenced, Ms. Dunn began to take courses at night to obtain her early childhood educator qualifications, but she soon quit the program because, as she testified (and this was not challenged by Mr. Dunn’s evidence), Mr. Dunn wanted her to stay home with the children.

j. In 2006, the marriage started to break down, according to the testimony of Ms. Dunn.

k. The parties separated on October 19, 2008.

l. In 2009, Ms. Dunn was employed part-time at the Super Store in Chatham as a sales cashier in the electronics department.

m. In 2011, before the parties divorced, Ms. Dunn enrolled in an eight-month program at St. Clair College, at the Chatham campus, and obtained her certificate as a personal support worker (“PSW”).

n. The parties were divorced on September 28, 2011.

o. For not quite a two-year period between 2012 and 2014, Ms. Dunn was employed as a PSW in a private placement, working with an elderly gentleman (whose initials were J.F.). Ms. Dunn was working in that capacity when the consent variation order of November 2014 was made. The gentleman passed away in December 2014.

p. From February to April of 2017, Ms. Dunn was employed with Community Living Wallaceburg, working with clients/residents with behavioural challenges, in the age range of 26-28 years, who resided in group homes. Many of the residents with whom she worked were physically aggressive. The evidence of Ms. Dunn was that she was continually exposed to verbal abuse and threats of physical aggression, and she feared for her personal safety constantly. As a result of these concerns, Ms. Dunn felt compelled to resign from her employment with Community Living.

q. From January to April of 2018, Ms. Dunn was employed on a part-time basis as a PSW with Bayshore Home Care Solutions. The evidence of Ms. Dunn was that the practice of the company was to let go all of their PSWs before they qualified for benefits. Her evidence was that her employment at Bayshore was terminated for that reason.

r. In January 2019, Ms. Dunn made applications for employment with a variety of companies, including Home Depot, Lowe’s Canada in Sarnia and in London, The Glasshouse Nursery in Chatham, and a private family in Wallaceburg about a temporary PSW position.

s. At the time of the hearing, Ms. Dunn was not currently employed. Her evidence was that she was last employed in April 2018.

[31] Based on the evidence before me, I find that the Ms. Dunn’s annual income for the years in questions was as follows:

a. For the 2014 taxation year, as reflected in the consent variation order of November 2014, Ms. Dunn’s self-employment income as a PSW was $19,968.

b. For the 2015 taxation year, Ms. Dunn had a total income (line 150 on her income tax return) of $14,836. That amount was comprised of $12,000 in spousal support received from Mr. Dunn, an RRSP withdrawal of $5,732.01, and an (unexplained) self-employed income loss, as shown on her income tax return, of $2,896.76. If one were to calculate her annual income for spousal support purposes in accordance with s. 16 of the Federal Child Support Guidelines,[^2] and deduct the amount of spousal support received, her annual income for 2015 would be $2,836. For reasons explained below, I do not regard that as an appropriate amount.

c. For the 2016 taxation year, Ms. Dunn had a total income (line 150) of $19,629.68. That amount was comprised of $2,269.68 in employment income, $12,000 in spousal support received from Mr. Dunn, an RRSP withdrawal of $5,000, and a universal child care benefit of $360. Calculated in accordance with s. 16 of the Guidelines, her income for 2016 would be $4,269.68.

d. For the 2017 taxation year, Ms. Dunn had a total income (line 150) of $28,862.43. That amount was comprised of $6,532.43 in employment income, $12,000 in spousal support received from Mr. Dunn, an RRSP withdrawal of $10,000, and self-employment income of $330. Calculated in accordance with s. 16 of the Guidelines, her income for 2017 would be $16,862.43.

e. For the 2018 taxation year, Ms. Dunn’s financial statement indicates that her gross income from all sources was $19,069. However, the actual amount appears to be $19,268.87, which includes employment income of $4,118.30 (from Bayshore Home Care Solutions) and of $59.90 (from Community Living Wallaceburg), and an RRSP withdrawal of $15,090.67. Calculated in accordance with s. 16 of the Guidelines, her income for 2018 would be $19,268.87.

[32] The evidence of Ms. Dunn was that over the last four years, she has withdrawn over $35,000 from her RRSP account, and that she has no other retirement savings.

Issues

[33] As referenced above, the parties are agreed on a variety of issues, including, in particular:

a. Mr. Dunn does not contest his responsibility for child support for Riley.

b. The parties are agreed that Mr. Dunn’s child support obligations for Sara should terminate effective May 1, 2018.

c. Mr. Dunn is not seeking to terminate his spousal support obligations to Ms. Dunn; that is, he does not contest her continuing entitlement to spousal support. However, the parties disagree over the appropriate quantum of spousal support payable.

[34] The parties are very much disagreed over the question of whether any child or spousal support variation should be made retroactively and, if so, whether any such retroactive order should be made effective as of any date prior to the commencement of the variation application in February 2017.

[35] In my view, the material issues that remain to be determined are as follows:

a. Has there been a material change in circumstances justifying a variation in support?

b. What is the appropriate amount of child support payable by Mr. Dunn for Riley?

c. What is the appropriate amount of child support payable by Mr. Dunn for Sara?

d. Should the order for child support be made with retroactive effect?

e. What is the appropriate amount of spousal support payable by Mr. Dunn for Ms. Dunn?

f. Should the order for spousal support be made with retroactive effect?

Analysis

Has there been a material change in circumstances justifying a variation in support?

[36] For present purposes, the provisions of the Divorce Act relevant to the instant variation application are as follows:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Objectives of variation order varying spousal support order

(7) 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.[^3]

[37] In my view, there can be no doubt that a material change in circumstances has occurred in the instant case.

[38] Paragraph 13(a) of the divorce order of Patterson J. dated September 28, 2011, expressly defined “a material change in circumstances” (at least for the purposes of spousal support) to include “a change in either party’s remuneration from employment.”

[39] The material change in circumstances in the instant case is the significant increase in the respondent husband’s income and, specifically, his remuneration from employment. To recap, as of the date of the consent variation order of November 2014, Mr. Dunn was earning an annual income of $96,000. In the four years that followed, his line 150 income increased to $292,482 in 2015, $310,533 in 2016, $241,386 in 2017, and $241,000 in 2018.

[40] Put differently, when Mr. Dunn’s annual income dropped from $121,400 as of the date of the 2011 divorce order to $96,000 as of the date of the 2014 variation order, the respondent husband incurred a 21 per cent reduction in his line 150 income. But then, compared to his $96,000 income as of the 2014 order, the respondent husband experienced a 205 per cent increase in his annual income in 2015, a 223 per cent increase in his 2016 income, a 151 per cent increase in his 2017 income, and a 151 increase in his 2018 income.

[41] As such, I do not think it lies in Mr. Dunn’s mouth to suggest that while a 21 per cent reduction in his income constituted a material change in circumstances in 2014, increases ranging from 151 per cent to 223 percent in the subsequent years of 2015 to 2018 do not.

[42] I am satisfied that there has been a material change in circumstances in the instant case, justifying a variation of the child and spousal support obligations of Mr. Dunn under the consent variation order of November 2014.

What is the appropriate amount of child support payable by Mr. Dunn for Riley?

[43] It is clear on the evidence before me that Riley remains a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act.

[44] As of the date of the hearing before me, Riley had attained the age of majority but remained under the charge of his parents in the sense that he was continuing to attend secondary school in order to obtain his graduation diploma.

[45] The evidence of Ms. Dunn was that Riley was on track to complete his secondary school requirements over five years, that he had seven credits to complete for that year, and that he had four credits to complete that semester.

[46] The evidence of the applicant mother – which, again, was not challenged in any way by the respondent father – was that Riley has always had some learning deficits, that he has always struggled through school, that he is a “visual learner,” that he had significant difficulty reading as a young child, that he could not functionally read as of his Grade 4 year, that he was supported by an “I.E.P.” or Individual Education Plan[^4] while at school, and that he did not start to read until his Grade 7 year. Ultimately, Riley learned to read as a result of his mother working with him constantly, every night, doing exercises for 20 minutes, then taking a 15-minute break, then resuming for 20 minutes. Again, all of that evidence was unchallenged by Mr. Dunn.

[47] In fairness, Mr. Dunn does not contest that Riley is doing his best to obtain his graduation diploma qualifications.

[48] There was a suggestion in closing argument that the respondent father’s obligation to pay child support for Riley should terminate in June 2019; however, the point was not pressed. Moreover, it was not seriously contested that child support for Riley should continue until such time as Riley is no longer a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act.

[49] In my view, Mr. Dunn should continue to be required to pay child support for Riley for so long as Riley continues to be a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act. That support should be fixed in accordance with the presumptive rule in s. 3(1) of the Federal Child Support Guidelines and the income of Mr. Dunn.

What is the appropriate amount of child support payable by Mr. Dunn for Sara?

[50] As I have said, the parties agree that child support for Sara should terminate effective May 1, 2018. Sara obtained employment at a graphic design firm in Sarnia shortly after her graduation from her college program in April 2018. She now lives independently in Sarnia, although I note the evidence of Ms. Dunn that Sara returns home to reside with Ms. Dunn almost every weekend.

[51] The real question is whether Mr. Dunn should be required to pay child support for Sara for the years 2015 through 2018. Sara turned 19 years of age in June 2015. Mr. Dunn was then paying child support under the November 2014 order in the amount of $1,367 for both Sara and Riley based on an income of $96,000. However, as set out above, Mr. Dunn’s actual income (line 150) in the years 2015 to 2018 ranged from approximately $292,00 in 2015, $310,533 in 2016, to $241,000 in 2017 and 2018.

[52] In other words, in 2015 and 2016 Mr. Dunn was making more than three times the amount of the $96,000 income upon which his child support obligations were based.

[53] In my view, for the 2015 to 2018 period, Sara continued to be a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act. She lived at home with her mother and brother from January 1, 2015, until she commenced her studies in the graphic design program at Fanshawe College in September 2015. During the academic year, Sara resided in London, in a room that she rented in a private home across from the school. However, the evidence of Ms. Dunn was that Sara returned to live at home for the months of May, June, July, and August in the 2016, 2017, and 2018 years, and, further, that Sara came home from school almost every weekend. The evidence of Ms. Dunn was that in those months when Sara was home, she had no income of her own. Ms. Dunn testified that she paid for Sara’s clothing, food, travel costs, and she drove Sara back and forth from school. Ms. Dunn was challenged on some (but not all) aspects of her evidence in this regard, but her evidence did not waver in cross-examination, and I accept her evidence.

[54] Turning to the appropriate quantum of child support for Sara, I appreciate Mr. Maslak’s point that in calculating child support payable for a child who has attained the age of majority and is engaged in full-time post-secondary studies, one often does not use simple table support under the presumptive rule of s. 3(1) of the Guidelines.

[55] Subsection 3(2) of the Guidelines provides that:

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

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[56] Every situation is different. In the particular circumstances of the instant case, I am not persuaded that calculating the child support payable using the presumptive rule, i.e., as if the child were under the age of majority, is an approach that is inappropriate. The evidence of Ms. Dunn, which I have accepted, is that there was a distinct division in Sara’s calendar year and that when her school term ended, she moved back home and continued to live with her mother and brother Riley. For those four months, there was no real appreciable difference between the circumstances of Sara compared to that of Riley.

[57] Accordingly, for the years in question following September 2015, the obligation of Mr. Dunn to provide child support for Sara should extend to only those four months when she resided at home with her mother.

[58] Mr. Dunn maintains that over the years in question, he paid approximately $58,000 directly to Sara to support her during her studies. Ms. Dunn does not dispute that Sara’s father gave her some money directly, but she does not accept it amounts to $58,000. The evidence of Ms. Dunn was that she was aware of two cheques, each in the amount of $5,000, that Mr. Dunn sent to Sara. My difficulty is that I have no documentary or other corroborating evidence before me that satisfies me that Mr. Dunn did in fact give Sara $58,000. In the circumstances, I am not satisfied that payment of the $58,000 amount has been established on a balance of probabilities.

[59] In the circumstances, on the record of evidence before me, I am not persuaded that a child support order should not be made on account of Sara for the four months from May to August by reason of the alleged $58,000 payment.

Should the order for child support be made with retroactive effect?

[60] As I have said, the motion to change was commenced on February 14, 2017. Ms. Dunn seeks an order for retroactive child support dating back to January 2015.

[61] On behalf of Mr. Dunn, Mr. Maslak submits that there should be no retroactive award made beyond the commencement of the proceeding. Relying upon the following passages in Walsh v. Walsh, counsel argues that making a retroactive support award at this point would amount to a windfall in the hands of Ms. Dunn:

The Guidelines do not give a court inherent discretion to recalculate or adjust the amount of child support to reflect a payor’s increase in income. Nothing in the Divorce Act, the Guidelines or appellate case law gives this Court a freestanding right to recalculate and then adjust child support retroactively and as the Court of Appeal’s decision in this case makes clear, there is no automatic right to retroactive support: see Walsh v. Walsh, supra.

Appellate decisions in Ontario, Manitoba, and Alberta establish beyond doubt that a retroactive child support order must relate only to the ongoing needs of the child; see Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.); Brett v. Brett, 1999 3711 (ON CA), [1999] O.J. No. 1384 (Ont. C.A.); Wishlow v. Bingham, [2000] A.J. No. 809 (Alta. C.A.); Andries v. Andries (1998), 1998 14093 (MB CA), 36 R.F.L. (4th) 175 (Man. C.A.).

In Evans v. Gravely (2000), 2000 22593 (ON SC), 14 R.F.L. (5th) 74 (Ont. S.C.J.), the Honourable Madam Justice Benotto of this court makes the following observation with respect to claims for retroactive child support:

The mother requested retroactive support to May 1997. This, in my view, would amount to a windfall to her and not relate to the needs of the child. Also, it would be unfair to the father, in these circumstances, to create immediate and substantial arrears. The support shall commence on February 1, 2000, the first day of the month following the commencement of the Application.[^5]

[62] In my view, central to the question of whether any award should be made retroactively is an appreciation of the correspondence passing between Mr. Dunn and Mr. Andari, counsel for Ms. Dunn, in the fall of 2016. By letter dated September 29, 2016, Mr. Andari wrote to Mr. Dunn to request that he provide, inter alia, income disclosure for the 2015 and 2016 taxation years.

[63] Mr. Dunn responded to Mr. Andari by letter dated October 13, 2016, in which, inter alia, he acknowledged that he owed Ms. Dunn his personal and corporate tax information for 2015. However, he went on to say that the information would be sent before the deadline (established by para. 7 of the variation order of November 17, 2014), being within 30 days of the anniversary of the date of the order. In short, Mr. Dunn told Mr. Andari that the 2015 income disclosure would be made by December 17, 2016.

[64] As of the date of his response to Mr. Andari in mid-October 2015, Mr. Dunn was well on track to earn $292,482 in 2015. Mr. Dunn knew full well that he was going to earn far in excess of the $96,000 amount, upon which his child support obligation had been set just the year before. Indeed, by mid-October, Mr. Dunn had already surpassed his total income for the entire year before, and he was well on his way to earning three times that amount.

[65] It is an understatement to say that Mr. Dunn was not forthcoming with that information.

[66] And that of course has to be contrasted with the events of just the year before, when Mr. Dunn obtained the November 2014 variation order that significantly reduced his support payments by reason of the decrease in his income from the $121,400 mark in 2011 to $96,000 in 2014.

[67] In cross-examination, it was established that Mr. Dunn knew he would be paying more in child support and he made no effort to raise the issue. Mr. Andari put to him that the reason he did not raise the issue was because he did not want his support to go up, and Mr. Dunn replied, “correct. No one would want it to go up.”

[68] Different people will have different views on the latter point, and while I appreciate Mr. Dunn being completely candid with the court, his obligations do not end there. His children are owed more than candour.

[69] In my view, Mr. Dunn having received the benefit of a variation lowering his support obligations when his income had decreased, there is no reason grounded in fairness to deny the children increased child support where his income has increased.

[70] Counsel for Mr. Dunn submits that a retroactive award of child support for Sara would merely amount to a windfall for Ms. Dunn, as there is no evidence that Ms. Dunn would actually use the money for the support of Sara.

[71] Apart from the fact that, as Mr. Andari correctly noted, those questions were never put to the mother as to how she would use the money received for support, and apart from the fact that one normally does not require proof of how child support is to be spent as a condition to awarding it, I am not tempted by the suggestion that the focus of the exercise here should be on the mother and what she is going to do with a retroactive award. The fact of the matter is that the mother regularly withdrew her retirement savings in order to provide for her children.

[72] I am more concerned about the conduct of the father. He was asked about his 2015 income disclosure. He knew he was making considerably more money and was thus underpaying child support. And his response was to the effect that he would make disclosure of his 2015 information in December 2016. And the reason he did not flag the substantial increase in his income is because he did not want to pay more in support. In these circumstances, I agree with the submission of Mr. Andari that, having asked for the income disclosure earlier and having had no prompt disclosure in response, the mother was not really in a position to commence a well-founded variation application much earlier than she actually did, in February 2017. When that disclosure was made in December 2016, Ms. Dunn then realized that Mr. Dunn had made in excess of half-a-million dollars over two years.

[73] Moreover, in these circumstances, having not made prompt disclosure of his substantial increase in income, it does not lie in the mouth of Mr. Dunn to say that the underpayment of child support should not be retroactively corrected. In my view, to deny making a retroactive correction in the circumstances of this case would be tantamount to encouraging parties not to comply with their income disclosure obligations by rewarding them with support savings when they fail to make timely disclosure.

[74] Similar concerns (albeit in a different context) were voiced by Sharpe J.A., speaking for a unanimous Ontario Court of Appeal, in Colucci v. Colucci:

However, a regime that gave payor parents immunity after the children ceased to be children of the marriage would create a perverse incentive. If the payor parent is to be absolved from responsibility once the children cease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increased obligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the children lose their status to avoid opening the door to an increased obligation …[^6]

[75] For all of these reasons, I find that it is appropriate to make the child support variation retroactive to January 1, 2015.

What is the appropriate amount of spousal support payable by Mr. Dunn for Ms. Dunn?

[76] As I have said, Mr. Dunn does not contest the continuing entitlement of Ms. Dunn to spousal support. This is not a case where the payor is seeking to terminate spousal support. The parties simply disagree over the appropriate quantum of support.

[77] As at the outset of the hearing, I understood that Mr. Dunn’s position was that the application to vary the spousal support should be dismissed. However, during oral argument before me, Mr. Maslak received instructions from Mr. Dunn to return spousal support to the amount awarded in para. 11 of the divorce order of Patterson J. dated September 28, 2011, which was $1,900 per month, based on his annual income of $121,400.

[78] In my view, there are two issues that need to be determined, that being what is the appropriate income for each of the parties for the purpose of calculating spousal support.

[79] I am not persuaded that Mr. Dunn’s income for the purposes of spousal support should be anything different than his income for child support purposes.

[80] The gist of Mr. Dunn’s argument is that one cannot say that his subsequent success at Exco had anything to do with his past success at AarKel. Mr. Dunn also points out that he was already established at AarKel before he married Ms. Dunn.

[81] Respectfully, I do not accept that argument, either factually or legally. It is true of course that Mr. Dunn commenced his employment with AarKel before the parties were married. He started at AarKel in or about 1985, and he married Ms. Dunn about six years later in 1991. However, the evidence of Ms. Dunn – which was not challenged – was that the parties began living together in 1988. I heard very little evidence about Mr. Dunn’s first three years at AarKel before the parties started to live together in 1988. Certainly, there was no evidence that his first three years with the company were so exceptional that they cemented his successful tenure with the firm. The evidence of advancement that was clear, however, was that Mr. Dunn was promoted to vice-president of operations in 2004 – and that occurred thirteen years after the parties were married in 1991.

[82] In my view, one cannot ignore the important contribution to the family that Ms. Dunn performed. It is incontrovertible that Ms. Dunn was responsible for maintaining the household and providing primary care for the parties’ three children. Mr. Dunn left for work at 6:00 a.m. in the morning, and when he returned at 6:00 p.m. that evening, dinner was on the table and the house was in order. Ms. Dunn does not deny that Mr. Dunn worked hard in his career to advance himself, nor does she begrudge him the financial success he ultimately achieved. But that did not happen overnight, nor did Mr. Dunn achieve that success all on his own. In my view, the contribution to the marriage that Ms. Dunn made facilitated and supported the career success that Mr. Dunn had at AarKel.

[83] Further, that work experience at AarKel was an important causal agent for Mr. Dunn’s subsequent success at Exco. Indeed, I recall the evidence that the fact that Mr. Dunn did not have a university degree was a bit of an issue for the principals of Exco. What he did bring to the table, however, was his considerable experience as a manager in the tooling industry. The suggestion in Mr. Dunn’s own evidence was that the incumbent plant manager at Exco was thought to be somewhat outdated in his methods, running the plant “like a 1970s tool shop.” As I have said, the evidence of Mr. Dunn was that the Exco owners wanted someone who had worked in the “much more aggressive” “tooling environment” of Windsor. What Mr. Dunn brought to the table was that he had the managerial experience that the Exco owners were looking for, by reason of his years at AarKel.

[84] Thus, I do not accept that, factually, one can say that Mr. Dunn’s career experience at AarKel had nothing to do with his subsequent success at Exco.

[85] Further, I agree with Mr. Andari’s submission that there is no tenable position or calculation that would support Mr. Dunn’s claim that he should pay spousal support of $1,900 based on an income of $121,400 – other than to say that is what Mr. Dunn was paying before.

[86] To use an artificial amount of $121,400 for the purposes of calculating Mr. Dunn’s current spousal support obligations – when he is currently making much more than that amount – would represent a significant departure from the Spousal Support Advisory Guidelines.[^7] Our Court of Appeal has said that the Spousal Support Advisory Guidelines should not be departed from without good reason. The observations of the Court of Appeal in Slongo v. Slongo are particularly appropriate here:

As already mentioned, the Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support.[^8]

[87] Accordingly, I find that, for the purposes of calculating spousal support, the same amounts should be used for Mr. Dunn’s annual income as in calculating child support.

[88] Turning to Ms. Dunn’s income, I do not think it appropriate to calculate spousal support using the income figures for Ms. Dunn as canvassed above, namely, $2,836 in 2015, $4,269 in 2016, $16,862 in 2017, and $19,268 in 2018 – and I note that the bulk of the higher income figures in 2017 and 2018 were a result of RRSP withdrawals.

[89] I would simply note that, as reviewed above, there are significant gaps in Ms. Dunn’s employment history post-separation. For example, it appears Ms. Dunn was not gainfully employed between December 2014 and February 2017 – a period of more than two years.

[90] As set out above, s. 17(7)(d) of the Divorce Act stipulates that, in considering whether a spousal support order should be varied, the court should “in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.”

[91] In my view, this is not a case like Walsh v. Walsh, where the wife made essentially no attempt to become self-sufficient, and where the court observed that if the wife “spent as much time seeking employment as she does relentlessly pursuing [the husband] in court, she would now be employed and not in need of support.”[^9] That is clearly not the case here.

[92] That said, the gaps in Ms. Dunn’s employment history must cause one to question whether it can be said that she has made all reasonable effort to secure employment and to satisfy her self-sufficiency obligations under s. 17(7)(d). On the evidence before me, I am not satisfied that has occurred. Again, this is not a case where the support recipient has made no effort; however, most of the evidence that I heard involving Ms. Dunn’s efforts to apply for and obtain employment (i.e., the applications to Home Depot, Lowe’s Canada in Sarnia and in London, etc.), all occurred in January 2019 – just two months before the hearing.

[93] In my view, this is a case where it is appropriate to impute a minimum-wage income to Ms. Dunn for the purposes of calculating spousal support. The November 2014 variation order fixed Ms. Dunn’s self-employment income as a personal support worker in the amount of $19,968. I regard that figure as a minimum-wage income, and I find it appropriate to use that figure as an imputed income for Ms. Dunn.

[94] Put differently, while I have found there is merit in Ms. Dunn’s application to vary the spousal support order by having it reflect Mr. Dunn’s higher income, I do not think it appropriate to also vary the order to decrease Ms. Dunn’s income. In my view, Ms. Dunn’s employment circumstances have not materially changed since the time of the November 2014 variation order.

[95] As a result of these considerations, and even though I regard Ms. Dunn’s entitlement to spousal support to be grounded on a solid compensatory basis, I would fix the quantum of support on the low-end of the range. It is appropriate for the court to place limits on the quantum of support as an effective way of emphasizing the importance of the self-support obligations under s. 17(7)(d).

Should the order for spousal support be made with retroactive effect?

[96] While I have concluded that it is appropriate to make the child support variation retroactive to 2015, in my view, somewhat different considerations apply to the claim for retroactive spousal support.

[97] While my view is not changed that the court cannot countenance the behaviour of Mr. Dunn in not making timely income disclosure, the evidence of Mr. Dunn was to the effect that both parties did not fully comply with the disclosure obligations under para. 7 of the November 2014 variation order. As Mr. Dunn said in cross-examination, “she never gave me disclosure either.” That point was not pursued or contradicted in cross-examination, and certainly there was no evidence as to whether or when Ms. Dunn provided her own income disclosure. Accordingly, I accept Mr. Dunn’s evidence on this point.

[98] Further, the only evidence of a request for income disclosure from Mr. Dunn was Mr. Andari’s letter of September 29, 2016. In other words, this is not a case where there is a record of evidence that the wife was diligently pursuing the husband with repeated requests for updated income disclosure, all of which efforts were consistently dismissed or ignored by the husband.

[99] Moreover, there is an important distinction between the nature of child support and that of spousal support. It is one thing to say that a spousal support recipient has not diligently pursued the payor for income disclosure as might lay the foundation for an increased spousal support claim. Where the award is intended to support the recipient spouse, the recipient spouse is at liberty to decide for herself whether to diligently pursue a claim for increased support – or not at all.

[100] However, it is quite another thing where a parent does not make diligent efforts to pursue a claim for child support. Given the well-established principle that child support is the right of the child,[^10] a court should be careful not to allow the right of the child to child support to be defeated or impaired because a parent may not have pressed the claim diligently on the child’s behalf. In the case of spousal support, the decision of whether to take action and to what extent rests with the rights-holder; in the case of child support, it does not.

[101] In my view, such considerations persuade me that the claim for retroactive spousal support in the instant case should be treated differently than the claim for retroactive child support.

[102] I conclude that the variation of spousal support should not have retroactive effect beyond the commencement of proceedings in February 2017.

Conclusion

Support Issues

[103] For all of these reasons, a final order shall issue in accordance with the following terms:

a. The child support provisions of para. 1 of the order of Thomas J. dated November 17, 2014, are varied as follows:

i. The respondent, Richard Dunn (“Richard”), shall pay child support to the applicant, Joann Dunn (“Joann”), for the children of the marriage Sara Dunn, born June 25, 1996 (“Sara”), and Riley Dunn, born February 20, 2000 (“Riley”), in the amount of $3,636 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2015 annual income of $292,482, commencing January 1, 2015, and continuing on the first day of each month through and including August 31, 2015.

ii. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $2,317 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2015 annual income of $292,482, commencing September 1, 2015, and continuing on the first day of each month through and including December 31, 2015.

iii. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $2,451 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2016 annual income of $310,533, commencing January 1, 2016, and continuing on the first day of each month through and including April 30, 2016.

iv. Richard shall pay child support to Joann for the children of the marriage Sara and Riley in the amount of $3,842 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2016 annual income of $310,533, commencing May 1, 2016, and continuing on the first day of each month through and including August 31, 2016.

v. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $2,451 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2016 annual income of $310,533, commencing September 1, 2016, and continuing on the first day of each month through and including December 31, 2016.

vi. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $1,939 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2017 annual income of $241,386, commencing January 1, 2017, and continuing on the first day of each month through and including April 30, 2017.

vii. Richard shall pay child support to Joann for the children of the marriage Sara and Riley in the amount of $3,054 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2017 annual income of $241,386, commencing May 1, 2017, and continuing on the first day of each month through and including August 31, 2017.

viii. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $1,939 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2017 annual income of $241,386, commencing September 1, 2017, and continuing on the first day of each month through and including December 31, 2017.

ix. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $1,954 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2018 annual income of $241,000, commencing January 1, 2018, and continuing on the first day of each month through and including December 31, 2018.

x. Richard shall pay child support to Joann for the child of the marriage Riley in the amount of $1,954 per month, in accordance with the tables under the Federal Child Support Guidelines based on Richard’s 2018 annual income of $241,000, commencing January 1, 2019, and continuing on the first day of each month that follows until such time as Riley ceases to be a “child of the marriage” for the purposes of s. 2(1) of the Divorce Act.

xi. All child support for the child of the marriage Sara is terminated effective May 1, 2018.

b. The spousal support provisions of para. 2 of the order of Thomas J. dated November 17, 2014, are varied as follows:

i. Richard shall pay spousal support to Joann in the amount of $5,200 per month, based on Richard’s 2017 annual income of $241,386 and Joann’s imputed annual income of $19,968, commencing February 1, 2017, and continuing on the first day of each month through and including April 30, 2017, during which period Richard had child support obligations for only one child.

ii. Richard shall pay spousal support to Joann in the amount of $4,650 per month, based on Richard’s 2017 annual income of $241,386 and Joann’s imputed annual income of $19,968, commencing May 1, 2017, and continuing on the first day of each month through and including August 31, 2017, during which period Richard had child support obligations for two children.

iii. Richard shall pay spousal support to Joann in the amount of $5,200 [JPRH1] per month, based on Richard’s 2017 annual income of $241,386 and Joann’s imputed annual income of $19,968, commencing September 1, 2017, and continuing on the first day of each month through and including December 31, 2017, during which period Richard had child support obligations for only one child.

iv. Richard shall pay spousal support to Joann in the amount of $5,200 per month, based on Richard’s 2018 annual income of $241,000 and Joann’s imputed annual income of $19,968, commencing January 1, 2018, and continuing on the first day of each month through and including December 31, 2018, during which period Richard had child support obligations for only one child.

v. Richard shall pay spousal support to Joann in the amount of $5,200 per month, based on Richard’s 2018 annual income of $241,000 and Joann’s imputed annual income of $19,968, commencing January 1, 2019, and continuing on the first day of each month that follows.

c. In the recalculation of child and spousal support payable by Richard to Joann in accordance with this variation, Richard shall receive credit for all support payments made by him to the Director, Family Responsibility Office, in respect of his support obligations commencing January 1, 2015, and continuing thereafter, excluding any payments made on account of support arrears.

d. All other terms of the order of Thomas J. dated November 17, 2014, remain in full force and effect.

[104] I shall remain seized of any issue regarding the proper calculation of the amounts awarded under this order or any income taxation issue arising out of the retroactive variation.

Costs

[105] Costs should normally follow the event. Subrule 24(1) of the Family Law Rules[^11] provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.” The applicant wife here was successful on the variation application and is presumptively entitled to her costs.

[106] Further, my presumptive view of the matter is that, as the sole issues on the application related to support, the costs of the hearing should be considered to be a “support order” as contemplated by s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996,[^12] and, as such, should be made enforceable as support by the Director, Family Responsibility Office. However, I will receive the parties’ submissions on that point before making a final determination.

[107] That said, I fully expect counsel for the parties will be able to resolve the issue of costs.

[108] However, if the parties are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the formatting standards of rule 4.01 of the Rules of Civil Procedure[^13] and the following schedule:

a. The applicant shall deliver her submissions within twenty (20) days following the release of these reasons;

b. The respondent shall deliver his submissions within twenty (20) days following service of the applicant’s submissions;

c. The applicant shall deliver her reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the respondent’s submissions; and

d. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

J. Paul R. Howard

Justice

Released: October 3, 2019

CHATHAM COURT FILE NO.: FS-09-11184-0002

DATE: 20191003

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOANN DUNN

Applicant

– and –

RICHARD DUNN

Respondent

REASONS FOR judgment

Howard J.

Released: October **, 2019

[^1]: Further, the parties should know that in the course of my deliberations, I have reviewed the digital audio recording of the entire proceedings at trial. [^2]: Federal Child Support Guidelines, SOR/97-175 ("Guidelines"), s. 16, and see Schedule III, s. 3(a). I appreciate that Ms. Dunn’s income is relevant really only for purposes of spousal support, not child support. However, the starting point for determining income for spousal support purposes is the definition of income under the Guidelines. "Those guidelines and the CSGs are virtually identical: see Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641 (Ont. C.A.), at para. 53," quoted in Halliwell v. Halliwell, 2017 ONCA 349, 138 O.R. (3d) 671, 90 R.F.L. (7th) 253, at para. 90. [^3]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [^4]: See Identification and Placement of Exceptional Pupils Regulations, O. Reg. 181/98, s. 6. [^5]: Walsh v. Walsh, 2006 20857 (ON SC), [2006] O.J. No. 2480, 29 R.F.L. (6th) 164 (S.C.J.), at paras. 14-16; reversed on other grounds, 2007 ONCA 218, 36 R.F.L. (6th) 262; leave to appeal to the S.C.C. refused, [2007] S.C.C.A. No. 239. [^6]: Colucci v. Colucci, 2017 ONCA 892, 138 O.R. (3d) 321, 2 R.F.L. (8th) 1, at para. 26, citing Simone v. Herres, 2011 ONSC 1788, [2011] O.J. No. 1626 (S.C.J.), at para. 27. [^7]: Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008). [^8]: Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, 89 R.F.L. (7th) 27, at para. 105. See also McKinnon v. McKinnon, 2018 ONCA 596, at para. 24. [^9]: Walsh v. Walsh, at para. 26 and see paras. 40-44. [^10]: See, for example, S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, 31 R.F.L. (6th) 1, at para. 38; P. (P.) v. D. (D.), 2017 ONCA 180, 137 O.R. (3d) 138, 90 R.F.L. (7th) 1, at para. 61; Colucci v. Colucci, at para. 26; and P. (S.) v. P. (R.), 2011 ONCA 336, 1 R.F.L. (7th) 269, at para. 67. [^11]: Family Law Rules, O. Reg. 114/99. [^12]: Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 1(1)(g). See also de Somer v. Martin, 2012 ONCA 908, 22 R.F.L. (7th) 297, at para. 1. [^13]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.