M.R. v. H.T.L., 2020 ONSC 2308

Court File and Parties

COURT FILE NO.: FC-13-2061-9 DATE: 2020-04-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.R. Applicant/Respondent – and – H.T.L. Respondent/Moving Party

Counsel: Self-represented (for M.R.) Self-represented (for H.T.L.)

HEARD: February 25, 2020

DECISION ON MOTION TO VARY

JUSTICE SALLY GOMERY

1M.R. and H.T.L. were married in 1992 and separated in 2006. Seven years later, Ms. R. applied for a divorce. In January 2016, after hearing evidence and argument over four days, Justice Robertson granted a divorce and made orders with respect to the parenting of the parties’ two children, now sixteen and twenty years old, child support, s. 7 expenses, spousal support and the equalization of family property.

2In April 2019, Mr. L. served this motion to vary the January 2016 order under s. 17 of the Divorce Act, RSC 1985, c 3 (2nd Supp). He seeks a reduction in child support and his contribution to special and extraordinary expenses for the children. He also seeks a termination of spousal support and claims half of the proceeds of the sale of the matrimonial home in 2012.

3In response, Ms. R. also seeks to vary the January 2016 order to increase the amounts that Mr. L. must pay for child support and s. 7 expenses. She also seeks repayment of money mistakenly reimbursed to Mr. L. by his insurer for dental expenses for S, and a finding that Mr. L. is in contempt of various past orders.

4For the reasons that follow, I find that there have been material changes in the circumstances of the parties and their children since the order was made in January 2016, and that the order should be varied to reflect adjustments to child support and Mr. L.’s contribution to special and extraordinary expenses, and the termination of spousal support. Although Ms. R. is entitled to an order requiring Mr. L. to pay to her the reimbursement he received from his insurer for insured dental services, I am not granting the other orders sought by the parties.

Background

5Ms. R. and Mr. L. were married on October 25, 1992. They did not live together prior to their marriage. They have two children: S, now 20 years old, and D, now 16 years old. [1]

6Ms. R. and Mr. L. separated on March 1st, 2006. Following the separation, they successfully co-parented their children for seven years. This arrangement fell apart in 2013, and the parties engaged in a bitter dispute until Ms. R.’s application was heard in January 2016. In the meantime, Mr. L. paid child support, s. 7 expenses and spousal support pursuant to a temporary order made in May 2014.

7In a final order issued on January 22, 2016 following a short trial, Justice Robertson ordered Mr. L. to pay child support in the amount of $1709 per month and to contribute an additional $300 monthly to the children’s special and extraordinary expenses. This was based on a calculation of 60% as his proportionate share of these expenses, based on the parties’ income at the time. She also ordered Mr. L. to pay spousal support to Ms. R. as of February 1st, 2016, in the amount of $250 per month, subject to a determination that the year 2019 would constitute a material change in circumstance.

8S and D live with their mother. S is completing his second year of an electrical engineering program at the University of Ottawa. D is in high school. The children have minimal contact with their father. Mr. L. has remarried and has another child who is now five years old.

9Mr. L. brought a motion to vary the January 2016 order in September 2016. This was dismissed in July 2017. He brought a further motion, a copy of which is no longer in the court file, that was dismissed in September 2017.

10Mr. L. and Ms. R. are now both in their early fifties. Both work outside the home. Ms. R. is a federal civil servant. Her current yearly income is $86,842, almost $9000 more than she earned in 2014. [2] Mr. L. works for a software company. He earned $123,168 in 2018, a few hundred dollars less than he earned in 2014.

Child Support

11Further to s.17 of the Divorce Act, a court may vary a child support order if it is satisfied that a change of circumstances has occurred since it was made. Section 14 of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) states that a relevant change of circumstance includes a change that would result in a different child support order being made based on the table amounts.

Is S still dependent?

12Mr. L. argues that his child support payment should be calculated based on support for only one child, the parties’ daughter D, because their son S is no longer a minor. Although S is still a full-time student, applying the factors set out in Farden v. Farden (1993), 48 R.F.L. (3d) 60, at pp. 64-65, Mr. L. says that he should no longer be entitled to support. He argues that S’s career plans are unrealistic, because he has not been able to pass courses he needs to complete to obtain a degree in electrical engineering.

13According to S’s university transcript, S failed an introductory algebra course twice before obtaining a passing grade in it after taking it for a third time. As a result, he had to take classes in the summer of 2019. S likewise failed to complete first year calculus on his first attempt but earned a “D” grade in it on the second try. He has since received a passing grade in second year calculus. His other first semester marks were all abysmal. There has been some improvement since, but as of January 2020 he remained on academic probation.

14S clearly struggled in the first year of the electrical engineering program. Mr. L. has not however persuaded me that S is wasting his time by remaining in university. S earned an admissions scholarship of $1000 in Fall 2018. Despite setbacks in first year, his more recent transcript shows that his persistence has paid off. If S continues to fail core courses in the electrical engineering program, he will have to either switch into another program or drop out and enter the job market. For the time being, however, I conclude that S remains dependent and is entitled to financial support from his father.

Should the amount of child support be varied?

15Effective November 22, 2017, the table amount of child support payable for two children was increased to $1755. Ms. R. argues that Mr. L. should have to pay this amount retroactive to January 1st, 2017. I do not accept this argument, since there is no reason why he would have to pay the increased amount prior to the adjustment of the Guidelines.

16In my view, my order should reflect the process contemplated in the January 2016 order for adjustments of child support over time. In the order, the parties were required to exchange tax returns every year so that the child support amount could be adjusted as of July 1st. Had they done so, the monthly amount payable by Mr. L. would have been adjusted to the current amount of $1755 in mid-2018.

17Mr. L. argues that he should pay less than the table amount because he is currently unable to give his youngest son, B, the same standard of living as his half-siblings enjoy. Unfortunately, Mr. L. has not provided any information about the employment or earning capacity of his current spouse. I therefore cannot find that the table child support amount causes undue hardship under s.10 of the Guidelines.

18I furthermore do not find that S’s age, in of itself, justifies a reduction of the child support payable. In my view, his age and accompanying ability to earn an income on a part-time basis does have an impact on the assessment of his father’s contribution to s. 7 expenses. I cannot conclude that S is capable of supporting himself while attending university on a full-time basis. He is still, in that sense, fully dependent on his parents.

19I accordingly order that Mr. L. pay $1755 a month in child support for S and D, retroactive to July 1st, 2018. He accordingly owes arrears of child support of $1012 to April 30, 2020. [3]

Special and Extraordinary Expenses

20In her January 2016 order, Robertson J. recognized the following expenses as special and extraordinary expenses to which Mr. L. must contribute under s. 7 of the Guidelines:

• Horseback riding expenses for D, excluding the cost of shows, as well as the cost of four weeks of summer riding school for her;
• Hockey expenses for S “excluding tournaments”, as well as two weeks of summer camps for him;
• Medical/psychologist expenses and orthodontics, driver’s education, tutoring, and “other normal school and section 7 expenses” for both children.

21Robertson J. calculated that Mr. L.’s proportionate share of s. 7 expenses in 2016 was 60%, based on the parties’ respective employment income at the time, and ordered him to pay $300 per month as of June 1st, 2014 as his contribution. She directed Ms. R. to provide receipts for section 7 expenses twice a year via email to Mr. L. and to advise him by email if the child changes activities from hockey or horseback riding.

22Mr. L. seeks the termination of his obligation to make s. 7 payments as of July 1st, 2018. In the alternative, he seeks a reduction of his contribution to $100 as of either July 1st, 2018 or June 1st, 2019. Ms. R. seeks an increase in s. 7 expenses to $550 per month, primarily to cover the costs of S’s attendance at university.

Analysis

23Section 7(1) of the Guidelines provide that a court may order a parent to pay a child’s special and extraordinary expenses, “taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”. The guiding principle in setting the amount is that it should be shared by the spouses in proportion to their respective incomes “after deducting from the expense the contribution, if any, from the child”; s. 7(2).

24Specific eligible expenses are listed in the Guidelines. They include expenses for post-secondary education and uninsured health-related expenses. They also include so-called “extraordinary” expenses for primary and secondary school education, for any other educational programs that meet a child’s particular needs, and for extracurricular activities.

25The parties agree that there has been a material change in circumstances that affects the assessment of s. 7 expenses to which Mr. L. must contribute. When the order was made, D was still in elementary school and S was in high school. Their activities, and the expenses associated with them, have changed. Ms. R.’s income has also increased while Mr. L.’s income has not. A reassessment of the monthly amount payable and Mr. L.’s proportionate share is therefore appropriate.

26Mr. L. argues that his monthly s. 7 amount should be varied – in fact, eliminated completely – based on his overall financial situation, including his lack of any significant assets and his obligation to support his youngest child. I do not accept this argument. Mr. L. is earning the same income now as he did in 2016. The evidence regarding his net financial worth, when compared with that of Ms. R., may be relevant to his ongoing obligation to pay spousal support. I do not however find that Mr. L. lacks the means to continue to contribute to s. 7 expenses for S and D.

27I will deal first with expenses s. 7 expenses claimed for S., then expenses claimed for D. Based on my findings, I will then determine whether the January 2016 order should be varied.

S.’s expenses

28Since I have already concluded that S remains dependent on his parents, I reject Mr. L.’s argument that he has no obligation to contribute to S’s university expenses. I am however unable to accept Ms. R.’s calculation of those expenses.

29The onus is on a parent seeking special expenses to prove that the claimed expenses fall within one of the categories and are reasonable and necessary: Park v. Thompson 2005) 601 (C.A.). Ms. R.’s submissions on S’s university expenses are inconsistent and largely unsupported by the evidence.

30In her July 29, 2019 affidavit, Ms. R. stated that S’s first year tuition cost was $11,452, and that she incurred additional expenses of $2612 for summer school and $2024 for a laptop computer, for a grand total of $16,088. She said that, as of August 2018, $52,671 had been saved in a Registered Education Savings Plan (RESP), half of which she intends to use for S’s post-secondary education. Ms. R. stated in the July 2019 affidavit that she had withdrawn $12,000 from the RESP to cover S’s first-year expenses, and that S had contributed $2500 of summer employment income. This left an amount of $1588 in s. 7 costs to which Mr. L should contribute.

31In her oral submissions to the court and in her factum on the motion, the expenses claimed by Ms. R. for S’s first-year university costs have inexplicably increased. She now says that S’s tuition in 2018/19 was $13,556, and summer school was $2685, for total costs of $18,265. She also now claims that she withdrew $12,800 from the children’s RESP over this period. Taking these changes into account, she contends that S’s first year tuition and other university costs total $3765.

32Ms. R.’s forecast of S’s expenses over the next four years has likewise climbed, without explanation, since July 2019. Ms. R.’s current position is that S’s tuition in 2019/20 and 2020/21 will be $13,556 each year, and that the associated s. 7 expenses will be $4056 each year. She contends that eligible s. 7 expenses will increase to $11,056 annually in 2021/22 and 2022/23, because she will by then have exhausted S’s share of the RESP funds.

33The documents that Ms. R. has filed relevant to S’s university costs do not support her submissions about the expenses she has incurred to date. The relevant evidence is as follows:

• A statement of account from the University of Ottawa issued in September 2018 showing that, because S had an entrance scholarship and government loans and grants, Ms. R. only had to pay $893 in tuition for his first semester.
• An updated version of the 2019 Winter term statement, not produced as an exhibit to Ms. R’s affidavit addressing S’s university costs but buried in a pile of receipts, showing that the amount that Ms. R. had to pay for his second semester was likewise reduced by the balance of S’ entrance scholarship and further government loans and grants, leaving a balance of $2049.
• A third statement of account from the university dated August 2019 showing an amount of $2612 due and payable for the Spring/Summer term.

34No receipt for the purchase of a $2000 laptop computer for S has been produced. There is a receipt from Best Buy for $192.09 in November 11, 2019, but a handwritten note on it indicates that the purchase was for D.

35Based on this evidence, I conclude that S’s tuition and fees from September 2018 to the end of August 2019 totaled $5554, rather than $18,265 as claimed by Ms. R.

36Ms. R. also stated, in her supplemental affidavit dated February 14, 2020, that she had incurred almost $40,000 in special and extraordinary expenses for S and D in the period from 2016 to 2019. I have carefully reviewed all of the records produced, which include many duplicates, and will have more to say about them later. For now, I note that there are only two documented expenses, aside from tuition, that she apparently incurred in relation to S’s attendance at university in 2018/19:

• $135 for a shirt purchased in August 2018 showing that S was in the electrical engineering program; and
• Approximately $117 per month for a bus pass in May, June and July 2019, for a total expense of $350, so that S could attend courses over the summer.

37The evidence filed therefore supports additional university expenses of $500 in 2018/19.

38Taking this into account, the grand total of S’s first year costs, including tuition, fees and expenses not covered by his scholarship, government grants or loans, was $6054.

39I am also unable to accept Ms. R.’s allegations about withdrawals from the RESP. According to a September 2018 statement from Quadrus, the RESP fundholder, Ms. R. withdrew $6800 on September 17, 2018. There is no documentation of any further withdrawal for the period of September 2018 to September 2019, even though Ms. R. was ordered, on August 29, 2019, to produce proof of any withdrawals from the RESP for the period of May 2018 forward. I must therefore reject her affidavit evidence in July 2019 that she withdrew $12,000 for S’s first year university expenses, and her claim at the hearing that she withdrew $12,800 during this same period.

40Beyond the fact that the allegations about these withdrawals are not supported by any evidence, it is difficult to understand why Ms. R. would have withdrawn $12,000 or $12,800 from the RESP in 2018/19. Based on the statement of accounts she received from the university in September and November 2018, this was far more than would have been required for S’s first year tuition and fees, even taking into account the extra expense of summer school. In addition to being unnecessary, this level of withdrawal would deplete the RESP of 25% of all money available for the children’s post-secondary education.

41Ms. R. has provided no explanation of how she used the RESP funds. This money was clearly not required for S’s tuition or other university expenses. Mr. L. has been paying child support and s. 7 expenses for both S and D as ordered in January 2016. I must reluctantly conclude that some of the amounts withdrawn from the RESP – whether $6000 or $12,000 or $12,800 - were used for purposes other than S’s first-year university costs.

42I also find that S should reasonably have contributed more than $2500 to help pay for his first-year university costs.

43Section 7(2) of the Guidelines says that a parent’s contribution to s. 7 expenses should be set after deducting the child’s contribution, if any. In Lewi v. Lewi, [2006] OJ No 1847, 80 OR (3d) 321, at para. 47, the Court of Appeal held that an adult child “has an obligation to reasonably contribute to his or her post-secondary education expenses”. This obligation does not require the child to pay for all expenses, where the parents have an ability to contribute to them. A child’s reasonable contribution varies depending on the circumstances.

44S’s notice of assessment for 2018, shows that he earned a total income of $10,051. According to Ms. R.’s July 29, 2019 affidavit, $4000 of this income was taxable funds withdrawn from the RESP. His employment earnings were therefore $6050.

45Ms. R. says that S’s reasonable share of his first-year costs is $2500. She does not explain why she believes this is reasonable.

46Few young Canadians attending university or college have the luxury of retaining most of the income they earn over the summer or in part-time work for discretionary spending. Although both of S’s parents earn a decent income, they each have debts. S applied for, and received, government subsidies through grants and loans. The establishment of an RESP reflects that S’s parents hoped that he would pursue post-secondary education, but recognized that the associated ongoing costs might well exceed their cash-flow.

47S earned over $6000 in 2018. In her July 2019 affidavit, Ms. R. says that he purchased his own books, but does not say how much they cost. There is no evidence that he pays rent, contributes to the cost of food or other ongoing household expenses, or even pays for any of his personal expenses, such as clothing. In fact, based on Ms. R.’s own claims about expenses she has incurred, she continues to pay for personal expenses such as his bus pass.

48In these circumstances, I conclude that it is reasonable that S would have contributed two thirds of his income in 2018 or $4000 to pay the expenses of his first year of post-secondary studies, in addition to the contribution of his $1000 scholarship and his purchase of books.

49Based on this finding, and the findings I have made about the actual first-year university costs, neither Ms. R. nor Mr. L. should have had to bear any special expenses for S’s first year in university. I have already found that his total university-related expenses from September 2018 to August 2019 totaled $6054. If S contributed $4000 from his earnings, Ms. R. could have covered the rest through a modest withdrawal from the RESP. Assuming that half of the RESP was allocated to S, this would have left over $24,000 his expenses for the remaining three or four years of his undergraduate degree. [4]

50With respect to second year expenses, the only record that Ms. R. has produced is a copy of a cheque for $3000 to the University of Ottawa dated November 28, 2019. She has not produced a statement of account from the university for S’s second year. She has not produced a statement of account from Quadrus substantiating the further $7000 withdrawal she claims to have made from the RESP. She has also not filed any evidence regarding S’s employment earnings in 2019, although in her July 2019 affidavit Ms. R. says that he worked full-time part of the summer and expected to work part-time during the upcoming hockey season.

51In her factum, Ms. R. states that she paid $13,556 in tuition and fees for S in 2019/20. I do not believe this. Similar figures Ms. R. presented for first year costs were contradicted by the statements of accounts from the university. S would presumably continue to be entitled to some government funding in his second year. The amount of the cheque Ms. R. wrote to the university in November 2019 suggests that this is so.

52I conclude that Ms. R.’s calculations with respect to S’s university expenses in 2018/19 and 2019/20 are simply unreliable. As a result, I can place no weight on her evidence about what she has spent to date or her forecast of the expenses that she will incur over the next three years. The evidence that is before me shows that tuition and fees not covered by loans and bursaries could have been covered by S’s earnings and a modest RESP withdrawal from the RESP, without Ms. R. paying anything. Ms. R. has therefore not met the onus of proving any special and extraordinary expenses in connection with S’s post-secondary studies.

53I am aware that this conclusion may have some real consequences for S. Since S had to attend summer school in 2019, he likely did not earn the same income that year as in 2018. Based on the evidence before me, however, most of his share of the RESP designed to provide this support – over $26,000 – should have remained available, as of September 2019. The depletion of the RESP appears to be due to Ms. R.’s use of these funds for purposes other than paying tuition and fees. This was obviously outside the control of Mr. L. who was presented with a fait accompli.

54What about other s. 7 expenses that Ms. R. may have incurred for S in 2018 and 2019? Aside from expenses already mentioned, Ms. R. has documented the following expenditures since S graduated from high school:

• An additional premium of $876 paid annually by Ms. R. to have S as an additional driver on her automobile policy (not $110 per month for a total of $1320, as stated in her factum);
• the cost of S’s gym membership;
• a monthly plan for a mobile phone for S; and
• an orthodontic consultation ($160) and a dispensing fee for a prescription ($20). [5]

55Aside from the medical and drug costs, I cannot conclude that any of these expenses fall within the definition of special and extraordinary expenses in s. 7 of the Guidelines.

56The additional insurance premium could be an eligible expense if S had to drive the family car to attend university or earn an income. S’s tuition to the University of Ottawa in 2018/19, however, included the cost of a bus pass for the regular academic year. Ms. R. has also claimed the cost of a bus pass for S in May, June and July 2019, so that S could attend summer school. I therefore conclude that S does not use the family car to attend classes. There is also no evidence that he needs a car on a regular basis for any other purpose, such as getting to a job.

57A gym membership may be a convenient way to help stay in shape, but it is not a special expense required by S’s particular talents, aptitudes or needs. It is also unclear why S would need to get a private gym membership when, as a full-time student, he would be entitled to use the university’s athletic facilities.

58Even if it were reasonable to find that a cellphone was a required accessory for a twenty year-old student, for educational purposes or otherwise, the TELUS monthly account statements produced by Ms. R. are incomplete and do not indicate what, if any, amounts relate to a phone used by S.

59The uninsured medical and dental costs for S were less than $200 over a two-year period. Although Ms. R.’s income has increased since 2016, she continues to earn about 42% of the income earned by Mr. L, and a 60/40 split of s. 7 expenses continues to be appropriate. Mr. R.’s share of this expense would therefore be $5 monthly.

D’s expenses

60In her factum, Ms. R. claims the following s. 7 expenses for D, going forward:

• $160 monthly for orthodontics;
• $300 monthly for riding lessons;
• Unspecified costs for a cell phone; and
• Unspecified costs of a bus pass.

61Ms. R. also indicates that, at some point this year, D will be insured as an additional driver on the family car. She does not say whether the premium will be the same as that charged for S.

62The stack of receipts and other documents filed by Ms. R. shows that she incurred the following expenses for D in 2018 and 2019:

Expenses in 2018	Annual cost	Cost per month
Orthodontics	$1944	$162
Horseback riding lessons	$3425	$285
Misc school expenses	$297	$25
Eye exam	$35	$3
Total:	$5701	$475

Expenses in 2019	Annual cost	Cost per month
Orthodontics	$1944	$162
Drivers’ education	$499	$42
Misc school expenses	$160	$13
Massage therapy	$110	$9
Tutoring	$345	$29
Private riding lessons	$978	$111
Total:	$4036	$336

63All of these expenses were captured by the January 2016 order. Mr. L.’s contribution, calculated as 60% of the cost, should have amounted to $285 per month in 2018 and $209 in 2019.

64Ms. R. has not provided any receipts for the purchase of a bus pass for D or advised how much she has spent for any transportation costs or whether some of this cost is subsidized by the school board. She has not provided an estimate of the additional premium if D is added to her automobile policy or indicated why she thinks this should qualify as a special and extraordinary expense under s. 7. She has filed some TELUS account statements but has provided no information about what documented cell phone costs, if any, are attributable to her daughter.

65On this record, I cannot conclude that the costs of a bus pass or a cell phone or the additional insurance premium qualify as s. 7 expenses to which Mr. R. should contribute. Even if I could, I would have no reliable evidence on which to estimate his share of these costs.

66I am also not prepared to accept Ms. R.’s claim that D continues to require orthodontic treatment in 2020. Although this motion was heard in late February 2020, Ms. R. did not produce, as attachments to her supplemental affidavit prepared a few days before, any evidence that D is still seeing an orthodontist each month. I am not prepared to accept Ms. R.’s bald assertion about the ongoing cost of orthodontics given the length of time that D has been receiving orthodontic treatment and the blatant inaccuracies in Ms. R.’s evidence on her expenses generally.

67I conclude that Mr. L.’s appropriate contribution to D’s s. 7 costs in 2019 was $209 each month. As of January 1st, 2020, I find that this amount should be reduced to $100 each month. This reflects the continuation of all of D’s current expenses minus the one-time cost of driver’s education and the orthodontic cost.

68If D pursues post-secondary education, she may need some financial assistance from Mr. L beginning in 2022/23. A determination on this point is impossible to make at this time. I could make an order setting out how D’s future expenses could be allocated but, based on her track record in email correspondence and before this court, I have no confidence that Ms. R. would provide accurate information to Mr. L or a level of cooperation that would allow them to work together. A better solution would be the restoration of direct communication between Mr. L. and the children, who are certainly old enough to communicate directly with their father.

Conclusions on s. 7 expenses

69I conclude that the January 2016 order should be varied to reduce the monthly amount that Mr. L. should pay for s. 7 expenses. The amount is reduced to $214 per month effective January 1st, 2019, to cover S’s expenses of $5 per month and D’s expenses of $209. Mr. L.’s contribution to s. 7 expenses is further reduced to $100 per month effective January 1st, 2020.

70Since Mr. L. has been paying $300 per month for s. 7 expenses, he is entitled to a reimbursement of $1032 for 2019 and $800 to April 30, 2020, for a total of $1832.

71Mr. L. claims that he is entitled to a larger refund. He argues that Ms. R. has consistently failed to document eligible s. 7 expenditures of at least $6000 each year, the amount that would justify his payment of $300 month based on a 60% contribution.

72I find, on the record before me, that Ms. R. has not fully complied with the January 2016 order to email receipts to Mr. L. twice a year. Based on the documents filed for the purpose of this motion, there is some basis for Mr. L.’s contention that he contributed disproportionately to the children’s expenses in 2016 and 2017. On the records produced, Ms. R. incurred eligible expenses of $4992 in 2016 and $3720 in 2017. [6] Documented expenses in 2018 exceeded $6000, but then dropped back down to $4392 in 2019, once expenses that are not eligible s. 7 expenses are excluded.

73A motion to vary is not, however, an invitation to relitigate issues determined by the trial judge. A variation in a final order may only be made if the moving party shows that there has been material change. The children’s needs did not evolve significantly until 2018, when S graduated from high school. In that year, Ms. R. documented expenses that justify the amount that Mr. L. was paying.

74I conclude, as a result, that no retroactive adjustment to s. 7 expenses payable by Mr. L. prior to January 1st, 2019.

Spousal Support

75The January 2016 order required Mr. L. to pay $250 each month in spousal support commencing February 1st, 2016. It further provided that:

The order for spousal support may be varied upon a material change in circumstances. [Ms. R’s] return to full-time employment from her disability income is not a material change in circumstance. The year 2019 is a material change in circumstance and this may generate a review of spousal support.

76Mr. L. seeks termination of spousal support as of January 1st, 2017 or, in the alternative, as of January 1st, 2019. He contends that there has been a material change based on the passage of time and the parties’ current financial situations. Ms. R. opposes any change in spousal support.

Has there been a material change?

77Section 17(4.1) of the Divorce Act deals with variations of spousal support orders. Before varying spousal support in this case, I must satisfy myself 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”.

78The passage of time, in this case, constitutes a material change in circumstance that triggers a potential reduction or termination of spousal support. There are two reasons for this. First, Robertson J. declared, in her order, that the year 2019 would result in a material change. Second, as of 2019, Mr. L. and Ms. R. had lived apart (fourteen years) longer than they cohabited (thirteen years).

Should spousal support be reduced or terminated?

79Having regard to the objectives of varying support in s. 17(7) of the Divorce Act, I find that spousal support should be terminated effective January 1st, 2019.

80The objectives of varying support are set out at s. 17(7). Terminating spousal support is consistent with each of them.

(a) The evidence shows that Ms. R. has not suffered any economic disadvantage as a result of the marriage or its breakdown

81Neither party provided me with a transcript of Justice Robertson’s oral at the conclusion of the January 2016 trial. Ms. R.’s submissions reflect her understanding that the payment of spousal support was intended to compensate her for an economic disadvantage that she suffered as a result of the marriage or its breakdown.

82Assuming this to be the case, the evidence does not show that Ms. R. continues to be economically disadvantaged as a result of the marriage or the breakdown of the marriage.

83According to Ms. R.’s April 2019 financial statement, she owns two properties with a total value of $744,000 and a pension fund valued at over $685,000. Altogether she has assets valued at about $1.6 million. She has mortgages, credit card debt and other debts of $585,000, resulting in a net worth of over $1 million.

84Ms. R. nonetheless argues that she has suffered an economic disadvantage as a result of the breakdown of the marriage in four ways. First, in her affidavit dated February 14, 2020, Ms. R. describes how she struggled financially prior to January 2016 due to Mr. L.’s initial refusal to pay meaningful support. Second, she contends that she has paid amounts for the children’s expenses that far exceed Mr. L.’s contribution in child support and s. 7 expenses, and that the involvement of the Family Responsibility Office shows that he has never willingly paid any support. Third, she criticizes his refusal to tell the school board that S lived with him so that he could attend a school in his district, contending that this forced her to borrow money from her mother to buy a second residential property in the district. Finally, she alleges that Mr. L. has never accounted for shares he acquired in June 2014 in Kinaxis, a local tech company.

85I do not place any weight on Ms. R.’s allegations about events prior to the January 2016 order. Mr. L. paid any and all arrears of child support and spousal support years ago.

86With respect to the second argument, I have already concluded that Ms. R.’s evidence about her expenses is unreliable. It is furthermore irrelevant that Mr. L.’s support payments are enforced by the Family Responsibility Office.

87On the issue of the share ownership, on August 29, 2019, Mr. L. was ordered to provide evidence of his ownership of the Kinaxis shares from January 2017 to date. In an affidavit dated November 20, 2019, Mr. L. stated that he sold the shares prior to the divorce. There is no evidence to contradict this. Ms. R. alleges that Mr. L’s affidavit is inconsistent with his testimony about the shares at the January 2016 trial, but has not produced a transcript. In any event, since evidence was apparently led about the Kinaxis shares at trial, I must assume that Robertson J. took any relevant testimony into consideration.

88Finally, I reject Ms. R.’s argument that Mr. L. unreasonably refused to tell the school board that S’s primary residence was with him. She asked him to lie. Ms. R. may have thought that her desire to have S attend a specific school justified such deceit. It was however perfectly legitimate for Mr. L. to refuse to misrepresent the situation to the school board. In any event, there is no evidence that Ms. R. has been disadvantaged financially as a result of her purchase of a second property. Although her mortgage loan has increased slightly over time, she has equity that she would not otherwise have had. On the evidence before me, the purchase was a good investment.

89I conclude that Ms. R. has been fully compensated for any economic disadvantage as a result of the breakdown of the marriage or the marriage.

(b) Mr. L.’s payment of child support and s. 7 expenses has resulted in a reasonable apportionment of the financial consequences arising from the care of S and D.

90On the evidence I have already reviewed, Mr. L. has contributed his reasonable share of the financial consequences arising from the care of the parties’ children.

(c) Ms. R. is not suffering from any economic hardship arising from the breakdown of the marriage

91Ms. R.’s sole custody of the children has not, on the evidence, resulted in economic hardship. She has not provided any other evidence of economic hardship.

(d) The termination of spousal support, which has now been paid for as many years as the parties lived together, promotes the economic self-sufficiency of Ms. R. within a reasonable period of time.

92Ms. R. submits that, although she and Mr. L. separated in 2006, they remained financially interdependent until 2012, when they sold the family residence. She contends, as a result, that their financial relationship lasted twenty years (from 1992 to 2012) and she has had only eight years to achieve financial independence. On this basis she argues that it is premature to terminate spousal support.

93Even if I accepted Ms. R.’s argument about the distinction between the parties’ separation as a couple and their separation as a financial unit, there is no hard and fast rule that spousal support should last the same number of years as the relationship that gives rise to it. The appropriate length of time that support should be paid depends on the facts of each case.

94On the facts of this case, I cannot conclude that Ms. R. requires any more time to achieve economic self-sufficiency. Her income has increased by roughly 10% since the divorce. She has accumulated considerable net worth. She has a pension as well as real estate investments.

95I must also consider Mr. L.’s ability to achieve economic self-sufficiency. He currently owns no real estate and no investments. Although he is now in his early fifties, he has no pension and no money saved for retirement. He has debts of $51,500. According to his financial statement, his only meaningful asset is $480,000 that he says that Ms. R. owes to him, to account for the proceeds of the sale of the home they owned jointly during the marriage. This is an unliquidated and unproved claim.

96Ms. R. alleges that any financial difficulty that Mr. L. is facing is due to his own lifestyle choices. She points out that Mr. L. has failed to disclose what financial contribution, if any, Mr. L.’s current spouse makes to his household and argues that I should impute income to her.

97I agree that Mr. L. should have provided information about the financial contribution of his spouse and her two adult children, who live with them. There is however no evidence that Mr. L. is understating his own assets.

98In my view, the trial judge’s decision to deem 2019 as a material change of circumstance, for the purpose of spousal support, is highly significant. She heard evidence with respect to the parties’ circumstances from the date of separation and concluded that a reassessment of Ms. R.’s entitled to spousal support would be appropriate after four years.

99I find that the termination of spousal support as of January 1st, 2019 promotes both parties’ economic self-sufficiency within a reasonable period of time.

Conclusions on spousal support

100Having found that spousal support should terminate retroactive to January 1st, 2019, I also conclude that Mr. L. is entitled to repayment of the $4000 in support he paid from that date to April 30, 2020.

Other Issues

Dental and medical costs for the children

101Ms. R. seeks repayment of $635 which Mr. L. received from his insurer, Great-West Life, to pay for dental work for S. In October 2018, S underwent dental surgery, which Ms. R. paid for. She submitted a claim to Great West Life, who sent Mr. L. a cheque for $635. Mr. L. acknowledges that he should have transferred this money to Ms. R., and in fact made an unconditional offer to do so in November 2019.

102I order Mr. L. to repay $635 to Ms. R. Since she pays the up-front costs of all insured medical and dental expenses for the children, I furthermore order Mr. L., within 30 days of this decision, to direct his insurer in writing to remit directly to Ms. R. any future reimbursements for the children’s insured dental and medical expenses, and to provide a copy of this direction to Ms. R.

103Ms. R. also seeks an order requiring Mr. L. to pay his proportionate share of all future non-insured dental expenses for the children. I am unwilling to make the broad order requested by Ms. R., because she has not consistently or reliably documented the children’s expenses. Should either S or D require further uninsured dental work, Ms. R. shall advise Mr. L. about it and seek his commitment to contribute 60% of the cost, which consent he shall not reasonably withhold. If he consents, Ms. R. shall provide Mr. L. with a receipt showing the amount paid, and he shall reimburse her for 60% of the cost.

Net sale proceeds of the house

104In the January 2016 order, Justice Robertson excluded the sale proceeds from her calculation of net family property:

The value of the matrimonial home and mortgage debt is excluded from the calculation of the net family property, as the parties sold the jointly owned matrimonial home after separation and jointly instructed their lawyer to deposit the proceeds into a joint account. The parties agreed to deal with it at the sale value in 2012.

105Mr. L. alleges that, on July 26, 2012, Ms. R. withdrew $184,100 from the parties’ joint account and used it for her own purposes. He seeks repayment of this amount.

106Since Robertson J. determined that the proceeds from the sale of the house were not net family property, Mr. L.’s claim, if any, would have to be made in the context of a lawsuit against Ms. R. for breach of contract or unjust enrichment. I cannot deal with it in the context of a motion to vary.

Mr. L.’s compliance with past court orders

107Ms. R. seeks an order that Mr. L. is in contempt for failure to comply with court orders regarding the Kinaxis shares and the October 2018 claim to Mr. L.’s insurer for reimbursement of the costs of S’s dental treatment.

108Mr. L. has complied with the order made last summer with respect to the Kinaxis shares.

109With respect to the dental claim, my review of the file indicates that, at a case conference on August 29, 2019, Mr. L. was ordered to provide written consent to Ms. R. within 15 days to find out from Great West Life about any payments on the claim for the costs of S’s dental surgery. On September 11, 2019, Mr. L. wrote a letter to Great West Life indicating that he consented to disclosure to Ms. R. of information about this claim only. On October 1st and 9, 2019, Great West Life produced explanation of benefits statements showing that a total of $635 was remitted to Mr. L. on this claim. On October 16, 2019, Great West Life wrote to Ms. R. to advise her that she had received information without proper authorization by Mr. L. This letter mentions a telephone call that Ms. R. apparently made to the company on September 24, 2019.

110I conclude that Mr. L. made a reasonable attempt to comply with the disclosure order. I cannot tell, based on the evidence, why Great West Life decided that his September 11, 2019 direction did not amount to valid authorization to disclose information to Ms. R.

111I conclude that there is no basis to find Mr. L. in contempt of any past order of the court.

Conclusions

112Justice Robertson’s January 22, 2016 order is varied as follows:

(i) Paragraph 8 is varied to provide that the Respondent Mr. L.’s line 150 income in 2018 was $123,168 while the Applicant Ms. R.’s line 150 income was $86,842 and that, effective January 1st, 2019, the Respondent shall pay child support in the table amount of $1755 monthly the parties’ two children.

(ii) Paragraph 11 is varied to add that Mr. L. shall pay $1012 to Ms. R. for arrears of child support owed to April 30, 2020.

(iii) Paragraphs 12, 13 and 14 are struck and replaced as follows:

12. Based on the parties’ respective line 150 incomes, the Applicant’s proportionate share of the children’s special and extraordinary expenses under s. 7 of the Divorce Act is 40% and the Respondent’s share is 60%.

13. The Respondent shall pay s. 7 expenses of $214 per month effective January 1st, 2019, to contribute 60% of the cost of S’s uninsured medical and dental expenses, and D’s expenses for horseback riding, medical/psychologist expenses, driver’s education, orthodontics, tutoring and school fees, including fees for extracurricular outings.

14. The Respondent shall pay s. 7 expenses of $100 per month effective January 1st, 2020 to contribute 60% of the cost of D’s expenses for horseback riding, medical/psychologist expenses, tutoring and school fees, including fees for extracurricular outings.

14a. Should either S or D require further uninsured dental work while they remain dependent, Ms. R. shall advise Mr. L. about the estimate cost and seek his commitment to contribute 60% of it, which consent he shall not reasonably withhold. If he consents, once the expense has been incurred, Ms. R. shall provide Mr. L. with a receipt showing the amount paid, and he shall reimburse her for 60% of the cost.

(iv) Paragraph 17 is struck and replaced with the following:

The Applicant shall repay the Respondent $1832 for overpayment of s. 7 expenses from January 1st, 2019 to April 30, 2020. The amount of $635 shall be deducted from this amount, to account for the misdirection of a reimbursement of dental expenses by the Applicant in October 2018. The net amount that the Applicant must repay the Respondent for s. 7 expenses to April 30, 2020 is therefore $1197.

(v) Paragraph 19 is struck and replaced with the following:

The Respondent’s obligation to pay spousal support is terminated as of January 1st, 2019. The Applicant shall repay to the Respondent the amount of $4000 for the period of January 1st, 2019 to April 30, 2020.

113Offsetting the amounts that each of the parties owes to the other, Ms. R. owes Mr. L. $4185, which I order her to pay to him within 30 days of the issuance of these reasons.

114If the parties cannot agree on costs of this motion, they may each submit a cost outline to me, no longer than two pages in length, by email to the trial coordinator, on or before April 27, 2020.

Justice Sally Gomery Released: April 15, 2020

COURT FILE NO.: FC-13-2061-9 DATE: 2020-04-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: M.R. Applicant/Respondent – and – H.T.L. Respondent/Moving Party DECISION ON MOTION TO VARY Gomery J. Released: April 15, 2020

1The initials used to identify the children in these reasons are designed to protect their privacy. They are not their actual initials.

2In these reasons, I have rounded all figures in these reasons to the nearest dollar. Ms. R’s line 150 income fluctuated dramatically in 2016, 2017 and 2018 due to problems with the Phoenix pay system. I accept the line 150 amount in 2018 as accurate.

3The arrears are calculated based on the increase in support of $46 each month for 22 months.

4Ms. R. claims that S will need five years to complete his undergraduate degree but has provided no evidence to back this up or any explanation of why he might need this amount of time. One possible explanation for a longer undergraduate program would be a co-op requirement, whereby S would alternative between short term paid work and his studies. If S is enrolled in such a program, this would increase his potential to earn money during his studies, decreasing his parents’ required contribution.

5I am assuming, in the absence of any information about this prescription, that it is for acne medication mentioned in Ms. R.’s factum. These amounts are in addition to the uninsured portion of a one-time dental expense for S in October 2018, which gives rise to an ancillary claim by Ms. R. dealt with later on in these reasons.

6I am excluding the costs of hockey tournaments for S in 2016 and 2017, since Robertson J. explicitly excluded these costs as eligible s. 7 expenses in her January 2016 order. I am also excluding the Best Buy receipt for $192, as no information has been provided about it.