COURT FILE NO.: D-15091/16

DATE: 2020-01-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary-Louise MacEachern

Mr. Karl K. Beyer, for the Applicant

Applicant

• and -

William Lawson MacEachern

Ms. Erin O’Leary, for the Respondent

Respondent

HEARD: October 18, 21, 22, 23, 2019

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

OVERVIEW

[1] The Applicant wife commenced an Application on or around September 28, 2016 requesting, inter alia, a Divorce, and a retroactive adjustment to spousal support and child support. She further requested a renewed obligation by the Respondent husband to secure his support obligation by way of life insurance designation in accordance the terms of their Separation Agreement.

[2] The Respondent husband prepared an Answer on or around December 14, 2016. Within his Answer he sought a termination of his spousal support obligation to the Applicant, and a termination of his child support payable on behalf of the child Jesse retroactive to July 1, 2015. On or around January 2, 2019, the Respondent husband prepared an Amended Answer seeking a Divorce and a termination of his child support obligation payable on behalf of the child Kelsey retroactive to May 1, 2017.

[3] The matter proceeded to trial before me in October 2019.

[4] At the outset of trial, the Applicant wife conceded a number of issues. Specifically, she advised that:

a. She no longer sought a retroactive adjustment of spousal support;

b. She no longer sought a retroactive adjustment of child support but was opposed to a retroactive credit of child support in favour of the husband;

c. She asserted that although the children of the marriage are not yet self-sufficient, she was not seeking ongoing child support on their behalf;

d. Life insurance coverage should continue to be governed by the terms of the parties’ Separation Agreement; and

e. She was solely seeking the payment of ongoing spousal support in accordance with the parties’ Separation Agreement.

[5] The Respondent husband’s position at trial was as follows:

a. His spousal support obligation to the Applicant should terminate effective December 14, 2016 (the date of effective notice of his position by way of pleadings);

b. His child support obligation for the child Kelsey should terminate effective May 1, 2017;

c. His child support obligation for the child Jesse should terminate effective December 1, 2015;

d. There should be no ongoing child support payable for Jesse on the basis that:

i. There has been a repudiation of the relationship between the child and the father; and

ii. The Respondent father’s obligation to provide financial support on behalf of the children has been satisfied in full and in excess; and,

e. There should be no further obligation to provide life insurance security in accordance with the terms of the parties’ Separation Agreement.

[6] Both parties request that a Divorce be granted.

ISSUES

[7] The issues for determination by the court are as follows:

1. With respect to spousal support:

a. Does the Applicant wife have an ongoing entitlement to spousal support or should spousal support be terminated?

b. If spousal support is not terminated, what is the appropriate quantum and duration of spousal support payable?

2. With respect to child support:

a. Do Kelsey and/or Jesse continue to be children of the marriage as defined by the Divorce Act?

b. If so, is the court satisfied that reasonable arrangements have been made for the support of the children of the marriage such that a divorce should be granted and/or should ongoing child support be ordered?

c. Is there a retroactive overpayment of child support owing by the Applicant wife to the Respondent husband?

d. Is there a support obligation between the parties which requires ongoing security for support in the form of a life insurance beneficiary designation?

BACKGROUND

[8] The parties largely agree as to the background facts in this matter.

[9] They were married on May 24, 1986 and separated on July 14, 1999 after approximately 13 years of marriage.

[10] There are two children of the marriage, namely Kelsey Morgan MacEachern, born February 26, 1994, and Jesse Quinn MacEachern, born April 3, 1997.

[11] Upon separation the Respondent husband vacated the parties’ matrimonial home. The children have resided primarily with the Applicant wife since that time.

[12] At the time of the parties’ separation the ages of the family members were as follows:

Applicant wife: 38 years of age;

Respondent husband: 36 years of age;

Kelsey: 5 years of age;

Jesse: 2 years of age.

[13] The parties entered into Separation Agreement which provided for a global resolution of all issues arising from the breakdown of their marriage. The Applicant wife executed the Agreement on January 4, 2006, and the Respondent husband executed the Agreement on December 14, 2005. The terms of the Separation Agreement which are relevant to the issues before the court are as follows:

a. Joint custody of the children, primary residence of the children with the Applicant wife and reasonable visits and communication with the father;

b. Retroactive acknowledgement of spousal support payments for the 2002-2004 calendar years in the following amounts:

i. 2002: $1,644.19 per month;

ii. 2003: $2,044.19 per month;

iii. 2004: $2,100.19 per month;

c. Commencing January 1, 2005 spousal support payable from the Respondent husband to the Applicant wife in the sum of $3,850.00 per month, including annual indexing by percentage increase in the Consumer Price Index for Canada;

d. Commencing January 1, 2005 child support payable from the Respondent husband to the Applicant wife in the sum of $1,792.00 per month based upon a gross annual income of $153,000.00, until one or more of the following occurs:

i. A child ceases to reside with the wife, provided that the child shall be deemed to reside with the wife notwithstanding the fact that the child lives away from home while attending an educational institution, summer employment, pursuing or enjoying a reasonable holiday, so long as the child has not withdrawn from parental control;

ii. A child becomes eighteen years of age and ceases to be in full time attendance at an educational institution, or withdraws from parental control;

iii. A child marries;

iv. A child dies;

v. The wife dies;

vi. The husband dies;

vii. The parties agree on a different amount of child support payable, in accordance with the Child Support Guidelines; and/or

viii. A child completes a first post-secondary course of study in college or university;

e. Annual exchange of financial disclosure and a review and adjustment of child support in accordance with the Guidelines;

f. Proportionate contribution to the children’s s. 7 expenses;

g. The provisions for custody, access, child support and spousal support may be varied at any time if a material change in circumstances of either the husband or the wife takes place;

h. Security for support by way of beneficiary designation of the Applicant wife on the Respondent husband’s group term life policy ($302,000.00 death benefit) and transfer of his ownership interest in an additional Sovereign life insurance policy to the wife;

i. Family property divided between the parties to their mutual satisfaction.

[14] Since separation, the children have always lived primarily with the Applicant wife. The father has not resided in close proximity to the Applicant and the children since approximately 2006, and as such his parenting role has been rather minimal.

[15] Child support was adjusted annually between the parties to reflect the proper amount payable by the Respondent to the Applicant in accordance with the Federal Child Support Guidelines. The Respondent husband stopped paying child support on June 14, 2018.

[16] Child and spousal support were paid directly between the parties, without necessity of enforcement by the Family Responsibility Office. The Agreement was never filed with the court. Payments were on time and never in arrears.

[17] The spousal support payments were never indexed. Neither party seemed to fully understand what this entailed and took no steps to adjust the payments.

[18] At the time of trial the ages of the family members were as follows:

Applicant wife: 58 years of age;

Respondent husband: 56 years of age;

Kelsey: 25 years of age;

Jesse: 22 years of age.

ISSUE #1: SPOUSAL SUPPORT

[19] With respect to spousal support:

a. Does the Applicant wife have an ongoing entitlement to spousal support or should spousal support be terminated?

b. If spousal support is not terminated, what is the appropriate quantum and duration of spousal support payable?

THE LAW

Statutory Framework

[20] The issues raised pertaining to spousal support in this proceeding are governed by s. 15.2 of the Divorce Act, the relevant portions of which are as follows:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the 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 spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

Entitlement

[21] The law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory support; (2) contractual support; and (3) non-compensatory support: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420 at para. 15.

[22] The trial judge must consider them all, and any or all of them may figure in the ultimate order, as may be appropriate in the circumstances of the case: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420 at para. 37.

Objectives

[23] The starting point for consideration of spousal support claims under the Divorce Act are the objectives listed in s. 15.2(6). No single objective is paramount; all must be borne in mind: Moge v. Moge, [1992] 3 SCR 813, 1992 CanLII 25 (SCC). McLaughlin J. in her additional comments provides further guidance in considering these objectives:

a. The first thing the judge must consider is "economic advantages or disadvantages . . . arising from the marriage or its breakdown". This heading brings in many of the considerations which my colleague discusses. It clearly permits the judge to compensate one spouse for sacrifices and contributions made during the marriage and benefits which the other spouse has received.

b. The second factor which the judge must consider is the "apportionment" of the "financial consequences" of the care of children. This heading also raises compensatory considerations. If a spouse, either before or after separation, has or continues to incur financial disadvantage as a result of caring for a child of the marriage, he or she should be compensated.

c. The third thing which the judge's order should do is grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship.

d. Finally, the judge's order must "in so far as practicable" promote the economic self-sufficiency of each former spouse within a reasonable period of time. This subhead raises the question of the degree to which ex-spouses should be expected to become self-sufficient, a contested point on this appeal. Several things about this subhead should be noted. First, unlike the first three factors, this one is stated in qualified language, beginning with the conditional phrase, "in so far as practicable". Second, economic self-sufficiency is not to be required or assumed; the verb used is "promote". By this language Parliament recognizes that actual self-sufficiency, while desirable, may not be possible or "practicable".

Spousal Support Agreements

[24] When considering an initial Application for spousal support which is inconsistent with a previous Agreement between the parties, the Applicant must “clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of the execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned.”: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 88.

Material Change

[25] The generally accepted meaning of “material change in circumstances” was defined by the Supreme Court in Willick v. Willick:

“In deciding whether the conditions for variation exist, it is common ground that the change must be a material change in circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation”: Willick v. Willick, 1994 CanLII 28 (SCC), [1994], 3 SCR 670 at para. 20.

Self-Sufficiency

[26] Failure to achieve self-sufficiency is not breach of “a duty” and is simply one factor amongst others to be taken into account: Leskun v. Leskun, 2006 SCC 25, [2006] 1 SCR 920, at para. 27.

[27] A determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors: Fisher v. Fisher, 2008 ONCA 11 at para. 65.

“Means, needs, and other circumstances”

[28] In determining need, the court is to be guided by the principle that the spouse receiving support is entitled to receive the support that would allow her to maintain the standard of living to which she was accustomed at the time cohabitation ceased: Marinangeli v. Marinangeli, (2003), 2003 CanLII 27673 (ON CA), 66 O.R. 40 (Ont. C.A.) at para. 74.

Spousal Support Advisory Guidelines

[29] The Spousal Support Advisory Guidelines are a useful tool in the determination of spousal support. They suggest a range of both amount and duration of support that reflects the current law. While neither legislated nor binding, the use of SSAG calculations in family law proceedings has evolved from a starting point to a range that should not be deviated from lightly: Fisher v. Fisher, 2008 ONCA 11 at para. 98, Slongo v Slongo, 2017 ONCA 272 at para. 81.

[30] The Guidelines use duration to categorize cohabitation: a short-term cohabitation is one of less than five years; a medium-term cohabitation is from 5 to 19 years and a long-term cohabitation is 20 years or longer. However, under the Guidelines, a medium-term marriage becomes a long-term one (giving rise to indefinite support) if the parties' years of marriage, plus the age of the support recipient at the date of separation, equals or exceeds 65. This refinement recognizes that an economically-dependent older spouse may have trouble thereafter attaining self-sufficiency: Fisher v. Fisher, 2008 ONCA 11 at para. 105-106.

[31] Where spousal support and child support have overlapped and the recipient has provided primary care and custody of the children, the facts can take the obligation to the longer-end of the durational range: Tadayon v. Mohtashami, 2015 ONCA 777 at para. 53.

[32] This court has also considered the following additional cases, referred to by counsel on the basis of factual similarities (and dissimilarities) to the case at bar: L.M.P v. L.S., 2011 SCC 64, Brophy v. Brophy, 2004 CanLII 25419 (ONCA), Haworth v. Haworth, 2018 CarswellOnt 183 (Ont. Sup. Ct. Jus.), var’d 2018 CarswellOnt 22573 (ONCA), Sharpe v. Sharpe, 2018 ONSC 3673, deJong v. deJong, 2009 CarswellOnt 1304 (Ont. Sup. Ct. Jus.), Pitt v. Pitt, 2019 ONSC 949, T.B. v. M.B., 2018 ONSC 2024, Daley v. Gowan, 2015 ONSC 6741, Litalien v. Desormeax, 2015 ONSC 1796, Choquette v. Choquette, 2019 ONCA 306.

ANALYSIS

Jurisdiction

[33] The Divorce Act authorizes courts to vary spousal support terms which exist between parties, either on an initial application for support under s. 15.2, or on motion to change an existing court order under s. 17, whether or not that order incorporates a spousal support agreement. As the terms of the parties’ separation agreement were never incorporated into a court order, this claim was properly brought before the court by way of initial Application.

[34] The parties agree that at the time of separation the Applicant wife’s entitlement to spousal support was established on both a compensatory and non-compensatory (needs-based) conceptual basis. In January 2006 they formalized their respective spousal support obligations and entitlements by way of comprehensive Separation Agreement. Where the parties disagree is whether or not the Applicant wife has any continued entitlement to spousal support under any of the conceptual grounds.

[35] Neither party argued that the circumstances surrounding the negotiation of their Separation Agreement were questionable. The agreement was negotiated with full financial disclosure, with the benefit of legal counsel for both parties, without coercion or duress, and otherwise in compliance with the law of contract.

[36] Normally an initial Application for support would not necessitate a “material change” analysis, as there is no reference to such language in s. 15.2 of the Divorce Act. However, because one of the factors that the court must consider in deciding spousal support on an initial Application is “any order, agreement or arrangement relating to the support of either spouse”, pursuant to s. 15.2(4)(c) of the Divorce Act, a review of the relevant terms of the parties’ separation agreement is necessary. The relevant provisions of the parties’ Separation Agreement on this issue are as follows:

2. BACKGROUND

(c) The husband is 42 years old. He was born on April 30, 1963. He is employed as a General Manager at Canadian Tire Corporation in Ottawa, Ontario. He has a gross annual income of approximately $153,000.00.

(d) The wife is 44 years old. She was born July 1, 1961. She is a homemaker. She is not employed. The wife recognizes her obligation to attempt to become self-sufficient through employment within a reasonable time. However, the parties agree that it is important for the children and in their best interests that the wife remain at home at present to care for them.

13. CHANGE IN CIRCUMSTANCES

(a) The provisions for custody, access, child support and spousal support, in this Agreement may be varied at any time, if a material change in circumstances of either the husband or the wife takes place.

[37] The parties did not specifically contemplate what specific type of change in circumstance might give rise to a variation, other than noting that it must be “material”. The body of caselaw which defines “material change in circumstances” in variation proceedings is therefore pertinent to the interpretation of the parties’ intentions. As per Willick, this analysis requires the court to examine the circumstances of the parties at the time that the Agreement was entered into to determine what amounts to a material change. The parties’ general circumstances were laid out in paragraphs 2(c) and 2(d) of the ‘Background’ section as replicated above.

[38] I find that the parties’ circumstances were markedly different at the time of trial such that:

a. The husband is now 56 years of age. He now resides in Prince Edward Island. He is no longer employed by Canadian Tire Corporation. He no longer earns an income of $153,000.00 per year;

b. The wife is now 58 years of age. Although she continues to be unemployed, it is no longer the case that the Applicant has an obligation to care for the children of the marriage. The children were 11 and 8 years of age at the time that the parties entered into the Agreement and they are now both adults;

c. A material change, as contemplated by paragraph 13(a) of the parties Separation Agreement, has occurred.

[39] There is considerable debate in the existing jurisprudence as to whether or not the mere passage of time can constitute a material change in circumstances. I specifically find that the material change threshold has been met, without need to consider this issue.

[40] Further, although this is not a Miglin case in the sense that neither party is seeking to set aside the terms of their Agreement (i.e. there are no fixed terms of support), in considering the Applicant wife’s request to continue and the Respondent husband’s request to terminate the spousal support terms of their Separation Agreement, it is helpful to reflect upon the circumstances of the parties at the time of entry into the agreement as compared to their current circumstances; that is, an assessment of whether the terms of the agreement continue to reflect the parties’ intentions at the time of the execution, and whether the current circumstances were anticipated by the parties.

[41] In considering the specific facts of this case, I conclude that the terms of the Separation Agreement no longer reflect the intention of the parties at the time of the execution of the agreement and that the parties’ current circumstances were not anticipated by them at the time of entry into their Separation Agreement. In reaching this conclusion I rely upon the following:

a. It is apparent on the face of the agreement that at the commencement of 2006 the Applicant wife was not working outside her home. The children were 11 and 8 years old at the time;

b. In 2006 the husband supported the Applicant wife’s unemployment: “the parties agree that it is important for the children and in their best interests that the wife remain at home at present to care for them”;

c. The use of the words “at present” meant that ‘at that time’ it was reasonable for the wife to remain at home to care for the children, but that at some point in the future this might not be necessary in the best interests of the children;

d. The wife recognized, in writing, “her obligation to attempt to become self-sufficient through employment within a reasonable time”;

e. At the time of entry into the domestic contract both parties expected that at some point in the future:

i. The wife’s full-time care of the children would no longer be necessary;

ii. The wife would make efforts to secure employment;

iii. The wife would achieve some measure of self-sufficiency;

f. In 2019, thirteen years after entry in to the Agreement, and twenty years after separation:

i. The children no longer require full-time or part-time care by the wife;

ii. The wife has not secured any employment;

iii. The wife has not achieved self-sufficiency.

[42] I find that the fact that the Applicant wife would not obtain employment outside of the home between 2006 and 2019 and ongoing was not contemplated by the parties upon entry into their Agreement. In fact, it was specifically and expressly contemplated that she would.

[43] As a result of the above conclusion, an analysis of the Applicant wife’s ongoing entitlement to spousal support under s. 15.2 of the Divorce Act is necessary in consideration of the factors and objectives enumerated therein.

Objectives of a Spousal Support Order

A. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown:

[44] The focus of this objective is to compensate one spouse for sacrifices and contributions made during the marriage to the benefit of the other spouse. The following facts are relevant to this compensatory analysis:

a. The wife graduated from high school in 1980 at 19 years of age. This is her highest level of education. The wife’s first employment experience commenced at around age 16 as a ‘stock-girl’. After graduation she commenced working in sales at Zellers, eventually becoming a full-time department head.

b. The husband also graduated from high school in 1980. He completed some post-secondary studies at Holland College in Prince Edward Island and then, he too, commenced working on a full-time basis in sales at Zellers, eventually becoming a group supervisor.

c. The husband and wife were married on May 24, 1985. The wife quit her employment to move to Sarnia to live with the husband where he worked at a Zellers store. She could not continue her employment with Zellers at that location due to anti-nepotism policies at the company.

d. Shortly after marriage the parties moved to Prince Edward Island, where the husband assumed a Krispy Kernels distributorship. The wife was not formally employed during this period, but assisted the husband with this business.

e. The Krispy Kernels distributorship was not profitable, and the parties decided to jointly purchase a convenience store/gift shop in Charlottetown. They both worked full-time in this enterprise, however despite long hours of work they were not generating a profit. They sold the store in or around 1990.

f. The Respondent husband’s parents purchased a Canadian Tire franchise in Cochrane, Ontario. They offered the Respondent a position as Assistant manager and the family moved to Cochrane in or around 1990. The Applicant wife did not work while residing in Cochrane.

g. In approximately 1991 the Respondent’s parents purchased a new Canadian Tire store in Nova Scotia. The Respondent was offered the position of General Manager, and the Applicant and Respondent moved back to the Maritimes.

h. For the balance of the parties’ marriage the Respondent was employed by his parents as the General Manager of their consecutive Canadian Tire stores. His annual income was consistent.

i. While residing in Nova Scotia the Applicant wife obtained a sales position in a housewares store, “the Panhandler”, for approximately 14 months. She worked at this retail position until some point after becoming pregnant with the parties’ first child, Kelsey, in the fall of 1993.

j. Kelsey was born on February 26, 1994 in Nova Scotia.

k. The Applicant wife did not return to paid employment for the balance of the marriage. She provided the primary care of Kelsey (and later Jesse), and the Respondent became the sole breadwinner for the family.

l. In the fall of 1995, the Respondent’s parents purchased a Canadian Tire franchise in St. John’s, Newfoundland, and the parties moved again.

m. The parties’ second child, Jesse, was born on April 3, 1997 in Newfoundland.

n. In the fall of 1998, the Respondent’s parents purchased a Canadian Tire franchise in Brantford, Ontario, and the parties moved again. The Respondent’s parents assisted the parties financially with the purchase of a home in Brantford.

o. The parties separated on July 14, 1999. They were living in Brantford at the time. The Applicant wife remained within the matrimonial home and the Respondent husband moved in with his parents.

p. The wife was 38 years of age, and the husband was 36 years of age at the time of separation. Both were in good physical health.

[45] There is no doubt that the spousal support obligation between the Applicant and Respondent includes a compensatory element. The Applicant wife did sustain an economic disadvantage from the marriage or its breakdown. The facts giving rise to this compensatory entitlement include the following:

a. The marriage took on a ‘traditional’ homemaker/caregiver v. breadwinner role division in or around the fall of 1993;

b. The parties relocated multiple times during the marriage to the disadvantage of the wife (i.e. her ability to secure and retain stable employment);

c. The family’s relocations permitted the husband continuity of employment as General Manager of his parents’ Canadian Tire stores;

d. The total period of cohabitation was 13 years;

e. When the parties separated in July 1999 the wife had been fully out of the work force for six years.

[46] The question for consideration, which follows below, is whether the economic disadvantage suffered by the wife still exists, and/or whether those disadvantages have been compensated or overcome by reason of the financial arrangements that have been in place between the parties since the date of separation.

B. Apportion between the 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:

[47] This spousal support objective also raises compensatory considerations, but includes post-separation disadvantages flowing from the care of the children of the marriage.

[48] I accept that following separation the Applicant wife was responsible for the majority of the care and upbringing of the children of the marriage. She has a strong compensatory claim for support which arises from the post-separation burden of caring for the children of the marriage. The following facts are relevant to this conclusion:

a. Upon separation in July 1999 the Respondent husband moved out of the matrimonial home and into his parents’ home in Paris, Ontario;

b. The children remained in the primary care of the Applicant at all relevant times thereafter.

c. The children were five years of age and two years of age at separation. Kelsey commenced kindergarten in September.

d. The father continued to work on a full-time basis, which included a measure of travel as a result of his parents’ business expansion, while at the same time struggling with mental health issues which made it difficult for him to balance all of his obligations. He did however continue to see the children regularly during this period, visiting them at the matrimonial home after work and on weekends as often as possible.

e. In 2000 the Respondent husband’s parents purchased a new Canadian Tire franchise in Ottawa, Ontario. The Respondent moved to Ottawa and would return to Brantford a minimum of once per month, plus special occasions, to visit the children.

f. In or around 2006 the Respondent husband’s parents purchased a new Canadian Tire franchise in Charlottetown, Prince Edward Island. Initially upon moving to P.E.I. the Respondent continued to attend in Brantford approximately once per month, but these visits diminished with time and ultimately ceased in or around 2015.

[49] There can be no doubt that the wife assumed the lion’s share of all post-separation parenting of the children, including all aspects of their care: medical, educational, social, extracurricular, etc. I accept the Applicant’s evidence that her caregiving role for the children impacted her post-separation ability to secure meaningful employment for a period of time. This certainly must have had direct financial consequences upon the Applicant’s income.

[50] However, conversely, this court also bears in mind the following. Until the Respondent was offered a position of employment by his parents in 1990, for the first five years of the parties’ marriage they struggled financially. The court heard poignant evidence from the husband that at the time of separation, during a time of significant mental health struggle which included a period of hospitalization, he was barely able to hold down any semblance of employment. I accept that because of the generosity and support of the Respondent’s parents he was able to eventually return to work at full capacity, without any disruption in his pay. I find no fault in his decision to thereafter continue to work for his parents, even when it required the relocation which placed the primary burden of childcare on the Applicant. The husband was earning a handsome income that, in consideration of his history and work qualifications, he would have been unlikely to achieve through alternate employment with an arms’ length employer. This translated into a higher level of child and spousal support in the hands of the wife. Both parties acknowledged in their submissions that they have benefitted from the support and generosity of the Respondent’s parents over the years.

[51] Again, the question for consideration, which follows below, is whether or not the financial consequences arising from the Applicant wife’s primary care of the children of the marriage post-separation have been adequately apportioned between the parties by reason of the financial arrangements that have been in place between the parties since the date of separation.

C. Relieve any economic hardship of the spouses arising from the breakdown of the marriage:

[52] The focus of this objective relates primarily to post-marital need.

[53] It is agreed that the Respondent husband has been the Applicant wife’s sole source of income since separation in July 1999, initially by way of informal payments. In January 2006 the parties formalized their support agreement in writing: historic payments (retroactive to January 2002) were acknowledged, the parties re-filed their income tax returns to reflect the acknowledged payments, and the Respondent husband paid the income taxes owing by the wife as a result of this arrangement. Commencing January 1, 2005 monthly support payments were made in accordance with the Guidelines. The following additional circumstances are also notable:

a. The matrimonial home was sold and the proceeds of sale were used to purchase the wife’s current home (paragraph 17(a) of the Separation Agreement);

b. The Respondent husband initially co-signed for the wife’s current home. He released any and all interest in same (paragraph 17(b) of the Separation Agreement);

c. The husband assumed and paid for all of the family debt (paragraph 19 of the Agreement).

[54] The Respondent husband has now been supporting the wife financially for more than twenty years post-separation. It is at this stage that a review of the Spousal Support Advisory Guidelines in the context of this case is necessary.

[55] The Spousal Support Advisory Guidelines were not released at the time of the parties’ separation in July 1999 or at the time of finalization of their Separation Agreement in January 2006. The SSAGs were developed with the intended purpose of bringing more certainty and predictability to spousal support determinations. They incorporate the basic principles of compensation and need that the Supreme Court of Canada has identified as the bases for spousal support and provide a more structured way of implementing those principles through formulas based on income sharing. Counsel have submitted Divorcemate calculations in this proceeding reflective of the following incomes of both parties:

a. Applicant wife: The Applicant did not file a complete record of her income tax returns in this proceeding. The evidence heard at trial is that, other than nominal taxable dividend receipts and support payments, the wife’s income at all relevant times was $0.

b. Respondent husband: The Respondent husband produced and filed extensive financial documentation in these proceedings which included income information dating back to 2006. The father’s Line 150 income from 2006 to 2018, as reflected on his income tax returns is as follows:

Year	Income	Year	Income
2006	$151,811.00	2013	$152,499.00
2007	$150,431.00	2014	$135,556.00
2008	$151,799.00	2015	$84,763.00
2009	$153,583.00	2016	$81,506.00
2010	$154,009.00	2017	$65,732.00
2011	$153,916.00	2018	$66,099
2012	$153,299.00

Quantum

[56] It is noteworthy that, at all times from January 1, 2005 to present, the specified monthly payments of spousal support made by the husband to the wife of $3,850.00 per month have exceeded the suggested monthly payment of spousal support at the high end of the range of the SSAGs.

[57] In general, from 2005 to 2014, while the Respondent husband was employed by his family, the Applicant enjoyed the benefit of combined child and spousal support payments totaling approximately 58% of the husband’s net disposable income. In the years 2015 until July 2018, after the Respondent’s parents retired and closed their last store, the Applicant’s combined child and spousal support payments totaled almost 80% of the Respondent’s net disposable income. From July 2018 to present, when the Respondent’s child support payments stopped, his monthly spousal support payments to the Applicant again totaled approximately 58% of his net disposable income.

[58] The Respondent husband has consistently paid more than the highest support amount suggested by the SSAG ranges.

Duration

[59] The SSAG calculations presented to the court demonstrate that the formula for support, on the specific facts of this case, results in a range of spousal support for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 6.5 years and a maximum duration of 16 years from the date of separation.

[60] The Respondent husband has been financially supporting the Applicant wife for longer than the maximum suggested spousal support range prescribed by the SSAGs.

Totality

[61] The Respondent husband’s total formal spousal support paid, from 2002 to present totaled approximately $755,000.00. This amount does not include the support which was not quantified from July 1999 to December 2001, or the equity in the home transferred to the wife.

[62] The total formal spousal support paid alone far exceeds the maximum quantum calculated on the Respondent’s highest income, for the maximum duration as suggested by the SSAGs. If the SSAGs do in fact offer a level of predictability and certainty, as intended, we can be certain that the amount of spousal support paid by the Respondent father to the Applicant wife exceeds what could reasonably be necessary to relieve any hardship arising from the breakdown of the marriage.

D. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time:

[63] The final objective of an award of spousal support is to "in so far as practicable" promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[64] The wife argues that after twenty years of post-separation financial support by the Respondent she is still not self-sufficient. The Respondent acknowledges that she was aware of her obligation to make efforts towards self-sufficiency, as confirmed within the terms of the parties’ separation agreement. She further acknowledges that at the time of separation she was 38 years of age and in good health. The wife argues that the basis of her failure to achieve self-sufficiency is two-fold:

a. Her parenting responsibilities prevented her from obtaining employment before June 2015; and

b. Her own medical issues began presentation in or around June 2015, which prevented employment after that time.

The Applicant as a Single Parent

[65] As discussed above, it is clear that the Applicant wife assumed the lion’s share of all parenting of the children post separation. I find that she alone was responsible for meeting the day to day needs of the children. It is fair to conclude that, during the early stages of separation, the Applicant wife was not in a position to focus on her own self-improvement and financial independence. The Applicant and the children benefitted financially from the Respondent’s relocation, but the relationship between the Respondent and his children clearly suffered as a result. The strength of their relationship has diminished over time, such that the children now only have occasional contact with the father. The Applicant wife has at all times been their primary parent.

A. Children’s medical needs:

[66] The Applicant provided the court with an extensive review of the children’s medical issues from 2002 to present which are summarized as follows:

a. Kelsey: Over the years Kelsey was diagnosed with chicken pox, Fifth’s disease, Norwalk virus, intestinal bugs, allergies, failure to gain weight, and eventually endometriosis. Kelsey was in regular attendance at the McMaster children’s medical clinic for blood tests, x-rays, ultrasounds, a colonoscopy, barium enema and endoscopy, an exploratory surgery and multiple appointments with specialists. The majority of Kelsey’s medical issues which necessitated frequent appointments occurred prior to the execution of the Separation Agreement while the Respondent was residing in Ottawa. At the time of execution of the parties’ separation agreement in 2006 Kelsey’s appointments averaged approximately one per month.

b. Jesse: Jesse started having seizures in October 2005 at the age of eight. He suffered a grand mal seizure in December. Jesse was in grade two at the time and missed a significant number of days from school that year. He was diagnosed with epilepsy. The parties’ Separation Agreement was formally executed in January 2006. Jesse’s s seizures typically presented as periods of approx. 30 seconds in length – episodes which appeared to others as though he was day-dreaming or ‘zoning-out’. The seizures were brought under control with medication and his last known seizure occurred while he was in grade 6. Jesse missed varying amounts of school and struggled in the classroom as a result of this condition. He was weaned off his medication in grade 8. Jesse is now noted as having a history of epilepsy. He continues to have some memory and anxiety issues which may or may not be related to this history.

[67] The Applicant was primarily charged with addressing the medical issues of the children.

[68] In cross-examination, the Applicant acknowledged that the majority of the children’s medical appointments were known to her in advance. She would not acknowledge that, if she had been employed at the time, she could have booked off time for these prescheduled visits. She would not agree that working-parents had to do so, rather asserting “I have some friends who lost their jobs for this”.

B. Children’s educational issues:

[69] The evidence presented to the court by the Applicant with respect to the children’s educational issues was as follows:

a. Kelsey: Kelsey has always been a strong student. Any medical issues she had, had very little impact on her schooling. She had perfect attendance in grade 9. Kelsey graduated from high school in June 2012 with an extremely high academic average of 98.5%. Kelsey has no medical issues at present which, in her own opinion, impact her performance at school.

b. Jesse: Jesse’s early medical issues and corresponding absences from school impacted his classroom performance. The Applicant arranged for tutoring for Jesse, commencing in grade 4. He struggled in school. Jesse had an Individual Education Plan throughout high school which granted him special accommodations (e.g. extended time limits for exams, assignments, etc.). In grade 10 Jesse had attendance issues. He refused to attend and missed approximately 90 days of school. Jesse graduated from high school in June 2015; he believes that he still struggles a little more with schoolwork than the average student.

[70] When Jesse was in junior kindergarten the Applicant started volunteering in the children’s classrooms. She continued to volunteer her time at the children’s school for one full day a week for approximately ten years.

[71] In cross-examination the Applicant wife would not acknowledge that, by the time Jesse commenced high school, he did not require her full-time care. She insists that he continued to require full-time adult supervision. The basis of her position is that while Jesse was in grade 10, if she did not supervise him, he would not attend school. Jesse graduated from high school, on time in June 2015, with an approximate “B” average.

Applicant’s Medical Health

[72] Both parties appear to have enjoyed good health during the period of their cohabitation. There is no suggestion that any medical issues faced by either party arise out of a pre-existing condition that existed during the marriage or at the time of the breakdown of the marriage. The Applicant wife relies upon a change in her medical situation, allegedly arising in or around the time of Jesse’s graduation from high school in June 2015 and ongoing thereafter, upon which she justifies her position of unemployment.

[73] The Applicant served Evidence Act notices and filed a large volume of medical records with the court pertaining to the clinical notes and records of her family physician for the time period of May 2003 to August 2019. The Applicant wife did not call any medical experts as witnesses at trial in support of her position that she is presently, or has in at any time in the past been, medically unable to work. Further, the court’s attention was not drawn to any excerpt within the medical notes or records that would suggest that the Applicant has ever been deemed physically or mentally incapable of working; the large volume of medical documents filed contain no such reference to same in the form of disability applications, significant periods of incapacitation, etc.. She testified at length as to the extent and nature of her various medical conditions and the impact of these medical conditions on her daily activities. In general, she asserted suffering from the following conditions and symptoms, and attempted to draw the court’s attention to same within her medical records: removal of gallbladder (2003), hysterectomy (2017), allergic reaction, incontinence, numbness and tingling, headaches, aches and pains, weakness and loss of muscle mass, inability to stand or sit for long periods of time, and anxiety.

[74] The medical records support the Applicant’s evidence that she attends for medical appointments and testing with some regularity. The medical records do not support her evidence that she is unable to hold down employment for medical reasons. It is the Applicant’s belief that as a result of her medical issues she is unable to hold down any position of employment, however, there is no medical opinion before the court which supports this conclusion. The medical evidence provided to the court falls far short of demonstrating that the Applicant cannot work in any capacity. I note that in May 2019 the Respondent husband was diagnosed with an intestinal tumour and the entire right side of his intestine and colon had to be removed. He was in hospital for 12 days including 4 days in the Intensive Care Unit resulting from complications. He has not asserted an inability to work and is back to employment hours of 30-40 hours per week. He continued to pay spousal support to the Applicant throughout his illness.

[75] This court does not accept the Applicant wife’s position that she is unable to work in any capacity as a result of her medical issues.

Efforts to Seek Employment

[76] In addition to volunteering in the children’s classrooms for one full day each week for ten years, the Applicant did engage in other volunteer activities, including approximately one year at a hospice in 2016, and as a friend to a disabled adult through a centre for disabled adults, commencing in 2017. The Applicant asserts that the work at the hospice was too physically demanding for her and so she discontinued same, but she continues to volunteer her time with the disabled adult for approximately 1-2 hours per week. The Applicant has a driver’s licence. At present her hobbies include gardening and walking the dog. When asked by her own counsel what type of employment she could potentially hold she was unable to generate a single suggestion. The Applicant indicated that no position would pay her the level of income she was receiving by the Respondent in the form of support: $46,200.00 per year.

[77] I do not accept that the Applicant has made any conscientious effort to become self-sufficient. I make the following findings of fact which revealed themselves during the Applicant’s evidence. The wife:

a. Has never seriously considered upgrading her own education;

b. Has never pursued employment or education in the fields of her volunteer experience;

c. Has been capable of holding down long-term volunteer positions (e.g. 10 years of classroom volunteering);

d. Has never considered career counselling;

e. Last prepared a resume in 1991;

f. Has never filled out a job application since that time; and

g. Has never submitted a resume to any employer for any position of employment in any full-time or part-time capacity since separation.

[78] The Applicant wife was offered a full-time position as a receptionist at a Chiropractic office in 2013. It simply ‘fell into her lap’; she did not apply. The wife chose not to take the position because it required working in the morning (starting her workday between 7:00 a.m. and 9:00 a.m.). At this time the children were 19 and 16 years of age. In cross-examination the Applicant would not agree that the children did not require full-time care at this time. I simply do not accept the Applicant’s evidence on this point, regardless of any truancy issues surrounding Jesse around this time.

[79] When questioned about her strategy to locate and secure a position of employment, the Applicant’s only stated method was to rely upon her friends to “keep their eyes and ears open”. She refused to agree with counsel that this was not, and had not demonstrated itself to be, an effective method of securing employment. She simply reiterated that “I am in constant communication with my friends and we let each other know”, and that this should suffice. The wife’s evidence was not credible in this area. The Applicant testified that she began looking for work when Jesse graduated from high school, but since then her medical issues have prevented her from working. As discussed above, I do not accept this explanation.

[80] During a skillful cross-examination it became apparent to the court the Applicant has been and remains unwilling to take any steps towards self-sufficiency that might disrupt her steady spousal support income of $46,200.00 per year. This is the primary reason she has not tried to support herself. She simply plans to rely upon spousal support as her sole income stream for so long as it is payable and then “when I figure out what I need I am going to try to find a job to supplement it”.

Conditions, Means, Needs and other Circumstances

[81] As per the discussion above, the parties cohabited for 13 years. During their period of cohabitation I accept that, at least during the latter years, the marriage reflected the ‘traditional’ roles of the Applicant wife as homemaker and Respondent husband as breadwinner. The parties’ separation agreement acknowledges the roles of the parties and the Applicant wife’s initial entitlement to spousal support.

[82] In comparing the means, needs and other circumstances of the parties, and in consideration of their respective sworn Financial Statements and evidence given at trial, I note:

a. The Applicant and Respondent each have similar levels of equity in their principal residences (a minimum of approximately $170,000.00 each);

b. The Applicant and Respondent have similar levels of personal expenses;

c. The Applicant wife has an investment portfolio of approximately $215,000.00. With respect to the three years of complete tax returns that the Applicant filed with the court in these proceedings it is evident that she was able to make the following RRSP contributions: 2013: $3,375.00, 2016: $5,000.00, 2017: $5,000.00. Precise calculation of contributions in other years was not possible due to incomplete records;

d. The Respondent husband has an investment portfolio of approximately $640,000.00, of which $534,829.00 is the form of an investment portfolio set up by his parents. It does not appear that he has been able to make any contribution to his personal RRSP portfolio;

e. The Applicant wife’s net worth is approximately $415,000.00;

f. The Respondent husband’s net worth is approximately $875,000.00. Without consideration of the funds gifted by his parents, the Respondent’s net worth would be approximately $340,000.00.

[83] The Applicant wife’s primary concern appears to be that without the continued payment of spousal support she will likely lose her home. I would more accurately rephrase that concern to reflect that ‘without a steady income stream’ the Applicant will not be able to carry the cost of her home. I accept that if the Respondent’s spousal support payments are terminated and the Respondent chooses to continue with her situation of unemployment, the sale of her home is a likely reality. In short, if she chooses not to earn an income, she will be required to start living off her capital.

[84] This court finds that the Respondent husband’s income is approximately $82,000.00 per year based upon an analysis of the 2015-2017 calendar years. I have considered the expert opinion of Mr. James Hoare and the Income Report filed on behalf of the Respondent (which was not seriously challenged by the Applicant) in reaching this conclusion. I have specifically considered the nature of the Respondent’s self-employment with Hallmark franchises; his business co-ownership with his common law spouse, Ms. Myler; the non-arms’ length payments made to the adult children of Ms. Myler; the expenses deducted in relation to Ms. Myler’s vehicle; the remuneration paid to each the Respondent and Ms. Myler for their roles within the company; the acquisition of additional franchise locations; and the fluctuating annual sales and expenses of the business. This court specifically finds that:

a. It is fair and reasonable to use an average income of $82,000.00 per year, as suggested by Mr. Hoare, in the circumstances of this case, in light of the Respondent’s pattern of income (e.g. fluctuating profit levels) over the past three years;

b. All arms’ length payments to Ms. Myler and her adult children were reasonable and appropriate in the circumstances, in consideration of their respective roles and hours of employment with the business;

c. There is little to no evidence of any unreasonable or personal deductions from the corporate income;

d. The attribution of available corporate income as suggested by Mr. Hoare is appropriate. I specifically note that in his analysis, Mr. Hoare did not restrict the income available to the Respondent on the basis of any repayment of the significant advances of funds to the company by the Respondent’s parents;

e. The Respondent has made extensive financial disclosure of all sources of income available to him, including not only the information required by the Family Law Rules, but also volumes of banking records as requested by the Applicant.

[85] By reason of the support arrangements between the parties since separation, it appears that the Applicant has enjoyed the benefit of a standard of living at least proximate to that enjoyed during the marriage for the past twenty years.

[86] Divorcemate calculations suggest that the mid-range level of spousal support payable, based upon a gross annual income of $82,000.00 for the husband, and $0 for the wife, would be $1,555.00 per month, or $18,660.00 per year. Minimum wage in Ontario is presently $14.00 per hour. I note that, if the Respondent wife secured employment at minimum wage at a part-time rate of 30 hours per week, she would generate more income than the amount which would be payable by the Respondent spousal support.

Conclusion

[87] It is the view of this court, in light of all of the factors and objectives of a spousal support under s. 15.2 of the Divorce Act, that this court is fully justified in immediately terminating the payment of spousal support from the husband to the wife; her entitlement to spousal support has come to an end. The husband has fully satisfied his spousal support obligation to the Applicant on all compensatory, non-compensatory, and contractual grounds.

[88] The parties’ mid-length marriage was not an absolute entitlement to lifetime support. To the contrary, I find that:

a. The Applicant wife has been fully compensated for the economic disadvantages she suffered arising form the marriage and its breakdown by reason of the total financial support paid and received;

b. The financial consequences arising from the care of the children of the marriage have been fully and fairly apportioned between the parties;

c. The post-separation financial support, paid from the Respondent husband to the Applicant wife, both in the form of informal and formal spousal support payments since separation, has or ought to have relieved any economic hardship to the wife arising from the breakdown of the marriage; and

d. The support payments made from the Respondent to the Applicant have promoted the economic self-sufficiency of Applicant to the extent that this is possible and to the extent that she is willing.

[89] It is the opinion of this court that the Applicant wife is intentionally unemployed and has demonstrated an unwavering unwillingness to make efforts to support herself. If she encounters any difficulty in securing employment in the future, which is entirely unknown at this time because she has made no conscientious effort to try, the difficulty will now be attributable solely to her own inaction and failure to plan for the future. I do not accept that the Applicant was prevented from seeking past employment; Jesse’s last seizure occurred in approximately 2008. The Applicant was offered and declined a full-time position of employment in an office setting while he was in high school. The evidence suggests that the Applicant could have been working on a full-time basis for at least the past six years, gaining seniority, developing skills, and working towards real self-sufficiency. In my view, the only substantial roadblock in the Applicant’s employability and self-sufficiency has been, and continues to be, her own reluctance to try. No spousal support award by this court can help to further promote any of the spousal support objectives enumerated in the Divorce Act.

[90] I do not fault the Respondent husband for faithfully honouring his spousal support obligation and failing to bring earlier litigation to address the Applicant’s lack of efforts. In my view, encouraging compliance with domestic contracts and attempting to avoid litigation should not be penalized. The Respondent has been compliant and patient. This court will not prolong the spousal support payments to now permit the Applicant to ‘make a plan’. She was aware in December 2016 by the Respondent’s Answer in these proceedings that he was seeking a termination. Notwithstanding three years’ notice, the Applicant has still made no effort to supplement her income.

[91] I have applied the relevant factors under s. 15.2 and considered the objectives of spousal support with equal balance and importance. In my view, an Order terminating spousal support is the only order that achieves justice on the particular facts of this case and there shall be an order to this effect.

ISSUE #2: CHILD SUPPORT

[92] With respect to child support:

a. Do Kelsey and/or Jesse continue to be children of the marriage as defined by the Divorce Act?

b. If so, is the court satisfied that reasonable arrangements have been made for the support of the children of the marriage such that a divorce should be granted and/or should ongoing child support be ordered?

c. Is there a retroactive overpayment of child support owing by the Applicant wife to the Respondent husband?

d. Is there a support obligation between the parties which requires ongoing security for support in the form of a life insurance beneficiary designation?

THE LAW

[93] The issues pertaining to child support in this proceeding are governed by s. 15.1 of the Divorce Act, the relevant portions of which are as follows:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

[94] Child of the marriage is defined in s. 2 of the Divorce Act:

Child of the marriage - means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[95] The provisions of the Federal Child Support Guidelines, as applicable in this proceeding, are as follows:

Objectives

1. The objectives of these Guidelines are:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Definitions

2. (1) The definitions in this subsection apply in these Guidelines.

child means a child of the marriage. 

Child the age of majority or over

3.(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.

Special or extraordinary expenses

7.(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, 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:

(e) expenses for post-secondary education

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Security

12. The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.

Determination of annual income

15.(1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.

Calculation of annual income

16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Pattern of income

17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

Shareholder, director or officer

18.(1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include

(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

Adjustment to corporation’s pre-tax income

(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

Imputing income

19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

Reasonableness of expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[96] Finally, in considering a request for a divorce, the court has a statutory duty to consider the following, in accordance with s. 11 of the Divorce Act:

Duty of court – bars:

11.(1) In a divorce proceeding, it is the duty of the court

(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made.

[97] The following important principles, as discussed in the Supreme Court of Canada decision of D.B.S. v. S.R.G. are applicable to the case before me:

1. Courts have constitutional authority to make retroactive child support awards under the Divorce Act but this does not imply that they should regularly do so: D.B.S. v. S.R.G., [2006] S.C.R. 231 at para. 93;

2. It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award: D.B.S. v. S.R.G., [2006] S.C.R. 231 at para. 95;

3. Retroactive awards demand a fine balance between certainty and flexibility. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted: D.B.S. v. S.R.G., [2006] S.C.R. 231 at para. 96;

4. Retroactive awards need not be seen as exceptional: D.B.S. v. S.R.G., [2006] S.C.R. 231 at para. 97;

5. There are four factors for consideration by a court in contemplating a retroactive child support order:

a. Whether there is a reasonable excuse for why support was not sought earlier;

b. The conduct of the payor parent;

c. The circumstances of the child;

d. Any hardship occasioned by a retroactive award: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at paras. 93-116;

6. None of these factors is decisive: D.B.S. v. S.R.G., [2006] S.C.R. 231 at para. 99;

7. As a general rule, the date of effective notice should serve as the date to which the award should be retroactive: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 118;

8. Effective notice refers to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 121.

9. It is generally inappropriate to make a support award retroactive to a date more than three years before formal notice was given: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 123;

10. Both original orders for child support and variation orders require that the quantum of any retroactive award ordered be in accordance with the applicable guidelines: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 127;

11. However, courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable Tables is not required – nor is it recommended. There are two ways that the federal regime allows courts to affect the quantum of retroactive awards:

a. The presence of undue hardship can yield a lesser award; and

b. The time period that the retroactive award captures may be altered: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at paras. 127-130.

12. A court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 130.

[98] The factors articulated by the Supreme Court have been held to be equally applicable, with appropriate adaptation, to retroactive support variations that would decrease the quantum of child support: Gray v. Rizzi, 2016 ONCA 152 at para. 51, Colucci v. Colucci, 2019 ONCA 561 at para. 15.

[99] The onus is on the claimant to establish under s. 3(2) of the that the child remains a ‘child of the marriage’ within the meaning of the Divorce Act. The claimant must show that the child is unable to withdraw from her charge or to obtain the necessaries of life. While attendance at University may prevent a child from withdrawing from his parent’s charge, or from being able to obtain the necessaries of life, this must still be proven. Once that is done, the onus shifts to the respondent to establish that payment of the amount set out in the Guidelines would be inappropriate: Smith v. Smith, 2010 SKQB 2, para. 19

[100] In the event that a child has ceased to be a child of the marriage a question may arise whether the child can regain his or her lost status. Each fact situation must be analyzed carefully and the timelines between the time the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully: Lawless v. Asaro, 2003 CarswellOnt 2416.

[101] A non-exhaustive list of considerations as to whether a child over the age of 18 remains a “child” under the Divorce Act include: (1) the child’s eligibility for student loans or other financial assistance, (2) whether the child is engaging in reasonable career plans, (3) the child’s ability to contribute to his or her own support, (4) the parental plans, particularly plans made during cohabitation, (5) whether the child has unilaterally terminated his/her relationship with the payor, and (6) whether the child would have had a reasonable expectation of financial support from one or both parents if the parents’ marriage had not ended in divorce: Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (Sask. C.A.).

[102] The Respondent husband relies upon the following additional cases in support of the proposition that child support should terminate in circumstances where an adult child unilaterally severs a parent-child relationship: Smith v. Smith, 2010 SKQB 2, Law v. Law, 1986 CanLII 6291 (ON SC), 1986 CarswellOnt 284, Green v. Green, 2007 CarswellOnt 664, Lampron v. Lambron, 2006 CanLII 16375 (ON SC), 2006 CarswellOnt 3034.

ANALYSIS

[103] The relevant facts pertaining to the payment of child support in this matter are largely uncontested. Both Kelsey and Jesse testified as to the nature, timing, and cost of their education. I accept the following evidence as fact, as heard through the combination of all witnesses:

a. The parties’ Separation Agreement sets out that child support shall be payable on the first day of each month until one or more of the following occurs:

i. A child ceases to reside with the wife, provided that the child shall be deemed to reside with the wife notwithstanding the fact that the child lives away from home while attending an educational institution, summer employment, pursuing or enjoying a reasonable holiday, so long as the child has not withdrawn from parental control;

ii. A child becomes eighteen years of age and ceases to be in full time attendance at an educational institution, or withdraws from parental control;

iii. A child marries;

iv. A child dies;

v. The wife dies;

vi. The husband dies;

vii. The parties agree on a different amount of child support payable, in accordance with the Child Support Guidelines; and/or

viii. A child completes a first post-secondary course of study in college or university.

b. In addition to Table support the parties’ separation agreement specifies that the parties shall share in proportion to their respective incomes, the payment of any expenses contemplated by section 7 of the Child Support Guidelines on behalf of the children, after taking into account spousal support paid and received.

c. The Respondent husband faithfully paid monthly Table child support to the Applicant, for two children, from January 1, 2005 until June 14, 2018 in accordance with the applicable Table under the Guidelines. The parties adjusted the amount annually to reflect any changes in the Respondent’s income.

d. For the most part the wife did not request, and the husband did not contribute to s. 7 expenses incurred on behalf of the children, including such expenditures as tutoring for Jesse at a cost of approximately $3,000.00 per year;

e. With respect to the child Kelsey:

i. Kelsey turned 18 years of age on February 26, 2012;

ii. She graduated from high school in June 2012;

iii. She commenced a five-year program of post-secondary studies at the University of Western Ontario (Bachelor of medical science with internship) in September 2012;

iv. The internship portion of her program was from May 2015 to August 2016, following her third year of studies. She was initially paid $13.25 per hour and worked 40 hours per week at the internship position. Her remuneration increased to $18.00 per hour over the course of her internship;

v. Kelsey graduated from UWO in April 2017;

vi. While attending UWO, including her period of internship, Kelsey lived in London, Ontario. She returned to stay at her mother’s home regularly on weekends and in the summers;

vii. In September 2018 she commenced medical school at McMaster University. She is currently in her second year. The program is year-round. She rents an apartment in Hamilton, Ontario;

viii. Kelsey has received multiple scholarships and bursaries for her stellar academic performance, and has largely financed the balance of her post-secondary education herself through employment, OSAP loans, and a personal line of credit;

ix. The Applicant wife has not been able to directly contribute to Kelsey’s tuition costs, but has maintained a bedroom for Kelsey in her home and provided her with personal items, furnishings, gas money, and groceries when she is able;

x. Kelsey currently owes approximately $33,000.00 on her student line of credit, $42,000.00 in OSAP loans, and $16,000.00 towards the second half of this year’s tuition. The credit limit on her student line of credit is $180,000.00 and she will rely on this to finance the balance of her medical school costs and living expenses;

xi. The Respondent father has not contributed to the cost of Kelsey’s education, although he did purchase a mini-fridge for her dorm room and has sent cash on birthdays and special occasions;

xii. The Respondent father has not been asked to contribute financially to the cost of Kelsey’s education;

xiii. The relationship between Kelsey and the Respondent is strained and they engage in very minimal communication. She has not seen the Respondent since the summer before her second year of undergraduate studies;

xiv. Notwithstanding the lack of communication between them, the father does not disagree that he was generally aware of Kelsey’s education path;

xv. Kelsey continues to attend at the home of the mother in Brantford on weekends when she is able;

xvi. Kelsey is currently 25 years of age.

f. With respect to the child Jesse:

i. Jesse turned 18 years of age on April 3, 2015;

ii. He graduated from high school in June 2015;

iii. Jesse has continued to reside with his mother at all times. He has never paid rent;

iv. Initially Jesse was scheduled to complete an additional year of high school to improve his grades. It is unclear as to whether he attended any high school classes in September 2015;

v. At the end of the summer of 2015 Jesse started a part-time job at Party City. He then secured a second job in the fall at Best-Buy. Jesse was eventually offered a full-time position at Best-Buy, which he accepted. He continued in this position until October 2018. During that period of time Jesse earned approximately $15.00 per hour. Jesse was hospitalized in July/August of 2018, and was let go from BestBuy shortly thereafter;

vi. With his earnings, Jesse was able to purchase a car and save approximately $6,000.00-$7,000.00 for College.

vii. In October 2018, Jesse was accepted into an accelerated Police Foundations program at Mohawk College in Hamilton. He commenced this program in January 2019 and expects to graduate in May 2020. Jesse takes an additional Security course at Mohawk (full-days) on Saturdays. The cost of Jesse’s education, based upon receipts provided, has been approximately $4,500.00 per semester;

viii. Jesse has depleted his savings and now has OSAP loans owing of approximately $4,000.00-$5,000.00;

ix. Jesse commutes to school from his mother’s home in Brantford five days per week. He relies upon the vehicle he purchased for transportation to and from his program of study;

x. Jesse hopes to complete one additional year of full-time studies at Mohawk College in Advanced Security Management from September 2020 to May 2021. His plan is to continue to reside with the Applicant during this period;

xi. The Respondent father has not directly contributed to the cost of Jesse’s education;

xii. The Respondent father has not been asked to directly contribute to the cost of Jesse’s education;

xiii. Jesse’s relationship with the Respondent is also strained. They communicate by text from time to time, including special occasions;

xiv. Notwithstanding the lack of communication between them, the father does not disagree that he was generally aware of Jesse’s education status;

xv. Jesse is currently 22 years of age.

g. The Applicant wife saved and contributed the sum of $8,000.00 per child in an education savings fund which she has paid toward the cost of their expenses;

h. The mother contributed the additional sum of $2,000.00 towards Jesse’s education in the fall of 2019 and purchased snow tires for his vehicle. She pays for his groceries and day to day living expenses in her home;

i. The Respondent husband’s Answer dated December 14, 2016 sought a retroactive termination of child support for Jesse, effective July 1, 2015;

j. The Respondent husband’s Amended Answer dated January 2, 2019 sought a retroactive termination of child support for Kelsey, effective May 1, 2017.

Status as “Children of the Marriage”

[104] The Applicant’s position at trial is somewhat confusing. While she does not appear to object to the termination of child support, she is opposed to a retroactive credit of child support owing to the Respondent husband, and continues to assert that both children are financially dependent upon her and unable to withdraw from their charge or to obtain the necessaries of life. Both parties were put on notice by the court at the outset of the trial that the parties’ respective claims for a Divorce necessitate an analysis of whether reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and that the issue of ongoing child support would be open for determination by the court.

[105] Both adult children testified at trial. They each provided a detailed account of their educational pathways and work history following high school, including full-time, part-time, volunteer, and apprenticeship positions. They testified as to their respective incomes and expenses, both historic and current. Statements of accounts were produced and explained with respect to the costs of their post-secondary expenses and the financing of same by way of student loans and bursaries. With respect to Jesse, a copy of his course curriculum was produced and explained, including his intentions regarding his programs of study at present and for the 2020-2021 academic year. Both children testified in a candid and straightforward manner. They answered all questioned posed in concise and unemotional fashion. They did not attempt to argue or cast blame; they simply stated their observations and experiences in response to questions posed to them by both counsel. Kelsey and Jesse are both obviously very bright and articulate. I do not hesitate in accepting their evidence as a truthful and accurate depiction of their past and current circumstances.

[106] With respect to the child Kelsey, I am satisfied that it is reasonable to accept the husband’s position that child support should terminate effective May 1, 2017. By this time the Respondent had paid full Table child support for five years, including one year of paid internship. While the father did not make formal contribution to Kelsey’s additional s. 7 expenses, the payment of full Table child support, while she was residing away from home and in the absence of any request for contribution to s. 7 expenses, was reasonable. The parties’ separation agreement expressly provided for child support until the child completed a first post-secondary course of study in college or university. The date of May 1, 2017 is consistent with this Agreement.

[107] With respect to the child Jesse, I am not satisfied that child support should terminate. I do not accept that Jesse is no longer a child of the marriage as defined by the Divorce Act for the following reasons:

a. Jesse continues to reside with the Applicant wife, and relies upon her for housing, food, and basic necessities;

b. Jesse’s hiatus from his schooling was reasonable in light of the learning challenges he has faced throughout his lifetime. I do not accept that simply because his learning pathway was less direct than his sister’s, that he has lost his status as a child of the marriage. They have always had differing abilities and habits in their education;

c. Jesse’s savings from employment during the hiatus have been used reasonably toward the cost of his education and the purchase of a vehicle which is necessary to transport him to and from his educational institution on a daily basis;

d. Jesse is still only 22 years of age and has no further savings, only OSAP debt;

e. His current educational aspirations are reasonable, including a post-graduate year at Mowhak College. It was evident in his testimony that this is a well-laid plan, made with the benefit of having some time to reflect upon his experience in the workforce;

f. Jesse is enrolled in full time post-secondary studies. He has not yet completed a degree or diploma as originally contemplated by the parties;

g. His sister, Kelsey, received benefit of full Table Child support for a period of five years while completing her post-secondary studies and Jesse should be treated in relatively similar fashion.

[108] Jesse continues to be a child of the marriage. Although he is over the age of majority, I am satisfied that he is unable to withdraw from the charge of the Applicant by reason of his attendance in full-time post-secondary studies. He would not be able to obtain the necessaries of life without the assistance of his parents at this time.

[109] On the basis of the above, it is the conclusion of this court that the payment of Table child support on behalf of the child Jesse should be suspended from October 1, 2015 to December 31, 2018, at which time it shall be reinstated until July 31, 2021. This period of child support will presumably permit Jesse to complete his intended education path and allow a brief period of transition into self-sufficiency. I have specifically considered paragraph 12(b)(viii) of the parties’ separation agreement and have extended the Respondent’s child support obligation for Jesse to include the final year of his intended college studies. In reaching this conclusion I note that Jesse was only 8 years of age when the Separation Agreement was signed; his educational abilities, challenges, and aspirations were completely unknown at the time. He is now 22 years of age and has a well-reasoned educational path and career plan. He has the right to benefit from the financial means of both parents and to generally receive consistent treatment with the financial benefit enjoyed by his sibling, Kelsey. The payment of Table child support on Jesse’s behalf during this period is presumptively reasonable on the facts of this case given the character of the payments made by the Applicant (i.e. Jesse’s shelter, food, basic necessities, etc.) and Jesse’s continued plan to reside with the Applicant. It is hoped that with receipt of the payment of Table child support for this period of time, in combination with the Applicant’s own income stream, that the Applicant wife will be able to maintain a residence for herself and the child Jesse until the completion of his post-secondary studies. In the event that Jesse does not enroll in the additional year of post-secondary graduate studies as contemplated in the year immediately following his current enrollment, child support shall terminate on July 31, 2020.

[110] In reaching this conclusion I have also considered the Respondent’s argument that his support obligation for Jesse should terminate, in part, as a result of the strained relationship between them. I am not satisfied that the child Jesse has unilaterally terminated his relationship with the Respondent father. While their relationship cannot currently be classified as a strong one, in my view there has not been a total repudiation. Distance and time apart have contributed to the current state of their relationship. There has not been a complete cessation of communication between them, and I do not fault either the child or the father for the current state of their relationship. In his testimony regarding the Respondent’s last visit with the children he stated “some things were said - I got the impression that they didn’t want to see me anymore”. I am not persuaded on the evidence before me that Jesse has rejected all overtures and possibility of reconciliation with his father. I have considered the strength of their relationship in my decision, but the court cannot find this factor to militate against the Respondent’s obligation to contribute towards Jesse’s basis needs. The caselaw provided by the Respondent on this issue is distinguishable on the facts.

[111] In conclusion, I find that there is an ongoing obligation on the part of the Respondent to pay Table child support to the Applicant on behalf of the child Jesse. Without payment of this amount, this court would not be satisfied that reasonable financial arrangements are in place on behalf of Jesse, who continues to be a child of the marriage as defined by the Divorce Act. In reaching this conclusion, this court specifically declines to impart a further obligation on the Respondent to contribute to Jesse’s s. 7 expenses in consideration of the lack of request for same, the circumstances of the relationship between the Respondent and Jesse, and the discussion with respect to a potential overpayment of child support which follows below.

[112] Finally, it is appropriate on the facts of this case to rely upon the expert opinion as to the Respondent’s income, as discussed above, for the balance of the term of child support owing by the Respondent. His income has been thoroughly analyzed in this proceeding, at considerable expense and with extensive exchange of financial disclosure. In my view, the average income of $82,000.00 attributed to the Respondent for purposes of support is a reasonable amount upon which to base the remaining period of support. There shall be no order for further income disclosure between the parties.

Retroactive Adjustment of Child Support

[113] This court has found that it is appropriate to terminate child support for the child Kelsey as at May 1, 2017, and to suspend child support for the child Jesse for the period of October 1, 2015 to December 31, 2018. This court has also held the Respondent’s income for purposes of support is $82,000.00. This court must therefore determine whether there is a retroactive payment of child support owing between the parties.

[114] An analysis of the applicable child support Tables during the relevant time period of ‘entitlement’ reveals the following:

Date	Description	Amount Payable	Amount Paid	Difference
Oct. 1, 2015 to Dec. 31, 2015	Table child support for Kelsey	$738.00 per month =$2,214.00	=$5,646.30	Overpayment: ($3,432.30)
Jan. 1, 2016 to Dec. 31, 2016	Table child support for Kelsey	$738.00 per month =$8,856.00	=$18,019.88	Overpayment: ($9,163.88)
Jan. 1, 2017 to April 30, 2017	Table child support Kelsey	$738.00 per month =$2,952.00	=$4,676.68	Overpayment: ($1,724.68)
May 1, 2017 to Dec. 2017	No child support payable	=$0	=$9,353.36	Overpayment ($9,353.36)
Jan.1 2018 to June 14, 2018	No child support payable	=$0	=$6,475.40	Overpayment ($6,475.40)
June 15, 2018 to Dec. 31, 2018	No child support payable	=$0	=$0	=$0
Jan. 1, 2019 to present	Table child support payable for Jesse	$764.00 per month =$9,932.00	=$0	Underpayment =$9,932.00
Total Overpayment				= $20,217.32

[115] It is evident on this math that the Respondent has potentially overpaid child support to the Applicant wife in excess of $20,000.00. However, simply because the court has authority to order a retroactive award does not mean that it automatically should. An analysis of the D.B.S. factors, as modified to reflect a request for a retroactive reduction or overpayment of child support is necessary.

[116] This court is particularly concerned with the date of effective notice of the Respondent’s request to terminate child support. As a general rule the date of effective notice should be the earliest date for calculation of retroactive support. The only evidence of any request to terminate child support in this matter, apart from the cessation of payment itself, took the form of formal notice in the Respondent’s pleadings. That is, the only evidence of notice brought to the attention of the court was:

a. A request for termination of child support for Jesse on July 1, 2015 made on December 14, 2016 in the Respondent’s Answer;

b. The deliberate cessation of all child support payments on June 14, 2018; and

c. A request for termination of child support for Kelsey on May 1, 2017 made on January 2, 2019 in the Respondent’s Amended Answer.

[117] The court did not hear evidence as to why the issue of a retroactive adjustment was not raised earlier. The parties were fairly consistent in their evidence that, although that Respondent was not always provided with specific details, he had a general awareness of the status of the children at all relevant times; at minimum he was aware of the graduation dates of each child through discussions with the Applicant or the children or his own investigation. The Respondent continued to pay child support to the Applicant despite his awareness of the circumstances of the children of the marriage. I am mindful that, when balancing the competing principles of certainty and flexibility, support arrangements should not be gratuitously disrupted when the arrangements appear settled between the parties.

[118] I find that effective notice of an intention to terminate child support was given to the Applicant by the Respondent on December 14, 2016 with respect to the child Jesse, and on June 14, 2018 with respect to the child Kelsey. To be clear, in normal circumstances a payor’s failure to pay child support should not be construed as effective notice. However, on the facts of this case, where there is a long history of diligent and timely payment of support, and no evidence of any other interruption in payment or intent to evade the support obligation, the Respondent’s cessation of payment (the child support component only) on June 14, 2018 signified a clear intention to the Applicant of his position on this issue.

[119] A modified analysis of the applicable child support payable, corresponding to the dates of effective notice given, reveals the following:

Date	Description	Amount Payable	Amount Paid	Difference
Jan. 1, 2017 to December 31, 2017	Table child support Kelsey	$738.00 per month[^1] =$8,882.00	=$14,030.04	Overpayment: ($5,148.04)
Jan. 1, 2018 to June 30. 2018	Table child support Kelsey	$764.00 per month =$4,584.00	=$6,475.40	Overpayment ($1,891.40)
Total overpayment				=$7,039.44

[120] By comparison of the two tables above, it is evident that the total overpayment of child support made to the Applicant during the period of time that she was had no notice that such a claim was being advanced, was significant. Put another way, after receiving effective notice of the Respondent’s intention to terminate child support for each child, the Applicant continued to collect an additional $7,039.44 in child support from the Respondent to which she was not entitled and was given proper notice. However, as indicated, this court has also found that entitlement to child support on behalf of the child Jesse was reinstated as at January 1, 2019. The child support payable on behalf of Jesse from January 1, 2019 to present was $764.00 per month for a period of 13 months, totaling $9,932.00. The mother’s Reply, dated January 11, 2019, continued to assert that Jesse was dependent upon his parents for financial support; the father had notice of this position at all relevant times. These calculations, in my view militate against a retroactive award owing to the father.

[121] In considering the conduct of each party, I simply note that the Respondent continued to pay support, and the Applicant continued to apply the monies to the benefit of the children, regardless of their lost or suspended status as ‘children of the marriage’. I find no blameworthy conduct on the part of either party.

[122] Finally, I find that the circumstance of the child Jesse and the hardship upon the Applicant if a retroactive award were to be granted are directly related. A retroactive award requiring the repayment of monies received by the Applicant, would cause significant hardship to the Applicant. She now faces a future without receipt of spousal support, a significant and substantial change to her financial situation. A retroactive overpayment of child support award in favour of the Respondent, in addition to this change, would be crippling. The impact would be felt by Jesse, who continues to reside in the Applicant’s home and rely upon her financial support.

[123] As such, it is the conclusion of this court that there should be no retroactive adjustment of child support in this matter in favour of either party. In reaching this end result, it is also the conclusion of the court that the Respondent shall not be required to contribute to the s. 7 (i.e. post-secondary education costs) of Jesse, as discussed above. In my view, this is the result that best fits the circumstances of the case and resonates with the objectives of the Federal Child Support Guidelines.

Life Insurance

[124] The court’s jurisdiction to Order security for child support is found in s. 15.1(4) of the Divorce Act. Careful consideration should be given to the amount of insurance that is appropriate. It should not exceed the total amount of support likely to be payable over the duration of the support award: Katz v. Katz, [2014] ONCA 606 at para. 74.

[125] The parties’ Separation Agreement required the Respondent husband to maintain group term life insurance coverage of $302,000.00 naming the Applicant wife and children as beneficiaries of the policy for as long as he is obligated to pay child or spousal support. Further, pursuant to the terms of the Agreement, the husband transferred his ownership interest in a specific “Sovereign” life insurance policy to the wife. The intention of the life insurance provisions of their agreement were acknowledged by both parties as being a fund to provide security for the husband’s support obligation. That is, not as a windfall to the Applicant.

[126] The evidence at trial confirmed that (1) the husband no longer has group term life insurance coverage as a result of his change in employment, and (2) the current value of the Sovereign life insurance policy which was transferred to the wife is approximately $16,500.00.

[127] As per the ruling of this court, the Respondent has no further spousal support obligation to the Applicant and therefore there is no further need for security for spousal support. With respect to child support, the outstanding obligation of the Respondent is in close proximity to the value of policy transferred to the wife in 2006. In short, his outstanding obligation has been adequately secured by the transfer of ownership which has already taken place. There is no further need for the Respondent to provide security for support, and any obligation to this effect shall be terminated.

ORDER

[128] On the basis of the above, there shall be a Final Order as follows:

1. Mary Louise MacEachern and William Lawson MacEachern, who were married at London, Ontario on May 24, 1986 shall be divorced, and that divorce shall take effect 31 days after the date of this Order;

2. The Respondent’s obligation to pay spousal support to the Applicant shall terminate effective January 31, 2020;

3. The Respondent’s obligation to pay child support to the Applicant on behalf of the child Kelsey MacEachern, born February 26, 1994, shall terminate effective May 1, 2017;

4. Commencing February 1, 2020, the Respondent husband shall pay Table child support to the Applicant wife in the sum of $764.00 per month on behalf of the child Jesse MacEachern, born April 3, 1997, based upon an average annual income of $82,000.00 per year, in accordance with the Federal Child Support Guidelines;

5. The Respondent shall not be required to contribute to s. 7 expenses incurred on behalf of the child Jesse MacEachern;

6. The Respondent’s obligation to pay Table child support to the Applicant on behalf of the child Jesse MacEachern shall terminate on July 31, 2021, however, in the event that Jesse does not enroll in one further consecutive year of full-time post-graduate studies the Respondent’s child support obligation shall terminate on July 31, 2020;

7. There shall be no retroactive child or spousal support owing between the parties;

8. There shall be no further obligation on the Respondent to maintain life insurance as security for support;

9. There shall be no further obligation for the annual exchange of financial disclosure between the parties;

10. An SDO shall issue;

11. All other claims are dismissed.

[129] The parties are strongly encouraged to resolve the issue of costs. If the parties are unable to reach agreement on this issue, the party seeking costs shall serve and file written costs submissions on or before March 2, 2020, and any response shall be served and filed on or before March 23, 2020. Costs submissions shall not exceed five pages in length, exclusive of Bill of Costs and relevant Offers to Settle. If no submissions as to costs are filed by March 2, 2020 the issue of costs shall be deemed settled.

CONCLUDING REMARKS

[130] On a final note, it was humbling for the court to witness two parties advance their case without reference to any derogatory remarks or negative commentary against the other spouse. It is clear that, despite their inability to resolve their financial issues, each party still maintains some degree of respect and fondness for the other and a strong love for their children. The parties and their counsel are both to be commended for advancing their positions at trial in this manner; it is not seen enough in family court. It was also evident to the court that the current state of the Respondent’s relationship with his adult children is causing pain for the entire family. It is hoped that with the resolution of the financial issues, the Applicant and Respondent can both work toward repairing these relationships for the long-term health of the entire family.

Bale J.

Released: January 2, 2020

COURT FILE NO.: D-15091/16

DATE: 2020-01-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary-Louise MacEachern

Applicant

• and -

William Lawson MacEachern

Respondent

REASONS FOR JUDGMENT

The Honourable Madam Justice L. Bale

Released: January 2, 2020

[^1]: The Table child support payable effective December 1, 2017 was increased to $764.00 as per the updated Tables