COURT FILE NO.: 445/19
DATE: 2021-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kimberly Joy Rideout
Applicant
– and –
James Matthew Rideout
Respondent
Self-Represented Applicant
Mehwish Rasheed, Counsel, for the Respondent
HEARD: March 12, 13, September 14, 15, 16, 17, 18, 21, 22, 24, 25, 28, 29, October 2, 2020
JUDGMENT
the honourable madam justice m. mclaren
[1] The trial in this matter took place over 14 days. The first two days were in March 2020 and they were devoted to procedural issues. Due to issues surrounding the suspension of regular court operations in mid-March, the trial did not resume until September 14th, 2020.
[2] The issue was child support but there were several components. Each party had a different interpretation of the Separation Agreement they signed in October 2005. There was also a dispute over where the children were living at different times.
Undisputed Facts
[3] I did not receive an Agreed Statement of Facts, but each party provided their own fact sheet. The following facts appear to be undisputed:
a) The parties were married on July 3rd, 1993 (there is a dispute as to whether or not they lived common law for a period prior to marriage).
b) There were three children born of this marriage namely:
• Victoria Rideout born April 4th, 1999;
• Jacob Rideout born November 24th, 2000; and,
• Natasha Rideout born May 21, 2002.
c) In the early years of marriage, the Respondent was working at Ford Motor Company and he still us. The Applicant was working in an office for a transit company in Mississauga.
d) The parties moved several times during the early years of marriage due to promotions that the Respondent received. They lived in Western Canada for about 7 years. They moved to Regina, Saskatchewan, and then to Calgary, Alberta, followed by Edmonton, Alberta.
e) They separated in December 2004 and were divorced on November 1st, 2006.
f) An Application was issued by the Applicant on March 28th, 2019. She made a claim for child support for all three children in the amount of $2,829.00 per month. She also asked for “Life Insurance, Vehicle, and compliance with Separation Agreement and costs.”
An Answer was signed on May 13th, 2019 and the Respondent made claims for child support and costs. He also requested reimbursement of any overpayment of child support and extraordinary expenses.
g) As of the conclusion of this trial in early October 2020, Victoria was attending Niagara College, and living in Grimsby. Jacob was attending Brock University and living in St. Catharines. Natasha was attending Wilfred Laurier University, and residing in an apartment for students in Waterloo. The Applicant was 52 years of age and the Respondent was 53 years of age.
h) Child support has been paid throughout by the Respondent until he stopped paying in 2018, although the parties disagree as to whether it was the correct amount. On June 24th, 2019, a temporary order for child support was made on a “strictly without prejudice basis” at a case conference. Mr. Rideout was to pay child support in the amount of $944.00 per month commencing June 15th, 2019. This was based on him earning $145,831.00 in 2018 and Ms. Rideout having an imputed income of $30,000.00. It was a set off formula based on Jacob living with the Respondent and Natasha residing with both parties equally. Victoria does not appear to have been considered in this order and no calculations were provided as to how the amount of $944.00 was arrived at.
i) Following separation, Ms. Rideout remained at the matrimonial home at 2124 Baronwood Drive, Oakville and this was agreed to be the primary residence of the children. It was agreed that Mr. Rideout would continue to pay the mortgage and all related expenses including all utilities, for as long as at least one child was still considered a dependent and until Ms. Rideout remarried or cohabited, or decided to sell the home. Upon sale she was to retain the equity. Ms. Rideout chose to sell the home in May 2006 and received approximately $165,000.00. In December 2006, she married Mr. Wowk. That marriage lasted a little over a year. She and Mr. Wowk bought a house and when it was sold, she had approximately $237,000.00. She later entered into a relationship with her current partner, Paul Chivers. They purchased a home in Oakville but later separated and that home was sold. Ms. Rideout and Mr. Chivers reconciled and lived in a rented home in Oakville for a time. A home in Hamilton was purchased by Ms. Rideout and used as a rental property until the COVID-19 lockdown took place and the student tenants left. She and Mr. Chivers reside there now. Mr. Chivers also owns a seasonal home in the Bracebridge area.
j) The Applicant informed the court at the resumption of the trial in September that she had been recently diagnosed with gastrointestinal cancer. She began chemotherapy on September 9th, 2020. A letter from her oncologist was filed. Dr. Levine wrote “I am concerned that side effects such as nausea, fatigue, poor concentration and pain may interfere with her ability to participate in court proceedings.”
k) Ms. Rideout was very clear in her desire to continue with the trial despite the fact that she could have requested an adjournment for health reasons. I told her to let me know anytime that she needed a break or was not feeling well, and I checked with her every day to make sure she was able to continue as did counsel for Mr. Rideout. She estimated that her chances of survival of this type of cancer was 5% but I did not receive medical evidence of this.
Separation Agreement
[4] The parties’ different interpretations of their Separation Agreement dated October 21st, 2005 was an important part of this litigation.
[5] They physically separated on December 29th, 2004. There is no dispute that the Applicant drafted the agreement herself from doing some research on time. She took it to a lawyer in Burlington. According to Mr. Rideout, the lawyer in Burlington suggested a different wording for paragraph 3.1 and Ms. Rideout changed paragraph 3.1 to read as it did when the parties signed it. Mr. Rideout took the agreement to a different lawyer in Burlington. Ms. Rideout signed on October 19th, 2005 and her lawyer signed a certificate of Independent Legal Advice on that date. Mr. Rideout signed the agreement on October 21st, 2005 and his lawyer signed a certificate of Independent Legal Advice on that day.
[6] Neither party recalled receiving a reporting letter from counsel and neither of these lawyers were called as witnesses. Ms. Rideout said her lawyer from this time is now retired.
[7] The key parts of the Agreement read as follows:
- Background
(4) The parties made a decision to separate in December 2004 and physically separated on December 29th, 2004.
(5) The husband is a National Dealer Education and Training Manager for Ford Motor Company of Canada and earns approximately $87,000.00 annually.
(6) The wife is a stay-at-home mother and a mural artist who makes approximately $5,000.00 annually.
(7) The parties have agreed to enter into the following agreement which is a domestic contract within the meaning of the Family Law Act, S.O. 1990, c.F.3 (herein referred to as the Family Law Act).
CUSTODY
With regards to Victoria, Jacob and Natasha hereafter referred to as “the children”, custody has been agreed upon as follows; the children will reside at 2124 Baronwood Dr., Oakville, ON with their mother who will maintain the children at this primary residence.
The husband will have joint custody of the children which will include access, as agreed upon by both parties and failing agreement at least as follows; every other weekend (being picked up by 6:00pm, Friday and returned by 8:00am Monday morning), as well as every Monday and Tuesday evenings (being picked up by 6:00pm and brought to school [or home during the summer months], the following morning by 8:00am).
SUPPORT
The husband has agreed to continue to pay for the mortgage installments (principal and interest, and as renewed at the end of term, with the acknowledgement that the principal amount of mortgage is not to be increased), of 2124 Baronwood Dr., Oakville, ON inclusive of all running costs of said resident (property taxes, hydro, gas, electric, Bell Services, satellite services, maintenance and repairs to such amenities), for as long as one or all of his children and dependents are attending post-secondary institutions, or until such time as the wife remarries or co habitats or chooses to sell the home or the said residence is no longer the primary place of residence at which time the husband agrees to pay child support in the amount of $1,400.00 per month (or amount as stated by the law at the time it becomes relevant based on his income) for as long as one or all of his children are dependents or attending post-secondary intuitions. The husband also agrees to relinquish all claim to the equity in said residence, signing over title and ownership to the wife upon the mortgage becoming free and clear, or until such time as the wife remarries or co habitats.
The husband has agreed to continue to provide a new vehicle and insurance of that vehicle for as long as one or all of his children are dependents or attending post-secondary institutions or until such time as the wife remarries or co habitats. As long as the husband is to provide a new vehicle and insurance, the wife agrees that under no circumstances is anyone permitted to drive said vehicle other than herself.
If the wife remarries or co habitats, the husband agrees to provide a new or maximum 3 year old vehicle for as long as the vehicle is still within its warranty period. The husband will continue to provide a new or maximum 3-year-old vehicle until one of all of his children are dependents or attending post-secondary institutions. The wife would be responsible for all regular maintenance and insurance.
The husband has agreed to continue to cover all medical, drug and dental insurance for the wife and the children either through an employee program or through external insurance coverage until such time as the wife is eligible under an alternative plan. The children will continue to be covered under the husband’s employee program.
Any costs incurred with regards to raising the children such as lessons, school trips, sports programs and equipment, camps, extracurricular activities etc. will be agreed upon and shared by both parents prorated according to income.
The husband has agreed to contribute the equivalent of 2% of his gross salary on a monthly basis into an RRSP for the wife (currently equates to $146.16/month, $1,753.92/year). The annual contribution is to be capped at a maximum contribution of $3000. The percentage is indexed and will therefore increase as his salary increases until such time as the wife remarries or co habitats.
The husband agrees to maintain existing life insurance policy in the amount of $294,000.00 on his life provided that the benefit is available to the husband through his employer, naming the children as beneficiaries. In the unfortunate event the husband dies prior to all children reaching the age of 18, the funds would then be allocated to a trust fund that would be administered by the wife for the sole intention of post-secondary education or will be administered by the children once they have reached legal age.
The husband will pay the above financial commitments in lieu of child and spousal support. In doing so, the wife agrees to relinquish any rights in regard to spousal support.
ASSETS
Any current holdings (as of December 29th, 2004) within the Ford Motor Company including all savings and Stock options will be divided equally between both parties upon the dissolution of the marriage. These holdings are inclusive of the following: 350 stock options in Ford Motor Company, of which the wife is entitled to 175 options and can exercise her option on these stocks at her own accord.
Both parties agree that all existing RRSPs will remain as they currently exist and will not be divided as part of the assets including all equity in the residence. Holdings are as follows:
Wife: $37,849.30 (Fidelity Investments, value as of March 31, 2005)
$9,500.00 (Investors Group)
Husband: $23,902.78 (Fidelity Investments, value as of March 31st, 2005)
With regards to the pension, the amortized amount or any amount owed to the wife upon dissolution of the marriage will be relinquished in lieu of the equity in the residence.
PROPERTY
The property of 2124 Baronwood Drive, Oakville, ON will continue to be the primary residence of the wife and children, therefore any decision regarding the property will be made by the wife.
Both parties have agreed that all the furnishings and belongings in the home will stay with the exception of one sofa-bed, one large-screen television, one home theatre system, one wooden upholstered chair, one coffee table, one pine blanket box and all personal belongings of Jim Rideout’s (including all clothing, personal memorabilia, family heirlooms, photos, sporting equipment, books and compact discs).
LEGAL ADVICE AND FINANCIAL DISCLOSURE
The husband and the wife;
(a) have the opportunity of obtaining independent legal advice;
(b) fully and completely understand the advantage and disadvantages of obtaining independent legal counsel and have therefore come to this agreement in order to settle their affairs between themselves without conflict and have this Agreement reviewed and signed by independent council.
(c) Understand their respective rights and obligations under, and the nature of consequences of this Agreement;
(d) Have made full disclosure of their financial circumstances to the other; and
(e) Are signing this agreement voluntarily.
I believe that the word counsel was intended in subparagraph 10(b).
[8] The parties agree that there was no valuation done in regard to Mr. Rideout’s employee pension when this agreement was prepared, reviewed, or signed.
[9] The interpretation of paragraph 3.1 is the key area in dispute.
[10] The Applicant believes that it means that the respondent was to pay child support based on the table amount under the Federal Child Support Guidelines (FCSG) (5 O.R/97-175, as am.) for all three children until the last child stopped being a dependent. This would mean that if the third child was still in University, and perhaps for a post graduate degree, that child support would still be paid in the table amount for all three children even if the older two had been out working for several years and were fully independent.
[11] Ms. Rideout believes this interpretation was fair and appropriate because there was no spousal support paid and there was no equalization of Mr. Rideout’s pension.
[12] Mr. Rideout believes that spousal support was made up for by the fact that Ms. Rideout retained the equity in the matrimonial home, and she had more Registered Retirement Savings Plan (RRSP) funds than he did upon separation all of which were acquired during the marriage. She also had the use of a leased car for several years.
[13] He believes that the Separation Agreement said that he could pay either $1,400.00 per month or the amount that was in accordance with the FCSG table amount.
Witnesses
[14] The following people testified during the trial:
Kimberly Rideout – the Applicant
Paul Chivers – the Applicant’s partner
James Rideout – the Respondent
Terry Binet – a former neighbour of the Respondent
Darlene Jeffrey – a friend of the Respondent through hockey
Shelley Rideout – the Respondent’s current wife
[15] The Respondent had some other names on his witness list which he withdrew during the trial to help shorten the proceeding and due to the fact that two of them were relatives of Ms. Rideout who was dealing with health challenges.
[16] I will provide a brief summary of the evidence of the parties and witnesses.
The Applicant Kimberley Rideout
[17] Ms. Rideout spoke about many of the points set out in the undisputed facts.
[18] We heard about how she obtained an athletic scholarship to the University of Indiana, after high school and she was on the swim team there. Mr. Rideout was described as her high school sweetheart. He went to St. Mary’s University in Nova Scotia and was on the hockey team. After one year of University, Ms. Rideout decided to return to southern Ontario. She studied graphic design at Sheridan College for a semester but then proceeded to McMaster University where she obtained a degree in art and art history. Mr. Rideout also returned to the area after starting University in Nova Scotia and he too attended McMaster University.
[19] It is Ms. Rideout’s evidence that the parties lived together in a renovated apartment in her parent’s home for close to two years before marriage. They worked hard to renovate it. She recalled various events there, and some occasions when they entertained. They purchased their first home in Burlington, after they were married and ready to leave the basement apartment, but they were not there long due to the Respondent’s promotions.
[20] Once they left for the West, the only income Ms. Rideout had was from any sales of her artwork. Her specialty was wall murals and photos of her work were provided. She spoke frequently about the number of times she has donated her artwork to charitable organizations. She said she has not been able to generate a large income from sales of her artwork. She said that when they were living in Western Canada, she tried to arrange a job painting a mural in the Oakville area so that she could use the funds to pay for a trip home to visit family again after her job in the transit office ended, which was before any of the children were born. Her only source of income since separation has been the child support Mr. Rideout pays and any payment for any sales of her artwork.
[21] The parties had three children relatively close together, and they moved a few times so the Applicant’s main duties in the early years were to look after the children. She frequently described the job of Mom as being full time. We heard about how she was involved in the children’s schools and was actively engaged in all their activities. She used her art skills to paint sets for school plays. We heard about the Halloween parties she organized for the children that were considered legendary among their friends. She describes herself as being 1,000 percent involved with the children and their activities.
[22] Although the Separation Agreement left each party with 7 overnight times with the children every 14 days, Ms. Rideout believes she clearly had the majority of the time with the children because she is the one who dealt with the school and all of the afterschool activities.
[23] We heard about the time Victoria had to go to the hospital and the time that Natasha did, and how she was the one who took charge of the situation even though Mr. Rideout said they were living with him. This included taking Natasha to SickKids hospital in Toronto in November 2017.
[24] The Applicant spoke about three times that the Respondent had extramarital affairs. The last one led to the breakup of their marriage
[25] Ms. Rideout provided a spreadsheet which shows what child support was paid from May 2006 to September 2020, and what should have been paid if the FCSG table amount was applied. According to her calculations, the sum of $277,019.35 was paid and the sum of $416,778.72 should have been paid leaving a shortfall of $139,759.37. Her calculations are based on the entire table amount for all the children regardless of where they were living or whether or not they were all in school. She believes her home was always the primary residence however.
[26] Correspondence was provided that showed correspondence between two counsel in 2019 which showed that financial disclosure was provided by Mr. Rideout at that time for the years 2007 to 2018. In cross-examination, correspondence between counsel in October 2007 was identified that showed that it was agreed that support would be in the amount of $1,736.00 per month as of June 1st, 2007.
[27] The Applicant produced calculations which showed that if childcare had been needed while the children were growing up, it would have cost a total of $346,932.00.
[28] Subject to certain terms, the Respondent was obliged to provide her with a car until the children were no longer dependents. Ms. Rideout says he arbitrarily stopped paying for her lease on October 2018 causing great expense for her. She also said he forged her signature when an agreement was prepared which allowed him to deduct an amount from child support every month to account for the difference for the upgraded lease she wanted.
[29] We heard about money given by Ms. Rideout and Mr. Chivers to the children to help with the children’s post-secondary school expenses. Often this was by e-transfer and it was always by arrangement made directly with the children. For example, she had been paying for Jacob’s rent at Brock University every month. We saw a list of electronic transfers from the Applicant to the children in the amount of $6,640.00 from May 12, 2018 to October 10, 2019. We saw a schedule that showed $3,000.00 spent on the girls’ cell phones, plus a list of an additional $11,511.97 spent on the children’s phones, computers and computer accessories. There was another list of credit card charges by the children for a total of $4,350.00. Another list shows purchases totaling $7,824.97 and $11,511.97 for items or services paid for by Mr. Chivers for computer and telephone purchases and repairs between 2017 and 2019. She also provided a list of electronic transfers from Mr. Chivers to the children and it came to a total of $9,470.00 between 2017 to the present. A list of her own electronic transfers to the children from 2017 to the present came to a total of $10,613.00.
[30] The Applicant said she asked the Respondent verbally for information about his income over the years, but he did not cooperate. When asked in cross-examination to give examples she said she asked during some of the children’s activities. She believes this was at a soccer game in 2010, and at the hockey arena in 2011, 2013, and 2014.
[31] We saw an email exchange from 2007 where financial issues were raised by Ms. Rideout and Mr. Rideout responded by saying “you are nothing but a self-centered money hungry individual.” Ms. Rideout said she believes that Mr. Rideout paid his support in odd numbers (as opposed to round numbers) with cents included to make it look like it was a proper calculation.
[32] Ms. Rideout recalled the time prior to Jacob beginning University when the two parents and two stepparents met in Mr. Rideout’s backyard. They agreed to require Jacob to pay 50% of his expenses and that the parents would split the rest. The parties disagree as to whether or not this meeting applied to just Jacob (Applicant’s position) or all the children (Respondent’s position). Ms. Rideout however also spoke of a verbal agreement whereby the contribution towards post-secondary education would be divided as follows:
50% of the expenses could be paid by the children themselves, from part-time jobs, summer employment, loans, grants or scholarships;
The balance would be paid by the parents; being 90% from Mr. Rideout and 10% by Ms. Rideout due to the large difference in their incomes.
[33] The Applicant said that Mr. Rideout was supposed to keep up a Registered Education Savings Plan for all three children pursuant to a verbal agreement and he did not continue it to a degree that he should have. This arrangement was described as a verbal agreement.
[34] We heard about arrangements that were made when Jacob played a lot of hockey, which was based in Oakville, had part time jobs in the Oakville area, and went to school in Oakville, at a time when Ms. Rideout lived in Hamilton and Mr. Rideout lived in Oakville. She acknowledged that Jacob stayed overnight at this father’s house more often, but she still claims that her home was Jacob’s main residence along with the other children. She said they would sometimes all stay at her parents’ home in Oakville overnight to be ready for an early start. On other occasions, she said, she drove Natasha and Jacob to Mr. Rideout’s home before school, and then Jacob drove Natasha and himself to school in a car he had at Mr. Rideout’s home. She said this happened frequently.
[35] Ms. Rideout said she agreed to use the father’s Oakville address for school purposes when she moved to Hamilton, but this did not mean that the children lived primarily with Mr. Rideout. It just meant that they could continue going to their same schools.
[36] She was shown an email exchange between the parties in cross-examination where she appeared to be complaining about the amount of time the children were spending with Mr. Rideout. This exchange was in October 2016. Ms. Rideout said that it did not mean the children were residing primarily with Mr. Rideout. It just meant that they were there more than usual. At the time Victoria had a job in Bronte and Jacob had hockey in Oakville. She said that they may have spent 8 to 10 overnights out of 14 at their father’s home for a while during this period but she made dinner for them at her parent’s home in Oakville. Her father had major heart surgery around this time, so she was at her parent’s home often.
[37] The email print out shows the following comments by the Applicant to the Respondent on October 19th, 2016:
“Since the school year has started back up, the kids seem to be working most Thursdays (and Jake many Tuesday nights and V sometimes too) and now with V having swimming on Wed/Fri mornings, I have lost many of my nights with them… I would like to ask you if we can switch weeknights with the kids so I would have them Mon/Wed and you would have them Tues/Thursday for the remainder of the school year or while I am still in Hamilton as I am not getting near enough time with them because they are staying with you on many of my nights out of convenience and I am missing my time with them drastically…”
[38] The Respondent responded: “No, thank you.”
[39] The Applicant then replied:
“I am entitled to my time with the kids and changes in circumstances have resulted in my losing my time with them while you have gained that time. I am missing the kids terribly and want my time with them. Their jobs (which are located in close proximity to your home) and their work/school/activity schedules make it extremely difficult and often impossible for them to be with me under our existing schedule, so as such I am proposing a simple switch of nights Monday and Wednesday for Tuesday and Thursday our weekends still remain the same until such time as circumstances may allow us to switch back. The way neither one of us if affected by the number of nights we have them and the kids get to see/spend time with both of us.”
[40] Ms. Rideout agreed in cross examination that all three children attended Oakville schools from January 2015 to June 2015, but that Victoria alone opted to go to a school in Hamilton in September 2015 as her mother was living there by then.
[41] The Applicant did not agree with the Respondent’s estimate that the household contents that she kept at separation were worth $30,000.00. She thought at best it might be $5,000.00.
[42] Various periods of time were reviewed in cross examination. We heard that Victoria was not in school from July 2018 to December 2018. She was back in school at Mohawk College from January 2019 to April 2019. She tried George Brown College from September 2019 to December 2019 but attended few classes. Ms. Rideout acknowledged in cross examination that her interpretation of the Separation Agreement is such that if Natasha is in post-secondary school long enough to do a second degree, and even if it is a total of 10 more years, that Mr. Rideout would have to pay the table amount for all three children for that entire time. However, she said that she would likely come to a new arrangement if Natasha stays in school that long.
[43] When asked if she thought paragraph 3.1 of the Separation Agreement was ambiguous, she said “absolutely not – not even remotely.”
Paul Chivers
[44] Mr. Chivers is the fiancé of the Applicant. They met during the summer of 2008. They separated in 2012 but reconciled in the summer of 2016.
[45] They purchased a lot in Oakville from a developer in 2009 and had a house built. They were able to move in, in the Spring of 2011.
[46] Mr. Chivers has not previously been married and he has no children of his own. He says he has been self-employed his entire life and said that he ran a professional services business using software. He believes he was the first to stream live amateur sports events and he has a company that did this.
[47] The witness recalled that when the parties were together from 2008 to 2012 the parties followed the schedule set out in their separation agreement. However, if an issue came up during the school day, the Applicant was in charge. He described Ms. Rideout as being involved “24/7” with the children.
[48] He spoke about all the activities the children were in and Ms. Rideout’s involvement in the activities, along with events that he was involved in.
[49] The house they were living in, in Oakville, was sold after they separated. A month or two after they reconciled in 2016, Mr. Chivers was residing in Hamilton at Ms. Rideout’s home on Grant Ave. He remembers driving the children to go to school in Oakville from Hamilton. He remembers Jacob staying at his father’s home more often than usual when he worked late at his part time job at a Sobey’s store in Bronte. For about 6 to 8 weeks, Ms. Rideout and Mr. Chivers and the children stayed at her parents’ home in Burlington as her father was recovering from double by-pass surgery.
[50] Mr. Chivers was asked about the period of January 2017 to June 2017 and he said the regular routine and schedule was followed.
[51] He spoke about the time that they had to take Victoria to the hospital in Oakville and how they visited her there every day. Victoria lived with her boyfriend upon her release and worked for a while. Then Victoria resided with Ms. Rideout and Mr. Chivers for a time while she attended Mohawk College commencing January 2019. We heard that she rarely visited the Respondent from about October 2018 to August 2019.
[52] He spoke about the time that they took Natasha to the hospital due to serious stomach issues. He said Ms. Rideout stayed at the hospital with her for four days.
[53] It was his evidence that with the exception of a week or two, Natasha has lived primarily with he and the Applicant since January 2019.
[54] We heard testimony about the times Mr. Chivers helped the children out financially while they were pursuing post-secondary education. For example, he recalled giving Natasha $810.00 for rent in September 2018 and giving Jacob $500.00 for rent in September 2020. He has purchased cell phones and iPads for all of them.
[55] In cross-examination he was asked where all three children were during the summer of 2019. He said that Jacob was with his father and the two girls were with Ms. Rideout. He said this was the case in May 2019.
[56] He was asked about how they shared expenses and he said he does not keep track but that he helps her out often. Twice he took steps to stop her car from being repossessed. He said he had recently deposited money into her account because she could not pay her mortgage.
[57] He was asked about a property he owns in Bracebridge. He purchased it in 2014 as a vacant lot on a cottage property. It is in his name and paid for by him, but he said that Ms. Rideout used some of her art skills in different aspects of the building that is now there.
[58] He confirmed that as of his testimony in September 2020, Jacob (now age 21) was residing in St. Catharines and attending Brock University. Victoria (now age 19) was attending Niagara College and residing with her boyfriend in Grimsby. Natasha (now age 18) was residing in a student apartment while attending Wilfred Laurier University.
The Respondent – James Rideout
[59] The Respondent stated that each of the parties were living with their respective parents when they began McMaster University. Both graduated from McMaster. He said they cohabited for only a few weeks before marriage and that they helped to renovate the Applicant’s parents’ basement so that they could live there.
[60] He began working at Ford Motor Company on September 9th, 1994. He began as a shipping supervisor. He said he worked all additional hours that were offered in order to save money. At the same time, Ms. Rideout’s hours with Direct Transit began to decline but she began painting murals to earn some additional money. They purchased their first home for $132,000.00 in Burlington. By this time, Ms. Rideout no longer had a job with the Transit Company, but she began working on her mural business.
[61] The house on LaSalle Park was sold for $178,000.00 when he received a promotion that took them west. He reviewed their moves and time in Regina, Calgary, and Edmonton.
[62] In September 2003, the parties decided to move back to Oakville, when it was clear that the Applicant wanted to go back. Her parents were in Oakville. Mr. Rideout was able to get a lateral move and they bought a home on Baronwood Drive in Oakville
[63] He acknowledged that the marriage broke up when he was having an affair with the woman who is his current wife, Shelley, and the Applicant found out about it. He moved out but paid all expenses for the home and other living expenses until the Separation Agreement was completed at which time the terms of the Agreement were followed. He did not introduce Shelley to the children he said until November 2005, and they began cohabiting in the summer of 2006.
[64] He spoke about all three children, described their activities, and he described himself as an active father.
[65] He described how he helped the Applicant move after two relationships of hers ended.
[66] Mr. Rideout said he was in touch with Natasha when she was in the hospital with stomach problems and would have gone to see her during her 3 to 4 day stay there but Natasha said not to. He later went for a meeting at the hospital in regard to Natasha, however.
[67] Mr. Rideout was diagnosed with throat cancer in late October 2016. He found it difficult going into hospitals for a while after treatment and that is why he did not push it to go and see Natasha when she said it was fine if he did not come because her mother was there.
[68] The Respondent spoke about a time when Victoria was not living with either parent and was using drugs. He kept in touch with her during this time. He said he is grateful that the Applicant got her to go to a hospital for help.
[69] He sees Jacob and Victoria as having a strained relationship with their mother.
[70] He recalled the process of getting the Separation Agreement signed. Ms. Rideout drafted it and he wanted two revisions. He wanted her to remove the part about the children having no contact with his then partner Shelley and she did remove that part. He also requested the part in paragraph 3.6 about his contributions to an RRSP until she married or cohabited. He said he had no idea how the payment of $1,400.00 per month was arrived at.
[71] Mr. Rideout said he frequently got the children earlier than 6:00 p.m. and often went straight to their school to get them. He pointed out that he often had them more than 50% of the time.
[72] Jacob changed from recreational house league hockey in 2014 to representative “Rep” hockey which increased his time playing. All three children were registered in school as though they lived with him in Oakville as of 2016, according to Mr. Rideout. By 2017, he said all three children were primarily residing with him. In September 2017, Victoria changed schools in Oakville but earlier that year she was not going to school much. Jacob was active in sports connected to his school in Oakville and he had a girlfriend in Oakville also, so he spent much more of his time in Oakville. He had football practices right after school (in Oakville) and his hockey started right after football stopped. He also had part time and summer jobs in Oakville. For these reasons it would have made no sense for him to reside at his mother’s home in Hamilton.
[73] We heard that he was able to get a Ford vehicle for Jacob to drive. He did not allow him to leave it at Ms. Rideout’s home overnight, however. He recalled Ms. Rideout and Mr. Chivers driving Jacob to Carlton University with all his things. Jacob transferred to Brock University in time for his second year.
[74] Mr. Rideout reviewed the schooling and residency of all three children over the last few years in detail. For example, he remembers waking up Victoria before 6:00 a.m. because she had to get the train in Oakville to start her classes in Toronto at George Brown College at 8:00 a.m. She ultimately left that program. She is in a different program now at Niagara College and has been living with her boyfriend at his father’s home in Grimsby since January 2020. He said that Natasha lives off campus now, subject to a 12-month lease near Wilfred Laurier University. He also said that Jacob lives independently now in St. Catharines while attending Brock University.
[75] Mr. Rideout said that the reason he was providing Ms. Rideout with a car was to help her out while the children were dependent, and she had to drive them places. He thought that by the time the youngest started University that Ms. Rideout and Mr. Chivers would assume the car expenses. He maintained the car payment until September or October 2018 because Victoria said she was not going back to school and he interpreted the agreement to mean that all three children had to be in school. He clarified his position and said that if one child leaves school and two are still in high school, with many activities, on the go, he would have to continue paying for the car. That was his interpretation of the agreement. He had a second reason for discontinuing the payment of car expenses, and that’s because the children were not living in the 50/50 arrangement that they were living in when the agreement was signed.
[76] He provided a chart that shows all vehicle expenses paid by him from June 2006, to December 2018. He estimated it was a total of $34,773.56, ($39,446.86 minus missed payments of $$4,673.30.)
[77] Mr. Rideout denied that he forged Ms. Rideout’s signature on an agreement about the vehicles. In 2020, Ms. Rideout wanted an upgrade which would cost $97.50 per month more. She did not have a checking account so they agreed that he could deduct $97.50 from her child support payments. Earlier, Ms. Rideout said there was no such agreement. Mr. Rideout said that Ms. Rideout never protested the reduction in child support. The cars were in her name and Mr. Rideout paid the lease.
[78] The Respondent believed that the only reasonable interpretation of the current status quo that makes sense is that all three children are independent and not living with the Applicant. He therefore believes that he should no longer pay any child support, and that he is no longer obliged to provide Ms. Rideout with a vehicle. The vehicle was only intended to be provided while the children were dependents. He referred to a letter from Ms. Rideout’s former lawyer to himself dated March 16, 2007, wherein she wrote:
“The terms of the Separation Agreement require that you provide Ms. Rideout with a new, or at maximum three-year-old vehicle for as long as the vehicle is still within its warranty period. This is a continuing obligation until your children are no longer dependents.”
[79] He realized when he agreed, through the September agreement, to make the mortgage payments and all “running costs” of the matrimonial home until the Applicant remarried, cohabited or chose to sell it, that he would not be able to purchase a new home of his own. Nevertheless, he agreed to so that the children would have stability. He did not think when the September Agreement was signed in October 2005 that she would sell the house in May 2006, which was only 18 months after separation. He pointed out that Ms. Rideout received approximately $165,000.00 in equity but if she waited to sell it could have been a lot more. He said that she sold it because she was in a relationship with Mr. Wowk, who had two children and they wanted a larger home.
[80] A list of expenses that he paid from January 2005 until May 2006 when it was sold was provided. The totals he shows were as follows:
$32,468.45 for mortgage and utilities
$18,018.10 miscellaneous items including the Applicant’s credit card bills, a line of credit, and the closing costs on the home.
$30,000.00 which is his estimate of the household contents which the Applicant kept. He only took a few things.
$3,920.38 RRSP Spousal contribution
$11,723.26 equalization of R.R.S.P. funds (This number refers to the facts that the Respondent received $25,446.52 more in RRSP funds than the Respondent did upon separation. If they were equalized each party would have received $11,723.26).
$96,130.19 total
[81] With all the payments the Respondent has made he believes he had fulfilled his obligations under the Separation Agreement. He said that he did not think the Applicant would remain at an income level of $5,000.00 forever.
[82] He acknowledged that his pension was not equalized but he believes it was equal to one year of his salary which was about $80,000.00 at the time and she would have received $40,000.00. None of the RRSP’s were in existence as of the date of marriage.
[83] Mr. Rideout stated that he thought he had a choice between paying $1,400.00 per month or the table amount under the Child Support Guidelines. He said that it was not until he received an email from the Applicant in July 2017 that he realized that she interpreted the agreement to mean that child support was to continue for all three children until the last of them was still in school and dependent. He said this made no sense to him. He pointed out that, for example, Victoria could be 30, married and with a child of her own, and he would be paying support for her if Natasha was still completing a second degree. He said: “I couldn’t wrap my head around it.” It was his position that if he knew this interpretation was part of the agreement, he never would have signed it. Despite his belief that he could just pay $1,400.00 per month if he chose, he said he did pay the full table amount.
[84] He was asked why he waited from 2015, when he believed the children’s living arrangements were starting to change, to 2018 to do anything about the child support. He said it would have been extremely expensive to take to court but that he eventually felt he was at the breaking point and had to move forward. Efforts to resolve the situation were not successful.
[85] He provided a chart that showed all child support paid from May 2006 to August 2020 and it came to a total of $293,366.07. Counsel confirmed that while Ms. Rideout was seeking an adjustment back to 2007, Mr. Rideout was only seeking an adjustment back to 2015.
[86] Detailed calculations were provided that showed what he believes should have been paid based on where the children were living from January 2007 to September 2020. He shows the children’s living arrangements changing for the first time in September 2014 wherein he says Jacob began primarily living with him while Victoria and Natasha were still residing in accordance with the Separation Agreement. His calculations cover every time there is a change in where a child lives or when they live independently. His calculations also show times when the Applicant should have been paying child support, in his opinion, based on a minimum wage income. He does show sometimes when he underpaid support, but he shows more times when overpaid. In total, he believes the Applicant owes him retroactive support from January 2016 to September 2020 in the amount of $69,943.77. Also, he believes he overpaid child support from January 2007 to September 2020 in the amount of $83,384.02.
[87] Mr. Rideout believes it was unfair of Ms. Rideout to seek an adjustment as of 2005 because he was still paying all the household expenses as of that time. She then clarified that she was only seeking an adjustment as of May 2006 when the house sold.
[88] Furthermore, correspondence was provided that was from Ms. Rideout’s lawyer to Mr. Rideout dated March 19th, 2007, wherein it was confirmed that $4,950.00 was owing to him from May 2006 to March 2007. This was paid, he said, so that takes the commencement date up to March 2007. Another letter dated October 23, 2007 shows that two lawyers agreed, on behalf of the parties that child support as of June 1st, 2007 would be $1,736.00 based on an income of $94,262.00. This then brings the commencement date up further. Mr. Rideout says he was not approached about a change in child support again until 2015 or 2016.
[89] We heard that the lease program available through his work that he was able to take advantage of, was ruled to be a taxable benefit from 2012 to 2019. As such, in some years, his income looked higher than what it was.
[90] He denied that Ms. Rideout approached him at a hockey game for financial disclosure. He said that as a coach, he would not have been talking to her.
[91] He said there was no discussion of post-secondary education expenses when the Separation Agreement was signed because the children were so young.
[92] Mr. Rideout said that the meeting in his backyard was not just about Jacob, it was about all three children because it was known then that they all would likely want post-secondary education. He believes that the 25% (Applicant) and 25% (Respondent) and 50% (the child) sharing should continue. He also said that the parties agree that if a child obtains a scholarship that it is part of the child’s share. He believes that any student loan could be included as part of the child’s share, but they did not discuss this.
[93] The Respondent provided calculations to show how extraordinary expenses should have been shared back to 2006 if the Applicant was imputed income of minimum wage. He believes she should have paid $10,175.83 from 2006 to 2019. From 2015 to 2019 this would be $5,114.88. The expenses included hockey, volleyball, orthodontic work, and school trips.
[94] He also listed post-secondary expenses and he believes the Applicant should have paid him $2,663.25 for the period of June 2018 to September 2020 for Jacob and Natasha. He shows direct payment for post-secondary expenses of $11,093.00. There were also many miscellaneous amounts given to the children.
[95] A letter was introduced that was sent by counsel for Mr. Rideout to Ms. Rideout on October 4, 2018. The Applicant was being advised that Mr. Rideout was no longer obliged to pay support for any of the children who did not reside with her or who were independent. It was his position that no more support was owing for Victoria (who was living with her boyfriend and not in school) or Jacob (who was living in Ottawa while attending Carleton University and not dependent on either parent.) Natasha, he argued was sharing her time between the parents so support for her could be paid by way of a set off based on their incomes. A chart was included showing Mr. Rideout’s interpretation of where the children lived from January 2015 to September 2018.
[96] When he did not receive an agreement for him to change the child support pursuant to the October 4, 2018 letter he stopped paying. He discussed the issue of the Registered Education Savings Plan (RESP) funds that Ms. Rideout raised. He said there was never a legal obligation for him to keep contributing to such a plan for all three children. He did start one for Victoria through the Heritage fund, but Victoria initially changed her mind about going to college. The terms of the plan, he said, were that if a child did not go on to post-secondary institution you had to either transfer the funds to another child or take the money out He said that the parties decided to transfer it to Jacob, which benefited both parties because the amount came off the parents’ contribution.
[97] He reviewed his most recent financial statement which was sworn on August 31st, 2020. His 2019 income was $147,437.58. The Respondent indicated that this process has been financially very difficult on him and that he had spent almost $200,000.00 in legal fees as of the day he testified. He believes the Applicant wants to see him suffer financially and once said to him “I will make sure you end up living in a cardboard box.” He added that he has never questioned Ms. Rideout’s commitment as a mother.
[98] He was asked many questions in cross-examination. He agreed that the Applicant did a lot of work in all of the homes they lived in, and this may have increased the value. He did not dispute that she was very busy with the care of the children. He did not confirm or deny that he had had extramarital affairs while they were together. He was not clear on the names of the children’s doctors. He was not clear on all the medical appointments Ms. Rideout asked him about. He recalled some appointments he took a child to. He acknowledged once saying to her “you are all about the money” when she raised the subject of financial disclosure. He denied that he bullies or intimidates the Applicant. He acknowledged once threatening to drag the children into the situation but said he regretted saying it.
[99] The Respondent said that the 90-10% ratio for sharing extraordinary expenses was arbitrarily set by the Applicant. While being cross-examined on the issue of retroactive extraordinary expenses, Ms. Rasheed pointed out that neither party suggested going back on this issue, prior to 2015 in their draft order. He acknowledged that he did not pay for the children’s current computers and he does not pay for either daughter’s telephone plan. He was unaware of all the times Ms. Rideout and Mr. Chivers sent money for the children. He was asked why he expected Camp Muskoka to be a shared expense on a 50-50% basis. He said it was just because he could not afford to send them there if it was not jointly shared, but he was not saying they should always share expenses.
Terry Binet
[100] Terry Binet lived directly across the street from Mr. Rideout and his wife Shelley from September 2016 to September 2018. In September of 2018 he was transferred to Montreal by his employer.
[101] He said the two families became close friends and they spoke often. He was often in Mr Rideout’s home. It was his impression that the three Rideout children lived primarily with the Respondent during this time.
[102] He recalled many conversations with the children about their post-secondary school plans, especially Victoria and Jacob.
[103] Mr. Binet said he saw all the children coming and going every day and he pointed out that sometimes he worked from home.
[104] He remembered seeing Natasha frequently walking her dog and Victoria going out or returning from her two jobs. He saw Jacob going to school from Mr. Rideout’s home.
[105] Mr. Binet, however, did not deny that the children may have been away seeing their mother from time to time, but he was of the view that most of the time, they were at Mr. Rideout’s home.
Darlene Jeffrey
[106] It was determined at the Trial Scheduling Conference that some of the Respondent’s witnesses could give evidence in chief by affidavit. Ms. Jeffery provided an affidavit and testified briefly.
[107] Ms. Jeffrey knows Mr. Rideout through their sons’ hockey. Her husband and Mr. Rideout have coached hockey together for over 10 years. She said that she frequently saw Victoria and Natasha at the games.
[108] It was her impression that Jacob began living primarily with his father during the 2014 to 2015 hockey season as she saw him at parties and games 5 to 6 times per week.
[109] Ms. Jeffrey remembers that the Applicant moved to Hamilton from Oakville during the 2015 to 2016 season and she was under the impression that this move changed the living arrangements. She said she saw Jacob almost daily during this season. She also saw Natasha a lot and she believes both Jacob and Natasha were living with Mr. Rideout by this time.
[110] It was her evidence that Victoria was living with her mother during the 2015 to 2016 season as she was attending high school in Hamilton. Ms. Jeffrey recalled that Victoria was residing with Mr. Rideout as of August 2019 and attending George Brown College in Toronto.
[111] She confirmed in cross-examination that she believed the parties shared time with the children until Ms. Rideout moved to Hamilton.
[112] It was her impression that once Ms. Rideout moved to Hamilton, Jacob and Natasha went home with Mr. Rideout after games and Jacob did after practices.
[113] She remembered Natasha going back to her mother’s home in September 2019 because Ms. Rideout was living in Oakville again by then.
Shelley Rideout
[114] This witness is the current wife of the Respondent, and she has known the children since 2005 as she and Mr. Rideout met through work around that time. It was her evidence that the children resided with both parents equally until 2014. She recalled that Jacob was the first child to reside primarily with the Respondent and that this was because of hockey. This move was during the September 2014 to June 2015 school year. She gave her own independent recollection, and then I allowed her to look at the chart prepared by Mr. Rideout, which set out the children’s living arrangements from January 2007 to September 2020.
[115] Her independent recollection was similar to Mr. Rideout’s chart.
[116] Shelley Rideout recalled the meeting in the backyard in July 2018 to discuss post-secondary school education expenses. She said the discussion was about both Jacob and Victoria and that the agreement was that the children would be responsible for 50% of these expenses and the parents would share the remaining 50% equally.
Case Law
[117] Ms. Rideout provided the following cases:
B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37
Tauber v. Tauber (2000), 2000 CanLII 5747 (ON CA), 48 OR. (3d) 577 (C.A.)
Tauber v. Tauber (2001), 2001 CanLII 28234 (ON SC), 203 D.L.R. (4th) 168 (Ont. Sup. Ct.)
Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250
[118] The Respondent provided the following cases, with the issues each case pertains to noted:
Principles/Purpose of Child Support
Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228
Ambiguity of a Separation Agreement
Consolidated v. Mutual, 1979 CanLII 10 (SCC), 1979 CarswellQue 157
Material Change in Circumstances
Child Support Guidelines (set-off)
MacAfee v. Garnett, 2008 NBQB 186
Retroactive Support/Child of the Marriage/Post-Secondary Expenses
Mustafa v. Abdelsalem, 2013 ONSC 2004
Imputed Income
Credibility of Evidence
Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133
White v. The King, 1947 CanLII 1 (SCC), 1947 CarswellOnt 8
Submissions and Draft Orders
[119] Both parties provided written submissions which they referred to during oral submissions. Draft proposed orders were also provided.
The Applicant’s Submissions
[120] Included in the points raised by the Applicant during submissions were the following:
(i) While the Respondent was busy building his career, she was busy looking after the three children and in order to raise the children, and move several times to accommodate the Respondent’s career, she had to give up her own career. They moved four times in seven years, and this included living in three different provinces. She reviewed the evidence about how busy she was with the children.
(ii) She gave up her entitlement to spousal support in order to receive the full table amount of child support for all three children until the youngest completed her post-secondary education. Ms. Rideout believes that the parties both intended that the full table amount was to be paid on an ongoing basis and not just the initial $1,400.00. She referred to the correspondence between counsel in 2006-2007 which shows that the parties agreed that the table amount would apply.
(iii) Ms. Rideout believes her interpretation of where the children were residing over the last four years was more accurate. She again referred to the document she prepared which was described as a timeline from January 2015 to August 2019. At no time did she show the children as living primarily with Mr. Rideout. It is her belief that Mr. Rideout is misrepresenting the children’s residences in order to justify an underpayment of support. It is also her belief that if the children were living away attending University, they should still be deemed to be living primarily with her. She said it was always contemplated that they would go away for University and that the table amount would still be paid. She stated during submissions, “residency has never been a factor to the support clause from the very start and has no relevance to the clauses legally agreed to by both of us.”
(iv) She reminded the court about the email exchange that was introduced, from October 2016 wherein she wanted to change nights which she believes shows that the initial schedule was still being followed but was difficult due to the children’s activities.
(v) She believes that Shelley Rideout did not provide a genuine recollection of the timelines for the children’s residency and that she memorized the one prepared by Mr. Rideout.
(vi) Ms. Rideout reminded the court that she gave up spousal support in exchange for the agreement regarding child support.
(vii) The Applicant reviewed the evidence of Mr. Chivers. His evidence supported hers in terms of where the children were living. He testified about driving the children back and forth from Hamilton to Oakville.
(viii) It was her position that she has been paying almost half of all extraordinary expenses for over seven years and this is much higher than she would have been obliged to pursuant to the Separation Agreement.
(ix) She referred to Simone v. Herres as it involved a fact situation where the father neglected his family obligations and underpaid his child support for several years and the court found his behaviour unconscionable.
(x) The Applicant pointed out that the Respondent has a much higher standard of living than she does.
(xi) We heard again about all the time Ms. Rideout put in to being a full-time mother and how she shopped for herself and sometimes the children at Value Village and the Salvation Army because she had a limited income.
(xii) She reminded the Court that Mr. Rideout said he was paying $100.00 per month into the children’s education fund. If he had done so when it was discussed in 2006, there would be $36,000.00 there now by her calculations.
(xiii) She stated that Mr. Rideout has “falsified documents, forged my signature, fabricated evidence, lied and generally behaved in such a reprehensible manner it is beyond my comprehension.” She relied on several exhibits in support of this statement and it was in relation to the vehicle and education fund.
(xiv) She spoke about her character during submissions. This was in terms of lessons she taught the children, the nearly 100 murals she had donated to worthy causes and charitable fundraisers, and the time she underwent life threatening surgery by donating a liver to an ailing friend.
(xv) She spoke about the 2011 case of Marsh v. Jashewski which she provided. The payor was ordered to pay retroactive child support and post-secondary school expenses back to 2006. A contribution from the child was expected. The child was 26 years old at the time of the trial.
(xvi) The case of Vivian v. Courtney was discussed. The facts are different, but Ms. Rideout highlighted the fact that blameworthy conduct was found on the part of the father for not disclosing changes in income and adjusting child support.
(xvii) Ms. Rideout spoke about Simone v. Herres. She noted that this case supports the principle that children pursuing post graduate studies are unable to withdraw from parental change.
(xviii) She spoke about Holman v. Holman, which she provided that also supports the principle that child support does not automatically end after a first undergraduate degree. A number of factors are considered.
(xix) Wilson v. Wilson, which Ms. Rideout provided, was discussed. This case also dealt with post-secondary expenses and it was noted that subjective analyses is needed to determine if a child is in school on a full-time basis. Ms. Rideout also highlighted the parts of the case that dealt with a duty to provide disclosure as income increases.
(xx) Ms. Rideout reviewed Mr. Rideout’s financial statement and pointed out various assets that he has, plus a depletion of assets. For example, his debts increased from $282,810.00 to $516,661.00 in one year, and his net worth decreased from $629,683.00 to $285,683.00.
(xxi) She expressed the view that Mr. Rideout was unreasonable in stopping his support payments on his own in 2018 and not bringing it back to court properly. She believes he has lied about his income, his promotions, and his support payments. It is her submission that his conduct is blameworthy in accordance with the test set out in D.B.S. v. S.R.G. As such, Ms. Rideout believes that it is appropriate to vary the amount of support as of 2006.
(xxii) She reviewed George v. Gayed wherein the mother’s actions in not moving for retroactive support in a more timely manner was found to be due to the father’s misconduct. The father in that case “deliberately absconded from the country without advising the mother or his children that he had done so and without providing them with any means by which to locate or contact him.”
(xxiii) Ms. Rideout quoted from Lewis v. Adesanya in regard to blameworthy conduct and Tauber v. Tauber in regard to the amount of money Mr. Rideout has spent on this litigation, ($200.000.00) which could have been used instead for the children.
Applicant’s Draft Order
[121] The Applicant’s revised draft order was reviewed. This proposed order provided for the following:
An order that the full guideline amount was to be paid by Mr. Rideout to Ms. Rideout for as long as any one of the three children were in post-secondary school. As of April 1st, 2020 this would be $2,600.00 per month.
Child support arrears would be fixed in the amount of $128,372.93 which is owing from 2005 to 2018.
Section 7 expenses should be divided on a 92.28% - 7.72% ratio, but the Applicant agrees to a 90% - 10% ratio. The Respondent owes the Applicant $46,500.00 for expenses she paid that were above her share. The children would pay 50% of the costs.
The Respondent would fulfill his obligation to fund each child’s RESP in the amount of $30,000.00 each.
The Respondent will continue to comply with the Separation Agreement and provide her with a car for as long as at least one child is dependent or attending a post-secondary institution. He would also reimburse Mr. Chivers for money he spent to put the lease in good standing when Mr. Rideout stopped making payments.
Annual disclosure would be ordered.
Costs would be granted to the Applicant on a “full restitution basis.”
The Respondent’s Submissions
[122] Included in the points raised by the Respondent during submissions were the following:
a) The Applicant frequently portrayed herself as a victim during this trial, in Mr. Rideout’s view, and she went out of the way to be negative about him and blame him for “virtually everything.’ It was her choice to not become self-sufficient he said.
b) He does not agree that the Separation Agreement is clear. He believes it is poorly drafted and ambiguous and that it makes no sense that he would pay child support for all three children until the last one completes all of his or her education.
c) Spousal Support Advisory Guidelines (SSAG) calculations were provided to show what lump sum should have been paid if the parties had agreed to a lump sum, after 11.5 years of marriage and with the Applicant being 36 years of age. The recommended amount was $112,411.00. Mr. Rideout believes he paid the equivalent of this by paying the following:
• $82,500.00 being his half of the matrimonial home when it was sold.
• $39,446.86 for vehicle leasing.
• $3,920.38 being 2% of his salary towards her RRSP.
$125,867.24 Total
She also received the majority of household contents and medical benefit coverage until she was no longer eligible. Mr. Rideout also paid some joint debts after separation and paid the closing costs when the house sold.
d) It is true that Ms. Rideout did not receive an equalization of Mr. Rideout’s pension but she was able to retain more RRSP funds.
e) The case of Luehr v. Luehr was provided to support the principle that if an Agreement can be interpreted more than one way, and one way would lead to something that would be absurd, then the other way is generally to be preferred.
In the case before me, Mr. Rideout says that he never would have signed the agreement if he thought it meant what the Applicant says it meant. It is his position that the Applicant’s interpretation of paragraph 3.1 of the agreement leans towards absurdity and therefore his interpretation should be followed.
f) The case of Consolidated v. Mutual was provided which dealt with doctrine known as contra proferentem. This case involved an insurance policy where there were different interpretations of the contract.
Speaking for the majority of the Supreme Court of Canada in 1979, Justice Estey wrote at paragraph 25:
“It is trite to say that where an ambiguity is found to exist in the terminology employed in the contract such terminology shall be continued against the insurance carrier as being the author or at least the party in control of the contents of the contract.”
Also in paragraph 25 he wrote:
“Such a proposition may be referred to as step one in the interpretative process. Step two is the application, when ambiguity is found, of the contra proferentem doctrine. This doctrine finds much expression in our law, and one example which may be referred to is found in Cheshire and Fifoot’s Law of Contract (9th ed.), at pp. 152-3:
If there is any doubt as to the meaning and scope of the excluding or limiting term, the ambiguity will be resolved against the party who has inserted it and who is now relying on it. As he seeks to protect himself against liability to which he would otherwise be subject, it is for him to provide that his words clearly and aptly describe the contingency that has in fact arisen.”
He wrote in paragraph 26:
“Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties.”
It was pointed out that both parties agreed that the Applicant drafted the Separation Agreement. Ms. Rideout said that paragraph 3 of the agreement was suggested by the lawyer she saw, but she added that part in herself. The parties disagree as to the intent of the paragraph.
g) Mr. Rideout always paid more than $1,400.00 per month. Counsel for Mr. Rideout also pointed out that the agreement does not say that Mr. Rideout must pay the table amount regardless of any material change in circumstances such as a change in primary residence of any one of the children. The agreement allows him to pay an “amount as stated by law” which would allow him to adjust child support up or down in accordance with the law. It was Mr. Rideout’s evidence that the first sign of a child changing primary residence was in 2015.
h) Reference was made in regard to the Supreme Court case of Contino v. Leonelli-Contino as it provides principles to follow where a child resides more than 40% of the time at the payor’s home. In 2015, the Applicant moved to Hamilton. The children listed the Respondent’s address in Oakville for their schools because they attended school there.
i) MacAfee v. Garnet was quoted as this case shows that the table amount of support is based on the assumption that the child is residing in the support recipient’s home. If the child lives away while attending a post-secondary institution those are post-secondary expenses.
j) Marsh v. Jaschewski was provided as the court held that where a child is living away from home and attending University, the payor does not have to pay the full amount of child support and contribute to post-secondary school expenses. Hess v. Hamilton was provided for similar principles.
k) It is not in dispute that none of the three children currently reside with the Applicant. Therefore, Mr. Rideout submits, the ongoing child support would be for the purpose of supporting the Applicant.
l) Easton v. Coxhead was provided as an example of a case where child support was ordered based on the 4 months out of 12 that the children were actually living with the recipient while attending university.
m) The Respondent denies any conduct of bad faith or blameworthy conduct. According to D.B.S. v. S.R.G. this would be “anything that privileges the payor’s parents’ own interest over his/her children’s rights to an appropriate amount of support.
n) Hess v. Hamilton was provided to support these same principles of blameworthy conduct.
o) Mr. Rideout voluntarily increased his child support based on his estimated income. Despite the fact that he believes he had the option of paying only $1,400.00 he paid above that amount until September 2018. He would have preferred to negotiate at that time.
p) It was the evidence of Mr. Rideout and Shelley Rideout that the Applicant did not question the amount of child support paid from the period after 2007, until 2015. The Applicant had to prove that she did. He said it was highly unlikely that she would have approached him at some hockey game as she said, because he was coaching.
Given the lack of an apparent request for disclosure, the Respondent suggests that the date of “effective notice” was not until 2015, and that this meets with the principles set out in D.B.S. v. S.R.G.
q) Counsel referred to Mustafa v. Abdelsalem for the court’s handling of a similar situation. Child support payable by the father was terminated as the children started residing primarily with him and the mother was ordered to reimburse him for overpayments of support for time that the children were living with the father and he was paying support.
r) It was submitted that it is inappropriate to request an adjustment of child support back to 2005 when correspondence between counsel shows that an agreement was reached in 2007 as to the correct amount of support.
s) It is his position that the evidence of Ms. Rideout and Mr. Chivers as to how they kept up with having the children, 7 out of 14 nights made no sense once they were residing in Hamilton and the children went to school in Oakville and had part time or summer jobs, along with activities, all of which were in Oakville. He recalled that some of their evidence was contradictory with Mr. Chivers recalling that they drove the children all the way to school in the morning and Ms. Rideout recalled that they drove them to Mr. Rideout’s home where Jacob picked up a car. Mr. Chivers had no knowledge of the 2012 to 2016 period because he and Ms. Rideout were separated during this time.
t) Two witnesses supported the evidence of Mr. Rideout and Shelley Rideout as to where the children were living.
u) The Applicant should be barred from claiming any retroactive section 7 expenses because she did not include a claim for this in her application.
v) Klein v. Klein was provided for the principle that parents may be called upon to purchase items and find activities from time to time, but this does not give rise to a right to demand reimbursement from the other parent. Mr. Rideout does not believe that the Applicant is entitled to reimbursement of each expense she covered such as money for car gas.
w) The Respondent made it clear that he is only seeking reimbursement for expenses back to 2015. He only wants a contribution for expenses that were agreed upon. He believes her share is $5,114.83 from 2015 until present if I impute income to her of $30,000.00 which is what happened in the interim order. He wants future extraordinary expenses to be as agreed upon by the parties.
x) The Respondent pointed out that the meeting held during the summer of 2018 was undisputed in terms of Jacob. All four adults remember saying that Jacob would be responsible for 50% of his post-secondary school expenses and each parent would be responsible for 25%. The difference in their position is that Ms. Rideout and Mr. Chivers believe that the agreement only applied to Jacob and Mr. Rideout and Shelley Rideout believe it also applied to Victoria as she was also registered in a post-secondary school institution. The Respondent is asking to be reimbursed for 25% of the expenses he paid that should have been paid for by Ms. Rideout and he wants the agreement arrived at in 2018 to be enforced.
y) He believes he has adequately fulfilled his obligation to provide a vehicle. In the alternative, he suggests that at the most he should pay $283.15 per month until Natasha completes her first post-secondary degree, expected to be in May 2024. He believes he could find her a car with a lease of $283.15 per month. He also believes Ms. Rideout should reimburse him for $4,930.00 which he paid for her car insurance although not required to in the Separation Agreement. He said that these payments were always intended to be a loan.
z) He pointed out that no order should be made in regard to RESPs for the children because no such claim was made by either party and there was never a formal agreement.
He also believes that the fact that he independently set up a fund for the children several years after separation should not be something that relieves Ms. Rideout of her responsibility.
aa) He believes the Applicant could have taken more responsibility in seeking employment or training. The case of Klan v. Martin was provided as an example of a case where the court believed that the wife could have used her proceeds of sale from the matrimonial home to improve her opportunities to obtain employment.
bb) Drygala v. Pauli was provided in support of the test to determine if income should be imputed. Speaking for the Court of Appeal, Justice Gillese wrote at paragraph 23:
Application of Section 19(1)(a) of the Guidelines
[23] In my view, in applying this provision, the trial judge was required to consider the following three questions. [page718]
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable education needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
cc) He questioned the credibility of Mr. Chivers and provided two cases (White v. The King and Faryna v. Chornx) on this topic. He also questioned Ms. Rideout’s credibility and gave some examples.
Respondent’s Draft Order
[123] I reviewed two draft orders from the Respondent. Each option included some provisions in the alternative.
[124] In option #1 he proposed the following:
i. Ms. Rideout will pay child support as of October 1st, 2020 for Jacob who resides in Mr. Rideout’s home during the summer months in the amount of $85.00 per month based on an annual imputed income of $30,000.00.
ii. Neither parent to pay child support for Victoria or Natasha as they are living independently.
iii. Ms. Rideout will pay retroactive child support and reimbursement for overpayment in the amount of $83,384.02 owing as of January 2007. The child support portion is based on a minimum wage income. In the alternative, she will pay $69,943.77 owing as of January 2015 until December 2018.
iv. Each party shall pay 25% of each child’s post-secondary school expenses. Another option was given based on proportionate sharing of income, being Mr. Rideout’s actual income and Ms. Rideout’s imputed income of $30,000.00.
She would owe him $10,175.83 if we go back to 2006, and $5,114.83 if we go back to January 2015. He shows $2,663.25 owing pursuant to the parties’ verbal agreement to each contribute 25% of these expenses as of June 2018.
v. The Applicant to reimburse the Respondent for car insurance payments he loaned her in the amount of $4,930.00
vi. The Respondent is no longer obliged to make payments on the Applicant’s vehicle lease. In the alternative he shall pay $4,673.00 for missed payments and he shall provide $283.15 per month until Natasha completes her first degree.
vii. The Applicant’s income shall be imputed at the minimum wage level up until December 2018 and at $30,000.00 for the years 2019 and 2020. This is for purposes of calculating her contributions towards extraordinary expenses.
[125] In option 2, his draft order provided for the following:
i. He would pay support for all three children in the amount of $1,400.00 per month until Natasha completes her first degree commencing October 1, 2020.
ii. The Applicant would reimburse him for all support paid that was more than $1,400.00 per month which is a total of $55,751.26.
iii. Section 7 expenses would be shared in accordance with the Respondent’s actual income and the Applicant’s imputed income.
iv. The retroactive spend expenses shall be shared in accordance with Option 1.
v. The vehicle expenses shall be handled in accordance with Option 1.
vi. The Applicant’s income shall be handled in accordance with Option 1.
[126] The main difference between Option 1 and Option 2 is that Option 1 assumes that the Respondent paid child support in accordance with the table amount set out in the Federal Child Support Guidelines. Option 2 assumes that he was to pay $1,400.00 per month as set out in the Separation Agreement.
[127] Detailed calculations were provided on behalf of the Respondent to show how he arrived at the numbers he did.
Conclusions
[128] There are several issues that need to be dealt with before I can make a decision on the terms of the final order.
Contra Proferentem
[129] One issue is the legal principle raised by the Respondent of contra proferentem. I am not of the view that this principle is applicable in this case. It is true that the Applicant drafted the order but the Respondent had a chance to negotiate. He asked for one change and it was made. He also had input on another issue. Both parties obtained independent legal advice. There was some negotiation. The parties approached the negotiations as equal parties to the negotiations, and the Respondent could have sought more changes to the wording of the agreement if he chose. For the above reasons I do not see a reason to penalize the Applicant for the fact that she prepared the separation agreement.
Interpretation of Section 3.1
[130] The interpretation of this section of the separation agreement is a major part of this litigation. The Applicant believes that it is clear that child support was to continue to be paid to her until the last child finished his or her post-secondary education. She pointed out that she gave up spousal support in order to have this protection. The Respondent on the other hand believes that the Applicant received assets that were equivalent, or even greater than the amount that would have been ordered as lump sum spousal support. In addition, he argued that it would be absurd to think that child support would be paid for all three children until the last one no was longer entitled. Case law provided on his behalf demonstrated the principle that if there are 2 possible interpretations of a provision in an agreement, and one is absurd, the court finds in favour of the interpretation that is not absurd.
[131] It is clear to me that parts of the agreement were poorly drafted. However, while the agreement is ambiguous on its face, one can look at part of section 3.1 to see an appropriate interpretation, and this part is the words in the third set of brackets. Paragraph 3.1 reads as follows:
SUPPORT
The husband has agreed to continue to pay for the mortgage installments (principal and interest, and as renewed at the end of term, with the acknowledgement that the principal amount of mortgage is not to be increased), of 2124 Baronwood Dr., Oakville, ON inclusive of all running costs of said residence (property taxes, hydro, gas, electric, Bell Services, satellite services, maintenance and repairs to such amenities), for as long as one or all of his children are dependents or attending post-secondary institutions, or until such time as the wife remarries or co habitats or chooses to sell the home or the said residence is no longer the primary place of residence at which time the husband agrees to pay child support in the amount of $1400.00 per month (or amount as stated by the law at the time it becomes relevant based on his income) for as long as one or all of his children are dependents or attending post-secondary institutions. The husband also agrees to relinquish all claim to the equity in said residence, signing over title and ownership to the wife upon the mortgage becoming free and clear, or until such time as the wife remarries or co habitats.
The words “or amount as stated by the law at the time it becomes relevant based on his income” appears to mean that the child support could be paid in accordance with the law, which is the table amount pursuant to the FCSG. The fact that the table amount set out in the FCSG was contemplated is evident by the fact that the initial amount of child support agreed to was $1,400.00 per month for 3 children. It was stated in paragraph 1(5) of the agreement that the Respondent earned $87,000.00 per year. According to the tables of the FCSG that were in effect at the time the agreement was signed, the amount of child support that was to be paid for three children based on an income of $87,000.00 was $1,439.00. The amount paid was very close to $1,439.00. The parties seem to have started out with the full table amount of child support. Over the years child support was increased as the Respondent’s income increased, so it clearly appears that the parties both intended to follow the law in regard to child support. A significant component of the law in regard to child support is that it is based on where the children reside and it is subject to a review if there is a material change in circumstances. I am also mindful that the Agreement did not say that the $1,400.00 per month was to continue regardless of where the children lived and it could have.
[132] I appreciate the Applicant’s argument that she gave up spousal support in order to obtain the unusual duration of child support. There is no doubt in my mind that the Applicant would have been entitled to spousal support. It was a marriage of 11 ½ years with an additional period of common law cohabitation of close to two years if I accept the Applicant’s evidence. There were three young children as of separation and the Applicant moved to three different Western cities in two other provinces in order to allow the Respondent to accept promotions through his employment. Under these circumstances, it is not difficult to see that spousal support would have been ordered in the mid-range of the SSAG at least. However, there are reasons to find that the lack of spousal support was made up for in other aspects of the agreement apart from child support, which are set out in the next paragraph.
[133] The agreement provided for the following:
b. Mr. Rideout was to pay all “running costs” of the matrimonial home for as long as one or all of the children were dependents or attending post-secondary institutions, or until Ms. Rideout cohabited or remarried or simply chose to sell the home. The $1,400.00 (or such amount as stated by law) did not commence until the house was dealt with. The amount of money paid by Mr. Rideout for the mortgage and all “the running costs” was more than $1,400.00 per month. The Applicant could have let this phase run much longer than she did thereby increasing the value of the home;
c. When Ms. Rideout sold the home, she was able to retain all the proceeds of sale pursuant to the separation agreement; and
d. The agreement also provided for the use of a new car and automobile insurance for as long as one or all of the children were dependents or attending a post-secondary school, college or university, and for as long as the Applicant had not cohabited or remarried. The agreement also said that if she did remarry or cohabit, that she would still be provided with a “maximum 3 year old vehicle for as long as the vehicle is still within its warranty period.” This section was to continue until one or all children were no longer dependent or attending post-secondary institutions. The wording was awkward but this was the intent. If she remarried or cohabited, the Applicant was to pay her own insurance.
e. In addition to the above items (housing expenses, equity in house and use of a car), the Respondent also provided $18,018.00 by paying some debts for the Applicant and the closing costs on the house. She kept the majority of the household contents. She received what would be an equalization of RRSP funds, and she also received $3,920.38 in spousal RRSP contributions.
[134] I am mindful that the Applicant also did not receive an equalization of the Respondent’s pension funds. I am also mindful that the $32,468.45 that Mr. Rideout claims he spent towards the mortgage and utilities was for a period prior to child support being paid. This was for the approximate period of December 2004 to May 2006. It was worth more than $1,400.00 per month for that period of time however.
[135] It is impossible to say that the Applicant received the same amount of money in these other payments and assets that she would have in spousal support but it is close in my view. Clearly it cannot be said that the Applicant received no spousal support or the equivalent thereof. If I add up the Respondent’s share of the sale proceeds of the matrimonial home to the car expenses, that comes to $117,273.56 ($34,773.56 plus $82,500.00). In addition to that there is the RRSP equalization ($11,723.26) and the RRSP contribution ($3,920.38). There is also the $32,468.45 spent on the mortgage and “running costs” of the matrimonial home for 18 months, of which about $7,268.45 could be considered spousal support (18 months at $1,400.00 per month is $25,200.00 which could be deemed child support). In addition, I could consider $5,000.00 for the household chattels as spousal support. The Respondent’s estimate of $30,000.00 was unrealistic based on the evidence so I accept the Applicant’s estimate of a maximum of $5,000.00 as being more realistic.
[136] The Applicant appears to have received the following:
$165,000.00 – the entire sale proceeds from the matrimonial home
$5,000.00 – chattels
$3,920.38 – spousal RRSP
$11,723.26 – RRSP equalization that would have gone to the Respondent but was retained by the Applicant
$7,268.45 – deemed spousal support due to difference in carrying cost of home and child support
$34,773.56 – vehicle expenses
$227,685.65 total
[137] Of this amount, it could be said that the Applicant’s half of the home ($82,500.00) and her half of the chattels ($2,500.00) were part of the equalization process. The remaining $82,500.00 and $2,500.00 can be seen as spousal support. The $11,723.26 equalization of RRSP’s that Mr. Rideout did not receive can be seen as offsetting the Ford pension somewhat. The vehicle expenses of $34,773.56 can be seen as spousal support. However I categorize the different elements of the $227,685.65, it cannot be said that Ms. Rideout received no spousal support or equalization of property.
[138] If Mr. Rideout is correct when he says that Ms. Rideout would have been entitled to $40,000.00 for his pension (and it could have been less due to tax consideration) then I could say that spousal support was as follows:
$227,685.65
- $82,500.00 – her half of house
$145,185.65
-$40,000.00 – her share of equalized pension
$105,185.65
- $2,500.00 – her half of chattels
$102,685.65 total
[139] The sum of $102,685.65 is based on everything having been equalized including one-half of the estimated pension value without regard to income tax considerations.
[140] In addition to the $102,685.65 there is all of the additional vehicle expenses I will order that can be considered indirect spousal support.
[141] The amount of $102,685.65 is only nominally below the $112,411.00 that was shown in the SSAG calculations provided by counsel for Mr. Rideout. The number of $112,411.00 would be higher if I included time for the common law period which is in dispute. I had no independent evidence on this issue and I am unable to determine when the parties moved into the basement apartment. I could take the mid-point and say they lived common law for approximately one year. That would increase the amount of $112,411.00. However, this and any other shortfall, could easily be made up for if I increase the length of time that Mr. Rideout is to provide a car, which is a consideration I will be dealing with. By the time I complete my ruling on the vehicle I believe that Ms. Rideout will pass the amount of $112,411.00.
[142] For all the above reasons I do not agree with the Applicant that the interpretation of the issue of the duration of the monthly child support payments is based on a premise that the Applicant received no spousal support and no equalization. She appears to have received approximately $102,685.65 in spousal support plus any additional funds I may order towards the car. In addition she could have been in a better position if she stayed in the matrimonial home for a longer period of time. It would not have been easy, as the monthly expenses Mr. Rideout was paying did not include groceries, clothing, personal items or any recreational expenses, so she would have needed some employment to cover these items. Nevertheless, there were some options. I am mindful that no pension appraisal was provided and that the $40,000.00 I deducted in for my calculations is just based on the Respondent’s estimate, but it is all I was given and the parties made a decision to not obtain a pension valuation when the Separation Agreement was negotiated. My calculation of $102,685.65 is in addition to an equalization of property as set out above. For these reasons, it cannot be said that the Applicant received no spousal support or no equalization of property, despite the wording of the poorly drafted separation agreement. She may not have received the exact amount that she would have in these categories but it was close I believe.
[143] For all of the above reasons I interpret paragraph 3.1 of the parties’ Separation Agreement to provide an option to the Respondent to pay child support in accordance with the FCSG. This means that the table amount would be paid and that this would be based on the residency of each of the children and whether or not they were in school on a full time basis.
Interpretation of the Vehicle Clause
[144] Two sections of the separation agreement dealt with the obligation of Mr. Rideout to provide Ms. Rideout with a vehicle. I will repeat them again:
3(2) The husband has agreed to continue to provide a new vehicle and insurance of that vehicle for as long as one or all of his children are dependents or attending post-secondary institutions or until such time as the wife remarried or co habitats. As long as the husband is to provide a new vehicle and insurance, the wife agrees that under no circumstances is anyone permitted to drive said vehicle other than herself.
3(3) If the wife remarries or co habitats, the husband agrees to provide a new or maximum 3 year old vehicle for as long as the vehicle is still within its warranty period. The husband will continue to provide a new or maximum 3 year old vehicle until one or all of his children are dependents or attending post-secondary institutions. The wife would be responsible for all regular maintenance and insurance.
[145] It is the Applicant’s position that these provisions were intended to last until the last child completed university. She is willing however to accept a 6 year limit for post-secondary education. She also believes that the order should require Mr. Rideout to reimburse her for the outstanding payments to Ford Credit Union that had to be paid when Mr. Rideout stopped making payments. This comes to $10,537.60 which was arrived at as follows:
$8,937.60 for 24 months of a lease at $372.40 per month; and
$1,600.00 for the bailiff expense for having to get the car back when it was repossessed. No amount was requested for interest on the bank loan Mr. Chivers took out to make these payments.
[146] It is the Respondent’s position that he should not be expected to make payments on a vehicle as of the time when he stopped making support payments, which was when he believed that no further child support was owing by him. In addition, he believes that the order should require the Applicant to reimburse him for the money he loaned her for insurance payments which was in the amount of $4,930.00.
[147] In the alternative, and if I do not order the vehicle expenses to be stopped when the table amount of child support is terminated, he would agree to a payment of $4,673.00 in full satisfaction of retroactive payments owing, and he would continue to pay $283.15 towards a vehicle until Natasha, being the youngest, completes her first post-secondary agree.
[148] I see no reason why the obligation to provide a car for the Applicant should have stopped if and when the children changed residences or became independent. Paragraphs 3.2 and 3.3 are different from paragraph 3.1. There is an option in paragraph 3.1 to pay the table amount being an “amount as stated by the law.” There are no alternative options in paragraphs 3.2 and 3.3. Paragraph 3.8 says that the financial commitments set out in paragraph 3 are in lieu of spousal support so the obligation for the vehicle should not have been terminated, and they should continue until the last child completes university which seems to be what was intended. The wording in paragraph 3.3 is awkward and makes no sense. I believe that the sentence in paragraph 3.3 that reads, “The husband will continue to provide a new car or maximum 3 year old vehicle until one or all of his children are dependents or attending post-secondary institutions” should have read, “The husband will continue to provide a new car or maximum 3 year old vehicle for as long as one or all of his children are dependents or attending post-secondary institutions.”
[149] The change in wording I have suggested is clearly what was intended and the only interpretation that makes sense. It could not possibly be contemplated that he would make payments until the children went from being independent to dependent. I am not attempting to change the intent or reword the agreement. I am interpreting what was intended.
[150] The Respondent suggested that, in the alternative, the vehicle could be provided until the last child completes one degree. There is no limit on how long a child will be in university in the agreement. Both parties acknowledge that the youngest, Natasha, may continue in school beyond one degree, although the Respondent believes that one degree should be sufficient. The Applicant has provided a reasonable proposal that there be a 6 year maximum imposed which I will include.
[151] The Applicant was supposed to pay the insurance herself after she first cohabited so I will order her to reimburse the Respondent for money he provided for insurance in the amount of $4,930.00. I will also order Mr. Rideout to reimburse Ms. Rideout for all money that should have been spent on the obligation to provide a vehicle. It seems that the Applicant chose to buy out the lease when her vehicle was about to be repossessed. It is reasonable to include the bailiff charge of $1,600.00, given that Ms. Rideout was suddenly without a car and this was not in compliance with the agreement.
Registered Education Savings Plans
[152] I will make no order for any lack of payment into a RESP by Mr. Rideout on behalf of any child. There was no obligation to do so in the separation agreement and there was no other agreement to do so in writing anywhere. Even if there was evidence of such an agreement, there would need to be evidence of who the parties intended these savings to be attributed to and there is no such evidence. If either party has saved money towards the children’s education, in the absence of a clear agreement, then either party should be able to use such savings towards his or her own contributions going forward.
Sharing of Extraordinary Expenses
[153] I will not make an order that each party is to contribute 25% towards any child’s post-secondary education or other extraordinary expenses. The parties have a vast difference in income and they always have. The agreement to contribute 25% each was a verbal agreement that was never carried out and I note that the parties disagree as to whether or not it was intended to apply to just Jacob, or to either of the other children as well.
[154] The separation agreement said in paragraph 3(5):
- Any costs incurred with regards to raising the children such as lessons, school trips, sports programs and equipment, camps, extracurricular activities etc. will be agreed upon and shared by both parents prorated according to income.
[155] There was no mention of post-secondary education expenses but the parties agreed to just follow the law set out in the FCSG in regard to activities which was a sharing in proportion to incomes. The children were very young when the agreement was signed, being ages 6, 4 and 3. It may be, as Ms. Rideout suggested, that they did not put their minds to post-secondary education because it was so far away in the future.
[156] I will order a sharing in accordance with income, for the above considerations, namely:
• There was nothing in writing in regard to an equal sharing of post-secondary expenses, and the verbal agreement was never followed and there is a genuine dispute as to who it applied to. Even if I accept the fact that the Applicant agreed to pay 25% this was always on the understanding that she was to receive the full table amount for all three children. If I terminated the monthly child support payable by Mr. Rideout, there would be no basis upon which to say that Ms. Rideout agreed to pay the exact same proportion as Mr. Rideout, namely 25%, when his income was so much higher. ;
• The parties already agreed in writing that activities should be shared in proportion to incomes, and post-secondary education can be seen as an extension of that; and
• The Respondent took the position that the intent of the FCSG’s should apply in regard to monthly child support payments, and I have accepted his interpretation of the agreement that the FCSG should apply. As such, I see no reason why they should not apply to the post-secondary education expenses of the children.
[157] Section 7(1) of the FCSG lists post-secondary education expenses as one of the extraordinary expenses to be considered.
[158] Section 7(1.1) and 7(2) read as follows:
(1.1) DEFINITION OF “EXTRAORDINARY EXPENSES” – For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) Expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) Where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) The amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
(2) SHARING OF EXPENSE – The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouse in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
[159] The legislation is clear that the guiding principle for the sharing of post-secondary expenses is that it should be done in proportion to the parties’ income, subject to any contribution from the children themselves. This formula is also subject to any income I impute to either parent.
[160] Both parties clearly agree that the children shall be responsible for 50% of their post-secondary expenses. Both included this provision in their draft orders and it is in keeping with the legislation so I will accept this provision.
[161] For all the above reasons, I will make the provision for the sharing of extraordinary expenses to be based on the parties’ incomes, subject to any adjustment for imputed income. It is anticipated that the children will contribute 50% to these expenses themselves. This can include any grants, loans, or scholarships.
Child Support Adjustment
[162] The Applicant seeks an adjustment of support as of May 2006 which is when the matrimonial home was sold and when the obligation to pay $1,400.00 per month in support began. The Applicant takes the position that it is appropriate to go back this far because the Respondent has engaged in blameworthy conduct. She provided case law to support the principle that when there has been blameworthy conduct the retroactive increase can be made for a period of much longer than a more common period of 3 years prior to effective notice. The cases she referred to contained fact situations where blameworthy conduct was quite evident and they were all different than the case at hand. I do not find that Mr. Rideout engaged in blameworthy conduct, and I note the following:
• He has always been a salaried employee and worked for the same company from the date of marriage to the present time. He had no other income and he increased his support payments on a voluntary basis most years. He began by paying $1,400.00 per month in 2006, and he was paying $2,056.50 per month by January 2018. There were shortfalls some months, as shown in his own calculations, but basically, the support was increased as his income increased;
• There is no convincing evidence that the Applicant made serious attempts at obtaining financial disclosure over the years. She said she asked for it verbally at some children’s sporting events but the Respondent had no recollection of this and doubted that it happened at hockey games, as she said, because he was busy with coaching duties. There was no obligation to provide annual disclosure in the separation agreement;
• The Applicant showed that she knew how to obtain disclosure and seek an increase in child support in 2007 when both parties obtained counsel to negotiate an increase in support. It is clear that financial disclosure was provided for 2007 and 2008 and an agreement was reached that Mr. Rideout would pay $1,736.00 per month as of June 1st, 2007;
• Mr. Rideout continued to pay support until November 2018 which was long after he believed a material change in circumstances took place;
• There was no effective notice given prior to 2015, which is the year the Respondent relies on for a change. Pursuant to the guidelines set out in the Supreme Court Case of D.B.S. v. S.R.G., I see no reason to order a retroactive adjustment of the kind Ms. Rideout seeks. The factors I need to look at do not assist her. The factors set out by the Court are:
a) The reason for the recipient parent’s delay in seeking child support. (There was no valid reason for the delay and Ms. Rideout had a great deal of experience in Family Court actions as she had two other separations that she dealt with).
b) The conduct of the payor (I said earlier that I found no blameworthy conduct on the part of the payor);
c) The past and present circumstances of the child. (The children are all away attending university and leading a relatively independent life. They will not be impacted by a lack of a significant retroactive adjustment.); and,
d) The hardship imposed by a retroactive award. (It would be difficult for Mr. Rideout to pay an adjustment back to 2006 and it would be difficult for Ms. Rideout to pay a large retroactive award).
[163] For all of the above reasons, I will consider the relevant period to examine for an adjustment to be the period when effective notice was given. This period can be said to be in 2018 when counsel for Mr. Rideout wrote to the Applicant to say that Mr. Rideout was requesting a change in support. The Supreme Court said in D.B.S. v. S.R.G. that even if effective notice is given, the court will usually not delve back more than 3 years.
[164] If I allow a three year review, prior to 2018, this takes me to 2015, which is when the Respondent says the children began living with him and when the Applicant moved from Oakville to Hamilton. It is an appropriate time to examine.
[165] The parties do not agree on where the children were residing as of September 2015. The schedule had them residing 7 nights out of every two weeks with each parent, but this was always subject to a full table amount of support.
[166] The Applicant is very clear in her position that the children continued to reside with her 7 out of 14 nights, even after she moved to Hamilton. She acknowledges that there were times that Jacob stayed at his father’s home due to work and school but she does not see this as affecting the child support. This is because she interprets the Separation Agreement to mean that she is paid the full amount of support for three children even if only one child resides with her. She also believes that the children primarily resided with her at all times with just brief exceptions.
[167] Each party provided detailed charts as to when each child was with them and what that child was doing at the time. Mr. Rideout’s had more detail. Each party testified as to the children’s living arrangements as did their spouses. However, Mr. Rideout also called two other witnesses who said that they had the definite impression that the children lived primarily with the Respondent. This included a neighbour who lived directly across the street from the Respondent from September 2016 to September 2018. He sounded credible and knowledgeable when giving his observations of the family, who he became close to.
[168] The email exchange in October 2016 causes me to believe that the change in the primary residence had not crystalized at that point but was in the process of changing. The Applicant was expressing frustration that they were staying at their father’s more and she wanted to make some changes to the schedule. She acknowledged during the trial that Victoria and Jacob were spending about 8 to 10 nights out of 14 at their father’s home because Victoria had a job in Bronte and Jacob had hockey in Oakville, but she gave them dinner at her parents’ home in Oakville on the Respondent’s nights often.
[169] The Respondent does show Victoria as living primarily with the Applicant from September 2015 to June 2016 and an accordance with the original schedule for July and August 2016. During the next few years, he does show some variations in the living arrangements. For example, he shows Victoria as being primarily with the Applicant from January to April 2019 and in accordance with the initial schedule from May to June 2019. He showed Natasha as being primarily with the Applicant from September 2019 to December 2019 and changing homes in 2020. This was January and February with the Applicant; March, April, May with the Respondent; June, July, August; with the Applicant and independent living by September 2020.
[170] Counsel for the Respondent sent a letter to the Applicant on October 4th, 2018. This letter served as effective notice that the Respondent believed there had been a material change in circumstances and that he wanted to reduce child support. He took the position on that date that no support was owing for Victoria and Jacob as they were living independently at the time. He thought that both parties could pay each other support for Natasha as she was dividing her time evenly between the homes.
[171] Overall, I find the evidence of Mr. Rideout as to where the children were living to be the more credible and what I will accept. He has additional witnesses who supported his position including a neighbour who lived directly across the street and interacted with the family frequently and activities in Oakville. Another witness was at all of Jacob’s hockey games and observed the children to leave the arena with Mr. Rideout. The email exchange on October 2016 shows a frustration on the part of Ms. Rideout that the arrangements that had been in place for a long time were starting to shift. Once Ms. Rideout moved to Hamilton the children began to spend more time at their father’s home, which was near their school, friends, activities and part time jobs. I also noticed Ms. Rideout was so completely convinced that her interpretation of section 3.1 of the Separation Agreement was correct, wherein actual residency was less relevant, that she found it difficult to find any times that a child was beginning to spend more than half of their time at Mr. Rideout’s home
[172] The date of effective notice was October 4th, 2018. I believe that it is appropriate to make a retroactive adjustment as of January 1st, 2017. Both parties have sought retroactive adjustments prior to that date so neither is opposed to the concept of looking backwards. The date of January 1st, 2017 is less than the three years suggested in D.B.S. v. S.R.G. but it is a significant period in my view and one that is appropriate. The three year period was suggested as a maximum in any event, and as I said earlier, I do not think the situation had quite crystalized as of October 2016. Ms. Rideout is of very limited funds and any requirement for her to reimburse Mr. Rideout will be difficult. During the time after January 1st, 2017 she was still assisting the children financially and caring for them whenever any of them were with her.
[173] New calculations will be needed but I am asking the parties to use the residency chart provided by Ms. Rasheed and filed as Exhibit D as a base. Any money owing by Ms. Rideout will have to be in small amounts with a delayed start given her current lack of employment and health issues.
[174] I am not inclined to impute income to Ms. Rideout to pay for the children while they were in Mr. Rideout’s care beyond $1,250.00 per month, or $15,000.00 per year. This is unusual given the more frequent trend to make an order based on a full time minimum wage job, but I am mindful that she had no employment during those years other than her artwork and it was always less than $15,000.00. She could not possibly be expected to have any more at this time given her health issues and the pandemic. She might be unable, or unwilling, to enter people’s houses to paint murals due to rules or concerns about the pandemic. The amount of $15,000.00 in imputed income is less than the $30,000.00 agreed to on June 24th, 2019 when a temporary order was made but that order was made on a “strictly without prejudice basis” and it is appropriate for it to be changed now that I have had the benefit of hearing a trial.
[175] I cannot accept her income as any less than $15,000.00 as the Applicant could have taken steps to seek better employment once the children were older and certainly by January 1st, 2017. The maximum she appears to have earned is $11,000.00 and this was one year. It appears that her income in 2017 was assessed at $1,109.00 and at $6,320.00 in 2018. In her financial statement sworn on September 24, 2019 and filed in the Trial Record, she estimated her self employment income to be $600.00 per month which would be $7,200.00 per year. There was insufficient evidence of serious efforts to find better paying employment. At the same time I am mindful that it would be hard for her to find better employment now and the $15,000.00 is a balance between what she could have had in 2017 to 2019 if she made more of an effort to find employment, and what she might have earned once the pandemic came and she was diagnosed with cancer. The sum of $15,000.00 is imputed income under section 19(1)(a) of the FCSG. This section was quoted earlier herein. I am of the view that as of January 1st, 2017 Ms. Rideout could have been earning more than the small amounts she did from occasional sales of her artwork, and as such she was intentionally underemployed at that time.
[176] The retroactive period prior to effective notice that I am imposing is 21 months which I believe is appropriate for the reasons set out above.
[177] When the parties attend court to provide revised calculations, I want them to use the following guidelines:
a. The base is the residency chart in Exhibit D, being the Respondent’s Retroactive Child Support Brief, from January 1st, 2017 to September 2020.
b. For any period where a child is shown as living “50/50” the Respondent would pay the entire table amount as this is how the children were living when the Separation Agreement was signed and the full amount was paid by the Respondent. It is what they agreed.
c. For any time the Applicant should be paying child support, her income is presumed to be $15,000.00 per year.
Victoria is considered to be living independently as of January 2020.
Jacob is considered to be living primarily with the Respondent for only four months per year as of September 2018.
Natasha is considered to be living independently as of September 2020.
[178] I will make an order that child support payable by the Respondent is terminated as of May 31st, 2020 as that is the date where all of the children are shown as living independently on the Respondent’s chart (with the exception of Jacob living with the Respondent the summer months). The period between January 1st, 2017 and May 31st, 2020 is the retroactive period to be determined. All three children were 18 years of age or older as of May 31st, 2020.
Extraordinary Expenses Adjustment
[179] I decline to make an adjustment of retroactive extraordinary expenses. These expenses are predominantly post-secondary education expenses. Since I am ordering these expenses, for reasons set out earlier, to be paid in proportion to the parties’ incomes, the Applicant’s share is very small. She and Mr. Chivers have voluntarily helped out the children, and this has included paying Jacob’s rent. Both parties have contributed what they could on a voluntary basis and there was no written agreement about these expenses. There was no specific claim made by the Applicant for retroactive extraordinary expenses, so this is a reason to not order any in her favour. Many of the items shown by the Applicant as electronic transfer was for things that are not actually an extraordinary expense. She and Mr. Chivers have been generous in their help with the children when asked by the children themselves. It looks like they paid for more than Ms. Rideout’s proportionate share overall, and this is a reason to not order her to pay anything to Mr. Rideout. Clearly rent and computer purchases could be seen as an extraordinary expense. Going forward, the Respondent should keep track of all of these expenses and Ms. Rideout will reimburse Mr. Rideout for her share.
[180] I am aware that Ms. Rideout offered to pay extraordinary expenses based on an income of $30,000.00 in her proposed draft order but this was based on her continuing to receive a full amount of child support for all three children. She said she had a verbal agreement at one point to pay 10% but there is no proof of this and the Respondent does not agree that such a verbal agreement exists. I will order that these expenses be paid in accordance with the parties’ incomes and the Applicant be imputed an income of $15,000.00 as a minimum for reasons set out earlier. Ironically, this will leave the parties close to a 10%-90% sharing.
Vehicle Calculations
[181] Unfortunately, I need revised calculations for the vehicle. This is because Ms. Rideout purchased the car to get it back when it was repossessed. I can include that expense in the amount the Respondent owes her for her car leasing, but there will not be a lease if she owns the car. I need to speak to the parties about this.
[182] The revised calculations need to show Ms. Rideout reimbursing Mr. Rideout for the overpayment of insurance and Mr. Rideout reimbursing Ms. Rideout for the cost of the car being repossessed and ongoing leasing for the period set out earlier herein, or for the purchase of the car.
[183] I need to address the issue of the $97.50 Mr. Rideout deducted from child support each month starting in December 2nd, 2015 based on an agreement purportedly signed by the parties. The amount of $97.50 was the extra amount for the monthly lease expense for the upgrade in the car Ms. Rideout wanted.
[184] I appreciate the Applicant’s belief that the signature was forged on the vehicle replacement agreement dated December 2nd, 2015. It appears to be identical to the signature she signed in December 17th, 2008. Mr. Rideout denies this and I had no experts handwriting analysis to assist. I also did not receive the original document with original signature to compare. I am therefore unable to resolve this issue, and in the absence of the documents with original signatures I will allow a deduction of $48.75 per month for the relevant time which is one half of $97.50.
Miscellaneous
[185] I will make an order that incorporates the above decisions and gives direction on the two issues I need to see the parties for. At that time, a timeframe can be set for costs submissions.
[186] A provision for annual disclosure of income will be included since the parties will be sharing extraordinary expenses in accordance with their income.
Order to Issue
On a final basis
The support agreed to in the parties’ Separation Agreement dated October 21st, 2005 for the three children of the marriage, namely: Victoria Rideout born April 4th, 1999, Jacob Rideout born November 24th, 2000, and Natasha Rideout born May 21st, 2002, in paragraph 3.1 of the Separation Agreement dated October 21, 2005, is interpreted to be subject to the Federal Child Support Guidelines. This includes variations upon a material change in circumstances.
The obligation of the Respondent to provide a vehicle for the Applicant in paragraph 3.3 of the Separation Agreement shall remain in effect until the last child has completed post-secondary education up to a maximum of six years.
There is no order for a contribution towards Registered Education Saving Plans for any of the children.
There is no retroactive adjustment for extraordinary expenses.
As of January 1st, 2021, the parties shall share 50% of these extraordinary expenses in proportion to their incomes, with a minimum gross annual income of $15,000.000 attributed to the Applicant.
It is recognized that the parties have agreed that the children are responsible for the remaining 50%.
There shall be no retroactive adjustment of child support prior to January 1st, 2017.
There is no monthly child support owing by the Respondent as of May 31st, 2020.
As long as there is an obligation to share extraordinary expenses, both parties shall provide annual disclosure of their income, including a copy of their income tax returns and notices of assessment, by June 30th of every year for the prior year commencing June 30th, 2021, for the year 2020.
On a temporary basis
- The parties shall arrange with the Trial Coordinator to reattend before me (in person, or by telephone, or virtually) to make further submissions on some remaining points. These are as follows:
a. To finalize what is owing for the vehicle lease given that the Applicant purchased the car and that there is an ongoing obligation to provide a car. The loan for insurance payments shall be included in the calculations. The deduction from the child support set out in the agreement dated December 2, 2015, in the amount of $97.50 per month shall be changed to $48.75.
b. To provide revised calculations for the child support adjustment from January 1st, 2017 to May 31st, 2020 with the following guidelines to assist the parties.
i. The Respondent’s schedule in regard to where the children lived during these years shall be the base.
ii. The Applicant’s income shall be imputed at $15,000.00 per year for any period where she should have paid support.
iii. For any time the children are deemed to have been living with both parties, the Respondent pays the table amount.
iv. The Respondent’s income for the retroactive period will be his actual income for the year in question (2017, 2018, 2019 and 5 months of 2020).
c. To set a timetable for the filing of written submissions regarding costs.
McLaren J.
Released: February 12, 2021
COURT FILE NO.: 445/19
DATE: 2021-02-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kimberly Joy Rideout
Applicant
- and -
James Matthew Rideout
Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice M. McLaren
Released: February 12, 2021