COURT FILE NO.: FS-16-014800-01
DATE: 2021 04 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CAROLYN ANNE JACKSON (FLETCHER)
Applicant
- and -
BRYAN RICHARD JACKSON
Respondent
Monica Scholz, for the Applicant
Daniel R. Furlan, for the Respondent
HEARD January 12, 2021, by videoconference
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The Applicant Carolyn Anne Jackson (Fletcher) (the “Mother”) has brought a Motion to Change the final order of Seppi J., dated January 6, 2017. In particular, the Mother seeks the following:
a) A change in child support to reflect the income of the Respondent Bryan Richard Jackson (the “Father”) following proper disclosure, which order will continue until six months after their child Madison is expected to graduate in June 2021;
b) Payment of the sum of $638 per month for special or extraordinary expenses; and
c) An order that the Father pay outstanding child support in the sum of $7,566.25 as of April 30, 2019.
[2] While not part of the Motion to Change, in her affidavit, sworn after the settlement conference and in support of this hearing, the Mother has also requested an increase in spousal support once child support is terminated.
[3] In response, the Father denies that any monies are owing, and has requested the following orders:
a) A finding that the parties’ oldest child, Madison Anne Fletcher, has unilaterally repudiated her relationship with the Father as of April 1, 2017 and as a result, an order that his child support obligations should end as of that day;
b) In the alternative, his income has decreased, and accordingly, so should his child support obligations; in addition, he seeks a decrease due to the alleged interference by the Mother in his and Madison’s relationship; and
c) In the further alternative, a finding that the Mother has failed to provide the necessary information to determine his obligation towards Madison’s post-secondary education costs, and therefore no amount is owing.
[4] Both parties seek their costs.
[5] In his materials, the Father maintained that a variation of spousal support is not before the court. However, at the hearing, the Father submitted that he is agreeable to reviewing spousal support at this time. It is the Father’s position that even if the Mother continues to be entitled to support, the appropriate amount to be paid is nil given each party’s respective change in income.
I. Background
[6] The Mother and Father were married on July 8, 1989 and separated on April 1, 2010. Their divorce was finalized on May 1, 2012.
[7] There are three children of the marriage: Christopher Robert Jackson, born February 1994 (“Christopher”), Marisa Elizabeth Fletcher, born July 1991 (“Marisa”) and Madison Anne Fletcher, born January 2000 (“Madison”). This motion is only with respect to child support and section 7 expenses for Madison, who is now a full-time student at Mohawk College in Hamilton, Ontario. She is currently in her third and final year.
[8] The parties first resolved all their matrimonial litigation pursuant to Minutes of Settlement. These Minutes were incorporated into the Order of Hourigan J. on January 26, 2012 (the “Hourigan Order”). In this Order, the Father’s income was set at $90,000 per year. He was ordered to pay child support for the two youngest children and spousal support based on that income. Child support was payable until the children turned 18 years old, provided they are not then enrolled in a full-time programme of secondary school education, which includes enrolment in an apprenticeship programme. His spousal support obligations were set at $545 per month, for an indefinite period.
[9] In 2016, the Father commenced a Motion to Change in which he alleged a reduction in his income. That motion was also settled by way of Minutes of Settlement, which terms were incorporated into the final order of Seppi J., dated June 6, 2017 (the “Seppi Order”).
[10] The Seppi Order terminated child support for Christopher as of December 2016 (six months after his graduation) and set ongoing child support for Madison based on the Father’s imputed income of $95,000 per year. Payment for s. 7 arrears were ordered. Spousal support was varied to the sum of $872 per month once Christopher’s support was terminated. Details were set out regarding the Father’s obligations to pay Madison’s s. 7 expenses. Otherwise, the Hourigan Order remained in full force and effect.
[11] The Mother commenced this Motion to Change in November 2018, just after Madison had started her first year at Mohawk College.
II. Issues
[12] The following issues must be determined in this matter:
a) Has Madison repudiated her relationship with the Father so as to disentitle her to child support? If so, when?
b) If the Father is still obligated to support Madison,
Has the Mother or the Father established a material change in circumstances since the Seppi Order?
If so, what is each party’s income for the purposes of child support?
What are the Father’s monthly child support and section 7 obligations?
Should the Father’s child support obligations be reduced due to the alleged conduct of the Applicant Mother?
c) When Madison’s entitlement to child support ends,
Does the Mother remain entitled to spousal support?
If so, what amount of spousal support should be paid to the Mother?
III. Analysis
A. Repudiation
[13] Although this claim for relief was made in response to the Mother’s Motion to Change, it is appropriate that it be decided first, as it may inform the remainder of the relief sought.
[14] In support of this relief, the Father has claimed that he continued to have contact with Madison until March 2017. They would meet for dinner and would text. Madison attended at her paternal grandmother’s funeral around this time. In late March 2017, the Father alleges that Madison asked for $20 for gas, and when he refused, she never contacted him again. He states that he has sent text messages or cards on Christmas and her birthday, but she does not respond. No evidence of these text messages or cards was provided. The Father blames this loss of relationship on the Mother. He claims that Madison used to meet with him without letting the Mother know, because she knew the Mother did not like it.
[15] It appears agreed that the Father does not have a relationship with his other two children. Apparently, when the parties separated, the Father was charged with assaulting the Mother and Christopher. The Father was prohibited from having contact with the Mother, Marisa or Christopher for a three-year period. In her affidavit, Marisa states that “none of us kids had much of a relationship with our father even before our parents separated.”
[16] The Mother presented no evidence in opposition to this relief, except to repeat the circumstances surrounding the Father’s arrest and prohibition of contact, although it does not appear to include Madison. The Mother maintains that it is the Father who chooses to have no contact with Madison.
[17] At the argument of this motion, neither party dedicated much time to this argument, but instead focused on the parties’ income and Madison’s contribution to her own education.
[18] A parent has an obligation to support their unmarried child who is enrolled in a full-time programme of education, except where that child is sixteen years of age or older and has withdrawn from parental control: s. 31(2), Family Law Act, R.S.O. 1990, c. F.3. The onus to prove that a child has withdrawn from parental control is on the paying party – in this case, the Father: Rotondi v. Rotondi, 2014 ONSC 1520, at para. 49.
[19] In the case before me, the Father has failed to discharge his onus. Other than saying he reaches out periodically, he has provided no evidence of the frequency of that contact. He has not addressed the impact of the restrictions placed on his access to the other children. The Court is left with little evidence to consider. In addition, within the course of this litigation, Madison continues to provide information to her Father regarding her studies and employment. This conduct does not reflect the actions of someone who has withdrawn from parental control.
[20] Accordingly, I do not find that Madison has repudiated her relationship with the Father. The Father continues to be obligated to support Madison until she is no longer a child of the marriage under s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Divorce Act”).
B. Material Change in Circumstances
[21] Both the Mother and the Father seek a finding that the Father’s yearly income has changed. The Mother seeks a finding that it is more than $95,000 and the Father seeks a finding that it is approximately $62,000.
[22] The Divorce Act, as amended in March 2021, states:
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(a) a support order or any provision of one, on application by either or both former spouses;
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
[23] The applicable provisions in the Federal Child Support Guidelines, S.O.R./97-175 (the “Guidelines”), state:
14 For the purposes of subsection 17(4) of the [Divorce] Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support;…
[24] If I find that the Father’s income has changed, that will provide the grounds necessary to vary the amount. Irrespective of whether the Father’s income has changed, the Father has taken on a new job in additional to his self-employment income, and the Mother has taken on a second job as well. Both parties have different incomes and different employment situations than when the Seppi Order was made, all of which will have an impact on child support, s. 7 expenses for Madison and spousal support. There is a material change with respect to both parties, and it is therefore appropriate to consider a variation of child support and spousal support.
C. Income of the Parties
[25] For the purposes of this motion, the income of the Father, the Mother and Madison must be determined.
i. Father’s Income
[26] The Father is a licensed electrician. It is agreed that in 2020, the Father had at least 2 sources of income: self-employment income from his own company, Brylor Electric Inc. (“Brylor”), and as of June 2020, employment income from Robertson Bright Inc. (“RBI”). The Father maintains that he will continue to work for RBI and expects to earn $62,000 per year, but that he will be winding down Brylor in 2021. The Mother submits that, based on the Father’s practice, he will continue to work on the side, through his company or otherwise. She therefore seeks an order that his income be imputed at $100,00 per year.
[27] In 2012, the Father agreed his income was $90,000 in the Hourigan Order. This was more than his reported income. In 2017, the Father agreed that his income was $95,000 when he was self-employed with Brylor, which is reflected in the Seppi Order. The Father claims his income was not that high, but that he only agreed to end the litigation and save further costs. Whether or not it is true, the Court takes its direction from s. 15(2) of the Guidelines:
15 (2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.
[28] The Court is not prepared to look behind the Father’s agreed-upon income in 2017, or even 2012, and conclude that he was never able to earn that much.
[29] The calculation of the Father’s income has been challenging, as full and frank disclosure with respect to Brylor has not been forthcoming. In accordance with s. 21(1)(f) of the Guidelines, the Father is required to provide additional information for any corporation that he controls, which he does here. This obligation exists irrespective of any court order. In addition, on October 14, 2020, Justice Doi made a further disclosure order. I have reviewed the disclosure provided, and it falls short of both requirements.
[30] This failure to provide full and frank disclosure is problematic because the information required is meant to assist the court in determining whether income should or should not be imputed under s. 19(1)(d), (e), (g) and (h) of the Guidelines. Accordingly, the failure to provide that information alone allows the Court to impute income to the Father: s. 19(1)(f).
[31] Section 2(3) of the Guidelines states that when determining child support obligations under the Guidelines, the most current information must be used. For the purposes of child support and the division of section 7 expenses, I see no reason to deviate from the current income that the Father is earning.
[32] The Father has conceded to earning the equivalent of $62,700 per year through RBI. In trying to ascertain the Father’s income from Brylor in 2019 and 2020, I have reviewed the information provided. In 2019, Brylor had gross sales of $102,318, claimed gross income of $73,622 after the costs of sales were deducted, and claimed net income of $34,413, after expenses. In 2020, Brylor’s gross sales grew to $108,893, its gross income grew to $87,866, and its net income increased to $50,451. The information provided does not support the Father’s position that Brylor suffered a large reduction of business in 2020 due to COVID-19. In fact, it shows that his business grew. No evidence was provided to support the Father’s contention that he has lost all his clients and that he intends to wind the business down, other than the financial information provided, which contradicts this position. Accordingly, for the purposes of his child support obligations, I cannot accept that the Father’s income has decreased.
[33] The Father has consistently earned, as he has agreed, between $90,000 and $95,000 since 2012. I see nothing in the evidence before me to support anything less. Accordingly, for the purposes of calculating the Father’s ongoing child support obligations, I impute his income at $95,000 for the last year that Madison continues to be a child of the marriage.
[34] With respect to the Father’s spousal support obligations after child support ends, the Father has asked that I assume he will be earning no income from Brylor, and base any support obligations on his RBI income of $62,700.
[35] The starting point for calculating income for the purposes of spousal support is the definition of income under sections 15 to 20 of the Guidelines: section 6.1, Spousal Support Advisory Guidelines (the “SSAGs”).
[36] Given the lack of complete financial disclosure with respect to Brylor, I have the authority impute income from Brylor: s. 19(1)(f) of the Guidelines. Caution must be exercised though, when imputing income as a result of a party’s failure to make financial disclosure. In Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44, the Court stated:
Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.
[37] If the Father continued to work both jobs at the current rate, he would be earning the equivalent of $113,148 per year. I concede this is unlikely given that for each hour he works with RBI, he is able to work less for himself. I am not persuaded though, that the Father will cease working for himself, whether through Brylor or otherwise. He is not working full time hours with RBI. He is far from retirement age. There is no reason why the Father should not continue to work full time, whether with RBI alone, or with a combination of RBI income and self-employment income.
[38] At RBI, the Father earns $46.49 per hour. Sometimes he earns $53.46 per hour. Assuming he works full time at these hourly rates, the Father could earn anywhere between $90,000 and approximately $105,000 per year. If he only worked at RBI on a part-time basis, earning the equivalent of 62,700 per year, he would have more time to devote to self-employment. I see no reason why the Father should not work for himself such that he is working full time as between the two jobs. Accordingly, whether by working for RBI alone or by a combination of both RBI and self-employment, I find that the Father is able to work full time and earn $95,000 per year. Accordingly, I impute that income to him for the purposes of his ongoing spousal support obligations.
ii. Mother’s Income
[39] The Mother’s income is straight forward. She has worked in retail at the Hudson’s Bay Company (“HBC”) since the children started school full time. In the Seppi Order, at para. 7, the Mother’s yearly income is set at $35,000. Given that the Seppi Order was made in January 2017, this was probably based on the Mother’s 2016 income.
[40] After Madison started college in September 2018, the Mother took on a second retail job at Bath and Body Works (“BBW”) to help out with Madison’s educational expenses. Accordingly, the Mother states that she has worked about 60 hours per week for the last three years. She claims she would not have worked this much if the Father had contributed, and claims she is worn out. If she were not working 60 hours per week, she submits that her one job would earn her approximately $35,000 per year.
[41] The Mother has provided her pay stubs from HBC for the period of September 2019 to November 13, 2020. These stubs show that, on average, the Mother works 40 to 60 hours every two weeks at a rate of $19.30 per hour, plus occasionally some overtime or statutory holiday pay. The Mother has also provided pay stubs from BBW from December 2018 to November 2020. They show that on average, the Mother works anywhere from 25 to 60 hours every two weeks, depending on the time of year. At this second job she earns $15 per hour. Her 2017 Notice of Assessment shows a total income of $45,448, her 2018 Notice of Assessment shows a total income of $56,885 and her 2019 Notice of Assessment shows an income of $58,819.
[42] Section 2(3) of the Guidelines states that when determining child support obligations under the Guidelines, the most current information must be used. For the purposes of the division of section 7 expenses, I see no reason to deviate from the current income that the Mother is earning, just as was done for the Father. The Mother indicated that she took the second job to help Madison with college. College will be finished in April. Therefore, her current income should be used, namely $58,819 per year.
[43] With respect to the calculation of spousal support, the Mother seeks a finding that she will earn only $35,000 when Madison finishes college. In essence, she is asking me to impute a lower income to her that will start in the months to follow.
[44] The presumption is that a party’s income is as stated under “Total Income” on their annual tax return: s. 16, Guidelines. The court can deviate from this presumption as set out in sections 17 to 20 of the Guidelines. Section 19 allows a court to impute an income to a party on the basis of intentional under-employment or unemployment. I note that this provision does not allow the imputation of reduction of income when a spouse is overemployed.
[45] In this case, this Court can consider the Mother’s pattern of income in the last three years. If I accept that the Mother will be dropping her second job when Madison finishes school, her income in 2017 is the most reflective of her income going forward. Her income only increased while Madison was in school, and should return to the 2017 levels thereafter. I accept the Mother’s position that she will not continue to work in excess of 60 hours per week. It was not her practice during the marriage, nor since the separation. The last few years have been a deviation. When imputing the Father’s income, I did not find that he should work more than full time hours going forward. I make the same assumption for the Mother.
[46] I am not prepared though, to accept that the Mother will only earn $35,000. In 2017, before she took the second job, she earned approximately $45,000 at HBC. Accordingly, for the purposes of spousal support, the Wife’s income should be set at $45,000, inclusive of rental income.
D. Conduct of the Mother
[47] The Father seeks an order that he pay an amount for child support that is less than the Guidelines amount “due to the Applicant’s contribution to a lack of a relationship between the Respondent and Madison.”
[48] I was directed to no authority that supported the proposition that the conduct of a parent should affect the quantum of support payable for a child.
[49] As stated in C.M.M. v. D.G.C., 2015 ONSC 1815, at para. 90, following Richardson v. Richardson, 1987 58 (SCC), [1987] 1 S.C.R. 857, at paras. 13-16:
[90] First, child support is the right of the child. Second, no contract or agreement can oust the court's jurisdiction in respect of child support. Parents cannot barter away a child’s right to support. Third, the parents' conduct at the time of the child's birth and thereafter, and at the time of the Agreement, is irrelevant to the child's entitlement to support. Finally, the court is always free to intervene and determine the appropriate level of support for a child. [Citations omitted, emphasis added.]
[50] Accordingly, no variation in child support will be made as a result of the Mother’s alleged conduct.
E. Contribution by Madison
[51] The Mother seeks an order that the Father pay his share of Madison’s post-secondary school costs.
[52] The Mother does concede that the Father paid the sum of $6,664.21 on October 28, 2019, after this Motion to Change commenced. The Father maintains that this was in complete satisfaction of Madison’s s. 7 expenses for 2018 and 2019, whereas the Mother indicates she did not understand that this was a final settlement. I have reviewed the Father’s evidence on this issue, which is the offer to settle made by the Father as to section 7 expenses arising from the first and second years of Madison’s post-secondary education, and the Mother’s acceptance. I agree that the expenses associated with the first and second years have been resolved. Only Madison’s third year s. 7 expenses must be determined.
[53] The Father accepts that Madison’s tuition was $6,071. In the preceding years, the Father has accepted that he needs to pay for Madison’s books, parking, car insurance and fuel at $40 per month, which was part of the Seppi Order. The Mother has conceded that gas money has been less this year due to classes being online, but Madison still travels to school a couple of times per week.
[54] When calculating his obligation for the previous years, the Father totalled Madison’s tuition, books, parking ($590-620), car insurance ($2,169.68 for eight months), fuel at $40 per month, plus a one-time expense of a computer. The Mother has indicated that Madison gave up her parking pass, but pays for parking on a per diem basis at least twice a week. No specific cost was provided. While no receipts were provided for car insurance and gas, the Father accepted the insurance costs in the past, which remained consistent.
[55] Madison supported her own education for the school year of 2020-2021 from the following sources:
a) A student loan for $6,328; and
b) Employment income of approximately $4,956.64 after taxes from the March of Dimes and approximately $200 from McBurl Corp. in the summer of 2020 before she started at the March of Dimes.
[56] I calculate Madison’s total expenses for her 2020-21 school year, as listed in the Seppi Order, as follows:
| Item | Full Cost |
|---|---|
| Tuition | $6,071 |
| Insurance | $2,169.68 |
| Gas (1/2 of previous years) | $160 |
| Parking (1/2 of previous years) | $300 |
| Total: | $8,700.68 |
[57] While I have relied on accepted vehicle expenses from the previous year, the cost of books fluctuate, and I received no evidence of these costs.
[58] The Father submits that Madison should be required to contribute $2,000 of her own earnings towards her education. He also points out that her student loan covered almost all of her educational costs. The Mother believes the Father should have to pay, irrespective of the student loan, as it would not have been necessary had he contributed.
[59] It is well established that a child should contribute to their own education to the best of their ability. They do not have to contribute every cent they earn, but their earnings must be considered and balanced with the income of their parents: Lewi v. Lewi (2006), 2006 15446 (ON CA), 80 O.R. (3d) 321 (C.A.), at paras. 39-42.
[60] In addition, when determining the proper expense to be paid, the court is to consider any subsidies, benefits or income tax deductions or credits received: s. 7(3), Guidelines. A student loan is not considered a “benefit” within the meaning of s. 7(3) of the Guidelines: Roth v. Roth, 2010 ONSC 2532, at para. 16(e). The receipt of a student loan by a child will not always eliminate the obligations of a paying parent. The court must determine the reasonableness of taking such loans into account in the circumstances of each case: Coghill v. Coghill (2006), 2006 28734 (ON SC), 30 R.F.L. (6th) 398, at para. 44; Roth, at para. 16.
[61] Generally, the courts will only require a child to contribute to their education by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses: Naveed v. Nasir, 2016 ONSC 7878, at para. 45
[62] Madison should be commended for her hard work and her contributions to her education. This skill will bode well for her in the future. Given her earnings, it is only reasonable that she contributes her share. The sum of $2,000, as suggested by the Father, is a reasonable contribution.
[63] With respect to the student loan, in these circumstances, I do not find that it appropriate that Madison be required to deduct the amount of her student loan from the contributions required by her parents. I have found that the Father has earned at least $95,000 over the last year, and her mother approximately $58,000. Madison has been responsible in keeping her costs reasonable. Both parents have the means to contribute to Madison’s education. Accordingly, I find that both the parents should pay their proportionate share so that Madison can reduce or eliminate her student loan accordingly. I also make this determination with the understanding that this is Madison’s final year and this will be the last contribution to her education that the Father will have to make.
[64] Accordingly, after deducting the sum of $2,000 from the total cost of Madison’s third year, $6,700.68 remains to be paid by the Mother and the Father.
F. Quantum of Support for Madison and End Date
[65] As indicated, I have found that the Father’s income for the purposes of child support is $95,000. Accordingly, his monthly child support obligations will not change.
[66] With respect to the division of section 7 expenses, I have found the Mother’s current income to be approximately $58,000 based on her 2019 income. The incomes of both parties will translate to a division of section 7 expenses such that the Father should pay 62 percent of the expenses and the Mother should pay 38 percent. This division of expenses based on current income is not so significant as to justify a variation. Accordingly, the division in the Seppi order shall remain, which translates to the Father paying 60% of the net expenses, being $4,020.41.
[67] The Mother seeks an order that child support terminate six months following Madison’s graduation from college. She states that she and the Father had previously agreed to this for their last child on the understanding that it would take them that long to become self-sufficient. There is no allegation that Madison has a medical or other reason for being unable to support herself after graduation.
[68] The Hourigan Order states:
- Child support shall terminate for any child 18 years of age or older provided they are not enrolled in a full-time program of post-secondary education which includes enrolment in an apprenticeship program.
[69] The applicable provisions of the Seppi Order are as follows:
After the child, Madison Fletcher reaches the age of 18, the Applicant shall provide to the Respondent proof of her enrollment in a full-time educational program.
All other terms of the January 26, 2012 order shall remain in full force and effect.
[70] Child support must be paid for a child who is considered a “child of the marriage”. A child of the marriage is defined as a child who is under the age of majority, or if over the age of majority, is unable to withdraw from their parents’ charge by reason of illness, disability or other cause: s. 2(1), Divorce Act.
[71] As indicated above, child support is the right of the child and cannot be bargained away by the parent: Richardson, at para. 14. Accordingly, if Madison continues to be a child of the marriage following her graduation, child support is payable, irrespective of any agreement the parents may have made.
[72] The Court of Appeal for Ontario has found that a modest transition, involving a brief holiday followed by a genuine search for employment, between the end of a degree and the start of a new job, is not outside the ambit of “parental charge” as contemplated by s. 2(1) of the Divorce Act: S.P. v. R.P., 2011 ONCA 336, 332 D.L.R. (4th) 385, at para. 32. In S.P., child support was ordered to continue until September, following an April graduation.
[73] In addition, in Weber v. Weber, 2020 ONSC 4098, Chappel J. reviewed the entitlement of an adult child to support. At para. 62, she stated the following:
[62] The case-law is also clear that a child who has ended their studies does not necessarily lose their entitlement to support as soon as they have completed their education. The child may continue to be unable to withdraw from parental charge for a period of time after the completion of their studies for various reasons. For instance, the case-law recognizes that children may require a reasonable transition period after ending their studies to seek out and obtain employment. The assessment of whether the child remains unable to withdraw from parental charge during such a transitional period for reasons that may justify ongoing entitlement to support, and the appropriate length of any such transitional period, involves a careful consideration of all relevant evidence respecting the child’s overall condition, means, needs and circumstances. [Citations omitted.]
[74] Accordingly, while we do not know how long it will take Madison to find a job, she appears by all accounts to be an industrious young adult, and it will not be long before she finds some source of income. That being said, I take judicial notice of the fact that we are in the midst of a pandemic and employment opportunities may not be readily available until at least the fall of 2021. Accordingly, I find it appropriate that the Mother continue to receive monthly child support payments for Madison until the end of September 2021.
G. Spousal Support
[75] The parties originally resolved the issue of spousal support in Minutes of Settlement, which became the Hourigan Order. With respect to spousal support, the Hourigan Order states:
The Respondent shall pay to the Applicant spousal support in the sum of $545.00 per month commencing February 1, 2012 and monthly thereafter.
Support payable herein is based on the Respondent's gross yearly income of approximately $90,000.00 and the Applicant's gross yearly income of approximately $26,700.00.
[76] Following the Father’s Motion to Change in 2016, the Seppi Order provided that the Father’s support obligations were based on his imputed income of $95,000 per year. Spousal support was also varied in the Seppi Order to state:
- Commencing on January 1, 2017 and on the first day of each subsequent month, paragraph 10 of the order of January 26, 2012 shall be varied to provide that the Respondent shall pay spousal support to the Applicant fixed in the sum of $872.00 per month, being the mid-range required by the Spousal Support Advisory Guidelines given the Applicant's income of $35,000.00 per year and with credit given for the $829.00 spousal support already received in January 2017.
[77] The Father submits that the Mother is no longer entitled to spousal support, as she should have become self-sufficient by this time. In the alternative, he claims that if she is still entitled to spousal support, there is no amount payable due to her increase in income, and his decrease.
[78] At this time, the Father has not satisfied the Court that the Mother’s entitlement has ended. This marriage lasted 21 years, which is considered long-term. The Father has been paying support for approximately 11 years, being only half the length of the marriage. Throughout the course of the marriage, the Father was the primary wage earner as a skilled tradesman, namely as an electrician. The Mother primarily raised the children, and when they were in school, worked in retail in or around minimum wage.
[79] Since separation, the Mother has continued to increase her earnings. Irrespective of her second job, her earnings in her primary job have increased. She is making more than minimum wage, which is an accomplishment given her lack of formal education that would allow her to earn more. The Mother has done well to support herself since separation.
[80] Attached at schedule A is a DivorceMate calculation based on the Father earning $95,000 and the Mother earning $45,000. The amount payable ranges from $1,281 to $1,4708 per month. In the Seppi Order, the parties agreed on a mid-range level of support, which was set at $826 per month. I am prepared to rely on the parties’ agreement in 2017 that the mid-range is appropriate and set the Father’s ongoing spousal support obligation at $1,495 per month.
IV. Conclusion
[81] For the foregoing reasons, I make the following orders:
a) The Father shall pay the sum of $4,020.41 to the Mother for arrears in s. 7 expenses for Madison, payable in 30 days;
b) The child support ordered in paragraph 2 of the Order of the Honourable Madam Justice Seppi, dated January 6, 2017, is terminated, effective September 30, 2021;
c) Paragraph 7 of the order of the Honourable Madam Justice Seppi, dated January 6, 2017, is changed as follows:
The Respondent Bryan Richard Jackson shall pay spousal support to the Applicant Carolyn Anne Jackson in the amount of $1,495 per month commencing October 1, 2021 and continuing on the 1stday of each month that follows until a court orders otherwise, based on the Applicant’s yearly income of $45,000 and the Respondent’s yearly income of $95,000.
d) All other terms of the Order of the Honourable Justice Seppi, dated January 6, 2017, remain in full force and effect;
e) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the parties shall serve and file their written submissions on or before 4:30 p.m. on April 23, 2021. The parties shall serve and file their responding submissions on or before 4:30 p.m. on May 7, 2021. All written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle; and
f) All other claims are dismissed.
Fowler Byrne J.
Released: April 8, 2021
SCHEDULE “A”
COURT FILE NO.: FS-16-014800-01
DATE: 2021 04 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CAROLYN ANNE JACKSON (FLETCHER)
Applicant
- and -
BRYAN RICHARD JACKSON
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: April 8, 2021