N.T. v. P.T., 2022 ONSC 5263

COURT FILE NO.: FC-05-2440-0001

DATE: 20220915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.T.

Applicant Mother

(Responding Party)

– and –

P.T

Respondent Father

(Moving Party)

H. Keith Juriansz and Ashkay Sandir, for the Applicant Mother (Responding Party)

Brigitta Tseitlin, for the Respondent Father (Moving Party)

HEARD: May 18, 19, 20, 24, 25, and 27, 2022

RELEASED: September 15, 2022

Justice Alex Finlayson

PART I: OVERVIEW

[1] The parties were in a relationship for a little over 12 ½ years, between their marriage on March 31, 1993 and their separation on November 8, 2005. They have two adult daughters, N.T., born […], 1994 (age 28) and S.T., born […], 1996 (age 26), and one adult son, J.T., born […], 1998 (age 24). They are divorced by Order of Justice Hughes dated August 27, 2019.

[2] This was the parties’ third trial since the separation. Their first trial, heard in 2009, concerned parenting issues. The parties’ children were then minors, and their residential arrangements had changed between the separation and that first trial.

[3] The parties did not complete their first trial. They instead entered into two consent orders respecting parenting.

[4] The parties’ second trial was heard over several days in November 2010. It concerned child and spousal support. By that point, the governing parenting orders provided that S.T. and N.T. would reside with their mother, and J.T. would reside with his father.

[5] On January 19, 2011, Magda J. ordered the father to pay prospective child support of $1,427.00 per month based on those residential arrangements, and prospective spousal support of $1,118.00 per month, both commencing January 1, 2011. He also ordered the father to pay the mother retroactive child support of $14,212.00 and retroactive spousal support of $16,194.75 for the years 2006 to 2010, after taking the parties’ incomes in the relevant years and the children’s changing residential arrangements since the separation into account.

[6] Magda J.’s support Order continued for seven years, until this current round of litigation. Both parties now seek to change it in different ways.

[7] The father seeks to terminate child and spousal support entirely. The mother has already agreed to the termination of child support, but she would have the Court continue and increase spousal support. She also has an additional claim for special or extraordinary expenses pursuant to section 7 of the Federal Child Support Guidelines before the Court.

[8] The father initially proposed a termination date for child support for N.T. and S.T. as of May 1, 2017.[^1] Then, during the prior proceedings leading up to this trial, the parties agreed, on a temporary basis in the consent Order of Fryer J. dated June 25, 2018, that child support for N.T. would terminate on April 1, 2017, and that it would terminate for S.T. on February 1, 2018. They further agreed that the father’s child support payments would reduce to $990.00 per month for S.T. only, between the termination date of April 1, 2017 for N.T. and the ultimate termination for S.T. on February 1, 2018. They did not agree to adjust spousal support upwards, based on the decreases to child support or their incomes at the time. Nor did they settle the mother’s claim for section 7 expenses.

[9] Almost four years later, just before the commencement of this trial[^2], the parties further agreed, at a Trial Scheduling Conference before Leef J. on April 25, 2022, that the terms of the temporary consent Order of Fryer J. dated June 25, 2018 would be made final. Yet despite their two agreements, the father would now have the Court “set aside” the second one. He wants the Court to determine that child support for S.T. should have ended as of the spring of 2016. He does not seek to disturb the termination date of April 1, 2017 for N.T. But were the Court to grant this relief, it would also have to set aside the child support of $990.00 per month for S.T. that Fryer J. ordered on consent for the period between April 1, 2017 and February 1, 2018, and determine some other amount of child support for N.T. instead, for the period between the spring of 2016 and April 1, 2017.

[10] The father initially framed his request to “set aside” the consent Order of Leef J. dated April 25, 2022 as being based on the mother’s non-disclosure of information about S.T.’s university education, and misrepresentation. By the end of the trial, the father recast his argument as grounded in the doctrine of mistake. Either way, he says he “overpaid” child support and he is entitled to money back, or to a credit for his alleged overpayments.

[11] The mother disputes the father’s request to “set aside” and to recalculate child support. But while she is content to let the previously agreed upon termination dates and related terms stand, she asks the Court to order the father to pay 50% of N.T.’s and S.T.’s student loans in addition. In response to the latter, the father sought to relitigate historical parenting issues that settled over a decade ago. He claims there was “parental alienation”, he says N.T. and S.T. have rejected a relationship with him, and thus he should not have to contribute towards their student loans. He also disputes the mother’s claim for his contribution to the student loans on its merits, because he was never asked to contribute to them in the past, information was not provided to him about N.T.’s and S.T.’s education until this proceeding was underway, N.T.’s student loans have already been repaid in full by another family member, and that S.T.’s loans have been paid down over time, by some means.

[12] Although the parties each raised these child support issues, there is no question that the most significant issue at this trial was spousal support. The father seeks to terminate spousal support as of January 1, 2018. Because he is asking to terminate spousal support backwards in time, he says he overpaid spousal support too. If the father is unsuccessful in seeking a termination back to January 1, 2018, then he would alternatively have the Court terminate spousal support now.

[13] The father’s request to terminate spousal support is based on a material change that he says arises due to the passage of time. He says he has paid spousal support for longer than the length of the relationship. He says he has fully satisfied his obligation to pay spousal support. He urges the Court to adopt the “no exception” approach to illness and disability under the Spousal Support Advisory Guidelines (the “SSAGs”). He also says the mother failed to prove that she is completely incapable of working, that she failed to provide certain disclosure to explain a budget shortfall on an earlier financial statement that she served, and therefore the Court should infer that she does not need support.

[14] But the father brings this claim to terminate spousal support in the face of a number of uncontroverted facts. The mother was diagnosed with Chron’s disease in the early 1990s. The mother suffered from this disease throughout the marriage. Her course of disease has been severe. She continues to suffer from the disease. She has not worked outside the home since S.T.’s birth in 1996. And although he questions it, the mother lives on a fixed income consisting primarily of disability insurance. The mother has had to rely on N.T. and S.T. to help her with her daily living.

[15] In this context, the mother disagrees with the father’s request to terminate spousal support. She instead asks the Court to increase the quantum of spousal support as of January 1, 2018. Specifically, as set out in the proposed draft Order she tendered at the outset of this trial, the mother seeks an order for spousal support of $2,274.00 per month commencing January 1, 2018, $2,489.00 per month commencing January 1, 2019, $2,736.00 per month commencing January 1, 2020, and $3,077.00 per month commencing January 1, 2021 and ongoing.[^3]

[16] For the reasons that follow, this Court finds that there is no basis to “set aside” the child support terms of Fryer J.’s temporary consent Order dated June 25, 2018, which were made final on April 25, 2022. In regards to the mother’s claim for the father’s contribution to N.T.’s and S.T.’s student loans, the Court rejects the father’s arguments based on “parental alienation”, but the Court also finds that the mother failed to prove her claim for contribution to N.T.’s and S.T.’s student loans, based on the evidence that she called.

[17] In regards to spousal support, this Court finds that while there have been several material changes in circumstances, they are not ones that militate in favour of terminating spousal support. The Court finds that the mother is permanently disabled. She needs ongoing spousal support. The quantum of spousal support should be increased based on her need, and because the father has a greater capacity to pay increased spousal support as a result of the end of child support, and upward changes to his income.

[18] The Court finds that the mother requires about $50,000.00 per year after tax to meet her needs, or monthly net disposal income of $4,167.00. After taking into account the mother’s other sources of income and certain tax credits, this Court orders the father to pay spousal support of $2,559.00 per month commencing February 1, 2018 until the end of 2018, $2,167.00 per month for the 12 months of 2019, and $2,700.00 per month commencing on January 1, 2020 and ongoing.[^4]

[19] In fixing these amounts, the Court is not selecting any particular range on the SSAGs per se. Rather, the Court’s findings about what the mother needs, net of tax, have influenced the quantums. That said, in most years, the amounts being ordered also fall within the SSAG ranges.

PART II: BACKGROUND

A. Findings About the Parties and the Children

(1) The Father

[20] The father is 53 years old. He is employed as a plumbing foreman for company that does commercial and large residential construction projects. He also earns some self-employment income doing three to four small plumbing jobs per year, on the side.

[21] The father started working for his current employer in January of 2020. Prior to this, and for the entire period of the marriage, he worked for a different construction company, also doing plumbing work. While the father initially worked as a regular plumber there, about four years into the marriage he advanced into the role of a foreman. The father has maintained employment as a foreman ever since, for the first company and now for his new employer.

[22] The father changed employers in early 2020 because he was offered an increased hourly rate of pay and the prospect of more generous bonuses, which so far have materialized. He testified that he was also able to obtain jobs at the new company for a number of other persons with whom he worked at his former place of employment.

[23] The father is in a subsequent relationship with a woman whom he met while at his former place of employment. The father’s partner has a 19 year old son named T., from a previous marriage. T. resides with the father and his partner. The father testified that he contributes to T.’s support, including by funding half of the cost of the T.’s hockey expenses.

(2) The Mother

[24] The mother is 51 years old. She graduated high school in 1986. She did not pursue further education after high school.

[25] The mother was diagnosed with Chron’s disease prior to the marriage. The mother’s family doctor testified that Chron’s disease is an auto immune disease whereby antibodies attack the tissue of the bowel and cause inflammation. The antibodies may affect other areas of the body. She explained that the mother has had a severe course of Chron’s disease over the years.

[26] The mother did some work as a customer service representative for a newspaper, after her graduation from high school, and during the early years of the marriage. despite her 1990 diagnosis with Chron’s disease. This was the only job that she had, until she stopped working. The mother has not worked since S.T.’s birth in 1996.

(3) N.T.

[27] N.T. completed her first year of university at the University of Toronto during the 2012-2013 school year. She then transferred to Ryerson University, where she completed her course work and obtained a four-year Bachelor of Arts degree on June 1, 2017.

[28] Since her graduation, N.T. has had part-time, temporary jobs. For example, she has worked as a waitress. She also worked as a 911 operator for a few months. I am told that N.T. is now training to be a special constable.

(4) S.T.

[29] S.T. commenced her undergraduate degree at Ryerson University in the fall of 2014. She only completed two years of this university program. Her last term of study was the winter/spring of 2016. Although she earned grades in the A and B ranges, she did not continue in school. S.T. later discontinued her university studies altogether on February 14, 2018.

[30] S.T. has also had some temporary employment since she ceased her education, working as a waitress on a part-time basis at times. According to the mother, S.T. has been out of work since 2017. In the last year or so, S.T. began receiving Ontario Works. The mother says S.T. is now looking for work again.

(5) J.T.

[31] J.T. graduated high school in June of 2016. He works for the same company as the father, as a plumber. He sometimes works alongside his father doing the additional plumbing work, too.

[32] At least as early as the 2010 support trial, J.T. lived with the father, and that continued until recently. According to the father, in the last year or so J.T. moved out of his home to live with a girlfriend. Although Magda J.’s child support Order accounted for J.T. living with his father over the years, no adjustment to the support Order was made in 2016, when J.T. graduated from high school.

B. The Prior Proceedings

(1) The Trial of the Parenting Issues in 2009

[33] The parties did not complete their first trial in 2009 because they instead settled the parenting issues mid-trial, by way of a Consent Order of Nelson J. dated May 22, 2009. They later entered into the further Consent Order of Nelson J. dated March 31, 2010 at a subsequent settlement conference.

[34] I am now told in the father’s supplementary written submissions (see below) that they settled the property issues with Nelson J. in September 2010, although no evidence was called about this.

(2) Magda J.’s Order dated January 19, 2011

[35] As set out earlier, the retroactive components of Magda J.’s January 19, 2011 Order took into account the children’s changing residential arrangements in the various years between 2006 and 2010. Again, the prospective components of the Order were based on N.T. and S.T. living with their mother, and J.T. was with his father. The father received a small child support credit under section 8 of the Federal Child Support Guidelines offsetting his child support for N.T. and S.T. This recognized the mother’s corresponding child support obligation for J.T.

[36] Magda J. calculated both retroactive and prospective spousal support using the mid-range of the SSAGs. He did so after taking the changing child support amounts into account for each of the years in issue, and after determining the parties’ incomes.

[37] To determine the father’s incomes for the retroactive calculations, with the father’s consent, Magda J. adjusted the father’s Line 150 incomes for the years 2006 to 2009, by adding back and grossing up all of the expenses that the father deducted from the additional self-employment income he earned from the additional plumbing work. Magda J.’s reasons reveal that the father had testified, that he would rather pay additional support, than spending money on legal fees to argue about his income.

[38] Magda J.’s income determination for the mother for 2006 to 2009 was more simple. He used Line 150 of her tax returns.

[39] Because the trial occurred before the year end in 2010, Magda J. was only able to estimate the parties’ incomes for 2010. The father had argued that he would earn less income in 2010 than what he had earned in previous years. Magda J. disagreed that the father would earn as low as the amount for which he had advocated, but Magda J. nevertheless set support for 2010 and prospectively based on an income that was lower than what the father earned historically. In particular, for both 2010 and ongoing support, Magda J. determined the father’s income to be $114,000.00. He estimated the mother’s income to be $17,000.00.

[40] The estimate of $114,000.00 for the father turned out to be a conservative projection. The estimate for the mother was also lower than what she would later earn.

[41] Finally, Magda J.’s Order is silent as to section 7 expenses. It seems that none were claimed at the time.

(3) This Motion to Change dated October 4, 2017 and the Response to Motion to Change dated December 21, 2017

[42] The father launched his Motion to Change on October 4, 2017. The mother responded to it on December 21, 2017.

[43] The father’s requests to terminate child and spousal support are retroactive claims. The mother’s request for the father’s contribution to the student loans is a retroactive claim, in that she is asking for contribution for expenses already incurred, and which pre-date her formal claim for a contribution towards them. The mother’s request for an increase in spousal support as of January 1, 2018 post-dates her formal claim for this entirely.

(4) The Appearance Before the Dispute Resolution Officer on February 7, 2018

[44] The first event in this proceeding was an appearance before a Dispute Resolution Officer, on February 7, 2018. At it, the parties agreed that the mother would provide confirmation of both N.T.’s and S.T.’s enrolment in “full-time studies at a post-secondary educational facility from the date of enrolment onwards”, confirmation of the date when both completed their studies, and a “medical/legal report confirming that the [mother] is unable to be employed in any capacity, either full-time or part-time since January 2015 to date”. Scott J. later released an Endorsement on the same day, scheduling a Settlement Conference before a judge to proceed on May 11, 2018.

(5) The Father’s Subsequent Disclosure Requests

[45] On April 17 and 25, 2018, the father’s counsel sent a letter to the mother’s former counsel asserting that the mother had not provided the disclosure to which she had agreed at the DRO appearance. The mother’s former counsel responded on April 26, 2018 saying that the mother had been recently hospitalized, but would provide the disclosure by April 30, 2018, or alternatively she would provide an affidavit setting out her efforts to obtain it. The mother’s former counsel took responsibility for the mother’s failure to have provided the disclosure at this point, saying she had mis-diarized the deadline it was due.

[46] On May 3, 2018, the mother produced certain income information for 2017, a physician’s statement, and N.T.’s and S.T.’s university transcripts. The mother did not produce the “medical/legal report”. She would never produce one subsequently, either. The father raised as an issue, her failure to have done so in the prior proceedings that followed, and again at this trial. This import of this is discussed further below.

(6) The Settlement Conference Held May 11, 2018

[47] Neither the mother nor her former counsel attended the Settlement Conference on May 11, 2018. The mother’s former counsel filed a Confirmation Form indicating that she was seeking an adjournment as she was involved in a jury trial elsewhere. But she did not arrange for an agent to attend Court, and neither she nor the mother attended either.

[48] In the mother’s absence, Leef J. endorsed that the mother had not provided the disclosure ordered, other than the transcripts. She also wrote that the mother served, but did not file, a brief. According to the Endorsement, the mother had indicated in her brief that N.T. completed her schooling [in 2017], and that S.T. was not attending school, having taken a break from her education.

[49] I presume at the father’s request, Leef J. suspended the child support term in the Order of Magda J. dated January 19, 2011. She allowed the mother to return the matter for a review once she fully complied with the disclosure requirements agreed to at the DRO appearance. She also ordered the mother to pay costs of $500.00. She adjourned the Settlement Conference to September 28, 2018.

[50] While the mother had not provided the “medical/legal report”, now with the benefit of hindsight, the extent to which the mother was said to have been in non-compliance with her other disclosure obligations was overstated by the father. The transcripts, which Leef J. noted had been provided and which were also filed as exhibits during this trial, contained complete particulars of the dates of N.T.’s and S.T.’s post-secondary education, their course load, and the time frames on which they completed or ceased attending university.[^5] And again, according to Leef J.’s Endorsement, the mother had also made it clear to the father via her brief, that neither N.T. nor S.T. were in school at that point.

(7) The Spousal Support Motion on June 25, 2018

[51] I am told that the appearance on June 25, 2018, that resulted in the first consent Order to terminate child support, was not actually brought on to deal child support. Rather, after having achieved the suspension of child support on May 11, 2018, the father now brought a motion to deal with spousal support. But spousal support was not addressed on June 25, 2018.

[52] Neither party was in attendance on June 25, 2018; only the father’s counsel and the mother’s former counsel attended. The parties’ consent to the termination dates and the other terms about child support, incorporated into Fryer J.’s temporary consent Order, was arrived at through counsel. There was no suggestion at this trial, that either of the lawyers were acting without authority to into the consent on their clients’ behalf. And the April 1, 2017 and February 1, 2018 termination dates in the consent Order of Fryer J. dated June 25, 2018 more or less aligned with the months in which N.T. completed her studies, and S.T. discontinued her university education, as reflected on the transcripts.

(8) The Father’s Failure to Pay Spousal Support After June 25, 2018

[53] Because spousal support was not addressed in the June 25, 2018 Order,[^6] the father continued to be under an obligation to pay the spousal support of $1,118.00 as ordered by Magda J. on January 19, 2011. But the parties’ consent to terminate child support reached back in time to two different dates in 2017 and 2018, and the father had already paid the previous amount of child support under the Order of Magda J. up until June 25, 2018. Thus, even though spousal support continued, the combination of the latter two factors put the father in an “overpayment” situation with the Family Responsibility Office (the “FRO”).

[54] Because the parties did not address how this “overpayment” of child support would be credited to him,[^7] the FRO gave the father the full credit all at once. When the FRO adjusted its records on July 17, 2018, August 14, 2018 and August 15, 2018 to reflect the changes agreed to on June 25, 2018, the father ended up with a credit of $6,724.00.

[55] This enabled the father to stop paying the monthly spousal support of $1,118.00 that he otherwise owed, without any enforcement steps being taken by the FRO. As additional spousal support accruals of $1,118.00 per month were added to the FRO’s records with the passage of time, the child support credit reduced, until it was eventually exhausted.

[56] According to the Statement of Arrears filed for this trial, the credit should have been exhausted by February of 2019,[^8] but even after this date, the father continued not to pay spousal support. He says this was through inadvertence on his part.

[57] The Statement of Arrears filed for this trial was not up to date. It only shows transactions up until September 1, 2019. As of that date, the father was still not paying spousal support. This was some seven months later. I do not know for certain when he resumed paying, given the absence of an updated statement. What I do know, is that as of the time of trial, some 2 years and 8 months after September 2019, the father still owed spousal support arrears arising out of his failure to resume paying the $1,118.00 monthly amount that Magda J. ordered in a timely way.

[58] Apparently, whenever the father did resume paying spousal support, he entered into a repayment agreement with the FRO, to repay the spousal support arrears at the rate of $182.00 per month. At that point, whenever it was, his monthly payment to the mother became $1,300.00 (ie. spousal support of $1,118.00 per month + arrears of $182.00 per month).

[59] In the end, the mother went without any support at all, for over a year after the June 25, 2018 consent that was supposed to just terminate child support, and probably longer. The father should not have allowed his dependent spouse to go without spousal support like that. The fact that he did, is relevant to the arguments he now makes about the mother’s budget and need. This is discussed further below.

(9) The Settlement Conference Held February 15, 2019

[60] The next Endorsement in the trial record is that of Leef J. dated February 15, 2019. At that point, Leef J. endorsed that the only outstanding issues were retroactive adjustments of child support and ongoing spousal support. She made a further order for a medical/legal report, and adjourned the matter to a Trial Scheduling Conference on July 15, 2019.

(10) The Trial Scheduling Conferences Held July 15, 2019 and April 25, 2022

[61] The parties completed their first Trial Scheduling Conference on July 15, 2019. They were put on the list to proceed to trial in the fall of 2019, but the mother subsequently filed a 14B Motion asking to adjourn the trial. On November 18, 2019, Leef J. granted the motion for an adjournment in part because the mother required time to obtain medical evidence. Notably, Leef J. found that the responsibility for the mother’s unpreparedness rested with her former counsel.[^9] Leef J. adjourned the trial to the May, 2020 sittings, peremptory to the mother.

[62] The trial did not then proceed in May, 2020 due to the Court’s reduced operations following the onset of the Covid-19 pandemic. Instead, the next event was a second Trial Scheduling Conference before Leef J. on April 25, 2022, brought on at the written request of counsel. On that day, the parties completed another Trial Scheduling Endorsement Form, and they were placed on the May, 2022 trial sittings. This time, both parties were in attendance in court when they agreed, “…to resolve the issue of child support (other than s. 7 expenses re. the tuition costs) on a final basis as per the terms of the temporary Order”. It is this Endorsement of Leef J. dated April 25, 2022 that the father now seeks to “set aside”.

(11) This Trial and the Parties’ Subsequent Written Submissions

[63] This trial proceeded over several days in May, 2022. At the conclusion of the trial, I advised the parties that I was going to reserve.

[64] On May 31, 2022, four days after the last day of the trial, the Ontario Court of Appeal released its decision in McGuire v. Bator, 2022 ONCA 431. The Court’s decision deals with spousal support involving a disabled recipient and the illness and disability exception under the SSAGs. As this decision may have had some bearing on the outcome of this case, I invited the parties to file additional written submissions. Both parties did so, and I have considered their additional submissions. Those submissions are discussed further below.

PART III: ISSUES AND ANALYSIS

[65] The father testified that because he was not given information about N.T.’s and S.T.’s post-secondary education, he did some preliminary internet research to try to learn about N.T.’s and S.T.’s education. It was based on that internet research that he initially selected the proposed termination date of May 1, 2017 for both girls. He then refined his position during the proceeding as he obtained more information through the disclosure process.

[66] Although the father does not seek to disturb the termination date for child support for N.T. of April 1, 2017, he says that if the Court does not set aside the termination date for S.T. of February 1, 2018, replace it with a termination date for S.T. in the spring of 2016, eliminate the $990.00 per month for S.T. between April 1, 2017 and February 1, 2018, and instead order some amount of child support for N.T. only, for the period between the spring of 2016 and her termination date of April 1, 2017, he will have overpaid child support by approximately $10,000.00. While the father’s initial arguments for this were differently framed, by the end of the trial, he relied on rule 25(19)(b) of the Family Law Rules, asserting a mistake had been made.

[67] There is no question that this Court has jurisdiction to set aside an order pursuant to rule 25(19) of the Family Law Rules: see Gray v. Gray, 2017 ONCA 100. And pursuant to subrule (b), it may do so if there has been a mistake.

[68] The case law generally defines a mistake as an accidental slip or omission, or where the formal entered order does not reflect the manifest intention of the Court: see Abitbol v. Abitbol, 2017 ONSC 571 ¶27-32. Nevertheless, in Henderson v. Henderson, 2015 ONSC 2914 the Court gave rule 25(19)(b) a broader interpretation, saying rule may be used to amend or rectify a consent order, which mistakenly did not reflect the common intention of the parties. It seems it is on this latter basis that the father’s mistake argument rests. In any event, irrespective of the application of rule 25(19)(b), there may also be the common law doctrine of mistake that could theoretically ground the father’s claim to set aside the consent Order.

[69] Yet on its merits, I find there is no basis for the father’s claim to “set aside”. The father has failed to prove that there was a mistake. Nor did he prove his initial arguments of non-disclosure or misrepresentation for that matter. Nor did he even prove that the termination dates to which the parties agreed depart from what the application of the governing legal principles are able to provide. I make these findings for the following five reasons.

[70] First, after this case began, but before the parties entered into the first Consent Order of Fryer J. dated June 25, 2018, the mother told the father about N.T.’s and S.T.’s studies in three different ways. The father had the necessary information he needed, to inform his decision to enter into the first Consent Order.

[71] More particularly, in her Response to Motion to Change, served and filed six months before the Consent Order of Fryer J. dated June 25, 2018, the mother agreed that child support for N.T. could terminate. In that initial document, she said the termination should happen as of January 1, 2018. Of course, as this case unfolded, the parties modified their positions and agreed to an earlier termination date for N.T. Nevertheless, the mother said, right from the outset in her pleading, that N.T. had graduated and was working part- time.

[72] The mother also disclosed that S.T. had not graduated, which was true. She simultaneously disclosed that S.T. was not in school. She disputed that child support should terminate for S.T. despite her not attending school, saying that S.T. remained a dependent as a result of “severe anxiety”. She wrote that S.T. was no longer in a program of “full-time education”, but remained an “adult dependent, who does not work”. While the reasons for it may not have been agreed to (the anxiety), the father was aware, from the mother at the outset of this case, that S.T. was not attending school.

[73] The mother later produced N.T.’s and S.T.’s transcripts in early May, 2018 pursuant to her agreement at the DRO appearance. This was almost two months before the first Consent Order of Fryer J. dated June 25, 2018. S.T.’s transcript corroborates what the mother had said about her not being in school at that time. It specifically indicates that S.T.’s last term of study was in the winter of 2016. It also very clearly indicates that her studies were later discontinued in February of 2018 (four months before the first Consent Order), and that S.T. did not take any courses between the spring of 2016 and early 2018.

[74] And finally, there is Leef J.’s notation in the Endorsement of May 11, 2018. The mother also disclosed, again in her Settlement Conference Brief (prior to the first Consent Order), that N.T. completed her education “last year”, namely in 2017 (which was true), and that S.T. was not attending school and had taken a break from her education (also true).

[75] Second, the mother produced N.T.’s and S.T.’s OSAP statements for the trial in response to a disclosure request related to her claim for section 7 expenses. I acknowledge that these productions were made after the date of both consents, and I am aware that the father relies on these particular productions to ground his claim to set aside, saying that the new information in the statements has come to this attention, after the consents.

[76] The father is upset because he learned from S.T.’s OSAP statement, that her loan went into repayment on November 1, 2016, approximately six months after the end winter term. I gather the argument is that she was not just taking a break after the winter 2016 term, if the loan went into repayment.

[77] However, no evidence was called about OSAP’s requirements for repayment. And overall, the OSAP statement is not inconsistent with the information previously provided, as to when S.T. stopped going to classes. It offers nothing further that was not already known, or could have been known to him from the transcripts and other information the mother had provided, or through making further inquiries if he was previously dissatisfied with the level of information that had been supplied to him.

[78] Third, and related to the second, while often the end of an adult child’s post-secondary education will line up with the end of child support, that is not always so. The withdrawal of an adult child from post-secondary education is not necessarily dispositive of the issue of when child support should terminate. Section 2(1)(b) of the Divorce Act defines a “child of the marriage” for the purposes of child support as a child of two spouses or former spouses who, at the material time, is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life [my emphasis added]. It was open to the parties to settle the issue of S.T.’s termination date as at the date upon which she stopped taking classes, or as at the date she discontinued her schooling entirely, perhaps something in between, or perhaps even at some later point given, if she was suffering from mental health issues, and was still a dependent.

[79] I appreciate that the mother provided only a little evidence about S.T.’s anxiety and ongoing dependency in her sworn Response to Motion to Change and she elaborated about it only minimally during her oral testimony at this trial. But she did not need to call other evidence about this to address the “set aside” issue. She was entitled to rely on the parties’ consent, agreed to twice, which more or less tied the termination date to the date of discontinuance of S.T.’s studies.

[80] Fourth, and again, the parties themselves were not present during the negotiations that resulted in the first Consent Order of June 25, 2018, which then formed the basis of the subsequent consent on April 25, 2022. Those present were the father’s counsel and the mother’s former counsel. The father’s counsel continued to represent the father during this trial. The mother’s former counsel was not called as a witness. Regardless of whether the claim to “set aside” was advanced based on non-disclosure, misrepresentation or a mistake, counsel had evidence of what transpired in the negotiations relevant on these issues. They had information as to the basis upon which the termination date was selected. But no evidence from counsel was called, nor could it have been since the father’s counsel continued to represent him at the trial, the mother’s former lawyer was not called to testify, and no steps were taken to address potential issues of solicitor-client privilege between the mother and her former counsel.

[81] Nor did the father even move to obtain a transcript of what was said to either Fryer J. or Leef J. at those prior appearances. Perhaps submissions were made to the Court as to the basis for the termination dates and the other terms of the parties’ consents, but none of this was put before the Court at this trial. Perhaps it ought to have been, since the existence of a settlement was being challenged.

[82] Fifth, even if the father was mistaken, twice over a four-year period, as to the basis of his agreement to the termination dates, that may have been a mistake on his part, and his part alone. But that has not been established at this trial either. Had it been, that is not a mistake as to the parties’ common intention.

[83] In summary, by the time of the June 25, 2018 Consent Order, the father had been made aware, in three different ways, that both adult children were no longer in school and when that occurred. The father testified during the trial that when he consented to these orders, he did not know where the children lived or worked throughout the university, what their contributions to their university education were, nor was he aware of the details of their student loans. The father could have chosen to pursue additional disclosure if he was dissatisfied with the level of information he had at the time. But instead, armed with both N.T.’s and S.T.’s transcripts and the other information that the mother had supplied, the father agreed to the termination dates and the other child support terms.

[84] The father then repeated his consent to this for a second time, almost four years later, at the Trial Scheduling Conference held on April 25, 2022. The father had ample time to consider his position between 2018 and 2022, to ask for more information and to take steps in Court if that information was not provided. And the outcome to which the parties agreed does not fall outside the range of outcomes that might have been ordered, given the mother’s disclosure of S.T.’s dependency, even though she was not in school.

[85] As a final comment, even if the father is correct and child support for S.T. ought to have terminated at some point in 2016, I am troubled by the father’s assertion that he overpaid child support to the tune of several thousand dollars. As I alluded to earlier and I will explain in more detail below, Magda J.’s estimate of $114,000.00 for the father’s 2010 income (upon which ongoing child support commencing in 2011 was based), was conservative. In each of the seven years that followed, the father’s income was higher than $114,000.00. Despite this, the father never adjusted his child support (or spousal support) upwards. And the mother has not claimed any retroactive increase for these years.

[86] As of June 2016 or soon thereafter, when J.T. graduated from high school and started working, the father would have no longer been entitled to the child support credit for J.T. that Magda J. had applied in his calculations. The father continued to benefit from that credit for a further year until April 1, 2017, when the first termination date for N.T. occurred.

[87] In regards to spousal support, although different considerations apply respecting retroactive adjustments to spousal support when incomes change, I still note that for the purposes of the retroactive spousal support that Magda J. ordered back in early 2011, he used the parties differing yearly incomes between 2006 and 2010. In other words, he found it appropriate to take into account those changes to the parties’ incomes each year.

[88] Even if it was no longer appropriate to adjust spousal support on a yearly basis after the 2010 support trial, the quantum of spousal support may very well have been revisited, had any of the above child support issues been addressed earlier. And once the mother brought the issue of an adjustment of spousal support back before this Court in late 2017, she then had to wait for a further four years for this trial, to have her claim for an increase to spousal support adjudicated. During that time, she went without any spousal support at all between mid-2018 into at least the latter part of 2019, because of the credit the parties created by their June 25, 2018 consent, without addressing how the credit should be applied.

[89] At this trial, no one did the math to quantify the benefit to the father of this. Had the impact of these events been fully quantified in a new support Order at any point earlier, they would have certainly reduced the alleged overpayment the father claims he made, and perhaps eliminated it.

[90] The father’s request to set aside the Order of Leef J. dated April 25, 2022 is dismissed. Based on the agreement that they have already entered into, twice prior to this trial, there shall be final Orders on the same terms as the temporary Consent Order of Fryer J. dated June 25, 2018.

B. The Mother’s Claim that the Father Contribute Towards N.T.’s and S.T.’s Student Loans

(1) Findings About N.T.’s Post-Secondary Expenses and Student Loans

[91] The mother tendered an invoice and a receipt for N.T.’s tuition and fees for her first year at the University of Toronto in the amount of $6,834.00, and a statement showing total payments to Ryerson University in the years that followed of $27,014.58. This totals $33,848.58. The mother called no evidence about the cost of other items related to N.T.’s post-secondary education, such as books, transportation fees, and other related expenses.

[92] The statement reveals that N.T. received certain provincial grants. N.T.’s student loan balance inclusive of interest was $23,178.70 as of November 2, 2017 when it went into repayment. The amount of the grants explain most, but not all of the discrepancy between the total payments to the University of Toronto and Ryerson University of $33,848.58, and the lesser student loan balance when it went into repayment. The discrepancy was not further explained.

[93] In any event, N.T.’s student loan was paid off in full on November 2, 2017. Although it was paid off, the mother wants the father to pay 50% of the amount of the entire loan that N.T. owed, when it went into repayment.

(2) Findings About S.T.’s Post-Secondary Expenses and Student Loans

[94] The mother tendered student loan statements showing total payments of $17,813.75 to Ryerson University for S.T. Likewise, the mother called no evidence about the cost of other items related to S.T.’s post-secondary education.

[95] S.T.’s student loan statements reveal that S.T. also received some grants. Again, there is a small discrepancy between the payments to the university and this breakdown. In any event, S.T.’s loan balance, inclusive of interest, was $8,659.40 when it went into repayment on November 1, 2016.

[96] S.T.’s student loan has not yet been repaid in full, but it has been paid down somewhat. The statement reveals that there have been a number of monthly payments, mostly less than $100.00, since November of 2016.

[97] As of March 31, 2022, S.T. still owes $6,109.43. Although it was partially paid off, the mother wants the Court to order the father to pay 50% of the full amount of S.T.’s loan when it went into repayment, too.

(3) The Father’s Pre-Trial Disclosure Requests About the Loans and Certain Trial Testimony Relating to The Loans

[98] On May 6, 2022, the father’s counsel sent an email to the mother’s current counsel asking for documentation confirming the source of the payment of N.T.’s student loan, whether either N.T. or S.T. had ever applied to the OSAP Repayment Assistance Plan, and requesting copies of N.T.’s and S.T.’s OSAP applications for each year. The mother’s counsel responded the same day and explained that the mother’s brother had repaid N.T.’s loan, that neither N.T. nor S.T. had applied for the Repayment Assistance Plan, and that the mother did not have copies of the annual OSAP applications.

[99] By way of further email dated May 6, 2022, the father’s counsel asked for “documentary confirmation that [the mother’s brother] made the entire payment towards N.T.’s OSAP debt, and provided some commentary about how the annual OSAP applications might be obtained. The mother’s counsel responded that the OSAP applications do not exist, and questioned the relevance of the request for substantiating documentation relating to the payment of N.T.’s student loan.

[100] At this trial, the mother testified that her brother had a good relationship with N.T. and wanted to help N.T. out, so he loaned her the funds to repay the student loan. No other evidence was called about the terms of the loan. When asked about it, the mother said that was not her business, and the details were entered into between N.T and her uncle.

[101] The mother gave no other information about the payments of S.T.’s loan either, other than to say that she herself has not paid any of them.

(4) Jurisdiction Respecting the Mother’s Claim for Section 7 Expenses

[102] As a result of their subsequent consents of June 25, 2018 and April 25, 2022 to the termination dates, the parties have effectively agreed upon the dates that N.T. and S.T. ceased being “children of the marriage”. The effect of those consents is such that by the time the mother made a claim for the father’s contribution towards N.T.’s and S.T.’s student loans in her Response to Motion to Change dated December 21, 2017, N.T. was already no longer entitled to child support, whereas S.T. still was, albeit for just under another two months.

[103] At ¶ 89 of D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court held that courts have no jurisdiction under the Divorce Act to make an initial order for retroactive child support, for a person who is over the age of majority and who is no longer dependent. But in her written closing submissions, the mother seems to have framed her claim for section 7 expenses as a request to retroactively vary an existing support order, and she says this, and other factors, are exceptions to the jurisdictional limit in D.B.S. v. S.R.G.

[104] In Michel v. Graydon, 2020 SCC 24, the Supreme Court revisited this statement from D.B.S. v. S.R.G. in a certain circumstance, holding that British Columbia’s provincial legislation authorized the Court in British Columbia to retroactively increase an existing child support order, irrespective of whether the order has expired. Most recently in Colucci v. Colucci, 2021 SCC 24, the Supreme Court found, without specifically addressing the jurisdictional issue, that a Court could order a retroactive decrease in child support under section 17 of the Divorce Act, after entitlement to child support had ended.

[105] I recognize that both the majority decision, and the concurring opinion of Martin J. in Michel v. Graydon suggest that the jurisdictional limitation stated to exist in D.B.S. v. S.R.G. might merit reconsideration: see ¶14-15, 40, 67. But because both decisions decided these issues, largely based on statutory interpretation, because Michel v. Graydon dealt with a case under provincial legislation in another province, and because most recently Colucci v. Colucci did not squarely address the jurisdiction to order a retroactive increase under section 17 of the Divorce Act after the end of entitlement, questions about the expanded jurisdiction to order a retroactive increase in child support after a child is no longer entitled to support, are still not completely resolved in the jurisprudence, either under section 15.1 of the Divorce Act, or in the case of variation applications for an increase, under section 17. And the parties did not specifically aver to the possibility, if the approaches are different, that the mother’s claims for the father’s contribution towards each adult child’s student loans may (or may not) merit differential treatment, given their agreement that N.T. was no longer entitled to child support at the time of the claim, whereas S.T. still was.

[106] I need not resolve this. If I assume that the law has evolved such that jurisdiction is not an issue irrespective of the nature or timing of the claim, I would still not grant it on the merits for the reasons that follow.

(5) The Test for a Retroactive Variation to Increase Child Support, In this Case to Add Section 7 Expenses

[107] As the mother framed her claim as a retroactive variation for an increase under section 17 of the Divorce Act, I will set out those governing principles. While Colucci v. Colucci concerned a variation application for a retroactive decrease in child support under the Divorce Act, at ¶ 114 Martin J. also summarized the principles that apply to claims under section 17 of the Divorce Act for a retroactive increase. In particular:

(a) The recipient must meet the threshold of establishing a past material change in circumstances;

(b) Once established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. Normally, because of informationally asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor;

(c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice;

(d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide the exercise of discretion, as described in Michel v. Graydon. The failure of a payor to disclose a material increase in income qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income; and

(e) To quantify the support as of a particular date, the Guidelines should be used.

[108] The same principles that apply to retroactive claims for table child support would also apply to claims for retroactive section 7 expenses: see for example Selig v. Smith, 2008 NSCA 54 ¶25, 26.

[109] Section 7(1)(e) of the Federal Child Support Guidelines provides that the Court may order a spouse to cover all or a portion of a child’s post-secondary expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. Usually, although not always, if there is to be a contribution, the expense is shared by the parents proportionately to their incomes: see section 7(2).

[110] Pursuant to section 7(3) of the Federal Child Support Guidelines, the Court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. But a student loan is not a benefit that must be automatically taken into account in determining the amount ordered in respect of section 7 expenses. It may constitute in whole or in part a contribution from the child and thereby exclude or reduce the need for any parental contribution, depending on the reasonableness of the child taking on the loan in the circumstances of the case: see Kozak v. Kozak 291 ONSC 690 ¶ 83(e). It is not a foregone conclusion that the father has an obligation to contribute on this latter basis.

(6) Analysis Respecting The Father’s Assertion that N.T. and S.T. Have Terminated Their Relationship With Him

[111] The father’s principal objection to contributing towards N.T.’s and S.T.’s student loans was because they have had no relationship with him in a number of years. Consequently, the father was not told, either by the mother or by N.T. or S.T. themselves (until the disclosure process in this proceeding), about the dates that they pursued post-secondary education, where they went to university, where they lived during that time frame, what they were studying, or the cost.

[112] Nor was the father asked, by either the mother or N.T. or S.T. directly, to contribute towards their university expenses, until this proceeding. The mother claims that she was unaware she could have asked for his contribution earlier, the fact remains that no request was made and no information about N.T.’s and S.T.’s education was provided to him.

[113] I accept that an adult child may “withdraw from the charge” of a parent, by unilaterally terminating the relationship with that parent. However the threshold for the Court to make such findings is high. And a unilateral withdrawal rarely is alone as the determining factor as to the requirement for a payor parent to pay: see El Sherif v. Abdallah, 2018 ONSC 5195; see Olszewski v. Willick, 2009 SKCA 133; see also Rebenchuk v. Rebenchuk, 2007 MBCA 22 ¶ 56.

[114] This trial was not supposed to be a trial about parenting. The parties have already had that trial. Yet the father responded to the mother’s claim for contribution towards the student loans by seeking to relitigate the parenting issues that they previously settled, and by seeking to litigate the various relationships in the decade that followed. In so doing, the father invited this Court to find that the mother engaged in parental alienation.

[115] The father tried to condense almost two decades of history into the few days that the parties told Leef J. at the Trial Scheduling Conference that they needed for this trial. The father spent a not insignificant amount of time at this trial testifying about the prior proceedings. He pointed to various temporary Orders that were made years ago, and the fact that there had been three custody and access assessments in the first round of the litigation. He also pointed to the transcript of an interim motion before Sosna J. on January 12, 2007, in which Sosna J. made adverse findings against the mother and ordered the mother to have temporary supervised access.

[116] This Court has no intention of making the findings sought by the father about the past, to excuse him from any obligation to contribute towards the student loans. This Court is not able to make the findings that the father seeks about his relationship with N.T. and S.T. on this record. I say this for the following seven reasons:

(a) The parties could have chosen to finish their parenting trial in 2009 at the end of which the Court may have made findings that supported the father’s position now, or not. They instead settled and embarked upon a therapeutic process. Revisiting this history now is not only not efficient, but it is counter-productive. It could have the effect of discouraging settlements, if the issues settled are just going to be re-litigated in the future, in other contexts;

(b) The custody and access assessments, parts of which the father tried to rely on now, were ordered in the prior proceedings. Quite apart from the fact that those assessments are dated and there might have been issues about their admissibility or weight in the past, let alone in this current proceeding before me, two of the three assessment reports were not even put before me at this trial. I was not given a complete picture. And while the third one was, for a limited purpose, that was not so that the father could rely on it for the opinion contained therein. None of the assessors were called to testify at this trial;

(c) While Sosna J. did make adverse findings about the mother, that was over 15 years ago, and those findings were made on an interim motion. None of the evidence in support of that motion was put before me and so questions were not put to the affiants about their affidavits. Importantly, Sosna J.’s decision was made on a record containing untested affidavits, and one of the other assessment reports (not the one put before me) that has not been tested at this trial;

(d) During the subsequent therapeutic process that the parties chose to participate in (rather than completing their parenting trial), the father signed a document wherein he acknowledged responsibility for his part in damaging the relationships. In fact, both parents said they accepted responsibility for their past actions. They both acknowledged that the mother (or the children) were not solely to blame;

(e) I was told that N.T. was placed in the care of a children’s aid society in the past. I was not told why;

(f) The father was quick to blame the mother for the state of his past and current relationship with N.T. and S.T. But J.T., who lived with his father after the case about parenting issues came to an end, has not spoken to his mother in years. He does not see or her visit her, nor has he inquired about her well-being, including during some lengthy hospital stays. A more holistic assessment of the parental relationships, to assign the necessary blame required for the Court to find as invited to do so by the father, may very well entail an assessment of J.T.’s relationship with his mother. And that relationship terminated while J.T. was living with his father; and

(g) I query, were this Court to find the mother engaged in parental alienation, whether the Court should then fault the children to the degree required, to deny them entitlement to child support. If the mother did in fact engage in alienation that impacted the children, is this the fault of the children? The children are ultimately the ones who have the right to support.

[117] I also observe an inconsistency in the father’s position. The father already consented to continue table child support, up to dates that coincided with N.T.’s completion of a four-year degree, and then to when S.T. studies were ultimately discontinued. But according to him, at least for the purpose of the mother’s section 7 claim, they had already withdrawn from his charge.

[118] If the father’s consent to pay child support until the aforementioned termination dates is in effect an agreement that the children, then adults, were still children of the marriage who were entitled to table child support, then why would section 7 expenses receive differential treatment? Perhaps there is some discretion for the Court to depart from the usual approach to pro rata sharing provided for in section 7(2) of the Federal Child Support Guidelines based on the nature of these relationships, even if the conduct complained of does not rise to the level of a withdrawal from the charge of a parent: see Kozak v. Kozak ¶ 87(12.). But there is conflicting case law on this latter point. At ¶ 4 of Phillips v. Phillips, 2002 CanLii 49558, Steinberg J. took a contrary approach. He questioned whether a strained relationship between an adult child and his mother was a good reason to exercise that discretion, to adjust the pro rata sharing.

[119] The father’s arguments based on “parental alienation” are dismissed.

(7) Analysis and Conclusions About the Merits of the Mother’s Claim for Retroactive Section 7 Expenses

[120] Despite my rejection of the father’s arguments based on “parental alienation”, the Court’s decision to order the father to contribute to post-secondary expenses is still discretionary. And as set out earlier, the mother has not persuaded the Court that it should exercise the discretion in her favour, based on the evidence.

[121] For whatever reason, the mother did not ask for any contribution in a timely way. Nor did N.T. or S.T. Neither of the three even broached the subject in any way. In fact, the issue was raised for the first time in the mother’s Response to Motion to Change dated December 21, 2017. There was no effective notice, pre-dating the formal notice in the mother’s Response to Motion to Change. The presumptive date of retroactivity is therefore the date of formal notice, being December 21, 2017.

[122] Moreover, not only was formal notice not given until after N.T. was no longer entitled to child support and S.T.’s entitlement was almost at an end, but N.T.’s and S.T.’s school fees had already been incurred over several years, the student loans had already been borrowed, N.T. had already repaid her loan in full, and S.T., or someone on her behalf, had already made a number of periodic payments towards her loan. Under these circumstances, if the presumptive date of retroactivity stands, unless the Court were to find that whatever has already been paid towards N.T.’s and S.T.’s loans is somehow still owing by them, the mother’s claim may very well be limited to a claim for a portion of whatever was left owing on S.T.’s loan as of December 21, 2017.

[123] Now the Court has the discretion to go back behind the presumptive date of retroactivity if there is blameworthy conduct, as the mother argued in her written submissions. And in this case, the parties did not exchange income information until after the commencement of this proceeding. Focusing on the payor, he did not increase his child support either. In usual retroactive cases, these behaviours do qualify as blameworthy conduct.

[124] But here, I find the father’s failure to disclose income or even to increase his table child support to be less relevant in a blameworthy conduct analysis about these particular section 7 expenses on the facts of this case. I accept that the father probably understood, or should have understood, that he might have an obligation to contribute. He was at least alive to the possibility that the children went to university, given that he tried to do internet research about N.T.’s and S.T.’s educational paths, to learn about when child support might end to include in his Motion to Change. Nevertheless, the key issues here are who knew what about where the children went to school, what the costs were and why information about this was not shared with the father in a more timely way. In short, the most important information about this claim for section 7 expenses, in the particular context of this case, was in the possession of the mother and the children, not the father. The informational asymmetry is therefore skewed in favour of the mother. In the end, both parents (and the children for that matter) bear responsibility for not communicating with each other, not just the father.

[125] If I am mistaken respecting my analysis about the father’s conduct and ought to find that it is generally more blameworthy in relation to the claim for contribution to the student loans, there is still the problem that at this trial, the Court was given insufficient evidence to decide the claim.

[126] For example, the Court did not hear much evidence or submissions about what, if anything, would have been an appropriate contribution for N.T. and S.T. to make towards their own education. What I do know is that N.T. earned a low of $7,052.00 and a high of $15, 548.76 between 2012 and 2017. The mother called no evidence about what amounts, if any, N.T. contributed from her earnings while attending university, no evidence about N.T.’s income after 2017, no evidence about what amounts, if any, N.T. has repaid to the mother’s brother for the loan, and very little evidence about what she might contribute going forward.[^10]

[127] S.T. earned a low of $7,191.40 and a high of $16,326.00 between 2014 and 2016. But similarly, the mother called no evidence called about what amounts, if any, S.T. contributed from her earnings while attending university, almost no evidence about S.T.’s income after 2016,[^11] no evidence about who made the monthly payments to the student loan after November of 2016, and very little evidence about what she might contribute going forward.[^12]

[128] While earlier, I found that the mother did not need to call additional evidence about S.T.’s mental health to address the father’s argument to set aside Leef J.’s Order of April 25, 2022, her failure to call evidence on this point is relevant to the question of what if anything S.T. ought to have contributed in the past, and to her ongoing ability to pay off the loan now. Furthermore, S.T. did not graduate for reasons that went almost entirely unexplained, or at least not elaborated upon.

[129] The Court is not prepared to fill in these evidentiary gaps. It is not prepared to infer that N.T. and S.T. have already effectively contributed about one-third of their post-secondary costs, since their student loans did not cover 100% of the expenses, as argued by counsel for the mother.

[130] The mother’s claim that the father pay 50% of the student loans is dismissed.

C. Spousal Support

(1) The Test to Vary A Spousal Support Order

[131] The variation of spousal support is governed by section 17 of the Divorce Act. Pursuant to section 17(4.1), before varying the spousal support terms in the Order of Magda J. dated January 19, 2011, the Court must be satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouse since the Order. In making a variation order, the Court must also take the change into consideration.

[132] Pursuant to section 17(7), if the Court varies the order, the new order should:

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

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

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

[133] At ¶ 29-36 of L.M.P. v. L.S., 2011 SCC 64, the Supreme Court reiterated that the proper approach under section 17 to the variation of existing orders is set out in Willick v. Willick, [1994] 3. S.C.R. 670 and G. (L.) v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370. The principles are:

(a) The Court must be satisfied that there has been a change of circumstance since the making of the prior order;

(b) The “change of circumstances” must be “material” meaning that “if known at the time, would likely have resulted in different terms”;

(d) The Court should not depart from it lightly. The test is whether any given change “would likely have resulted in different terms”; and

(e) What will amount to a material change will depend on the actual circumstances of the parties at the time of the order.

[134] At ¶ 47 and 50, of L.M.P. v. L.S., the Supreme Court further held that if the Court finds the threshold for variation of a spousal support order has been met, then it must determine what variation to the order needs to be made in light of the change in circumstances. The Court should take into account the material change, but it should limit itself to making only the variation justified by that change. The task should not be approached as if it this were an initial application for support.

(2) The Material Changes in Circumstances that Have Been Asserted

[135] At this trial, one or both of the parties alleged that a number of material changes in circumstances relevant to spousal support have occurred. In summary, they are:

(a) the termination of child support;

(b) changes to the parties’ incomes since Magda J.’s Order dated January 19, 2011;

(d) the length of time that the father paid spousal support.

[136] In my view, the first three are material changes in circumstances, but they do not militate in favour of the termination that the father seeks. I find that the change asserted in (d), relied on by the father, is not a material change in this case. Alternatively, if it is, I would still not grant the father the relief he seeks. Rather, I find that spousal support should continue and be increased based on the mother’s need.

(i) The Termination of Child Support

[137] Much of Magda J.’s trial judgment focused on the determination of the parties’ incomes. Magda J.’s child support calculations, and spousal support at the mid-range of the SSAGs, followed from that.

[138] Section 15.3(3) of the Divorce Act deems either a reduction or a termination of child support to be a change in circumstances for the purposes of applying for a variation order in respect of spousal support, where the amount of spousal support ordered was less than it would have been because of the section giving priority to child support. Section 15.3(2) requires that there be specific mention of this in the reasons, and there is no such mention in Magda J.’s reasons. But even if this deeming provision does not strictly apply here given the absence of specific mention in the reasons, the Court may still find, on the record, that each child’s entitlement to child support ending amounts to material changes in circumstances.

[139] The process that Magda J. employed to calculate spousal support is clear. He determined the parties’ incomes and then dealt with child support first, as he was required to do pursuant to section 15.3(1) of the Divorce Act. Had there been no child support payable, there would have been more money available for the payment of spousal support and the quantum would have been higher. As I expressed earlier, J.T.’s entitlement to child support likely ended in the spring of 2016 when he graduated high school, or soon thereafter. There was a further material change when N.T.’s child support ended in April of 2017, resulting in a reduction to the remaining child support the father had to pay for S.T. until February 1, 2018. There was a further material change when child support ended altogether early in 2018. In each instance, the father had more capacity to pay spousal support.

(ii) The Father’s Incomes Increased in the Years Since Magda J.’s January 19, 2011 Order

[140] Magda J.’s reasons reveal that the father then earned employment income as a plumbing foreman and self-employment income as a plumber. This is still the case today. But in the years following the January 19, 2011 Order, the father’s income increased above the $114,000.00 estimate upon which Magda J. based prospective child and spousal support.

[141] Earlier, I indicated that Magda J.’s estimate of the father’s income of $114,000.00 for 2010 and ongoing support turned out to be a conservative estimate, in the father’s favour. While the father’s Notice of Assessment for 2010 later revealed Line 150 income of $112,129.00, that does not take into account any add backs to his self-employment income, which the father said during the second trial he was conceding should be added back and grossed up (I address this in more detail below). More significantly, in the years that would followed the first trial, right up until the end of child support, the father would never again earn as low as $114,000.00. The father’s Line 150 incomes, exclusive of any add backs for his self-employment expenses[^13], were:

2012: $124,071.00 2013: $122,215.00 2014: $122,300.00 2015: $120,391.00 2016: $127,366.00 2017: $129,304.00

[142] Since 2018, the father earned even greater incomes as reported on his tax returns (exclusive of the add backs and gross ups – dealt with later), as follows:

Year	Employment Income	Other	Gross Self-Employment Income	Net Self Employment Income	Line 150 Income
2018	$127,017.14	$297.82	$13,000.00	($2,428.57)	$124,886.39
2019	$138,749.28	$270.89	$12,800.00	($6,411.67)	$132,608.50
2020	$151,204.86	$271.64	$13,000.00	$478.74	$151,955.24
2021	$170,749.81	$271.64	$12,600.00	($2,308.18)	$168,713.27

[143] Now the father characterizes these changes to his income as “post-separation increases”. He says that if the Court orders the continued payment of spousal support, the mother ought not share in any of these post-separation increases. In so doing, he relies on Thompson v. Thompson, 2013 ONSC 5500. At ¶ 103 of that decision, Chappel J. set out a number of factors to guide the determination of whether a recipient should share in post-separation increases in income.

[144] To argue that these are “post-separation increases” in income, the father would have the Court use Magda J.’s estimate of his income for 2010 and ongoing support as the baseline. In my view, that baseline comparison is misguided, when it comes to characterizing what the father earned subsequently as “post-separation increases” in income, or not. That is because it was already five years post-separation when the parties went to trial on support issues for the first time in 2010. I was not told, and Magda J.’s judgment does not specify, what the father earned during the marriage, to compare that to what he earned post-separation, to assess the extent to which the Court in 2011 already used “post-separation increases”. But what is clear in Magda J.’s reasons, is that he determined the father’s income and calculated retroactive support for the first four years post-separation (2006-2009), using the full incomes that the father actually earned, with further upward adjustments for the business expenses deducted and the tax savings on those deductions.

[145] To be more precise, Magda J. determined that the father earned the following, adjusted amounts between the year of separation and the second trial in 2010:

2006: $142,887.00 2007: $115,447.00 2008: $133,716.00 2009: $151,829.00 2010: $114,000.00 (estimate)

[146] Comparing these income determinations made at the 2010 trial, to what the Court now knows that the father earned after the 2010 trial, reveals that right up until 2019, the father’s post- trial earnings never exceeded the highest income (ie. his income in 2009) that Magda J. used to calculate support at the 2010 trial. Just because the father’s income after 2018 was higher than Magda J.’s estimate for 2010, which happened to be the lowest year of all the years that Magda J. had to deal with, does not make every dollar earned above $114,000.00 a post-separation increase in income.

[147] In regards to the father’s incomes in 2020 and 2021, I accept that the father changed jobs in early 2020 for various reasons. I also accept that in 2021, and even perhaps in 2020 too, the father did earn more income than in any one of the past years between 2006 and 2010. But the principal reason for the most recent increased income was that the father changed jobs, primarily to receive a more generous bonus.[^14] The father testified that he received a signing bonus of $10,000.00 in 2020 and then a bonus of approximately $20,000.00 in 2021, whereas at his previous place of employment his bonuses ranged from between $500.00 to $4,500.00.

[148] To the extent that the father’s increased income in 2020 or 2021 because of the new bonuses are “post-separation increases” in income, in the Revised User’s Guide to the Spousal Support Advisory Guidelines the authors comment that the case law on sharing of post-separation increases in income has evolved from the more stringent approach taken previously. The authors suggest that sharing is more likely when certain factors are engaged.

[149] Those which apply in this case and which favour sharing are that this was a medium-length marriage. While there is no discussion in Magda J.’s judgment about the bases of entitlement that drove the original spousal support Order, it could be said that entitlement at the time was both compensatory, as the mother became the primary parent of N.T. and S.T. at some point post-separation, and non-compensatory or needs’ based. In any event, the mother’s claim for an increase in spousal support is now framed entirely as a non-compensatory or needs’ based claim, and she continues to have a strong non-compensatory claim. Finally, the father has continued to do the exact same kind of work that he did throughout the marriage and for years post-separation; he just happens to earn more at his new job, primarily as a result of the bonus structure.

(iv) Conclusions Respecting the Father’s Incomes

[150] In conclusion, the increases in the father’s income above the $114,000.00 estimate that Magda J. used are changes are material changes in circumstances, but they do not militate in favour of the termination the father seeks. They are also not “post-separation increases” in income, for the reasons just expressed. Alternatively, if some of what the father earned since the trial before Magda J., particularly in 2020 and 2021, are post-separation increases in income, none of that should not be excluded from the Court’s consideration now, also for the reasons just expressed.

(v) Whether the Magda J.’s Methodology Respecting Adding Back and Grossing Up the Father’s Self-Employment Expenses Should be Changed

[151] As noted in Magda J.’s reasons from the first trial, the father volunteered to have the Court add back and gross up all of the business expenses he deducted. The mother’s position is that there has been no material change in circumstance respecting this approach, so the Court should continue to embark on a similar exercise when determining the father’s income now. By contrast, the father no longer wishes to be held to that concession he made in this regard during the parties’ second trial in 2010.

[152] It is well known that expenses unreasonably deducted may be added to a support payor’s income and grossed up for tax. See for example sections 19(1)(g) and 19(2) of the Federal Child Support Guidelines; see also Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.) ¶ 10-13. The real issues here, is not whether that may be done, but whether that should continued to be done. If there has been a material change relevant to this aspect of the determination of his income, then there is the separate question of how the Court should now approach the task, in light of the record before it.

[153] One might be tempted to quickly conclude, as the mother argued, that there has been no material change respecting this particular aspect of Magda J.’s approach to the father’s income. In short, the father agreed to be bound by this methodology in 2010, so why do various other asserted changes in circumstances, like the end of child support or the other increases to his income, warrant a change to the adding back and grossing up of self-employment expenses, that he continues to deduct.

[154] But on the other hand, the father’s 2010 concession was made after lengthy and I presume costly rounds of litigation involving parenting. As set out earlier, when the father made the concession, he said he wanted to benefit the family rather than spending money on lawyers. The children were then much younger and entitled to child support. What the father and the Court contemplated in 2010, was a support order that had as a more significant component, the support of the children. The end of child support is relevant to whether the father should continue to be held to this concession. I am prepared to accept that he is not bound by the concession any longer, with the end of child support.

[155] But it does not automatically follow that there should be no adding back or grossing up of expenses deducted at all. The Court must now analyze the expenses to determine the incomes.

(vi) Analysis Respecting the Father’s Deductions for Business Expenses In this Trial

[156] Turning to the add backs themselves, the father says that if the mother intended to ask this Court to continue to impute an income to him based on the expenses he deducted, it was incumbent on her to put him on notice that this would be pursued, and to then make reasonable inquiries and request disclosure prior to trial: see Kinsella v. Mills, 2020 ONSC 4785 ¶ 166. With respect, I disagree.

[157] Child and spousal support were in issue in this trial. Clearly the determination of incomes is a necessary component of those claims. The father knew that this would have been in issue. It should not have come as a surprise to the father that the mother would argue for the same approach to the determination of the father’s income, as that upon which the trial judge who heard the previous support trial embarked, with his consent.

[158] I also disagree that the mother was required to do more by way of making inquiries and requesting source documentation as to the expenses the father deducted in this case, just as the father was not required to incur fees arguing about the various deductions in the previous trial. While there may be some requirement to pursue this kind of disclosure during the discovery phase of cases, the passage which the father cites from Kinsella v. Mills on this point, goes on to state that the nature of the inquiries and the disclosure to be sought will depend on the facts of the case, and will be tied to notions of proportionality.

[159] Here, the mother’s argument that income should continue to be imputed to the father based on expenses unreasonably deducted was not tied to any argument about the failure of the father to disclose. Rather her argument was based on the unreasonableness of the deductions he reported on the face of his tax returns, alone, when considered along side the oral evidence elicited about them. She is entitled to have her claim succeed or fall on the basis of the documentation that was provided, the oral testimony at trial that both counsel elicited, and the submissions.

[160] In regards to the specific amounts that the father reported as self-employment income and expenses for the years 2018 to 2021, the father testified that he only does three to four plumbing jobs per year, and that he is regularly paid in cash, but he reports all the cash on his taxes. The mother argued that the father’s evidence about cash is suspicious, although she did not ask the Court to impute further income to the father based on unreported cash. She also argued that it is suspicious, that the father reported very similar amounts for gross business income during the past four years. And she said it is suspicious that the father has written off expenses to either reduce his self-employment income to close to $0 in one year, and otherwise to incur a loss thereby reducing the tax he pays on his other employment income in the other three years.

[161] Nevertheless, focusing on the expenses themselves, between 2018 and 2021, the father deducted meals and entertainment, office stationery and supplies, utilities (his cell phone), thousands of dollars in car expenses and in one year, home office expenses.

[162] The father testified that the office stationery and supplies expense on his Statements of Business Activities are actually supplies he needs for the plumbing jobs. He says that his accountant placed those amounts in this line item on the form. In the absence of the mother having raised and then pursued any of the source documentation for this line item, I accept the father’s testimony that he incurs costs associated with plumbing supplies. However:

(a) I do not accept the father’s evidence that he has to entertain clients to get 3 to 4 jobs per year;

(b) The utilities amounts that he deducted are for his cell phone. In light of the very few jobs he does each year, this expense is more likely than not almost, if not entirely personal to him;

(c) I do not accept that it is reasonable to deduct thousands of dollars in vehicle expenses to get to 3 or 4 jobs per year; and

(d) There was no evidence about the father’s actual business use of the home, but I do not find to be reasonable that he is deducting 25% for 3 to 4 jobs per year. Nor was there any evidence that the father’s plumbing business actually increases the home’s expenses by any amounts such that there should be a deduction for child support purposes. In other words, the father would be incurring the home expenses regardless of the home office.

[163] Therefore, any amounts the father deducted for these items on his income tax returns shall be added back to the father’s income and grossed up in each year since 2018. DivorceMate calculations showing the add backs and gross up amounts for each year are attached as Schedule “A” to this judgment. As a result, I find the father’s adjusted income for the years 2018 to 2021 to be:

2018: $140,815.00; 2019: $152,734.00; 2020: $167,422.00; and 2021: $183,335.00.

(vii) The Mother’s Incomes and Tax Credits from 2018 to 2021

[164] Magda J. determined the mother’s incomes to be $12,657.00 for 2006, $16,329.00 for 2007, $16,668.99 for 2008, and $17,122.00 for 2009, and he estimated her income to be $17,000 for 2010 and for the purposes of ongoing child and spousal support.

[165] Looking at the situation since 2018, the year of the mother’s claim for an increase, apart from spousal support, the mother has received income from a private disability insurer (which she has reported as “other employment income” on her tax returns), income from CPP disability, and she receives a small pension payment from her former work with the newspaper. In the result, her incomes have increased, too.

[166] The mother receives the disability tax credit. Although not income, it reduces the amount of income tax she pays. This is relevant when it comes to quantifying the amount of spousal support that should be paid in the years of her claim, beginning in 2018. This tax credit for the various years in issue has been included in the DivorceMate calculations attached as Schedule “A” to this judgment.

[167] The mother also claimed other tax credits on her income tax returns in 2018 and 2019, which also helped to defray her taxes. She did not explain these during her testimony and no questions were asked about these other tax credits. They are no longer claimed as of 2020.

[168] I will take them into account for 2018 and 2019, since they were claimed. They too have been included in the DivorceMate calculations attached as Schedule “A” to this judgment for the relevant years. The additional credits in 2018 and 2019 lower her taxes in those years, and thus the amount of spousal support she needs in those years.

[169] The mother’s Line 150 incomes from 2018 to 2021 (exclusive of any spousal support paid and received - see also Schedule “A” for a breakdown of the components of her income and her tax credits) are:

2018: $25,886.64 2019: $26,235.48 2020: $26,273.32 2021: $26,616.60

(viii) The Application of the SSAGs in Cases of Illness and Disability

[170] The father’s principal argument in favour of terminating spousal support, is that irrespective of any or all of the above changes, and irrespective of the mother’s current health and financial position, he no longer has an obligation to pay spousal support. He has paid spousal support for more than 16 years after a 12 ½ year marriage. He has paid support for longer than the maximum duration provided for in the initial SSAG calculations that Magda J. undertook. He says that the mother’s disability should not be treated as an exception, and the durational limits in the original SSAG calculations should apply. Alternatively, were this Court to terminate spousal support as at the date of the trial, then because he has already paid some spousal support after 2018, she has already effectively achieved an extension of the duration, and so there should not be another one.

[171] In support of this argument, the father relies on Chapter 12.4 of the SSAGs Revised Users Guide. There, the authors write that illness and disability may be an “exception” but they assert that no clear approach has developed in the case law. They write that there are three common lines of decisions in the reported cases: some courts increase the amount of support and extend duration; some courts lower the amount of support and extend duration; and some courts apply the SSAGs without exception. The authors advocate for the “no exception approach”, which they say is more consistent with the modern limits of spousal support as a remedy. In addition to this commentary from the Revised Users Guide, the father relies on a number of cases, in support of his argument for the “no exception” approach.

[172] However many of the cases upon which the father relies are distinguishable. For example, B.D.P. v. D.W.P., 2019 ONSC 949 concerned a Motion to Change an earlier 2012 order for spousal support. The parties’ relationship in that case was just under 12 years in length, and they were both in their 50s, with two children ages 21 and 19 at the time of the Motion to Change. The Applicant sought an increase in spousal support from $700.00 to $1,660.00 per month, while seeking to terminate child support. The Respondent opposed the increase. He also took the position that the length of time that he had paid spousal support was long enough.

[173] At ¶ 71, the Court wrote that a significant passage of time giving rise to a question of whether the objectives of spousal support have been satisfied is a material change in circumstances, and that the end of entitlement, as reflected in the SSAGs, is a material change that may give rise to an order to vary support. At ¶72, the Court held that an order for indefinite support does not mean permanent support. And at ¶ 75, the Court cited the authors’ commentary from the Revised Users Guide about the approaches in the case law, and adopted the “no exception” approach.

[174] But there are some key factual differences between B.D.P. v. D.W.P. compared to this case before me. For example, at ¶ 56, the Court noted that the original trial judge did not have reliable evidence as to the disability, and held that whether spousal support should be time-limited was a key issue back then. The original trial judge ultimately decided that there was uncertainty as to the Applicant’s “final medical diagnosis” and declined to make a time-limited order.

[175] At ¶ 57, the Court hearing the Motion to Change inferred that the original trial judge “left open the door to vary spousal support, at least with regards to duration, once B.D.P.’s final medical diagnosis was confirmed including a decision regarding her then-outstanding ODSP application”. Then, for various reasons at ¶ 58-65, the reviewing Court concluded that the Applicant was not precluded from working and had not been diagnosed as being permanently disabled. In short, the uncertain status of the Applicant’s health at the time of the original Order, and the reviewing Court’s subsequent finding about it, renders B.D.P v. D.W.P very different factually from the case before me.

[176] In its reasons, the Court in B.D.P. v. D.W.P. cited deJong v. deJong, 2009 CarswellOnt 1304 (S.C.J.). Both sides relied on deJong v. deJong during this trial.

[177] At ¶ 19 of deJong v. deJong, the Court held that an 18-year period during which support had already been paid was a reasonable amount of time for the wife to have moved toward economic self-sufficiency. But importantly, the wife’s continuing dependency was said to have arisen in part because of two prior accidents, yet there was no medical evidence to corroborate the support recipient’s current description of her health, the continuing existence of the health problems, and what impact those might have on any present or future ability to work. Once more, those are not the evidentiary circumstances in this case before me.

[178] Craig v. Craig, 2021 ONSC 3356 concerned a payor’s Motion to Change to terminate spousal support contained in an earlier, 2007 Order. At ¶ 137, Piccoli J. cited the statement in B.D.P. v. D.W.P that the passage of time giving rise to a question of whether the objectives of spousal support have been satisfied is a material change in circumstances, and that the end of entitlement as reflected in the Guidelines, is a material change.

[179] But at ¶ 139, Piccoli J. went on to note that the wife had been disabled since 1997. The husband agreed she was unable to work. Piccoli J. also stated that other than the passage of time, there had been no material change in circumstances. The parties further agreed to a termination upon the husband’s retirement and a reduction in 2024. This case does not assist me.

[180] In Johnston v. Johnston 2019 ONSC 5946, the wife sought to increase and extend a time limited order for support based on her deteriorating health. But importantly, the original order was a consent order based on Minutes of Settlement that provided for time limited support for five years: see ¶ 2. Nevertheless, Tobin J. extended the support for a further 11 years. Still, this was within the range provided for by the SSAGs: see ¶ 166.

[181] Tobin J. cited the authors’ of the Revised User’s Guide preference for the “no exception” approach. But the case before Tobin J. was somewhat more straightforward, in that the durational limits provided for by the SSAGs had not yet expired. This does not squarely address the fact situation before me, where those limits have expired, but there continues to be serious health issues.

[182] The husband relies on LaRoche v. Lynn, 201 ONSC 3356. While the Court did discuss these concepts in LaRoche v. Lynn, the Court found the material change was the husband’s retirement, and so that too make this case before me quite different. Additionally, the wife was not receiving the benefit of the support payments the husband had been making, since the support had been assigned to the Ministry: see ¶ 96, 97. This case does not assist me.

[183] Finally, in M.R. v. H.T.L., 2020 ONSC 2308, there was an original 2016 spousal support order for $250.00 per month (after the payment of child support). The original order contained a provision deeming the year 2019 as a material change in circumstance. At ¶ 78, the Court found that there was a material change because of the deeming material change provision in the original, 2016 order. The Court also stated that the fact that the parties lived apart longer than they cohabited, was a material change, but these comments were obiter given the deeming provision.

[184] But unlike in M.R. v. H.T.L., Magda J. did not include a deeming provision in his January 19, 2011 Order, that a certain date would be a material change. He made a support order, silent as to a time limit or a review.

[185] The mother relies on several cases. One is Aujla v. Singh, 2012 ONSC 5217. In the result of that case, at ¶ 55-57, Gray J. ordered indefinite support despite the limit in the SSAGs, albeit not in the amount claimed by the wife. He did so because the wife had multiple sclerosis, was in a wheelchair and could not “do anything but the most basic things” and was “unable to look after herself in any meaningful way. She was in a nursing home and would likely be there for the balance of her life. Her income was very modest.

[186] Finally, I would refer to L.M.S. v. L.P. again. It is often cited for the Supreme Court’s statement about the material change in circumstances test. It was put before me in submissions, and I referred to it earlier for that purpose. But its application of the legal tests to the facts, is also of much assistance in this case before me.

[187] L.M.S. v. L.P. involved a 14-year marriage. The wife had been living with multiple sclerosis for 14 years at the time of the initial support order. She had been found unable to work by the insurance company. The husband was fully aware of the disability and made representations about the wife’s inability to work both before and after the separation, when the original order was made.

[188] The husband later brought a proceeding to terminate spousal support in 2007. The trial judge found the wife was able to work outside the home, and reduced and ultimately terminated spousal support by 2010. The case worked its way up to the Supreme Court. The Supreme the Court disagreed with that outcome.

[189] The Supreme Court noted that there had been no improvement in the wife’s condition over 19 years: see ¶ 51-55. In the result, the Supreme Court wrote at ¶ 55, “[i]t is, in short, the same as when the order was made. And that in turn means that there has been no change, let alone a material one, since the order. This ought to have been dispositive of the husband’s application to vary.”

(ix) The Court of Appeal’s Decision in McGuide v. Bator

[190] Four days after the conclusion of this trial, the Ontario Court of Appeal released a decision in McGuide v. Bator, 2022 ONCA 431. I invited the parties to make additional written submissions about this new decision. Both parties filed submissions, and I have considered them.

[191] In McGuide v. Bator, the relationship was only 5 years in length. Both parties were in their 50s. Both had children from previous relationships. During the marriage the wife developed a disability. She was designated disabled by the Canada Pension Plan, just like in this case before me.

[192] The trial judge ordered a small lump sum, based on the mid-range of the SSAGs for the shortest duration. The Ontario Court of Appeal overturned this result.

[193] At ¶ 28-30, Benotto J.A. wrote that the trial judge specifically accepted that the wife was unable to work, yet she ordered a small amount of spousal support, without explaining why support terminated when need continued. At ¶ 32-34, she held that the trial judge ought to have considered whether the circumstances of the illness and disability should result in a departure from the basic formula. In the result, in addition to the lump sum that had already been ordered, the Court added a term for periodic, indefinite spousal support.

[194] In his supplementary written submissions, the father says that the Ontario Court of Appeal’s decision should not impact his request for a termination of spousal support. Some of his arguments are in the nature of distinguishing the decision. For example, he argues:

(a) the trial judge was overturned because she provided insufficient reasons, thereby opening the door for the Ontario Court of Appeal to review the trial decision;

(b) the decision in McGuire v. Bator was an original support order, whereas his case before me is at the material change stage;

(c) the Court’s reference to another of its decisions, Gray v. Gray, 2014 ONCA 659, is also distinguishable, since the Ontario Court of Appeal in Gray v. Gray found the wife had an ongoing need, whereas the wife in this case did not establish ongoing need; and

(d) the trial judge in McGuire v. Bator dismissed the wife’s claim for a constructive trust interest in the husband’s property, meaning she had no capital to supplement her income in the event of a future need, whereas the wife in this case before me received an equalization payment.

[195] The father’s other arguments are in the nature of saying that the Ontario Court of Appeal’s decision in McGuire v. Bator is incorrectly decided. In particular, he argues:

(a) the decision does not stand for the proposition that spousal support awards should be indefinite for disabled spouses, only subject to material change;

(b) the Court’s use of restructuring is incorrect;

(c) the decision would result in lengthy support orders for short marriages without children, which cannot be a correct statement of the law;

(d) the effect of the decision is essentially that nothing will ever be a material change in cases of illness or disability; and

(e) the decision is inconsistent with the Supreme Court of Canada’s decision in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, because the Supreme Court did not exclude the possibility of terminating spousal support even where the recipient spouse is disabled.

[196] The mother says McGuide v. Bator is entirely on point. The balance of her submissions respond to the father’s various arguments.

[197] In regards to the father’s argument that the case was about the appellate standard of review, the fact that the trial judge’s reasons were insufficient in McGuide v. Bator, opening the door to appellate review, does not render the Court of Appeal’s substantive statements about certain legal principles respecting spousal support inapplicable. On the other hand, I do not fully agree with the mother that McGuide v. Bator is entirely on point. For example, the father is correct that this case before me is at the Motion to Change stage, whereas the Ontario Court of Appeal was dealing with an initial support order.

[198] However, McGuide v. Bator is noteworthy in that it is a very recent statement of the Ontario Court of Appeal treating illness and disability as an exception to the SSAGs, despite the controversy about this in the case law. At ¶ 32-34, Benotto J.A. wrote, “[t]he SSAGs are an excellent advisory guideline for typical cases. They assist in achieving consistency and predictability. They are not a substitute for judicial analysis, particularly in exceptional cases”.

[199] My analysis of the father’s arguments about McGuide v. Bator being inconsistent with the Supreme Court’s decision in Bracklow v. Bracklow, about the mother’s need, and about the equalization payment, follows below. I do not intend to address the father’s argument that McGuide v. Bator will result in indefinite support orders after short marriages without children; those are not the facts of this case before me. I otherwise do not intend to address in any detail the father’s other arguments, that the Ontario Court of Appeal’s recent decision is or may be incorrect. While the case may be distinguished on its facts, it would not be appropriate for this Court to question the correctness of this recent appellate decision.

(x) Conclusions Respecting the Asserted Material Changes in Circumstances

[200] In conclusion, the end of child support and the changes to the parties’ incomes are material changes in circumstances, but they do not militate in favour of terminating spousal support. I accept as a general proposition that an order for indefinite support does not mean permanent support. But I do not accept that “no exception” approach is the law when it comes to illness and disability. To conclude in this case, that the passage of time reflected in the SSAGs on its own, is a material change that should result in the termination of spousal support, may be tantamount to adopting the “no exception approach”, in the case of a support recipient who continues to have significant need (see below). It is not the passage of time on its own that gives rise to a material change here. The key question must be whether the objectives of the spousal support in reflected in the original order have been satisfied, as a result of the passage of time.

[201] Alternatively, if I am wrong and there has been a material change in circumstances based on the length of time that the husband has paid spousal support in this case, then section 17(7) still says that the court should address the objectives listed therein, in making a variation order. It does not automatically follow that support will be terminated just because there has been a material change from the passage of time.

[202] And I must nevertheless address the objectives in section 17(7) in any event, having found other material changes in circumstances, as a result of the end of child support and the parties’ changed incomes.

(3) The Objectives of An Order Varying Spousal Support

[203] The evidence and submissions focused entirely on section 17(7)(c) of the Divorce Act, the objective to relieve any economic hardship arising from the breakdown of the marriage, and (d), the objective to promote economic self-sufficiency within a reasonable period of time.

(i) The Mother’s Health

[204] The evidence and submissions about these objectives revolved around the mother’s health. The evidence was overwhelming. I have no hesitation in finding that the mother the mother is significantly ill and permanently disabled, and that she has no ability to maintain paid employment.

[205] The evidence about the mother’s health came from both parties themselves, hundreds or even over a thousand pages of exhibits consisting of physician’s notes and records, hospital reports and the mother’s disability applications, and a practitioner’s report of the mother’s family doctor who has treated her throughout the marriage right up until March of 2022, when the doctor retired.

[206] At ¶ 17-20 of his written closing submissions, counsel for the mother sets out a 37-item summary of the numerous medical interventions on the mother and the effects of this disease on her over the years. In short, the mother has undergone several invasive surgeries and has been subjected to a number of hospital stays, one of which was months in length. She relies on daily doses of morphine and other medications to manage her pain. She requires nutritional supplements to survive, some of which are not covered by her health benefits. She experiences a number of adverse daily symptoms, including the need to use the washroom multiple times each day, even when her disease is considered not to be “active”, and frequent bouts of vomiting.

[207] The mother’s family doctor’s practitioner’s report/participant expert’s report is dated April 3, 2019. The doctor also testified. The family doctor has treated the mother since 1990. Based on the evidence I heard, there is no debate that the family doctor is well qualified and able to comment about the mother’s health, based on her observations as her treating physician.

[208] The doctor’s report confirms that the mother was diagnosed with Chron’s disease in 1990. The mother has had a severe course of the disease over the years. She has tried many medications, many of which she could not tolerate. One of her multiple surgeries was an ileostomy, wherein her bowel was connected to a pouch on the outside of the abdomen. The mother later underwent an ileostomy reversal. The doctor’s testimony expanded upon what she said in her report and her other observations having treated the mother for many years.

[209] Despite her condition, the mother has been able to take three trips, to Florida, California and Mexico in the past 16 years since the parties’ separation, paid for by other family members. The father pointed to these trips as evidence that the mother is able to engage in activities of life and perhaps that she has other sources of income to fund vacations. The fact that the mother was able to travel three times in 16 years is not evidence that the mother is able to earn an income or that she is not disabled. And there is nothing untoward in the mother trying to have some small pleasures in life, like trying to travel. Incidentally, as it pertains to her trip to Mexico, the mother had to ask her doctors to increase her pain medication in order that she could travel. While she was away, she became so ill while there that she had to return home early.

[210] The father admitted to having an awareness that the mother’s condition was debilitating. He admitted to having observed the mother taking morphine regularly and having numerous other symptoms of this disease. At paragraph 27 of his written closing submissions, the father claimed not to be challenging that the mother suffers from a serious illness and that she has gone through periods where she was hospitalized and completely disabled. He also claimed not to be disputing that she will likely never achieve financial self-sufficiency.

[211] Still, the father avoided answering questions put to him in cross-examination about whether he accepts the mother is incapable of working. In response, he said he was “not sure”. He went on to testify that he had not bothered to read in full the voluminous medical records tendered for this trial in advance of this trial. He testified that he only read about “1/8th” of the records.

[212] The father admitted that the mother’s claim for short term disability was a valid claim.[^15] Yet he would not agree that the mother is actually disabled. He insisted that being disabled means “you can’t do anything”. During his testimony, expanded upon further by his counsel in submissions, a suggestion was made that the mother might be able to earn some income from part-time work, some of the time. No one articulated what exactly the mother could do. The father’s counsel said that this could not be said, because the mother failed to obtain a medical/legal report.

(ii) The Mother’s Failure to Obtain a Medical/Legal Report

[213] The father pointed to the previous consent given at the DRO attendance, and to the subsequent Order of Leef J. for this. He essentially argued that the Court cannot now find the mother is unemployable because of her failure to get such a report, or at least that there is a gap in the evidence, and that rests on her shoulders.

[214] It was when represented by former counsel (who Leef J. was critical of in one of the Endorsements), that the mother consented to an order to obtain a medical/legal report commenting on both her condition and her employability. It is true that the mother did not then obtain the medical/legal report, for reasons of costs. That said, she did obtain and provide the aforementioned practitioner’s report from her family doctor, and comprehensive health disclosure in the form of notes and records, and insurance documents.

[215] I do not wish to be taken as excusing the non-compliance with an order, and in most cases that may be more problematic and perhaps even fatal to a claim. But in my view, in this case, too much was made about the mother’s failure to retain a litigation expert. Frankly, more thought should have been put into the necessity this in the first place at the outset of this case, when it was agreed to. Insisting on a medical/legal report in a case like this one arguably ran counter to the notions of proportionality that run through the Family Law Rules.

[216] Any non-compliance on the part of the mother here was compensated for through the participant expert (her doctor) and the abundance of other medical documentation that she provided. This Court did not need a litigation expert’s evidence about the mother’s employability or her ability to earn income in this case. It is patently obvious that she lacks the ability to gain employment. This Court is able to draw those inferences from the medical evidence that was presented. It did not need an expert to tell it this in this case.

[217] Even if she could somehow do some work from home, whatever that would be will be minimal. Quite apart from her serious health issues, she has not worked in approximately 25 years, after having achieved just a high school education.

(iii) Bracklow v. Bracklow

[218] In regards to the father’s argument that the Ontario Court of Appeal’s decision in McGuide v. Bator seems to be inconsistent with Bracklow v. Bracklow, because the Supreme Court did not exclude the possibility of terminating spousal support even where the recipient spouse is disabled, there is nothing in McGuide v. Bator that necessarily forecloses a termination of spousal support either. Just because in some cases, like in this case before me, spousal support will continue, where a recipient spouse has a significant illness, and a strong need, does not make the two cases conflicting.

[219] It is also noteworthy that the SSAGs were developed after the Supreme Court’s decision in Bracklow v. Bracklow. Considerable jurisprudence considering the SSAGs then developed. While some of the cases decided under the SSAGs recognized illness and disability as an exception to their durational limits, others didn’t. McGuide v. Bator is recent appellate authority recognizing the exception. Just as Bracklow v. Bracklow did not foreclose the termination of spousal support, nor did it mandate that support must terminate.

[220] Initially, the father relied on Bracklow v. Bracklow in a different way, to argue that any need on the part of the mother is not connected to the marriage or its breakdown, militating in favour of the termination of support. But at ¶ 46, the Court also said the following, citing an article from Professor Rogerson that discusses “casual connection arguments” in some of the case law:

Following Moge’s broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support courts have shown increasing willingness to order support for ill and disabled spouses. Sometimes they have done this as a “transition” to self-sufficiency: Parish v. Parish (1993), 1993 CanLII 16075 (ON SC), 46 R.F.L. (3d) 117 (Ont. Ct. Gen. Div.)). But more often, they have frankly stated that the obligation flows from the marriage relationship itself. Collecting cases, Rogers explains in “Spousal Support After Moge”, supra, at p. 378 (footnotes omitted):

The [more dominant] approach, ... particularly in cases of earning capacity permanently limited by age, illness or disability, and the one generally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the source of the post-divorce need. On this approach, which I earlier referred to as the “basic social obligation” approach, causal connection arguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation. The message coming from the cases adopting this approach appears to be that one takes one’s spouse as one finds him or her, subject to all his or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basic obligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage. One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse’s financial circumstances. [Emphasis in original; citations omitted.]

[221] Certainly the mother’s need arises in part from her health, and that was not caused by the marriage. But the father admitted an awareness that the mother had this diagnosis throughout the marriage. He admitted that the mother started to receive disability income after S.T.’s birth in 1996 and has not worked since. He admitted that he had to call on his parents to assist in caring for the children when they were younger, in view of the mother’s illness. He admitted that even after the mother went on disability in 1996, he chose to have a third child with her, J.T.

[222] A related aspect of the mother’s need arises from the breakdown of the marriage, even though it was many years ago. Without ongoing support, without additional education, without the ability to work, and without the ability to share in family’s pooled resources, like she did when the family was intact, the mother cannot meet those needs.

(iv) Self-Sufficiency

[223] In specific regards to section 17(7)(d) of the Divorce Act, the objective that a variation order should, in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time, this objective will not factor heavily in the support order I intend to craft. In my view the Supreme Court’s comments in L.M.P. v. L.S. on this point are dispositive.

[224] The Supreme Court held the wife in that case did not have a duty to seek employment. There was nothing in the initial order that said she did. The Court went on to say at ¶ 59, “[n]either does the Divorce Act impose a duty upon ex-spouses to become self-sufficient. As this Court affirmed in Leskun, the “[f]ailure to achieve self-sufficiency is not breach of ‘a duty’ and is simply one factor amongst others to be taken into account” (para. 27). Section 15.2(6)(d) of the Divorce Act simply states that the order should “in so far as practicable, promote the economic self-sufficiency” of the parties.”

(4) The Mother’s Financial Circumstances

[225] The father’s counsel cross-examined the mother on her budget shortfall in an earlier financial statement, particularly about how it was being funded, in an attempt to establish that she does not have need, or that it is being funded by some other non-disclosed source. On that earlier financial statement, the mother estimated her annual budget to be about $53,000.00. Other than explaining that N.T. and S.T. helped out by contributing between $700.00 and $1,000.00 per month towards her expenses, the mother could not explain the shortfall.

[226] The financial statement was sworn after child support had ended, and the father stopped paying spousal support. But I note that had the father continued to pay spousal support, or increased it as I am now ordering him to do, the shortfall would have been less or non-existent.

[227] I find this argument to be circular. The father was not paying support and so if the mother had to turn to others for help, the father now says that the mother does not have need.

[228] According to her more recent financial statement sworn April 18, 2022, the mother now seems to have reduced her spending since child support ended. I find she has a very sparse budget. Her total annual expenditures are $39,401.52. There are no deductions for tax on the income she receives. In view of her income of about $26,000.00 per year, on the face of this financial statement, the mother has a budget deficit of approximately $13,000.00, before the tax liability is taken into account.

[229] But that is not the extent of her need. The mother also under-estimated her budget in her most recent financial statement. For example, the mother testified that she failed to include the cost of the meal replacement drinks that she must take to eat. Her testimony was that when they are not on sale, they cost about $15.00 for 6 drinks. She must consume 3 per day. Therefore, in addition to the amounts on her financial statement, the mother needs about $225.00 per month for this expense, bringing her budgetary needs up to about $42,000.00 per year.

[230] There are other missing expenses on her most recent financial statement. The mother omitted expenses for home related expenses and maintenance, clothing, hair care or beauty, and discretionary spending. Perhaps these are the areas for which she receives assistance from N.T and S.T. For example, the mother’s testimony was that they have helped her do the laundry, take out the garbage, perform house repairs, maintain the lawn and shovel the snow, clean the house, pick up the mother’s medication from the pharmacy, do the grocery shopping, cook, and help the mother with health appointments. They have also helped her out financially at times.

[231] But N.T. and S.T. may not always be living with their mother. At some point if it has not started to happen already, they may acquire partners, move out, have children and pursue separated lives. While the mother can now rely on her daugthers for help, that may not always be so.

[232] The mother’s owes income taxes of $14,000.00. That debt will only increase, because of a retroactive tax issue, addressed below. I do not know how yet by what amount, or how she plans to pay this or any increased tax debt, but this is another aspect of the mother’s need.

[233] Finally, the mother has a very poor quality of life because of her health. I find the mother should have some extra funds for discretionary purchases, to try to improve her quality of life if possible.

[234] I appreciate that the exercise of trying to determine the mother’s need is somewhat imprecise. The Court is making its best efforts, based on the record before it, to assess and project the mother’s reasonable need going forward.

[235] Taking the above into account, I find the mother needs about $50,000.00 per annum, net of tax, to meet her needs. This means she needs total net disposable income of $4,167.00 per month from all sources.

[236] At ¶ 54 of Bracklow v. Bracklow, the Supreme Court held that it may be unfair to saddle the payor spouse to fully support the recipient’s needs. The father would rely on this statement. But that is not what is occurring here. The mother’s support is already a shared responsibility in this case.

[237] The mother and the state are contributing towards her own support through her private and government disability insurance. Both N.T. and S.T. have taken on a great role in helping the mother with her day-to-day needs. I find the father must continue to contribute, too.

(5) The Father’s Argument About the Equalization Payment

[238] In response to the father’s argument, in his supplementary written submissions, that the mother in this case received an equalization payment, and that renders McGuire v. Bator distinguishable too, the mother’s counsel pointed out that the mother only received an equalization payment of just under $50,000.00 back in 2010. Counsel went on to argue that I should presume that Magda J. took that into account, when ordering support, without a time limit.

[239] If what the mother said in her written submissions is true, the equalization payment the mother received was small. But no evidence was called about this, by either side. I fail to see how the father can now argue that an equalization payment reduced her need in the absence of evidence.

[240] What I do know, is that the mother no longer has any such asset. This is reflected on her financial statement. No notional or actual investment income from any equalization payment was imputed to the mother by Magda J. either. I fail to see how this supposed distinction from the facts in McGuire v. Bator materially assists the father.

(6) Conclusions Respecting Quantum and Duration of Spousal Support

[241] In the draft Order she tendered at the outset of the trial, the mother has claimed an increase to spousal support commencing January 1 2018. That was the last month of child support. Rather than calculate spousal support for that one month with some child support also still being paid, I intend to increase spousal support after the end of child support, namely as of February 1, 2018. This is simpler and more straightforward. Because the mother did not claim spousal support prior to this date, I need not undertake additional calculations for periods of time when child support was still being paid, or consider whether the mother has a meritorious retroactive spousal support claim behind the date of her Response to Motion to Change.

[242] As explained at the outset of this judgment, the mother claimed various quantums of spousal support in each year between 2018 and now, based on what she would have the Court determine the father’s income to be, and her incomes in those relevant years. I have not determined the father’s incomes in the same way as the mother did in her proposed draft Order, in particular as I have not added back all of his self-employment expenses. My calculations differ.

[243] In addition, I intend to approach the quantification of the support a bit differently. After taking into account the mother’s other sources of income and her tax credits that she has been and will be able to deduct, to top her up so that her net monthly needs of $4,167.00 per month are met, she needs different amounts in the years since 2018. Therefore, this Court will order the father to pay spousal support of $2,559.00 per month commencing February 1, 2018 until the end of 2018, $2,167.00 per month for the 12 months of 2019, and $2,700.00 commencing on January 1, 2020 and ongoing (see the DivorceMate calculations at Schedule “A”).

[244] Again, the amounts being ordered for 2018 and 2019 are lower compared to the 2020 and prospective amounts, because the mother had additional tax credits that she could avail herself of in those earlier years. The DivorceMate calculations at Schedule “A” actually show that the father should pay $2,706.00 for the 12 months in 2020, and then $2,668.00 per month as of January 1, 2021. Because the amounts are similar, I am setting the amount at a rounded $2,700.00 per month as of January 1, 2020. Since the mother stopped deducting the additional tax credits by 2020, this amount of $2,700.00 per month should continue to address her need going forward, on the premise that she will continue to receive income from her usual sources, and just the disability tax credit.

[245] From the father’s perspective, these amounts being ordered represent an increase to the amount ordered by Magda J. on January 19, 2011. But they recognize that child support has ended, and the father’s income has increased from Magda J.’s $114,000.00 estimate.

[246] Finally, the amounts being ordered are within the SSAG ranges (although not always the same range each year), except in 2018, likely because the father’s income was the lowest in that year, and the mother had the additional tax credits. The amounts are otherwise within the ranges for every other year.

[247] In all years, the amounts being ordered still leave the father with 60% or more of the parties’ net disposable incomes. In the more recent years, the NDI split becomes more in the father’s favour, reaching the mid to upper 60’s. This uneven split of NDI is another way to acknowledge that the father has already paid spousal support for a number of years, short of a complete termination.

D. Income Tax and Other Issues

[248] The husband testified that the CRA denied him a deduction in the years following the consent Order of Fryer J. dated June 25, 2018. The husband’s explanation for this, is that because the consent Order merely terminated child support but did not contain a clause for ongoing spousal support, CRA would not allow him the deduction. He said this was so, even though Fryer J.’s Order did not alter the pre-existing spousal support term in Magda J.’s January 19, 2011 Order.

[249] Perhaps complicating the issue is that the father did not then actually transfer money to the mother for spousal support for a period of time after Fryer J.’s Order because of the credit he received for child support. But notionally, he still paid some spousal support through the reduction of his child support credit over time.

[250] Perhaps further complicating the issue, the father then allowed spousal support arrears to accumulate under Magda J.’s Order after the child support credit was exhausted, and then he entered into a repayment agreement with the FRO to pay off his arrears over time. And the parties did not necessarily deduct and include spousal support payments in the correct amounts or at all on their tax returns in the relevant years.

[251] The parties agreed that the Court should make an order specifying what the father paid each year beginning in 2018, what he was entitled to deduct, and what the mother was required to include in her income. However, upon further review of the exhibits, the FRO statement of arrears is not current and so the Court cannot make the Order at this time, based on the record before it. The Court requires more information to do so.

[252] In addition, the Court is now making a new spousal support Order as of February 1, 2018. Because the new Order requires the payment of amounts for past years, counsel should be prepared to advise the Court how the tax relating to the payments should be handled.

[253] Regardless, it is essential that the mother actually receive the support she is entitled to as a result of this Order in a timely way. I ask counsel to please come up with a mechanism to sort out these issues, and to strive to come up with a joint draft Order on these point that will resolve these issues quickly. They should consult with the CRA’s rules as to what is required. If they are unable to agree, I will hear brief submissions when the parties re-attend to make costs submissions. The Court will require an updated Statement of Arrears, and calculations, and any authorities to resolve these issues, if counsel are unable to do so between them.

[254] Finally, if either party sees an inputting or mathematical error in the DivorceMate calculations attached as Schedule “A” to this judgment, they may make brief submissions when I hear costs submissions. This is not an invitation to reargue any of the findings of fact or the Court’s analysis.

PART IV: ORDERS

[255] Based on the above, I make the following orders:

(a) The father’s claim to set aside the Order of Leef J. dated April 25, 2022 is dismissed. Based on the agreement that they have already entered into, twice prior to this trial, there shall be final Orders on the same terms as the temporary Consent Order of Fryer J. dated June 25, 2018;

(b) The mother’s claim for the father’s contribution to N.T.’s and S.T.’s student loans is dismissed;

(d) The mother’s claim for an increase in spousal support is granted. The father shall pay spousal support to the mother in the amount of $2,559.00 per month, for the months February 1, 2018 to December 1, 2018, $2,167.00 per month for the 12 months of 2019, and $2,700.00 commencing on January 1, 2020 and ongoing. The father shall be entitled to a credit for the amounts he paid after February 1, 2018;

(e) I urge the parties to settle costs. If the parties cannot agree, then costs shall be argued orally by zoom on November 14, 2022 @ 2 PM. If counsel are unavailable on the date I have selected, then I may be contacted through the judicial assistant karen.hamilton@ontario.ca and I will accommodate a reasonable adjournment to another date that can be arranged. At least 7 days prior to argument, counsel shall exchange Bills of Costs, copies of any Offers to Settle previously served, and any case law. That material should be filed for the costs argument at least 2 days prior to the date for the hearing;

(f) One of the parties shall order an updated Statement of Arrears from the Family Responsibility Office and send it to my attention. I ask counsel to endeavour to agree upon what orders are required to address the tax issues and if possible to present a joint draft Order. Otherwise, I will hear submissions about this at the same time as the submissions on costs. Any material or calculations upon which counsel wish to rely shall be exchanged at least 7 days before and filed 2 days before argument; and

(g) If there are any inputting or mathematical errors in the DivorceMate calculations attached as Schedule “A” to this judgment, they may also make brief submissions at the same time as the submissions on costs.

[256] I wish to thank counsel for their assistance with this matter.

Justice Alex Finlayson

Released: September 15, 2022

COURT FILE NO.: FC-05-2440-0001

DATE: 20220915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.T.

Applicant Mother

(Responding Party)

– and –

P.T

Respondent Father

(Moving Party)

REASONS FOR JUDGMENT

Justice Alex Finlayson

Released: September 15, 2022

SCHEDULE “A”

DIVORCEMATE CALCULATIONS FOR 2018 to 2021

[^1]: J.T. graduated from high school in the spring of 2016 and so the child support offset that Magda J. credited the father with on account of J.T. living with his father (see below), is no longer an issue. [^2]: This current round of the proceedings has been pending for over four years, in part because of the Covid-19 pandemic, but also for other reasons. [^3]: The proposed draft Order contains a typographical error. It states that the latter amount would commence on January 1, 2022. As there are no amounts for 2021, I gather that the latter commencement date ought to have read January 1, 2021. [^4]: As I will later explain, the amounts are lower in 2018 and 2019, primarily because the mother was able to claim additional tax credits in those years. [^5]: I heard no evidence at this trial that the transcripts provided on May 3, 2018 were any different from those tendered at this trial. [^6]: The parties neither agreed to suspend or terminate spousal support, nor did they agree to increase spousal support as a consequence of the reduction and then the termination of child support, and their changed incomes. [^7]: For example, the “overpayment” could have been applied over a number of months to defray a portion of the spousal support each month, so that the mother would at least continue to receive some ongoing spousal support, which she needed. Or, the operation of the credit could have been suspended until the trial, to be applied more holistically when the Court was in a position to hear all of the issues and decide how the credit should be applied. [^8]: The February 2019 date by which the child support credit was exhausted is based the FRO’s application in its records of a straight set off. At this trial, no one addressed the fact that the spousal support being offset was taxable/deductible, whereas the child support overpayment was not, either, and so this end date may not be entirely accurate. [^9]: During this trial, the mother testified about certain difficulties she had with her former counsel, including her failure to attend Court, her sending an agent to Court without instructions from the mother, and in general, a lack of communication between the lawyer and the client. [^10]: For example, the Court is aware that N.T. is training to be a special constable, but there was no specific evidence called about what N.T. might reasonably be expected earn and then to contribute to repay the mother’s brother. [^11]: For example, I know that she worked as a waitress and she is now in receipt of OW. [^12]: For example, I am aware that S.T. is in receipt of OW now, and is looking for work. [^13]: I list these incomes between 2012 and 2017 without the add backs and the gross ups to illustrate the point that on the face of the father’s tax information alone, his incomes exceeded the $114,000.00 estimate. Because the mother did not advance a claim for an increase to spousal support for any of these years, I need not calculate the add backs and gross ups, but the incomes would be even higher if I were to do so. I will address the add backs and gross ups for the years 2018 and thereafter later in these reasons, as this is necessary for me to do so, to address the years for which the mother does have a claim for an increase to spousal support before the Court. [^14]: He also received contractual increases to his income as a member of a union over the years. [^15]: Notably, she subsequently became entitled to long term disability, and she is eligible for the Canada Disability Tax Credit.

PART I: OVERVIEW

PART II: BACKGROUND

A. Findings About the Parties and the Children

(1) The Father

(2) The Mother

(3) N.T.

(4) S.T.

(5) J.T.

B. The Prior Proceedings

(1) The Trial of the Parenting Issues in 2009

(2) Magda J.’s Order dated January 19, 2011

(3) This Motion to Change dated October 4, 2017 and the Response to Motion to Change dated December 21, 2017

(4) The Appearance Before the Dispute Resolution Officer on February 7, 2018

(5) The Father’s Subsequent Disclosure Requests

(6) The Settlement Conference Held May 11, 2018

(7) The Spousal Support Motion on June 25, 2018

(8) The Father’s Failure to Pay Spousal Support After June 25, 2018

(9) The Settlement Conference Held February 15, 2019

(10) The Trial Scheduling Conferences Held July 15, 2019 and April 25, 2022

(11) This Trial and the Parties’ Subsequent Written Submissions

PART III: ISSUES AND ANALYSIS

A. The Father’s Request to Set Aside the Consent Order Respecting Child Support

B. The Mother’s Claim that the Father Contribute Towards N.T.’s and S.T.’s Student Loans

(1) Findings About N.T.’s Post-Secondary Expenses and Student Loans

(2) Findings About S.T.’s Post-Secondary Expenses and Student Loans

(3) The Father’s Pre-Trial Disclosure Requests About the Loans and Certain Trial Testimony Relating to The Loans

(4) Jurisdiction Respecting the Mother’s Claim for Section 7 Expenses

(5) The Test for a Retroactive Variation to Increase Child Support, In this Case to Add Section 7 Expenses

(6) Analysis Respecting The Father’s Assertion that N.T. and S.T. Have Terminated Their Relationship With Him

(7) Analysis and Conclusions About the Merits of the Mother’s Claim for Retroactive Section 7 Expenses

C. Spousal Support

(1) The Test to Vary A Spousal Support Order

(2) The Material Changes in Circumstances that Have Been Asserted

(i) The Termination of Child Support

(ii) The Father’s Incomes Increased in the Years Since Magda J.’s January 19, 2011 Order

(iii) The Father’s Argument That He Should Not Have to Share “Post-Separation Increases in Income”

(iv) Conclusions Respecting the Father’s Incomes

(v) Whether the Magda J.’s Methodology Respecting Adding Back and Grossing Up the Father’s Self-Employment Expenses Should be Changed

(vi) Analysis Respecting the Father’s Deductions for Business Expenses In this Trial

(vii) The Mother’s Incomes and Tax Credits from 2018 to 2021

(viii) The Application of the SSAGs in Cases of Illness and Disability

(ix) The Court of Appeal’s Decision in McGuide v. Bator

(x) Conclusions Respecting the Asserted Material Changes in Circumstances

(3) The Objectives of An Order Varying Spousal Support

(i) The Mother’s Health

(ii) The Mother’s Failure to Obtain a Medical/Legal Report

(iii) Bracklow v. Bracklow

(iv) Self-Sufficiency

(4) The Mother’s Financial Circumstances

(5) The Father’s Argument About the Equalization Payment

(6) Conclusions Respecting Quantum and Duration of Spousal Support

D. Income Tax and Other Issues

PART IV: ORDERS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 1