Court File and Parties

BARRIE COURT FILE NO.: FC-16-1467-01 DATE: 20240604 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Andrea Deegan, Applicant -and- Jason Deegan, Respondent

BEFORE: The Honourable Madam Justice J.E. Bruhn

COUNSEL: Roxanne Shank, for the Applicant Shawna Downey, for the Respondent

HEARD: May 22, 2024

Endorsement

Introduction

[1] The Respondent (“father”) has filed a Motion to Change the Final Order of Justice McDermot dated June 27, 2017 (“the Final Order”) regarding the issues of child support, spousal support, life insurance, transportation, and mobility.

[2] The Applicant (“mother”) did not file a Response to Motion to Change requesting her own changes to the Final Order.

[3] The relevant terms of the Final Order are as follows:

(a) the child, namely AD born in February 2011, shall reside primarily with the mother;

(b) the father shall have access (now referred to as parenting time) on alternate weekends from Friday at 6 p.m. to Sunday at 4 p.m., every Wednesday from 5 p.m. to 7 p.m., and shared holidays and special occasions;

(c) after July 2, 2017, the father shall be responsible for transportation for his parenting time and the exchanges shall occur at the mother’s home;

(d) commencing July 1, 2017, the father shall pay to the mother table child support in the amount of $709 per month on an income of $78,000;

(e) the father shall maintain the policy of insurance on his life available to him through his employment with a face value of at least $146,000 to secure his child support obligations; and,

(f) commencing July 1, 2017, the father shall pay to the mother spousal support in the amount of $900 per month based on his income of $78,000 and the mother’s income of $8,242, which obligation may be reviewable if the child is in receipt of ODSP.

[4] The matter was scheduled for a long motion (two hours) to resolve the motion to change on a final basis.

[5] At the commencement of the motion, counsel confirmed that mobility was no longer an issue for the purposes of these proceedings.

[6] Therefore, the only issues for the motion are child support, spousal support, life insurance, and transportation, and the only motion before the court is that of the father.

[7] The father seeks the following orders:

(a) changing the Final Order to provide that the mother provide all transportation for the father’s parenting time on Wednesdays and alternate weekends, and parenting exchanges shall take place at the father’s residence;

(b) changing the Final Order to provide that the father pay child support to the mother in the amount of $745 per month commencing August 1, 2023 based upon the father’s income of $80,000. At the motion, counsel for the father conceded that it may be appropriate to adjust child support back to when the father commenced his motion to change based on his actual income from time to time, except for his severance payment in 2023, which he requests not be included in his income for support purposes;

(c) changing the Final Order to provide that the father’s obligation to pay spousal support to the mother is terminated effective January 31, 2023. At the motion, counsel for the father stated that the father is content to terminate spousal support as of the date this motion was heard (May 22, 2024) to avoid the mother being in a position of overpayment of spousal support;

(d) changing the Final Order to provide that the father maintain the policy of insurance on his life available to him through his employment in the amount of $50,000, and name the child as the beneficiary and the mother as the trustee on the following terms (which are the same terms as in the Final Order):

(i) the trustee shall hold the funds and keep them invested;

(ii) the trustee shall apply so much of the income and/or capital of the fund to meet the deceased father’s obligation to pay child support and special and extraordinary expenses for the child;

(iii) the trustee shall have discretion to apply the income and/or capital of the fund to pay for medical, educational or other expenses of the child so long as the expense is for the child’s long-term benefit;

(iv) when there is no longer any child for whom child support is payable, the trustee shall pay or transfer the balance to the father’s child mentioned above in equal shares;

(v) if at the time of the father’s death he has not complied with this obligation, this clause shall constitute a first charge against the father’s estate in an amount equivalent to the value of the policy;

(vi) the obligation regrading life insurance shall remain in place so long as the policy is available to the father through his employment and the child is eligible for child support, but the father shall be free to designate a new beneficiary and/or trustee after this obligation is over.

(e) commencing in 2025, the parties to exchange income disclosure for the previous calendar year by June 1st of each year and adjust child support by July 1st of each year;

(f) the mother to pay the father’s costs on a full indemnity basis plus HST; and,

(g) such further and other relief as this Honourable court deems just.

[8] The mother seeks orders dismissing the father’s motion and for costs on a substantial indemnity basis, including disbursements and HST.

[9] The mother also seeks orders changing the terms of the Final Order with respect to table child support and s. 7 child support, and orders with respect to spousal support, extended health benefits, life insurance, and transportation. However, as noted above, the mother has not brought a motion to change. Therefore, the court will consider the mother’s position only on the issues raised by the father in his motion to change and declines to deal with any additional issues.

[10] The issues for this motion are as follows:

(a) Has there been a material change in circumstances relevant to the child support and/or spousal support arrangements since the Final Order was made?

(b) If the answer to the question above is yes, how should the child support and/or spousal support provisions be changed?

(c) Has there been a material change in circumstances with respect to the life insurance arrangements since the Final Order was made?

(d) If the answer to the question above is yes, how should the life insurance provisions of the Final Order be changed?

(e) Has there been a material change in circumstances with respect to the transportation arrangements since the Final Order was made?

(f) If the answer to the question above is yes, how should the transportation provisions in the Final Order be changed?

(g) What, if any, costs should be paid by one party to the other?

Law and Analysis

Brief Background

[11] The facts as the court finds them are set out below and provide context for the analysis. Further facts will be referred to in the analysis as required. Where evidence of significance differs, it will be identified and considered.

[12] The parties were involved in a relationship of just over six years in duration. They began residing together in December 2009, were married in July 2010, and separated in February 2016. They were divorced in August 2019.

[13] There is one child of the parties’ relationship, namely AD.

[14] AD has Spinal Muscular Atrophy (“SMA”). SMA is a disease that affects the body’s nerve cells, causing muscle weakness. AD requires a motorized wheelchair for mobility. AD’s condition is degenerative and will most likely never improve.

[15] The parties resolved all issues in the originating proceedings on consent by way of the Final Order, the relevant terms of which are set out above.

[16] The parties varied the child support and spousal support payments on consent in 2019. The father then began paying the mother child support in the amount of $751 per month and spousal support in the amount of $688 per month. The court was not provided with a Court Order or written agreement with respect to this variation, or the support calculations it was based on. It appears that neither party had independent legal advice when entering into this agreement.

[17] The father commenced his motion to change in December 2022, on the basis that there had been a change in his income, the mother’s income, his life insurance, and his ability to transport the child for parenting time.

Issue #1 : Has there been a material change in circumstances relevant to the child support and/or spousal support arrangements since the Final Order was made?

[18] At the time of the Final Order, the father was working full-time earning $78,000 gross per year and the mother’s income was $8,242 gross per year.

[19] In June 2022 the father received notice that his employment was being terminated effective January 31, 2023 as a result of the closure of the plant where he was employed, and that he would receive severance pay through to the end of July 2023.

[20] The father was subsequently able to obtain other employment in 2023 and while he was between jobs for a period of time between about May and July 2023, he has been working full-time since July 2023.

[21] The mother worked as a school bus driver for a period of time after the Final Order was made, however, she left this position during the Covid pandemic because she had to take AD to work with her, AD is respiratory compromised, some of the students on the bus were not wearing masks, and she did not want to risk AD getting Covid. For the same reasons, AD was homeschooled by the mother for about 2.5 years during the Covid pandemic. The mother started a cake baking and decorating business, Trillyum Cakes, to supplement her income. In September 2022, she started working part-time at the Wine Rack. She has continued to work at the Wine Rack and in her cake business since that time.

[22] The mother’s income has increased significantly in all years since the Final Order was made except for 2022.

[23] The parties’ Line 15000 income in the last few years is as follows:

Year	Applicant/mother	Respondent/father
2019	$25,931	$85,576
2020	$32,300 ($24,044 without spousal support)	$86,343
2021	$27,980 ($19,724 without spousal support)	$88,204
2022	$15,110 ($6,854 without spousal support)	$95,663
2023	$21,101 ($12,845 without spousal support)	$150,155

[24] The mother’s income noted above includes spousal support of $10,800 per year for part of 2019 and $8,256 per year from the balance of 2019 forward.

[25] The court was unable to calculate the mother’s income without spousal support in 2019 as only her notice of assessment was provided for that year, and it was not clear when in 2019 the parties adjusted the support payments.

[26] The father’s income in 2023 includes severance of $58,076.

[27] Based on the mother’s evidence, her anticipated 2024 income is approximately $16,000 (not including spousal support).

[28] The father’s claims that his anticipated 2024 income is approximately $80,000.

[29] The court finds that there has been a material change in circumstances with respect to both parties’ incomes since the Final Order was made, and the child support and spousal support provisions of that Order ought to be reviewed.

Issue #2: If the answer to the question above is yes, how should the child support and/or spousal support provisions be changed?

[30] The father takes the position that his severance payment ought not to be included in his income for support purposes. He also takes the position that income ought to impute income to the mother for support purposes, and that the Assistance for Children with Severe Disabilities (“ACSD”) payments the mother receives ought to be included in her income for support purposes. He seeks to adjust child support and terminate spousal support as set out above.

[31] The mother, not surprisingly, takes the position that the father’s severance ought to be included in his income for support purposes, that income should not be imputed to her, and that the ACSD payment should not be included in her income for support purposes. She takes the position that child support and spousal support ought to be adjusted and that spousal support ought to continue.

[32] With respect to the father’s severance payment, he requests that the Court exercise its discretion under s. 17(1) of the Federal Child Support Guidelines, SOR/97-175 (“CSG”) not to include the father’s severance pay in his income for support purposes because it is a non-recurring amount.

[33] I decline to exclude the father’s severance pay from his income for child support purposes.

[34] Although the severance pay is non-recurring, it is a wage replacement to provide the father with a source of income while he obtains other employment. The fact that the father was able to obtain other employment so quickly is to be commended, however, that doesn’t change the nature of the severance payment.

[35] Further, the adjustment to child support based on the severance payment will be limited to the year in which the severance payment was received and will not inflate payments on an ongoing basis.

[36] However, there is a question as to whether the father’s post-separation increases in income (including his severance payment) ought to be included in his income for spousal support purposes.

[37] Justice Chappell reviewed the issue of post-separation increases in income and spousal support in Thomson v. Thomson, 2013 ONSC 5500 at paragraph 103, and noted, among other things, the following:

(a) A spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases;

(e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation;

(i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases;

(j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase;

(l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post-separation income increases.

[38] Although the parties implicitly agreed to include the father’s post-separation increases in income for spousal support purposes when they adjusted the support arrangements in 2019, it is unclear whether the parties turned their minds to this question. The mother argued that the spousal support provision in the Final Order were intended to be non-variable (in which case the father’s post-separation increases in income would not be considered), however, this is not evident on the face of the Order and, in any event, the parties varied the spousal support in 2019.

[39] I consider that this was a relatively brief relationship of about six years in duration. The father has been paying spousal support for almost seven years. The court has no evidence regarding the level of integration, if any, of the parties’ personal and financial affairs during the relationship. However, the court is satisfied that the mother was working full-time for minimum wage prior to the child’s diagnosis, and she has been unable to work full-time since due to her childcare obligations, in particular related to the child’s special needs. The court finds that the mother has been unable to pursue employment opportunities and has forgone career advancements and will likely continue to do so as the parent responsible for the vast majority of the care of a child with significant special needs, as further detailed below.

[40] In the circumstances, the court will use the father’s current income from year-to-year when adjusting both child support and spousal support, however, this is without prejudice to the father claiming that the mother ought not to be entitled to any further post-separation increases in his income in the event of a review of spousal support in future when more time will have elapsed since separation, and any subsequent increases in the father’s income may be even less related to the parties’ relationship. The court will also use the father’s anticipated income of $80,000 for 2024 based on the fact that his 2023 income will not be representative of his 2024 income because of the severance payment and change of jobs.

[41] The father takes the position that the mother is under-employed, and that income ought to be imputed to her pursuant to s. 19 of the CSG.

[42] The mother claims that the child requires a high level of daily care due to his condition. He is completely dependant on his care providers for almost all of his daily needs. AD has trouble swallowing and feeding himself, he cannot dress himself or toilet himself. He requires a lift to get in and out of bed. He requires a commode which has to be wheeled into the shower. He requires a motorized wheelchair for mobility. Unless items are light and within reach, he requires assistance. When AD is ill, his needs significantly increase and may include treatment every few hours including through the night. AD’s condition is degenerative and will most likely never improve. This was largely undisputed by the father.

[43] The court finds that it is not realistic to expect the mother to work full-time given the nature and severity of the child’s special needs.

[44] While the court recognizes that the child is attending school full-time, the mother needs to be available to attend at the school, when necessary, for example to administer medication. The mother also needs to be available to care for the child on all school holidays. And the mother needs to be available to care for the child when he is ill and unable to attend school. Over a period of about seven months in 2022 to 2023, the mother missed an average of over 3 shifts a month because the child was sick.

[45] The mother is also responsible for all of the child’s medical appointments, equipment appointments and services, and applications for funding and services. Although the father may well have shared responsibility for taking the child to his appointments in the past, on the father’s own evidence he has not had an accessible vehicle for the child since October 2021. Therefore, he is unable to assist with the child’s in-person medical appointments, which include appointments every two to four months at McMaster Children’s Hospital in Hamilton, Ontario.

[46] The father’s suggestion that he and the mother could simply switch vehicles so that he can take the child to his appointments (or for his parenting time) is not realistic given the mother’s concerns with implications for vehicle insurance, as well as the myriad of potential conflicts such an arrangement may raise, such as coordinating the timing of the exchange of vehicles, how much the vehicles are to be used while in the other party’s possession, and the condition of the vehicles upon departure and upon return.

[47] In addition, the mother would require specialized childcare if she were to return to work full-time and the court has no evidence that the mother would qualify for sufficient funding for homecare to cover this cost. The court would add that any uncovered cost would be shared by the parties in proportion to their incomes.

[48] The mother has an obligation to work to capacity to support herself and the parties’ child and the court finds that she has the ability to work part-time. However, based on the mother’s evidence, she has been working part-time. Her income from this work has varied from year-to-year, earning a high of $24,044 in 2020 and a low of $6,854 in 2022. The court is not persuaded that she has been intentionally underemployed but rather finds that her income has varied for reasons beyond her control. She states that she is currently working about 10 to 15 hours a week at the Wine Rack earning minimum wage. She has also been working casually baking and decorating cakes earning about $500 per month. Her combined income would therefore be approximately $16,000 per year from employment and self-employment in 2024. A minimum wage full-time income is about $35,000. In my view, the mother is working to capacity. Based on the mother’s evidence, her 2023 income is not representative of her anticipated 2024 income. Therefore, the court will use the mother’s actual income from year-to-year and will use an anticipated income of $16,000 for 2024 for the mother for purposes of child and spousal support.

[49] The father also alleges that the mother earns significant cash income. He claims that the mother admitted to earning cash income in her October 30, 2023 Affidavit where she states that she does not earn “significant cash income”, thereby inferring that she earns at least some cash income. The court has insufficient evidence on which to impute income to the mother on this basis and therefore declines to do so. However, the court would note that if the mother’s reported income is less than that noted above and support is reviewed in future, with better evidence there may well be an amount added on account of cash income such that her income for support purposes would still be around the $16,000 mark.

[50] The father seeks to have the ACSD payments the mother receives included in her income for support purposes. The mother takes the position that these payments are a form of social assistance and should not be included in her income for purposes of calculating spousal support.

[51] As stated by Professors Carol Rogerson and Rollie Thompson in The Spousal Support Advisory Guidelines – The Revised User’s Guide, April 2016 at page 18, “Social assistance is not income for spousal support purposes, whatever its name, even if it’s called Ontario Works or Ontario Disability Support Program (ODSP) or Alberta’s Assured Income for the Severely Handicapped (AISH) or some other confusing name (SSAG 6.2).”

[52] I take judicial notice of the definition of social assistance payments on the government of Canada website, which states that these are payments made to beneficiaries or third parties based on a means, needs, or income test and include payments for food, clothing, and shelter requirements. The court also takes judicial notice of the fact that eligibility for and amount of funding through ACSD is tied to the recipient’s income, family size, severity of disability, and extraordinary costs related to the disability, as set out on the government of Ontario website.

[53] I find that the ACSD payments are a form of social assistance and ought not to be included in the mother’s income for purposes of calculating spousal support. However, this funding would be relevant to the calculation of the amount of any s. 7 expenses for which ACSD funding has been obtained.

[54] I would therefore adjust child and spousal support on the parties’ incomes as noted above.

[55] The court finds that both child and spousal support ought to be adjusted from January 1, 2023. Although the father requested in his motion to change that both child support and spousal support be adjusted as of a later date (January 31, 2023 for spousal support and August 1, 2023 for child support), he reopened the issues as of December 2022 and it is therefore open to the Court to adjust support as of January 2023. The court has not adjusted prior to January 2023 because neither party brought a motion to do so.

[56] The court declines to terminate the father’s spousal support obligation. The court recognizes that the parties were in a relationship of just over six years in duration and he has now been paying spousal support for almost seven years. The court also recognizes the father’s evidence that he is experiencing significant financial difficulties. However, considering the extent and severity of AD’s special needs and the fact that his condition is degenerative and will most likely never improve, combined with the parenting arrangements whereby the mother is responsible for the vast majority of AD’s care, both in terms of the time spent directly caring for AD, as well as time spent arranging for and taking him to doctors’ appointments, attending at the school, ensuring his equipment is serviced, and applying for funding, and the impact these circumstances would have on the mother’s ability to earn an income, the court finds that she continues to be entitled to support. While the court does not have sufficient evidence to determine whether her entitlement is compensatory or non-compensatory, and this is not clear on the face of the Order, the court finds that she certainly continues to have a non-compensatory entitlement, without prejudice to her claim that she also continues to have a compensatory claim to support as well.

[57] In terms of the range of support, the court notes that the child has significant special needs, the mother is responsible for the vast majority of the child’s care, the child’s needs and the childcare arrangement have limited (and continue to limit) the mother’s ability to earn an income, and there is a significant difference in the parties’ incomes. These factors militate towards a greater amount of the net disposable income being left in the mother’s hands. However, the court also notes that the parties were involved in a relatively brief relationship and that the mother has been able to access additional funding to assist with the some of the costs related to the child’s special needs. These factors militate towards a lesser amount of the net disposable income being left in the mother’s hands. Considering all of the above, the court finds that a support award in between the low end and mid-range on the SSAG which affects about a 50/50 split of NDI as between the mother and the father to be reasonable.

[58] Therefore, the court will order that child support and spousal support be changed as follows, based on the calculations attached at Schedule “A”:

Year	Child Support	Spousal Support
Jan to Dec 2023	$1,300	$2,481
Jan 2024 forward	$745	$367

[59] The spousal support payments are taxable in the hands of the recipient and deductible to the payor. The parties will need to refile their income taxes for 2023 to reflect the new support figures, or alternatively, they could consent to a net amount of retroactive support for 2023 and file a Consent to Order by way of 14B Motion to the attention of this Court to address the 2023 support arrangements.

[60] The father should of course be given credit for the child and spousal support payments he has already made.

Issue #3: Has there been a material change in circumstances with respect to the life insurance arrangements since the Final Order was made?

[61] At the time of the Final Order, the father had a policy of insurance on his life available to him through his employment with a face amount of $146,000.

[62] Since the Final Order was made, the father lost that job and while he has obtained another job and has a policy of insurance available to him through his new employment, he advises that the new policy of insurance has a face amount of $50,000.

[63] I find that there has been a material change in circumstances with respect to the father’s life insurance coverage and that the Final Order ought to be changed.

Issue #4: If the answer to the question above is yes, how should the life insurance provisions of the Final Order be changed?

[64] The father seeks to change the life insurance provisions in the Final Order to reflect the amount of life insurance available to him through his current employment, ie. $50,000. The father states that he is required to pay out-of-pocket for this insurance and that he cannot afford to pay any more for additional life insurance.

[65] The mother objects, stating that the amount proposed is far too low considering AD’s age, his special needs, and the amount of child support.

[66] An amount of $50,000 would cover the current table amount of support for just over 5.5 years, or until AD is about 18 years of age. While the court recognizes this does not include anything for s. 7 expenses, the court declines to order that the father obtain further insurance because once his child and spousal support payments are factored into his relatively modest budget, he simply does not have the income to cover this additional expense.

[67] Therefore, the court will order that the Final Order be varied to reflect a face amount of $50,000 for the father’s life insurance.

Issue #5: Has there been a material change in circumstances with respect to the transportation arrangements since the Final Order was made?

[68] A specially equipped vehicle is required to transport AD because he requires a motorized wheelchair.

[69] At the time the Final Order was made and up until October 2021, both parties had wheelchair converted/equipped vehicles (“accessible vehicles”).

[70] Since October 2021, the father has not had an accessible vehicle.

[71] I find that there has been a material change in circumstances with respect to the transportation arrangements since the Final Order was made.

Issue #6: If the answer to the question above is yes, how should the transportation provisions in the Final Order be changed?

[72] The father claims that he was unable to maintain his accessible vehicle because it required extensive and expensive repairs that he could not afford because of his living expenses and spousal support obligations. However, he required a vehicle to commute to work and so he purchased another vehicle, although it was not wheel-chair accessible.

[73] It was undisputed that accessible vehicles are expensive to purchase (a new vehicle costs approximately $85,000 and even vehicles several years old cost approximately $35,000), and they are expensive to maintain.

[74] Although the father’s income continued to increase from the time the Final Order was made until he disposed of the van in 2021, given his child and spousal support payments and his own living expenses, and the fact that he did not qualify for assistance in purchasing a vehicle (as he is not the primary care parent), it is not surprising that he was unable to do so. However, the father had the opportunity to purchase an accessible vehicle in 2023 when he received his severance and he chose not to do so, instead putting the funds into a tax-free savings account (TFSA).

[75] Based on the support amounts set out above, he will owe some retroactive support to the mother, however, even accounting for those amounts he would still have funds available to purchase an accessible vehicle, should he choose to do so.

[76] I note that the mother is solely responsible for all of the child’s transportation needs, including numerous health care appointments. She also has her own transportation needs, including to fulfil her obligation to work to capacity to support herself and the child, as noted above. In my view, it is not reasonable to expect the mother to provide transportation for the father’s parenting time in addition to her other transportation obligations, particularly where the father has the ability to obtain his own transportation.

[77] Therefore, the father’s request for an order that the mother be obliged to provide transportation for his parenting time and that parenting time exchanges occur at his home is dismissed.

Issue #7: What, if any, costs ought to be payable by one party to the other?

[78] The father seeks costs payable by the mother in the amount of $8,200 if he is completely successful, or $5,800 if he is partially successful. If he is unsuccessful, it is his position that costs in the amount of $3,500 payable by him would be reasonable.

[79] The mother seeks costs payable by the father in the amount of $8,592 if she is completely successful, or $5,810 if she is partially successful. If she is unsuccessful, it is her position that there ought to be no costs of nominal costs and they should be set off against the retroactive support owed by the father.

[80] Of the four issues before the Court – child support, spousal support, life insurance and transportation, the father was only completely successful on the life insurance issue. There was divided success on the child support and spousal support issues because the support amounts went up, significantly, in 2023 and were then reduced in 2024 and going forward. However, the court notes that the mother was more successful on the income determination issues. The mother was completely successful on the transportation issue. The support issues and the transportation issue were the focus of the motion and the majority of resources were spent on those issues. In the circumstances, the court finds that there has been divided success on the motion.

[81] The father served two Offers to Settle, one in October 2023 and one in May 2024, yet he did not obtain an order as favourable or more favourable than either of his Offers. However, he did attempt to resolve the issues prior to the motion and the court considers this under rule 18(16) of the Family Law Rules, O. Reg. 114/99 (“FLR”).

[82] The mother failed to serve an Offer to Settle. It was unreasonable not to do so.

[83] The hourly rates charged by counsel are reasonable as was the time spent by counsel. The parties incurred a similar amount of costs for the motion.

[84] There were some gaps in the disclosure provided by both parties, however, the mother failed to provide basic financial disclosure, including a sworn Financial Statement despite the fact that she had ample notice of the motion. The court considers this to be unreasonable behaviour.

[85] In determining an appropriate award that the unsuccessful party should pay, the court is mindful that it must be fair and reasonable and that the costs need to be proportional to the issues and amounts in question as well as the outcome of the case. Amounts actually incurred by the successful litigant are not determinative. Rule 24(12) of the FLR prescribes the factors which the court shall consider in deciding the appropriate quantum of costs.

[86] Given the divided success and the mother’s unreasonable behaviour as noted above, the court finds that it is fair, reasonable and proportionate that the mother pay the father his costs fixed in the amount of $750 with this amount to be credited to the father as against the retroactive support amounts set out above.

Order

[87] The Final Order of Justice McDermot dated June 27, 2017 shall be changed as follows:

(a) Commencing January 1, 2023 and on the first day of each and every month thereafter until December 31, 2023, the Respondent shall pay table child support to the Applicant for the child, AD born February 2011, in the amount of $1,300 per month. This award of support is made in accordance with the Child Support Guidelines and is based on the child residing primarily with the Applicant and the Respondent’s 2023 gross annual income of $150,155.

(b) Commencing January 1, 2024 and on the first day of each and every month thereafter, the Respondent shall pay table child support to the Applicant for the child, AD born February 2011, in the amount of $745 per month. This award of support is made in accordance with the Child Support Guidelines and is based on the child residing primarily with the Applicant and the Respondent’s anticipated 2024 gross annual income of $80,000.

(c) Commencing January 1, 2023 and on the first day of each and every month thereafter until December 31, 2023, the Respondent shall pay spousal support to the Applicant in the amount of $2,481 per month. This award of support is made in accordance with the Spousal Support Advisory Guidelines and is based on the child residing primarily with the Applicant, the above noted child support arrangements, the Applicant’s 2023 gross annual income of $12,845 (exclusive of spousal support) and the Respondent’s 2023 gross annual income of $150,155.

(d) Commencing January 1, 2024 and on the first day of each and every month thereafter, the Respondent shall pay spousal support to the Applicant in the amount of $367 per month. This award of support is made in accordance with the Spousal Support Advisory Guidelines and is based on the child residing primarily with the Applicant, the above noted child support arrangements, the Applicant’s anticipated 2024 gross annual income of $16,000 (exclusive of spousal support) and the Respondent’s anticipated 2024 gross annual income of $80,000.

(e) The above noted spousal support payments are tax deductible to the Respondent and taxable in the hands of the Applicant.

(f) The Respondent shall be credited with any child support or spousal support payments he has already made from January 1, 2023 to date, as against the above noted support awards.

(g) The Respondent shall maintain the policy of insurance on his life available to him through his employment in the amount of $50,000, and he shall name the child as the beneficiary and the mother as the trustee on the following terms:

(i) the trustee shall hold the funds and keep them invested;

(ii) the trustee shall apply so much of the income and/or capital of the fund to meet the deceased father’s obligation to pay child support and special and extraordinary expenses for the child;

(iii) the trustee shall have discretion to apply the income and/or capital of the fund to pay for medical, educational or other expenses of the child so long as the expense is for the child’s long-term benefit;

(iv) when there is no longer any child for whom child support is payable, the trustee shall pay or transfer the balance to the father’s child mentioned above in equal shares;

(v) if at the time of the father’s death he has not complied with this obligation, this clause shall constitute a first charge against the father’s estate in an amount equivalent to the value of the policy;

(vi) the obligation regrading life insurance shall remain in place so long as the policy is available to the father through his employment and the child is eligible for child support, but the father shall be free to designate a new beneficiary and/or trustee after this obligation is over.

(h) The Respondent’s request for an order that the Applicant be obliged to provide transportation for his parenting time and that parenting time exchanges occur at his home is dismissed.

(i) The Applicant shall pay the Respondent his costs fixed in the amount of $750. This amount shall be paid to the Respondent by way of a credit against the retroactive adjustment to child support provided for above.

Bruhn, J.

Released: June 4, 2024

Schedule A: Support Calculations

Jason Male, 49, Resident of ON
Income
Employment income 150,155
Andrea Female, 41, Resident of ON
Income
Deegan v. Deegan: 2023
Prepared by: June 2 2024
Cautions/Overrides
Child Support (Table) - Jason's Income over $150,000; CSG Table Amount may be inappropriate.
Child Support Guidelines (CSG) Monthly $
Jason Andrea
Annual Guidelines Income 150,155 12,845
Employment income
(gross of $ 1,1!1 " SS of $$, %6)
Social assistance (no clawback)
(ACSD)
Adjustments to Income (CSG); Sch. III, ss.2-
Social assistance not attributed to party
(ACSD)
12,845
3,900
3,900
CSG Table Amount (current) 1,300 0
Child Support (Table) 1,300 0
Spousal Support Advisor& Guidelines (SSAG) Monthly $ Length of marriage/cohabitation: 6 years
Recipient's age at separation: 33 years
"With Child Support" Formula
Children Age Lives with Table Amt Claimed by
AD* 12 Andrea Yes Andrea Youngest child attends full time school 13 years and
finishes high school 13 years from the date of separation.
Dependant credit claimed by Andrea.
* denotes disabled child
The formula results in a range for spousal support of
$2,230 to $3,243 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 13 years and a maximum duration of 13 years from the date of separation.
SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptions.
Support Scenarios Monthly $ A. SSAG Low B. SSAG Mid C. SSAG High
Jason
Andrea
Jason
Andrea
Jason Andrea
Gross Income
12,513
1,395
12,513
1,395
12,513 1,395
Taxes and Deductions
(3,107)
(277)
(2,890)
(408)
(2,668) (569)
Benefits and Credits
0
928
0
860
0 808
Spousal Support
(2,230)
2,230
(2,731)
2,731
(3,243) 3,243
Child Support (Table)
(1,300)
1,300
(1,300)
1,300
(1,300) 1,300
Net Disposable Income (NDI)
5,876
5,576
5,592
5,878
5,302
6,177
adult in household child in household shared/summer child in household Payor's NDI/Contribution
53.76
2ercent o3 4Dl
51.36
47.76
47.76
51.26
48.26
CSG Special Expenses Apportioning %
75.7%
24.3%
72.0%
28.0%
68.2% 31.8%
After-tax Cost/Benefit of Spousal Support
(1,262)
1,813
(1,546)
2,182
(1,835) 2,533

2023 I June 2 2024
Support Scenarios Monthly $ D. $2,481 Spousal
Jason
Andrea
Gross Income
12,513
1,395
Taxes and Deductions
(2,998)
(340)
Benefits and Credits
0
890
Spousal Support
(2,481)
2,481
Child Support (Table)
(1,300)
1,300
Net Disposable Income (NDI)
5,734
5,726
adult in household
child in household
shared/summer child in household Payor's NDI/Contribution
Percent of NDl
50.0%
50.0%
CSG Special Expenses Apportioning %
73.9%
26.1%
After-tax Cost/Benefit of Spousal Support
(1,404)
2,001

Jason Male, 50, Resident of ON
Income
Deegan v. Deegan: 2024
Prepared by: June 2 2024
Employment income
(anticipated)
80,000
Andrea Female, 42, Resident of ON
Income
Spousal Support Advisory Guidelines (SSAG) Monthly $ Length of marriage/cohabitation: 6 years
Employment income
(anticipated employment & self- employment)
Social assistance (no clawback)
(ACSD)
Adjustments to Income (CSG); Sch. III, ss.2-
Social assistance not attributed to party
(ACSD)
16,000
3,900
3,900
Recipient's age at separation: 33 years
"With Child Support" Formula
The formula results in a range for spousal support of $229 to $794 per month for an indefinite (unspecified) duration,
Children Age Lives with Table Amt Claimed by
AD* 13 Andrea Yes Andrea Youngest child attends full time school 13 years and
finishes high school 13 years from the date of separation.
Dependant credit claimed by Andrea.
* denotes disabled child
subject to variation and possibly review, with a minimum duration of 13 years and a maximum duration of 13 years from the date of separation.
SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptions.
Support Scenarios Monthly $
A. SSAG Low
B. SSAG Mid
C. SSAG High
Jason Andrea
Jason Andrea
Jason Andrea
Gross Income
6,667 1,658
6,667 1,658
6,667 1,658
Taxes and Deductions
(1,618) 70
(1,536) 26
(1,438) (23)
Benefits and Credits
0 1,182
0 1,160
0 1,137
Spousal Support
(229) 229
(505) 505
(794) 794
Child Support (Table)
(745) 745
(745) 745
(745) 745
Net Disposable Income (NDI)
4,075
3,884
3,881
4,094
3,690 4,311
adult in household
child in household
shared/summer child in household Payor's NDI/Contribution
/ercent o0 1Dl
52.23
44.43
44.73
52.53
46.23 55.93
CSG Special Expenses Apportioning %
80.5% 19.5%
77.0% 23.0%
73.4% 26.6%
After-tax Cost/Benefit of Spousal Support
(161) 202
(355) 434
(546) 674

2024 I June 2 2024
Support Scenarios Monthly $ D. $367 Spousal
Jason Andrea
Gross Income
6,667 1,658
Taxes and Deductions
(1,577) 51
Benefits and Credits
0 1,171
Spousal Support
(367) 367
Child Support (Table)
(745) 745
Net Disposable Income (NDI)
3,978
3,992
adult in household
child in household
shared/summer child in household Payor's NDI/Contribution
Percent of NDl
49.9%
50.1%
CSG Special Expenses Apportioning %
78.7%
21.3%
After-tax Cost/Benefit of Spousal Support
(258) 321