Court File and Parties
COURT FILE NO.: FC-17-00000144-0003 DATE: 2024-10-21 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
David John Cameron Applicant P. MacLeod for the Applicant
- and -
Susan Edith Eileen Cameron Self-Represented Respondent
HEARD: October 2, 7, 8, and 9, 2024
THE HONOURABLE JUSTICE J. R. HENDERSON
Reasons for Judgment
[1] The applicant and the respondent both bring motions to change the existing final orders regarding spousal support, child support, and section 7 expenses.
[2] The parties were married in May 1993 and separated in January 2009. There is an issue as to the length of time that the parties cohabited prior to the marriage. The parties have four children, the youngest of which is Adam who was born on March 2, 2003.
[3] The parties entered into a separation agreement in June 2009, and a court action was commenced in approximately 2017 to deal with requests for relief from both parties.
[4] Justice Scott made a final order dated February 10, 2022 (the “2022 order”) whereby the applicant was ordered to pay child support for Adam in the amount of $966 per month commencing January 1, 2022 and spousal support in the amount of $2,882 per month commencing January 1, 2022. These amounts were based upon the applicant’s annual income of $107,166. It is significant to note that the 2022 order required the applicant to pay the total amount of $3,848 per month for support, and that all payments were to be made through the Family Responsibility Office (the “FRO”).
[5] It is not disputed that Adam completed school in June 2022 and commenced working on a full-time basis in August 2022. Justice Walters made a final order dated October 26, 2023 (the “2023 order”), whereby child support for Adam was terminated effective January 1, 2023. The 2023 order further provided that any overpayment of child support as a result of that order was deemed to be spousal support.
[6] Despite the provisions in the 2023 order, from January 1, 2022 to the present date the applicant has continued to pay the sum of $3,848 per month to the FRO in accordance with the 2022 order.
[7] Unfortunately, the FRO has been unable to determine how much of the money it was receiving from the applicant was spousal support and how much was child support. Therefore, for approximately six months, the FRO simply received money from the applicant and did not pay it out to the respondent.
[8] At present, the applicant continues to pay the sum of $3,848 per month to the FRO, but each month the FRO only pays to the respondent the sum of $2,882 per month, being the amount of spousal support set out in the 2022 order. Therefore, as of October 3, 2024, the FRO was holding more than $19,000 that has been paid by the applicant but not disbursed. That amount may have increased since that date.
[9] The applicant’s income increased significantly in 2022, 2023, and 2024. Therefore, it is appropriate to retroactively increase the amount of spousal support for a period of time. Further complicating matters is the fact that the applicant, who is now 64 years of age, will retire from his job at Dofasco as of December 31, 2024. Thereafter, his income will decrease, and if spousal support is still payable, the amount of spousal support should be decreased.
[10] Finally, there are issues with respect to section 7 expenses related to the education expenses of three of the children of the parties, namely Heather, Jared, and Adam.
The Positions of the Parties
[11] The parties agree that there have been material changes in circumstances that justify changes to the existing orders.
[12] The applicant submits that spousal support should terminate as of December 31, 2024, as he will have paid spousal support for 16 years at that point. The applicant submits that this would be fair as the parties cohabited during their marriage for about 15 ½ years. The respondent takes the position that spousal support should not be terminated as she is disabled and is not able to earn an income. Moreover, the respondent submits that the period of cohabitation is closer to 19 years than 15 ½ years.
[13] After I determine the time period for which spousal support is payable, both parties request that I make a retroactive order changing the amounts payable at various times.
[14] The respondent also requests that the funds that are currently being held by the FRO be paid out to her, as these funds were intended to provide her with spousal support. The applicant does not disagree with that request.
[15] Both parties have asked that I consider making an order for a lump sum payment of spousal support if it is appropriate after I have made my decisions regarding periodic spousal support.
[16] The section 7 expense issue is not particularly easy as the children have been out of school for several years. The respondent made broad submissions as to the education expenses of the three children in issue, but the documentation provided does not substantiate all of the expenses suggested by the respondent. It is not disputed that the section 7 expenses should be paid on a pro rata basis.
Termination of Spousal Support
[17] The general rule is that the duration of spousal support payments should not exceed the length of time in which the parties cohabited in a domestic relationship. There are exceptions to the general rule in consideration of factors such as the payor’s capacity to provide support, the recipient’s ability or inability to earn an income, the recipient’s obligation to contribute to her own support, the effect on the recipient’s earning capacity of the responsibilities assumed during cohabitation, the age and physical and mental health of both parties, and the reasonableness of the efforts made by the recipient to obtain employment.
[18] In the present case, I find that the respondent depended upon the applicant for support, in whole or in part, from the date on which they first started to live together in April 1990. I also find that the respondent was wholly dependent upon the applicant for support from the date of their marriage in May 1993 to the date of the separation in January 2009.
[19] The applicant was steadily employed at Dofasco throughout the marriage. During most of that time, the respondent was not employed, as the respondent stayed at home to homeschool the four children until each child entered high school.
[20] I find that the respondent remained unemployed after the separation. Then, more than four years after the separation, the respondent was involved in a motor vehicle accident in July 2013 that resulted in serious injuries to her left knee, right shoulder, and both arms and hands. I find that she continues to have medical difficulties with respect to these injuries such that she is unable to earn an income.
[21] I find that the respondent made a claim for CPP disability benefits after her motor vehicle accident, but her application was declined for two reasons. First, she did not qualify for benefits because she had not made sufficient CPP contributions within the designated time frame and she could not rely on the applicant’s CPP contributions because of the lapse of time since the separation. Second, she did not meet the definition of “disability” as set out in the legislation.
[22] The parties equalized their family assets in 2009 as documented in their separation agreement. At that time, the applicant accounted for his interest in his employer’s retirement and deferred profit-sharing plans, and the respondent acquired sole ownership of the matrimonial home. The respondent continues to reside in that home. There is a modest mortgage on the home.
[23] The respondent is currently 56 years old. She has no employment income. I accept that the respondent’s annual income for each of the relevant years is approximately $2,000, most of which is investment income.
[24] I find that since the separation the respondent has relied on the applicant to pay spousal support which she uses to pay her living expenses, including the mortgage on her home. I find that the respondent has some small investments, and she has access to a line of credit and credit cards. I accept that the respondent has borrowed money from a family member to pay some of her living expenses.
[25] The applicant has earned a good income from Dofasco for many years. I accept that it is reasonable for the applicant to retire from his employment as of December 31, 2024, as he turns 65 years of age in November 2024. Thereafter, he will draw an income from his retirement funds.
[26] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, the Supreme Court of Canada acknowledged that a disability that arises after marriage is a factor in determining entitlement to spousal support. That is, a spouse may have an obligation to contribute to the needs of a former spouse where they have the capacity to pay even in the absence of a contractual or compensatory foundation. However, it is clear in Bracklow that there is no hard and fast rule. The trial judge must consider the relevant factors and exercise his or her discretion in a manner that strikes a balance that best achieves justice in a particular case.
[27] Given the factors in the present case, I find that it is fair and just for spousal support to continue for a period that is equal to the total amount of time that the parties cohabited, both pre-marriage and post-marriage. Therefore, I reject the applicant’s request to terminate spousal support as of December 31, 2024.
[28] I find that the parties cohabited from April 1990 to December 1991 (20 months). Then, I find that there was a period of separation during which the respondent resided in her own residence. The parties started to cohabit again in approximately April 1992, and cohabited continuously thereafter until their separation until January 2009. I find that in total the parties cohabited in a domestic relationship for a total of 18 years and 4 months.
[29] I do not accept the respondent’s suggestion that I should include the five months from January 2009 to May 2009 in my calculation of the period of cohabitation. Although the parties lived under the same roof during this period, they both clearly understood that they were living separate and apart.
[30] Considering all these factors, I find that the applicant should pay spousal support to the respondent until April 30, 2027, and thereafter spousal support should terminate. The consequence of this finding is that the applicant will pay spousal support for total of 18 years and 4 months post separation.
The Amount of Spousal Support
[31] As the applicant’s income increased substantially in the calendar year 2022, the amount of spousal support should be increased as of January 1, 2023.
[32] I reject the respondent’s request that the applicant’s income for a given calendar year be used to calculate spousal support for the calendar year that is two years after that given calendar year. I acknowledge that this method of calculating support may have been used in the past, but at this point the court has the relevant information to make a more realistic order. Therefore, I will use the applicant’s income for a given calendar year to calculate spousal support that commences on January 1 of the following year.
[33] The applicant’s 2024 income has not yet been fully determined, but I accept his evidence that his income for 2024 will be approximately $138,000. I also accept the calculations that show that the applicant’s income after he retires will be approximately $74,000 annually.
[34] Therefore, I calculate spousal support, using the mid-range figures set out in the Spousal Support Advisory Guidelines, as follows:
For 2023 – Based on applicant’s income of $153,255 in 2022, spousal support is payable in the amount of $4,043 per month.
For 2024 – Based on applicant’s income of $154,382 in 2023, spousal support is payable in the amount of $4,073 per month.
For 2025 – Based on applicant’s estimated income of $138,000 in 2024, spousal support is payable in the amount of $3,635 per month.
For 2026 – Based on applicant’s income of $74,000, spousal support is payable in the amount of $1,925 per month.
For 2027 from January 1 to April 30 - Based on applicant’s income of $74,000, spousal support is payable in the amount of $1,925 per month.
Arrears of Spousal Support and the FRO Money
[35] I find that the applicant has paid $3,848 per month to the FRO for support since at least January 1, 2023. I find that all of the money paid by the applicant to the FRO is attributable to spousal support. There is no justiciable reason for the FRO to continue to withhold from the respondent any of the money paid to the FRO by the applicant. I therefore order that all money received by the FRO from the applicant is to be forthwith paid out to the respondent as spousal support.
[36] In calculating the arrears, I will assume that the applicant will make payments of $3,848 to the FRO on November 1 and December 1, 2024. If that has not been done by the time this decision is released, I order that the applicant make those payments on those dates as spousal support.
[37] I calculate the spousal support arrears owed by the applicant up to December 31, 2024, as follows:
For 2023 – $4,043 less $3,848 equals $195 times 12 equals $2,340.
For 2024 – $4,073 less $3,848 equals $225 times 12 equals $2,700.
[38] Therefore, as of December 31, 2024, I find that the applicant owes spousal support arrears to the respondent in the total amount of $5,040.
[39] For these reasons I make the following orders:
i. All money currently held by the FRO that has been paid to the FRO by the applicant shall forthwith be released to the respondent as spousal support.
ii. The applicant shall make spousal support payments to the FRO in the amount of $3,848 on November 1 and December 1, 2024.
iii. The applicant shall pay the arrears of spousal support to the respondent in the amount of $5,040, payable within 90 days.
iv. Commencing January 1, 2025, the applicant shall pay spousal support to the respondent in the amount of $3,635 per month on the first day of each and every month.
v. Commencing January 1, 2026, and continuing to April 30, 2027, the applicant shall pay spousal support to the respondent in the amount of $1,925 per month on the first day of each and every month, and thereafter spousal support shall terminate.
vi. All of the above-mentioned payments shall be made through the FRO.
[40] I accept that it may benefit both parties if the periodic spousal support is paid by way of a lump sum. At trial, neither party made detailed submissions or provided evidence as to the nature or amount of the lump sum. Now that the parties have my decision as to the support obligations, I will give the parties an opportunity to call further evidence and make submissions on this issue, as set out later in this decision.
Section 7 Expenses
[41] At trial, the section 7 expenses for three of the parties’ children were discussed.
[42] Regarding Heather, I accept the testimony of the applicant that the applicant and Heather have jointly signed a loan agreement to cover Heather’s education expenses. Both the applicant and Heather remain co-debtors on that loan. The respondent has not provided any evidence that she contributed to Heather’s education expense. Therefore, I make no order for section 7 expenses regarding Heather.
[43] Regarding Adam, I accept the evidence that Adam worked part-time while attending Niagara College, and that he has worked full-time since his graduation. I find that Adam paid for most of his own education expenses.
[44] The respondent did not provide any evidence that she directly paid any of Adam’s education expenses, but she did provide evidence, which I accept, that she contributed to a RESP for Adam and that she withdrew the sum of $5,339 from that RESP account. I accept her evidence that this money was used for Adam’s education.
[45] The documents show that the money that was paid out of that RESP for Adam’s education consisted of contributions from the respondent in the amount of $4,566.84, plus the statutory grants. Therefore, I find that the applicant should reimburse the respondent for his pro rata share of the contributions made by the respondent to the RESP account that was used for Adam’s education.
[46] On a pro rata basis, in 2022, the applicant should have paid 98% of the section 7 expenses for Adam. Therefore, I order that the applicant reimburse the respondent for his share of Adam’s education expenses in the amount of $4,475.50, payable within 90 days.
[47] Regarding Jared, the evidence suggests that Jared attended at a post-secondary school in approximately 2017 or 2018. There are some difficulties with respondent’s claim for education expenses for Jared. The first problem is that the parties engaged in a trial in 2018 at which the respondent made section 7 expense claims for Jared. At the conclusion of the trial, Justice Edwards fixed arrears of child support at $20,000 as of December 31, 2018. It is unclear as to whether Justice Edwards intended to include section 7 expenses in that order.
[48] The second problem is that there is no evidence that the respondent has paid any money toward Jared’s education. The only evidence before the court is that Jared has a student loan that remains outstanding. The best evidence is that Jared is the debtor on the student loan; neither the respondent nor the applicant has any liability under that student loan.
[49] Therefore, I will make no order for section 7 expenses for Jared.
Conclusion
[50] For the above-mentioned reasons, in summary, I make the following orders:
- All money currently held by the FRO that has been paid to the FRO by the applicant shall forthwith be released to the respondent as spousal support.
- The applicant shall make spousal support payments to the FRO in the amount of $3,848 on November 1 and December 1, 2024.
- The applicant shall pay the arrears of spousal support to the respondent in the amount of $5,040, payable within 90 days.
- Commencing January 1, 2025, the applicant shall pay spousal support to the respondent in the amount of $3,635 per month on the first day of each and every month.
- Commencing January 1, 2026, and continuing to April 30, 2027, the applicant shall pay spousal support to the respondent in the amount of $1,925 per month on the first day of each and every month.
- As of April 30, 2027, the applicant’s obligation to pay spousal support to the respondent is terminated.
- All of the above-mentioned payments will be made through the FRO office.
- I order that the applicant reimburse the respondent for his share of Adam’s education expenses in the amount of $4,475.50, payable within 90 days.
- If either party requests that the periodic support ordered herein be paid as a lump sum, that party shall within 30 days notify the other party and the trial co-ordinator at St. Catharines. In such case, the trial co-ordinator will schedule a continuation of the trial before Justice Henderson for the purpose of considering evidence and submissions as to the amount and nature of the lump sum, and whether it is appropriate in this case.
[51] If either party requests costs of this trial, I direct that the party seeking relief shall deliver written submissions to the Judicial Assistants at: St.Catharines.SCJJA@ontario.ca within 30 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the costs issues as between themselves.
J. R Henderson, J. Date Released: October 21, 2024