Court File and Parties
Barrie Court File No.: FC-18-1400-01 Date: 2024-11-27 Superior Court of Justice – Ontario – Family Court
Re: Kim Marriott, Applicant /Responding Party -and- Marcel Marriott, Respondent/Moving Party
Before: The Honourable Madam Justice S.E. Healey
Counsel: Dale Brawn, for the Applicant/Responding Party Danielle Gendron, for the Respondent/Moving Party
Heard: November 22, 2024
Endorsement
Introduction
This Motion to Change Final Order
[1] This is the determination of the respondent father’s Form 15 Motion to Change dated September 27, 2021.
[2] The respondent seeks to change the child and spousal support terms of the final order of Olah J. dated August 21, 2019 (the “Final Order”). The order was made on consent, on the basis of final minutes of settlement (the “Final Minutes”).
[3] The parties were married on September 23, 2000 and separated on April 15, 2018.
[4] They have three children: Layten, born February 1, 2002, Jade, born July 1, 2003; and Carly born June 29, 2006. The children are presently 22, 21, and 18 years old.
[5] The respondent is a police officer with the Ontario Provincial Police. He is also licenced to sell real estate and works as a realtor.
[6] The applicant mother has been unemployed since March 2020.
Terms of the Final Order
[7] The relevant terms of the Final Order are paraphrased as follows:
(a) The parties share joint custody of the children and are to consult with each other regarding the children’s health, education and general welfare.
(b) In the event of a disagreement, the applicant shall make the final decision for Layten and Jade and the respondent shall make the final decision for Carly.
(c) The children shall have parenting time with the non-primary parent subject to the wishes of the children. The parties shall ensure that the siblings regularly spend time together, including mid-week family dinners as per the children’s wishes.
(d) For purposes of child support, the applicant’s income for 2018 is $26,821.50 and the respondent’s income is imputed at $126,918.
(e) Commencing September 1, 2019, the respondent shall pay child support to the applicant in the amount of $1,801 monthly (for Layten and Jade).
(f) Commencing September 1, 2019, the applicant shall pay child support to the respondent in the amount of $220 monthly (for Carly).
(g) The applicant shall be responsible for 23% and the respondent 77% of all agreed upon s. 7 expenses.
(h) In full satisfaction of the respondent’s spousal support obligations to the applicant, the respondent shall pay spousal support in the amount of $740 per month commencing September 1, 2019 until the last payment on April 1, 2029.
(i) Both the quantum and term of spousal support shall not be changed regardless of any material change in circumstances, save and except a catastrophic event involving the respondent losing his employment as a police officer, whereby his income is drastically reduced to other sources.
(j) The respondent shall withdraw his Answer/Claim and the applicant shall forthwith proceed to obtain a divorce.
[8] The order contains other provisions with respect to equalization of net family property, the matrimonial home, the parties’ investments, and the respondent’s pension.
[9] The Final Order is silent with respect to relocation.
[10] The Final Order is also silent as to when the child support is to terminate.
[11] It is the respondent’s uncontroverted evidence that he has paid all of the support required under the Final Order and no arrears are owed.
Order Sought
[12] By this motion to change, the respondent seeks an order:
(a) Adjusting the child support based upon a finding of each party’s income since 2019, commencing September 1, 2019;
(b) Adjusting child support on the basis of there being one dependant as of July 1, 2024, residing with the applicant;
(c) Requiring the applicant to pay the respondent $31,900 to reimburse him for travel expenses incurred to and including November 2024;
(d) Requiring the applicant to pay the respondent $800 per month in travel expenses to facilitate parenting time for as long as Carly is considered a child of the marriage and child support is payable;
(e) Terminating spousal support; and,
(f) Costs on a full recovery basis.
Changes in Circumstances Since the Final Order
[13] There have been several changes in the parties’ circumstances since the Final Order was made:
(a) The applicant relocated to Sudbury with Layten and Jade in July 2020.
(b) Immediately thereafter, the respondent started to commute to Sudbury twice monthly so that he could exercise his parenting time and to ensure Carly was able to spend time with her siblings, thereby incurring travel expenses.
(c) The applicant moved in with her new partner upon moving to Sudbury, with whom she continues to reside.
(d) In April 2022, Carly moved to Sudbury.
(e) In February 2023, Layten turned 21 and started an apprenticeship as an electrician. He then graduated from Cambrian College in May 2023.
(f) In May 2024, Jade graduated from college and began working at two part time jobs, and she turned 21 on July 1, 2024.
Respondent’s Position
[14] It is the respondent’s evidence that he commenced this motion to change because the applicant was resistant to adjusting child support amounts to the correct Table amount despite providing his annual tax information. Further, he had no idea that the applicant planned to relocate to Sudbury to live with her partner, and so this was not taken into account when negotiating the Final Minutes.
[15] The respondent explains why he seeks the relief that he does, as noted below.
Child Support
[16] The respondent seeks to change the child support payments to correspond with the parties’ incomes and the changes in the children’s residence, as well as changes in their status as children of the marriage.
[17] Based on their Notices of Assessment, the respondent asks that this court find that their incomes are as follows:
| Year | Applicant | Respondent |
|---|---|---|
| 2019 | $117,379 | $36,234 |
| 2020 | $118,095 | $36,037 |
| 2021 | $130,604 | $29,380 |
| 2022 | $197,130 | $22,213 |
| 2023 | $170,413 | $22,213 |
[18] The respondent disagrees with the applicant’s child support calculations set out in her affidavit dated May 2, 2024. It is his position that she has included his real estate commission income in addition to his T4 earnings from the Ontario Provincial Police, but in doing so, she has failed to take into account his proper and allowable expense deductions.
Travel Costs
[19] The respondent estimates that he spends approximately $800 per month on fuel for transportation to and from Sudbury and related travel costs (not accommodation), based on a review of his chequing account and credit cards. These costs were closer to $300 per month from 2020 to 2022 when Covid 19 restricted travel. Each return trip is just over 600 km.
[20] He has calculated the approximate cost of travel expenses from 2019 onward as follows:
(a) July to December 2020: $300 per month $ 1,800 (b) 2021: $300 per month $ 3,600 (c) 2022: January to March $300 per month and April to December $800 per month $ 8,100 (d) 2023: $800 per month $ 9,600 (e) January to November 2024: $800 per month $ 8,800 Total to date $31,900
[21] It is the respondent’s evidence that the applicant relocated to Sudbury with little or no conversation about the move or advance notice to him. This was contrary to the spirit of the Final Order, which contemplated the parties reside close enough for the siblings to regularly spend time together on weekends and during all holidays, as well as have the option of a mid-week family dinner.
[22] It is also his evidence that the applicant did not disclose her intention to move at the time that the Final Minutes were being negotiated.
[23] The applicant has not offered to bear any of the costs of travel or even to share in the driving.
Spousal Support Termination
[24] It is the respondent’s evidence that he did not know that the applicant was planning to move in with her common-law partner and believes that she intended to do so well before the Final Minutes were signed. She began to move her items to Sudbury shortly after the Minutes were signed and before the Final Order was issued on November 18, 2019. She did not disclose this at the time that the Final Minutes were being negotiated. It is his position that this represents bad faith on the part of the applicant, who knew that she would be sharing household expenses and reducing her costs of living, while the respondent was paying support.
[25] The respondent also asserts that the applicant has remained deliberately unemployed for four years, while being supported by him and her common-law spouse.
Undue Hardship
[26] The respondent advances an undue hardship claim. It is his evidence that the spousal and child support payments required under the Final Order, in addition to the increased costs associated with exercising his parenting time, have caused him to be in a monthly deficit position. He has taken out a second mortgage on his property to pay these monthly expenses.
[27] The respondent relies on subsection 10(2)(a) of the Federal Child Support Guidelines: “The spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouse or their children prior to the separation or to earn a living.”
[28] The respondent also relies on subsection 10(2)(c) of the Guidelines: “The spouse has unusually high expenses in relation to exercising parenting time with the child”.
[29] Additionally, when the children find themselves struggling with their finances, or fall short in their ability to pay their personal expenses, they reach out to him for assistance rather than the applicant. He has paid money directly to them of approximately $1,500 in 2023 and 2024.
Applicant’s Position
[30] The applicant relies on an affidavit dated May 2, 2024. She has not responded to the respondent’s affidavit served on November 8, 2024. The parties and their counsel attended the assignment court held on November 18, 2024 to address the scheduling of this motion. The endorsement does not indicate that a request was made by the applicant to extend the time for serving and filing a responding affidavit. In the result, much of the respondent’s evidence is uncontested.
[31] The applicant resists the request that spousal support be terminated earlier than set out in the Final Order. The quantum and duration of spousal support was calculated after taking into consideration the length of the relationship, the division of property, and the fact that by including a termination date the respondent was able to avoid the prospect of paying spousal support for an indefinite period. He also has the benefit of the spousal support not fluctuating with his income.
[32] Mr. Brawn submits that if the spousal support provisions of the Final Minutes are set aside, his client will be entitled to renegotiate the support payments based on the increases in the respondent’s income.
[33] The applicant states that the respondent’s income has risen from the amount imputed to him at the time of the Final Order to more than $190,000. She has not responded to his allegation that she has failed to deduct his business expenses. However, in submissions Mr. Brawn conceded that the respondent’s income numbers should be used by the court.
[34] Further, it is her position that Layten did not graduate with a degree in electrical engineering and begin working full time until May, 2023, and accordingly child support should not end for him until May 1, 2023. Also, Jade continues to reside with her. She has not responded to the assertion that Jade is no longer a child of the marriage.
[35] It is her position that according to the financial disclosure made between the parties, as of June 2024 the respondent owes arrears of child support in the amount of $41,506.
[36] The applicant seeks orders stipulating that:
(a) The respondent owes Guideline child support for Jade and Carly in the amount of $2,563 per month commencing June 1, 2024, based on the respondent’s 2023 income of $190,534.
(b) The arrears of child support owed by the respondent to the applicant fixed in the amount of $41,506 as of June 1, 2024, to be paid in the amount of $400 per month commencing June 1, 2024 until the arrears are paid in full.
(c) The primary residence of Carly is with the applicant.
[37] The applicant has not addressed her planned move to Sudbury, or the financial burden that this has imposed on the respondent, in her affidavit.
Analysis
Spousal Support
[38] This is a proceeding to change the Final Order by ordering that spousal support terminate earlier than set out in the Final Order. The Motion to Change does not ask for an order setting aside the Final Minutes on the basis of the bad faith manner in which the agreement was negotiated, or that its result is unconscionable, pursuant to s. 56(4) of the Family Law Act. While the respondent was self represented when he began his motion to change, he has had experienced legal counsel for some time and therefore it must be assumed that his options to amend the Motion to Change have been reviewed and evaluated.
[39] The Final Order makes it clear that there is only one circumstance in which spousal support can be varied, which has not occurred.
[40] Accordingly, the terms of the Final Order govern. The terms related to spousal support are final and cannot be changed.
Child Support
[41] The Motion to Change seeks a retroactive change back to September 2019 to reflect the parties’ actual incomes. It is noted that the Final Order was made part way through the year, and accordingly the respondent’s 2019 income, which fluctuates with overtime and commissions, was uncertain when the Final Minutes were signed.
[42] This court finds that the incomes used to recalculate the child support are, as conceded, as set out in the chart attached as Exhibit “D” to the respondent’s affidavit.
[43] A proper calculation requires making findings as to whether Layten and Jade have ceased being children of the marriage, and if so, when.
[44] Under the Divorce Act, a child remains a child of the marriage provided that,
(a) The child is under the age of majority and has not withdrawn from their parents’ charge; or
(b) The child has reached the age of majority but is unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[45] Pursuant to s. 3(2) of the Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is,
(a) The amount determined by applying the Guidelines as if the child were under the age of majority;
(b) If the court considers that approach to be inappropriate, the amount that it considers appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[46] Under the Family Law Act, a dependent, unmarried child is eligible for support provided that the child,
(a) Is a minor;
(b) Is enrolled in a full-time program of education; or
(c) Is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
[47] I find that the parties’ eldest child, Layten, was eligible for child support until he graduated from his educational program. Accordingly, child support for him would terminate on or prior to May 1, 2023.
[48] I find that Jade graduated from her full-time program of education in May 2024, and accordingly support for her would terminate on or prior to June 1, 2024.
[49] Carly remains a child of the marriage. I also find on the uncontested facts that she moved to Sudbury effective May 2022, triggering a new support calculation with no offset.
[50] With those findings, the only alteration that I would make to the chart submitted by the respondent as Exhibit E to his affidavit is as follows:
(a) For 2023, there were four months in which the child support was payable for three children, and eight months for which it was payable for two children, resulting in a change from $27,864 to $30,560.
(b) For 2024, to and including November 1, there were five months in which the child support was payable for two children and six months in which it was payable for one child, resulting in a change from $19,435 to $20,855.
(c) From September 1, 2019 to and including November 1, 2024, the respondent should have paid child support totalling $129,215.
[51] The respondent’s evidence is that he has paid a total in combined spousal and child support to November 1, 2024 of $145,923. This is a total of 63 months. Over that time, he has paid $740 monthly in spousal support, totalling $46,620. Deducting that amount from the total paid, he has paid $99,303 in child support.
[52] For the 62 months in question, there has been an underpayment of $29,912 in child support payments made to the applicant.
Travelling Costs
[53] I accept the uncontested evidence of the respondent that he has travelled twice per month to Sudbury to exercise his parenting time, other than for periods when Covid restricted more frequent travel. I also accept that each round-trip is just over 600 km, and the wear and tear on his vehicle is over 1,200 km per month now that the trips have become regularized.
[54] I also accept the respondent’s uncontested evidence that the applicant has refused to recognize this additional burden or share in the transportation costs. This has been increasingly unaffordable for the respondent with rising gas costs. There is no reason to reject the figure of $31,900 for travel costs that has been provided by the respondent. Not all of this is a gas expense; there are additional costs associated with vehicle use and mileage, expenses related to meals out and miscellaneous expenses that accompany travel.
[55] There is ample evidence that the respondent has become increasingly in debt, and that the additional costs associated with his parenting time have contributed to his financial burden.
[56] The respondent asks that the applicant be made to bear all of these costs, both past and going forward.
[57] While normally the costs of parenting time are expected to be borne in some shared manner, the facts of this case compel a contrary decision. I find the applicant’s move to Sudbury, without consulting the respondent or obtaining his consent, with next to no notice, was egregious. It unilaterally interrupted a court ordered parenting regime. It was contrary to the terms and spirit of the Final Order, which obviously contemplated that the parties would be close enough that the children could spend time with both parents in the middle of the week. It created a geographical gulf between the siblings and reduced the amount of time that they could spend together.
[58] The applicant’s relocation occurred before the 2020 reforms to the Divorce Act came into effect. Nonetheless, in a joint custody scenario it is obvious that such a significant decision should entail much discussion, should not be made unilaterally and, failing agreement, requires an order from the court. The terms of the Final Order that gave the applicant final decision making authority for the older children did not give her the authority to make a decision that equally affected Carly’s life in such a significant way.
[59] Not surprisingly, Carly eventually decided to move. The way in which Carly’s move occurred is also disturbing to the court. Without prior notice or consultation, Carly was removed from her home in Barrie while the respondent was at work.
[60] In contrast, and in the best interests of the children, the respondent has never missed a support payment and is working at two careers in order to try to make ends meet. And his financial statement shows that he is not winning that battle. He is deeply in debt and has had to obtain a second mortgage. The time spent commuting to Sudbury also affects the amount of time that the respondent can devote to his real estate career.
[61] The applicant has not offered to share these costs even though she has resided with her common-law partner since July 2020, sharing living expenses and having the benefit of his earned income of over $90,000 annually.
Undue Hardship
[62] However, in order to reduce child support retroactively due to the increased expenses connected with the exercise of parenting time requires that the court find that there is undue hardship: s. 10(2)(a) of the Guidelines.
[63] In ordering child support that is less than the table amount based on undue hardship, the court must consider the standard of living of each household. If the respondent has a higher standard of living than the applicant’s household, his request must be denied: s. 10(3) of the Guidelines. In comparing standards of living the court may, but is not required to, use the household standard of living test set out in Schedule II of the Guidelines.
[64] The Schedule II calculations were not provided to the court.
[65] An examination of the respondent’s financial statement indicates that he is overdrawn in every bank account. It indicates that his total outstanding debt including both mortgages, lines of credit, outstanding credit card balances and loans total $528,452.65. His assets are valued at $832,922.93. His monthly expenses are $14,129.
[66] The applicant’s monthly expenses are $4,745. She has investments, savings plans and bank accounts totalling $475,200. She has borrowed $77,000 for house renovations, even though she does not own a home, and $5,000 for legal fees. Her partner earns $91,297 annually and contributes $5,000 per month towards the household expenses.
[67] Still, most of these facts are irrelevant, as the hardship calculation focuses on income, not assets – and in this situation, the amount of the cost of travel.
[68] The respondent has included Divorcemate calculations in his material for the relevant years. The figures are not likely to represent the respective households’ standard of living because the net disposable income figures do not take into account the contribution of $5,000 from the applicant’s partner, and the calculations use spousal support figures other than the amount in the Final Order.
[69] The onus is on the party asserting undue hardship to prove his case. This court is not satisfied that he has done so.
[70] But that does not end the matter. It is still a more than fair result to require the applicant to bear the respondent’s additional travel costs in these circumstances, which are well above what the respondent could have been contemplating at the time that he signed the Final Minutes. Her decision alone was the cause of these costs and so she should bear the consequences of them.
[71] I find that the applicant owes a debt to the respondent of $31,900 as of today. The full amount of retroactive child support owed to the applicant shall be credited in satisfaction of part of this debt. The retroactive child support owing to the applicant shall be reduced to nil. After this credit, there remains $1,988 owing by the applicant to the respondent, which shall be repaid to him at a rate of $250 per month commencing December 1, 2024, the last payment being due August 1, 2025 in the amount of $238.
[72] These additional travel costs are anticipated to continue until Carly is no longer a child of the marriage. However, I have no information on how long her educational program is expected to take so cannot project into the future.
[73] Going forward, the applicant shall share in the additional costs required by the this move by driving Carly (and any other of their children who choose to attend) to Barrie one weekend per month so that the respondent can have parenting time, until Carly has graduated from a post-secondary program of education, provided that she remains enrolled on a full-time basis.
Decision
[74] This court orders:
The Order of Olah J. dated August 21, 2019 shall be changed as follows: (a) Support for the child Layten Marriott born February 1, 2002 terminated effective May 1, 2023. (b) Support for the child Jade Marriott, born July 1, 2003 terminated effective June 1, 2024. (c) Commencing June 1, 2024, the respondent shall pay child support to the applicant for one child, Carly Marriott born June 29, 2006 in the amount of $1,405 per month based on an estimated annual income for 2024 of $164,775.37.
Carly Marriott’s primary residence is with the applicant.
As of November 1, 2024, the respondent owes retroactive child support to the applicant in the amount of $29,912, which is reduced to nil as a result of the debt owing by the applicant to the respondent for travelling expenses.
As of November 1, 2024, the applicant owes the respondent the sum of $31,900 to reimburse him for travelling expenses associated with his parenting time, reduced to $1,988 after crediting the retroactive child support notionally owed by the respondent.
The applicant shall pay the amount of $1,988 to the respondent in seven equal payments of $250 monthly commencing December 1, 2024, with the last payment of $238 due and owing on August 31, 2025.
There are no arrears of child support or retroactive child support owing by the respondent as of the date of this order.
Commencing December 1, 2024 the applicant shall transport Carly (and any other of their children who choose to attend) to Barrie one weekend per month for the respondent’s parenting time until Carly has graduated from a post-secondary program of education, provided that she remains enrolled on a full time basis.
Post judgment interest shall accrue on any amounts owing under this order.
Costs
[75] Counsel are to upload their cost outlines and any offers to settle to Case Centre upon receipt of these Reasons. If any additional submissions are required by the court, further direction will be provided to counsel.
Healey, J. Released: November 27, 2024