McMorran v McMorran, 2016 ABQB 532

Court of Queen’s Bench of Alberta Citation: McMorran v McMorran, 2016 ABQB 532 Date: 20161003 Docket: 4803 118052 Registry: Edmonton Between: Scott Menzies McMorran Plaintiff - and - Catherine McMorran Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Yungwirth _______________________________________________________ Introduction [ 1 ] This

summary trial concerns an application by Catherine McMorran (now Catherine Benincasa), for retroactive and ongoing spousal support and other relief. [ 2 ] Following a high conflict divorce that required 25 Orders and a separate matrimonial property trial to that point, the parties signed Minutes of Settlement in December of 2003. That agreement addressed the parenting, child support and spousal support issues and was incorporated into a Consent Corollary Relief Order granted December 15, 2003. [ 3 ] The agreement and order provided for the payment by Mr. McMorran to Ms.

McMorran of a lump sum of $13,100 in full and final settlement of Ms. McMorran’s spousal support claims. This amount was paid as agreed. [ 4 ] Ms. Benincasa asks the court to set aside the agreement and Order as it relates to spousal support based on the two stage analysis set out in Miglin v Miglin , 2003 SCC 24 , [2003] 1SCR 303. She seeks spousal support retroactive to January of 2004 in the total

sum of $93,082.50, which she asks be paid in a lump sum. She also seeks ongoing spousal support of $1,255 per month. [5] Alternatively, Ms. Benincasa argues that there has been a change in circumstances since the granting of the December 15,2003 Order, sufficient to support a variation of the spousal support order based on the test set out in Willick v Willick, ,[1994] 3 SCR 670. [6] Ms. Benincasa also applies for child support for 2004 and 2005, for

section 7 expenses she paid between 2009 and 2015, andfor repayment to her, of RESP money that she paid to the parties’ two adult children. These additional claims total $45,773.03. Issues [7] The issues for determination by the court are: 1. Is there a basis to set aside (or override) the agreement, based on the tests set out in Miglin or on any other basis? 2. Has the test for a change in circumstances from Willick been met and if so, what variation to the existing order ought to be madein light of the change in circumstances? 3. Is Ms. Benincasa entitled to retroactive child support for 2004 and 2005 or to payment for

section 7 expenses incurred between2009 and 2015? 4. Is Ms. Benincasa entitled to be repaid for RESP monies that she paid to the adult children? Background Facts [8] The parties were married on July 26, 1986 at Edmonton, Alberta. At the date of marriage, Ms. Benincasa was 27 years ofage and was working as a teacher, having received her B.Ed. in 1980. [9] At the date of marriage, Mr. McMorran was 24 years of age and had been working as a police officer since 1981. [10] The parties had two children; Christopher, born January 23, 1989, and Caterina, born August 1, 1991. [11] During the marriage, Ms.

Benincasa suffered from clinical depression and was off work for that reason for three months inOctober of 1986 and again starting in November of 1987. [12] In September of 1989 when Christopher was born, the parties agreed that Ms. Benincasa would give up her teaching positionto stay home with Christopher. She remained out of the workforce for the subsequent nine years until the parties separated in mid-1998and for about four years following the separation – a period of approximately 15 years in total. [13] The children – ages seven and nine respectively at the time of separation, initially lived with Ms.

Benincasa following theseparation. Then, on November 7, 2001, following a custody assessment ordered by the court, the court transferred custody of thechildren to Mr. McMorran. Over the subsequent two year period, the children remained in the care of Mr. McMorran and Ms. Benincasamade efforts to get them back. Based on the

summary provided by counsel, there were 12 Orders granted between November 7, 2001and December 7, 2003, that were related to parenting time for Ms. Benincasa and the parenting issues. [14] Medical evidence provided in the expert report of Dr. D.D. Semeniuk, M.D., C.C.F.P for this

summary trial., confirmed thatin approximately 2001, Ms. Benincasa was diagnosed with Charcot-Marie-Tooth disease, which is a hereditary progressive degenerativeneuromuscular disease that causes slow loss of normal use of arms and legs. The report indicates that each patient is different so that thephysician cannot exactly predict the progression of the disease. [15] The same report confirms that Ms. Benincasa suffered from depression since Dr. Semeniuk knew her starting in 2000. It appears that this condition existed as far back as 1986 when Ms.

Benincasa was off work forthis reason. [16] The matrimonial property issues went to trial in April of 2002 and a Divorce Judgment was also granted at that time. [17] A trial for the parenting and support issues was scheduled to commence on December 8, 2003. [18] It is against this backdrop that the parties negotiated and signed the Minutes of Settlement dealing with the parenting andsupport issues on December 7, 2003. [19] Following the signing of the agreement, the children went to live with Ms. Benincasa.

Christopher returned to live at Mr.McMorran’s home in March of 2005, at which time Catarina began to live in both homes in a shared parenting arrangement. Catarinabegan living primarily with Mr. McMorran in January of 2006. [20] Mr. McMorran’s obligation to pay child support for both children was suspended effective April 15, 2005. On March 28,2005, Moen, J ordered both parties to provide full financial disclosure for the previous three years (including all claims for s. 7expenses).

At that time, the parties were also directed to attend a Child Support Resolution meeting set for April 21, 2005 to attempt to resolve ongoing child support, retroactivity, and arrears adjustments. If the matter was not resolved at thatmeeting, Mr. McMorran was given leave to bring an application to vary child support. The child support matters were not resolved at theChild Support Resolution meeting. [21] On January 29, 2007, Moen, J ordered Ms. Benincasa to pay child support of $459 per month beginning January 1, 2007. Inote that there is no evidence before me, that Ms.

Benincasa paid child support between January of 2006 and January of 2007 when bothchildren were living with Mr. McMorran. For the January 29, 2007 order, Ms. Benincasa’s guideline income was set at $12,991 for 2005

and $31,630 for 2006 and 2007. The court also determined that because Mr. McMorran was not claiming any s. 7 expenses, his income was not relevant to the order. [ 22 ] Also on January 29, 2007, Moen, J ordered both parties to make written submissions detailing exactly what each party was expecting for retroactive child support, detailing their income information, and when the children resided with each of them.

The order provided that “thereafter, there will be a calculation of arrears for the years 2003, 2004, and 2005.” Nothing further appears to have happened with regard to the retroactive support, notwithstanding that Moen, J continued to be the case managing justice until September 22, 2010. [ 23 ] Christopher moved out of Mr. McMorran’s home in 2009 and completed his education by the spring of 2012. Between scholarships, student loans and employment (he estimated that he earned $20,000 to $30,000 each year), he did not rely on his parents for financial support after 2009.

After court intervention over a two year period and by court order granted in January of 2009, Christopher also received approximately $17,000 from money in the control of Ms. Benincasa that had been set aside for him by his grandparents. [ 24 ] Catarina moved out of Mr. McMorran’s home and to Victoria, BC for her post-secondary schooling, which she completed in 2015. The exact date that she moved out is not clear. Though there is little evidence regarding how Catarina supported herself while in her post-secondary education, Mr.

McMorran’s evidence is that neither child was dependent on him for money for their post-secondary education and that both children worked while they were in school. In 2009, Catarina also received a similar payment to that received by Christopher from the money that had been set aside for her by her grandparents. [ 25 ] Following the separation, Ms. Benincasa contributed $34,000 to an RESP account for the children (most of which she says was borrowed). With the government contributions, the account grew to $40,800. It is unclear as to exactly when and how much was paid to the children from these funds. Ms.

Benincasa attaches as Exhibit 54 to her February 10, 2015 Affidavit, copies of cheques made payable to each of the children between 2010 and 2015. Only two of these cheques refer to the RESP and three refer to money from grandparents. There is no evidence that these funds were requested by the children. There is evidence from Christopher, which is not disputed by Ms. Benincasa, that she told Christopher that the payments that she gave him were gifts from her to him. [ 26 ] Ms.

Benincasa’s evidence is that “the children were constantly asking me for money as they could not get money from the Plaintiff for their education”. This evidence is inconsistent with both Mr. McMorran’s evidence and with Christopher’s evidence. There is no evidence directly from Catarina on this point. [ 27 ] At no point after the children moved out of his home and commenced their post-secondary education, did Mr. McMorran seek child support from Ms. Benincasa. Mr.

McMorran’s Affidavit of October 1, 2015 says that Caterina had not been dependent for the past five years and Christopher had not been dependent for the past seven years. Analysis 1. Is there a basis to set aside (or override) the agreement, based on the two stage analysis set out in Miglin or on any other basis? [ 28 ] Ms. Benincasa is asking the court to “set aside” both the Minutes of Settlement and the Consent Corollary Relief Order of December 15, 2003 “as to spousal support”. [ 29 ] She does not rely on the general doctrines of contract law such as unconscionability or undue influence.

Rather, she relies on the two stage analysis set out in Miglin , and submits that the Miglin analysis must still be applied, notwithstanding that her application is, in effect, an application to vary a previous order for spousal support. [ 30 ] In the case of LMP v LS , 2011 SCC 64 , [2011] 3 SCR 775, the Supreme Court of Canada addressed the general issue of the applicability of Miglin in the context of variation applications under s. 17 of the Divorce Act , RSC, 1985, c.3 (2 nd Supp) The majority of the court concluded that the Divorce Act authorizes courts to vary the spousal support terms, either on an initial application for support under s. 15.2 or on an application to vary an existing court order under s. 17 , whether or not that order incorporates a spousal support agreement. [ 31 ] The Court stated at para 20 that: In order to balance the parties’ intentions with the objectives of the Divorce Act , the court in Miglin outlined a two-stage test for initial support orders under s. 15.2.

The first step examines the process leading to and the substance of the agreement. The second requires a determination of “the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act”. [ 32 ] The Court went on to point out that in an initial application under s. 15.2, the factors to be considered in

section 15.2(4) are significantly different than the factors to be considered under s. 17(4.1) in a variation application. Unlike s. 15.2(4)(c), s. 17(4.1) makes no reference to agreements and simply requires that a court be satisfied that a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the making of the prior order.

In either analysis, the agreement will not be ignored, but its treatment will be different because of the different purposes of the two sections. [ 33 ] The court concluded in LMP at para 30 , that; the proper approach under s. 17 to the variation of existing orders is found in Willick , which involved a court order that had incorporated the provisions of a separation agreement; and that the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement. [ 34 ] It is worth noting at this point, that Rick v Brandsema , 2009 SCC 10 , [2009] 1 SCR 295, at para 64 , confirms that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment.

Though that case was about a property agreement, and the focus was on full and honest disclosure at the time of negotiating the agreement, this is still an important point. If there are procedural or substantive flaws that justify setting aside the agreement, then the presumption that the order on which the

agreement is based was correct, may no longer be sound. [35] Notwithstanding these things, on a strict reading of LMP, this court is bound to follow the approach in Willick in this case,which involves an application to vary the spousal support order that was granted on December 15, 2003. That analysis is set out below. [36] However, before proceeding with the Willick analysis, it is appropriate in this case for the court to consider the circumstancesof the parties at the time that the agreement as made and the order granted.

I find support for this approach in LMP, which makes it clearin paragraphs 37 through 41, that the incorporated agreement is still relevant to that analysis. At para 42, the court states: [42] Ultimately, courts are tasked with determining if a material change of circumstances has occurred so as to justify a variation of a s.15.2 order under s. 17. The analysis is always grounded in the actual circumstances of the parties and the terms of the s. 15.2 order; whatmeaning a court will give any general statement of finality found in an order will be a question to be resolved on that basis.

As we haveexplained, in some situations, the agreement incorporated into the order may help shape what is meant by a “material change ofcircumstances”. Where a s. 15.2 order deals with a specific change, it assists courts by answering the Willick inquiry through its terms.Conversely, when the order is general, or simply purports to be final, these less specific terms provide less assistance to courts inanswering the Willick inquiry.

Sometimes, in such cases, the circumstances of the parties may be such that courts will give little weightto a general statement of finality and conclude that a material change exists. However, at other times in such cases, the circumstances ofthe parties may also be such that the courts will give effect to a general statement of finality and conclude that a material change does notexist.” (emphasis added) [37] LMP permits the court to consider the circumstances of the parties in assessing the weight to be given to an order thatpurports to be a “final” order.

Surely those circumstances include the circumstances surrounding the negotiation and execution of theagreement that was ultimately incorporated into the original order. [38] Therefore, before I proceed with the required analysis under Willick, I will examine the circumstances surrounding theexecution of the agreement, including the allegation by Ms. Benincasa that she was under duress at the time the agreement was signed.

This will then permit a proper consideration of thecircumstances of the parties in this case, where we are dealing with an order that purports to be final but does not otherwise provideassistance to the court in answering the Willick inquiry. [39] While acknowledging that this approach necessarily involves some overlap with portions of the two stage analysis found inMiglin, (which may address some of the concerns expressed by the minority of the court in LMP), it is, in my view, necessary in theinterests of addressing the concerns that have been raised by Ms.

Benincasa over the fairness of the original agreement. [40] This will also take into consideration Ms. Benincasa’s submission that LMP should be distinguished because it did notinvolve a final agreement (waiver of spousal support) but rather variation of an order for indefinite support. [41] Ms. Benincasa alleges that she signed the agreement under duress. Though she makes some general claims to support thisallegation (Mr. McMorran had the money, a job and experience with the court system – that he had always been controlling, determinedto get his own way, abusive and intimidating to Ms.

Benincasa and the children), she is relying primarily on the circumstances related tothe children to support her claim of duress. [42] Ms. Benincasa maintains that Mr. McMorran told her that she could only get custody of the children if she gave up her right tospousal support. In support of this, she attaches to her February 10, 2015 Affidavit as an Exhibit, an undated document that she says wassent to her by Mr. McMorran in September of 2003. She says that the children had been with Mr. McMorran for two years and shethought she might never get them back.

She also says that at that point she had lost all faith in the court system and felt that she could notrely on the courts to do justice for her. [43] For the reasons that follow, I conclude that Ms. Benincasa was not under duress when the agreement was signed. [44] The general test for duress was confirmed by Browne, J in the case of Hamel v Dickieson, 2011 ABQB 202, [2011] AJ No365, relying on Roesnisch v Bangs , (AB KB), 138 AR 15. The test is as follows: 1. Whether the person alleged to have been coerced, protested; 2.

Whether, at the time he or she was allegedly coerced into making the contract, he or she had an alternative course open to himsuch as an adequate legal remedy; 3. Whether he or she was independently advised; and 4. Whether after entering the contract, he or she took steps to avoid it. [45] Family law lawyer Christine Barker acted for Ms. Benincasa during the relevant period. She gave viva voce evidence at thesummary trial. She indicated that she and counsel for Ms. McMorran had tried several times to resolve the matter prior to trial.

It appears from the settlement proposal attached as Exhibit “B”to the October 1, 2015 Affidavit of Mr. McMorran, that efforts to resolve the matter were being made as far back as April of 2002. [46] Ms. Barker testified that the issues of risk and costs were very important to Ms. Benincasa. She said that Ms. Benincasaunderstood that there were risks in going to trial on the issue of spousal support and that Ms. Benincasa did not want to take those risksand wanted certainty. She pointed out that Ms. Benincasa had already gone through the matrimonial property trial. [47] Ms. Barker also confirmed that Ms.

Benincasa understood that there were risks and costs associated with litigating for thecustody of the children. Ms. Benincasa understood that because the children had been staying with their father for a period of time, therewas a risk that they might not want to live with Ms. Benincasa. Ms. Benincasa was very aware of the custody assessment that had

resulted in the order giving custody to Mr. McMorran and she had also been to court many times on the parenting issues. [ 48 ] Ms. Barker indicated that there had been a four-way meeting at which the spousal support lump sum amount of $13,100 had been agreed upon. She also mentioned long discussions with Ms. Benincasa, including a lengthy discussion about the meaning of duress. She had Ms. Benincasa sign an acknowledgment that the concept of duress had been explained to her. A copy of that document was not produced at the

summary trial. [ 49 ] Ms. Barker also confirmed, and Ms. Benincasa admits, that in addition to receiving legal advice from Ms. Barker about the agreement, she received independent legal advice from Richard Biamonte, Q.C. Ms. Benincasa’s evidence is that Mr. Biamonte told her not to sign the agreement. [ 50 ] The evidence indicates, and Ms. Barker confirmed, that when a proposal in the form of a draft Minutes of Settlement was received by Ms. Barker two or three days before the scheduled trial, Ms. Barker replied with requests for several changes on behalf of Ms.

Benincasa and many of those changes were incorporated into the agreement before it was signed. [ 51 ] Ms. Barker testified that she was not aware of any threats made against Ms. Benincasa by Mr. McMorran or anyone else. Ms. Barker understood that Ms. Benincasa was signing the agreement freely and voluntarily without any compulsion on the part of her spouse. [ 52 ] Ms. Barker indicated that at the time the agreement was signed, she had understood that Ms. Benincasa had a substitute teaching job set up for January of 2004. Ms.

Benincasa’s evidence is that she had worked part-time from September of 2002 to November of 2003 as a caregiver for a child with special needs. Ms. Benincasa appears to have had the capacity to work during the period that the agreement was being negotiated. [ 53 ] Ms. Barker was aware of Ms. Benincasa’s diagnosis of Charcot-Marie-Tooth disease. Ms. Barker indicated that at that time, spousal support was “a role of the dice”. This increased the risks for Ms. Benincasa in taking that issue to trial.

A settlement gave her the certainty that she wanted and removed all risk with respect to the outcome at trial on both the spousal support and the custody issue. [ 54 ] I note that though the December 15, 2003 Consent Corollary Relief Order contains only one paragraph indicating that the $13,100 is being paid in full and final settlement of any spousal support claims, the Minutes of Settlement upon which that order is based, go much further in outlining all of the considerations of the parties in arriving at the spousal support waiver.

Clause 6 of the agreement contains an acknowledgement that the parties’ respective financial circumstances may change in the future and that no such change would give either party the right to claim spousal support. Clause 6 makes it clear that none of the listed events would give rise to an application for spousal support.

Those events include temporary or permanent illness, or disability, mental or physical, temporary or permanent loss of employment, unemployment, increase or decrease in financial obligations of any nature and kind, inflation, economic depression, increase or decrease in income, assignment, bankruptcy or insolvency, and windfall or inheritance. They apply to both parties. [ 55 ] Applying the evidence to the test for duress: 1. Whether the person alleged to have been coerced, protested; [ 56 ] There is no evidence that Ms. Benincasa protested against the settlement that was proposed.

There is evidence that with legal advice from 2 different lawyers, she assessed her risks of going to trial, the costs of going to trial, considered everything that had occurred to that point in time, and chose to make the deal that was made; 2. Whether, at the time he or she was allegedly coerced into making the contract, he or she had an alternative course open to him such as an adequate legal remedy; [ 57 ] There was a trial scheduled for December 8, 2003. Ms. Benincasa had that remedy available to her. It would have given her a spousal support order following an analysis by the court.

She chose not to avail herself of the remedy due to the risks and costs involved; 3. Whether he or she was independently advised; [ 58 ] As already indicated, Ms. Benincasa received legal advice from two different lawyers. One of those lawyers told her not to sign the agreement, but she chose to sign it anyway. 4. Whether after entering the contract, he or she took steps to avoid it. [ 59 ] This court file was under case management – first by Trussler, J and then by Moen, J from October of 2001 until September 22, 2010. There were 14 orders granted after the Consent Corollary Relief Order of December 15, 2003.

The matters that came before the court after the December 15, 2003 order dealt with an EPO, mutual restraining orders, the children’s funds, parenting time, and child support issues. Ms.

Benincasa took no steps to set aside the Minutes of Settlement until she filed her application on February 23, 2015, over 11 years after the agreement was signed. [ 60 ] I am unable to conclude that there were flawed negotiations resulting in procedural unfairness at the time the parties signed their agreement in December of 2003. [ 61 ] Further, I am also not able to conclude that the spousal support agreement that was reached was not in substantial compliance with the Divorce Act objectives. Though there was very little argument on this point, it can be said that Ms.

Benincasa’s health issues did not automatically entitle her to an indefinite award of spousal support. It appears clear that Ms. Benincasa was entitled to spousal support on both a compensatory and non-compensatory basis at the time the agreement was signed. However, one must also consider that this was a marriage of less than 12 years in duration, the agreement was signed 5 1/2 years after the separation, and spousal support had already been addressed in previous interim orders – the last one being a step-down order.

On these facts, there was a wide range of possible outcomes on the issues of quantum and duration going forward. Ms. Barker’s evidenceabout spousal support being “a role of the dice” reflects that reality at that time.

Even with the developments in the law of spousalsupport over the last 11 years, and when one considers the principles from Moge v Moge [1992] 3 SCR 813, (SCC),Bracklow v Bracklow, [1999] 1 SCR 420, , as well as the Spousal Support Advisory Guidelines, the order that wasmade appears to be within the range of possible outcomes that comply with the Divorce Act objectives for spousal support. [62] Considering this matter now, we also have the added benefit of knowing what Ms. Benincasa was able to achieve for heremployment since 2003.

She was able to work to the point where she could take advantage of a benefits plan that has been paying herdisability benefits as her disability has worsened. This is a relevant factor when considering whether or not Ms. Benincasa has been ableto overcome any economic disadvantage flowing from the marriage and its breakdown. [63] Having reviewed the circumstances of the parties at the time the agreement was signed and the order was granted, I movenow to the Willick analysis. 2.

Has the test for a change in circumstances from Willick been met and if so what variation to the existing order ought to bemade in light of the change in circumstances? [64] The change of circumstances must be a “material one”, meaning a change that if known at the time would likely have resultedin different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, itcannot be relied on as the basis for variation. [65] The onus is on the party seeking a variation to establish the material change that justifies a variation of the order. [66] Ms.

Benincasa submits that the changes upon which she is relying are as follows: 1. She was denied Canada Pension Plan (CPP) disability benefits; 2. If she had known that the children were going back to live with their father a year later, she would not have agreed to lump sumspousal support; 3. She lost the child support that she was receiving; 4.

Her Charcot-Marie-Tooth disease was progressing and in 2009, her doctor decreased her ability to work from regular teachingpart time to teaching in a substitute position part time, resulting in a reduction of her monthly disability benefit. [67] When the agreement was signed, the following things were known to Ms. Benincasa:

a) her health issues, including the recurring clinical depression and the progressive nature of the Charcot-Marie-Tooth disease fromwhich she suffers;

b) the possibility that the children would not return to live with her – this was confirmed by Ms. Barker’s evidence;

c) the nature of her property settlement, property having been dealt with in a trial in April of 2002;

d) that the child support in the Minutes was based on an income of $80,000 for Mr. McMorran and $12,000 for Ms. Benincasa – anindication of what each party was earning at that time;

e) that she was continuing to look for work as a teacher;

f) that she intended to apply for CPP disability benefits – presumably if she could not work;

g) she knew she had been out of the workforce for about 15 years (1987 to 2002) – I note here that there was no evidence of Ms.Benincasa’s job searching efforts or employment between the date of separation in 1998 and 2002;

h) the medical information indicated that Ms. Benincasa would not be able to work full time in the future and this was known toboth parties. [68] Since the agreement was signed, Ms. Benincasa’s circumstances have been as follows:

a) from September 2002 to November 2003, she worked part time as a caregiver for a child with special needs;

b) after signing the Minutes, she applied for CPP disability benefits and was denied in June of 2004 and after appeal in 2006. Shedid not qualify for AISH;

c) in February of 2004, Ms. Benincasa secured a casual on call teaching job. She says that she could not work more than 2 days perweek. She worked as a substitute teacher ½ day per week and at times more in 2004 to 2006;

d) September of 2006, Ms. Benincasa was offered a full time job teaching Grade 3 at St. Philip School. She was put on sick leave inJune of 2007 and was off work until March of 2009 except for about a month in October and November of 2008;

e) in September of 2008, Ms. Benincasa was accepted for long term disability insurance from Alberta School Employee Benefit Planand was paid retroactive to September of 2007;

f) in 2009, Ms. Benincasa’s doctor decreased her ability to work from regular teaching part time to substitute teaching part time andthis reduced her disability benefits;

g) Ms. Benincasa receives about $42,000 per year in long term disability benefits. This is reviewable every year because she does not have a permanent contract.

h) Ms. Benincasa also receives $1,088 gross per month for her share of Mr. McMorran’s employment pension accumulated during the marriage.

i) Ms. Benincasa’s teachers’ pension will pay her $1,449.24 per month if she retires now, but she would lose her disability benefits if she chose to retire. Her pension benefits continue to accumulate while she is receiving disability benefits so it is in her best interests to postpone her retirement as long as possible while she is still receiving disability benefits;

j) Ms. Benincasa’s income since 2007 has been: 2007 – 51,811; 2008 - $60,894; 2009 - $52,094; 2010 - $54,372; 2011 - $63,278; 2012 – $65,778; 2013 – $60,535; 2014 - $61,497. Submissions were made at the

summary trial that her income has continued at the level of approximately $60,000 annually; [ 69 ] I note that Mr. McMorran retired as a police officer in 2011. He has since been employed with the Alberta Gaming and Liquor Commission. His income since 2008 has been just over double the income earned by Ms. Benincasa over the same period. [ 70 ] Looking again at the changes being relied upon by Ms Benincasa to support her assertion that there has been a material change in circumstances: 1. She was denied CPP disability benefits; [ 71 ] Ms.

Benincasa cannot receive CPP benefits if she does not meet the disability requirement. Her inability to qualify for the benefits suggests that she is able to work and is not completely disabled. The fact that she was able to work (though not full time) was known to Ms. Benincasa when the December 2003 order was granted; 2. If she had known that the children were going back to live with their father a year later, she would not have agreed to lump sum spousal support; [ 72 ] Ms. Barker’s evidence confirmed that Ms.

Benincasa was well aware that given the history of this matter, the children might not come to live with her or stay living with her. This is also something that was known to Ms. Benincasa when the December 2003 order was made. 3. She lost the child support that she was receiving; [ 73 ] Though there may be cases where this would be a sufficient change in circumstances to allow a variation, this circumstance was contemplated by Ms. Benincasa because she knew that the children might not come and live with her after the order was granted. If they did not live with her, she would not be receiving child support. 4.

The Charcot-Marie-Tooth disease was progressing and in 2009, her doctor decreased her ability to work from regular teaching part time to teaching in a substitute position part time, resulting in a reduction of her monthly disability benefit. [ 74 ] Once again, Ms. Benincasa knew when the order was granted that she had a progressive condition that would continue to worsen. It is most fortunate that she was able to secure a teaching position that gave her a benefits plan which allowed her to receive disability benefits when she was not able to work. Because of those disability benefits, Ms.

Benincasa has been able to maintain a stable income over the past nine years. The income amount appears to be sufficient to meet her reasonable needs (excluding the costs of litigation). Her budget indicates that she does not have a mortgage or rent payment. [ 75 ] I have considered the circumstances of the parties at the time the agreement was signed and the consent order was granted.

Though the order contains only a general statement about the finality of the lump sum payment, the agreement makes it clear that the parties intended that the order be final, notwithstanding any change in the circumstances of the parties – including those listed. [ 76 ] For the reasons indicated above, I am unable to conclude that the changes relied on by Ms.

Benincasa constitute a material change in circumstances such that if known at the time the order was granted, would have resulted in different terms. [ 77 ] Overall, the circumstances of the parties in this case are such that the court will give effect to the general statement of finality in the Consent Corollary Relief Order of December 15, 2003. [ 78 ] I am satisfied that enforcement of the agreement entered into by the parties still reflects the original intention of the parties and is still in substantial compliance with the objectives of the Divorce Act . [ 79 ] There is therefore no basis for a variation of the Order of December 15, 2003. [ 80 ] Accordingly, Ms.

Benincasa’s application for retroactive and ongoing spousal support is dismissed. 3. Is Ms. Benincasa entitled to retroactive child support for 2004 and 2005 or to payment for

section 7 expenses incurred between 2009 and 2015? [ 81 ] Turning to the application for retroactive child support for 2004 and 2005, there is an issue as to whether or not the court has jurisdiction to deal with the application at all. There is certainly a question as to when the children were able to withdraw from the charge of their parents, which puts into question the issue of when they ceased to meet the definition of “child of the marriage” in the Divorce Act . Christopher’s evidence establishes that he was no longer a “child of the marriage” after he moved out of Mr. McMorran’s home in 2009.

The situation with Catarina is less clear. Any application for retroactive child support must be made while a child is still a “child of the marriage” as defined by the Divorce Act ; DBS v SRG , 2006 SCC 37 , [2006] 2 SCR 231. Without evidence that allows the court to determine when Catarina ceased to be a “child of the marriage” the jurisdiction of the court to hear the application is uncertain.

[ 82 ] Further, the issue of retroactive child support for 2004 and 2005 was addressed by Moen, J when the file was under case management, and the parties did not take steps to deal with this issue after the Child Support Resolution Meeting in April of 2005 did not resolve matters. There appear to have been retroactive child support claims being made by both parties when the matter was before Moen, J. There has been no reasonable explanation provided for why it took 10 years for Ms. Benincasa to make the application for child support for 2004 and 2005.

The ongoing litigation until January of 2009 and the fact that the matter was under case management until 2010 indicates that Ms. Benincasa had opportunity to deal with these old child support claims but she did not do so. [ 83 ] In addition, and even if a court were persuaded after applying the analysis from DBS , that a retroactive award is appropriate, there is an issue related to the commencement date for that retroactive award. For the

section 7 claims listed in paragraph 52 of Ms. Benincasa’s February 10, 2015 Affidavit – which cover a time span of 2009 to 2015, the date of effective notice to Mr. McMorran of these retroactive child support claims is February of 2015. [ 84 ] There is no evidence of blameworthy conduct by Mr. McMorran since 2009 when these expenses are alleged to have been incurred. [ 85 ] The court has discretion in considering whether or not payment of a claimed

section 7 expense is appropriate.

Section 7 of the Guidelines requires consideration of 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. [ 86 ] The court has not been provided with evidence in relation to the necessity of the expense nor of the means of Caterina. Christopher’s means were such that there was no necessity for either parent to pay for his post-secondary education. [ 87 ] For all of these reasons, Ms.

Benincasa’s claims for retroactive child support are also dismissed. 4. Is Ms. Benincasa entitled to be repaid for RESP monies that she paid to the adult children? [ 88 ] The only basis for this claim appears to be pursuant to

section 7 of the Guidelines as a post-secondary education expense. Accordingly, the same issues identified above apply. [ 89 ] Further, though Ms. Benincasa alleges in her materials that Mr. McMorran represented to the court that he would pay for the post-secondary education costs for the children, a review of the transcript confirms that no such representation was ever made. [ 90 ] There is also an issue with respect to the date of the payments in relation to the date of effective notice to Mr. McMorran. If all of the cheques in Exhibit 54 to Ms.

Benincasa’s February 10, 2015 Affidavit were paid from the RESP funds (and that has not been established), then all but $500 of those payments were made between 2010 and 2014, with no indication to Mr. McMorran that there was an expectation that he would be called upon to repay those monies. [ 91 ] The matter is further complicated by the evidence of Christopher to the effect that his mother told him that these monies were gifts from her to him. [ 92 ] At least with respect to Christopher, there is evidence that he did not need the RESP money to pay for his education. Ms.

Benincasa could have chosen to withdraw the RESP’s and retain the funds for herself (which the Minutes of Settlement allowed her to do) but it would have meant that the government portion of the funds would have had to be returned. It is clear from her communication with Christopher on this point, that she did not want that to happen. [ 93 ] With respect to Caterina, there is insufficient evidence to allow a proper

section 7 analysis. [ 94 ] Therefore, Ms. Benincasa’s application for repayment of RESP monies must also be dismissed. [ 95 ] Ms. Benincasa’s Application document contains other claims for relief in paragraphs 7 and 10 – specifically, an order amending paragraph 3 of the corollary relief order, which is no longer necessary, and an order that Mr. McMorran pay Ms. Benincasa $1,500 for the sale of a van. This latter item was clearly addressed in the June 20, 2002 Order of Trussler, J. These claims are also dismissed. Heard on the 19 th to 21 rd day of September, 2016.

Delivered Orally on the 23 rd day of September, 2016. Dated at the City of Edmonton, Alberta this 3rd day of October, 2016. D.A. Yungwirth J.C.Q.B.A.

Appearances: Michael Pollock Pollock Murdoch Bowbell for the Plaintiff John Shortreed Biamonte Cairo & Shortreed for the Defendant