S.H.M. Applicant And: E.A.M. Respondent And: Between: E.A.M. Applicant And: S.H.M. Respondent Before: The Honourable Justice Gregory A. Cann Appearances: Peter C. Ghiz, lawyer for S.H.M. M. Cindy Cameron, lawyer for E.A.M. Place v. dates of hearing -, 2024 PESC 2

SUPREME COURT OF PRINCE EDWARD ISLAND Citation: S.H.M. v. E.A.M ., 2024 PESC 2 Date: 20240109 Docket: S1-DV-1101/7792 Registry: Charlottetown Between: S.H.M. Applicant And: E.A.M. Respondent And: Between: E.A.M. Applicant And: S.H.M. Respondent Before: The Honourable Justice Gregory A. Cann Appearances: Peter C. Ghiz, lawyer for S.H.M. M. Cindy Cameron, lawyer for E.A.M. Place and dates of hearing - Charlottetown, Prince Edward Island September 26-29, 2023 Place and date submissions completed - Charlottetown, Prince Edward Island November 21, 2023

Place and date of written decision - Charlottetown, Prince Edward Island January 9, 2024 FAMILY LAW – spousal support – child support – variation – material change in circumstances Application and Counterapplication to vary a Consent Divorce Judgment based upon a written agreement of the parties. Father’s Application to vary based upon his cancer diagnosis, receipt of funds by the mother after the Divorce Judgment, self-sufficiency of the mother. Father’s Application stated dismissed. Cancer diagnosis and treatment caused only a brief period of disability with minimal loss of income attributable to cancer.

Any further impact would be several years away, if ever. Mother’s receipt of funds did not amount to material change in circumstances having regard to nature of the funds and her compensatory entitlement to spousal support. Mother’s increase in employment income foreseen by the parties at the time of the Consent Divorce Judgment and therefore was not a material change in circumstances. Both parties sought variation of child support payments in respect of their adult son who was in attendance at University.

The court interpreted their agreement underlying the Consent Order to require support payments to continue to April of 2022 to take into account the ordinary duration of his undergraduate degree. This outcome did not require a variation. STATUTES REFERRED TO: Federal Child Support Guidelines , SOR/97-175, s. 7 ; Divorce Act , RSC 1985, c 3 (2 nd Supp ), s. 17(1) , s. 17(1) ; Spousal Support Advisory Guidelines , July 2008 Cann, J. : I. Introduction and Background Facts [ 1 ] By consent, Applications for variations requested by both parties were heard together over four days.

For the sake of clarity, I will refer to S.M.’s as “the Application” and that of E.M. (now C.) as the “Counterapplication”. I had before me affidavit evidence of the parties, the son, the father’s treating physicians, and expert opinions from an accountant and an oncologist retained by the mother. Cross-examination was conducted in court on some of the affidavits. [ 2 ] The parties were married in 1995, separated in 2013, and divorced in 2021. The terms of a Consent Order were incorporated into the Divorce Judgment.

The Consent Order provided for, among other things, spousal support and child support for the younger of the parties’ two children (“the son”). Both parties want the order varied. The Consent Order was based upon a written agreement of the parties which was entered into on April 12, 2021 (“the Agreement”). The Consent Order was filed about a month later. [ 3 ] The Applicant, Respondent by Counterapplication, (“father”) believes his spousal support obligations should be eliminated or reduced.

His request is based on a cancer diagnosis which he says has diminished his ability to earn income as an orthopaedic surgeon. He also claims that the Respondent, Applicant by Counterapplication, (“mother”) has become self sufficient.

Finally, he asserts that the mother has received over $300,000 since the Agreement was executed in April of 2021. [ 4 ] The mother is asking to have the father’s child support obligations either enforced or, if no longer applicable, varied to reflect what she says are the changed circumstances of the son since the Consent Order was filed requiring the father to pay monthly Guidelines [1] child support of $4,481 “until the child is no longer considered to be a child of the marriage”. The Maintenance Enforcement Office stopped collecting that amount when the son reached the age of 22 in December of 2021.

The mother claims the monthly payments from that date until the end of August of 2022 when the son transferred to an out of province university. She seeks proportionate sharing of the extraordinary expenses associated with the son’s ongoing university attendance from September 2022 until the end of April 2023 then resumption of Guidelines support to the end of August 2023. [ 5 ] A number of factual disputes which must be resolved underlie the issues in these applications. The legal consequences of those facts are also very much in dispute.

Those factual issues which require resolution will be dealt with in the context of the issues in which they arise. II. Issues [ 6 ] Although some of the relief claimed by the father which is mentioned in the introduction to these reasons, was contained in an amended Notice of Application which was never actually filed, both parties appear to have been well aware of the full extent of the father’s claims. I will therefore decide the matters before me as though the amended Notice was properly filed. The father should

however file the amended Notice of Application for clarity’s sake. [ 7 ] The live issues before me are as follows:

(1) Whether there has been a material change in circumstances in respect of each of the requested variations to the Consent Order; (

a) the father’s cancer diagnosis/treatment and effects; (

b) post-Consent Order receipt of funds by the mother; (

c) self sufficiency of the mother; and (

d) whether the son is a child of the marriage and entitlement to s. 7 expenses.

(2) If there has been a material change in circumstances relative to one or more of the variations sought, whether that variation is justified in the circumstances, in respect of: (

a) the amount payable by the father in respect of spousal support, or (

b) the father’s obligation to pay child support. III. Applicable Legal Principles [ 8 ] In order for me to consider whether the Consent Order ought to be varied pursuant to s. 17(1) of the Divorce Act , RSC 1985, c 3 (2 nd Supp ), I must be satisfied that there has been a material change in the condition, means, needs or other circumstances of the parties.

This is the requirement whether or not the Order sought to be varied is based, as it was in this case, upon an agreement which resulted in the parties agreeing to the Order. [2] I will note that in these reasons, I will refer alternately to the Agreement and the Consent Order. While the Consent Order was filed about a month later than the Agreement, it is the date of the Agreement (April 12, 2021) which triggers the analysis of material changes in circumstances throughout my decision. [ 9 ] Only variations justified by the change in circumstances may be made.

The scope of those variations, if any, is to be a function of the changed circumstances and their interrelationship with the existing support Order. [3] [ 10 ] As stated, I may only consider varying an existing order if it is established that there has been a material change in circumstances. The required materiality of the change is both qualitative and quantitative, in that it must be significant and long lasting. A sufficient degree of continuity is necessary to render a change material.

It must amount to more than a temporary set of circumstances. [4] [ 11 ] I must consider the relevant circumstances of the parties when the Agreement was entered into, resulting in the Consent Order. It goes without saying that circumstances which existed at that time cannot amount to a material change. Nor can changes that were within the contemplation of the parties.

Changes which were foreseen, as distinct from the broader notion of foreseeable, will not be considered material. [5] Put another way, the changes must be such that, if known at the time of the Agreement, would likely have resulted in different terms. The burden of proving the material change of circumstances is upon the party seeking variation. IV. Material Change in Circumstances: The Father’s Cancer Diagnosis/Treatment and Effects [ 12 ] The primary motivation for the father’s Application would appear to be his cancer diagnosis in January of 2022.

That diagnosis occurred following execution of the Consent Order. There is no evidence that it was known or even suspected prior to the Consent Order or the Agreement. The father’s prostate cancer was treated by surgery in May of 2022 followed by hormone and radiation therapy in the autumn of the same year when his PSA reading (a key diagnostic value) remained elevated. He missed approximately six weeks of work after the surgery, followed by an ease back. He was able to work through the other therapies by managing his hours differently. [ 13 ] It is common ground that the father missed time from work during 2022.

The extent and duration of any loss of income arising from the father’s cancer and its consequences were in issue. The allegation of reduction of the father’s income is related to his cancer diagnosis. For that reason, analysis of his request for variation must be defined by those grounds.

To delve further into other potential reasons for reduced income would require me to stray beyond both the scope of the Application and potentially the correct temporal analysis of a variation application where possible causes such as general income fluctuations and availability of work are concerned. [ 14 ] As I understand the father’s position, he asserts that his prostate cancer diagnosis has resulted in ongoing physical and mental health related disability which prevents him from earning an income within a range commensurate with the spousal or child support payments he consented to in the Agreement.

The mother’s view is that, because the father has successfully completed treatment with minimal impact on his ability to work, there is no proven current and ongoing effect arising from the father’s cancer. [ 15 ] I have considered the evidence of the father’s treating physicians, the father’s own testimony in respect of his situation, and that of the oncology expert called by the mother.

While none of the evidence conflicts in material ways, certain elements of it require resolution. [ 16 ] First, I accept the essentially uncontradicted evidence of the father’s most current PSA test levels being greater than zero but at or near 0.03. Updated information regarding PSA tests was available only shortly before the hearing of the applications. As a result, future management specific to the father had not been discussed with him by either his family physician or treating oncologist. The 0.03 PSA level was described by them as “reassuring” and “near the lower limit of detection”, respectively.

[ 17 ] Second, I accept the compelling testimony provided by Dr. Rutledge who I qualified to give expert opinion evidence in the field of prostate cancer, without objection by the father. Dr. Rutledge informed the court that, having regard to all of the other circumstances related to the father’s diagnosis and treatment, the 0.03 reading is a very positive development with respect to his health. That reading represents approximately even odds of a cure, with benign tissue generating the 0.03 PSA level, or continuing cancer.

Even if the latter is the case, consideration of further treatment of any kind will probably be unnecessary during the next seven years. Less likely is treatment in four year’s time if the cancer is very aggressive. This aspect of Dr. Rutledge’s testimony was subject to rigorous cross- examination with no meaningful basis for doubt established. I accept it and find accordingly that the father will not be troubled, at least directly, by prostate cancer issues for a minimum of four years, more probably seven or, equally likely, never. [ 18 ] Third, while Dr.

Rutledge acknowledged that depression is a common health concern for prostate cancer patients, he did not make a diagnosis of depression in respect of the father. This makes sense, given Dr. Rutledge’s role as an expert witness and not one of the father’s care providers. The father did advert to symptoms which his counsel submits are consistent with and, if I understand the argument correctly, amount to depression. [ 19 ] I decline to find that the symptoms claimed by the father amount to depression.

Such a diagnosis, in my view, requires expert opinion specific to the individual and based upon a careful assessment. There is no evidence before me of a depression diagnosis specific to the father. Despite the father’s own qualification as a physician, it is well established that a party will rarely, if ever, be sufficiently free of bias to give expert evidence in his own litigation.

In any event, no such attempt was made in this case. [ 20 ] Further, the father’s allegations of low energy and reduced interest in his occupation, absent an accompanying medical diagnosis, do not establish a disability with the requisite degree of reliability to satisfy his burden on a balance of probabilities to show a material change. Moreover, the surrounding circumstances of his work

schedule and income do not assist him. [ 21 ] Having regard to all of the foregoing, I am unable to find that the father has established that his cancer diagnosis, treatment, or indirect effects have had more than a temporary impact upon his ability to earn his usual income. I will add that, although I have considered both the revenue and income analyses presented by the parties, they are largely inconclusive when the general variability of the father’s income, further impacted by the effects of the COVID-19 pandemic is taken into account.

I believe the only reliable indicator of the scope of the effects of cancer are time missed and on ease back. These totalled four weeks. Thus, in the context of the overall circumstances of this case, it lacks the requisite element of continuity exceeding the merely temporary. [ 22 ] To particularize the comments in the preceding paragraph and earlier in these reasons, variability of the father’s income (both generally and as a result of restrictions on his practice related to the pandemic) was established in his testimony and evidence of his earnings history.

Both of these factors, I infer, were within the contemplation of the parties when they entered the Agreement. As a result, on both the evidence and the pleadings, they may not properly be taken into account in respect of the establishment of a material change in circumstances. V. Material Change in Circumstances: Post-Consent Order Receipt of Funds by the Mother [ 23 ] Certain facts, related to the father’s allegation of receipt by the mother of significant funds following execution of the Consent Order, are uncontentious.

The mother admitted receipt of approximately $319,000 from one of her parents in 2021 after the Agreement was signed. Parenthetically, it would appear that reference to the amount of $349,000 in the father’s submissions is an arithmetic error. There is no evidence of funds being received by the mother after the period between the Agreement being signed and the end of 2021. [ 24 ] The father further alleges that an additional $73,400 ought to be taken into account. However, he acknowledges that it was received by the mother prior to entering into the Agreement.

For that very reason, I am unable to accept this proposition given the applicable legal principles outlined above. I have therefore excluded that $73,400 amount from the balance of my analysis of this issue. [ 25 ] This aspect of the father’s Application gives rise to what has been termed a “windfall”, similar to an inheritance or lottery win, enjoyed by either the payor or recipient spouse. I find the analysis recently set out in Stuart v.

Madigan , 2023 BCSC 307 describes the correct application of legal principles. [6] It stands for the proposition that where, as here, the payment of spousal support is based upon compensatory entitlement (see the decision of MacPherson J. in this proceeding at 2018 PESC 19 ), a windfall paid to either the payor or recipient subsequent to a support order does not affect those support obligations in favour of either. [ 26 ] As a result, at least with respect to spousal support obligations, there has been no material change in circumstances.

Even if it could be said that the receipt of funds does amount to a material change in circumstances, I would decline to find that a variation is appropriate for essentially the same reasons set out in the line of cases culminating in Stuart . [ 27 ] The same reasoning does not apply to child support. However, given the findings, discussed below in relation to whether the son ought to be considered a child of the marriage, I decline to vary child support payments based on receipt of funds by the mother.

Any unpaid entitlement would be based on the Child Support Guidelines table amounts and parenting is not shared. Therefore, for that reason a material change in circumstances has not arisen germane to child support in this context and in any event, no variation is appropriate. VI. Material Change in Circumstances: The self-sufficiency of the Mother [ 28 ] Also relevant to the father’s request to vary spousal support payments is the mother’s employment income. The mother has been trained as a nurse since prior to the parties’ marriage.

Her annual income at the time that the Consent Order was entered into was $30,950. In 2022, the last full year for which she was employed, she earned $46,187. She has continued to work as a nurse, working 30 hours per week.

[ 29 ] The father’s allegation that the mother has become self-sufficient since the Agreement was signed causes me some difficulty. Apart from the actual rise in the mother’s annual income from $30,950 in 2021 to $46,187, there has been no establishment of a discernable change in her circumstances. While the income change is significant, it must be viewed in context of the totality of the parties’ financial and other circumstances. Extensive efforts were made in a lengthy cross-examination of the mother to suggest that she could be working more and/or earning more.

In addition to failing to establish sufficient facts upon which such a finding could be made at all, none of the factual allegations grounding claimed underemployment appear to arise from circumstances which predominantly post- date the Agreement. Most if not all of the questioning referenced events or states of affairs that were a continuation of those which were already in existence at the time of the Agreement. As such, they amounted to nothing more than an attempt to re-litigate spousal support.

To do so would be to sidestep entirely the material change in circumstances requirement. [ 30 ] As a result of the foregoing and taking into account analysis of the question related to the mother’s receipt of $319,000 in the second half of 2021, if a material change in circumstances is to be found, it must arise from the mother’s increased income. As stated above, a material change in circumstances must have been unforeseen by the parties.

In this case, the Consent Order provides as follows: “[The father] shall pay spousal support of $11,000 a month for five years commencing as of March 1, 2021, which will then reduce to $8,000 a month for an additional four (4) years at which time it will be terminated.” [ 31 ] I infer from this provision that the parties foresaw an increase in the mother’s income upon which the father seeks to base the alleged material change in circumstances. The issue could also be framed as a change in the parties’ differential of incomes.

Either way the inference that the change was foreseen is both available and compelling. [ 32 ] The inference is reinforced, in my view, by two factors. First, there is an additional drop in future spousal support payments in that they are eliminated entirely after nine years. This further confirms the expectation of changing incomes.

Second, the payments are round figures and there is no reference in the relevant clause of the Consent Order to the Spousal Support Advisory Guidelines , unlike the child support provision of the Consent Order which mentions separately the Child Support Guidelines , albeit in abbreviated form. This also suggests to me that the parties anticipated and provided for fluctuations in income. [ 33 ] In the result, I am unable to find that there has been a material change in circumstances relating to the mother’s increase in income. I am satisfied that the changes were foreseen at the time of the Agreement. VII.

Material Change in Circumstances: Whether the Son is a Child of the Marriage and Entitlement to s. 7 Expenses [ 34 ] Regarding the request to vary child support, it is common ground that the son enrolled at the University of Prince Edward Island in the fall of 2018, following completion of high school. He was pursuing a degree in kinesiology while at UPEI and continued to do so at the time the Agreement was reached. He had been residing with the mother while in attendance at UPEI as he had been since the parties separated. At the time of the Agreement, he was 21 years old. He turned 22 in December of 2022.

In advance of the fall term of 2022, he transferred to St. Mary’s University in Halifax. At the time of his transfer, he needed two credits to graduate from UPEI. When he transferred to St. Mary’s he changed programs to psychology. I take it this caused him to require two years to complete the psychology degree. At the time of the hearing of these applications, he had not yet completed an undergraduate degree.

It is worth noting that both parties had completed one or more university degrees. [ 35 ] The child support provisions of the Consent Order says: [The father] shall pay child support in the sum of $4,481 a month in accordance with the Guidelines until the child is no longer considered to be a child of the marriage. [ 36 ] Since there is no indication whose consideration is to govern whether or not the son is a child of the marriage and the term “child of the marriage” is one which appears in the Divorce Act , and has been defined in case law, I interpret the child support provision to be referable to the mutual intentions of the parties as informed by the provisions of the Divorce Act . [ 37 ] Judicial

interpretation of the relevant Divorce Act provisions related to whether or not an individual is a child of the marriage establishes both that the status is not conclusively defined by either a certain chronological age or educational status. [ 38 ] It is also appropriate to take into account the intentions of the parties which may be discerned by explicit agreement or the surrounding circumstances. In this case, the Consent Order is the only evidence of an explicit agreement and it is mostly lacking in any indication of what the parties intended.

However, since at the time the Agreement was executed, the son was at least midway through an undergraduate program, I infer that the parties intended that child support would be payable in respect of his undergraduate degree. Issues arise however around whether delayed completion and transfer to another program at another university was within the contemplation of the parties. Addressing these questions informs my

interpretation of the Agreement as well as the question of whether there has been a material change in circumstances justifying the father’s request for variation to terminate child support when the son turned 22. It could also ground the mother’s request to convert the father’s obligations to a combination of table support and

Section 7 expenses under the Child Support Guidelines , to account for the son’s transfer to Saint Mary’s, up to the end of August, 2023 as requested by the mother. [ 39 ] I have considered the surrounding circumstances of this case in addition to the son’s age and education status at the time of the Agreement. I see nothing in the evidence to suggest an intention that the son was to cease being a child of the marriage at age 22, apart from an ex post facto assertion by the father to which I attach little weight in the absence of any confirmatory evidence related to the time of the Agreement.

By the same token, I give only slightly more credence to the mother’s contention that she would never have entered into the Agreement if child support would terminate a few months later when the son turned 22. The evidence of both parties in those respects is ultimately unhelpful. [ 40 ] I consider the fact that both the mother and father completed at least an undergraduate degree to be indicative of their intentions. Combined with the son’s age and education status when the Agreement was entered, I am satisfied that they intended to support him through an undergraduate degree.

However, evidence is lacking of mutual intention to provide support for more than a standard four

year program’s duration or transfer to attend university in another province to complete a different degree than the son had started. I find therefore that child support was intended to extend to four years of undergraduate education at UPEI, so the son could live at home, terminating at the end of April, 2022. [ 41 ] Accordingly, I find that the son ceased to be a child of the marriage at the end of April 2022. Since his attendance at Saint Mary’s did not begin until September of 2022, that development cannot constitute a material change in circumstances, having post-dated the expiry of the child support provision of the Consent Order. As a result, no variation to include

Section 7 expenses related to the son attending university in Halifax is available. [ 42 ] I note that the Maintenance Enforcement Program (“MEP”) office determined incorrectly in mid-2022 that child support payments pursuant to the Consent Order were no longer payable as of December 2021. As a result, it stopped collecting child support payments and recovered the amounts it considered to have been overpaid during 2022 by reducing the spousal support collected from the father. Amounts owed to divorcing spouses are not determined by the MEP.

That is a matter within the exclusive jurisdiction of the Supreme Court of this province, subject of course to appeals to the Court of Appeal. Therefore, any steps taken by the MEP are irrelevant to the father’s obligations except to the extent of any question of the blameworthiness of his conduct in failing to meet his obligations. [ 43 ] In this case, I have no basis to find that the father’s conduct in failing to make child support payments for the months of January through April of 2022 is blameworthy. However, his obligation to make those payments remains outstanding.

Accordingly, the father is ordered to resume monthly payments commencing immediately in the amount of $4,481 for a total of four payments, thereby eliminating the arrears which have accumulated. [ 44 ] As a result of my determination of the issue to this point, I believe any consideration of whether the son has terminated the relationship with the father to be irrelevant. VIII. Conclusion [ 45 ] The father’s Application is dismissed with the exception of the variation I have described in respect of child support payments ending as of the end of April 2022.

The mother’s Counterapplication is allowed to the extent of entitlement to four payments of $4,481 but is otherwise dismissed. [ 46 ] As to costs, the mother has had the lion’s share of success on these proceedings. For the purpose of determining costs entitlement, although each party had partial success on child support issues, that element occupied all of the mother’s Counterapplication and only a relatively minor aspect of the father’s Application.

In the circumstances a fair outcome and one which is hopefully easier for the parties to quantify is to order no costs payable by either party in respect of the Counterapplication and costs payable by the father on a partial indemnity basis on the entirety of his Application. I make that order. [ 47 ] If the parties are unable to reach an agreement on the quantum of costs within 30 days of the date of this decision they may, once that 30 day period has expired, file written submissions within 15 days and I will decide the matter of costs.

Written submissions are not to exceed five pages in length, exclusive of attachments. ____________________________ J. January 9, 2024