Yarmo v. Friend, 2011 ONCJ 37

Milton registry No. 274/05 DATE: 2011·I·25 CITATION: Yarmo v. Friend , 2011 ONCJ 37 ONTARIO COURT OF JUSTICE BETWEEN: ROBERT YARMO, Applicant, — AND — APRIL FRIEND, Respondent.

Before Justice Roselyn Zisman Heard on 15-18 November 2010 Reasons for Judgment released on 25 January 2011 CIVIL PROCEDURE — Court record — Public access — Motion to seal documents — Grounds — Endangering person’s livelihood — In dispute over spousal and child support, mother had in past contacted various persons at places of father’s employment or former employment to try to get information about state of his employment or reasons for his departure from that employment — Father had actually been called in by company president as result of her calls — Now that he had new employer, father was unwilling to reveal employer’s name in court — He produced e-mails wherein mother had threatened to contact employer and various other people and to send them some “interesting pictures” of herself and to “spill her guts” — He did agree, however, to place employment contract into sealed envelope for court’s examination and determination whether it should be released — Court was satisfied that father was genuinely employed but concluded that he had real and legitimate concern that, if mother learned employer’s name, she would contact employer and could jeopardize father’s employment — Court ordered that employment contract remain sealed.

SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Deviation from table amount — Adult child — In separation agreement, parties had intended that support obligation of psychological “father” of girl (now 20 years old) would not exceed $8,000 up to maximum of 4 years of girl’s post-secondary education, in expectation that her aboriginal status would entitle her to financial assistance from government or from her aboriginal band or from both — Even though she had been accepted into several universities, girl insisted on attending Queen’s University (at Kingston, Ontario) but her grades did not qualify her for admission there and she chose to attend Queen’s University program in England in hope of gaining entry to Kingston next year — Despite enormous cost of overseas attendance (between $35,000 and $37,000), mother approved girl’s choice and now expected father to share in expense — Even though she was aware that father had recently lost his job, mother had never consulted him in advance about incurring this expense — Mother offered no evidence that this was specialized program that was not available elsewhere and she could not meet onus to satisfy court that this substantial expense was justified — Court ruled that father’s share of girl’s post-secondary expenses should be limited to $8,000 as agreed by parties.

SUPPORT ORDERS — Entitlement — Child — Older child — Enrolment in full-time education programme — Full-time programme — Allowance for child with learning disability — Child was more than 18 years old and attending grade XII for second year, where he was not taking full course load and not attending regularly — There was evidence that boy was struggling at school, that he had a learning disability and that he might be having some difficulty in carrying full course load — Court pointed to precedents where other courts had been flexible in

interpretation of “full-time” attendance — In view of child’s learning difficulties, court did not think it unreasonable to require father to continue to pay child support at least until end of current academic year, unless there was proof that he had been accepted at post-secondary institution.

SUPPORT ORDERS — Entitlement — Spouse — Duty to become self-supporting — Estimation of time frame within which to attain self-sufficiency — Parties separated more that 6 years ago, after having cohabited for about 6½ years — Few months later, parties entered into separation agreement that included provisions for spousal and child support — Spousal support was to run for 5 years, when its need would be reviewed — Court order (made 2½ years ago and based on minutes of settlement) made minor adjustments to quantum, but otherwise preserved terms of agreement — Man made motion to vary that order, so as to terminate spousal support retroactively as of year ago on basis that he had lost job 2 years ago and acquired new one few months later but with lower income —

Court noted that relationship was of short duration in which woman had not made any financial or career sacrifices — On contrary,man’s encouragement of her return to school had actually advanced her career and increased her earning potential — With vehicle,savings and ability to purchase home, she left relationship in better financial position than when she began it — Nevertheless, breakdownof relationship had deprived her of parties’ standard of living and she did suffer resulting economic hardship — Separation agreementwas intended to cushion that hardship and to provide her with reasonable amount of time to re-adjust her life style and to become self-sufficient — Unfortunately, woman chose to live well beyond her means, making absolutely no attempt to adjust her life style afterseparation and spending money frivolously and extravagantly — Court even suspected that she had either source of undisclosed incomeor access to another source of support — Court was satisfied that that woman had received sufficient support for enough time toovercome any economic disadvantage from breakdown of relationship — In fact, on basis of woman’s experience and qualifications,court was ready to impute income to her in range of $30,000 to $33,000 — Court ruled that, when man lost job 2 years ago, he did nothave means to pay spousal support — By time that he acquired now job at lower pay several months later, woman should have been ableto reduce her lifestyle to live within her own means — As of date that he had lost his job, man’s obligation to pay spousal supportterminated.

SUPPORT ORDERS — Variation — Threshold test (Change in circumstances) — Nature of change — Payor’s means — Loweredincome — Payor father’s evidence was that he had lost job 2 years ago and acquired new one several months later but with lower income— Mother did not dispute these events but alleged that he was intentionally underemployed — She was not, however, able to meet onusof proof to establish that allegation — Court found that father was earning as much as he was able to earn in current economic climateand that reasons for changes in his employment were legitimate — On basis of change in his employment income, court found materialchange in his circumstances that allowed court to review his obligations to pay both child and spousal support.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended], subsection 3(2),

section 5,

section 7 and clause 19(1)(a). Family Law Act, R.S.O. 1990, c. F-3 [as amended], subsection 33(8) and subsection 33(9). CASES CITED Beninger v. Beninger, 2007 BCCA 619, 249 B.C.A.C. 193, 75 B.C.L.R. (4th) 228, 414 W.A.C. 193, [2008] 4 W.W.R. 193, 47 R.F.L.(6th) 11, [2007] B.C.J. No. 2657, 2007 Cars​well​BC 2984 (B.C.C.A.). Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No.3731, 2002 Cars​well​Ont 3228 (Ont. C.A.) Farden v. Farden, , 48 R.F.L. (3d) 60, [1993] B.C.J. No. 1315, 1993 Cars​well​BC 619 (B.C. Mast.). Homsi v.

Zaya, 2009 ONCA 322, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars​well​Ont 2068 (Ont. C.A.). Park v. Thompson, , 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, [2005] O.J. No.1695, 2005 Cars​well​Ont 1632 (Ont. C.A.). Perino v. Perino, , 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​well​Ont 7171 (Ont. S.C.). Rebenchuk v. Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261, [2007] 5 W.W.R. 87, 389 W.A.C. 261, 279 D.L.R. (4th) 448, 35R.F.L. (6th) 239, [2007] M.J. No. 130, 2007 Cars​well​Man 59 (Man. C.A.). Rilli v. Rilli, , 151 A.C.W.S. (3d) 1130, [2006] O.J.

No. 4142, 2006 Cars​well​Ont 6335 (Ont. Fam. Ct.). Trewin v. Jones, , 32 O.R. (3d) 225, 97 O.A.C. 140, 26 R.F.L. (4th) 418, [1997] O.J. No. 399, 1997 Cars​well​Ont 176(Ont. C.A.). Vohra.v. Vohra, 2009 ONCJ 135, 66 R.F.L. (6th) 216, [2009] O.J. No. 1446, 2009 Cars​well​Ont 1860 (Ont. C.J.). Willick v. Willick, [1994] 3 S.C.R. 670, 173 N.R. 321, 125 Sask. R. 81, 81 W.A.C. 81, 119 D.L.R. (4th) 405, 6 R.F.L. (4th) 161, [1994]R.D.F. 617, , [1994] S.C.J. No. 94, 1994 Cars​well​Sask 48. Yemchuk v.

Yemchuk, 2005 BCCA 406, 215 B.C.A.C. 193, 44 B.C.L.R. (4th) 77, 355 W.A.C. 193, [2005] 10 W.W.R. 634, 257 D.L.R.(4th) 476, 16 R.F.L. (6th) 430, [2005] B.C.J. No. 1748, 2005 Cars​well​BC 1881 (B.C.C.A.). AUTHORS AND WORKS CITED Rogerson, Carol J. and D.A. Rollie Thompson: The Advisory Guidelines Three Years Later, prepared for the National Judicial Institute,Family Law Seminar (Quebec, 13-15 February 2008). Karen L.

Ballantyne ........................................................................ counsel for the applicant father Respondent mother, April Friend ......................................................................... on her own behalf [1] JUSTICE R. ZISMAN:— The applicant, Robert Yarmo (“Robert” or the “father”) commenced a motion to change theorder of 7 August 2007 requesting an order that he not be required to pay spousal support as of 1 January 2009 and that his obligation to

pay child support be reduced. [ 2 ] The respondent, April Friend (“April” or the “mother”) filed a response to the motion to change requesting the father’s motion be dismissed and requested an order that the father pay his share of the children’s extraordinary expenses. 1: BACKGROUND [ 3 ] According to the father, the parties commenced living together in about October 1997. According to the mother, they commenced living together in about October 1996.

They separated in May 2004 after cohabiting for either six and a half or seven and a half years. [ 4 ] The mother has two children from a previous relationship namely, Melanie Magermans (born on 11 June 1990, “Melanie”) and Matthew Magermans (born on 16 August 1992, “Mathew”). Robert did not dispute that he stood in loco parentis to these children at the time of the separation. [ 5 ] Since the separation, Robert has had no contact with either of the children. [ 6 ] The parties entered into a separation agreement dated 19 October 2004.

The separation agreement does not stipulate the incomes of either of the parties. The parties agreed to the following terms regarding support: (

a) commencing on 1 September 2004, Robert would pay child support of $1,500.00 per month for each child until either child turns 18 years and is not attending a post-secondary intuition on a full-time basis or the latter of the child turning 22 years of age or attains his or her first degree or diploma, not to exceed four years; (

b) both parties acknowledged that, given the children’s native Indian status, they anticipated that government assistance would be available for the children’s post-secondary education. In the event the children’s post secondary expenses were not paid by the Canadian government or Six Nations or both, Robert would be responsible for paying his proportionate share of the tuition and books. If the Canadian government or Six Nations or both pay the children’s expenses for tuition and books for a university in the United States, Robert would pay his proportionate share of that child’s food and residence, to a maximum of $8,000.00 per annum; (

c) it was acknowledged that Robert had no other financial obligations to the children other than the provisions above; (

d) commencing on 1 September 2004, Robert would pay spousal support of $2,000.00 per month. April’s entitlement to support and the amount of support was to be reviewed in September 2009 or when there was a material change in circumstances; (

e) Robert would pay April’s school tuition for 3 additional years at a maximum of $4,500.00 per year in the event April chooses to attend university and she is unable to secure grants or bursaries; (

f) April acknowledged that she must contribute to her own support and use reasonable efforts to find a job or to become self- employed upon completion of her educational program; (

g) it was acknowledged that Robert had already paid $45,000.00 towards spousal support for the period May to September 2004; and (

h) Robert agreed to be responsible for paying $13,600.00 of April’s debt that she had charged to his credit card post separation. [ 7 ] In 2007, Robert brought a motion to reduce both his child and spousal support obligation. The parties entered into minutes of settlement and the terms were incorporated into a court order dated 7 August 2007. The order provide as follows: (

a) effective 1 January 2007, Robert would pay child support of $2,404.00 per month based on an income of approximately $180,000.00; (

b) effective 1 January 2007, Robert’s spousal support obligation was reduced to $1,200.00 per month; and (

c) the other terms of the separation agreement remained in full force and effect. [ 8 ] On 19 January 2009, Robert commenced the herein motion to change based on his termination of employment on or about 15 December 2008. [ 9 ] Robert obtained new employment effective 1 August 2009. He is currently earning consultant fees of $150,000.00 per year, which is less than he was earning previously.

This is a month-to-month contract with no guarantees of a permanent position. [ 10 ] Subsequent to the parties’ entering into the separation agreement in 2007, April obtained full-time employment and earned approximately $30,000.00. Shortly before the time of the trial, her employment was terminated and she was unemployed. 2: POSITION OF THE PARTIES [ 11 ] At the commencement of the trial, it was Robert’s position that: 1. spousal support be terminated as of 1 January 2009; 2. an order that child support be adjusted retroactively to 1 January 2009 as follows: (

a) from 1 January 2009 to 1 August 2009, he pay child support for 2 children based on his income of $75,000.00 in the amount of $1,098.00 per month; (

b) from 1 September 2009 to 1 December 2009, he pay child support for 1 child (Matthew) based on an income of $75,000.00 in the amount of $680.00 per month (as Melanie was away at school); (

c) as of 1 September 2010, monthly child support terminate based on Melanie’s not living at home and Matthew’s being over 18 years of age and presumably not attending a post-secondary institution;

3. an order that his contributions towards Melanie’s post-secondary expenses be adjusted retroactively to be $8,000.00 per year for each year that she is enrolled full-time in a post-secondary institution to a maximum of 4 years; 4. an order that his obligation to share Aeroplan and Hilton Hotel points be terminated; 5. an order that he be required to maintain only $25,000.00 in life insurance to secure his support obligations; and 6. if this relief is granted, that he be given credit for amounts that has already paid in spousal and child support and contribution to post-secondary expenses. [ 12 ] It was the position of April at the commencement of the trial that: 1. income should be imputed to Robert based on the fact that he was underemployed as he had not earned $150,000.00 since 1997 and he received significant employment benefits, earned cash or had undeclared income and his standard of living had not changed; 2. child support should be payable for Matthew as he was in full-time attendance at school and that there was disclosure to confirm his attendance; 3.

Robert should be required to pay his proportionate share of Melanie’s school expenses of $35,000.00 for the school year 2009 to 2010 and continue to pay her ongoing expenses; 4. Robert should be required to continue to pay spousal support as her ability to be self supporting has been hindered by him; 5. Robert should be required to share all of his airline and hotel points in accordance with the terms of the separation agreement and to compensate her for the points he has not provided to her; and 6.

Robert should be required to pay the outstanding support arrears. 3: COURT PROCEEDINGS [ 13 ] There were several substantive temporary “without prejudice” orders made in this proceeding. [ 14 ] On 8 September 2009, on a “without prejudice” basis, the parties agreed to a temporary order that Robert pay child support for Matthew of $1,254.00 as of 1 August 2009 based on his income of $150,000.00. Robert was to pay $8,000.00 as special expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, for Melanie’s post- secondary expenses for that year.

Further, he was to pay spousal support of $600.00 per month as of 1 August 2009. [ 15 ] On 2 December 2009, Robert was ordered to pay a further $10,000.00 for Melanie’s education program for 2009-2010 on a “without prejudice” basis and that, if this payment was later found to be an overpayment towards his obligation for Melanie, then the payment can be applied to or shall offset any other financial obligation that he may have or, if there is an overpayment, then it may result in a repayment by April to Robert. [ 16 ] On 10 March 2010, Robert’s child support obligation for Melanie and Matthew from 1 January through to 1 July 2009 was reduced to $300.00 per month and arrears owing were reduced on a “without prejudice” basis to April’s right to recover such arrears after the trial if Robert’s support obligations are found to be greater for the whole year of 2009.

For clarity, the order stipulated that this did not affect the child support order made on 2 December 2009. 4: EVIDENCE AT TRIAL 4.1: Date of Co-Habitation [ 17 ] Robert testified that he met April in 1995 through a telephone dating site. At the time, he was separated from his wife Luba Yarmo. He had a relationship with April until April 1996 when he reconciled with his wife.

Robert and his wife separated again in January 1997. [ 18 ] The separation agreement between Robert and his wife was entered into evidence and confirmed that their separation date was 19 January 1997. [ 19 ] After separating from his wife, Robert resumed his relationship with April. They did not reside together until October 1997 when he purchased his residence at 337 Grand Highland Way in Mississauga.

Robert arranged and paid for April to move into that residence with her children. [ 20 ] He testified that the separation agreement between him and April incorrectly stated that they had commenced co-habiting in October 1996. [ 21 ] Rick Legge testified on behalf of Robert. He confirmed that he and Robert had been friends since the summer of 1995 when Robert moved across the street from him on Blackfoot Trail in Mississauga. April would come over on weekends and her daughter and his daughter would play together. However, he testified that Robert and April did not live together at that residence.

He testified that Robert moved away in early summer of 1996 and moved in with his wife Luba and then, in early 1997, Robert moved to a townhouse on Barrondale. He would see Robert socially and they golfed together. He also did some handy work for him at the townhouse on Barrondale. He confirmed that April and Robert did not reside together until she moved into his residence in the fall of 1997. [ 22 ] In cross-examination. Mr. Legge maintained his sequence of events and again confirmed that April had her own residence until she moved in with Robert at 337 Grand Highland Way in the fall of 1997.

[ 23 ] April in her testimony seemed to agree that she could be mistaken about when she began to co-habit with Robert. But she then changed her mind and insisted that she began to live with Robert in the Barrondale townhouse sometime in 1996. [ 24 ] Although the actual date of co-habitation does not make a great deal of difference on the issue of entitlement to ongoing spousal support, in view of the time spent on this issue in the trial, it is important to make a finding on this issue. [ 25 ] Based on the evidence of Mr.

Legge and Robert that I accept and based on the documentary evidence filed, I find that the parties began to co-habit in October 1997. 4.2: Evidence Regarding Robert’s Employment and Income [ 26 ] Robert has been employed in the collections industry since 1991. He testified that, prior to the separation, he had been employed by Collections Corp. as an employee for about 12 years. He testified that, in 2003, the parties discussed and agreed that he should resign from that company. Robert obtained employment as the executive vice-president for the U.S. division of Global Vantage in December 2004.

He took the job as it offered more opportunities to make a greater salary through a better incentive plan, stock options and offered travel opportunities. [ 27 ] April testified that Robert had never been self-employed before and this was done to be able to hide his income. However, the decision to resign from Collections Corp. was done 6 months prior to the separation. There was no credible evidence presented by April that there was anything devious in this decision.

Although in retrospect, Robert may have had more security and a greater income if he remained at Collections Corp as an employee, I find that his change of positions was not in any way calculated to hide income. [ 28 ] Robert admitted in his evidence that, when he became self-employed, he may have taken some deductions that may have been personal and that he has income split with both April and his wife, Merrilee Ennis whom he married on 11 December 2005. He subsequently separated from her on 19 September 2007.

He was prepared to have the court consider his gross income and include any income splitting he had done with Ms. Ennis or April. [ 29 ] There was an unexplained discrepancy in Robert’s income in 2005. His employment contract indicated that he was to be paid $240,000.00 but his tax return for that year indicates an income of $184,045.00. Even if the income for his spouse of $17,000.00 is included in his income, the total is only $201,045.00. However, Robert agreed that his income of 2005 should be based on the higher amount. [ 30 ] April summoned Nicholas Wilson, the chief executive officer at Collections Corp.

Although there were deficiencies in the summons to the company, counsel for the company attended and produced Boris Dybenko, the chief financial officer as Mr. Wilson was out of town. [ 31 ] Mr. Dybenko confirmed Robert’s employment with Collections Corp. and his income from 1992 to 2003 which ranged from $152,222.00 to $240,497.00. He confirmed that Robert received extended medical and dental benefits, car allowance, a bonus and that he was reimbursed for business expenses. He was not aware of any other personal expenses or benefits that Robert received in lieu of taxable income.

He was not aware of any income splitting between Robert and April that would have been permitted by Mr. Wilson. [ 32 ] In cross-examination and in response to my questions, Mr. Dybenko explained that there had been a decline in the collection business since the recession in 2007. He explained that, prior to 2007, the banks and other lending institutions had been lax in granting credit and their company had a large number of delinquent accounts to collect.

But then the banks and other financial institutions tightened their credit and therefore there were fewer delinquent accounts and therefore less business for the company. [ 33 ] When April was cross-examined, she agreed that there were no unexplained deposits to Robert’s bank accounts or any other transactions that would support her theory that Robert was in receipt of undisclosed income or that he had any undisclosed employment benefits. [ 34 ] On the basis of the evidence, I find that Robert’s employment history and income from 2003 to 2010 to be as follows: Name of Employer Year Income Explanation Collections Corp. (employed from 1991 to 2003) 2003 $241,527 Includes income split with April of $24,673.00 Global Vantage (employed from October 2003 to December 2004) 2004 $149,850 Global Credit and Collections (employed from January 2005 to December 2006) 2005 $240,000 Per employment contract but notice of assessment income of $184,045 plus income split of $17,000 2006 $214,746 Gross income of $199,746 plus Ms.

Ennis’s income of $15,000 Account Recovery Corp (becomes RMS) (employed from January 2007 to 25 December 2008) 2007 $186,120 Gross income. Does not include one-time RRSP withdrawal of $210,000 2008 $182,077 T-4 employee Employment Insurance (from 1 January 2009 to July 2009) 2009 $76,235 Includes gross income of $62,750 from Penncro and EI of $13,485

Penncro and Associates (from August 2009 to 19 July 2010) Contract terminated on 19 July 2010 billed at rate of $12,500 per month Consultant (name withheld) 2010 (US) $150,000 Billed at rate of $12,500 per month [ 35 ] April cross-examined Robert extensively regarding his experience, his attempts to find lucrative employment, the circumstances regarding his various changes of employment since separation and what income and benefits he received from his various employers. Robert testified that all of his experience was in collections in the United States and the overseas market.

When he was questioned about the limited number of recruiters that he had approached about a job, he explained that there are only a few employment recruiters that deal with the collection industry and that he had also approached his contacts in the industry. [ 36 ] April presented Robert with an internet search showing that a Canadian vice president of sales and marketing earns between $124,766.00 up to $232,644.00 with the average salary being $169,739.00, not including bonuses and commissions.

Despite the limited evidentiary value of this type of evidence, I permitted April to cross-examine Robert on the basis of this information. Robert testified that he had tried to obtain employment for a Canadian company but was not successful as he had a narrow range of skills. He had obtained some advice on how to transfer his skills, which he had done in obtaining his current position. [ 37 ] Robert is now employed for a company in the United States selling computer software for the collection industry. He testified that the sales may take from 1 to 4 years to materialize.

His travel expenses are paid for by the company. He agreed that he is now earning less than he earned in previous years but he is now 57 years old and is competing with younger people who are paid a lower salary. [ 38 ] During the trial, Robert produced proof of his current income, but was not prepared to disclose the name of his current employer for fear of April’s harassing this employer.

He presented evidence that April had contacted various people at Collections Corp. to determine whether he had been fired, even though he had resigned from that employment with the knowledge and agreement of April prior to the separation. April contacted his former employer and friend Marty Sugar at Global Credit and Collection several times in an effort to exchange “juicy” information if Mr. Sugar would tell her why Robert left that company.

April contacted the human resources department at Global Credit and Collection several times trying to confirm that Robert was arranging to have her medical claims turned down or had signed up for inferior coverage. Robert was called in by the president of the company as a result of her calls. Robert produced e-mails where April threatened to contact his employer and various other people and send them some “interesting pictures” of herself and to “spill her guts”.

It was Robert’s belief that April felt that she had information about Robert that would be detrimental to him and kept threatening to reveal this information. [ 39 ] It was agreed that I would examine Robert’s employment contract and that it be placed in a sealed envelope and that I would later rule on whether the name of the employer should be released to April. [ 40 ] I am satisfied that Robert is employed by a company in the United States and submits monthly invoices of $12,500.00 to the company in accordance with the employment contract.

On the basis of the evidence, I find that there is a real and legitimate concern by Robert that, if April is aware of the name of the company, she will contact the employer and could jeopardize his employment. Therefore, I order that the employment contract remain sealed. 4.3: Evidence Regarding April’s Employment and Income [ 41 ] April is 34 years old. She has a grade XI education. At the time that the parties met, April was working in the office of an auto body company.

Prior to living with Robert, she had held several jobs earning between $30,000.00 to $36,000.00 working as a customer representative for several laser eye centres. [ 42 ] April stopped working in 2002 as she was unhappy with what she was doing and wanted to pursue her dream of becoming an interior decorator. In September 2002, she registered at Sheridan College for a 3-year program in interior design. Robert supported April’s returning to school and paid for the tuition and supported her children while she was in school. Robert also paid $2,000.00 so April could take an optional program in Rome.

Although she did very well in the course, she failed the final project. Although she returned to Sheridan to complete the program, she later withdrew and therefore does not have a diploma. However, she testified that she has a great deal of talent and can obtain work in the lighting industry without her diploma. [ 43 ] April testified that she worked at Lay-Z- Boy as a sales consultant in 2006 to 2007 and earned about $30,000.00. This job was not included on her resume. From June 2007 to December 2009, she worked at Eurofase-Lighting manufacturer as an inside sales consultant.

She left that position as the company was reducing her hours and the company was located in Richmond Hill and she lived in Oakville and could not afford the gas and wanted to work closer to home. April immediately found other employment at Concept Lighting Galleries which was located in Mississauga, which was closer to her home. April worked as a sales representative and lighting designer. April testified that she was fired from that company on 17 October 2010 as she had taken too much time off work for court attendances and she was ill a lot. [ 44 ] April is currently unemployed.

At the time of the trial, she had not yet applied for employment insurance and was not sure that she was eligible. She has begun a job search through her contacts in the lighting industry, posted her resume on the internet and registered with some employment agencies. [ 45 ] Her employment income from 2005 to the present is as follows: Year Income Explanation 2005 $24,000.00 2006 $18,290.00 2007 $26,294.00

2008 $25,942.58 This excludes a one-time withdrawal of RRSP of $9,421.88 and does not include spousal support 2009 $32,730.18 This does not include spousal support 2010 $17,000.00 Approximate amount up to October 2010 4.4: Evidence Regarding the Lifestyle of the Parties [ 46 ] During the relationship, the parties enjoyed a very comfortable life style. They lived in a large home, travelled frequently, ate in restaurants, drove luxury cars and brought expensive clothing. [ 47 ] After the separation, Robert’s lifestyle did not change until he lost his employment in 2007.

Robert testified that, because of the decrease in his income, he ate out less, has not had a vacation for 3 years, drives a cheaper car, buys less clothing and he sold his home and downsized. He lived on his line of credit to meet his expenses. His net worth has decreased from $568,000.00 in December 2005 to $425,000.00 in August 2010. [ 48 ] April testified that she bought a home with the lump-sum spousal support that she received. She testified that her financial situation is now dire. Since 2009, she had to go to the food bank and wakes up every day worrying about the bills that she has to pay.

She testified that she had to re-mortgage her home to consolidate her debts. She needed to cash in her registered retirement savings plan and cashed in the dividends from her son’s insurance policy. [ 49 ] April was cross-examined with respect to a number of unexplained regular deposits into her bank account. In 2007, over $40,000.00 was deposited, in 2008 approximately $20,000.00 was deposited and up to August 2009, $15,000.00 was deposited. The deposits stopped at the same time April was required to disclose her bank records and she was required to explain these deposits.

April explained that it was just coincidence that the deposits stopped when disclosure was ordered of her bank records. [ 50 ] April testified that, in 2007, she received $19,088.68 from her friend Nai Basha for credit card reimbursements and payment for a ring. She explained that Ms. Basha used her credit card as she did not have her own credit card. When asked about various purchases on her credit card for example, on 7 June 2007 to stores in Toronto such as Chanel and Gucci for purchases totalling $2,175.30, she explained that these were purchases by Ms. Basha. April testified that Ms.

Basha also gave her $6,000.00 in cash for other credit card reimbursements. In 2008, Ms. Basha advanced her $17,388.00. April could not explain why Ms. Basha did not have her own credit card. When asked why Ms. Basha was not called as a witness, April testified that she had a falling out with her and did not know how to reach her and she believed that she had returned to Lebanon.

Then, April testified that she had spoken to her about a week ago via Facebook. [ 51 ] In response to further questioning about the source of these unknown deposits, April testified that Chris Stephian, a former boyfriend, gave her $19,320.00 as a forgivable loan. [ 52 ] April testified that she received $2,245.00 as a gift from Keith Gillian whom she had briefly dated. [ 53 ] April also testified that her daughter, Melanie, had given her some money when Melanie was working part-time at Lay-Z- Boy and that her mother had also given her some money. [ 54 ] In 2009, she testified that she received a further loan of $13,740.00 from Andrew Corkhill, who is her current boyfriend.

A promissory note signed by Mr. Corkhill was produced, dated July 2010, about 18 months after the loan was made. [ 55 ] No other backup documentation was produced for any of these sums of money and these debts did not appear on any of the financial statements filed in these proceedings. April explained that this was an oversight on her part. She also testified that Mr. Corkhill resides in New York so he could not attend the trial and she had lost track of Mr. Stephian and Mr. Gillian. [ 56 ] April’s VISA credit cards statements were admitted into evidence.

The VISA statements are from three different accounts from 28 December 2006 to 27 August 2008, from 27 August 2008 to 4 December 2009 and from 3 September 2009 to 4 December 2009. April confirmed that her daughter Melanie had an extra card connected her own credit card. [ 57 ] I have examined these credit cards statements. The credit card statements indicate excessive spending for both herself and her daughter Melanie. For example, on 18 February 2007, Melanie purchased $847.01 worth of clothing at Holt Renfrew and spent a further $287.52 buying other items on the same day.

On 26 July 2008, Melanie purchased clothing from Holt Renfrew and H&M for $605.05. On 7 and 8 April 2007, April’s credit card shows purchases in Scottsdale, Arizona of $2,989.42 from Louis Vuitton, Victoria’s Secret, Neiman Marcus and Bebestores. From 16 to 26 March 2008, there are charges from restaurants and hotels in Nassau totalling $5,534.87.

Other examples include a charge of $429.65 on 8 April 2008 for a restaurant bill, several charges to a florist in the United States for $157.32, charges for hotels in Toronto, trips to Nassau and Arizona for herself and the children and trips for herself to New York and Los Angeles and excessive spending on many discretionary items.

The last VISA statement filed indicates a balance owing of $26,676.35 as of 27 May 2010. [ 58 ] When further cross-examined about her lifestyle, April admitted that she spent a lot of money before August 2009 and had a hard time re-adjusting her lifestyle and lived beyond her means. 4.5: Evidence Regarding Lack of Disclosure and Compliance with Temporary Orders [ 59 ] It was the position of April that Robert had not complied with court orders or requests from her former counsel for disclosure.

In fact, Robert voluntarily provided financial disclosure even before it was requested by April’s counsel in an effort to move

the proceeding forward. [ 60 ] When cross-examined about what disclosure was not made or what information was missing, April could not provide a single example of any disclosure that had been ordered or requested that Robert had not provided in a timely fashion. The extensive disclosure provided by Robert was filed in these proceedings in four large documents briefs. [ 61 ] It was also April’s position that Robert had not complied with court orders for the payment of support.

It was admitted that Robert did not pay spousal support from January 2009 to July 2009 in accordance with his obligations pursuant to the outstanding order on the basis that he had lost his job. [ 62 ] On 21 December 2009, Robert was ordered to pay a further $10,000.00 on a “without prejudice” basis for Melanie’s university costs. He had already on a voluntary basis paid $8,000.00.

Various e-mails were introduced into evidence confirming that Robert’s counsel advised April’s counsel that the cheque was available for pick up; when no reply was received, Robert mailed the cheque within a week to the Family Responsibility Office. April used this as an example of his non-compliance as she did not receive the $10,000.00 from the Family Responsibility office for a month. [ 63 ] April also maintained that Robert was in arrears of his support payments on the basis of the temporary order of 10 March 2009.

Pursuant to that order, on a “without prejudice” basis, Robert’s spousal support obligation was reduced to $0 from 1 January to 1 July 2009 and his child support obligation for Melanie and Matthew was reduced to $300.00 per month from 1 January to 1 July 2009. [ 64 ] On the basis of the statement of arrears filed in these proceedings, I find that there are no arrears. [ 65 ] It is the position of Robert that these proceedings were unnecessarily delayed as April either did not comply with the court orders and requests from counsel for disclosure or she complied so late that the proceedings needed to be adjourned.

There were several costs orders made against April as a result of this non-disclosure or late disclosure. The record is clear that this proceeding was significantly delayed by April. [ 66 ] Perhaps the most pertinent example of lack of disclosure in this trial was proof that Matthew was in attendance at school. It was not until April began her case that she produced a copy of Matthew’s report card for this semester and a

summary of his high school credits. April also only provided during this trial proof that Melanie had applied for OSAP for the school year 2010 to 2011 and documentation to substantiate some of Melanie’s post-secondary expenses. 4.6: Evidence Regarding Child Support [ 67 ] Robert testified that he had a difficult relationship with April’s children. He tried to be a parent and a friend to them. He described the relationship as “arm’s length”. At the time of separation, he agreed to support the children as he had the ability to pay and felt it was the right thing to do.

However, he did not expect to pay the same amount as he would have been required to pay if he was their biological parent. He also expected that the children’s education would be funded either through the government or the Six Nations or both. He felt that the separation agreement capped his financial responsibility to a maximum contribution of $8,000.00 per year. [ 68 ] Robert testified that he was not consulted about Melanie’s spending her first year of university abroad and received limited documentation regarding the cost.

He was not aware whether Melanie received assistance from the government or the Six Nations or both. [ 69 ] Robert testified that he contributed $8,000.00 towards her education program as he felt that this was in accordance with the terms of the separation agreement. When he was ordered to pay a further $10,000.00, he testified that he had to borrow this amount from his line of credit. [ 70 ] April testified that Melanie took a “victory lap” after completing grade XII, which was common for many students.

As I understood her evidence, Melanie took some extra courses during her second year of grade XII to improve her marks. Robert continued to pay child support that year. [ 71 ] Melanie was accepted at York University, Ryerson and University of Ottawa. The University of Ottawa even offered to match any bursary that she received from another university. Melanie initially accepted this offer, but her heart was set on going to Queen’s University. Her grades were not high enough to be accepted at Queen’s but she was accepted into their abroad program in England.

The cost of tuition and residence was about $28,000.00 and the total costs were about $35,000.00 to $37,000.00. When questioned about the program at Queen’s, April advised that it was an honours program, that Queen’s had a “fantastic” reputation, good status and Melanie would be respected for attending Queen’s. April testified that she was under the impression that Six Nations would provide funding but no funding was available. Melanie received an OSAP loan of about $11,000.00.

She also earned $7,735.62 in accordance with her tax return for 2009. [ 72 ] For the school year 2010 to 2011, Melanie is at Queen’s in the film program but is hoping to improve her grades so that she can continue as a psychology major. She received funding from Six Nations to pay for her housing costs but her tuition has not yet been paid. It was April’s belief that Melanie was also eligible for her tuition to be paid and Melanie was trying to contact the Department of Indian Affairs to follow up. In the meantime, she continues to be registered as a student and to attend despite her tuition not yet being paid.

April agreed that, if the tuition were paid, then Robert would not have an obligation to pay anything this year for Melanie’s post- secondary expenses. April testified that tuition and incidental costs were $6,265.00 but she did not provide any documentary proof. April did not know the amount of the OSAP loan that Melanie received for this school year.

She testified that Melanie only worked sporadically last summer. [ 73 ] Pursuant to the order of 10 March 2010, April was to deliver the tax receipt for the unused portion of Melanie’s tuition and education credit to Robert so he could use it on his 2009 tax return. There was a similar provision in the separation agreement. This has still not been done and therefore April is not in compliance with both the terms of the separation agreement and the court order. On

10 November 2010, counsel for Robert sent April a letter and a form that needs to be signed by Melanie. April had not forwarded theform to Melanie as she was seeking legal advice. April then agreed that she would forward the form to Melanie within 14 days. [74] At the commencement of this trial, the only proof that Matthew was in school was his grade XII report card for thesemester of September to December 2009. Counsel for Robert sent April an e-mail on 11 March 2010 requesting his report card. Theresponse was “Fuck off”. April’s explanation was that she was upset after the court proceedings the previous day.

April did not explainwhy she never sent this information after she calmed down. April apologized to Ms. Ballantyne for this e-mail in the course of hertestimony. [75] April produced for the trial, Matthew’s final report card for last year, proof of his registration this year and a

summary ofMatthew’s credits. Matthew is currently in his second year of grade XII. His report card confirms that Matthew has missed a great dealof school, was struggling in school and that he only took 2 credit courses last year. To be accepted into most college programs, he needs6 college level credits. Matthew has enough credits to graduate from high school once he has completed his compulsory communityservice hours.

The only purpose for his now attending school is to obtain enough college level credits to be able to apply to communitycollege where he would like to go. [76] April agreed that, if Matthew does not attend college, his child support should end at the end of June 2011. [77] There is no court order requiring the children’s biological father, Matthew Magermans, to pay child support. Accordingto Robert’s testimony, throughout the time that he resided with April, the children would see their father regularly and he would providevarying amounts of money for their support.

The amounts would vary from between $25.00 to $200.00. The longest period of timebetween support payments would be 6 to 8 weeks. [78] April testified that Mr. Magermans does not have enough money to contribute to the support of the children. She basedthis on the way that he lives and that he is currently not working and, when he works, it is only sporadically. She agreed that, when thechildren were younger, he would periodically give her money but now he just gives the children directly some money for gas, which isusually about $20.00 to $40.00. April also testified that she had requested that Mr.

Magermans provide her with proof of his income buthe did not have his T4’s. He had provided her with a letter that she included in her document brief and that had previously been sent toRobert’s counsel. When asked to explain why she did not produce him as witness, she indicated that she thought his letter would besufficient. [79] When asked in cross-examination how much she thought Mr.

Magermans could contribute to child support, she indicatedthat he could perhaps pay $100.00 a month. 4.7: Evidence Regarding Areoplan and Hilton Points and Life Insurance [80] In accordance with the terms of the separation agreement, Robert was required to immediately provide April with enoughAreoplan points for her to purchase three economy class tickets for her and the children and to provide 140,000 Hilton points.

Thereafter, he was required to make available to April 50% of the Aeroplan points (or other airline loyalty program) and 50% of HiltonHotel points (or other loyalty program) on an annual basis as long as he was required to pay child support. [81] Robert provided confirmation that he sent April statements up to September 2009 keeping her advised of the points hehad earned.

He also provided confirmation that he did have any other airline or hotel loyalty points except for Aeroplan and HiltonHotels. [82] April cross-examined Robert with respect to these points and tried unsuccessfully to establish that Robert had points withother loyalty programs.

She confirmed that she had received points that she had used for two trips for her and the children. [83] April testified that she never felt that she received the benefit of 50% of Robert’s points and then testified that she did notfeel it was worth fighting about and that she was not opposed to Robert’s request that he no longer be required to share his points withher. [84] The separation agreement required Robert to maintain life insurance of $500,000.00 with April as the beneficiary butprovided that the amount could be reviewed based on changes to his child and spousal support obligations. [85] It was Robert’s position that the amount of life insurance be reduced to $25,000.00.

April testified that she was notagreeing to the reduction since she did not know the ramifications or significance of the reduction. 5: ANALYSIS 5.1: Has Robert Met the Threshold Onus for a Motion to Change? [86] This is a motion by the Robert to change both spousal and child support. The onus is therefore on him to prove that therehas been a material change in circumstances that, if known at the time of executing the separation agreement and the consent order of 7August 2007, would have resulted in different terms.

The variation of both a child support order and a spousal support order may bebased on either a change in the child’s circumstances or a change in the circumstances of one of both of the spouses. See Willick v.Willick, [1994] 3 S.C.R. 670, 173 N.R. 321, 125 Sask. R. 81, 81 W.A.C. 81, 119 D.L.R. (4th) 405, 6 R.F.L. (4th) 161, [1994] R.D.F. 617,, [1994] S.C.J. No. 94, 1994 Cars​well​Sask 48.

Once a party demonstrates that there has been a material change, a courtmust then consider the same objectives and factors that are applied in making an original spousal support order as enumerated insubsections 33(8) and 33(9) of the Family Law Act, R.S.O. 1990, c. F-3, as amended. As put by the Court of Appeal in Trewin v. Jones,, 32 O.R. (3d) 225, 97 O.A.C. 140, 26 R.F.L. (4th) 418, [1997] O.J. No. 399, 1997 Cars​well​Ont 176 (Ont. C.A.)., at

paragraph [19], once the threshold is met, “the amount and duration of support is wide open.” [87] On behalf of Robert, it is submitted that there has been a material change in his circumstances as his employment wasterminated as of 15 December 2008. The order of 7 August 2007 was based on his income of about $180,000.00. It is also submittedthat April no longer has the need for spousal support as, since the order of 7 August 2007, she obtained employment.

It was furthersubmitted that the separation agreement, in any event, contemplated a review of spousal support as of September 2009 based on April’sability to support herself, taking into consideration her total income and income earning potential as well as Robert’s income. [88] It is April’s position that she is currently not employed and has the need for ongoing spousal support. She submitted thather employment has been hindered as a result of her relationship with Robert. [89] It is April’s position that Robert is intentionally underemployed.

She submitted that Robert was in receipt of employmentinsurance for 7½ months so that he could pressure her into agreeing to a reduction of his support obligations. She submitted there wasinsufficient evidence to establish that the downturn in the economy accounted for his unemployment and his subsequent employmentincome.

She submitted that Robert had a history of hiding income and that he was capable of earning far greater than he is now earning. [90] In order to determine whether there has been a change in Robert’s circumstances, I must consider whether income shouldbe imputed to him. 5.2: Should Income Be Imputed to Robert? [91] Clause 19(1)(

a) of the Child Support Guidelines states as follows: 19. Imputing income.—

(1) The court may impute such amount of income to a parent or spouse as itconsiders appropriate in the circumstances, which circumstances include, (

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonableeducational or health needs of the parent or spouse; . . . [92] It has been held that the same considerations apply to imputing income for spousal support purposes. See Rilli v. Rilli,, 151 A.C.W.S. (3d) 1130, [2006] O.J. No. 4142, 2006 Cars​well​Ont 6335 (Ont. Fam. Ct.); and Perino v. Perino,, 46 R.F.L. (6th) 448, [2007] O.J. No. 4298, 2007 Cars​well​Ont 7171 (Ont.

S.C.). [93] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionallyunemployed or under-employed. The party requesting an imputation of income must establish an evidentiary basis upon which thisfinding can be made. See Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars​well​-Ont 2068 (Ont. C.A.). [94] In Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293,[2002] O.J. No. 3731, 2002 Cars​well​Ont 3228 (Ont.

C.A.), the court explained that a determination whether a payor was intentionallyunder-employed did not require a finding of bad faith or the intention to defeat a support claim. The issue is whether the support payor,through his own conduct, which is not as a result of circumstances beyond his control, is earning less than he or she is capable orearning. [95] Applying these principles to the evidence in this case and on the basis of the evidence of Robert and Mr. Dybenko, whowas April’s witness, I find that Robert is earning as much as he is able to earn in this economic climate.

I accept Robert’s evidence thatthere were legitimate reasons for his changes in employment.

I find that April has not met the onus of proof required to establish thatRobert was intentionally unemployed from January to July 2009 or that he is now underemployed. [96] Therefore, on the basis of Robert’s change in employment income, there has been a material change in his circumstancesthat require his obligations to pay both child and spousal support to be reviewed. [97] On the basis of Robert’s stipulation that his income, for support purposes, should include his gross income and shouldinclude any income splitting with either April or Ms.

Ennis, I find there is no evidence that he is hiding income, earning undisclosedincome or has other benefits that are not declared. His support obligations will therefore be based on this income. 5.3: Is There an Ongoing Obligation to Pay Child Support for Matthew? [98] At the commencement of the trial, it was Robert’s position that child support should terminate as Matthew was over 18years of age and not in attendance at a post-secondary institution.

However, in the trial, April produced evidence to confirm thatMatthew was attending school as he was in his second year of grade XII, albeit he was not taking a full course load and not attendingregularly. On the basis of this evidence, it was submitted that Robert’s position was now that he was prepared to pay full amount ofchild support in accordance with the Child Support Guidelines to August 2010, when Matthew turned 18 years of age and then half thetable amount from September to June 2010 of $670.00 per month.

If Matthew should be accepted at a post-secondary institution, then hewas prepared to pay lump sum support of $8,000.00 per year. [99] Although Matthew seems to be struggling at school, he is still attending school and is still a dependant.

There was someevidence that he has a learning disability and therefore, I infer that he may have some difficulty in carrying a full course load. [100] Robert’s position that he should not be required to pay child support in accordance with the Child Support Guidelines afterMatthew turned 18 years of age is based on his not taking a full course load and not taking courses that would be accredited for his

admittance to a post-secondary institution. However, the courts have been flexible in the

interpretation of “full-time” attendance. SeeSullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 Cars​well​Ont 3340 (Ont. Div. Ct.); Nikita v.Nikita, , 114 A.C.W.S. (3d) 99, 16 O.F.L.R. 63, [2002] O.J. No. 1893, 2002 Cars​well​Ont 1673 (Ont. C.J.); andWilson v. Wilson, , 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 Cars​well​Ont 3838 (Ont.S.C.). In view of Matthew’s learning difficulties, which were not disputed, I do not think it is unreasonable to require Robert to continueto pay child support until the end of this school year. [101] It was also submitted that, in accordance with

section 5 of the Child Support Guidelines, the court is required, in dealingwith the obligation of a stepparent, to have regard to “any other parent’s legal duty to support the child.” [102] Both Robert and April testified that the biological father only provided sporadic amounts of support in the past, althoughRobert’s evidence suggested greater and more frequent amounts were paid.

I am not satisfied that the father has ever supported thechildren on any consistent basis. [103] I have also considered that, in the years Robert and April lived together, there was no attempt to seek a formal supportorder from the children’s biological father. In the separation agreement, there was no requirement for April to seek support from thebiological father, there was no acknowledgement that the biological father was paying child support nor was there any deduction fromRobert’s child’s support obligation in recognition of the biological father’s obligation to pay child support.

I therefore infer that theparty’s agreed that the biological father did not have the means to pay any child support. [104] There was no evidence that the biological father’s circumstances have changed. I find that, although the biological fathermay have a legal duty to support the children, he does not have the present financial means to pay support. I do not put any weight ofApril’s evidence that perhaps he could pay $100.00 per month as this was not based on any specific knowledge of his present financialcircumstances.

Accordingly, I am not prepared to deduct from the table amount of child support a contribution from the biologicalfather. [105] In my view, Robert should be required to pay child support for Matthew until the end of June 2011 as long as there is proofthat he continues to be registered in school as of January 2011. Thereafter, his child support will terminate as of 30 June 2011 unlessthere is proof that he has been accepted at a post-secondary institution. 5.4: Is There an Obligation to Pay Ongoing Child Support for Melanie, IncludingHer

Section 7 Expenses for Post-secondary School? [106] Robert also did not dispute that he was obligated to pay child support for Melanie from 1 January 2009 to 1 August 2009based on his 2009 income. [107] As of 1 September 2009, it is Robert’s position that he should not be required to pay guideline child support, as Melanie isover 18 years of age and has lived away from home while attending university. It is his position that, on the basis of the separationagreement, his contribution would be capped at a maximum of $8,000.00 per year up to a maximum of 4 years of post-secondaryeducation.

Robert testified that he had only paid $4,000.00 a year for his own children’s post-secondary education and felt that he wasbeing reasonable in agreeing to contribute a maximum of $8,000.00 a year for April’s children’s education. [108] With respect to Robert’s obligation to contribute to Melanie’s post-secondary expenses, it is clear from the separationagreement that his contribution was to be limited and that the parties expected that costs would be covered, because of the children’snative status, by either the government or the Six Nations.

The agreement provided that Robert’s obligation would be limited to hisproportionate share of the cost of tuition and books or, if the children went to school in the United States, it would be limited to hisproportionate share of food and residence up to a maximum of $8,000.00. [109] It could be argued that the wording of the separation agreement continued to require the ongoing child support to be paidin addition to a contribution to the child’s post-secondary expense. [110] However, subsection 3(2) of the child support guidelines provide as follows:

(2) Child the age of majority or over.— Unless otherwise provided in these guidelines, where a child towhom an order for the support of a child relates is the age of majority or over, the amount of an order forthe support of a child is, (

a) the amount determined by applying these guidelines as if the child were under the age ofmajority; or (

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 thefinancial ability of each parent or spouse to contribute to the support of the child. [111] The onus is on the party alleging that the guidelines are inappropriate to establish this on a balance of probabilities. Inmost cases where a child is away at university and is receiving what is essentially

section 7 support, courts have held that guidelinemonthly support is not appropriate. See Park v. Thompson, , 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th)730, 13 R.F.L. (6th) 415, [2005] O.J. No. 1695, 2005 Cars​well​Ont 1632 (Ont.

C.A.). [112] I find that it was the intention of the parties and consistent with the case law that Robert should not be required to pay bothongoing child support and pay his share of the cost of post-secondary expenses while Melanie was not living at home. [113] It was April’s position that Robert should pay his share of the cost of Melanie attending the Queen’s University program inEngland less the amount of Melanie’s OSAP loan. She submits that Robert’s share of Melanie’s expenses should not be limited to

$8,000.00. [114] The case law sets out a variety of factors for the court to consider when determining the issue entitlement for an adultchild. These factors include: the reasonableness of the child’s course of education and career plans, the age of the child, the ability ofthe child to contribute to their own support, the availability of student loans, the child’s education and whether or not the child hasunjustifiably and unilaterally terminated his or her relationship with the payor. See Vohra.v. Vohra, 2009 ONCJ 135, 66 R.F.L. (6th) 216,[2009] O.J. No. 1446, 2009 Cars​well​Ont 1860 (Ont. C.J.); Rebenchuk v.

Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261, [2007] 5W.W.R. 87, 389 W.A.C. 261, 279 D.L.R. (4th) 448, 35 R.F.L. (6th) 239, [2007] M.J. No. 130, 2007 Cars​well​Man 59 (Man. C.A.);Farden v. Farden, , 48 R.F.L. (3d) 60, [1993] B.C.J. No. 1315, 1993 Cars​well​BC 619 (B.C. Mast.). [115] In this case, the most relevant consideration is whether it was reasonable for Melanie to attend university in England forthe school year 2009 to 2010.

Robert was not consulted in advance about April’s incurring this expense and April was aware that Roberthad lost his job as of 15 December 2008 and was attempting to reduce or terminate his support obligation. April had not able to secureany financial assistance from the Six Nations and her own financial resources were limited. Nevertheless, April agreed that Melaniecould attend this program despite the fact that Melanie had been accepted at other universities in Ontario. [116] There is no evidence that this was a specialized program that was not available elsewhere.

The only justification providedwas that Melanie wanted to attend Queen’s University and that it was only by attending the Queen’s abroad program would she be ableto enter second year at Queen’s. [117] The onus is on April to satisfy the court that this substantial expense was justified. I am not satisfied that she has met thatonus.

Robert voluntarily agreed to pay $8,000.00 as his share of the cost of Melanie’s post-secondary education for 2009 to 2010 and hisshare of Melanie’s post-secondary expenses shall be limited to that amount. [118] On 2 December 2009, Robert was ordered to pay a further $10,000.00 towards the cost of Melanie’s post-secondaryeducation but that order was made on a “without prejudice” basis and contemplated that, if this payment was found to be anoverpayment, then it could be applied to or offset any other financial obligation.

He is therefore entitled to a credit of $10,000.00. [119] On an ongoing basis, it is difficult to fix the amount of Robert’s contribution. For example, for the school year of 2010 to2011, it appears from the evidence that Melanie’s housing costs have been paid by the Six Nations and that is it likely that her tuitionwill also be paid by the Six Nations. There is no evidence about the amount that Melanie received from OSAP or what contributions shecan reasonably be expected to contribute.

The amount that Melanie will receive form student loans and the availability of grants fromthe Six Nation will fluctuate from year to year. On the basis of the difficulties and delays in obtaining disclosure from April and her lackof full and complete disclosure in these proceedings, it is reasonable to assume that Robert would in the future have the same difficulties.

His proposal to pay the maximum amount contemplated in the separation agreement of $8,000.00 a year for the completion of a 4-yearundergraduate degree is a practical and reasonable solution in this case that would only require April to provide proof that Melanie isregistered in school. As Melanie is currently in her second year of university, Robert would therefore be required to pay a further$8,000.00 per year up to and including school year of 2012 to 2013. 5.5: Is April Entitled to Ongoing Spousal Support?

If So, in What Amount and forWhat Duration? [120] It is April’s position that she has the need for ongoing spousal support and that Robert has the ability to pay support.

Itwas her evidence that, as a result of Robert’s commencing this court proceeding, she was fired from her job as she had to take time offwork to attend court and to prepare for these proceedings. [121] It is Robert’s position that all spousal support should terminate as of 1 January 2009 when he lost his employment and that,in any event, a review of April’s entitlement to support was to occur in September 2009 in accordance with the separation agreement. [122] In order to examine the issue of ongoing entitlement to spousal support, it is necessary to consider the objectives of aspousal support order.

Subsection 33(8) of the Family Law Act provides as follows:

(8) Purposes of order for support of spouse.— An order for the support of a spouse should, (

a) recognize the spouse’s contribution to the relationship and the economic consequences of therelationship for the spouse; (

b) share the economic burden of child support equitably; (

c) make fair provision to assist the spouse to become able to contribute to his or her own support;and (

d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) andII (Matrimonial Home). [123] This was a relationship of only six and half years. April did not make any financial or career sacrifices as a result of herrelationship with Robert. On the contrary, she advanced her career and increased her earning potential as Robert supported April’sreturning to school to obtain a degree in interior design. April was not required to assume any additional child care responsibilities asRobert assisted her in caring for her children and supported them financially.

There is also no evidence that Robert in any way hinderedher employment prospects. [124] April left the relationship in a better financial position than when she began the relationship; she had a vehicle, savings andwas able to purchase a home. [125] However, there is no question that April suffered an economic hardship as a result of the breakdown of the relationship andin particular by the loss of the parties’ standard of living. The basis of the spousal support order was therefore on a non-compensatory

basis and with the expectation that, within a reasonable amount of time, April would be able to re-adjust her life style and become self- sufficient. The separation agreement contemplated a review of her circumstances as of September 2009, which is after receiving spousal support for 5 years. [ 126 ] Ms.

Ballantyne, on behalf of Robert submitted the following chart summarizing the amount of the support received by April since the date of separation: Time Period Total Amount Paid Adjusted value (notional taxes of 36% deducted – midpoint between parties’ income tax) Lump sum on signing of agreement (tax deductible) $45,000 $28,800 Credit card charges paid on saging agreement $13,600 $13,600 04 September to 07 May (inclusive) $2,000 x 33 months = $66,000 $42,240 07 June to 08 December (inclusive) $1,200 x 19 months = $22,800 $14,592 Total Lump-Sum Value of Spousal Support Paid $99,232 [ 127 ] Ms.

Ballantyne also submitted various Divorce-Mate calculations to indicate that, on the basis of the Spousal Support Advisory Guidelines , Robert has either exceeded the amounts that should be payable or has paid close to the appropriate amount of support and had paid support for an appropriate duration. [ 128 ] The Spousal Support Advisory Guidelines are not definitive but they are a “useful tool to assist judges in assessing the quantum and duration of spousal support.” See Yemchuk v.

Yemchuk , 2005 BCCA 406 , 215 B.C.A.C. 193, 44 B.C.L.R. (4th) 77, 355 W.A.C. 193, [2005] 10 W.W.R. 634, 257 D.L.R. (4th) 476, 16 R.F.L. (6th) 430, [2005] B.C.J. No. 1748, 2005 Cars​well​BC 1881 (B.C.C.A.), at paragraph [64]. Although primarily applicable to initial applications, with care, they can still be a useful tool on variation applications. See Beninger v. Beninger , 2007 BCCA 619 , 249 B.C.A.C. 193, 75 B.C.L.R. (4th) 228, 414 W.A.C. 193, [2008] 4 W.W.R. 193, 47 R.F.L. (6th) 11, [2007] B.C.J. No. 2657, 2007 Cars​well​BC 2984 (B.C.C.A.) and the

article by Carol J. Rogerson and D.A. Rollie Thompson: The Advisory Guidelines Three Years Later , prepared for the National Judicial Institute, Family Law Seminar (Quebec, 13- 15 February 2008). [ 129 ] In this case, the spousal support calculations presented by Ms.

Balantyne reinforced my independent analysis that April had received sufficient support for enough time to overcome any economic disadvantage from the end of her relationship to Robert. [ 130 ] April has a duty to become self-sufficient and to adjust her lifestyle to her own income. [ 131 ] In this case, despite the lump-sum and periodic support that April has received, she has no savings for either herself or the children’s education and has incurred significant debt. It is abundantly clear that she has lived well beyond her means and has made absolutely no attempt to adjust her life style after the separation.

She has spent money frivolously and extravagantly. I reject her evidence that many of the purchases on the credit card were made on behalf her friend Ms. Bash. Her explanations defied common sense and she provided no documents to corroborate her evidence and she did not call Ms. Bash as a witness. [ 132 ] The other issue to determine is the income of April. I found April’s evidence as to the source of the various deposits to her bank account not to be credible.

I base my finding on the fact that she did not call any of the friends as witnesses who, she testified, either gave her or loaned her money, the coincidence of the deposits stopping as soon as disclosure of the records was requested, the lack of noting these debts on her financial statements and the lack of any documentary proof of these loans. I therefore find that April either has a source of undisclosed income or has access to another source of support. [ 133 ] April is currently not employed but I find that her loss of employment cannot be related to her separation from Robert.

If April did lose her job as a result of missing work as she needed to attend court, then she is responsible as most of the added attendances were because of her lack of compliance with court orders or not being properly prepared. As of the date of the trial, April had not yet even made inquiries about obtaining unemployment insurance. [ 134 ] Based on April’s experience and qualifications, I would impute income to her in the range of $30,000.00 to $33,000.00. This does not include April’s other source of income.

If this was included, then her source of income would include at least another $20,000.00 per year. [ 135 ] I find that, as of 1 January 2009, as a result of Robert’s loss of income, he did not have the means to pay spousal support. As of 1 August 2009, he did obtain employment and began to earn $150,000.00 but, as of that date, in my view April should have been able to reduce her life style to live within her own means and Robert had met his obligations. Therefore, as of 1 January 2009, Robert’s obligation to pay spousal support shall terminate.

Any money paid since then shall be a credited to him. 5.6: Splitting of Aeroplan and Hilton Hotel Points [ 136 ] It is my understanding of April’s submission that she is now agreeable to terminating Robert’s obligation to share these points. But in the event that I am mistaken, then I find that, up to 1 January 2009, Robert has abided by the terms of the separation agreement and provided disclosure of all of the loyalty points to which he is entitled and that he had divided them equally.

In view of the acrimony between the parties, the negligible amount of points now being accumulated, the fact that Robert is no longer is required to pay spousal support and the points are not being used for any trips for the children (which was the purpose stated in the separation

agreement) his obligation to share these points with April is terminated. 5.7: Life Insurance [ 137 ] In view of the reduced amount of support that Robert is now required to pay, he will be permitted to reduce his life insurance to $50,000.00 and he will no longer be required to maintain this insurance when both Melanie and Matthew have completed their post-secondary education and his support obligation to them ends. 5.8: Tuition Credit [ 138 ] April agreed that she would forward the necessary document to Melanie for her signature so that Robert would be entitled to claim the unused portion of her tuition credit.

The tax savings to Robert of about $2,000.00 per year was not disputed. As Melanie is not a party to these proceedings, I cannot compel her to execute the necessary documentation but I was requested to make an order that, if April does not forward the documents to Robert, then $2,000.00 a year should be deducted from the support Robert is required to pay. The parties previously agreed that Robert would be entitled to use this tax credit in their separation agreement and this was also subject to a court order.

As April did not comply, I agree that there needs to be financial penalty if she fails to comply and that the relief requested is reasonable. [ 139 ] The court orders that the order of 7 August 2007 shall be varied as follows: 1. The applicant, Robert Yarmo’s spousal support obligation to the respondent, April Friend shall terminate as of 1 January 2009. 2.

The applicant shall pay child support for the two children Melanie Magermans (born on 11 June 1990) and Matthew Magermans (born 16 August 1992), in accordance with the Child Support Guidelines from 1 January 2009 to 1 August 2009, inclusive of $1,098.00 per month, based on his 2009 income of $76,235.00. 3. The applicant shall pay child support for Matthew, only from 1 September 2009 to 1 December 2009 of $689.00 per month. 4. The applicant shall pay child support for Matthew from 1 January 2010 to 1 December 2010 of $1,254.00 per month, based on the applicant’s 2010 income of $150,000.00. 5.

From 1 January 2011 to 1 June 2011, the applicant shall continue to pay child support for Matthew of $1,250.00 per month, based on his 2010 income of $150,000.00, only on the condition that, within two weeks, the respondent provides proof to the applicant and Director of the Family Responsibility Office that Matthew is registered in a minimum of three courses at an accredited high school program. 6.

Upon the respondent’s providing to the applicant and Director of the Family Responsibility Office proof that Matthew is enrolled at a post-secondary institution no later than 15 September 2011 and 15 January 2012 and each following semester, the applicant shall pay $4,000.00 for each semester up to a maximum of a four-year program. 7. The applicant’s contribution for Melanie’s post-secondary expenses for the school year September 2009 to June 2010 is limited to $8,000.00 only and a further $8,000.00 for each school year that she is a full-time student from September 2010 up to June 2013.

The respondent shall provide proof to the applicant and Director of the Family Responsibility Office no later than 15 September 15 of each year, commencing on 15 September 2011, that Melanie is enrolled full-time in a post-secondary institution. 8. The applicant shall be given credit for all overpayments he has made as a credit against his child support payments. 9. The applicant’s obligation to share his Areoplan and Hilton loyalty points is terminated as of 1 January 2009. 10.

The applicant shall be required to maintain life insurance of $50,000.00 to secure his support obligations for as long as he continues to be required to pay child support. 11. The respondent shall deliver a tax receipt within 14 days for the unused portion of Melanie’s tuition and education credits to the applicant so it may be used by him on his 2009 tax return and for each subsequent year she is in school, to be provided by 1 April of each year. If no such receipt is delivered, the applicant shall be entitled to deduct $2,000.00 from his contribution to Melanie’s post-secondary expenses.

The same requirement shall apply to Matthew if he attends post-secondary institution. If such a credit is unavailable or a lower credit is applicable, the respondent may apply to the court to re-adjust the calculation of the tax benefit to the applicant. 12. As the applicant is the successful party, he is presumed to be entitled to costs. The applicant shall serve and file brief written submissions as to the costs of the trial with a bill of costs attached within 14 days. Costs will include the costs previously ordered against the respondent. The respondent shall submit her response within 14 days.

The applicant can file a reply, if any, within 10 days.