C.S. v. D.A.S., 2020 ONCJ 16

ONTARIO COURT OF JUSTICE CITATION: C.S. v. D.A.S. , 2020 ONCJ 16 DATE: 2020 01 10 COURT FILE No.: Toronto FO-18-15650-00-A2 BETWEEN: C.S. Applicant (mother) — AND — D.A.S. Respondent (father) Before Justice Alex Finlayson Heard on December 4 and 5, 2019 Reasons for Judgment released on January 10, 2020 Dani Z. Frodis and Ilana Arje-Goldenthal.................. counsel for the applicant mother D.A.S.......................................................................... respondent father, on his own behalf ALEX FINLAYSON J.:

PART I: NATURE OF THIS TRIAL [ 1 ] This is my Judgment following the trial of a Motion to Change the child support terms a Separation Agreement, dated January 13, 2009. The Agreement was filed with the Court on June 19, 2018, pursuant to

section 35 of the Family Law Act, R.S.O. 1990, c. F-3 , as amended, and Rule 26 of the Family Law Rules. [ 2 ] By the time of the trial, most of the issues had settled. The remaining issues are twofold. [ 3 ] First, the parties ask the Court to decide how their two girls’ post-secondary expenses shall be shared. Complicating that issue is that the parents had established two separate Registered Education Savings Plans (“RESPs”) for their girls’ education. The parties’ Separation Agreement sets out how any RESPs (and other savings) are to be taken into account in apportioning those university expenses.

But soon after the Separation Agreement was signed, the parties did not fully follow its terms. This raises a question about whether the mechanism in the Separation Agreement should be enforced, or whether there should be some other arrangement put in place, whether by way of a variation of the Separation Agreement, or otherwise. [ 4 ] The Applicant mother wants the Court to order an outcome that is different from what the Separation Agreement would provide.

With some minor mathematical adjustments, the mother’s position is that the money that each parent saved in the RESPs should be applied to defray her and his respective shares of the university expenses. [ 5 ] The Respondent father says that the Separation Agreement requires all of the money in the RESPs to be used first, and only then would any uncovered expenses be apportioned between the parents.

He also reserves the right to require the mother to spend some other money, which has accumulated in two Scotiabank accounts, before he is called upon to contribute. [ 6 ] Second, although the parties’ eldest child is only in her second year of an undergraduate degree, and the youngest child is still

in high school, the mother asks the Court to rule about how the cost of graduate degrees will be shared. She says the Court should rule on this issue at this time. The father disagrees. [ 7 ] For reasons that follow, I would vary the Separation Agreement to provide for an outcome that approximates, with some modification, the mother’s position about the sharing of the girls’ undergraduate expenses.

As a result, the Court finds that some money is owed by the father to the mother for university expenses already paid by her, but not quite as much as the mother claimed at the trial. [ 8 ] Going forward, the parties will share the university expenses on a 60% (father) - 40% (mother) basis, and each may access the individual RESPs that he and she has saved for the girls’ education, to defray his and her respective shares of the expenses. [ 9 ] The Court is also ordering a review about how the cost of graduate degrees will be shared. The Court finds that it is premature to decide that issue at this point.

PART II: BACKGROUND FACTS [ 10 ] The parties were married on May 25, 1997. They are the parents of two girls, H.S. (now age 19) and I.S. (now age 16). [ 11 ] The parties separated on December 1, 2005, and were divorced on August 11, 2008. They entered into their Separation Agreement on January 13, 2009. Both were represented by experienced family law counsel at the time. [ 12 ] The eldest child, H.S., is currently in her second year of university in another province.

The youngest child, I.S., is in grade 12 at a high school in Toronto. [ 13 ] Until H.S. went away to university, she lived with the mother primarily pursuant to the Separation Agreement. I.S. continues to live with her mother primarily. [ 14 ] Both parents are lawyers. [ 15 ] The mother is employed as in-house counsel for a professional regulatory body. The father is a self-employed lawyer, who runs a busy civil litigation practice. [ 16 ] The father chose to represent himself at the trial.

PART III: PRIOR PROCEEDINGS AND THE PARTIES’ AGREEMENTS A. The Conduct of the Trial [ 17 ] This matter was initially scheduled to go to trial in September 2019, but it did not proceed that day. The trial was then rescheduled to the December 2019 trial sittings. [ 18 ] For use at the trial, each party tendered an affidavit that comprised part of her and his examination in chief. The mother’s trial affidavit was sworn on November 27, 2019 and the father’s on September 20, 2019.

In addition, each party supplemented their trial affidavits with viva voce examination-in-chief, and each was cross-examined. [ 19 ] Prior to the trial in December 2019, however, there was a Trial Management Conference before me. That occurred on November 20, 2019. At it, I endorsed what the issues for trial would be, in consultation with the parties. [ 20 ] By the time of the November 20, 2019 TMC, the parties had already resolved some of the mother’s retroactive special or extraordinary expenses claims pursuant to

section 7 of the Child Support Guidelines . And then again, by the first day of the trial (December 4, 2019), the parties had reached a further Consent. [ 21 ] As such, the two issues that I ultimately heard about at the trial, were considerably more narrow, compared to what was initially in issue. B. The Separation Agreement dated January 13, 2009 [ 22 ] To decide the two remaining issues in this case, I begin by examining the terms of the parties’ Separation Agreement. [ 23 ] Regarding child support in particular, the Separation Agreement provides: (

a) The parties had joint custody of the children, but as I have said, they resided with the mother primarily; (

b) Child support was based on the father’s 2007 income of $176,258.00 per year. The mother’s income at the time is not spelled out in the Agreement per se , but I note that the parties agreed to share special or extraordinary expenses pursuant to

section 7 of the Guidelines on a 54% (Father) – 46% (Mother) basis [1] ; (

c) The father agreed to pay child support for the two children in excess of the table. The Agreement states that he would pay $3,000 per month commencing on December 1, 2008. The Agreement also says this was $703 per month higher than the table for two children at the time. The parties acknowledged that the father would pay more than the table because “his income fluctuates annually and he recognizes that the needs of the children require this greater contribution”; (

d) There are certain

section 7 expenses listed that were to be shared in addition to the child support of $3,000 per month. At the time, those were a nanny expense of $430 per month, as well as annual private school fees, camp fees and the children’s uninsured health expenses;

(

e) The Agreement contains an acknowledgement that the children’s expenses may change from year to year. As such, the parties were to confer in advance and agree upon the children’s activities and their associated costs from time to time. Failing agreement, the parties were supposed to submit such disputes to arbitration; (

f) The parties also acknowledged that the amount of child support would vary from year to year, based on changes to the father’s income for the previous year; and (

g) Pursuant to paragraphs 5.7 and 5.8 of the Separation Agreement, the father was supposed to disclose his income for the previous year by July 15 each year. The monthly amount of child support, as well as the percentages for sharing

section 7 expenses were then supposed to be adjusted as of August 1. The first such change ought to have occurred on August 1, 2009, based on 2008 incomes. [ 24 ] Paragraph 5.9 is the RESP clause in the Agreement. I reproduce it here verbatim. It reads: [C.S.] and [D.A.S.] will each contribute $100.00 per month per child (being $200.00 per month by each of [C.S.] and [D.A.S.]) to the children’s RESPs until such time as maximum contribution is reached. [C.S.] will remain as the trustee for the RESPs and savings accounts and she will provide [D.A.S.] with account information annually.

Any monies in these savings vehicles will be deemed to be the children’s monies for the purposes of determining each party’s proportionate contribution to post-secondary expenses. For greater clarity, [C.S.] and [D.A.S.] will share post-secondary expenses on a proportionate basis after monies have been paid out of the children’s RESPs and savings accounts. [ 25 ] Paragraph 5.10 of the Separation Agreement is a fairly common child support termination clause, taken from the precedent Separation Agreement used by many family law lawyers in Ontario.

Among other things, it provides for the termination of child support when a child obtains one post-secondary degree or diploma.

However, in their Consent of December 4, 2019, which I will come to, the parents varied the child support termination clause on consent, and so they now agree they will share the cost of any graduate degrees in some fashion. [ 26 ] Pursuant to paragraphs 5.11 through 5.16 of the Separation Agreement, there was to be a child support review when a child began to live away from home for educational purposes, or if the father’s obligation to support a child ended. [ 27 ] Separately, the Separation Agreement provides that child support is variable.

There is a fairly common process mapped out for the parties to address child support variations, including giving notice of any changes and the like. [ 28 ] Any such reviews and variations were also supposed to go to arbitration according to the Separation Agreement. [ 29 ] Finally, paragraph 13.5 of the Separation Agreement, upon which the father relies in support of his position respecting the RESPs, provides that, “[a]ny amendments to this Agreement must be in writing, signed by the parties, dated and witnessed.” [ 30 ] I address below his argument about the effect of this latter paragraph on the parents’ RESP dispute.

C. The Consent Order of December 4, 2019 [ 31 ] On the first day of trial, the parties tendered a draft Order, which the Court granted on consent, memorializing the terms that settled most of the issues for the trial. The Consent Order dated December 4, 2019 provides: (

a) The mother’s income for the purposes of calculating child support on a go-forward basis is $260,000 and the father’s income is $400,000. It is clear from the Consent that both parents are now earning more than they did at the time of the Separation Agreement; (

b) The father shall pay child support of $3,758 per month commencing October 1, 2019. This amount is based the father’s income, with one child being at home with the mother (I.S.) and the other child (H.S.) at home with the mother under what the Consent refers to as the “summer formula” [2] ; (

c) If I.S. moves out to pursue post-secondary education, then the father shall pay $1,692 per month, which is the amount of child support for both children at home under the so-called “summer formula” [3] ; (

d) Pursuant to paragraph 4, the parties agreed that various expenses are

section 7 expenses, including post-secondary expenses for both undergraduate and graduate degrees. Paragraph 4(

e) in particular says this. In paragraph 4(e), the parties define post-secondary expenses in to mean: Post-secondary education costs and all ancillary costs including tuition, residence, books, meals and living expenses (including both undergraduate and graduate degrees); (

e) However, although the parties agree that post-secondary expenses are shareable in some fashion, they were unable to agree about exactly how that would happen. Paragraph 5 of the Consent Order says that the father shall pay 60% of the agreed to

section 7 expenses listed in paragraph 4, but not the post-secondary expenses listed in paragraph 4(e). This is the apportionment issue, which has been left to the Court to decide; (

f) The parties settled retroactive child support. They agreed that the father shall pay to the mother $100,000 in full and final satisfaction of all retroactive table child support up to September 30, 2019; (

g) The parties also settled most of the retroactive

section 7 expenses, other than retroactive post-secondary expenses. The Consent provides that the father shall pay an additional $20,000 in satisfaction of all arrears of

section 7 expenses up to September 30, 2019, other than post-secondary expenses for H.S. Retroactive post-secondary expenses were left to the Court to determine because the mother had paid for almost all of H.S.’ university expenses for her first year and first half of the second year of university, but there remains the dispute about how the RESPs should

ought to have been used before apportionment of the already incurred expenses between the parents; (

h) Going forward, the parties are to exchange disclosure annually within 30 days of the anniversary of the Order; and (

i) The father shall pay costs to the mother in the amount of $33,000 in relation to all issues in the proceeding, other than costs relating to the RESP issue. [ 32 ] Then, paragraph 9 of the Consent Order neatly frames the remaining issues for the Court. It reads as follows: The parties will ask the court to adjudicate on the issue of how funds in the children’s RESPs will be used towards post-secondary expenses to address both ongoing post-secondary education costs and arrears of H.S.’ post-secondary education costs and will be bound by the Court’s determination. Costs of that issue will be determined by the court.

PART IV: THE PARTIES’ POSITIONS [ 33 ] It is not disputed that well before the Separation Agreement was signed, the mother had already established a RESP for H.S. She was the only parent who made contributions into it. As of the date of the Separation Agreement, there was no RESP for I.S. yet set up. [ 34 ] Had the parents actually followed the Separation Agreement after signing it, then they would have established a second RESP for I.S. The mother would have been the trustee of it.

Each parent would have then started contributing into both RESPs, for both girls, equally, and the mother would have provided statements to the father for both RESPs. [ 35 ] Rather than doing this, soon after the Separation Agreement was signed, the father set up his own RESP for I.S. instead. He proceeded to contribute into it in differing amounts. The mother continued contributing into the RESP for H.S., but made no contributions into the newly created plan for I.S.

She paid $200 per month into the RESP for H.S. (as opposed to $100 per month into the plan for H.S. and $100 per month into the plan for I.S.). [ 36 ] This was done, on consent, following a discussion between the parties.

This new arrangement was not documented in writing. [ 37 ] What the parents did not discuss or agree upon at the time, however, was how the funds in each of the separate RESPs, saved under this new regime, would be applied to defray the anticipated university costs in the future. [ 38 ] In her revised draft Order that she then tendered as part of her Opening Trial Statement, the mother asks the Court to require the father to just pay 60% of the children’s post-secondary education costs as defined in paragraph 4(

e) of the Consent Order. [ 39 ] Regarding the expenses she has already incurred for H.S.’ post-secondary education to date, except for the sum of $16,552.51 (the amount in the RESP for H.S. at the date of separation, which the mother is prepared to share with the father), the mother takes the position that each party should apply the RESP funds that he and she has individually saved towards his or her share of these expenses.

She takes a similar position regarding the expenses for both girls going forward. [ 40 ] In other words, most of the funds in the RESPs would not ‘come off the top’ before apportionment of the expenses for both girls. [ 41 ] Because, as I have said, the mother had already paid for most of H.S.’ university expenses so far, she says the father now owes her $10,725. To calculate this sum, the mother deducted the $16,522.51 existing in the RESP for H.S. at the date of separation from the total amount she spent on H.S. to date.

She then apportioned the balance of the amount she spent to date pro rata to the parties’ incomes. [4] She has also given the father a small credit for her share of 4 months of H.S.’ rent that he paid. [ 42 ] Because the amount in the RESP for H.S. as of the date of separation would be fully used up in this retroactive calculation, going forward, there would be no further deduction from H.S.’ RESP account to the father’s credit. Likewise, when (or if) I.S. goes to university, the father can use his RESP for I.S. in full as he sees fit, to defray his share of I.S.’ expenses.

It would not be taken into account when determining the mother’s share. [ 43 ] As I have said, the father’s position (per his draft Order tendered for his Opening Trial Statement) is that all of the RESPs for both girls should be used first, before any post-secondary expenses are apportioned between the parents. Only once all of the RESPs are depleted would he be obliged to share the cost of any remaining post-secondary expenses for either child. The father has also reserved the right to require the mother to draw on savings in two Scotiabank accounts for the girls’ benefit.

Specifically, while he first said that he was in Court only “to deal with the RESPs”, he later said that the children’s other savings should be exhausted first too, before he is required to contribute anything to the post-secondary expenses. [ 44 ] Consequently, he says he does not owe the mother any further retroactive amounts at this time beyond that which he has already agreed to pay in the Consent Order of December 4, 2019. According to his math, and even without taking the Scotiabank savings into account, the father says that the mother actually owes him $3,100.00.

This represents her share of various things that he has paid for the children, beyond just rent.

PART V: THE PLEADINGS [ 45 ] I wish to address, at the outset of this Judgment, the father’s technical objections to the mother’s pleading. [ 46 ] In his Opening Trial Statement, the father told the Court that he is asking for an

interpretation of the Separation Agreement only. He says that the parties’ verbal agreement to change the methodology for the use of the RESPs from that in the Separation Agreement cannot “supplant” the Separation Agreement, because the change was not made in writing, as required by paragraph 13.5 of the Separation Agreement. And since he says there is no claim before the Court to vary paragraph 5.9 of the Separation Agreement, the

Court must simply interpret and enforce the contract, the result of which is that the mother’s claims must fail. [ 47 ] In closing submissions, the father complained about unfairness, based on the way in which the mother’s pleading was drafted, and the manner in which the mother’s case was presented during the trial. Specifically, he alleged that he did not have notice that the mother was moving to vary paragraph 5.9 of the Separation Agreement, and so he says the Court should not vary it. [ 48 ] It is true that the mother’s submissions about the legal route to the result she seeks were somewhat unfocused, and they changed during argument. The mother argued for an

interpretation of the contract, but she also maintained that the Separation Agreement was not followed. As such, she said that the father should not be permitted to rely on his own breaches to the Separation Agreement to his advantage. [ 49 ] Additionally, and in

part in response to questions from the Court, the mother submitted that the Court could (and should) simply apportion the university expenses on a 60% (father) – 40% (mother) basis, without reference to the RESPs. According to the mother, if the Court just says nothing about the RESPs in its Order, then the legal ownership of the RESPs would lead to the result she seeks, with the ‘chips falling’ into place, in effect.

But if the Court were to simply apportion the university expenses without addressing the RESPs, this would be tantamount to the Court either ignoring, or in effect changing the terms of the Agreement. And the Court cannot do this unless it is legally sound to do so on a principled basis. [ 50 ] Finally, the mother also submitted that varying the Separation Agreement was another avenue to arrive at the result sought. [ 51 ] In my view, the Court is not precluded from considering whether this latter route (or any others advanced by either party) should be ordered.

I will explain why. [ 52 ] Again, the Separation Agreement was filed with the Court pursuant to

section 35 of the Family Law Act and Rule 26 of the Family Law Rules . The mother commenced this proceeding as a Motion to Change at the same time that she filed the Agreement with the Court on June 19, 2018. [ 53 ] This matter is a properly constituted Motion to Change a Separation Agreement pursuant to

section 35 and 37 of the Family Law Act , brought under Rule 15 of the Family Law Rules. [ 54 ] Based on a reading of the Motion to Change alone, this proceeding does include a request by the mother to vary the Separation Agreement, to claim child support based on the father’s income, as well as to pursue

section 7 expenses owing to the mother under it. And the parties have since consented to vary certain terms of the Agreement to deal with those issues. [ 55 ] Initially of course, this case concerned much more than the narrow issues that I heard about at this trial. When she started the proceeding, the mother did not have the disclosure she needed from the father to even be in a position to further refine her pleading and to claim the more specific amounts she alleged were owing to her. As I will explain, obtaining disclosure from the father had been a problem.

In short, when this case commenced, she neither knew his income in various years, nor what he had put into the RESP for I.S. Consequently, in her Motion to Change, the mother sought an order for financial disclosure so she could figure that out. By the time of trial, she was in a position to better quantify the value of her claims, although she did not do so by way of a formal amendment to the Motion to Change. [ 56 ] It is true that the Motion to Change does not specifically ask the Court to vary the RESP clause in paragraph 5.9 of the Separation Agreement.

Rather, in the Motion to Change itself, the mother only asks that the father be required to produce all statements associated with the separate RESP account that he opened for I.S. But despite the failure to specifically mention paragraph 5.9 in the Motion to Change, and to use the word “vary” in so doing, the mother still clearly indicated, in an overall way in her pleading, that she was claiming a contribution from the father for his share of the university expenses. Elsewhere in the body of her pleading, the mother listed the various amounts of university expenses for which she sought contribution.

They appear to be exclusive of deduction of any RESP funds. [ 57 ] The resources available for the benefit of the children, and how they should be applied, are issues that have to be determined under the ambit of such a claim. [ 58 ] Although neither party amended his and her pleading for the trial, I wish to repeat here that there was a Trial Management Conference before me on November 20, 2019. On that date, I specifically asked the parties to tell me what the issues for trial would be.

Both parties agreed that the determination of the father’s income from 2009 to present, retroactive child support from 2009 to present, post-secondary expenses, ongoing child support and the sharing of

section 7 expenses (predominantly post-secondary expenses and some others) and costs were the issues for trial. Once again, how post-secondary expenses would be shared was one of the issues that was specifically put at the forefront, this time by both parties. [ 59 ] On November 20, 2019, I also noted in the TMC Endorsement that certain issues had been settled as of that date, and I directed the parties to come to Court with a draft Order to deal with those issues.

I further directed the parties to prepare written Opening Trial Statements with draft Orders containing the proposed terms sought for use at the trial, so that it would be clear as to the precise relief that each was seeking when the trial started. And I indicated that the parties could make oral Opening Trial Statements in addition to the written ones. Both parties made those oral Opening Trial Statements. [ 60 ] In Frick v. Frick, 2016 ONCA 799 , the wife had claimed an equalization of net family property in her pleading.

She then moved to amend her pleading to include an unequal division of net family property. The motions judge struck the claim for an unequal division on his own initiative, without granting the leave to amend. In so doing, the motions judge was critical of the wife’s failure to plead material facts relating to the claim. [ 61 ] On appeal, in allowing the claim to proceed, Benotto J.A. said the following at ¶ 11: The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family

rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution,medication and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy particular to alawsuit that involves a family. [62] At ¶16, Benotto J.A. held that the family rules do not require all the material facts relied on to be set out at the time the case isstarted. That is because a party will often not know all the facts. The rules provide stringent financial disclosure obligations.

To requirea party to plead “material facts” before financial disclosure would run contrary to the way family litigation is conducted, the family rulesand notions of basic fairness. While Frick v. Frick primarily dealt with the failure to plead facts, many of Benotto J.A.’s comments arestill instructive in this case. [63] The purpose of requiring a litigant to specifically claim relief in a written pleading is to provide notice to the other side, whichwill afford that opposing party the opportunity to respond and to fully present his or her case. This purpose is geared at ensuring fairnessto both parties.

And ultimately the pleading will frame the issues for the Court at the hearing. [64] I would add, though, that what must go into a pleading should not be so rigidly applied to work an injustice. [65] For example, I note that pleadings may be amended up to and even during the trial itself. In Stefureak v. Chambers, (S.C.J.), Quinn J. granted a so-called ‘hail mary’ amendment where a party raised a claim as a last minute defence on thelast day of a 20 day trial. [66] And it is not always even necessary for pleadings to be amended at all.

For example, at ¶ 34, Benotto J.A. held that the wife didnot even need to plead an unequal division, because that is not a separate cause of action. The cause of action was for the equalizationitself, an unequal division was part of that, and the equalization claim was in fact pleaded. I find those comments to be analogous here. [67] In Poulin v. Poulin, 2017 ONSC 64, Harper J. referred to rule 2 in discussing the notion fairness insofar as the pleadings in thatcase were concerned.

At ¶ 40, he wrote that an important aspect of dealing with a case justly is the duty to case manage, including theduty to identify the issues and separate and dispose of those that do not need a trial. [68] At ¶ 42 and 43, he said: [42] As a result of case conferencing, issues may change, may become more refined and defined. The continuing responsibility todisclose and update that disclosure may change the definition of the issues. This process may result in issue that may not have existedwhen the action was originally brought.

As a result of the conferencing process, however, if the issues change, they should be definedby either amendment to the pleadings or a clear delineation of what the real disputed issues are.

That clear delineation can also beachieved by a direction given by the court at one of the conferences prior to trial or a further order of the court. [43] The central focus must be whether both parties know or should know what case they must meet. [69] Quite apart from the fact that a Motion to Change child support in a Separation Agreement is a variation proceeding, in themother’s Motion to Change itself, and again as of the Trial Management Conference on November 20, 2019, the Court was told by theparties that it would be asked to make an order respecting post-secondary expenses, and that how savings for the children will be usedfall within the ambit of that claim, once again, on the morning of the trial, the father agreed, in the Consent Order, that the Court wouldadjudicate the questions about the RESPs.

The Consent Order of December 4, 2019 does not limit the Court to interpreting theSeparation Agreement only. [70] The evidence in this case is that both parents’ incomes had changed. Disclosure and the non-payment of support have beenissues of concern. And the manner in which the parties dealt with RESPs had changed after they signed the Separation Agreement. Tobe clear, evidence was put before the Court about the RESPs, how they were set up, how money accumulated in them, what the partieshad agreed to in their Separation Agreement and how that changed.

Both parties addressed these topics in their affidavits that formedpart of the evidence for this trial and both testified about these topics orally. [71] The father’s trial affidavit was sworn on September 20, 2019. In it, he sets out his responding position respecting the RESPs.

On more than one occasion during the trial, the father made the point of telling the Court that the Agreement is a comprehensivedocument and its terms are interrelated, suggesting, if not overtly making the argument, that paragraph 5.9 ought not be varied on thatbasis. [72] The Court finds the father’s submission, that he was unaware of the case he had to meet, to be disingenuous.

I find that thefather was well aware of the result the mother was seeking, that variation was a legal argument to be considered, and that he hadadequate notice, and an ability to respond and make submissions accordingly. [73] I find that whether the result sought by the mother, the father or some other result is appropriate, and what legal route applies toget there, are all legal arguments that the Court can and should properly consider.

PART VI: CREDIBILITY [74] In her trial affidavit, the mother calculated that she was owed retroactive support of “at least” $149,315. The parties settled onthe mother being paid $120,000.00, plus a further $33,000.00 in costs, subject to further adjustment when the additional retroactive post-secondary costs are decided. [75] Despite the resolution, the mother still brought a number of concerns to the Court’s attention about her past and current dealingswith the father, several of which were essentially admitted to by the father at the trial. [76] In a nutshell, the mother says that the father:

(

a) ignored his obligation to provide financial disclosure on an annual basis as required by the Separation Agreement; (

b) unilaterally reduced the child support he was required to pay pursuant to the Separation Agreement during the summer months in 2015 and 2016, when one or both children were away at summer camp; (

c) delayed providing financial disclosure for over a year, even after the mother retained counsel; and (

d) delayed and frustrated the mother’s attempts to invoke the arbitration provisions in the Separation Agreement. [ 77 ] It is not disputed that the disclosure terms of the Separation Agreement, the terms requiring the annual adjustment of child support and

section 7 expenses, and the RESP clause, were not followed. The dispute resolution terms of the Agreement were not followed either. [ 78 ] More specifically, I find that the mother’s four particular complaints about the father’s conduct, listed above, to be well supported by the record before the Court. [ 79 ] First, it is not disputed that the father did not provide annual disclosure as required by the Separation Agreement (and the Guidelines ). Indeed, the father readily admitted that he did not provide disclosure to the mother annually.

However, he sought to justify this behaviour by saying that the mother didn’t disclose to him either, and that mother didn’t ask him for the disclosure at any point prior to her retaining counsel. [ 80 ] This is neither a justification or a defence to this conduct. [ 81 ] Even the father went on to testify at trial that he has “since learned” that it was his obligation to provide the disclosure, regardless of the mother having not provided hers, or not having asked him for it.

But nevertheless, he wanted the Court to know that he took issue with the mother’s allegation that she had previously asked him for it, which he says is not true. [ 82 ] During her examination-in-chief, the mother said that she had in fact made an oral request for disclosure. She candidly admitted though, that she did not really press the father over the years to provide disclosure. She explained that she had found the whole process of entering into the Separation Agreement stressful and acrimonious.

She said she was just happy to have an agreement, and so she did not want to “rock the boat” by pressing for information. [ 83 ] However, she eventually did retain counsel by 2017. In her trial affidavit, the mother deposed that by 2017, she still did not know that the father’s income had increased. In fact, she explained that the father had told her in the past that he was overpaying child support, and that his income had dropped. [ 84 ] The father admitted to this too, saying that in 2015, the mother asked for a “raise”.

He responded by telling her that his income had decreased and that he incurred significant costs to move into a new house. The mother was at least party responsible for the latter, according to him, because the mother had been pressuring him to purchase a new house for the purposes of spending more time with the children. [ 85 ] After she retained a lawyer in 2017, the mother had her counsel write a number of letters to the father, asking for disclosure, and for proof of the father’s contributions towards an RESP.

Rather than providing the disclosure, the father frustrated that process. [ 86 ] When the mother did not achieve progress by way of letter writing, she had her counsel send correspondence to trigger the arbitration provisions of the Separation Agreement. The father frustrated her attempts to engage in that process too. [ 87 ] The mother said that it ultimately took well over a year to get the father’s financial disclosure to which she was entitled, going back to 2010.

She said she was “shocked” to see how much the father’s income had increased. [ 88 ] After having difficulty invoking the arbitration provisions of the Separation Agreement, the mother commenced this proceeding. In his Response to Motion to Change, the father claimed parenting relief against the mother. [ 89 ] The father continued not to sign a mediation/arbitration agreement. The mother had to prepare, and serve and file, motion materials to compel him to do so. This was done in January 2019. Only after the motion was signed, did the father agree to go to mediation.

Mediation did not result in a settlement of the issues between the parties.

Ultimately, notwithstanding that the parties only submitted to mediation rather than to arbitration, neither party objected to this Motion to Change proceeding in this Court . [ 90 ] Not only did the father not produce his tax returns until after this litigation began, but the father did not produce all of the other financial disclosure that the mother believed she needed to accurately determine his income. [ 91 ] For example, the father earns rental income, from renting out a part of his house, plus he earns rental income from other investment properties [5] .

He did not report the rental income earned from renting out part of his home on his tax returns, so production of the tax returns would not have answered the question of how much income is derived from this source. [ 92 ] Through counsel, the mother asked the father to produce his lease agreements and the date(

s) that he started renting out the portion of his house. The father’s response was to say that the net rent was negligible. Only more recently did he produce some invoices relating to the expenses. [ 93 ] Regarding the other two investment properties, the father only provided proof of the rent he received days before the trial was initially set to start in September 2019. [ 94 ] In his trial affidavit of September 20, 2019, sworn before most of the retroactive support claims settled, the father said that he will have to liquidate holdings if he is ordered to pay retroactive support.

He said he had intended to leave his real estate holdings to his children as an inheritance, and so any retroactive child support would essentially be an advance on that inheritance. Implicitly this is a

complaint that it will be paid to the mother instead of the children. [ 95 ] Yet on September 11, 2019, nine days before he swore that affidavit of September 20, 2019, the father had already listed one of his properties (the one he co-owns with two other persons) for sale. The list price was for $1.599.

The property later sold in November, 2019 for $1.39 million, with an apparent closing date in early 2020. [ 96 ] Meanwhile, on his financial statement sworn September 5, 2019, signed just 6 days before he listed the property for sale, the father said the investment property was worth only $1.1 million. [ 97 ] During cross-examination, the father said that the list price was decided in consultation with his real estate agent, but those discussions happened over only “a day or two”. [ 98 ] The Court finds it hard to believe that the father was unaware that the property would be listed for sale, nor that he did not know what the list price would be when he deposed his financial statement on September 5, 2019. [ 99 ] That said, even if the decision to sell the property, and the decision as to the list price was made after September 5, 2019, at no point did the father update his evidence as to the fact of the listing, the list price, or the eventual sale price, until it was elicited from him in cross-examination.

Furthermore, by the time he swore his September 20, 2019 affidavit, he was aware that the property had been listed for sale, yet he spoke in that affidavit of the property, as if he still intended to bequeath it to the children at some point in the future, but for a possible retroactive child support award. [ 100 ] Second, as set out earlier, the father unilaterally reduced his table child support for the summer of 2015 and 2016 based on one or both children attending camps.

This too is not disputed. [ 101 ] The father admitted to having reduced child support to $2,000 per month for those months in 2015 and 2016 because he said he had paid for half of the camp. He unilaterally reduced the support by $1,000 in each of those months, even though camp was an expense that he was required to share, in addition to paying support, under the Separation Agreement. [ 102 ] The father justified this action, saying he felt it was unfair for him to pay the full child support, plus a portion of camp, particularly since the mother had traveled to Europe and to Nepal during those summers.

He also pointed out that the mother did not raise with him the shortfall for 2015, until he did it again in 2016. [ 103 ] During the trial, the father was critical of the mother, saying that she is unable to make financially responsible decisions that benefit the children. He made it clear during his testimony that he feels the child support he has paid already, and that he will pay pursuant to the settlement of December 4, 2019, will not be used for the benefit of the children, at least not in full.

He testified that money is a “deep issue” for the mother and he is “deeply suspicious” about whether “she can bring herself to give anything to the children”. [ 104 ] Meanwhile, the father elicited little useful information respecting the mother’s financial circumstances during his cross- examination of her. Further to this argument about the benefit of any child support to the children, he chose to spend much of his time questioning her on her financial statement to establish that she has been able to save over the past number of years, while collecting child support.

He also focused his questions around the fact that some of the expenses the mother included on the budget on her financial statement were estimated. [ 105 ] During the trial, the father made an unsubstantiated statement that the mother has hidden money in a swiss bank account. Then, during a court break, the father apparently made a comment to the mother, about her and her parents, in the waiting room of the court house. He said the word “CRA”. This evidence was elicited from him when court resumed after the break and he returned to the witness box. [ 106 ] The father was belligerent at times during the trial.

He objected in the middle of the mother’s counsel’s Opening Trial Statement. On a number of occasions, when the mother was trying to answer questions that he had just put to her in cross-examination, he interrupted her attempts to answer his own questions. More than once, the Court had to direct the father to allow the mother to complete her answers.

Sometimes when the Court did that, the father proceeded to argue with, or interrupt the Court too. [ 107 ] While the evidence of non-disclosure or misleading disclosure, the unilateral conduct regarding the past payment of child support, and the evidence of the father’s views of the mother’s financial abilities and his consequential payment of child support would have been relevant to the retroactive claims that have since settled, this evidence is also relevant both to credibility regarding the remaining issues in the case, and to the broader issue relating to the current and future use of the RESPs.

This history speaks to whether the mother can trust the father to deal with her fairly respecting the children’s post-secondary education. This evidence speaks to whether there has been a change in circumstances that impacts how the RESPs should to be taken into account now and in the future, as compared to the circumstances that existed at the time of the Separation Agreement. And it also assists the Court in reconciling inconsistencies in the evidence and in exercising its discretion. [ 108 ] I make the following findings: (

a) The father failed to provide disclosure as he was required to do, both under the Separation Agreement and the Guidelines; (

b) The father did not meet his financial obligation to support the children over a number of years. A retroactive child support order has now been made on consent to rectify that; (

c) The father unilaterally reduced child support during the 2015 and 2016 summers. He was not authorized to do this. He did this based on his own skewed view of what he thought was fair. His actions were breaches of the Separation Agreement; (

d) The father has withheld financial disclosure from the mother. The mother was only able to get adequate disclosure from the

father after she started this proceeding; (

e) The father filed inaccurate and misleading financial information with the Court at this trial regarding the sale of his jointly owned investment property, and its value; and (

f) The father cannot accept that the mother has made, or will make appropriate decisions regarding the child support that she has received, or will receive, from him. He does not believe that it has benefitted, or that it will benefit the children. [ 109 ] Unless otherwise specifically stated in these reasons, where there is a conflict in the evidence between the mother and the father, the Court prefers the mother’s evidence. The Court is concerned that the father will not honour his obligations going forward respecting the children.

There is ample evidence to suggest that dealing with the father in the future regarding child support and the reconciliation of expenses could turn into a headache, leading to added costs to the mother.

PART VII: ISSUES AND ANALYSIS A. Should the Separation Agreement Be Enforced? [ 110 ] While both parents made arguments about whether their subsequent conduct either does, or does not impact the terms of the Separation Agreement and therefore the Court’s ability to enforce the Separation Agreement, the submissions I heard about the impact of that subsequent conduct were not well developed by either of them.

Basically, the father just argued that any changes to the Separation Agreement had to be in writing to be effective and the mother argued it would be “absurd” to enforce the Separation Agreement. [ 111 ] It is the Court’s view that there are difficulties with the argument that the Separation Agreement should just be enforced. [ 112 ] While paragraph 5.9 of the Separation Agreement reads as if there was already another RESP for I.S. in existence as of the date of the Separation Agreement, as I have said, that RESP did not yet exist.

Nevertheless, the Separation Agreement goes on to require both parents to contribute $100 each per child per month ($200 each per month) into two RESPs, including that one for I.S. which did not yet exist.

Although the Separation Agreement is silent on this point, both parents understood that to mean that each would put $100 per month into the existing RESP for H.S., and each would put $100 per month into the new RESP to be established for I.S. [ 113 ] As I have also already said, following the signing of the Separation Agreement, the parents did not set up the second RESP for I.S., nor was the mother the trustee of it, as was required by the Separation Agreement. Nor did each contribute $100 each into the two separate RESPs.

Rather, they agreed that the father would instead create the separate RESP for I.S., that he would “top it up”, and that he would also pay $200 per month into that one plan for I.S.

Meanwhile, the mother would pay $200 monthly into the RESP for H.S. instead, and contribute nothing into the RESP for I.S. [ 114 ] The father says that the fact that the parties each put $200 per month into one or the other RESP, instead of $100 each per month into two RESPs, does not matter, since the financial result is the same. [ 115 ] During cross-examination, the father suggested to the mother that it was her idea to change course in this way. The mother could not recall whether that was true.

I accept the father’s subsequent testimony that it was in fact the mother’s idea to change the methodology for the RESPs, but he agreed to it. Regardless of whose idea this was, even the new regime was only implemented in part. [ 116 ] Following the subsequent oral agreement, the mother did pay $200 per month into the RESP for H.S. She continued to make the investment decisions without input from the father, as she had done in the past. She treated this RESP as her own.

She did not consult with the father prior to making the first RESP withdrawal in H.S.’ first year of university. [ 117 ] Meanwhile, the father set up an RESP for I.S. But he did not consistently pay $200 per month in it. Instead, he made annual payments into the plan (but not necessarily each year), as well as top up payments. [ 118 ] Like the mother did with the RESP for H.S., he treated the RESP for I.S. as owned and controlled by him. He made investment decisions, without input from the mother.

He also lost some money (he did not explain how much during the trial), as a result of some of his investment decisions. [ 119 ] Neither parent exchanged information about their respective RESPs after they made this verbal agreement.

In fact, as I set out above, one of the mother’s claims when she commenced this proceeding was to get disclosure from the father about his RESP. [ 120 ] The Court received evidence that by the date of separation, the mother’s RESP for H.S. had a balance of $16,552.51 in it, there was no evidence as to its balance as at the date of the Separation Agreement, signed about three years later. [ 121 ] The Court also received evidence about more current values in both plans. [ 122 ] For the trial, both parents tendered some statements for the RESPs, but neither tendered a complete transaction history of their contributions, the government grants and the market fluctuations in their plans. [ 123 ] For her part, the mother tendered several statements for the RESP for H.S., including the balance at the date of separation, and several months of statements covering periods in 2013, 2014, 2016 and 2018.

The statements that the mother did provide do reveal that she did in fact invest $200 per month into the RESP for H.S. on or about the 14 th or 15 th day of each month. In addition, while she did not produce each and every statement, she testified that she did make all the monthly payments. I accept her evidence in this respect. [ 124 ] The mother’s statement dated December 31, 2018, which is the most current statement that she filed with the Court, reveals that as of the end of 2018, she had contributed $48,434.00. The government grant amount put in was an additional $7,064.44, for a total of $55,498.44.

There was also market growth over the years.

[125] As of the date of the mother’s trial affidavit of November 27, 2019, the RESP had a balance of $64,387.75. This was after therehad already been one withdrawal. [126] The mother testified that she had already withdrawn about $20,000 to cover H.S.’ university expenses to date. Based on thisevidence, I find that the balance was about $85,000 at the time that H.S. started university.

That included contributions, governmentgrants and market growth. [127] The father tendered a statement from Secutor Financial Advice for the RESP for I.S., covering the period of “January 1, 2000 toAugust 20, 2019”, although in the detail on the statement, the first transaction reflected is only as of November 24, 2011. [128] The father used to have a different RESP invested with a different broker, but as I have said, he lost money dealing with thatbroker. So, he moved the account over to Secutor. [129] The father says he set up the RESP with the initial broker soon after the Separation Agreement.

He did not explain how muchhe had contributed into that first account, nor how much had been lost. The statement from the current broker, Secutor, appears to readas if about $6,000 was transferred over from the other broker in November 2011, although the value of the transfer is not entirely clearfrom the statement. In any event, it appears that the father has since contributed a further $35,000 into the RESP with Secutor betweenthe end of 2011 and January 25, 2019.

He says he intends to make another contribution in December 2019 (after the trial) or in January2020. [130] In some years, the father did make contributions of $5,000 as opposed to the lesser amount of $200 per month, which is what hewas required to pay under the parties’ Separation Agreement. But at the same time, the parents, in their subsequent oral agreement,agreed that he would make the top up payments. [131] It is clear from the Secutor statement that he did not make monthly payments as required under either the Separation Agreement,or the parties’ subsequent verbal agreement.

Instead, he opted to invest annually in some years. It may be that this impacted the growthin the account, but no evidence to this effect tendered by either parent either. [132] The value of the father’s RESP for I.S., including market growth and government grants, was $59,185.55 as of September 19,2019.

I was not given a current balance as of the date of trial, but as there had been no further contributions by the father between thedate of that statement and the date of trial, and no evidence that he had made any withdrawals, the only change to the value should havebeen due to market fluctuation. [133] Again, what the parents never did, during those post-Separation Agreement discussions that resulted in this change to themethodology for saving into RESPs, was discuss and agree upon how the money that each separately invested, pursuant to this newregime, would be applied to defray the children’s university expenses in the future.

Nor was there any real consensus, either at the timeof the Separation Agreement, or the subsequent oral agreement, as to how any unused funds would be returned to the parties. [134] At the trial, the mother testified that she assumed, under this new regime, that each parents’ separate RESP would be used tofund his and her pro rata share of the university expenses.

She explained that she never intended to get the benefit of the father’saccount for I.S., and she doesn’t think that the father should get the benefit of hers for H.S., other than the money that was in existence asat the date of separation. [135] The father says that even though they went about contributing to RESPs differently, they never agreed not to otherwise abide bythe payout mechanism provided for in the RESP clause in the Agreement. The father goes on to say that the mother’s evidence of hersubjective intentions is improper, and he says that I should not consider it. [136] Relying on Eli Lilly & Co. v.

Novopharm Ltd., (SCC), 1998 CarswellNat 1061 (S.C.C.) ¶ 54-56, the fathersubmits that their contractual intent should be determined “by reference to the words they used in drafting the document, possibly read inlight of the surrounding circumstances which were prevalent at the time. Evidence of one party’s subjective intention has no independentplace in this determination.” Further, he says there is no need to consider any extrinsic evidence at all, if there is no ambiguity in thewording of the document.

Paragraph 5.9 of the Separation Agreement, he says, is unambiguous. [137] Applying the ratio in Eli Lilly, the contractual intent of the parties as reflected in the words of the Separation Agreement, but alsohaving regard to the surrounding circumstances at the time (ie. that the mother had been solely contributing to only one RESP for H.S.),was that the father would now start equally contributing towards savings for H.S.’ post-secondary education, and both parents wouldstart equally contributing to an RESP for I.S. [138] In other words, there was to be equal contribution, going forward, for both children, by both parents, and the eventual equalsharing of the money saved by both parents in the accounting of the university expenses.

As well, the mother was to be the trustee ofboth RESPs. [139] This belies the difficultly with the father’s position now that the Separation Agreement should just be enforced. That is not whathappened. [140] Not only did the parents not equally contribute to both children’s savings, but the effect of the Separation Agreement, had it beenfollowed, would mean that any unused money in either RESP would return to the mother.

Or at least it would not have reverted to thefather based on ownership, which is what will now happen with the funds in the RESP for I.S. [141] The father conceded the latter in his closing submissions. [142] I turn to the nature of an RESP, which is dealt with both in the Income Tax Act, as well as in certain case law. [143] Firstly, an RESP is not a

section 7 expense. Parents cannot be compelled by Court Order to contribute into one, absent an

agreement. See Popovski v. Pirkova, 2017 ONSC 2363 at ¶ 49; see also Smith v. Smith, 2011 NSSC 269 ¶ 80. Despite that, in this case,the parents initially agreed to contribute into RESPs in a certain way and to allocate that money in a certain way. And they subsequentaltered that agreement. [144] Nevertheless, the RESPs are still assets that are owned by one or the other.

Although neither parent tendered her and his RESPplan documents setting out the terms of the plans, the statements do indicate that the mother is the owner of the plan for H.S., and thefather is the owner of the plan for I.S. that he subsequently set up. [145] At ¶ 34-38 of Vetrici v. Vetrici, 2015 BCCA 146, the British Columbia Court of Appeal wrote the following about the nature ofRESPs: [34] The RESP is a type of investment registered pursuant to s. 146.1 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.).

A RESPis a savings / investment vehicle for anticipated post-secondary education costs that provides two benefits: (

a) income tax deferral oninvestment income (s. 146.1(6)); and (

b) matching grants from the federal and some provincial governments. Practically speaking, aRESP is an agreement between a “subscriber” (typically, a parent or grandparent) and the “promoter” (i.e., provider) of an investmentproduct (often a chartered bank) to invest the subscriber’s contributions consistent with s. 146.1. However, unlike contributions to aRegistered Retirement Savings Plan (“RRSP”), the contributions to a RESP are made from tax-paid funds. [35] When a RESP is opened, the subscriber names a beneficiary (typically, a child or grandchild) (s. 146.1(1)).

If in the future thebeneficiary enrolls in an eligible post-secondary institution, then the subscriber can request the promoter to make educational assistancepayments to the beneficiary or to the subscriber for the beneficiary’s use (s. 146.1(2)(g.1)). The educational assistance payments arecomprised of the investment income earned on the contributions and any grants (s. 146.1(1)). The subscriber also can request that thepromoter pay out contributions to the beneficiary.

The beneficiary claims as his or her income funds attributable to the grants andinvestment income, which were subject to the tax deferral, but not the proportion drawn from the contributions (s. 146.1(7)). [36] As described by Mr. Justice Hall in Luedke v. Luedke, 2004 BCCA 327 at para. 25, 44 B.C.L.R. (4th) 35, a RESP is away of “making provisions for an anticipated expense in the future”. However, contributions to a RESP and any accumulated investmentincome remain the property of the subscriber until the subscriber directs payment to the beneficiary.

If for some reason the beneficiarydoes not attend an eligible post-secondary institution, the Income Tax Act provides several mechanisms to address the funds held in theRESP. In some circumstances, the funds may be transferred to the subscriber’s RRSP, less any grants, or the beneficiary’s RegisteredDisability Savings Plan, if he or she is eligible for one (ss. 146.1(1.1) and (1.2)). If one of those options is not available, then grant fundsare returned to the government and the remaining funds are returned to the subscriber.

That portion of the remaining funds attributableto investment income is taxable in the hands of the subscriber (s. 146.1(7.1)). [37] Of particular note is that the subscriber may, at any time, withdraw from a RESP monies for which the subscriber is entitled toa refund of payments, i.e., monies that are not attributable to grants (s. 146.1(1)). When this is done, the subscriber must pay tax on anymonies attributable to investment income (ss. 146.1(1), (7.1), and (7.2)).

Where, on the breakdown of a marriage or common-lawpartnership, spouses divide a RESP by court order or agreement, the amount transferred is excluded from the recipient spouse’s income(ss. 146.1(7.1) and (7.2)). [38] Also of note is that because a RESP belongs to a subscriber, it forms part of a deceased subscriber’s estate and, accordingly,should be taken in account for estate planning purposes: see Valorie Pawson, “Beneficiary Designations 101” (Materials prepared forthe Continuing Legal Education Society of British Columbia’s Wills and Estate Planning Basics, May 2012) at 9.1.8-9.1.10. [146] Similarly, as Mesbur J. said in Popovski v.

Pirkova ¶ 49: RESPs are savings vehicles, earmarked for post-secondary education of a child, but not necessarily required to be used for that purpose. Ihave no evidence that Mr. Popovski is prohibited from withdrawing from the RESP he has established. Importantly, I have no evidenceA will necessarily attend a post-secondary institution. If and when that occurs, the funds in the RESP, if any can be taken into accountin apportioning the parent’s obligations to contribute to the cost of post-secondary education. [147] See also M. (C.S.) v.

L. (W.S.), 2015 BCPC 252 ¶ 26-28 for other case law commentary about the nature of an RESP. [148] One of the mother’s concerns is that if the Separation Agreement is just enforced in the way proposed by the father, then thefather will share in the RESP money that she saved for H.S. to defray his contribution towards H.S.’ university expenses when only themother has contributed to that plan.

Meanwhile, if in the future, I.S. does not go to university, or does not use up the father’s RESP forI.S. in full, then the mother will not enjoy the same benefit, because unused money will return to the father as the owner of that RESP. [149] The mother expressed a concern that I.S. may, in fact, not go to university. She indicated that I.S. is a grade ahead of the peersher age (she is in grade 12 but her birth year would only have her in grade 11), she said she hasn’t been extraordinarily academicallymotivated, and she said I.S. may take time off rather than going to university.

Father says that he believes I.S. intends to go to university,and he has taken her on visits to two different schools already. [150] I need not decide this issue about I.S.’ future educational path at this point. The reality is that these concerns underscore thevarious fairness arguments that are before the Court. [151] In short, there is a timing issue.

H.S. is already in university, and so the RESP for her that the mother saved is already beingused, whereas I.S. is only in grade 12 and the other RESP has not yet been accessed. [152] Even though the parties changed the methodology for their contributions into the RESPs soon after the Separation Agreementwas signed, the father says it would be unfair for the RESPs to be applied differently, now.

He says this because the parties entered intoa “comprehensive Separation Agreement”, and that the change that they agreed to was not agreed to in writing. [153] Had the second RESP been set up with the mother as the trustee, then part of the mother’s concerns may have been addressed.

But now, if I.S. doesn’t go to university, or if the RESP doesn’t get used in full, then the money the father put into the RESP will be refunded to him. He will have a windfall. [ 154 ] The difficultly with the father’s enforcement argument is that to fully give effect to is, ownership of his RESP for I.S. would have to be transferred to the mother, or at least she would have to somehow be added to it as a “trustee”, or perhaps there would need to be some form of security in the event that it went unused.

During the trial, when the father realized this, he said he was prepared to split the RESP account with the mother if I.S. doesn’t end up going to university. He made this statement to the mother for the first time, in the midst of the trial. [ 155 ] This Court has very limited jurisdiction to make orders relating to property. [6] There is nothing preventing the father from making withdrawals from the RESP for I.S. after the date of this trial, a concern that Mesbur J. alluded to Popovski v.

Pirkova , let alone the concern that the RESP may not be used in full . [ 156 ] Based on the father’s conduct in this case, his unilateral behaviour respecting child support, his selling of the investment property and his related misleading financial disclosure about that property, I find this to be a risk to the mother, and one that she did not bargain for in the Separation Agreement.

In the absence of at least some kind of agreement for security, the Court does not trust the father’s mid-trial assurances about sharing unused money with the mother, and I would place little to no weight on his promise to share with the mother in the future. [ 157 ] Regardless, it is my view that this case does not resolve on contract

interpretation or enforcement principles. I disagree with the father, that the fact that the parties’ subsequent oral agreement and treatment of the RESPs was not reduced to writing, means that the terms of the Separation Agreement must prevail now. [ 158 ] I accept that paragraph 13.5 of the Separation Agreement requires amendments to the Separation Agreement be made in writing.

So does section 55(1) of the Family Law Act . [ 159 ] However, the father’s submissions reflect a fundamental misunderstanding that the Separation Agreement may be varied pursuant to sections 35 and 37 of the Family Law Act if the requisite changes in circumstances have occurred, and if it is otherwise appropriate to vary the Agreement. [ 160 ] Likewise, I reject the father’s submission that the mother’s “extrinsic evidence” should not be considered and that it is irrelevant.

The mother’s evidence as to what happened after the signing of the Agreement was not evidence about one or both parties’ subjective intentions respecting the RESP at the time of the Separation Agreement. Rather it was evidence about their subsequent words and actions, which modified how they proceeded with the RESP. And it is relevant to how the Court should exercise its discretion in this case. [ 161 ] In the end, if there has been a change in circumstances, then the Court may make a different order respecting the sharing of post- secondary expenses.

How savings for the children’s post-secondary education should be applied may factor into that analysis. These are discretionary decisions. That discretion must be exercised judiciously, in accordance with the applicable statutory and other legal principles. [ 162 ] I turn to that next. B. Applicable Legal Principles Respecting Motions to Change Child Support [ 163 ] Paragraph 5.1 of the Separation Agreement provides that child support for the children would consist of the monthly amount of $3,000 (see paragraph 5.1(a)), and the father’s share of certain special or extraordinary expenses (see paragraphs 5.1(

b) and 5.2). [ 164 ] Post-secondary expenses were not included in the list of special or extraordinary expenses in paragraph 5.2, as they were not then being incurred. However, in paragraphs 5.11 and 5.12 of the Agreement, the parties contemplated both a review of child support when a child started to live away for educational purposes (or if child support for one child ended), and that child support could be varied if there is a “material” change in the condition, means, needs or other circumstances of either parent or either child that would affect child support. [ 165 ] As the Separation Agreement was also filed with the Court pursuant to

section 35 of the Family Law Act , according to section 35(2) , the support terms in the Separation Agreement may also be enforced, or varied under

section 37 as if it they formed part of an order of the Court. [ 166 ] Sections 37(2.1) (

a) and (

c) of the Family Law Act provide that , if the Court is satisfied that there has been a change in circumstances within the meaning of the Guidelines (or if evidence that was not available on a previous hearing has become available) , the Court may “discharge, vary or suspend a term of the order, prospectively or retroactively” and “make any other order for the support of a child that the court could make on an application under

section 33”. [ 167 ] And on a Motion to Change child support, the court is to make an order in accordance with the Guidelines , unless certain exceptions apply (none of which are engaged in this case). See section 37(2.2). [ 168 ] Sections 37(2.1) and (2.2) of the Family Law Act direct the Court to the Guidelines to determine what constitutes a “change of circumstances”.

As the amount of child support in the Separation Agreement was in excess of the table, section 14(2) applies. [ 169 ] The variation language in section 14(2) of the Guidelines is slightly different than that used in the Separation Agreement, in that “any change” in the condition, means, needs or other circumstances of either parent or of any child who is entitled to support will suffice. Unlike the Separation Agreement, section 14(2) omits the word “material”. [ 170 ] This may be a distinction without a difference in this case.

[ 171 ] L.M.P. v. L.S., 2011 SCC 64 concerned a variation of the spousal support terms contained in a comprehensive Agreement between the parties that had been incorporated into a court order. The variation application proceeded under

section 17 of the Divorce Act as opposed to Ontario’s provincial legislation. Although the case dealt with spousal support (and not child support as is the case here), the majority opinion of the Supreme Court held that the proper approach under

section 17 of the Divorce Act to the variation of existing orders is found in Willick v. Willick, which is a case that dealt with child support. [ 172 ] At ¶ 29-36 L.M.P. v. L.S. , the Court set out the following principles respecting the variation of a consent order: (

a) The Court must be satisfied that there has been a change of circumstance since the making of the prior order (or in this case the Agreement); (

b) The “change of circumstances” must be “material” meaning that “if known at the time, would likely have resulted in different terms”; (

c) The focus is on the prior order (or in this case the Agreement) and the circumstances in which it was made; (

d) The Court should not depart from it lightly. The test is whether any given change “would likely have resulted in different terms”; (

e) What will amount to a material change will depend on the actual circumstances of the parties at the time of the order; and (

f) The subsequent conduct of the parties may provide an indication as to whether they considered a particular change to be material. [ 173 ] L.M.P. v. L.S makes it clear that the existence of the underlying Agreement is not irrelevant. Parties may contemplate that a specific type of change will or will not give rise to a variation. At ¶ 39, the Court held that the degree of specificity in the terms that provide for a particular change will be evidence of whether the parties, or the Court, contemplated the situation raised on a later application for variation. [ 174 ] Alternatively, at ¶ 40 of L.M.P. v.

L.S , the Court states that a general provision, that it is subject to variation upon a material change (as is the material change clause in the Separation Agreement in this case) will not give the Court any additional information as to whether a particular change would have resulted in different terms, if known at the time of that order. As such, the Court must examine the terms of the Separation Agreement and the circumstances of the parties at the time of the Agreement to determine what amounts to a material change. C.

The Threshold of Change Been Met in this Case [ 175 ] I make the following findings regarding what the parties contemplated at the time of the Separation Agreement regarding the RESPs and the sharing of post-secondary expenses. The wording of the Separation Agreement and the circumstances then in existence offer some insight into this. [ 176 ] In particular: (

a) The parents were aware that the mother alone had established H.S.’ RESP as at the date of the Separation Agreement, and that she alone contributed to it. Despite that, the parents contemplated that the father would nonetheless benefit from the mother’s sole contributions in H.S. RESPs, at least as of the date of the Separation Agreement; (

b) However, tied to that was that going forward, the parents contemplated making joint and equal contributions into H.S.’ RESP, and into a new RESP for I.S. They contemplated sharing in the benefit of those subsequent equal savings, equally, when the times came to pay for post-secondary expenses. In a nutshell, what they essentially set up was a joint plan to save for both girls, together going forward; (

c) The parents agreed that this was a fair outcome at the time; (

d) Had this methodology been followed, then in the future, when the times came to make withdrawals from the RESPs and share any shortfall of the post-secondary education costs, the sharing of the shortfall would be determined by first considering their equal contributions towards the savings plans; (

e) They also agreed that the mother would be the trustee of both plans. That meant that she would have been involved in making investment decisions for I.S.’ plan; and (

f) Although it is not entirely clear in the Separation Agreement, which uses the word “trustee” as opposed to “subscriber”, the mother would at least have some form of security in ensuring that the father did not take back the funds he contributed. The father himself submitted at this trial that had the Separation Agreement been followed, the mother would have been entitled to the refund of any amounts in the both plans if they ended up going unused. [ 177 ] Earlier, I said that the omission of the word “material” in

section 14 of the Guidelines (as opposed to the wording in the Separation Agreement) may be a distinction without a difference in this case. That is because I find that the changes that occurred are both “any changes” within the meaning of

section 14 of the Guidelines , and they are also “material” in any event, within the meaning of L.M.P. v. L.S. and Willick v. Willick . [ 178 ] I say this for several reasons. [ 179 ] I find that the parties altered the overall structure of how they were going to save for the girls’ post-secondary education.

[ 180 ] First, after the Separation Agreement, the parties adopted a regime of separate savings, with each parent saving for one child. Had this been what they contemplated at the time, I find that it is likely the parties would have consented to different terms as to how the RESPs would be taken into account. [ 181 ] Second, the mother ended up neither being the trustee of both plans, or having any input into the father’s investment decisions. She did not even have knowledge as to what the father contributed or how the father invested in the RESP for I.S. when this proceeding began.

This is not what they contemplated and I find that had they, they likely would have consented to different terms as to how the RESPs would be dealt with. [ 182 ] Third, I find that the mother did not bargain in the Separation Agreement for an outcome that the father would benefit from sharing in all the RESP money that she saved for H.S., while assuming the risk that I.S. savings might not end up benefiting her in a later accounting.

Had the second RESP been established, with her as the trustee as contemplated by the Separation Agreement, and as acknowledged by the father as to how it ought to have been set up, then she would have security for that risk. But now, with the father as the subscriber for I.S. plan, any unused funds will revert back to him.

I find that had that been contemplated by the parties at the time, there would have likely been different terms as to how the RESPs would be taken into account, or at least to give the mother some security. [ 183 ] The fact that I.S. may or may not go to university in the near future, or at all, is beside the point. As I said earlier, I need not make this finding. She may go and complete post-secondary education, she may start and not finish, or she may not go at all. The issue is not whether she goes, but whether the mother agreed to assume that risk.

I find that she did not. [ 184 ] Fourth, I also find that the parents’ subsequent conduct is relevant to determining that there has been a material change regarding how the RESPs would be taken into account.

Their subsequent conduct evidences an intention to save separately for the girls’ education, and other than the RESPs in existence at the time of the Separation Agreement, to benefit separately, and solely, from his and her respective savings. [ 185 ] Fifth, I also find the fact that the father was not forthcoming with disclosure over the years, that he acted unilaterally at times respecting his other child support payments to the mother, and that he did not honour his obligation to increase child support annually to be relevant to finding that there has been a material change. [ 186 ] These are circumstances that were not contemplated by the parties at the time of the Separation Agreement.

They speak to the mother’s concern that the father may not deal with her fairly respecting the sharing of post-secondary expenses and the RESPs that he now controls. [ 187 ] It is telling that the father has yet to contribute towards H.S.’s post-secondary expenses, other than some minor amount of rent. The mother has been put to the expense of having to commence this proceeding to collect child support that she is owing to her. The Court has no confidence that the father will deal with the mother fairly going forward. The evidence has shown that the father acts in accordance with what he views to be fair.

For example, he acted unilaterally when he disagreed with the mother’s spending patterns and travel. [ 188 ] Had the father’s subsequent blameworthy conduct been contemplated by the parties at the time of the Separation Agreement, I find that there would have likely been different terms as to how the RESPs would be taken into account, perhaps designed to reduce the mother’s future transaction costs, and the aggravation of having to pursue the father for a fair contributions for support and post- secondary expenses. [ 189 ] But even in the absence of the father’s blameworthy conduct, I would still have found the other material changes in circumstances in this case, which would have been sufficient to meet the variation threshold in the Guidelines and L.M.P. v.

L.S. [ 190 ] Sixth, paragraph 5.9 of the Separation Agreement provides that any monies in the savings vehicles shall be deemed to be the children’s monies for the purposes of determining each party’s proportionate contribution to post-secondary expenses. I do not agree with the father that if the Court gives effect to the mother’s position, that the Agreement will be changed to deem the money instead to be hers. [ 191 ] This argument reflects a misunderstanding by the father as to the nature of an RESP, and what this aspect of paragraph 5.9 of the Separation Agreement ac

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