Gray v. Gray,

• Jurisdiction: Ontario
• Judge: Hoy, A.C.J.O., Gillese and Lauwers, JJ.A.
• Neutral Citation: 2014 ONCA 659
• Citation: (2014), 325 O.A.C. 117 (CA),2014 ONCA 659,122 OR (3d) 337,[2014] OJ No 4519 (QL),325 OAC 117,[2014] O.J. No 4519 (QL),(2014), 325 OAC 117 (CA),122 O.R. (3d) 337,325 O.A.C. 117
• Date: 16 July 2014
• Court: Court of Appeal (Ontario)

Gray v. Gray (2014), 325 O.A.C. 117 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. SE.014

James David Gray (applicant/respondent in appeal) v. Kathleen Janet Gray (respondent/appellant in appeal)

(C57675; 2014 ONCA 659)

Indexed As: Gray v. Gray

Ontario Court of Appeal

Hoy, A.C.J.O., Gillese and Lauwers, JJ.A.

September 25, 2014.

Summary:

The parties divorced. The husband brought a motion to eliminate support for the children of the marriage since they were all now adults, with retroactive effect. He also sought to eliminate his obligation to pay spousal support, and alternatively, a continuation of spousal support at $800/month, indexed, as set by Thompson, J., in the 1998 divorce judgment. See 68 O.T.C. 217. The wife sought an increase in spousal support from $800/month to $4,302/month, also with retroactive effect. An April 30, 2012, interim order of Herold, J., terminated child support, but increased spousal support to $3,000/month.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 5478, terminated child support, and found that the husband had overpaid child support in the amount of $75,044. The court ordered spousal support to continue at $800/month, indexed, and found that the husband was in arrears of spousal support in the total amount of $79,807.32. He ordered the wife to pay $5,000 in costs. The result was a virtual offset. The wife appealed.

The Ontario Court of Appeal allowed the appeal and ordered the husband to pay spousal support at the low end of the range established by the Spousal Support Advisory Guidelines, in the amount of $2,720/month, subject to indexing in accordance with s. 34(5) of the Family Law Act. The spousal support was effective as of May 1, 2012. The court awarded the wife $15,000 all-inclusive costs of the appeal and reversed the $5,000 all-inclusive costs order below.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - Spouses divorced - The husband brought a motion to eliminate support for the children of the marriage since they were all now adults - He also sought to terminate spousal support, and alternatively, continue it at $800/month, indexed, as set by Thompson, J., in the 1998 divorce judgment - The wife sought an increase in spousal support from $800/month to $4,302/month - The motions judge terminated child support and ordered spousal support to continue at $800/month, indexed - The wife appealed - The Ontario Court of Appeal allowed the appeal and ordered the husband to pay spousal support at the low end of the range established by the Spousal Support Advisory Guidelines, in the amount of $2,720/month, subject to indexing - The financial synergy enjoyed by the wife as a result of the receipt of ongoing child support was terminated when the motion judge ordered that child support for the two youngest children ended on April 30, 2012 - The obligation to pay $2,720/month spousal support would therefore be deemed to have commenced on May 1, 2012 - Although the motion judge ended child support for the eldest two children in 2005 and 2007 respectively, the court declined to order spousal support arrears back to this time on the basis that it would cause hardship to the husband's new family - See paragraph 55.

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - Spouses divorced - The husband brought a motion to eliminate support for the children of the marriage since they were all now adults - He also sought to terminate spousal support, and alternatively, continue it at $800/month, indexed, as set by Thompson, J., in the 1998 divorce judgment - The wife sought an increase in spousal support from $800/month to $4,302/month - The motions judge terminated child support and ordered spousal support to continue at $800/month, indexed - On appeal, the Ontario Court of Appeal increased spousal support to $2,720/month, subject to indexing - The court stated, inter alia, that "The motion judge ordered a review of spousal support in August, 2016 regardless of whether there has been a material change in circumstances. I see no basis on which to adopt an approach in this case that would be different from the norm. Either party should be able to seek a variation if there is a material change in circumstances. Examples of a change of circumstance could include a change in [the husband's] employment or an inheritance by [the wife] that would affect her needs." - See paragraph 56.

Family Law - Topic 2393

Maintenance of wives and children - Variation of - Variation v. review of maintenance - [See Family Law - Topic 2384 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See Family Law - Topic 2211 ].

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of - Jurisdiction - [See Family Law - Topic 2384 ].

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - [See Family Law - Topic 2384 ].

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - General - Spouses divorced - The husband brought a motion to eliminate support for the children of the marriage since they were all now adults - He also sought to terminate spousal support, and alternatively, continue it at $800/month, indexed, as set by Thompson, J., in the 1998 divorce judgment - The wife sought an increase in spousal support from $800/month to $4,302/month - The motions judge terminated child support and ordered spousal support to continue at $800/month, indexed - The wife appealed - The Ontario Court of Appeal allowed the appeal - The court agreed with the motion judge that the wife was entitled to spousal support on a needs basis, but his determination of her actual need was wrong in fact and principle - One of the Divorce Act's objectives was to relieve economic hardship - Need was not measured solely to ensure a subsistence existence, but through viewing marriage as an economic partnership - The wife's health prevented her from working - It was plain from Thompson, J.'s 1998 order that he was awarding a lower amount of spousal support than he might otherwise have ordered because the child support payments were so high - He recognized, consistent with s. 15.3 of the Divorce Act (cited in his order), that there was financial synergy that benefited the spouse who had custody of the children and received child support - The 1998 spousal support amount was plainly not based on the wife's actual need in 1998 - Therefore, it was wrong for the motion judge to conclude that her need in 2014 was no greater than in 1998 and that her need now was properly measured by that amount of $800/month, indexed - The motion judge also erred in including spousal support in the wife's income - Further, there was no evidence to suggest that her disability payments were tax-free - By overstating the wife's income, his need analysis was faulty - See paragraphs 26 to 36.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - General - Spouses divorced - The husband brought a motion to eliminate support for the children of the marriage since they were all now adults - He also sought to terminate spousal support, and alternatively, continue it at $800/month, indexed, as set by Thompson, J., in the 1998 divorce judgment - The wife sought an increase in spousal support from $800/month to $4,302/month - The motions judge terminated child support and ordered spousal support to continue at $800/month, indexed - The wife appealed - The Ontario Court of Appeal allowed the appeal - Although typically, an entitlement to compensatory and needs based support, as here, would result in an award at the high end of the Spousal Support Advisory Guideline ranges (SSAG), the court ordered support at the low end of the range established by the SSAG, in the amount of $2,720/month, subject to indexing - First, the husband had responsibilities to his second family - His second wife was unemployed because he had to move to the United States to keep his job - Second, in light of Bracklow v. Bracklow (1999 S.C.C.), the wife's ill health necessitated extending the duration of spousal support beyond the time frame suggested by the SSAG - See paragraphs 51 to 54.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Considerations - Financial consequences of child care and household responsibilities - The Ontario Court of Appeal disagreed with a motions judge's conclusion that a wife was not entitled to spousal support on a compensatory basis - His reasoning was simply conclusory - His statement that the marriage was anything but "traditional" offered no analysis of the economic consequences of the marriage or its breakdown - The wife worked as a flight attendant at the time of marriage - The parties had four children between 1981 and 1990 - The wife arranged her schedule to fly on weekends, when the husband was available for child care - Further, she took frequent unpaid leaves of absence, some related to giving birth, and others to have time off at home - At the time of separation, the children were 15, 13, 8 and 5 years old - The wife had custody of the children, while the husband had access one evening a week and every other weekend - Post-separation, the wife was unable to return to work for health reasons - However, she undertook the bulk of the responsibilities relating to the children - During these years, her home labour enabled the husband to pursue his career without undue concern for the day-to-day realities of child rearing and his income increased substantially - See paragraphs 37 to 41.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance and awards - Support guidelines (incl. non-divorce cases) - [See second Family Law - Topic 4021 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - To wife - Considerations - [See both Family Law - Topic 4021 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - To spouse - Extent of obligation - [See second Family Law - Topic 4021 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See first Family Law - Topic 4021 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 22].

Cassidy v. McNeil (2010), 266 O.A.C. 62; 99 O.R.(3d) 81; 2010 ONCA 218, refd to. [para. 25].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 66 O.R.(3d) 40 (C.A.), refd to. [para. 27].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 28].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 37].

Fisher v. Fisher (2008), 232 O.A.C. 213; 88 O.R.(3d) 241; 2008 ONCA 11, refd to. [para. 43].

Abernathy v. Peacock, 2012 ONCJ 145, refd to. [para. 44].

Counsel:

Bryan R.G. Smith and Sarah Conlin, for the appellant;

Carol A. Allen and Megan L. Celhoffer, for the respondent.

This appeal was heard on July 16, 2014, by Hoy, A.C.J.O., Gillese and Lauwers, JJ.A., of the Ontario Court of Appeal. Lauwers, J.A., delivered the following decision for the court on September 25, 2014.