Holman v. Holman, 2015 ONCA 552

• Judge: Hoy, A.C.J.O., Simmons and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 19, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 552;(2015), 336 O.A.C. 350 (CA)

Holman v. Holman (2015), 336 O.A.C. 350 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.025

Carol Dianne Holman (respondent/appellant) v. Bruce Holman (applicant/respondent)

(C58098; 2015 ONCA 552)

Indexed As: Holman v. Holman

Ontario Court of Appeal

Hoy, A.C.J.O., Simmons and Tulloch, JJ.A.

July 28, 2015.

Summary:

The parties divorced after 19 years of marriage. The husband paid child and spousal support and, when the time came, contributed to the post-secondary education of the parties' two children. The children completed their post-secondary education and entered the workforce. The husband moved to terminate his child and spousal support obligations. The wife requested an increase in child and spousal support based on increases to the husband's income since the last order.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 6988, terminated child and spousal support, but found that the husband had overpaid child support and underpaid spousal support. The court determined that the net amount owed by the wife to the husband was $40,287. The wife appealed, asserting that the motion judge erred in his child support calculations and in terminating spousal support.

The Ontario Court of Appeal allowed the appeal in part. The wife was to pay the husband $36,646 on account of the overpayment of child support. The husband was to pay the wife $11,204 on account of underpayment of spousal support.

Family Law - Topic 3357

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Maintenance of children - The parties divorced - The husband was ordered to pay child support - A motion judge terminated the support and concluded that the wife had to pay the husband for the amount that he had overpaid - The wife appealed, asserting that the judge erred by failing to adjust the support payments in accordance with the 2009 and 2010 consent orders to reflect the husband's increased income each year, beginning June 1, 2010 - The Ontario Court of Appeal agreed with the wife - The orders provided that the parties were to exchange financial information by May 15 of each year and adjust support payments effective June 1, if necessary - The motion judge gave no reasons for failing to adjust support in accordance with the orders - He should have respected the terms agreed to by the parties - See paragraph 36.

Family Law - Topic 3357

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Maintenance of children - The husband was ordered to pay child support - A motion judge terminated support, effective December 2011, for one child, and May 1, 2013, for the second child and concluded that there had been an overpayment in child support - The wife appealed, asserting that the judge erred in calculating the overpayment by finding that support for one child was 50% of the amount for two children - The Ontario Court of Appeal agreed with the wife - The Child Support Guidelines were clear that the amount of support for one child was not equal to half the amount of support for two children - The husband asserted that the motion judge was entitled to deviate from the Guidelines by virtue of s. 3(2)(b) of the Guidelines - That section provided that if the court considered the table amount to be inappropriate for a child over the age of majority, it could order the amount of support "that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child." - The court rejected the husband's assertion - The judge did not advert to s. 3(2)(b), nor did he provide any rationale for such a departure - Further, the parties had agreed at the time of the 2009 and 2010 orders that support was to be determined pursuant to the Guidelines - Absent some reason to depart from that agreement, the judge ought to have calculated the child support reimbursement for the relevant period based on the one child table under the Guidelines - See paragraphs 40 to 45.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - The parties divorced after 19 years of marriage - The husband was ordered to pay spousal support for an indefinite period - The husband moved to terminate support effective May 1, 2011 - A motion judge terminated the support as of November 15, 2013 - The wife appealed, asserting that the judge failed to consider what the Spousal Support Advisory Guidelines said about the duration of support in long-term marriages, and overemphasized the goal of self-sufficiency while underemphasizing the compensatory nature of her support claim - The Ontario Court of Appeal rejected the argument - The motion judge expressly considered the objectives of a spousal support variation order as set out in s. 17(4) of the Divorce Act - He considered the compensatory nature of the wife's claim - He was aware of the economic disadvantages that she suffered as a result of the family decision to have her stay home and care for the children - He was aware that corresponding economic advantages were conferred on the husband - At the same time, he concluded that at about 11.5 years following separation, the wife had achieved self-sufficiency - He observed that her $300,000 inheritance increased her means and allowed her to purchase a home relatively free from debt - Having considered all of the necessary factors, he made a discretionary decision about the appropriate duration of support - That decision was open to him on the evidence and was not clearly wrong or an error in principle - The decision was entitled to deference - It would have been preferable for the judge to have explicitly referred to the durational range recommended in the Guidelines and explain his choice of duration towards the lower end of the range - However, the duration ordered fell within the range - Since spousal support in long marriages had both compensatory and non-compensatory features, the judge's finding of self-sufficiency was not irrelevant - Since there remained discretion to select a duration within the range, the judge's decision did not constitute reversible error - See paragraphs 27 to 31.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See Family Law - Topic 3997 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of period payments or lump sum award - The parties divorced - The husband was ordered to pay spousal support for an indefinite period - A motion judge terminated the support - The wife appealed, asserting that the judge failed to find a material change justifying a variation in the order - The Ontario Court of Appeal stated that it would have been preferable for the motion judge to have explicitly addressed the threshold question of a material change in the circumstances before considering the husband's request to terminate the support order - However, his failure to do so did not rise to the level of reversible error - The judge considered the effect of the wife's inheritance of approximately $300,000 and emphasized its significance in terms of her overall need and self-sufficiency - It could be inferred that, for the judge, the inheritance constituted a material change in circumstances, a finding that was not unreasonable in the overall circumstances - See paragraphs 23 to 26.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The parties divorced after 19 years of marriage - The husband was ordered to pay spousal and child support - A motion judge terminated the spousal support effective November 15, 2013, and the child support, effective December 2011 for one child, and May 1, 2013, for the second child - The wife appealed, asserting that the judge erred by failing to increase spousal support after May 1, 2013 - The Ontario Court of Appeal agreed with the wife - The Spousal Support Advisory Guidelines specified that a "cross-over" to the without child formula was appropriate after child obligations ceased - Given that spousal support was ordered to be terminated at 11.5 years, which was on the low end of the durational range set by the Guidelines for a 19 year marriage with a strong compensatory element, and given the interrelation of duration and amount, the court awarded the wife spousal support at the high end of the range, commencing May 1, 2013 - See paragraphs 32 and 33.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Considerations - General - [See third Family Law - Topic 4017 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 3997 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - [See Family Law - Topic 3997 and third Family Law - Topic 4017 ].

Family Law -Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance awards - Spousal support - Suspension or termination of - [See Family Law - Topic 3997 and second Family Law - Topic 4017 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The parties divorced - The husband was ordered to pay child support - A motion judge terminated the support and concluded that the wife had to pay the husband for the amount that he had overpaid - The wife appealed, asserting that the judge erred by crediting the husband $12,000 based on a finding that one of the children should have contributed that amount to her 2011 and 2012 post-secondary education and living expenses - The Ontario Court of Appeal agreed with the wife - Any contribution by the child should have reduced the portion of her expenses paid by both parties - The husband was responsible for paying only $5,000 per year towards the child's post-secondary education - To the extent that the credit related to the child's education expenses, the husband could not receive a $12,000 refund for a $10,000 payment - There was no basis to interfere with the judge's determination that the husband should receive some credit - In the parties consent divorce judgment it was agreed that the husband should pay two-thirds of the s. 7 Guideline expenses - The court adopted that agreement and credited two-thirds of the $12,000 (i.e., $8,000) to the husband - See paragraphs 37 to 39.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - [See second Family Law - Topic 3357 ].

Family Law - Topic 4045.14

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where child has income or capital - [See Family Law - Topic 4045.4 ].

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].

L.M.P. v. L.S., [2011] 3 S.C.R. 775; 424 N.R. 341; 2011 SCC 64, refd to. [para. 24].

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. 33, footnote 2].

Cassidy v. McNeil (2010), 266 O.A.C. 62; 99 O.R.(3d) 81; 2010 ONCA 218, refd to. [para. 47].

Counsel:

Frances M. Wood and Marvin Kurz, for the appellant;

Evelyn Huber and Joost K. Heersche, for the respondent.

This appeal was heard on December 19, 2014, by Hoy, A.C.J.O., Simmons and Tulloch, JJ.A., of the Ontario Court of Appeal. Tulloch, J.A., released the following judgment for the court on July 28, 2015.