



COURT OF APPEAL FOR ONTARIO

CITATION: Hendriks v.
    Hendriks, 2022 ONCA 165

DATE: 20220225

DOCKET: C68822

Tulloch, Pardu and Roberts JJ.A.

BETWEEN

Stephen
    Harold Hendriks

Respondent

and

Eleanor
    Dawn Hendriks

Appellant

Michael Ruhl and Ashley Timm, for the appellant

Michael Stangarone and Stephen Kirby, for the respondent

Heard: June 16, 2021 by video conference

On appeal from the order of Justice Erika Chozik of the Ontario
    Superior Court of Justice, dated October 9, 2020.

Tulloch J.A.:

[1]

The parties were married for 18 years and separated in 2010. During
    their marriage, they had three children: Tyas, Garett, and Corinne. Following
    their 2010 separation, they litigated until May 12, 2015, at which time
    they entered into a consent final order (the Mossip Order) that incorporated
    terms set out in minutes of settlement. The Mossip Order provided for child
    support and spousal support.

[2]

In August 2018, the respondent began new employment in Qatar and his
    income increased significantly from approximately $78,000 to approximately $214,000.
    Following the respondents post-separation increase in income, the appellant
    brought a motion to vary child support and spousal support, among other relief.
    The motion was dismissed in its entirety.

[3]

The appellant now appeals. She argues that the motion judge made several
    errors in her application of the law and apprehension of the evidence.

[4]

For the reasons that follow, the appeal is allowed in part.

Background Facts

[5]

The relevant terms of the Mossip Order were as follows:

·

The
    respondent would pay ongoing child support for the three children in the amount
    of $1,506 per month, based on an income of $78,528.

·

The
    respondent was to make a one-time payment of $3,108 in retroactive child
    support.

·

The
    respondent would pay 75 percent of the childrens future s. 7 expenses.

·

The
    respondent would make a one-time payment of $4,000 for retroactive s. 7
    expenses.

·

The
    respondent would contribute to s. 7 expenses in the amount of $33 per
    child per month.

·

The
    respondent was to make a one-time payment of $3,000 in retroactive spousal
    support.

·

The
    respondent would pay ongoing spousal support in the amount of $150 per
    month, based on an income of $78,528.

[6]

For clarity and ease of reference, I have set out below, a timeline of
    the relevant events that are the subject of the various support orders, and
    that were under consideration by the motion judge:



Date

Event



August 15, 1992

The parties are married. During the marriage, the
          appellant operates a pottery business and teaches classes.



September 2002

The respondent begins his Masters degree in Social Work
          (MSW).



2005

The respondent completes his MSW. The family moves to
          accommodate the respondents new employment.



December 27, 2010

The parties separate. The appellant finds employment
          outside the home.



October 25, 2012

The parties are divorced. The children reside with the
          appellant.



May 12, 2015

Divorce litigation is resolved by a Final Consent Order of
          Justice Mossip (Mossip Order), which incorporates minutes of settlement
          executed by the parties.



November 2015

The respondent makes a lump sum payment in the amount of
          $22,066.22 (being $22,825 less notional disposition costs). The appellant
          delays acknowledging receipt with the Family Responsibility Office (FRO)
          until March 2018, resulting in continued payments for the eldest child after
          his support terminates on July 1, 2016.



July 1, 2016

Child support is supposed to terminate for the eldest
          child. This is not confirmed until March 2018.



2016 to 2018

The respondent participates in ongoing training and
          development in his field.



July 2017

The eldest child stops living with the appellant.



December 2017

The appellant confirms with the FRO there were no arrears
          owing under the Mossip Order, following receipt of $22,066.22 from the
          respondent.



February 2018

The middle child moves in with the respondent in Barrie. The
          appellant mother does not pay any child support for the middle child despite
          the change in residence. The respondent asks FRO to adjust child support only
          for the youngest child, but FRO is unable to confirm facts with the
          appellant. The respondent continues to pay child support for all three
          children.



March 2018

The parties consent to the termination of child support
          for the eldest child. The parties agree to terminate child support for the middle
          child, since he no longer resides with the appellant. The appellant alleges
          that at this time, the respondent stopped paying all child and spousal
          support. The respondent claims that his overpayments in support effectively
          pre-paid support until February 2020.



May 16, 2018

Child support for Garett, the middle child, ends when he
          moves in with the respondent.



June 2018

The middle child graduates from high school.



August 2018

The respondent and the middle child move to Qatar for the
          respondents new employment. The respondents income increases to
          approximately $214,000 (untaxed and subject to gross-up).



August 7, 2018

The appellant files a motion to change, seeking a change
          in child support, sharing of s. 7 expenses, and a change in spousal support. The
          respondent seeks an order terminating spousal support and adjusting child
          support. The appellant mothers motion is dismissed by Justice Chozik
          (Chozik Order). Spousal support is not terminated, and no retroactive child
          support is awarded to either party.



February 2019

The middle child moves back in with the appellant.



July 2019

The middle child finds full-time employment.



February 2020

The respondent resumes paying child support for the
          youngest child, Corinne only, in the amount of $2,200 per month.



March 31, 2020

The appellants employment is terminated by restructuring
          due to COVID-19.



June 2020

The youngest child graduates from high school.



September 2020

The youngest and middle child both commence full-time
          post-secondary studies. Both reside with their mother due to COVID-19. The
          youngest child maintains a part-time job, and the middle child receives the
          Canada Emergency Response Benefit.



September 2020

The appellant commences full-time studies, working towards
          a Bachelor of Arts in Global Business and Digital Arts.



October 2020

The appellant alleges the respondent stops paying child
          support for the youngest child. The respondent states that child support
          terminated under the Chozik Order.



November 2020

The respondent resumes paying spousal support in
          accordance with the Mossip Order.



Decision Below

[7]

In August 2018, the appellant filed a motion to change the Mossip Order,
    seeking: 1) the enforcement of amounts she claimed remained outstanding; 2) variation
    of spousal support; 3) variation of the child support termination date for both
    the older and middle children; 4) an order for payment of future s. 7 expenses
    for both the middle and youngest child; and Table amount child support
    commencing September 1, 2020 for the middle and youngest child.

[8]

The motion judge refused to grant any of the relief sought.

[9]

First, the motion judge found that the amounts the appellant claimed
    were outstanding were satisfied. The respondent had paid the appellant $18,435
    in net proceeds from the sale of the matrimonial home, paid the appellants
    share of a joint line of credit in the amount of $2,520.60 and transferred
    $22,825.60 to the appellant from his RRSP. She determined that this was more
    than sufficient to cover the outstanding amounts, and that the appellant had
    previously confirmed with the FRO that all arrears were satisfied.

[10]

The motion judge refused to vary the spousal support. Because the Mossip
    Order incorporated minutes of settlement, she held that the appellants
    entitlement to spousal support was solely contractual in nature. Neither the
    Mossip Order nor the minutes of settlement contained terms that would permit a
    variation of support, and there was no finding that the appellant was entitled
    to compensatory or needs-based support. The motion judge further determined
    that the respondents increase in income was not a material change in
    circumstances because, on the appellants own affidavit evidence, it was in
    line with their expectations when the respondent began his MSW. Additionally,
    the increase in income was attributable to an intervening cause: the
    reorganization of his employment arrangements, his new marriage, and his lifestyle
    changes, including his move to Qatar. The appellant was therefore not entitled
    to share in the post-separation increase.

[11]

The motion judge also refused to vary the termination date of child
    support for the oldest child or the middle child. Child support for both
    children was terminated on consent, and there was no evidence that either child
    remained a child of the marriage beyond the termination dates. Moreover, the
    motion judge determined that the respondent overpaid child support because the
    FRO could not confirm with the appellant whether an adjustment of child support
    was needed. Because the appellant failed to communicate promptly with the FRO,
    the respondent had continued to pay child support for three children until
    March 2018. The appellant also continued to collect child support while the
    middle child was no longer living with her.

[12]

With respect to the request that the respondent pay s. 7 expenses as of
    September 1, 2020, the motion judge noted that the Mossip Order also provides
    for these expenses to be shared between the parties, but that the appellant
    must provide an accounting of these expenses and has never done so. There was
    no reason to change the Mossip Order in this regard.

[13]

Lastly, the motion judge declined to order Table amount child support
    for the middle child or the youngest child. The motion judge reviewed the
    jurisprudence on determining child support for a child of majority age who is
    attending post-secondary school. Due to a lack of evidence regarding the
    childrens financial circumstances and the appellants means and needs, the
    motion judge declined to order Table amount child support. The motion judge
    again noted that the Mossip Order already provides for sharing of s. 7
    expenses.

Issues

[14]

The appellant argues that the motion judge erred in several respects, both
    in determining the child support issues and the spousal support issues.

[15]

The issues with respect to child support are the following:

1.

Did the motion judge err in finding that the respondent overpaid child
    support?

2.

Did the motion judge err by failing to consider whether child support
    arrears were owing for Corinne between August 2018 and February 2020?

3.

Did the motion judge err by failing to apply the Child Support
    Guidelines for Garett and Corinne?

[16]

The spousal support issues are the following:

1.

Did the motion judge err by finding the respondents post-separation
    increase was not causally connected to the appellants contributions to the
    marriage?

2.

Did the motion
    judge err by finding that the appellants spousal support entitlement was contractual,
    and no further inquiry was required?

Standard of Review

[17]

At the outset, it is important to note that the decision of a motion
    judge is owed a very high degree of deference. I am guided by the instructions
    of the Supreme Court in
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at
    paras. 11-12:

Our Court has often emphasized the rule that appeal courts
    should not overturn support orders unless the reasons disclose an error in
    principle, a significant misapprehension of the evidence, or unless the award
    is clearly wrong.

There are strong reasons for the significant deference that
    must be given to trial judges in relation to support orders. This standard of
    appellate review recognizes that the discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. It
    avoids giving parties an incentive to appeal judgments and incur added expenses
    in the hope that the appeal court will have a different appreciation of the
    relevant factors and evidence. This approach promotes finality in family law
    litigation and recognizes the importance of the appreciation of the facts by
    the trial judge.
Though an appeal court must intervene
    when there is a material error, a serious misapprehension of the evidence, or
    an error in law, it is not entitled to overturn a support order simply because
    it would have made a different decision or balanced the factors differently
.
    [Emphasis added.]

[18]

In this case, however, I am satisfied that the motion judge significantly
    misapprehended the evidence of child support overpayments, which in turn
    affected her analysis on whether arrears were owing. I am also satisfied that
    the motion judge erred in law in her analysis of the appellants spousal
    support entitlement and whether there was a material change in circumstances.

Analysis

(1)

Child Support Issues

(a)

Did the Motion Judge Err in Finding the Respondent Overpaid Child
    Support?

[19]

The motion judge made findings that there was an overpayment in child
    support in the amount of $36,000:

[O]n the evidence before me, I am satisfied that the Applicant
    overpaid child support significantly. The Applicant puts the amount of his
    overpayment at $36,000. This amount is not disputed by the Respondent. The
    overpayment resulted in part from the Respondents delay of more than 20 months
    in confirming to FRO that the RRSP transfer had been made.



I also find that the Applicant overpaid child support. In
    February, 2018 the Applicant asked FRO to adjust the child support to be for
    one child. FRO attempted to confirm with the Respondent that an adjustment of
    child support was needed because Tyas had graduated from high school almost two
    years earlier and Garrett was no longer living with her. The Respondent failed
    to respond promptly to FRO. This resulted in a significant overpayment by the
    Applicant of child support. The Respondent continued to collect child support
    for three children until March, 2018  well after Tyas had graduated from high
    school. She did not pay any child support for Garrett for a year knowing that
    she should be because he was not living with her. She continued to collect
    child support for Garrett until May 2018, even though he moved to live with the
    Applicant in February 2018. There was an overpayment of child support as a
    result.

[20]

The appellant mother argues the motion judge erred in finding that the
    respondent father overpaid $36,000 in child support. The appellant argues the
    motion judge misapprehended the FRO statement of account which showed a $36,000
    credit applied on March 19, 2018. The appellant contends that the subsequent
    adjustments on March 19 and 20, 2018, resulted in no overpayment of support.
    The amounts credited to the respondent by the FRO were for amounts owing to the
    appellant in accordance with the Mossip Order. The appellant further argues
    that the respondent admitted that any perceived overpayment was dealt with
    through FRO.

[21]

The respondent disputes that the motion judge erred and states that the he
    did in fact overpay.

[22]

I agree with the appellant that the motion judge misapprehended the
    evidence in finding an overpayment of $36,000. The statement of accounts from
    the FRO shows that beginning November 1, 2015, monthly payments were made to
    the FRO in the amount of $1,755, which total comprises child support for the
    three children, spousal support, and monthly s. 7 expenses as ordered in the
    Mossip Order. These payments continue until March 1, 2018. As noted above,
    March 2018 was when the parties confirmed with the FRO that support for the
    oldest child should have ended in July 2016 when he graduated high school, and
    that support for the other two children should have changed in February 2018
    when the middle child moved in with the respondent.

[23]

On my calculation based on the statement of accounts, the respondent
    paid a total of $36,855 between July 2016 and March 2018, which is equivalent
    to $1,755 per month. However, the monthly rate of $1,755 was based on child
    support and s. 7 expenses for three children. When child support ended for the
    eldest in June 2016, the monthly payments should have changed.

[24]

The credits applied by the FRO reflect that these monthly payments were
    incorrect. Between July 2016 and January 2018, the respondent should have only
    been paying child support for two children. Between February 2018, when Garett
    moved in with the respondent father, and May 2018, when support for Garett
    ended, the respondent father should have been paying child support for only the
    youngest child. The monthly payments for these obligations would almost
    certainly have been less than $1,755 per month. Therefore, it is true that there
    was an overpayment; however, the motion judge misperceived its quantum.

[25]

The $36,855 the respondent paid between July 2016 and March 2018 was not
    over and above what he was required to pay; only a portion of the $36,855 was
    an overpayment, because the respondent was still obligated to pay child support
    for his two other children and pay spousal support. Based on a review of the
    statement of accounts, from July 2016 to January 2018, the period of time when
    support was owing for the appellant and for two children, the respondent should
    have paid $1,396 per month. From February 2018 to May 2018, when support was
    owing for the appellant and only one child (because the middle child began
    residing with the respondent in February 2018 and then his child support
    entitlement terminated in May 2018), the respondent should have paid $896 per
    month. In total, this amounts to $29,595 the appellant should have actually
    paid, leaving an overpayment of $7,260.

[26]

The last adjustment made by the FRO is in May 2018, when support for the
    middle child would have ended. From then on, the statement of accounts shows
    regular debits for $896, presumably the support cost for one child and for
    spousal support. The monthly payments are taken from the $7,260 credit
    remaining on the account; this credit runs out by the end of January 2019.
    Therefore, beginning in February 2019, the respondent should have resumed
    making payments for child support for the youngest child and for spousal
    support. He did not: the parties agree that payments did not resume until
    February 2020.

[27]

This misapprehension of the statement of accounts affected the motion
    judges analysis on whether child support arrears were owing, which I address
    next.

(b)

Did the motion judge err by failing to consider whether child
    support arrears were owing for the youngest?

[28]

The motion judge did not address the issue of child support for the
    period between March 2018 and February 2020.

[29]

The appellant argues that the youngest child was entitled to child
    support between March 2018 and January 2020, but that the respondent did not
    make any such payments. The respondent takes a somewhat internally inconsistent
    position: he acknowledges that the overpayment credit was exhausted by 2019 but
    also argues that the $36,000 overpayment covered March 2018 to February 2020,
    and therefore it was not the case that the respondent did not make payments
    during this period.

[30]

The last payment made by the respondent was in March 2018. Between April
    2018 and January 2020, the youngest child was still a minor residing at home with
    the appellant and attending high school. There is no evidence that any payments
    were received for this time period, aside from the credits applied from the
    overpayment which were exhausted by the end of January 2019, as described above.

[31]

The parties agree that the respondent recommenced making payments in the
    amount of $2,200 in February 2020. This amount roughly corresponds to monthly
    Table support for one child and the $150 per month required by the Mossip
    Order. This leaves a period of 12 months during which the respondent did not
    pay spousal or child support for the youngest child, then in high school and
    living with the appellant.

[32]

I would fix the arrears of child and spousal support owed for this
    period at $26,400.

(c)

Did the motion judge err by incorrectly applying the
Child
    Support Guidelines
to the youngest and to the middle child?

[33]

On the motion, the appellant sought $4,000 per month in Table support,
    since both the middle and youngest children would be residing with her while
    they attended full-time post-secondary studies beginning in September 2020. The
    respondent argued that while the children should be supported, the evidence
    demonstrated that their expenses would be covered by grants and scholarships
    available to them.

[34]

The motion judge declined to order Table support, citing a lack of
    evidence regarding the childrens and appellants financial means and needs.
    She also stated it would be preferable to employ an approach [presumably under
    either s. 3(2)(b) or s. 7] that takes into account the childrens expenses
    and incomes, as well as the means of each parent and puts into place an
    appropriate budget to be shared by the parties. The motion judge further noted
    that the Mossip Order provides for the sharing of s. 7 expenses, and that the
    appellant is required to provide an accounting to the respondent under the Mossip
    Order.

[35]

In my view, the motion judge did not err in not ordering ongoing child
    support. The onus is on the party seeking support to demonstrate that the adult
    child requires educational support: see
Rebenchuk v. Rebenchuk
, 2007
    MBCA 22, at para. 63. This consideration arises even before the judge must
    determine whether the presumptive amount or an amount determining by a
    different approach applies. The insufficient evidence provided by the appellant
    failed to discharge that onus.

[36]

The motion judge concluded that there was inadequate evidence to order
    support beyond the sharing of the s. 7 expenses. I agree with the motion judge
    that the Mossip Order already accounts for the childrens post-secondary
    expenses to be shared by the parties.

[37]

In all the circumstances, I find that the motion judge did not err here.

[38]

However, a child of the marriage should not be prejudiced by the self-represented
    appellants inability to master the intricacies of litigation. If the youngest
    child, in particular, continues to reside with the appellant, the appellant
    likely incurs costs for her shelter and food. The appellant would be at liberty
    to apply for support in addition to the s. 7 expenses, upon presentation of
    adequate evidence, described by the motion judge for the period accruing after
    the October 9, 2020 order, if so advised.

(2)

Spousal Support Issues

(a)

Did the Motion Judge err by Finding the Post-Separation Increase
    was not Causally Connected to the Appellant?

[39]

The motion judge determined that the respondents increase in income was
    attributable to intervening causes:

The increase in the Applicants income is attributable to an
    intervening cause, unrelated to the parties marriage or the roles they adopted
    during the marriage. The Applicants increase in income is as a result of the
    reorganization of his employment arrangements, with new responsibilities, a new
    marriage, and as a result of significant lifestyle changes he has made since
    the separation including moving to Qatar. The passage of time aloneeight
    yearsindicates that the Respondents contributions during the marriage are not
    causally related to the Applicants post-separation income increases. [Citation
    omitted.]

[40]

These are all factual findings which the motion judge was entitled to
    make. In my view, there is no indication that the motion judge misapplied the law
    or misapprehended evidence, and there is no basis to interfere with the
    conclusion reached. This aspect of the decision is owed deference.

(b)

Did the Motion Judge Err in Finding the Appellants Spousal
    Support Entitlement was Contractual and No Further Inquiry was Required?

[41]

There are three bases for entitlement to support, as explained by the
    Supreme Court in
Bracklow v. Bracklow
, [1999] 1 S.C.R. 420:
    contractual, compensatory, and non-compensatory (also called needs-based).
    The contractual entitlement to support reflects the idea that parties
    agreements on support should influence their rights and obligations during the
    marriage and upon its breakup:
Bracklow
, at para. 18. Under s.
    15.2(4) of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.), a
    court must have regard to any order, agreement or arrangement relating to
    support of either spouse.

[42]

The compensatory basis for entitlement applies where it would be just
    to compensate a spouse for his or her contributions to the marriage or for
    sacrifices made or hardships suffered as a result of the marriage:
Bracklow
,
    at para. 18. The court in
Bracklow
, at para. 39, further notes:

Under the
Divorce Act
, compensation arguments can be
    grounded in the need to consider the condition of the spouse; the means,
    needs and other circumstances of the spouse, which may encompass lack of
    ability to support oneself due to foregoing career opportunities during the
    marriage; and the functions performed by each spouse during cohabitation,
    which may support the same argument.

[43]

Lastly, the court in
Bracklow
, at paras. 40-41, describes the
    non-compensatory basis for entitlement. This requires:

[T]he court consider the condition, means, needs and other
    circumstances of each spouse. To be sure, these factors may support arguments
    based on compensation for what happened during the marriage and its breakdown.
    But they invite an inquiry that goes beyond compensation to the actual
    situation of the parties at the time of the application

Looking only at compensation, one merely asks what loss the
    marriage or marriage breakup caused that would not have been suffered but for
    the marriage. But even where loss in this sense cannot be established, the
    breakup may cause economic hardship in a larger, non-compensatory sense

[44]

These bases for spousal support are complemented by the objectives of variation
    orders for spousal support set out in s. 17(7) of the
Divorce Act
:

17 (7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to
    the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial
    consequences arising from the care of any child of the marriage over and above
    any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses
    arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic
    self-sufficiency of each former spouse within a reasonable period of time.

[45]

It is with these policy objectives in mind that the appellants motion
    for a variation in spousal support must be assessed.

[46]

The motion judge made the following finding as to the nature of the
    appellants entitlement to spousal support:

I am satisfied that the Respondents [mother] entitlement to
    support is contractual in nature. The Minutes of Settlement and the Final Order
    do not contain any terms permitting the Respondent to seek increased spousal
    support in the future. There was no finding as to her entitlement to
    compensatory or needs based support. While she may have had a claim in this
    regard at the time, it is not the basis upon which the Final Order was made.

[47]

The appellant argues that an entitlement to spousal support is not
    contractual simply because an order for support incorporates minutes of
    settlement, and that such an order does not erase any underlying bases for
    entitlement to support. The motion judge erred by failing to determine whether
    the support order should be varied on another basis.

[48]

The respondent submits that the minutes of settlement create an
    entitlement to support that is only contractual, and the support available to
    the appellant was therefore circumscribed by the terms set out in the Mossip
    Order. Additionally, unlike a judge on an initial application for spousal
    support, the motion judge did not have the discretion to change the terms of
    the spousal support, because once an initial court approves a support order,
    there is a presumption that the terms of the order comply with the
Divorce
    Act
.

[49]

The motion judge also concluded that the respondents increase in income
    did not constitute a material change in circumstances:

Furthermore, the Respondents [appellant on appeal] own
    evidence in her sworn affidavit dated March 2, 2020 contradicts her submissions
    that the Applicants increase should be regarded as a material change in
    circumstances. In her affidavit, the Respondent states that the Applicants new
    position is exactly in line with what they had discussed when he undertook a
    masters degree program in social work. It cannot therefore be said that the
    change was not contemplated by the parties at the time they entered into the
    Minutes of Settlement that led to the Final Order.

[50]

In my view, it was an error for the motion judge to hold that the
    appellants spousal support could not be varied because the Mossip Order did
    not contain a term permitting variation. While s. 15.2(4)(c) of the
Divorce
    Act
provides that the court shall consider any order, agreement or
    arrangement relating to the support of either spouse, this does not end the
    inquiry required. The appellants motion would have been an application under
    s. 17 of the
Divorce Act
to vary her spousal support. The Supreme
    Court in
L.M.P. v. L.S.
, 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at
    para. 41, even where an agreement incorporated into an order includes a term
    providing that it is final, the courts jurisdiction under s. 17 cannot be
    ousted.

[51]

While the motion judge was entitled to make a factual finding that the
    evidence regarding the respondents income increase did not support a finding
    that there was a material change in circumstances, her analysis fails to ask
    whether the appellant faced a material change in circumstances. The court in
L.M.P
.,
    at para. 29, is clear that the question of a material change applies to both
    parties:

In determining whether the conditions for variation exist, the
    threshold that must be met before a court may vary a prior spousal support
    order is articulated in s. 17(4.1). A court must consider whether there has
    been a change in the conditions, means, needs or other circumstances of
either
former spouse
since the making of the spousal
    support order
. [Italics in original; underlining added.]

[52]

Therefore, despite the existence of an order incorporating an agreement,
    a judge retains jurisdiction to consider whether a variation in support should
    be granted based on whether there has been a material change in the circumstances
    of either former spouse, and having regard to any existing agreement.

[53]

The
Spousal Support Advisory Guidelines provide for
    differing amounts of spousal support, depending on whether child support is or
    is not payable. The motion judge declined to order ongoing Table amount child
    support for the middle and youngest children. The reduction or termination of
    child support constitutes a change in circumstances for the purposes of seeking
    a variation in spousal support:
Divorce Act
,
    s. 15.3(3). Therefore, after child support obligations are reduced or cease, a spousal
    support award may increase: see as examples
Gray v. Gray
, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 43;
Slongo
    v. Slongo
, 2017 ONCA 272, 137 O.R. (3d) 654 at para. 114;
    and
Wharry v. Wharry
, 2016 ONCA 930,
    408 D.L.R. (4th) 548, at paras. 90-92.

[54]

Although the trial judge found that the changes in the
    respondents circumstances were sufficiently disconnected from the marriage so
    as to not qualify as a material change in his circumstances, the respondents
    means may still be relevant to the determination of the extent to which he is
    now able to temper any continuing economic disadvantage resulting from the
    marriage still suffered by the appellant.

[55]

It was an error for the motion judge not to undertake this analysis,
    especially in light of her recognition that the appellant may have had
    compensatory or needs-based entitlements when the Mossip Order was made. This
    is an error that warrants correction.

[56]

When spousal support was set at $150 per month, the respondent was
    paying the Table amount of support for three children, plus s. 7 expenses. That
    he is no longer paying Table support for three children constitutes a change in
    circumstances for the purpose of seeking a variation order under s. 15.3(3) of
    the
Divorce Act
, and therefore satisfies the threshold for variation.
    The question then becomes, what is the appropriate variation? The court in
L.M.P
.
    provides guidance on the analysis required, at paras. 47 and 50:

If the s. 17 threshold for variation of a spousal support order
    has been met, a court must determine what variation to the order needs to be
    made in light of the change in circumstances. The court then takes into account
    the material change, and should limit itself to making only the variation justified
    by that change. As Justice LHeureux-Dubé, concurring in
Willick
,
    observed: A variation under the Act is neither an appeal of the original order
    nor a
de novo
hearing (p. 739). As earlier stated, as Bastarache and
    Arbour JJ. said in
Miglin
, judges making variation orders under s. 17
    limit themselves to making the appropriate variation, but do not weigh all the
    factors to make a fresh order unrelated to the existing one, unless the
    circumstances require the rescission, rather than a mere variation of the
    order.



In short, once a material change in circumstances has been
    established, the variation order should properly reflec[t] the objectives set
    out in s. 17(7), . . . [take] account of the material changes in circumstances,
    [and] conside[r] the existence of the separation agreement and its terms as a
    relevant factor (Hickey, at para. 27). A court should limit itself to making
    the variation which is appropriate in light of the change. The task should not
    be approached as if it were an initial application for support under s. 15.2 of
    the
Divorce Act
.

[57]

The court must first consider the impact of the respondents
    post-separation increase in income, which is a complicating factor: see
Gray
,
    at para. 45. As explained above, the motion judges finding that the appellant
    is not entitled to share in the respondents post-separation increase in income
    is owed deference. Therefore, the assessment of the appropriate variation should
    proceed using the respondents income at the time of the Mossip Order, which was
    $78,528.

[58]

The appropriate variation is one that will remedy the economic
    disadvantage suffered by the appellant from the roles the parties adopted
    during the marriage. On review of the record, I am satisfied that while both
    parents contributed to household and childcare responsibilities, the majority
    of these responsibilities fell to the appellant and had an impact on her
    ability to pursue her business and career. The respondent completed his MSW
    over three years, during which time he worked two jobs. This would have
    required the appellant to take on increased childcare responsibilities. The
    respondents MSW was funded by himself, through his RRSPs and student loans. Though
    she continued to work in pottery in some capacity, the appellant was not able
    to advance her career, unlike the respondent. After the separation, the
    children also resided primarily with the appellant, which continued her
    disadvantage.

[59]

The Guidelines, while not binding, are recognized for their utility in determining
    the quantum and measure of spousal support. On my calculation, at the time of
    the Mossip Order, the range for spousal support under the Guidelines, without
    child support would have been between $1,356 and $1,808 per month. Pursuant to
    the Mossip Order, the appellant received $150 per month. I find that an
    appropriate amount of varied spousal support is in the mid-range, at $1,500.

[60]

As to duration, the Mossip Order did not time-limit the spousal support
    that would be paid to the appellant. However, I find it appropriate to limit
    the varied spousal support payments to 108 months, which is at the low end for
    what the appellant would have received under the without-child formula at the
    time of the Mossip Order. The record demonstrates that the appellant has been
    able to attain higher income levels since the time of the Mossip Order, and she
    has managed to save money. The appellant is also currently pursuing her Bachelor
    of Arts. Given the appellants means and optimistic future, indefinite spousal
    support would not be appropriate.

[61]

I am satisfied that this variation is appropriate: it reflects the
    economic disadvantages the appellant suffered as the primary, though not sole,
    caregiver for the family. In my view, it will also promote the appellants
    self-sufficiency by providing her the financial security she needs to complete
    her education and make herself competitive in the job market.

Disposition

[62]

In conclusion, the appeal is allowed in part.

[63]

I find that the motion judge misapprehended the evidence regarding an
    overpayment of child support, and this affected her analysis of whether there was
    support owing for the youngest child between February 2019 and January 2020. With
    respect to the childrens post-secondary education expenses, I do not find that
    the motion judge made a palpable and overriding error that warrants appellate
    interference.

[64]

With respect to the motion judges findings on the respondents
    post-separation increase in income, I do not find that the reasons disclose any
    reversible error; as such, deference is owed to the motion judges findings on
    this ground. However, in my view, the motion judge erred by failing to assess
    whether the spousal support order could be varied simply because the order
    incorporated minutes of settlement. I would therefore vary spousal support to $1,500
    per month for 108 months, retroactive to July 1, 2020.

[65]

Each of the parties may make brief written submissions as to the costs
    of the motion to vary, and the costs of the appeal, due from the appellant
    within 15 days after the date of the release of these reasons, and due
    from the respondent within 7 days after he receives the appellants costs
    submissions.

Released: February 25, 2022 M.T.

M. Tulloch J.A.

I agree. G. Pardu
    J.A.

I agree. L.B. Roberts
    J.A.


