



COURT OF APPEAL FOR ONTARIO

CITATION: Skinner v. Skinner, 2021 ONCA 658

DATE: 20210923

DOCKET: C67873

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Lisa
    Ellen Skinner

Applicant
(Appellant in Appeal)

and

Michael Wayne Skinner

Respondent
(Respondent in Appeal)

Emily M. Carroll, for the appellant

Eric Sadvari and Ramanjit Gill, for the
    respondent

Heard: September 16, 2021 by video conference

On appeal from the order of Justice Jennifer Breithaupt Smith of the
    Superior Court of Justice, dated December 2, 2019, with reasons reported at 2019
    ONSC 6949.

REASONS
    FOR DECISION

Overview of the Facts

[1]

The parties were married in 1998 and separated
    sometime in 2006 or 2007. There are two adult children of the marriage. The
    court below made orders dealing with parenting and support issues on January
    12, 2009 and April 27, 2010. Both the appellant and the respondent sought to
    change the most recent order due to material changes in circumstances. The
    respondent also argued that the appellant was no longer entitled to spousal and
    child support. Justice Breithaupt Smith found that there had been material
    changes to the respondents circumstances and reduced the arrears owing based
    on her recalculations. Justice Breithaupt Smith also found that the appellants
    entitlement to spousal support ended as of June 30, 2019 and her entitlement to
    child support ended as of December 31, 2017 and December 31, 2019. The
    appellant seeks to appeal Justice Breithaupt Smiths order to this court.

Overview of the Appeal

[2]

The appellant advances five grounds of appeal:

1.

Breithaupt Smith J. erred in finding that there
    had been a material change in circumstances warranting a reduction in the
    respondents support obligations;

2.

Breithaupt Smith J. erred in finding that the respondent
    was excused from his intentional underemployment for the years of 2011-2016;

3.

Breithaupt Smith J. erred in reducing arrears
    back to 2011;

4.

Breithaupt Smith J. erred in failing to address
    the childrens Section 7 extraordinary expenses accumulated after March 31,
    2011; and

5.

Breithaupt Smith J. erred in finding that Steven
    was not a child of the marriage in 2018 and 2019, and that Hailey did not
    qualify for child support effective December 31, 2019.

6.

The appellant also requests that the costs order
    in the amount of $17,313.24 be set aside.

[3]

The appellant, Lisa Ellen Skinner, and the
    respondent, Michael Wayne Skinner, were married on February 14, 1998 and
    separated sometime in 2006 or 2007. There are two children of the marriage:
    Steven, born May 12, 1998, and Hailey, born May 16, 2001. The parenting and
    support issues were first addressed on January 12, 2009 in the final order of
    Justice Bean (the Bean Order). The respondent brought a motion to change the
    Bean Order to accord with his actual income and to address certain parenting
    issues, which were addressed on April 27, 2010 in the final order of Justice
    Epstein (the Epstein Order). The respondent owed arrears at the time.

[4]

The respondent then sought to change the Epstein
    Order, stating that his inability to work consistently due to his illness
    constituted a material change in circumstances. He requested that the court
    rescind the arrears accumulated since the date of the Epstein Order or, in the
    alternative, recalculate child and spousal support to reflect his actual income
    and adjust the arrears accordingly. He also requested that spousal support be
    terminated effective April 27, 2011 and for child support to end as of the
    childrens 18
th
birthdays. The appellant also sought to change the
    Epstein Order, arguing that the $5.38 increase in the respondents hourly rate
    as of 2011 constituted a material change in circumstances justifying a
    retroactive increase in support. The motion to change the Epstein Order was
    heard on November 22, 2019, and it is this order that is under appeal.

[5]

In her endorsement dated December 2, 2019, the
    motion judge found that material changes in the respondents circumstances took
    place as of the date of diagnosis and identification of serious health issues
    affecting him and also as of the date of the increase in his hourly rate. In
    arriving at this conclusion, the motion judge applied the legal test for a
    material change in circumstances as determined in
Willick v. Willick
,
    [1994] 3 S.C.R. 670 at p. 688: a change, such that, if known at the time, would
    likely have resulted in different terms. She found that there had been a
    material change in circumstances as of July 10, 2015, when the respondent was
    diagnosed with a significant illness. She also found that there had been an
    earlier material change in circumstances as of April 1, 2011, when the
    respondent returned to work at a higher hourly rate. As a result of these
    material changes in circumstances, the Epstein Order was reviewable and
    Breithaupt Smith J. conducted a fresh analysis of the issues dating back to
    2011.

[6]

The motion judge also considered whether income
    should be imputed to the respondent with a view to assessing his support
    obligations. Applying
Lavie v. Lavie
, 2018 ONCA 10, 8 R.F.L. (8th) 14,
    she held that the health needs of the respondent excused his underemployment
    for the period from 2011 to 2018, but that there was insufficient evidence to
    excuse his underemployment for 2017-2018. Once the respondents illness was
    properly treated, he was able to increase his working hours.

[7]

In dealing with child support the motion judge
    applied the criteria described in
Rosenberg v. Rosenberg
(2003), 42 R.F.L. (5th) 440 (Ont. S.C.)
to assess whether a child over the age of 18 continued to be a child of the
    marriage for support purposes. She concluded that the evidence was not
    sufficient to establish that the child Steven continued to be a child for whom
    support was payable after 2017 and was insufficient to establish that Hailey
    was a child for whom support was payable after December 31, 2019, although the
    motion judge left open the possibility of a future motion for child support,
    without the necessity of demonstrating a material change, upon better evidence.
    In that regard, she noted that her decision on termination of child support was
    subject to review and reinstatement effective January 1, 2020, based on
    production of more evidence.

[8]

The motion judge also terminated the appellants
    entitlement to spousal support as of the end of 2019. She noted that the
    appellant had completed a program of education that significantly increased her
    earning potential and that the academic year 2018-2019 was her youngest childs
    fourth year of high school. She observed that application of the Spousal
    Support Advisory Guidelines would have suggested spousal support of 4.75-12
    years duration, post separation. Here, with termination of support ordered by
    the motion judge, spousal support had been paid until a date approximately 12
    years after separation.

[9]

With all of these findings in hand, the motion
    judge went on to calculate the support that should have been paid from 2011.

Analysis

[10]

The parties agree that the appropriate standard
    of review is palpable and overriding error. The standard of review for family
    support decisions demands significant deference. This is informed by both the
    discretion involved in making support orders and the importance of finality in
    family law litigation. An appeal court should only intervene where there is a
    material error, a serious misapprehension of the evidence, or an error in law:
    see
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para. 12.

[11]

The motion judge cited the applicable
    authorities and correctly distilled the governing tests. The appellant
    essentially submits that the motion judge ought to have weighed the evidence
    differently. We do not agree. The conclusions reached by the motion judge were
    reasonable, based on the evidence before her. The motion judge logically and
    carefully explained her conclusions. There is no basis to find any error in her
    reasoning, let alone palpable and overriding error.

[12]

While the motion judge did not directly address
    retroactive s. 7 expenses for the children, the appellant would have had to
    establish that the expense was necessary, in the childrens best interests, and
    reasonable in relation to the means of the spouses and children and the
    familys spending pattern before separation. Given the paucity of evidence on
    these points, the motion judge did not err in not making an order for s. 7
    expenses.

[13]

The appellant also submits that the motion judge
    erred in ordering her to pay costs to the respondent in the sum of $17,313.24.
    The respondent had offered to settle with the appellant on terms that were more
    favourable to her than the judgment on the motion. We see no basis to interfere
    with the motion judges decision on costs.

[14]

Accordingly, the appeal is dismissed with costs payable to the
    respondent fixed at $5000.00 all inclusive.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


