



COURT OF APPEAL FOR ONTARIO

CITATION: Dancy v. Mason, 2019 ONCA 410

DATE: 20190517

DOCKET: C66002

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

BETWEEN

Margaret Elizabeth Dancy

Applicant (Respondent)

and

James Ian Allan Mason

Respondent (Appellant)

R. Steven Baldwin, for the appellant

Mark A. B. Frederick, for the respondent

Heard: May 9, 2019

On appeal from the order
    of Justice Gary W. Tranmer of the Superior Court of Justice, dated September
    11, 2018.

REASONS FOR DECISION

[1]

Dr. James Mason and Margaret Dancy separated on August 31, 2005, after
    approximately 19 years of marriage, preceded by two years of cohabitation. They
    had four children together. Ms. Dancy had a law degree when she met Dr. Mason.
    She mostly stayed home with the children until the youngest child was eight, at
    which point she undertook a teaching career. In 2008, the parties entered into
    a separation agreement that provided for spousal support. At that time, Dr.
    Masons line 150 gross income was $330,000 and Ms. Dancys was approximately
    $67,500. In 2010, they entered into an amending agreement for a higher level of
    support. In 2016, Ms. Dancy brought a motion seeking a further increase in
    spousal support, and Dr. Mason responded with a cross-motion to terminate spousal
    support as of July 1, 2018.

[2]

By order dated September 11, 2018, the motion judge increased the
    spousal support payable to Ms. Dancy from $9,300 to $12,000 per month. Using Dr.
    Masons full 2016 income of $632,827 as the input number, the motion judge
    described this support amount as just below the low end of the [Spousal
    Support Advisory Guidelines] range. He ordered this amount retroactive from
    October 1, 2016 until July 1, 2021, followed by a gradual step-down ($9,000 per
    month from August 1, 2021 to July 1, 2024 and $5,000 per month from August 1,
    2024 to July 1, 2026), after which spousal support will be terminated.

[3]

Dr. Mason appeals, and Ms. Dancy cross-appeals, that order. Ms. Dancy
    also seeks leave to appeal the motion judges order that each party bear his or
    her own costs of the variation motions.

[4]

At the time of the motion, Ms. Dancy was a math professor and
    coordinator at the Lawrence Kinlin School of Business. Her income in 2017 was
    $104,542. Dr. Mason is a medical doctor whose income in 2017 was $646,180. His
    income has increased substantially since the parties separation. Both have
    re-partnered. Ms. Dancy re-married a lawyer, who has seven children, and an
    income of approximately $200,000 a year. Dr. Mason has a partner with a modest
    income. Ms. Dancy and her new husband have a marriage contract that provides
    that neither of them will pay the other spousal support. The parties four
    children are now successfully independent.

[5]

The motion judge found that there had been a material change in
    circumstances since the parties amended their separation agreement on March 9,
    2010, such that the precondition in s. 17(4.1) of the
Divorce Act
, R.S.C.
    1985, c. 3, for making a variation order had been satisfied. He also found that
    there was an original compensatory basis for support for Ms. Dancy. Those
    findings are not at issue.

[6]

Dr. Mason argues that the motion judge should have terminated, or at
    least reduced, spousal support. He submits that the support he has paid since
    2005 has fully compensated Ms. Dancy for the economic disadvantages accruing from
    their 19-year marriage and its breakdown. At this point, Ms. Dancy is not
    suffering any economic hardship and is economically self-sufficient.

[7]

Dr. Mason argues that the motion judge erred in principle by failing to
    consider whether any economic disadvantage and hardship were
caused
by the marriage or its breakdown, as required by
    s. 17(7) of the
Divorce Act
. He submits that the causal link to any
    economic disadvantage and hardship  Ms. Dancys contribution to his career
    during their marriage by assuming a disproportionate share of childcare
    responsibilities  is now too remote. Similarly, he argues that the increase in
    his income relied upon to order the increased support is so far removed from
    Ms. Dancys contribution to his career during their marriage by assuming a disproportionate
    share of childcare responsibilities that he should not be required to share
    some of it with her. He further argues that the motion judges factual findings
    of economic disadvantage and hardship were unsupported by the evidence.

[8]

In turn, Ms. Dancy argues that, based on the length of the marriage and
    the parties current incomes, spousal support should have been increased to the
    mid-range of the Spousal Support Advisory Guidelines (SSAGs), namely $14,484
    per month, and that there should have been no step-down or predetermined
    termination of the spousal support. She says the order for a step-down and
    termination is premature. How, she asks, can the motion judge know that
    termination in five years is appropriate?

[9]

We begin by noting that the standard of review for family support
    decisions is 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 of law. An appeal
    court is not entitled to overturn a support order simply because it would have
    made a different decision or balanced the factors differently:
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at para. 12.

[10]

We
    are not persuaded that there is any basis for this court to overturn the
    variation order. The motion judge considered the evidence, including the
    parties original separation agreement, the objectives enumerated in s. 17(7)
    of the
Divorce Act
of an order varying spousal support, the applicable
    jurisprudence, and the SSAGs. He made no error in principle and made no
    palpable and overriding errors in his fact-finding process.

[11]

In
    considering any economic advantage or disadvantage to Ms. Dancy arising from
    the marriage or its breakdown, the motion judge made a number of findings,
    which are supported by the record: the spousal support being paid in this case
    is compensatory in nature; Dr. Masons medical career progressed uninterrupted
    as a result of the contributions made both by him and Ms. Dancy; her law career
    was interrupted by the birth of triplets, and the arrival of a fourth child,
    less than two years later; she was out of the workforce effectively from 1987
    to 1998, 11 years, as a result of assuming childcare responsibilities; and she
    then chose a teaching career, at least in part based on her childcare
    responsibilities.

[12]

He
    concluded that Ms. Dancy remains disadvantaged as a result of assuming the
    childcare responsibilities, being out of the workforce for 11 years, and
    narrowing her career options to teaching because of her childcare
    responsibilities. Contrary to Dr. Masons assertion, the motion judge
    specifically considered, and found, that there was a causal link between her relative
    disadvantage and the marriage.

[13]

Further,
    the motion judge found that, in addition to the disparity in their incomes, Dr.
    Mason had achieved a relatively higher standard of living, comparing the
    parties net worth, homes, savings and debt situation. Although she had
    contributed for 21 years to Dr. Masons highly successful medical career, Ms.
    Dancy will not share fully in his success.

[14]

The
    motion judge also found that while Ms. Dancy had achieved a measure of
    self-sufficiency, the level at which she is able to be self-sufficient is
    lower than Dr. Masons  which, as the motion judge noted,
Moge v. Moge
,
    [1992] 3 S.C.R. 813, at p. 876, directs is an appropriate consideration.

[15]

Importantly,
    the motion judge also appropriately took the parties original agreement into account
     an agreement based on Dr. Masons income of $330,000, contemplating an
    increase in support if his income rose by more than 5%, and not specifically
    contemplating an end date  and aimed to assess how to appropriately vary the
    parties agreement in light of the change in circumstances:
L.M.P. v. L.S.
,
    2011 SCC 64, [2011] 3 S.C.R. 775.

[16]

In
    the application judges view, the compensatory nature of the original spousal
    support order would no longer exist at the ordered termination date.

[17]

In
    light of all of these circumstances, the motion judges decision to increase
    support from $9,300 to $12,000 for a few years, reflecting Dr. Masons attainment
    of significantly higher earnings than what was contemplated at the time of the
    separation agreement, and then to gradually step-down support to a termination
    date coinciding with Dr. Masons anticipated retirement, was a reasonable
    exercise of his discretion.

[18]

We
    note that the amount ordered is not actually accurately described as just
    below the low end of the [SSAG] range. This is because the SSAGs suggest that
    for payor income over the $350,000 ceiling, there is also a range of appropriate
income
input from $350,000 to the payors actual income amount: see
    SSAGs at s.11.1-11.3 and this courts decision in
Halliwell v. Halliwell
,
    2017 ONCA 349, 138 O.R. (3d) 671. This means that for payor incomes above
    $350,000, in addition to the low, mid-point and high-end amounts suggested by
    the SSAGs, there is also a range of possible appropriate payor income inputs.
    In this case, for example, the motion judge could equally appropriately have
    selected a payor income of $491,000, namely the half-way point between $350,000
    and his total income of $632,827. This would have generated a monthly support
    range from $9,531 to $12,708, placing the actual amount awarded at the
    high-end of
that
range. This does not, however, change our
    assessment of the motion judges award as being well within his discretion.

[19]

For
    these reasons, the appeal and cross-appeal of the variation order are dismissed.

[20]

Turning
    to the costs order, Ms. Dancy argues that the motion judge erred in
    characterizing this as a matter of divided success, and, for that reason,
    ordering that each party should bear his or her own costs of the motions. She
    submits that she was substantially more successful before the motion judge than
    Dr. Mason and was entitled to costs of the motions. We are not persuaded that
    the motion judges costs order is clearly wrong. Leave to appeal costs is
    granted rarely and only in obvious cases where the party seeking leave
    convinces the court there are strong grounds upon which the appellate court
    could find that the judge erred in exercising his discretion:
Brad-Jay
    Investments Ltd. v. Szijjarto
(2006), 218 O.A.C. 315 (C.A.), at para. 21,
    leave to appeal refused, [2007] S.C.C.A. No. 92. Leave to appeal the motion judges
    costs order is denied.

[21]

The
    parties agreed that the successful party before this court would be entitled to
    costs in the amount of $17,500, inclusive of HST and disbursements. In our
    view, success before this court was divided. Accordingly, neither party is
    entitled to costs.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.


