Termination of Child & Spousal Support and Overpayment
In Holman v Holman, 2015 ONCA 552, the Ontario Court of Appeal whether the motion judge erred in finding that a material change in circumstances had occurred that would warrant the termination of spousal support after over 11 years of separation.
In this case, the husband and wife separated in 2002 after 19 years of marriage. Their two children are now both adults. After the marriage ended, the husband paid child and spousal support and contributed to the girls’ post-secondary education.
In 2012, the husband brought a motion seeking to terminate child and spousal support. The wife responded by requesting an increase in child and spousal support based on an increase to the husband’s income. The motion judge terminated child support for one daughter in December 2011 and the second daughter in May 2013, and found that the husband had overpaid child support. The motion judge also terminated spousal support on November 15, 2013, but found that the husband had underpaid spousal support. He calculated the net amount owed by the wife to the husband was $40,287.
The wife subsequently appealed the order of the motion judge, arguing that he made a number of calculation errors in the child support, that he should have raised the spousal support when the child support was terminated and that he erred in terminating spousal support.
On a motion to change a spousal support order, the threshold question can be found in section 17(4.1) of the Divorce Act which requires that a court must consider whether there was a material change in circumstances. The Court of Appeal found that although the motion judge did not explicitly address the issue of whether a material change in circumstances had occurred in terminating the spousal support, his failure to do so was not a reversible error. The motion judge concluded that the wife had achieved self-sufficiency in the 11.5 years following separation. The Court of Appeal therefore upheld the motion judge’s decision to terminate spousal support at November 15, 2013.
The Court of Appeal found that the motion judge had erred in failing to increase spousal support following the termination of the child support payments. The Court of Appeal increased the spousal support payable during this period to the high end of the range recommended by the SSAGs. The Court of Appeal thus found that the husband had underpaid spousal support by $11,204.
The Court of Appeal found that the motion judge did make several errors in calculating the overpayment of child support and reduced the amount of the husband’s overpayment to $36,646.
The above summary does not cover all aspects of this decision and is not intended to be construed as comprehensive legal advice. To speak with an experienced family lawyer, please contact Jason P. Howie online or at 519.973.1500.
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