This case was heard in the Superior Court of Justice of Ontario by Justice Metivier. The parties were married for 13 years and separated in 2002. There were two children of the marriage.
The parties entered into a separation agreement in 2003, which settled all issues between them. In 2005, a further agreement was entered into as a result in of a change in the custody regime; however this agreement was verbal only. The Applicant Wife had primary residence of the children. The parties agreed that the Respondent Husband would pay child support according to his previous year’s income in accordance with the Child Support Guidelines.
In 2008, the Respondent Husband was terminated from his employment. He unilaterally varied the agreement between the parties which they had been following for the past three years. In July 2008, he began to pay support based on an income lower then his income from the previous year. The Applicant Wife argued that the children should benefit from the higher amount of income, not the lower amount. The Respondent Husband argued that the amount he was paying in child support already exceeded the children’s needs.
The Child Support Guidelines states that where a payor earns over $150,000.00 per year, the court has the discretion to deviate from the table amount where they find that the amount is inappropriate. In this particular case, the Respondent Husband had been paying support based on an income greater then $150,000.00 based on the parties’ own agreement; therefore Justice Metivier did not find that the amounts were inappropriate.
The Court found that the agreement should continue to be followed and in the future, should the Respondent Husband’s future income be reduced, he may be entitled to pay support based on that income in the following year.
The Judge also took his child support payments in consideration when determining the children’s university expenses and held that ‘given the high amount of child support being paid by the Respondent Husband, it would be fair that the child support paid at this high level would help defray the university expenses for a period of time.’