Butler v Butler, 2018 ONSC 2409
The parties commenced cohabitating in June 1983 and were married on December 24, 1985.
They separated on August 6, 2009 and were divorced on January 23, 2012.
There are three (3) children of the marriage, two sons and one daughter. Throughout their childhood (and at the time of separation), the three children were homeschooled by the mother.
The parties entered into a Separation Agreement on December 2, 2010. It is important to note that the parties’ agreement was negotiated and drafted by accountants (not lawyers). Although the Agreement did not include Certificate(s) of Independent Legal Advice, paragraph 43 did stipulate that the parties received independent legal advice and understood their rights.
The father filed a Motion to Change the provisions of child support and spousal support in December 2014.
The Honourable Justice Morissette of the Ontario Superior Court of Justice noted that the variation of support – where there is no previous court order – is governed by section 15.1(4) and section 15.2(4) of the Divorce Act. Justice Morissette noted that “a fairly negotiated agreement that represents the intentions and expectation of the parties…should receive considerable weight.” As such, the court reasoned that the parties’ final agreement must be accorded significant weight at the variation stage.
With respect to child support, paragraph 8 of the parties’ agreement imposed an obligation on the mother to advise the father (on a regular basis) of any significant matter relating to the health, education and welfare of their children. Although the father attempted to obtain this information on several occasions – and even in the face on a court order – the information and disclosure was never provided to the father.
The mother argues that child support should be paid for their daughter until she turns 22, as she was born with a cleft palate.
The father’s position with respect to child support is that none of the children require support: all three children have worked or assisted with their mother’s business venture over the years; their oldest son moved out of the mother’s home and to Toronto, where he is now a manager of a youth centre café; their second son handles the financial affairs of the mother’s business; and their daughter is a karate instructor, an artist, and her cleft palate has been surgically repaired years ago.
The court concluded that the children are adults and self-sufficient. For such reason, the court terminated child support, noting that child support for the daughter shall end in April 2018.
The court highlighted that the objectives of the Divorce Act stress finality, certainty and autonomy as the major considerations for spousal support.
The mother’s position is that she should be granted indefinite spousal support because “Rule 65” applied at the time of separation. The father asserts that spousal support should be terminated on the basis that the mother has become self-sufficient.
The mother maintains that she earns no income from her business (a food truck that evolved into a year round restaurant that has been voted the best lunch spot two years in a row). The mother however failed to provide documentation regarding her income (i.e. source documents for the sales of her business, etc.). Consequently, the court determined that an adverse inference shall be drawn in terms of imputing an income to the mother.
The court determined that the mother is no longer a ‘stay at home spouse,’ and imputed an annual income of $60,000.00 to her (from the year 2016 and forward).