Orally Amending a Separation Agreement, Young v Zaatri, ONCJ 559
The Applicant brought a motion to change the child support and spousal support terms of the parties’ separation agreement, which was registered with the court in 2014. The parties were married for nine years. They have one daughter who lives primarily with the Respondent, and sees the Applicant father on alternate weekends.
The separation agreement provided that the Applicant was to pay child support of $766 monthly based on his 2012 income of $85,520, and was to pay spousal support of $898 monthly. The Applicant’s employment was terminated in December 2017, he received no severance, and was not eligible for Employment Insurance Benefits.
He initiated this action in January 2018, requesting that child support be suspended until he obtained employment and that spousal support be terminated. The Applicant requested that his obligation to pay spousal support be terminated based on the parties’ agreement set out in texts in April 2014, in which they agreed that spousal support would terminate because of the Respondent’s remarriage. The Respondent denies this text message agreement.
The separation agreement contained a standard provision that any amendment must be made in writing, signed, dated, and witnessed. The parties did not comply with this provision. The evidence indicates that the parties acted in accordance with the April 2014 text agreement for almost four years, with no evidence of complaints from the Respondent.
The Respondent stopped working in 2012, stating that she was supported by her current spouse. However, in her Financial Statement, she listed assets of less than $2,000 and debt of $50,000. She also indicated that her husband was unemployed. Evidence suggested, however, that her family enjoyed an affluent lifestyle; they resided in an upscale neighbourhood and drove luxury cars.
With respect to the child support obligation, the Applicant looked for new employment but was unsuccessful until May 2018. Despite having no income, he drew on savings to continue paying the full amount of child support provided for in the separation agreement. The Applicant requested that the court find that he owed no child support for the months of January to April 2018, and order the Respondent to repay him the amount that he paid during those months. In May 2018, the Applicant obtained new employment with an annualized salary of approximately $25,000, which resulted in monthly child support payments of $199.
However, in May 2018 the Applicant obtained new employment paying a salary of $90,000 annually. Accordingly, the Applicant proposed that for August 2018 he pay pro-rated support of $645, and commencing September 1, 2018 he pay the required table amount of $834 monthly.
Case law provides that, despite a provision in an agreement stipulating that amendments must be in writing and witnessed, oral agreements to vary the agreement may be accepted as valid. The judge found that the parties agreed in their text exchange in 2014 that the Applicant could stop paying spousal support as of May 2014, and that the Applicant relied on this agreement for four years. As such, the judge ordered that all spousal support arrears owing after 2014 be rescinded, and prospective payments of spousal support be suspended. However, despite the agreement in the parties’ 2014 text exchange, the judge was unwilling the make an order now based on the present record that terminated the Respondent’s entitlement to spousal support. This is because there was no evidence that the Respondent received legal advice when the text agreement was made, and that there is nothing in the text message exchange that speaks to whether the Respondent’s entitlement to receive spousal support was to be extinguished indefinitely, regardless of any change in circumstances.
With respect to child support, the judge found that the Applicant’s termination of employment in December 2017 was a material change, thus justifying a change in his child support obligation, and ordered that he pay child support as follows:
- zero for the months of January to April 2018,
- $200 per month for May to July 2018,
- $645 for August 2018, and
- $834 commencing September 2018.
The judge also found that the Applicant does not currently owe further monies for s. 7 expenses.
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