Appeal & Cross-Appeal: Variation Order Altering Spousal Support Dancy v Mason, 2019 ONCA 410
In Dancy v Mason, the Court of Appeal considered the validity of a variation order that altered a divorced couple’s spousal support order. The greater question they needed to examine was whether the motion judge errored in creating an order that increased support retroactivity, diminished support overtime, and ended support on a set date.
Ms. Dancy and Dr. Mason were married for 19 years prior to their separation on August 31, 2005. The couple had four children, three of which were triplets. When the couple got married, Ms. Dancy had a law degree and Mr. Mason was a medical doctor. Ms. Dancy stopped working to care for their children full-time. However, Mr. Mason continued to work and established a solid career. After 11 years at home, Ms. Dancy decided to pursue a new career in teaching.
In 2008, the couple drafted a separation agreement. At the time, Mr. Mason had a $330,000 income while Ms. Dancy earned $67,000 a year. Spousal support was calculated based on these values. In 2010, the separation agreement was amended, and spousal support was increased. In 2016, Ms. Dancy sought an additional increase.
On September 11, 2018, the motion judge increased spousal support from $9,300 to $12,000 per month. Furthermore, retroactive support and prospective support was ordered from October 2016 to July 2021. However, a step-down in support was also ordered from July 2021 until July 2026, at which point the spousal support would be terminated. The order was made based on Dr. Mason’s and Ms. Dancy’s 2017 gross incomes, which were $646,180 and $102,542, respectively.
Section 17 (4.1) of the Divorce Act states: “Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.”
The motion judge held that a variation order necessary. In his view, there was a significant change in circumstances since the previous amendment. However, Dr. Mason disagreed with this finding and appealed the order. As a result, Ms. Dancy cross-appealed.
Ultimately, the Court of Appeal agreed with the 2018 order. They thoroughly examined the previous judgment and found it reasonable. The court regarded Hickey v Hickey as a legal precedent when making their determination. This case states that the standard review for family support cases is significant deference. In other words, the Court of Appeal should not intervene in a lower court decision unless there is a material error, a substantial misinterpretation of evidence, or an error of law.
In this case, the motion judge made no grave error. Per Section 17(7) of the Divorce Act, a variation order that modifies an individual’s spousal support obligations should: “(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period.”
Dr. Mason argued that spousal support should be terminated or reduced, believing that his previous support payments abolished any financial disadvantages. He also pointed to the fact that Ms. Dancy is now “self-sufficient” and not financially strained. Furthermore, Dr. Mason argued that Ms. Dancy should not benefit from his rise in income because it was unrelated to her – previously established – marital contributions. Dr. Mason also contended that the judge errored in finding a causal connection between the marriage and any economic hardship.
However, the Court of Appeal agreed with the motion judge’s finding that economic disadvantage arose from the marriage. For example, Dr. Mason’s medical career flourished as a direct result of Ms. Dancy’s dedication to childrearing. Also, Ms. Dancy remains disadvantaged because she is unable to reap the fruits of Dr. Mason’s success, despite contributing to his career for 21 years.
The motion judge rightfully considered Moge v Moge when issuing the variation order. In that case, the court considered the level of self-sufficiency displayed by both spouses. In Dancy v Mason, Dr. Mason is more financially autonomous than Ms. Dancy due to their income disparity. The Court of Appeal agreed that this circumstance should be considered when arriving at an appropriate variation order.
Ms. Dancy argued that spousal support should be increased to $14,484 per month. She came to this conclusion after considering the length of the marriage and their differences in income. She alleged that a mid-range value on the Spousal Support Advisory Guidelines (SSAGs) would be more appropriate. She also stated that the order to diminish and terminate support was not justified.
The Court of Appeal was pleased that the motion judge considered the separation agreement. The agreement envisioned an increase in support based on an increase in income and didn’t include an end date; however, the motion judge assumed that Ms. Dancy would be fully compensated by 2026. The Court of Appeal agreed with this finding and disagreed with Ms. Dancy’s assertion that a termination date was not justified. Furthermore, the Court of Appeal held that the variation order was justified and refused to increase or decrease the spousal support. Both the appeal and the cross-appeal were dismissed.
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