Effect of contract
Parties were married in 1983 and adopted daughter at birth in 1995. Wife left work to become full time homemaker. Parties separated in 2009. In July 2011 parties entered into partial separation agreement under which husband was to pay periodic spousal support of $4,000 per month. In January 2013 parties entered into final separation agreement. Daughter continued to live primarily with husband. Husband, who had been terminated from his employment, agreed to make final spousal support payment of $4,000 for December 2012. Husband began new employment in July 2013. In 2014, wife applied for retroactive spousal support to July 2013 on basis of material change under agreement, also submitting that daughter was no longer child of marriage. Trial judge found husband’s income to be $152,000 and wife’s income to initially be $3,760. Trial judge ordered spousal support of $5,400 monthly retroactive to July 2013; $1,900 monthly from May 2015 to April 2016; $1,930 monthly from May 2016 to April 2017; then $2,068 monthly, indefinitely. Three latter amounts were based on wife making withdrawals from Locked-In Retirement Account ($66,250, $65,221, and $62,167, respectively). Husband appealed. Appeal dismissed. Trial judge did not err in interpreting final separation agreement. Trial judge was entitled to conclude that agreement was not bar to wife’s application for support based on change in circumstances. Agreement acknowledged husband had lost job, effected an equalization of property, stipulated that cessation of spousal support was subject to future material change, required husband to notify wife in event of obtaining future employment, and lacked extensive releases of spousal support. Husband’s argument that his continuing support of daughter meant that he did not have to support wife had to be rejected. Trial judge did not err in concluding that daughter was no longer child of marriage and that wife had no continuing obligation to support her.
Berger v. Berger (2016), 2016 CarswellOnt 18305, 2016 ONCA 884, K.M. Weiler J.A., David Watt J.A., and Grant Huscroft J.A. (Ont. C.A.).