February 22, 2010 By: Marta Siemiarczuk
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Every so often, a case comes out, and one can't help but wonder, "What were they thinking?" Neill v. Neill is one such case and certainly a lesson learned about having a sympathetic, or rather an unsympathetic, client.

In this case, Paul and Nancy Neill had been separated for approximately 11 years. Paul had a historical income of roughly $155,000. As a result of a settlement reached by the parties, the minutes of which were turned into a court order, he was to pay child support of just under $2,000 per month for the one remaining child of the marriage as defined in the Divorce Act and $4,000 per month in spousal support, which was to be up for review in 2012. Nancy had been unable to secure gainful employment due to alleged problems with her knees and a history of related surgeries.

The one remaining child of the marriage, Michael, was a post-secondary student. One of the preconditions for paying child support was that Michael be enrolled in a full-time program at school and that he achieve passing grades. They're not uncommon terms put into agreements for older children but ones that should be constructed carefully from now on.

Paul brought a motion seeking relief that included a retroactive termination of child support for Michael and alleging the preconditions had not been met and that during negotiations he was misled about the true state of affairs relating to his son's status and performance at school.

Paul also sought to retroactively terminate spousal support. He argued Nancy had not made full efforts to support herself and thereby claimed a material change in circumstances. As an alternative rationale for relief — and wisely so — he sought to vary the amount of spousal support on the basis that his income had dropped roughly 20 per cent to $122,000.

The case did not result in a termination of spousal support, but Justice Michael Quigley did reduce it by approximately $1,300 due to the change in income. He was quick to point out, however, that not becoming gainfully employed prior to an established time for a review contained in the minutes of settlement and corresponding court order certainly did not constitute a material change in circumstances. Nevertheless, the judge did caution Nancy to make stronger efforts at supporting herself as the review period was coming up in several years. So far, then, score one for Paul and one for Nancy.

On the issue of child support and the alleged misrepresentations of Michael's grades and status, it turned out that he had become diabetic and was apparently misdiagnosed for some time. He was also suffering serious depression from the onset of diabetes. It's clear from Quigley's judgment that there was no sympathy for the father's plight. The judge went so far as to say it would be unconscionable for him to retroactively terminate Michael's support over the fact that he hadn't passed all of his courses due to his struggle with diabetes.

The human side of the decision aside, Quigley also explained that notwithstanding the academic "precondition," he couldn't rely on such terms during the school year as no one would know whether a student had passed or failed a course until it was over. Therefore, to retroactively vary or terminate child support on that basis would be inappropriate. Score two for Nancy.

She, in fact, sought two additional orders, one being that Paul pay for an insulin pump for Michael at approximately $8,000 and the other that he pay his share of the educational expenses of roughly $3,500. Unfortunately for the father, had he claimed the cost of the insulin pump earlier, his medical benefits would have covered it. Because he didn't do so, he now had to make the full payment out of pocket. Moreover, as the child support was to continue, Quigley made a further order requiring Paul to pay his portion of the educational expenses. Score three and four for Nancy.

All in all, it was a rather expensive, and likely avoidable, day for Paul. At the end of the day, Quigley noted Nancy was successful on four out of five issues. Although he didn't fix costs, he certainly encouraged the parties to resolve them on that basis, failing which they could bring the matter back for direction.

Conditional clauses, like the one outlined in this case relating to support for adult children, are very common and understandably so. However, Neill certainly serves as a cautionary tale on their use if you are seeking to terminate support, particularly if you wish to do so retroactively.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca

[This article is reprinted with permission and first appeared in the February 2010 issue of The Law Times.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law