Slongo v. Slongo
2017 ONCA 272
Court of Appeal for Ontario, Simmons, LaForme and Pardu JJ.A.
April 3, 2017
Family law — Support — Spousal support — Variation — Parties separating in 2007 after lengthy traditional marriage — Husband accepting
early retirement package in 2012 at age 53 — Wife bringing motion to
vary spousal support based on material change in circumstances —
Motion judge varying spousal support to amount significantly below
Guidelines range — Motion judge erring in departing from Guidelines
based on good luck associated with husband’s early pension payout and
his finding that wife was mismanaging her affairs — Motion judge also
misunderstanding Guidelines range when using it to “check” on his own
figures — Spousal Support Advisory Guidelines.
The parties separated in 2007 after almost 23 years of marriage, during which
the wife remained in the home to care for the children and manage the household. They entered into a separation agreement which provided that the husband
would pay child support until “one” of certain specified events occurred with
respect to any of the children. The agreement also provided that the husband
would pay spousal support to the wife, subject to variation based on a material
change in circumstances. In 2012, at the age of 53, the husband accepted an
early retirement package from his employer and elected to receive the commuted value of his pension, totalling almost $2 million, payable in six instalments on September 1 of each year. At that time, the husband was paying
spousal support in the amount of $2, 650 monthly. The husband terminated
child support payments for the parties’ youngest child effective December 1,
2012, at which point the child was 20 years old and had completed her full-time studies. In April 2013, the wife brought a motion for retroactive and ongoing child support for the youngest child and to vary spousal support based on a
material change in circumstances. The motion judge dismissed the child support claim. He found that the husband’s early retirement amounted to a material change in circumstances. He varied spousal support to $5,000 per month,
an amount considerably lower than the range set out in the Spousal Support
Advisory Guidelines. The wife appealed.
Held, the appeal should be allowed in part.
The motion judge did not err in dismissing the child support claim. Two of the
triggering events in the separation agreement had occurred: the child had
attained the age of 18 and ceased full-time attendance at an educational institution; and the child was no longer a child of the marriage. Either one of those
events would have been sufficient. The fact that other triggering events set out in
the agreement had not occurred was irrelevant.
The Spousal Support Advisory Guidelines, while not binding, should not be
lightly departed from. The motion judge erred in departing from the Guidelines
for the reasons he did, namely, the good luck associated with the husband’s early
pension payout opportunity, and his finding that the wife was mismanaging her
affairs. In the face of a very strong compensatory basis for entitlement to support,
as well as an income increase arising from the very same job that the husband
occupied throughout the 23-year traditional marriage, there was no reason for
the motion judge to conclude that the underlying assumptions of the Guidelines
were now less helpful. A significant amount of the unequalized portion of the