The issue facing the Ontario Superior Court of Justice in the matter of Moon v. Moon was whether or not it was appropriate to impute the income of an ex-spouse receiving spousal and child support where an Order on Consent entered into by the parties does not explicitly state that the recipient spouse, in this case Ms. Moon, is required to obtain some form of employment.

Mr. and Ms. Moon were married in August of 1992 and separated in October of 2006.  They had three children, born in 1997, 1999, and 2001.  As of the date of separation, Ms. Moon had been occupying the role of stay-at-home mom.  She had been doing so since the year 2000, prior to which she worked as an ESL instructor and it is not disputed that she has significant education and training.  As at the date of separation Mr. Moon was employed and earning around $90,000.00 per year.

Progress was made by the parties in August of 2007 when they entered into Minutes of Settlement that were reflected in a Consent Order.  One of the clauses in the Consent Order stated that the quantum of child and spousal support to be paid by Mr. Moon could be varied if there was a “material change in circumstances,” but the Order said nothing about Ms. Moon having to go back to work at any particular time.

In the Spring of 2011, Mr. Moon brought a Motion to impute the income of Ms. Moon.  He argued that “the obligation to pursue self-sufficiency and the obligation to support the children is found in the Divorce Act, and that, in the absence of an agreement or order to the contrary, a recipient has a duty to take reasonable steps to become self-supporting.”  The Court was clear about the fact that the extent of this duty referenced by Mr. Moon was dependent on the circumstances of each particular case.  Consideration must be given to things like: the age of the recipient and the children; how long the recipient has been out of the workforce; the length of the marriage; any special health issues; and the affluence of the family as a result of the payor’s income, among other factors.

An important step in the Court’s analysis was determining what constitutes a “material change.”  Justice Corbett indicated a material change means a change, such that, if known at the time, would have likely resulted in different terms of the Order.  In essence, would the quantum of support in the Order have been different if at the time it was drafted and agreed to Ms. Moon had been earning an income of around $25,000.00?  It seemed logical that the quantum of support would change if the difference between the incomes of the parties went from $90,000.00 per year to $65,000.00 per year.

Mr. Moon was ultimately successful, and Ms. Moon was attributed an annual income of $25,000.00 as of September 1, 2011.  The Court rules that silence of the issue of Ms. Moon working in the Consent Order did not necessarily imply that the parties agreed that Ms. Moon would never have to return to the workforce.  While Ms. Moon’s efforts as a stay-at-home mom were recognized and significant, they did not prevent her from retraining or obtaining employment, if only even on a part-time basis.  Justice Corbett pointed out that the aforementioned silence did not automatically relieve Ms. Moon of her statutory obligation to take reasonable steps towards becoming self-sufficient and contribute to the financial support of her children.

The Court’s reasoning was that Ms. Moon’s approach did not place the best interests of the children ahead of other considerations.  The best interests of the children are paramount in a matrimonial matter of this nature.  Given the ages of the children at the time of the Motion (14, 12, 10), Ms. Moon’s level of education (she completed a four year interior design program at Ryerson University and obtained a B.A. in Criminology and Sociology from the University of Toronto before competing four TESL courses, and studying math, marketing, and French at Sheridan College) and work history (a variety of jobs as an ESL teacher), and the fact that she had not developed a plan for retraining, Justice Corbett decided that Ms. Moon should be imputed a slightly more than nominal annual income.  She was consistently in the workforce prior to marriage, and continued to possess the skill-set necessary to secure meaningful employment.

The Court rejected Ms. Moon’s argument, which was that the role of homemaker for three school-aged children precludes meaningful efforts at employment and/or retraining.  Justice Corbett simply responded by saying daycare could be used to solve this problem.  The Court also rejected the argument that because in 2000 the Moons agreed Ms. Moon was to stay home that she could continue to do so.  Justice Corbett pointed out that there is no evidence suggesting this agreement was to extend beyond the years during which the children were at a young age and required more attention.

At the end of the day, this case is representative of the fact that even absent an explicit Order indicating the recipient of support must look for employment; the recipient ex-spouse must be cognizant of the fact that he or she is statutorily responsible to make efforts at becoming self-sufficient.

I am not sure I entirely agree with this decision.  While I can agree with the court’s analysis on what constitutes a “material change”, I do not necessarily agree a material change occurred in this matter.  Ms. Moon had the same education in 2007 when the parties entered into Minutes of Settlement than she had in 2011 when the spousal support quantum was being reviewed.  Ms. Moon was a stay-at-home mother in 2007 and had been once since 2000, and that had not changed.  So essentially, the circumstances between the parties had not changed since 2007.  Ms. Moon’s mistake was in relying on the fact that the original Minutes of Settlement did not reference her having to return to work, and instead she should have focused on arguing that there was a lack of change in the circumstances of the parties.  The only change was in the circumstances of the children, in that they grew older and presumably needed less of their mother’s attention, but wasn’t that to be expected?  Wasn’t Mr. Moon compensating her for all the years she stayed at home to raise the children and was not using that vast education she had obtained?  I guess we need to change the song from “Mamas Don’t Let Your Babies Grow up to be Cowboys” to “Mamas Don’t Let Your Babies Grow up at All”.