Cossette v. Cossette, 2015 ONSC 2678
CITATION: Cossette v. Cossette 2015 ONSC 2678
DIVISIONAL COURT FILE NO.: 14-DC-2050
DATE: 2015-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT (OTTAWA)
PATRICK SMITH J., D.L. CORBETT J., and POMERANCE J.
BETWEEN:
CLAIRE COSSETTE Applicant (Respondent in appeal)
– and –
ROBERT COSSETTE Respondent (Appellant in appeal)
Pam MacEarchern, Alice Weatherston, Counsel for the Applicant (Respondent in appeal)
Wade Smith, Counsel for the Respondent (Appellant in appeal)
HEARD: April 21, 2015
POMERANCE J.
[1] Robert Cossette and Claire Cossette were married for 22 years. Following their separation in August 2001, they consented to an order for division of property. They also consented to an order for payment of spousal support. The order of Aitken J., dated February 10, 2006, directed that Mr. Cossette pay spousal support in the amount of $1,000 per month for an indefinite period of time.
[2] In November 2013 Mr. Cossette retired from his employment, causing his income to drop from approximately $104,000 per year to approximately $48,000 per year. He brought a motion to change seeking to terminate his support obligation. His motion was dismissed by Kershman J. on July 24, 2014. He now appeals that decision on two grounds:
(1) That the motions judge erred in failing to find that retirement was a material change in circumstance; and
(2) That the motions judge erred in failing to find that payment of support out of pension income, after the pension had been divided, amounted to "double-recovery."
[3] Mrs. Cossette has launched a cross-appeal against Kershman J.'s order that spousal support terminates when she reaches the age of 64 years.
DID RETIREMENT GIVE RISE TO A MATERIAL CHANGE IN CIRCUMSTANCE?
[4] Mr. Cossette argues that his retirement is a material change in circumstance warranting a termination of spousal support.
[5] Before the motions judge, it was said that Mr. Cossette had to retire for medical reasons relating to his depression. This assertion was rejected by the motions judge who found the evidence led by Mr. Cossette to be incomplete, inaccurate and otherwise of doubtful veracity.
[6] Dealing first with Mr. Cossette's financial documents, the motions judge identified fourteen areas of concern, leading him to find that Mr. Cossette had been less than forthright with the Court. As explained in paragraph 14:
[14] The Court finds that the numbers set out in Mr. Cossette's financial statements do not make sense or reflect his true financial picture. The expenses and subsequent deficits are unrealistic and unsustainable. On that basis, the Court finds that Mr. Cossette has not provided full and proper financial disclosure of his financial affairs.
[7] The medical evidence led by Mr. Cossette was fraught with similar difficulties. It fell far short of establishing that his retirement was based upon medical grounds. The motions judge accepted that Mr. Cossette had suffered from depression to some degree over the years, but rejected the assertion that it had rendered him unable to work. In this regard, the motions judge considered several factors, including the following:
a) The initial motion to change filed by Mr. Cossette's counsel did not mention depression as a factor.
b) While Mr. Cossette made claims of treatment by various doctors in various hospitals, and various suicide attempts, he refused to provide any particulars that would allow these claims to be investigated or substantiated.
c) While Mr. Cossette produced the medical records ordered by Master Macleod – consisting of five years of records from Dr. Lane - he refused to produce any additional records from Dr. Lane or other treating hospitals. His explanation for refusing to produce this material was not credible.
d) Mr. Cossette did not apply for long-term disability benefits, despite his claim that he had been suffering from depression since 1983. Had he done so successfully, he would have been entitled to an annual income of $72,800 rather than his retirement income of $48,000. He offered no explanation for his failure to pursue long-term disability benefits.
e) The records kept by Dr. Lane established that Mr. Cossette had a variety of different stressors in his life, including his move to Alberta, his new relationship, the divorce of his partner's daughter, and financial worries based, in part, on his obligation to pay spousal support.
f) There was no evidence from Mr. Cossette's employer or anyone else to establish that Mr. Cossette could not continue in his former employment, or that his work performance was insufficient.
[8] The motions judge found, as a fact, that Mr. Cossette's retirement was a "self-engineered method to withdraw from the labour force" (para 38). Mr. Cossette retired because he wanted to retire, not because he was forced by his medical condition to do so. As stated in paras. 37, 41 and 42:
[37] The Court finds that Mr. Cossette assumed that just because he was retiring and would have less income, that he could terminate spousal support. This is an erroneous assumption. The Court does not accept the fact that the stresses in relation to his payment of spousal support were enough to stop him from working. He wanted to retire.
[41] While Mr. Cossette may have been stressed and/or depressed that he was paying spousal support, that is an unfortunate reality of life. The Court realizes that his reality is that he retired at 55 and moved across the country, is staying in shape, is mountain climbing, has purchased a new house and is engaged to be married. Given these facts there may be a change of circumstances, but it is not considered enough to be a material change in circumstances warranting the termination of spousal support.
[42] On the evidence, the Court finds that Mr. Cossette has not provided satisfactory evidence of depression that would justify retiring when he did and that would justify terminating his spousal support.
[9] We are not prepared to disturb these factual determinations. They are entitled to substantial deference. They were amply supported by the evidence or, as the case may be, the lack of evidence. Mr. Cossette was unwilling to offer particulars or documentation to support his claim that retirement was a medical necessity. The evidence that he did produce was insufficient to establish that his depression rendered him unable to work. The motions judge was justified in finding that retirement was a voluntary decision based on a variety of factors, including the desire to curb payment of spousal support.
[10] In argument before us, counsel for Mr. Cossette did not press the medical issue. Instead, he acknowledged that Mr. Cossette retired because he wanted to retire. Counsel advanced a different argument before us. He asserted that retirement was a material change in circumstance because Mr. Cossette was contractually eligible to retire. It was said that, where a person has reached eligibility for full retirement, he or she should not be required to continue working in order to satisfy a support obligation.
[11] Counsel relied upon the British Columbia Court of Appeal decision in Powell v. Levesque 2014 BCCA 33, 2014 CarswellBC 186 for the proposition that a payor should not be held to support obligations that force him or her to continue working despite eligibility for full retirement benefits. This case was not placed before the motions judge for his consideration. On the strength of the Powell case, Mr. Cossette argues that, once a payor is eligible to retire, and opts to retire, he is entitled to a corresponding reduction or termination of spousal support on the basis of a material change in circumstance.
[12] We do not need to decide whether the Powell decision should be followed. There may be reason to doubt its applicability, given its apparent inconsistency with Ontario authorities (see e.g. Hooper v. Hooper, 2002 CarswellOnt 1821 (Ont.C.A.)). In any event, Powell is distinguishable on its facts. In Powell, there was no evidence to suggest "that the appellant chose to retire in order to avoid her support obligation or any of her other financial commitments under the Consent Order, all of which she had met" (para. 34). This case is very different. The motions judge specifically found that one of the reasons for Mr. Cossette's retirement was the desire to stop paying spousal support.
[13] Given this, and other factual findings made by the motions judge, we agree with his conclusion that retirement was not a material change. Parties cannot sidestep support obligations by unilaterally deciding to leave the workforce: As stated in Bullock v Bullock at para 13: "A support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations".
[14] This is not to say that voluntary retirement can never constitute a material change in circumstances. Every case must be determined on its own facts, with consideration of all relevant factors, including the language of settlement documents. In this case, the minutes of settlement were silent on the issue of retirement. It would be beneficial for parties to turn their minds to this eventuality when crafting terms of resolution. We adopt the comments in Bullock v. Bullock at para 1:
Does withdrawal from the workforce at age 62 qualify as a "material change of circumstances" justifying variation of spousal support? While every case must be looked at on the basis of the unique circumstances of the parties, as a general proposition, a payor of spousal support should make his or her retirement plans on the basis that support will continue until aggregate retirement savings can be expected to keep both former spouses at reasonable standards of living. Otherwise, our regime of spousal support will tend to leave payee spouses in positions of financial need, often dire need, at a time in their lives when they cannot take meaningful steps to ameliorate their own condition.
[15] We note, as an aside, that the support order in this case inures to Mr. Cossette benefit. At the time of the final order, the spousal support advisory guidelines had only been released in draft form. Had they been in their final form, the range of spousal support would have been from $1,304 to $1,522 to $1,739, rather than the $1,000 that Mr. Cossette is required to pay. This is not to say that the quantum of support should be recalculated at this late stage; it is only to say that Mr. Cossette is paying less than would have been required of him under the current regime.
SUPPORT PAYABLE FROM PENSION INCOME
[16] Pursuant to the order of Gauthier J., dated September 8, 2003, Mr. Cosette's pension was divided pursuant to the Pension Benefits Division Act, S.C. 1992 c. 46, Sch. II, with 50 percent of the pension credit going to Mr. Cossette. It is Mr. Cossette's position that, because the pension was already divided, Mrs. Cossette should not now receive support payments from his pension income. This, it is said, amounts to "double dipping".
[17] The motions judge found that the payment of support from pension income was justified and we agree. This current situation is a product of Mr. Cossette's own making. He chose, through voluntary retirement, to live on pension income rather than his previous employment income. It could be said that the effect of the motion judge's decision was to impute employment income to Mr. Cossette. Theoretically, the support is being paid from the imputed income rather than the pension income. However it is characterized, we agree with the motions judge that Mr. Cossette's retirement should not operate as either a sword or a shield – it should not, in the circumstances of this case, immunize him from ongoing support payments.
THE TERMINATION OF SUPPORT AT AGE 64
[18] Toward the end of his reasons, the motions judge directed that the payment of spousal support shall continue until Mrs. Cossette reaches 64 years of age, at which time it will automatically terminate.
[19] Neither party requested a finite termination date. Both parties consent to it being set aside. Accordingly, we set aside the termination date without prejudice to the parties revisiting it in future litigation.
[20] The appeal is dismissed. Mr. Cossette is ordered to pay costs of Mrs. Cossette, on a partial indemnity basis, in the amount of $7,000, inclusive of HST and disbursements.
Pomerance J.
Patrick Smith J.
D.L. Corbett
Released: April 24, 2015
CITATION: Cossette v. Cossette 2015 ONSC 2678
DIVISIONAL COURT FILE NO.: 14-DC-2050
DATE: 2015-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT (OTTAWA)
Patrick Smith J., D.L. Corbett J., and Pomerance J.
BETWEEN:
CLAIRE COSSETTE
– and –
ROBERT COSSETTE
REASONS FOR JUDGMENT
Patrick Smith J.
D.L. Corbett J.
Pomerance J.
Released: April 24, 2014