COURT FILE NO.: FC-07-321 DATE: 20220420 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Kathy Edisbury Applicant – and – John Edisbury Respondent
Counsel: Marcia Zuly, for the Applicant Martin Tweyman, for the Respondent
HEARD: April 11, 2022 RELEASED: April 20, 2022
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS MOTION
[1] The husband used to work as a welder for the Ontario Power Generation (“OPG”) for many years. He retired on June 30, 2016. Following his retirement, the husband returned to work for OPG on a contract basis. He obtained two successive contracts between 2017 and the end of 2021, with a 6-month hiatus in between during the summer of 2020. He earned significant income from those contracts in addition to his pension income. In 2021, his total income from all sources was $262,977.14 but without that extra employment income, the husband’s pension yields just under $73,000.00 per year. The husband is now also receiving employment insurance in 2022.
[2] The wife is a retired registered practical nurse. She retired around the same time as the husband in 2016. But she too has continued to work following her retirement. She works part-time at Lakeridge Health in the mental health unit. Her 2021 income, inclusive of CPP, her pension and her income from part-time employment, was just under $31,000.00 per annum.
[3] The parties were married and separated previously. After their first separation, they entered into a Separation Agreement dated January 30, 2006. They then divorced in August of 2007. The parties resumed cohabitation not too long after their divorce. They remarried on November 19, 2010. They separated for a second time on December 25, 2019. In total they cohabited for 27 years of a 30-year time span.
[4] The wife launched this proceeding on August 12, 2020. Following their first case conference in October 2020, the wife brought a motion for temporary spousal support, for an order that the husband continue to maintain the wife as a beneficiary under his health benefits and for an order for the sale of the matrimonial home. [1] The latter two issues resolved at the outset of the motion on February 8, 2021, but spousal support was argued.
[5] On April 1, 2021, Justice Scott ordered the husband to pay temporary spousal support to the wife in the amount of $6,052.00 per month commencing March 1, 2022. Scott J. cited the wife’s strong claim for compensatory support, but ordered support at the low range of the Spousal Support Advisory Guidelines (the “SSAGs”) for reasons that I will explain later. Scott J. also endorsed that the wife’s claim for retroactivity was preserved.
[6] The husband did not then pay all of the support as he was ordered to. The wife recouped some of the support to which she was entitled out of the sale proceeds of the matrimonial home when it sold. In addition to any amounts that may be due to her on account of her retroactive claim at trial, the husband once again owes a small amount of arrears of spousal support arising out of the April 1, 2021 Order. He only paid part of the support that was due for April, 2022. He argues that if he is not granted relief from this Court at this time, the size of the arrears will only increase.
[7] After the motion before Scott J., the parties proceeded to a settlement conference in August 2021. The next events thereafter should have been a Trial Management Conference and a trial, but no Trial Management Conference was ever booked. I was not told whether the parties completed questioning either, leave for which had been granted at that first case conference back in October 2020.
[8] Instead, the husband now brings this motion to vary Scott J.’s temporary spousal support Order on an interim basis prior to trial. The husband would have this Court lower the amount of temporary spousal support to $735.00 per month, backdated to January 1, 2022. The husband used DivorceMate to arrive at this $735.00 figure. $735.00 is the mid-range of the SSAGs based on his pension income of $72,977.00, and the wife’s 2021 income of $30,978.00. [2]
[9] Because the husband already paid support of $6,052.00 per month for the months of January to March, 2022, and a portion of that amount for April, 2022, and because he says spousal support should be reduced to $735.00 per month back to January 1, 2022, he wants a credit. His counsel proposed during argument that his “overpayments” should be applied prospectively to defray the new, lower amount of temporary support that he wants the Court to order. In effect, that would mean the wife would not receive any more support for over two years, unless of course this case goes to trial and the trial judge orders something else before the proposed credit is exhausted.
[10] Alternatively, the husband seeks an order dividing the income streams from their pensions, which are already in pay.
[11] The husband says there has been a material change in circumstances since Scott J. made the April 1, 2021 Order. He says his second OPG contract ended in December, 2021 and there will be no more contracts available for him. If he is mistaken, his plan would be to advise the wife if he gets a new contract and then I suppose temporary support may then be visited on an interim basis, for a third time. At the same time the husband has purchased an interest in a farm and says it is his intention to work as a soybean farmer. So quite apart from the alleged unavailability of more contract work, the husband no longer intends to work at OPG anyway.
[12] The wife seeks an order dismissing the husband’s motion in its entirety. She says the husband has failed to prove that no further contracts will be offered to him. She says that he is not credible. She also argues that she will be entitled to retroactive support when this matter is determined on a final basis, and so even if he ends up overpaying as a result of the April 1, 2021 Order, in the end result money will still be owing to her.
[13] The issues on the motion before Scott J., and now on this motion before me, are further complicated by the fact of the parties’ previous marriage, the Separation Agreement, the divorce and their remarriage. The husband claimed not to be raising or re-arguing the impact of these events in light of what Scott J. decided on the previous support motion, but in reality he very much raised them and tried to reargue them.
[14] For the reasons that follow, the husband’s motion to vary Scott J.’s Order of April 1, 2021 is dismissed. The test to vary a temporary spousal support order on an interim basis is not met. The parties ought to have proceeded to the Trial Management Conference and a trial. These events could have already concluded by now and even if that were not so, then the parties certainly could have been ready to proceed on the upcoming sittings in May, 2022. But they chose not to take further steps after the Settlement Conference in August, 2021 to get ready. Those choices in the litigation are contributing to the “urgency” in this case and that should not be condoned. In this decision, I will set out in more detail what is required in the nature of case management to get this case to trial, now expected to occur in the fall.
PART II: BACKGROUND
A. Additional Information About the Parties and their Previous Marriage
[15] The wife is currently 63 years old; the husband is 59. They were 57 and 53 respectively at the time of their retirements in 2016.
[16] The parties were married for the first time in June of 1989. The wife already had a child from a previous marriage. The parties then had two more children in their own marriage.
[17] The parties’ first separation occurred in May of 2005. Their Separation Agreement dated January 30, 2006 provided that they would have joint custody of their two children, that the children would reside with the wife, that the husband would pay child and spousal support based on incomes determined at the time, and that the wife would receive the entire net proceeds of sale of their former matrimonial home, less $5,000.00. Although the calculation of it is not clear on the face of the Separation Agreement, it is my impression that the equalization payment owing to the wife at the time was subsumed within the division of the sale proceeds of their former matrimonial home.
[18] The Separation Agreement contained various property releases. It contained a provision that its terms would continue following a divorce. It also contained a resumption of cohabitation clause. If the parties cohabited in the future for more than 90 days with reconciliation as the primary purpose, the provisions in the agreement would become void, except that nothing in the clause would invalidate any payment, conveyance or act made or done pursuant to the provisions of the agreement.
B. The Husband’s Post-Retirement Employment, Income and Other Circumstances
[19] The parties’ 2016 retirements occurred during their second marriage, about three years prior to their ultimate separation on December 25, 2019. Soon after the husband’s retirement, but still pre-separation, the husband went back to work for OPG on a temporary contract as a “Contract Coordinator” for renovations to one of the nuclear reactors. This first contract commenced in 2017.
[20] The husband says that there is a company policy within OPG that contract workers cannot work any longer than 3 years at a time. He says he was forced to be laid off for 6 months in the summer of 2020 as a result. However, what he said in his first financial statement sworn September 24, 2020, provides a different and possibly competing explanation for the lay-off.
[21] In any event, the husband then secured his second contract with OPG on August 6, 2020 for work to run from November 23, 2020 to December 31, 2021. He explains that his contract duties under the second contract were to supervise the contractors who were doing a renovation of a nuclear reactor. He described this job as “not continuous work” and denies any suggestion that he “quit” working at OPG. He relies on his Record of Employment, which states that his second contract has ended due to a “shortage of work/end of contract”. He says that since December 31, 2021, his only source of income is his pension income and he expects that to be so going forward.
[22] If all the husband earns going forward is his pension income and some time-limited employment insurance then that would be a significant decrease from what he actually earned over the past several years. According to a chart in his affidavit sworn March 24, 2022, the husband’s income fluctuated from a low of $140,427.31 in 2017 to a high of $262,977.14 in 2021.
[23] The husband claims the wife received the majority of the sale proceeds of the matrimonial home following its recent sale. However, he actually received north of $300,000.00, which was not much less than the wife received, especially when the fact that he did not pay all of the spousal support that Scott J. ordered is taken into account. Post-separation the husband purchased a 100-acre farm with his children. How he financed it is unclear. Regardless, his plan is to return to work as a farmer. Farming is something that he did from childhood until a certain point in the late 1990s.
[24] The husband says this new business venture will be seasonal, and he expects it to run at a deficit for a few years. I take it from the husband’s evidence that he does not anticipate having any additional income from farming any time soon, for the purposes of spousal support.
[25] The husband says he has a number of physical health issues from years of hard work at OPG. He has recently been diagnosed with diabetes and takes medication for that. He relies on this too as a justification to stop working for OPG, although I understand the principal basis of his motion to be the lack of additional contracts for him there.
C. The Wife’s Post-Retirement Income and Other Circumstances
[26] The wife’s income, exclusive of spousal support, ranged between a high of $94,921.33 in 2017 to a low of $30,977.70 in 2021. In 2017 and 2018 (both pre-separation years) when the incomes were at their highest (ie. $94,921.33 and $86,839.67), portions of the wife’s reported income were as a result of the husband’s election to split some of his pension income with her for tax purposes. In 2019, the wife withdrew $48,823.92 from an RRSP to make ends meet. That contributed to her elevated Line 150 income that year.
[27] In her April 1, 2021 decision, Scott J. determined that the wife’s adjusted, average income for the last three years (prior to 2021) was actually just about $28,500.00, exclusive of her pension and CPP income. With her pension and CPP taken into account, Scott J. found that the wife had an average cash flow of $40,989.00 coming in.
[28] The wife’s total income from all sources excluding spousal support in 2021 is now less than what Scott J. determined. Although he made arguments about the wife’s underemployment on this motion (just as he did before Scott J.), the husband still used the wife’s 2021 income to calculate the new amount of support that he says this Court should order at this time, not the approach that Scott J. selected.
[29] The wife also used some of her sale proceeds from the second matrimonial home for housing. She purchased a condominium.
D. Other Orders Made During the Prior Legal Proceedings
[30] At the case conference held October 30, 2020, Nicholson J. granted the husband leave to amend his pleadings, he granted leave for questioning and he made a disclosure order.
[31] In his Endorsement from the Settlement Conference held on August 11, 2021 after the spousal support motion, Nicholson J. listed the issues that he conferenced with the parties. He noted the husband’s “intention to fully retire as of December, 2021” without expressly mentioning the reason for the retirement. In the end, he wrote that no further conference would be scheduled, but that if the parties were unable to reach a resolution, either could request a Trial Management Conference date with a view to proceeding to trial. He ordered the parties to complete a Comparative Net Family Property Statement and a joint TSEF, and to file Offers to Settle for any Trial Management Conference to be booked. He also gave them leave to file a 14B Motion to his attention, to address an unresolved disclosure issue. The nature of the disclosure issue is not specified in the Endorsement, but a number of deficiencies respecting disclosure were then raised by both sides during argument of this motion.
PART III: ISSUES AND ANALYSIS
A. Applicable Legal Principles Concerning the Variation of a Temporary Spousal Support Order Prior to Trial
[32] Scott J. temporary spousal support order of April 1, 2021 was made under the Divorce Act. Section 15.2 provides the authority for the Court to make an temporary spousal support order. Section 17 addresses variations. The language in section 17 is not clear whether it only applies to final orders. There is divided authority about whether it also empowers the Court to vary a temporary spousal support order. Nevertheless, Courts have found the authority to do so in the case law.
[33] Courts have traditionally discouraged the variation of interim orders unless the circumstances are urgent. The preferable approach is to get the matter on to trial. However, that is not to say that it can never be done. The test to vary a temporary spousal support order involves the consideration of:
(a) whether there is a strong prima facie case that there has been a material change in circumstances since the time of the order in question; (b) whether there is a clear case of hardship; (c) whether there is a situation of urgency; and (d) whether the moving party comes to court with “clean hands”.
See Berta v. Berta, 2019 ONSC 505 ¶ 28-40; see also Noor v. Youssef, 2021 ONSC 2717 ¶ 31-35.
[34] Even though this is a motion to vary a temporary support order already made, it is still a temporary spousal support motion. There are some additional principles applicable to initial motions for temporary spousal support which apply here too. That is even more so in a case like this one before me, where the first motions judge already identified the need for a trial on a number of issues when making the first temporary support order, and the parties could have, but chose not to, take steps to move the matter forward to trial.
[35] At ¶ 14 of Politis v. Politis, 2015 ONSC 5997, Harvison Young J. (as she then was) summarized certain principles applicable on an interim motion for spousal support. She wrote:
(a) On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance; (b) An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it; (c) On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best; (d) The courts should not unduly emphasize any one of the statutory considerations above others; (e) On interim applications the need to achieve economic self-sufficiency is often of less significance; (f) Interim support should be ordered within the range suggested by the SSAGs unless exceptional circumstances indicate otherwise; (g) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and (h) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support. [3]
B. Analysis Respecting the Termination of the Husband’s Post-Retirement Employment Income
[36] Scott J. clearly based the temporary support order on the premise that the husband was earning additional income above and beyond his pension. She specifically determined that the husband had $234,000.00 for the purpose of temporary spousal support. I accept that the end of the husband’s contract income might be a material change in circumstances if in fact this is a permanent new development and no further contracts or other work are reasonably available to him.
[37] However, the wife strongly believes that the husband intentionally chose not to take on a further contract at OPG. The wife says that it is her understanding that contracts are “readily available” and that he has simply chosen not to apply.
C. The Impact of the Husband’s Failure to Provide Relevant Disclosure for this Motion
[38] In his reply affidavit sworn April 7, 2022, the husband says that OPG changed their policies, and are now offering the position he had previously to younger and current workers in the company, instead of hiring back retirees. In my view, if this is his position then it was incumbent upon the husband to take steps to get this evidence before the Court. It was also incumbent upon him to have taken some steps to do so in a more pressing way than he did. He waited until about a month and a half before this motion to even ask for documentation, and now complains that he was unable to get documentation and therefore that the evidence does not exist.
[39] More particularly, although the parties were last in Court in August of 2021 and the circumstances giving rise to this motion were apparently already known to the husband at that point, he waited until February 28, 2022 to send an email to someone named Sheila Dyie who I gather works in human resources at OPG. The salutation to his email is addressed “Hello Sheila/HR”.
[40] To Ms. Dyie, he wrote, “…since OPG’s new policy to limit, to a very small number, the retired employees that are re-employed on a contract basis, my contract was not renewed and I was told there was no chance of future employment”. He went on to ask her for a “letter for legal purposes to show that [he does not] work at OPG anymore and that there is no new contracts available for [himself].” The source of the husband’s statement in this email as to what OPG’s “new policy” is, and as to what he was told, is entirely from him. I note that his own email does not actually say that no contracts are available at all, just that they are limited in number. He does not even identify who told him that there was “no chance of future employment”.
[41] The husband forwarded this email that he had sent to Ms. Dyie to his lawyers on March 12, 2022. That was about one month before this motion. The husband included his email to counsel in his motion material. To his lawyers, the husband said he was currently working “two different channels to try and obtain a letter stating this”.
[42] Meanwhile, on March 7, 2022, counsel for the wife sent a letter to counsel for the husband, provided some financial disclosure from the wife and asked for certain disclosure from the husband. In particular, she requested a copy of the husband’s current resume and all of the job applications that he has made since he stopped working at OPG.
[43] In the end, the Court was not provided with any company policy nor anything else from OPG’s human resources department. I do not even really know who Ms. Dyie is. I assume that she is someone who works in human resources at OPG since the husband’s email is addressed to “Sheila/HR”, but the husband’s affidavit material otherwise fails to explain this too. Nor did the husband provide any further details about the other avenues he told his counsel he was pursuing. Nor did the husband provide the resume nor any job applications requested by counsel. And as I will explain later below, the husband was already ordered to produce a resume and applications by Nicholson J. back in October of 2020, albeit in the context of an earlier statement from him providing a different reason as to why the first contract came to an end.
[44] The husband’s defence to these allegations of non-disclosure is contained in his reply affidavit sworn April 7, 2022. He says that it is “not a corporate obligation to provide a letter of “non-employment” and therefore [he] has no other way to confirm that the work is not there other than to rely on the Record of Employment which states “shortage of work””.
[45] I disagree with the husband, that there was no other way to get the information. In part, this underscores why this motion was not the preferable procedure for the husband to embark upon to address his alleged changed circumstances.
[46] First, I do not know whether the husband, as a former employee or a temporary contract employee, has access to written company policies. I assume but do not know for certain that such a policy would be in writing.
[47] Second, assuming that policies exist in writing, the husband could have pursued a motion for production of the relevant one, if he did not otherwise have access to it and someone would not give it to him. For that to have occurred, he would have first had to pursued getting it earlier.
[48] Third, the husband also could have summonsed a witness from OPG to testify at a trial, had the parties booked the Trial management Conference and then embarked on their trial preparation.
[49] And as it pertains to husband’s statement that he had no choice but to rely on the Record of Employment, there is an issue with the husband’s credibility on this point. The credibility issues arises out of what he told the Court and the wife, and what he didn’t tell the Court and the wife, previously about his first contract. I address this below.
D. The Material Change Arguments Based on the Wife’s Health Conditions and Her Failure to Do More to Attain Self-Sufficiency
[50] While the husband’s motion was principally framed as a request to vary temporary support based on the end of his contract and the unavailability of more work at OPG, the grounds of the husband’s motion were not that narrow.
[51] When the parties appeared before Scott J. last year, the wife argued that her ability to work more and to earn additional post-retirement income was hindered by the Covid-19 pandemic. She expressed some anxiety about working additional hours in a health care setting, and pointed to her own health, which includes a diabetes diagnosis and a back injury, as the reasons for that. She expressed a worry about the risks to her from contracting Covid-19.
[52] Although Scott J. already addressed these arguments in the wife’s favour pending trial, the husband is once again arguing that the wife’s health is not the barrier to her earning more that the wife says it is.
[53] The husband says that the wife does not work in an emergency department or a Covid-19 emergency zone within a hospital. Rather, she works in the hospital’s mental health unit, which “as far as we know, has not had any Covid cases since the beginning of the pandemic”. He says that the wife could work evening and weekend shifts, and earn $65,240.00. He also says she could get other work outside the hospital. And he points out, as he seems to have argued before Scott J. last year, that the wife has failed to produce medical evidence.
[54] I accept that this argument is relevant to the material change arguments that the husband wishes to advance, and to the question of hardship. However, at ¶ 36-37 of the April 1, 2021 decision, Scott J. began by noting that there was no medical evidence before her to assess the reasonableness of the wife’s anxiety regarding working more. Nevertheless, she also wrote that the wife last worked full time prior to the separation. Scott J. observed that it was undisputed that the wife is an “insulin-dependent diabetic”, that she suffered a back injury in 2019 and that she was unable to work for a number of weeks.
[55] At ¶ 38, Scott J. concluded:
Given the limitations of the ability of a motions judge to fully appreciate the entirety of a party’s situation, especially in the extraordinary times of the pandemic it would be premature to determine that the applicant’s reluctance to return to employment after a six-year hiatus or even to accept a greater number of shifts in a hospital during a pandemic, meets the threshold of intentional underemployment on a temporary motion for spousal support – her ultimate obligation to achieving self-sufficiency must be left to the trial judge. I decline to impute income to the applicant on this basis. [my emphasis added].
[56] Under the circumstances and given these findings, there was no basis for the husband to re-argue the wife’s health on this motion.
E. The Husband’s Arguments About His Own Health
[57] The husband has included in the mix a new argument about his own health. He says that he is now 59 years old and is “no longer physically able to work long days in physically intensive positions as [he] already damaged [his] body from years of working as a welder at OPG.” Despite his criticism of the wife for still not having provided a medical report, there is no medical documentation from the husband about his own health either.
[58] In response to this, the wife says that over the years, the husband told her that his contract position was simple, and did not require any physical labour. She points out the inconsistency in his statements to the Court, since he is complaining about physically demanding work at OPG and yet his plan is to work as a farmer.
[59] In his reply affidavit sworn April 7, 2022, the husband disagrees, and says that his last contract was physically demanding. Because of that and his previous work as a welder, he says he has back pain, foot problems, and “other wear, tear and strain due to years of hard work on [his] aging body”. The husband too has now been diagnosed with diabetes and takes medication. He also attends with a chiropractor and podiatrist.
[60] The husband says that some kinds of farming can be hard on one’s body, but he denies that soybean farming qualifies. He says he will not be doing physically strenuous work as a soybean farmer. He says will mostly be driving a tractor and operating GPS equipment.
[61] Scott J. resolved the arguments about the wife’s health on a temporary basis by looking to the parties’ past practices and then the amount of time that the wife either worked only part-time or not at all after the separation. This new issue about the husband’s health arises out of the same history about the parties’ practices during the relationship and since separation, and the manner in which it should ultimately be resolved is the same. Simply put, the husband was the primary breadwinner during the marriage and he continued to work significantly post-separation. Even if her comments were made about the wife’s health, Scott J. indicated that a trial was needed to resolve them. That applies equally to the husband’s health now that he has put it in issue. But that is not how the husband chose to proceed. Having chosen not to proceed to the trial and instead to pursue a request to vary spousal support on motion, I find that it was at least incumbent on the husband to put some actual medical evidence before the Court.
[62] In any case, the husband’s principal position that he cannot return to OPG is not based on health grounds; it is based on the unavailability of additional contracts. He is certainly free to pursue health-based arguments at trial in addition if he wishes. But at this point the argument was little more than supplementary to the main argument, and he did not provide the evidence needed to prove it.
F. Hardship
[63] I am also prepared to accept that a decrease to the husband’s income of the magnitude claimed in this case might create hardship.
[64] However, the hardship analysis is connected to the arguments about material change and to the other outstanding issues for trial more generally. Whether there will be hardship is not an isolated question. It depends not only on whether more contract work is in fact available, but also if it is, then whether it is reasonable for the husband to switch gears and try working as a soybeam farmer at this point. If the trial judge finds, as Scott J. found for the purposes of temporary spousal support, that support should be calculated based on a 27-year relationship as opposed to an 11 or 12 year one, then there is a completely different question about whether it is appropriate for the husband to switch fields, and thereby ask for a significant reduction of support after a long marriage caused by a voluntary reduction of income (assuming that more contract or other work is found to be available to the husband).
[65] And finally, hardship must be assessed not only from the husband’s perspective, but also from the wife’s perspective too. In that context, Scott J. already made temporary findings of fact that speak to the question of hardship from the wife’s perspective. Beginning at ¶ 55 of Scott J.’s April 1, 2021 decision, she accepted that the husband was always the major wage earner in the family. At ¶ 58, Scott J. found that the wife’s career earnings were diminished in the relationship and that her role was “more home and child centered”. She also opined these facts would ground a considerable compensatory claim and “could support consideration of the high range of the SSAG.”
[66] A significant reduction to temporary spousal support would clearly impact the wife’s ability to meet her needs prior to trial. Moreover, the wife has a retroactive support claim back to the date of the parties’ second separation on December 25, 2019. Until the temporary order was put in place, the wife says that the husband only paid her three amounts of $2,500.00 and one further amount of $1,000.00. Now the husband does say in response that he intends to claim credits for a number of post-separation adjustments. The wife also withdrew a spousal RRSP that he says has caused him to incur an income tax bill.
[67] But even if the husband’s arguments are proven at trial with evidence, at ¶ 58-62, Scott J. already took said factors into account in setting temporary support. After commenting about the strong compensatory nature of the wife’s support claim that might otherwise drive the amount of support towards the high end of the SSAG ranges, she only ordered temporary support at the low range. She did so in part to recognize that the husband said he paid some of these post-separation amounts, and to recognize the fact that the wife may have already shared in the husband’s pension to some degree as a result of the equalization payment in the Separation Agreement. Again, she made these comments subject to a further determination at trial.
[68] A trial judge may take the same approach as Scott J. A trial judge may also very well find that the husband’s claim for post-separation adjustments has already been mitigated, in full or in part, through Scott J.’s order for an amount at the low range of the SSAGs. Or, if the claim for post-separation adjustments is proven and then ordered, the trial judge might find it to be appropriate to go back and adjust support upwards from the amount in the temporary order.
[69] In the result, my assessment of the hardship argument is either neutral, or it favours the wife. While the husband might have hardship depending on how things unfold, the wife would unquestionably have hardship if temporary support were reduced at this time.
G. Whether the Husband Comes Before the Court With Clean Hands
[70] As alluded to earlier, there are credibility issues on this motion. In certain respects, the husband’s own material raises credibility issues. The wife has raised some in argument. And the credibility issues have not yet been tested by way of cross-examination, either at a trial or, to my understanding, at a questioning that the parties could have pursued prior to this motion.
[71] First, although the husband characterized his most recent contract with OPG as “not continuous work”, in the second contract itself, the husband had to represent and warrant that there were no constraints or restrictions preventing him from devoting his “full time and attention to the affairs of the Company”. His rate of pay in the contract was also based on a 40-hour work week.
[72] Second, again, the husband would have this Court rely on the Record of Employment as the best and only evidence that he cannot obtain another contract. However, as the wife’s counsel pointed out in argument, the husband attached to his first financial statement sworn September 24, 2020, his previous Record of Employment after the end of the first contract. It too stated the reason for the Record of Employment as being a “shortage of work/end of contract or season”. But then he obtained the second contract.
[73] For that matter, the husband argued on this motion that contracts could not be obtained for more than three years and therefore he had to take a six month leave of absence in 2020. Yet he still obtained the second, year-long contract after that first one, which had already lasted for about three years.
[74] Moreover, on page 2 of that first financial statement, the husband actually deposed that his position per the first contract was no longer available to him and that he was laid off due to the Covid-19 pandemic, not because of an OPG policy about three-year limits. And when the husband deposed that first financial statement, he already knew that he had the new contract that would start soon, as of November 23, 2020 (through to December 31, 2021), but he did not disclose this.
[75] The husband signed the second contract on August 26, 2020, one month before he swore his first financial statement on September 24, 2020 alleging a Covid-19 layoff. At the case conference held on October 30, 2020, Nicholson J. made a disclosure order. His order incorporated the lists of disclosure sought by the parties in their case conference briefs. In the wife’s case, she sought (and Nicholson J. ordered) an “updated resume along with evidence of the husband’s job search efforts and disclosure from [OPG]”. Quite apart from the fact that the husband had already signed the second contract before he deposed his first financial statement, it would make no sense whatsoever that the wife would have sought such a term in a disclosure order if she already knew that the husband obtained the second contract.
[76] In oral argument, the wife’s counsel advised that the wife only found out about the second contract after the case conference. The new contract was only produced after counsel then made a further disclosure request for it in writing on December 17, 2020.
[77] Third, again, the wife’s motion before Scott J. included her request for an order compelling the sale of the matrimonial home from the second marriage. As set out earlier, the husband did not then pay the spousal support as he was ordered by Scott J. to pay on April 1, 2021. The husband says that the parties subsequently agreed the wife would take the majority of the sale proceeds to make her whole respecting unpaid support. That is not true either; while there were some adjustments mostly due to his non-payment of support, as I have said the husband still obtained north of $300,000.00 from the sale proceeds.
[78] In his reply affidavit of April 7, 2022, the husband explains his non-payment of support because he was waiting for the Family Responsibility Office to send him documents. That is not an excuse; Scott J.’s Order took both immediate and retroactive effect. Direct payments could have been made to the wife pending the involvement of the FRO in exchange for an acknowledgement of receipt from the wife.
[79] I repeat that the husband has once again fallen into arrears. He has only paid a portion of April’s support. Although support was due on April 1, 2022, the husband’s counsel argued that the husband is not really in arrears yet because the month of April was not over. This is not accurate; April’s support was due on the first of the month. And it does not matter to the analysis that the amount of arrears now owing is relatively smaller than those which he owed on account of his past defaults. In saying this, I also look at the history of his making support payments late.
[80] Finally, the wife says that the husband has not been truthful about his financial circumstances in his updated financial statement sworn March 24, 2022 either. She says that the husband actually received $341,536.95 from the proceeds of sale of the matrimonial home after the adjustments. The wife’s counsel points out that his updated financial statement sworn March 24, 2022 shows that he has no equity in the soybean farm that he purchased and there is no other asset listed to show where the sale proceeds went. The wife’s counsel further argued that the value of the property would have increased beyond what the husband said its value is on his financial statement sworn March 24, 2022, too. And the wife says that the parties’ daughter told her that she is going to purchase the husband’s interest in the property back from him for $400,000.00. According to the wife, this should be $150,000.00 more than he paid for it.
[81] The husband’s financial statement sworn March 24, 2022 states that the husband has a 1/3 interest in the post-separation farm that he purchased. He values his interest in it at $550,000.00. But he lists a mortgage balance of $555,000.00, thus showing negative equity. In argument, the husband’s counsel explained that the husband put the value of his 1/3 interest in the property on the financial statement, but he then put the full value of the mortgage, since the husband is jointly and severally liable on the mortgage. Thus, the husband does have equity in the property. The husband denies that the daughter is purchasing his interest.
[82] Neither the financial statement nor any affidavit actually describe what the husband’s counsel explained. If counsel’s explanation is correct, then the financial statement shows an inaccurate financial picture. At a minimum the financial statement is confusing. Even with that point of clarification, there may still be other resources available to him, not otherwise be listed on his financial statement sworn March 24, 2022. That remains to be determined. [4]
H. Delay
[83] I asked the parties why they did not proceed to the Trial Management Conference, which Nicholson J. ordered was to be the next step. The husband’s reason is that he knew that the contract would be coming to an end and he had to book a motion date well in advance to get timely relief, otherwise the hearing of this motion would be delayed until well after the contract ended. The wife’s argument was that she proposed mediation/arbitrator but the husband has not agreed to proceed that way yet. Both sides separately said they hoped the issues might settle. But of course the issues did not settle.
[84] In regards to the wife’s argument, there is nothing untoward in suggesting alternative forms of dispute resolution. However at this point, the parties have already gone through the pre-trial conferencing process and the next step was to prepare for trial. It is not more efficient to start over in a new process like mediation/arbitration, which would require a hearing akin to a trial before an arbitrator in the absence of a settlement. And mediation/arbitration is a process that must of course be agreed to. The husband’s primary explanation presumed that a motion to vary temporary support was an appropriate procedure for this case in the first case.
[85] Meanwhile, the parties could have booked the Trial Management Conference and worked towards a trial on the February 2022 sittings. Even if they were not reached in February, they would have been put over to the May, 2022 sittings. As it turned out, this support variation motion was not even argued until April 11, 2022, some four months after the contract’s end date, and just a few short weeks before the May sittings.
[86] It appears that they did not even complete the questioning. Had they, perhaps some of evidence needed to resolve the factual and credibility disputes might have emerged.
[87] The parties made choices in this litigation. Those choices should not create or add to the circumstances upon which this case is then said to be “urgent”, particularly in light of the principles in Politis v. Politis, some of which Scott J. already referred the parties to in her decision. Scott J. already determined temporary support as best she could, based on the record before her, but subject to the trial. In so doing, she identified several issues that required a trial. It is not appropriate for there to be a second round of motions based on an alleged change to one of the several, interrelated matters in issue in this case.
I. The Import of the Length of the Relationship
[88] I conclude with the final, perhaps more complicated issue in this case, which also illustrates the very point that I have just made about the need for a trial. At the motion before Scott J., the husband argued that support should only be based on the length of the relationship of the second marriage. Over a number of paragraphs in her ruling, Scott J. determined that she would use the entire 27 period of the parties’ relationship to calculate temporary support. At ¶ 53-54, Scott J. wrote the following:
[53] At this point the respondent has not received a pension valuation for any of the alternative scenarios. [5] Therefore, it would be an entirely artificial exercise to attempt to factor what portion of the respondent’s pension income should be included in the calculation for spousal support – an arbitrary figure, for example, half or perhaps, only the estimated percentage accumulated during the parties’ reconciliation and subsequent remarriage. Should the entire pension flow be eliminated from income in order to prevent double dipping as some pension value (once the valuation is received) may be included in the ultimate net equalization – the choice at this point would be purely speculative.
[54] As these factors are beyond the purview and control of this motions’ judge, this issue too is best left to the trial judge. Once this analysis can be completed, the quantum of the order of spousal support can be adjusted upon it being made final. On this motion, the goal (as set out in paragraph 29 above) is to achieve an amount of interim support that acts as a “holding order” to provide income for the dependent spouse to maintain her customary lifestyle pending trial. [my emphasis added].
[89] During argument, the husband’s counsel inaccurately claimed not to be raising this length of relationship issue and said his motion could proceed with that issue being left for trial. Yet as I said earlier, he very much was raising and re-arguing it. He did so in at least three ways.
[90] First, he did so in the nature of asking for findings of fact about it. In the husband’s reply affidavit sworn April 7, 2022, the husband has reproduced numerous paragraphs of the Separation Agreement that he says speak to the finality of the agreement. He also said that the length of the relationship is a factor in spousal support and it makes a “drastic difference” in the SSAG calculations if the calculation is based on a 27 year relationship or an 11 year relationship.
[91] Second, he did so in preparing support calculations. The husband’s DivorceMate calculation actually uses a 12-year relationship. By inserting that length of the relationship, only the husband’s pension income, and the wife’s total 2021 income into DivorceMate, the husband came up with his proposal that the Court order support at the mid-range of the SSAGs, of $735.00 per month. [6]
[92] In response to questions from the Court about whether the husband really was rearguing the length of relationship issue, and contrary to what the husband said in his reply affidavit, the husband’s counsel said that given the low amounts of support now in issue, changing the length of the relationship to 27 years on DivorceMate does not make a big different. But using the exact same data that the husband used to prepare his DivorceMate calculation and changing just the length of the relationship, the calculation actually increases the quantum of support by more than double.
[93] Third, when this matter is dealt with on a final basis, the Court will have to address the wife’s claim for an unequal division of net family property, which she claimed in her Application dated August 12, 2020. In that pleading, the wife says that she received “an equalization payment of $105,000.00” and used it to purchase a new home. [7] But then the reconciliation occurred. The wife pleads that she paid $45,000.00 to repay a joint debt and another $35,000.00 to pay off the husband’s bankruptcy settlement and legal fees. She also took the remaining equity from that home she bought post-separation and purchased a home in the parties’ joint names in the reconciled relationship. In short, she pleads that the money she received from her settlement was used to the benefit of the parties jointly as a family.
[94] In that context, the husband’s alternative claim in his Notice of Motion becomes focal. He asked this Court to order the parties to split their pension income. By claiming this as alternative relief, the husband was not only asking the Court to essentially order final relief, but to do that, the Court would be ordering an at source division using the shorter relationship length. And were the Court to order that, it would pre-decide both the length of the relationship issue (which the husband said he was not raising), and the wife’s unequal division claim.
J. Health Benefits
[95] The husband has not asked to vary his other obligation under Scott J.’s Orders of February 28, 2021 and April 1, 2021, to maintain health coverage for the wife. The language in Scott J.’s consent Order of February 28, 2021 is that the husband must maintain the coverage that is available through his “current employment”. Similar language is repeated in the April 1, 2021 Order, but the word “current” is absent.
[96] I do not know (because neither side addressed it) whether the husband only had benefits through the contract that terminated, or whether he has some other coverage post-retirement as a result of his pre-retirement work as a welder with OPG. [8]
[97] The wife says she has significant monthly prescription costs of between $750.00 and $1,000.00 per month that are covered by the husband’s benefits. I do not know the details about any of the coverage the wife has from her own employment either.
[98] But Scott J. made an Order for coverage, on consent. If the benefits are lost, then that too becomes a support issue. This is yet another reason that all of these issues ought to have proceeded to trial and heard together.
K. Next Steps
[99] At the end of argument of the motion on April 11, 2022, I indicated I was going to reserve and release this decision later. I scheduled a Trial Management Conference to proceed before me on July 8, 2022 @ 9 AM. I directed the parties to file a TSEF in draft and asked the parties to consider what opinion evidence they will require for the trial. Having now considered this matter further, I am issuing additional directions to them so that the July 8, 2022 Trial Management Conference will be even more meaningful and productive. The parties will be required to get ready for trial on the fall sittings in November, 2022.
PART IV: ORDER
[100] I make the following orders:
(a) The husband’s motion is dismissed;
(b) At least 14 days prior to the Trial Management Conference scheduled for July 8, 2022, the parties are to exchange any medical reports or other medical documentation upon which they intend to rely at the trial. Both parties shall then advise the other and the Court in a summary attached to a Confirmation Form whether either is requesting additional health records arising out of the reports. If any such disclosure issues cannot be agreed to, then the parties are to advise the Court as to what process they propose to resolve any health-based disclosure issues, including by way of a possible disclosure motion;
(c) Within 21 days from today’s date, the wife is to set out her position in writing as to the factual and legal basis for her unequal division claim. If it is based on the fact that she received a property settlement in the past that was then shared with the husband as set out in her Application, then the parties must locate or recreate and exchange the equalization and other property calculations that formed the basis of the Separation Agreement and the wife should try to reconstruct the payments she says she made on reconciliation. This reconstruction is to be completed at least 14 days before the Trial Management Conference and the parties should endeavour to create a Statement of Agreed Facts, at least about the details of the property settlement that formed the basis of the Separation Agreement dated January 30, 2006. If possible, the Statement of Agreed Facts might also include the amounts the wife spent from her first property settlement on the resumed relationship, but obviously this would only be if the parties are able to agree and there may be factual disputes here that need to be resolved at the trial;
(d) Within 21 days, both parties are to put in writing their positions as to how each intends to deal with the pension issues at trial, having regards to the arguments already being made or to be made. The parties are then to confer and agree upon what kind of additional actuarial evidence they will require for the trial and agree on a timetable for its exchange. Perhaps they may agree to a joint retainer. They should be contemplating the potential outcomes of the property and support issues at trial, as the potential scenarios will drive the contents of any actuarial calculations that may be. The parties are to be prepared to discuss this with the Court at the Trial Management Conference and they should include their views as to the actuarial evidence needed in a summary attached to their Confirmation Forms;
(e) Nicholson J. already ordered the parties to exchange Comparative Net Family Property Statements for any Trial Management Conference. Depending on the arguments being advanced, particularly the wife’s unequal division claim, the parties are to confer about whether more than one Comparative Net Family Property Statement is required, such as if the wife’s claim turns on calculations using different dates;
(f) To avoid me from being disqualified from hearing the trial, any Offers to Settle this case (except for any Offers to Settle this motion, now concluded) are not to be put before me. If after exchanging the above information the parties think a Settlement Conference would be beneficial, I will ask the trial coordinator if a further Settlement Conference can proceed before a different judge;
(g) Any other disclosure issues that must be addressed for the parties to be ready for the trial shall be raised before me at the Trial Management Conference. I will either deal with the issues, or set a process for them to be dealt with;
(h) A summary of all of the outstanding trial readiness issues and the parties’ proposals to address them shall be included in a summary attached to the parties’ Confirmation Forms in addition to the TSEF in draft and any Comparative Net Family Property Statement(s);
(i) If the parties still intend to complete the questioning, then ideally they shall do so before the Trial Management Conference. If that is not possible, for example because they wish to wait until any disclosure issues are resolved and/or expert reports are obtained, then they should be prepared for the Trial Management Conference to agree upon dates for questioning to proceed at such times thereafter that will not jeopardize the trial in the fall proceeding; and
(j) If either party seeks costs of this motion, I will hear brief submissions on costs at the outset of the Trial Management Conference. Bills of Costs and any Offers to Settle this motion shall be included with the Confirmation Forms. The parties may hyperlink any case law on which they wish to rely in the summaries in their Confirmation Forms.
Justice Alex Finlayson Released: April 20, 2022
[1] Here I refer to the matrimonial home of their second marriage. They had already dealt with an earlier matrimonial home in the Separation Agreement dated January 30, 2006 following their first separation.
[2] In her April 1, 2021 decision, Scott J. employed a different approach to the determination of the parties’ incomes and to the calculation of temporary spousal support. In any event, as the husband chose to use the parties’ most recent incomes and the mid-range of the SSAGs, I note that the husband omitted his employment insurance income that he is now receiving from his calculation. He also said the length of the relationship was 12 years in his DivorceMate calculation, whereas Scott J. already found that the total length of the parties’ cohabitation should be used to calculate temporary spousal support pending trial.
[3] Scott J. also referred to a number of these same principles at ¶ 29 of her April 1, 2021 decision, but by citing Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 instead.
[4] If the wife’s number’s in her affidavit are correct, then the husband paid approximately $250,000.00 for his interest in the farm. As he received $341,536.95 from the sale proceeds of the matrimonial home, he would have had $94,536.95 left over. The husband’s financial statement reveals two RRSPs opened post-separation having balances of a little over $38,000.00. Assuming, without knowing either that the husband purchased these RRSPs with his share of the net sale proceeds of the matrimonial home (because the husband did not explain the details surrounding what he did with the net proceeds of sale of the matrimonial home), there could be at least $50,000.00 unaccounted for. This is quite apart from the submissions that the property increased in value.
[5] That has still not been done.
[6] As the wife’s counsel pointed out, the husband omitted the employment insurance income that he is receiving.
[7] The Separation Agreement talks about the wife receiving the majority of the sale proceeds of the matrimonial home from the first marriage. It is not clear whether the reference in the wife’s Application means the equalization payment was $105,000.00, or the total, adjusted proceeds of sale that she received were $105,000.00.
[8] The only reference to health benefits in the material is in the second employment contract. It states that the husband was eligible to purchase single or family, extended health and/or semi-private benefits coverage (excluding dental coverage).