Court File and Parties

Court File No.: Elliot Lake, File No. 37-11 Date: 2012-02-27 Ontario Court of Justice

Between: Ina Mary CROCKET BAKER Applicant

— AND —

Robert Joseph HORNUNG Respondent

Before: Justice R. Villeneuve

Heard on: January 30, 2012

Endorsement on a Motion to Change a Final Order, released on: February 27, 2012

VILLENEUVE, J.:

[1] This endorsement pertains to the applicant's motion to change a separation agreement dated May 24, 2010. The motion to change can be found at Tab 1 of the continuing record. The motion seeks an order that the respondent pay spousal support to the applicant in the amount of $500.00 per month effective May 24, 2010, along with an order that the respondent designate the applicant as the beneficiary of his local 506 union pension upon his death.

[2] The Court has reviewed the evidence filed in support of the motion, in support of the respondent's position and heard submissions from each of the parties in court on January 30, 2012.

[3] At issue is a separation agreement drafted by the applicant as a result of a breakdown of a marriage dating back to April 20, 1991 between the parties. The applicant seeks an increase in support from the agreed upon amount in the separation agreement on page 2 of $100.00 per month payable by the respondent to her. The applicant's material and her submissions on the hearing of the motion set out her inability to support herself and her pet on the $100.00 per month support being paid. The applicant has acknowledged that the respondent has been paying support in accordance with the separation agreement since its execution.

[4] The respondent takes the position that he can afford no additional support and resists the applicant's motion in that regard. He indicated to the Court that in accordance with the clause on page 3 of the separation agreement, that he has designated the applicant as the beneficiary of his union pension.

[5] The applicant supports herself on a disability pension of $722.49 per month. In addition, she receives $100.00 a month support from the respondent. The respondent's income totals slightly in excess of $2000.00 per month. Included in that figure is rental income of $500.00 but upon questioning, the respondent had no idea where that number came from. He essentially receives C.P.P., a small union pension, and Old Age Security.

[6] Neither income of the parties has changed substantially since the preparation and execution of the separation agreement filed by the applicant which she now seeks to vary.

[7] It became evident upon hearing the parties that the breakdown in this relationship was very acrimonious. The applicant is visibly bitter over the breakdown of this marriage and repeatedly had to be told to direct her comments to the bench as opposed to the respondent directly.

[8] The applicant's materials and her submissions support the fact that she prepared the separation agreement in question. The wording of the separation agreement and her feelings for the respondent as displayed in court, are further evidence that she in fact was the author of that contract. There are references throughout the contract to the breakdown of the marriage being the sole responsibility of the respondent.

[9] In any event, the separation agreement prepared by the applicant provided for a separation of property. The parties did not have much at the time of separation but they did have some equity in the matrimonial home. Page 2 of the separation agreement provided for the proceeds of the matrimonial home to discharge the mortgage, the applicant's Visa account, while leaving the respondent responsible for his own MasterCard account. All penalty fees associated with the early payment of the mortgage were to be borne by the respondent. The agreement provided that the applicant was to be responsible for her $10,000 line of credit.

[10] In the end, according to the respondent's calculations which were not disputed by the applicant on the hearing of the motion, he was left with $500.00 net proceeds of the sale of the matrimonial home.

[11] In addition, at the time of the separation the parties had an ongoing civil action as a result of a motor vehicle accident. The applicant suffered the most severe injuries. It appears, based on the material that I saw at the motion, that the respondent's claim was limited to a Family Law Act claim. In any event, the respondent agreed to the disbursement of the lawsuit funds and acknowledged after separation that the bulk of the funds would go to the applicant. She received approximately $50,000.00 while his claim was limited to around $3000.00. The applicant utilized the proceeds of the lawsuit to purchase the home which she currently resides in and thus depleted most of the settlement in doing so.

[12] All of this transpired around the time of the separation and the respondent, upon the sale of the matrimonial home, took his belongings and left for Gravenhurst, Ontario.

[13] It is important to note that the separation agreement which the applicant seeks to now vary was drafted by her. Without getting into who got the larger share of the proceeds of the home, I am satisfied that after payment of the applicant's substantial Visa bill (which she claims were expenses incurred by the respondent) there wasn't much left to be divided between the parties. Whether the respondent would have had a claim to any of the insurance proceeds received by the applicant as a result of the motor vehicle accident is irrelevant in my view in this proceeding.

[14] What is evident however is that these parties executed a separation agreement that provided for the separation of their household assets and the payment of future support by the respondent to the applicant in the amount of $100.00 per month. The respondent indicates that he signed the separation agreement initially not wanting to pay $100.00 per month support at all but did so recognizing that he was giving up a portion of the sale of the matrimonial home proceeds and he was giving up any potential right he may have had to a claim in the applicant's lawsuit settlement.

[15] The applicant has admitted that she drafted the separation agreement and that the respondent has abided by the terms of that agreement since their separation. She now however has come to the realization that she cannot survive on $100.00 per month support when added to her disability pension and thus seeks more support from the respondent.

[16] The law on this matter is quite clear. The variation of a spousal support order or a separation agreement requires proof of a material change in circumstances since the signing of that agreement. A material change based on case law is interpreted as being a change such that, if known at the time, would have resulted in different terms.

[17] There is no evidence before me at this time of a misrepresentation on the part of either party. In fact, I find that there was no misrepresentation on the part of either party as to hidden assets, hidden income, or anything of that nature. I am quite satisfied that the applicant knew full well what she was doing when she drafted this agreement. The wording of the agreement clearly reflects the disdain which she held for the respondent. The applicant prepared the order and included therein support of $100.00 per month. The respondent reluctantly agreed to that order.

[18] There is nothing in evidence filed in support of this motion by the applicant and in response by the respondent that suggests any misrepresentation on the part of the respondent such that the applicant was misled in setting out the spousal figure in the agreement.

[19] It may be that in fact the applicant is having difficulty making ends meet. That unfortunately is not the test to be met by the applicant in this motion to change a separation agreement.

[20] The respondent signed the agreement, lived up to the agreement as it pertained both to the division of assets and the payment of ongoing support of $100.00 per month. He is entitled to rely upon that agreement.

[21] What has occurred between these parties on the division of their assets and the resulting agreement in spousal support cannot now be undone.

[22] I find no basis in law to consider the variation sought by the applicant at this time. Having found no proof of a material change in circumstances since the making of the separation agreement, I must dismiss the applicant's motion to change. I will do so without costs.

Released: February 27, 2012

Signed: "Justice R. Villeneuve"