Brampton Registry No. 336/10
DATE: 2012·I·16
CITATION: Popkevich v. Popkevich, 2012 ONCJ 32
ONTARIO COURT OF JUSTICE
BETWEEN:
STEFAN IGNATIUS POPKEVICH,
Applicant
— AND —
JANIS MARIE POPKEVICH,
Respondent
Before Justice Juliet C. Baldock
Heard on 5 January 2012
Reasons for Judgment released on 16 January 2012
Stefan Ignatius Popkevich .................................................................................... on his own behalf
Janis Marie Popkevich ......................................................................................... on her own behalf
For previous proceedings, see Popkevich v. Popkevich, 2011 ONSC 6765, [2011] O.J. No. 5729, 2011 CarswellOnt 14721 (Ont. S.C.), per Justice Peter A. Daley.
[1] JUSTICE J.C. BALDOCK:— This is a motion made by the applicant, Stefan Popkevich, to change the terms of a separation agreement dated September 9, 2003, which as of 2010 has been filed with the court for enforcement. Both parties were unrepresented.
[2] The applicant brought a motion in 2010 for termination of child and spousal support. This motion was heard on December 20, 2010 by Justice Jane Kerrigan Brownridge, at which time child support was terminated retroactively, but the motion with respect to spousal support was dismissed.
[3] The applicant appealed the decision of Justice Kerrigan Brownridge. That appeal was dismissed by Justice Peter A. Daley on December 14, 2011.
[4] As a result, the only issue before me is whether there has been a material change in circumstances since the order of Justice Kerrigan Brownridge dismissing the applicant’s earlier motion. The applicant is not entitled to go behind the findings of fact made in that decision.
[5] The applicant relies on the following grounds as set out in his affidavit sworn on July 11, 2011:
(a) He has depleted his R.R.S.P. savings to pay arrears of support.
(b) He owes significant debts including Visa and a line of credit which is overdrawn.
(c) The respondent has not become self sufficient.
(d) The respondent lives beyond her means.
(e) The applicant’s health has deteriorated.
(f) His claim for C.P.P. disability benefit has been denied.
(g) He is separated from his second wife as of December, 2010.
[6] I address each of these grounds as follows:
(a): Depletion of Assets
[7] While the applicant may have used his R.R.S.P. at least in part to pay arrears of support which became due and payable as a result of Justice Kerrigan Brownridge’s order, I find it disingenuous to claim that compliance with one part of a court order can be considered as grounds to change another term of that order. Furthermore, his most recent sworn financial statement shows arrears of spousal support still owing.
(b): Debts and Obligations
[8] While he describes the debts as “unmanageable”, his most recent financial statement sworn November 23, 2011, discloses only the arrears of spousal support (which had earlier been suspended and subsequently reinstated) of $11,760.00 and a debt to Visa of $2,987.23 which is being paid at the rate of $100.00 a month.
[9] I accept that the applicant has liquidated some funds but he does not appear to have incurred debt for living expenses, despite his assertion that in 2011 his income inclusive of the R.R.S.P. withdrawal was only $14,707.08 and his expenses for the same period were, according to his November 23, 2011 financial statement, over $30,000.00 (exclusive of support obligation).
[10] I therefore reject the accumulated debt as creating a material change in circumstance, or sufficiently significant to justify a change in the support order.
(c): The Respondent Has Not Become Self Sufficient
[11] This issue was canvassed and reviewed in detail by Justice Kerrigan Brownridge in her December 2010 decision, wherein she accepted the respondent’s evidence of her limited ability to earn income.
[12] There is no evidence before me upon which I could conclude that her situation has in any way improved since that finding.
(d): The Respondent Lives beyond her Means
[13] The respondent’s housing costs are similar to those of the applicant. She continues to reside in the former matrimonial home. Her cost for groceries, which includes vitamins and supplements, is somewhat high but, if those and her credit card payments were eliminated, her expenses would be approximately the same as those of the applicant.
[14] She currently has no vehicle as her nine-year-old car was involved in an accident and written off. She received an insurance payout of $2,700.00 which she applied to her credit card debt. She has no funds to purchase another car.
[15] I find no evidence to support the applicant’s position that the respondent is in a better financial position than she was in December 2010, or that she is now better equipped to earn above the $15,000.00 threshold set out in the separation agreement, let alone be self-sufficient.
(e): The Deterioration of the Applicant’s Health
[16] The applicant is self employed in the computer consulting business (I.S.Y.S.) which in recent years he has operated out of his home with his second wife.
[17] In 2009, his income was $108,696.97.
[18] The medical evidence relied upon consists of:
(a) a letter from Dr. Dobson, his family doctor, dated January 31, 2011, which, in part, states as follows:
His condition will not improve over time but will likely deteriorate making it impossible for him to generate the same income he has been able to generate in the past.
(b) an earlier report from Dr. Dobson dated June 15, 2010, in which he concluded:
He is becoming more and more disabled by his various medical problems and can no longer work and earn income. His disability will progress rather than improve over time.
(c) a report dated March 17, 2008 from Dr. Hope, setting out the various health issues affecting the applicant.
[19] The two earlier reports were available at the hearing before Justice Kerrigan Brownridge. The most recent report is dated only two months after that hearing.
[20] A careful review of these reports and attachments reveals that the applicant’s condition continues to worsen. He is gradually becoming less mobile, he suffers pain, and receives treatment which alleviates the symptoms to some degree but does not effect a cure or even an improvement in his overall condition.
[21] This is not a new situation. It has in fact been an ongoing problem for the applicant for many years.
[22] I accept that, over time, his ability to work is compromised, given his physical limitations such as sitting at a computer for an extended period.
[23] Nevertheless, the applicant is an articulate and accomplished business man who has enjoyed considerable success in his field. He has demonstrated an ability to earn significant income over the years, notwithstanding his chronic and progressive health issues.
[24] The most recent medical report does not indicate any drastic change in the applicant’s condition since November or December 2010, only that the deterioration continues.
[25] At what point then should this be taken into consideration in addressing the applicant’s earning capacity?
[26] More than a year has now elapsed since the previous order.
[27] That year has been a difficult one for the applicant. Not only has his health degenerated further but his relationship with his second wife has ended.
[28] I do not in any way minimize the applicant’s health issues. Clearly life has become something of a struggle for him, as it has for the respondent.
(f): The Applicant’s C.P.P. Disability Claim Has Been Denied
[29] The respondent’s position in this regard is the same as it was prior to the previous court order, therefore I give it no weight as a ground for variation.
(g): Separation from Christine Popkevich
[30] It appears that the applicant and his second wife, Christine Popkevich, separated shortly after the hearing before Justice Kerrigan Brownridge.
[31] Prior to that separation, the couple operated a business together from their home and were able to generate significant income. Justice Kerrigan Brownridge’s decision was based, in part, on the applicant’s continued ability to earn income notwithstanding his personal health problems.
[32] I find that the applicant’s ability to generate income has been compromised by the separation. He is now on his own, without the significant support previously provided. As a result, his health issues become more of a factor, as there is no one else to share the workload.
[33] I find that the applicant has been on a downward spiral for the last year which has accelerated his inability to earn income.
[34] I find that there is no issue as to the respondent’s need as her situation has not in any way improved in the last year.
[35] The only issue is the ability of the applicant to contribute to her support.
[36] The applicant’s income does not even rise to the level of the current support obligation, and this must therefore be reduced.
[37] However, I am not satisfied that the applicant has taken all steps necessary to maximize his income. He appears to have “given up” following his recent marital separation, but despite his serious medical condition he continues to have some ability to support himself and the respondent.
[38] Accordingly, I impute income to the applicant as $45,000.00, or being approximately 50 per cent of his average income prior to December 2010.
[39] The applicant no longer has the obligation to support his children, who are adults.
[40] I find he has the ability to pay spousal support at the rate of $800.00 per month.
[41] Order to issue: The applicant’s obligation to pay spousal support is reduced to $800.00 per month effective January 1, 2012.
[42] There shall be no order as to costs.
Released: 16 January 2012
Justice Juliet C. Baldock