Case Name
Glasgow v. Glasgow
Between
Dahlia Matilda Glasgow, Applicant, and
Carlton Adolphus Glasgow, Respondent
[2013] O.J. No. 5470 2013 ONCJ 656
Brampton Court File No. 626/13
Ontario Court of Justice
L.S. Parent J.
Heard: October 28, 2013. Judgment: November 8, 2013.
(45 paras.)
Headnote
Family law -- Maintenance and support -- Spousal support -- Variation or termination of obligation -- Changed circumstances -- Quantum -- Payor's annual income -- Payee's annual income -- Amount of award -- Periodic (monthly) award -- Practice and procedure -- Orders -- Variation or amendment of orders -- Changed circumstances -- Determination of spousal support issues
Husband was to pay $506 per month in spousal support, based on his income of $28,479 and wife's income of $14,591. 2010 order dismissed husband's motion to terminate spousal support. He moved to terminate in 2013, based on decreased income. There was material change in circumstances since 2010 order, but it was limited to husband's ability to earn self-employment income.
Determination of spousal support issues. A 2004 order required the husband to pay $1200 per month in spousal support, indexed yearly. He stopped earning employment income in 2006 but continued to earn self-employment income. A 2010 order dismissed his motion to terminate spousal support and required him to pay arrears at $50 per month. He moved to terminate in 2013, based on his decreased income, the possible end of his common-law relationship and the wife's refusal to use her LIRA or accept money from their adult daughter who lived with her. A doctor's letter referred to his inability to be "actively engaged in full time employment". The wife sought a lump sum payment of the arrears.
HELD: The husband was to pay $506 per month in spousal support, based on his income of $28,479 and the wife's income of $14,591; he was to pay the arrears at $913 per month. There was a material change in circumstances since the 2010 order, but it was limited to the husband's ability to earn additional self-employment income. The husband had lived with the common-law partner since 2006. The wife had the LIRA at the time of the 2004 order and the daughter lived with her at the time of the 2010 order. It would not be reasonable to require the husband to make a lump sum payment of arrears, given his financial circumstances, but repayment at $50 per month would result in their not being paid for almost 70 years.
Statutes, Regulations and Rules Cited
Spousal Support Guidelines
Counsel
Dahlia Matilda Glasgow: on her own behalf.
Steven Fehrle: counsel for the respondent.
Decision
L.S. PARENT J.:
BACKGROUND
[1] The matters before the court arise from the filing of a Motion to Change by the Respondent on May 17th, 2013 and the filing of a Response by the Applicant on July 5th, 2013.
[2] In his Motion to Change, the Respondent seeks to vary paragraphs 1 and 4 of the order of Justice Zucker dated August 25th, 2004. These relevant paragraphs read as follows:
"1. Carlton Glasgow shall pay spousal support to Dahlia Glasgow, monthly, commencing June 15th, 2004, in the amount of $1,200.00 per month; and
- Spousal Support amounts shall be indexed yearly pursuant to Section 34(5) and (6) of the Family Law Act."
[3] The Respondent is seeking that the order of Zucker, J. be varied so as to terminate, or in the alternative reduce, his ongoing spousal support obligation effective June 1st, 2013.
[4] The Applicant, in her Response, seeks an order dismissing the Respondent's claim. In addition, she seeks an order varying paragraph 3 the order of Justice Sherr dated April 22nd, 2010 which reads as follows:
"The Respondent may repay arrears at $50.00 per month commencing January 1st, 2011. If the Respondent is more than 30 days late of any ongoing support payment after May 1, 2010 or any arrears payment after January 1, 2011, then the entire amount of arrears shall immediately become due and payable."
[5] The Applicant requests that a lump sum payment of the arrears owed by the Respondent be ordered. She further seeks an order prohibiting the Respondent from initiating any further Motions to Change until the arrears are fully discharged.
[6] There is no dispute between the parties that a Motion to Change previously initiated by the Respondent was dismissed by an order of Justice Sherr's order dated April 22nd, 2010. There is no dispute between the parties that Justice Sherr's order also provided, at paragraph 5, that the Respondent could initiate a review of the spousal support order of Justice Zucker in three years, namely after April 22nd, 2013, if a material change in circumstance arose.
[7] There is no dispute between the parties that the three year period since the granting of Justice Sherr's order has occurred. The dispute between the parties centers on whether or not a material change in circumstance has occurred.
[8] The parties were divorced by the order of The Honourable Justice Paisley dated July 11th, 2011. The Divorce Order was filed as Exhibit 3 to this hearing. The order solely granted the divorce as there was no claim for corollary relief sought by either party in the proceeding. Neither party has raised a jurisdictional objection to this Court hearing the claims raised by the parties in their respective Motion to Change and Response. Counsel for the Respondent relies on the decision of Herman, J. in Abernethy v. Peacock, [2009] O.J. No. 2066 (SCJ) in support of his position that this Court has jurisdiction to hear the variation application.
[9] There is no reason to distinguish the case at bar from the Abernethy v. Peacock (supra) decision given that neither party made a claim for spousal support in the divorce proceeding therefore the doctrine of paramountcy does not apply. This Court therefore has jurisdiction to determine the claims before it.
ISSUES
[10] The issues to be determined are as follows:
(1) Should the Respondent's spousal support obligation pursuant to the order of Justice Zucker dated August 25th, 2004 be terminated based on a material change in circumstances which have arisen following the decision of Justice Sherr dated April 22nd, 2010 and if so, effective which date or in the alternative, varied and if so, to what amount and effective which date?
(2) Should the Respondent's obligation to pay the accumulated arrears of support at the rate of $50.00 per month pursuant to the order of Justice Sherr dated April 22nd, 2010 be varied to provide for a lump sum payment? and
(3) Should the Respondent be prohibited from bringing any further proceedings seeking a variation of his spousal support obligation?
POSITION OF THE RESPONDENT AT THE HEARING
[11] The Respondent submits that his spousal support obligation should be terminated, or in the alternative reduced, as several material change in circumstances have occurred namely (1) his decrease in his self-employment income due to his age and physical ailments, (2) the possibility of the end of his common-law relationship; (3) the continued refusal by the Applicant to utilize her LIRA to generate additional funds to satisfy her obligation to be self-supporting and (4) the continued refusal by the Applicant to accept financial contributions from the parties' adult daughter who resides with her.
[12] The Respondent submits that the Court should reduce his income due to factors (1) and (2) and impute income to the Applicant due to factors (3) and (4). The result, the Respondent submits, is that the parties would have similar income levels thereby negating the continuation of his spousal support payments.
POSITION OF THE APPLICANT AT THE HEARING
[13] The Applicant submits that the Respondent's claim to terminate spousal support should be dismissed. She claims that she continues to be in need of spousal support and that the Respondent has the ability to pay. The Respondent claims that the Court should impose a requirement on the Respondent to provide a lump sum payment on the accumulated arrears of support.
[14] The Applicant further submits that she should not be required to cash in her only investment vehicle as this is the only vehicle available to her when she retires. She further submits that requiring her adult daughter to contribute to the household expenses by paying rent is unreasonable given her own financial circumstances.
ANALYSIS
(1) Should the Respondent's spousal support obligation pursuant to the order of Justice Zucker dated August 25th, 2004 be terminated based on a material change in circumstances which have arisen following the decision of Justice Sherr dated April 22nd, 2010 and if so, effective which date or in the alternative, varied and if so, to what amount and effective which date?
[15] The Respondent testified that his current indexed spousal support obligation is $1,419.00 per month.
[16] The order of Justice Sherr dated April 22nd, 2010 dismissed the Respondent's Motion to Change. The order further provided that the incomes attributable to the Respondent and the Applicant were $40,000.00 and $11,200.00 respectively.
[17] The Respondent testified that he is currently seventy-one (71) years of age. He testified that he is a Master Electrician and Certified Refrigeration Technician.
[18] The evidence at the hearing is that the Respondent became unemployed from the International Brotherhood of Electrical Workers in July 2006. Tab 4 of Exhibit 1 - Documents Brief of Carleton Glasgow is the Respondent's 2012 Condensed Income Tax Return. Line 150 of this document indicates a total income of $25,479.00 from three sources, namely (1) Old Age Security pension in the amount of $6,511.00; (2) CPP or QPP benefits in the amount of $5,285.00 and (3) other pensions or superannuation in the amount of $13,684.00.
[19] The Respondent further testified that he has also earned self-employment income in the past. This income has been generated through personal relationships and referrals and by acting as a supervisor to individuals seeking to obtain their accreditation in the electrical and refrigeration fields.
[20] A review of the file indicates that the Respondent did include self-employment income of $3,000.00, identified as $250.00 per month, and HST credit cheques of $312.00, namely $26.00 per month, in his Financial Statement sworn May 10th, 2013. The Respondent confirmed this as his income during his testimony in chief. The Income Tax Return filed by the Respondent in 2012 confirms that he did not declare this self-employed income to Canada Revenue Agency.
[21] The Respondent testified that he does not anticipate being in a position to earn any self-employed income. He testified that the last income earned was in April/May 2013. The Respondent indicates that his frame of mind and his physical ailments prevent him from being able to concentrate on the tasks he is asked to do.
[22] In support of his position, the Respondent filed as Exhibit 4 a letter dated October 23rd, 2013 from his family physician since 2006, Dr. F. Asekomhe. The letter from Dr. Asekomhe details the various physical issues currently being experienced by the Respondent. The letter concludes by stating "As a result of his medical problems he lacks the stamina and physical fitness for his trade as an electrician. He is unable and unfit to work in his trade due to knee problems, back problems and problem with sleep at night. If he has to been actively engaged in full employment he will be a possible hazard to himself and others".
[23] The Respondent further testified that he has been living with his common law partner since 2006. He testified that he owes his partner approximately $22,000.00 pursuant to a verbal agreement they entered into. The Respondent testified that he has not paid any amount towards this outstanding loan.
[24] The Respondent's partner, Ms. Lynda Campbell, also testified. She confirmed the Respondent's evidence that they have been residing together since 2006. Ms. Campbell testified that she is not content with the arrangement with the Respondent whereby she is responsible for the majority of their expenses. She testified that she wishes an equal contribution however this has never happened since they began living together. Ms. Campbell further testified that if the Respondent is unsuccessful in his claim to terminate spousal support, this may impact their relationship as she is ten years from retirement.
[25] The issue to determine is whether or not a material change in circumstances has arisen since the order of Justice Sherr dated April 22nd, 2010 justifying a review of the spousal support order of Justice Zucker dated April 25th, 2004.
[26] A review of the evidence provided by the Respondent does establish that a material change in circumstance has occurred since April 22nd, 2010. This material change however is limited to the Respondent's ability to earn additional self-employment income thereby increasing his income for the purposes of establishing his spousal support obligation.
[27] The medical evidence and the Respondent's direct testimony satisfies the Court that this additional income will be closer to the $3,000.00 range and not a higher amount as perhaps the evidence established in the previous Motion to Change. In including the amount of $3,000.00 to the Respondent, I have considered the medical evidence which indicates an inability on the Respondent to "actively engage in full employment", and does not address part-time employment, the Respondent's own sworn Financial Statement and the grossing-up the income in order to provide for the absence of tax consequences on any amounts of self-employed income received by him due to non-inclusion to the Canada Revenue Agency.
[28] I am not satisfied that a material change in circumstances has occurred based on the second factor raised by the Respondent, namely the possibility of the end of his current common-law relationship. The evidence establishes that the Respondent and his partner have been residing together since 2006. They continued to reside together following the dismissal of the Respondent's Motion to Change in 2010. Given the totality of the evidence on this issue, I am not satisfied that the relationship will end following this hearing or that there is an enforceable agreement between them regarding a loan as testified by the Respondent.
[29] Given this determination, a review of the Respondent's spousal support obligation is justified. The Respondent submits that this review should impute income to the Applicant in the amount of $10,200.00 being $5,000.00 from her LIRA and $5,200.00 from direct contributions from the parties' adult daughter who resides with her.
[30] A review of the evidence indicates that the Applicant has had the LIRA since her retirement in 2001. The Applicant's Financial Statement sworn May 21st, 2004 and filed as Exhibit 7 in this hearing, lists a "Locked in Retirement Fund - 3345644-3" in the amount of $62,135.78 on page 5. The Applicant's Financial Statement sworn March 30th, 2010 and filed as Exhibit 8 in this hearing, lists a "Retirement Fund - Mackenzie Investments (Locked in) - 3345644-3" in the amount of $54,106.44 on page 5.
[31] The evidence clearly establishes this investment vehicle existed at the time of the initial order of Justice Zucker and at the Motion to Change hearing before Justice Sherr. The Respondent has not raised any evidence as to a material change in circumstances justifying that this income, at the amount he wishes to attribute to the Applicant, should be imputed.
[32] The evidence further establishes that the parties' adult daughter has been residing with the Applicant since at least 2010. The Applicant, at page 1 of Exhibit 8, identifies that her current financial situation is for herself and the daughter in question. This fact was therefore in existence at the time of the hearing of the Respondent's Motion to Change in 2010.
[33] Paragraph 6 of the order of Justice Sherr dated April 22nd, 2010 sets the Applicant's income for spousal support purposes at $11,200.00. Given this amount, it is evident that the claims for imputing income to the Applicant from either or one of these sources was dismissed or not argued. Accordingly, the Respondent has not raised any evidence as to a material change in circumstances justifying that this income should now be imputed to the Applicant.
[34] The Respondent's claim to impute income to the Applicant is therefore dismissed.
[35] Given the totality of the evidence, I find that for the purposes of this motion:
(a) the Respondent's income is imputed to $28,479.00, being:
(i) his Line 150 of his 2012 Income Tax Return of $25,479.00 from three sources, namely (1) Old Age Security pension in the amount of $6,511.00; (2) CPP or QPP benefits in the amount of $5,285.00 and (3) other pensions or superannuation in the amount of $13,684.00; and
(ii) a gross up annual self-employment income and HST credits of $3,000.00.
(b) the Applicant's income is imputed to be $14,591.52, being:
(i) her CPP benefits of $8,592.84; and
(ii) her Old Age Security benefits of $5,998.68
[36] A Spousal Support Guidelines (SSAG) calculation at these respective amounts results in a range of support of low-$434.00; mid-$506.00 and high-$534.00. Attached to these Reasons is a copy of these calculations.
[37] Counsel for the Respondent submits that the low range of support should be awarded should support be deemed to continue. I find insufficient evidence to support the position raised on behalf of the Respondent. Accordingly, I find that the mid-range of support of $506.00 should be awarded. I further find that there is no reason to vary the terms of the previous orders by removing the indexing of this amount. The adjusted amount of spousal support therefore will be payable effective June 1st, 2013.
(2) Should the Respondent's obligation to pay the accumulated arrears of support at the rate of $50.00 per month pursuant to the order of Justice Sherr dated April 22nd, 2010 be varied to provide for a lump sum payment?
[38] A Statement of Arrears from the Family Responsibility Office was filed by the Applicant at Tab 12 of Exhibit 1. This sworn document indicates that the arrears of support owed by the Respondent to the Applicant is $34,973.31 and unpaid court costs in the amount $7,000.00 for a total of $41,973.31. The Respondent also owes an administration fee of $400.00 to the Family Responsibility Office.
[39] The Applicant seeks an order varying the order of Justice Sherr dated April 22nd, 2010 to provide that the Respondent pay all arrears, which includes the court costs, in a lump sum.
[40] Given the totality of the evidence regarding the Respondent's current financial circumstances, the claim advance by the Applicant is not reasonable. However, it is equally unreasonable to continue the repayment of these arrears at the rate of $50.00 per month. This repayment schedule would result in the arrears being paid in almost seventy (70) years.
[41] The Court has determined that a material change in circumstances has been established to review, and lower, the Respondent's ongoing spousal support obligation. A review of the Respondent's total financial circumstances however does not lead the Court to conclude that the Respondent is in a position of hardship so as not to be in a position to increase the repayment of the accumulated arrears that he clearly owes to the Applicant.
[42] The Respondent has testified that at his current pension incomes, being his employment, CPP and Old Age pensions, totalling $25,617.00 per year, he retains in the range of $400.00 to $500.00 per month following the payment of his spousal support payment of $1,429.00 to the Applicant. The Respondent's common-law partner testified that he retains in the range of $700.00 to $800.00 per month. In either circumstances, I find that this does not create a hardship on the Respondent which justifies maintaining the repayment of the arrears at the rate of $50.00 per month.
[43] Accordingly, an order is granted varying paragraph 3 of Justice Sherr's order dated April 22nd, 2010 to provide that effective June 1st, 2013, the Respondent shall repay the accumulated arrears at the rate of $913.00 per month. If the Respondent is more than thirty (30) days late of any ongoing support payment after December 1st, 2013 and any arrears payment after December 1st, 2013, then the entire amount of arrears shall immediately become due and payable.
(3) Should the Respondent be prohibited from bringing any further proceedings seeking a variation of his spousal support obligation?
[44] The relief sought by the Respondent seeking an order prohibiting him from bringing any further proceedings seeking a variation of his spousal support obligation is dismissed. The evidence does not justify such a prohibition on the part of the Respondent as material change in circumstances could arise in the future.
ORDER
[45] For the reasons expressed above, I make the following final order:
Paragraph 1 of the order of Zucker, J. dated August 25th, 2004 is hereby varied to provide that the Respondent shall pay to the Applicant spousal support in the amount of $506.00 per month commencing June 1st, 2013 and on the first day of each month thereafter;
For purposes of this motion, the Respondent's income is imputed to be $28,479.00 per year and the Applicant's income is imputed to be $14,591.52;
Paragraph 3 of the order of Sherr, J. dated April 22nd, 2010 is hereby varied to provide that the Respondent shall repay the accumulated arrears of support at the rate of $913.00 per month effective June 1st, 2013. If the Respondent is more than thirty (30) days late of any ongoing support payment after December 1st, 2013 and any arrears payment after December 1st, 2013, then the entire amount of arrears shall immediately become due and payable;
The Applicant's claim for an order prohibiting the Respondent from filing any further proceedings seeking to vary his spousal support order is hereby dismissed;
A Support Deduction Order is to issue; and
Given the divided success in this matter, each party shall bear their own costs.
L.S. PARENT J.
cp/e/qljel/qlrdp/qlrxg