Ontario Court of Justice

Date: 2022 08 18 Court File No.: Woodstock D39/14

Between:

LISA JANE SPRAGUE Applicant

— AND —

RICHARD ARNOLD BURNETT Respondent

Before: Justice R. B. Horton

Heard on: August 16, 2022

Counsel: James Battin, for the Applicant Richard Arnold Burnett, on his own behalf

Decision on Motion to Change of Respondent and Response to Motion to Change and Claim of Applicant

HORTON J.:

[1] The Respondent, Mr. Burnett, commenced a Motion to Change the spousal support order dated April 11, 2016, and specifically to terminate his payment of $850 per month to the Applicant, effective August 31, 2019. Mr. Burnett’s motion to change is dated September 4, 2019.

[2] The Applicant, Ms. Sprague, seeks to have the Motion to Change of Mr. Burnett dismissed and further advances a claim that the Respondent is in arrears of his spousal support obligation. She argues that support has been underpaid since May 1, 2016. This claim is mis-characterized as arrears as Mr. Burnett has met his obligation pursuant to the April 11, 2016 order. Ms. Sprague submits the support was below the Spousal Support Advisory Guideline (SSAG) calculations based on Mr. Burnett’s and her respective incomes. She claims he owes to her the shortfall which she calculates as $36,662 as of June 30, 2022.

[3] The following evidence has been filed in support of the respective claims of each party:

(1) Motion To Change and Change of Information Form of Respondent, Mr. Burnett; (2) Response To Motion to Change of Applicant, Ms. Sprague; (3) Financial Statements of the Applicant and Respondent; (4) Affidavit of Applicant, sworn June 10, 2022 (including medical reports and Disability Self Assessment); (5) Affidavit of Respondent, sworn June 9, 2022; and (6) Affidavit of Respondent, sworn July 13, 2022.

[4] The issues for determination are,

(1) Whether Mr. Burnett has established that a material change in circumstances exists to allow his claim to proceed; (2) Whether Ms. Sprague has established that a material change in circumstance exists to allow her claim to proceed; If Mr. Burnett has established a material change in circumstances whether his spousal support obligation of $850 per month ought to be varied; (3) If Ms. Sprague has established a material change in circumstances whether her claim for retroactive increase in the quantum of spousal support payable is supported based on the specific facts and circumstances.

Material Change Established by Respondent

[5] Mr. Burnett has established that a material change in circumstances has occurred since the order of April 11, 2016. In reaching this determination I note the following:

(1) a material change in circumstance must not be merely temporary; (2) what amounts to a material change in circumstances is case specific and depends on the parties actual circumstances at the time of the order; (3) sufficiency of the change must be defined in regards to the overall financial situation of the parties; (4) the fact that a change was objectively foreseeable does not necessarily mean that it was contemplated at the time of the original order.

[6] The Applicant, Ms. Sprague, began a committed relationship with Mr. Troy Miller in or about 2017. While re-partnering does not automatically justify variation of a spousal support order, particularly in cases where such an order has a compensatory element, as the new relationship and the obligations arising out of it will not compensate a recipient for what was forgone during the earlier marriage. It is however the recipients onus to establish notwithstanding the new relationship that there continues to be an economic loss from the earlier marriage.

[7] The existing order is silent with respect to the nature of the support obligation. I find based upon the evidence received that any compensatory element of support, in this particular case, was modest at best.

[8] In considering the issue of re-partnering, it is also appropriate to reference the Spousal Support Advisory Guidelines as these formulas are the presumptive starting point for awarding support. While not binding, the SSAG’s should not be lightly departed from, they are a valuable tool in assessing a reasonable amount of spousal support however complicating factors must be considered. In short, they are intended to be used as tools and should not be applied automatically in every case.

[9] Re-partnering, in particular, is a circumstance that the SSAG’s suggest, at section 14.7, requires case-by-case decision-making,

“where the recipient remarries or re-partners was someone who has a similar or higher income than the previous spouse, eventually-faster or slower, depending upon the formula adopted-spousal support would be extinguished. We have been unable to construct a formula with sufficient consensus or flexibility to adjust to the situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision-making.”

[10] Re-partnering is also specifically contemplated by the SSAG’s as a reason to revisit entitlement to support and consider terminating it. On the topic of re-partnering, the SSAG’s state at section 13.8,

“entitlement may then be revisited for any number of reasons-the recipient finding employment, the recipient’s remarriage or re-partnering, the payor’s retirement or loss of employment, etc.-and support may be terminated if entitlement has ceased.”

[11] Section 16 of the Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016) echoes the sentiment in instructing that re-partnering “does not mean the automatic termination of spousal support, but support is often reduced and sometimes even terminated.” This depends on “whether support is compensatory or non-compensatory, as well as the length of the first marriage, the age of the recipient, the duration and stability of the new relationship and the standard of living in the recipient’s new household.”

[12] It is clear on the evidence that Ms. Sprague enjoys a standard of living with Mr. Miller that is comparable to the standard of living that the parties enjoyed during the marriage. While Ms. Sprague’s income remains very similar to that which existed in 2016, with her now being receipt of ODSP benefits, it is to be noted that Mr. Miller’s income closely approximates the income of Mr. Burnett at the date the order was granted.

[13] It is acknowledged by Ms. Sprague that in the event no spousal support was to continue to be received that her ODSP benefits would increase to approximately $1,050.00 per month. Certainly, this does not remove any obligations of Mr. Burnett to provide financial assistance to Ms. Sprague.

Material Change Established By The Applicant

[14] I am unable to be satisfied that a material change in circumstances has been established by Ms. Sprague. Firstly, as noted above this is not a situation of Mr. Burnett accumulating arrears of his support obligation. Mr. Burnett has in fact complied fully with the existing order. Unlike child support, in the absence of a specific provision there is not an automatic review of the quantum of support nor is there an automatic entitlement to an increase in support as a result of an increase in the payor’s income. In this case the Applicant did not bring forward a request to review or vary the existing support obligation. I am unable to find any blameworthy conduct in the manner Mr. Burnett acted or in his compliance with the existing order of this court.

[15] The claim by the Applicant to retroactively vary the quantum of support payable by the Respondent from May 1, 2016, to the date of pleadings, November 22, 2019, is therefore dismissed. This does not of course address the period from the date of pleadings forward as Ms. Sprague is entitled to seek an increase in support however a material change in circumstance must also be established for Ms. Sprague to be successful in this regard. For reasons that will be set forth below I need not consider this issue further at this time.

Should The Respondent’s Spousal Support Obligation Be Varied?

[16] As indicated, Ms. Sprague enjoys a standard of living with her current partner that is comparable to that which she previously enjoyed with Mr. Burnett. I am satisfied that Ms. Sprague’s relationship with Mr. Miller is a relationship of permanency and while re-partnering does not disentitle her to spousal support it does in my view affect quantum and duration. Given the limited compensatory element of support in this case I am satisfied that a greater portion of Ms. Sprague’s needs should now be met by Mr. Miller. I would add that any compensatory component must be considered and compensated for as part of the overall consideration and resolution of this matter. I will address this element below.

[17] The primary issue then is what is the appropriate quantum of spousal support to be paid by Mr. Burnett, if any, to Ms. Sprague going forward? In determining this I consider the following factors:

(1) the limited compensatory nature of the Applicant’s entitlement and the quantum of support paid to date (including from the date of pleadings to present date); (2) the parties respective incomes; (3) the length of the relationship between the parties; (4) the benefits Ms. Sprague receives from her cohabitation with Mr. Miller; (5) the Spousal Support Advisory Guideline ranges.

[18] Ms. Sprague is in receipt of ODSP benefits in the amount of $319 per month. Ms. Sprague denies any other income sources and I am satisfied based on the limited, and unchallenged, medical evidence received and the affidavit evidence that this accurately reflects her current income from all sources.

[19] Mr. Burnett’s income is readily determined given his employment status. Mr. Burnett’s income since the time the existing order was granted has been as follows,

(1) 2016 $38,332; (2) 2017 $33,751; (3) 2018 $34,945; (4) 2019 $35,699; (5) 2020 $42,309; (6) 2021 $49,939; (7) 2022 $45,012 (estimate)

[20] Mr. Burnett acknowledged that these figures accurately reflect his true incomes for the years noted.

[21] Mr. Troy Miller’s income as presented by the Applicant for 2021 amounted to $49,933 which was unchallenged. (Tab F, page 146 of Applicant’s Affidavit sworn June 10, 2022).

[22] Taking into consideration Ms. Sprague’s total income of $319 per month and the household expenses contained within Ms. Sprague’s Financial Statement it is then necessary to consider the benefit Ms. Sprague receives from Mr. Miller. I view the contributions of the Applicant’s new spouse as sufficient to meet her needs. As noted, Ms. Sprague enjoys a standard of living that is comparable to that which she enjoyed previously. The relationship between Ms. Sprague and Mr. Miller is lengthy and one of permanence. Based on these factual findings I conclude that re-partnering by Ms. Sprague has diminished her need-based entitlement to spousal support.

[23] There is of course the need to consider the compensatory nature even if modest. Given the considerable length of the party’s marriage and having consideration that the Respondent has paid to the Applicant spousal support in the current amount for approximately 6.5 years, and a lesser amount prior to the current order, it is my view that the time has not yet come where the Applicant has been fully compensated such that the Respondent’s obligation to pay support to her can end. It is however appropriate that the amount of support be reduced based on the increasing obligation of the Applicant’s new partner to contribute to her need. I find this consistent with the overall guidance contained within the Spousal Support Advisory Guidelines.

[24] Noting Ms. Sprague’s income from ODSP benefits I find that Ms. Sprague also receives a net financial benefit from Mr. Miller of least $1,500 per month. These amounts when grossed up utilizing a notional 19% tax rate results in an income to be assessed to Ms. Sprague of $25,975.

[25] Based on the incomes noted previously, considering the SSAG ranges ($595 at low end, $631 at mid range and 4631 at high end), and Mr. Miller’s ability to assist in the Sprague support I am satisfied that Ms. Sprague’s need for support from Mr. Burnett has diminished from that contemplated within the existing order.

[26] Given the long-term nature of the party’s relationship, the modest compensatory element of spousal support existing in this case, the Applicant’s decreased need and the support which has been received to date inclusive of the period in which Ms. Sprague has resided with her current partner, the Respondent shall pay to the Applicant spousal support, commencing August 1, 2022, in the sum of $550 per month to and including July 1, 2023. Commencing August 1, 2023, the Respondent shall pay to the Applicant spousal support in the amount of $225 per month up to and including July 1, 2024. Thereafter spousal support shall terminate.

[27] The Applicant’s claims with respect to retroactive spousal support and/or arrears of spousal support accumulating from May 1, 2016, to present date are dismissed.

[28] In the event the parties are unable to address the issue of costs of these proceedings the parties shall file written submissions of not more that 5 pages, double spaced, 12 font, with the Respondent to serve and file his submission within 30 days, and the Applicant to respond no later than 30 days following receipt of the Respondent’s submissions. The Respondent shall have right of reply of no greater than 2 pages, double spaced, to be served and file within 10 days of receipt of Applicant’s submissions.

Released: August 18, 2022 Signed: Justice R. B. Horton