Hickey v. Princ

Ontario Reports

Ontario Superior Court of Justice, Divisional Court,

Heeney R.S.J., Lofchik and Matheson JJ.

October 14, 2015

127 O.R. (3d) 356 | 2015 ONSC 5596

Case Summary

Family law — Support — Spousal support — Variation — Voluntary decision to retire at age 51 not constituting material change in circumstances for purpose of variation of spousal support.

The parties were married in 1984, separated in 2001 and divorced in 2004. The respondent was ordered to pay spousal support to the appellant in the amount of $2,000 per month, to be adjusted to reflect the cost of living on each anniversary date. The order provided that either party could apply to vary the amount of spousal support in the event of a material change in circumstances. In 2013, at age 51, when he qualified for a full pension, the respondent decided to take early retirement. At that time, he held a senior position in the Ontario Provincial Police and was earning $122,707.92 a year. The respondent moved successfully to reduce, and ultimately terminate, spousal support on the basis that his early retirement amounted to a material change in circumstances. The appellant appealed.

Held, the appeal should be allowed.

The motion judge erred in finding that the parties had agreed that the respondent would retire at 51 when valuing his pension for purposes of equalization of their net family property. In fact, the respondent had represented that he intended to continue working until he was 60. That factual error clearly played a major role in the motion judge's decision that the respondent was entitled to retire at 51 despite his ongoing obligation to support the appellant, and was sufficiently significant to vitiate that finding.

In determining whether there has been a material change in circumstances, a party's "means" include income-earning capacity as well as actual income. The respondent's means were not restricted to his pension income since he was fully capable of earning income from some other source. His capacity to earn income from some other source should have been considered by the motion judge in determining whether a material change in circumstance had occurred. The respondent's decision to retire at age 51 when he was capable of continuing to work did not constitute a material change in circumstances for the purpose of variation of spousal support. "Means" also includes all pecuniary resources and capital assets. The motion judge erred in law in failing to consider evidence of the [page357] respondent's overall wealth, which had increased significantly since 2004. The respondent had wholly failed to prove the threshold condition for variation, namely, that his "means" had changed such that he was unable to pay the support order.

Bullock v. Bullock, 2004 16949 (ON SC), [2004] O.J. No. 909, [2004] O.T.C. 227, 48 R.F.L. (5th) 253, 129 A.C.W.S. (3d) 565 (S.C.J.), apld

LeMoine v. LeMoine, 1997 9522 (NB CA), [1997] N.B.J. No. 31, 185 N.B.R. (2d) 173, 68 A.C.W.S. (3d) 1113 (C.A.); Powell v. Levesque, [2014] B.C.J. No. 129, 2014 BCCA 33, 350 B.C.A.C. 43, 38 R.F.L. (7th) 261, 57 B.C.L.R. (5th) 132, 370 D.L.R. (4th) 370, 237 A.C.W.S. (3d) 464, not folld

Boston v. Boston, [2001] 2 S.C.R. 413, [2001] S.C.J. No. 45, 2001 SCC 43, 201 D.L.R. (4th) 1, 271 N.R. 248, J.E. 2001-1389, 149 O.A.C. 50, 28 C.C.P.B. 17, 17 R.F.L. (5th) 4, REJB 2001-25002, 106 A.C.W.S. (3d) 498, consd

Other cases referred to

Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, 169 D.L.R. (4th) 577, 236 N.R. 79, [1999] 8 W.W.R. 740, J.E. 99-703, REJB 1999-11414, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, 44 R.F.L. (4th) 1, 86 A.C.W.S. (3d) 1109; Cossette v. Cossette, [2015] O.J. No. 2073, 2015 ONSC 2678, 58 R.F.L. (7th) 12, 20 C.C.P.B. (2d) 77, 253 A.C.W.S. (3d) 420 (Div. Ct.); Foran v. Foran, 2007 11712 (ON SCDC), [2007] O.J. No. 1340, 223 O.A.C. 109, 37 R.F.L. (6th) 169, 156 A.C.W.S. (3d) 884 (Div. Ct.); Gemmell v. Gemmell, [1999] O.J. No. 1268, 47 R.F.L. (4th) 149, 87 A.C.W.S. (3d) 520 (Gen. Div.); Gray v. Gray (2014), 122 O.R. (3d) 337, [2014] O.J. No. 4519, 2014 ONCA 659, 325 O.A.C. 117, 50 R.F.L. (7th) 257, 245 A.C.W.S. (3d) 172; Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, 172 D.L.R. (4th) 577, 240 N.R. 312, [1999] 8 W.W.R. 485, J.E. 99-1206, 138 Man. R. (2d) 40, 46 R.F.L. (4th) 1, REJB 1999-12847, 88 A.C.W.S. (3d) 1044; Hickey v. Princ, [2014] O.J. No. 4248, 2014 ONSC 5272, 50 R.F.L. (7th) 138, 244 A.C.W.S. (3d) 405 (S.C.J.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Leskun v. Leskun, [2006] 1 S.C.R. 920, [2006] S.C.J. No. 25, 2006 SCC 25, 268 D.L.R. (4th) 577, 349 N.R. 158, J.E. 2006-1279, 226 B.C.A.C. 1, 62 B.C.L.R. (4th) 197, 34 R.F.L. (6th) 1, EYB 2006-106795, 148 A.C.W.S. (3d) 275; Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, J.E. 93-111, 81 Man. R. (2d) 161, [1993] R.D.F. 168, 43 R.F.L. (3d) 345, EYB 1992-67141, 37 A.C.W.S. (3d) 527; P. (L.M.) v. S. (L.), [2011] 3 S.C.R. 775, [2011] S.C.J. No. 64, 2011 SCC 64, 2012EXP-22, J.E. 2012-18, EYB 2011-199870, 424 N.R. 341, 339 D.L.R. (4th) 624, 6 R.F.L. (7th) 1, 208 A.C.W.S. (3d) 561; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171; Ross v. Ross, 1994 1322 (BC CA), [1994] B.C.J. No. 1526, 48 B.C.A.C. 151, 94 B.C.L.R. (2d) 206, 7 R.F.L. (4th) 146, 49 A.C.W.S. (3d) 112 (C.A.); Schmuck v. Reynolds-Schmuck, 1999 15000 (ON SC), [1999] O.J. No. 3104, 50 R.F.L. (4th) 429, 90 A.C.W.S. (3d) 434 (S.C.J.); Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208, [1994] O.J. No. 276, 111 D.L.R. (4th) 19, 69 O.A.C. 312, 25 C.P.C. (3d) 61, 2 R.F.L. (4th) 232, 45 A.C.W.S. (3d) 1101 (C.A.); Teeple v. Teeple, 1999 3127 (ON CA), [1999] O.J. No. 3565, 124 O.A.C. 294, 2 R.F.L. (5th) 464, 91 A.C.W.S. (3d) 288 (C.A.); Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J. No. 94, 119 D.L.R. (4th) 405, 173 N.R. 321, J.E. 94-1704, [1994] R.D.F. 617, 125 Sask. R. 81, 6 R.F.L. (4th) 161, 51 A.C.W.S. (3d) 106 [page358]

Statutes referred to

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17 [as am.], (4.1) [as am.], (7) [as am.], (a), (c), (d)

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99, rule 17(23)

Authorities referred to

Rogerson, Carol, and Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008)

Rogerson, Carol, and Rollie Thompson, The Spousal Support Advisory Guidelines: a New and Improved User's Guide to the Final Version (Ottawa: Department of Justice Canada, 2010)

APPEAL from an order varying a support order.

James N. Eastwood, for applicant.

Jodi R. Fleishman, for respondent.

[1] HEENEY R.S.J.: — This appeal raises the following overarching question: is a former spouse, who chooses to retire at age 51 on a full pension but is still able to work and earn an income, entitled to reduce and ultimately discontinue paying spousal support to his former wife, who is disabled from working and is almost totally dependent on those spousal support payments to provide for her needs?

[2] In the ruling of Abrams J. dated September 11, 2014 [[2014] O.J. No. 4248, 2014 ONSC 5272 (S.C.J.)], regarding a motion to change brought by Edward Hickey (the "respondent"), that question was answered in the affirmative. The appellant, Gaye Princ, appeals that decision, and asks that her support order be reinstated.

[3] The grounds of appeal can be summarized as follows:

(1) the motion judge made a palpable and overriding error in finding that retirement at age 51 was what the parties had agreed to when valuing the respondent's pension for purposes of equalization of their net family property;

(2) the motion judge erred in law in finding that the respondent had proven a material change in circumstances;

(3) the motion judge erred in law in exempting part of the respondent's pension income for support purposes on the basis of "double-dipping";

(4) the motion judge erred in law in arbitrarily fixing a final termination date for all spousal support payments, without considering the objectives mandated by s. 17(7) of the [page359] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and, in particular, the fact that economic self-sufficiency was unattainable by the appellant by reason of her disability.

The Motions to Admit Fresh Evidence

[4] Before reviewing the facts, it is necessary to rule on the motions to admit fresh evidence that were brought by both parties.

[5] The proposed fresh evidence relates to two key aspects of the decision of the motion judge:

(a) the inference drawn that the appellant had not disclosed all her sources of income (see paras. 14(p) and 53 of the reasons for decision, supra (the "reasons")); and

(b) the finding that in the original divorce proceedings the respondent's pension was valued at its highest value of $174,400 on the basis that the respondent would retire at the "earliest date" of age 51 (see paras. 9, 14(d), 34, 43 and 46 of the reasons).

[6] The parties have consented to the admission of most but not all of the fresh evidence. Certain parts of the appellant's affidavit and attached exhibits were contested prior to the appeal hearing and most of the contested evidence was withdrawn on consent. As of the appeal hearing, there was only one document in dispute. That document relates to the pension/ retirement age issue. The disputed document is the supplementary settlement conference brief delivered by the respondent for a settlement conference in 2004.

[7] There is no issue about the test that must be met to introduce fresh evidence on appeal, which is set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, at para. 22, as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial . . . ;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; [and,]

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[8] The dispute about the supplementary settlement conference brief relates not to the satisfaction of the above test, but to the settlement privilege that would ordinarily attach to this document. The respondent relies upon rule 17(23) [of the Family Law Rules, O. Reg. 114/99[page360]], which clearly provides that no brief provided for a settlement conference shall be disclosed to "any other judge", except in circumstances that do not apply here.

[9] The appellant submits that the respondent has waived the settlement privilege protected under rule 17(23) and, in any event, that an exception should be made where the interests of justice require it.

[10] The appellant's authorities on waiver relate to the waiver of settlement privilege generally. They do not address rule 17(23) in particular, a rule that underscores the importance of confidentiality in the context of settlement conferences. Rule 17(23) does incorporate exceptions, which do not apply here. Counsel for the respondent accepts that there could be express waiver of the rule, but there was no express waiver here. The appellant invites us to find implied waiver. However, given the rule's unqualified language and important purpose, we are not prepared to find that it has been impliedly waived.

[11] With respect to the interests of justice, the Court of Appeal confirmed in Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208, [1994] O.J. No. 276 (C.A.), at para. 10, that in a case "where the evidence is necessary to deal fairly with the issues on appeal, and where to decline to admit the evidence could lead to a substantial injustice in the result, . . . the evidence must be admitted". However, this case did not address the question of whether or when it may be appropriate to disregard settlement privilege or rule 17(23).

[12] To show the risk of substantial injustice, the appellant points to statements made by the respondent in the proceedings before the motion judge. In the respondent's sworn affidavit on his motion to change, dated January 22, 2013, he attested that he intended to retire on the first date he was eligible to do so. This was at age 51. He attested that this was "consistent with the intended date of retirement I confirmed prior to, and after, our date of separation".

[13] However, other documents that are being admitted on consent as fresh evidence include contrary statements made at earlier points in time:

(1) in Mr. Hickey's reply in the divorce proceedings, dated November 25, 2002, he stated that he "did not advise [Ms. Princ] that he intended to retire at the earliest possible date" (emphasis added);

(2) in Mr. Hickey's financial statement dated October 11, 2002, the appraised value of his employment pension is given as $133,711, which corresponds to retirement at age 60; [page361]

(3) on November 14, 2003, counsel to Mr. Hickey wrote to the appellant's counsel stating, among other things, that "Mr. Hickey fully maintains an intention to retire at age 60";

(4) in court on April 20, 2009, counsel for Mr. Hickey submitted to Justice Hay that during the initial proceedings the value of the pension was based on a projected retirement date "somewhere towards fifty-five, that was the date we were using for property purposes".

[14] These consent documents already serve the purpose advanced on this motion -- specifically, to put before the court key evidence regarding the respondent's intended retirement age and pension valuation in the original proceedings. Given that the above evidence is already being admitted, we are not persuaded that the interests of justice also require the admission of the disputed supplementary settlement conference brief. We therefore need not decide whether the prohibition in rule 17(23) can or should be circumvented in the interests of justice.

[15] The motion is therefore granted with respect to the consent documents only. Those additional facts will be referenced below as and where relevant.

The Facts

[16] The appellant and respondent were married on October 6, 1984. They separated on December 7, 2001, after 17 years of marriage, and were divorced on February 25, 2004. The parties have no children together, although they did suffer the tragedy of one stillbirth.

[17] The appellant worked sporadically over the course of the marriage: She was employed at a Tupperware headquarters, at an accounts receivable department with Orlando Corporation, and as a model/actress. At the time of the parties' separation, the appellant earned only $1,500 to $2,000 annually. The appellant had to leave many of her jobs due to health issues.

[18] The appellant suffers from fibromyalgia and myalgic encephalomyelitis ("ME"). Her ME causes chronic fatigue syndrome and is described as a debilitating autoimmune disease. The appellant also suffers from various other neurological and cognitive difficulties.

[19] The respondent concedes, at para. 25 of his factum, that the appellant is unable to work due to her disabilities. [page362]

[20] The respondent was a police officer with the Ontario Provincial Police. He asserts that he attained the rank of sergeant during the marriage and staff sergeant after the marriage, while the appellant asserts that he became staff sergeant during the marriage. In any event, at the time of the parties' divorce, the respondent was earning $78,286 per year.

[21] Justice Cunningham granted the parties a divorce on February 25, 2004, pursuant to minutes of settlement bearing the same date. He ordered the respondent to pay spousal support in the amount of $2,000 per month, commencing on March 1, 2004. The award was to be adjusted to reflect the cost of living on each anniversary date thereafter, commencing March 1, 2005. The order provided that either party may apply to vary the quantum of spousal support in the event of a material change in circumstances. It also provided that the parties will review support issues on or after March 1, 2008, to determine whether Ms. Princ maintained an ongoing entitlement to spousal support and, if so, at what quantum.

[22] The property of the parties was also divided, in the following manner: Neither party was entitled to an equalization payment; the respondent was entitled to sole ownership and entitlement to his pension; and the appellant received sole ownership of the former matrimonial home. Division of the remaining assets was dealt with by para. 11(c) of the minutes of settlement (which became para. 9(c) of the divorce judgment). The wording of that paragraph is important, and it is reproduced here:

Each party will retain sole ownership of those RRSP's, savings plans and other assets listed in their respective columns of the Feb. 23rd, 2004 Net Family Property Statement, a copy of which is attached as Schedule "A" (with the caveat that values included for vehicles, the Applicant's O.P.P. Pension, and the parties' pre-marital assets have not been fully agreed to by the parties).

[23] The italicized words represent handwritten additions to a pre-printed document. Where the date of "Feb. 23rd, 2004" is found, a previous date of "July 9th" had been struck out. It should be noted that "the Applicant" refers to Mr. Hickey, the respondent on this appeal, as he was the applicant in the original divorce proceeding as well as on the motion to change that is the subject matter of this appeal.

[24] On December 19, 2008, not long after the review date specified in the divorce judgment, the respondent brought a motion to change, seeking a termination of spousal support as of December 1, 2011. That motion was dismissed on consent by McLean J. on September 24, 2010, and spousal support was [page363] fixed at $2,276.36 per month, effective May 1, 2009, to reflect cost of living adjustments to that point in time. The indexing clause was then amended on consent, by the order of Pedlar J. dated December 7, 2010. With further adjustments, the respondent was paying $2,468.30 per month in spousal support when he commenced the present motion to change in January 2013.

[25] The respondent based his motion on an alleged material change in circumstances related to his upcoming retirement on October 31, 2013. At the time, he was earning a salary $122,707.92 per year as a detachment commander. His retirement was due to come at the end of a 30-year career, entitling the respondent to a full unreduced pension of $74,477 per year.

[26] The appellant's income, as disclosed at the motion to change, was $35,140.44 per year, consisting of $5,520 in rental income and $29,620.44 in spousal support. Given her disability, she had no employment income.

[27] In his reasons, the motion judge devoted a great deal of attention to the manner in which the respondent's pension had been equalized in the property settlement with the appellant. He made the following express finding, at para. 14(d) of the reasons:

The Applicant's pension was equalized at its highest value based on the Applicant retiring on the earliest possible date that he could retire, with a full unreduced pension, that date being October 31, 2013.

[28] At para. 43, the motion judge tied this finding into his analysis as to whether the respondent was entitled to vary spousal support:

There is no evidence before the court that the Applicant's decision to retire was for the purpose of frustrating the support order. Rather, the Applicant retired exactly when he indicated that he likely would in 2004, when the parties resolved matters on consent before Cunningham J. As a result, the Respondent retained the benefit of the highest value calculated for the Applicant's pension. With reference to Gemmell, it is equally ironic that the Respondent now complains that the Applicant retired on the very date that earlier worked in her favour when finalizing the issues related to the equalization of net family property.

[29] The motion judge concluded there had been a material change in circumstances, based on the respondent's retirement.

[30] In assessing the appropriate quantum for spousal support, the motion judge noted that, despite the appellant's income of $35,140.44 per year, she claimed $78,852 in annual expenses. At para. 14(l) he stated, "[a]part from certain notions contained in the [appellant's] financial statement, no evidence was put before the court in this motion to substantiate the unspecified sums of money allegedly deposited by her mother . . . to assist [page364] with her living expenses". This, coupled with the late disclosure of a property purchased by the appellant in the U.S., led the motion judge to conclude that the appellant was not disclosing all of her sources of income.

[31] As to the respondent, the motion judge found that $26,517 per year of the respondent's pension income had been equalized in the property settlement, and declined to include that sum in quantifying the spousal support to be paid under the variation order he was making.

[32] The motion judge ordered that spousal support be reduced from $2,468.30 to $1,050 per month, retroactive to November 1, 2013. That figure was at the high end of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) ("SSAGs"), based on the respondent's unequalized pension income of $49,960 per year, and imputed income of the appellant of $14,400 per year. The imputation of income to the appellant will be discussed more fully below when I address the issue of "double-dipping". It is worth noting that the retroactive nature of the order put the appellant in a position where she had been overpaid approximately $15,600 in support, which resulted in the complete cessation of all spousal support for the next 15 months.

[33] The motion judge then moved to consider whether a fixed termination date for spousal support should be imposed. In so doing, he made reference to the appellant's disabilities. He found that they did not prevent her from earning an income: to the contrary, she had already purchased an income earning property in addition to other property in the U.S. In all the circumstances of the case, he concluded that "illness does not equate to a never ending support entitlement".

[34] The motion judge noted that the particularly acrimonious nature of the litigation between the parties called out for finality. He concluded that a further eight years of support meets the "objectives" set out in s. 17(7) of the Act, and accordingly ordered that spousal support shall terminate on October 31, 2021.

Standard of Review

[35] The Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 established that pure questions of law are to be reviewed on a correctness standard. Questions of fact are entitled to a high level of deference, requiring that a palpable and overriding error be demonstrated. Questions of mixed fact and law fall on a spectrum: if the questions of fact and law cannot be separated, the "palpable and overriding error" standard applies unless it is clear that the trial judge [page365] made some error of law or principle that can be identified independently, but correctness applies if the question of law is extricable.

[36] In the support context, the appropriate standard of review is set out in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9. Appellate courts must give considerable deference to the findings of trial judges, and should only intervene if there is a "material error, serious misapprehension of the evidence, or an error in law", and not simply because it would have weighed factors differently.

Issue #1: Did the motion judge err in finding that retirement at age 51 was what the parties had agreed to when valuing the respondent's pension?

[37] The finding that the parties had agreed that the respondent would retire at age 51 played an important role in the motion judge's decision. Indeed, it is referenced at five different places in the reasons: paras. 9, 14(d), 34, 43 and 46. It relates to the reasonableness of the respondent's decision to retire at such a young age. The reasoning is this: the appellant cannot be heard to complain that the respondent retired at age 51 when, at the same time, she reaped the benefit of an equalization payment flowing from a pension valuation based on at that same retirement age of 51. That reasoning was reflected in Gemmell v. Gemmell, [1999] O.J. No. 1268, 47 R.F.L. (4th) 149 (Gen. Div.), which was referenced, in para. 43 of the reasons, as quoted above.

[38] However, that factual finding flies in the face of the express words of the parties themselves, as handwritten in the minutes of settlement: "values included for . . . the Applicant's O.P.P. Pension . . . have not been fully agreed to by the parties". The parties did agree on a division of property but they did not agree on a valuation of the respondent's pension, and therefore they did not agree on a projected retirement date.

[39] The fresh evidence that is admitted on consent makes it clear that the respondent, in the original divorce proceedings, consistently resisted a valuation based on his earliest date of eligibility, and denied he had always intended to retire at the earliest possible opportunity. Instead, his pleadings advocated a valuation based on retirement at age 60. His own lawyer advised the court, five years after the divorce, that settlement had been based on "somewhere towards 55".

[40] There is a net family property statement that has been attached as Schedule "A" to the divorce order, as issued and entered, and it does show a value of the respondent's pension at [page366] a figure of $174,400, which corresponds to an age 51 valuation. That value is essentially irrelevant, given the wording of the minutes. Those words make it clear that the NFP statement was attached in order to list the property that each party was entitled to receive, while disavowing agreement on the values attached to specific items on that list, including the respondent's pension.

[41] However, it has now become clear that the NFP statement attached to the divorce order is not the same one that was referenced in the minutes of settlement.

[42] The minutes clearly identified the NFP statement that was to be attached as Schedule "A" by reference to its date: "Feb. 23rd, 2004". That date was handwritten into the minutes, while deleting the pre-printed date of July 9, so the parties clearly turned their minds to the date that was on the document they were referencing. Significantly, though, the NFP statement that was later attached by counsel to the divorce order is undated. That statement had been prepared on behalf of the appellant.

[43] There is, however, an NFP statement that meets the description in the minutes. It is found at Tab 44 of the appeal book and compendium. It was prepared on behalf of the respondent, was signed by him, and bears the date of "Feb. 23, 2004". It shows a value for the respondent's pension of $157,318, which corresponds to a retirement age of 55.

[44] We were directed by counsel to no other NFP statements bearing the date of February 23, 2004. The inescapable conclusion is that it is the respondent's NFP statement bearing that date, with an age 55 pension valuation, that the parties referenced in their minutes of settlement. The document later attached to the divorce order by counsel was not the same one that the parties had referred to in their minutes.

[45] It was an innocent enough error on the part of counsel. As I have said, the value of the pension shown in the NFP statement was essentially irrelevant, since the parties expressly stated that they did not agree on that value. The document was attached to list the property that each was entitled to receive, and so long as the list of items was the same in each document, it did not matter what the values were.

[46] However, it apparently mattered a great deal to the motion judge, in that he concluded that the parties had agreed to equalize the respondent's pension at its highest value, based on a retirement age of 51, despite the express words of the minutes of settlement to the contrary. In so doing, he misapprehended the evidence. This was a palpable error, evident on the face of the documentation. It was an overriding error, in that it clearly played a major role in the decision-making process that [page367] led the motion judge to conclude that the respondent was entitled to retire at age 51 despite his ongoing obligation to support his disabled former spouse, and is sufficiently significant to vitiate that finding.

[47] Before leaving this issue, I must make some comment on the finding that the appellant reaped "the benefit of the highest value" for the pension based on retirement at age 51, and therefore cannot complain when the respondent retires and seeks to vary spousal support at that same age. The value of the pension using age 51 is $174,400. The value using age 55 is $157,318. The difference between those two numbers is $17,082. Because a party is entitled to one-half of the difference in the net family properties of each spouse, this would have affected the equalization payment due to the appellant by 50 per cent of that amount, i.e., $8,541, depending upon which retirement date was used.

[48] Spousal support, at $2,000 per month, is $24,000 per year. For the four-year period between age 51 and age 55, that amounts to $96,000. It is illogical to infer that the appellant would have traded off her entitlement to $96,000 in spousal support in order to receive an additional $8,541 by way of her equalization payment.

Issue #2: Did the motion judge err in law in finding that the respondent had proven a material change in circumstances?

[49] A motion to change a spousal support order granted under the Divorce Act is governed by s. 17, the relevant provisions of which are as follows:

17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by eithe or both former spouses;

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [page368]

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former

spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve

economic hardship arising from a change described in

subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

(11) Where a court makes a variation order in respect of a support order or a custody order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.

[50] This mandates a two-step process, as described in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, [1994] S.C.J. No. 94 and P. (L.M.) v. S. (L.), 2011 SCC 64, [2011] 3 S.C.R. 775, [2011] S.C.J. No. 64. First, the court must consider whether the conditions for variation exist, i.e., whether there has been a change in the condition, means, needs or other circumstances of either former spouse since the order was made. The change must be "material", meaning that it must be a change that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The onus of proving a material change is on the party seeking variation. Once the court decides that the threshold for [page369] variation has been met, the court must decide on the variation to be made in view of the change, based on the objectives set out in s. 17(7) of the Act.

[51] The respondent argued at the motion that his retirement at age 51 constituted a material change in his income that was unforeseeable, thereby entitling him to vary spousal support downward.

[52] Given that the respondent had submitted in his motion to change that he had said he planned to retire at age 51 at the time of the divorce order, the appellant argued the respondent should be taken to have accepted that retirement at age 51 was foreseeable at that time. Thus, retirement at age 51 could not be relied upon as a basis for variation. The motion judge dealt with that argument, at paras. 41and 42. Note once again that references to "the Respondent" mean Ms. Princ:

Not to be critical, but the Respondent is confusing the differing concepts of "foreseeable" and "foreseen". As Professor Thompson said: It is "foreseeable" that most of us will retire. If "foreseeability" is the test for variation, then the payor's [the applicant's] retirement would not be a material change. But, that is not the test: the test is whether the retirement was "foreseen", i.e. taken previously into account, in the previous order.

If the Respondent's position reflected the prevailing view in the law, no payor could ever seek a variation of his or her spousal support obligation based on retirement, as most of us will retire someday, unless retirement was specifically enumerated as a triggering event in the final order. Whether or not there has been a material change is a factual finding to be determined by the court, based on the evidence. That is why, in my view, courts have routinely permitted variations of spousal support orders if a payor retires, even when the payor's retirement was "foreseeable" at the time of the previous order.

[53] It is incongruous that the motion judge found that retirement at age 51 was not foreseeable for purposes of spousal support, yet it was foreseeable in equalizing the respondent's pension, and was taken into account in arriving at the appropriate value. It seems to me that a specified event cannot be both foreseeable and unforeseeable at the same time. To use the word chosen by Sopinka J., at para. 21 of Willick, this would mean that this event was both "known" and unknown.

[54] If it was foreseen that the respondent would retire at age 51, and the parties did not put any provision in the minutes of settlement giving the respondent the right to vary spousal support when that occurred, that does not necessarily mean that it was not "taken into account". One could instead infer that the absence of an automatic review at the foreseen retirement age of 51 meant that the parties intended spousal support to continue at the prescribed amount thereafter. [page370]

[55] The motion judge placed great emphasis on the fact that there was no evidence that the respondent's decision to retire was for the purpose of frustrating the support order. At para. 33 of his decision, the motion judge said this:

Courts routinely permit variations of spousal support orders if a payor retires. Courts should not look past a payor's decision to retire unless its purpose is to frustrate a support order.

[56] The citations for that proposition referred to in the motion judge's footnote to that statement were Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, [2001] S.C.J. No. 45, para. 61; and Lemoine v. Lemoine, 1997 9522 (NB CA), [1997] N.B.J. No. 31, 185 N.B.R. (2d) 173 (C.A.), para. 10.

[57] With respect, para. 61 of Boston does not say that at all. It reads as follows:

The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or its breakdown. There is no reason per se that spousal support cannot continue past the date of retirement of the pension-holding spouse. However, several factors must be considered in making that decision. On retirement, the pension-holding spouse may apply to vary the support order if his ability to pay support is compromised (see Linton, supra, at p. 31, and Rivers, supra, at para. 17). The decision of whether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstances pursuant to s. 37(2) of the Family Law Act.

[58] Far from supporting the proposition that a support order should be routinely varied when a payor retires, Boston instead holds that there is no reason why a spousal support order cannot continue past the date of retirement. The pension-holder is entitled to vary only if he is able to demonstrate that his ability to pay support is compromised and therefore a material change in circumstances has occurred.

[59] Evidence that a payor voluntarily retired in order to frustrate a support order is clearly an important fact militating against a finding of a material change. In such a case, it would be open to the court to impute income to the payor up to an amount he would have earned if he had not retired: Teeple v. Teeple, 1999 3127 (ON CA), [1999] O.J. No. 3565, 124 O.A.C. 294 (C.A.).

[60] However, it does not follow that the absence of such evidence means that the dependent spouse, and the court, must accept voluntary retirement as giving rise to an automatic right to vary the support order to an amount commensurate with the payor's pension income. As Boston noted, the issue is whether "his ability to pay" has been compromised. The payor's ability to pay is not necessarily restricted to his pension income alone, and may include his capacity to earn income, either from the job he [page371] has chosen to leave or from other employment following retirement. This is consistent with s. 17(4.1) of the Act, which requires the court to determine whether "a change in the condition, means, needs or other circumstances of either former spouse" has occurred, before making a variation.

[61] In Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, [2006] S.C.J. No. 25, at para. 29, Binnie J., speaking for the court, adopted the following definition of "means":

In Strang v. Strang, 1992 55 (SCC), [1992] 2 S.C.R. 112, the Court stated that the traditional understanding of the word "means" includes, "all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits" (p. 119). J. Payne and M. Payne elaborate as follows:

The word means includes all pecuniary resources, capital assets, income from employment or earning capacity, and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person.

(Canadian Family Law (2001), at p. 195)

[62] "Means", therefore, includes both actual income as well as income-earning capacity.

[63] In considering the condition, means, needs and other circumstances of the spouses, it is highly significant that the respondent is only 51 years of age. The respondent admitted, in para. 29 of his affidavit sworn November 26, 2013, that while he has health issues that were relevant to his decision to retire from the stressful position of staff sergeant-detachment commander, they did not force him to retire, nor do they prevent him from being able to work elsewhere. At the same time, the wife suffers from health problems that the respondent concedes render her unable to work to support herself, such that she is substantially if not totally dependent upon the respondent for her support.

[64] In our view, the "means" of the respondent to pay support is not restricted to his pension income, since he is fully capable of earning income from some other source, and is of an age where it is reasonable for him to continue earning employment income. His capacity to earn income from some other source should have been considered by the motion judge in determining whether a material change in circumstances had occurred. As Pomerance J., speaking for the court in Cossette v. Cossette, [2015] O.J. No. 2073, 2015 ONSC 2678 (Div. Ct.), said, at para. 13:

Parties cannot sidestep support obligations by unilaterally deciding to leave the workforce. As stated in Bullock v Bullock 2004 16949 at para 13: [page372] "A support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations".

[65] Pomerance J. made those comments after considering Powell v. Levesque, [2014] B.C.J. No. 129, 2014 BCCA 33, which stands for the proposition that a payor should not be held to support obligations that force him or her to continue working despite eligibility for full retirement benefits. Powell relied on an earlier decision of the same court in Ross v. Ross, 1994 1322 (BC CA), [1994] B.C.J. No. 1526, 7 R.F.L. (4th) 146 (C.A.), which similarly held that the law does not require payor spouses to maintain spousal support at a level that forces them to continue to work after becoming eligible for full retirement benefits. Lemoine (supra), which was the other authority relied on by the motion judge, as noted above, also followed Ross.

[66] At para. 12 of Cossette, Pomerance J. commented on Powell in these terms:

There may be reason to doubt its applicability, given its apparent inconsistency with Ontario authorities (see e.g. Hooper v. Hooper, 2002 44963 (ON CA), 2002 CarswellOnt 1821 (Ont.C.A.)).

[67] However, she did not feel the need to rule on the point, since the motion judge specifically found that one of the reasons for Mr. Cossette's retirement was the desire to stop paying spousal support. This distinguished the case from Powell.

[68] In the present case, the motion judge found that there was no evidence that the respondent chose to retire at age 51 in order to avoid paying spousal support. However, that finding is on shaky ground, given that it was largely based on the erroneous finding that the respondent had retired precisely at the age the parties had agreed he would retire when they equalized his pension.

[69] Contrary to the motion judge's finding, there was evidence that the respondent had embarked on a steady campaign to eliminate his spousal support obligations. He brought a motion to vary in 2008, within months of the specified review date, seeking a prospective termination of spousal support. When that was dismissed on September 24, 2010, he was back in court just over two years later in January 2013, asking again that spousal support be terminated, effective October 31, 2013.

[70] The fresh evidence admitted on this appeal makes it clear that the respondent had no intention to retire at age 51 at the time of the separation and, indeed, took the position that he intended to retire at age 60. Given that, his later decision to retire at the earliest possible date, coupled with a motion to vary that was issued nine months prior to that retirement date, [page373] is some evidence that could support an inference that he chose to retire early to frustrate the spousal support order.

[71] However, even accepting the finding that the respondent did not choose to retire in order to avoid paying spousal support, that does not end the matter. It is enough that his decision to retire was a voluntary choice, not one compelled by a mandatory retirement policy or health limitations. He retired at a time when he still had the capacity to continue working as a detachment commander, or be engaged in some other gainful employment. In this regard, it is noteworthy that he said the following, in para. 29 of his affidavit sworn November 26, 2013:

It may be of relevance that I have suffered from some minor physical health issues and stress-related issues. These did not force my retirement in any manner, but were a relevant factor in my decision to proceed with my planned retirement date. I have been diagnosed with sleep apnea, hemochromatosis (an iron disorder), and am being treated for an irregular heartbeat. Again, none of these issues currently prevent me from being able to work; they were however relevant to the need to accept my retirement date.

[72] In Bullock v. Bullock, [2004] O.J. No. 909, [2004] O.T.C. 227 (S.C.J.), Corbett J. dealt with a situation where the payor had retired voluntarily at age 62, but was still able to work and earn an income. Corbett J. made the following observations, at paras. 9 and 10:

Many people dream of retiring "early", although there is not a set age at which people today expect to cease working. Many successful people find that they can afford to stop work before they reach the age of 65. Others continue on well into their seventies and even longer. The legal question for this case, then, is not whether Ronald should retire at age 62, but whether this personal choice should be viewed as a "material change of circumstances" for the purposes of payment of spousal support.

In my view it should not.

[73] He went on to distinguish Boston, and concluded as follows [at paras. 13 and 14]:

There is no suggestion in Boston that the payor spouse had chosen to retire early. There was no argument that the payor spouse had continued earning capacity and that income ought to be imputed to him. In my view, voluntary retirement at age 62 is not a basis for finding a material change in circumstances. A support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and thereby avoid his or her spousal support payment obligations: Moffat v. Moffatt (2003), 2003 64301 (ON SC), 67 O.R. (3d) 239, per G.A. Campbell J.; Ridley v. Ridley, [2000] S.J. No. 606, CarswellSask 598 (at paras. 13-15), per McIntyre J.; Martel v. Martel (2000), 2000 SKQB 227, 6 R.F.L. (5th) 342, 193 Sask. R. 225, 7 W.W.R. 632, per McIntyre J. (at para. 31); Dumalski v. Dumalski, [1999] S.J. No. 435, CarswellSask 422 (at paras. 20 and 21), per Gunn J. To the extent that Scory v. Scory (1999), 1999 12314 (SK CA), 180 Sask. R. 152, 205 W.A.C. 152, 1 R.F.L. (5th) 276 (Sask. C.A.) [page374] reaches a different conclusion, I decline to follow it.

I conclude that Ronald has the capacity to earn more than enough income to warrant continuation of support in accordance with the domestic contract and the consent judgment.

[74] Bullock was approved of by the Divisional Court in Cossette and, in our view, represents the law in Ontario. To the extent that Powell and Lemoine take a different approach in British Columbia and New Brunswick respectively, we decline to follow those cases. In our view, a payor is not entitled to write himself a ticket to a life of idle leisure at the young age of 51, abdicating his spousal support obligations in the process, simply because he has earned the right to a full pension. Such an approach is inconsistent with the provisions of s. 17(4.1) of the Act, which requires the court to satisfy itself that there has been a change in the "means, needs and other circumstances" of one of the former spouses. As already noted, "means" has been defined to include income-earning capacity, and is not restricted to whatever actual pension income the payor chooses to confine himself to.

[75] By his own admission, the respondent was not forced to leave his position as detachment commander for health reasons or for any other reason. His health issues were merely one factor he considered in choosing to retire. He had, therefore, the clear capacity to continue working and earning $122,707.92 per year. Thus, he has failed to prove a material change in circumstances.

[76] Even accepting the fact of his retirement, his pension income is $74,477 per year. His income at the time the divorce order was made was $78,286 per year. That does not constitute a material change. The motion judge did decline to consider $26,517 per year of the respondent's pension income, ruling that that would constitute "double-dipping". I will have more to say about that below. Accepting, though, that his unequalized pension income for support purposes was $49,960 per year, this represents a shortfall from the income he earned on the date of the divorce order of only $28,326. A minimum wage job at $11/hr will generate $22,880 per year in income. Given the management and other job skills he must possess in order to rise to and succeed at the position of detachment commander, he clearly has the capacity to recover that shortfall and more. To borrow the words of Corbett J., it is clear that the respondent "has the capacity to earn more than enough income to warrant continuation of support" in accordance with the order. Accordingly, he has failed to prove a material change in circumstances. [page375]

[77] The analysis thus far has focused solely on his capacity to earn income. However, as already noted, "means" includes much more than that. It includes all pecuniary resources and capital assets. The evidence before the motion judge was that the respondent remarried Ms. Roseanne DiMarco in 2004. Her income is $146,080 annually. Ms. DiMarco owns five properties in her name alone, including the parties' matrimonial home. The respondent showed his spousal interest in the matrimonial home to be one-half of $554,500, even though it was purchased for $610,000 and at the time the motion was heard it was listed for sale at $789,900. The respondent owns a house himself in Gananoque, which he claimed in his financial statement sworn December 11, 2013 to be worth $248,000. That same financial statement showed his debts to be only $4,308. He calculates his net worth to be $587,748.

[78] His financial statement sworn October 11, 2002, filed in the original divorce proceeding, showed total assets of $337,233 and debts of $100,000, for a net worth of $237,233. Thus, his net capital assets increased by $350,515 from the time of the divorce order until the motion to change was heard.

[79] The motion judge did not consider the income-earning capacity of the respondent, nor did he consider the evidence as to his overall wealth in determining whether the respondent had proven that there had been a material change in his condition, means and other circumstances that entitled him to vary the spousal support order. In failing to do so, we are of the view that the motion judge erred in law.

[80] On the record before us, the respondent has wholly failed to prove the threshold condition for variation, i.e., that his "means", as defined above, have changed such that he is unable to pay the support order of $2,468.30 per month.

Issue #3: Did the motion judge err in law in exempting part of the respondent's pension income on the basis of "double-dipping"?

[81] In view of our conclusion that the threshold for variation had not been met, it is not, strictly speaking, necessary to consider the third and fourth issues, since they relate to the quantification and duration of the support order as varied. However, in the event that this goes further, some comment is in order since we do not agree with the motion judge's treatment of either issue.

[82] In Boston, the Supreme Court of Canada pronounced a general rule against "double-dipping". That means that where the recipient spouse has already received the benefit of the [page376] equalization of the payor's pension plan, it would generally be inequitable to require the payor to pay spousal support following retirement based on the portion of income from that same pension plan that had already been equalized.

[83] However, Major J., speaking for the court, provided for an exception to this general rule, at para. 65:

Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.

[84] The motion judge summarized these rules, at paras. 38 and 39 of the reasons:

Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and despite this, an economic hardship from the marriage or its breakdown persists.

If the payee spouse receives assets in exchange for a share of the capitalized value of the other spouse's pension and she does not invest those assets in an attempt to produce an income, the court should impute an income to the payee spouse based on what those assets could reasonably produce if invested. This should not be based on artificial assumptions but on professional actuarial advice.

[85] The motion judge then made his ruling on the "double-dipping" issue, at para. 53:

The court finds that, in all of the circumstance of the case, there is no reason to permit "double recovery". Firstly, there is no evidence of the Respondent having made reasonable effort to use the equalized assets in an income producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Secondly, the Respondent has not reasonably or adequately explained, in evidence before the court, how she is able to sustain a lifestyle based on expenses of $78,852 per year, with a shortfall of $43,711.56, year over year. Thirdly, the best evidence before the court demonstrates that the Respondent has, in the years following Cunningham J.'s order, acquired property in her name, in the U.S., which she did not disclose to this court in her financial statement, or at all, until the Applicant filed documentary evidence showing the property to be registered in her name. On this issue the Respondent's credibility was successfully challenged by the Applicant.

[86] As to the second and third points, the fresh evidence admitted on consent is a complete answer. It demonstrates that the appellant does not have undisclosed sources of income. Counsel for the respondent concedes that this was a misapprehension of [page377] the facts, although the motion judge cannot be faulted for the finding he made since he did not have the benefit of the fresh evidence. It demonstrates that the appellant's mother does, indeed, pay many of her bills to help her make ends meet, and is the beneficial owner of the undisclosed Florida timeshares. The Florida property in the appellant's name was purchased for $124,558 entirely from borrowed funds.

[87] That leaves for consideration the first finding of the motion judge, that there was no evidence of the appellant having made reasonable efforts to use the equalized assets in an income producing way.

[88] The motion judge accepted the actuarial report of Michael Kavanagh dated November 26, 2014, which calculated the net worth of the appellant at the date of the original order to be $192,400, the bulk of which was represented by the mortgage-free matrimonial home valued at $150,000, which she received as part of the property settlement. He valued her net worth at February 8, 2013 at $239,499, and again the mortgage-free matrimonial home was the largest asset with a value of $195,000. He calculated that if all of the appellant's assets were liquidated to purchase a non-indexed annuity, it would generate monthly payments of $994.04 per month.

[89] The motion judge concluded that the appellant had not made reasonable efforts to use her equalized assets in an income-producing way, as Mr. Kavanagh had suggested. He proceeded to impute income to her of $1,200 per month, based on the notional annuity income calculated by Mr. Kavanagh, plus the anticipated receipt of a CPP disability pension by the appellant of $312.90 per month.

[90] Where the motion judge erred was in failing to recognize that if the appellant were to sell her house and liquidate the rest of her assets, she would have to rent other accommodation, at considerable additional expense. We were not provided with prevailing rental rates in Gananoque, but it is a reasonable assumption that $994.04 per month would not go very far. The motion judge failed to recognize that retaining the matrimonial home as her principal residence was a form of investment itself, which relieved the appellant from having to rent other accommodation, and which provided the additional benefit of long-term capital appreciation.

[91] Justice Major indicated, at para. 60 of Boston, that the matrimonial home might, in some circumstances, have to be sold and replaced appropriately:

Each case depends on its own facts. Generally, the payee spouse would not be expected to sell or leave the matrimonial home, particularly if there are [page378] dependent children. However, in cases where the support order is based mostly on need as opposed to compensation, different considerations apply. It is not impossible to envisage circumstances where the value of the family home has become disproportionate to the means of the parties so that equity requires that it be sold and replaced appropriately. Such considerations do not arise in this appeal as the support agreement was mainly compensatory.

[92] Spousal support here is, indeed, based on need as opposed to compensation, and there are no children. However, in today's housing market, a house worth $195,000 is a modest home, and cannot be said to be disproportionate to the means of the parties, particularly considering the respondent's net worth as discussed above. It is difficult to imagine that the appellant would be able to sell and replace it with something even more modest, and in the process recover enough equity to make any meaningful difference in her ability to support herself.

[93] It is clear on the record that the appellant did use her equity in the home to raise mortgage funds that were used to purchase an adjacent property. That property generates rent of $5,520 per year, as noted above. She has, therefore, made reasonable efforts to use her assets in an income-producing way, yet economic hardship persists. In a word, if spousal support were to be substantially reduced or discontinued, she would be destitute. It is also abundantly clear that the respondent has the ability to pay.

[94] Furthermore, double recovery should be permitted because spousal support in this case is based primarily on need arising out of the appellant's disability, which Major J. articulated as a separate basis for exemption from the general rule.

[95] Had it been necessary to rule on the matter, we would have found that the motion judge erred in law in his analysis. In our view, this case fits within the exception to the general rule in Boston, and we would have included the equalized portion of the respondent's pension income in determining the quantum of spousal support to be paid, had the threshold for variation been met.

Issue #4: Did the motion judge err in law in fixing a final termination date for all spousal support payments?

[96] The motion judge correctly observed that he had jurisdiction to make a support order payable for a definite or indefinite period. At the outset of his analysis, he sought guidance from the drafters of the SSAGs as to whether a fixed termination date for spousal support was appropriate, where the need for support results from the disability of the recipient spouse. He said this, at para. 68: [page379]

The drafters of the SSAG's recognize that cases requiring the application of the Guidelines to disabled spouses are "hard" cases, but their recommendation is to allow no exception to disability cases.

[97] The footnote to that paragraph refers to the "Spousal Support Advisory Guidelines -- July, 2008". However, in 2010 the authors of the SSAGs issued an updated paper, entitled The Spousal Support Advisory Guidelines: a New and Improved User's Guide to the Final Version (Ottawa: Department of Justice Canada, 2010). In that paper, the authors have removed any reference to their previous recommendation that there be "no exception to disability cases". Instead, the authors state (at pp. 8a-40 and 8a-41) that there "are divergent approaches towards illness and disability" and there is no consistent approach. While it is well established that the SSAGs are a useful reference tool, the motion judge erred in relying on an outdated version.

[98] At para. 66, the motion judge stated that "illness does not equate to aenever-ending' support entitlement". In the footnote to that statement, he cited Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, at para. 61. In that paragraph, McLachlin J. (as she then was), in leaving to the trial judge the determination of the quantum of support to be paid to the disabled spouse, did not exclude the possibility that no further support would be required. However, the case in fact stands for the proposition that marriage may well give rise to an obligation to support a disabled spouse indefinitely. She said this, at para. 48:

To permit the award of support to a spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act. It also may well accord, in my belief, with society's sense of what is just. The Report of the Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (1981), at pp. 111-12, a thoughtful analysis of the rationale and policy considerations of spousal support and illness, states:

Financial provision on divorce is not . . . simply a matter of abstract principle. It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept a system which cut off, say, an elderly or disabled spouse with no more than a three-year allowance after divorce, no matter how wealthy the other party might be.

Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.

[99] In deciding to impose a termination date for spousal support, the motion judge stated, at para. 71, that "[t]he facts of this [page380] case cry out for certainty and finality". In Bracklow, the payor also raised the issue of finality, and asked "when can a former spouse finally move on?"

[100] McLachlin J. provided an answer to that question, at para. 57:

Again the answer is that under the statutes, the desirability of freedom to move on to new relationships is merely one of several objectives that might guide the judge. Since all the objectives must be balanced, it often will not be possible to satisfy one absolutely. The respondent in effect seeks a judicially created "statute of limitations" on marriage. The Court has no power to impose such a limitation, nor should it. It would inject a rigidity into the system that Parliament and the legislatures have rejected. Marriage, while it may not prove to be "till death do us part", is a serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates.

[101] The principle that has emerged since Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107 is that time-limited support will only be awarded in unusual circumstances: Schmuck v. Reynolds-Schmuck, 1999 15000 (ON SC), [1999] O.J. No. 3104, 50 R.F.L. (4th) 429 (S.C.J.), approved of in Foran v. Foran, 2007 11712 (ON SCDC), [2007] O.J. No. 1340, 223 O.A.C. 109 (Div. Ct.).

[102] In determining whether a support order, as varied, should include a termination date, the court is required to consider the objectives set out in s. 17(7). Key among those objectives is s. 17(7)(d): "in so far as practicable promote the economic self-sufficiency of each former spouse within a reasonable period of time".

[103] The motion judge did consider the ability of the appellant to support herself, at para. 74 of the reasons, but once again made reference to the inference that she had undisclosed income, whereby she was able to meet annual expenses of $78,852 on a declared income of $35,140.44. As already noted, the inference that she had undisclosed income is conceded to be a misapprehension of the facts.

[104] The motion judge considered the appellant's documented disabilities, at para. 76 of the reasons, but concluded that "illness does not equate to a never ending support entitlement".

[105] At para. 77, the motion judge made his ruling on this issue:

The court has a broad discretion when determining spousal support orders, based on a wide variety of factors. In exercising its discretion, the court finds that a further eight years of support meets the four spousal support "objectives" set out in s. 17(7) of the Divorce Act.

[106] In our view, this is conclusory reasoning, and lacks any real analysis of the objectives set out in s. 17(7). [page381]

[107] With respect to s. 17(7)(a) and (c), the appellant gained some advantages from the marriage, in that she came out of it with a mortgage-free matrimonial home and a few other modest assets. However, she was clearly disadvantaged as a result of the breakdown of the marriage, in that she lost the benefit of the income stream generated by the respondent's successful career in policing. She continues to be in a situation of economic hardship despite the payment of spousal support. By contrast, the respondent has suffered no economic hardship or disadvantage as a result of the marriage or its breakdown, and is now living a comfortable life with his second wife in a state of relative wealth.

[108] Subsection 17(7)(c) is not relevant, because it relates to child care obligations.

[109] I have already quoted s. 17(7)(d) above. Clearly, self-sufficiency is unattainable by the appellant. While she was able to leverage her equity in the matrimonial home and purchase a rental property, that property generates a mere $5,520 per year in rental income. Without the ability to work and earn income, she has no capacity to become self-supporting.

[110] The Ontario Court of Appeal dealt with a variation case involving a support recipient with a disability in Gray v. Gray (2014), 2014 ONCA 659, 122 O.R. (3d) 337, [2014] O.J. No. 4519 (C.A.). The former wife was unable to work due to leukemia and a suspected heart condition. The appeal was allowed in that the quantum of spousal support was increased. The decision of the motion judge not to impose a time limit on spousal support was upheld. Lauwers J.A., speaking for the court, said this, at para. 49:

The duration of support is also an issue that ought to be contemplated under the SSAG. For a 16 year marriage, with the incomes of these parties, the SSAG suggest support for a duration of 8 to 16 years from the date of separation, subject to variation and possibly review. The motion judge declined to terminate spousal support, and instead granted an indefinite award, subject to review. He noted that Ms. Gray continued to need support, based on her income and precarious health. I agree in this instance, that support ought to be indefinite, until a review occurs as a result of a material change in circumstance.

[111] Those comments apply equally here. The appellant remains disabled and unable to support herself, and there is no prospect that her situation will change in the future. She continues to need support. Support ought to be indefinite.

[112] Had it been necessary to rule on the matter, we would have concluded that the motion judge erred in law in failing to conduct a thorough analysis of the factors set out in s. 17(7), and in concluding that this was an appropriate case to impose a termination date on the payment of spousal support. [page382]

Conclusion

[113] For the foregoing reasons, the appeal is allowed and the decision below is set aside. The motion to change brought by the respondent is dismissed. The spousal support order of Cunningham J. dated February 25, 2004, as varied by the orders of McLean J. dated September 24, 2010 and Pedlar J. dated December 7, 2010, is reinstated effective November 1, 2013.

[114] We encourage counsel to resolve the issue of costs, both here and below. If they are unable to do so, we will accept brief written submissions on costs from counsel for the appellant within 30 days, with responding submissions from counsel for the respondent within 15 days thereafter, and any reply within ten days thereafter.

Appeal allowed.

End of Document