COURT FILE NO.: FS-05-4305-02 DATE: 2012-04-19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Vicki Samson, Applicant
- and -
Robert Metail, Respondent
Counsel: Danalyn MacKinnon for the Applicant Mark Van Walleghem, for the Respondent
HEARD: April 4, 2012 at Kenora, Ontario BEFORE: Justice E. W. Stach
Reasons on Motions to Change
[1] The parties are former spouses. In their current motions, each of them seeks to change the existing order for spousal support. Robert Metail seeks an order terminating spousal support as at January 1, 2011. Vicki Samson, in a cross-motion, seeks an increase in spousal support.
Background
[2] The parties separated in 1991 after approximately 16 ½ years of marriage. It was a traditional marriage. Vicki Samson stayed at home and was the primary care-giver for their two children. Robert Metail began working at the local paper mill at a very young age and continued to be employed there. When the issue of spousal support came on for determination before Kinsman J. in 1993, Vicki Samson was then 38 years of age and in the process of completing a course that would provide employment for her as a teachers’ aide. Robert Metail, then age 44, continued to be employed at the mill. He had a monthly income of $5, 156.00. In reasons for judgment dated September 20, 1993, Kinsman J. applied the decision of the Supreme Court of Canada in Moge v. Moge (1992) 1992 CanLII 25 (SCC), 43 R.F.L. (3rd) 345(S.C.C.). He noted the following:
“Moge rejects the strict “needs” and “means” approach as no longer representing the exclusive criterion for support, and proposes one based on compensation for a wide range of “economic disadvantages” arising from the marriage or its breakdown. It calls for an equitable sharing of the “economic consequences” of the breakdown.”
[3] In the expectation that Vicki Samson would become employed as a teachers’ aide Kinsman J. made a transitional order for spousal support in the sum of $750.00 per month, to be reduced to $500.00 per month when Vicki Samson reached an annual income of not less than $25,000.00 per year. This award of spousal support was indeterminate. It included no order for the indexing of spousal support.
[4] From 1994 to the present Robert Metail has been paying spousal support in the sum of $500.00 per month.
Proceedings before Justice P. Jarvis
[5] In 2005 the paper mill which employed Robert Metail, and many others, for so many years shut down. Robert Metail agreed to accept a severance payment from the mill, and he chose to begin taking his pension benefits. He had, in the interim, remarried and he also elected to accept a reduction in his pension benefit of $551.73 per month in order that his current wife receive a right-of-survival in his pension benefits. Taking this reduction into account, Robert Metail began receiving pension benefits of $3,232.37 per month (for his lifetime).
[6] In August 2006 Robert Metail brought an application to vary his spousal support obligations to Vicki Samson. The application came on before Jarvis J. in 2006.
[7] In reasons orally given by Jarvis J. on August 8, 2006, the application to vary brought by Robert Metail was dismissed with costs. In his oral reasons, Jarvis J.:
- noted that Robert Metail had failed to establish that Vicki Samson had released her claim to his pension;
- refers briefly to the reasons of Kinsman J. in 1993 as having adopted the principle of an equitable sharing of the economic consequences of the marriage’s breakdown and his corresponding comment that “this approach should be adopted both on an initial application for support, as well on a variation of such support”;
- noted that, although it was common ground that the current spouse of Robert Metail was employed, Robert Metail had failed to disclose his wife’s current income.
[8] Jarvis J. concluded that, in his 2006 application to vary, Robert Metail had failed to discharge the onus upon him.
The issues raised by the parties in their motions to change
[9] On the return of the motion before me, I elected to permit viva voce testimony from Robert Metail and Vicki Samson.
[10] The position of Robert Metail in this motion is premised upon his testimony and the corresponding submissions of counsel that:
- in the period since 2006, Robert Metail found it necessary to take on another job (earning approximately $500.00 per month) and that he held it until February 2012 when his employer ceased operations;
- now 62 years of age, Robert Metail says that ‘cracking in his knees’ prevents him from seeking other employment;
- in the years since 2006, he found it necessary to encroach on his capital in order to pay off an ever-increasing level of debt;
- relative to him, the income and net worth of Vicki Samson has improved markedly while his position has and continues to deteriorate.
[11] The thrust of Vicki Samson’s position on Mr. Metail’s motion to terminate spousal support, and the target of cross-examination on his testimony is the proposition that there is no significant change in the circumstances of Robert Metail since 2006 and that, in short, he fails to meet the threshold onus upon him.
[12] In support of her assertion that the court should now increase the spousal support from $500.00 per month to $765.78 per month, counsel for Vicki Samson stresses the following propositions:
- the loss in “buying power” of $500.00 per month since the 1993 order of Kinsman J., having regard for the significant increases in the cost of living since that time;
- the invidious comparisons made by Robert Metail as to the respective wealth of the parties since 2006 fails to recognize the contributions toward household expenses of Mr. Metail by his continuously employed wife over that time frame;
- if comparisons are to be made, the combined household income of Robert Metail and his spouse are the only proper comparison to the annual income of Vicki Samson;
- that in comparing the respective incomes of Robert Metail and Vicki Samson in the years leading up to the variation application heard by Jarvis J., it is apparent that the economic consequences of the breakdown of the marriage continues to weigh heavily against her and that the principle of equitable sharing of those consequences needs to be continued into the future;
- Vicki Samson has health concerns that produce considerable uncertainty respecting her ability to earn income in the future.
Discussion
[13] The leading authority[^1] makes it plain that an application for variation of an existing order made under the Divorce Act is neither an appeal of the original order, nor a de novo hearing. Any party to the order who seeks its variation must first establish that there has been a change in the conditions, means, needs, or other circumstances of either former spouse since the making of the spousal support order. Moreover, the change must be “material” in the sense that, if known at the time the prior order was made, it would likely have resulted in different terms.
[14] The correct approach to variation application requires appropriate deference of the terms of the existing order. The onus is on the party seeking a variation to establish a material change in circumstances as the first order of business before a court can consider what, if any, variation is appropriate in light of the change.
[15] The most current financial statements filed show that Robert Metail has an income of $5,037.00 per month from all sources[^2]. The most recent financial statement for Vicki Samson shows income in 2011 of $3,327.00 per month from all sources.
[16] Robert Metail is now 62 years old. Neither his testimony nor the material filed in support persuades me that his employment since 2006 was born of economic necessity. Nor, in the absence of medical opinion to support it, am I persuaded that his continuing ability to earn additional income, if desired, is permanently impaired. Certainly the heart murmur, diagnosed some five or six years ago has not impeded his ability to work up to and including February 2012. Moreover, he attributes his cessation of work, not to health issues, but to the fact that his then employer ceased operations.
[17] Nor am I persuaded that there has been any significant depletion of his capital or net worth or a realistic spectre of his being buried in debt. His financial statement in 2006, for example, shows debts of $194,000.00 and a net worth of approximately $51,000.00. By comparison his financial statement dated March 1, 2012, shows debts outstanding of $35,000.00 and a net worth of approximately $156,000.00. Moreover, his financial statement shows him as paying all of the household and other expenses without contribution from his employed spouse. While, in assessing the position of Robert Metail, I do not accept the position argued for by his adversary that I should look at the total combined income of Robert Metail and his current spouse, it is realistic to expect that she makes some contribution to their household and daily expenses. As to the duration of support, I am not persuaded, in the light of Vicki Samson’s continuing economic disadvantage, that support should be limited to 16 years as proposed by counsel.
[18] The testimony and material filed on behalf of Robert Metail failed to satisfy me that he has met the threshold burden on his application to vary.
[19] In response to a question put to her from the bench, counsel for Vicki Samson conceded in submissions that it may be equally difficult for Vicki Samson to meet the threshold onus respecting her request for upward variation. Indeed, the material persuades me that she has made some steps forward and has indeed experienced improvement in her relative position, albeit much less dramatic than urged by Mr. Metail. In my view the uncertainty that she projects about her employment future is speculative.
[20] For these reasons, I would dismiss both the application to vary of Robert Metail and that of Vicki Samson. In view of the lack of success of each of them, I am inclined to direct that each bare their own costs in respect of the motions before the court.
Justice E. W. Stach
Released: April 19, 2012
COURT FILE NO.: FS-05-4305-02 DATE: 2012-04-19
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Vicki Samson, Applicant
- and –
Robert Metail, Respondent
REASONS ON MOTIONS TO CHANGE
Stach, J.
Released: April 19, 2012
/sf
[^1]: L.M.P. v. L.S. (unreported) released on December 21, 2011 (S.C.C.) [^2]: since February of 2012 that employer has ceased operation and Robert Metail’s monthly income may effectively now be reduced between $500.00 and $1000.00 per month