COURT FILE NO.: 188/87

DATE: 2012/05/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHLEEN MARGARET HOWE

Applicant

• and -

TIMOTHY HOWE

Respondent

Mark F. Dedinsky, for the Applicant

James D. Almas, for the Respondent

HEARD: February 2, 3 & 6, 2012

The Honourable Madam Justice W.L. MacPherson

[1] The Applicant, Kathleen Howe (referred to as “the wife”), is seeking spousal support from the Respondent, Timothy Howe (referred to as “the husband”), following a 13½ year marriage which ended in 1987. The Application was commenced in June 2011, more than 24 years after the parties had separated.

[2] The main issue to be decided is whether the Applicant is entitled to spousal support after such a lengthy delay. However, before dealing with that issue, there are some procedural issues that must first be determined.

Chronology Relevant to Procedural Issues

[3] The chronology of events that preceded this Application is critical to an understanding of the procedural issues to be determined:

a) The parties were married on October 26, 1973. They separated on January 13, 1987.

b) There were two children born of the marriage, Elizabeth Jodi Ann, born […], 1975 and Erin Leigh, born […], 1977.

c) A Separation Agreement dated April 24, 1987 (referred to as “the Separation Agreement”) was entered into which provided the wife with custody of the two children subject to liberal and reasonable access to the husband. Paragraph 3 of the Separation Agreement required the husband to pay support of $250.00 per week apportioned as $50.00 per week for spousal support and $100.00 per child per week with a commencement date of January 30, 1987. The Separation Agreement also provided for the husband to transfer the matrimonial home and contents to the wife.

d) This Agreement was filed with the Provincial Court (Family Division) on July 14, 1987 pursuant to (former) section 35 of the Family Law Act.

e) In September 1987, the husband commenced an Application in the District Court seeking to set aside the Agreement. This proceeding was resolved by way of Minutes of Settlement dated July 17, 1988. The settlement terms were that the husband’s obligation to pay child support was reduced to $140.00 per week ($70.00 per child) effective July 1, 1988. There was no reference to spousal support in the Minutes of Settlement. However, a term was included “that all other issues herein had been settled to the mutual satisfaction of the parties and there shall be no further Order.”

f) An Amendment to the Separation Agreement dated October 26, 1988 (referred to as the “Amending Agreement”) was entered into by the parties. In the preamble, after citing the legal proceedings and agreements to date, it stated that the husband’s claim was being dismissed or abandoned. It went on to confirm that the purpose of the amending agreement was to give effect to the Minutes of Settlement, which were attached as an Exhibit, “amending the support and maintenance, effective the first day of July, 1998, and providing for support and maintenance in the sum of $140.00 per week, payable on Friday of each and every week representing $70.00 per week per child, there being no other support or maintenance payable to the wife, and accordingly the Separation Agreement of the 24^th day of April, 1987, paragraph 3 is hereby amended.”

g) This Amending Agreement was filed for enforcement with the Provincial Court (Family Division) on November 3, 1988 pursuant to former section 35 of the Family Law Act.

h) In June 2011, the wife commenced an Application seeking spousal support under the Family Law Act or under the Divorce Act. She did not claim a Divorce.

i) In his Answer, the husband requested a Divorce based on the grounds of separation of more than one year.

Procedural Issues

1. Is this a variation application or an initial application for spousal support?

2. Which legislation applies – the Divorce Act or the Family Law Act?

[4] The husband takes the position that rather than commencing an initial application for spousal support, the wife should have brought a Motion to Change given the prior agreements and resulting court orders. This point was conceded by the wife’s counsel. At the time of commencing the application, her counsel stated that the wife did not have copies of the Separation Agreement, Amending Agreement nor any prior court documents, which would explain the reference to an incorrect date of separation and date of the Separation Agreement as 1990 rather than the actual dates of January 1987 and April 1987 respectively.

[5] I consider this to be an irregularity and not fatal to the claims being advanced. This is an appropriate situation for judicial discretion to be exercised and the application of the curative provisions of Rule 1(8) to permit the variation application to proceed although it was not framed as such in the pleadings.

[6] The next issue is whether this is a variation application under the Family Law Act or under the Divorce Act. The wife’s counsel submits that it did not matter which legislation applies as there is no real difference as in both cases the onus is on the wife to show that there has been a material change in circumstances and she must also provide a satisfactory explanation as to the reason for the delay in proceeding with this request for spousal support.

[7] The husband’s counsel contends that there are significant differences between the two acts and that although a material change in circumstances must be shown under both, based on the case law that has developed over the years, different standards would apply. It is submitted that as the wife sought support under the Divorce Act in her Application and as the husband sought a divorce in his Answer, based on section 36 of the Family Law Act which provides for an automatic stay of proceedings once a Divorce claim has been commenced, this is a variation application under section 17 of the Divorce Act.

The Law and Analysis re: Procedural Issues

[8] As the procedural issues were raised only at the conclusion of the evidence, in my preliminary comments to counsel, I had indicated that I was inclined to accept the husband’s position as this appeared to be the more reasonable one. However, after a more careful review of the documents and the applicable legislation, I have determined that I will adjudicate this as a variation under the Family Law Act.

[9] The applicable legislation is set out in section 35 and section 36 of the Family Law Act (R.S.O. 1990, c. F.3, as am) with the relevant provisions being as follows:

Section 35

(1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice of the Family Court or the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court....

(2) A provision for support or maintenance contained in the contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37;

(c) except in the case of a provision for the support of a child, may be increased under section 38; and

(d) in the case of a provision for the support of a child, may be recalculated under section 39.1.

(3) Subsection 33 (4) (setting aside in unconscionable circumstances, etc.) applies to a contract that is filed in this manner.

(4) Subsection (1) and clause 2(a) apply despite an agreement to the contrary....

Section 36

(1) When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise.

(2) The court that deals with a divorce proceeding under the Divorce Act (Canada) may determine the amount of arrears owing under an order for support made under this Part and make an order respecting that amount at the same time as it makes an order under the Divorce Act (Canada).

(3) If a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.

[10] The real purpose of section 36 is to avoid a multiplicity of proceedings either in two different courts (Ontario Court of Justice and Ontario Superior Court of Justice) or by necessitating separate proceedings to be brought when dealing with the same substantive issues between the parties.

[11] While it is clear that the federal Divorce legislation is paramount to the provincial Family Law Act, the effect of section 36 is not simply that once a divorce proceeding has been commenced the provincial legislation can never be used to determine the issue of support. Rather, as noted by Herman J. in Abernathy v. Peacock, 2009 25128 (ON SC), [2009] O.J. No. 2066 (Sup Ct) in quoting an annotation by James G. McLeod in Huarzek v. Fairfield, [2004] O.J. No. 798 (Sup. Ct):

...the former “occupied fields” theory of paramountcy had been replaced by a test of “operational incompatibility”. A court can apply provincial legislation even if there is federal legislation in the field as long as applying the provincial legislation is not operationally incompatible with the federal legislation. Thus if there is a support order under the Family Law Act and no support order under the Divorce Act, there is no operational incompatibility.

[12] It is within the discretion of the court to not grant a stay if it is more expeditious to deal with the issue under the provincial legislation. In this case, there is no incompatibility between granting a divorce under the Divorce Act and permitting the wife to proceed with a variation of support under the Family Law Act. On the evidence before me, the husband is entitled to a Divorce order on the grounds of separation. But that does not preclude the court from making a determination under the Family Law Act as to whether the Amendment to Separation Agreement (which provided for no spousal support) should now be varied to require the husband to commence paying spousal support as of June 2011 being the date of the wife’s application.

Additional Facts re: Substantive Claim

Circumstances of the Parties (During the Marriage, At Separation and Currently)

[13] The parties were married on October 23, 1973. The wife was 20 years of age (date of birth January 13, 1953) and had a Grade 12 education. The husband was 21 years of age (date of birth October 7, 1952) and had a high school education.

[14] The wife was employed in the banking industry during the marriage. She first worked in 1976 when the oldest child, Jodi, was six months of age. She continued to work after the birth of the second child, Erin, returning after a six week maternity leave. A letter from Toronto Dominion Bank (“TD Bank”) was provided on the final day of trial which confirmed that the wife had been employed by TD Bank from May 31, 1985 until February 21, 1997. However, the wife testified that between 1976 and 1985 she had been employed with predecessor institutions to the TD Bank such as Guarantee Trust and Canada Trust. While some of this employment was part-time, much of it was also full-time as the wife advanced from being a teller to a supervisor of other tellers.

[15] At the time of separation in January 1987 the wife was 34 years of age. She was employed on a full-time basis at TD Bank earning an income of approximately $18,000.00 per year. In 1997, the wife received a severance package in the amount of $23,000.00 and left the bank. Since then, the wife has been unemployed for various periods of time. She has found temporary employment at other financial institutions (Bank of Nova Scotia and a Credit Union), at Call Centres and other clerical/retail positions. The income has usually been minimum wage. The wife has also been in receipt of Ontario Works at various times over the years.

[16] Based on the Summary of Income compiled by the wife’s solicitor, the wife’s income from 2001 to 2010 has been as follows:

2001 $18,132

2002 $15,237

2003 $ 9,150

2004 $14,306

2005 $17,626

2006 $17,597

2007 $18,930

2008 $18,459

2009 $ 7,555

2010 $11,631

[17] At the time of trial, the wife was in receipt of Ontario Works in the amount of $450.00 per month. It was evident from the Payment Summary that the wife has been in receipt of Ontario Works at various times since August 2000, sometimes for only a few months, but more recently and since January 2011, she has regularly been receiving Public Assistance, which amount is reduced when she does find employment.

[18] The husband was employed throughout the marriage at General Motors. At the time of separation, the husband earned approximately $38,000.00 per year. The husband’s income varied from year to year, with the highest level of income being approximately $60,000.00. Since retiring in 2006, he has received an annual pension income of approximately $45,000.00.

Asset Division and Current Financial Position

[19] As a term of the Separation Agreement, the husband transferred his interest in the matrimonial home and contents to the wife. It was confirmed by the wife that the matrimonial home located at 39 Millward Street, St. Catharines had a value of approximately $100,000.00 and she received approximately $30,000.00 in equity. When asked about its sale less than two years later, she did not disagree with the suggestion that the value had increased by about $25,000.00, leaving her with equity of $55,000.00 to purchase her next home on Ted Street. She stated that she did not lose this house for non-payment of bills, but due to a second car accident she had to pay $5,000.00 cash for damages to a vehicle rather than put another claim through her insurance company.

[20] The wife subsequently purchased a townhouse on Vine Street which was sold sometime after the Summer of 1993 when the wife moved to Niagara Falls to reside with her boyfriend, Al Giletta. There was conflicting evidence as to the length of this relationship, as the wife’s brother thought it was quite short whereas the wife and Jodi estimated that it lasted almost eight years.

[21] The wife testified that when she received her severance of $23,000.00 from the TD Bank in 1997, she put this money toward an investment property on Carlton Street. However, she stated that all of this money was lost as the property was sold at a loss and she was forced to file for bankruptcy in 1999. She was discharged in May 2003.

[22] The wife is currently residing in subsidized housing. Although no up-to-date Financial Statement was filed by the wife, she testified that she has no savings, no retirement funds and no other assets.

[23] The wife did not dispute the fact that the husband left the marriage with only some personal belongings and an older vehicle. She noted that he retained his pension with General Motors.

[24] The husband confirmed that he is presently in receipt of a General Motors pension. He also confirmed that he had received an incentive package of $85,000.00 upon his retirement from General Motors in 2006 and that $71,000.00 of these funds are invested in Mutual Funds. He currently resides in an apartment on Lowell Avenue in St. Catharines where he has resided for the past 18 years.

[25] Initially, following separation in January 1987, both children remained with their mother.

[26] Under the Separation Agreement, the husband was required to pay child support of $100.00 per child per week together with spousal support of $50.00 per week, with the payments commencing January 30, 1987.

[27] The Amending Agreement reduced the child support payments to $70.00 per child per week effective July 1, 1988. The requirement of paying spousal support was absent from the Amending Agreement.

[28] At the beginning of Grade 10 and by October 1993, the youngest child, Erin, had moved in with her father. Although there was some suggestion by the wife that Erin’s move was necessitated by the wife’s move to Niagara Falls to live with her boyfriend and that Erin wanted to remain in the same school and be with her friends, this was not credible given that Jodi moved with her mother and completed her final year at Holy Cross, travelling each day from Niagara Falls to St. Catharines. In Reply, the wife confirmed that Erin’s move to the father’s home was precipitated by a disagreement between her and Erin. She noted that Erin had a personality such that she was “very set” in her ways. Both Erin and her father testified that Erin was dropped a few blocks from the father’s home along with her belongings in a garbage bags.

[29] As a result of the change in the child’s residence, the parties retained solicitors (Michael Maddalena for the husband and Malte Von Anrep for the wife) in order to adjust the child support. Although the husband had initially proposed that no child support would be paid and each party would provide for the child in their care, this was not acceptable to the wife “in light of the fact that his annual income is at least twice as much of that of his wife”. Following an exchange of correspondence, it was agreed that the support for Erin would end and the husband would continue to pay support of $70.00 per week for Jodi.

[30] It should be noted that Erin was clearly aware of these negotiations as she testified that she attended at the lawyer’s office with her father and that she was upset that her mother continued to have her father’s wages garnished.

Nature of Parties’ Relationship

[31] There was evidence given by various witnesses that at some point in the marriage the relationship between the parties became more volatile in nature.

[32] In her initial evidence when asked if there was physical abuse, the wife’s response was “a little”. She stated that it was mutual, or as she phrased it “back and forth”. She also stated that there were two occasions when she had sustained a black eye.

[33] On one occasion, she had driven back from her brother’s home in a snowstorm on Boxing Day. She did not recall if she was intoxicated as it was a long time ago. Her husband hit her causing her black eye. The husband testified that he had not been drinking, and even though his license had been suspended, he had offered to drive as the wife was very drunk. She drove in an erratic manner with both children in the car and when the car had stopped, he admitted that he had hit her for driving like an idiot and that she did suffer a black eye.

[34] On another occasion, the wife testified that they had been out and while she had been drinking, she was not intoxicated. She had begun doing the dishes and her husband was ranting and raving about something. He came up behind her and when he lunged at her, to prevent an attack, his eye came in contact with the butcher knife that she was holding. The husband testified that this incident occurred in 1986 close to the time of separation. They had been out to a restaurant for dinner and the wife had consumed numerous shots after dinner. After they had returned home, the wife had been insisting that he transfer the matrimonial home to her and as he was refusing to do that, she tried to stab him with a knife. He stated that but for the glasses that he was wearing, he would have been seriously injured as he did sustain a cut above the eye. He stated that it was in self-defence that he struck his wife and she sustained a second black eye.

[35] There were no criminal charges laid nor any medical attention sought by either party following these incidents. The husband confirmed that both of the children were present when the parties engaged in verbal altercations and when he struck their mother causing the black eyes.

[36] The wife’s brother, Thomas Henderson, confirmed that a few times he went to the matrimonial home as his sister would call him because she and her husband were fighting. He did not witness any physical abuse between them, but he did observe his sister to have a black eye.

[37] Erin testified that her parents had many disagreements and that she would often get in the middle of them when they were fighting. She stated emphatically that on occasion she had witnessed her mother hitting her father.

Wife’s Alcohol Consumption During the Marriage and Since Separation

[38] The wife testified that she did not drink at all early on in the marriage. At some point in the marriage, the wife began to drink but she was emphatic that it was never problematic. However, after separation the wife stated that her alcohol consumption increased. The lowest point for her was about three years after separation (in or about 1990) when her self-esteem was at its worst and her alcohol consumption was at its highest.

[39] The wife testified that she is not an alcoholic, although she has had problems with alcohol. She confirmed that she has attended at Alcoholic Anonymous, currently attending one or two times per week and that she finds this helpful. When asked about her alcohol consumption, the wife noted repeatedly that the husband drank much more than she ever did during the marriage. She did indicate that she attended counselling for about two years following the separation and again most recently in June 2011 as she found the court process to be stressful. However, she noted that this has been only on an “as needed basis” and she has not required any counselling since July 2011.

[40] The court heard evidence that the wife attended a residential treatment facility (Homewood in Guelph Ontario) for a thirty day period, but a date was not provided. The wife was involved in two or three drinking and driving accidents as confirmed by the wife’s brother and the two daughters, Jodi and Erin. Once again, specific dates were not provided by the wife. The most serious of these incidents led to a conviction for drinking and driving and a three to four month period of incarceration. As the wife confirmed that she has been without a driver’s license for about 12 years and has never re-applied following the last impaired charge, this would suggest that the incarceration took place in or around 2000.

[41] The husband testified that they both drank during the marriage. He denied that he had a problem with alcohol, despite the fact that he admitted to having had two drinking and driving convictions (which he estimated occurred in 1981 and 1986) as a result of which he lost his driver’s license.

[42] The husband testified that the wife’s drinking became a problem in the last five years of the marriage. He would return from work in the afternoon to find that she had been drinking. She would often hide the alcohol in the house and sneak drinks. He commented that she would drink to the point of intoxication, when she would become belligerent. He stated that he left the marriage because of the wife’s drinking problem.

[43] The court also heard evidence from both of the parties’ children, Jodi and Erin. It was apparent that there is no relationship between the children and their mother at the present time. Of the two children, Erin had a mostly negative view of her mother and was partial to her father’s position in the court proceeding. In contrast, Jodi presented a much more balanced view of her parent’s relationship and a much more impartial view of her mother’s current situation. For example, when asked about the reason for the separation, she stated that both of her parents had their faults. Similarly, she acknowledged that as an adult woman looking at the situation, her father’s infidelity and drinking and driving charges could have had an impact on her mother. She was well aware that from her mother’s perspective that the father’s infidelity was the reason that the marriage ended. She confirmed that her mother drove both children to this other woman’s home looking for their father and that the mother had spoken at length with Jodi about the impact that this had on her.

[44] Jodi testified that her first recollection of her mother drinking was when she was about eight years of age. After that she had no memory of her mother not drinking. She testified that her mother has been a chronic alcoholic for more than 25 years.

[45] Erin testified that her mother has been an alcoholic for most of Erin’s life. She recalled that her mother would drink excessively and was mentally and physically abusive toward the children. She described her relationship with her mother as being “volatile” referencing a fight that took place when she was 15 years of age, ending with her being kicked out of her mother’s home in the Fall of 1993. After that, she had minimal contact with her mother, remaining with her father until she left for college in Toronto.

[46] In contrast, Jodi remained with her mother until she completed high school and she testified that she continued to have a close relationship with her mother until about four years ago. Jodi testified that her mother had explained that she had became an alcoholic overnight, but based on her own recollection of events, Jodi did not think that it happened like that at all.

[47] It was her evidence that when her mother lost her job at TD Bank she had come to Jodi’s apartment to tell her that she had been fired. Later, her mother admitted to her daughter that she had been drinking at work. Jodi recalled this happening when her eldest daughter was about six months old – which would have been in early 1997. The wife denied that her alcohol consumption had ever impacted on her employment. She testified that she left TD Bank due to downsizing at the bank. She stated that it was by mutual agreement as she was provided with a reference letter. There was no documentation provided from this employer as to the circumstances under which this employment ended. However, the wife confirmed that when she did subsequently apply for employment with TD Bank she was not hired by them. She attributed this to the fact that she had made an assignment in bankruptcy in 1999 and that the bank had been a creditor in her bankruptcy.

[48] Jodi was also aware that in or about 2002 her mother had been let go from her employment at a Call Center as she had been caught with alcohol in her water bottle at work. While she had first heard of this from a fellow employee, Jodi testified that her mother had also confirmed that this was the reason that she was let go.

[49] Both children testified that they supported their mother in her efforts to stop drinking. The final straw for Erin came following the incarceration. She had agreed to have her mother come and reside with her in Toronto on the understanding that she would not drink anymore. When the mother called Erin from the bus station to advise that she had arrived, Erin testified that her mother was slurring her words and was obviously drunk. She did not go and pick her up. After continuing on to the St. Catharines bus terminal, the wife was met by Jodi, who confirmed that she was completely intoxicated, with makeup all over her face. As she described it, it was not a pleasant day for anyone.

[50] Following this incident, both children testified that they accompanied their mother to an appointment at her family doctor, Dr. Bell. They recalled that their mother was advised that if she did not stop drinking, she would not live another year.

[51] Jodi also testified that following her incarceration, the mother did not have an apartment to return to. However, she testified that her father allowed her to temporarily reside with him until she could get back on her feet and obtain her own accommodations.

[52] Jodi testified that despite the efforts and warnings, her mother continued to consume alcohol. The final straw for Jodi came about four years ago. Jodi had gone into the hospital for surgery and had requested that her mother look after her two children. She did not request her mother to assist with child care regularly, but she had agreed to do so on that day. When Jodi returned from the hospital, her mother was intoxicated and it was at that point that she realized that for her mother, drinking takes priority over everything else. The last contact that she had with her mother was in the Summer of 2011 when she attended at her home. While Jodi acknowledged that her mother was not “falling down drunk”, she clearly had been drinking.

[53] The wife’s brother, Thomas Henderson, testified that during the marriage, he did not know his sister to drink. He testified that she was a confident and very independent person, who supervised others at work. The brother’s evidence was that following the end of her employment at TD Bank he noted that there were many changes in her self-esteem and even in her appearance. He was also aware of her increased consumption of alcohol and that he supported her by attending at Homewood and giving her money from time to time.

[54] The court also heard testimony from Terri Lunn, a worker with Ontario Works. Ms. Lunn confirmed that in order for the wife to continue to receive Ontario Works benefits, she has entered into a Participation Agreement that requires her to attend Alcoholics Anonymous twice per week and to obtain a suitable sponsor. Ms. Lunn could not advise as to the reason for the Participation Agreement requirements as that was between the wife and her case manager who was not called as a witness. Ms. Lunn confirmed that there is no indication that the wife is not trying to obtain employment or that she is not abiding by the terms of the Participation Agreement.

Theory of the Wife’s Case

[55] On behalf of the wife, her counsel submitted that the wife is entitled to spousal support even though there has been a significant delay in pursuing this relief. He noted that there is no time limit for requesting spousal support. The wife had made some efforts more than 10 years ago to obtain copies of the agreements and court documents but was not successful in doing so. She had repeatedly asked the husband for financial help so he should not be surprised by the request for formal spousal support. Further, given her dire financial circumstances she has been unable to afford to pay for a lawyer, and could not proceed any earlier than she did in June 2011.

[56] It was also submitted that the entitlement arises from the fact that as a result of the husband’s conduct during the marriage, which included two extra-marital affairs; two convictions for drinking and driving offences; and physical abuse, the wife suffered a blow to her self-esteem and sense of self-worth. It was this that caused the wife to become depressed and to consume alcohol on an increasing basis and which now interferes with her ability to obtain and sustain full-time employment.

[57] The wife also relies on the roles assumed during marriage and that she was responsible for the care of the children. She also relies on the disparity in the parties’ financial circumstances over the years and currently.

Theory of the Husband’s Case

[58] The husband’s counsel submitted that based on the terms of the Separation Agreement and Amending Agreement, which dealt with property as well as child support and spousal support, there was a full and final release of all spousal support claims which the husband has relied upon.

[59] The wife’s inability to provide for her own support is rooted in the wife’s addiction to alcohol, which is not the fault of the husband. The wife’s inability to be self-supporting is as a result of the wife’s minimal efforts and not as a result of any economic dependency or financial consequences of their marriage. Although the wife has asked the husband for financial assistance from time to time and has repeatedly threatened to take him to court for more money, her failure to bring a court action within a reasonable time period and without reasonable explanation, should preclude her from being able obtain spousal support more than 24 years later.

The Law and Analysis re: Substantive Claim

[60] The following are the issues to be determined:

1. Has there been a material change in the circumstances of the wife?

2. If so, is she entitled to spousal support?

3. If there is an entitlement to spousal support, is the claim barred due to the long delay in applying for same?

[61] My analysis begins by referencing the applicable legislative framework. As previously indicated, this is an application to vary support provisions under section 37 of the Family Law Act the relevant sections being as follows:

(1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) A dependant or respondent named in the order;

(b) A parent of a dependant referred to in clause (a); or

(c) An agency referred to in subsection 33 (3).

(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may,

(a) Discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) Relieve the respondent from payment of part or all of the arrears or any interest due on them; and

(c) Make any other order under section 34 that the court consider appropriate in the circumstances referred to in section 33.

[62] The relevant provisions of section 33 are as follows:

(1) A court may, on application, order a person to provide support for his or dependants and determine the amount of support.

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if that has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

[63] To determine whether there has been a material change in circumstances, I must start with a review of the circumstances of the parties at the signing of the Separation Agreement. It would appear that when the parties entered into that initial agreement, they dealt with all issues arising from their separation including custody/access, child support, spousal support and property. The wife testified that she was under a lot of stress and was distraught at the time of separation as a result of the husband’s infidelity. In her Reply evidence, she stressed the physically abusive nature of the relationship and stated that the husband “had ruined her” and that she has been suffering as a result of same.

[64] Upon a more careful review of the Separation Agreement and the Affidavit in Support of filing the Domestic Contract (both of which were filed as Exhibits to the Husband’s affidavit filed at trial), it is obvious that the husband’s signature was witnessed by the wife. It is not clear whether he received independent legal advice prior to signing this Agreement in May 1987. The wife was represented by Malte Von Anrep, an experienced family law lawyer who prepared the Separation Agreement. By all appearances, the Separation Agreement was more favourable to the wife than to the husband.

[65] The wife had full custody of the two children and was to receive child support of $866.00 per month together with spousal support of $216.50 per month, both payments being retroactive to two weeks after the separation in January 1987. The wife received all of the equity ($30,000.00) in the matrimonial home, which allowed the wife and children to remain in the home, which they did for the next two years.

[66] At separation, the wife was employed at TD Bank on a full-time basis earning $18,000.00 and the husband was employed at General Motors earning $38,000.00. Although it would be many years until the Spousal Support Advisory Guidelines (“SSAG”) would come into force, it is instructive to review the Divorcemate calculations provided by the husband’s counsel. Based on a 13 year marriage; the husband having an income of $37,000.00 and the wife having an income of $18,000.00; and the wife having custody of two children, under SSAG there would be no spousal support payable and child support would be in the amount of $534.00 per month. This was substantially less than the $1,082.50 per month that the husband had agreed to pay under the Separation Agreement.

[67] Clearly, within a few months of signing the Agreement, the husband had second thoughts about his generosity as evidenced by the application that he brought in September 1987, asking the court to set aside the Separation Agreement. Both parties were represented in the Court action by competent family law counsel (the husband by Garth Roberts and the wife by Malte von Anrep). This proceeding was resolved by Minutes of Settlement under which the husband’s claim was dismissed or abandoned and the parties entered into the Amending Agreement dated October 26, 1988. Two significant amendments were made under the new agreement namely that the child support was reduced to $140 per week ($606.00 per month) and no spousal support was to be paid.

[68] Although the wife’s counsel submitted that the Minutes of Settlement were silent as to spousal support and did not represent a release of spousal support claims, I disagree. One cannot simply look at one document in isolation from the other agreements that had been signed by the parties. When read in context of the preceding Separation Agreement which provided for spousal support to be paid, and the terms of the Amending Agreement which were to give effect to the Minutes of Settlement and stating “there being no other support or maintenance to be payable to the wife”, this reference to spousal support was a release by the wife of her entitlement to spousal support. It was not silent, it provided that no further spousal support was to be paid.

[69] This release falls far short of the detailed releases that are presently standard in domestic contracts and Minutes of Settlement which have become necessary given the development of case law over the past 25 years. However, even with a waiver of spousal support, the court does have jurisdiction to review same in the context of a variation application.

[70] As to the circumstances at the time of execution of the Amending Agreement, there was nothing to suggest that there was a power imbalance as between the parties. If there was any one-sidedness, it likely was at the time of the signing of the Separation Agreement and the imbalance was in favour of the wife. Any distress that she might have been under at separation was more than compensated by having her counsel draft a favourable agreement. By the time of the Court application in September 1987, the imbalance had been rectified as both parties were represented by competent counsel. In fact, the wife was represented by the same counsel who had represented her regarding the Separation Agreement and presumably he would have been well aware of the wife’s financial situation. Although this did result in a release of spousal support, given the division of property and the incomes of the parties, the financial arrangements under the Amending Agreement did not result in any hardship to the wife.

[71] Clearly, if the parties had recently separated after a 13 year marriage and this was an initial application for spousal support, there likely would be spousal support payable. However, as this is a variation application, there is a presumption that the order made when the Amending Agreement was filed for enforcement was a correct and proper order. What must be determined is whether there has been a material change in the circumstances of one or both of the parties since the making of that order that would justify spousal support now being awarded.

[72] There is little doubt that there has been a material change in the financial circumstances of the wife. In contrast to her financial situation when the Amending Agreement was signed, the wife has been employed on a sporadic basis in recent years, with her income in 2010 being $11,600.00 and at the time of the hearing, she was in receipt of Ontario Works. She has no assets other than her personal belongings. Although the husband is no longer employed, he is in a better financial situation than the wife. He has a pension income of $46,000.00 per year and investments of $70,000.00, but he has no other significant assets.

[73] If all that was required was to compare each of the parties’ current financial circumstances the wife’s application would succeed. However, the exercise is not one of looking at the 1988 situation and fast forwarding 24 years to the current circumstances of the parties to support a conclusion that the party in a superior financial position must now pay spousal support. Rather there must first be an entitlement to spousal support based on the factors set out in section 33 (8) and (9) of the Family Law Act. When there has been a delay of 24 years in pursuing a claim for spousal support, there must also be a consideration of the intervening factors as well as the reasons for the delay in pursuing such a claim.

[74] Under section 33 (8) and (9) of the Family Law Act the factors to be considered are set out as well as the purpose of a spousal support order. Although the wife’s counsel submitted that this was a traditional marriage, there was no evidence to support this assertion. I was not provided with any real information as to the roles adopted during this marriage. There was no evidence as to how the wife’s earning capacity was affected by her responsibilities during the marriage, or even which one of the parties assumed responsibility for child care or household tasks. The husband’s undisputed evidence was that both parties worked steady days while the children were young and that caregivers were used. At separation, while there might have been some economic consequences resulting from both children remaining with the wife, no spousal support was claimed after June 1988 and within five years of the date of the Amending Agreement, each of the parents had one child in their care. The husband continued to pay child support for the eldest child, Jodi, who had remained with the wife but after that obligation ended, the husband did not receive any support for Erin.

[75] Further, it should be noted that the wife continued to be employed on a full-time basis with the TD Bank for 10 years after the separation. Since 2001, the wife has had numerous and different employers, but in most of those years she was able to earn $17,000.00 to 18,000.00 per year, the exception being 2003 and the most recent two years. Not surprisingly, over the course of the past 25 years there have been a number of intervening factors.

[76] The court heard a great deal of evidence about the alcohol use of both parties. Although the wife was adamant that her consumption was not a problem during the marriage and that the husband drank much more than she ever did, based on the evidence including that of the adult children, I am satisfied that alcohol use was a serious problem for both of the parties during the marriage and that this contributed to the volatile nature of their relationship.

[77] However, other than three years after the separation, the wife denied that she had a problem with alcohol despite the fact that there were several car accidents, criminal charges leading to a period of incarceration and attendance at Homewood for rehabilitation treatment. She continued with this denial at trial in the face of a Participation Agreement with Ontario Works which required her to obtain a sponsor and to attend Alcoholics Anonymous twice weekly.

[78] The wife was adamant that her alcohol use had never impacted on any employment and specifically that this was not the reason that she had lost her full-time position with TD Bank. No employment records were provided to verify the wife’s recollection of this event. On this issue, I prefer the evidence of Jodi over the wife. Jodi presented her evidence in a balanced manner. I accept the facts to be as the wife confided to her daughter, namely, that she was terminated from the TD Bank and another full-time employment position due to her use of alcohol.

[79] In spite of the wife’s own evidence that she does not have a problem with alcohol, the wife’s counsel submitted that the wife’s drinking problem resulted from her treatment by the husband during the marriage. He relies on the fact that the wife did not drink at the beginning of the marriage, she only began drinking after the husband’s first affair and his drinking and driving charges and so the inference to be drawn, is that it was the husband’s conduct that led to her drinking problem. The first difficulty is that there was no evidence provided such as might have been expected from a family doctor or any counsellors with whom she had been involved, to support that theory. Secondly, the evidence presented did not support that theory. Even the wife’s brother testified that at the end of the marriage, she was still the same confident person that he knew and that it was only after she was let go from TD Bank that he found her to be less independent and confident. This did not occur until 10 years following the separation.

[80] There is no question that the termination from the TD Bank was a significant event. This meant the end of her full-time employment with the bank and she had an obligation to make reasonable efforts to obtain other employment to provide for her own support. It was apparent from a review of the numerous employment positions that she had held and lost, that she has not done this. While I accept that some of the explanations (laid off, call center closed, etc.) were legitimate and not within the wife’s control, others such as “not enough hours” or “job was boring”, were not.

[81] The end of the TD Bank position was also significant as the wife received a severance payment of $23,000.00. The wife testified that she used the severance payment to purchase an investment property and that this property was later sold at a loss and she was forced to make an assignment in bankruptcy in 1999.

[82] The wife’s counsel noted that spousal support was only paid for 17 months for a total payment of $3,680.50. He asks that I infer from the wife’s bankruptcy and desperate financial situation that this was entirely as a result of the inadequate spousal support payments made by the husband. However, I am unable to draw that conclusion without any evidence as to the circumstances surrounding the bankruptcy and the wife’s debt situation. To do so would completely ignore the fact that between 1989 and 1997, the wife had $89,000.00 (comprised of the $55,000 equity in matrimonial home and the $23,000.00 severance payment) at her disposal. On the evidence presented, the wife must accept responsibility for the economic decisions that she made and for the financial consequences of those decisions. She had an obligation to handle the monies received in a financially prudent manner. These were significant sums of money which were lost without any explanation being provided and it is difficult to reach any other conclusion than that the wife was the author of her own financial misfortune. There is no basis to find the husband to be at fault for same. Further, it is impossible to see how the wife’s current fiscal situation arose as a result of the roles adopted during the marriage or due to any economic consequences of the marriage or the end of that relationship.

[83] The wife is presently 59 years of age. While she has many years of experience in the banking industry, she has only a high school education and in recent years only sporadic employment. While that will no doubt impact on her ability to be self-sufficient, given her serious alcohol problem and her refusal to accept this, it is unlikely that she will get the necessary help for this in the future. This has caused her to lose jobs; there have been financial consequences to her; and it has cost her any relationship with her daughters and her grandchildren. There is no evidence to support the theory that the cause of the wife’s problem with alcohol was the treatment by the husband during the marriage. Until the wife addresses this alcohol addiction, it will continue to impact her ability to obtain full-time remunerative employment. That is not the fault of the husband nor is it related to the marriage. For those reasons, I find that the wife is not entitled to spousal support under the Family Law Act.

[84] I have also taken into consideration the fact that there has been a 24 year delay in the commencement of this support application. As stated by Tucker J. in Walker v. Greer, 2003 64331 (ON SC), [2003] O.J. No. 3396 (On SC.:

The law provides time delay does not bar a claim for support provided that there is reason for the delay and events that have transpired since the delay.

[85] The wife cited numerous reasons for the delay in commencing the application.

(1) I accept that following a separation there can be a period of adjustment to one’s new circumstances before the full impact of the marriage breakdown is known. On the wife’s evidence, she stated that the lowest point for her was three years after separation (1990) when her self-esteem was very low and she was drinking more. So it would not be unreasonable to expect that at some point after this, that the wife would have pursued spousal support. She did not.

(2) The wife suggested that she was unable to afford to retain counsel to bring a variation application. However, when Erin moved in with her father in October 1993, an adjustment to the child support was negotiated with the wife being represented once again by Mr. von Anrep who presumably would have been familiar with the wife’s circumstances both at the date of separation and when negotiating the child support. Knowledge of the disparity in the parties’ incomes was evident from Mr. von Anrep’s correspondence of October 26, 1993 wherein he noted that it was inappropriate for child support to be discontinued for Jodi “in light of the fact that his [the husband’s] annual income is at least twice as much as that of his wife”. No requests were made for spousal support to be paid.

(3) The wife indicated that she did not pursue a claim for spousal support as the husband had cancer and underwent surgery in 1995. He testified that he made a full recovery and did not recall the wife attending at the hospital. The wife continued to be employed at TD Bank until early 1997 and yet no steps were taken to vary the spousal support provisions.

(4) The wife testified that in or about 1997 to 2000 she took steps to vary the support order by attending at a free legal clinic and by attempting to obtain copies of the relevant documents. However, she stated that she did not have the funds to retain a lawyer to proceed. In 1997, the wife received a severance payment of $23,000.00 from the TD Bank. There was no explanation as to why these funds were not used. Even if as a result of losing this employment there was a decline in the wife’s financial situation, it was evident that either her brother or mother would have assisted her financially, as they had both done in the past, if the wife had asked them to provide a retainer. She did not do that.

(5) The other reason for the delay was that the wife had repeatedly requested spousal support from the husband (“every time he called her”) and he was adamant about “not paying her a cent”. The husband acknowledged that the wife had asked him for support, but this always included a threat of taking him back to court, which he told her she would have to do before he would pay her anything.

While the wife’s testimony depicted the husband as an adulterous, abusive and domineering husband, the reality appears to be somewhat different. He admitted to having had one affair in 1980. There was a disagreement as to whether he had commenced a relationship with a co-worker prior to or after the separation. He signed a Separation Agreement within months of the parties’ separation, commencing support payments two weeks after the separation date and releasing any interest in the matrimonial home to the wife. Although the spousal support payments ended in June 1988, the husband voluntarily maintained the wife on the health and dental benefits available through General Motors, and continued to do so through to the date of trial. In addition, and although the husband’s counsel and the daughter, Erin, had suggested that the wife had fraudulently used the husband’s name and credit to obtain a cell phone, on the evidence before me I am satisfied that the husband did allow the wife to use his CAW plan, the only stipulation being “as long as I am not involved” and as long as he did not have to pay for it. That arrangement was satisfactory until the wife lost the phone and the payments went into default. The final incongruity in the wife’s portrayal of the husband as an abusive uncaring individual was the fact that when she had been released from jail and had no place else to go, he allowed her to remain in his apartment until she had could find another place to live.

(6) While the wife is presently in receipt of Ontario Works, Ms. Lunn confirmed that their agency is not requiring the wife to seek spousal support from the husband, nor will she be terminated from benefits if she does not pursue this action. She confirmed that each file is reviewed and that it was determined that the wife had no obligation to obtain spousal support from the husband in this particular case. I find this to be significant and likely is related to the length of time that the parties have been separated with no claim having been brought by the wife.

[86] After considering all of the evidence, the relevant factors as provided by the legislation and the particular facts of this case, I find that there is no entitlement to spousal support nor has a reasonable explanation been provided by the wife for the 24 year delay in commencing this application. On that basis, there is no reason at law that the husband should now be liable to pay spousal support and the wife’s application is dismissed.

Orders

a) A divorce order shall be granted;

b) The wife’s application is dismissed.

Costs

[87] If the parties are unable to agree on the issue of costs, I direct that the party seeking costs deliver written submissions to my office within 15 days of the release of this Judgment with responding submissions to be delivered to my office within 15 days thereafter. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline.

MacPherson J.

Released: May 7, 2012

COURT FILE NO.: 188/87

DATE: 2012/05/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHLEEN MARGARET HOWE

Applicant

• and -

TIMOTHY HOWE

Respondent

REASONS FOR JUDGMENT

W.L. MacPherson J.

Released: May 7, 2012