ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14886/060(01)
DATE: 20120507
B E T W E E N:
LUCIE DELGUIDICE
Paul Mongenais, for the Applicant
Applicant
- and -
RONALD MENARD
Bernard Gosselin, for the Respondent
Respondent
HEARD: February 6, 7, 8, 9, and March 27, 28, 2012
D E C I S I O N
WILCOX, J.
[ 1 ] INTRODUCTION
[ 2 ] The Respondent, Ronald Menard, filed a Motion to Change on November 12, 2010 requesting that the requirement that he pay spousal support to the Applicant, Lucie DelGuidice, pursuant to the final order of Justice D. Nadeau dated December 6, 2007 be terminated effective December 31, 2010, and that the Applicant be responsible for the cost of her own extended health benefits still being provided by the Respondent’s pension plan. In the alternative, he sought a reduction in the amount of spousal support payable, and a specified termination date. The Applicant filed a Response to Motion to Change dated November 22, 2010 requesting that the Respondent’s Motion to Change be dismissed, alleging a material change in circumstances, and seeking spousal support under the Spousal Support Advisory Guidelines, effective December 1, 2010. She also sought a continuation of the health benefits.
[ 3 ] BACKGROUND
[ 4 ] The Respondent was born […], 1950 and is currently aged 61. The Applicant was born […], 1953 and is currently aged 58. They met in 1979, were married on September 4, 1981, separated October 1, 2005 and were divorced on January 3, 2010. The Respondent adopted the Applicant’s daughter from a previous relationship, Chandra, born […], 1976. The parties also have two sons, Daniel, born […], 1982 and Deric, born […], 1985. The children are not the subjects of these proceedings.
[ 5 ] Following separation, the Respondent paid the Applicant spousal support of $1,589 per month from December 1, 2005 for 25 months.
[ 6 ] Court proceedings commenced following separation. Both parties were represented, the Applicant by the law firm of Carlesso Barazzutti and the Respondent, as now, by Mr. Gosselin. These were resolved by minutes of settlement which were incorporated into Nadeau J.’s order.
[ 7 ] The order indicates that the Respondent owed the Applicant a net family property equalization of $131,000. The Respondent was a retired teacher at separation. The order provides that the Applicant would receive her equalization in a stream of monthly payments from the Ontario Teachers’ Plan beginning January 1, 2008 and ending November 1, 2015. More specifically, the Applicant would receive 38.16 percent of the total monthly amount of the pension normally payable to the Respondent. The Respondent would receive 61.82 percent. After the November 1, 2015 payment, the Respondent’s net family property equalization obligations would be satisfied and he would begin receiving the full pension.
[ 8 ] As the current proceeding focuses on the provisions of the order relating to spousal support, they are reproduced here in full:
- The respondent husband will pay spousal support to the applicant wife, in the amount of $900 per month, commencing January 1 st , 2008 and payable on the first day of every month thereafter. The quantum of spousal support payable herein has been determined by taking into consideration the following factors:
a) the pre-marriage portion of the respondent’s pension; and
b) the respondent’s current Université de Hearst income being about $31,000 annually.
- The respondent’s support obligation will be reviewed after December 1 st , 2010. If the parties cannot agree to a termination or reduction of spousal support (as the case may be), either party may bring an application to court to have the issue determined. If a court proceeding is required, the party bringing the proceeding will take all reasonable steps available to have the proceeding heard by the Honourable Justice David Nadeau who was the trial judge for the within proceeding. If court proceedings are required, the court will consider the following factors:
a) the applicant wife’s continued need, if any;
b) the efforts made by the wife at finding suitable employment to help reach self-sufficiency;
c) the availability of full-time and part-time employment at the Université de Hearst for the respondent; and
d) such other factor as that court deems to be relevant in the circumstances of the case.
Either party may bring an application seeking variation of the spousal support before December 1 st , 2010 if there is a material change in circumstance.
For clarity, there shall be a review of the quantum of spousal support and/or the payment of premium for the extended health pan, such review to be held during the month of December 2010 on a date to be set by the Trial Coordinator without the necessity of a case conference.
Until December 1 st , 2010, the respondent husband will maintain the applicant wife on his extended health plan available through the Ontario Teachers Pension Plan. After that date, the applicant wife will be entitled to remain on the plan, if it remains available to her, and the reviewing court will determine which party is responsible for the costs of maintaining the applicant on said benefits plan. However, if the applicant wife obtains a divorce before December 1 st , 2010, she will be responsible for the costs associated with maintaining the plan for her benefit if it is still available. The parties will take all reasonable steps available and sign whatever documents are required to permit the applicant wife to make her own claims directly to the plan (provided there is no additional cost to the respondent). If the applicant is not permitted to make her own claim, the respondent will provide the reimbursement cheque he receives for claims submitted on her behalf forthwith upon receipt of said reimbursement cheque.
Each party will provide to the other a copy of his or her income tax return and notice of assessment or reassessment, as the case may be, on or before June 30 th of every year. This paragraph may be reviewed when the quantum of support is reviewed.
[ 9 ] PROCEDURE
[ 10 ] The provisions for review and variation are central to this case. The procedure to be followed depends on whether it is treated as a review or as a variation. According to the Ontario Court of Appeal, a review allows the issue of spousal support to be revisited without the need to prove a material change in circumstances as is necessary in a variation application. Unless the review is restricted to a specific issue, it is generally equivalent to an initial application for support and necessitates a complete re-hearing of every issue from entitlement to quantum (see Fisher v. Fisher 2008 ONCA 11 , 88 O.R.(3d) 241 at paragraph 63 ). On the other hand, for there to be a variation, the court must find that there has been a material change in circumstances since the prior order was made. A material change in circumstances means a change that, if known at the time of the making of the prior order, would have resulted in different terms (the Willick test). Once a material change in circumstances has been found, the inquiry is into the variation that is justified by the change.
[ 11 ] Counsel for the Respondent took the position that the matter should proceed as a review as provided for in Nadeau J.’s order. Neither party had applied before December 1, 2010 to vary spousal support, he said. Procedurally, the court office had required the filing of the Notice of Motion to get the matter back before Nadeau J. for review. The Applicant’s counsel added here that the Applicant’s position was that there should be proper pleadings for Nadeau J. to review. In her response, the Applicant alleged material changes in circumstances and also errors in the process that led to the Minutes of Settlement and Nadeau J.’s order. Upon hearing of the alleged errors upon which the Applicant is suing her previous counsel, Nadeau J. declined to proceed with the summary review mechanism, but held a settlement conference. The matter has proceeded on to trial.
[ 12 ] The Respondent’s counsel argued that the review process and the factors to be considered in the review are set out in paragraph 10 of the order and that it is clear on the wording of the order that the parties intended spousal support to decrease or be terminated as a result. Spousal support, he said, should be decreased and time-limited so that the Respondent would not have to pay beyond nine or ten years post-separation. The Applicant’s counsel agreed that the case should proceed by way of review, but argued that there was nothing preventing the court from increasing the spousal support. In support of that, he made a number of points. One was that there was no spousal support release. Furthermore, nothing in paragraph 10 of the order restricted the court to decreasing or terminating spousal support. With reference to its wording, he said, once the parties failed to agree to a reduction or termination, it was open to the court to decide. Why, he asked, would the Applicant apply to court, as the order contemplates, if the result could only be a reduction or termination of the spousal support she was receiving? Also, he pointed out that there could have been a variation application prior to December 2010 that resulted in a variation of spousal support upwards to, for example, $2,000 per month, in which case it would make no sense to have a provision requiring it to go to less than $900 per month in December, 2010.
[ 13 ] The Respondent’s counsel argued that, in the event the matter was treated as a variation, there had been no material change in circumstances in many respects, and it was debatable whether the Applicant could show a material change in circumstances in others. The Applicant’s counsel countered that there had been numerous material changes in circumstances, and that the Applicant’s response to the Motion to Change, alleging such, was brought before December 1, 2010.
[ 14 ] The case shall be treated as a review. The order provides for it, and both counsel sought to proceed that way.
[ 15 ] The greater issue is whether the review of spousal support is limited to decreasing or terminating it. The wording of the order leaves some room for dispute on that point, obviously. On balance, however, I prefer the Applicant’s counsel’s position that the review is not so limited. Paragraph 10 says that the Respondent’s support obligation will be reviewed after December 1, 2010. It is only if the parties cannot agree to a termination or reduction of spousal support that either party may bring an application to court. (With respect, even if they had so agreed, there would have had to be an application to court in some form in order to obtain a new order on consent). That application is to have “the issue” determined. “The issue” could refer to spousal support, or to a “termination or reduction of spousal support”. However, it would make no apparent sense for the Applicant to be applying to court to decrease or terminate the spousal support she is receiving, nor for the Respondent not to have agreed to a termination if the Applicant offered it. Therefore, the better interpretation is that the court is not limited. Further support for this view is found in paragraph 12 of the order, which mandates a review of spousal support in December, 2010 without limitation. Beyond that, the court should guard against nonsensical applications of its orders. As Applicant’s counsel pointed out, there was the possibility of a variation application to court before December 1, 2010 based on a material change in circumstances and resulting in an order for increased spousal support for the Applicant. It would make no sense to have a mandated review, perhaps only weeks later, in which a court was bound to decrease or terminate that support.
[ 16 ] That said, the next issue is the scope of the review. As mentioned above, a review is generally equivalent to an initial application for support and deals with issues of entitlement and quantum, unless it is restricted to a specific issue. Paragraph 10 of the order directs the review court to consider certain factors. These, in effect, include need and ability to pay. Even applying the ejusdem generis rule, there is little practical restriction on the court.
[ 17 ] For guidance as to what other factors to consider, the court turned to the law on spousal support. Counsel differed on whether the Divorce Act or the Family Law Act applied. As the matter took place in the context of a marriage and subsequent divorce, the Divorce Act is held to apply. In practice, however, without deciding the point, it would seem appropriate for the outcome to be the same regardless. The Divorce Act sets out the following factors and objectives regarding an order for spousal support in s. 15.2(4) and (6) .
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
( a ) the length of time the spouses cohabited;
( b ) the functions performed by each spouse during cohabitation; and
( c ) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
( a ) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
( b ) apportion between the 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 spouses arising from the breakdown of the marriage; and
( d ) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[Text continues exactly as in source…]
Justice James A. S. Wilcox
Released: May 7, 2012