ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F-1557-00
DATE: 2012/05/25

B E T W E E N:

Joan Cecillia Hacket

Nicole Matthews for the Responding Party, Applicant

Applicant

• and -

Alexander Girard

Michael P. Clarke for the Moving Party, Respondent

Respondent

HEARD: May 24 th , 2012

ORDER ON MOTION

Parayeski, J.

1Before me is a motion by the Respondent, the essence of which is his request that his obligation to pay spousal support to the applicant be terminated or reduced.

2The parties lived in a common-law arrangement for just over 23 years, having separated in December of 1999. On October 1 st , 2002, Mazza J. granted an order requiring the Respondent to pay spousal support to the Applicant at $1,000.00 per month. At that time, the Respondent worked at National Steel Car making approximately $37,000.00 per year. The applicant’s annual income then was $6,240.00.

3The Respondent developed some health problems and was off work for a period of time. He applied for and was granted two orders which, in general terms, reduced enforcement of the spousal support obligation to $400.00 per month. These orders were dated July 31 st , 2009 and December 18 th , 2009 respectively.

4The Respondent returned to work at National Steel Car in late December of 2009. He did not then tell the Applicant or advise the Court. He continued to pay, through the Family Responsibility Office, spousal support at the rate of $400.00.

5In simplistic terms, the Respondent argues that his spousal support obligation should terminate at this point, or at least be reduced from $1000.00 per month to $700.00, on the basis that the Applicant has managed on spousal support of $400.00 without incurring debt (thus not establishing need) and has not even attempted to become self-supporting.

6A motion to vary support requires, as a precondition, proof of there having been a material change in circumstances. Briefly, the change put forth by the Respondent is the fact that the recipient Applicant’s annual income has increased from the time of the order of Mazza J. to some $18,031.92 per year. Although the Recipient’s income has increased by about three-fold, I am not prepared to consider this a material change. It is indeed an arithmetical change, but it still leaves the Applicant in the position of living at subsistence level.

7Without meeting the threshold, the Respondent’s motion must fail.

8I now turn to two issues raised by the Applicant, these being:

1. Whether she is entitled to the difference between the $1,000.00 and $400.00 per month from the time of the Respondent’s return to work at National Steel Car; and

2. Whether she is entitled to an increase in spousal support from the $1,000.00 per month ordered by Mazza J., in light of the fact that the Respondent’s income has also increased, i.e. from $37,000.00 per year to $61,753.00 in 2011 and a projected $55,212.00 in 2012.

9On the first point, I calculate the difference to be some $16,800.00 (28 months at $600.00 each). The Respondent argues that, notwithstanding his undisclosed return to work in December of 2009 (undisclosed at least until he brought the current motion), to give the Applicant the differential would be granting her a “windfall”. I disagree. The “windfall” has been in the hands of the Respondent, who has enjoyed an extra $600.00 per month in his bank account for just over two years.

10That said, I agree that the Applicant has been less than diligent in pursuing her rights through this or other litigation. Moreover, she has not complied with the order of Mazza J., which required her to apply for a disability pension and to give the Applicant a copy of the application.

11Under these circumstances, it is appropriate that the Respondent pay to the Applicant one half of the “windfall”, or $8,400.00 as arrears of spousal support.

12Regarding the second point, I am willing to address this notwithstanding the fact that the Respondent has failed to meet the threshold of establishing a material change in circumstances, a pre-condition to this motion in first instance.

13I am not prepared to increase spousal support beyond the $1000.00 per month level ordered by Mazza J. This is based on the following:

1. The applicant has not presented evidence that rationalizes her request for $1,200.00 per month. It is simply not good enough to say, “the payor’s income has increased and I want ‘x’”, and

2. While there is some evidence of the Applicant being unable to work in any capacity, the medical evidence to that effect is out of date by at least a decade. Moreover, there is no evidence whatsoever of any effort to fulfill the Applicant’s duty to at least try to move toward self sufficiency.

14In conclusion, the Respondent’s motion is dismissed. The orders reducing enforcement of spousal support to $400.00 per month are to be set aside. The Respondent shall pay to the Applicant the $8,400.00 described above. Spousal support is to be paid as per Mazza, J.’s order at the same level, i.e. that of $1,000.00 per month commencing June 1 st , 2012. SDO to issue.

15If the parties are unable to agree with respect to costs of this motion, they may make brief written submissions to me in that regard. Those submissions are not to be more than three typed pages in length each, and should be sent to my attention at the John Sopinka Court House. Both submissions are due on or before July 1 st , 2012.

The Honourable Justice Parayeski