ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-1323-1
DATE: 2012/01/12

BETWEEN:

PIERRE J. BEAUCHAMP Applicant – and – LINDA M. BEAUCHAMP Respondent

Céline T. Allard, for the Applicant
Deanne E. Fowler, for the Respondent

HEARD: December 16, 2011 (Ottawa)

REASONS FOR DECISION

KERSHMAN J.

[ 1 ] The Applicant brings a motion (1) to terminate spousal support as of July 1, 2011; and (2) to rescind coverage of a life insurance policy number 7671777 with TransAmerica Life Insurance Company of Canada in favour of the Respondent, as of July 1, 2011 since the Applicant would no longer be paying spousal support.

Factual Background

[ 2 ] The court accepts the following factual background contained in the Applicant’s factum :

1. The Applicant/Moving Party will be 68 years of age on December 17, 2011. The Respondent is 66 years of age.

2. The parties were married August 24, 1968 and they separated on December 21, 1982.

3. The parties entered into a Separation Agreement on December 21, 1982. The Separation Agreement was signed by both parties on December 22, 1982.

4. The parties have two children, namely Lissa, 40 years old and Chantal, 38 years old. Both children are married.

5. The Applicant worked for 15 years with the Ottawa Real Estate Board in executive positions and retired from that employment in 1983 as Executive Director.

6. In August 1983, the Applicant joined the Canadian Real Estate Association.

7. The Applicant retired as of July 1 st , 2011, following two decades as Executive Vice‑President and CEO of the Canadian Real Estate Association.

8. The Applicant will be 68 years of age on December 17 of this year.

Applicant’s Second Marriage

9. The Applicant married Marcia McGuire Beauchamp in 1992.

10. The Applicant and his wife have five children. The oldest child is 18 years of age and the youngest is 12 years of age.

11. Mary Loretta was admitted to the University of Ottawa in the fall of this year.

12. The Applicant’s retirement income is roughly one‑half of his pre‑retirement salary.

13. The Applicant will lose his group health and insurance benefits one year following the date of his retirement.

[ 3 ] Prior to retirement, the Applicant earned approximately $400,000.00 per year. After retirement, his net income is $72,000.00 to $84,000.00 per year.

[ 4 ] The Applicant is currently paying spousal support of $1,168.56 per month including an adjustment for the cost of living as defined in the Separation Agreement.

Issue: Should spousal support be terminated and, if so, when?

Applicant’s Position

[ 5 ] The Applicant seeks to terminate spousal support as of July 1, 2011 together with the insurance coverage in favour of the Respondent as there have been material changes in circumstances.

[ 6 ] Paragraph 8 of the Separation Agreement provides for the agreement to be changed if there is a material change in circumstance.

[ 7 ] The Applicant argues that there have been the following material changes in circumstances:

(a) the Applicant’s remarriage to Marcia McGuire Beauchamp in 1992;

(b) the birth of the Applicant’s five children between 1993 and November 1999;

(c) the Applicant’s retirement on July 1 st , 2011;

(d) the eldest daughter, Mary Loretta being admitted into her first year at the University of Ottawa last September and the cost of postsecondary education for her and for the other children in the near future;

(e) the ever increasing sports, educational and extracurricular activities as the [children] get older;

(f) a significant income reduction as resulting from the Applicant’s retirement on July 1 st , 2011.

[ 8 ] The Applicant argues that he was married to the Respondent for 14 years and that he has been paying spousal support for at least 29 years. The Applicant says that this was a medium length marriage which, in accordance with the Spousal Support Guidelines , had they been in effect at the time, would have required him to make payments for far less than 29 years.

Respondent’s Position

[ 9 ] The Respondent’s position is that, by virtue of her having been the primary caregiver of the children, her career took a backseat to that of the Applicant in that she was unable to earn as much as the Applicant during her working career.

[ 10 ] The Respondent said that during the marriage she had to cash in her accumulated pension fund with the Government of Canada where she had been working in order for the parties to purchase their first house. Prior to repaying the pension, she became pregnant and resigned to raise her two children who are both financially independent adults.

[ 11 ] From 1989 to 1999, the Respondent worked for MetLife as an account representative and pension administrator and currently receives a pension from MetLife.

[ 12 ] In addition, the Respondent worked for the RCMP as a research assistant from 2000 to 2010 when she was forced to retire due to her position being phased out. While at the RCMP, the Respondent was able to buy back five years of additional pension. She currently receives a pension from the RCMP.

[ 13 ] The Respondent’s current income from all sources is as follows:

(a) Pensions $28,145.88

(b) Spousal support $14,022.72

(c) From mother $12,000.00

TOTAL $54,168.60

[ 14 ] The Respondent receives $1,000.00 per month from her mother, who lives with her and has Alzheimer’s Disease. The Respondent’s position with respect to that money is that it covers her mother’s medical and personal needs and is not total income to the Respondent.

[ 15 ] The Respondent denies that the Applicant’s retirement is a material change in circumstance that would warrant termination of spousal support.

[ 16 ] In addition, the Respondent says that the Applicant is not feeling any financial hardship from meeting his spousal support obligation based on his current income and his current assets.

Analysis

[ 17 ] The Court has reviewed the Applicant’s financial statement and his situation and agrees that his income has decreased due to his retirement. The Court notes that, based on information contained in his financial statement, it appears that the Applicant is not receiving either Canada Pension Plan and/or Old Age Security payments.

[ 18 ] Both parties are in their sixties, with the Applicant being 68 and the Respondent being 66. The Court acknowledges that the Applicant did enter into a second marriage 20 years ago and has five young children, the first of which is in university.

[ 19 ] The Court also acknowledges that the Applicant has made his monthly spousal support payments on time.

[ 20 ] The Separation Agreement does include a provision for a material change in circumstance. The Respondent argues that there has been no material change in circumstance since his second marriage approximately 20 years ago. The Respondent also argues that due to the Applicant’s financial circumstances, notwithstanding his reduced income, his financial resources show that his reduced income is not a material change in circumstance.

[ 21 ] The Court must look at all the circumstances involved in the case in order to determine whether, in fact, there has been a material change in circumstance. While each of the items listed in para. 7 above if looked at individually may not be considered a material change in circumstance, when looked at as a whole, including the fact that there are five dependent children who either are or will be going to some form of post‑secondary education and the fact that the Applicant is retired with a reduced income, in the Court’s view, this combination of factors is a material change in circumstance.

[ 22 ] The Court finds that there has been a material change in circumstances to the Applicant’s situation which would require a reduction in the amount of spousal support leading to a total elimination of spousal support in the future.

[ 23 ] The Court is fully aware that the monies received by the Respondent from her mother cannot fully be considered as income. This Court finds that $200.00 per month or $2,400.00 per year would be considered income.

[ 24 ] In view of the fact that the Respondent’s pension income is $28,145.88 per year and income from her mother is approximately $2,400.00 per year, the Court finds that the yearly income of the Respondent from these two sources is $30,545.88 per year.

[ 25 ] Notwithstanding the fact that the Applicant has paid spousal support for over 29 years and notwithstanding the fact that this has been paid on a timely basis, the Court does not find that spousal support shall be eliminated at this time. It should however be decreased on a gradual basis.

[ 26 ] As such, this Court orders that spousal support shall continue at the current amount up to and including December 1, 2012 subject to any adjustment due to cost of living as defined in the Separation Agreement. Thereafter, spousal support shall be reduced to $650.00 per month from January 1, 2013 through to December 1, 2013 inclusive and thereafter shall be reduced to $325.00 per month from January 1, 2014 to December 1, 2014 inclusive. All reductions in spousal support are not to include a cost of living component. Thereafter, spousal support shall cease.

[ 27 ] Based on the aforesaid, the Transamerica life insurance policy with the Respondent as beneficiary shall remain in place until such time as there is no further requirement to pay spousal support.

Costs

[ 28 ] As to the issue of costs, the Applicant claims $3,500.00 on a full indemnity basis while the Respondent claims $6,500.00 on a full indemnity basis.

[ 29 ] Based on the findings made in this case, the Respondent was more successful than the Applicant. Costs are to be awarded to the Respondent on a partial indemnity basis. Taking into account the factors set out in Rule 24(11) of the Family Law Rules , this Court fixes the Respondent’s costs at the sum of $2,250.00 inclusive of disbursements and HST. This amount shall be paid by the Applicant at the rate of $500.00 per month commencing February 15, 2012 until paid.

[ 30 ] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: January 12, 2012

COURT FILE NO.: FC-11-1323-1
DATE: 2012/01/12

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PIERRE J. BEAUCHAMP Applicant – and – LINDA M. BEAUCHAMP Respondent REASONS FOR DECISION Kershman J.

Released: January 12, 2012