COURT FILE NO.: FS-10-00011459-0000
DATE: 20121016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK ALLAN WILBUR
Appellant
– and –
ANITA MARIA LAEVENS
Respondent
Self-Represented
Self-Represented
HEARD: October 15, 2012 at Chatham
REASONS FOR JUDGMENT
JUSTICE P. HENDERSON
[1] By application dated April 19, 2010, the applicant sought what I suspect he anticipated would be an uncontested divorce. The respondent, filed an Answer, in which she sought certain disclosure, retroactive child support to 2007, and an order compelling the appellant to maintain her under his extended health and dental available to him through his employment.
[2] The disclosure and child support issues have been resolved, the latter by order of Patterson J. dated September 13, 2010. The remaining issue to be determined therefore concerns the maintenance of the extended health and dental expenses. Both parties were self-represented at the hearing.
BACKGROUND
[3] The parties were married October 3, 1987 and separated March 15, 2001. They have one child Wesley Wilbur born October 13, 1992. He is independent.
[4] The respondent is on Ontario Works and has recently applied for a disability pension. She denies cohabiting with anyone but admits a male friend is residing with her.
[5] On October 7, 2010, she was involved in a motor vehicle accident. She received benefits initially but which were terminated when she returned to work as a nurse. Unfortunately she found she could not continue her employment.
[6] The respondent testified that she was diagnosed with diabetes six years ago. She suffered a heart attack in 2009. She also experiences anxiety that has required medication. The respondent estimates that her medications related to her health conditions cost about $5000 per year. To date these have been covered by the applicant’s health benefit plan. According to the respondent if left to her own resources Ontario Works would only cover about half of these costs.
[7] In view of these circumstances, the respondent requests an order that the applicant maintain the extended health coverage after the divorce.
[8] The applicant requests his divorce and does not want to maintain the coverage. He is engaged and wants to get married. He wants to be able to cover his new wife which he cannot do if he is also covering the respondent.
[9] The applicant relies on the parties’ separation agreement dated May 29, 2001. Paragraph 13 contains a comprehensive mutual release of spousal support. Paragraph 14 contains an acknowledgement by the parties that there may be changes in their financial circumstances for a variety reasons including changes to their health. Those changes, even if catastrophic, will not give either party the right to claim spousal support. Similar prohibitions are included in paragraphs 33, 35 and 36.
[10] In paragraph 16, the applicant agreed to “maintain in force for the benefit of the (respondent)… medical/dental/drug coverage, if this is available under a group insurance plan through the (applicant’s) employment, or if he obtains such coverage for himself privately” until the parties are divorced.
[11] The applicant relies on the terms of the separation agreement and opposes any extension of his obligation beyond divorce.
ANALYSIS
[12] This application is brought under the Divorce Act and as such its provisions govern.
[13] Although the respondent has not requested periodic or lump sum support, the maintenance of extended health coverage is an aspect of support. Because there is no existing divorce order containing this provision I am treating the respondent’s request as one in the first instance. Therefore, the provisions, and related law, of s.15.2 of the Divorce Act apply and not s.17.
[14] Section 15.2(4) of the Act sets out certain factors the court must take into account in making a spousal support order:
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.
[15] Section 15.2(6) sets out the objectives for spousal support order the court should consider:
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.
[16] The Supreme Court in its decision in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, established the principle that a court may depart from the terms of a pre-existing agreement. The court described a two step process: first, an analysis at the time of the agreement, and secondly, a consideration of the current circumstances.
[17] I find there was nothing at the time of the agreement which would undermine its integrity. The agreement was drafted by the respondent’s counsel. It would appear that the applicant was unrepresented. The respondent admitted that she and the applicant had reviewed the agreement page by page in the respondent’s counsel’s office. The respondent admitted she understood the terms. On the face of it the terms of the agreement appear to meet the objectives in s.15.2(6).
[18] However, in the second part of the analysis the Supreme Court holds that consideration be given to whether the current circumstances reflect a significant departure from what the parties would have been reasonably anticipated at the time the agreement was signed.
[19] Despite the fact that the agreement refers to catastrophic changes, I do not believe either party anticipated that over a short period of time the respondent would have been diagnosed with diabetes, suffered a heart attack and anxiety and been involved in a motor vehicle accident.
[20] On this basis I am prepared to open up the agreement but only to the extent necessary to address the issue at hand. Section 15.2(6) requires me to balance several objectives, often competing. For example, there is a desire to address hardship but also a recognition of the obligation to become self-supporting. In the present case I have to consider the limited nature of the respondent’s request and her need against the fact the parties have been separated for over eleven years. There is also a need for finality to allow the parties to move on.
[21] The applicant testified that coverage could be maintained for the benefit of the respondent if it was ordered despite the divorce of the parties. The evidence was hearsay, based on information given to the applicant. There was no independent confirmation from the insurers. In these circumstances I am reluctant to make such an order only to have the respondent discover she lacks coverage. The insurer is not a party to these proceedings and would not be bound by my decision. I order therefore:
The applicant’s application for divorce is stayed for one year, after which he may proceed by way of basket motion for the divorce.
In the meantime, the applicant shall maintain for the benefit of the respondent such medical/dental/drug coverage as is available through his employment or privately should he obtain such until the divorce is issued by the court.
There shall be no order as to costs.
Signed “Paul Henderson”
Paul Henderson Justice
Released: October 16, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK ALLAN WILBUR
Appellant
– and –
ANITA MARIA LAEVENS
Respondent
REASONS FOR JUDGMENT
Justice Paul Henderson
Released: October 16, 2012