COURT FILE NO.: 02-FP-274082 0001
DATE: 20121120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LILIANE MISZTAL
Applicant
- and -
JERRY KARPYNCZYK
Respondent
Appearing in Person
Catherine Hibberd, for the Respondent
HEARD: September 11, 12, 13, 14 and 19, 2012
Stevenson J.
REASONS FOR DECISION
Introduction
[1] In February 2002, the applicant Liliane Misztal ("Ms. Misztal"), commenced legal proceedings by way of a Petition for Divorce against the respondent, Jerry Karpynczyk ("Mr. Karpynczyk") with respect to issues arising from the breakdown of their marriage.
[2] Ms. Misztal and Mr. Karpynczyk were married on September 20, 1978 and separated on September 12, 2001 after approximately 23 years of marriage.
[3] The parties had one child during the marriage, John Karpynczyk, ("John") who was born on March 2, 1982 and he is presently 30 years of age. At the date of separation, John was approximately 19 years of age and was attending school full-time. He resided briefly with Ms. Misztal after separation but has resided with Mr. Karpynczyk since on or about October 31, 2001.
[4] The parties entered into a separation agreement dated March 20, 2003, settling all issues with respect to equalization of net family property. The separation agreement indicated that Mr. Karpynczyk had not received any child support from Ms. Misztal and that the issues of child support and spousal support remained outstanding.
[5] All of the remaining corollary issues were resolved by way of a consent judgment of Wright J., dated May 21, 2003 which included a provision that Mr. Karpynczyk pay spousal support to Ms. Misztal in the sum of $1,350 per month commencing September 12, 2001 and on the first day of each month thereafter. In the judgment, it was confirmed that the equalization issues had been determined and that there was to be no further equalization payment made by either party. A further provision stated that: "Either party shall be at liberty to vary the judgment with respect to spousal support in the event of material change in circumstances which shall include but not be limited to any changes in the parties' incomes." The judgment was silent on child support.
[6] On March 10, 2010, Ms. Misztal commenced a Motion to Change the order of Wright J. She seeks an increase in spousal support retroactive to October 1, 2008, indefinite payment of spousal support, retroactive spousal support in a lump sum, an annual increase in spousal support in accordance with the Consumer Price Index, an exchange annually of tax returns and notices of assessment of the parties, maintenance of health care, dental care and extended health benefits by Mr. Karpynczyk for her benefit, reimbursement of costs for her education by Mr. Karpynczyk, an order that spousal support bind Mr. Karpynczyk's estate and that his estate pay all health and dental costs for her in the event of Mr. Karpynczyk's death, an order requiring that Mr. Karpynczyk's pension plan fulfill the terms under paragraph 16 of the parties' separation agreement and costs.
[7] In the Motion to Change, Ms. Misztal also seeks that paragraphs 15.2 (b) (vi) and 30 of the parties' separation agreement dated March 20, 2003 be deleted, specifically the waiver of the right of either party to receive support as a dependent from the estate of the other and an acknowledgment that the issues of child support and spousal support remained outstanding notwithstanding any releases which may have been provided for in the separation agreement.
[8] Ms. Misztal contends that there has been a material change in circumstances given Mr. Karpynczyk's increase in income and Ms. Misztal's inability to work as a result of numerous medical difficulties that were not all existing at the time of separation, resulting in her being solely dependent upon the spousal support payments. Additionally, since completion of Ms. Misztal's schooling, she has been unable to find employment as a paralegal or law clerk and she has suffered additional financial setbacks. She has had to deplete all of the funds that she received on equalization to support herself, her educational pursuits and to repair and maintain her home. She also submits that she suffers from a learning disability that makes her less employable.
[9] Mr. Karpynczyk concedes that his income has increased in accordance with the terms set out in his collective agreement, but that his income has not increased significantly. Mr. Karpynczyk contends that Ms. Misztal is capable of securing full-time employment, she has not made reasonable efforts to do so and there is no evidence before the Court that Ms. Misztal is unable to work. Mr. Karpynczyk further submits that Ms. Misztal chose to pursue her schooling over several years and that she is a fully qualified and licensed paralegal, but that she has chosen not to work.
[10] Additionally, it is Mr. Karpynczyk's position that the parties' son John is fully dependent upon him given John's mental health issues. Mr. Karpynczyk contends that he has had to support John completely on his own without any support from Ms. Misztal and he continues to do so. Ms. Misztal denies that John is a dependent child and contends that John should be paying rent to Mr. Karpynczyk.
Factual Background
[11] The parties were both approximately 47 years of age at the date of separation and are now both 58 years of age.
[12] At the time of the judgment of Wright J., Mr. Karpynczyk's employment income for 2002 was $65,330 gross and he was employed by Ryerson University. Ms. Misztal was employed part-time at Lewiscraft and then at Knitter's Bazaar in 2002. Her 2002 total income was $5,809 gross. Mr. Karpynczyk is still employed by Ryerson University and earns an income between approximately $91,000 to $93,000 gross per year while Ms. Misztal is unemployed and her only major source of income is spousal support.
[13] After the separation, Mr. Karpynczyk continued to reside in the matrimonial home while Ms. Misztal eventually went to live in the parties' cottage in Innisfil. As part of the equalization of net family property, Mr. Karpynczyk retained the matrimonial home and Ms. Misztal retained the cottage property. Ms. Misztal received a further cash payment in the amount of $145,000 from Mr. Karpynczyk with respect to equalization. Mr. Karpynczyk retained his pension plan at Ryerson and any other investments and savings registered in his name while Ms. Misztal retained any other investments and savings registered in her name.
[14] Both parties were represented by counsel when they were negotiating the terms of the separation agreement and at the time of the consent judgment of Wright J.
[15] Mr. Karpynczyk regularly paid his $1,350 per month in spousal support to Ms. Misztal in accordance with his obligations under the judgment. At the time of the commencement of the Motion to Change, Mr. Karpynczyk was current with his spousal support payments.
[16] The judgment of Wright J, dated May 21, 2003, did not include a provision for a cost-of-living adjustment nor did it include a provision requiring yearly disclosure of income or tax returns by the parties.
Issues
[17] The following are the issues to be determined:
(i) Has there been a material change in circumstances? If yes,
(ii) Should there be a variation of the judgment of Wright J. ?
(iii) Should there be a variation in the terms of the separation agreement entered into between the parties?
(i) Has there been a material change in circumstances?
[18] Applications to vary are governed by s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). Section 17(4.1) provides:
Factors for spousal support order
17 (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
Section 17(7) sets out the objectives of a variation order as follows:
Objectives of variation order varying spousal support order
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and
(d) insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[19] Ms. Misztal submits that the following factors should lead the Court to determine that a variation in spousal support is warranted:
(1) Mr. Karpynczyk's employment income was never properly disclosed at the time of the judgment and in any event, his employment income has increased from approximately $65,330 (total income $69,795) at the time of the judgment of Wright J., to an employment income of approximately $93,000 presently, in addition to interest and other investment income of approximately $2,422 per year, which Ms. Misztal submits are significant increases.
(2) There has been an increase in her cost of living and she has not received any cost-of-living adjustments.
(3) Ms. Misztal suffered from endometrial cancer since separation and is now in remission. She has significant ongoing health problems that have prohibited her from working since October 2008. She suffers from Graves disease, hyperthyroidism, high blood pressure, stomach conditions, degenerative osteoarthritis in both knees, plantar fasciitis, arthritis and degeneration of discs and spine in her back, varicose veins and tendonitis in her right shoulder rotator cuff, cataracts in both eyes, and sleep apnea. Some of these conditions existed pre-separation but have now worsened and others have developed post-separation. Ms. Misztal submits that she is in significant pain, and she requires daily medication and treatment. These medical conditions prohibit her from working and she does not qualify for a disability pension.
(4) The parties had a traditional marriage and Ms. Misztal was primarily responsible during the marriage of 23 years for the care of the parties' son, John, and as such, there has always been a significant disparity in the parties' incomes and she has suffered an economic disadvantage as a result of the marriage. Throughout the marriage when she was working, it was primarily on a part-time basis.
(5) Ms. Misztal has had to use all of the funds which she received on equalization in order to support herself as the spousal support payments are insufficient. Additionally, she has had to withdraw all her RRSPs. She has had to maintain and repair the cottage property where she resides which is still in need of significant repair. Given her medical condition, she has had to hire a handyman in order to maintain the property. She has a number of debts, has had to obtain a line of credit, and owes a significant amount of money to her handyman for his ongoing maintenance work. Additionally, her car is over 10 years old, has 325,000 km on it and needs to be replaced.
(6) Ms. Misztal was diagnosed with a learning disability while attending Humber College pursuing her Paralegal Studies degree program from 2003 to April 2007 and this learning disability has severely impacted her ability to obtain employment.
(7) Mr. Karpynczyk still resides in the matrimonial home which is worth significantly more than the cottage property and he has no mortgage. Mr. Karpynczyk was able to borrow funds from his mother to fund the equalization payment on an interest-free basis. Mr. Karpynczyk has significantly more assets than she does.
[20] Mr. Karpynczyk concedes that there has been a change in his income; however, he submits that the increases that he has been given amount to only approximately 20% since the date of separation and are increases in accordance with his collective agreement. Mr. Karpynczyk's evidence is that Ms. Misztal was working at the time of separation and it was contemplated by the parties that she would become self-sufficient. He also contends that Ms. Misztal is capable of working, given she is a fully licensed paralegal and successfully completed legal courses at both Ryerson University and Humber College obtaining Honours at Humber College when she obtained her paralegal degree. Mr. Karpynczyk submits that Ms. Misztal has not made reasonable efforts to secure employment and has no expert evidence proving that any medical conditions prevent her from working.
[21] Mr. Karpynczyk also contends that John's continued dependency on him, which was not contemplated at separation as John is now 30 years of age, is a significant factor.
[22] In the recent Supreme Court of Canada decision of L.M.P. and L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 33, the Court stressed that a court on variation should not consider the correctness of the initial order:
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick [Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670] clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[23] In L.M.P. the Court also reviewed the significance of a specific type of change being contemplated by the parties on a variation at para. 39:
Parties may either contemplate that a specific type of change will or will not give rise to variation. When a given change is specified in the agreement incorporated into the order as giving rise to, or not giving rise to, variation (either expressly or by necessary implication), the answer to the Willick question may well be found in the terms of the order itself. That is, the parties, through their agreement, which has already received prior judicial approval, have provided the answer to the Willick inquiry required to determine if a material change has occurred under s. 17(4.1). Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.
[24] It is clear from the judgment of Wright J., which was consented to by both parties, that a material change in circumstances was to include any changes in the parties' incomes. This was contemplated by the parties at the time they agreed to the consent judgment. Both parties have had a change in income since the date of the judgment as Mr. Karpynczyk's employment income has increased approximately $25,000 to $27,000 while Ms. Misztal's income (subtracting the spousal support payments) has decreased from $5,809 to zero income at present. I therefore find that there has been a material change in circumstances.
(ii) Should there be a variation of the judgment of Wright J.?
[25] Once the threshold is passed in s. 17(4.1) of the Divorce Act, the court must consider the four objectives in s. 17(7). As set out by the Court in L.M.P. at para. 49:
Julien D. Payne and Marilyn A. Payne observed that ‘[t]here is nothing in the Divorce Act to suggest that any one of the objectives [in s. 17(7)] has greater weight or importance than any other objective’ (Canadian Family Law (3rd ed. 2008), at p. 253). Rather, the objectives ‘operate in the context of a wide judicial discretion’ and ‘provide opportunities for a more equitable distribution of the economic consequence of divorce between the spouses’.
[26] Mr. Karpynczyk concedes that entitlement to spousal support is not an issue. I find that this was a long-term traditional marriage in which Mr. Karpynczyk was the primary income earner and Ms. Misztal was primarily responsible for the care of John. Spousal support is justified on either a compensatory or non-compensatory basis as set out in Moge v. Moge, [1992] S.C.R. 813 and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420.
[27] The parties were married for 23 years, Mr. Karpynczyk was employed at Ryerson University throughout and at separation he was the primary income earner of the family. His increases in income do appear to be as a result of his collective agreements. Given the roles of the parties during the marriage and the reason for the income increase, being a result of ongoing changes in the collective agreements, this post-separation increase in income by Mr. Karpynczyk should be shared with Ms. Misztal.
[28] I do not consider the fact that Mr. Karpynczyk now has more assets than Ms. Misztal to be determinative on this Motion to Change. When the parties signed their separation agreement they equalized their assets and did so on the basis of full financial disclosure and with the assistance of counsel. As part of the settlement, Ms. Misztal chose to retain the cottage and Mr. Karpynczyk chose to retain the matrimonial home.
(a) Determination of Ms. Misztal's Income
[29] I do find that at the date of separation Ms. Misztal was working and it was anticipated by both parties that she would secure better employment in an attempt to become self-sufficient. The question is whether, since the date of separation, Ms. Misztal has had an ability to work and has chosen not to or whether she has been unable to work due to medical difficulties and other reasons as was her evidence.
[30] Shortly after the separation, the evidence was that Ms. Misztal attended Ryerson University where she obtained a Certificate in Law Procedures in October 2003. The fees for these courses were covered through Mr. Karpynczyk's employment at Ryerson and were treated as a taxable benefit to him. I note that Ms. Misztal did provide reimbursement to Mr. Karpynczyk with respect to his tax liability arising as a result of this taxable benefit.
[31] Ms. Misztal also testified that from September 2003 to April 2007 she pursued a Paralegal Studies degree program at Humber College which had a cost to her of approximately $35,000 plus transportation and other miscellaneous costs. Ms. Misztal graduated from this course in the spring of 2007. Her evidence was that after graduation she was unable to find employment as a paralegal, therefore she went to Georgian College during the evenings from September 2007 to May 2008 to pursue courses through the Institute of Law Clerks of Ontario. She testified that she completed one course but was unable to write the estates and litigation exam due to medical issues and a lack of funds. Ms. Misztal's evidence was that at the same time, she was preparing to write her paralegal license exam. She indicated that with accommodation for a learning disability (which she testified was discovered during her studies at Humber College); she received her paralegal license on March 31, 2008.
[32] Ms. Misztal gave evidence that during the marriage she knitted garment samples for pattern companies and sold crafts at shows as a hobby. She worked part-time at Lewiscraft from March 2001 to September 2002 and then she moved to her current home in Innisfil. She then commenced employment at Knitters Bazaar in Barrie on a part-time basis. Her employment there was terminated in May 2003. Her evidence was that she was unable to find employment so she applied to Humber College in September 2003.
[33] Ms. Misztal testified that she worked at Network Legal Services in Concorde on a full-time basis from May 2006 to August of 2006 on a work placement. When she returned to school she worked on Fridays during September 2006. She states that upon graduation she telephoned paralegals and lawyers seeking employment and that she either received no response from them or they indicated that they were not hiring. She personally dropped off resumes to potential employers and had one interview in March of 2008 but she was not hired. In June of 2008 she was hired by Team Legal Associates LLP on a contract basis where she worked for four months earning approximately $8,442. Her evidence was that she could not keep up with the workload given her learning disability.
[34] She was then diagnosed with endometrial cancer and on September 29, 2008 she required surgery. She also indicated that Team Legal Associates went out of business and she has not worked since 2008 given her ongoing medical difficulties.
[35] I note from Ms. Misztal's evidence that a number of her health problems began years ago with her knee problems, commencing approximately 20 years ago and her foot problems, commencing in 1996 and 1998. She has also been wearing orthotics for approximately 20 years and had some shoulder problems before separation that continued after separation. Ms. Misztal's evidence was that a number of these medical conditions significantly impact her to the point where she is often unable to perform daily activities and she requires medication and constant medical treatment.
[36] Pursuant to a previous court order, both parties filed their respective affidavits as their examinations-in-chief and were cross-examined on those affidavits. Ms. Misztal filed numerous clinical notes and records of her treating physicians as part of her examination-in-chief. These clinical notes and records verify that Ms. Misztal has attended at numerous doctors’ appointments for various medical difficulties and that she has received prescriptions and ongoing treatment. However, the Court was not presented with any expert evidence as to how these medical conditions affect Ms. Misztal's ability to work. It is Ms. Misztal's position that she cannot work in any capacity given these ongoing medical conditions, yet she provided no expert report to assist the Court with this determination despite being given the opportunity to do so prior to trial.
[37] While I accept that Ms. Misztal has attended on a number of occasions at various doctors' appointments, and has received prescriptions and treatment with respect to various health concerns, there is no expert evidence, which would be open to cross-examination, to assist the Court in concluding that these medical difficulties significantly impact Ms. Misztal's ability to work in any capacity. I find it difficult to accept without expert evidence that Ms. Misztal is incapable of working in any form of employment.
[38] The evidence before the court is that Ms. Misztal is a fully licensed paralegal and has been so since March 31, 2008. On cross-examination, Ms. Misztal was unable to provide her resume, a list of companies, employers or individuals whom she had contacted directly in order to secure employment since the date of separation, any letters provided to prospective employers or any letters from prospective employers rejecting her application for employment. I find this lack of evidence concerning.
[39] Additionally, there was no evidence provided by Ms. Misztal that when she graduated from the Certificate in Law Procedures program from Ryerson University in October of 2003, she aggressively pursued any form of employment. In fact, despite her evidence that she only went to Humber College because she could not obtain employment, on cross-examination it was verified that she had in fact already applied to Humber College and did not seek employment after graduating from Ryerson.
[40] Additionally, the Court did not receive any expert evidence from Ms. Misztal that could be tested on cross-examination, proving that she was unable to work due to a learning disability. Ms. Misztal's evidence was that she was accommodated when attending Humber College and writing her paralegal licensing exams due to a learning disability, but again, no expert evidence was provided which would have assisted the Court in determining whether this would have an affect on Ms. Misztal's ability to work and retain employment.
[41] Based on the evidence, I am not satisfied that Ms. Misztal is unable to work. There is a lack of evidence before the Court that substantial efforts have been made by Ms. Misztal to obtain employment and there is no expert evidence proving that Ms. Misztal is unable to work.
[42] Ms. Misztal also contends that her financial position has worsened since the date of separation and in fact she now has debts and all her assets have been depleted. I note that Ms. Misztal's evidence was that she spent a significant amount of money pursuing her education but despite those funds being spent, no substantial effort seems to have made in using those skills to secure employment. I am also unable to determine whether Ms. Misztal's management of her funds may have led to the depletion of her assets. It may have been that alternative accommodations should have been sought by Ms. Misztal rather than attempts made to improve the cottage where she currently resides. However, there was no evidence before the Court in order for me to make that determination.
[43] Mr. Karpynczyk contends that an income should be imputed to Ms. Misztal in the amount of $30,000 or higher as this is a reasonable amount of income that a fully licensed paralegal could earn. Ms. Misztal submits that no income should be attributed to her given her inability to work based on her medical difficulties. Ms. Misztal's evidence was that when she was employed by Team Legal Associates LLP in June of 2008 for a period of four months, her income was approximately $8,442. Calculated on a yearly basis, this would amount to an income of approximately $25,000 gross. I do not find it unreasonable based on Ms. Misztal's skills and qualifications as a fully licensed paralegal and as a person who graduated from the Humber College Paralegal program with honours, to impute an income to Ms. Misztal of $25,000 gross.
(b) Is John a Dependent?
[44] Mr. Karpynczyk also submits that the Court should take into consideration the dependency of John and that even though John is 30 years of age and working part-time at Ryerson, John is dependent on Mr. Karpynczyk and this affects Mr. Karpynczyk's ability to pay increased spousal support. Mr. Karpynczyk contends that he will have to support John on a long-term basis considering John's mental health issues. As evidence of John's disability, Mr. Karpynczyk indicated that John took five years to complete a two-year course at George Brown College, he graduated with a 1.7 grade point average and that it was only due to a review of his grades that he graduated. Mr. Karpynczyk contends that John took a reduced course load of 60% and John was considered full-time even though he only took half course loads.
[45] Counsel for Mr. Karpynczyk submitted that an assessment was completed in 2011 with respect to John and that he was diagnosed with Aspergers Syndrome and mild intellectual delay. However, the assessor was not produced for cross-examination and counsel submitted that the report was only to be used for the purpose of showing that John went for an assessment. Ms. Misztal contends that Mr. Karpynczyk only subjected John to an assessment to bolster his case which was inappropriate. Ms. Misztal also submits that John is fully capable of working and in fact, he should be paying rent to Mr. Karpynczyk which should be added to Mr. Karpynczyk's income for support purposes.
[46] Mr. Karpynczyk's evidence is that the only reason John has a job is due to the fact that Mr. Karpynczyk was able to assist John in obtaining employment at Ryerson. His evidence was that John was unable to maintain his previous employment given his disability. However, there was insufficient evidence before the Court in order to determine whether John is and will remain dependent upon Mr. Karpynczyk for the foreseeable future. There was no expert evidence before me to assist with the determination of whether John has a mental health issue and how this impacts his ability to work and earn income.
[47] I do not accept that John is fully dependent upon Mr. Karpynczyk; however, given the fact that John's income is significantly low (his 2011 income being approximately $4,200 gross per year), I am not prepared to impute rental income to Mr. Karpynczyk from John.
[48] I also note that Mr. Karpynczyk's evidence was that he has been the sole supporter of John. At the time of separation John was enrolled in post-secondary education and I accept that Mr. Karpynczyk was the sole provider for John throughout the years of his dependency and that he has never received a child support payment from Ms. Misztal. This cost has been borne completely by Mr. Karpynczyk.
(c) Determination of Mr. Karpynczyk's Income
[49] Mr. Karpynczyk's total income as disclosed by his Income Tax Returns for 2010 was $90,174.60 gross and for 2011 it was $92,498.08 gross. I find that based on the evidence before me, Mr. Karpynczyk's present employment income is $91,203. gross per year. There was some discrepancy with respect to when Mr. Karpynczyk's collective agreement changes were made in the calendar year 2012 that would affect Mr. Karpynczyk's final 2012 income, but it is clear from his recent pay stub that his bi-weekly income is approximately $3507.82. Mr. Karpynczyk also has recurring interest income of approximately $2422 per year that should be added to his income. From this figure I have deducted the sum of $1286 in annual union dues payable by Mr. Karpynczyk for a total income of $92,339. As indicated earlier, I decline to impute rental income to Mr. Karpynczyk. Ms. Misztal's income I find should be imputed at $25,000 gross per year based on the reasons set out above.
(d) Quantum of Spousal Support
[50] While I have imputed income to Ms. Misztal thereby increasing her income, Mr. Karpynczyk's income has also increased and I find that Ms. Misztal is entitled to a variation in spousal support taking into consideration the objectives set out in s. 17(7) of the Divorce Act.
[51] Even though I have imputed income to Ms. Misztal, I am not satisfied that this income would enable her to achieve self-sufficiency. I accept that it would be more difficult for her given her age to find employment and that she must compete with potential employees who are much younger. I accept that this would have also been difficult for her at age 47, her age at the date of separation. Additionally, I find that Ms. Misztal continues to suffer an economic disadvantage arising from the marriage and its breakdown given her age and the roles the parties assumed during the marriage. I accept that she was primarily responsible for John's care and only worked part-time during the marriage and that this would significantly impact her and continues to do so.
[52] I also find the fact that Mr. Karpynczyk was supporting John at the date of separation without any child support from Ms. Misztal a significant factor with respect to the determination of the quantum of spousal support. I have found that there is no expert evidence before the Court that would have assisted with the determination of whether John is still a dependent and have concluded that based on this lack of evidence, John is not a dependent. As such, there is also a material change in circumstances with respect to John's dependency and this change affects the issue of spousal support.
[53] Shortly after the date of separation and prior to the judgment of Wright J., John came to live with Mr. Karpynczyk. John was a dependent child who was being supported by Mr. Karpynczyk. This would have been an important factor with respect to determining the quantum of spousal support at the time of the judgment of Wright J. given no child support was being paid by Ms. Misztal. John's dependency on his father would affect Mr. Karpynczyk's ability to pay spousal support to Ms. Misztal as he was also solely supporting John. Mr. Karpynczyk's evidence was that after separation and at the time of the judgment of Wright J. and onwards, he paid for all of John's expenses and John was in full-time attendance at school pursuing a post-secondary education. Mr. Karpynczyk's evidence was that he paid $9,000 each year for John while he was in school, which included tuition costs, supplies, books, transportation costs and other costs incurred for him to attend George Brown College. Mr. Karpynczyk no longer has those expenses.
[54] Counsel for Mr. Karpynczyk submits that the Spousal Support Advisory Guidelines, (the “SSAG”) were not in place when the original judgment was made and that they are limited in their use on variation. Counsel contends that the SSAG are generally prospective and caution should be exercised in their use on variation.
[55] Ms. Misztal contends that the SSAG should be used and that spousal support should be paid at the highest range. Ms. Misztal submits that an employment income of $93,483 should be used for Mr. Karpynczyk and that interest and other investment income of $2,422 should be added on to Mr. Karpynczyk's income as well as net rental income of $3,600, representing rental income which Mr. Karpynczyk should be receiving from John given John's employment. With a deduction of $1,286 for union dues, this results in a total gross annual income for Mr. Karpynczyk of approximately $98,200 while Ms. Misztal contends that her income should be nil. Relying on the SSAG, Ms. Misztal is seeking $3,767 in spousal support per month retroactive to October 2008, which I note would provide her with 50.5% of the parties' net disposable income while providing Mr. Karpynczyk with 49.5% of the parties' net disposable income. The low range is $2,825 per month while the midrange is $3,296 per month.
[56] Mr. Karpynczyk contends that there should be no increase in spousal support given the modest increase in his income in accordance with his collective agreement and given John is still dependent upon him. As indicated, he also contends that Ms. Misztal could and should be working full-time as was contemplated by the parties. Mr. Karpynczyk submits that if there is to be any increase in spousal support, the only increase should be the increase in the cost of living since the judgment of Wright J., in accordance with the Consumer Price Index. Mr. Karpynczyk submits that this amount would be $1,573.69 per month for spousal support.
[57] A number of decisions in Ontario have applied the SSAG on variations. The SSAG have been found to apply to the determination of amount and duration on variation of spousal support. This, of course, is subject to concerns about any entitlement issues which often arise on variation which I find is not an issue on this Motion to Change. Along with the consideration of the objectives in s. 17(7) of the Divorce Act, and the evidence of the parties, the SSAG are a useful tool in assisting the court with the determination of the amount of spousal support on variation.
[58] Using the incomes as determined, Mr. Karpynczyk's income at $92,339 and Ms. Misztal's income at $25,000, the SSAG monthly ranges are from $1,935 at the low range to $2,259 at the mid range and $2,581 at the highest range.
[59] Taking into consideration the evidence of the parties, the objectives set out in s. 17(7) of the Divorce Act and the SSAG, I order that Mr. Karpynczyk pay to Ms. Misztal the sum of $1,950 per month for spousal support. This payment shall commence from the date of April 1, 2010, (the first of the month following the date of the commencement of the Motion to Change which was March 10, 2010) and shall be payable on the first of each month thereafter subject to a material change in circumstances and further order of the Court. Mr. Karpynczyk shall be given credit for any spousal support payments that he has already made pursuant to the order of Macdonald J. dated June 28, 2011 and any arrears that have accumulated pursuant to Macdonald J.'s order shall be rescinded.
[60] The amount of spousal support payable shall be increased annually on the order’s anniversary date by the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada, subject to a material change in circumstances and further order of the Court.
[61] I decline to order that the spousal support payments be made retroactive to October 2008. There is no evidence before me to justify such a retroactive adjustment prior to the commencement of the Motion to Change. I note that Ms. Misztal requested some assistance from Mr. Karpynczyk in 2006 with respect to the repair of her property and building of a new home, but other than this request there was no evidence before me to suggest that any other requests were made.
[62] Ms. Misztal is seeking medical, dental and extended health coverage from Mr. Karpynczyk. Mr. Karpynczyk submits that he has been providing coverage to Ms. Misztal even though he has no obligation to do so under the judgment of Wright J. or the parties' separation agreement. Mr. Karpynczyk agrees to continue coverage for Ms. Misztal for so long as she is eligible for such coverage. As such, I order that Mr. Karpynczyk continue to provide medical, dental and extended health coverage for Ms. Misztal for so long as the coverage is available to him and for so long as Ms. Misztal is eligible for coverage. Mr. Karpynczyk shall immediately reimburse Ms. Misztal for any claims she submits for which he receives reimbursement from his insurer.
[63] Ms. Misztal also seeks an order that Mr. Karpynczyk provide life insurance in order to secure his spousal support obligation. Mr. Karpynczyk contends that Ms. Misztal did not claim this in her Motion to Change and that an order can only be made if the evidence supports that the support payor will fail to pay his or her obligations. Counsel for Mr. Karpynczyk contends that this is not the situation with Mr. Karpynczyk as he has always paid support until recently when he went into arrears given the temporary order of Macdonald J.
[64] Given there was no formal claim made by Ms. Misztal for life insurance coverage in her Motion to Change, I am not prepared to make an order.
[65] Ms. Misztal also seeks that she be reimbursed for fees that she paid for her schooling. Mr. Karpynczyk's evidence was that this was never requested previously by Ms. Misztal and Mr. Karpynczyk assisted with Ms. Misztal's tuition fees through his employment at Ryerson University. I find that it was Ms. Misztal's sole decision to continue with her education and not to pursue employment. Ms. Misztal's school expenses should not be a responsibility of Mr. Karpynczyk.
[66] Ms. Misztal also seeks that the Ryerson pension plan be bound to fulfill the terms of the parties' separation agreement set out at paragraph 16 which is a section dealing with pension and releases. Ryerson University is not a party to these proceedings; therefore, I am not prepared to make the order requested.
(iii) Should there be a variation in the terms of the Separation Agreement entered into between the parties?
[67] Ms. Misztal seeks that paragraphs 15.2(b)(vi) and 30 of the parties' separation agreement dated March 20, 2003 be deleted, specifically the waiver of the right of either party to receive support as a dependent from the estate of the other and an acknowledgment that the issues of child support and spousal support remain outstanding notwithstanding any releases which may have been provided for in the separation agreement. I am not prepared to make the order requested given that that neither of those paragraphs of the separation agreement were incorporated into the judgment of Wright J. which specifically dealt with the issue of spousal support and is the basis for the variation before the Court. Further, Ms. Misztal has not properly commenced an application to set aside the provisions of the separation agreement.
[68] Additionally, even if the application to set aside the provisions of the separation agreement was properly before the Court, there is no evidence before the Court to justify the setting aside of these provisions. I note that both parties had independent legal advice and it does not appear that these terms of the separation agreement result in unconscionable circumstances.
[69] Ms. Misztal testified that she was forced to sign the separation agreement so that she would receive her money from Mr. Karpynczyk. However, on cross-examination it was evident that Ms. Misztal received her equalization payment prior to the signing of the separation agreement and that the statement made by her was untrue. I accept that the equalization payment was received by Ms. Misztal approximately two months before she signed the separation agreement. I also note that Ms. Misztal's lawyer was not called as a witness and Ms. Misztal signed an acknowledgment to the separation agreement verifying that she understood the agreement and that she "signed of my own volition and without fears, threats, compulsion or influence by Mr. Karpynczyk or any other person." The Court is reluctant to set aside domestic agreements and there are no grounds here to do so.
Order
[70] I therefore order the following:
(i) The Respondent, Mr. Karpynczyk, shall pay to the Applicant, Ms. Misztal, the sum of $1,950 per month for spousal support. This payment shall commence from the date of April 1, 2010 and shall be payable on the first of each month thereafter subject to a material change in circumstances and further order of the Court. The Respondent, Mr. Karpynczyk, shall be given credit for any spousal support payments that he has already made pursuant to the order of Macdonald J. dated June 28, 2011 and any arrears that have accumulated pursuant to Macdonald J.'s order shall be rescinded.
(ii) The amount of spousal support payable shall be increased annually on the order’s anniversary date by the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada subject to a material change in circumstances and further order of the court.
(iii) The Respondent, Mr. Karpynczyk shall continue to provide medical, dental and extended health coverage for the Applicant, Ms. Misztal for so long as the coverage is available to him and for so long as the Applicant, Ms. Misztal is eligible for coverage. The Respondent, Mr. Karpynczyk shall immediately reimburse the Applicant, Ms. Misztal, for any claims she submits for which he receives reimbursement from his insurer.
(iv) All other claims by the Applicant, Ms. Misztal, set out in the Motion to Change are dismissed.
(v) I urge the parties to agree on costs, but should they be unable to do so, they shall serve and file written submissions no longer than three double-spaced pages, together with a detailed Bill of Costs and any Offers to Settle within 20 days. Any reply submissions, no longer than two double-spaced pages, shall be served and filed within 10 days thereafter.
Stevenson J.
Released: November 20, 2012
COURT FILE NO.: 02-FP-274082 0001
DATE: 20121120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LILIANE MISZTAL
Applicant
- and -
JERRY KARPYNCZYK
Respondent
REASONS FOR DECISION
Stevenson J.
Released: November 20, 2012