COURT FILE NO.: F1231/12
DATE: 2012/11/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brian George Mercel, Applicant
AND:
Therese Delina Bouillon, Respondent
BEFORE: The Honourable Madam Justice D. L. Chappel
HEARD: October 30, 2012
REASONS FOR JUDGMENT
[1] This was the hearing of a Motion to Change Final Order brought by the Applicant Brian George Mercel (“the Applicant”) on July 20, 2012. In this Motion to Change, the Applicant has requested that the order of the Honourable Mr. Justice Disalle dated July 20, 1995 (“the order”), which required him to pay the Respondent spousal support in the amount of $975.00 per month, be terminated effective June 2012.
[2] The Respondent was properly served with the Motion to Change Final Order and supporting materials on July 26, 2012, pursuant to the order for substitutional service dated July 20, 2012. The Respondent has not responded to the Motion to Change, and therefore this matter proceeded to a hearing on an uncontested basis.
[3] Although this proceeding has been framed as a variation of the spousal support order, it is in fact a spousal support review proceeding. Paragraph 3 of the order stipulates that the support order could be reviewed “when the plaintiff reaches the age of sixty five, and receives any Government pension that she may be entitled to.”
[4] I heard oral evidence from the Applicant in support of his request for a termination of spousal support. In addition, I reviewed the Reasons for Judgment of Disalle, J. dated July 20, 1995, the Applicant’s Financial Statement sworn June 9, 1995, which the court relied upon in making the order, and all of the documents filed in support of this Motion to Change. Based on this information, I make the following findings:
[5] By way of background, the Respondent was born on February 4, 1932, and is therefore now eighty years old. The Applicant was born on May 27, 1947, and is now sixty five years of age. At the time of the hearing before Disalle, J., the parties disagreed as to whether they in fact cohabited in a common law relationship. The Reasons for Judgment of Disalle, J. indicate that he accepted the Respondent’s evidence that the parties lived in a common law union. He concluded that they began to cohabit in approximately 1978, and that they separated in approximately December 1992.
[6] When the order was made, the Respondent was not working and had no assets. The Applicant’s income was approximately $34,000.00 per year, consisting of workers’ compensation benefits and investment income. The court found that the Applicant had a monthly surplus of approximately $528.00 per month based on his proposed budget. In addition, the Applicant owned a home valued at $163,000.00, vehicles valued at $17,000.00, savings totalling $52,027.47, and securities valued at $182,000.00.
[7] In 2011, the Applicant’s annual income was approximately $48,000.00. Since June 2012, his income has decreased to $34,000.00 per annum. The decrease in his income is attributable to the fact that his eligibility for a pension supplement terminated as of June 2012. The Applicant no longer has any investments. He states that he was required to encroach on these investments in order to manage financially over the years. He no longer owns a home. The total value of all of his assets now, including his vehicles, is $18,675.00. The Applicant has a monthly deficit of approximately $48.00, not including his monthly spousal support obligation of $975.00 per month.
[8] The concept of spousal support review orders has developed as a means of dealing with uncertainty about the financial prospects or other circumstances of either of the parties, where there is an expectation that the uncertainty will be resolved in the foreseeable future. A review order provides the parties with an opportunity to have the situation considered by the court once again at a future date, as a fresh application, without the necessity of proving a material change in circumstances as is required in a variation proceeding. The court on the review hearing once again determines the issues of entitlement, quantum and duration based on the factual situation that exists at the time of the hearing.
[9] The legislation which applies to the spousal support claim in this case is the Family Law Act[^1] (the “FLA”). Section 33(1) of the FLA provides that a court may, on application, order a person to provide for the support for his or her dependants and determine the amount of support. The purposes of an order for spousal support are set out as follows in section 33(8):
Purposes of order for support of spouse
33(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
[10] Section 33(9) sets out the factors which the court is required to consider in determining the amount of spousal support that should be ordered, as follows:
Determination of amount for support of spouses, parents
33(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
[11] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.
[12] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the context of the Divorce Act[^2] in the cases of Moge v. Moge[^3] and Bracklow v. Bracklow.[^4] These principles should also be considered by the court in determining the issue of spousal support under the FLA.[^5]
[13] In Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in Moge and Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind three conceptual models upon which entitlement to spousal support may arise. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage.[^6] Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation.[^7] Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of a spouse, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage.[^8]
[14] Applying these general principles to the facts of this case, I conclude that the Applicant has made out a case for a termination of his spousal support obligation towards the Respondent. While it is not necessary on a review application to establish a material change in circumstances since the original order was made, the existence of such a change is relevant to the determination of any ongoing spousal support obligation. I find that there have been material changes in the Applicant’s situation since July 20, 1995. His income is now the same as it was in 1995, despite the significant rise in the cost of living over the past seventeen years. He no longer has investments from which to draw additional income, and his asset base has decreased significantly. While he was in a monthly surplus situation in 1995, he is now in a significant monthly deficit situation after paying the monthly spousal support amount. I accept his evidence that he is barely able to meet his own needs from his current income, quite apart from paying spousal support.
[15] The Respondent has not served and filed an Answer and Claim, and therefore I do not have the benefit of any information about her current situation. However, the judgment of Disalle, J. reflected an intention that spousal support should be reviewed when the Respondent turned 65 years of age and began to receive any government pension which she was entitled to. The Respondent is now 80 years old, and the Applicant has continued to diligently comply with his spousal support obligation despite the passage of fifteen years since the review date which the court suggested in 1995.
[16] All of the above-noted considerations lead me to conclude that the Respondent is no longer entitled to spousal support. In reaching this conclusion, I have considered the ranges and duration which the Spousal Support Advisory Guidelines (“SSAG”) would have generated based on the parties incomes at the time of separation, the length of their cohabitation and the Respondent’s age at the time of separation. The SSAG set out ranges of $595.00 (low range), $694.00 (mid range) and $793.00 (high range), on an indefinite basis but subject to a possible review or variation. The amount which the Applicant has actually been paying each month since 1995 is much higher than the high range established by the SSAG. While the SSAG are not binding, they provide a useful tool for the court in carrying out the spousal support analysis. The very high level of spousal support which the Applicant has been paying for the past seventeen years is another factor which I have considered in determining that a termination of the spousal support order is appropriate at this time.
[17] Based on the foregoing, a final order shall issue as follows:
The obligation of the Applicant Brian George Mercel (“the Applicant”) to pay spousal support to Respondent Therese Delina Bouillon (“the Respondent”), as set out in paragraph 1 of the order of the Honourable Mr. Justice Disalle dated July 20, 1995, is hereby terminated effective May 31, 2012.
The Respondent shall reimburse the Applicant for any overpayment of spousal support paid to her after May 31, 2012 by sending a certified cheque in the full amount of the overpayment to the Applicant to 1497 Second Concession West, R.R. #1, Lynden, Ontario, L0R 1T0 within sixty days of being served with this order.
A Support Deduction Order shall issue.
This order bears post-judgment interest at the rate of 3% per annum, effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
The substitutional service order of Lafrenière, J. dated July 20, 2012 shall apply to service of this order on the Respondent.
The Honourable Madam Justice D.L. Chappel
Date: November 21, 2012
COURT FILE NO.: F1231/12
DATE: 2012/11/21
SUPERIOR COURT OF JUSTICE - ONTARIO
Brian George Mercel, Applicant
AND:
Therese Delina Bouillon, Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice Chappel
Released: November 21, 2012
[^1]: Family Law Act, R.S.O. 1990, c. F-3, as amended.
[^2]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.
[^3]: Moge v. Moge, (1992), 1992 25 (SCC), 43 R.F.L. (3d) 345 (S.C.C.).
[^4]: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.).
[^5]: Halliday v. Halliday (1997), 1997 737 (ON CA), 37 R.F.L. (4th) 192 (Ont. C.A.)
[^6]: Moge v. Moge, Supra., paras. 68-70.
[^7]: Bracklow v. Bracklow, Supra., para. 38.
[^8]: Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, July 2008), at p. 9.