SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-97-55290-1
RE: Howard Naglie – Applicant v. Brenda Mussman - Respondent
BEFORE: Mr. Justice John A. McMunagle
COUNSEL:
Lawrence Pascoe, for the Applicant
Steven A. Fried, for the Respondent
E N D O R S E M E N T
PART I – RELIEF SOUGHT BY THE PARTIES
[ 1 ] This is an Application by Mr. Naglie to vary the Order of Mr. Justice Belch dated July 27, 2000. The Applicant is seeking to terminate his spousal support obligations pursuant to the aforementioned Order effective September of 2010. The Applicant is also seeking a refund of any support paid by himself to the Respondent since September of 2010. The Applicant pays $700.00 a month in support and has done so without incident since the date of the Order. Further, the Applicant is also seeking an order to terminate the requirement that he provide life insurance for the Respondent. Finally, the Applicant is seeking to enforce 2 months of child support of $270.00 a month that the Respondent owes the Applicant from 2002.
[ 2 ] The Respondent is seeking an order that the Applicant’s spousal support obligations continue as per the current Order of $700.00 per month until such time as the Applicant has paid spousal support as per the “mid-range” of the Spousal Support Advisory Guidelines.
[ 3 ] Both sides are asking that their respective actions be dismissed with costs on a substantial indemnity basis.
PART II – STATEMENT OF FACTS
[ 4 ] The parties were married on October 26, 1975. It was the first marriage for each party.
[ 5 ] The parties have two adult children who are independent and therefore child support is not an issue other than with respect to the Applicant’s request for two months of retroactive child support for the months of March and April, 2002.
[ 6 ] The parties separated 18 years later on November 13, 1993.
[ 7 ] As the parties were unable to resolve their issues the matter proceeded to trial. The trial was heard by the Honourable Mr. Justice Binks and he issued a divorce judgment on October 27, 1998.
[ 8 ] At the time of trial, the Applicant was employed on a full time basis with Canada Post and was earning approximately $85,000 per annum. The Respondent was not employed as she had had a major car accident in July of 1994 and was receiving interim disability payments.
[ 9 ] Mr. Justice Binks ordered that the Applicant pay $1850 per month in spousal support pending the outcome of her claim against the disability insurer and child support in the sum of $760.00 a month was ordered as their daughter Stacey lived with each parent on an alternating weekly basis.
[ 10 ] The Applicant then brought a motion to change which was heard by the Mr. Justice Belch on July 27, 2000. Mr. Justice Belch made substantial changes to the Divorce Order in that he reduced spousal support to $700.00 a month, and ordered that the Respondent repay the Applicant the sum of $12,420 (net of tax) in spousal support and $4,000 in child support. His Honour also ordered that the Respondent pay ongoing child support to the Applicant in the sum of $247 per month.
[ 11 ] The Respondent commenced the variation application in May, 2002, but the action never proceeded.
[ 12 ] The aforementioned Order of Mr. Justice Belch has remained in existence since 2000 and the Applicant has consistently paid $700.00 a month in spousal support since that time.
[ 13 ] There have never been any variations or cost of living increases on the spousal support since 2000.
[ 14 ] In February of 2009, the Applicant’s employment with Canada Post was terminated. He received a severance package of 20 months with benefits, which effectively ran out on the October 3, 2010.
[ 15 ] The Applicant was 58 years old at the time of his termination; he had received a severance package of 20 months to live off of before his pension kicked in. The children of the marriage were grown up and independent, he was at the age were many Canadians retire, and his health was not good as a result of developing Crohns Disease some 15 years earlier. In addition to the foregoing, the Applicant has a number of other medical problems culminating in a daily existence filled with chronic pain.
[ 16 ] However, the Applicant did do some part-time work as a bus driver until that job was terminated in January of 2011. It should be noted that in October, November and December of 2010 the Applicant had no other income and his pension did not commence until January of 2011.
[ 17 ] It is also interesting to note that the Applicant’s lawyer gave notice on September 20, 2010, that the Applicant’s severance pay was running out and that his pension would be starting in January of 2011 in the amount of $37,000, some of which the Respondent had already received by way of a PBDA, and therefore requested that his spousal support be terminated at the end of October 2010. That gave the Respondent another month of support, even though the Applicant was not making any income for the month of October other than the $1,000 a month as a bus driver.
[ 18 ] The Respondent replied that she would not consent to an order that terminated support and would have her lawyer get back to the Applicant. This did not happen and therefore this motion for change was commenced on October 15, 2010.
PART III - ANAYLIS AND LAW
[ 19 ] The first issue that has to be decided on a motion to vary is whether or not there has been a material change in circumstances. (See: s. 17 of the Divorce Act (R.S.C., 1985, c. 3 (2 nd Supp.)) and s. 37 of the Family Law Act R.S.O. 1990, CHAPTER F. 3, and the case of Bremer v. Bremer O.J. No. C41804 (Ont. C.A.)). Thankfully that issue is not contested by the Respondent and she agrees that as a result of the Applicant’s employment being terminated, and therefore being forced into retirement by Canada Post, that clearly there has been a material change in circumstances, as his income has been reduced by less than 50%. I note that the Applicant has been receiving his pension benefits since January, 2011.
[ 20 ] Further, the Respondent did not seriously argue that the Applicant should continue to work given his steady work history, his steady support payment history and his age and declining health, and therefore that issue is not relevant.
[ 21 ] What is extremely important to this Court is to review the Spousal Support Guidelines. More specifically, these Guidelines state that for an 18 year marriage, support will be payable for anywhere from 9 to 18 years, with the average being 13½ years. The Applicant having paid support since 1993, will have paid support for over 18 years. Accordingly, pursuant the Spousal Support Guidelines, the spousal support should be terminated.
[ 22 ] The Respondent is countering by saying that the Applicant did not pay enough spousal support pursuant to the same Guidelines during the period in question. Therefore, she is in effect, seeking a retroactive variation of her spousal support.
[ 23 ] I note that the Applicant earns approximately $38,000 from his pension while the Respondent earns approximately $35,000 a year, which includes approximately $8,400 in spousal support.
[ 24 ] Again I note that the Respondent began an Application to vary in early 2002, but never proceeded to complete the matter until faced with this Application. The Court finds that it would be grossly unfair to permit the Respondent to bring a spousal support variation application through the backdoor, when she has failed to bring it properly since 2002.
[ 25 ] I also understand from the materials that the Respondent has a condominium in Florida, as well as a home here in Ottawa. Clearly this is not a case where the termination of spousal support will cause severe financial hardship to the Respondent.
[ 26 ] As a result, I have no difficulty in ordering that the spousal support payable by the Applicant to the Respondent shall be terminated effective January 1, 2012.
[ 27 ] The Court also takes comfort in making this decision having received confirmation from the Applicant that his main focus was not to collect retroactively on an alleged overpayment of spousal support but simply to have his spousal support obligations terminated as a result of his retirement.
[ 28 ] With respect to the issue of life insurance, again this life insurance was provided by the Applicant to the Respondent through his employment. As a result of that employment being terminated, the Applicant is no longer required to provide such insurance. Should the Respondent require life insurance she has the means to purchase term life insurance.
[ 29 ] With respect to the Applicant’s claim for 2 months of spousal support, again the same analysis would apply. In my view you cannot wait for 10 years in order to make such a claim. If the claim was important to the Applicant, he should have made the claim, but he did not because the costs of bringing the claim outweighed the benefit.
CONCLUSION
[ 30 ] Now that the Applicant has retired both he and the Respondent have similar incomes. Based on these incomes, the amount of spousal support would be effectively nil. Of more importance to the Court is the time period that the Applicant paid the Respondent, which is at the maximum suggested by the Guidelines.
[ 31 ] The Court therefore orders:
That the order of Mr. Justice Belch dated July 27, 2000, is voided in that the Applicant is no longer requesting to pay spousal support effective January 1, 2012.
Further the Court orders that the Applicant is no longer required to maintain life insurance on behalf of the Respondent.
[ 32 ] If the parties cannot agree on costs, they shall provide me with written submissions on costs within fourteen days of these reasons. The submissions shall not exceed four pages together with Bills of Costs and supporting documentation.
Mr. Justice John A. McMunagle
DATE: February 10, 2012
COURT FILE NO.: FC-97-55290-1
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Howard Naglie – Applicant v. Brenda Mussman - Respondent BEFORE: Mr. Justice John A. McMunagle COUNSEL: Lawrence Pascoe, for the Applicant Steven A. Fried, for the Respondent ENDORSEMENT McMunagle J.
DATE: February 10, 2012