Welland Court File and Parties

Welland Court File No.: D18282/02
Date: September 11, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN: )

PAULETTE RITA COLLEY ) Ian G. Pearson,

) for the

) applicant/responding party

Applicant )

─ and ─ )

JOHN BRIAN COLLEY ) Malte von Anrep, Q.C.,

) for the

Respondent ) respondent/moving party

) HEARD: August 1 and 2, 2013,

) at Welland

J.W. Quinn J.: ─

Introduction

1In this motion, the respondent, John Brian Colley, seeks to vary a spousal- support order on the grounds that his income has fallen, since the date of the order, due to a catastrophic stroke that he suffered.

2The motion is complicated by two facts: the recipient spouse, the applicant, Paulette Rita Colley, now is living with another man; and, she alleges that health problems prevent the continuation of her employment.

3The respondent (“Mr. Colley”) asks that his support obligation be terminated and all arrears expunged.

4The applicant (“Ms. Colley”) argues that there is no basis for the termination of her support and that it should be fixed in an amount compatible with the reduced income of Mr. Colley and with her inability to remain in the workforce.

5The motion did not involve oral evidence. At the request of counsel, it was argued on the basis of the affidavits filed. Appended to an affidavit from Ms. Colley are the clinical notes and records of her family physician. The evidence also included three medical reports tendered by Ms. Colley and one by Mr. Colley.

6Neither side prepared a factum. The importance of the motion merited as much. Facta would have been helpful to the court.

Background

7Ms. Colley was born in 1958 and Mr. Colley in 1953.

8They were married in 1977 and separated in 2000, making this a 23-year marriage.

9Ms. Colley was 42 years of age at the time of separation and Mr. Colley was 47.

10The parties have two adult children who do not factor into these proceedings.

11On March 25, 2004, Ms. Colley attended upon her family physician, Dr. Isabel Nunes, complaining of:

. . . generalized bodyaching and feeling unwell . . . pain in the neck and [left] arm also lower back and [right] leg . . . States she is having pelvic discomfort and bloating . . . energy is low and her sleep is fitful . . . She [complains of] sweats and hot flashes occasionally. She is still smoking.

Dr. Nunes diagnosed fibromyalgia, but her notes show a question mark (?) preceding “fibromyalgia.”¹ I take this to mean the diagnosis was uncertain. A trial of Amitriptyline² was prescribed.

12On May 4, 2004, Dr. Nunes noted that Ms. Colley:

. . . states she is doing very well with the Amitriptyline . . . she is in much less pain and copes well during the day . . . She would like to continue . . .

Again, a diagnosis of fibromyalgia is recorded, preceded by a question mark.

13Ms. Colley did not see her doctor for the next 11 months.

14On March 18, 2005, Dr. Nunes wrote:

[Ms. Colley] still having a lot of neck and [right] arm pain. The Ibuprofen³ helps on occasion. She felt she gained weight with the Amitriptyline.

Dr. Nunes prescribed massage therapy “for chronic cervical strain [from a 2001 motor vehicle accident, I think] and fibromyalgia.”

15Ms. Colley had a CT scan of her cervical spine on June 22, 2005. It was largely normal.

16The parties were divorced in November of 2005.

17The divorce order, made on consent, required Mr. Colley to pay monthly spousal support of $3,100.00. At that time, Mr. Colley had an annual income of $120,000.00 and Ms. Colley earned $29,000.00 per year as a dental assistant. (Ms. Colley obtained her dental-assistant training during the marriage.)

18In the 12 months or so leading up to the summer of 2006, Ms. Colley saw Dr. Nunes twice about various complaints. Fibromyalgia is not mentioned again in the clinical notes until an office visit on August 29, 2006 when Ms. Colley complained of “a lot of muscle pains” and skin lesions. A diagnosis of “fibromyalgia” appears, but this time there is no question mark (I do not know what prompted the diagnostic change).

19In the period from August 29, 2006 to October of 2008 (26 months), Ms. Colley did not seek medical attention.

20In the course of her “annual health examination” on November 7, 2008, Ms. Colley complained of “multiple joint pains, neck, arms.” The clinical notes refer to Ms. Colley as a “50-year-old woman with fibromyalgia.”

21Ms. Colley deposes on the motion:

I have not worked since 2009 as it is too difficult and painful, whether I am standing or sitting.

22In the 14 months between November 7, 2008 and December of 2009, Ms. Colley did not see Dr. Nunes. (Bearing in mind that she ceased working in 2009, I would have expected some medical attention that year.)

23On January 24, 2010, Ms. Colley visited Dr. Nunes who observed:

She is coping with fibromyalgia with [over-the-counter] remedies. She hasn’t worked for about a year and is still getting support from her ex-husband and unemployment. Coping well.

24Ms. Colley saw her doctor on April 30, 2010 regarding physical complaints unassociated with fibromyalgia.

25In October of 2011, Mr. Colley suffered a stroke, leaving him paralysed on his left side and with his speech slurred. He could not dress himself, was confined to a wheelchair and moved in with his parents, requiring 24-hour care and assistance. He continued to be paid a salary by his employer. His income for 2011 was approximately $156,000.00.

26In a letter dated November 9, 2011, from Mr. von Anrep, counsel for Mr. Colley, to Ms. Colley, she was asked “to resolve the spousal support issue without the necessity of a formal motion.” A further letter was sent to Ms. Colley on December 6, 2011.

27There were no medical attendances by Ms. Colley in 2011. (Interestingly, throughout the eight years from 2004 to 2011, Ms. Colley visited Dr. Nunes nine times. In the two years between the letter of November 9, 2011 and trial, she saw her doctor on 10 occasions.)

28Ms. Colley had an annual health examination on January 12, 2012. Dr. Nunes noted:

. . . having daily pain. Takes FibroSense. Not working due to chronic pain . . . neck and arm pain . . . Exercise: not regularly.⁴ Smoking ½ [pack per day].

The concluding assessment was:

Well 53-year-old woman with 1) fibromyalgia 2) smoking.

29Dr. Nunes recorded the following on March 5, 2012:

[Mr. Colley] had a stroke and she might be losing her support . . . She feels her symptoms are extreme with her multiple pains, poor sleep and doesn’t think she could maintain a regular job.

30Ms. Colley saw Dr. Nunes 10 days later and advised that her counsel, Mr. Pearson, required a medical report. The doctor responded to Mr. Pearson on that date:

This patient was diagnosed with fibromyalgia in 2004. She was tried on medication but due to side effects and lack of efficacy it was discontinued. Her symptoms eventually caused her to stop working in 2009. At present her symptoms impede her ability to maintain any regular employment.

31In a letter dated March 16, 2012, Mr. Pearson wrote to Mr. von Anrep informing him that Ms. Colley suffered from fibromyalgia and stating, in part, “My understanding is that Ms. Colley is applying for a disability pension . . . If accepted, this may not be of any great help, as the pension would be reduced by any income or support received in an equal amount.” Ms. Colley, it turns out, did not qualify for a disability pension.

32Mr. Colley continued to receive his regular employment salary until April 19, 2012, at which time he became eligible for Long Term Disability Benefits.

33Mr. Colley ceased making his spousal-support payments on May 16, 2012 (which means that he had paid support for approximately 12 years).

34The variation motion of Mr. Colley was issued on June 7, 2012.

35On June 28, 2012, Ms. Colley attended upon Dr. Nunes for left-hip pain.

36Ms. Colley sold her residence in August of 2012 and moved in with one John Bent, whom she describes as “my friend.” She deposes in an affidavit, sworn July 25, 2013:

The arrangement was that I would contribute $500.00 a month towards the housing expenses and I would pay all my personal expenses and for my food. I am indebted to him $6,000.00⁵ for the back rent and he has told me quite bluntly this month that my living with him has become a financial drain and that he is tired of carrying me.

37On October 19, 2012, Dr. Nunes noted that Ms. Colley “looks well” and requires “a more detailed letter for her lawyer with symptoms of her disease that interfere with her ability to work.” Dr. Nunes prepared such a letter on that date. It reads:

This patient was diagnosed with fibromyalgia in 2004. She was tried on medication but due to side effects and lack of efficacy it was discontinued. Her symptoms eventually caused her to stop working in 2009. Her symptoms include neck and arm pain, hands and shoulders and also leg and hip and low back pain. Also suffers from difficulty sleeping and as a result of all these she has difficulty in concentration and memory and ability to learn new material. The nature of this syndrome is that symptoms vary in intensity and oscillate between exacerbations of worsening symptoms and episodes of less symptoms. Another feature is generalized fatigue and depressed mood. At present her symptoms impede her ability to maintain any regular employment.

38The final medical visit to which I will refer was on May 30, 2013 at which time Dr. Nunes notes:

. . . also asking for redo of the letter I gave her earlier . . . for her lawyer. She would like me to add a couple of more details which she thinks that I left out re the severity and frequency of her symptoms . . .

39Therefore, Dr. Nunes prepared another report for Mr. Pearson on May 30, 2013. I will set it out entirely, but before doing so I point out that it differs only slightly from the previous medical report dated October 19, 2012. I have underlined the passages that have been added in this new report:

This patient was diagnosed with fibromyalgia in 2004. She was tried on medication but due to side effects and lack of efficacy it was discontinued. Her symptoms eventually caused her to stop working in 2009. Her symptoms include neck and arm pain, hands and shoulders and also leg and hip and low back pain. Also suffers from difficulty sleeping and as a result of all these she has difficulty in concentration and memory and ability to learn new material. The nature of this syndrome is that symptoms vary in intensity and oscillate between exacerbations of worsening symptoms and episodes of less symptoms. At times the pain is severe enough causing inability to drive or walk normally. Another feature is generalized fatigue and depressed mood. Some days her symptoms cause her to spend most of the day resting. At present her symptoms impede her ability to maintain any regular employment.

40At some point (I do not know when), Mr. Colley’s care became too much for his aged parents (they are in their 80s) and he went to live with his fiancé. As Mr. Colley puts it in his affidavit, she provides a level of care that “far exceeds what I would receive in a facility and at a significantly reduced cost.”

41Ms. Colley is now 55 years of age and Mr. Colley is 60.

42Finally, I should mention that the capital and property positions of the parties are inconsequential on this motion.

Discussion

the medical evidence concerning Mr. Colley

43Tendered in evidence on behalf of Mr. Colley was a medical report from Dr. Richard W. McMillan, a doctor of physical medicine and rehabilitation, dated July 23, 2013. After describing Mr. Colley as having had a right hemispheric stroke on October 8, 2011, Dr. McMillan writes:

He has dense weakness of the left arm (unable to move it). He is wheelchair dependent. He is at risk of falling. He can transfer with one person. At times, Mr. Colley may walk with a single-point cane with the assistance of one person for short distances only. He requires assistance for all activities of daily living . . .

As for the future, the report continues:

Mr. Colley is 21 months since his stroke. The majority of motor recovery is seen 3-6 months after a stroke. Based on his recovery to date, he has reached his maximal medical recovery. His deficits are permanent severe and prolonged. He will not get better. He will continue to require assistance for all activities.

44The prognosis of Dr. McMillan is unchallenged; and, it is inherently logical.

Mr. Colley’s income

45There appears to be no dispute that currently Mr. Colley has an annual income of $53,000.00 (rounded), consisting of non-taxable disability benefits.

“a change in the condition, means . . . or other circumstances”

46In accordance with s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am., before varying an order for spousal support, the court must be satisfied 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 . . . and, in making the variation order, the court shall take that change into consideration.”

47Section 17(4.1) does not speak of the need for the “change” to be “material.” However, the cases have uniformly imported the requirement of materiality.

48A “material” change cannot be trivial or insignificant: see Hickey v. Hickey, 1999 691 (SCC), [1999] S.C.J. No. 9 (S.C.C.), at para. 20.

49The significant reduction in the income of Mr. Colley easily satisfies the requirement for “a change in the condition, means . . . or other circumstances of either former spouse” contemplated by s. 17(4.1).

50The fact that Mr. Colley had a stroke is relevant in two respects: it provides a valid reason for the reduction in his income; and, it suggests some permanence or continuity to that reduction.

the variation protocol

51Section 17(7) of the Divorce Act provides that the variation of a spousal-support order “should . . .

(a) recognize any economic advantages or disadvantages to the former spouse 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) in so far as practicable, promote the economic self sufficiency of each former spouse within a reasonable period of time.

52The spousal-support objectives found in s. 17(7) mirror those set out in s. 15.2(6). Thus, once a change under s. 17(4.1) has been established, the same considerations apply to the variation of a spousal-support order as are taken into account on an original claim for support under s. 15 of the Divorce Act (in the course of which the court must consider all relevant facts).

53Because the parties did not lead evidence in respect of the four objectives of spousal support, effectively, I was left to address this variation motion within the confines of the three factors raised by counsel: (1) the reduction in the income of Mr. Colley; (2) the allegation that Ms. Colley is unemployable for medical reasons; and, (3) the re-partnering of Ms. Colley.

relevance of the basis for the prior order

54Ms. Colley deposes that the 2005 spousal-support order,

. . . was the mid-point calculation of the Spousal Support Advisory Guidelines, which [Mr. Colley] was insisting was the appropriate level . . . I was told by my solicitor that because we had a 24½-year relationship,⁶ that the upper level was within the range . . . but I chose to accept [Mr. Colley]’s offer so that we could move on with our respective lives.

In a later affidavit she states:

I settled at the low end of the scale as I was sick of arguing and did not want to go deeper into debt paying legal bills.

55These affidavits are contradictory. Each describes a different settling point in the range of spousal support under the Spousal Support Advisory Guidelines (“SSAGs”). I am unable to ascertain where, within the SSAGs range, the prior spousal-support order fell as there is insufficient evidence on that point. However, it may not be very important. Even if the low point in the range was accepted by Ms. Colley when the prior order was made, she cannot suggest that, as a result, the pending variation should be decided more generously for her than otherwise warranted. A variation order is not intended to cure shortcomings in the prior order; that is the function of an appeal. (Providing “make-up” support is not the purpose of a variation order.)

56Had the prior order not been made on consent, we would have the benefit of the reasons of the trial judge which would tell us what objectives under s. 15.2(6) were emphasized and why, and what range under the SSAGs was used, where, within that range, support was fixed and why. This information might be of assistance on a variation motion. But, that assistance will be limited because of the requirement that the variation court consider the spousal-support objectives in s. 17(4.1). In other words, once the threshold change has been proved, the court is to consider spousal support anew and embark upon a fresh inquiry concerning the objectives of spousal support.

relevance of Mr. Colley’s expenses

57In determining the amount of support to be paid by anyone, I rarely find it helpful to consider the expenses of the payor. People tend to spend what they earn. Only expenses that are clearly abnormal will catch my eye. Here, Mr. Colley did have some medical expenses associated with his incapacitating stroke but they either were met by insurance or were short-term in nature. Consequently, his expenses have not played a role in my decision.

relevance of Ms. Colley’s failure to seek increased support in the past

58Ms. Colley maintains that there were years following the divorce order that Mr. Colley earned more than $120,000.00. For example, his income in 2011 was $156,346.00, in 2010 it was $177,370.00 and in 2009 it was $189,016.00.

59It is irrelevant that Ms. Colley could have sought to increase spousal support. In other words, the fact that Mr. Colley, in recent years, may have “escaped” paying increased spousal support is of no importance. The divorce order neither obligated Mr. Colley to inform Ms. Colley should his income increase nor required the annual disclosure of his income tax returns or notices of assessment. Absent such provisions in the divorce order (and Ms. Colley was represented by senior counsel on the divorce) there is no such obligation, common law or statutory, owed by Mr. Colley.

the medical evidence relied upon by Ms. Colley

60There is a lack of persuasive evidence explaining why the diagnosis of fibromyalgia was first considered for Ms. Colley, how it went from questioned to definitive and whether conventional treatment modalities were pursued. I am unable to determine whether the treatment steps taken by Ms. Colley were comprehensive or otherwise reasonable.

61I agree with the submission of Mr. von Anrep that the severity of the fibromyalgia symptoms leading up to 2009 is not consistent with the need for Ms. Colley to end her employment as a dental assistant.

62The medical reports of October 19, 2012 and May 30, 2013 are unhelpful because they merely repeat what Dr. Nunes was told by her patient. I require something more objectively based.

63The evidence tendered on this motion comes up short of what is required to excuse Ms. Colley from the workforce. No neurologist or other specialist has provided support for the diagnosis of fibromyalgia. No expert has opined that fibromyalgia, here, is a career-ending condition. Ms. Colley has not met her evidentiary burden. She must prove that the state of her health prevents employment.

income to be imputed to Ms. Colley

64With Ms. Colley not having shown a medical basis for her inability to be employed, she must suffer an imputation of income. To be consistent with my finding that the medical evidence filed does not justify Ms. Colley quitting her employment as a dental assistant, I should, logically, impute the income of a dental assistant. However, counsel for Mr. Colley only asks the court to impute minimum-wage income of $21,300 annually, and I hereby do so.

relevance of Ms. Colley’s current living arrangements

65Ms. Colley has alleged something in the nature of a landlord-tenant relationship with Mr. Bent. Accordingly, she bears the burden of proving this fact, otherwise she must face the logical inference that, instead, it is a romantic or common-law relationship. She has not met that burden. The essence of a landlord-tenant relationship is the payment of rent. She is not paying rent.

66Finding, as I do, that the arrangement with Mr. Bent is a common-law union, it is the responsibility of Ms. Colley to provide evidence of the income and financial status of Mr. Bent. I cannot assess her need for spousal support without full financial information in respect of Mr. Bent and of their standard of living.

67Because Ms. Colley bears the onus of proving need, she must bring forward all relevant financial information in respect of Mr. Bent, otherwise she risks the court making an adverse inference that need does not exist.

68It is a trite observation that it is not the re-partnering itself that places a prior spousal-support order in jeopardy, but the financial implications for the recipient spouse of the re-partnering (hence, the importance of knowing the full financial circumstances of Mr. Bent).

69When considering the implications upon a need-based spousal-support order of the re-partnering of a recipient spouse, there are two important questions to ask:

(a) Does the recipient spouse have a present need for support?

(b) Does her new partner have a legal obligation to contribute to her expenses?

70Where the prior spousal-support order contains a compensatory component, the following questions are appropriate;

(a) Has the recipient spouse overcome the economic disadvantages arising from her role in the marriage so that there is no basis for continuing compensatory support?

(b) Have compensatory concerns been fully addressed as of the date of the variation?

(c) Should the court reduce or eliminate the need-based portion of the prior order, while maintaining the compensatory portion?

71The distinction between a compensatory and a non-compensatory spousal support order can be important because the former is less likely to be affected by the recipient spouse living with another man. The prior order here is silent as to whether it contains a compensatory component. It would be improper for me to infer such a component. (For example, there is no evidence that Ms. Colley gave up a career to marry Mr. Colley or that the functions performed by her during the marriage warrant compensatory support. All I have are two facts: the parties were married for 23 years and they had two children – although I would not be surprised if it could be successfully argued that the breakdown of the marriage created an economic hardship for Ms. Colley).

the SSAGs

72Once I have determined the incomes of the parties, I do not see why I should not look to the SSAGs to see what spousal support figure results, as that would represent a very good starting point.

73Using the annual incomes of the parties that I have found apply – Mr. Colley $53,000.00 (non-taxable) and Ms. Colley $21,300.00 (imputed) – the DIVORCEmate calculations supplied by Mr. von Anrep (which are based upon the SSAGs) provide a range of low, medium and high monthly spousal support figures of $905.00, $1,056.00 and $1,207.00, respectively.

74However, it is unfortunate that the SSAGs do not contain any formula to reflect the remarriage or re-partnering of the recipient spouse. (The cases on re-partnering are an unfulfilling read and are not of much assistance beyond the expression of general principles. I yearn for more specific guidance in this area and would gladly trade some flexibility for a measure of predictability.)

conclusion

75If this case only involved the reduced income of Mr. Colley and the imputed income of Ms. Colley, I would vary the monthly spousal support to $1,056.00, being the mid-range figure in the SSAGs. (There being no basis to go high or low, mid-range is my default position.)

76What is the impact of the re-partnering of Ms. Colley? As she has not provided the necessary evidence regarding the financial situation of Mr. Bent, I am greatly disadvantaged, but I conservatively infer that her needs are reduced, at least, by that living arrangement. (I toyed with the thought of drawing an adverse inference of no need. However, that seemed extreme and, intuitively, probably inaccurate.)

77In all of the circumstances, bearing in mind, (1) the age of Ms. Colley (55), (2) the fact that this was a 23-year marriage, (3) the absence of evidence that compensatory support was part of the prior order, (4) the likely existence of some need, and (5) the short duration, to date, of the re-partnering, I think fairness requires that the spousal support be reduced in stages, but not terminated.

78Due to the absence of evidence of the financial situation of Mr. Bent and its effect upon determining whether Ms. Colley has a need for support, I have selected, as my remedial tool, the low-point in the SSAGs range.

Result

79The motion by the respondent for a variation is allowed.

80Effective June 1, 2012, paragraph 2 of the order of November 17, 2005 is varied such that the monthly spousal-support payments by Mr. Colley shall be reduced to $ 905.00, with further reductions as follows:

(a) on January 1, 2013 to $805.00,

(b) on January 1, 2014 to $705.00,

(c) on January 1, 2015 to $605.00 and,

(d) on January 1, 2016, to $505.00, where they shall remain unless further varied.

81My initial inclination would be to order no costs on the motion (neither side achieved their main objective). However, if costs are an issue counsel should contact the trial co-ordinator in St. Catharines to arrange a date for oral submissions (to be made in St. Catharines even though this is a Welland proceeding). If no such date is sought within 21 days of the release of these Reasons, the parties shall be deemed to have settled the issue of costs.

The Honourable Mr. Justice J.W. Quinn

Footnotes

1. 1I am surprised that a diagnosis of fibromyalgia flowed from this constellation of complaints. (Very generally, fibromyalgia is a muscle disorder that usually causes widespread muscle pain and tenderness.)
2. 2Amitriptyline is an antidepressant medication.
3. 3Ibuprofen is the generic name for a commonly used pain reliever. It is a non-steroidal anti-inflammatory drug. There is no reference in the clinical notes of Dr. Nunes regarding how this over-the-counter medication came to be used by Ms. Colley.
4. 4As a restricted form of judicial notice, based upon previous trials, I observe that many doctors recommend regular exercise as part of any fibromyalgia treatment regime.
5. 5This means that Ms. Colley, who, by this time, had been living with Mr. Bent for 12 months, had not paid a penny toward “rent.” Am I really supposed to believe that this was some form of landlord-tenant relationship?
6. 6This figure includes approximately one year of pre-marital cohabitation.