COURT FILE NO.: 116/11
DATE: 2013/01/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HERBERT HEYWOOD
R. Sandy Bruce, for the Applicant
Applicant
- and -
RETA HEYWOOD
Respondent
James Battin, for the Respondent
HEARD: November 30th, 2012
LEACH, J.
[1] This judgment follows a trial in which the parties were focused on determination of a single issue; i.e., the extent to which spousal support agreed upon in a domestic contract should be modified owing to a material change in circumstances.
[2] Formally, that issue is before the court via an application by Mr Heywood pursuant to s.37(2) of the Family Law Act, R.S.O.1990, c.F.3, as amended, for a discharge/termination, effective June 30, 2011, of spousal support obligations he otherwise has pursuant to the parties’ domestic contract dated June 24, 2010; (a domestic contract filed with the court pursuant to section 35 of the same legislation, for purposes of enforcement and variation).
Evidence at Trial – Preliminary Comments
[3] During the course of the trial, testimony was received from each of the parties, and from Mrs Heywood’s sister, Dorothy Herman.
[4] Each of these witnesses gave evidence in very forthright, candid and compelling manner. Each party, in particular, readily acknowledged the legitimate challenges and difficulties facing the other, and aspects of the parties’ marital history, (relating to matters such as employment and physical conditions), which might have relevance to the present dispute.
[5] Certain testimony offered by the parties was challenged by questions posed during cross-examination, but not by contradictory evidence. In the result, although the parties rejected certain propositions and suggestions put to them by opposing counsel during cross-examination, I find this is not really a case where any material evidence is in conflict, or credibility determinations are required.
[6] In essence, the underlying facts are not in dispute based on the evidence before me. The parties simply disagree on the result that should follow, having regard to those facts.
Background to Current Dispute
[7] The parties were married on October 6, 1973, and separated over 35 years later on May 13, 2009, (by which time their two children were adults and no longer dependent on Mr and Mrs Heywood).
[8] The parties have never divorced. However, with the assistance of their respective lawyers, they were able to reach a documented Separation Agreement, effective June 24, 2010; (i.e., the “domestic contract” referred to above).
[9] The complete text of the parties’ agreement was tendered in evidence. By way of overview:
a) Mr Heywood agreed to pay Mrs Heywood spousal support in the amount of $1,200.00 per month, starting on February 1, 2010. Generally, the agreed monthly support payments were to continue until the time of Mrs Heywood’s death or the time of Mr Heywood’s contemplated retirement on October 1, 2014. However, the agreement also expressly permitted variation of the agreed spousal support “if there [was] a material change in circumstances, even if the change was foreseen or foreseeable”. The sort of change contemplated by the parties expressly included a change “in either party’s financial position”, a change “in either party’s health”, or “any similar change”.
b) Mr Heywood agreed to maintain medical and dental coverage through his employment for Mrs Heywood’s benefit “for as long as it [was] available to him”.
c) The parties agreed on detailed provisions to effect a division and equalization of matrimonial property. These included provisions requiring Mr Heywood to rollover half the value of his RRSP accounts, provisions effectively requiring an equal division of the parties’ pension entitlements, (e.g., confirming the right of either party to apply for a division of Canada Pension Plan credits, and requiring Mr Heywood to direct a division of his employment pension into two equal portions so that each would benefit equally from the plan), Mr Heywood’s assumption of responsibility for joint indebtedness, and Mr Heywood’s effective purchase of Mrs Heywood’s equity in the matrimonial home in Mount Elgin by way of an agreed equalization payment of $40,000, (which Mr Heywood financed by the assumption of further debt).
d) The parties confirmed their intention to have the agreement comprehensively settle all issues between them and, (except as otherwise provided in the agreement), their intention to release each other from all present and future claims. Each confirmed their receipt of independent legal advice, and acknowledged that the agreement was “fair and reasonable”. The agreement also expressly acknowledged that its provisions regarding spousal support and property were “interdependent and inextricably intertwined”, and that the said provisions collectively were intended to “fully satisfy the support objectives set out in the Divorce Act and the Family Law Act”.
[10] It is not disputed that, aside from the anticipated equal division of Mr Heywood’s employment pension, (which I will discuss further below), all agreed arrangements concerning division and equalization of the parties’ matrimonial property were carried through to completion after execution of the Separation Agreement.
[11] Similarly, it is not disputed that Mr Heywood complied with his agreed spousal support obligations through to the spring of 2011.
[12] However, matters have taken an unexpected turn.
[13] At the time of the parties’ Separation Agreement in June of 2010, Mr Heywood was still employed by Atlantic Packaging Prod. Ltd., (“Atlantic Packaging”), at its plant in Ingersoll, Ontario. His annual income from that job was approximately $39,630.00, (the level of income used to calculate his spousal support obligation in the Separation Agreement). Both he and Mrs Heywood had anticipated that he would continue working there until his contemplated retirement in 2014.
[14] Unfortunately, on or about February 4, 2011, Atlantic Packaging then shut down operations completely and terminated all of its employees, including Mr Heywood. (It was not disputed that Mr Heywood advised Mrs Heywood of his termination by Atlantic Packaging shortly after it happened.)
[15] Mr Heywood received 19.75 weeks’ worth of severance pay from Atlantic Packaging in lieu of notice, which effectively continued his former level of income through to June 22, 2011. During that period, Mr Heywood continued making the monthly support payments, ($1,200.00 per month), required by the Separation Agreement.
[16] Mr Heywood’s work-related coverage for medical and dental benefits similarly came to an end a short time after his formal termination. (Prior to termination of the coverage, Mr Heywood also advised Mrs Heywood that the coverage was about to end, and that she accordingly should submit any remaining claims for benefits as soon as possible.)
[17] It is acknowledged that all of these developments were beyond the control of Mr Heywood, who at the age of sixty, found himself unexpectedly and unemployed well before his anticipated age of retirement.
[18] He applied for employment insurance benefits, and ultimately received and retained three weeks of benefit payments. (He initially received ten weeks of benefits, but was obliged to repay most of this because of the severance payment received from Atlantic Packaging.)
[19] He also went to considerable lengths to search for new employment; e.g., hand-delivering hundreds of resumes, applying online to numerous job postings, attending at three employment-locating services to obtain their assistance, and making efforts at retraining on computers.
[20] However, his experience, age and various health issues limited his prospects for re-employment.
[21] In the result, he obtained a new job as a “full time part time” gas station attendant at a new Canadian Tire service centre located on Highway 401, between Woodstock and Ingersoll, (a considerable drive from his home in Mount Elgin). His employment there commenced on or about August 1, 2011, at the prevailing minimum wage rate of $10.25 per hour. Since then, his wage rate has increased slightly to $10.60 per hour.
[22] His employment contract with Canadian Tire guarantees him only 32 hours of work per week, which at $10.60 per hour, and would generate a gross annual income of approximately $17,600.00.
[23] Mr Heywood sometimes has been able to work more than 32 hours per week, (in circumstances discussed in more detail below). In the course of his testimony, Mr Heywood informally indicated that such “extra hours” might raise his gross annual income in 2012 to the range of $22,000.00 to $23,000.00.
[24] However, there is no dispute that his annual income has been greatly reduced from that enjoyed during his time at Atlantic Packaging, and that this should be regarded as a “material change in circumstances” within the meaning of the Separation Agreement provisions permitting variation of its spousal support obligations.
[25] The question before me is the extent to which Mr Heywood’s spousal support obligation should be varied, and the timing of the variation. (It is common ground that Mr Heywood has not made any further spousal support payments to Mrs Heywood since his severance pay from Atlantic Packaging ran out in June of 2011, such that arrears of spousal support owed pursuant to the Separation Agreement formally have accumulated since then.)
Situation of the Applicant
[26] Mr Heywood was born on September 16, 1949, and currently is 63 years of age.
[27] He readily acknowledged that, during the course of the parties’ marriage, he was the “main breadwinner”.
[28] However, he has experienced health issues. These include receipt of artificial hips, which are expected to deteriorate over time. His application for new health coverage was rejected by the relevant insurer, apparently because his medical history suggested too many concerns. (Accordingly, neither he nor Mrs Heywood has access to medical or dental benefits through his new employment.)
[29] Despite such concerns, Mr Heywood is not, (in his words), “on disability yet”. For the time being at least, his work with Canadian Tire continues.
[30] Further details about his new job were elicited during the course of his testimony, and include the following:
a) His job related expenses are not covered by his new employer, and have increased considerably compared with those incurred during his time at Atlantic Packaging. For example:
i. He now has to travel farther to and from work on a regular basis, (with the service station’s location on Highway 401 effectively permitting access and egress in a very indirect and roundabout way). This in turn necessitates increased fuel consumption, vehicle depreciation and maintenance, and the purchase of winter tires for safety reasons.
ii. He is required to pay for his own uniforms and required work shoes, (which wear out frequently through constant use), and similarly make his own arrangements to launder his uniforms on a regular basis.
iii. To maintain a tidy and presentable appearance for customers of the service station, he also now is required to have haircuts on a much more frequent basis. (This too was not a concern during his time at Atlantic Packaging.)
b) Mr Heywood has achieved the “top hourly rate” available at the Canadian Tire service station, short of a job in management. The latter nevertheless is not a possibility for him. Not only are there no management shifts available, but Mr Heywood candidly indicated that he would not be qualified or considered for such work in any event. He lacks the necessary experience and computer training, and in the words of Mr Heywood, his new employer generally is “not keen” on him because he is “too old”.
c) As noted above, Mr Heywood’s employment contract guarantees him only 32 hours of work per week at $10.60 per hour, which equates to an annual income of $17,600.00 per year, (assuming he works through each and every week of the year). However, Mr Heywood proactively indicated that his work carries the possibility of “extra hours” being offered to him, (e.g., “because other people don’t always come into work”). This has happened more frequently of late owing to the recent departure of another employee, whose replacement is not yet considered by Canadian Tire to be “ready for the busy hours” without some degree of further training and experience. These factors have combined to give Mr Heywood 40 hours of work per week, in recent weeks. However, other uncontradicted evidence from Mr Heywood confirmed that:
i. His employment contract still guarantees only 32 hours of work per week.
ii. Canadian Tire has made it clear that it generally “doesn’t like” Mr Heywood receiving more than 35 hours of work per week.
iii. Canadian Tire has an absolute restriction on employees such as Mr Heywood receiving more than 40 hours of work per week, (which at $10.60 per hour, 52 weeks a year, would generate a maximum gross income of $22,000.00). In the case of Mr Heywood, the restriction is enforced by a standing direction that he is not to be called in for further work once he has worked 40 hours per week.
iv. While Mr Heywood would prefer his number of work hours to remain at 40 per week, (given his financial situation, addressed below), he has been told not to expect this in the future. Indeed, Canadian Tire has told him that his number of work hours generally will be scaled back to the guaranteed 32 hours per week, (e.g., when the new replacement employee is considered ready to assume greater responsibility).
[31] Based on the above evidence, it seems clear that, despite Mr Heywood’s own informal “guesstimate” that he might earn $22,000.00 to $23,000.00 in 2012, his employer’s policies and practices, (which probably reflect a conscious desire to establish a more than adequate “time buffer” between work permitted to its “part time” employees and greater amounts of work that might trigger various consequences pursuant to employment standards legislation), make it very unlikely that Mr Heywood will earn more than $22,000.00 in gross income per year from his new job at Canadian Tire.
[32] Indeed, based on the evidence, it seems to me that, despite his hopes to the contrary, Mr Heywood quite likely will earn less than $20,000.00 in gross annual income from Canadian Tire in the future; (a finding that has relevance for reasons discussed below).
[33] Certainly, that will be the case if Canadian Tire follows through on its stated intention to scale Mr Heywood’s work time back to 32 hours per week in the near future.
[34] However, even a modest reduction in his permitted weekly hours, (e.g., from 40 to 37 hours per week – which would still be five hours beyond Canadian Tire’s stated intention and two hours beyond its preferred weekly maximum), will result in Mr Heywood receiving less than $20,000.00 in gross annual income.
[35] Of course, the probability of Mr Heywood falling short of the hours required to generate $20,000.00 in gross annual income also will be increased if Mr Heywood fails, for any reason, (such as illness), to work constantly throughout each and every week of the year.
[36] In my opinion, despite the atypical hours currently being worked by Mr Heywood, the reality is that he is likely to earn between $17,600.00 and $20,000.00 per year from Canadian Tire, (before deductions for income tax, employment insurance and union or association dues, which total approximately $320.00 per month).
[37] This generally substantiates the assertion, made repeatedly during the course of trial, that Mr Heywood’s income effectively has been cut in half by the unexpected and involuntary changes in his employment.
[38] The above summarizes Mr Heywood’s income situation and prospects.
[39] Evidence outlining Mr Heywood’s monthly expenditures was provided by way of a sworn financial statement dated July 20, 2011, supplemented and clarified by his oral testimony. In particular:
a) The financial statement from July of 2011 projected monthly income from all sources of $1,420.24, (Mr Heywood’s expected income from his new job at Canadian Tire, which would begin at the end of that month), automatic monthly income deductions of $320.95, and monthly expenses totaling $2,936, (including servicing of his numerous debts, as well as all living and health/medical expenses), generating a projected monthly deficit of $1,836.47, (even without the payment of spousal support to Mrs Heywood).
b) However, as noted above, Mr Heywood now incurs additional expenses related to his new employment; e.g., for gasoline and other costs associated with transportation to and from work, uniforms and footwear required by his employer, and the costs associated with increased laundry and haircuts.
c) In the result, Mr Heywood continues to incur monthly deficits in expenditure over income. To date, he has coped with this by numerous measures, which have included the following:
i. reduction of some debts through payment of principal and interest;
ii. servicing some of his indebtedness, (including the additional line of credit debt incurred to provide Mrs Heywood with her equalization payment), only by payment of interest, with no reduction in principal;
iii. severe reduction of his living expenses, (e.g., reduction of his grocery expenditure from a projected $400 per month to $15.00 per week, which he is able to do through heavy reliance on the produce generated from his home garden on a seasonal basis);
iv. working whatever additional hours he can get at Canadian Tire to supplement his income to the extent possible, (which occasionally provide him with an additional unexpected $100.00 to $125.00 “surplus” beyond his expected monthly debt and bill payments, on a “hit or miss” basis, particularly during the summer months when he is able to rely more on his garden for food); and
v. converting or drawing to a limited extent on his assets, (e.g., by disposing of one vehicle, and re-investing only a portion of his RRSP and pension assets, discussed in more detail below).
d) Mr Heywood also has made inquiries with his financial advisors at his bank and elsewhere to explore the feasibility of reducing his expenditures by his selling his home and moving into rented accommodation. Unfortunately, the results of these inquiries indicate that, given prevailing market conditions and the extent of his indebtedness, he currently is in a “negative equity” situation as far as his home is concerned. In other words, a sale of his home would not cover the associated debt or relieve him of all obligations in that regard, while still leaving him with the new additional expense of rental accommodation – which would exceed the cost of maintaining his current mortgage and tax payments. Moreover, loss of Mr Heywood’s home would entail substantially increased food expense, owing to the loss of his garden.
[40] Mr Heywood admittedly does have some assets. However, these generally are limited to his home, (currently in a negative equity situation), a used 2005 vehicle purchased for $4,000, (which he uses to get to and from work), and the residual RRSP investments and remaining invested portion of the Atlantic Packaging employment pension left to him following the general “50/50” division of matrimonial property pursuant to the parties’ Separation Agreement.
[41] As far as the pension from Atlantic Packaging is concerned, it was confirmed during the course of trial that:
a) the parties had agreed to an equal division of the overall pension entitlement;
b) Mr Heywood has completed all directions and other measures necessary to facilitate and complete that division and immediate receipt of pension benefits by Mrs Heywood if that was her preference;
c) the relevant pension plan then provided each spouse with an identical summary, outlining three alternative options for the form in which benefits would be received; and
d) both spouses opted to receive their respective Atlantic Packaging pension entitlements by way of a “locked in transfer” of $46,808.34.
[42] Additional steps apparently were required to complete the transfer of pension funds. Mr Heywood followed through on the necessary procedures, received his “locked in transfer” payment of $46,808.34, used some of the funds to cover his monthly expense deficit, and invested the remainder of the funds through his bank. To the extent possible, (and this already has proved challenging), he intends to draw on the remaining funds and his remaining RRSP assets (approximately $70,000.00) only during his retirement, as he always had contemplated.
[43] Mr Heywood emphasizes that these realistically will be the only funds available to sustain him during his inevitable retirement, (particularly if any CPP entitlements are reduced by an equalization of accumulated CPP credits between the parties). If they are depleted or exhausted before age and health concerns force him to retire, he can see no alternative except welfare.
Situation of the Respondent
[44] Mrs Heywood was born on June 18, 1951, and currently is 61 years old.
[45] As noted above, Mr Heywood acknowledged that he was the “main breadwinner” throughout the course of the parties’ marriage. However, Mrs Heywood, in addition to raising the couple’s two children, did work sporadically as a waitress and as a babysitter.
[46] It is common ground that Mrs Heywood nevertheless had little or no such employment by the time of the couple’s separation in May of 2009.
[47] Neither of the parties could recall with certainty the last time Mrs Heywood had any such employment prior to separation. Mrs Heywood thought that she might still have been caring for two children from time to time at the time of separation. However, Mr Heywood felt her last babysitting had occurred sometime before separation, and indicated that, towards the end of such babysitting activities, they really had declined to little more than an occasional “hobby”, generating no more than $15.00 a day.)
[48] Generally, Mr Heywood confirmed that his wife “didn’t earn much money at all” during their cohabitation, particularly during the latter years.
[49] It is also common ground that Mrs Heywood has had no employment whatsoever since the time of the couple’s separation.
[50] The evidence before me made it clear that Mrs Heywood’s inability to earn income stemmed not only from her role in the parties’ marriage, but from a constellation of debilitating physical and mental health challenges. In that regard:
a) Mr Heywood readily acknowledged and confirmed that his wife had suffered for years from numerous conditions and ailments, making it difficult for her to obtain employment outside the home. As examples of what Mr Heywood described as her “many” physical challenges, he cited problems with her hips and hands, and persistent rashes. When asked about Mrs Heywood’s possible mental health issues, he described his wife as “losing touch with reality”; e.g., she frequently would seem “out of the picture”, and regularly suffer from distorted and completely inaccurate memories.
b) Mrs Heywood seemed reluctant to discuss her difficulties in detail. She nevertheless described, in general terms, having significant problems with both knees, and severe hand tremors that make it impossible for her to do even simple tasks like hold on to a plate. Approximately two years ago, she was obliged to give up her apartment she occupied after leaving the matrimonial home, and eventually moved into the home of her sister and nephews, because she no longer was able to live independently. She also now requires regular cortisone injections. As for her mental difficulties, she was diagnosed as being bi-polar in May of 2009, and she continues to take numerous prescription medications, including anti-depressants. Mrs Heywood remains under the care of Dr Lori Bruce, who repeatedly has advised Mrs Heywood that she is unable to work.
c) Ms Herman provided independent confirmation that her sister Mrs Heywood was forced to give up her apartment and move into Ms Herman’s home because of various debilitating physical ailments making it difficult to navigate even short distances, or manage minor tasks on her own. These include debilitating tremors that make it difficult for Mrs Heywood to hold on to items, and severe problems with Mrs Heywood’s knees that make her unbalanced. Since moving in with Ms Herman, Mrs Heywood has experienced at least three major falls, (in her bedroom, in a hallway, and getting out of a bathtub), all of which resulted in periods of hospitalization.
[51] This evidence was reinforced by my personal observations of Mrs Heywood during the course of trial, while she was giving evidence but also while she sat at the counsel table. In my opinion, her genuine frailty was clear. She required considerable assistance to make her way in and out of the witness box, and despite the obvious significance of the proceeding from her perspective, she appeared to have difficulty maintaining focus, (particularly when she was not in the witness box responding to direct questions).
[52] In 2011, Mrs Heywood applied for benefits pursuant to the Ontario Disability Support Program (ODSP). Her application was denied, not because she was not considered disabled but because she was regarded as having a sufficient asset base to look after herself in the wake of receiving her equalization entitlements pursuant to the Separation Agreement.
[53] Mrs Heywood similarly applied for disability benefits pursuant to the Canada Pension Plan (CPP). However, her application was denied for two reasons.
[54] First, the CPP administrators apparently felt that Mrs Heywood was capable of performing some babysitting services. In my opinion, whether or not that was true at the time, it is a completely unrealistic suggestion now. Not only would her physical and mental challenges make it practically impossible and probably unwise for her to be entrusted with the care of young and active children, but she no longer has her own independent residence. Mrs Heywood’s sister and nephews kindly have taken her into their home; it is not reasonable to suggest that they be obliged to also welcome and of necessity probably have to assist in the care of unrelated children as well.
[55] Second, the CPP administrators apparently advised Mrs Heywood that she personally had not made sufficient contributions to the CPP during her relatively limited employment career. (The contributions she had made apparently stemmed from her limited waitressing activities; no contributions were generated by her babysitting.) However, that obstacle to Mrs Heywood’s receipt of CPP disability benefits apparently could and would have been overcome had she applied for a division of the more substantial CPP credits accumulated over the years by Mr Heywood. As noted above, the parties’ Separation Agreement expressly confirmed her right to make such an application, but for reasons that were not explained or explored in the evidence before me, this has not yet been done for some reason. Mrs Heywood could only say that she “will apply soon”. She acknowledges that, once this has been done, she eventually will be eligible for receipt of at least some CPP benefits, (although the quantum of such benefits currently is unknown).
[56] It was suggested mildly to Mrs Heywood during the course of cross-examination, and again during counsel submissions, that she perhaps also should have made efforts post-separation to pursue gainful employment. In that regard, Mr Heywood’s counsel placed some reliance on the earlier decision of the CPP administrators denying benefits to Mrs Heywood on the basis she was not disabled, but capable of earning income through babysitting.
[57] However, for the reasons outlined above, based on the evidence presented before me and my personal observations, I think it entirely unrealistic to suggest that Mrs Heywood currently is capable of gainful employment, or that she is likely to have such ability in the foreseeable future. (I note that Mr Heywood’s counsel himself emphasized that Mrs Heywood’s debilitating conditions would have necessitated her current living arrangements in any event.)
[58] In my opinion, the present application should be decided on the basis that Mrs Heywood has received and will receive no employment income post-separation. Any income she receives in the future almost certainly will come from her remaining investment assets, and from government programs and/or social assistance.
[59] Evidence outlining Mrs Heywood’s monthly expenses was provided by way of a sworn financial statement dated September 14, 2011, supplemented by testimony from Mrs Heywood and her sister Ms Herman.
[60] In that regard:
a) The financial statement from September of 2011, (following the cessation of Mr Heywood’s spousal support payments), confirmed that Mrs Heywood had no income, but also projected monthly expenses of $1,732.05, or $20,784.60 per year. (I note that, even with payment of the contemplated $1,200.00 in support, this would have left Mrs Heywood with an annual income-expense deficit of $14,400.00 per year which, without any income, she would have been obliged to cover through asset reduction.)
b) Mrs Heywood’s expenses nevertheless have changed, with an acknowledged reduction in her needs. In particular, for the past two years at least, the living arrangements kindly extended by her sister Ms Herman apparently have reduced Mrs Heywood’s total monthly rent and grocery expense from $885.00 to $400.00. (Ms Herman, herself relying on CPP disability benefit income, indicated that she remains content with the adequacy of that contribution by Mrs Heywood to the household expenses – particularly since Mrs Heywood still maintains her own separate telephone line, and assumes personal responsibility for the associated expense.)
c) Through her time living independently in her apartment, (when she had additional expenses for things such as rent and cable services), and during her subsequent shared living accommodations, Mrs Heywood has continued to incur monthly deficits which she has continued to cover by asset depletion. In her words, she has been “using up her RRSPs” and the equalization payment received from Mr Heywood to “get by”.
[61] In terms of her assets:
a) Mrs Heywood acknowledged on cross-examination that all matrimonial property, (including RRSPs, GICs, pension entitlements and equity in the matrimonial home), had been equally divided by the arrangements set out in the parties’ Separation Agreement, and that Mr Heywood has done all he was required to do to complete that division.
b) Mrs Heywood has converted her rolled over RRSP investments to an RRIF.
c) Of the equalization payment received from Mr Heywood, (which she thought to be in the amount of $36,000.00), she has approximately $4,000.00 to $5,000.00 remaining.
d) For reasons that were not explained, Mrs Heywood apparently has not yet completed the remaining procedural steps required to obtain payment of her Atlantic Packaging pension entitlement; (i.e., a similar “locked in transfer” payment of $46,808.34 similar to that already received and invested by Mr Heywood). Her delay in that regard seems surprising, having regard to her professed need and lack of resources. She simply indicated her intention to “write soon” in that regard.
Overview of Party Positions
[62] Relying on the unexpected and involuntary termination of his employment by Atlantic Packaging and his significantly lowered employment income, (which has been reduced by approximately 50 percent), Mr Heywood argues that there clearly has been a “material change in circumstances” within the meaning of the parties’ Separation Agreement.
[63] Mr Heywood says that he not only can no longer pay the previously agreed $1,200.00 per month in spousal support, but that his now precarious financial situation effectively prevents his paying any spousal support at all; a position which his counsel says is reinforced and supported by the Spousal Support Advisory Guidelines (SSAG) authored by Professors Rogerson and Thompson, and largely now followed by the courts barring exceptional circumstances. (As discussed in more detail below, the SSAG strongly recommend, for articulated policy reasons and practical concerns, recognition of a spousal support “floor” whereby parties earning $20,000.00 or less in gross annual income, or even slightly more than $20,000.00, should not be obliged to pay spousal support regardless of spousal income differentials or duration of marriage. Indeed, the SSAG suggest that similar considerations arguably should extend, at least in a modified way, to those earning gross annual income between $20,000.00 and $30,000.00.)
[64] In particular, Mr Heywood emphasizes that a spousal support obligation of $500.00 to $600.00 per month, (as proposed by Mrs Heywood), would not leave him with income sufficient to cover his monthly debt payments, let alone further funds to sustain his relatively modest necessities.
[65] According to Mr Heywood, he has made every effort to earn as much income as he can, and to reduce his living expenses without taking steps, (e.g., immediate sale of his home and a move into apartment accommodation), that his inquiries and financial advisors have indicated will be counter-productive. He also is loathe to draw now on his remaining limited RRSP investments, as they realistically represent most of the limited resources that will be available to sustain him for the rest of his life during retirement; a retirement which was anticipated to occur in 2014, and which realistically will be forced upon him by advancing age and health difficulties in any event.
[66] Through counsel, Mr Heywood emphasizes that, pursuant to the parties’ Separation Agreement, his spousal support obligations were to terminate in any case on October 1, 2014.
[67] He similarly emphasizes that Mrs Heywood already has received, directly, a completely equal share of all matrimonial assets, (including all accumulated retirement savings and pension plan entitlements), in a manner that was confirmed to be “fair and reasonable”. In the circumstances, forcing premature liquidation of his remaining assets to fund spousal support, (which cannot be supported through his now significantly reduced income), effectively would represent Mrs Heywood’s indirect receipt of a further and unequal division of matrimonial property in a manner contrary to the parties’ express agreement as to what was fair; i.e., an approach informally described as “double dipping”.
[68] Finally, counsel for Mr Heywood notes that, while he has tried his best to take all possible reasonable and timely steps to satisfy his obligations in a timely manner and to demonstrate appropriate regard for Mrs Heywood’s position, (e.g., by doing all he could to facilitate Mrs Heywood’s receipt of assets including her agreed share of his pension entitlements, and by providing his wife with timely notice of his Atlantic Packaging employment and benefit termination), the same cannot be said of Mrs Heywood. In particular, for reasons unknown, she still has not taken required steps to trigger an equal division of the parties’ accumulated CPP credits, (which would facilitate a renewed application for CPP disability benefits), or to follow up on processing receipt of her equal share of Mr Heywood’s employment pension. In the meantime, despite her apparent disability and lack of assets, there also has been no renewed application for ODSP benefits.
[69] In the circumstances, Mr Heywood accordingly asks that his spousal support obligations be terminated as of June 30, 2011; i.e., the approximate date at which his severance pay (and elevated level of income) received via his employment Atlantic Packaging ran out. If any amount of spousal support is ordered, (contrary to Mr Heywood’s primary position), he asks that it terminate in any case on October 1, 2014, as per the parties’ Separation Agreement.
[70] For her part, although her formal answer to Mr Heywood’s application requests its complete dismissal, (with arrangements made to direct a payment schedule addressing the accumulated arrears in spousal support required by the Separation Agreement), Mrs Heywood formally conceded (through her counsel) that:
a) there has indeed been a “material change in circumstances” within the meaning of the Separation Agreement; and
b) that Mr Heywood’s spousal support obligations accordingly should be reduced to some extent.
[71] Mrs Heywood emphasized during the course of her testimony that she knows Mr Heywood’s changed circumstances are “not his fault”, and understands that “it’s difficult to find work at his age”. She also agreed that Mr Heywood has “health issues”. However, Mrs Heywood feels that her health problems are greater, and relies on the basic fact that Mr Heywood is working now while she is not. She also feels that, if necessary, Mr Heywood “should take money from his house or savings” to finance continued spousal support obligations, and otherwise reduce his expenses.
[72] Although her own financial needs admittedly are reduced since she moved in with her sister and nephews, (and she acknowledges that health considerations will require her continued residence there even if she receives spousal support), Mrs Heywood emphasized that she “can’t give them nothing” in return for her accommodation.
[73] Through her counsel, Mrs Heywood indicated her position that Mr Heywood’s spousal support obligation should be reduced to $600 per month, retroactive to the time at which his severance pay from Atlantic Packaging ran out in June of 2011. She also asks that the reduced monthly support should be payable indefinitely into the future rather, instead of terminating in October of 2014 as suggested by the Separation Agreement, on the basis that any deviation from the agreed spousal support arrangements should mean that “all bets are off”; i.e., that Mr Heywood cannot insist on compliance with one aspect of the agreement while requesting its modification in other respects.
[74] In further support of Mrs Heywood’s position, her counsel suggested and relied upon the following additional considerations:
a) This was a long term marriage which, combined with Mrs Heywood’s physical limitations and mental disabilities, underscore her limited ability to earn or save income on her own, as well as her need for support.
b) It was submitted that Mr Heywood arguably has the ability to pay spousal support through his Canadian Tire income alone. In that regard, reliance was placed upon the following:
i. An informal “gross up” calculation using the year-to-date income indicated on Mr Heywood’s most recent paystub; a calculation that suggested his income in 2012 actually would reach $23,395.00.
ii. A “DIVORCEemate” software calculation applying the basic “without child support formula” of the SSAGs to the scenario of Mr Heywood earning $23,395.00 while Mrs Heywood earned nothing. This suggested a “low” range support scenario of $731 per month, a “mid” range support scenario of $853 per month, and a “high” range of $918 per month.
iii. A submission that the “caution” and “override” warnings included with the above “DIVORCEmate” calculation, (having regard to the SSAG recommendations concerning support floors and their non-application for payor spouses earning gross income between $20,000.00 and $30,000.00), should be ignored.
iv. Recognition of the fact that Mr Heywood will receive some measure of tax relief for amounts of support paid to Mrs Heywood, such that the net after-tax expense to Mr Heywood would be reduced.
c) It was submitted that Mr Heywood alternatively should finance continued spousal support payments to Mrs Heywood by drawing on his assets. In that regard, it was acknowledged that “double dipping” claims for spousal support generally are frowned upon by the courts, but that the possibility of exceptional cases has been recognized, e.g., by general pronouncements of the Supreme Court of Canada in cases such as Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, and in practice by first instance decisions such as McFarlane v. McFarlane, [2009] O.J. No. 2947 (S.C.J.). It was suggested that Mrs Heywood’s situation should be regarded as an exceptional case in the required sense, in that her depletion of assets did not flow from any failure to properly invest or manage the assets received from the Separation Agreement, but from her necessary drawing down on those assets to sustain her needs.
Analysis
[75] My comments above already incorporate a degree of analysis, assessment and findings; e.g., concerning Mr Heywood’s probable income from Canadian Tire, and Mrs Heywood’s ability to earn income. However, these are but factors to be considered in the broader determination of the amount of continued spousal support, if any, that Mr Heywood should pay to Mrs Heywood.
[76] The basic principles regarding spousal support obligations are embodied in s.30 of the Family Law Act, supra, which reads as follows:
- OBLIGATION OF SPOUSES FOR SUPPORT – Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
[77] In essence, there accordingly are three relevant considerations to a determination of appropriate spousal support:
i. the extent of the suggested payor spouse’s ability to pay support;
ii. the extent of the claimant spouse’s need for support; and
iii. to the extent to which the claimant spouse has made all reasonable good faith efforts to be self-supporting.
[78] In my opinion, the suggestion that Mr Heywood should pay continued spousal support, in the wake of his unwanted changes in employment and income, founders on the first of the above three considerations; i.e., he now lacks the “ability to pay” spousal support in the sense required, and that alone is determinative of what should happen in the present unfortunate circumstances.
[79] A superficial analysis might suggest that, as Mr Heywood is still employed and therefore still “has money” coming in, he has an “ability to pay”, and a roughly fifty percent reduction in his income should be followed by only a corresponding fifty percent reduction in his spousal support obligations. In effect, this is the position now being advanced by and for Mrs Heywood.
[80] However, in assessing “ability to pay”, the law demands a more considered and balanced approach that reflects other countervailing practical considerations and wider policy concerns.
[81] As noted above, counsel for Mrs Heywood suggests that Mr Heywood has the ability to pay continued spousal support through his reduced income and/or by drawing on his assets.
[82] Focusing initially on the first suggestion, (i.e., that his reduced income alone would suffice to enable continued payment of spousal support), I agree with counsel for Mr Heywood that it runs counter to the concerns and recommendations outlined in the SSAG regarding orders of spousal support when the gross income of a payor spouse drops below a certain level.
[83] In the “Executive Summary” of their paper introducing and explaining their SSAG proposal[^1], Professors Rogerson and Thompson outlined their suggested basic “without child” and “with child” support formulas, but at p.viii noted their recommended “ceiling” and “floor” restrictions on application of the guidelines:
As with the Federal Child Support Guidelines, there is a ceiling and a floor that sets the range of incomes to which the formulas apply. … The floor is the income level for the payor below which no support is to be paid, here set at $20,000. To avoid a cliff effect, there is an exception for cases where the payor spouse’s gross income is more than $20,000 but less than $30,000, where spousal support may not be awarded or may be reduced below the low end of the range. An additional exception is also necessary, to allow an award of support below the income floor in particular cases.
[Original emphasis.]
[84] The authors then expanded and clarified their “floor” recommendations and rationale in chapter 7 of their paper, which at p.85 and pp.87-89, read in part as follows:
Where income sharing is used to determine the amount of spousal support, any guidelines must address the question of ceilings and floors. The ceiling is the income level for the paying spouse above which any formula gives way to discretion. The floor is the income level for the payor below which zero support is paid. …
Ceilings and floors are trickier to establish for any spousal support formula. We propose that the ceiling be set at a gross annual income for the payor of $350,000 and that the floor be set at $20,000, but these proposals are somewhat tentative. We recognize that there are important practical issues here at both ends of the income spectrum. In practical terms, ceilings and floors attempt to define the upper and lower bounds of the typical case, for which guideline formulas can generate acceptable results. …
A floor for the advisory guidelines is more significant, if it sets the amount of support at zero below that floor. In our view, that generally should be the effect of the floor. …
Our initial view is that there should not be any amount of spousal support payable until the payor’s gross income exceeds $20,000 per year. A minimum wage or poverty income was considered too low, providing too little incentive for the payor to continue working, given prevailing tax rates. A review of the case law suggests that judges almost never order spousal support where payors make less than $20,000, or even slightly more. …
For spouses with low incomes, we must be particularly concerned about work incentives, welfare rates and net disposable incomes. There may be compelling arguments for low-income payors to pay child support at very low income levels, but the same arguments cannot be made for support for adult spouses. If anything, we are worried that the $20,000 floor may be too low, creating real hardship for payor spouses and ultimately threatening the credibility of the formulas.
We do have one concern with an absolute floor at $20,000, namely a cliff effect for those payors just above the floor. A way to avoid such a cliff would be to have some smoothing of the formulas over a range of lower incomes, e.g., between $20,000 and $40,000, with the percentages rising towards the standard range. … We would prefer to avoid such complexity at the lower end, at least in this early stage in the development of the advisory guidelines. For now, the cliff effect can be best avoided by an exception for cases where the payor spouse’s gross income is more than $20,000 but less than $30,000. For cases within this range, assuming entitlement, consideration should be given to the percentages sought under the applicable formula, the net disposable income left to the payor spouse, and the impact of a spousal support payment upon the work incentives and marginal gains of the payor. …
[For] a payor whose income hovers just around or above $20,000 and whose shifts, overtime hours, or seasonal work are changeable, there will be a realistic concern about disincentives to work.
Another exception is probably necessary, this time below the income floor. In general, the formulas for amount and duration will not operate where the payor spouse’s gross income is less than $20,000 per year, as it will be rare that there will be sufficient ability to pay. There may, however, be exceptional cases where spousal support might be paid; e.g., where the payor spouse is living with parents or otherwise has significantly reduced expenses. Formulas will be less helpful in determining amounts in such cases. …
[Original bold print emphasis. Italicized emphasis added.]
[85] On their face, many of these comments would apply to the situation before me, and suggest the sort of concerns which troubled the authors. In particular:
a) For the reasons outlined above, I have found that, despite the atypical hours currently being worked by Mr Heywood, he is likely to earn between $17,600.00 and $20,000.00 per year from Canadian Tire, which would definitely put his income below the spousal support floor suggested by the SSAG authors.
b) To the extent Mr Heywood’s income may exceed $20,000.00 in any given year, (because he atypically was able to work an abundance of extra hours), his annual income still would be just “slightly above” or “hover just around or above” the suggested floor, such that the authors and reviewed court practice in this area would suggest the same “zero spousal support” approach.
c) To the extent Mr Heywood’s annual income has any chance of exceeding the suggested floor at all, this stems only from the “changeable” nature of his work, and his ability and willingness to take on extra shifts or overtime hours, (i.e., hours beyond the minimum guaranteed by his employment contract), within the maximum limits set by his new employer’s policies and preferences.
d) Mr Heywood does not have “significantly reduced expenses”, (e.g., through cohabitation with family), in the sense apparently contemplated by the SSAG authors when suggesting the possibility of exceptional cases where spousal support might be ordered where gross income falls below the suggested $20,000.00 floor.
[86] Indeed, in their “Example 7.4”, at p.88, the SSAG authors describe a scenario that comes very close to the situation before me, in terms of describing the suggested floor’s application:
Example 7.4
To take an example at the lower extreme, assume the higher income spouse earns $20,000 gross per year, after a 25-year marriage, but the other spouse has no income at all.
With a floor of $20,000, there would be zero support payable despite the income difference. The range for spousal support generated by the without child support formula would have been $625 to $833 per month. At the top end of this range, using Ontario figures, the payor would be left with a net disposable income of only $750 per month, a net income that would be lower than that of the recipient (assuming the payor’s income comes from employment). The lower amount of this range would generally be less than social assistance rates anywhere in Canada for the recipient, while still leaving the payor spouse with a net disposable income of only $923 per month.
[87] The competing “DIVORCEmate” calculations presented to me by counsel focused only on the extreme ends of the suggested possible annual incomes for Mr Heywood; i.e., with Mr Heywood’s counsel suggesting that he would earn only work the guaranteed minimum of hours and earn approximately $17,000.00, (which ignores the realistic probability of at least some extra hours), and Mrs Heywood’s counsel suggesting that he regularly would earn as much as $23,395.00, (which ignores the policies, practices and stated intentions of his employer). As I have said, the probable reality lies somewhere in between.
[88] However, even with relatively minor adjustments to the calculations, it seems to me that, even if Mr Heywood’s gross annual income fell within the lower end of the $20,000 to $30,000 range, (e.g., between $20,000.00 and the $22,000.00 maximum suggested by Canadian Tire’s policies), thereby triggering the additional “cliff effect” considerations described by the SSAG authors, I still would be presented with a situation where a spousal support award in the amount requested would take a sizeable portion of Mr Heywood’s net disposable income, while leaving both parties with income below or near social assistance rates.
[89] In approaching the SSAG, I am mindful of the applicable considerations, cautions and limitations emphasized by the authorities, such as Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.). In particular:
a) While the SSAG were drafted to bring certainty and predictability to spousal support awards, (thereby reducing the expenses of litigation and promoting resolution), and therefore provide a “useful tool”. In particular, appellate courts have accepted the Guidelines as a “cross-check” or “starting point” for spousal support, as a means of promoting consistency and predictability. The Guidelines nevertheless are neither legislated nor binding. They are only advisory, and courts are not required to employ them.
b) On their face, the SSAG specifically do not apply at all in certain enumerated cases, (including those where spouses earn below $20,000.00), and do not help in “atypical cases”.
c) In all cases, the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.
[90] However, it seems to me that, at least insofar as their discussion of a spousal support “floor” is concerned, the SSAG authors identify and underscore very practical concerns, and a reasoned approach to their resolution, that should not be disregarded without some sort of compelling justification. In particular, common sense suggests that, where a person is struggling to get by personally on a very low income, a further division of that limited income inherently will impose hardship, only to leave both spouses in receipt of incomes below or near social assistance levels while simultaneously undermining the payor spouse’s incentive to keep working.
[91] In the case before me, no reason for ignoring the “floor” considerations suggested by the SSAG was offered, and I see no reason to disregard them.
[92] To the contrary, it seems to me that the circumstances presented by this case provide a stark illustration of the harsh realities and practical concerns that must temper the rigid application of the otherwise applicable SSAG “without child support formula” for a payor spouse earning gross income below or near the suggested “floor” of $20,000.00.
[93] In particular, the evidence before me presents a 61-year-old payor spouse who, despite the limitations created by his age, health problems and qualifications, commendably has gone to considerably lengths to remain gainfully employed after an involuntary and unexpected termination from his previous job.
[94] He has done so, servicing his debts and avoiding resort to government assistance, despite the reality that the best employment available to him is a geographically distant part time position, barely exceeding minimum wage, that inherently requires his prolonged standing and walking on artificial hips.
[95] The uncontradicted evidence before me also indicates that, notwithstanding Mr Heywood’s efforts and his relatively modest living expenses, and the absence of other currently economic alternatives, he is struggling just to maintain his own existence without depletion of the limited remaining assets on which he is depending to sustain him through retirement.
[96] In such circumstances, it seems to me that there is not only a very real risk, but a definite probability, that imposition of an additional continued spousal support obligation will reduce Mr Heywood’s net disposable income to a point imposing unacceptable hardship, and provide far too little incentive for him to continue his work with Canadian Tire. Any order compelling him to pay spousal support from such income would be destined for failure, and in the meantime simply create a situation where both parties would be left with net disposable income levels in the range of social assistance.[^2]
[97] I therefore reject the suggestion that Mr Heywood has the requisite ability to pay continued spousal support from his reduced income.
[98] This makes it necessary to consider the alternate suggestion that he has the ability to pay continued spousal support through liquidation of his remaining assets.
[99] Based on the evidence before me, the assets in question clearly represent nothing more than the residue of the matrimonial property apportioned to Mr Heywood, on an entirely equal basis, by virtue of the parties’ Separation Agreement.
[100] However one looks at the matter, if Mr Heywood is obliged to liquidate his assets to fund continued payments of spousal support, the net practical effect therefore will be a transfer of a further portion of the parties’ matrimonial property to Mrs Heywood, beyond the agreed “50/50” division stipulated in the parties’ Settlement Agreement.
[101] In other words, notwithstanding the parties’ Separation Agreement, Mrs Heywood effectively will be making a second and supplemental claim against the parties’ matrimonial property, thereby giving rise to the “double dipping” concerns noted above.
[102] As noted above, counsel for Mrs Heywood fairly acknowledged that such claims for double recovery generally are frowned upon by the courts, but that the possibility of exceptional cases has been recognized.
[103] The possibility was expressly acknowledged and discussed by the Supreme Court of Canada in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, at paragraph 65:
Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which as previously been equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.
[Emphasis added.]
[104] Subsequent decisions have expanded on the relevant considerations to be addressed in determining whether exceptional “double dipping” should be permitted. See, for example, Kingsley v. Kingsley, [2006] O.J. No. 2250 (S.C.J.), which suggested the following considerations at paragraph 15:
i. Whether the claim for support is based on need or compensation.
ii. Whether the payor spouse has the ability to pay.
iii. Whether the payee spouse has made reasonable efforts to invest or use the equalized assets to produce income and despite these efforts, the economic hardship from the marriage or its breakdown persists.
iv. Whether the principal asset transferred on equalization is the matrimonial home, the home is not extravagant in relation to the standard of living, and costs of accommodation are not appreciably different from rental or other accommodation.
[Emphasis added.]
[105] Such decisions therefore emphasize the “ability to pay” of the payor spouse as a fundamental prerequisite to any such “double dipping” award of spousal support to be funded from the assets of the payor spouse.
[106] For the reasons outlined above, that necessary basis for application of the “double dipping” exception is not present in the case before me.
[107] In particular, this simply is not a case where Mr Heywood somehow has managed to attain an economic position, (by retention or accumulation of assets post-separation), sufficient assets to look after both himself and Mrs Heywood, such that a further effective division or transfer of property might pose an annoyance or inconvenience but not fundamentally impair his ability to sustain himself both now and in the future.
[108] It certainly can be distinguished, for example, from the situation before the court in McFarlane v. McFarlane, [2009] O.J. No. 2947 (S.C.J.); a decision relied upon by counsel for Mrs Heywood as confirmation that such exceptional “double dipping” awards are possible. In that case, during the ten years following the parties’ separation, the claimant had been reduced to poverty while her former husband’s income had increased year after year. With those increases in income, and with the effective assistance and support of his new partner, the former husband had been able to buy a home, accumulate substantial assets, and contribute substantial sums to his RRSP. Immediately prior to his termination of spousal support payments, (because of retirement), the former husband also had made a very expensive holiday trip to Australia. His assets therefore provided him with sufficient ability to support not only himself but also his former spouse, notwithstanding the material change in circumstances represented by retirement and his loss of ongoing additional income through employment. In the result, the circumstances that justified ignoring the “double dipping” principle in that case are a far cry from the situation before me.
[109] I therefore find that this is not a circumstance where Mr Heywood should be compelled to draw on his remaining assets to fund the payment of continued spousal support.
[110] There accordingly is still no proper basis on which to find that Mr Heywood has the ability to pay spousal support, in the sense required.
[111] As noted above, such a determination effectively makes it unnecessary to consider the other two criteria relevant to a determination of spousal support; i.e., Mrs Heywood’s need, and the extent to which she has made all reasonable good faith efforts to be self-supporting.
[112] I therefore do not propose to address those additional considerations in detail.
[113] I nevertheless do note that the existence of Mrs Heywood’s demonstrable need was conceded in a general way at trial, (and I would have found the existence of such need in any event).
[114] To the extent there was any dispute about need, it related to its proper quantification, which to some extent was bound up with the ancillary consideration of whether Mrs Heywood had made all reasonable efforts to be self-supporting.
[115] In that regard, for the reasons outlined above, I reject the suggestion that Mrs Heywood has the ability to earn any employment income.
[116] However, it does seem clear that Mrs Heywood’s financial needs have been considerably reduced by the fortunate circumstance of her having a kind and supportive family network that has greatly diminished her living expenses and provided her with additional care on a gratuitous basis, apart from her monthly contribution to groceries. (There was no evidence to suggest that Mr Heywood has any such support or alternatives available to him.)
[117] Moreover, it also seems to me that, for reasons unknown, Mrs Heywood has been somewhat slow to explore or revisit, in a timely way, all avenues that would enhance her ability to be self-sustaining.
[118] For example, given her professed need, I do not understand why she has delayed taking the measures necessary to obtain payment of her Atlantic Packaging pension entitlement, or to process a division of CPP credits that would facilitate a renewed application for disability benefits, in light of what seems to be an obvious disability.
[119] Similarly, given that disability, and having regard to what at least seems to be her current asset situation, I do not understand why a renewed application for ODSP benefits has not been made, (especially if the previously encountered obstacle effectively has diminished or disappeared through Mrs Heywood’s stated depletion of assets). Either application, if successful, obviously would have enhanced Mrs Heywood’s ability to sustain her financial need, without having to look to Mr Heywood for spousal support. Hopefully, further steps can be taken in that regard as soon as possible, and meet with some measure of success.
[120] It seems to me that the failure of Mrs Heywood to take such steps would have undermined her claim for continued spousal support.
[121] However, as already indicated, such concerns really are academic if such a claim founders, in any event, in light of Mr Heywood’s inability to pay such support, in the sense required.
[122] When all is said and done, this is an unfortunate situation where both parties are in a sympathetic position, but there simply is not enough money to go around.
[123] Mrs Heywood, relying on her remaining assets, Atlantic Packaging pension entitlement, and possibly some measure of government assistance, and the continued support of her extended family, hopefully will be able to address her more limited financial needs in the coming years.
[124] However, I see no way of imposing continued spousal support obligations on Mr Heywood that would not completely undermine his incentive to keep working and/or his ability to sustain himself even at modest levels in the coming years.
[125] For the above reasons, I think Mr Heywood’s application to have his spousal support obligation terminated as of June 30, 2011, must be granted. (This makes it unnecessary to consider and resolve the parties’ further arguments concerning a termination date for any order for continued spousal support.)
[126] Judgment to issue accordingly.
Costs
[127] Because my decision was reserved, the parties were unable to make any submissions regarding costs.
[128] My preliminary view is that no costs should be awarded in the circumstances.
[129] In particular, although Mr Heywood was successful in the result, it was not unreasonable for Mrs Heywood to advance her arguments given her challenging circumstances, the fluctuations in Mr Heywood’s income from his Canadian Tire employment, the uncertainties inherent in income situations approaching the suggested floor of the Spousal Support Advisory Guidelines, and the discretionary considerations that compound such uncertainties.
[130] Having regard to such considerations, it seems to me that, notwithstanding the financial challenges faced by Mr Heywood, (which justified my substantive ruling), and the costs which he no doubt has incurred, a cost award against Mrs Heywood would be unfair and compound an already difficult situation.
[131] However, my preliminary view will be reconsidered if the parties wish to make submissions on costs, which they may do in writing within the next 30 days, failing which there shall be no order as to costs.
“Justice I. F. Leach”
Justice I. F. Leach
Released: January 2, 2013
COURT FILE NO.: 116/11
DATE: 2013/01/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HERBERT HEYWOOD
Applicants
- and –
RETA HEYWOOD
Respondents
REASONS FOR JUDGMENT
Leach J.
Released: January 02, 2013
[^1]: Rogerson and Thompson, “Spousal Support Advisory Guidelines: A Draft Proposal”, (Ottawa: Department of Justice, 2005)
[^2]: As noted above, it was suggested by Mrs Heywood’s counsel that the tax treatment of spousal support should be considered, as it would reduce the ultimate impact on Mr Heywood of any reduction of his gross income for the payment of spousal support. However, I agree with Mr Heywood’s counsel that the impact of such considerations would be extremely modest, at best, having regard to the very low levels of income, basic deductions and applicable marginal tax rates that would be involved. I also note that the SSAG, (produced after years of study and consideration by two highly regarded family law professors), emphasize that the relevant policy considerations are triggered simply by gross annual incomes descending below certain levels.