ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12108/10
DATE: 2013-12-09
BETWEEN:
Marilyn Thompson
Applicant
– and –
Robert Thompson
Respondent
Jean Jacques Paquette, for the Applicant
Peter J. Doucet, for the Respondent
HEARD: November 13, 14 and 15, 2013
REASONS FOR JUDGMENT
R.D. Gordon J.
Overview
[1] The trial of this matter was held to determine what, if any, spousal support obligation remains owing by the Respondent to the Applicant.
Background
[2] The parties were married to one another on June 3, 1979. They have two children, who are now adult and independent of them. The parties separated on January 4, 2005 and were subsequently divorced on April 23, 2008.
[3] The issues arising from their separation were settled by way of consent order made in this court on January 12, 2007. By virtue of paragraph 1 of that order, the Respondent was to pay spousal support to the Applicant in the amount of $750.00 per month, beginning December 1, 2006 and on the first of each month thereafter. Paragraph 2 of the Order, provided as follows:
- The above support shall be payable subject to the following conditions:
A) Should the Applicant reside with a person in a relationship for a minimum of one (1) year, the above support shall be suspended;
B) Should the Applicant reside with a person in a relationship for a period of three (3) years continuously the above support shall be terminated.
[4] The Applicant is now 54 years of age and was 19 when she married the Respondent. During a good part of the marriage she was a stay at home mom, but did work from time to time as a waitress before training for and becoming an underground miner. In 1998, after having worked as a miner for three or four years, the Applicant was involved in a serious car accident in which the driver of another vehicle died. She suffered significant physical and psychological injury. She has not worked since. When the parties negotiated the terms of their separation, she was in receipt of disability benefits and Canada Pension Benefits. She continues to receive those same benefits which amount to approximately $44,000 per year after gross up to reflect that portion of her income which is non-taxable. She is of the view that she is permanently unemployable and has not sought retraining or employment. Sometime following their separation, the Applicant met Karl Hamilton. They dated for some time, eventually moved in together and were married on September 27, 2008. They subsequently separated and the Applicant has become involved in a romantic relationship with Randy Newton. She denies they are living together.
[5] The Respondent is 55 years of age and has had a career as a miner. Most recently, he has been employed by Vale as a supervisor at the Garson mine and has had significant earnings. In 2006 he earned $90,413 and since then has generally earned significantly more. Unfortunately, he has suffered certain health problems with the result that he has been on disability pension since July 24, 2012. His annual income since that time, grossed up to reflect that portion which is non-taxable, amounts to approximately $66,500. The Respondent is now remarried. Unfortunately, his spouse was also involved in a serious car accident in February of 2013 and her income is limited to income replacement benefits from her insurer of $400 per week.
[6] Mr. Thompson says that he did not learn of his ex-wife’s remarriage until September of 2009, at which time he ceased making his spousal support payments. Ms. Thompson separated from Mr. Hamilton in May of 2010. In August of 2010, she filed the order of January 12, 2007 with the Family Responsibility Office and indicated there were three months of support outstanding. Somehow, FRO misinterpreted her filing request and set the arrears at more than $31,000. Collection procedure against the Respondent ensued. Eventually, the arrears issue was sorted out and it was ordered that the Respondent resume the monthly payment of $750 and pay an additional $200 per month towards arrears.
[7] Against this background, there arise the following issues for determination:
At what point had the Applicant resided with Karl Hamilton for a period of 12 months, such that the Respondent’s obligation to pay support was suspended?
Has the Applicant resided with Randy Newton, and if so, for how long and with what impact on the support entitlement of the Applicant?
In the event the Respondent’s obligation to pay support has not been suspended or terminated, should it be varied due to material changes in the circumstances of the parties?
Analysis
When did the Applicant Reside with Karl Hamilton?
[8] The Applicant’s evidence was that she began residing with Mr. Hamilton on August 7, 2008, which is at about the same time she sold her home in Simcoe. She testified that she could not recall renting that home out or leaving it vacant for any appreciable period of time. She also indicated that this was when the movers came to take the furniture to storage, although she provided no documentary evidence in support of that.
[9] In an affidavit sworn February 16, 2011, she stated unequivocally that she began residing with Mr. Hamilton on May 15, 2008. When questioned about this at discovery, she responded: “If that’s what I said I guess that’s what it was. I’m not sure. I’m not good with dates”.
[10] Stephanie, the parties’ daughter, testified that she had signed an affidavit swearing that the Applicant began living with Mr. Hamilton in August of 2008, but that was based upon information provided to her by her mother. In her testimony at trial she recalled her mother living with Mr. Hamilton during the months of May through August of 2008.
[11] Karl Hamilton also gave evidence at the trial. He said that they had lived together for about a year before getting married. However, he was somewhat vague in his evidence and the notion that they began living together in September of 2007, does not coincide with the evidence. Although I accept they were dating during that period of time, the evidence was reasonably clear that she was living in Simcoe in September of 2007, and Mr. Hamilton had never resided with her there except to stay overnight occasionally. While he was incarcerated over Christmas of 2007, her evidence was that they had broken up, and it was clear that she was then still living in Simcoe. They reconciled following his release from jail and he proposed to her sometime in the early spring.
[12] There was one VISA statement from April of 2007 which showed the Applicant’s address to be the same as Mr. Hamilton’s but I attach little weight to it, given the other substantial evidence that she was living elsewhere at that time.
[13] On consideration of all of the evidence, I am satisfied that Ms. Thompson and Mr. Hamilton lived together for a period of time before marriage. Given the Applicant’s explicit admission in her affidavit that they began living together on May 15th, 2008, that this date corresponds generally to when they became engaged, and given Stephanie’s recollection that they lived together in May and the following months of 2008, I accept May 15, 2008 as the most likely date their cohabitation began.
[14] The result of this finding is that as of May 15, 2009, the Applicant had been residing with Mr. Hamilton for one year and the support payable by Mr. Thompson should have been suspended at that time.
The Applicant’s Relationship with Randy Newton
[15] In order for the suspension or termination of support under the terms of the order of January 12, 2007, it would be necessary for the Applicant to “reside with a person in a relationship”. Although that phrase is not otherwise defined, in the context of these proceedings it is appropriate to correlate it to “cohabitation” as it is defined in the Family Law Act, namely, living together in a conjugal relationship within or outside marriage.
[16] The generally accepted characteristics of a conjugal relationship include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as societal perception of the couple. These elements may be present in varying degrees and not all are necessary for the relationship to found to be conjugal. M. v. H. 1999 686 (SCC), [1999] 2 S.C.R. 3 (S.C.C.).
[17] The Applicant and Mr. Newton met late in the summer of 2010. Notwithstanding her professed difficulties with memory, the Applicant had a clear and vivid recollection of their initial dates and courtship. Mr. Newton’s memory of those same events was equally vivid. In fact, their evidence in this regard was related as if by rote and in my view was likely discussed and determined between them. This is not to say, however, that what they said was necessarily untrue.
[18] The Respondent alleged that they had been residing together for some time as of the date of trial – perhaps even for years. He relied upon the following evidence in support of that conclusion:
The parties’ daughter, Stephanie, visited with her mother regularly in 2010 and four or five times per year since. Until the summer of 2013, every time she visited her mother, Randy was present at her home and staying overnight.
From at least the summer of 2011, Randy had left some of his belongings at her home.
When, at the Applicant’s questioning in June of 2013, it became apparent that her cohabitation with Randy was an issue and that counsel for the Respondent had spoken to Stephanie, she became quite upset with Stephanie, and thereafter Randy was not present when Stephanie visited her.
Randy’s residence, until the summer of 2013, had been a house where he boarded with some other men. He says the house was sold and he had to move out, resulting in his renovating his hunt camp property to occupy year round. Randy provided no documentary evidence in support of his place of residence.
Karl Hamilton, who lived with his parents only about 150 yards from the Applicant, saw Mr. Newton’s vehicle at the Applicant’s home regularly and saw him assisting in home construction projects. He testified that approximately one month after they separated he saw the Applicant in Peterborough and asked if someone was living with her and she replied there was.
The hunt camp, where Mr. Newton maintains he now resides, has no indoor toilet, no running water and only solar electricity. The road to the camp is not accessible in the winter except by ATV or snowmobile.
The Applicant has introduced Randy to other members of her family and he’s been present when they have visited at her home.
[19] Although this represents a not insignificant body of evidence in support of the Respondent’s position, and although I am satisfied that Mr. Newton and the Applicant are a couple who spend at least a couple of nights together each week, I am not satisfied they are living together. I come to this conclusion for a number of reasons. To begin with, the evidence given by Mr. Newton was compelling. He spoke of having separated unhappily in 2007 and in the end being left with little but his hunt camp. He confessed to being bitter about how the separation turned out and did not want to live with someone or get married again. It was clear to me that Mr. Newton enjoys his independence and in particular did not want to be tied down during hunting season, which lasts throughout the fall months. He was forthright in indicating that he likes Ms. Thompson a great deal and that they share similar interests – particularly that they are both artistic and are both smokers. But he was quite emphatic that they do not and have not lived together.
[20] Secondly, the parties’ daughter Stephanie was of the view that they were not living together, notwithstanding that he was present on most all occasions when they visited together. Although this view was distilled largely from discussions with her mother, it is not to be discounted. Stephanie was put in a difficult position in this litigation. She is close to both her parents and was asked questions that effectively required her to side with one or the other of them. My impression was that she favoured neither parent and did her best to relate the facts as she knew them. She is close to her mother. She visited with her several times each year and spoke to her on the phone every week. Her impression was that Mr. Newton was not living with her mother.
[21] Thirdly, many of the elements of a conjugal relationship were not established on the evidence. There was virtually no evidence of financial contribution by Mr. Newton to the household being kept by the Applicant and no evidence of financial interdependence between them. Although they shared in the preparation of meals when together, and Mr. Newton assisted from time to time around the house, their actions were not inconsistent with the relationship they say existed – that of boyfriend/girlfriend. On the evidence, neither provided significant domestic services to the other. There was no suggestion that they participated together in neighbourhood or community activities. Ms. Thompson had not been introduced to Mr. Newton’s family. Although he had met Stephanie and Ms. Thompson’s aunt, Mr. Newton did not accompany her to visits with her parents and did not accompany her when she travelled to Terrace Bay to visit her ailing sister. There was no evidence of persons in the community regarding them as a cohabiting couple.
[22] Lastly, there is the evidence of Ms. Thompson. There are many reasons to question her credibility. Among those reasons, as pointed out by counsel, she failed to advise the Respondent when she began living with Mr. Hamilton or when that cohabitation had reached a year’s duration; she alleged that counsel for the Respondent had coerced evidence from Stephanie when there were no grounds for the allegation; she swore in an affidavit that she was living with Mr. Hamilton in May of 2008 and then testified to the contrary; and she failed to produce documents which she says supported her position and were in her possession. However, Ms. Thompson did not strike me as unintelligent. She knows very well that residing with Mr. Newton for the requisite period of time would result in the suspension and eventual termination of her spousal support. She is not a wealthy woman. She has structured her finances such that the support she receives is integral to her meeting her monthly expenses. It seems unlikely to me that she would risk the loss of that support by residing with Mr. Newton absent some promise of permanence in their relationship. This would be consistent with her actions concerning Mr. Hamilton, wherein she moved in with him, but only once their relationship took on the permanence promised by their engagement.
[23] When I consider all of the evidence, I am not satisfied that the Applicant has resided with Mr. Newton.
Are There Other Material Changes In the Circumstances of the Parties?
[24] Section 17 of the Divorce Act gives the court jurisdiction to make an order varying a support order. It provides that before the court makes a variation order in respect of spousal support, it shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order, and in making any variation, shall take that change into consideration.
[25] The objectives of a variation order varying spousal support are to: (a) Recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[26] It was argued that there have been two material changes in the circumstances of the parties that would warrant a reduction or termination of support. The first is the failure of the Applicant to make any effort to become self-sufficient. The second is the reduction in the Respondent’s income.
Self-Sufficiency of the Applicant
[27] Ms. Thompson is of the view that she is permanently unemployable due to injuries sustained in the motor vehicle accident in 1998. This view is buttressed by her continuing eligibility for long term disability benefits and Canada Pension Plan disability benefits. Her ongoing disabilities are said to include severe fatigue, anxiety, attention deficit and fibromyalgia. Although she is able to drive, look after her household, and participate in some recreational activities, she says that it is not without consequence and she often suffers as a result. She says that she knows she is unable to work or to retrain and has therefore not made any attempts. Of note, the order of January 12, 2007 contemplates her ongoing source of income to be long term disability benefits.
[28] Mr. Thompson points out the lack of current medical documentation to support any continuing disability and no ongoing treatment by any specialists. He points to the evidence of all the things she can do, such as assist in the building of a deck, shopping, laundry and long distance drives. He says she is doing everything a normal 55 year old person does except work.
[29] It is most unfortunate that Ms. Thompson has given up on ever working again and has done so to the extent that she has stopped seeking treatment. However, that she continues to qualify for full disability benefits from her insurer and from Canada Pension is compelling evidence of her continuing disability. One would think that if she could be retrained or was employable, the insurers would be anxious to see that happen.
[30] Although I rather suspect that Ms. Thompson is capable of doing far more than she is willing to admit, I cannot say she is capable of self-sufficiency. To make any practical difference in the amount of support being paid by the Respondent, Ms. Thompson would have to be able to earn more than she is currently receiving on disability benefits. I have considerable doubt that she has that ability. I accept that her physical condition is such that she is incapable of returning to underground mining or doing any work that requires significant physical exertion. Her education is limited. Assuming she could possibly retrain for some sort of sedentary work, it strikes me as unlikely that she would find herself able to earn more than she currently receives on disability. The result is that her failure to continue to seek treatment, retrain or seek employment does not constitute a material change in circumstances that would warrant a variation of support.
Reduction of the Respondent’s Income
[31] When the amount of spousal support was agreed upon at $750.00, the Respondent’s income was approximately $90,500 per year. The spousal support advisory guidelines would have suggested a considerably greater amount of spousal support. There was no evidence led to establish why a lesser amount was agreed upon by the parties.
[32] Given the Respondent’s current income of $66,500 and the Applicant’s current income of $44,131, the spousal support advisory guidelines call for a range of support between $768 and $923. On this basis, the Applicant argues that support should continue at $750 per month notwithstanding the change in the Respondent’s income.
[33] It was argued before me that the spousal support advisory guidelines should guide my decision on this issue. Although I note the acknowledgement of the Ontario Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, that the guidelines do not apply to variation orders, it appears to me that they may well apply in many variation proceedings, but should be used cautiously because they were not designed to deal with certain issues which can arise on variation such as re-partnering, remarriage and second families and unanticipated post-separation increases in the payor’s income [see Chapter 14 of the Spousal Support Advisory Guidelines]. At first blush it might appear that their use in the case before me would be appropriate, dealing as it does with a simple decrease in the payor’s income. However, in my view it would be inappropriate to apply the guidelines now, when the parties did not apply them in coming to their initial settlement. Surely there was a reason why $750 per month was accepted by the Applicant, and yet I received no evidence on that point. The result is that I am unable to determine whether the circumstances that warranted acceptance of that lesser amount continue to exist.
[34] If the Respondent was to pay $750 per month while he was earning $90,000, it is only reasonable to assume that if he earned significantly less he would be entitled to vary the amount of his payment. Without additional evidence, it is difficult to accept that he should be making the same payment when his income has dropped by more than 25%.
[35] In my view, the Applicant continues to be economically disadvantaged as a result of the marriage and its breakdown. The parties were married for over 25 years, during a significant portion of which the Applicant’s primary responsibility was the care of the children and maintenance of the home. Considering the respective incomes of the parties and the support being paid, the Applicant bore a greater share of the economic hardship arising from the separation. The Applicant’s entitlement to continued support in these circumstances is clear.
[36] I am not able, however, to ignore the significant decrease in Mr. Thompson’s income. When I consider that decrease and have regard to the needs and circumstances of the Applicant, it is appropriate to reduce his spousal support payment to $500 per month, effective August 1, 2012 when he went on disability leave.
Conclusion
[37] Based upon the findings above, judgment shall issue on the following terms:
The obligation of the Respondent to pay spousal support is suspended retrospectively for the months of June, July, August and September of 2009.
The Order of Riopelle J., dated January 12, 2007, shall be varied by reducing the amount of spousal support payable by the Respondent to $500 per month, effective August 1, 2012.
[38] In the event counsel feels my findings can be restated such that FRO will more readily implement the required adjustments, they may submit a draft judgment on different terms for my review.
[39] If the parties are unable to agree on costs, they may make written submissions to me within 45 days. Each party’s submissions shall be limited to four pages plus attachments.
The Honourable Mr. Justice R.D. Gordon
Released: December 9, 2013
COURT FILE NO.: 12108/10
DATE: 2013-12-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marilyn Thompson
Applicant
– and –
Robert Thompson
Respondent
REASONS FOR JUDGMENT
R.D. Gordon J.
Released: December 9, 2013