Bradley John Parker v. Marie Mona Terry Parker, 2014 ONSC 4211
COURT FILE NO.: FC-11-437-2
DATE: 2014/07/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bradley John Parker
Applicant
– and –
Marie Mona Terry Parker
Respondent
COUNSEL:
Lindsay G. Mills, for the Applicant
Self-Represented
HEARD: July 7, 2014
REASONS FOR DECISION
BEAUDOIN J.
Nature of the Relief Sought
[1] The applicant seeks the following relief:
a) an order for the termination of the obligation to pay spousal support to the respondent, Marie Mona Terry Parker, pursuant to the parties’ separation agreement dated December 4, 2008, retroactive to June 15, 2013;
b) an order for the termination of the obligation to maintain life insurance so as to secure his support obligations pursuant to the separation agreement, retroactive to June 15, 2013; and
c) an order for his costs on a full recovery basis.
Background
[2] The parties executed a separation agreement dated December 4, 2008. The agreement was executed with the benefit of independent legal advice. There are no issues with regard to disclosure nor are there any questions raised as to the validity of the agreement. The separation agreement was filed in Ottawa on February 23, 2011 by the respondent and on July 4, 2013 by the applicant. The parties were divorced on February 26, 2010. The applicant has since remarried.
[3] The parties were married on August 30, 1980, and separated on March 1, 2007. There were two children of the marriage: Catherine Michelle Parker, born June 27, 1983, and James Andrew Parker, born July 3, 1986. At the time of the execution of the agreement, Catherine was no longer a child of the marriage for support purposes. James was in his third year of undergraduate studies at Brock University. At para. 1.6 of the agreement it was noted that the applicant was a federal public servant who had taken a leave of absence from his position with the Department of Fisheries and Oceans in Ottawa, Ontario. At that time he was employed at Aecon in British Columbia. He then had a gross annual income of $150,000.00. The agreement contemplated that when Mr. Parker resumed his employment with Fisheries and Oceans, his salary would be reduced to $113,000.00. The respondent was and is still employed as a bilingual secretary at the Canada Union of Public Employees (C.U.P.E.) in Ottawa, Ontario, with an annual gross income at that time of $58,856.45.
[4] There was no specific provision for periodic child support payments. The parties agreed to provide James with $20,000.00 ($10,000.00 each) from the proceeds of disposition from the jointly held matrimonial home to cover some of his postsecondary educational expenses. Notwithstanding the significant differences in their incomes, they agreed that any further contributions to James’ postsecondary educational expenses would be divided equally between them.
[5] The key provisions with respect to spousal support are set out in para. 4. It provided that the applicant would pay the respondent the sum of $1,500.00 dollars per month starting on January 1, 2008. It provided that he would continue to pay spousal support until he reached the age of 65, and that his last payment would be on October 1, 2020. Paragraph 4.2 is important and it provides:
Spousal support may be changed if there is a material change in circumstances, even if the change was foreseen or foreseeable. The change may be:
a) in either party’s financial position (including either party’s retirement),
b) in either party’s health,
or any other similar change.
[6] The agreement went on to equalize the parties’ net family property. After the sale of their jointly held matrimonial home and the sale of a vacant lot, the respondent received $173,327.74 which amount included an equalization payment of $80,183.41. At para. 10.2, the parties released any claims to each other’s employer-provided pensions. An addendum to the agreement was made on October 24, 2009 to clarify the tax status of prior spousal support.
[7] The applicant commenced these proceedings in British Columbia and the provisions of the Divorce Act as well as the Interjurisdictional Support Orders Act apply. In his affidavit sworn March 21, 2014, Mr. Parker states that he has been paying $1,500.00 per month to the respondent on account of spousal support since January 1, 2008. In addition, he has paid $98.35 per month for a life insurance premium which is in place to secure his spousal support obligation.
[8] Until January 4, 2013, he was employed at the Director level with the Department of Fisheries and Oceans in Calgary. He was responsible for the delivery of a specialized program that was disbanded. His position was declared “surplus” in June 2012. Mr. Parker was given two options: he could leave his employment and take a payment in lieu of notice, effective on any date prior to March 2013, or he could stay on and try to find a job at the same level in the Federal Government. If he had decided to stay on, there were two provisos: the first, that there was no guarantee of a job offer and as such within one year he could be terminated without further considerations; and secondly, there would be no payment in lieu of notice at any later date. Mr. Parker took option number one as he believed there would be no job offer for him, especially in light of the job reductions in the Federal Government and the fact that he was not bilingual, which is a requirement for most senior jobs. He decided to take what was offered to him; namely a reduced pension, but he believed this to be better than what he would have received had he stayed on for several more months, and in addition, he received a payment in lieu of notice. In an earlier affidavit, sworn July 22, 2013, he said that he had the option of moving to either Yellowknife or Sarnia, neither of which were agreeable. His last day of employment with Fisheries and Oceans Canada was January 4, 2013.
[9] In his more recent affidavit, the applicant has detailed his job search efforts and he was successful in obtaining employment as a manual labourer in landscaping in February 2014. He is now employed on a seasonal hourly basis for approximately $11.30 per hour (recently increased to $12.50 per hour). He works 37.5 hours per week and expects to be employed until around September of each year. He estimates an annual income from this seasonal employment will be approximately $13,000.00 per year. He has no guarantees that this seasonal employment will reoccur every year. His pension income will be approximately $48,124.44 per year. This will be supplemented by the seasonal employment, which leaves him with an annual income of approximately $61,600.00. The respondent’s current employment is now $69,752.76.
[10] In her material, the respondent has alleged that the applicant now owns property in British Columbia which he has listed as having a value of approximately $400,000.00. The respondent claims that this property is undervalued. The house is free and clear. According to the Applicant, the property was purchased solely by his current wife, Penny Harvey. He explains that title was transferred into both of their names for estate planning purposes. He did not contribute financially to the property. If his new spouse predeceases him, he will be able to live in the property until his death, and then it will pass on to Penny’s son from a previous relationship. He has provided a copy of the written agreement between himself and his wife concerning this property.
[11] The respondent wife takes the position that the applicant’s change in employment is not genuine and she is not satisfied that there is no other employment available to him. As for their son James, although he is 27 years of age, she claims he is not self-supporting. He has struggled with depression and anxiety for a number of years and has required additional support financially and medically. She claims to provide support to James on a financial basis. The respondent adds that at the time of the execution of the separation agreement, the parties met with a financial advisor of the applicant’s choosing who prepared a report outlining various options for spousal support and the various ranges, and suggested a minimum of 11 years and a maximum of 20 years for spousal support. She claims that in the interest of being fair, and against the advice of legal counsel, she agreed to accept spousal support in the amount of $1,500.00 per month, well below the spousal support guidelines at that time. In answer to my questions she confirmed that the parties had anticipated early retirements during their marriage and that they had purchased property for that purpose.
The Law
[12] Section 17(4.1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), provides:
Factors for spousal support order
(4.1) Before the court makes a variation order in respect of a spousal support order, the court 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 or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
[13] Subsection (7) reads:
Objectives of variation order varying spousal support order
(7) A variation order varying a spousal support order should
(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.
[14] In the circumstances of this case, I am satisfied that there is a material change in circumstances. The separation agreement executed between the parties indicated that “spousal support may be changed if there is a material change in circumstances, even if the change was foreseen or foreseeable.” The agreement went on to provide that such a change would be deemed to have occurred if there was a change in either party’s financial position, including “either party’s retirement.” In considering whether or not there has been a material change in circumstances, as set out in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, a court will give effect to the parties’ intentions as set out in their separation agreement. The Supreme Court said at para. 39:
39 Parties may either contemplate that a specific type of change will or will not give rise to variation. When a given change is specified in the agreement incorporated into the order as giving rise to, or not giving rise to, variation (either expressly or by necessary implication), the answer to the Willick question may well be found in the terms of the order itself. That is, the parties, through their agreement, which has already received prior judicial approval, have provided the answer to the Willick inquiry required to determine if a material change has occurred under s. 17(4.1). Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.
[15] The critical issue in this case is whether or not the applicant’s voluntary retirement from his employment can be considered to be bad faith on his part to avoid his support obligations. I was referred to the decision of my colleague, Rutherford J. in Haramis v. Haramis, 44 R.F.L. (4th) 207 (Ont. Gen. Div.). In that case, a payor had accepted an early retirement package from his employer and the court concluded that in the circumstances of that case the payor’s decision was a reasonable and supportable one. I conclude that the Haramis case is analogous to the present case. I am satisfied that Mr. Parker did not leave his employment to avoid his spousal support obligations, nor that he has acted in any bad faith. I am satisfied that the applicant had few realistic choices presented to him by his employer, and that the option that he selected was a reasonable one. I am also satisfied on his affidavit evidence that he has made significant job search efforts and that he has had little success other than securing the seasonal employment that he has found to date.
[16] It is also important to note that the parties equalized their properties, including their pensions. The primary source of the applicant’s current income is his reduced pension, and to require him to pay spousal support out of his pension income would constitute a double recovery on the part of the respondent. At best, it would be only the unequalized portions of his pension and his current seasonal employment that would be available to satisfy any obligation to pay spousal support.
[17] I note that the respondent’s current income is $69,752.76. If Mr. Parker were required to continue to make spousal support payments, he would be making any support payments out of his capital. Our courts have repeatedly recognized that a party should not generally be required to pay spousal support out of savings or to deplete capital for that purpose. In this case, I am satisfied on the evidence before me that the applicant does not have a proprietary interest in the property jointly held, but simply a right of possession in the event that his new wife predeceases him.
[18] In summary then, I am satisfied that there is a material change in circumstances and at present the respondent enjoys a modestly higher level of income than the applicant.
[19] In her submissions, the respondent indicated that she has incurred a significant mortgage debt in order to purchase a modest townhome for herself and for her son James when he resides with her. She has a mortgage of approximately $138,000.00 whereas the applicant lives in a home that is debt-free. She had relied on her receipt of spousal support in order to make her mortgage payments. Her claims that she accepted less than the “table amount” of spousal support are supported by my own review of Divorcemate calculations[^1] that indicate if the support payor’s income is $150,000.00 and the respondent earns $58,800.00, the range of monthly spousal support payable would be $2,850.00 (Low); $3,325.00 (Mid) and $3,800.00 (High). If the payor’s income is $113,000.00, the range would be $1,694.00 (Low); $1,976.00 (Mid) and $2,258.00 (High). With a marriage of 27 years, under either scenario spousal support would be payable for an indefinite period. The applicant remained at Aecon until 2011.
[20] The respondent argues that she will now be facing financial hardship if spousal support is reduced or eliminated. Her claims that she accepted less than the table amount of support against legal advice are credible. I do not doubt that she relied on that stream of support in purchasing a new home for herself but she conceded that it was contemplated that the parties would retire early. Nevertheless, the terms of agreement were more favourable to the applicant; he paid spousal support well below table amount that might have been otherwise payable. The agreement contained a precise calculation was made of the final amounts due to the respondent having regard to the advance payments she had received. She had to repay the modest amount of $4,030.24 in order to rectify an overpayment. She did so by making the payments of the applicant’s additional life insurance policy from January 2009 until May 2012. I have already noted that both parties made equal contributions toward their son’s educational expenses even though the applicant’s proportionate share would otherwise have been much higher.
[21] I note that the applicant’s annual income for 2013 was $109,416.99, which included the lump sum payment of $61,292.55 he received from Oceans and Fisheries Canada in March 2013. I find that he could continue to make support payments at the existing level of $1,500.00 per month until the end of December 2013. In order to properly compensate the respondent from the economic hardships arising from the breakdown of the marriage, and to promote her own self-sufficiency, I vary the amount of spousal support payable as of January 1, 2014 to the amount of $750.00 per month for a period of one year until December 31, 2014, and order that the spousal support should be reduced to $1.00 annually thereafter. An immediate termination of support would be inconsistent with the purposes and objectives of spousal support as set out above.
[22] The applicant is not without skills and experience in fish habitat and environmental protection and his prior job searches may yet bear fruit. He will inform the respondent of any new or additional income and will provide the respondent with copies on his Notices of Assessment annually for each year including 2020.
Costs
[23] The applicant has sought his costs on a full recovery basis, namely in the amount of $15,600.00. He argues that he has tried to resolve the matter before the Court and that the respondent has been unreasonable. The respondent indicates that the only offer that she received from the applicant was a complete termination of spousal support as of June 2013. She indicates that she was always willing to offer some compromise and had been prepared to take a lesser amount of $1,300.00 per month.
[24] In this case, I find that the applicant’s position of a complete termination of support as of June 2013 was not reasonable as it did not offer any form of transition to the respondent. By the same token, the respondent’s offer of a modest reduction in the amount of spousal support left him with little choice but to proceed with this application. Given these circumstances, I decline to make any order as to costs.
Mr. Justice Robert N. Beaudoin
Released: July 14, 2014
COURT FILE NO.: FC-11-437-2
DATE: 2014/07/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bradley John Parker
Applicant
– and –
Marie Mona Terry Parker
Respondent
REASONS FOR DECISION
Beaudoin J.
Released: July 14, 2014
[^1]: “Without Child Support” Formula.