SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: D15,511-01
DATE: 2014-09-05
RE: Laurie Landry, Applicant
AND:
Jacques Mallette, Respondent
BEFORE: The Honourable Mr. Justice J.S. Poupore
COUNSEL: Réjean Parisé, for the Applicant
Darren Berlinguette, for the Respondent
HEARD: September 2, 2014
ENDORSEMENT
[1] The Respondent husband, Jacques Mallette, filed a motion to change an existing spousal support order dated May 24, 2011 on July 25, 2012.
[2] The Applicant wife, Laurie Landry, filed a response to the motion to change on September 4, 2012. In her response, the Applicant asked to change the spousal support order of May 24, 2011.
[3] Counsel for the parties filed an agreed statement of facts which is reproduced below:
The Applicant wife and Respondent husband were married on May 5, 1979, and separated on October 1, 1999.
In the marriage were born three children being:
− Mitchell born August 22, 1985, now 29 years of age
− Justin born November 20, 1987, now 26 years of age
− Jon born June 3, 1981, now 33 years of age.
3.a) The Respondent is a retired teacher who at retirement was a principal. He was a teacher after achieving his university training partially in the marriage as of January 1, 1982.
3.b) As of the date of separation, he had 13.08 years of service for his pension in a pension that at the date of separation had a 35 year provision for full pension and accordingly the Applicant wife received 13.08 ÷ 35 x ½ value of the Respondent’s employment pension.
The Applicant wife’s employment in the marriage was generally part-time and low paying as a grocery store teller or alike work.
The division of assets captured in the Order of Madam Justice Hennessy of May 20, 2003, provided the Respondent husband with his employment pension of which the Applicant wife’s share was one half of $102,969 and the wife retained the matrimonial home and RRSP’s. The matrimonial home was mortgage free and is located in Mindemoya on two acres of land. The order is Exhibit “A” to the July 17, 2012, affidavit of the Respondent.
The initial order of the court provided for child support and spousal support. The child support order was in favour of the Applicant wife along with the spousal support order. The child support was $1,109 per month for two children and the spousal support was $1,400 per month indexed.
The parties were divorced in September of 2003 and in 2004 the Respondent Mr. Mallette remarried Elsie Mallette who was also a retired school teacher.
The Applicant Ms. Landry commenced residing with Doug Gilchrist in the year 2009. Mr. Gilchrist was and is an employee of Laforge Canada.
In the year 2012 the Applicant wife was unable to work and her sole income was spousal support from the Respondent. For purposes of evaluating her means and circumstances in the year 2012, the Applicant concedes that she received a CPP disability award in 2013 retroactive to the year 2012, although for reasons not know it was not taxable in that year.
The operative order for variation consideration is the Order of Justice Del Frate of May 24, 2011, which provided spousal support of $1,622 per month, no child support, and that the retirement of the Respondent Mr. Mallette is a material change in circumstance when it occurs.
The income of the parties and their respective spouses from 2011 are as follows:
Applicant
Laurie Landry Doug Gilchrist Combined
2011 $27,365 $44,571 $71,936
2012 $19,846 $46,568 $66,414
(CPP $9,696)
2013 $28,072 $46,260 $74,332
(CPP $9,696)
Respondent
Jacques Mallette Elsie Mallette Combined
2011 $119,669 $52,945 $172,614
2012 $158,931 $72,632 $231,563
2013 $50,317 $69,834 $120,151
Elsie Mallette has as her sole future income a retirement annual income of $44,000.
In the year 2012, the Respondent’s income was composed of employment earnings of $73,633; pension earnings of $26,039.44 for a total of $99,672. The remaining difference between $158,931 and $99,672 being $59,259 in severance in lieu of benefits is declared as income but with a matching deduction leaving a taxable income of $95,819.
The child, Justin, remains resident with the Applicant wife while he works 33 hours per week at $15 per hour and she receives no income from him rather wanting him to use his spare income to pay down his student loans of about $20,000.
[4] Counsel for the parties also agreed that there has been a material change in circumstances since the last Order of Del Frate J. dated May 24, 2011 as a result of the Respondent’s retirement and change of income; and the Applicant’s inability to work and her change of income.
[5] This variation proceeding is governed by s. 17(7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which reads :
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.
Respondent’s Position
[6] The Respondent argues that spousal support ought to be terminated as the Applicant is no longer in need of support and further any compensatory support obligation has already been honoured.
[7] In the alternative, should the court order support, the principles set out in Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, regarding double dipping ought to apply and thereafter the table amount reduced because the income of the Applicant’s new partner reduces her need.
[8] Any support ought to be time limited to three to five years.
Applicant’s Position
[9] The Applicant argues that she is entitled, based on need and compensatory reasons, to non-time limited ongoing support based on the Spousal Support Advisory Guidelines.
[10] The principle against double dipping ought not to apply in this case.
Discussion
[11] The principles laid out by the Supreme Court of Canada mandate that the starting point of this inquiry is the Order of Del Frate J. dated May 24, 2011. I am to look at the circumstances of the parties since that time.
[12] In 2012, the Applicant was employed in a part-time low paying job and was receiving support. She was living with a new partner in a short-term relationship. The Respondent was still working as a school principal. He was remarried to a school teacher.
[13] The Order of Del Frate J. provided for non-time limited support in accordance with the support guidelines.
[14] Since 2012, the Applicant is not able to work for medical reasons. She is collecting Canada Pension Plan disability benefits and her new relationship has become more permanent which would perhaps legally oblige her partner to pay spousal support if something should happen to that union.
[15] The Respondent’s employment income spiked in 2012 because of his electing to retire. His 2013 and ongoing income is greatly reduced because he is collecting his pension.
[16] I am satisfied in these circumstances, due to the length of the marriage and the Applicant’s role assumed in raising the children, that she is still entitled to compensatory support. Further, her illness which prevents her from working puts her in need of ongoing support. Because the Applicant resides with a partner with an income does not mean that the obligation to support would be shifted completely at this time from a long-term marriage partner with children to a short-term partner.
[17] On the other hand, the Respondent’s retirement and pension income entitled him to a reduced payment for support. The parties have done the Boston calculation. The mid-range support obligation of the Respondent based on his full pension income would be $1,185, whereas without double dipping it would be $946. I do not find that the Applicant’s need is such that she requires double dipping. She could no doubt use the extra money, however this is where the fact that she is residing with a new partner who has an income does have some impact.
[18] Both parties have requested a retroactive order. The Applicant seeks a variation in her support for the year 2012 to account for his spike in income. The Respondent requests that any reduction support be back dated to January 1, 2013. Both arguments have merit. However, I choose to not make any retroactive order. One argument offsets the other even if the mathematics does not come out equal.
Conclusion
[19] Paragraph 1 of the Order of Del Frate J. dated May 24, 2011 is varied to read:
- The Respondent shall pay to the Applicant the sum of $946 per month for spousal support commencing 1 September 2014 based upon his 2013 income of $50,317 and the Applicant’s 2013 income of $9,696. The payment shall be indexed at the same rate as the husband’s pension is indexed.
[20] If costs cannot be agreed upon, the parties are to take out an appointment to address me on same.
The Honourable Mr. Justice J.S. Poupore
Date: September 5, 2014