ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Bhandhal and Bhandhal, 2015 ONSC 1152

COURT FILE NO.: FS-98-BN-02015-01

DATE: 2015-02-23

BETWEEN:

MOHAN BHANDHAL

H.S. Mann, for the Applicant

Applicant

• and -

RAJINDER BHANDHAL

Ken Nathens, for the Respondent

Respondent

HEARD: December 24, 2014

REASONS FOR JUDGMENT

LEMON J

THE ISSUE

[1] Mr. Bhandhal moves to change his spousal support order. He has been paying support to his wife for just under 19 years. After a marriage of equal length, he wishes to have the court say, “Enough is enough”. For the reasons that follow, I say not enough yet.

FACTS

[2] The parties expressly declined an opportunity to call viva voce evidence. There was no cross-examination on the affidavits. It does not appear that there are any factual issues that I need to determine.

[3] Mr. and Ms. Bhandhal were married on July 3, 1977 and separated on February 6, 1996. They were divorced on January 10, 1997. They were married for 18 years and 7 months. They did not have any children together.

[4] Mr. Bhandhal has been paying spousal support since February 1996; 18 years and 10 months at the time of argument.

[5] Interim spousal support of $1,500 per month was to be paid to Ms. Bhandhal from February 1996, but Mr. Bhandhal could not work from February to June 1996 due to a nervous breakdown, so he paid her $750 per month during that time. After he improved, he paid Ms. Bhandhal $1,500 from July 1996 to January 1997.

[6] From February 1997 to December 1998, he paid $1,225 per month. On March 1, 1999, the previous order was varied and support of $612.50 per month was ordered to be paid with a cost of living adjustment. It appears that the order dealt with any outstanding arrears. Currently, with the cost of living adjustments, Mr. Bhandhal is paying $823 per month. It is this order that he seeks to change.

[7] After his divorce from Ms. Bhandhal, Mr. Bhandhal re-married. He and his new wife had a daughter together. That marriage ended and since October 28, 2003, he has been paying child support. The amount was initially set at $475 per month but increased to $682 per month on June 13, 2013. Mr. Bhandhal also had to make up for retroactive child support in the amount of $16,365.60. That is to be paid in monthly installments of $300 over approximately the next 4 years.

[8] In total, Mr. Bhandhal’s current court ordered monthly support payment obligations are approximately $1,800.00.

Mr. Bhandhal’s Circumstances

[9] I shall describe Mr. Bhandhal’s circumstances as set out in his affidavit with additional comments as pointed out by Ms. Bhandhal in her affidavit or as pointed out in argument. I shall do the same for Ms. Bhandhal.

[10] Mr. Bhandhal is now living with his third wife and two-year-old son. His wife is currently unemployed; Mr. Bhandhal is the sole provider for his family.

[11] Mr. Bhandhal is 55 years old and works as a bus driver for the City of Hamilton. His Line 150 income in 2013 was $88,987.00. His 2012 Line 150 income was $98,880 and his 2011 Line 150 income was $93,917.00. He earned a total gross income of $58,093.00 as of July 25, 2014. This is consistent with a total annual income of $99,588.00 for 2014.

[12] He tries to work overtime in order to meet his financial obligations, and his shifts were 12 hours long. Due to regulatory changes made earlier this year, his hours have been cut from 60 hours to 53 hours a week. This results in a corresponding decrease in his earnings.

[13] Mr. Bhandhal is in poor health. In addition to his nervous breakdown in 1996, he suffers from diabetes, high blood pressure, and a high cholesterol level. He takes medications for these. Mr. Bhandhal also suffers from degenerative disk disease. As a result, he is unable to pick up his son and play with him.

[14] Mr. Bhandhal’s vision is also problematic. His left eye was permanently injured in an accident during his time in the army. As he is a bus driver, he must pass vision tests in order to renew his license. His doctor has advised him that his deteriorating vision may not allow him to pass the test at his next renewal, which means that he may be forced out of work this year.

[15] In 2014, a tumour was found in Mr. Bhandhal’s bladder. Surgery was required to remove it. Mr. Bhandhal had to take a week off work for treatments. He has follow-up appointments that will require him to use up some of his vacation days.

[16] Although Mr. Bhandhal has had health issues, Ms. Bhandhal points out that his prognosis appears to be good and the tumour is described as “low risk”.

[17] Mr. Bhandhal says that his income level is inadequate to cover his expenses. He currently has outstanding debts totalling approximately $45,666, and had to withdraw from his RRSP in order to meet his expenses. His total asset base, less his family home, is $34,700. His family home, in which his current wife has a half interest, was valued at $189,000 although it has an MPAC value of $214,500. Repairs are needed; the roof needs to be replaced, and the bathtub is cracked. Those will cost approximately $30,000 - $40,000. Mr. Bhandhal has been putting off these repairs because he cannot afford them.

[18] Ms. Bhandhal submits that Mr. Bhandhal’s financial statement as filed is misleading. For instance, he did not indicate the value of his work pension on the grounds that “my pension has already been taken into account when our matrimonial property was equalized.”

[19] Mr. Bhandhal neglects to add to his financial statement the significant tax refund he receives yearly. He indicates on his financial statement that he pays $1,715.00 per month in tax, or $20,580.00 per annum. In fact, in 2013, his total tax obligation was only $5,125.00 and he received a tax refund of $9,802.63. In 2012, his total tax bill on an income of $98,880.00 was $13,891.00, in large part because of the sizeable tax deduction he receives as a result of the payment of spousal support. In 2012, he had a tax refund of $4,877.00. In 2011, he received a tax refund of $6,377.00. Accordingly, Mr. Bhandhal has an additional $500-$1000 per month in disposable income that does not appear on his financial statement.

[20] Further, Ms. Bhandhal points out that Mr. Bhandhal over estimates his yearly CPP and EI premiums on his financial statement filed as these are not paid 12 months of the year. From his last pay stub provided, it appears that his CPP contribution is $200.00 per month, and not $400.00 per month, and his monthly EI contributions are $76.00 per month, and not $155.00 per month, leaving Mr. Bhandhal with an additional $280.00 per month not reflected on his financial statement.

Ms. Bhandhal’s Circumstances

[21] Ms. Bhandhal describes that their families arranged the parties’ marriage. She came to Canada at the age of 21 to get married. Mr. Bhandhal sponsored her for immigration purposes. When she came to Canada, she had a grade ten education from India and had no skills or work experience in Canada.

[22] In his application, Mr. Bhandhal described her situation as:

The Respondent was unemployed at the time of marriage. From 1977 to 1980, the Respondent worked as a part-time housekeeper in a hotel in Gagetown, New Brunswick for about five months. From 1980 to 1990 she worked as a seamstress in Hamilton, Ontario. After that she did not work until our separation but completed a three-month personal support worker course.

[23] The marriage was long and Ms. Bhandhal did not work in the six years prior to the separation as the parties tried unsuccessfully to conceive and have a baby. She acknowledges that she had earlier worked as a housekeeper and seamstress.

[24] After separation, Ms. Bhandhal made efforts to find and keep employment. From December 1997 until March 2008, she found seasonal employment work as a packager and inspector. She then worked at odd jobs through an agency for one year. In the summer of 2009, she worked as a general laborer. She was laid off in September 2010. Apparently, she has not worked since.

[25] Ms. Bhandhal’s highest income since separation was $33,000.00 in 2010, which included spousal support payments of approximately $9,600.00. Her 2011 income was $21,294.00 which includes EI income of $8,243.00 and spousal support. Her 2012 income was $13,362.00 including spousal support. Her 2013 income was $22,881.00 that consisted of spousal support, $10,000 of RRSP withdrawals and approximately $700.00 in investment income.

[26] Ms. Bhandhal is now 59 years of age and is in poor health. She continues to suffer pain in her back, arm and shoulder as a result of physical abuse suffered during the marriage. She is nervous and has difficulty focusing. She has night terrors. She has eye problems that make her sensitive to the light. She is no longer physically able to work in jobs requiring intensive labour, but does not have the skill set necessary for alternate employment.

[27] Ms. Bhandhal resides in her brother’s home with his family. She pays rent of $550.00 and has total expenses of approximately $2,500.00 per month. She has savings of approximately $260,000.00, resulting from the growth in the value of assets she acquired on marriage breakdown. She has no debt. She will need her savings to fund her old age and retirement.

[28] Mr. Bhandhal submits that Ms. Bhandhal has failed to provide any medical evidence to support her assertion that her health problems are preventing her from being gainfully employed. He points out that she has been able to find work before and there is no indication as to why she is not able to work for another five years until she retires at the age of 65.

[29] Furthermore, she will have at least three sources of income to support herself even if she is not employed. First, she has substantial assets in the form of two mutual funds. Second, she will be eligible for benefits under the Canadian Pension Plan (“CPP”) from as early as age 60. As Ms. Bhandhal is currently 59, she is already eligible to apply for the CPP. Third, she will be eligible for the Old Age Security pension when she turns 65. In addition, she may qualify for additional benefits under the Guaranteed Income Supplement as an Old Age Security pension recipient.

THE LAW

[30] Pursuant to s. 17(1) of the Divorce Act, a court may make an order varying, prospectively or retroactively, a support order on application by either or both former spouses. Before doing so, 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 order and, in making the variation order, the court shall take that change into consideration.

[31] If there has been such a change, the variation 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) Insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[32] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775, the Supreme Court of Canada said:

[30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, and G. (L.) v. B. (G.), Like the order at issue in this case, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporated provisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act, the predecessor provision to s. 17(4.1).

[31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances”. In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.

[32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” . G. (L.) confirmed that this threshold also applied to spousal support variations.

[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.

[34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.

[44] In sum, it bears repeating that the threshold question under s. 17, whether or not there is an agreement, is the one Sopinka J. described in Willick, namely:

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [References Removed]

[33] In Dufresne v. Dufresne, 2009 ONCA 682, the Ontario Court of Appeal held that a payor cannot rely upon a future, speculative change that may relate to his future financial circumstances to justify a change in spousal support.

[34] Even if there was a material change in circumstances, the Court is required to review whether a variation in support is justified.

[35] In Walters v Walters, 2011 BCCA 331, the BC Court of Appeal stated at paragraph 41:

Further, in considering the extent of a former spouse’s economic loss arising from the marriage and its breakdown, a court should “consider need and standard of living as the primary criteria, together with the ability to pay of the other party.” The appellant’s entitlement to compensatory support arising from her role in the marriage and the economic disadvantage that flow from the marriage and its breakdown (Moge) was significant. She also had a significant ongoing financial need for non-compensatory support as a result of the length of the marriage and her economic dependence on the respondent’s income earning capacity over the parties 23 year marriage (Bracklow). Both conceptual bases for spousal support continued to be relevant in the making of a variation order.[References Removed]

POSITIONS OF THE PARTIES

[36] Mr. Bhandhal submits that there have been material changes in Mr. Bhandhal’s circumstances warranting the termination of spousal support.

[37] He has assumed new family responsibilities. He has deteriorating health conditions that may force him out of work at an early date. His working hours were reduced. These are all “change in the condition, means, needs or other circumstances of either former spouse” that a court needs to satisfy itself with, prior to the making of a variation order.

[38] Further, both the Spousal Support Advisory Guidelines (SSAG) and the case law have stated that “indefinite” support does not mean “permanent” support. Rather, “indefinite” support means support that is subject to the normal process of variation and review. The amount is subject to reduction or termination.

[39] Mr. Bhandhal also submits that there has been a material change in his circumstances given that the SSAG distinguishes between marriages with and without dependent children in determining the quantum and duration of spousal support. In this case, Mr. Bhandhal and Ms. Bhandhal did not have any dependent children from the marriage. As such, the basic formula to be applied is the “without child support formula”.

[40] Under SSAG’s basic “without child support formula”,

(a) Duration is .5 to 1 year of support for each year of marriage, with duration becoming indefinite (duration not specified) after 20 years or, if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the “rule of 65”).

[41] Thus, according to the SSAG, the duration of spousal support in this case should fall somewhere between the range of approximately 9 to 18.5 years. Mr. Bhandhal has already been paying spousal support for 18 years and 7 months.

[42] According to the SSAG’s, Mr. Bhandhal is likely to have already paid an appropriate amount of spousal support to Ms. Bhandhal in accordance with the objectives for spousal support set out in section 15.2(6) of the Divorce Act to the extent that they are applicable to the parties’ circumstances.

[43] Courts have emphasized the interrelationship between amount and duration, recognizing that an award for a higher amount paid out over a shorter period of time, is the equivalent of a low award paid out over a lengthy period of time.

[44] Since Mr. Bhandhal and Ms. Bhandhal did not have any children together, and the impact of their marriage on Ms. Bhandhal’s career and means to become self-sufficient was minimal, the duration should be closer to the shorter end of the spectrum suggested by the SSAG.

[45] However, the duration for which Mr. Bhandhal has been paying spousal support is at the upper end of what the SSAG has suggested. Thus, the great length in duration should offset any claims that the quantum has been inadequate.

[46] Furthermore, there is “growing recognition” on time-limited spousal support awards for medium length marriages when the basis of entitlement is mainly non-compensatory, and the purpose is to provide a transition to a lower standard of living.

[47] Accordingly, says Mr. Bhandhal, this is an appropriate time to terminate his spousal support obligations.

[48] In response, Ms. Bhandhal submits that Mr. Bhandhal’s argument that he is no longer required to pay spousal support according to the SSAG is not properly reflective of the current law of spousal support. Mr. Bhandhal’s argument is flawed as he argues for the application of only one component of the SSAG, the suggested length of payment, without considering that the SSAG’s mandate a quantum of spousal support almost 3 times as much as Mr. Bhandhal has been paying. The mid-range for spousal support based on the parties’ respective incomes (assuming no income to Ms. Bhandhal) is $2466.00 per month. Mr. Bhandhal’s argument is contrary to the Court of Appeal’s holding in Fisher, v. Fisher 2008 ONCA 11 that the Guidelines “must be applied in context, and applied in their entirety, including the specific consideration of any applicable variables, and where necessary, restructuring.”

[49] It is submitted that based on both compensatory and non-compensatory principles of spousal support, Ms. Bhandhal continues to both need and be entitled to the payment of spousal support.

[50] She does not seek to vary the support but asks that Mr. Bhandhal’s motion be dismissed with costs.

ANALYSIS

[51] I cannot make the determination of whether there has been a material change in circumstance on these materials. I do not have any information on the circumstances of the parties at the time of the 1999 order. At the present time, both parties are in similar circumstances. He owns a home; she does not. He has a pension; she does not. She has a lump sum of savings; he does not.

[52] While Mr. Bhandhal has substantial financial obligations from his new family, that does not come ahead of his obligations to Ms. Bhandhal. In B.V. v. P.V., 2012 ONCA 262, our Court of Appeal said:

We are not persuaded that the trial judge erred by failing to reduce the level of spousal support on account of B.V.’s remarriage and new child or that the trial judge erred by adopting the “first-family-first” approach in the circumstances of this case.

[53] Mr. Bhandhal’s real health problems are in the future. As yet, no change has occurred in his income. He is still earning a substantial income and can afford to assist Ms. Bhandhal. If his health changes his income, that may well generate a material change in circumstances that could reduce or eliminate the support.

[54] While the support order was made before the advent of the Guidelines, and is presumed to be correct in fact and law, Mr. Bhandhal cannot pick part of the Guidelines that he likes – duration – without considering quantum. Based on any calculation, he has been paying thousands of dollars each year less than the Guideline amount for many years. Even if the duration is arguably over, Ms. Bhandhal’s compensatory claim is still significant and unpaid.

[55] Even if I were to find a change in Mr. Bhandhal’s circumstances, I would not vary the order.

[56] Ms. Bhandhal gave up financial benefits to stay home in her best economic years. She is still suffering from the economic disadvantages of the marriage.

[57] Given her circumstances, she is still in need of support from Mr. Bhandhal. They present support appears to be low.

[58] I am satisfied on this record that Ms. Bhandhal has made the efforts she can to be self-sufficient. Her education and skills appear to have been used to a reasonable extent.

[59] Taking the factors listed in s. 17(7) of the Divorce Act, I am satisfied that the support as presently ordered should not be reduced.

[60] The application is dismissed.

[61] If the parties cannot agree on costs, written submissions may be made to me. The submissions of the respondent shall be provided within the next 15 days and the applicant shall respond within 15 days after receipt of those submissions. Each submission shall be no more that three pages not including any Offers to Settle or Bill of Costs.

LEMON J

Released: February 23, 2015

CITATION: Bhandhal and Bhandhal, 2015 ONSC 1152

COURT FILE NO.: FS-98-BN-02015-01

DATE: 2015-02-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MOHAN BHANDHAL

Applicant

• and -

RAJINDER BHANDHAL

Respondent

REASONS FOR JUDGMENT

LEMON J

Released: February 23, 2015