Schaldach v. Schaldach, 2015 ONSC 1574

COURT FILE NO.: 1024/1997

DATE: 2015-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

JOHN HANS SCHALDACH

Applicant

– and –

JOANNE MICHAEL (KEARNS) SCHALDACH

Respondent

Joanne Beasley, for the Applicant

James Dean, for the Respondent

HEARD: February 26 & 27, 2015 at London

HEENEY R.S.J.:

[1] This is a motion and a cross-motion to vary the spousal support provisions in the order of Gillese J. (as she then was) made May 4, 2001. The Applicant (whom I will refer to as the “Husband”, even though the parties have been divorced for many years) takes the position that he has paid interim and permanent spousal support since July of 1997, a total of almost 18 years. Given that the marriage itself lasted only 13 years, he submits that his obligation to pay spousal support should terminate.

[2] The motion to change of the Respondent (whom I will refer to as the “Wife”) seeks an increase in the amount of spousal support. It was set at $1,500 in 2001, and has never been increased, even though her cost of living, and the income of the Husband, have both increased dramatically over the past 14 years. She resists the Husband’s application, and maintains that she continues to suffer from the health problems that kept her out of the workforce at the time of the divorce and throughout their period of separation, and remains unable to work and become self-supporting. She asks for an additional $600 per month.

Background:

[3] The Wife was born on July 14, 1952, and is now 62 years of age. The Husband was born on June 21, 1955, and is now 59 years of age.

[4] The parties were married on December 21, 1984. The Wife was in her second year at the University of Western Ontario at the time, while the Husband worked at the university in the chemistry department, having previously graduated from college with a diploma in mechanical technology in 1976. The Wife’s career plan was to become a teacher. However, she became pregnant within two months of the marriage, and left school. Thereafter, she was largely a stay-at-home mother, raising the two children that she had with the Husband (Amanda, born October 8, 1985 and Katherine, born April 23, 1987) as well as her three children from her previous marriage, who were 6, 8 and 10 years of age respectively at the time of her pregnancy with Amanda. She did some home office work for two companies that the Husband operated over the years, but otherwise did not work outside the home during the marriage.

[5] She testified that she was involved in about 6 motor vehicle accidents during the marriage, and one after the divorce. The Husband does not dispute that she had car accidents, but believed she had been involved in only 2.

[6] She testified as to a number of health problems during the marriage. She was diagnosed with fibromyalgia in 1992, which her doctor believed was related to a car accident in 1989. Chronic fatigue syndrome came along with her fibromyalgia. She suffered from chronic back pain as well, along with other ailments.

[7] The parties separated in July of 1997. The Wife had sole custody of the children from the separation forward.

[8] There was a dearth of evidence tendered at trial as to the state of the Wife’s health at the time of the divorce order, other than her oral testimony. However, the Reasons for Judgment of Gillese J. dated May 4, 2001 make it clear that the Wife was suffering from health problems that limited her in her ability to find employment. It was for that express reason that spousal support was not time-limited. She said the following, at p. 6 of her reasons:

…unless there was evidence to show that a spouse was deliberately or arbitrarily thwarting their efforts at self-sufficiency, then, if there has been entitlement to, or there is entitlement to support, then there ought not to be a fixed duration on the time limit. In this case, I am satisfied that there is no deliberate or arbitrary attempt to thwart economic self-sufficiency. There [are] clear health reasons that limit Ms. Schaldach in her efforts to find employment.

[9] The key issue before the trial judge was whether the order should be time-limited. The Husband wanted a 5 year cap, while the Wife wanted indefinite support. In finding that the Wife was successful in the litigation and should be awarded costs, the trial judge again referred to the Wife’s health, at pg. 14 of her reasons:

And on that, because it is not time-limited, Ms. Schaldach was successful. Also, given the state of her health and the state of the law, it was, I think, much more likely than not that she would be successful in having an un-time-limited order.

[10] That is not to say that there was no hope of the Wife ever contributing something toward her own support. At p. 8 of her reasons, the trial judge said this:

I might add, counsel, that I know the law on self-sufficiency is changing. At the same point, Ms. Schaldach is not an old woman. With any luck, there will be an opportunity, as she herself has said, that she will be able to get some kind of work. I think a spousal support award that is not time limited ought to contribute to the recognition that there is an opportunity at some stage for some contribution by her to her own support. I have looked at the various age, physical and mental health, the needs, standard of living when the parties were together, what they are now, and so on. For those reasons, in my view, the applicant shall pay to the respondent $1,500.00 a month spousal support. No time limit imposed.

[11] Child support was also ordered for the two children of the marriage, in the amount of $1,021 per month, based on the Husband’s income of $79,041 per year.

[12] The parties had declared bankruptcy after the separation, so there was little property to equalize. The Wife received an equalization payment of $5,342, representing ½ of the valuation date present value of the Husband’s pension.

[13] In the years following the divorce, the Wife had to deal with a family tragedy along with her health problems. In or about 2002, her eldest daughter from her first marriage, Elizabeth, committed suicide. The Wife was emotionally devastated for a couple of years as a result.

[14] In December of 2001, roughly 7 months after the divorce, the Wife was involved in a relatively serious car accident, where she was rear-ended. She sustained a whiplash injury and smashed her knees into the dashboard. She testified that the accident aggravated her pre-existing fibromyalgia. She had been enrolled in two courses at Western at the time, and was on her way to apply for a part-time job at the library when the accident happened. She commenced legal proceedings to claim compensation, and in her examination for discovery, which she adopted at trial, she said her hope was to attend university full-time in September of 2002, and ultimately graduate from teacher’s college in 2004. However, the accident ended any prospect of that happening.

[15] She received a settlement in 2007 in the amount of $101,165 net of legal fees, but had to pay her chiropractic bill and her family law lawyer out of that. She paid bills and paid some money down on her mortgage, but nothing was invested and it appears that the money was gone before long.

[16] In or about early 2006, proceedings were commenced by the Husband to terminate child support, while the Wife brought a cross-motion to increase spousal support. A temporary without prejudice order was made by Campbell J. on July 19, 2006, retroactively terminating child support for Katherine as of June 30, 2005, and for Amanda as of August 31, 2005. On consent, this order was made final by Taylor J. on September 20, 2006. On October 18, 2006, Vogelsang J. made an order pursuant to Minutes of Settlement, whereby the Wife’s motion to change was dismissed, by reason of her non-compliance with several disclosure orders. However, this order was expressly made without prejudice to her right to bring an application for increased spousal support in the future.

[17] The Wife never did obtain any gainful employment since the divorce order was granted. After her daughter’s death, a friend got her a part-time job at a funeral parlour. However, after a couple of weekends, the boss wanted her to do vacuuming as well. She couldn’t handle that, and had to quit. She testified that she is unable to do any repetitive movements. Her most recent attempt at employment was at least 6 years ago, at a dollar store called A Buck Or Two. She lasted two days. On the third, she couldn’t get out of bed due to her fibromyalgia.

[18] Much time was spent in cross-examination on the details of her dog breeding activities. In 2001 she decided to breed her West Highland White Terrier, which she owned as a pet. From then until 2012 she bred the original female dog, as well as three subsequent generations. She maintained that it was a hobby, not a business, and that it was never profitable. She did not operate a kennel, because you cannot do so in the city, and just raised them in her home. She never claimed her income or expenses from this activity on her income tax returns.

[19] She had been ordered to produce her business records from dog breeding, but testified that she had none to produce. She did obtain records from the Canadian Kennel Club showing details of the pups she raised over the years. According to the summary at Tab J of Ex. 1, it shows that she raised a total of 40 pups from 2001 to 2006. Of those, a couple died, one had to be put down, one was stolen and some were kept for her family. Her evidence was not clear as to precisely how many pups she sold. Sale prices began at $800 for each pup, then went up to $1,500 and then $1,800 and later went down to $1,200.

[20] From 2006 to 2012 she raised 13 pups and testified that she sold 9. From the notations she made on the records, it appears she sold 7 of them for $1,800 each and 1 for $1,500. The price of the ninth dog is not recorded.

[21] The various prices she charged average out to $1,325. If we assume that she sold 35 pups from 2001 to 2006 at that average price, that would generate gross revenue of $46,375. If we assume that the ninth pup she sold from 2006 to 2012 was also sold for $1,800 like 7 of the others, those 9 pups would generate gross revenue of $15,900, bringing her total revenue to from 2001 to 2012 to $62,275. However, she testified that she would have incurred considerable expenses raising those pups, including vet fees, shots and medicine, breeding fees, food and so on. She testified that she had to sell at least 3 pups per year just to break even.

[22] Gross revenue of $62, 275 earned over the course of 11 years amounts to only $5,661 per year. After deducting her expenses, whatever they were, I am satisfied that the amount remaining would not be significant, and would not have any substantial impact on her ability or lack thereof to become self-supporting. I agree with her characterization that this was a hobby, not a business.

[23] In any event, she stopped raising pups in 2012, both because it wasn’t worth it financially, and because she could not handle the responsibility of raising the puppies and finding them a home where the owners will love them as much as she does.

[24] She purchased a house on Aldersbrook Rd. in 2004. It had been vacant for 4 years before she purchased it, and had a number of defects as a result, such as mold and rodent damage. These defects have never been repaired. The purchase price was $171,000, and she took out a mortgage for $128,250, and got the rest of the money required to close from a small inheritance from her mother’s estate and loans from friends. She testified that she later paid some of her accident settlement toward the mortgage, and that she refinanced the mortgage at $70,000. She has since had to refinance again to pay her bills, and currently owes just under $100,000.

[25] According to the letter of opinion filed as Ex. 4, comparable homes in the same neighbourhood have sold for $220,000 to $230,000, but the residence is in a serious state of disrepair. The estimated cost of repairs and updates is $70,000 to $80,000, so that a buyer might be prepared to pay a price of $140,000 to $150,000 for the property, which is less than the Wife paid for it.

[26] Ms. Beasley (for the Husband) wrote a letter to the court following the conclusion of the trial, on consent of Mr. Dean (for the Wife), suggesting that a math error had been made and that, based on her recollection that the letter of opinion said comparable homes in the area are worth $320,000 to $330,000, the letter intended to put a final value of $240,000 to $250,000 on the residence. She is mistaken as to her recollection. The letter of opinion said comparable homes in the neighbourhood have sold for $220,000 to $230,000.

[27] Ms. Beasley suggests that the figure of $140,000 to $150,000 is at odds with a certified appraisal dated February 7, 2011, found at page 17 of Tab M of Ex. 1, which says the residence was worth $263,000. That document is not an appraisal but is instead confirmation of insurance coverage. It shows that the building is insured for $263,000 on a “Replacement Cost Basis”. Replacement cost is significantly different than fair market value, and would not factor in the cost of repairing the many defects that the residence has and the updates it requires. I am not persuaded that there is a discrepancy.

[28] At present, the Wife has substantial liabilities in addition to her mortgage. She has a line of credit in the amount of $14,130, a Mastercard line of credit in the amount of $7,609, a BMO Mastercard in the amount of $12,693, a Walmart Mastercard in the amount of $8,266, an American Express card in the amount of $7,058 and loans from friends in the amount of $30,000. She has taken initial steps toward filing for bankruptcy.

[29] Her only source of income is spousal support and her HST credit. While she could apply for CPP, it would be a reduced amount if she does so before age 65. She testified that it would only generate $120 per month if she were to apply now.

[30] Her health problems are detailed in a letter from Dr. Jennifer Meer dated December 5, 2008. She states that the Wife suffers from the following medical problems:

1. Fibromyalgia;

2. Chronic fatigue syndrome;

3. Hypothyroidism;

4. Migraine headaches;

5. GERD;

6. Necrobiois lipidoica diabeticorum;

7. Chronic low back pain and left leg pain;

8. Borderline osteopenia lumbar spine.

[31] The Husband, on cross-examination, said he did not take issue with this list of ailments.

[32] The Wife filed no other medical records to enlarge on her various ailments. She had been ordered by Vogelsang J. on June 20, 2011 to provide “copies of all medical reports” prepared on her behalf in the negligence lawsuit, and “full disclosure of the Respondent’s health records”. When asked in cross-examination why she had not done so, she said she gave everything she had to her lawyer.

[33] She did, however, provide oral evidence as to her medical condition. GERD, she explained, is a form of gastro enteritis, where she has problems with certain foods. Necrobiois lipidoica diabeticorum is related to diabetes, and results in open lesions on her legs. Borderline osteopenia is borderline osteoporosis in her lumbar spine, which she described as weakened bones. Hypothyroidism causes her to gain weight.

[34] In addition to the ailments listed in Dr. Meer’s report, she testified that she suffers from Lyme disease. She said that in 1995 or 1996 she woke up with bites on her leg. The bite marks became bulls-eye rings, and she developed Bell’s palsy. She did not recognize at the time that these were symptoms of Lyme disease, but only found out 2 or 3 years ago that she had it, and continues to suffer from it. She said the doctor who diagnosed it, Dr. Banner, put her on medication for her Lyme disease symptoms and her fibromyalgia which made her “feel great”, but it cost $1,600 per month, and she had to discontinue it after a couple of months because she could not afford it.

[35] She was asked if she is able to work now, and her response was “not really”. She said it would have to be the absolute perfect job, and she doesn’t know what that job is. Two days at A Buck Or Two “wiped her out”. She took an 8 week course at the hospital, and was taught to work for 15 minutes, then rest for an hour, and to spend her day like that. It is difficult to imagine a job that would accommodate such a schedule.

[36] Given the dearth of medical evidence filed by the Wife, it would be open to me to draw an adverse inference against her. However, the simple fact is that I believe her evidence as to her many health problems. As already noted, she clearly had health problems at the time of the divorce that, as found by the trial judge, limited her ability to work. The Husband does not take issue with the list of ailments set out in Dr. Meer’s report. Chronic fatigue syndrome is, as the name implies, a chronic condition, as is fibromyalgia. There is no reason to believe her health has improved since that report was prepared in 2008. If anything, I am satisfied that it has gotten worse.

[37] She was clearly in pain at times as she gave evidence, as indeed she said she was. She presented in the witness stand as being a thoroughly broken woman.

[38] I find as a fact that the Wife has extensive health problems that have kept her out of the workforce since the divorce, which continue to render her incapable of any meaningful employment. At 62 years of age, given her poor state of health, there is no realistic prospect of her ever entering the workforce.

The Husband’s Motion to Change:

[39] A motion to change a spousal support order granted under the Divorce Act is governed by s. 17, the relevant provisions of which are as follows:

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses;

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

(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.

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

(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.

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

(11) Where a court makes a variation order in respect of a support order or a custody order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.

[40] The essence of the Husband’s argument is that the Wife has a duty to become self-sufficient. Since she has had more than enough time to do so, spousal support should terminate. He argues that at the time of the motor vehicle accident in December, 2001, she was well on the road to becoming self-supporting. The Spousal Support Advisory Guidelines (“SSAGs”) suggest a maximum duration for spousal support of 13.5 years from the date of separation, which has long since expired.

[41] The suggestion that the Wife has a “duty to become self-supporting” was clearly rejected by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, where the husband in that case made essentially the same argument. Abella and Rothstein JJ., speaking for the majority, said the following, at paras. 57 to 60:

The husband argued that the wife had a duty to seek employment based on the factors in s. 15.2(6) of the Divorce Act which were included in the agreement incorporated in the order. In particular, he relied on the objective that "insofar as practical" there should be "economic self-sufficiency of Plaintiff and Defendant". Her failure to seek employment, he therefore argued, was a material change of circumstances.

We do not accept the husband's submissions. There is nothing in the order suggesting that the wife was expected to seek employment. The order recognized that the wife was in receipt of disability payments. It provided for spousal support and included no term or provision for review. Its terms indicate that spousal support was intended to be for an indeterminate period. The order expressly acknowledged that the objectives of s. 15.2(6) of the Divorce Act were taken into consideration by the parties.

Neither does the Divorce Act impose a duty upon ex-spouses to become self-sufficient. As this Court affirmed in Leskun, the "[f]ailure to achieve self-sufficiency is not breach of 'a duty' and is simply one factor amongst others to be taken into account" (para. 27). Section 15.2(6)(d) of the Divorce Act simply states that the order should "in so far as practicable, promote the economic self-sufficiency" of the parties.

In sum, upon examination of the actual circumstances of the parties at the time the order was made, and the terms of the order, it is apparent that there has been no material change of circumstances since the making of the order. It cannot be said that the wife's failure to seek employment is something that, "if known at the time, would likely have resulted in different terms" to the order (Willick, at p. 688). Simply put, at the time of the order, the wife had multiple sclerosis and was not expected to seek employment outside the home; nothing has changed with respect to her medical condition since that time. As a result, the husband's application for variation cannot succeed as he has failed to meet the threshold required by s. 17(4.1).

[42] As the majority made clear at para. 56, it is not the task of this court to conduct a de novo assessment of the ability of the Wife to work, as if this were an original application for support under s. 15.2. Instead, the central question is whether there has been a material change in circumstances. In the Husband’s motion to change, the onus of proving a material change in circumstances rests upon him.

[43] The Wife’s health problems existed both during the marriage and at the time of the divorce. The trial judge made express mention of those health problems at pg. 6 her reasons, as noted above.

[44] The Wife’s health problems, therefore, were precisely the reason why the spousal support order was made to be indefinite, rather than one that would expire after a defined period. Since her ability to become self-sufficient was compromised by her health problems, one could not predict that she would become self-sufficient after a defined period of time, and it therefore makes sense that the order was expressly not time-limited.

[45] As in L.M.P. v. L.S., there was nothing in the trial judge’s reasons stating that the Wife was expected to seek employment. The trial judge merely expressed the hope that “with any luck” she might “be able to get some kind of work” and make “some contribution” to her own support. This is a far cry from requiring the Wife to get a job and become self-supporting.

[46] At the time of the divorce, the Wife’s health problems resulted in her inability to become self-sufficient, which gave rise to her need for indefinite spousal support. At the present time, she continues to have health problems that make her unable to become self-sufficient, and continues to be totally dependent upon spousal support. The Husband has failed to prove a material change in circumstances.

[47] I do not accept the argument that the Wife was on the road to self-sufficiency when she had the car accident of December, 2001. She was, at that time, only managing to take two visual arts courses at UWO, which is well below a full course load. While she was about to apply for a part-time job at a library, she was not, in fact, working at the time and had not worked since before the parties were married. One can only speculate as to how she would have fared had she actually landed the job. While her “hope” was to move on to full-time attendance at university, go to teacher’s college and become a teacher, I am not persuaded that this was a realistic plan, given her long-standing health issues and given the fact that she would be graduating as a new teacher at age 51. I accept her evidence that the accident caused an aggravation of the fibromyalgia that she had been suffering from since well before the separation. While the car accident may have contributed to her present condition, it did not cause it.

[48] I recognize that the Husband has paid faithfully for almost 18 years, and wishes to pay down his debts and prepare for retirement. It is true that he has paid spousal support for longer than the entire duration of the marriage. In most cases, this would be seen to be a sufficient period of time for the dependent spouse to become independent. The reason the Wife cannot do so is primarily due to her ill health.

[49] McLachlin J., as she then was, posed a question in the first line of her reasons in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 that is also posed by the case now before the court:

What duty does a healthy spouse owe a sick one when the marriage collapses?

[50] McLachlin J. framed the issue to be decided in the following terms, at para. 13:

Is a sick or disabled spouse entitled to spousal support when a marriage ends, and if so, when and how much? More precisely, may a spouse have an obligation to support a former spouse over and above what is required to compensate the spouse for loss incurred as a result of the marriage and its breakdown (or to fulfill contractual support agreements)? I would answer this question in the affirmative.

[51] The Husband submits that the Wife would be self-supporting but for the 2001 car accident. Thus, he argues, it is not the marriage that gives rise to her present need for support but rather the accident. This submission resurrects the “causal connection” approach that was soundly rejected by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813. McLachlin J. addresses this at para. 46 of Bracklow:

Following Moge's broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support, courts have shown increasing willingness to order support for ill and disabled spouses. Sometimes they have done this as a "transition" to self-sufficiency: Parish v. Parish (1993), 1993 CanLII 16075 (ON SC), 46 R.F.L. (3d) 117 (Ont. Ct. (Gen. Div.)). But more often, they have frankly stated that the obligation flows from the marriage relationship itself. Collecting cases, Rogerson explains in "Spousal Support After Moge", supra, at p. 378 (footnotes omitted):

The [more dominant] approach, ... particularly in cases of earning capacity permanently limited by age, illness or disability, and the one generally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the source of the post-divorce need. On this approach, which I earlier referred to as the "basic social obligation" approach, causal connection arguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation. The message coming from the cases adopting this approach appears to be that one takes one's spouse as one finds him or her, subject to all his or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basic obligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage. One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse's financial circumstances. [Emphasis added in the original.]

[52] She continues at para. 48:

To permit the award of support to a spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act. It also may well accord, in my belief, with society's sense of what is just. The Report of the Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (1981), at pp. 111-12, a thoughtful analysis of the rationale and policy considerations of spousal support and illness, states:

Financial provision on divorce is not . . . simply a matter of abstract principle. It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept a system which cut off, say, an elderly or disabled spouse with no more than a three-year allowance after divorce, no matter how wealthy the other party might be.

Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.

[53] The obligation of the Husband to support the Wife continues, without regard to whether the source of the post-divorce need is, in whole or in part, the car accident. To paraphrase Professor Rogerson, he takes her as he finds her, subject to her weaknesses and limitations with regard to income-earning capacity. The unfortunate reality is that she is 62 years of age, suffering from a multiplicity of ailments, having been out of the workforce for many decades and having no realistic prospect of ever obtaining gainful employment.

[54] The Husband’s assertion that he has paid long enough, and certainly longer than the SSAGs suggest he should, implicitly asks the court to impose a cut-off date, notwithstanding demonstrable continuing need. In effect, he is asking why should he be fixed with a lifelong obligation to pay support for a marriage that lasted only 13 years? When can he finally move on with his life?

[55] Those same questions were posed by Mr. Bracklow. The response by McLachlin J. is found at para. 57:

Again the answer is that under the statutes, the desirability of freedom to move on to new relationships is merely one of several objectives that might guide the judge. Since all the objectives must be balanced, it often will not be possible to satisfy one absolutely. The respondent in effect seeks a judicially created "statute of limitations" on marriage. The Court has no power to impose such a limitation, nor should it. It would inject a rigidity into the system that Parliament and the legislatures have rejected. Marriage, while it may not prove to be "till death do us part", is a serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates.

[56] To discontinue spousal support would be to abandon the Wife to destitution. While the Husband has indeed paid faithfully for many years, fairness, and the obligations inherent in the marriage relationship, dictate that he must continue to do so.

[57] The Husband having failed to meet the threshold in s. 17(4.1) of proving a material change in circumstances justifying the termination of spousal support, his motion to change is dismissed.

The Wife’s Motion to Change:

[58] I will now deal with the Wife’s application to vary spousal support upward. I should note as a matter of housekeeping that her motion to change, in addition to asking for an increase in spousal support, also made a claim for arrears of child support in the amount of $16,000. She claimed in her testimony that the order of Taylor J. September 20, 2006, which retroactively terminated child support for Katherine as of June 30, 2005, and for Amanda as of August 31, 2005, was wrong in the manner it was backdated. I indicated to her that the order was never appealed and it was not open to me to revisit it. The issue was not pursued further, and her application was confined to her request for an increase in spousal support.

[59] However, the fact that child support was terminated can constitute a material change in circumstances. One can infer that a significant portion of the $1,021 per month that she received as child support would have contributed to housing and other fixed costs of the household. Loss of that income stream meant that she had to pay all of her bills out of her monthly spousal support of $1,500 per month.

[60] In addition, I can take judicial notice of the fact that the cost of living has increased substantially since the order was made in 2001. Inflation constitutes a material change in circumstances justifying a variation of a spousal support award: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518. I note, however, that no evidence has been adduced by the Wife as to the precise rate of inflation that has occurred since 2001.

[61] There has also been a change in circumstances regarding the ability of the Husband to pay. His income at the time the order was made, as specifically referred to in the child support order, was $79,041 per year. He was working at CAMI Automotive at the time and has continued to do so. He has received regular increases in his salary over the years. His income for the past four years is as follows:

2011: $121,448;

2012: $101,878;

2013: $130,040;

2014: $136,544 (year-to-date to December 13, 2014).

[62] His income in 2012 was lower than normal because he lost time from work due to illness. He had a brain tumour removed, lost 40% vision in one eye and was left with Addison’s disease. To his credit, he went back to work full-time following his recovery.

[63] A raise in salary from $79,041 in 2001 to current income of $136,544 represents a 73% increase. Without doubt, that represents a material change in circumstances regarding the Husband’s ability to pay.

[64] He married his wife Sylvia in 2001, the same year as the divorce. She works as a financial advisor for a bank, and her income is approximately $92,000 per year. However, he testified that she has voluntarily downgraded to a lower paying job due to stress, and her salary will be reduced by $20,000 per year.

[65] They own a house that is now worth about $380,000, with a mortgage of about $260,000, which they contribute to equally. From reviewing his Financial Statement sworn January 6, 2015, it appears that this debt is partly a mortgage and partly a home equity line of credit. His Financial Statement also shows an outstanding credit card debt of $2,997, and RRSPs in the amount of $35,001.

[66] He is eligible to retire having met the rule of 85, but he cannot afford to do so. His wish is to pay down his debts and eventually retire.

[67] The Husband’s Financial Statement shows his monthly income at $11,337 and his monthly expenses, including $1,500 in spousal support, at $10,199. He therefore has the means to pay more spousal support than he is currently paying.

[68] I have already reviewed the Wife’s financial situation. She has no assets other than her house and contents and her 2007 Kia motor vehicle. She has substantial debts as listed above.

[69] Her sole source of income is spousal support of $1,500 per month, plus her HST credit, which is not specified, but which can be calculated by Divorcemate. She claims monthly expenses of $5,706, but they can be discounted in several respects. She claims $1,500 per month in expenses for herbal medicine for her Lyme disease that she is not, in fact, incurring. She has a telephone expense of $200 per month as well as a cell phone expense of $100 per month. Given that she needs to economize, there is no reason why she could not get along with her cell phone alone. Even with those discounts, however, she still shows need of around $4,000 per month.

[70] I find as a fact that a material change of circumstances has occurred since the 2001 order, in that the Husband’s salary has increased by 73% while the Wife’s ability to pay expenses from the support she receives has been eroded by inflation to some degree. The increase in the Husband’s salary is a change in his “means”, while the effect of inflation on the Wife’s ability to pay her monthly expenses is a change in her “needs”, thereby meeting the threshold for a variation in s. 17(4.1). In order to take those changes into consideration, an increase in spousal support is warranted.

[71] In Gray v. Gray, 2014 ONCA 659, the Ontario Court of Appeal made it clear that the SSAGs are a useful tool in assessing the quantum and duration of spousal support, not only in initial applications for support but on variation applications as well, and “should be routinely consulted”.

[72] Ms. Beasley has provided me with a Divorcemate printout based on the Husband having income of $136,000 per year, and the Wife having no income (other than benefits and credits which the program calculates), based on a 13 year marriage. It indicates that the SSAGs suggest a range of monthly spousal support from a low of $2,210 to a high of $2,947, with a mid-point of $2,578.

[73] In making a variation order, the court should have regard to the objectives of an order varying spousal support, as set out in s. 17(7). The Husband argues that any entitlement to support that the Wife may have is needs-based as opposed to compensatory. He submits that any compensatory objective would have been satisfied with the passage of time. However, the Wife did quit university when she became pregnant and became a full-time homemaker, and thereby abandoned her aspirations for a teaching career. Remaining out of the workforce and at home, raising the family for 13 years, sowed the seeds of vulnerability, which had a progressively greater impact upon her as her health deteriorated. To illustrate, one might be able to continue with an ongoing, well-established career despite the onset of health problems, whereas those same health problems could make training for and establishing a new career impossible.

[74] In my view, the economic disadvantage flowing to the Wife from the role she played in the marriage continues to operate hand in hand with her health problems to render her in need of indefinite support, and should be recognized in the variation order that the court makes, as contemplated by s. 17(7)(a) and (b). At the same time, the role played by the Husband allowed him to firmly establish himself at CAMI, where his income has risen steadily on an annual basis. The fact that an increase in spousal support allows the Wife to share somewhat in that raise in salary recognizes the economic advantage that flowed to the Husband arising from the marriage. It also serves to relieve the Wife to some extent from the economic hardship arising from the breakdown of the marriage, which deprived her of the opportunity to share in that ever-increasing income stream, as contemplated by s. 17(c).

[75] While s. 17(d) suggests that a spousal support order should promote the economic self-sufficiency of each former spouse within a reasonable period of time, that objective is qualified by the words “in so far as practicable”. In this case, that is not an achievable objective.

[76] Although there continues to be a compensatory element to the Wife’s entitlement to support, I do agree that her primary entitlement is based on need, arising from her many health problems. The fact that it is the Wife’s ill health that necessitates extending the duration of spousal support beyond the time frame suggested by the SSAGs is a factor that should keep support toward the low end of the range: see Gray, at paras. 50 to 52.

[77] The Wife has requested an additional award of $600 per month, which would bring monthly support to $2,100. That figure is slightly below the low end of the suggested range, and well below her stated monthly expenses. It is also less than the surplus in the Husband’s monthly income over his expenses as disclosed by his Financial Statement, so such an increase is within his means. I find this request reasonable, and I will accede to it.

[78] As to the commencement date, Mr. Dean quite frankly acknowledges that there has been considerable delay on the Wife’s part in moving this application forward since it was initially commenced in January of 2011. He suggests backdating the commencement date by 2 years only, to February 1, 2013. This point was not addressed in Ms. Beasley’s submissions.

[79] To take four years to bring to trial a simple proceeding like a motion to change spousal support is grossly excessive. The Husband should not be burdened with a large amount of arrears due to that delay. At the same time, the Wife’s position has prevailed, recognizing that the order should have been higher than it was all along, which justifies some backdating. In my view, a fair balance can be achieved by backdating the commencement date by 18 months, to September 1, 2013. An order will go varying the spousal support order of Gillese J. dated May 4, 2001 by increasing the amount to $2,100 per month commencing September 1, 2013.

[80] Despite all I have said above, the Wife should shortly begin taking steps to plan for the Husband’s eventual retirement, as he is entitled to do at a reasonable point in time. His retirement will obviously reduce his ability to pay spousal support. This may well require the Wife to modify her living circumstances so as to be able to get by on much less income than she will now be receiving. In this regard, it is wise that she is planning to wait until age 65 to receive her CPP rather than take a reduced amount now. She will have a greater need for it once the Husband retires.

[81] If the parties cannot resolve the issue of costs, I will accept brief written submissions from the Wife within 15 days, with the Husband’s brief response within 10 days thereafter and any reply within 5 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.

“T. A. Heeney R.S.J.”

T. A. Heeney R.S.J.

Released: March 19, 2015

COURT FILE NO.: 1024/1997

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

JOHN HANS SCHALDACH

Applicant

– and –

JOANNE MICHAEL (KEARNS) SCHALDACH

Respondent

REASONS FOR JUDGMENT

T. A. Heeney R.S.J.

Released: March 19, 2015