CITATION: Olson v. Anderson, 2015 ONSC 2228
COURT FILE NO.: FS-08-15577-0001
DATE: 20150511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID CHARLES OLSON
Applicant
– and –
MARY KATHLEEN ANDERSON
Respondent
Jonathan Kline, for the Applicant
Allan M. Goldstein, for the Respondent
HEARD: March 2,3,4 and 5, 2015
McWatt J.
AMENDED REASONS FOR JUDGMENT RE: RESPONDENT’S MOTION TO CHANGE SPOUSAL SUPPORT PAYMENTS
INTRODUCTION
[1] David Olson and Mary Anderson were together for 26 years. They never married, but had a son who is now 23 years old and financially independent. Mr. Anderson has not worked since 1991. He stayed home with his son while Ms. Anderson pursued an education and became a Chartered Professional Accountant.
[2] The parties separated on April 8, 2008. Their son lived with Ms. Anderson after the separation. The couple executed a separation agreement on May 13, 2009 which was incorporated into a Final Order on October 27, 2009.
[3] Ms. Anderson now brings this Motion to Change the Final Order. Her Notice of Motion asks for:
(a) An order terminating spousal support payable by the respondent to the applicant, retroactive to January 1, 2010;
(b) An order that the applicant reimburse her for all payments of spousal support, retroactive to January 2, 2010;
(c) Costs on a substantial indemnity basis.
[4] By the end of the evidence called on the motion, the respondent modified her request to change the final order by asking, instead, for either a step down in payments of spousal support and eventual termination of them or a reduction in spousal support. The respondent also asks that I impute $35,000 to $45,000 of income to the applicant based on expert testimony offered by Wendy Fitzpatrick, a disability specialist and vocational evaluator.
[5] The terms of the Final Order are set out as follows:
Spousal Support:
Commencing May 1st, 2009 and on the first day of each month thereafter, the Respondent shall pay the Applicant the sum of $1,790.00 per month for spousal support, which will be tax deductible to the Respondent and included in the Applicant’s income for taxation purposes.
The Respondent’s spousal support obligations may be varied downwards but not upwards in the event of a material change in circumstances, which may include (but is not limited to):
(a) When the Applicant’s income, excluding spousal support, is more than $30,000 per annum;
(b) The Respondent’s retirement;
(c) Any material change in the Respondent’s income;
(d) The Applicant’s marriage or cohabitation with another person in a relationship resembling marriage for more than three months.
The Applicant shall make reasonable efforts to find employment and will provide the Respondent with written proof of his efforts periodically, as requested by the Respondent (but not to be more than twice yearly).
If the Applicant’s income excluding spousal support is more than $30,000 per annum, he shall immediately notify the Respondent in writing. The Applicant will provide the Respondent with all relevant income information, including his employment contracts, pay slips, T4 slips, income tax returns and notices of assessment.
GROUNDS FOR THE CHANGE
[6] Ms. Anderson relies on the following grounds to support the alleged change:
(1) That Mr. Olson has not made reasonable efforts to find employment and is, in fact, choosing not to work when there are jobs available to him;
(2) The applicant has never shown a propensity to support himself, even during the parties’ cohabitation despite the respondent’s encouragement;
(3) The applicant is overly selective regarding the types of jobs he will apply for because he views many of these jobs as beneath him;
(4) The applicant has no reason for not making reasonable efforts to find employment and is capable of working. He has no psychological illnesses restricting his ability to work or look for work and he has filed no medical reports for the trial, despite having ample opportunity to do so;
(5) The applicant is capable of earning well in excess of $30,000 annually and would not need spousal support if he had gained employment in the past 6 years;
(6) An order terminating spousal support must be made in order to encourage the applicant to make reasonable efforts to become self-sufficient.
THE FACTS
[7] The parties have agreed to the following facts:
That the Applicant, David Charles Olson, was born on December 27, 1957 and is 56 years old.
That the Respondent, Mary Kathleen Anderson, was born on August 9, 1957 and is 57 years old;
That the parties started living together in or around September 1982;
That the parties were never married.
That the parties share one child, namely Maxfield David Olson (born February 5, 1992).
That the parties separated on April 8, 2008. Maxfield continued to live with the Respondent post-separation.
That, according to paragraph 7.4 of the separation agreement, the Applicant knows that he must contribute to his own support.
That, according to paragraph 7.4 of the separation agreement and paragraph 11 of the court order, the Applicant is to make reasonable efforts to find employment.
That since the making of the separation agreement, the Applicant was aware that he was required to make reasonable efforts to find employment.
That the Applicant has provided the Respondent with some written proof of his efforts to find employment since the date of the court order.
That the Applicant has provided the Respondent with his yearly tax returns as required by paragraph 12 to the court order.
That income of $25,000 per year was imputed to the Applicant in the separation agreement.
That, according to paragraph 6.1 of the agreement and paragraph 5 of the court order, at no time would the Applicant’s income for child support be deemed to be less than $25,000 per years.
That the Applicant is very proficient at playing guitar.
That the Applicant is very proficient at playing ukulele.
That the Applicant has experience teaching guitar.
That the Applicant has experience teaching ukulele.
That, at the oral examinations, the Applicant refused to provide an undertaking to provide Dr. Salter’s records from May 1, 2009 to date. And, he has not provided the records.
That, at the oral examinations, the Applicant refused to provide an undertaking to provide his psychologist’s records for the entire time he saw his psychologist. And, he has not provided those records.
That, at the oral examinations, the Applicant refused to provide an undertaking to provide to the Respondent his GP’s records from January 1, 2006 to date. And, he has not provided his General Practitioner’s records.
That, at the oral examinations, the Applicant refused to provide an undertaking to provide the names and telephone numbers of the Respondent’s guitar and ukulele students. And, he has not provided them.
[8] I also find the following facts, which are relevant to this motion.
The Parties’ Work History and Present Financial Status
[9] Before and after the couple met, Mr. Olson worked as a day care provider. He was routinely laid off in the summers and returned to work in September each year. For no given reason, one year, Mr. Olson did not return to the job. Ms. Anderson has always worked. In fact, she hired the applicant from 1982 to 1986 at one of her jobs managing a book store. He left the job to take on other employment, but quit that job after having an argument with the store manager. He had low-paying part and full-time jobs for the first 9 years of the couple’s relationship from 1982 to 1991. Eleven months before the birth of their son, in 1992, the respondent left the work force and has not been back to work in any significant way since. Mr. Olson does some paying work teaching guitar and ukulele lessons. He stuffs envelopes at Christmas for an accountant and does mailings for an independent record company. In some years, he has earned some money playing “gigs” with musical groups.
[10] As a result of the Separation Agreement, the applicant lives on $1790 per month, with tax of about $240 deducted, leaving $1550 per month or $18,600 net income per year. From that, he has paid monthly child support of $211, based on an imputed income of $25,000 a year. As well, he has paid 35% of his son’s extraordinary expenses. Those expenses included post-secondary school fees.
[11] The couple owned a home at the date of separation and, as a result of the Separation Agreement, he received 25% of the equity in the home with a 75% share going to Ms. Anderson.
[12] After the separation, Mr. Olson lived with his mother for a few years, sleeping on a floor in her residence. He then purchased a basement apartment in a co-ownership building, when his mother died, with money he inherited from her estate.
[13] Since the separation, Mr. Olson has not had access to medical benefits from the respondent’s work health plan and foregoes dental and eye appointments because of the cost. He spends less on nearly every item in his expenses budget than he did during the relationship, including, most notably, clothing and food.
[14] Ms. Anderson was working at a trust company when she met Mr. Olson. She then took on a part-time position at a book store from 1982 to 1986. She left that job to take on a managerial position at a company called Interactive Entertainment. She took further full-time work and a bookkeeping course in the late 80’s. She then went to school to become an accountant.
[15] The respondent took courses before and after her son was born, working on weekends to complete her studies. When Max was 11 months old, she acquired full time employment as an accountant at Sun Life. Through the years, she was unemployed for only a short period while the company she worked for reorganized. She now has stable unionized employment with the Federal Government of Canada and earns approximately $105.000 per year. Ms. Anderson also teaches at Seneca College and earns an additional $2,000 each year form that job.
[16] She has a pension carried over from Sun Life and an undisclosed pension from the Federal Government.
[17] The respondent also owns, in addition to her own mortgage free condominium unit, a rental apartment for which she pays a mortgage of $1,030 per month.
[18] She has not disclosed the rent paid to her for the unit. She also maintains that the unit requires maintenance and repairs of $20,000 next year for a new stove and fridge.
The Parties’ Relationship
[19] From the beginning of the relationship, Ms. Olson appeared to be more the “bread winner”. She maintains that she encouraged the applicant to get jobs, but that he would never follow through. The applicant did not deny this fact.
[20] When Max was born, he suffered from cerebral palsy. The couple spent many hours caring for him while they were still both at home. Once Ms. Anderson returned to work, it was Mr. Olson who took care of his day to day needs, including his feeding, changing, the household duties, doctor’s appointments, taking him to and from school and volunteering in the school. Ms. Anderson’s claims that she did the majority of the child rearing. I do not accept that she could have, in light of the fact that she was working full-time and studying for part of the child’s early years. She could not have taken on the day to day care that Mr. Olson was home to do. I accept that she did a lot around the house as well, but she cannot convince me that Mr. Olson did not take on the role of Max’s main support during the day.
[21] Mr. Olson appears to have been completely surprised that his not working throughout the relationship was at the core of the respondent and Max’s demand that he leave the home in April, 2008. He maintains that Ms. Anderson never expressed her frustration to him about his staying at home. I accept that to be true. There was a simmering resentment on her part because the couple struggled financially on her income alone. And Ms. Anderson only ever confronted the issue directly with the applicant’s mother prior to the separation.
[22] Ms. Anderson conveyed some of her frustration over the parties’ financial situation in 2003 to Mr. Olson’s mother in an email. It was not until after the parties had separated, however, that Mr. Olson found the email at his mother’s home and reached out to his wife to give him another change to “make things right”. He promised to get a job if she would take him back. The respondent refused.
[23] Both parties’ evidence confirmed the fact that they communicated very poorly during the relationship.
[24] There is no doubt that Ms. Anderson wanted Mr. Olson to work, but she also tacitly approved his way of life during Max’s childhood and until the boy was in his teens. She then got frustrated enough to ask the applicant to leave.
Mr. Olson’s Mental Health
[25] Mr. Olson testified that he has suffered from mental health issues since he was a child. At the age of 9 years, he was diagnosed as having anorexia. When he was 12 years old, his father was diagnosed with kidney disease and for the next 6 years was on the verge of death until he passed away. That affected the applicant profoundly and he began seeing a psychiatrist at the age of 16 for 6 months. He was prescribed lithium by the doctor, but the drug seemed to have no effect. He saw a psychiatrist again in the 1980’s while working at the book store with his wife and up to 1991. He was prescribed Prozac by that doctor, which he was on when Max was conceived.. In 1998, he began having bowel issues where he often had an urge to defecate. That lasted until he was prescribed medication for depression, which he has been taking for the past 7 years.
[26] Ms. Anderson knew about all of Mr. Olson’s mental health issues. He discussed them with her throughout their relationship.
[27] Mr. Olson has been treated by a psychiatrist since September, 2007. He has met with her weekly since then and continues to do so. Since the separation, he has taken Effexor, daily, and Lorazapam, when required, to deal with his anxiety.
[28] Since April 8, 2008, when Ms. Anderson and the parties’ then, 16 year old son demanded that Mr. Olson leave the home, the applicant has had no relationship with his son. Max has refused to communicate with his father in any meaningful way.
[29] Ms. Anderson made an unwise decision to take her teen-aged son and one of his friends to court with her on a Case Conference during the court proceedings leading up to the signing of the Separation Agreement in May, 2009. As a result of whatever Max and his friend learned at the conference, his friend sent an excoriating email to the applicant filled with profanities and insults. When Ms. Anderson was questioned about the email, which she knew about, her response was telling. She did not seem to disagree with its contents or see the inappropriateness of her son or his friend being involved in the litigation or treating the applicant in the disparaging manner with which he was treated in the email.
[30] It was this kind of treatment, along with his mother’s death around the time of the parties’ separation, as well as the separation itself and the resulting loss of his relationship with his son, which Mr. Olson claims left him in a state of mental anguish and prevented him from being able to search for employment beyond what he has done. There is no medical evidence to support this claim.
[31] Nonetheless, Mr. Olson maintains that he has been capable of working in some capacity on a full or part-time basis, since the separation, and that he has had the ability to look for work since the respondent brought her motion to change.
Mr. Olson’s Search for Employment
[32] Within two weeks of leaving his home, the applicant started going to job centres where he attended seminars, revised his resumé and completed different courses that were offered to help him find employment. He has sent out multiple online job search applications. He has had only 3 interviews since 2009.
[33] As part of the terms of the Separation Agreement, Mr. Olson provided a list of job searches every 6 months to the respondent. Some months, he claimed, he could do little to search for work because of his emotional issues. In 2010, Mr. Olson sent out quite a few applications for work via the internet. Nothing came of it. In 2011, his applications numbered anywhere from 1 to 10 or more per month. In August, November and December, he was able to attain a few days’ work at a record store and a personal tax advisor’s office. In 2012, his applications were about the same as before, however, he was able to work a day or two at part-time employers. In 2013, there were only 34 online attempts to find work. Up to April, 2014, before his examination by the respondent’s lawyer, the applicant showed the same pattern as in previous years at searching for employment. He has not done any actual visits to employers to look for work for years as most applications, he testified, had to be done online.
[34] After receiving a list of potential jobs from the respondent’s lawyer at the examination, that he agreed he could do, the applicant seemed to redouble his efforts at online searches for work, but only worked for a few days playing or teaching ukulele. Ms. Anderson sometimes sent leads for jobs to the applicant and he would look into them. However, he refused to take any job she might have offered him because, he testified, he did not trust her.
[35] Mr. Olson admitted that he was both capable of looking for work and working during the period in question. He did not disagree with the opinion evidence offered by the respondent’s vocational evaluator, Wendy Fitzpatrick, that he was currently employable and could do customer service, sales and call centre work. He agrees, however, that he is and was somewhat selective in what he would do. Mr. Olson does not drive or own a vehicle and insists on being in Toronto and close to public transit. He will not take a job which required him to go far from the Toronto transit lines.
[36] Ms. Fitzpatrick suggested that Mr. Olson could presently be making from around $30,000 to $40,000 each year if he had acquired a job after separation. She admitted in cross-examination, however, that she had never met Mr. Olson nor his doctors and did not know the exact circumstances he faced in attempts to secure employment. She also had no evidence to offer regarding the retention rates of persons who had acquired employment, but suffered from mental health issues such as the respondent has claimed to have.
[37] Ms. Fitzpatrick did not consider the age of the applicant on his ability to find work. She did not assess the fact that the applicant had a scant work history and had been out of the job market since 1992. She did agree, however, that Mr. Olson’s work history could make a person, such as he, less attractive to employers. The expert’s evidence excluded job data for artists, which was work the applicant seems most suited for. She did not comment on the state of the economy and the spike in unemployment from 2009 of 7.2% to 10% in 2014 and her report contained no other unemployment data. Finally, in spite of the evidence of both parties that the respondent was unable to keep full-time employment from 1982 to 1992, the expert conjectured that had Mr. Olson acquired employment in 2009, he would have retained that job and received numerous raises.
[38] As a result of these omissions in her opinion, I give Ms. Fitzpatrick’s evidence little weight in these proceedings.
THE SPOUSAL SUPPORT ADVISORY GUIDELINES
[39] The Spousal Support Advisory Guidelines, July 1, 2008 (SSAG) sets out the following, which is applicable to this motion and I quote it here at length because Ms. Anderson’s position at this motion is antithetical to what are accepted principles about how the court treats dependent parties at the dissolution of long term marriages.
7.2 – Merger over Time and Existing Theories of Spousal Support
The idea that underlies the without child support formula and explains sharing income in proportion to the length of the marriage is merger over time. We use this term to capture the idea that as a marriage lengthens, spouses merge their economic and non-economic lives more deeply, with each spouse making countless decisions to mould his or her skills, behaviour and finances around those of the other spouse. Under the without child support formula, the income difference between the spouses represents their differential loss of the marital standard of living. The formulas for both amount and duration reflect the idea that the longer the marriage, the more the lower-income spouse should be protected against such a differential loss.
Under this formula, short marriages without children will generate very modest awards, both in terms of amount and duration. In cases where there are adequate resources, the support could be paid out in a single lump sum. Medium length marriages will generate transitional awards of varying lengths and in varying amounts, increasing with the length of the relationship. Long marriages will generate generous spousal support awards on an indefinite basis that will provide the spouses with something approaching equivalent standards of living after marriage breakdown. The formula generates the same ranges for long marriages in which the couple have never had children as for long marriages in which there have been children who are now grown.
While the label may be unfamiliar, the concept of merger over time, which relates the extent of the spousal support claim to the length of the marriage, underlies much of our current law. Its clearest endorsement can be found in Justice L’Heureux-Dubé’s much-quoted passage from Moge:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the marital standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement… As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.
Merger over time offers an effective way of capturing both the compensatory and non-compensatory spousal support objectives that have been recognized by our law since Moge and Bracklow. Under our current law, both kinds of support claims have come to be analyzed in terms of loss of the marital standard of living. Budgets, and more specifically budgetary deficits, now play a central role in quantifying this drop in standard of living. Under the without child support formula, the spousal income difference serves as a convenient and efficient proxy measure for loss of the marital standard of living, replacing the uncertainty and imprecision of budgets. The length of marriage then determines the extent of the claim to be protected against this loss of the marital standard of living.
Merger over time can have a significant compensatory component. One of the common ways in which spouses merge their economic lives is by dividing marital roles to accommodate the responsibilities of child-rearing. Compensatory claims will loom large in one significant segment of marriages covered by the without child support formula — long marriages in which there were children of the marriage who are now independent
Compensatory claims, in theory, focus on the lower income spouse’s loss of earning capacity, career development, pension benefits etc. as a result of having assumed primary responsibility for child care. However in practice, after Moge, courts began to respond to the difficulties of quantifying such losses with any accuracy, particularly in longer marriages, by developing proxy measures of economic loss that focused on the marital standard of living. When awarding spousal support in cases involving long traditional marriages, courts began to articulate their goal as providing the lower income spouse with a reasonable standard of living as assessed against the marital standard of living. And increasingly the standard for determining spousal support in long marriages has become a rough equivalency of standards of living.
Merger over time also has a significant non-compensatory component. In cases of long traditional marriages where the children are grown, it is now common to see spousal support justified on a dual basis. Non-compensatory support claims based on dependency over a long period of time are commonly relied upon to supplement compensatory claims based on earning-capacity loss. In marriages where the spouses have never had children — the other segment of marriages covered by the without child support formula — spousal support claims are usually non-compensatory in nature, based on need, dependency, and loss of the marital standard of living. Merger over time addresses these non-compensatory claims.
Giving precise content to the concept of non-compensatory or needs-based support has been one of the main challenges in spousal support law since Bracklow. One reading of Bracklow suggests that non-compensatory support is grounded in the economic dependency or, in Justice McLachlin’s words, the "interdependency" of the spouses. It recognizes the difficulties of disentangling lives that have been intertwined in complex ways over lengthy periods of time. On this broad reading of Bracklow, which many courts have accepted, need is not confined to situations of absolute economic necessity, but is a relative concept related to the previous marital standard of living. On this view entitlement to non-compensatory support arises whenever a lower income spouse experiences a significant drop in standard of living after marriage breakdown as a result of loss of access to the other spouse’s income, with amount and duration resolved by an individual judge’s sense of fairness.
Merger over time incorporates this broad view of non-compensatory support and provides some structure for quantifying awards made on this basis. It takes account not just of obvious economic losses occasioned by the marriage, but also of the elements of reliance and expectation that develop in spousal relationships and increase with the length of the relationship.
The without child support formula generates the same ranges for long marriages in which the couple have never had children as for long marriages in which there have been children who are now grown. This result, which flows from the merger over time principle, mirrors what we find in the current law — lengthy marriages involving economic dependency give rise to significant spousal support obligations without regard to the source of the dependency.
Self-Sufficiency
A central topic of every conference and meeting about the Advisory Guidelines has been self-sufficiency. It is not surprising that any attempt to bring greater consistency and predictability to spousal support awards should bring this topic to the forefront. Some have criticized the Advisory Guidelines for generating "entitlements" to support, "entitlements" seen as too generous in amount and duration, eliminating any incentives for recipients to pursue self-sufficiency. Others have criticized the Advisory Guidelines for not producing "answers" or "rules" on the hard issues of self-sufficiency.
The language of the fourth objective in section 15.2(6)(d) of the Divorce Act has been parsed and argued in case after case: "in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time." We were frequently asked, "How do the Spousal Support Advisory Guidelines promote self-sufficiency?"
To understand what the Advisory Guidelines can and can’t do under the rubric of self-sufficiency, it is important to start with the legal framework within which the Guidelines operate.
After Pelech in 1987 and before Moge in 1992, the Canadian law of spousal support gave priority to self-sufficiency as part of a "clean break" approach, as spousal support was only intended to facilitate the transition to independence for the recipient. A recipient could be "deemed" to be self-sufficient, based upon optimistic projections of training or likely employment, even after lengthy traditional marriages. Once the recipient found full-time employment of any kind, spousal support would often be terminated or entitlement would be denied. The Moge decision rejected this approach, emphasizing that self-sufficiency is only one of the four objectives set out in s. 15.2(6) and all four objectives must be considered in determining spousal support. Self-sufficiency is no longer to be "deemed" where a spouse continues to experience economic disadvantage after the end of a marriage. Moge directed Canadian courts to take a more realistic view of self-sufficiency, not to underestimate the effects of post-marital disadvantage nor to overestimate the labour market prospects of separated and divorced spouses. Self-sufficiency requires an individualized decision, based upon evidence specific to this recipient and this payor.
The 1999 Bracklow decision said little new about self-sufficiency, as its focus was upon the non-compensatory basis for support, this in a case where the wife was ill and unable to work.
Self-sufficiency was very much an issue in Leskun, where the husband argued that the wife had breached her legal duty to become self-sufficient, eliciting this response from the Court: "Failure to achieve self-sufficiency is not breach of ‘a duty’ and is simply one factor amongst others to be taken into account." Leskun also affirmed the use of review orders, which have proved useful in encouraging and monitoring self-sufficiency in cases of indefinite spousal support orders.
After Moge, self-sufficiency has not been treated as an absolute standard, requiring the recipient to take any job at the end of a marriage. As the Ontario Court of Appeal said in Allaire v. Allaire, "self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties."
These are very general directions on the subject of self-sufficiency, leaving lawyers, mediators and trial judges to work out specifics in each case. After Moge, the determination of self-sufficiency requires a highly individualized analysis, not amenable to "guidelines". What the Advisory Guidelines can do is to encourage self-sufficiency through various aspects of their design, aspects described below.
Strictly speaking, "self-sufficiency" is a concept primarily of importance in compensatory cases, which can arise under either formula: always under the with child support formula, and in many longer marriages and a few shorter ones under the without child support formula. In these longer marriages under the latter formula, there will be grown up children or one spouse will have subordinated his or her career and employment, leaving one spouse disadvantaged at the end of the marriage. The compensatory exception, described above in Chapter 12, will also raise self-sufficiency issues.
The term "self-sufficiency" has often taken on a broader meaning in practice, with some application to non-compensatory cases too. It can refer to the recipient’s obligation to earn income to his or her present capacity. Or, used even more loosely, it sometimes just means that the payor’s obligation to pay spousal support should be ended and the recipient should be required to live within her or his means.
Entitlement
Entitlement is the first step in the spousal support analysis, before reaching the Advisory Guidelines as to amount and duration. Self-sufficiency is one of the major arguments against entitlement, i.e. the recipient cannot show any "economic disadvantage" or "need" at the end of the marriage. Entitlement issues are discussed at greater length in Chapter 4 above.
"self-sufficiency" as a threshold entitlement issue comes up more often in cases of shorter, childless marriages or in cases where the recipient already has a significant income, whether from employment or investments.
[40] As referred to in the Advisory, the case of Moge v. Moge, [1992] 3 SCR 813, 1992 25 (SCC) upheld the Manitoba Court of Appeal view that there is no absolute obligation for a spouse to become self-sufficient. The Court also found that even in marriages without children, the economic consequences of one parent staying home should be considered compensable. The parties in that case were together for over 20 years.
ANALYSIS
Material change
[41] I believe the applicant’s testimony that he has struggled for a lifetime with mental health problems. Ms. Anderson was aware of her partner’s emotional struggles as well. I accept that he had difficulties finding and keeping employment due to his emotional frailties. He has, however, chosen not to produce medical opinion evidence to support any contention that he cannot work. In any event, doing so would not have assisted him in the face of his admission that he is able to work and look for work. I am left with the conclusion, then, that he should have attained employment in the last 5 years.
[42] The Separation Agreement and Final Order do not define what “reasonable efforts” Mr. Olson had to make to find employment. And, given the fact that Ms. Anderson was well aware of the applicant’s propensity not to work, it was reasonable for her to expect him not to find work.
[43] Ms. Anderson’s assertion that it was incumbent upon Mr. Olson to become self-sufficient does not accord with the law related to long term relationships where one party has stayed at home for the sake of children and in order for the spouse to advance in education and employment. Justice Binnie in Leskun v. Leskun, [2006] 1 R.C.S., at para. 27 responded to such an argument with the principle that “Failure to achieve self-sufficiency is not breach of “a duty” and is simply one factor amongst others to be taken into account” in assessing the validity of a spousal support order. That principle applies to Ms. Anderson’s assertion in this litigation.
[44] In spite of all this, it is still surprising to me that Mr. Olson has not become self-sufficient. He has applied for hundreds of jobs online, gone door to door dropping off resumés, attended at career centres, taking courses there. He has networked within the folk music community for work, but has been unable to attain some kind of minimum wage employment since 2009. He asserts that he does not want to be dependent on Ms. Anderson. He also testified that he is making progress with his mental health issues and developing strategies to minimize the impact of his situation on his job search. The only conclusion I am left with, given his admission about his ability to work, is that he has not made reasonable efforts to find it. There has been a material change since the Final Order.
Conclusion
[45] Counsel for the respondent is not asking for the spousal support to be terminated today, but that there should be a stepping down or reduction of the amount of support with termination as the ultimate goal. He suggests that resort to the SSAG’s would be inappropriate because Mr. Olson is not entitled to support. I disagree.
[46] This was a very lengthy common law marriage. There was an agreement between the parties that Ms. Anderson would pursue her career to become an accountant. She could not have done that unless Mr. Olson had assumed the role of day to day parenting of their son. In addition, their son suffered from cerebral palsy from birth and required extra care. Mr. Olson was out of the work force from 1991 to the date of separation in 2008 when their son was 16 years old, and, although Ms. Olson encouraged the applicant to get work as their child became more independent, she also accepted his role at home for over 16 years of the relationship. He is entitled to support to compensate for the economic disadvantage set out by the Supreme Court in Moge, supra.
[47] Ms. Anderson did not have to pay third parties for day care, nor did she have to take significant time away from her work and studies to attend to her son’s considerable medical needs.
[48] As a result of the applicant assuming care of the couple’s son, Ms. Anderson is now a full-time, unionized federal employee and college lecturer. She owns a rental unit and her home mortgage-free. She has a pension carried over from Sun Life as well as a growing federal government pension.
[49] Counsel for the applicant correctly points out that Ms. Anderson is an accountant and would clearly understand the importance of including the income she receives from her rental condominium and the value of her federal government pension as part of her financial disclosure. She received a $48,000 tax deduction in 2010 on account of a pension transfer from Sun Life and did not pay income tax that year, but received an $11,000 refund. She received a further $11,500 tax refund in 2011 for the same purpose. She pays $9000 each year towards her pension, the value of which is unclear as she has not disclosed it.
[50] I accept the submission form Mr. Olson’s counsel that I can draw an inference that Ms. Anderson’s employer contributes to her pension and, since she is a federal government employee, she will most likely be entitled to a defined benefit pension. Her testimony that she does not know what the value of her pension will be at her retirement is unreliable.
[51] Ms. Anderson’s November 5, 2013 Financial Statement discloses that she lives alone. She testified that she paid 35% of her son’s education costs, but the statement does not include any such expense. She continued, however, to accept child support payments and s. 7 expense payments from the applicant while their son appears to have been financially independent. Mr. Olson paid that support out of the spousal support payments received from the respondent.
[52] Ms. Anderson lives alone on a budget of $135,000 per year. She spends $5000 each year on clothing for herself, $5000 each year on gifts, $4000 each year on vacations and $6000 per year on groceries. She has not paid her son’s tuition since the proceedings began in 2013. She has medical and dental health coverge. She lives far above the standard of living the couple enjoyed during the relationship. Mr. Anderson pays the applicant $21,480 annually in spousal support, which net after-tax costs to her is approximately $13,283 or $1,107 per month.
[53] There is a stark contrast between the respondent’s standard of living and that of the applicant, who lives on approximately $18,600 each year. Mr. Olson has no medical or dental benefits. He foregoes dental and eye appointments because of the cost. He spends less on nearly every item in his expense budget than he did during the relationship. He lives in a basement unit. His assets are made up of a 25% share of the matrimonial home and an inheritance.
[54] Pursuant to the separation agreement, Mr. Olson paid half of his one-half share of the family home to the respondent, despite no apparent legal obligation to do so. If the parties had been married or if they had separated after the Supreme Court decision in Kerr v. Baranow 2011 SCC 10, [2011] S.C.J. No. 10 in 2011, he could have been entitled not only to half the home, but also to half Ms. Anderson’s pension, RRSP and other savings.
[55] I agree with Mr. Olson’s submission that with liquid assets worth approximately $170,000., he would have approximately $8,500 per year over 20 years and $5,650 per year to draw on.
[56] There is clearly an entitlement to spousal support on a compensatory and non-compensatory basis (as set out in Brackow v. Bracklow, [1999] 1 SCR 420, 1999 Can LII 715 (SCC). And, in spite of the fact that longer relationships create a stronger presumption of equal standards of living, Mr. Olson has not challenged the validity of the agreement he signed which has created the very disproportionate financial situation of these parties.
[57] In the face of this fact, and even with her vastly superior standard of living, the respondent claims that Mr. Olson is in breach of the Final Order because he has not made reasonable efforts to find employment and become self-sufficient.
[58] Ms. Fitzpatrick’s evidence did not add much to the determination of the issues on the motion except to quantify what Mr. Olson could be earning anywhere from $29,452 to $39,083 annually at a minimum wage job.
[59] The case of Misztal v. Tarpynczuk, 2012 ONSC 6474, is similar and allows me to impute an income in the amount of $30,000 per year to the applicant for the purposes of spousal support - $5,000 more than that imputed to him in the 2009 Separation Agreement for the purpose of child support.
[60] In Misztal, the spousal support payee brought a Motion to Change the final order the parties had entered into on consent. They had been married for 23 years. They had one child who was independent at the time of their separation, which was each at 47 years of age. At the motion, both parties were 58 years old. The support recipient complained that she could not work for medical reasons, but provided no expert evidence to support the claim. As a result, Stevenson J. found that there had been a material change requiring a variation in spousal support. She imputed income to the recipient/wife, but found that the amount still did not make her self-sufficient. In addition, the payer’s income had increased. That is also the case of Ms. Anderson’s income.
[61] The case of Woodman v. Woodman, 2005 ABOB 241 () is also similar to this one. The parties were married for 20 years. As in this case, there was a clear case of difference in the parties’ standard of living after the separation. As is true of Mr. Olson, the recipient of spousal support in Woodman, did not seek an increase in support, but simply desired financial stability. The court found that, at the age of 49 years old, Ms. Woodward was a middle-aged woman with no training whose ability to return to the retail business world may not have been a realistic goal by the time of retraining and with competition from much younger individuals.
[62] I have taken into consideration, the Ontario Court of Appeal case of Gray v. Gray, 2014 ONCA 659, at para. 42, which recommends the use of the SSAG in order to measure the quantum and duration of spousal support. I have relied on Exhibit #3 in this trial to do that. It contains a calculation based on the respondent’s income at $107,855, the applicant’s imputed income at $30,000 and a 25 year cohabitation period. The range of spousal support set out as appropriate in this case is from $2,589 to $3,240 per month for an indefinite duration, subject to variation and possibly review.
[63] Ms. Anderson is underpaying the amount of support that should be paid by her to Mr. Olson. However, the separation agreement does not allow for her payments to exceed the $1790 per month. The respondent has clearly done very well by the agreement, which might not have been signed by the applicant in other circumstances.
[64] It seems clear that, at the time of the signing of the agreement, not only had Mr. Olson been suffering under the strain of the separation, but he had also lost his mother to cancer, he had no money, was cut off from communications with his son and was being verbally abused in email correspondence by a teen-aged friend of his son, who Ms. Anderson had unwisely involved in the litigation.
[65] Ms. Anderson lives at a standard of living not contemplated by the case law in light of the conditions she has left Mr. Olson to live out the rest of his days. She is fortunate that Mr. Olson has not moved to set aside their Separation Agreement as there may have been a more equitable arrangement made by this court.
ORDER
[66] The respondent’s motion to change is successful in that I find there is a material change. However, there should be no variation in the spousal support payment of $1790 per month made by the respondent to the applicant, based on an imputed income to Mr. Olson of $30,000 per year. The payments should remain indefinite based on the length of the relationship and the role that the parties took on during their life together.
[67] I decline to order a further review of the terms of the Final Order. They have a limited role which is not relevant here. They can address uncertainty at the time of a trial and do not require material change (Leskun, supra. at p. 36).
COSTS
[68] The applicant has 14 days from the release date of these reasons to make written submissions to me on the issue of costs. The respondent shall have a further 14 days to respond. The parties’ submissions shall be no more than 3 pages in length, excluding attachments.
McWatt J.
Released: May 11, 2015
CITATION: Olson v. Anderson, 2015 ONSC 2228
COURT FILE NO.: FS-08-15577-0001
DATE: 20150511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID CHARLES OLSON
Applicant
– and –
MARY KATHLEEN ANDERSON
Respondent
AMENDED REASONS FOR JUDGMENT
RE: RESPONDENT’S MOTION TO CHANGE SPOUSAL SUPPORT PAYMENTS
McWatt J.
Released: May 11, 2015