ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRYAN L. SULLIVAN
Chris Arnone, for the Applicant
Applicant
- and -
ANNE E. SULLIVAN
No one appearing for the Respondent
Respondent
HEARD: May 26, 2015, at Thunder Bay, Ontario
Platana J.
Decision On Motion
1The parties were divorced on February 22, 2002, after a 13 year marriage, and a 15 year relationship. The divorce order of Whalen, J. fixed spousal support at $900.00 per month.
2On May 30, 2005, in a proceeding to vary the Whalen Order, Wright J. made a final order, on consent, requiring the Applicant, Bryan Sullivan, to pay the Respondent, Anne Sullivan, spousal support in the amount of $550.00 per month retroactive to February 1, 2005. Arrears were fixed at $1,100.00 as of April 2005. Counsel advised that when the order of Wright, J. was made in May 2005, there was no financial disclosure made by either party. The order also contained a clause that all support would end automatically when the Respondent remarried or began a common-law relationship.
3Mr. Sullivan brings this motion seeking an order that the Order of Wright, J. be terminated effective as of April 30, 2014. He further seeks an order for repayment of all spousal support paid after that date, and for costs.
4The Applicant has made all payments.
5In April 2013, Mr. Sullivan, through counsel, began corresponding with the Respondent at her then place of employment in Alberta with respect to the termination of the support obligation. There was no response. The Respondent then left her place of employment and moved to Edmonton.
6These proceedings were initiated in October, 2014. The material filed shows the difficulties in serving the Motion. It was served on the Respondent by substituted service on February 3, 2015, pursuant to an order of Fregeau, J. dated January 16, 2015.
7The Respondent has not formally filed any responding material, however, she did provide a draft financial statement undated and unsigned, in a letter to the Applicant's counsel March 2, 2015. Exhibit 'D' to the Applicant's affidavit is a copy of the Respondent's 2011 tax return summary, 2012 tax return summary and Notice of Assessment, and her 2013 Notice of Assessment as provided to the Applicant. Her income can be noted as follows: 2011 - $40,424.35; 2012 - $62,157.13; 2013 - $64,062.00. All figures included spousal support.
8Exhibit 'E' is a copy of the Respondent's Record of Employment (ROE) from 2014. No subsequent financial information was received. The ROE reflects that she left her employment on July 24, 2014 having earned $39,178.28 up to that date. The reason for issuing the ROE is "quit". For 2014, Mr. Arnone submits that based on the ROE amount of the $39,178.28 for a period to July, her income can be projected as approximately $60,000.00.
9Mr. Sullivan's 2014 income on his T1 General as filed was $162,309.90.
APPLICANT'S POSITION
10Mr. Arnone argues that the parties were married for 13 years, and, following divorce, Mr. Sullivan has been paying spousal support for 17 years. He notes that Mr. Sullivan's income at the time of separation was $62,000.00. He submits that considering the Divorcemate calculations, the original support was established considering quantum, and a duration of 15 years. He submits that any significant increase in Mr. Sullivan's income occurred post-separation. He submits that entitlement should have terminated in July 2014 as being the outside time period in the Spousal Support Advisory Guidelines (SSAG).
11He submits that the Respondent has become fully self-sufficient, as evidenced by her income, which I have noted above.
12He has relied on the decision in Lawder v. Windsor, 2013 CarswellOnt 13517, 2013 ONSC 5948, where D.A. Broad J. stated at para. 21:
[21] I agree with the submission of the Respondent that, based upon the sixteen year duration of the marriage and the post-separation period of sixteen years that support has been paid by the Respondent, any economic disadvantages to the Applicant arising from the marriage or its breakdown have been satisfied some time ago, and accordingly, a compensatory basis for support is no longer relevant. Any support payable would therefore need to be on a non-compensatory basis.
Further, at para. 25:
[25] The objectives of a spousal support order are listed at 15.2(6) of the Divorce Act. Under that subsection an order for spousal support should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the 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 spouses arising from the breakdown of the marriage; and
(d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
(emphasis added).
13Mr. Arnone submits that the Order of Justice Wright defines only one possible material change in circumstances meriting a termination of spousal support (i.e., the Respondent living with a partner in a conjugal relationship, or becoming remarried). He submits that the Order does not limit a review in the case of a material change to this one event, is silent on any definition of material change, and as such it is submitted that, but for the termination event already provided for, the statutory definition of a material change in circumstances, found at the Divorce Act, subsection 17(4.1), should be applied.
14He notes the relevant subsection of the Divorce Act as follows;
- (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy 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 in consideration.
15He submits that, pursuant to the common law authorities and the Divorce Act:
a) The Order made in 2005 is taken by the court to be correct at the time;
b) The onus in establishing that there has been a material change in circumstances since that time is on the Applicant in this case; and
c) The wording requiring that there be a change "since the making of the spousal support order or the last variation..." suggests that, if the Court is satisfied that there has been a material, non-minor change in circumstances that was unanticipated at the date of the 2005 Order, spousal support should be reviewed.
16He acknowledges that the Applicant's income has increased since separation, and, in fact, from the date of the variation Order of Justice Wright. He submits that these increases were entirely post-separation.
17The material changes asserted herein are as follows. Firstly, the increase in the Respondent's income between 2005 and 2014, during which time frame the Respondent accepted new employment in Alberta, moved to Alberta, and began progressively earning a higher income. The Applicant accepts that there is no evidence of the Respondent's income in 2005 to compare the current figures against. The Respondent, however, did reside in Windsor at the date of the 2005 Order, and moved to Alberta and worked at a different employment with escalating income during this period of time.
18Mr. Arnone notes that the motion was heard uncontested. The Respondent did not participate, and only provided limited financial disclosure. He argues that had the Respondent participated, I would have seen the Respondent's 2004 and 2005 income information, which would have provided a baseline compared to which the current circumstances would have been compared. Mr. Arnone submits that the court must resolve any ambiguity caused by the Respondent's non-participation and non-disclosure in favour of the Applicant, failing which the Respondent is effectively being rewarded for her non-participation.
19Secondly, Mr. Arnone points to the increases in the Respondent's income from the year 2011 to 2014, which are the years for which we have significant financial disclosure from the Respondent. In 2011, the Respondent earned $40,424.35; in 2012, $55,547.00; in 2013, $57,462.00. In 2014, prior to quitting her employment, he submits the Respondent was on pace to earn $61,000. He notes that all of the within amounts are exclusive of spousal support. Between 2011 and 2014, therefore, the Respondent has enjoyed an increase of 50 per cent in her gross income. This, alone, he submits justifies material change in circumstances, particularly where the Respondent's income in 2004/05 is absent from the record only due to the Respondent's non-participation.
20The Applicant's income at the date of Justice Whalen's Order was approximately, $62,100 (see paragraph 3 of that Order), which was enough to merit a spousal support award in favour of the Respondent. The Respondent's income in 2014 was on track to be $61,000. He submits this should be taken into account in assessing whether there has been a material change warranting a review.
21Thirdly, he notes that the expiration of the SSAG-recommended range for duration of spousal support, (as set out in the case of Lawder,) supports a finding that the expiration of time from date of separation eliminates any arguments in respect of compensatory spousal support, leaving only a needs-based analysis to determine support. He argues that the Respondent has become self-sufficient.
22Mr. Arnone refers me to paragraphs 25 and 26 of Lawder which read:
The recent change to the Applicant's economic situation resulted from the restructuring of her former employer's business leading to her termination, and not to anything arising from the marriage or its breakdown. In my view, with the Applicant having achieved self-sufficiency some time ago, it would not be appropriate, given the length of the marriage and the period since separation that the Respondent has paid support, to further extend the Respondent's support obligation on account of the recent change in the Applicant's employment status.
This is not to say that a recipient, having previously achieved self-sufficiency but having lost it due to no fault of his/her own, may not be entitled to have support extended in appropriate circumstances. However in this case, the Applicant has not laid an evidentiary basis for a conclusion that her self-sufficiency has been lost and that it may not be recovered in a reasonable time through her own effort and diligence. It is therefore appropriate that the Respondent's obligation to pay spousal support be terminated.
DISCUSSION/ANALYSIS
23The passage of time alone does not constitute a material change in circumstances: Howe v. Howe, 2012 CarswellOnt 5630, 2012 ONSC 2736. Mr. Arnone relies not only on the length of time, but also on the fact of her having moved, obtained employment, and over the years 2011-2014 shows her income to have increased in each year, from $40,424.35 to $61,000 (projected.)
24I have considered the Spousal Support Advisory Guidelines which suggest that, based on the parties current incomes, ($162,300 and $61,000 respectively) the formula suggests payments should be established considering a duration of 7.5 to 15 years post-separation, subject to appropriate considerations.
25I find that the circumstances relied on by Mr. Arnone escalating income from 2005 on, length of time since separation, her having become self-sufficient are, considered together, sufficient to constitute a material change in circumstances.
26I do not consider that the term in the order of Wright J. dealing with the termination of support is the only reason that the Order can be varied. A spousal support order that includes a term which allows the payor spouse to apply for a variation upon the occurrence of a specific thing does not bar the payor spouse from making an application to vary on other grounds as well: Rayvals v. Rayvals, [2004] B.C.J. No. 2538, 2004 BCCA 630 (B.C.C.A.)
27Once the threshold of material change has been passed, I must still consider the four objectives of spousal support in s. 17(7). In reviewing these objectives, I note that with no responding materials, other than that informal sending of financial information, I have little knowledge of the circumstances of the Respondent. I must assume that the order made at the time of the divorce, was correct, as was the order of Wright, J. varying it. Without any information as to either party's financial position at the time, since that variation was done on agreement of the parties, the Applicant's income at that time must have been considered. I have no evidence of any ongoing economic disadvantage to the Respondent; there are no child support obligations to consider; there is no evidence of any ongoing economic hardship arising from the breakdown of the marriage; the Respondent is now economically self-sufficient.
28I have considered the fact that the Applicant's current income, which fluctuates year by year on a commission basis, has significantly increased post-divorce.
29I find that considering all of the material which I have before me, an order should be made terminating spousal support.
30Mr. Arnone has submitted that the variation should be effective as of April 30, 2014, on the basis that it was the first correspondence to the Respondent requesting her arguments to terminate the order, to which she did not reply. After difficulties in effecting service, this motion was served in February. Notwithstanding, I do not agree that the Respondent should be required to repay any support paid after that date. The Respondent, despite not having appeared, and considering the current differences in income, is entitled to some notice of when the termination is effective.
31Order to go that spousal support shall be terminated as of July 1, 2015.
32While I acknowledge the general principle that costs should be awarded to a successful applicant, in light of the significant disparity in current incomes, I make no order as to costs.
"original signed by"__
Mr. Justice T. A. Platana
Released: June 18, 2015
CITATION: Sullivan v. Sullivan, 2015 ONSC 3966
COURT FILE NO.: FS-05-0190
DATE: 2015-06-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRYAN L. SULLIVAN
Applicant
- and -
ANNE E. SULLIVAN
Respondent
DECISION ON MOTION
Platana J.
Released: June 18, 2015
/cs
