Editor’s note: Corrigendum released on February 23, 2015. Original judgment has been corrected with text of corrigendum appended.
CITATION: Friesen Stowe v. Stowe, 2015 ONSC 554
OTTAWA COURT FILE NO.: FC-10-3075-1
DATE: January 30, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARGARET FRIESEN-STOWE
Darlene Summers, for the Applicant
Applicant, Respondent on the Motion
- and -
BRIAN STOWE
Bruce Stedman, for the Respondent
Respondent, Moving Party
HEARD: January 21, 2015
REASONS FOR DECISION
James J.
[1] This is a motion to change a previous court order on the basis of a material change in circumstances. The motion was filed by the respondent in the original proceeding, Brian Stowe. I will refer to Mr. Stowe as the moving party and to the applicant in the original proceeding, Margaret Friesen-Stowe, as the respondent on the motion. For the reasons that follow, I have determined that the motion should be dismissed.
[2] The parties separated in 2009 after having been together for about 20 years, 19 of which they were married. The moving party is 55 years old; the respondent is 52 years old. They have two children, Emmett, aged 20, who is in his third year at Concordia University and Dawson, aged 16, who is in grade 11. The parties share parenting responsibilities equally.
[3] At the time of the initial order in 2012 the moving party was making about $180000 a year as a pharmacist/owner. The respondent was not employed. She had last worked outside the home for the Bank of Montreal as a trust officer on a part-time basis from 1997 until 2002 when her part time position was eliminated. She was offered full time employment at a salary of $70000 but the parties agreed that she should not return to work full time. This was likely the respondent’s choice and the moving party went along with her decision. I regard this as a family decision.
[4] Previous to the respondent’s part time employment, the respondent had also worked full-time as a trust officer from 1988 to 1995. Their first child was born in 1994.
[5] The respondent had recently enrolled in a Master’s program in Applied Linguistics when the parties split up on 2009. The litigation process following the marriage break up continued until 2012. A settlement conference was held in September 2011. In early 2012 the respondent withdrew from the 2012 winter term of her Master’s Program. The classroom component of the program had been completed. She said she didn’t feel up to completing her studies while preparing for trial. The parties resolved their differences by way of minutes of settlement on March 16, 2012. The respondent did not advise the moving party that she had placed her studies on hold when the settlement was made. She said the suspension was temporary and she saw no reason to disclose it.
[6] Their agreement was incorporated into a consent order in May 2012. The order contains the following provisions respecting spousal support:
The applicant has an obligation to be as self-sufficient as she can be and to make all reasonable efforts to contribute to her own support once she has completed her Masters in Applied Linguistics. At that time, she will make all reasonable efforts to obtain employment and will provide the Respondent with written proof once every six months commencing January, 2014.
Commencing on August 1st, 2012 and continuing on the first day of each month thereafter the Respondent will pay to the Applicant spousal support the sum of $2,905.00 until varied or terminated. Payment in this amount is based on the Respondent’s projected annual income in 2012 of $180,600.00 and the Applicant’s projected income in 2012 of $0.00 and the loss of child tax benefits and credits in the month following Emmett’s 18th birthday in July, 2012 previously available to the Applicant.
In addition to the annual review provided in paragraph 17 above and the material change in circumstance provision below, the ongoing amount of spousal support, if any, to be paid to the Applicant as well as the Applicant’s ongoing entitlement to receive spousal support from the Respondent will be reviewed on or before July 31st, 2016. To facilitate this review, the parties will exchange sworn financial statements and all other relevant documents as may be requested including those set out in paragraph 10 above. Financial disclosure shall be completed no later than June 15th, 2016, to allow the parties sufficient time to prepare for the review.
In addition to the review provisions above, either party may seek a variation to the spousal support provisions set out above in the event of a material change in circumstance which need not be unforeseen or unforeseeable for this section to apply.
[7] The respondent did not resume her schooling for the fall session in 2012. She says that she was suffering from depression. There is no contemporaneous medical evidence in the record before me corroborating the symptoms experienced by the respondent or the diagnosis although the suggestion that the respondent was suffering from depression in 2012 arises in more recent documentation tendered by the respondent.
[8] The respondent re-registered for the term commencing January 2013 but did not finish the work necessary to obtain her degree.
[9] The respondent then resolved to transfer programs to enroll in teacher’s college in September 2014. She indicated that this was the last chance to get a one year Bachelor of Education degree. She felt that it would be a good complement to her studies in Applied Linguistics and her affidavit outlines her reasons for the decision to switch programs.
[10] Initially the respondent felt that she could pursue both her BEd and the completion of her Master’s degree in Applied Linguistics simultaneously but the workload was too heavy to pursue two programs of study at the same time.
[11] In late 2014 Carleton University notified the respondent that she was being dropped from the Applied Linguistics program, presumably due to the delay in completing her degree, and she would have to re-apply.
Position of the Moving Party
[12] The position of the moving party is that there are three events that can be viewed as material changes:
The failure of the respondent to obtain a Master’s degree in Applied Linguistics within a reasonable time;
Her decision not to complete her Master’s program and to enroll in Teacher’s College; and,
Her non-disclosure of having withdrawn from the Master’s program on a temporary basis in early 2012 before the parties made their settlement in March of that year.
[13] In addition, the moving party says that the respondent had and has an obligation to secure employment in order to provide child support for Emmett and Dawson. She does not have the luxury of further delaying the completion of her studies and it was a mistake to switch to the BEd program as there are significantly fewer employment opportunities. She has the ability to earn substantial income in financial services and trust administration and her failure to pursue available employment means that income in the range of $50000 to $80000 ought to be imputed to her. The availability of employment and the rate of remuneration are addressed in a report commissioned by the moving party.
Position of the Respondent
[14] The Respondent says that she is entitled to spousal support on a compensatory basis because she gave up a promising career to become a mother and homemaker. This permitted the moving party to dedicate his attention to the pharmacy business that he purchased in or about 1996 and also enabled him to play an active role in his professional association on a national level. When the family’s finances were squeezed after the moving party purchased the pharmacy, the respondent returned to work on a part time basis. This was a long term marriage and she contends that she is economically disadvantaged because of her role in the family.
[15] The respondent says that she has provided a reasonable explanation for not completing the Master’s program as originally envisioned; that it was reasonable to place her studies on hold in order to prepare for trial. Later she was unable to return to her schooling because she was suffering from depression. She says that a BEd would complement her Linguistic studies and the fact that 2014 is the last opportunity to get a teacher’s degree in one year will place her at a competitive advantage in relation to the next cohort of graduates.
The Applicable Law
[16] Under the Divorce Act, the objectives of spousal support are to:
a) recognize the 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) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[17] These objectives apply to both initial orders and any subsequent variations.
[18] In Willick v Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 and subsequent cases, the Supreme Court of Canada firmly established the principle that on a motion to change an existing order, the threshold issue is whether or not there has been a material change in circumstances. Obviously, the circumstances in existence at the time of the initial order are very important in determining whether or not there has been a material change. The test for ascertaining whether there has been a material change is a strict one. The threshold is high and the onus of proof rests with the party alleging that a material change has occurred.
[19] A material change means a change such that, if known at the time, would have likely resulted in different terms of the order. (Willick, p. 688). A material change can include the failure to realize a set of circumstances that was anticipated to come to fruition subsequent to the making of the order. On the facts here this latter consideration is important to the position of the moving party. He points to the provision in the order that that the respondent anticipated she would complete her Master’s degree in Applied Linguistics by the end of 2012. The presence of this provision is relevant to the question of whether the respondent’s inability to graduate in 2012 (or even later) constitutes a material change.
[20] An expression by the parties in their agreement as to what constitutes a material change can override the Willick test. In this case, paragraph 19 of the 2012 order under review provides that spousal support may be reviewed in the event of a material change in circumstances which need not be unforeseen or unforeseeable. This is different than the Willick test for material change which is predicated on a lack of foreseeability. Counsel for the respondent acknowledges that the parties’ definition of material change lowers the threshold test as set out in Willick by removing the requirement of unforseeability.
[21] In considering a request to vary an existing order, the order under review is deemed to have been correctly decided. A variation application does not open the door for a fresh consideration of the propriety of what was done in the first instance. This principle has application in the circumstances of this case. The moving party says the respondent had a duty in the time leading up to the settlement to advise him that she had placed her studies on hold. Silence, when there is a duty to speak, can amount to a misrepresentation. He says this misrepresentation by the respondent constitutes a material change.
[22] On this point I do not agree. I am not prepared to look behind the initial order. Firstly, as I have indicated, a court dealing with a variation request is to assume the correctness of the original order. Secondly, assuming without deciding that the respondent’s non-disclosure amounts to a misrepresentation, different considerations are engaged when misrepresentation is proved and gives rise to the remedies of rescission of contract and damages. Thirdly, there is a question respecting the admissibility of evidence respecting settlement negotiations. Fourthly, as a practical matter, it is difficult to see how disclosure of this fact would have made a difference. Given the length of the marriage, and the roles played by the parties during the marriage, there is a substantial likelihood that the respondent would have been awarded spousal support of indefinite duration and the quantum would reflect the fact that she had not been employed for years prior to the breakdown of the marriage. This is further discussed in paragraphs 34 and 37.
Analysis and Discussion
[23] I will begin by observing that any lawful variation of an existing support order must continue to reflect the objectives of the Divorce Act. One of those objectives which the moving party seeks to emphasize on this motion is the goal of economic self-sufficiency. The moving party says that the respondent’s failure to be working by now is a material change and she should be deemed to have found employment, especially considering that the parties separated in 2009. In addition, the respondent has not even tried to obtain a position in financial services.
[24] As is often the case, the application of this principle is contextual. This was a long term marriage. The calculation of duration includes periods of cohabitation. While it is true that duration of this relationship falls close to the dividing line between a medium and a long term marriage, the spousal support guidelines state that for longer marriages, where the length of the marriage and the age of the recipient at the time of separation combine to exceed a factor of 65, the marriage is deemed to be long term. This so-called rule of 65 is intended to recognize that an economically-dependent older spouse may have trouble attaining self-sufficiency.
[25] Paraphrasing our Court of Appeal in Fisher v. Fisher (2008), 88 O.R. (3d) at para. 52 to 55 , self-sufficiency is a relative concept. It is not achieved simply because a former spouse can meet basic expenses. A determination of self-sufficiency requires consideration of the parties’ present and potential income, their standard of living while married, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances including the impact of equalization and the duration of cohabitation. Self-sufficiency is often more attainable in short term marriages, particularly ones without children, where the lower income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such situations, the lower income spouse is expected to have the tools to become financially independent or to adjust his or her standard of living. In contrast, in most long term marriages, particularly in traditional long term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained. (para. 53-55)
[26] In Fisher, the wife was 41 years of age at the date of separation and they had no children. She had been diagnosed with multiple sclerosis many years before and her disease had been in continuous remission since diagnosis. She had been employed on at least a part time basis for much of the marriage and had been working full time in the period immediately prior to the separation. The Court of Appeal concluded that a reasonable transition period for a nineteen year marriage was seven years, calculated from the date of separation. Lang J.A. stated at para. 88 as follows:
In my view, a seven year order complies with the spousal support objective of recognizing the appellant’s economic disadvantage arising from the marriage and its breakdown, while encouraging the appellant to complete her transition to self-sufficiency, whether by means of earning a higher income or, more likely, by adapting her lifestyle to her then income.
[27] It is notable that the spousal support review scheduled to take place in this case in 2016 is also seven years post separation.
[28] The classification of a marriage as short, medium or long term is important. Counsel for the moving party referred to the case of Moon v. Moon, [2011] ONSC 1834. In Moon, the parties were married for about 14 years and the mother was 43 years of age at the time of separation, well short of the rule of 65. Corbett J. concluded that Ms. Moon had decided on her own that she had no obligation to re-enter the workforce and that she had no meaningful plan to do so. He imputed income to Ms. Moon of $25,000 annually about 4.5 years post separation.
[29] I have some comments about the presence of a review clause in the order we are dealing with here. Review clauses are not meant to be typical or common. Referring again to Fisher, the Court of Appeal held there that the trial judge committed a reviewable error by imposing a review order to take effect five years post separation. (para. 74)
[30] A review order does not require proof that a material change has taken place. In Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 the Supreme Court of Canada commented that review orders have a useful but very limited role. Justice Binnie said that trial courts should resist making temporary or review orders in preference for permanent spousal support orders. Review orders in effect turn an initial order into a long term interim order made after trial. Accordingly, they should be the exception, not the norm.
[31] In his article, Review Orders: Let’s have another Look, (2007) 26 C.F.L.Q. 253, Justice Aston commented at page 261 as follows:
The most common reason for a review order is to determine spousal support after a dependent spouse has had an opportunity to re-enter the paid work force or improve income earning capacity as part of that spouse’s obligation to contribute to his or her own support to the extent that it is practical. Review orders are a particularly useful tool in the fair determination of spousal support obligations in those situations where a dependent spouse will need time to re-educate, upgrade skills, or otherwise find suitable employment. Perhaps the most appropriate cases for review orders are ones in which there is a specific plan for re-training or re-education that seems reasonable but in circumstances where it is difficult to tell if that plan will be successful. The dominant purpose in most review orders is to focus the dependent spouse’s attention on the objective spelled out in section 15.2(6)(d) that support should insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable time. On a review, the court will be able to address what the dependent spouse has actually done to meet that obligation, instead of using a speculative prediction.
[32] These comments are relevant to the facts present in this case. The moving party bargained for the inclusion of a review clause to provide an automatic method of addressing various contingencies, including the risk that the respondent would not obtain employment as quickly as anticipated. In my view, the presence of an automatic right to review spousal support, and the timing of such review, are important features of the factual matrix to be considered in the context of this motion.
[33] Returning to the central issue of whether there has been a material change in circumstances, the Divorce Act expresses the requirement in these terms:
17(4.1) [Factors for spousal support order] 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… and, in making the variation order, the court shall take that change into consideration.
[34] The respondent was not employed when the initial order was made and had not been employed for several years prior to separation. The 2012 order required the respondent to show proof of her job hunting efforts starting in January, 2014, if still unemployed. The threshold test requires the moving party to establish that if it had been known that the respondent would still be unemployed at this time, the terms of the initial order would likely have been different. I acknowledge that the respondent has been unable or unwilling to accomplish that which she anticipated she would be able to do and that which she agreed to do in the settlement underlying the 2012 order. The respondent has provided an explanation of the factors that she says prevented her from completing her studies in the years following separation. I have difficulty with the respondent’s decision not to even try to revive her career in financial services but ultimately the respondent is entitled to considerable flexibility and time to adjust to her new situation. The cases establish that this process occurs gradually for many former spouses following the breakdown of a long term marriage. I am not prepared to reject the respondent’s evidence and explanations as improbable or lacking in credibility. I have not concluded, unlike Corbett J. in Moon, that the respondent has no intention of obtaining employment. While there may be a change in circumstances between the understandings and representations in 2012 and the present situation, this is not a case of a material change in circumstances for the purposes of a support variation under the Divorce Act.
[35] In my view, the motion cannot succeed because the threshold test of a material change has not been satisfied. The motion is therefore dismissed.
[36] The parties have provided a brief indication of their costs claims at my request. In addition they have indicated that offers to settle have been served but the contents have not been disclosed. In the absence of an agreement respecting costs, the respondent shall deliver any additional costs submissions she wishes to provide within 10 days and the applicant shall have 10 days to respond.
Mr. Justice Martin James
DATE RELEASED: January 30, 2015
CITATION: Friesen Stowe v. Stowe, 2015 ONSC 554
OTTAWA COURT FILE NO.: FC-10-3075-1
DATE: January 30, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARGARET FRIESEN STOWE
Applicant
--and—
BRIAN STOWE
Respondent
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: January 30, 2015
CITATION: Friesen Stowe v. Stowe, 2015 ONSC 554
OTTAWA COURT FILE NO.: FC-10-3075-1
DATE: February 23, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARGARET FRIESEN-STOWE
Darlene Summers, for the Applicant
Applicant, Respondent on the Motion
- and -
BRIAN STOWE
Bruce Stedman, for the Respondent
Respondent, Moving Party
HEARD: January 21, 2015
CORRIGENDUM
James J.
[1] This is a Corrigendum making the following amendments to the Court’s Decision of January 30, 2015.
[2] In paragraph 22 the sentence, “This is further discussed in paragraphs 36 and 37” should read “at paragraph 34”.
[3] In paragraph 25, the case citation for Fisher v. Fisher, should read 2008 ONCA 11, 88 O.R. (3d) 241 at para. 52 to 55.
Mr. Justice Martin James
DATE RELEASED: February 23, 2015
CITATION: Friesen Stowe v. Stowe, 2015 ONSC 554
OTTAWA COURT FILE NO.: FC-10-3075-1
DATE: February 23, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARGARET FRIESEN STOWE
Applicant
--and—
BRIAN STOWE
Respondent
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: February 23, 2015