COURT FILE NO.: 35/38/012530/09

DATE: 2015-09-16

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

IRENE ELLEN RICHARDSON

Applicant

– and –

JOSEPH PAUL MATUZIC

Respondent

George McFadyen, Counsel for the Applicant

William Clayton, Counsel for the Respondent

HEARD: September 9, 10 and 11, 2015

OVERVIEW

[1] The Respondent, Joseph Matuzic (hereafter “Matuzic”), brings a motion to change the Order of Justice Donohue dated August 23, 2013 as it relates to child and spousal support pursuant to section 17 of the Divorce Act. He seeks to terminate child support retroactive to December 9, 2012, the date his daughter came to reside with him. He also seeks to terminate or vary spousal support prospectively upon his retirement in April, 2016.

[2] In addition, Matuzic seeks reimbursement from the Applicant, Irene Richardson (hereafter “Richardson”) of monies paid by him for utility arrears for the matrimonial home. These arrears were incurred by Richardson after Matuzic’s interest in the matrimonial home was transferred to Richardson as agreed in Minutes of Settlement executed December 12, 2012. That claim was permitted to proceed upon oral motion to amend made by Matuzic during the trial.

[3] Richardson opposes the motion brought by Matuzic and brings a cross-motion to change spousal support in the event she is obligated to pay child support to Matuzic. She seeks to increase the spousal support ordered by Justice Donohue in his Order of August 23, 2013 on the basis of an increase in Matuzic’s income since the Minutes of Settlement were signed. She asks that the spousal support be increased retroactive to 2013 so as to offset any payment she may have make to Matuzic for child support she has received since their daughter began to reside with Matuzic.

[4] In these Reasons, I will provide a history of the parties relationship, the Order which they seek to vary, and the facts as they have unfolded since December 12, 2012. I will address the issue of variation of child support first, then deal with spousal support where both parties seek to vary. Finally, I will address the utility arrears paid by Matuzic.

THE PARTIES

[5] Matuzic was born April 30, 1953. He is presently 62 years old. He is employed at Nova Chemicals in Sarnia as a training coordinator for operations, a management position he sought and obtained in the Spring of 2013 after his daughter, Sarah Richardson-Matuzic (hereafter “Sarah”), came to reside at his home at 806 Amsterdam Court in Sarnia. Before then, he was employed by Nova Chemicals in a non-management role and worked shift work. He has been employed by Nova Chemicals for 30 years. He testified that after 42 years in the work-force, he wishes to retire when he turns 63 on April 30, 2016. He has not yet given notice to the company but will do so a couple of months before then.

[6] Richardson was born May 7, 1958. She is presently 57 years old. She resides at 714 Ernest St., in Point Edward which was the matrimonial home. She borrowed $35,000 from her sister to buy out Matuzic’s interest in the property as an equalisation payment in accordance with Minutes of Settlement dated December 12, 2012. The loan from her sister is unsecured. She has repaid none of that debt which she shows as a liability on her Financial Statement.

[7] Richardson completed her grade twelve equivalency through courses at Lambton College in Sarnia. She also completed one semester of the pre-health science programme at Lambton College. She last worked outside the home approximately 24 years ago as a cook at Yuk Yuk’s in London. She was then a single mother with a daughter from a previous relationship to support.

THE PARTIES’ RELATIONSHIP

[8] The parties dated for approximately two years before they began to cohabit in March, 1998. Richardson was at that point receiving very modest child support from the father of her eldest daughter as well as social assistance. Soon after Matuzic and Richardson began living together, Richardson’s older daughter moved out to live with her father in London. The parties moved in together after Richardson became pregnant with and gave birth to Sarah who was born August 3, 1997. Sarah is the only child of their relationship.

[9] Matuzic and Richardson married on April 17, 2007 and separated permanently on July 6, 2008. Although the Minutes of Settlement contemplate an uncontested application for divorce, neither party has brought such an application to date. That relief is not part of Matuzic’s motion to change and I declined to deal with that issue at trial. I directed that the divorce proceed by chambers motion as agreed between the parties. It seemed to me that there were some evidentiary problems, such as the absence of the marriage certificate and clearance certificate, and the addition of this relief was inappropriate at this stage.

[10] Richardson testified that in her mind, she is still married; marriage is for life. This evidence is somewhat contradicted by her claim for divorce in the original application that she made after the parties permanently separated and the terms of the Minutes of Settlement just referred to. As the facts below will show, it may be more accurate to say that Richardson believes that spousal support is for life even if marriage is not.

PERIOD OF COHABITATION

[11] During the roughly ten year period the parties cohabited, Matuzic was the sole breadwinner. Richardson was a stay-at-home mother who cared for Sarah and looked after household chores. She also was active in transporting Sarah to figure skating and dance, both competitive activities in which Sarah excelled as a child. Matuzic worked shift work which involved twelve hour shifts and overtime. Richardson believed that her husband made enough money from his employment that she did not need to work outside the home, a view she continues to hold.

SEPARATION

[12] The parties separated July 6, 2008. Richardson remained in the matrimonial home with Sarah, while Matuzic moved into his mother’s three bedroom home at 806 Amsterdam Ct. in Sarnia. He resided there until August, 2015 when he and Sarah moved to 500 Brook St. in Wyoming, Ontario which is a twenty minute drive from Lambton College in Sarnia. His mother passed away in late 2014.

[13] Matuzic paid child support in the Guideline amount for Sarah pursuant to an interim Order of Justice Donohue made in July, 2009. The child support payments were deducted automatically from his pay at Nova Chemicals by FRO and were remitted to Richardson by direct deposit. As indicated above, Sarah was then residing with her mother.

SARAH MOVES

[14] On December 9, 2012, Sarah and Richardson had a major argument which led Sarah to show up at her father’s home. She asked if she could stay with him and he agreed. At that date, it was not entirely clear whether this would be for a cooling off period or permanent. It proved to be permanent. She resided with him at 806 Amsterdam Ct. until the move in August, 2015 and continues to live with him at 500 Brook St. in Wyoming. The address on her driver’s licence corresponds to that address.

[15] Richardson suggested in her evidence that Matuzic bribed his daughter to move by the promise of a car. I reject that suggestion. The evidence of Matuzic and Sarah clearly indicates that Sarah made the decision to live with her father because she did not like the rules set by Richardson. Her dad also had better Internet access which she used for school and social purposes, but in any event, Sarah’s decision to leave Richardson’s home was not made because of any inducements by Matuzic.

[16] Sarah is now 18 years old. She was called as a witness at trial by Matuzic after he learned on the eve of trial that she was speaking with Richardson’s counsel and it appeared she might be called by Richardson. Matuzic testified that whenever the parties have a court date, Richardson tries to get especially close to Sarah to gain her support. In my view, neither parent should be especially proud of putting their daughter in the middle of the issues before me on this trial. I note that after Sarah testified, both Matuzic and Richardson indicated in their evidence that Sarah had not been fully candid; that her evidence was wrong on one point or another to appease the other party. This is precisely why children, even adult children, should not be drawn into the fight between the parents.

[17] Sarah was enrolled in Northern Collegiate, a Sarnia high school, when she moved in with Matuzic and his mother. She was then also involved in competitive skating which was a year round endeavour with practices every day after school and on weekends. She was active in competitive dance and a local theatre group, which activities continue to date. Simply put, Sarah had a very full plate.

[18] Relations between Sarah and Richardson were strained for two or three months after the move, with Sarah avoiding her mother entirely for part of that time. Matuzic testified that Sarah tried living with Richardson again in 2013 but that lasted only six days. While they eventually reconciled and found an equilibrium to their relationship, Sarah has not otherwise resided with her mother since December, 2012.

[19] After she moved in with Matuzic, Sarah’s marks at school dropped significantly. According to Richardson, Sarah was not getting up to go to school and she was skipping classes. Matuzic was initially working 12 hour shifts so that he was often not home because of work or was sleeping when Sarah was home. She saw him perhaps two hours a day. Matuzic decided to apply for a management role which offered the benefit of straights days and eight hour shifts, Monday to Friday. He still left for work at 7:45 a.m. but could be home for meals in the evenings on a regular basis. He did this to be more available for Sarah even though his mother was there when he was doing shift work.

[20] Richardson was concerned by Sarah’s school issues and no doubt also wanted to remain a part of Sarah’s life. In the Spring of 2013, Richardson began transporting Sarah to school, to skating, to dance or theatre. She often bought Sarah breakfast at Tim Horton’s or McDonalds, and dinner after skating on occasion. She stayed to watch skating practices. She arranged and took Sarah to medical and dental appointments. She paid for some costumes and skating, although the evidence at trial shows that the financial cost of Sarah’s activities were principally borne by Matuzic. The evidence also shows that each of Matuzic, his sister, Anne, Sarah’s boyfriend and Sarah herself, once she had her licence, also provided transportation to school and Sarah’s activities

MINUTES OF SETTLEMENT

[21] On December 12, 2012, the parties entered into a mediated settlement of the issues between them including child support, spousal support and equalisation of net family property. The Minutes of Settlement were signed three days after Sarah began living with Matuzic, but at that point it was unclear whether that would continue.

[22] The Minutes of Settlement were incorporated into a final order which was granted by Justice Donohue on August 23, 2013. There is no explanation for the delay between the date the Minutes were signed and the date of the order. Neither party suggested that anything turned on that delay.

[23] The Order dated August 23, 2013 mirrors the agreement between the parties. It required Matuzic to pay monthly child support in the amount of $974 based on his then income of $112,000. The Order also stated, inter alia:

“7. In addition to the yearly adjustment provided for above, either the

Applicant or the Respondent may seek a change in the child support

arrangements if there is a material change in circumstances that would

affect child support.

8. In May of the child’s 12th grade year, when her post-secondary plans are

known, the Applicant and the Respondent shall review the child support

arrangements provided for herein.

9. Child support in respect of the child, Sarah Helen Richardson-Matuzic,

ends when she ceases to be a child as defined in the Divorce Act.

10. Commencing January 1, 2013 the Respondent shall pay $2,400.00 per

month to the Applicant as spousal support. This amount shall be taxable

to the Applicant and tax-deductible to the Respondent. The Respondent

shall pay this amount on the first of each month.

11. Spousal support is variable in the event of a material change in

circumstances. Without limiting the generality of the foregoing, the

retirement by the Respondent before age 63 shall not be considered a

material change of circumstances and retirement by the Applicant at age

63 or later shall be considered a material change of circumstances.

12. On any variation of spousal support, the Respondent’s income shall be

exclusive of any income derived from pension contributions made

between April 1998 and July 6, 2008.

14. In the event that benefits coverage becomes available to the Applicant

through employment she shall designate the child as a beneficiary.

21. The balance of the claims shall be dismissed and the Divorce shall

proceed on an uncontested basis.”

[24] Like child support, spousal support was enforced by FRO. Given the delay in issuing the Order and the time it took for the Order to be enrolled with FRO, a substantial arrears existed by the time FRO commenced deductions from Matuzic’s pay in November 2013. In any event, all of the arrears have been paid.

ORDER OF JULY 8, 2014

[25] Matuzic brought a motion for an interim order that his obligation to pay child support be suspended given that it appeared that Sarah had been and would continue to reside with him. The motion was opposed by Richardson who wanted Matuzic to continue paying child support even though Sarah was no longer residing at 714 Ernest St.. On July 8, 2014, Justice Garson granted an order suspending the obligation to pay child support for the period December 1, 2012 to April 30, 2014. The Order expressly provided that the Order of Justice Donohue dated August 23, 2013 would continue thereafter commencing May 1, 2014.

[26] Exhibit 5 is a FRO printout which purports to set out the deduction and credit history of Matuzic. It was introduced into evidence through Matuzic, who had no idea how to read and explain it. From the evidence provided, I understand that after FRO received and processed the Order of Justice Garson, FRO continued to deduct monies from Matuzic’s pay but remitted nothing to Richardson. No blame is attributed to Matuzic by Richardson for this administrative glitch. The vagaries of FRO’s enforcement and remittances remain a mystery to both parties.

[27] Finally, in March 2015, counsel for Matuzic wrote to FRO to advise that Justice Garson’s Order did not affect spousal support and those funds accrued for same with FRO should be released to Richardson. After that letter was sent, Richardson began to receive spousal support again. There are no arrears of spousal support as of the commencement of trial.

[28] Despite the timing irregularities occasioned by FRO, the net effect of the Orders of Justices Donohue and Garson is as follows:

1. With respect to spousal support, Matuzic has paid and Richardson has received $2400 monthly from December 1, 2012 to date. That amount will continue to be deducted and remitted going forward absent further order of this court which is one of the requests being made by Matuzic;

2. With respect to child support, Matuzic has paid and Richardson has received $974 per month for the period May 1, 2014 to August 31, 2015. On his next pay, September’s child support with be deducted and remitted to Richardson.

GOING FORWARD

[29] Sarah has graduated high school and is enrolled in the pre-health science programme at Lambton College. Her acceptance into the programme was initially conditional on completion of a chemistry course which she did. The pre-health science programme is a one year programme which will prepare her for entry into a nursing programme. Her plan is to do a four year B.Sc. N. degree through a joint programme offered by Lambton College and the University of Windsor. The first two years will be in Sarnia at Lambton College, and the remainder at the University of Windsor where she expects to reside in residence.

[30] Matuzic paid for Sarah’s tuition for the Fall semester. He anticipates paying her tuition throughout. He also paid for her books which came to $500. Richardson contributed nothing to those expenses.

[31] In cross-examination by counsel for Richardson, Sarah testified that she intended to apportion her time between her parents and boyfriend more or less equally. She did not testify that she intended to reside with Richardson; rather, that she expected to balance her time between these relationships in her discretion. There was no evidence that, for example, Sarah intends to stay overnight two or three nights each week with Richardson. The reality is that Sarah, as an 18 year old woman, is doing her best to move toward independence while trying to spend time with each parent.

[32] Sarah struck me as a remarkable young woman who, in giving her evidence, was trying very hard to please both parents – an impossible task. She presently resides with her father. He has provided a vehicle which she uses for transportation to school and to other activities in which she involved. She has a very clear path plotted for her future, one which she chose and to which she seems dedicated.

[33] Sarah no longer requires Richardson to make sure she attends class (if she ever did), nor to take her about. Her relationship with her parents has matured to where she is no longer dependent on them for day to day guidance and direction. She showed poise and intelligence in giving her evidence.

[34] From the evidence given, I anticipate that for the next three years Sarah will likely continue to reside with her father at 500 Brook St. in Wyoming. She will spend increasing time away from there staying with her boyfriend or other friends. She may stay overnight with Richardson on occasion. Nevertheless, her primary residence will be her father’s house which is proximate to school, to friends and other interests she may wish to pursue. This time spent with Richardson is not expected to exceed 40%.

VARIATION – CHILD SUPPORT

[35] Section 17(4) requires that the court first be satisfied that a change in circumstances as provided for in the applicable guidelines has occurred since the making of the child support order which is to be varied. In making a variation order, the court must do so in accordance with the applicable guidelines: Divorce Act, section 17(6). Notwithstanding section 17(6), the court may vary the child support payable where the application of the guidelines would give rise to an inequitable result: Divorce Act, section 17(6.1)(b).

[36] A “material change” in circumstances is one that, if known at the time, would likely have resulted in different terms in the order: Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 at page 733-34. Even if the change in question was objectively foreseeable, the parties may well not have contemplated that the change would happen. The court must adopt a flexible standard in the exercise of its discretion given the variety of scenarios in the family law context: Willick v. Willick, supra, at page 734.

[37] Matuzic seeks to maintain the Order of Justice Garson dated July 8, 2014 and to terminate child support retroactive to May 1, 2014. He argues that Sarah’s change of residence on December 9, 2012 constitutes a material change in circumstances. The Order of Justice Donohue, although dated months later, reflects the parties’ agreement and the circumstances as they existed or were expected to be in December, 2012. The Guidelines do not contemplate the custodial parent paying child support to the non-custodial parent unless special circumstances exist such as where the child spends 40% or more of his/her time with the non-custodial parent. That is not the case here.

[38] Richardson asserts that there was a shared parenting regimen in place between 2013 and 2015 in accordance with section 9 of the Child Support Guidelines which justifies her entitlement to continued receipt of child support in that timeframe. She relies upon her efforts at paragraph 20 above to support that assertion.

[39] I reject Richardson’s position that between 2013 and 2015, she shared parenting with Matuzic sufficient to engage section 9 of the Guidelines. I come to that conclusion for the following reasons:

1. As Richardson reluctantly admitted in cross-examination, Sarah has lived with her father since December 9, 2012. That is where she puts her head down at night, where she did her homework, where she ate dinner most nights and where she has her bedroom. It is where her driver’s licence says she lives;

2. Sarah was enrolled in school full-time. Driving Sarah to school and to activities (not every day) does not amount to share parenting. I believe Richardson initially did this to ensure Sarah went to class, but certainly before grade 12 it was clear Sarah was buckling down and her grades reflected same. She took Sarah to activities because she wanted to rebuild their relationship and to be part of Sarah’s life. The amount of time actually together was, however, modest given the activities Sarah was doing – school, skating etc.

3. Buying Sarah breakfast or an occasional dinner, contributing very modestly to her skating expenses is no more than most non-custodial parents do. Richardson’s evidence with respect to her financial contribution to Sarah’s extra-curricular activities was hastily thrown together during the trial and, when considered in the context of the totality of the evidence, does not persuade me that there was a shared parenting regime.

[40] This is not a case where Sarah spent more than 40% of her time with Richardson. Far from it, Sarah lived with Matuzic who was for all intents and purposes the custodial parent throughout 2013-15.

[41] With respect to child support ordered to be paid by Matuzic, I find that the Order of August 23, 2013 was intended to mirror the wording of and state of affairs as they existed when the Minutes of Settlement were signed on December 12, 2012. In my view, there has been a material change in circumstances since the Order of Justice Donohue dated August 23, 2013; namely, Sarah has resided with her father continuously since then. Given the finding above that no shared parenting under section 9 of the Guidelines existed, I see no reason why Richardson should have received child support during the period May 1, 2014 and August 31, 2015. I order that the Order of Justice Donohue dated August 23, 2013 be varied such that the Order of Justice Garson dated July 8, 2014 be maintained and child support be terminated effective May 1, 2014. Richardson shall repay to Matuzic the child support received since May1, 2014 which is $974 per month since then. If she cannot pay the amount owing in full immediately, spousal support shall be reduced by 50% until such date as the amount is repaid in full.

[42] As Sarah is now 18 years old, the provision of ongoing child support is governed by section 3(2) of the Child Support Guidelines. Section 3(2) states:

“Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

[43] Matuzic does not seek past child support from Richardson although on the facts here, he could do so. Instead, he simply asks that the obligation to pay child support stop and that Richardson repay the child support she received after May 1, 2014 as she really should not have received it.

[44] Dealing with future child support payable by Richardson, Sarah has resided with and is likely to continue residing with Matuzic. I exercise my discretion under section 3(2)(b) of the federal Child Support Guidelines to find that Richardson should be relieved of the obligation to pay any child support to Matuzic given her present lack of any income from any other source than spousal support.

SPOUSAL SUPPORT

[45] Section 17(1) of the Divorce Act grants authority to vary or modify an order for support, child or spousal, either retroactively of prospectively. In McMahon v. McMahon, 2015 ONSC 1371, I reviewed and outlined at paragraph 31 and 32 the applicable principles and approach on a motion to vary spousal support as follows:

[31] The applicable principles on a motion to vary spousal support are summarized in L.M.P. v. L.S., 2011 SCC 64 as follows:

(1) The first step in the analysis is to determine whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order as required by s. 17(4.1) of the Act –para 29;

(2) In determining whether the conditions for variation exist, the onus rests on the party seeking the variation to establish such a change –para 31;

(3) That “change in circumstances” has to be “material”; i.e. a change that “if known at the time, would likely have resulted in different terms” –para 32;

(4) The focus of the analysis is on the prior order and the circumstances in which it was made. A court should not consider the correctness of that order, nor should it be departed from lightly –para 33;

(5) It is presumed that the judge who granted the previous order knew and applied the law. Accordingly, the previous order met the objectives set out in s. 15.2(6) of the Act –para 33;

(6) What constitutes a material change will depend on the actual circumstances of the parties at the time of the order. It cannot be trivial or insignificant –paras 34 and 48;

(7) In general, a material change must have some degree of continuity. It cannot be a merely temporary change in circumstances –para 35;

(8) The analysis is always grounded in the circumstances of the parties and the terms of the s. 15.2 order –para 42;

(9) If the matter that is relied upon as constituting a change was known at the time of the previous order, it cannot be relied upon as the basis for variation –para 44;

(10) If the threshold for variation is met, the court should take into account the material change and make only the variation justified by that change –para 47;

(11) Variation involves the application of both s. 17 (4.1) and (7) –para 48;

(12) The task should not be approached as if it were an initial application for support under s. 15.2 – para. 50; and,

(13) The variation order should properly reflect the objectives set out in s. 17(7) – para 50.

[32] If the threshold is met under s. 17(4.1), the court must consider what variation should be made but do so having due regard to the objectives set out in s. 17(7).

[46] Matuzic seeks to vary spousal support payable to Richardson upon his retirement which he expects will follow on or immediately after his birthday on April 30, 2016. He wishes to terminate payment of spousal support in its entirety at that time or significantly reduce spousal support for a defined period after which his obligation to pay will end. He argues that his pending retirement is a material change in circumstances.

[47] Richardson opposes Matuzic’s request to vary. She seeks to continue the payment of spousal support at $2400 indefinitely. Further, she seeks to retroactively increase spousal support retroactive to January 1, 2013 in the event she is required to repay child support for any part of that period. She asserts that Matuzic’s income has increased since 2012 such that it amounts to a material change in circumstances; she has been paid less than the recommended Spousal Support Advisory Guidelines even at the low end of the range and should have received more.

[48] In her cross-motion, she sought an increase in spousal support if she was required to pay child support to Matuzic. She admitted in cross-examination that she does not require an increase if she is not paying child support for Sarah. Matuzic does not seek past or future child support; rather, he asks only that Richardson repay the amounts paid by him for child support since May 1, 2014. Despite Richardson’s admission, counsel for Richardson argued that an increase was warranted to offset the child support she has been paid which she must repay to Matuzic. In short, Matuzic should pay her increased spousal support to get back the child support she should not have received.

[49] Despite her obvious intelligence, since separation, Richardson has not worked nor has she pursued education or training that might lead to work. Simply put, she has done nothing to supplement her spousal support income. She has contented herself with caring for her mother, helping her oldest daughter and three grandchildren, and spending time with Sarah primarily by driving her to and from events or activities. Her decision not to pursue other or any employment opportunities is a choice she has made, not one which has been forced upon her by circumstances.

[50] It was evident that Richardson does not wish to work. In her evidence, she made clear that she regarded it as Matuzic’s responsibility to provide for her needs during and after their cohabitation. She has taken no steps toward achieving economic self-sufficiency, a status she seems to feel is unnecessary.

[51] According to her Financial Statements, she expends considerably more each month than she receives from Matuzic. That fact has not deterred her from buying and consuming what she called “expensive red wine”, and borrowing upwards of $18,000 from her mother. She has repaid none of the monies advanced by her sister in late 2012 to fund the buyout of Matuzic’s interest in the matrimonial home. She does not live within her means, relying instead on Matuzic and her family to provide for her.

[52] Although Richardson testified that she has various ailments from two car accidents that occurred during the marriage, no medical evidence was tendered to corroborate her inability to work. Frankly, my impression was that Richardson is not motivated to seek independent employment; rather, she prefers the role of a caregiver to her mother and grandchildren.

[53] By contrast, Matuzic has worked for 41 years. He can retire from Nova Chemicals in the Spring of 2016 with a full pension. Although he is aware of others in similar circumstances with that employer who have retired and gone back to work on consulting contracts, that is not his plan. He wishes to fully retire. He hopes to find a job cutting grass or acting as a marshall at a golf course in exchange for green fees.

[54] It is not the case that Matuzic’s retirement is an attempt to reduce or avoid paying spousal support prematurely. He has worked almost all of his adult life. He has earned a pension which he wishes to enjoy when he reaches a pensionable age. The provisions of the Minutes of Settlement recognised that retirement before age 63 would be premature, i.e. not a material change in circumstances. That provision implicitly acknowledges that after he turns 63, that is no longer the case.

[55] Matuzic did not specifically plead to reduce spousal support based upon his pending retirement; however, he did make clear in his motion to change that he was seeking to vary spousal support – to terminate his obligation to pay spousal support. I am satisfied that Richardson was not caught by surprise by this position. It makes sense to deal with this prospectively rather than put the parties through another proceeding to be commenced once he actually does retire a matter of months from now.

MATERIAL CHANGE IN CIRCUMSTANCES

[56] In 2012, Matuzic’s income was $113,220. His income in 2012 was actually lower than his 2011 income, but that is attributable to an injury that he sustained in 2012 and time off work to recover. In 2013, Matuzic earned $119,529 and in 2014, he earned $142,625. He has also recently started receiving his CPP pension which amounts to close to $10,000, and receives roughly $400 per month as part of a FLEX benefits plan. His 2015 income will likely be approximately $152,000.

[57] Matuzic anticipates that upon retirement, his employment pension income will be approximately $45-50,000, a significant drop from his anticipated 2015 income. Consistent with the case law, counsel for Richardson conceded that Matuzic’s retirement will constitute a material change in circumstances.

[58] Richardson asserts that the increase in Matuzic’s income since December, 2012 when the Minutes of Settlement were signed constitutes a material change in circumstances. Accordingly, spousal support should be retroactively increased as she has received only $2400 per month, far below the Spousal Support Advisory Guidelines for the period 2013-2015 even if I impute income to her equivalent to 35 hours per week at minimum wage.

[59] I was provided with spousal support calculations by counsel for Richardson, albeit on a shared custody basis, which showed that Matuzic underpaid spousal support for the 2013 calendar year in the amount of $3216. The amount of underpayment went up dramatically for 2014 and 2015 given the increase in his income from 2013 to 2014. Richardson submits that Matuzic has underpaid spousal support by $10,700 in 2014, and for 2015, he has underpaid by $10,800 to September.

[60] On a prospective basis, Richardson argues that there is a danger that Matuzic may find employment in addition to his pension income. She will never know and stands to suffer accordingly. Richardson argues that spousal support should continue indefinitely. Alternatively, spousal support should continue for another five years which she says would mean he has paid spousal support for an equivalent of the period of time they cohabited. In the further alternative, she suggests a stepped down approach over that same or other period.

[61] Matuzic’s position is that he has paid spousal support long enough. He has been paying spousal support since 2012 which is more than enough time for Richardson to find employment or to obtain the training necessary to facilitate new employment. He should not be held financially responsible for her decision not to work. If she wants money to be able to buy things for her grandchildren and others, she should earn that money the same as everyone else.

[62] In the alternative, Matuzic seeks to fix an end date for the payment of spousal support and to reduce the amount of payable in light of his pending retirement. He proposes a step down approach over a limited period of time which is more than sufficient to allow Richardson to find new employment or to be retrained to get new employment.

[63] The first question to be determined is whether there has been a material change in circumstances between the parties since the Order of August 23, 2013 as it relates it to spousal support as argued by Richardson. The increase in Matuzic’s income in 2013 as compared to 2012 is very modest. In my view, it attracts no finding of a material change in circumstances.

[64] In 2014, Matuzic’s income increased by $23,000 over that in 2013 which, at first blush, may seem a significant increase but is not when one considers that he was bearing substantially all of the costs for Sarah’s care. Likewise, the increase in 2015 (principally CPP pension) is offset significantly by the extraordinary expenses associated with Sarah’s attendance in post-secondary education which are being entirely funded by Matuzic. He seeks no contribution to those expenses from Richardson.

[65] I find that as of the date of trial, there has been no material change in circumstances between the parties to justify a variation in the spousal support order made August 23, 2013. I deny Richardson’s cross-motion to increase spousal support.

[66] I agree with the submissions made by counsel for Matuzic that Richardson has had ample time to find new employment or to seek retraining for new employment. I do not accept that this is a situation of compensatory spousal support. Richardson did not sacrifice her ambitions or her educational/ career path to further Matuzic’s career. She never wished to work outside the home. Likewise, this is not a case where one can reasonably say that her efforts assisted him in the progression of his career. He was a shift worker at Nova Chemicals when they met and would have continued to be a shift worker but for Sarah coming to live with him and his desire to be more available to her. Nevertheless, in my view there is an obligation on Matuzic to continue paying support to Richardson given the length of their period of cohabitation.

[67] In the circumstances, I order as follows:

1. Matuzic shall continue to pay to Richardson the sum of $2400 monthly(subject to adjustment for repayment of child support as above) as provided in the Order of Justice Donahue dated August 23, 2013 until the earlier of (i) Matuzic’s retirement from Nova Chemicals which will be on or after April 30, 2016, or (ii) his death. If he retires before April 30, 2016, he will continue to pay $2400 per month until April 30, 2016;

2. Matuzic shall provide to Richardson through her counsel a copy of any notice given to Nova Chemicals of his intention to retire within 10 days of that notice;

3. Matuzic shall notify Richardson through her counsel of any new employment he obtains following his retirement including, but not limited to, any consulting positions he may obtain, and shall do so within 10 days of the commencement of such new employment;

4. Upon his retirement from Nova Chemicals, Matuzic shall pay spousal support to Richardson in the amount of $1,000 monthly commencing on the first day of the month immediately following his retirement which monies will be taxable as income to Richardson;

5. In the event that Matuzic obtains other employment after his retirement from Nova Chemicals, he will pay to Richardson 20% of the income derived from that other employment, which monies will be taxable as income to Richardson;

6. Matuzic’s obligation to pay any spousal support to Richardson shall cease in its entirety on December 31, 2018.

[68] The intent of my order as it relates to spousal support is to balance, inter alia, the period of cohabitation, Matuzic’s stated desire to retire with the attendant reduction in income, Richardson’s needs and circumstances, Richardson’s ability to pursue employment to generate her own income and the length of time within which one would reasonably expect that Richardson should be able to obtain economic self-sufficiency. In reducing spousal support I have also considered that Matuzic has borne the bulk of Sarah’s section 7 expenses and undertook to fund her education when he testified. Accordingly, it is a term of my order that Justice Donohue’s Order dated August 23, 2013 be varied such that the obligation to pay section 7 expenses rests entirely with Matuzic.

[69] On the facts of this case, Richardson is not entitled to expect Matuzic to continue to pay spousal support forever, nor to provide her with the means to live the lifestyle that she would like to live. I note that Richardson owns the property at 714 Ernest Street which is unsecured by any mortgage debt. She owes her sister and her mother approximately $53,000 combined. She lives beyond her means.

UTILITY ARREARS

[70] Finally, Richardson admitted in cross-examination that she incurred of the utility arrears and should reimburse Matuzic for same. I am at a loss to understand why this was an issue for trial once it was known that Matuzic paid utilities for her home after his interest in the property had been transferred to her pursuant to the Minutes of Settlement. Why Richardson might think that Matuzic should be responsible to pay her expenses beyond what was provided for in their agreement is baffling. She appeared to only reluctantly come to accept her responsibility in this regard. I order that she repay to Matuzic the sum of $1474.54 for utility arrears, payable forthwith.

CONCLUSION

[71] In summary, I order as follows:

1. The Order of Justice Garson dated July 8, 2014 shall be maintained as it relates to the suspension of child support payable by Matuzic between December 2012 and April 30, 2014.

2. The Order of Justice Donohue dated August 23, 2013 shall be varied as follows:

(i) Matuzic shall pay no child support to Richardson on or after May 1, 2014;

(ii) Richardson shall repay to Matuzic any child support received by her on or after May 1, 2014;

(iii) In the event she cannot repay the full amount payable to Matuzic, spousal support shall be reduced by 50% until such date as the amount has been repaid in full;

(iv) Subject to (iii) preceeding, Matuzic shall continue to pay spousal support to Richardson in the amount of $2400 until the earlier of (i) Matuzic’s retirement from Nova Chemicals which will be on or after April 30, 2016, or (ii) his death. If he retires before April 30, 2016, he will continue to pay $2400 per month until April 30, 2016;

(v) Matuzic shall provide to Richardson through her counsel a copy of any notice given to Nova Chemicals of his intention to retire within 10 days of the notice;

(vi) Matuzic shall notify Richardson through her counsel of any new employment he obtains following his retirement including, but not limited to, any consulting positions he may obtain, and shall do so within 10 days of the commencement of such new employment;

(vii) Upon Matuzic’s retirement from Nova Chemicals, Matuzic shall pay to Richardson spousal support in the amount of $1,000 monthly commencing on the first day of the month immediately following his retirement which monies will be taxable as income to Richardson;

(viii) In the event Matuzic obtains other employment after his retirement from Nova Chemicals, he will pay to Richardson 20% of the income derived from that other employment, which monies will be taxable as income to Richardson;

(ix) Matuzic’s obligation to pay spousal support to Richardson shall cease in its entirety on December 31, 2018; and,

(x) Richardson shall have no further obligation to contribute to section 7 expenses for Sarah which shall be borne by Matuzic.

3. Richardson’s cross-motion is dismissed.

4. Richardson shall pay forthwith to Matuzic the sum of $1,474.54 on account of utility arrears paid by Matuzic.

[72] If the parties cannot agree on costs, they may make written submissions not to exceed 5 pages within 15 days.

“Justice Raikes”

The Honourable Mr. Justice Russell Raikes

Released: September 17, 2015

COURT FILE NO.: 35/38/012530/09

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

IRENE ELLEN RICHARDSON

Applicant

– and –

JOSEPH PAUL MATUZIC

Respondent

REASONS FOR JUDGMENT

RAIKES, J.

Released: September 17, 2015