Stocco v. Simity, 2016 ONSC 4048
COURT FILE NO.: D25233/15
DATE: 2016-06-17
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Toni Anne Stocco, Applicant
AND: John Steve Simity, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Robert Charko for the Applicant; Mark Greenstein for the Respondent
HEARD: June 17, 2016 at Welland
ENDORSEMENT
[1] The parties married in 1979 and separated in 2010. Their child had grown up. They are both in their late 50’s. In January 2016 the Applicant applied for a divorce and spousal support. The divorce has since been granted. This decision deals with the application for spousal support.
[2] The Respondent has been paying spousal support at a rate of $209 a month since the execution of a separation agreement on May 11, 2011. The agreement provides for a change in spousal support as follows.
3.5 Toni’s entitlement to spousal support shall be reviewed no earlier than March 1, 2014. …
3.6 Spousal support may be changed if there is a material change in circumstances. The change may be:
In either party’s financial position,
John passing his certificate of qualification exam as a millwright. John has a positive obligation to inform Toni when he has attained his millwright qualification,
John’s retirement, (unless his income exceeds $43,200 annually),
In either party’s health which impacts on their ability to earn an income,
Toni’s remarriage, or
Toni’s cohabitation with another person in a relationship resembling marriage for more than three years,
Or any other similar change.
[3] At the time of the agreement the Respondent was earning $43,200 a year as a millwright’s apprentice. The Applicant was making $30,000. The parties contemplated that the Respondent would become a journeyman millwright and move to the Toronto area for work. On equalization both parties left the marriage with a small amount of debt.
[4] The Applicant has consistently made in the neighbourhood of $46,000 a year since separation. The Respondent’s income was about $74,000 in 2014 and $86,000 in 2015. He earned a lot of overtime in 2015 which he does not expect to repeat. He anticipates that his 2016 income will be about $70,000.
[5] The Applicant has filed evidence of the Respondent’s income for every year since 2011. It is submitted on her behalf that spousal support should be adjusted, year by year, and set at an amount in accordance with the Spousal Support Advisory Guidelines, resulting in a retroactive award of $15,812 to October 2015, and ongoing support thereafter at a rate of $1,099 a month.
[6] The Respondent submits that there has been no material change in circumstance because
a. the millwright’s ticket and move to Toronto were contemplated at the time of separation,
b. there has been no change in either party’s financial position, and
c. the Respondent lacks the means to pay increased spousal support.
[7] I start by observing that I am not varying an order for spousal support under s.17 of the Divorce Act. I am deciding an original application for spousal support that is the subject matter of a valid separation agreement. I interpret paragraph 3.5 of the agreement to mean that the parties intended that the Applicant would be entitled to spousal support in the amount of $209 a month until March 1, 2014 no matter what. I interpret paragraph 3.6 to mean that any time after March 1, 2014 either party could take steps to change entitlement or quantum of spousal support if one of seven conditions obtained. At least one admittedly obtains: the Respondent got his millwright’s ticket. Accordingly, the Applicant is entitled under the agreement to ask for a change in spousal support.
[8] The agreement uses the term “material change in circumstance,” but it defines that term as one of seven types of change. Accordingly the Applicant’s right to revisit spousal support (at least the first time) depends on one of those changes having occurred. It is not a question of whether a material change in circumstances has occurred within the meaning of subsection 17(4) of the Divorce Act. It does not matter that the change was foreseen. On the contrary, the parties agreed that the contemplated change could trigger a change to spousal support. The particular change, an increased professional qualification, would normally result in an increase in the Respondent’s income, so I think the parties expected that the Applicant would be entitled to ask for an increase.
[9] On the other hand the agreement expressly prohibits a change before March 2014. The Respondent’s earnings from 2011 to 2014 are irrelevant. I cannot give effect to the demand for retroactive support.
[10] With respect to subsequent years, it is not a question of reviewing the parties’ respective incomes year by year and plugging the numbers into the SSAG’s. Parties who pay and receive child support expect that it will be adjusted yearly. The same cannot be said with respect to spousal support. I think that it is a question of examining the means, needs and conditions of the parties in the context of the factors mentioned in s.15.2 of the Divorce Act and the terms of the separation agreement. I do not propose to make any order retroactive to the date of the application.
[11] Ongoing entitlement to spousal support is not questioned by the parties. The question is the amount.
[12] I start with the amount agreed and the respective circumstances of the parties at the time of separation. Since then the Applicant’s financial position has not changed significantly. The Respondent, on the other hand, earns more than half again as much as he was earning at the time of separation. His net worth is still a negative number, in fact a much bigger negative number than before. Most of that is attributable to his choice of lifestyle. He spends more than he brings in. I do not think that the Applicant is required in effect to subsidize that.
[13] The Respondent submits that only a tiny portion of the increase in salary is due to his advance in qualifications. The real reason for the increase is the move to Toronto, where salaries are greater because the cost of living is higher. I do not think that it matters. Getting the journeyman’s ticket triggered the review. Quantum of support depends on other considerations. The increase in salary is important.
[14] In any event the Respondent now commutes from outside the GTA. However, I do not doubt that the cost of commuting is significant, and I think it appropriate to take it into account when determining spousal support.
[15] The Respondent also submits that he has no ability to pay increased spousal support. Again, that is only because of choices he has made. Looking at the parties’ respective means, needs and conditions and using the SSAG’s as a guide, keeping in mind the cost of commuting I think it appropriate to choose a number at the low end of the range. I fix spousal support at $600 a month, commencing January 1, 2016. A support deduction order will issue. The Respondent is to be given credit for payments of $209 a month made from January 1 to June 1, 2016.
[16] The Applicant was successful in obtaining a substantial increase in spousal support. The Respondent was successful in resisting a retroactive award that, to my mind, was not reasonably available on the clear words of the agreement. In the circumstances there will be no order as to costs.
J.A. Ramsay J.
Date: 2016-06-17