CITATION: Moul v. Moul, 2016 ONSC 4758
COURT FILE NO.: FC-06-2757-1
DATE: 2016/07/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Thomas Moul, Applicant
AND
Aileen Moul, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Karen Hogan, for the Applicant
Hania E. Grabowski, for the Respondent
HEARD IN OTTAWA: June 14, 2016
ENDORSEMENT
Overview
[1] This is a Motion to Change a Final Order of spousal support under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”).
[2] The Applicant husband seeks to vary and terminate spousal support as of July 1, 2015 as a result of his retirement from his consulting business due to illness, namely Post Traumatic Stress Disorder (“PTSD”).
[3] The Respondent wife also suffers from PTSD and, since separation, has not succeeded in becoming financially independent.
[4] For the reasons which follow, I have concluded that the Applicant’s medical condition represents a material change in circumstances which warrants a variation of spousal support. However, I am not satisfied that the Applicant was justified in choosing to retire and pursue unremunerated work in a business venture with his new wife. Spousal support should not terminate but should continue, indefinitely, payable on the basis of imputed income to the Applicant of $40,000 per annum and imputed income to the Respondent of $15,000 per annum. Further, the quantum of spousal support should be set at the higher end of the range given the Respondent’s ongoing compensatory and non-compensatory entitlement to spousal support. Spousal support should be payable in the amount of $900.00 per month commencing January 1, 2016.
Background
[5] The parties married in Zimbabwe on April 5, 1980 and separated in Ontario in May 2004 after a 24 year marriage. At the time of separation, the Applicant was 46 years of age and the Respondent was 48 years of age.
[6] There were three children born of the marriage, namely Theresa-Ann Moul, born on October 20, 1980 (now 35 years of age), Caroline Louise Moul, born on July 16, 1982 (now 32 years of age) and Michael Thomas Moul, born on March 27, 1985 (now 30 years of age).
[7] The Applicant worked as a teenager in the military in Zimbabwe and then as part of the Army Pay Corp to begin his career in accounting. From 1982 to 1986, the Applicant worked as an accountant in Zimbabwe. In 1986 the parties moved to South Africa and the applicant continued working in various positions associated with finance. In 1997, the parties relocated with the three children to Canada and the Applicant worked as a Senior Manager with KPMG (formerly Ernst & Young).
[8] The Respondent worked full-time prior to the marriage with Barclays Bank in Zimbabwe and then continued working both full-time and part-time in the banking field from 1980 to 1996 with some periods of unemployment while the children were younger. When the parties relocated to Canada, the Respondent worked in a series of short term positions from 2001 to 2004 at which time she ceased working as a result of a mental breakdown. In 2007, the Respondent became self-employed as a virtual administrator, a business she continues to operate.
[9] In 2004, by way of an order of Justice Murray, the Applicant was to pay both child and spousal support with spousal support being subject to review in 2005 and annually thereafter. The Order of Justice Murray also required the Respondent to make reasonable efforts to find employment and to provide proof of her efforts annually.
[10] In 2007, the parties entered into Minutes of Settlement and the Order of Justice Murray was varied by the Order of Justice de Sousa dated September 12, 2007, which is the subject of this motion to vary (the “2007 Order”). The 2007 Order provided that child support would terminate and that spousal support of $2,500 per month was payable on a without prejudice basis and that either party could return to court after October 1, 2009 to have the court decide the appropriate amount.
Applicant’s Circumstances
[11] At the time of separation, the Applicant had been employed by Ernst & Young as a Management Consultant / Accountant and was earning between $120,000 and $130,000. He voluntarily terminated his employment with Ernst & Young shortly after separation.
[12] The Applicant remarried in 2007 with Janet Catherine Mackenzie (now Janet Moul).
[13] The Applicant’s consulting company MacMoul Inc. was incorporated on July 27, 2004. The Applicant and Janet Moul are the sole Directors and the Applicant owns 70% of the shares with Janet Moul owning 30%. The Applicant’s income has decreased since leaving Ernst & Young. Since 2012, he has reported the following income from his consulting business:
2012 - $88,000 (excludes farm loss);
2013 - $77,000 (excludes farm loss);
2014 - $77,000 (excludes farm loss);
2015 - $42,000 (excludes farm loss).
[14] In 2007, the Applicant and Janet Moul started a vineyard and winery. From 2007 to 2015, the Applicant was working 4 days per week consulting with MacMoul Inc. and working Friday, Saturday and Sunday managing and operating the vineyard and winery.
[15] In operating the vineyard and winery, two entities were created. Jabulani Farms and Vineyard is a partnership owned 50/50 by the Applicant and Janet Moul that grows the grapes which are sold to the winery. Jabulani Vineyard & Winery Ltd. is the corporate entity which operates the winery. Janet Moul is the sole shareholder and Director of the corporate entity. The Applicant is identified as “Officer/Manager in Ontario”.
[16] The Applicant maintains that the vineyard does not make any profit and that the objective is for this entity to break even. The winery is solely owned by Janet Moul as she invested her own funds into this business. Both businesses operate principally from the efforts of volunteers who assist in the growing of grapes and making of wine.
[17] On April 8, 2014, the Applicant advised the Respondent that he would be retiring from his consulting business with MacMoul Inc. in March 2015 as a result of PTSD from his time spent in the military during the civil war in Zimbabwe. His retirement was confirmed effective June 30, 2015.
[18] The Applicant’s decision to retire at age 54 is supported by his medical professionals. The most relevant is the opinion of Dr. Irwin Pencer who treats the Applicant for his PTSD. In his February 18, 2016 report, Dr. Pencer opines:
The Applicant’s “retirement has afforded him the opportunity to best deal with fatigue as he can rest during the day as needed. The PTSD, though not resolved, is being managed better under the current arrangement. I continue to support his current retirement status”.
[19] In an undated report, Dr. Pencer opines:
In regard to the continuing effects of PTSD, though alleviated to some extent through the treatment process, continued sleep disturbance, stress of the workplace given the intensity of his consulting contracts and personal lifestyle preferences, I fully support Mr. Moul’s current plans to retire from his consulting position effective April, 2015 as he now plans. He will continue to work at his farm and be able to control his energy level better in this work environment. His overall quality of life would be favourably affected by this lifestyle.
[20] In September 2015, the Applicant’s family doctor Dr. Andrew Kujavsky opined that the Applicant continues to suffer from PTSD and “is unable to work at the moment”.
[21] The Applicant states that he cannot continue working as a consultant. He wakes up with nightmares, reliving the war. He is exhausted much of the time and was required to stop working to be able to enjoy some quality of life. During the daytime, the Applicant has two to three naps, for a total of at least two to three hours. Otherwise, he will fall asleep wherever he is.
[22] The Applicant states that he did not make the decision to retire lightly; however, his health required him to stop working. Before retiring, he wrote to the children to ask for their opinions as this was suggested to him by his PTSD specialist.
[23] MacMoul Inc. is a consulting business which was operated by both the Applicant and Janet Moul. Since the Applicant’s retirement, Janet Moul has continued to work as a consultant and has continued to receive a salary. In 2015, she was paid $90,000 in salary.
[24] The Applicant ceased paying spousal support as of April 2016.
[25] The evidence as to the Applicant’s involvement in the vineyard and winery is conflicting. He claims that his involvement is limited to directing students and volunteers and otherwise there is limited work to be done either for the vineyard or the winery. However, the evidence suggests that the Applicant is one of the public faces of the winery for marketing purposes and that he is active in most areas of the business. As stated by one of the Applicant’s affiants: “My observation is that she (Janet) is at least as involved as Tom”.
[26] The Applicant states that working at the vineyard and winery is a hobby. Managing the vineyard consists of instructing student workers for less than 15 minutes in the morning for 4-5 months of the year. This takes place up to 5 days per week, weather permitting. Further, he states that there is no work to be done for the vineyard between mid-September and the pruning, which takes place between late-April and early-June, depending on the weather. With respect to the winery, the Applicant states that it also takes up little time. During the off-season, there is less than an hour a week on average of work, shared between the Applicant, Janet Moul, and volunteers.
[27] The Applicant explains that since Janet has made all the financial investments in the winery, she is the sole owner. The winery and vineyard are not money makers. The winery is only open on weekends for a few months of the summer and for two weekends before Christmas.
[28] Conversely, the Respondent provided a number of internet links which suggest that the Applicant plays a larger role in the winery as either an owner or wine maker.
[29] In recent years, the winery has constructed a barn. The Applicant states he spent several months involved in its construction. The financial statements of the winery suggest that this business is more than a simple hobby that is not intended to make money. Since 2010, the assets have increased from $51,235 to $619,939.97 in 2015. Likewise, debts have increased from $62,133.11 in 2010 to $565,077.64 in 2015.
[30] The Applicant has applied for CPP disability benefits but as of the date of the Motion to Change, no response had been received.
Respondent’s Circumstances
[31] The Respondent’s evidence is that she has suffered from PTSD since the late 1980s. She relies on the reports of Dr. Magdy Gibara from 2011, 2013 and 2015 in support of her position that she needs to work from home and cannot work full-time. She also suffers from major depression disorder. However, I was not directed to evidence of ongoing treatment.
[32] The Respondent has not succeeded in becoming financially independent following the separation. She has worked as an independent contractor since 2007, but has relied on spousal support as her main source of income.
[33] Since 2012, the Respondent has reported the following income, which includes spousal support:
2012 - $45,031;
2013 - $37,628;
2014 - $32,689;
2015 - $34,048.
[34] More recently, the Respondent has spent long periods of time caring for her parents in South Africa who are of poor health. While her mother died in December 2015, she continues to reside in Africa to care for her father.
[35] She indicates that the type of work she does can be performed from Africa and that it does not require her to be present in Ottawa. In 2015, after spending time in Africa, she claimed total income from her business of approximately $4500.
[36] In 2007, the Respondent applied for CPP disability benefits and her application was dismissed. Since then, the Respondent has not re-applied for CPP disability benefits.
Position of the Parties
[37] The Applicant commenced the current Motion to Change in April, 2015. He has not worked since June 2015 following his retirement. He seeks the termination of spousal support effective July 1, 2015, along with his obligation to maintain insurance.
[38] The Applicant further states that the Respondent is underemployed and that she has made a choice to remain in South Africa with her father rather than return to Canada. The Applicant states that income should be imputed to the Respondent based on her minimal attempts to develop her virtual administrator business. Her diagnosis is that she should work part-time and should work from home; however, she has not demonstrated efforts to become even partially financially independent within those parameters.
[39] With respect to the vineyard and winery, the Applicant states these are hobbies which do not generate profit and for which he contributes minimal time and effort.
[40] The Respondent does not accept the legitimacy of the Applicant’s decision to retire. She states that he has simply changed his work from consulting to working for the vineyard and winery. She states that his role in the vineyard and winery is a significant one, as a co-owner, and that his failure to be shown as a shareholder of the winery is simply an attempt to divert income to his spouse Janet Moul. The Respondent states that Janet Moul should be added as a party to this Motion to Change.
[41] The Respondent states that income should be imputed to the Applicant as he has chosen to become underemployed with the vineyard and winery. Further, these businesses are clearly more than a hobby when considering the considerable investments which have been made to grow the business.
[42] The Respondent states that she is justifiably fully dependent on spousal support to live and that she has done what she can, given her medical condition, to earn income through her transcription business.
Analysis
[43] As to the applicable law on an application to vary spousal support under the Divorce Act, I follow the analysis of Shelston J. in Nye v. Nye, 2016 ONSC 3905.
[44] Section 17(1)(a) of the Divorce Act provides that a court may make an order varying, rescinding or suspending, prospectively or retroactively, a support order or any provision thereof on application by either or both former spouses.
[45] Section 17(4.1) of the Divorce Act states that before a 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 or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
[46] Section 17(7) of the Divorce Act states that a variation order varying a spousal support order should:
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[47] In Chalmers v. Chalmers, 2009 BCSC 517, at para. 21, Justice Bruce summarized the principles to be applied in determining whether the threshold “change in the condition, means, needs or other circumstances of either former spouse” is satisfied, which were first set out in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, and L.G. v. G.B., 1995 65 (SCC), [1995] 3 S.C.R. 370, as follows:
(a) The change must be a material one; such that if known at the time it would have likely resulted in a different order;
(b) What is a material change will in each case be determined on the particular facts. The court should not endeavour to divide into categories those changes that are material and those that fail to satisfy this standard;
(c) What is a sufficient change must be measured against the parties’ overall financial situation;
(d) The fact that a change was objectively foreseeable does not mean that it was contemplated by the parties and forms part of the underlying basis for the original order; and
(e) The onus rests with the applicant to prove a material change in the condition, means, needs or other circumstances warranting a review of spousal support; however, the court should maintain a flexible approach to the exercise of this discretion to ensure all of the relevant facts in a given case are considered.
[48] The issue of retirement as a material change in circumstance in applications to vary spousal support has recently been reviewed by two Divisional Court decisions in the province of Ontario. Firstly, in Cossette v. Cossette, 2015 ONSC 2678 (Div. Ct.), 58 R.F.L. (7th) 12, the Divisional Court held at para. 13:
Given this, and other factual findings made by the motions judge, we agree with his conclusion that retirement was not a material change. Parties cannot sidestep support obligations by unilaterally deciding to leave the workforce: As stated in Bullock v Bullock, 2004 16949 (ON SC), 2004 16949 at para 13: “A support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations”.
[49] The court in Cossette held at para. 14:
This is not to say that voluntary retirement can never constitute a material change in circumstances. Every case must be determined on its own facts, with consideration of all relevant factors, including the language of settlement documents. In this case, the minutes of settlement were silent on the issue of retirement. It would be beneficial for parties to turn their minds to this eventuality when crafting terms of resolution. We adopt the comments of Bullock v. Bullock at para 1:
Does withdrawal from the workforce at age 62 qualify as a “material change of circumstances” justifying variation of spousal support? While every case must be looked at on the basis of the unique circumstances of the parties, as a general proposition, a payor of spousal support should make his or her retirement plans on the basis that support will continue until aggregate retirement savings can be expected to keep both former spouses at reasonable standards of living. Otherwise, our regime of spousal support will tend to leave payee spouses in positions of financial need, often dire need, at a time in their lives when they cannot take meaningful steps to ameliorate their own condition.
[50] Secondly, in Hickey v. Princ, 2015 ONSC 5596 (Div. Ct.), 127 O.R. (3d) 356, the Divisional Court set out a two-step process for dealing with variations of spousal support, at para. 50:
This mandates a two-step process, as described in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.) and Droit de la famille – 091889, 2011 SCC 64, [2011] 3 S.C.R 775 (S.C.C). First, the court must consider whether the conditions for variation exist, i.e. whether there has been a change in the condition, means, needs or other circumstances of either former spouse since the order was made. The change must be “material”, meaning that it must be a change that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The onus of proving a material change is on the party seeking variation. Once the court decides that the threshold for variation has been met, the court must decide on the variation to be made in view of the change, based on the objectives set out in s. 17(7) of the Act.
[51] In Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, the Court of Appeal stated, at para. 39:
Turning to those issues, to ascertain whether a change in circumstances has occurred, a court must consider whether the change advanced was “material”—meaning a change that, “if known at the time, would likely have resulted in different terms”—and a change with some degree of continuity, and not merely a temporary set of circumstances: L.M.P., at paras. 32 and 35. A material change in the financial means or circumstances of a payor can constitute a change in circumstances for the purposes of a motion to change child or spousal support: Federal Child Support Guidelines, s. 14(a); Divorce Act, s 17(4.1).
i) Material Change in Circumstance
[52] While the 2007 Order states that the payment of spousal support is “without prejudice”, it does not specify to what this applies. Was the intent to exclude the provisions of the Divorce Act and not require a material change in circumstance? If this was the case, it was not set out clearly and I am not prepared to interpret it in such a fashion. Consequently, the test for a variation under the Divorce Act continues to apply.
[53] I am of the view that the Applicant has satisfied the first step in the analysis by demonstrating that his medical condition, namely suffering of PTSD, represents a material change in circumstance which has caused the Applicant to cease his full-time consulting work with MacMoul Inc.. The medical opinions of both Drs. Pencer and Kujavsky establish that he is no longer able to perform the duties which earned him consulting income in the range of $77,000 to $88,000 per annum from 2011 to 2014.
[54] In coming to this conclusion, I am mindful of the criteria set out in Chalmers which I apply as follows:
(a) Had the impact of the Applicant’s PTSD on his life been known at the time of Justice Da Sousa’s 2007 Order, the result would have been different.
(b) The Applicant has been treated for PTSD since 2014 and the extent to which the PTSD has impacted the Applicant’s life was not reasonably foreseeable back in 2007;
(c) Here, it is not the retirement which results in a material change in circumstance. The Applicant is 56 years of age. The parties were married for 24 years and the Applicant has paid spousal support for less than 11 years. In normal circumstances, the analysis in Cossette would certainly merit taking a close look at the reasons for which the Applicant has retired from MacMoul Inc.. The change in circumstance is brought about by his medical condition of PTSD and how this impacts the Applicant’s ability to work full-time. The medical evidence supports a conclusion that he is no longer able to do the type of work which remunerated him with the previous consistent salary in the range of $80,000 per annum on a full-time basis;
(d) The medical evidence presented as part of this motion leads to the conclusion that the impact of the Applicant’s inability to earn the type of income he did in previous years is clearly material.
[55] I am also mindful of the following:
(a) that the Applicant planned his retirement about a year in advance;
(b) that at least, to a certain extent, his spousal support obligation to the Respondent was a source of stress for the Applicant;
(c) that the Applicant decided to stop working all together and made no attempts to modify his working conditions or seek employment that may allow him to rest during the day; and,
(d) that for some strange reason, the Applicant has an equity interest in the vineyard and not in the winery.
[56] These factors raise some doubt in my mind as to whether the Applicant may be looking to sidestep his support obligations. However, when considering the evidence as a whole, I am persuaded on a balance of probabilities by the medical evidence of Dr. Pencer that the Applicant was required to retire from his full-time consulting work with MacMoul Inc. and that he is not looking to sidestep his spousal support obligations. The above factors are relevant for the first step of the analysis but will also be relevant when considering the variation and how the Applicant has chosen to spend his time since his retirement.
ii) Variation of the Quantum of Spousal Support
[57] Neither the Applicant nor the Respondent has satisfied me that they have taken the necessary steps to make reasonable adjustments to their lives and maximize their incomes within the confines of their respective medical diagnosis.
[58] While the Applicant met the onus of demonstrating a material change of circumstance, which justified his decision to stop working as a full-time consultant for MacMoul Inc., I am not satisfied that this required him to retire completely. Further, the evidence suggests that he has not retired, he has simply chosen to devote much of his available time and energy to work within two businesses which provide him no income.
[59] While I am mindful of Dr. Kujavsky’s opinion that the Applicant “is unable to work at the moment”, I am much more persuaded by the opinions of Dr. Pencer who does not come to that conclusion.
[60] The Applicant has attempted to minimize his role in both the vineyard and winery and has described these businesses as hobby. However, this is in direct conflict with the significant financial investments which have been put in the winery. The Applicant is clearly spending time working, managing and marketing the winery, a business for which he holds no equitable interest and does not receive an income. He contends that this is because Janet Moul has made all the financial investments for the winery. However, it is not uncommon in small businesses for contributions from shareholders to differ. Loans from shareholders and different classes of shares can be used to protect one shareholder’s financial contributions.
[61] The Applicant failed to explore any alternative form of remunerative work and chose to fully retire at 54 years of age. The evidence further suggests that the Applicant continues to spend time working with the vineyard and winery. His contribution is described “as equal to the time spent by Janet Moul”. I thereby conclude that the Applicant is underemployed.
[62] A similar conclusion of underemployment can be made for the Respondent. Since separation, she has used the spousal support as her principal source of income. She has not obtained full-time employment and, in the context of her medical evidence, she has not demonstrated reasonable efforts to maximize her revenues within her limits of not being able to work full-time and in having to work from home. Her virtual assistant business should have afforded her the opportunity make more revenue than she has reported. Further, she has voluntarily remained out of the workforce by returning to South Africa to care for her parents and choosing to remain there. I am not satisfied that she has made efforts to work in her business from South Africa although she claims to be able to do so.
[63] The evidence leads me to conclude that the Respondent has made no reasonable efforts to market her business in recent years. She has the benefit of business expenses to reduce her taxable income; however, she has not demonstrated efforts to increase revenues.
[64] My conclusions that both parties are underemployed require that I then consider what impact this should have on the variation to the quantum of spousal support. The Court of Appeal has been clear in its direction that the process of imputing income requires an evidentiary basis. In Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 45, Gillese J.A. reviewed the factors to be considered in imputing income to a parent who is intentionally underemployed or unemployed:
When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.
[65] In D.L.M. v. J.A.M., 2008 NBCA 2, 326 N.B.R. (2d) 111, the Court dealt with the issue of imputation of income to an underemployed spouse when it stated:
Section 19(1) of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse “as it considers appropriate in the circumstances,” which circumstances include nine defined situations. The defined situations are not an exhaustive list and the section gives the court a significant amount of discretion in imputing income […]. [Para.30]
[66] When determining whether an income can be imputed to a spouse, the courts must consider the context as well as such factors as the age, education, experience, skills and health of the underemployed spouse.
[67] In the Applicant’s circumstances, he has been treated for PTSD since 2014. His doctors advise that it has a significant impact on his sleep, resulting in a need to take naps during the day. Dr. Pencer supports his decision to retire from his previous employment. He does not opine on the Applicant’s ability to do the same consulting work on a part-time basis. The Applicant has chosen to go from full time work to non-remunerated work while spending time and energy on the vineyard and the winery. He has not provided any evidence of his inability to work part-time. He is a qualified accountant and, as a consultant, should have the ability to manage his workload and accommodate his need to rest at times during the day. I am of the view that the Applicant should have made efforts to seek alternate forms of remunerated work or at least scale back his work with MacMoul Inc. to accommodate his physical and psychological limitations. The evidence does not satisfy me that he could not have done so. Dr. Pencer did not opine on the Applicant’s ability to work part-time within MacMoul Inc. or in some other form of remunerated work. To the contrary, Dr. Pencer endorsed the Applicant’s intention to continue to work at his farm and be able to control his energy level better in this work environment.
[68] I am of the view that the Applicant is still a young man at 56 years of age and the evidence of his involvement in the vineyard and winery demonstrates that he is clearly able to do some work. He is qualified to work as an accountant and I am not satisfied that there is no other work that he could do that would not require him to work full-time. As such, I conclude that the Applicant is able to work the equivalent of half-time that which he was working with MacMoul Inc. Considering that the Applicant earned approximately $80,000 per year from 2012 to 2014 and that this rate was similar for 2015 (prorated for an entire year), I therefore impute income to the Applicant of $40,000 per annum.
[69] As for the Respondent, the evidence concerning her age, education, experience, skills and health is not as clear. Her participation in the workforce has been inconsistent over the years and particularly since the parties moved to Canada. During the years following their arrival in Canada, the Respondent did not work. This continued until the date of separation with the exception of two short term jobs. Given her role as primary caregiver, the Respondent has established an entitlement to spousal support on both a compensatory and non-compensatory basis following a 24 year marriage.
[70] Since separation, the Respondent’s efforts to make ITranscribe Virtual Administrative Services a viable business are not evident. While the medical evidence suggests a need to work from home and an inability to work full-time, this does not justify the minimal employment income earned by the Respondent since 2012. She has gone so far as to take down her website and her LinkedIN profile. She is also young enough to pursue remunerated work, but has failed to demonstrate any efforts to seek other employment which may provide more income. During the past four years from 2012 to 2015, the Respondent’s income (after deducting spousal support of $30,000 per annum) has averaged roughly $7,500. This is impacted by the fact that she did not work for the final two months of 2015 while her parents were sick and she returned to South Africa. Her business has the ability to generate more income, as it has done in the past. In the alternative, she should be looking for other remunerated work.
[71] I thereby conclude that the Respondent shall have income imputed to her pursuant to section 19(1)(a) of the Child Support Guidelines at the rate of $15,000 per annum.
[72] This leads me to Chapter 9 of the Spousal Support Advisory Guidelines which provide guidance on location within the range. There, we find a non-exclusive list of factors to assist in determining location within the range for both location and duration.
[73] Of particular relevance to these circumstances is the strength of the Respondent’s compensatory claim as she clearly did not have the opportunity to devote herself to her career as the primary caregiver who moved to follow the Applicant’s job opportunities. Further, the Respondent has clearly demonstrated a non-compensatory claim given her need for spousal support and this is even with income of $15,000 having been imputed to her. She has not remarried or repartnered and I accept that but for the assistance of her children, she would be unable to survive on her current income.
[74] Consequently, in these circumstances, and upon considering the objectives of spousal support as set out in paragraph 15.2(6) of the Divorce Act, I am persuaded to fix the entitlement to spousal support at the higher end of the range in light of the existing compensatory and non-compensatory entitlement of the Respondent. Spousal support is therefore fixed in the amount of $900 per month.
[75] Finally, with respect to the effective date of this variation to spousal support, it must be acknowledged that the Applicant continued to pay spousal support until March 2016 despite the Respondent having moved out of her apartment and being away in South Africa since November 2015. There is no evidence as to the Respondent’s ongoing need for spousal support while in South Africa. At the same time, the Applicant was aware of his intention to retire in 2014 when he first gave notice and did not commence this application until after his retirement.
[76] When considering the retroactive nature of this award, the law on retroactive awards was restated in Kerr v. Baranow, 2011 SCC 10. In considering the applicable factors, I note that the Applicant gave advance notice of his pending retirement and I am not in a position to make any finding of blameworthy conduct. I find that it would be inappropriate to leave the Respondent with a large overpayment of spousal support and that her circumstances warrant against an order which is retroactive to the date of retirement. This would clearly cause hardship to the Respondent. Consequently, I order that the variation shall take effect on January 1, 2016 which in my view attains a balanced result.
iii) Insurance for Spousal Support
[77] The Applicant seeks to terminate his obligation to maintain life insurance of $250,000. This amount was set in 2004 at the time of separation.
[78] Given the age of the parties and the reduction in spousal support as set out herein, I agree that it is appropriate to have the life insurance reduced proportionately. The Applicant’s spousal support obligation has been reduced from $2,500 per month to $900 per month. Accordingly, the obligation to maintain a life insurance policy of $250,000 shall be reduced to $90,000.
[79] With respect to the payment of premiums for health insurance benefits, I see no reason to change this requirement. The Applicant’s spousal support obligation is indefinite and as such, the obligation to pay health insurance benefits should not change simply as a result of the reduction in the amount of monthly spousal support payments.
iv) Respondent’s other claims
[80] While I have expressed some concerns over the decision to have Janet Moul as the sole shareholder of the winery, this does not prevent the Applicant from receiving an income from the winery. There is no evidence to suggest that the Applicant has invested in the winery and that he should have an equitable interest. The Respondent did not strongly advance her claim for a declaration that the Applicant has a beneficial interest in Jabulani Vineyard and Winery Ltd., and the evidence does not in my view justify such a declaration.
[81] With respect to the addition of Janet Moul as a necessary party, the facts of this case do not justify such an order. The case law in this area has established that such an order is warranted in situations where there is evidence of an intention to shelter one party from the claims of another. There are situations where beneficial ownership of significant assets may justify such orders.
[82] However, this remedy should be used sparingly. The prospect of adding new spouses to family litigation will surely add to the adversarial dispute and make this type of litigation even more complex. It is one thing to seek disclosure from a new partner as opposed to seeking an order for support from that new partner. The circumstances of this case simply do not warrant such an order as my findings are based on underemployment rather than the Applicant directing his income to Janet Moul.
[83] Finally, the Respondent sought an order for further disclosure; however, when faced with the need to adjourn the Motion to Change to give effect to such an order, chose not to pursue it.
Conclusion
[84] In the end, the Applicant’s motion to vary spousal support is granted in part. The Respondent’s spousal support obligation shall be reduced to $900.00 per month effective January 1, 2016 together with his obligation to provide insurance which is reduced to $90,000. This obligation continues to be indefinite in duration.
Costs
[85] In the circumstances, I am inclined to make an order of no costs. Success has been divided in the result. However, I am not aware of offers to settle which may influence my decision to award costs to one party. Consequently, if the parties are unable to agree as to costs, the Applicant will have 20 days to provide written costs submissions of a maximum of 5 pages in length excluding attachments. The Respondent will then have 20 days to respond, subject to the same limitations for length of the written submissions.
Mr. Justice Marc R. Labrosse
Date: July/22/2016
CITATION: Moul v. Moul, 2016 ONSC 4758
COURT FILE NO.: FC-06-2757-1
DATE: 2016/07/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Thomas Moul, Applicant
AND
Aileen, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Karen Hogan, for the Applicant
Hania E. Grabowski, for the Respondent
HEARD IN OTTAWA: June 14, 2016
ENDORSEMENT
Labrosse J.
Released: July/22/2016