CITATION: Dulmage v. Dulmage, 2016 ONSC 6849
COURT FILE NO.: FS-15-0265-00
DATE: November 2, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DARLENE ANNE DULMAGE
Applicant
– and –
JAMES EDWARD DULMAGE
Respondent
Jordan Sewell, for the Applicant
Karinda Dockrill, for the Respondent
HEARD: August 2, 2016
RULING ON MOTION
JOHNSTON J.
[1] This is a Motion to Change the Final Order of Justice Byers dated August 31st, 2007; wherein the Respondent Husband was ordered to pay spousal support of $1400 per month. The former Husband argues there has been a material change in circumstance for a variety of reasons, such that the Order should be reviewed and the spousal support should be terminated. The Applicant (responding party to the Motion) argues there has not been a material change in circumstance, or if there has, the support should not be terminated.
[2] For the reasons that follow, I find there has been a material change in circumstance on the basis of change of income of both parties and the early retirement of the moving party. However, I find that the Applicant is entitled to continued support for a period of time: I order support payable by the Respondent to the Applicant in the amount of $700 per month, commencing September 1, 2016 for 12 months, thereafter support is reduced to $1 per year, until the Respondent’s 65th birthday; at which time spousal support shall terminate.
Background
[3] The parties were married on September 21, 1985 and separated June 3, 2005 (almost 20 years). The Respondent is 60 years of age (DOB October 15, 1955). He will be 61 years of age this month. The Applicant is 54 years of age.
[4] There is one child of the marriage, Carly Dulmage, born September 21, 1991. She is an adult and living on her own.
[5] The Respondent worked at Proctor and Gamble for 41 years, since 1975, and retired in July 2016. The Respondent states that he informed his former spouse in February 2015 of his intention to take early retirement from Proctor and Gamble.
[6] The Respondent’s employment income at the time of the Order was $100,000. His retirement income will be $57,620; assuming he does not work anywhere else after retirement.
[7] Both parties have experienced an increase in income since the Final Order. The Respondent earned employment income of $130,000 last year; $153,155 in 2014; $159,706 in 2013 and $132,271 in 2012. Spousal support was never adjusted after the Final Order.
[8] The Applicant earned $35,500 at the time of the Spousal Support Order. In 2015, her income increased to $69,377.
[9] The Respondent remarried and resides with his new spouse, who was also employed, but is also apparently retiring.
[10] The Final Order was made in accordance with comprehensive Minutes of Settlement entered into by the parties at the time. The agreement provided that in addition to spousal support, the Respondent was to pay to the Applicant child support in the amount of $877 per month. It also dealt with net family property equalization, including the Respondent’s employment pension.
[11] The Spousal Support provision included a term: “the spousal support is subject to change in the event of a material change or circumstance.” (paragraph 4 (b))
Issues
[12] The issues to be determined in this motion are:
Has there been a material change in circumstance warranting a review of the Final Order of spousal support;
If there has been a material change in circumstance, what should the Order be moving forward: should support be terminated, continued as is, or reduced?
Does Mr. Dulmage’s early retirement constitute grounds for material change?
The Law
Variation of Spousal Support
[13] The Divorce Act states:
17 (1) a court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) A support order or any provision thereof on application by either or both former spouses.
[14] The Divorce Act provides for the factors to be considered before varying a spousal support order:
- (4.1) 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 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.
17(7) 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) Relive 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.
Position of the Parties
The Respondent
[15] The Respondent argues that he has paid spousal support for over 11 years, the Applicant has a good job and has achieved self-sufficiency. He has retired after 41 years of work at Proctor and Gamble where he is one of the older employees. His health is not good and is a factor in his early retirement. The Respondent argues that to be entitled to continued support she must prove she has continuing need for such support. He says the Applicant’s income is going to be considerably higher now than his. “Her budget shows that she can maintain the home and lifestyle the parties had during the marriage and have a surplus of income, without support.”
[16] The Respondent also argues that his early retirement is not in ‘bad faith’ and not for the purpose of defeating the support Order. Further, the Respondent argues that the decision to retire was reasonable under the circumstance: considering his age, years of service, the fact that most people his age and years of service have already retired.
The Applicant
[17] The Applicant argues there is no material change in circumstance, even if there is; the order should not be terminated. The Applicant argues that self-sufficiency, with its connotation of economic independence is relative. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income. She argues that this was a long term marriage and as such “the longer the relationship endure, the closer the economic union , the grater the presumptive claim to equal standards of living upon its dissolution” [Fisher v Fisher (2008)ONCA at par. 56]
Analysis
Material Change in Circumstance
[18] The Minutes of Settlement entered into by the parties contemplated that the spousal support Order could be changed upon a material change in circumstance. There was significant argument over whether the age of retirement was discussed before the separation or whether it was contemplated at the date of the original settlement. I am not satisfied there was such discussion.
[19] It is clear that the former Husband could continue to work at Proctor and Gamble until age 65. I accept his evidence that many employees leave well before that age. The Respondent could have retired earlier than the date he did, he held off. The medical evidence provided by the Respondent is lacking and cannot be a ground for early retirement.
[20] The issue of early retirement was dealt with by Beaudoin J in Parker v Parker (2014) ONSC 4211 at paragraph 15: “The critical issue in this case is whether or not the applicant’s voluntary retirement from his employment can be considered to be bad faith on his part to avoid his support obligations.” The court concluded that the retirement was not in bad faith and was reasonable and did constitute a material change in circumstance. The court did not terminate the support order, rather the support was reduced.
[21] I conclude that there has been a material change in the condition, means and needs of the spouses. Both spouses experienced increase in income since the Final Order. I would conclude the Applicant’s income increase alone is a sufficient change to warrant a review of the Order. The Respondent’s retirement was not in the circumstance unreasonable, however it was within his discretion and it has significant impact on the Applicant.
What should the Order be, moving forward?
[22] While I conclude that the Applicant has done what she is required to do under the legislation, namely attempt to become self-sufficient; she is not. I am satisfied with the Applicant’s affidavit evidence that she has worked hard at attaining self-sufficiency, she has been frugal and adheres to a budget. I am equally satisfied that during the marriage the Applicant enjoyed a good standard of living, higher than she does now and certainly higher than she would if support terminated now.
[23] The parties were married 20 years and had one child together. The Applicant worked through the marriage and provided child care responsibilities and continued as the primary care giver to the child after separation. The Applicant did suffer economic disadvantage arising from the marriage and in particular the separation. This was recognized in the Order that was made.
[24] I find that to terminate spousal support at this time would be inconsistent with the purposes and objective s of spousal support as set out above. The Respondent in the last few years earned considerably greater income than the $100,000 upon which the Order is based. There was no change to the support. In 2014, his income was $153,155.
[25] The Respondent has taken the risk of retiring early and hoping the Court will simply terminate the Order. While I accept there were reasons for his retirement, the decision was in his hands alone and he should have considered the impact upon the Applicant. Notwithstanding the fact the Respondent had previously indicated an intention to retire; the Applicant is entitled to further support, in recognition of the duration of marriage and the historic disparity in income.
[26] In arriving at the support Order I did, I consider the fact that the Respondent’s pension was the subject of equalization at the time of the Final Order, most of his retirement income comes from capital that was subject to NFP equalization. I am satisfied with the pension valuation and accept the Respondent’s explanation for what may appear to be a discrepancy.
[27] I also consider the incomes each spouse made in past years and at present.
[28] I order accordingly that full support is payable under the existing Order to the end of August 2016, for the next 12 months the support will be reduced to $700, recognizing there continues to be a need. Thereafter the support Order is reduced to $1 until the Respondent’s age of retirement: 65 years of age. In the event the Respondent earns greater income, he must forthwith notify the Applicant of the change in circumstances in writing and provide details of such income. The Respondent shall provide to the Applicant copies of his income tax returns and Notice of Assessment each year from the Canada Revenue Agency by May 30th each year he is obligated to pay support.
[29] In the event the parties cannot agree upon costs, I order that each exchange written submissions limited to three pages, together with a Bill of Costs and file with the Court.
The Honourable Mr. Justice J. M. Johnston
Released: November 2, 2016
CITATION: Dulmage v. Dulmage, 2016 ONSC 6849
COURT FILE NO.: FS-15-0265-00
DATE: November 2, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DARLENE ANNE DULMAGE
Applicant
– and –
JAMES EDWARD DULMAGE
Respondent
RULING ON MOTION
Johnston J.
Released: November 2, 2016