Superior Court of Justice
COURT FILE NO.: FC-11-2391-2
DATE: 2016/12/14
ONTARIO
BETWEEN:
Stefan Boedeker Applicant
– and –
Therese Rainear Respondent
COUNSEL:
Graeme B. Fraser for the Applicant
Gordon E. Sheiner for the Respondent
HEARD: October 25, 2016
REASONS FOR DECISION
J. MACKINNON J.
[1] This is an originating application for spousal support brought by the applicant, former husband, under section 15.2 of the Divorce Act. He asks the court to award spousal support to the respondent in the current amount payable pursuant to their agreement, and to impose a review of her support in five years for the purpose of determining what steps she has taken towards self-sufficiency and earning an income. The applicant specifically says he is not asking for issues of entitlement or termination to be included in the scope of that review.
[2] The parties separated in August 2009 after 23 years of cohabitation. At that time the husband was 45 and the wife was 42. Their marriage had been “traditional” in that the husband was the income earner and the wife provided the homemaking and child care responsibilities.
[3] The parties were divorced December 15, 2011. The divorce order was silent as to corollary relief.
[4] A separation Agreement was signed dated September 27, 2011. An amending Agreement was signed in August 2012. I will refer to them as the first agreement and the second agreement.
[5] The first agreement provided that the husband would pay the wife $5,000 per month spousal support based on his income of $150,000. This support was subject to material change in circumstances variation clause. The agreement also contained a provision titled “Disclosure” which stated:
“3.6 If either party asks for disclosure, each party will provide the documents required in s. 21(1) of the Child Support Guidelines that have not previously been provided within 30 days of the request, or if not immediately available as soon as reasonably possible. A request for disclosure shall be limited to not more than one time per year. The right to disclosure from a party shall include the right to be provided with information concerning efforts made towards to self-sufficiency.
3.7 Therese recognizes that at some time in the future Stefan will retire and will have reduced income. Consequently Therese agrees that it is important for her to take steps to contribute to her own support within a reasonable period of time. Therese, therefore, agrees that in so far as practicable, she shall make every reasonable effort to contribute to her own support with a view to becoming self-sufficient.”
[6] Both agreements contained clauses permitting variation in the event of a material change in circumstances.
[7] The second agreement was entered into to recognize some changes in the husband’s income and employment status. He had been an independent contractor. By the time of the second agreement he was an employee. His remuneration package included a base salary and the potential for a discretionary bonus. The second agreement expressly varied certain paragraphs of the first agreement, not including 3.6 and 3.7 set out above.
[8] The applicant’s rationale for the order he seeks is his belief that the respondent has not complied with her agreement to move towards self-sufficiency. He wants the court to address this now, rather than later, when it may be too late for the respondent to take meaningful steps towards earning a reasonable income. The applicant regards the imposition of a review order as consistent with their agreements, and as the least intrusive order he can ask for that may motivate her compliance.
[9] The respondent asks the court to determine the amount of arrears owing to her under the second agreement, and to dismiss the application. In her submission the applicant is attempting to secure a review clause that was not contained in the negotiated agreements. Rather, their agreement left this to the material change in circumstances clause. She also submits that the variation clause in the second agreement is restricted and enables relief only to the amount of support and share of bonus, which does not include adding a review clause.
[10] Nor does the respondent agree that there is any benefit to be achieved through imposition of a review order. The existing terms of the agreement allow the applicant to obtain disclosure of her efforts once per year. She says if he views her efforts as inadequate he can tell her, including stating his intention to rely upon the perceived inadequacy down the road. Or he may apply for a variation if in his view her efforts are so inadequate as to constitute a material change in circumstances.
[11] Section 15.2 (1), (3), (4), (6) of the Divorce Act are applicable and provide as follows:
(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
(3) The court may make an order under subsection (1) for an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[12] The respondent’s entitlement is not questioned. Both agreements provide her with indefinite lifetime support and with security for her support in the event the applicant predeceases her. She married at a young age. She is a high school graduate. During cohabitation she worked outside the home for no more than six months. The family made three major moves to facilitate the applicant’s education and career, including to Germany and Japan. Her entitlement to spousal support is based on compensatory and non-compensatory grounds.
[13] Since separation the respondent was employed very briefly as a house cleaner. In 2012 she took a career counselling course. She was advised to take computer training. She received some instruction from a local student, but not any formal training because she would have had to travel from Carleton Place to Ottawa.
[14] In 2013 she undertook an introductory Pastoral Care program. In 2014 she completed an advanced Pastoral Care program. The duration of these courses is not in evidence. They did not result in any form of certification. At present she is taking a ten week Pastoral Care training program offered by the Anglican Diocese of Ottawa. On completion she will be certified to provide services in care giving facilities such as retirement and nursing homes, hospitals and hospices.
[15] The respondent put her training on hold in 2015 when her daughter gave birth not long after sustaining injuries in a motor vehicle accident. The respondent became the live in homecare provider for both her daughter and grandson. Her daughter is 27, married, and should soon be able to return to work.
[16] The respondent had surgery in June 2016 which laid her up until the end of August. She has some other health issues which may impact on the type of work and extent of time she is able to work. Her stated hope is to obtain employment in Pastoral Care in Almonte where she presently resides with her daughter’s family. No information was provided about job availability or earning potential. Her next step will be to start a job search.
[17] My finding is that the respondent has done very little since the date of the first agreement to pursue training or employment. I find that she has not made every reasonable effort to contribute to her own support within a reasonable period of time in so far as practicable.
[18] I do not agree with her submission that paragraph 3.7 means the adequacy of her efforts ought only to be considered at the time of the applicant’s retirement in the context of a variation application. In her own words, “the repercussions for me under the agreement are when Stefan retires, not now.”
[19] The agreement does more than require her to account for her efforts at the time of the applicant’s retirement, whenever that may be. Read in its entirety she assumed an obligation from the date of the first agreement to make timely efforts towards contributing to her own support. Paragraph 3.6 of the agreement, providing for annual disclosure of efforts towards self-sufficiency, is consistent with this interpretation. So is her agreement in the final sentence of paragraph 3.7 to make every reasonable effort to contribute to her own support with a view to becoming self-sufficient.
[20] The applicant has a legitimate interest in the respondent’s compliance with paragraph 3.7 of their agreement. Reasonable steps taken in a timely way might lead to an income sufficient to warrant a reduction in the spousal support payments prior to his retirement, or might enable the respondent to save money for her own retirement. It is speculative to say neither could ever happen.
[21] The applicant submits a review order is an appropriate response to the court’s finding that the respondent has not made reasonable efforts towards self-sufficiency to date.
[22] The two leading cases in Ontario with respect to review orders are Leskun v Leskun, 2006 SCC 25 and Fisher v. Fisher 2008 ONCA 11. Both provide authority for making a review order in this case. In Leskun the Supreme Court said at para 36:
[36] Review orders under s. 15.2 have a useful but very limited role. As the amicus curiae pointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment. In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3) of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order. This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act.
[23] The Supreme Court went on to say that review orders, where justified by genuine and material uncertainty, permit a subsequent motion to alter support without having to demonstrate a material change in circumstances. It also stated that the issue for review should be tightly delineated in the s. 15.2 order.
[24] Fisher followed Leskun and concluded that review orders are generally discouraged. Interestingly the Court of Appeal referred to two of its earlier decisions, Choquette v. Choquette, 1998 CanLII 5760 (ON CA), [1998] O.J. No. 3024, and Andrews v. Andrews (1999), 1999 CanLII 3781 (ON CA), 45 O.R. (3d) 577. In those cases the court did not endorse a review order as a means to promote the self sufficiency of the support recipient spouse. The trial judge in Choquette had been satisfied that she would return to the workplace and would move relatively quickly toward self-sufficiency. In Andrews the husband asked for the review claiming the wife would not begin to contribute to her own support quickly enough. The Court said there was no evidence to support this concern, noting that she had already taken on part time work. In those circumstances the Court held that a variation application could address any other related concerns.
[25] The Court of Appeal in Fisher also stated at para [68] and [73]:
[68] In "Spousal Support Post-Bracklow: The Pendulum Swings Again?" (2001) 19 C.F.L.Q. 185 at 218, Professor Rogerson refers to Choquette and Andrews and concludes, "to justify a review order, there must be either a concern about a spouse's failure to make reasonable efforts toward self-sufficiency or a clear expectation of a change at an identifiable point in the future."
[73] In this case, the trial evidence indicated that the appellant was making reasonable efforts at self-sufficiency. There was little evidence that her financial circumstances would change at an identifiable point in the future, apart from the potential return of her income to pre-separation levels, which would not have rendered her self-sufficient when considered in the context of her marital standard of living. Thus, there was no basis for the review date provided in the trial judgment. As well, the order did not comply with the Leskun requirement for a tight delimitation of the facts subject to review.
[26] Bergeron v. Bergeron (1999) 1999 CanLII 14955 (ON SC), 2 R.F.L. (5th) 57 (SCJ) predated Leskun and specifically endorsed the utility of a review order “to focus [the recipient’s] attention” on the provisions of s.15.2 (6) (d). The application judge noted that limits on quantum or duration, step down orders, and review orders were all potentially appropriate ways to address the situation of a dependent spouse who may not make reasonable efforts toward self-sufficiency. At paragraph 12 the court held:
“Review orders are a particularly useful tool in the fair determination of long-term spousal support obligations in those situations were a dependant spouse will need time to re-educate, upgrade skills or otherwise find suitable employment.”
[27] I conclude that a review order may be properly considered in a case such as this where the support recipient had undertaken to take reasonable steps towards employment and self-sufficiency and has been found not to have done so.
[28] Section 15.2 sets out all of the factors and objectives to be considered in an originating application for spousal support. Here, a full inquiry is obviated by the applicant’s admission of entitlement, his acknowledgement of its indefinite nature, his agreement to continue the existing quantum of support, subject to variation in the event of a material change in circumstances. In relation to the specific issue before the court, I note that the promotion of self-sufficiency in so far as practicable, and within a reasonable period of time, is one objective amongst others. The parties’ written agreement is one factor amongst others. Their agreement does speak to the objective of self-sufficiency but does not provide for a review. Under the agreement as written, failure to comply with paragraph 3.7 might or might not give rise to a material change in circumstances.
[29] The variation clause in the first agreement read:
“Spousal support may be changed if there is a material change in circumstances, even if the change was foreseen or foreseeable. It is recognised that changes in the cost of living may amount to a material change in circumstances entitling a party to request a variation of support.”
[30] It was changed slightly in the second agreement to replace the words “spousal support” by, “The terms of this agreement related to the payment of periodic spousal support and the share of the employment bonus to Therese …”
[31] The respondent submits that the current clause is restrictive to the point of precluding the imposition of a review order by the court. I disagree. The clause is not binding on the court. It does not say that support shall not be reviewed. It is not directly applicable because proof of a material change in circumstances is not necessary in an application under s. 15.2 of the Divorce Act.
[32] Turning to the other considerations, the length of the marriage, the compensatory nature of the support and the entitlement to indefinite support which will probably continue in some amount after the applicant’s retirement, are all facts arguing against a review order. In favour of a review order are the weak efforts made by the respondent to date, and the importance of encouraging her to stronger efforts in this regard. Put another way, she has not done to date what she agreed to do in the first agreement.
[33] Her non-compliance is an important factor weighing against leaving this issue to a future variation application, where the onus would be on the applicant. In my view that would be inappropriate to the extent the variation application were in response to the respondent’s non-compliance and because the evidence of her future efforts would be more readily available to her than to him.
[34] I conclude that making a review order is appropriate in these circumstances. It is a consistent next step to paragraph 3.7 of the first agreement.
[35] For these reasons I order the applicant to pay spousal support to the respondent in the monthly amount of $4,114, plus supplementary support in an amount equal to 40 % of the gross bonus he receives. The terms of paragraphs 2.8, 2.9, and 2.10 of the second agreement shall be incorporated into my order.
[36] The spousal support order is indefinite in duration subject to variation pursuant to s. 17 of the Divorce Act. The order is not made in contemplation of the applicant’s retirement, the timing and circumstances of which are not now known.
[37] The respondent shall continue her regular attendance at the program of pastoral counselling until completion. Proof of successful completion shall be provided to the applicant. She shall forthwith commence a job search. Commencing in June 2017 and each six months thereafter she shall provide the applicant with particulars of her efforts to secure part-time and full-time employment.
[38] The respondent shall keep a written record of all of her efforts to secure employment.
[39] Forthwith upon obtaining any employment the respondent shall provide full particulars to the applicant, including proof of pay. If the respondent obtains employment and subsequently changes employment she shall forthwith provide full particulars of the new employment to the applicant.
[40] Should the respondent determine that it is advisable for her to complete any additional course of study likely to assist her in contributing to her ability to earn income, she shall forthwith advise the applicant of its particulars, including duration, cost, her enrollment date and successful completion date.
[41] The applicant shall be entitled to apply to the court for a review of this order in January 2022. The review shall not address entitlement to or termination of spousal support. Upon the review the respondent shall be required to show that she has made diligent and good faith efforts to successfully complete her training in pastoral counselling, or other course of study likely to assist her in contributing to her economic self-sufficiency, that she has made every reasonable effort to seek part time employment during any period of time when she is a part time student, and full time employment when she is not attending courses of study.
[42] The respondent is advised through these reasons, that having regard to the commitment made in the first agreement, more is required of her than has been demonstrated to date. That said, the date of the review which is as proposed by the respondent, does reflect the duration of cohabitation, the respondent’s role during it, and the reality of the task remaining ahead of her.
[43] The issue of arrears can be dealt with briefly. The second agreement based spousal support on an estimated an annual base salary of $120,000. The applicant was supposed to verify the accuracy of this number and to adjust spousal support if necessary according to the method set out in the agreement. The base turned out to be $122,640 but the adjustment was not made. I agree with the respondent that it should have been made; $4,272 is owed to her on this account, calculated to the end of 2016. The respondent seeks an additional amount of alleged arrears on the basis that a car allowance received by the applicant should be treated as part of his base salary. I disagree. Base salary is not defined in the second agreement but it seems clear that what was contemplated was an income in the range of $120,000 which in fact did not include the car allowance. Nor can it be said that the car allowance was part of the annual potential bonus in which the respondent was entitled to share.
[44] For these reasons the arrears are fixed at $4,272 payable forthwith.
[45] If the parties are unable to agree on the disposition of costs I will receive brief written submissions from them, not to exceed three pages plus attachments of any offers to settle and bills of costs. Counsel shall agree on a schedule to exchange their submissions such that they shall all be delivered to me by January 31, 2017.
J. Mackinnon J.
Released: December 14, 2016
COURT FILE NO.: FC-11-2391-2
DATE: 2016/12/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stefan Boedeker
Applicant
- and -
Therese Rainear
Respondent
REASONS FOR DECISION
J. Mackinnon J.
Released: December 14, 2016