CITATION: Curtis v. Curtis, 2017 ONSC 5259
COURT FILE NO.: FS-16-304-00
DATE: 2017-09-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Elinor Edna Curtis
W. Shanks, for the Applicant
Applicant
- and -
Shannon Curtis
R. Stead, for the Respondent
Respondent
HEARD: May 16, 2017, at Thunder Bay, Ontario. Submissions received July 7, 2017
Platana J.
Reasons For Judgment
[1] The Respondent Shannon Curtis brought a motion, which was ordered to proceed to a trial, seeking a variation and termination of spousal support ordered pursuant to a Divorce Order based on Minutes of Settlement of Wright J., dated December 9, 2010. Paragraph 2 of that order stated:
The respondent, husband shall pay the applicant, wife spousal support in the amount of $3,500.00 per month commencing July 1, 2009, and payable thereafter on the first day of each and every month. These payments will continue until there is a material change in circumstances which shall not include the respondent, husband’s increase in annual income but may include the respondent, husband’s retirement.
[2] At para. 4, the order stated:
As final payment of an equalization of net family properties the respondent, husband shall pay to the applicant wife the sum of $290,000.00 as follows:
a) The sum of $110,000.00 immediately upon the applicant wife transferring her half interest in the matrimonial home to respondent husband.
b) A spousal transfer of $180,000.00 of the respondent husband’s RRSP to the applicant wife, immediately.
[3] Section 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) provides that:
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.
[4] The respondent makes three submissions with respect to changes, and submits that the amount of spousal support should be varied and terminated. First, the respondent submits that the amount of spousal support should be varied and terminated due to a decrease in his income from 2010 to 2015, and second, based on an increase in the applicant’s income during the same period. He further submits that his current income should be considered based on the average of his last three years income.
[5] Third, he submits that the income used to determine the amount of the 2010 order should have been $161,000.00, and not $217,000.00 which he suggests was the basis of income in that order. The order itself does not specify what income amount was used as the basis for the order. The order was made pursuant to Minutes of Settlement.
Background History
[6] In 1986/1987 the parties met and began living together. They became engaged on January 1, 1989, had periods of separation between 1991 to 1996, and married on December 31, 1996. They separated on November 1, 2008, and on April 12, 2011 divorced subsequent to Wright J’s, order of December 9, 2010.
[7] Throughout the relationship the parties enjoyed a lifestyle, which included Caribbean vacations, and a home on the lake in Fort Frances.
Shannon Curtis
[8] Shannon Curtis is 61 years of age. He testified that he started business as a denturist in 1986. In the early years, 50% of accounts were paid by insurance companies. By December 2005, the business had reached the point where he needed to hire another employee to help him. He hired his wife to be the Office Manager and sole other employee.
[9] In 2010, business was brisk. However, his evidence is that it has fallen off significantly since then. He stated that the economy in Fort Frances has weakened; a competing practice was opened in Duluth Minnesota; and clients are purchasing cheaper dentures as a result of lowered insurance coverage.
[10] Exhibit 1 is a joint exhibit book containing the financial information of the parties. The history of his personal and business income from 2009 – 2015 is shown in Exhibit 10.
| Year | Personal Income Tax | Business Financial Statements |
|---|---|---|
| 2009 | $180,820.00 | $182,979.00 |
| 2010 | $217,832.00 | $210,766.00 |
| 2011 | $185,872.00 | $192,640.00 |
| 2012 | $121,751.00 | $139,071.00 |
| 2013 | $150,400.00 | $159,190.00 |
| 2014 | $148,786.00 | $150,671.00 |
| 2015 | $181,185.00 | $175,103.00 |
[11] He testified that his 2015 business income would have been much lower than the $175,103.00 as shown on the summary filed as Tab 10, Exhibit 1, as a result of the loss of one staff member for a period of time with a corresponding savings of approximately $20,000.00 in salary.
[12] His Financial Statement filed as Exhibit 12, sworn January 31, 2017, shows income of $148,000.08 and expenses of $171,775.44. Included in monthly expenses are $1,626.00 for RRSP contributions, $350.00 for a line of credit to purchase the stereo and $771.60 for car lease payments for the Mercedes. Quite surprisingly to me, his evidence is that he could not produce monthly income and expense statements for 2017 to the time of trial.
[13] His evidence is that during the marriage, his wife worked for him full-time for 3 years, leaving in March 2009. During that time, he stated that he does not remember her speaking of suffering from fibromyalgia. While working at his clinic, she also did the household chores. She never complained of pain, and it never prevented her from working. After the parties separated, she continued to work in the clinic and trained her replacement for a period of some two months.
[14] He testified that he has arthritis and neck pain, and if his business continues as it has been, he may have to think of selling it and retiring.
[15] Since separation, he has contributed the maximum amount to his RRSP’s in most years. The Exhibits show contributions as follows:
| Date | Tax Year | Contribution |
|---|---|---|
| February 9, 2011 | 2010 | $22,000.00 |
| February 25, 2012 | 2011 | $22,450.00 |
| February 27, 2013 | 2012 | $22,966.00 |
| March 3, 2014 | 2013 | $23,820.00 |
| February 25, 2015 | 2014 | $10,047.00 |
| February 29, 2016 | 2015 | $19,221.00 |
*Value as at January 1, 2017 $932,772.98
[16] He acknowledged that he drives a 2014 leased Mercedes worth $52,000.00. He further acknowledged that since separation, he has purchased a $21,000.00 home stereo system.
Elinor Curtis
[17] The applicant, Elinor Curtis, is 64 years of age. She has no formal educational training. From 1990 to 1994, she worked at the Community Action Centre in a secretarial position. She was forced to leave this position as a result of health issues and began receiving CPP disability benefits. She was receiving CPP benefits when she began working at the denture clinic in 1995. After she began work, she notified CPP. After three months at work, she was feeling ill, and getting confused and tired at work. She found work stressful. She was exhausted from working both at the clinic and at home, and her pain was becoming worse, causing more depression. She testified that she was unable to continue working for the respondent due to her declining health and the stress of working with the respondent. The applicant ceased all attempts to work and has not returned to work since March 2009 (prior to the Divorce Judgment).
[18] The medical evidence filed as part of Exhibit 1 is contained in letters from doctors forming part of the records from Health Canada. They show that in December 1994 she was diagnosed with chronic fatigue syndrome and fibromyalgia. In March 1996, Dr. Reynolds at Toronto Hospital agreed she was the clinical picture of fibromyalgia. He noted that she could not maintain clerical work and had considerable difficulties with her energy so she was unable to maintain a regular schedule. He concluded his report by stating that “I expect that her symptoms will be ongoing and that she will continue to have significant degrees of disability for the foreseeable future.”
[19] In cross-examination, she stated that she had degenerative disc disease when she was in her 30’s and began living with Mr. Curtis in 1987. She had daily pain, and wore a brace. She said she has suffered from depression most of her life, and that he was aware of that.
[20] She has had two surgeries prior to divorce and was hospitalized for three weeks just prior to this hearing for severe depression. At the time of this hearing, she sees a therapist, takes medications once, sometimes twice, per day, and uses an asthmas inhaler. She first got asthma in the 1990’s before she met Shannon.
[21] She stated that she began working for Shannon in 2005, originally for a six month period while someone else could be trained. She disagrees with Cynthia Manty that she did all the physical work involved in cleaning and sterilizing. She gave directions only. While she was working for Shannon, she was paid a salary. When she last worked a full year in 2005, she earned $60,000.00. She has not looked for employment since leaving his clinic in March 2009, saying her health prevents her from working.
[22] Her evidence is that, at the time of the divorce order, she received an equalization payment of $290,000.00, $180,000.00 of which was a rollover from his RRSP. From 2010 to 2015, she has cashed in RRSP’s of approximately $170,000.00, which she has used as part of her income in order to meet her ongoing expenses.
[23] The income of the applicant for the previous three years is as follows:
2016- $21,012 (total line 150 was $54,384.11 which was comprised of CPP Disability of $12,012 and spousal support of $42,000)
2015- $11,869 (total line 150 was $83,745.64 which was comprised of CPP Disability of $11,241.96, spousal support of $42,000 and RRSP withdrawal of $29,352.33)
2016- $11,659 (total line 150 was $93,246.53 which was comprised of CPP Disability for $11,659.92, spousal support of $42,000 and RRSP withdrawal of $39,149.43)
[24] Her financial statement dated May 15, 2015 in Exhibit 1, Tab 1A, shows total monthly income of $4,769.93, and expenses of $8,153.44. Her statement of January 30, 2017, shows income of $4,501.02 and expenses of $4,465.97.
[25] Her current income consists of CPP of $1,000.00 and support payments of $3,500.00. She will begin receiving OAS in February 2018.
[26] She recently sold her previous home in order to pay for expenses and for the construction of a “granny pod” in her daughter’s backyard.
[27] Cynthia Manty began work as a receptionist in the clinic in February 2009. She was trained by the applicant for a period of two weeks. She was instructed on how to greet patients, sterilize the treatment room and instruments and clean a counter which was used for preparation of dentures. Her evidence is that, when she started, the office was busy with a constant flow of patients. The business slowed down as the town of Fort Frances business slowed down. Fewer patients had benefit coverage, jobs were cut at the local mill, and patients started purchasing standard dentures instead of premium ones. Additionally, competitive clinics had opened in Dryden and Duluth.
[28] She testified that Elinor never complained about any difficulties in doing the work and had no health complaints. She never saw Elinor take any medications. After Cynthia was trained, Elinor moved into the back office and was doing the books on a computer.
[29] Lisa Ruppenstein is the parties’ daughter. She testified that her mother currently lives in a “granny pod” on property owned by her and her husband, and with their two children. She testified that she lived with her parents when she was younger and recalls her mother being off work for some time, suffering from depression. Her mother suffers from arthritis and while she does carry out daily living tasks, she cannot do anything of a heavy nature, or does smaller things around the house. Her mother does her own cooking, cleaning and laundry but is no longer able to do gardening. Her mother uses two canes, and has difficulty with stairs. The daughter and her husband provide no financial assistance to her mother.
Positions of Mr. Curtis
[30] Mr. Stead notes in submissions that Mr. Curtis’ income as reported to Canada Revenue Agency from 2010 to 2015 was $217,833.00, $185,872.00, $121,750.00, $150,400.00, $148,786.00 and $181,185.00 respectively. He submits that the 2015 income of $181,185.00 should be reduced by $20,000.00 to reflect that one employee was off work for six months reducing his expenses.
[31] Mr. Stead on behalf of Mr. Curtis submits that a variation is warranted based on Mr. Curtis’ change in income from 2010 to 2015, taking into account his income for the best three of those years. He submits that taking into account the reduced expenses in 2015, and what he argues was an incorrect income used in the order of December 2010, and taking into account what he argues is “fair assessment” as noted in s. 17 of the Guideline amounts for the three years should be an average of $148,000.00, $153,000.00 and $181,000.00 which he submits should be reduced to $161,000.00. No tax information for 2016 was presented at the time of trial.
[32] Mr. Stead raised other arguments based on possibility and conjecture on Mr. Curtis’ financial information produced at the time the December 2010 order was made. I do not consider submissions based on conjecture about evidence. The amount as stated in that order is clear, and I do not go behind the rationale for the amount awarded. As I noted previously, the order was based on Minutes of Settlement.
[33] Mr. Stead further submits that a variation is warranted on the basis of Ms. Curtis’ change in income. He bases his submissions on the fact that she cashed in RRSP’s each year from 2010 to 2016, and her income in 2016 was greater than it was in 2010. Although her income figures were not presented in the written submissions, her income figures as shown on her tax information filed in Exhibit 1, Tab 3A-1 show income of: 2012-$85,897.93; 2013-$87,581.94; RRSPs $33,574.43; 2014-$94,245.00 (RRSP $39,149.43).
[34] He further submits that she depleted the assets including the RRSPs she received at the time of the divorce. He submits that she overspent on expenses and failed to wisely use the income she earned on the RRSPs. He argues that income should be attributed to her on the basis that she “could have” received greater returns “of perhaps three percent which would have given her approximately $10,000.00 or $11,000.00”, and that she probably “could have” earned $25,000.00 working part-time. He submits that considering her disability income of $12,000.00, $25,000.00 which she could have earned, and the $10,000.00 investment income, I should impute income to her in the amount of $47,000.00.
[35] In written submissions Mr. Stead presented me with a case book, without reference to any specific case or case law relied on. He provides Holman v. Holman, 2015 ONCA 552 and Roberts v. Cant-Roberts, 2010 ONSC 1883. With no specific reference by counsel as to what particular principles he relies on from these cases, I cannot determine what counsel wished me to rely on. No argument was made with respect to the duration of support appropriate for this marriage, or the relationship to the Spousal Support Advisory Guidelines formula length of marriage test.
[36] Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, 99 D. L. R. (4th) 456 was provided, presumably to argue the issue of the wife’s failure to become economically self-sufficient. No specific argument was addressed with respect to the application of the four objectives defined in ss. 15(7) and s. 17(7) of the Divorce Act. Mr. Stead did address the argument that Ms. Curtis had not attempted to work subsequent to leaving her employment at the denture clinic. His argument is that she was capable of doing bookkeeping work, and her evidence was that after leaving his employment because of the breakdown in their personal relationship, she might have been able to work elsewhere on a part-time basis.
[37] Mr. Stead raised in submissions that I should not rely on the fact that she was put back on disability benefits. He questions the system of benefits in that her evidence was that she was not required to file medical reports to requalify but simply had to phone to be reinstated. The respondent attached a number of letters from doctors and the hospital as part of his submissions. However, as noted in these submissions, those documents were not filed as exhibits, apparently an oversight on the part of counsel. The applicant was cross-examined on them, however, I cannot accept them as being part of the evidence.
[38] Mr. Stead notes that she did work at the clinic from 1996 to 2009. He submits that, considering the evidence of the work she did while at the clinic and working with Cynthia Manty, she is capable of working, and her evidence of pain and suffering and inability to work due to fibromyalgia should be construed as embellishing her symptoms to the point where there is no basis in reality for them. He questions why, if her symptoms were as severe as she states, she was able to work in the clinic for some years prior to divorce.
[39] He submits that her physical abilities do not prevent her from doing any kind of work at all. She does care for her own home by doing cooking and cleaning, which she did prior to the divorce.
Position of Ms. Curtis
[40] Mr. Shanks submits that Mr. Curtis has not established a material change in circumstances to warrant a variation and termination of spousal support. He argues that Ms. Curtis continues to need financial support as her only source of income is CPP disability benefits and spousal support.
[41] Mr. Shanks submits that before any variation order can be made, s. 17(4.1) requires that there must be a material change as noted in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775, 339 D. L. R. (4th) 624, where it is established that a material change is a “change such that if known at the time would likely have resulted in different terms.”
[42] He submits that the respondent owns the same denture clinic as at the time of the 2010 order and has made RRSP contributions on a regular basis to the maximum since. He notes that the income figures evidenced at trial show the income of the respondent for the previous three years that was available at the time of trial as follows:
2015 $181,185
2014 $148,787
2013 $150,400
[43] He notes that there is no change in Ms. Curtis’s physical condition. He submits that the applicant’s evidence at trial was that she suffers from fibromyalgia and fatigue syndrome, the same conditions which presented at the time of the divorce. She has been in receipt of CPP disability benefits since 1995 except for a short period of time when she attempted to work at the denture clinic. She has not been able to work since March 2009, prior to the divorce order.
[44] Mr. Shanks points to the evidence that her medical condition has not changed since the time of the divorce. She was totally disabled at the time of the divorce, and her health has continued to deteriorate.
[45] With regard to Ms. Curtis’s medical condition and her expressed inability to work, Mr. Shanks relies on Villani v. Canada (Attorney General), 2001 FCA 132, [2002] 1 FCR 130 at para. 28 for the proposition that “what a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience.” Mr. Shanks notes that Ms. Curtis has been in receipt of CPP benefits for over 20 years, a substantial time in which she was in a relationship with Mr. Curtis. He argues that she is not able to obtain gainful employment due to her deteriorating medical condition, as well as her age and lack of education.
[46] Mr. Shanks relies on Ludmer v. Ludmer, 2014 ONCA 827 to submit that the RRSP monies received by Ms. Curtis as part of the divorce order should not be included in her income. The monies were part of an equalization payment, which she invested but had to withdraw to pay down debts. He argues that to include her RRSP withdrawals into her income would artificially distort her income in a negative manner. Mr. Shanks submits that Ms. Curtis finds herself in “exceptional circumstances” as noted in the Spousal Support Advisory Guidelines. He cites Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577 where, at para. 28, the court concluded:
Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less.
[47] He points out that the Supreme Court further found that:
Marriage, while it may not prove to be “till death do us part”, is a serious commitment not to be undertaken lightly. It involves the potential for lifelong obligations. There are no magical cut-off dates.
[48] He further cites Aujla v. Singh, 2012 ONSC 5217 at para 51. where the Court states:
[t]he maintenance of a totally disabled spouse requires a delicate balancing of interests. To the extent that he or she is able, the disabled person must contribute to his or her own welfare. The family of the disabled person may be called upon to assist. Society at large will likely be required to contribute. As held in Bracklow, the healthy spouse will also be required to contribute.
[49] Mr. Shanks relies on the decisions in Wilson v. Marchand, 2007 ONCJ 408, 43 R.F.L. (6th) 356 and Ward v. Jones, 2015 ONSC 2752 in support of his argument that, recognizing Ms. Curtis’s circumstances, and in particular her health issues when the parties divorced in 2010, Mr. Curtis knew of her health issues, he has the current ability to continue to pay support, and he has a continuing obligation to do so, and can do so without any change in his lifestyle.
[50] Utilizing the applicant’s 2016 income and the respondent’s 2015 income, Mr. Shanks offered three support calculations:
Spousal Support based on 22 years of Cohabitation:
SSAG Low- $4,652
SSAG Mid- $5,428
SSAG High- $6,203
Spousal Support based on 18 years of Cohabitation:
SSAG Low- $3,806
SSAG Mid- $4,441
SSAG High- $5,075
Spousal Support based on 15 years of Cohabitation:
SSAG Low- $3,171
SSAG Mid- $3,700
SSAG High- $4,228
[51] Mr. Shanks seeks an order that the respondent’s motion to change be dismissed, and that spousal support continue indefinitely in the amount of $4,000.00 per month as there has not been a material change of circumstances. No cross proceedings were initiated to increase the amount in the order.
Discussion
[52] Cases have developed a number of principles in dealing with variation requests.
[53] In Bhandhal v. Bhandhal, 2015 ONSC 1152, Lemon J., stated the law to be applied in a manner which I find clear and concise. I adopt paras. 30-34:
[30] Pursuant to s. 17(1) of the Divorce Act, a court may make an order varying, prospectively or retroactively, a support order on application by either or both former spouses. Before doing so, 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 order and, in making the variation order, the court shall take that change into consideration.
[31] If there has been such a change, the variation 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) Insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[32] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775, the Supreme Court of Canada said:
[30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, and G. (L.) v. B. (G.), Like the order at issue in this case, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporated provisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act, the predecessor provision to s. 17(4.1).
[31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances”. In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.
[32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terr” G. (L.) confirmed that this threshold also applied to spousal support variations.
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.
[44] In sum, it bears repeating that the threshold question under s. 17, whether or not there is an agreement, is the one Sopinka J. described in Willick, namely:
In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such 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. [References Removed]
[33] In Dufresne v. Dufresne, 2009 ONCA 682, 2009 ONCA 682 (Can Law II), the Ontario Court of Appeal held that a payor cannot rely upon a future, speculative change that may relate to his future financial circumstances to justify a change in spousal support.
[34] Even if there was a material change in circumstances, the Court is required to review whether a variation in support is justified.
[54] An application for a variation of a spousal support order is subject to a higher threshold than in the case of a variation of an order for child support. In G(L) v. B(G), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370, 127 D. L. R. (4th) 385, the Supreme Court of Canada transposed the material change test as articulated in Willick in the context of child support to the context of a variation of an order for spousal support. It was held that, before a court may vary an order for spousal support, it must be satisfied of a material change in circumstances such that, if the new circumstances had been known at the time of the original order, it “would likely have resulted in different terms.” The onus is on the party seeking a variation of an order to prove the existence of a material change in circumstances. In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577, the Supreme Court of Canada reaffirmed the applicability of the material change test as articulated in Willick. The decision of the court was delivered by J. L’Heureux Dube, holding at para. 20:
On an application for variation of an award of spousal support, the court must first find, under s. 17(4) [of the Divorce Act] that there has been a material change in the conditions, means, needs or circumstances of the either spouse and in making the order, the court must take into consideration that change. As with the variation of child support order, this change must be material and cannot be trivial or insignificant.
[55] There is no discreet set of factors which constitute a material change of circumstances sufficient to justify the variation of an order for spousal support. Again, this change in a payor’s income, in and of itself, is not enough to constitute a change in circumstances for the purposes of a variation. The party’s circumstances must be found to have changed materially.
[56] The threshold question to be determined is whether on the evidence there is a material change in Mr. Curtis’ circumstances. The analysis must begin at the time the order was made in December 2000. Mr. Stead has submitted that Mr. Curtis’ income was actually lower than the $217,000.00 which he suggests must have been the foundational income used for the order. As was noted in these reasons, I will not speculate or use conjecture as to the income used. The divorce order was made pursuant to Minutes of Settlement. Mr. Curtis’ income as of December 2009 is shown in evidence to have been $181,000.00 on his income tax information filed. His income as shown in his 2015 tax information is shown as $181,185.00. Some variations are noted between. Based on his latest Financial Statement filed January 2017 filed as Exhibit 10, his monthly income is shown as $12,333.34 per month. The same statement shows his 2015 gross income as $174,969.00, although his 2015 Tax return shows line 150 income of $181,185.51. As I commented upon earlier in these reasons, no monthly/yearly to date figures were provided in evidence.
[57] I have considered that the summary of his personal and business income as shown on Exhibit 10 shows variations between 2009 -2015, the highest in 2010 of $217,832.00 to a low of $121,751.00 in 2012. I also note that from 2012 to 2015, there is an increase, both in business and personal income. I accept that a variation may have been occasioned because of a downturn in the economy, however, his evidence is that advertising has helped. His business and personal income in 2015 are such that his business income decreased approximately $8,000.00, and his personal income increased approximately $365.00.
[58] I find there is no material change in his business or personal income as directly compared to justify a variation.
[59] Mr. Stead asks me to consider that it is unfair to use actual comparisons between 2010 and 2015, or to date, and that I should then apply s.17 of the Support Guidelines and average his income over the last three years, which, he submits, results in figures of $181,000.00, which he submits should be further reduced to $161,000.00 The onus is on Mr. Curtis to satisfy me that his income should be determined by using the averaging provisions of s.17, because it would be unfair to him not to do so. It is not a mandatory provision. In my consideration of so doing, I first note that Mr. Stead’s own calculations suggest the average to be $181,000.00, which he asks me to reduce to $161,000.00, because of what he argues is Mr. Curtis’ 2015 high income only because of less business expenses because of the illness of an employee.
[60] However, his business income shown in 2015, when he shows personal income of $181,185.00 is approximately $7,500.00 less than 2009, when he showed personal income of $180.820.00.
[61] I further have considered that his income has risen significantly since 2011, which indicates to me that his business has returned to the previous level of 2009. Despite the evidence of decreased business, there is no material change.
[62] Additionally, the evidence shows that in the years since the order of January 2010, he has contributed the maximum to his RRSP’s in most years. His latest contribution of approximately $20,000.00 was made in 2016. Exhibit 13 shows the market value of his RRSP as at May 16, 2017 at $932,772.98, an increase of $417,097.94 from the amount shown in his Financial Statement sworn July 14, 2009 (Exhibit 11, prior to the divorce order and to splitting of the RRSP).
[63] In considering the fairness of using the income averaging provisions, I note that his evidence is that since separation he drives an expensive Mercedes-Benz, has taken Caribbean vacations (although reduced in number from the time of marriage) and has used a line of credit to purchase a $21,000.00 home stereo. His lifestyle has not changed from the years of marriage. He has not met the onus of satisfying me that I should use the averaging provisions, and I find no material change on that basis.
[64] Mr. Stead has also argued that Ms. Curtis’ income has increased from the date of the order, and that constitutes a material change in circumstances justifying a variation. He references her income in 2009 at the time of the order as consisting of CPP disability benefits and spousal support as per the order. Her current income is shown on line 150 of her Tax Return for 2016 as $83,745.64 (including $29,352.33 in RRSPs.)
[65] Mr. Stead argues that there has been a material change as a result of the increased income of Ms. Curtis. He has argued that income should be imputed to her because she had an ability to work following separation and did not do so. He argues that she was working in the clinic at the time of separation, and therefore demonstrated an ability to work. Her evidence is that she could not continue to work, partially because of the stress of the marriage, and because her health issues prevented her from working elsewhere.
[66] The evidence of her inability to work came from Ms. Curtis, and the reports of Health Canada filed. There is conflicting evidence from Cynthia Manty as to the nature of the work Ms. Curtis did in the clinic after Cynthia was fired. What is clear is that Cynthia was hired to do all of the work Ms. Curtis did and particularly the heavier work of cleaning the lab and the dental chair. Ms. Curtis’ role was confined to working in the back office.
[67] There was not clear evidence about her ability to work and earn other income.
[68] The evidence of Lisa Ruppenstein is that her mother suffers from arthritis and cannot do anything of a heavy nature, does only small things around the house, uses two canes for walking, and has difficulty with stairs.
[69] The evidence in the health records show a diagnosis of chronic fatigue syndrome and fibromyalgia with an expectation that the symptoms “will be ongoing and that she will continue to have significant degrees of pain for the foreseeable future.” She is 64 years of age, with no formal education and on-going health issues.
[70] On the basis of the evidence, I find no basis which to find that she could be working and no basis upon which to impute income to her for failing to seek gainful employment.
[71] In assessing her income, Mr. Stead has alluded to her use of her RRSPs and suggests that should be taken into account when determining her current income as a material change in circumstances. He argues that she “could have” received greater returns on her RST investments and that she has overspent on expenses.
[72] In total, Mr. Stead has asked me to impute income to her of $47,000.00, consisting of disability income of $12,000.00, $25,000.00 which she “could have earned” if working, and $10,000.00 of investment income she “could have received.” I cannot make factual findings based on conjecture on what “could have” happened absent any basis upon which to draw a reasonable inference.
[73] I accept Mr. Shanks’ argument that the RRSP monies she received should not be included in her income as they were part of an equalization payment. On the same issue, the only evidence I have is that RRSP withdrawals were necessarily made by her to cover expenses. To include these as part of her current income determination would be to distort her income unfairly. In addition her evidence is that she has had to nearly deplete her RRSPs. I contrast that to Mr. Curtis RRSPs into which he has contributed the maximum amount in most years and his RRSPs as at January 1, 2017 total $932,772.98.
[74] While Mr. Stead claims Ms. Curtis has excessive expenses, there is no evidence of that other than her testimony. In considering in general what expenses were for this couple, I note their lifestyle while married consisted of Caribbean vacations, expensive jewelry and a Mercedes-Benz. Since separation, he has purchased a $21,000.00 home stereo. She now resides in a “granny pod” on her daughter’s property.
[75] I cannot make any finding that her expenses are excessive.
Conclusion
[76] The threshold question for determination is whether there has been a material change in circumstances for either party. I do not find any material change to justify a variation at this time. Mr. Curtis’ income in 2016 is virtually identical to what it was at the time of the order. Ms. Curtis’ income excluding RRSPs, is virtually identical. Her health situation has not changed.
[77] As noted in Bracklow, divorce ends the marriage and the goal of divorce is ultimate self-sufficiency of the parties. This is a relationship which began in 1989 and had periods of separation until final separation in 2008. They married on December 31, 1996, making this an overall relationship of some 20 years minimum. These are what is described in Bracklow as:
…circumstances [in which] the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less.
[78] This motion to vary, heard as a trial, is dismissed.
[79] Ms. Curtis is entitled to costs. If the parties cannot agree on costs, Ms. Curtis may make written submissions as to costs within 15 days of the release of this decision. Mr. Curtis has 15 days after receipt of Ms. Curtis’ submissions to respond. All such written submissions are to be forwarded to me at 125 Brodie Street N. 6th Floor, Thunder Bay, ON, P7C 0A3. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
______”original signed by”
Platana J.
Released: September 05, 2017
CITATION: Curtis v. Curtis, 2017 ONSC 5259
COURT FILE NO.: FS-16-304-00
DATE: 2017-09-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Elinor Edna Curtis
Applicant
- and -
Shannon Curtis
Respondent
REASONS FOR JUDGMENT
Platana J.
Released: September 5, 2017
/lvp