CITATION: Bloom v. Bloom, 2017 ONSC 6555
COURT FILE NO.: FC-10-2812-2
DATE: 20171102
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JENNIFER BLOOM, Applicant
-and-
BARRY BLOOM, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Linda A. Hanson, for the Applicant
Stephane A. MonPremier, for the Respondent
HEARD: October 19, 2017
ENDORSEMENT
[1] This is a motion by the respondent, Barry Travis Bloom, to terminate spousal support payable to the applicant, Jennifer Deanna Bloom, retroactive to May 1, 2016.
[2] The parties were married on August 26, 1989 and physically separated on August 1, 2008 when Ms. Bloom vacated the matrimonial home. The parties were divorced on June 6, 2014. There are two children of the marriage, namely, Kyle Travis Bloom, born on July 26, 1990 and Talitha Sarah Bloom, born on June 2, 1994. At the time of the parties’ separation, Talitha was 14 and Kyle was 18.
[3] It is Mr. Bloom’s position that the parties separated in August 2008, when the parties physically separated, a position he has maintained since the parties were first in court. It is Ms. Bloom’s position that the actual separation occurred on July 19, 2010, when she realized that all possibility of reconciliation had vanished, a position she maintained since the parties’ first court application. She does not deny that the parties physically separated in August 2008, as alleged by Mr. Bloom. The valuation of the parties’ debts and assets for the purpose of equalization of their Net Family Property was based on the date of their physical separation. For the purpose of the issues that are before me today, nothing turns on whether the parties’ separation (as legally defined) occurred in August of 2008 or in June of 2010.
[4] Pursuant to a consent order dated November 26, 2012 (“the 2012 Order”), Mr. Bloom was required to pay to Ms. Bloom spousal support in the amount of $1,300 per month based on his income of $65,000 and Ms. Bloom’s imputed income of $28,000. The parties no longer had child support obligations by that time. The order specifically states that the spousal support may be varied if there is a material change in circumstances, and specifically sets out that Mr. Bloom’s retirement and Ms. Bloom’s bankruptcy will constitute a material change in circumstances. This was agreed to by the parties because in 2011 (post-separation), Mr. Bloom had declared bankruptcy leaving Ms. Bloom with joint debts that she now had to assume on her own.
Legal Principles
[5] The legal principles applicable to a variation of spousal support are set out in s. 17 of the Divorce Act, 1985, c. 3 (2nd Supp.):
Order for variation, rescission or suspension
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; or
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
Terms and conditions
(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.
Factors for 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.
Objectives of variation order varying spousal support order
(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) 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.
[6] The test for a “material change”, as confirmed by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, 3 S.C.R. 775, is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order.” This test was further explained in Dedes v. Dedes, 2015 BCCA 194, where the British Columbia Court of Appeal stated:
[25] As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases an application to vary would amount to an appeal of the original order.
Analysis
Material change in circumstances
[7] There have been several material changes in circumstances which allow this Court to reopen the issue of spousal support in this case. Firstly, Ms. Bloom declared bankruptcy on May 9, 2014. Her bankruptcy vacated all of the joint debts she had assumed following Mr. Bloom’s 2011 bankruptcy, as well as her own, and pursuant to the 2012 Order, was deemed to be a material change in circumstances. Secondly, Ms. Bloom has remarried on May 6, 2016, after having cohabited with her new spouse for six years. As will be further elaborated below, this has a significant impact on Mr. Bloom’s obligation to pay spousal support in the particular facts of this case.
Ms. Bloom’s financial circumstances
[8] Ms. Bloom has a college education in internet publishing, which she acquired during the early years of the parties’ marriage. She returned to school in 2001 to obtain further certifications in the computer industry. She indicates that she did not continue to work in this industry after approximately 2003. Instead, she would obtain contractual office positions and work as a house cleaner. Her income between 2003 and 2008 (the year of the parties’ physical separation) was in the range of $35,000 in average (with a high of $41,200 and a low of $33,597), except for 2007 during which she only earned $19,000 for reasons unknown to me.
[9] Following the parties’ physical separation, Ms. Bloom’s income dropped. In 2009, she only earned employment income of $1,104, collected employment insurance benefits of $14,061 (she had earned $38,034 in 2008), and social assistance benefits of $6,065, for a total of $21,230. It is important to note that on her 2009 income tax return, she indicated that she was separated, which supports Mr. Bloom’s position that the parties were in fact separated in August 2008. This status allowed her to receive social assistance benefits in 2009. In 2010, she earned $13,611.
[10] At the time of the 2012 Order, the mother was employed on a part-time basis as a bus attendant assisting disabled children for the Ottawa School Board, earning $15,600 per annum. She agreed to being imputed an income of $28,000 for the purpose of calculating support. She confirms that this is the job that she continues to have now and that the hours and work requirements have not changed. She works approximately 15 hours per week and has access to employment benefits. Ms. Bloom is not disputing the fact that she has made no effort to secure some other form of employment, or that she has sought additional employment to be gainfully employed on a full-time basis. She states “I love this job and I’m very proud of my work. I believe that I am performing a valuable and important service helping these children before and after school.”
[11] Ms. Bloom’s employment income since the final order was made (excluding spousal support) has remained steady at $15,600 per annum. In 2016, she withdrew $20,837 from her RRSP to pay, primarily, for a family vacation for her daughter and her family and to pay for legal fees.
[12] Ms. Bloom started living with Mr. Duffus in December 2010. She states that prior to their engagement and marriage in 2016, she was simply a roommate of Mr. Duffus. She states that they were not cohabiting together in a marriage-like relationship but rather as “friends with benefits.” I do not believe Mrs. Bloom’s evidence in that regard which in my view completely lacks credibility. I find that she began cohabiting with Mr. Duffus in late 2010. At the time of the 2012 Order, they had cohabited for less than two years, and there was no legal obligation on Mr. Duffus to contribute to Ms. Bloom’s support. This certainly had an impact on the quantification of Mr. Bloom’s spousal support obligation.
[13] Mr. Duffus is employed as a financial advisor with GCI and he earns an annual income in the range of $116,000. Mr. Bloom’s evidence is that Ms. Bloom and her husband have travelled regularly since they are together, including to the Dominican Republic, going on cruises and business trips (for Mr. Duffus) in the United States. Ms. Bloom’s response to this allegation is “I do not know where he gets his information and much of it is not even true. For example, I have never been to Boston for luxury trips or otherwise as alleged.” She does not dispute that she has been on cruises with Mr. Duffus and to the Dominican Republic.
[14] Ms. Bloom and her husband live in a four bedroom home in Orleans which is owned by Mr. Bloom. There is no evidence suggesting that a marriage contract would limit Mrs. Bloom’s entitlement to one half of its value as a matrimonial home, now that she is married to Mr. Duffus. The evidence shows that Mr. Duffus assumes 80% of the household expenses, whereas Ms. Bloom assumes 20%. In her sworn financial statement, Ms. Bloom shows annual expenses of $29,243 which includes the following monthly expenses, which I find should not form part of her monthly budget for spousal support purposes, for obvious reasons:
$350 per month towards the repayment of her debts (yet her financial statement reveals that she has no debt);
$250 per month towards the cost of the family vacation she paid for Talitha’s family in 2016 (Ms. Bloom may choose to fund a vacation for the parties’ daughter and her family, but not at the expense of Mr. Bloom), and;
$400 in legal fees.
If all of these expenses are taken out of her budget, her total yearly expenses are $17,243. She has no housing and no transportation expenses, which I can only presume are assumed in full by her husband.
[15] Ms. Bloom and Mr. Duffus also receive $150 every two weeks from Ryan, the parties’ adult son, who currently resides with them. Ms. Bloom does not appear to have any assets, with the exception of her 50% share of Mr. Bloom’s pension plan which she has invested.
Mr. Bloom’s financial circumstances
[16] At the time of the parties’ separation, Mr. Bloom worked full-time for the City of Ottawa and earned roughly $65,000 per annum. He declared bankruptcy in 2011. His current income as a city worker is in the range of $70,000 (which includes overtime). Through his employment, he has access to benefits and continues to contribute to a pension plan which has been divided at source following the separation. In July 2016, Mr. Bloom took on a second job as a pizza delivery person to make ends meet, and to pay for legal fees. He is currently residing with his girlfriend, Mrs. Schwartz, who has a full-time permanent job with the government. Ms. Schwartz was diagnosed with a brain tumour and was on medical leave for 18 months during 2014/2015. She had to return to work due to financial constraints and filed a consumer proposal in 2015. Ms. Schwartz earns in the range of $56,565, and assumes 50% of the household expenses.
[17] In November 2016, Mr. Bloom started to see Ms. Blackburn, a clinical social worker and psychotherapist, to help with multiple mental health issues. In her letter dated June 21, 2017, she indicates that Mr. Bloom has been struggling with a history of anxiety and panic attacks, sleep difficulties and nightmares, depressive episodes, alcohol abuse as self-medicating, and unresolved childhood traumas. She indicates that these symptoms have interfered with his work due to an increase in sick leave over the past several years. She also indicates that Mr. Bloom had to interrupt his treatment for several months due to financial limitations.
[18] Mr. Bloom’s total income since the 2012 Order was as follows:
2013: $71,861
2014: $70,443
2015: $73,218
2016: $73,649
[19] The various paystubs and T4’s filed into evidence by Mr. Bloom confirm that his total employment income from the City of Ottawa includes overtime. In 2016 and in 2017, his total income will also include income earned while employed as a pizza delivery person for Mama Rosa restaurant. Mr. Bloom and Ms. Schwartz do not own a home. Mr. Bloom’s assets consist of a 2010 Hyundai Elantra which is fully financed, and his pension with the City of Ottawa (divided following his separation from Ms. Bloom). He owes a small personal loan to an unknown person.
The nature of the spousal support obligation
[20] At the time of the parties’ separation, Ms. Bloom was relatively young at 39 years of age and in good health. The evidence before me suggests that the parties shared between them the responsibilities related to their children, although Ms. Bloom appears to have assumed a larger role in the care of the children when they were younger. Ms. Bloom’s evidence is that she stayed home with the eldest child for three months. Mr. Bloom’s evidence is that the children continuously attended daycare on a full-time basis until they started school, thus allowing both parties to pursue their employment opportunities. The parties continuously worked and lived in Ottawa, and the evidence does not show that either party forfeited career opportunities to support the family or the other party’s career. In fact, I note that during the marriage Ms. Bloom was able to acquire a college education, and that for at least five years before the parties’ separation, she was earning a good income.
[21] The evidence before me suggests that both parties did what they could, based on their respective qualifications and the demand of raising a young family, to contribute to the family’s day-to-day expenses. Since Mr. Bloom had a full-time, permanent and higher paying job, more of his time was spent working outside of the home and he was able to work overtime, thus maintaining the family’s standard of living including during Ms. Bloom’s periods of unemployment. Given the nature of Ms. Bloom’s work, which was contractual, more flexible and less lucrative, she was able to take on a larger portion of the child care and household responsibilities. There is no doubt that the breakdown of the parties’ marriage resulted in significant economic disadvantages for Ms. Bloom as she was obviously unable to maintain the same standard of living post-separation as she enjoyed during her marriage.
[22] However, and while there is undoubtedly some compensatory element to the 2012 Spousal Support Order, I am of the view that Mr. Bloom’s spousal support obligation towards Ms. Bloom was mainly non-compensatory and established based on her needs and on Mr. Bloom’s ability to pay at the time. At a total income of $65,000 per annum for Mr. Bloom, and an established history of earnings in the range of $35,000 for Ms. Bloom, there was a heavy burden on Ms. Bloom to secure full-time, gainful employment and to contribute to her own support and achieve self-sufficiency. Further, the fact that the final order states that Ms. Bloom’s bankruptcy will constitute a material change in circumstances suggests strongly that her having assumed the parties’ debts following Mr. Bloom’s bankruptcy was an important factor in establishing the quantum of spousal support. Ms. Bloom’s bankruptcy and her remarriage to Mr. Duffus significantly change the precarious financial landscape of 2012.
Variation
[23] As stated above, in light of the parties’ very modest means and their relatively young age at the time of their physical separation in 2008, there was a heavy burden on Ms. Bloom to take all necessary steps to enable her to contribute to her own support and, to the extent possible, to become self-sufficient within a reasonable amount of time. I find that Ms. Bloom has made no effort whatsoever in that regard. In fact, I find, based on the evidence before me, that Ms. Bloom had no need to seek gainful, full-time employment because the economic advantages stemming from her cohabitation with Mr. Duffus, coupled with the spousal support she received, met all of her needs. Mr. Duffus’ contributions to her day-to-day living expenses allowed her to continue to work part-time in a job that she loved, without having to make further efforts to achieve self-sufficiency.
[24] While it is open for Ms. Bloom to choose to earn less than what she is able to earn, she cannot do so at the expense of Mr. Bloom. She was able to earn up to $41,000 per annum working office jobs and doing house cleaning work during the later years of her marriage to Mr. Bloom, and there is no evidence before me that would suggest that she has any health issue or other impediment that would affect her ability to be gainfully employed on a full-time basis. She is still relatively young at 47 years of age and in good health. Mr. Bloom is currently 53, and the evidence before me suggests that his mental health is poor.
[25] I find that Ms. Bloom currently enjoys a higher standard of living than Mr. Bloom. This is created in part by the fact that, in light of the spousal support currently paid by Mr. Bloom, there is a combined annual gross income of approximately $145,000 in Ms. Bloom’s household whereas there is a combined annual gross income of approximately $115,000 in Mr. Bloom’s household, which is achieved in part due to Mr. Bloom’s overtime work and second job. If spousal support was terminated, Ms. Bloom’s household would benefit from a combined annual gross income of approximately $133,000, whereas Mr. Bloom would benefit from a combined annual gross income of approximately $138,000. If Ms. Bloom was earning an income commensurate with what she is able to earn based on her employment history during the last years of her marriage to Mr. Bloom, which I estimate at $35,000 at a minimum, her household would benefit from a combined gross annual income of $151,000.
[26] I have looked at the SSAG calculations provided to me by Mr. Bloom’s counsel. While it is clear that the Spousal Support Advisory Guidelines apply to variation proceedings, in appropriate circumstances, I am of the view that in this particular set of facts they are of no use to me. In Gray v. Gray, 2014 ONCA 659, the Court of Appeal stated:
43 This court commented in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241 (Ont. C.A.), at para. 96 that the SSAG only apply to initial support applications, and not to variation proceedings. Fisher was not a variation proceeding that entailed consideration of s. 15.3 of the Divorce Act. At the time of Fisher the final publication of the SSAG had not been released. The July 2008 SSAG publication contemplates that the guidelines have a role to play on variation. The SSAG expressly comment that it should be possible for either spouse to apply to cross over from the "with child support" formula to the "without child support" formula, to affect the amount of spousal support ordered.
45 In some cases, there are complicating factors that must be considered before a court applies the SSAG wholesale. Complicating factors that courts ought to consider include variations based on the post-separation income increase of the payor, or situations with second families. In such cases, the court must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.
[27] Based on the specific facts of this case, where spousal support is mainly non-compensatory, I find that it is more appropriate for me to look at all of the parties’ circumstances including their means, needs and current standard of living, and I find that the spousal support ranges suggested by the SSAG are not useful.
[28] In light of all the above, I am of the view that Ms. Bloom does not currently have a need for spousal support and that in all of the circumstances of this case, there should be no obligation for Mr. Bloom to pay spousal support at this time. However, in light of the lengthy marriage of the parties, the disparity in their respective income (even after imputing a $35,000 income to Ms. Bloom, which I find she is able to earn), the economic consequences arising from the dissolution of the parties’ marriage and the fact that Ms. Bloom’s current relationship with Mr. Duffus has been ongoing for only seven years, I am not prepared to terminate spousal support altogether at this time. Mr. Bloom’s spousal support obligation towards Ms. Bloom will be reduced to the nominal amount of $1 per month for a period of five years, after which it shall terminate unless varied as a result of a material change in circumstances occurring within the next five years.
Effective date
[29] The evidence shows that Mr. Bloom first attempted to negotiate a termination of his spousal support obligations in August 2016. As no progress was achieved, he initiated his Motion to Change in October 2016, one year ago. I am mindful of the financial impact that a termination of spousal support retroactive to the date of filing of this Motion to Change might have on Ms. Bloom. I am also mindful of the fact that there is some compensatory element to Mr. Bloom’s spousal support obligation, albeit much less significant than the element of need. I am also mindful of the fact that Ms. Bloom has known since at least August 2016 that Mr. Bloom was seeking a termination of his spousal support obligation, and she ought to have been aware of the significant financial consequences that would flow from a finding that spousal support should be terminated or reduced. In all of the circumstances, I find that spousal support should be reduced to $1 per month effective April 1, 2017. Any overpayment of spousal support made by Mr. Bloom shall be repaid to him by monthly payments of $300 until fully repaid.
[30] If the parties are unable to reach an agreement on costs, they may provide me with brief submissions not exceeding two pages (excluding Bills of Costs and Offers to Settle). Since Mr. Bloom was clearly the successful party in this case, he shall provide me with his submissions within 15 days of this Decision, and Ms. Bloom shall provide me with her submissions within 15 days after that. Mr. Bloom may provide me with a brief reply not exceeding one page, if necessary, within 5 days thereafter.
Madam Justice Julie Audet
Date: November 2, 2017
CITATION: Bloom v. Bloom, 2017 ONSC 6555
COURT FILE NO.: FC-10-2812-2
DATE: 20171102
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JENNIFER BLOOM, Applicant
-and-
BARRY BLOOM, Respondent
BEFORE: Madam Justice Julie Audet
ENDORSEMENT
Audet J.
Released: November 2, 2017