CITATION: Dubé v. Wabafiyebazu, 2017 ONSC 7170
COURT FILE NO.: FC-08-3296-2
DATE: 20171201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROXANNE DUBÉ
Plaintiff
– and –
GERMANO WABAFIYEBAZU
Defendant
Plaintiff, self-represented
Defendant, self-represented
HEARD: November 14, 2017
REASONS FOR DECISION
AUDET J.
[1] This is a motion by the applicant, Roxanne Mary Dubé (“the applicant”), for an order terminating her spousal support obligations towards the respondent, Germano Ngoma Wabafiyebazu (“the respondent”), pursuant to the Final Order of Justice Kershman dated September 15, 2011 (the “Final Order”).
The 2011 Final Order
[2] The parties were in a common-law relationship from January 1984 to August 2008. They had two children together, namely, Jean Ngoma Wabafiyebazu (deceased in March 2015 at 18 years of age, “Jean”) and Marc Richard Wabafiyebazu born March 18, 2000, currently 17 years of age (“Marc”).
[3] The Final Order was made on consent and provided for the payment by the applicant to the respondent of monthly spousal support in the amount of $2400. How the parties achieved a settlement in the context of the original application and on what basis they agreed to an amount of $2400 per month in spousal support is not set out in a formal separation agreement. The parties at the time were self-represented and they settled at the eve of trial. Their entire agreement was laid out in the two page Final Order signed by Justice Kershman. In addition to the spousal support set out above, the Final Order confirms that the parties share legal custody of the children, both children have their primary residence with their mother; the father has access to them, and the parties’ family residence is to be transferred to the respondent in his sole name.
The Law
[4] Pursuant to s. 37(2) of the Family Law Act, R.S.O. 1990, c. F. 3 (“FLA”), the court may vary a spousal support order if it is satisfied that there has been a material change in the dependent’s or respondent’s circumstances. 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.” The court added:
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.
[5] The material change test was further explained in Dedes v. Dedes, 2015 BCCA 194, 58 R.F.L. (7th) 261 in which 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.
[6] While these cases were decided based on s. 17 of the Divorce Act, 1985, c. 3 (2nd Supp.), the threshold requirement of a “material change” is the same in section 37(2) of the FLA and, therefore, these cases also apply to requests for changes under our provincial legislation.
[7] The onus is on the party seeking a variation to establish that such a change has occurred. L.M.P. v. L.S., 2011 SCC 64, 3 S.C.R. 775.
[8] Once the material change threshold has been met, the court must assess whether or not the original order should be varied, keeping in mind the objectives and factors set out in section 33(8) and (9) of the FLA, and how the material change in the parties’ circumstances affects the original support order. :
Purposes of order for support of spouse
(8) An order for the support of a spouse should,
recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
share the economic burden of child support equitably;
make fair provision to assist the spouse to become able to contribute to his or her own support; and
relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
Determination of amount for support of spouses, parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
a) the dependant’s and respondent’s current assets and means;
b) the assets and means that the dependant and respondent are likely to have in the future;
c) the dependant’s capacity to contribute to his or her own support;
d) the respondent’s capacity to provide support;
e) the dependant’s and respondent’s age and physical and mental health;
f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
h) any legal obligation of the respondent or dependant to provide support for another person;
i) the desirability of the dependant or respondent remaining at home to care for a child;
j) a contribution by the dependant to the realization of the respondent’s career potential;
k) Repealed: 1997, c. 20, s. 3 (3).
l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).
Analysis
Material Change
[9] In order to assess whether or not a material change has occurred, I must review the circumstances that existed at the time of the Final Order, and what was contemplated by the parties at that time. As stated earlier, when the Final Order was made, the parties were self-represented. There is no comprehensive separation agreement that would highlight the basis upon which the spousal support order was made.
[10] In the context of this Motion to Change, the parties were also self-represented. As their affidavit evidence was lacking on many important points, I used the broad powers granted to me pursuant to rule 2(2), (3) and (4) of the Family Law Rules, O. Reg. 114/99 and allowed each party to provide oral testimony during the course of the motion hearing to assist in “filling some of the gaps.” This allowed me to obtain additional evidence with regards to the circumstances in which the original order was made and to clarify some key information as to the parties’ current circumstances. The combination of their written and oral testimonies revealed that the following relevant facts are not seriously disputed.
Circumstances at the time of the original order
[11] The parties met in the early 80s in Ottawa when the applicant was in her early 20s and the respondent in his early 30s. The applicant was in her first year of university (her field of study was not mentioned), and so was the respondent. He had arrived in Canada with an education in economy that he had acquired three years before in his country of origin (Angola), but his diplomas were not recognized in Canada and he was required to begin his university degree all over again. The respondent graduated in 1991 with a Masters in political sciences, option in international relations. Despite his qualifications, the respondent was unable to find work in his field and, in 1994, started his own manufacturing business (Goger Innovation Products Inc.), which built and distributed a patented nonsurgical face lifting device sold worldwide. Based on the respondent’s evidence, his business enjoyed some level of success. Based on the applicant’s evidence, however, the respondent had been unable to make profits out of his self-invented device for years. It was her evidence in the context of this motion to vary that, when the couple was together, the applicant, whose responsibilities and salary rose progressively in the employment of the federal government, assumed all expenses related to the household.
[12] In any event, it is not disputed that once the applicant graduated from university, she became employed with the federal government and continuously rose up as a key employee in the diplomatic field. She remained continuously employed by the federal government throughout the relationship, and to this day. The parties had their two children whom they were raising together during their relationship. In 2005, the applicant was offered the position of Canadian ambassador in Zimbabwe, Angola and Botswana. The applicant accepted the position and the parties moved to Zimbabwe with the children for a period of three years which resulted in the respondent having to close down his business during that time. At the end of the applicant’s posting in Zimbabwe, the parties returned to Ottawa. They separated immediately thereafter.
[13] While the respondent attempted to resume his business activities upon his return to Ottawa, the long absence from the market and lack of finance to pay for good marketing resulted in the business being unable to regain the momentum that it had. At the time of the original order, the respondent (who was 57 years old) was not earning significant income. The applicant, then 49 years old, continued to be employed by the federal government and earned income in the range of $140,000 per annum. As stated earlier, the parties agreed that the children would have their primary residence with their mother and that the father would enjoy large and liberal access to them. Further, as part of the settlement, and even though the parties were not married, the family residence and all of its equity (approximately $250,000) were transferred to the respondent in his sole name.
[14] The parties both confirmed in their oral testimonies that they settled their case at the eve of trial “based on the recommendations made by the judge”. Whether it was at the outset of a last-minute settlement conference or at the beginning of the trial, I am not sure. However, the parties agreed that the respondent would not be paying child support and that the applicant, with whom the children primarily resided, would pay spousal support in the amount of $2400 per month. Looking at the Spousal Support Advisory Guidelines, I note that based on the parties’ respective income back in 2011 ($140,000 vs. lack of stable income), their parenting arrangements, their 24 years of cohabitation and assuming that the applicant made similar mandatory contributions to her registered pension plan then, the spousal support amounts suggested by the SSAG would have ranged between $2950 (low end), $3441 (mid-range) and $3933 (high range) based on 2011 tax rates. As confirmed by the applicant, the respondent’s retaining the equity in the family residence was meant as a partial lump sum spousal support payment, and had the effect of reducing the amount of periodic spousal support that she was required to pay to the respondent on a go forward basis. This level of support resulted in the applicant (and the children) retaining 80% of the combined net disposable income, leaving the respondent with approximately 20%. I am unaware as to whether or not an income was imputed on the respondent to come up with this support amount.
[15] According to the applicant, while the respondent’s income, if any, was not stable at the time of the original order, he was in good health and his unwillingness to find gainful employment had been a growing tension in the parties’ relationship for years. She states that there was a clear expectation on the part of the respondent that the spousal support paid to him and his ability to maintain the family residence would allow him to take meaningful steps towards finding gainful employment.
Material change in circumstances
[16] In January 2015, and with the approval of the respondent, the applicant moved with the children to Miami, United States, to take on the position of Consul General of Canada in Florida. On March 30, 2015, while the applicant and the children lived in Miami, the parties’ eldest son, Jean, was tragically killed during a drug trafficking event gone bad. His brother Marc (only barely 15 at the time) was outside the apartment in which the tragedy took place, sitting in a car. He was charged with first-degree murder in relation to the death of his brother and another teenager who was also tragically killed at the time. Marc’s charges resulted from the Florida “felony” rule which claims that all those deemed to have participated in a crime should bear full legal responsibility.
[17] From then, a highly mediatized legal case unfolded. The applicant lost her position as Consul General and moved into a new location in Miami, at her cost. She then recruited the service of experienced counsels to free her son and was eventually successful in doing so. This, however, came at a great emotional and financial cost to her. Not only did she have to pay for Jean’s funeral costs ($14,600), Marc’s legal bills (three lawyers at a total of $215,000) and Marc’s care while in custody ($500 monthly for food, clothing, telephone calls etc.) as well as her own living expenses ($1800 monthly in rent plus utilities), those costs were greatly increased by the loss of value from a weak Canadian Dollar to the American Dollar (25 to 28% loss throughout 2015/2016). Determined to honour her spousal support obligations and save Marc from the American justice system, the applicant had to sell her house in Ottawa ($60,000 left in equity), obtained a $45,000 line of credit from the bank, cashed in a significant portion of the children’s RESP ($20,000), took a $40,000 loan from her employer and jacked up her credit cards to $28,500, in addition to relying on personal loans from family and friends.
[18] After an 18 month long incarceration at the Miami/Dade County jail during which the applicant remained in Florida while continuing to work in different capacity for the federal government (and receiving a $139,000 annual income), Marc was freed and released from custody. The applicant returned to Ottawa with Marc, and took on the position of Director General, Canadian Foreign Service Institute, at the Department of Global Affairs Canada, earning an annual income of $148,000.
[19] The applicant confirms that Marc has successfully adjusted to the severe trauma that he has undergone, and completed his boot camp in Miami with great success. He completed his high school diploma in December 2016 in Ottawa and is currently enrolled in a law clerk program at Algonquin College. The applicant states that, given the mandatory repayments of the loans incurred, with interest, she is no longer able to cover the cost of Marc’s education or to attend to all of his needs while continuing to support the respondent.
[20] It is undisputed that the respondent, who continues to be unemployed, has not contributed to any of the above expenses related to the boys’ U.S. tragedy. He states that due to the stress associated with Jean’s tragic death and Marc’s criminal charges in the U.S., he has lost control of his diabetes which led to permanent damage to his eyesight. At 63 years of age, he is almost blind. It is admitted by the applicant that the respondent is unemployable at this time.
[21] All of the above clearly constitute material changes in the parties’ circumstances which allow this Court to vary the existing spousal support order, should I deem it necessary having regard to all of the circumstances. The question is whether a variation of the applicant’s spousal support obligation is necessary, and if so, what should that variation be?
Variation of Spousal Support
The parties’ position
[22] The applicant seeks a termination of her spousal support obligation. She says that her depletion of all of her assets, coupled with her obligation to service the debts she incurred as a result of the children’s tragic circumstances of 2015 and her being the sole provider for Marc, leave her with no ability to continue to support the respondent. She is of the view that the time has long come for the respondent to sell his home and use his equity in an income-producing way, something she tried to get him to do for years. She states that the transfer of ownership of the parties’ family residence to the respondent was done based on the understanding that he would take action to become financially independent, either from the proceeds of the sale of his home and\or from employment. She says that the respondent is 63 years of age and will soon be entitled to receive old age security. If he downsizes and uses the equity in his home properly, he will be self-sufficient. The applicant is of the view that her primary obligation at this time is to their son, who requires her financial assistance to complete his post-secondary education. Once her son has completed his post-secondary education, it will still take her years to finish reimbursing all of her debts.
[23] The respondent contests the applicant’s request to terminate spousal support, and seeks an order dismissing the Motion to Change. He takes the position that he remains financially dependent on the applicant, despite her dire financial circumstances. Given his age and current health issues, he is unemployable. While he acknowledges that the applicant bore the entire costs associated with the incarceration of their youngest son as well as the funeral costs of their oldest son, he says that those costs were never discussed with him beforehand, and that there might have been other alternatives available at a lower cost. He says that he has a significant debt load himself, which includes his mortgage and a judgment of $50,000 made against him, as well as credit card debts ($11,000) resulting from his inability to cover his household and living expenses with the spousal support he was receiving. He confirms that he has finally decided to put his home for sale in the summer of 2016, but that so far, he has not been able to sell. He suggests that the applicant should consider bankruptcy, which would restore her ability to pay support to the same level as it was before the 2015 tragedy.
Analysis
[24] In determining the appropriate change required to the applicant’s spousal support obligation in light of the above material changes, I am guided by the following summary of the applicable legal principles stated by Justice McLeod in Charleton v. Coburn, 2016 ONSC 5415:
32 While L.M.P. dealt with variation under the Divorce Act, the principles are similar under the Family Law Act. The Supreme Court has said that on a variation of a spousal support order, the objective is to determine the appropriate change required as a result of the material change. It is not a review of support de novo. The Court adopted the analysis in Miglin v. Miglin that judges making variation orders limit themselves to making the appropriate variation but do not weigh all of the factors required by s. 15. Moreover, the analysis is the same whether the original order was the result of adjudication or of a settlement. In either case, unless a party is seeking rescission, there is a presumption that the original order was correct and in accordance with the objectives of the Act. There is no reason not to apply the same analysis to an order under the Family Law Act.
[25] This was a 24 year relationship which produced two children. By the applicant’s own admission, the respondent was financially dependent upon her throughout the relationship. He left his business behind to move to Africa with her and the children, which allowed her to pursue important career opportunities. It is clear to me that the spousal support in this case was both compensatory and non-compensatory in nature. It is also clear based on the evidence before me, that the respondent will not, at this point, become gainfully employed in light of his recent sight loss.
[26] The applicant is 55 years of age. She continues to be employed by the federal government and currently holds the position of Director General of the Canadian Foreign Service Institute, within Global Affairs Canada. Last year, she earned gross annual income of $155,446. She currently earns $148,000 according to her most recent sworn financial statement. Marc lives with her primarily and sees his father regularly. She currently rents a duplex for her and Marc which costs her $2150 per month. Other than her household contents and federal pension plan (the value of which is unknown), she has no asset. Her current debt load totals $125,850 which includes $16,000 owing to her employer, approximately $75,000 owing to the bank and credit card companies, $10,000 owing to Marc’s American lawyers, and $25,000 owing to family and friends. She services those debts by making total monthly payments in the amount of roughly $2400.
[27] Because she has cashed most of the children’s RESP’s to pay for lawyers and living expenses while in the United States, there remained just enough funds to pay for Marc’s first year in college. She will have to assume future post-secondary education costs on her own from her own monthly cash flow. I have no information that would suggest that Marc is able to contribute to his own post-secondary expenses at this time, given his age and the emotional trauma he has been through.
[28] A look at the applicant’s monthly expenses confirms that the applicant lives a frugal lifestyle. She indicates a monthly expense in the amount of $670 towards Marc’s school tuition, books and school supplies. She spends about $120 per month on Marc’s activities. Her (and Marc’s) total monthly expenses before spousal support, income taxes, pension contributions and automatic deductions are in the amount of $7999, which includes Marc’s post-secondary school expenses in the amount of $670 per month, monthly debt payments in the amount of $2400, housing expenses of $2400 and transportation costs of $800, leaving her and Marc with $1729 per month to spend on food, utilities, clothing and other such expenses. There is no money available or spent on restaurants, vacations, entertainment or other such luxuries.
[29] It is important to note that, while the applicant’s financial position has been completely compromised by the recent events, she continues to hold a high paying position with the federal government and has contributed to a pension plan which will provide her with a steady source of income from the date of her retirement until the time of her death. She still has many years of service ahead of her.
[30] The respondent is 63 years of age and, as stated above, will never be able to earn employment income. In his affidavits, he confirms that he earns rental income of $800 per month. He continues to reside in the family residence which is located in Rothwell Heights, Ottawa, and states that he has taken on boarders to help with the monthly costs and other living expenses. In June 2016, he finally decided to put the home for sale at an asking price of $925,000. He reduced the asking price in January 2017 to $859,000, in the summer of 2017 to $749,000, and in September 2017 to $650,000. At the time of the motion hearing before me, an offer had been made in the amount $625,000, but the purchasers pulled out. According to his latest financial statement, the outstanding mortgage on the home is $415,000. Assuming a final selling price between $600,000 and $625,000, the respondent would be left with equity of between $150,000-$175,000 after the payment of real estate commission and disposition costs.
[31] Other than a 1994 Toyota Land Cruiser and 100% of all issued and outstanding shares in Goger Innovations Products Inc., the value of which is unknown but likely minimal, the respondent has no assets. He has an outstanding balance of $11,000 on his home trust Visa, some outstanding utilities totaling less than $2000, and a judgment of $50,000 against him in favour of a surveyor (Farley et als.). While not disclosed in his financial statement, the respondent owes a significant debt to Revenue Canada in unpaid income taxes, penalties and interests as a result of his not filing income tax returns since the date of separation, and not paying income taxes on the spousal support and rental income he received. A 2014 Notice of Assessment (produced in 2017 upon the respondent’s filing his tax returns for the past several years) confirms that for all years up to 2014, the respondent owed over $29,000. When tax returns for the years 2015 to and including 2017 are submitted, this amount will be significantly higher.
[32] With respect to his monthly budget, while the respondent pays monthly mortgage payments of $2554 per month, he does not appear to be servicing his judgment or CRA debts at this time. The respondent also lives quite frugally. His biggest expense is the cost of his home, which requires most of his available income to maintain.
[33] It is quite clear based on the respondent’s financial statement that he has been unable to afford this home for a long time. It is the respondent’s evidence that where he comes from, it is important to leave a financial legacy for your offspring. He indicates that it is important to him as Marc’s father to leave the home to him on his passing. It is for this reason that he held on to this home for so long and that he wishes to be able to purchase a new home with the proceeds from the sale of his current home.
[34] In her evidence, the applicant confirms that because the respondent has lived in Canada for 38 years, he will be entitled to receive old-age security when he reaches 65 years of age. She also states that she has offered the respondent on several occasions to assist him in filing an application for disability benefits with the government of Ontario, as it is clear that the respondent is unable to work at this time due to his health issues. However, the respondent has ignored those offers and there is no evidence before me that would suggest that he has taken any steps to secure this alternate source of income that might be available to him.
[35] These parties are both in dire financial circumstances. When the respondent sells his home, his current debt will eat up an important part of his equity in the home. There will be little left to try and produce a flow of income sufficient to fulfil his ongoing needs. At the same time, the applicant should not be made responsible for the respondent’s financial choices post-separation. While I acknowledge the respondent’s desire to leave a legacy to his son, Marc’s needs when he was incarcerated and his current need to obtain an education are\were far more important and should have taken precedence. Being unable to sustain the housing costs related to his home, and being unable to work, the respondent should have taken steps promptly to dispose of his home in order to secure as much equity as possible and secure a flow of income, as the applicant insisted he does.
[36] Similarly, the applicant should not be made to pay spousal support as a result of a need on the part of the respondent that arises from his choice to litigate post-separation despite his very limited means ($50,000 cost award against him) or to fail to file his income tax returns and pay his taxes on time.
[37] For the purpose of this motion to vary, I must assume that the Final Order was made correctly and met the objective of the Act: L.M.P. v. L.S. 2011 SCC 64, 3 S.C.R. 775, par. 33 & 46. The respondent’s equity in the home at the time of the settlement, in the amount of approximately $250,000, should have continued to grow, not decreased to nil. For the purpose of assessing current spousal support obligations, I take into account that the respondent received the approximate sum of $250,000 in lieu of lump sum spousal support back in 2011. I also take into account that the parties deemed it appropriate for the respondent to receive approximately 20% of the combined net disposable income.
[38] Similarly, the respondent had a positive obligation at the time of the parties’ separation, almost 10 years ago, to take steps towards becoming gainfully employed. According to the applicant, this was clearly reiterated at the time of the parties’ settlement in 2011, and that positive obligation formed the basis of the spousal support order that was made back then. I have no evidence before me that would suggest that the respondent took any steps to obtain gainful employment. All I know is that it is only following the tragic events of 2015 that the respondent lost the use of his sight, and became unemployable. He had eight years within which to contribute to his own support and plan for his future.
[39] With regards to the respondent’s ability to claim old-age security, he will not be able to do so until he reaches the age of 65 and given that this is still almost two years away, a new spousal support order cannot take into consideration that future source of income. If and when he becomes entitled to receive those benefits, this may constitute a material change in circumstances allowing for a subsequent variation in spousal support (or not, based on the circumstances at that time).
[40] This leaves this Court with very difficult choices to make. In the face of terrible financial circumstances on the part of both parties, of the needs of a child who has gone through a very traumatic experience and who is now trying to get back on his feet, of the needs of a spouse whose entitlement to support is based on both compensatory and non-compensatory principles, and of a payor spouse’s limited ability to pay due to a significant amount of debts accrued due to extraordinary circumstances, how is this Court to strike a fair balance between all of these competing interests?
[41] What has changed the parties’ financial landscape since the making of the original order is the applicant’s forced depletion of her assets and her taking on a significant debt load. Her being solely responsible for Marc’s post-secondary expenses has also reduced her ability to pay. If she continues to repay her debts at the rate of $2400 per month, this leaves no available income with which to pay spousal support. It is to be noted that as part of her $2400 monthly debt repayment, $878 is garnished from her pay check every four weeks, $550 is paid to the bank monthly pursuant to a four year bank loan, family and friends are repaid at the rate of $500 per month, and $300 is paid towards the minimum interest payment owing on her line of credit and credit cards. While the respondent suggests that bankruptcy would alleviate all of that financial burden, and allow the applicant to give priority to her spousal support payments as opposed to her creditors, I find that, in this case, bankruptcy might very well compromise the applicant’s ability to remain employed with the federal government, and the loss of her employment would be dramatic for this family, more particularly for Marc.
[42] Pursuant to s. 38.1 of the FLA, when financial resources are insufficient to provide for both a child and a spouse, I am required to give priority to the support of the child. The fact that the applicant is supporting Marc on her own without assistance from the respondent, and that the depletion of her assets and accumulation of a significant debt load is the result of her efforts to free Marc from a dreadful fate, militate in favour of a significant reduction in the spousal support payable by her at this time. On the other hand, the applicant has a secure income and a significant pension plan both of which will provide her with long-term financial security, something that the respondent will never have.
[43] This was a long-term relationship during which the applicant was the main provider and the respondent was financially dependent upon her, and his claim for spousal support is based, in part, on compensatory principles. Taking into account the parties’ incomes, which are fairly similar to what they were back in 2011, and keeping in mind the tax deductions associated with the applicant’s mandatory contributions to her registered pension plan and the tax credits that she is entitled to claim with respect to Marc’s tuition fees, the Spousal Support Advisory Guidelines would suggest an amount of spousal support ranging from $2954 at the low end to $3939 at the high range, with a mid-range of $3447. This is not very different than what it was back in 2011. Allowing for a $2400 monthly cash flow deduction to account for the high debt payments currently assumed by the applicant, and leaving the respondent with 20% of the net disposable income (as was the case in the context of the 2011 settlement) would result in a spousal support payment in the amount of $1107 per month.
[44] I am not prepared, based on the evidence before me, to terminate spousal support at this time. However, I am of the view that a significant reduction of spousal support is warranted in the circumstances of this case, and I therefore reduce the applicant’s spousal support obligation to $1100 per month beginning on July 1, 2017. I am fully aware that, in the absence of any other source of income, this amount of support is not going to be sufficient for the respondent to meet his ongoing financial obligations, or to sustain himself. For as long as he remains in his house, the respondent may have to increase the number of boarders in his home to help pay for household costs. He may also need to apply for other sources of income, such as disability benefits. Once the home is sold, he will likely be required to use the net proceeds from its sale to pay for living expenses, at least until such time as he secures old age security benefits. The applicant has also been required to deplete her assets to pay for her and Marc’s living expenses in the past.
[45] The amount of spousal support payable by the applicant may be varied upon the occurrence of a material change in circumstances which includes, but is not limited to, the following:
A change in the applicant’s income in the amount of plus or minus $15,000 per year;
Marc ceasing to be enrolled in a full-time program of post-secondary education;
The applicant’s substantial repayment of her debt incurred as a result of the 2015 tragic events.
[46] On a final note, I wish to add, for the benefit of the applicant who is self-represented, that I have considered her evidence as to the net employment income she receives each month and how that net income is insufficient, based on her own budget calculations, to sustain any amount of spousal support. I wish to clarify that I cannot rely on her calculations because they are flawed by her not taking into consideration the significant tax reduction that results from the various payments that she makes (i.e. mandatory pension contributions, Marc’s tuition and spousal support). For the purpose of clarity, I attach as a Schedule to this Decision, the Divorcemate calculations which form the basis of my decision, in the hope that a lawyer or other knowledgeable financial professional might help the parties understand how I arrived at that figure, and how they can organize their financial affairs accordingly.
Costs
[47] Both parties were self-represented in the context of this Motion to Change. The issues were very important to them and I find that neither acted unreasonably or in a way that would suggest bad faith. In light of their respective financial circumstances, I am not prepared to make any order as to cost and I order that each party shall bear their own legal costs, to the extent that any were incurred.
Final Order
[48] A final order is to go as follows:
As of July 1, 2017, and every month thereafter until further varied by order of the court or an agreement between the parties, the applicant shall pay spousal support to the respondent in the amount of $1100 per month;
The amount of spousal support payable by the applicant may be varied upon the occurrence of a material change in circumstances which includes, but is not limited to, the following:
a. A change in the applicant’s income in the amount of plus or minus $15,000 per year;
b. Marc ceasing to be enrolled in a full-time program of post-secondary education;
c. The applicant’s substantial repayment of her debt incurred as a result of the tragic 2015 events.
- There shall be no costs payable by either party.
Madam Justice Julie Audet
Released: December 1, 2017
SCHEDULE
CITATION: Dubé v. Wabafiyebazu, 2017 ONSC 7170
COURT FILE NO.: FC-08-3296-2
DATE: 20171201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROXANNE DUBÉ
Plaintiff
– and –
GERMANO WABAFIYEBAZU
Defendant
REASONS FOR Decision
Audet J.
Released: December 1, 2017