St-Jean v. Fridgen, 2017 ONSC 7680
CITATION: St-Jean v. Fridgen, 2017 ONSC 7680
KINGSTON COURT FILE NO.: 48/12
DATE: 20171221
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rachel Micheline St-Jean, Applicant
AND:
George Edward Fridgen, Respondent
BEFORE: Justice A. C. Trousdale
COUNSEL: G. Edward Lloyd, Counsel for the Applicant
Kenneth J. M. Coull, Counsel for the Respondent
HEARD: August 1, 2017 and in chambers on August 25, 2017
ENDORSEMENT ON MOTION TO CHANGE
[1] This is a Motion to Change brought by the Respondent, Mr. Fridgen to vary the consent order of this court made April 16, 2013 to:
(a) terminate spousal support of $1,500.00 per month for the Applicant, Ms. St-Jean effective December 31, 2015; and
(b) to terminate the requirement that Mr. Fridgen keep in good standing an existing life insurance policy on his life and that he designate Ms. St-Jean as irrevocable beneficiary of $100,000.00 of that life insurance policy so long as Mr. Fridgen has an obligation to pay spousal support to Ms. St-Jean.
[2] Mr. Fridgen’s requests are based on his retirement from his employment on December 18, 2015 and his subsequent drop in income. He states that he has had medical problems and that he has been diagnosed with cardiovascular disease which will require surgical intervention.
[3] Ms. St-Jean acknowledges that there should perhaps be some reduction in the spousal support paid by Mr. Fridgen although she believes that he could have continued to work beyond age 65, but voluntarily chose to retire. She takes issue with Mr. Fridgen retiring without prior notice to her and arbitrarily ceasing the payment of spousal support on January 1, 2016 which substantially affected her financial situation. Ms. St-Jean also takes the position that the spousal support ordered on April 16, 2013 was compensatory in nature and that accordingly the support should not be terminated at this time. Ms. St-Jean argues that there should not be a termination of spousal support and that perhaps there should be a phase-out of spousal support over time.
[4] This motion was heard by me on affidavit evidence at the hearing of the motion to change on August 1, 2017. At my request the matter was adjourned for subsequent filing of each party’s 2016 income tax return and DivorceMate calculations with the court by August 25, 2017 when I considered those documents in chambers.
[5] The parties married on June 8, 1985. There were four children born of their marriage. The children are now adults and have finished their education.
[6] At the date of marriage, Ms. St-Jean was a Registered Nurse. Mr. Fridgen was an elevator installation technician.
[7] Ms. St-Jean stayed home to care for the four children of the marriage for some part of their childhood and then started working full-time again. Neither of the parties advised in their affidavits the exact number of years that Ms. St-Jean was out of the work force. Ms. St-Jean in her affidavit sworn July 24, 2017 states that “I made significant sacrifices in my career in order to be at home to raise our four children while the Respondent continued in his career. While I was in a good career prior to leaving the workforce to bear and raise our children, I discovered on my return that my options had become limited.” Mr. Fridgen worked throughout the marriage.
[8] The parties separated on April 1, 2010 after almost 25 years of marriage. At the date of separation Ms. St-Jean was 51 years old and Mr. Fridgen was 59 years old.
[9] On the morning of trial on April 13, 2013, the parties filed Minutes of Settlement which provided that Mr. Fridgen pay spousal support to Ms. St-Jean in the sum of $1,500.00 per month commencing on May 1, 2013. Mr. Fridgen was also to keep his life insurance policy in place and to designate Ms. St-Jean a beneficiary of $100,000.00 of that policy for as long as he has an obligation to pay spousal support to Ms. St-Jean.
[10] On December 19, 2015 Mr. Fridgen attained 65 years of age. On December 31, 2015 Mr. Fridgen retired from his employment without any prior notice to Ms. St-Jean that he intended to retire.
[11] Mr. Fridgen unilaterally stopped paying spousal support to Ms. St-Jean without her consent effective January 1, 2016. He did not advise Ms. St-Jean that he was going to stop paying the spousal support which caused financial hardship to Ms. St-Jean. At the time Mr. Fridgen retired and stopped paying spousal support, Ms. St-Jean was 57 years old.
[12] Ms. St-Jean then filed the April 16, 2013 order (“the current order”) with the Office of Family Responsibility for enforcement.
[13] Mr. Fridgen commenced this Motion to Change on June 9, 2016 with the first return date on July 20, 2016.
[14] Mr. Fridgen brought a temporary motion which was heard on October 26, 2016 for a stay of enforcement of both arrears of spousal support and a stay of enforcement of ongoing spousal support. A temporary order was made limiting enforcement of arrears to $10,500.00 and staying enforcement of ongoing support. It was also ordered that pending the outcome of the Motion to Change, enforcement was limited to $450.00 per month.
ISSUES
[15] The issues in this matter are as follows:
(1) Has either party had a material change in circumstances?
(2) If there has been a material change in circumstances, should there be any change of the spousal support order made on April 16, 2013 by termination or reduction of the spousal support order?
(3) If there should be any change of the spousal support order, at what date should a change be effective?
(4) If there has been a material change in circumstances, should there be any change in the requirement for Mr. Fridgen to maintain the life insurance required in the order made April 16, 2013?
ANALYSIS
[16] As the current order was granted pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. (“the Act”), variation of the order is governed by Section 17 of the Act. Relevant portions of s.17 of the Act to this case are as follows:
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.
17 (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.
17 (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
17 (7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) 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.
Has there been a material change in circumstances since the April 16, 2013 order?
Mr. Fridgen’s Financial Situation
[17] On the evidence before me, I find that Mr. Fridgen’s total income in 2013 was $116, 466.00 which was the year the current order was made. I have no information as to what his income was for 2012.
[18] Mr. Fridgen’s total Line 150 income since then is as follows:
2014 $127,332.00
2015 $128,169.00
2016 $69,517.91
[19] Mr. Fridgen’s 2016 total income is made up of the following amounts:
Employment pension $ 56,336.19
Canada Pension Plan $ 13,110.00
Interest/Investment $ 71.72
Total $ 69,517.91
[20] On the evidence before me, Mr. Fridgen originally chose to receive Old Age Security (“OAS”) when he turned age 65. However, very shortly thereafter Mr. Fridgen rescinded that request and chose to defer claiming OAS to a later date by paying back the one or so payments he had already received. Mr. Fridgen did this presumably to increase his OAS pension by deferring the claim to a later date, and it also resulted in a reduction of his income for the purposes of this Motion to Change.
[21] Mr. Fridgen is entitled to defer his OAS pension if he wishes. However, in my view, for the purpose of determining Mr. Fridgen’s income for the purpose of this Motion to Change, income should be imputed to Mr. Fridgen for the OAS pension he was entitled to claim after his 65th birthday.
[22] Mr. Fridgen’s evidence is that if he had claimed the OAS pension, he would have received $6,878.82 additional income in 2016. Ms. St-Jean’s calculations in her DivorceMate calculations is that Mr. Fridgen would have received $7,712.00 additional income. I have no independent evidence from OAS as to the OAS pension Mr. Fridgen would have received in 2016, but I do not believe that small difference between the two figures will have any substantial effect on this matter. Depending on the amount of imputed OAS, Mr. Fridgen would have had an adjusted gross income in 2016 of between $76,396.33 and $77,229.91.
[23] I find that Mr. Fridgen’s annual income has decreased by 1/3 as a result of his retirement.
[24] Unfortunately, neither party filed up to date sworn Financial Statements for the hearing as required by Rule 13 (12.2) of the Family Law Rules, O.Reg. 114/99, as am. (“the Rules”) nor did either party serve and file an affidavit pursuant to Rule 13(12) that the financial information had not changed. As a result, Mr. Fridgen’s last Financial Statement is June 7, 2016 and Ms. St-Jean’s last financial Statement is September 26, 2016.
[25] Mr. Fridgen continues to reside in the former matrimonial home which he received as part of the equalization of net family property. Although he was required to do so as this matter involves spousal support, Mr. Fridgen did not complete and attach Schedule B to his Financial Statement dated June 7, 2016 so he did not advise the court as to whether he has remarried or is living with someone else. He indicated on his 2016 income tax return that he was “divorced”. There is no evidence before me that Mr. Fridgen has remarried or is living with someone else who is contributing to his expenses.
[26] Mr. Fridgen states that his home is worth $345,000.00 with a mortgage of $140,000.00 which has a monthly payment of $1,000.00 per month. This mortgage is stated to be payable to G.W. Fridgen and appears to be a private mortgage. At June 7, 2016 Mr. Fridgen had bank accounts totaling $22,316.00 and an RRSP of $24,860.00.
Ms. St-Jean’s Financial Situation
[27] On the evidence of Ms. St-Jean’s 2013 Notice of Assessment filed on the Motion (I was not provided with Ms. St-Jean’s actual income tax return) Ms. St-Jean’s total income for 2013 was $90,690.12 which I am assuming was employment income of $75,990.12 plus $14,700.00 of spousal support. The spousal support is less than $18,000.00 for 2013 as less interim spousal support ($800.00 per month) was paid from January to April, 2013 inclusive in accordance with the current order. I have no knowledge of whether Mr. Fridgen paid any spousal support prior to the spousal support ordered from January 1, 2013. I have no information regarding what Ms. St-Jean’s total income was in 2012.
[28] Ms. St-Jean’s total income since 2013 based on her Notices of Assessments, as I was not provided with her actual income tax returns, are as follows:
2014 $94,653.00 (I assume employment income of $76,653.00 plus spousal support of $18,000.00)
2015 $98,451.00 (I assume employment income of $80,451.00 plus spousal support of $18,000.00)
2016 $84,883.00 (Her T4 indicates employment income of $78,992.26 and the balance comes from other sources not disclosed. Perhaps some of this additional income was spousal support paid by way of enforcement of the current order but this is unknown)
[29] According to Ms. St-Jean’s Financial Statement dated September 26, 2016, Ms. St-Jean resides in a home owned by her with a value of $410,000.00 which has a mortgage of $178,636.47 as at September 26, 2016, and a monthly payment on the mortgage of $1,850.46. Ms. St-Jean’s subsequent evidence is that she has adjusted the amortization of her mortgage to lower her monthly payments but I was not provided with the new monthly payment. Ms. St-Jean’s evidence is that she had hoped to have the mortgage paid off by the time she retired at age 65 but she will no longer be able to do this.
[30] As at September 26, 2016 Ms. St-Jean had a line of credit on her home with a principal amount of $46,199.65 with interest payments of $200.00 per month, an outstanding Visa account of $2,465.00, and another credit card account of $2,200.00. Her other assets are her HOOPP pension and RRSP funds of $134,826.00. Although she was required to do so, Ms. St-Jean did not complete Schedule B attached to her Financial Statement dated September 26, 2016, so she did not advise the court as whether she is remarried or living with someone else. There is no evidence before me that Ms. St-Jean has remarried or is living with someone else who is contributing to her household expenses.
[31] I am required to determine whether there has been a material change in circumstances since the making of the current order.
[32] In the case of L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at paragraphs 29 to 36, the Supreme Court of Canada sets out the proper approach to the variation of existing orders under s.17 of the Act as follows:
In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order.
In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370. 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).
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” (p. 688). 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.
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 terms” (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.
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.
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.
In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40, at para. 49). Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).
The threshold variation question is the same whether or not a spousal support order incorporates an agreement: Has a material change of circumstances occurred since the making of the order? (See Willick; G. (L.); Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.)
[33] The current court order does not state that the spousal support may be varied in the event of a material change in circumstances, nor does it set out any factors which may be considered to be a material change in circumstances for either party. It does not contain any termination date for support.
[34] Mr. Fridgen relies upon his retirement at age 65 and his resulting drop in income as a material change in circumstances. Is Mr. Fridgen entitled to retire at age 65 or should he be required to work longer? There is no evidence that Mr. Fridgen was required by his employer to retire at age 65.
[35] Mr. Fridgen states that he has had hypertension for several years which was treated medically and that he has recently been diagnosed with cardio-vascular disease which will require surgical intervention. However, there was no medical evidence produced by Mr. Fridgen regarding his medical condition, nor that he had to retire because of his alleged medical condition.
[36] On the evidence, I find that Mr. Fridgen voluntarily decided to retire at 65 years of age.
[37] Whether a support payor spouse may seek a reduction or termination of spousal support upon retirement depends on an examination of the individual facts and circumstances of each case which may include:
(a) The age of each party at the date of separation and at the current date;
(b) The length of the marriage;
(c) Whether there were children born of the marriage;
(d) The role which each party played in the marriage;
(e) The financial circumstances of each party at the date of separation and at the current date including income, expenses, assets and debts;
(f) Whether either party has re-partnered;
(g) The medical situation of each party if relevant, supported by medical evidence;
(h) Whether there has been a material change in circumstances of either party;
(i) Whether the spousal support was needs-based support or compensatory support or contractual support or some combination thereof;
(j) The period of time subsequent to separation and/or the order that the support payor spouse has paid spousal support;
(k) What the intention of the parties was at the date of the order and/or the date of the separation agreement, if ascertainable from the order and/or separation agreement;
(l) Whether the order and/or separation agreement dealt with the issue of retirement or with the issue of age of retirement;
(m) The reasons for retirement including whether the retirement was voluntary or was beyond the control of the support payor spouse;
(n) Whether either party has any economic advantages or disadvantages arising from the marriage or its breakdown;
(o) Whether there are 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;
(p) Whether there is any economic hardship of the former spouses arising from the breakdown of the marriage;
(q) Whether each spouse is or may become economically self-sufficient within a reasonable period of time;
(r) What, if any, is the range of spousal support provided for pursuant to the Spousal Support Advisory Guidelines on the parties’ incomes at the current time; and
(s) Any other relevant circumstance.
[38] In my view, there is no hard and fast rule to be applied in every case about when or at what particular age a support payor is entitled to retire and seek a reduction or termination of spousal support. An examination of the facts of each particular case is required and this examination may result in a different conclusion in different cases depending on the specific facts of each case.
[39] I note that in Canadian society, age 65 is generally considered to be a customary age of retirement for many people. For example, the Ontario Old Age Security pension is available to Ontario residents once they attain the age of 65 years. The Canada Pension Plan pension is available to those who have contributed to the Plan and who are 65 years of age without deduction. If a person wishes to start receiving the Canada Pension Plan after attaining 60 years of age but prior to age 65, the lifetime pension will be reduced proportionately. If a person defers receiving the Canada Pension Plan to a later date, the lifetime pension will be increased proportionately.
[40] I have been provided by Ms. St-Jean with a copy dated April 12, 2010 of the actuarial valuation of Mr. Fridgen’s employment pension as at the date of separation on April 1, 2010 as well as an unsigned undated copy of a Net Family Statement of Ms. St-Jean, which she alleges reflects the asset and debt situation of the parties at the date of separation. I note that the value shown for Mr. Fridgen’s pension in the Net Family Property Statement is the same value shown in the actuarial valuation of the pension for a retirement by Mr. Fridgen at age 65. This brings me to the conclusion that the parties settled the value of the pension on the basis of an anticipated retirement date by Mr. Fridgen of age 65. However, I note that the settlement on that basis was in relation to the value of the pension at the date of separation as opposed to when spousal support should be reduced or terminated.
[41] I note from the actuarial valuation of Mr. Fridgen’s pension that at the date of separation he had 36.25 years of credited service. By the date of his retirement on December 31, 2015 he would have had 41 years of credited service.
[42] Based on the facts of this case, I do not find it unreasonable that Mr. Fridgen wanted to retire at age 65 after 41 years of work at this employment.
[43] I find on the facts of this case that the retirement of Mr. Fridgen was a material change in circumstances as Mr. Fridgen’s total income declined by one third from his total income at the date of the current order.
[44] I find that Ms. St-Jean’s income has increased from $75,990.12 to $78,992.00 since the date of the current order. I find that this modest increase is not a material change in circumstances.
Should there be any reduction or termination of the spousal support?
[45] The parties were married for 25 years and Ms. St-Jean stayed at home for a period of time to give birth to four children, with the last birth being twins. Ms. St-Jean’s evidence is that she stayed home after the birth of the children to raise the children and as a result she has suffered financially. She states that she has particularly suffered financial detriment in terms of the amount of pension income that she will have on her retirement due to the length of time she was out of the work force raising the children during the marriage. Ms. St-Jean plans on retiring at age 65 which will be in 2024, and she states that her pension income on retirement including her employment pension, CPP and OAS pension will be half of what pensions Mr. Fridgen is entitled to receive on his retirement. I have no independent evidence of that assertion at this time, although in comparing the valuation of the pensions of the parties as at the date of separation, that may well be the case.
[46] Mr. Fridgen’s position is that Ms. St-Jean should not be entitled to any spousal support out of his pension income as this would constitute “double-dipping” because his employment pension was part of the equalization of net family property.
[47] On the evidence before me, including the April 12, 2010 valuation of Mr. Fridgen’s pension, the total pre-tax value of Mr. Fridgen’s pension at the date of separation was $427,483.00. The pre-tax value of the pension allocated to the marriage assuming age 65 retirement was $292,621.00.
[48] Mr. Fridgen had 11.44 years of pre-marital service pension entitlement which had an allocated pre-tax value of $134,862.00 and which was 31.55% of the total value of the pension at the date of separation. Mr. Fridgen also earned over 4 and a half years of post-separation pension. Mr. Fridgen’s post-separation years of employment increased his annual lifetime employment retirement pension by almost $10,000.00 per year from the calculation of his lifetime annual pension at the date of separation, being an increase from $47,528.00 per year to $57,093.00 per year.
[49] I find that neither the pre-marital nor the post-separation portions of Mr. Fridgen’s pension were part of the equalization of net family property.
[50] By comparison, the pre-tax value of Ms. St-Jean’s employment pension at the date of separation was $98,000.00 all of which was included in the equalization of the net family property as it was all accumulated during the marriage.
[51] Accordingly, on the facts of this case, an order for spousal support for Ms. St-Jean would not necessarily constitute double-dipping as there is a significant portion of Mr. Fridgen’s pension which was not part of the equalization of the net family property.
[52] Unfortunately, I was not provided with any evidence of the exact time period during which Ms. St-Jean was out of the work force. However, there is evidence that the parties did have four children and that Ms. St-Jean stayed at home for some period of time to look after the children.
[53] The current order is a bare bones support order with no details other than the amount of spousal support and the commencement date for the spousal support. It does not state whether the support is needs-based support, compensatory support or some combination of the two. There was no evidence before me that the parties ever had a separation agreement.
[54] At the date the current order was made, on the evidence before me I find that there was some element of needs-based support as the parties had a lengthy marriage of 25 years and there was a disparity between the incomes of the parties with Ms. St-Jean’s 2013 employment income being $75,990.12 and Mr. Fridgen’s 2013 employment income being $116,466.00. On her income, Ms. St-Jean would not have been able to maintain a standard of living, commensurate with the standard of living she enjoyed during the marriage, without the spousal support.
[55] Given the evidence that Ms. St-Jean was out of the work force for some period of time to give birth to the four children and to care for the children, which would have given Mr. Fridgen the ability to carry on with his career and to increase his income and pension, I find that there was also an element of compensatory support.
[56] The current financial situation of the parties is that Ms. St-Jean has a slightly higher annual income than Mr. Fridgen. Ms. St-Jean’s income according to Mr. Fridgen is $84, 883.00. Ms. St-Jean submits that her income is her income from employment in 2016 of $78,992.00 (2016 T4) less union dues of $1,136.00 for a total of $77,866.00. Mr. Fridgen’s income from his pensions including imputed OAS income is $76,396.33 according to Mr. Fridgen, or $77,229.91 according to Ms. St-Jean, with the difference being attributable to each party submitting a different number for the imputed OAS income.
[57] I have been provided with Divorcemate calculations by each of the parties. Based on Mr. Fridgen’s calculations, which include his pension income and an imputed amount of income to him as if he were actually receiving OAS, and Ms. St-Jean’s 2016 Line 150 income ($84,883.00), the Spousal Support Advisory Guidelines provide that there should be no spousal support payable by Mr. Fridgen to Ms. St-Jean at this time. Mr. Fridgen relies on the case of Slongo v. Slongo, 2017 ONCA 272 where the Ontario Court of Appeal stated that while the Guidelines are not binding, they should not be lightly departed from.
[58] One of the two DivorceMate calculations submitted on behalf of Ms. St-Jean improperly deducts Ms. St-Jean’s registered pension plan contributions from her income which is contrary to the Guidelines. The other calculation makes a cash flow adjustment equivalent to Ms. St-Jean’s union dues and her contributions to her pension plan. Both those calculations were customized with suggested spousal support amounts. Unfortunately, I was not provided with the usual calculation which would have shown whether any spousal support would have been payable according to the Guidelines. As Ms. St-Jean did not provide those calculations, I am assuming that those calculations would have indicated that no spousal support was payable on the current incomes of the parties pursuant to the Guidelines.
[59] I find that at the present time, Ms. St-Jean and Mr. Fridgen are in fairly similar financial positions both in terms of income and in terms of assets and debts. Ms. St-Jean has set out in her financial statement dated September 26, 2016 that her expenses exceed her income by approximately $609.00 per year, but that was with a mortgage payment of $1,850.46 per month, which was paying off approximately $12,000.00 per year on the principal of the mortgage. Ms. St-Jean has changed her amortization so that the monthly mortgage payments are lower and she should have a balanced budget now. Accordingly, in my view there should be a variation of the current spousal support order to reflect the material change in Mr. Fridgen’s circumstances and the similar standard of living of both parties at this time.
[60] Given the length of the marriage, the fact that Ms. St-Jean was out of the work force for a period of time to care for the four children of the marriage, the likelihood that Ms. St-Jean has suffered economic disadvantage as a result of the role she played in the marriage and particularly in relation to the funds available to her in retirement, and the fact that there is some element of compensatory support owing to Ms. St-Jean for which she has not likely been adequately compensated since the current order was made, I am not prepared at this time to terminate spousal support. It may very well be that Ms. St.-Jean’s financial circumstances will be much less than Mr. Fridgen’s financial circumstances at the date of Ms. St-Jean’s retirement. As to whether that is the case can be considered at that time based on the circumstances of the parties at that time.
[61] Paragraph 1 of the current order shall be varied to provide that Mr. Fridgen shall pay $1.00 per month spousal support to Ms. St-Jean with that order to be subject to variation in the event of a material change in circumstances of either party which shall include the retirement of Ms. St-Jean.
Commencement Date of This Order
[62] The evidence is that Mr. Fridgen retired effective December 31, 2015 without prior notice to Ms. St-Jean. He unilaterally stopped paying spousal support to Ms. St-Jean effective January 1, 2016 without Ms. St-Jean’s consent or without a court order varying the current order. Ms. St-Jean alleges that Mr. Fridgen very much begrudged paying any support and that he involved their adult children in his campaign to avoid paying support. There is also evidence that Mr. Fridgen used one of the parties’ daughters to deliver his demand that Ms. St.-Jean consent to the termination of spousal support after he stopped making the spousal support payments.
[63] Mr. Fridgen did not commence his Motion to Change until June 9, 2016.
[64] Accordingly, based on the aforesaid facts, I find it appropriate that the variation of spousal support to $1.00 per month shall take place effective July 1, 2016, being the first of the month after Mr. Fridgen commenced his Motion to Change.
Insurance
[65] The current order requires Mr. Fridgen to keep in good standing the insurance on his life issued by Trans-America Insurance Company and to designate Ms. St-Jean as beneficiary of $100,000.00 of that insurance for so long as Mr. Fridgen has an obligation to pay spousal support to Ms. St-Jean.
[66] Mr. Fridgen’s evidence is that the insurance costs $327.62 per month. I was not provided with any further information by either party regarding this life insurance policy. Mr. Fridgen is seeking that the requirement to maintain the insurance be terminated.
[67] In his Financial Statement dated June 7, 2016, Mr. Fridgen was still able to cover all of his expenses on his retirement income (without even imputing OAS) including payment of the life insurance payment without incurring a deficit.
[68] As Mr. Fridgen is still required to pay spousal support to Ms. St-Jean, I find that Mr. Fridgen shall continue to be required to maintain Ms. St-Jean as the beneficiary to $100,000.00 of the insurance on his life with Trans-America Insurance Company. This will secure Mr. Fridgen’s potential increased spousal support liability in the future. Mr. Fridgen’s request to terminate the life insurance provision in the current order at this time is dismissed.
ORDER
[69] Final Order to go accordingly.
COSTS
[70] If the parties are unable to settle the issue of costs between them, either party may serve and file written submissions as to costs of no more than 4 typewritten pages plus a Bill of Costs and a copy of any Offer to Settle by January 31, 2018. If no submissions as to costs are served and filed by January 31, 2018, there shall be no order as to costs. If either or both party files written submissions as to costs, the other party shall have 10 days after being served with the submissions to serve and file reply submissions.
Justice A.C. Trousdale
Released: December 21, 2017
CITATION: St-Jean v. Fridgen, 2017 ONSC 7680
KINGSTON COURT FILE NO.: 48/12
DATE: 20171221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rachel Micheline St-Jean
Applicant
- and -
George Edward Fridgen
Respondent
BEFORE: Madam Justice A. Trousdale
COUNSEL: G. Edward Lloyd, Counsel for the Applicant
Kenneth J. M. Coull, Counsel for the Respondent
ENDORSEMENT ON MOTION to change
Madam Justice A. Trousdale
Released: December 21, 2017