Court File and Parties
COURT FILE NO.: 07-FL-2027-2
DATE: 20180508
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARGARET BERNIER, Applicant
-and-
JEAN DANIEL BERNIER, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Carol Craig, for the Applicant
Beverley Johnston, for the Respondent
HEARD: May 8, 2018
ENDORSEMENT
[1] This is a motion by the Respondent husband (“the husband”) to terminate his spousal support obligation towards the Applicant wife (“the wife”) pursuant to Minutes of Settlement signed by them in December 2009, which were later incorporated into a final divorce order made in May 2010. The husband brought a first Motion to Change in 2014, seeking the same relief. This motion was heard by Sheffield J. and a final decision made by him in September 2014 (“the 2014 decision”). In his detailed reasons, Sheffield J. made the following findings of facts:
− The husband’s assertion that in his present circumstances (52 years old, remarried, 2 young children and a dependant spouse), he intended to retire completely after 35 years in the military was not realistic;
− The husband had not yet fulfilled his spousal support obligations to the wife;
− The wife’s entitlement to spousal support, in light of the length of the marriage (Sheffield J. erroneously stated 19 years; the parties’ relationship was in fact 15 years, 10 months), and the fact that there were no children from that relationship, was non-compensatory;
− The wife had not taken her obligations to make efforts towards self-sufficiency seriously;
− The wife provided insufficient medical history to substantiate any disability or health issues affecting her capacity to work;
− Full-time, minimum wages jobs were more than a realistic prospect for the wife; it was an obligation;
− The husband had paid support for 4 years thus far, and it was appropriate for him to pay for a total of 7 years, reviewable at that time (in 3 years from there).
[2] In making a revised spousal support order, he allowed notional child support for the husband (for his two children), imputed a $15,000 income to the wife and reduced monthly spousal support from $3,925 to $1,000 per month, reviewable in three years.
[3] It is worthy to note that Sheffield J. proceeded on the basis that the parties had been married for 19 years, when in fact they were only married for 15 years (acknowledged by both parties) and that the husband had been supporting the wife for 4 years, when in fact he had been doing so for 7 years (from the parties’ 2007 separation), although only 4 years under the final order.
[4] The husband has therefore been paying spousal support for a total of 11 years now.
[5] Following Sheffield J.’s decision, the wife began to work full-time for a American company (where she lives) as a security guard, earning $16 an hour (U.S.). While she received a total property settlement of over $420,000 in 2010, which included her share of the husband’s pension ($281,653) in the form of a LIRA, as well as nearly $400,000 in spousal support over 11 years, she has very little left to show for it. She filed for bankruptcy in 2015 in the United States, as a result of her debt load. As her home and car were excluded from bankruptcy, she retained her home (a duplex) which has approximately $180,000 in equity and which provides her with rental income of $12,000 (U.S.) I find that the wife’s income at this time is as follows:
− Employment income of $37,815 (this is her actual hourly rate of $16/hr (U.S.) X 35 hrs/wk, converted into Canadian dollars);
− Rental income of $15,583 ($1,000 (U.S.)/month X 12, converted in Canadian dollars);
− Available CPP income $2,292;
− Total: $55,690 in Canadian dollars.
[6] While I acknowledge that the wife has not worked 35 hours/wk at her current job in the past three years, I find that she is required to work full-time hours, be it at this job or by undertaking other work to complement her income. I also include her CPP income, as it is available to her now.
[7] A good portion of oral arguments revolved around whether or not a higher income should be imputed on the husband for support purposes. The husband did in fact retire after 35 years of service with the military in August 2014. He earns roughly $91,000 of pension income, of which only $63,700 is used for spousal support purposes (unequalized portion, as per Minutes of Settlement). His second wife now works full-time earning $75,000 per year, and he is at home caring for his children and the home.
[8] For the purpose of this motion, I do not need to decide whether or not a higher income should be imputed to him, as I find that the husband has fully met his support obligation towards his first wife.
[9] As stated earlier, he has faithfully paid large sums of spousal support over the past 11 years, which is in the upper range (in terms of duration) of the SSAG for a relationship of 15 years (no children). While one can see some small elements of compensatory entitlement to spousal support here, I agree that the wife’s entitlement was mainly non-compensatory. While the wife argues that she is still in need of spousal support, I find that such need, if any, results from the wife’s poor financial management post-separation as well as from her failure to promptly seek full-time, gainful employment after the separation (she was grossly under-employed for 6 years post-separation). Those poor decisions should not be visited on the husband.
[10] Further, I am mindful of the fact that the husband has two young children to care for now and, while the first family-first principle is still well alive in Ontario, I find that in the circumstances of this case, where the husband has dutifully met his support obligation for 11 years, he should now be allowed to prioritize the needs of his two young children.
[11] Final order to go as follows:
The husband’s spousal support obligation to the wife shall be terminated effective May 1, 2018.
The husband’s obligation to maintain a life insurance policy to secure spousal support is terminated effective immediately.
[12] If the parties are unable to agree on costs, they may make written submissions not exceeding two pages (exclusive of Bills of Costs and offers), in accordance with the following timeline:
− The husband is to provide his submissions on or before May 25, 2018;
− The wife is to provide her submissions on or before June 8, 2018;
− The husband is to provide a brief reply (one page maximum), if any, by June 15, 2018.
Madam Justice Julie Audet
Date: May 8, 2018
COURT FILE NO.: 07-FL-2027-2
DATE: 20180508
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MARGARET BERNIER, Applicant
-and-
JEAN DANIEL BERNIER, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Counsel, for the Plaintiff/Applicant
Beverley Johnston, for the Respondent
ENDORSEMENT
Audet J.
Released: May 8, 2018