Court File and Parties

COURT FILE NO.: FC-04-2829-01 DATE: 2018/08/24

ONTARIO SUPERIOR COURT OF JUSTICE (FAMILY BRANCH)

RE: Diane J. Miller -and- Russell W. Miller

BEFORE: Madam Justice D. Summers

COUNSEL: Judy Overgaard, for the Applicant Wade Smith, for the Respondent (Moving Party)

HEARD: January 23, 2018

Reasons for decision

Introduction

[1] There are two central issues in this motion to change. The first is the spousal support variation sought by the Respondent, Mr. Miller. He seeks to terminate his spousal support obligation to the Applicant, Ms. Miller (Ms. Hanna), under the consent Order of Justice R. Smith dated February 6 and March 7, 2007. Mr. Miller claims there has been a material change in circumstance since then. The parties were together for 8 years and had two children. Ms. Hanna was 34 at separation and out of the paid workforce for 4 years. That was almost 14 years ago and Mr. Miller has paid support throughout. Ms. Hanna completed her retraining in 2012 and works only part-time hours. Mr. Miller expected that Ms. Hanna would be self-sufficient by now.

[2] Ms. Hanna opposes the request to terminate spousal support. She states that her contribution to the marriage and to Mr. Miller’s career was such that support should continue indefinitely. She claims the only material change has been the increase in Mr. Miller’s income and that future spousal support be increased accordingly. She does not seek a retroactive adjustment. Ms. Hanna claims that after she finished college, she entered a highly competitive job market that made it very difficult for her to get full-time work. She also argues that her poor health prevents her from working more than part-time hours. According to Ms. Hanna, there was never an expectation that she would be self-sufficient or that support would end.

[3] The second central issue between the parties is the variation of child support for the two children of the marriage, Jayden and Jeffery. There are three parts to Mr. Miller’s variation claim. The first is his request to terminate child support to reflect the fact that Jayden moved to live with him in September, 2010 and Jeffery did the same at the end of 2016. The second aspect to Mr. Miller’s child support claim is his request to be reimbursed for overpayment of child support to Ms. Hanna after January 1, 2017. Third, he seeks an order requiring Ms. Hanna to pay child support for both boys. For that purpose, he asks that income be imputed to her.

[4] It was only on the return of the motion that Ms. Hanna acknowledged her obligation to pay child support for Jeffery. She argues that support should be based on her actual income and not the imputed amount sought by Mr. Miller. The obligation to pay support for Jayden is disputed. Ms. Hanna says he is no longer a child of the marriage for this purpose.

[5] Ms. Hanna seeks a retroactive increase in the amount of child support paid by Mr. Miller to reflect the rise in his income. She asks that the increase take effect January 1, 2011. She did not pursue her claim to recover Mr. Miller’s share of certain expenses under s. 7 of the Child Support Guidelines S.O.R./97-175, as amended (“Guidelines”) alleged to be special and extraordinary.

General Background Facts

[6] Mr. Miller and Ms. Hanna began dating in 1994. He was 27 and she was 24. Mr. Miller had graduated from university four years earlier and was employed with Corel, as the Director of Development.

[7] Ms. Hanna worked at Gamma DynaCare Laboratories where she had been employed since high school. She held a variety of positions over the years and was working as a phlebotomist when she met and married Mr. Miller.

[8] The parties lived together prior to their marriage on August 21, 1998. For the first time since separation on August 9, 2004, Ms. Hanna disputes their date of cohabitation. She claims it was early in 1995 whereas Mr. Miller always said it was June 1, 1996. In the context of this proceeding the length of the relationship is relevant only to spousal support. Mr. Miller produced Ms. Hanna’s 1995 T4 slip indicating her home address that year as Slater Street, Ottawa. This was the only objective evidence provided. Ms. Hanna did not challenge it or dispute that it was Mr. Miller’s home that they shared prior to marriage. I accept Mr. Miller’s evidence and find the date of cohabitation to be June 1, 1996. Their relationship lasted 8 years.

[9] Ms. Hanna worked until their first born son, Jayden, arrived on April 17, 2000. Jeffery, their second child, was born 20 months later on December 21, 2001. Jayden started daycare shortly before Jeffery’s birth. When Jeffery reached 18 months, he joined his brother and both boys went to daycare three days a week.

[10] Ms. Hanna did not return to work.

[11] In August, 2004, Ms. Hanna commenced divorce proceedings. She sought sole custody of the children, primary residence, child support, spousal support and other relief. Mr. Miller sought joint custody and shared parenting. Spousal support was contested.

[12] The parties continued to live separate and apart under the same roof pending resolution of their parenting dispute. In February, 2005 they signed their own kitchen table agreement to facilitate joint and equal parenting for their children while they continued to share the matrimonial home. Each had overnight parenting time alone with the children. Time was also carved out for the four of them to be together as a family. Mr. Miller paid support during this time. I was not provided with evidence of the amount paid. His income at separation was $165,900.00. It was comprised of salary in the amount of $156,000.00 plus a bonus of $9,800.00.

[13] In March, 2005 Dr. Weinberger completed a custody and access assessment. He recommended joint custody and equal time sharing.

[14] On September 14, 2005, the parties signed Minutes of Settlement resolving their parenting issues. They agreed to joint custody. The boys were to live primarily with Ms. Hanna. Mr. Miller had Jayden and Jeffery with him during alternate weekends and one overnight each week. These terms were subsequently incorporated into the Order of Justice C. Hackland, dated November 30, 2005.

[15] It is not clear from the evidence when Mr. Miller moved out of the matrimonial home. Ms. Hanna and the children continued to live in the home until it was sold in 2007.

[16] The consent Order of R. Smith J. bears two dates, February 6 and March 7, 2007. The issues resolved included child support, spousal support, and the sale of the matrimonial home. The case was removed from the trial list and then re-listed on the issue of equalization of net family property only.

[17] Based on Mr. Miller’s 2007 income of $192,360.00, child support was ordered in the amount of $2,483.00 per month and spousal support was set at $4,200.00 per month. Both payments were effective January 1, 2007.

[18] Mr. Miller’s income has increased substantially since separation. He is now a Vice-President at Corel. His 2017 income of $753,301.00 was comprised of salary ($212,000.00), variable executive bonus ($172,130.00) and the last of his stock options ($369,171.00).

[19] Ms. Hanna estimated her 2017 employment income at $24,176.00 which was the same as it had been in 2016. Based on her January, 2018 Financial Statement, her current income is $33,801.00.

[20] This motion to change was issued December 1, 2014. It has been plagued with delays and disagreements since then. Each party blames the other for adjournments and other aborted steps. During the three years that passed before this matter was heard, 13 substantive affidavits and 5 Financial Statements were filed.

The Issues

[21] The issues to be determined are:

1. Child Support

(i) Has there been change in circumstances since the Order of R. Smith J. dated February 6, 2007 and March 7, 2007 that would result in a different child support order under the Child Support Guidelines?

(ii) Is Jayden still a child of the marriage under s. 2 of the Divorce Act, 1985, c. 3 (2nd Supp.)?

(iii) Should income be imputed to Ms. Hanna for purposes of child support?

(iv) Should Mr. Miller be ordered to pay retroactive child support? If so, what is the effective date for the retroactive calculation?

(v) Is Mr. Miller entitled to be reimbursed for overpayment of child support?

2. Spousal Support

(i) Has there been a material change in the means, needs or other circumstances of either Ms. Hanna or Mr. Miller since the Order of R. Smith J. dated February 6, 2007 and March 7, 2007 that is related to spousal support?

(ii) If such a change has occurred, what variation order is appropriate, if any?

(iii) If entitlement is ongoing, should the amount be increased to reflect the post-separation rise in Mr. Miller’s income?

Child Support

(i) Has there been change in circumstances since the Order of R. Smith J. that would result in a different child support order?

[22] Section s. 17(1) of the Divorce Act, 1985, c. 3 (2nd Supp.) (“Divorce Act”) states that a court may vary, rescind or suspend a support order or any provision of it, retroactively or prospectively. The power to vary is discretionary. Before making a variation order, s. 17(4) of the Divorce Act requires that the court must first be satisfied that a change in circumstances has occurred under the applicable Guidelines since the last order was made. For purposes of a variation, s.14(4) of the Guidelines states that a change includes any change in circumstances that would result in a different child support order where support was determined in accordance with the applicable table in the first instance.

[23] Mr. Miller seeks an order directing Ms. Hanna to pay child support for both boys. Jayden moved to live with him in September, 2010, and Jeffery left his mother’s home at the end of December, 2016. The change in each child’s primary residence constitutes a material change in circumstance. Mr. Miller asks that support for Jayden, commence December 1, 2014 being the date he commenced his motion to change. For Jeffery, he seeks payment effective January 1, 2017.

[24] Mr. Miller asks that income be imputed to Ms. Hanna in an amount that reflects full-time earnings for a hygienist and that support be ordered accordingly. This relief was not formally requested in Mr. Miller’s pleadings, however, both counsel made submissions on the issue for the year 2017 and forward.

[25] Ms. Hanna disputes Jayden’s entitlement to child support. She argues that he is no longer under his father’s charge and, therefore, no longer a child of the marriage for support purposes. In January, 2018, for the first time, Ms. Hanna acknowledged her obligation to pay child support for Jeffery. Prior to that, she insisted that he continued to live with her more than 40% of the time. Jeffery confirms that he lived with his father throughout 2017 and he intends to remain with him. Ms. Hanna argues that support for Jeffery be based on her actual earnings.

(ii) Does Jayden remain a child of the marriage?

[26] Section 2(1) of the Divorce Act defines “child of the marriage” as meaning a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life

[27] Ms. Hanna says that Jayden has not lived with Mr. Miller since the end of 2016 and has withdrawn from his charge. Throughout 2016, Jayden struggled with bad choices and was frequently absent from school. By all accounts, 2016 and the first part of 2017 were difficult. In mid-June, 2017, Jayden decided that he was not prepared to live by his father’s rules and moved out. For several weeks over the summer, he went from couch to couch in the homes of friends before asking to return home. Jayden agreed to counseling and by mid-August, 2017, he had moved home. Jayden lives with the challenges of ADHD and Oppositional Defiance Disorder.

[28] According to Jayden, he has lived mostly with his girlfriend since September, 2017. Mr. Miller remains actively engaged with Jayden’s teachers and the school principal. By the end of the 2017 fall semester, all were optimistic that he was on track to graduate in June, 2018. Jayden says after he completes high school, he wants to take a year off and work before going to college.

[29] Mr. Miller continues to provide Jayden with financial support. Ms. Hanna argues that there is no proof of this, however, it is Jayden’s evidence that his dad provides ongoing financial assistance that he appreciates very much. He states his father gives him money for rent and food every month and regularly takes him shopping for food and clothes. Mr. Miller makes sure that Jayden has what he needs to stay in school and remain on the right path. He has kept Ms. Hanna apprised of Jayden’s needs and the steps taken to address them.

[30] Ms. Hanna goes to considerable lengths to characterize Mr. Miller as an uncaring, inattentive and manipulative parent who does not have Jayden’s best interests at heart. She further holds Mr. Miller responsible for the fact that Jayden does not wish to have a relationship with her. The evidence does not support the conclusions that Ms. Hanna urges on the court. Moreover, the allegations are irrelevant to child support.

[31] The fact that Jayden lives with his girlfriend does not mean that he has withdrawn from his father’s charge. He is under 18 and still in school. He is amenable to his father’s guidance and participation in his health and schooling. I find that Jayden remains a child of the marriage for purposes of support. Ms. Hanna is obliged to pay the table amount of child support for Jayden from January 1, 2015 until August 30, 2018. It is expected that he will graduate from high school in June, 2018 and require a brief period to find employment.

(iii) Should income be imputed to Ms. Hanna?

[32] Ms. Hanna argues that support for Jeffery should be based on her actual earnings for part-time employment and not imputed income based on full-time employment as Mr. Miller requests. She also asks that the amount of child support owed to Mr. Miller be set off against the retroactive child support award she seeks from him.

[33] Mr. Miller argues that Ms. Hanna is intentionally under-employed. Section 19(1)(a) of the Guidelines permits the court to impute income to a spouse who is intentionally under-employed or unemployed in the absence of any reasonable educational or health needs that would require it. If intentional and unreasonable under-employment is found, the court can impute income to a spouse in such amount as it considers appropriate in the circumstances.

[34] The Ontario Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) (C.A.) at paragraph 23 set out three questions to be answered by a court when considering a request to impute income. I will answer each in turn.

Question #1 – Is Ms. Hanna intentionally under-employed?

[35] According to the court in Drygala, there is intentional under-employment if a spouse is not earning what he or she is reasonably capable of earning. Ms. Hanna claims that dental hygiene is a highly competitive field. She says that it is difficult to get full-time hours. The evidence does not support this claim.

[36] Mr. Miller initially responded to this allegation by producing a number of internet job postings for full-time English speaking hygienists and dental assistants for local positions. Then, in April, 2017, he retained R.J. Skirda & Associates Inc. to prepare a forensic employability analysis/earnings capacity evaluation based on Ms. Hanna’s training as both a dental assistant and dental hygienist. Mr. Skirda’s credentials include Certified Vocational Evaluation Specialist, Certified Vocational Rehabilitation Professional and Forensic Vocational Expert. His work involves the application of an occupational profile to the relevant labour market within the person’s area of expertise. According to his resume, he has given expert testimony in the past. Mr. Skirda’s qualifications were not challenged.

[37] It took Ms. Hanna a couple of months to produce her resume. That delayed Mr. Skirda’s work. His report was released August 31, 2017.

[38] Mr. Skirda’s analysis relied on a number of independent sources including Canadian Business Magazine that categorized dental hygiene as one of Canada’s best jobs in 2014 with a median salary of $70,637.00. Another source quoted was the most recent edition of the Government of Canada Outlook Report from December, 2016. That report noted that job growth for hygienists had been strong over the past decade and projected that the market for hygienists in the greater national capital region would remain good from 2016 through 2018. Other sources consulted by Mr. Skirda revealed local hygienists earn hourly rates ranging from $35.00 to $45.00 per hour and annual incomes between $60,000.00 and $75,000.00. This information is consistent with Ms. Hanna’s current rate of $36.00 per hour. Not surprisingly, Mr. Skirda reported that dental assistants earn less. In his opinion, if Ms. Hanna chose to work as a dental assistant, her superior qualifications as a hygienist should result in income of approximately $50,000.00 per year.

[39] Mr. Skirda also found that it is common for hygienists to work at two or three different dental offices to make up full-time hours. Whether one does so, he concluded, is generally a matter of personal choice, needs and/or motivators. With the caveat that he had not been asked to look at individual needs or limitations, Mr. Skirda added that his labour market investigation indicated that sales and product consultant positions were also available for hygienists with physical restrictions. These jobs do not entail the direct hands-on work required of a dental office.

[40] The evidence of Ms. Hanna’s employment history and efforts to obtain more than part-time hours is not persuasive. She lists names of various dental clinics where she applied over the years, but does not provide dates, the nature of the position she applied for or whether it was in addition to, or in lieu of, a current position. Ms. Hanna provided only two letters from employers. The first is dated October, 2015. This employer spoke very highly of Ms. Hanna as an employee doing dental hygiene work for their clinic 3 days a week and said they would offer more hours if they could. The second letter is dated November, 2017. It is from her current employer who also states that workload does not allow them to offer additional hours at this time. These statements are consistent with Mr. Skirda’s findings that hygienists are often required to work at more than one dental office to obtain full-time hours.

[41] Based on the evidence before me regarding the employment opportunities in the Ottawa area for a person with Ms. Hanna’s post-secondary training and experience, I find that she is not earning what she is reasonably capable of earning. She is, therefore, intentionally underemployed. According to the Skirda report, Ms. Hanna is able to earn between $50,000.00 and $75,000.00 if she works full-time hours as either a dental assistant or a dental hygienist. In contrast, her actual earnings since graduation have been:

YEAR	INCOME
2012	$2,894.00
2013	$17,229.00
2014	$8,260.00
2015	$28,605.00
2016	$24,176.00
2017	$24,176.00
Current	$33,801.00

Question #2 – If Ms. Hanna is under-employed, is it reasonable by virtue of her educational or health needs?

[42] The onus is on Ms. Hanna to provide cogent evidence in the form of detailed medical opinion to satisfy the court that her reasonable health needs justify her decision not to work more hours. See Rea v. Rea, 2013 ONSC 7548 (Ont. Div. Ct.)

[43] In the fall of 2017, almost 3 years after the commencement of this action and after receipt of the Skirda report, Ms. Hanna retained Dr. Iris Jackson, a clinical psychologist, to assess her psychological health and ability to work full-time. Dr. Jackson concludes that Ms. Hanna is unable to work full-time hours. I am not persuaded by Dr. Jackson’s report. My reasons will be set out below when I deal with the issue of spousal support.

[44] Prior to engaging Dr. Jackson, the only health related concern raised by Ms. Hanna was in her November, 2015 affidavit. There she spoke of the stress and sadness she experienced around the 2013 death of her sister from cancer and the increased health needs of her father that developed in 2014. She said both losses caused her much stress and impaired her ability to work more hours. With that, Ms. Hanna produced a letter from her family doctor dated October 5, 2015. It stated, among other things, that Ms. Hanna was experiencing stress and having difficulty coping but was improving her stress management skills and having good success working part-time. The doctor said she supported Ms. Hanna working on a part-time basis and that hopefully with time she would be able to work full-time. The doctor did not say that she was unable to work more hours or give cogent reasons for her opinion. She did not identify Ms. Hanna’s stressors, make a diagnosis or identify a treatment plan. I am not persuaded by this evidence that she is unable to work full time for medical reasons.

Question #3 – If there is no reasonable excuse for Ms. Hanna’s under-employment, what income should properly be imputed in the circumstances?

[45] I find that Ms. Hanna was and is reasonably capable of earning $50,000.00 and I impute this annual income to her effective January 1, 2017.

(iv) Should Mr. Miller pay retroactive child support and if so, what date should his increased obligation take effect?

[46] Ms. Hanna seeks retroactive child support for Jeffery commencing January 1, 2011 based on the significant increases in Mr. Miller’s income. His line 150 income between 2011 and 2016 was:

YEAR	INCOME
2011	$272,636.00
2012	$288,476.00
2013	$337,118.00
2014	$659,064.00
2015	$759,244.28
2016	$658,255.00

[47] The Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, (D.B.S.) established the framework for the exercise of the court’s discretion when deciding whether to order retroactive child support under s. 17(4) of the Divorce Act. The Court sets out two overarching principles that govern these claims: 1) Each parent has an obligation to ensure that their child receives proper support in a timely manner; and 2) the court must balance the support payor’s interest in the certainty of the status quo with the need for fairness and flexibility. See Le v. Tran, 2012 ONCJ 601.

[48] Under this umbrella, the Court in D.B.S. listed four factors to be considered.

1. Reasonable Excuse for the Delay Requesting Payment

[49] Ms. Hanna states two reasons for not requesting increased child support prior to the commencement of this proceeding by Mr. Miller. She alleged that he did not disclose his income tax returns over the years as ordered and further states that she was afraid to ask for increased support because she did not want to anger him. Her fear, she said, included the worry that Mr. Miller would retaliate by withholding the children and take out his anger on them.

[50] Ms. Hanna’s alleged fear of Mr. Miller is not credible. When he approached her in 2012 to change spousal support, she was not fearful of asking him to continue support and give her more time to establish her career. Nor is there evidence to suggest that Mr. Miller retaliated in any way to this request. On the contrary, he kept paying spousal support and let another 2½ years pass before he raised the issue again. Neither am I persuaded that Mr. Miller would have punished the boys in some way if increased child support had been requested. I accept Mr. Miller’s submission that Ms. Hanna did not seek increased child support after Jayden moved to live with him because she knew he was overpaying for Jeffery and that she had an obligation to pay support for Jayden.

[51] Contrary to the allegation that Mr. Miller withheld his income information, I find that he made timely disclosure as required under R. Smith J.’s Order. He produced email records that confirm delivery of his tax returns to Ms. Hanna for 2007, 2008, 2010 and 2012 within the appropriate timeline. Delivery of his returns for 2009 and 2011 are the only ones not corroborated by documentation. Considering that the others were produced to Ms. Hanna as required, I find, on the balance of probabilities, that the returns for 2009 and 2011 were also disclosed to Ms. Hanna. All subsequent income tax information has been produced in this litigation. R. Smith J.’s Order also required Mr. Miller to produce his U.S. income tax returns. It was not disputed that Mr. Miller has not filed in the U.S. since 2004.

[52] Considering all the circumstances, I do not find that Ms. Hanna’s delay in seeking increased child support is justified.

2. Conduct of the Payor Parent

[53] As stated above, Mr. Miller made the disclosure that he was obliged to provide under the Order of R. Smith J. He did not hide his rising income from Ms. Hanna nor is there evidence to suggest that he tried to intimidate or dissuade her from seeking higher support. She was aware of his increased income and did not ask to adjust child support until March, 2015 when she served her response to his motion to change. From that point forward, child support for Jeffery should have been adjusted to correspond to Mr. Miller’s income. Equally by that time, Ms. Hanna had notice of the claim against her to pay support for Jayden and she did not do so.

[54] I am satisfied that both Mr. Miller and Ms. Hanna understood their obligations to pay child support based on their respective incomes. Once formal notice was given, there was no excuse for not paying the correct amount of child support to the other. At that point, each party was knowingly preferring their own interests.

3. Circumstances of the Child

[55] Ms. Hanna seeks increased child support for Jeffery retroactive to January 1, 2011. In 2011 and 2012, Mr. Miller was paying support in excess of the table amount for his income. This leaves retroactive support in question for 2013 to 2016 only. There is no evidence that Jeffery’s lifestyle was impacted or diminished by the amount of support paid while he lived with his mother. There were sports, music lesson, trips and other extras. There is no evidence that Ms. Hanna incurred debt or diminished her capital in this regard. The benefit to Jeffery of a retroactive award of child support at this point is marginal. However, to the extent that he continues to spend time with his mother in her home, there is still some value to him.

4. The Hardship To the Payor of a Retroactive Award

[56] There is no evidence of hardship to Mr. Miller. He re-partnered in 2012 and contributed financially to the support of his two step-children. Nevertheless, as his income continued to rise, he was able to provide for both families, add to his savings and put $100,000.00 into RESP’s for Jayden and Jeffery.

[57] The court in D.B.S. held that if a retroactive award is appropriate, it should usually commence on the date that the recipient advised that support should be paid or renegotiated. That is the effective date of notice. If there is blameworthy conduct by the payor, an earlier date may be appropriate but as a general rule, not earlier than three years before notice was given. In cases of extreme blameworthy conduct by the payor, an even earlier commencement date may be appropriate.

[58] For the reasons given, I find that Mr. Miller should pay retroactive child support for Jeffery for the period between April 1, 2015 being the month following effective notice and December 31, 2016 after which Jeffery moved to his home. The amount owed is $60,084. This represents the difference between $2,483.00 that was paid each month and the table amount of $5,571.00 for each of 9 months in 2015 based on Mr. Miller’s income that year of $759,244.00 and the table amount of $5,024.00 per month in 2016 based on his then income of $658,255.00.

(v) Should Ms. Hanna reimburse Mr. Miller for his overpayment of child support in 2017?

[59] Mr. Miller seeks to recover the child support he paid to Ms. Hanna between January 1, 2017 and January 23, 2018. Ms. Hanna opposes his claim for repayment, but if an order is granted, she asks that the amount be set off against the retroactive child support she claims is owed to her.

[60] After Jeffery left his mother’s house in December, 2016, Mr. Miller continued to pay child support to Ms. Hanna. He understood that he was obliged to pay the support ordered by R. Smith J. until varied. Ms. Hanna would not consent to the change and took the position that Jeffery remained in her care. Jeffery gave evidence confirming that his home was with his father throughout 2017, he was happy there and intended to stay. He explained that his mother had been pressuring him to spend more time at her house. Anticipating a potential dispute, Jeffery tracked his time and spelled out the number of nights that he had spent with each of his parents since January, 2017.

[61] Ms. Hanna should reimburse the child support that she was not entitled to receive. The amount owed to Mr. Miller is $32,279.00 which is $2,483.00 per month over 13 months including January, 2018. Payment shall be satisfied by way of a set off against the retroactive child support owed by Mr. Miller.

Spousal Support

(i) Has there been a material change in the circumstances of either Ms. Hanna or Mr. Miller since the 2007 Order?

[62] Before a spousal support variation can be granted, the court must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the order to be varied was made. If such a change is found and the order is varied, the court must take that change into consideration. See s. 17(4.1) of the Divorce Act.

[63] To meet the test under the Divorce Act, the Supreme Court of Canada stated that the change must be one that is substantial and continuing and one that, if known at the time, would likely have resulted in different terms. See Droit de la famille - 091889, (sub nom. L.M.P. v. L.S.) 2011 SCC 64 (S.C.C.) (“L.M.P.”).

[64] Mr. Miller relies on paragraph 12 of Justice Smith’s Order that provides:

12. The Respondent husband agrees to pay spousal support in the amount of $4,200.00 per month commencing January 1, 2007 to be reviewable in five (5) years at the option of either party and either party may bring an application to vary the spousal support in the event of a material change in circumstances. If the Applicant wife earns $25,000 or less within the five year period this shall not be considered to be a material change in circumstances.

[65] He argues that Ms. Hanna has not made a meaningful effort to work full-time and become self-supporting. He says it was anticipated that she would be self-sufficient within five years of Justice R. Smith’s 2007 Order. Mr. Miller emphasizes that support has now been paid for 13½ years – a period that far exceeds their 6 year marriage and 8 year relationship. In short, he says, enough is enough.

Ms. Hanna’s Retraining and Employment

[66] Ms. Hanna was age 34 at separation, in good health, and out of the paid work force for only 4 years. She did not wish to return to her work as a phlebotomist and decided to go back to school. In 2010, she graduated from college as a dental assistant but did not pursue employment. Instead, she elected to study dental hygiene. In 2012, Ms. Hanna graduated with her second diploma. She completed both programs at the top of her class. Since then she has worked only part-time hours.

[67] In January, 2012, Mr. Miller approached Ms. Hanna about changing spousal support. Five years had passed since Justice R. Smith’s Order and Mr. Miller sought to review support as provided by the Order. Ms. Hanna asked for more time to establish her career. Mr. Miller acquiesced and did not pursue the issue again until 2014. By then, he suspected that Ms. Hanna did not intend to work full-time or become self-sufficient. Mr. Miller retained counsel and a letter was sent to Ms. Hanna in early September, 2014 advising that he sought to end spousal support. Further delay followed and this motion to change was issued December 1, 2014.

[68] I find Ms. Hanna’s successful completion of two practical, skills based, diploma programs to be a material change in circumstance since R. Smith J.’s Order. This change is enduring and substantial and, if known in 2007, would likely have resulted in different terms. See L.M.P.

Failure to Make Reasonable Efforts Toward Self- Sufficiency

[69] Trewin v. Jones (1997), 26 R.F.L. (4th) 419, (Ont. C.A.) and Choquette v. Choquette, (1998), 1998 CanLII 5760 (ON CA), 39 R.F.L. (4th) 384 (Ont. C.A.) both confirm that unmet expectations can be a material change in circumstance. Contrary to Mr. Miller’s claim, Ms. Hanna states it was not expected that she would be self-sufficient or that support would ever end. I do not accept that argument. I find the anticipation of both self-sufficiency and termination of spousal support to be inherent in paragraph 12 of the 2007 Order of R. Smith J. The provisions for a 5 year review and the ability to earn up to $25,000.00 annually within that period without triggering the possibility of variation are designed to promote reasonable self-sufficiency.

[70] Ms. Hanna says that she was unable to work more because full-time hours were not available to her. She alleged the job market for dental hygienists was highly competitive and that it was very difficult to get more than part-time hours. The Skirda report indicates otherwise.

[71] I am not persuaded that the economic climate for hygienists hampered Ms. Hanna’s ability to find full-time hours. The evidence does not support that conclusion.

[72] I am satisfied that Ms. Hanna’s failure to take reasonable steps toward economic independence after retraining and having a period of time to establish herself in the workforce is a second material change of circumstance. This change also meets the L.M.P. test of enduring, substantial and, if known at the time, would likely have resulted in different terms than those ordered.

Jeffery’s Move

[73] A third change in circumstance occurred when Jeffery moved to his father’s home at the end of 2016. He confirms that he intends to remain there.

(ii) What spousal support variation order is appropriate, if any?

[74] Having found a material change in circumstance, I must now determine whether a variation is appropriate and if so, take account of the change in circumstance and the objectives under s. 17(7) of the Divorce Act. No one objective is to be given more weight than the other. I will consider each in turn.

(i) The economic advantages or disadvantages to Ms. Hanna arising from the marriage or its breakdown

[75] Ms. Hanna argues that her role in the relationship remains the foundation for ongoing compensatory support. She says Mr. Miller wanted her in the home to care for the family and to attend to all domestic matters. He, on the other hand, insists it was always the plan that she would return to work when the youngest child was 18 months old and in daycare. He contends that Ms. Hanna’s refusal to return to the paid workforce after the children were born was a significant source of conflict in their marriage and contributed to its breakdown.

[76] Regardless of the parties’ conflicting accounts of their marriage and their explanations around why Ms. Hanna did not return to work outside the home, an element of compensatory support was present at separation. Her roles and responsibilities during cohabitation, including freeing up Mr. Miller to pursue his career at a high level, gave rise to a spousal support entitlement. The question to be answered now is whether Ms. Hanna’s entitlement to compensatory support continues or whether the economic disadvantages of the marriage and its breakdown have been satisfied.

[77] Looking at the amount of spousal support paid under the 2007 Order of R. Smith J., I find that it was in line with the Spousal Support Guidelines (“SSAG”) even though the order pre-dates their creation. Using 2010 tax calculations (it is the earliest tax year available under the current 2018 DivorceMate program), Mr. Miller’s payment of $4,200.00 corresponds to the mid-range SSAG amount of $4,239.00 for his income in 2007 of $192,360.00 and monthly child support obligation of $2,483.00.

[78] The durational range generated by the With Child Formula under the SSAG indicates support to be payable for an indefinite or unspecified duration subject to variation or possible review after 5 years with a minimum duration of 4 years to a maximum of 16 years. In this instance, the maximum duration calculation reflects the date when it is anticipated that the youngest child, Jeffery, will complete high school considering his age at separation.

[79] Here, I consider that Ms. Hanna was 34 years old and healthy at separation. She had been out of the workforce for 4 years. Her relationship with Mr. Miller lasted only 8 years and she has received spousal support for over 13.5 years – a period of time toward the high end of the durational range. For the last 11 years, support has been paid at a rate of $4,200.00 per month – an amount that is commensurate with the SSAG and the marital standard of living. By 2012, Ms. Hanna had successfully completed two college diplomas in dental health care. Both positioned her for a more remunerative career than the job she held before marriage. She now has five years of experience as a dental hygienist. The evidence indicates that she can earn between $60,000.00 and $75,000.00 annually if she works full-time hours. From 2010 to 2016, the parties each had a child in their primary care. Since January, 2017, Ms. Hanna has not had responsibility for the day to day care of a child. She is now 48 years old. Based on these facts, I find that Ms. Hanna has been compensated for the economic dislocation and disadvantage flowing from the marriage and its breakdown. This objective has been satisfied and her compensatory entitlement under it has come to an end.

(ii) Financial consequences arising from the care of any child of the marriage independent of any child support obligation for the child

[80] When Jayden left his mother’s care in September, 2010, Ms. Hanna had already completed her first post-secondary diploma. Thereafter, with one child residing primarily with each parent, she was able to complete a second post-secondary diploma that qualified her to seek employment with annual earnings in the range of $60,000.00 to $75,000.00. After Jayden moved to live with him, Mr. Miller did not seek to vary child support to reflect the change to split custody parenting. Had he done so, the monthly table amount owing under the Guidelines would have been $2,162.00 based on his 2011 income of $272,636.00. He continued paying $2,483.00 – a difference of $321.00 per month. It was not until 2013 that the table amount for one child exceeded the sum that he was paying. I regard these voluntary payments as an important fact to consider in relation to this objective.

[81] I also consider Jeffery’s decision to live with his father after December, 2016 and Mr. Miller’s continued payment of $4,200.00 per month after Ms. Hanna no longer had a child in her care. At that January, 2017 cross-over point, the SSAG Without Child Formula applied. Using Mr. Miller’s 2007 income and the marital standard of living, this formula generates a range of spousal support from $1,924.00 to $2,566.00. The durational range also reduces under this formula to 4 to 8 years. This Without Child SSAG calculation demonstrates that Ms. Hanna did not receive less spousal support because of the legislative priority given to child support. Considering Jayden and Jeffery’s change in residence in 2010 and 2017 respectively, the voluntary overpayment of child support in 2011 and 2012, the amount of spousal support paid and the number of years over which it has been paid, I find that Ms. Hanna has been compensated for the financial consequences of child care after marriage breakdown.

(iii) Relieve any economic hardship arising from the breakdown of the marriage

[82] This objective speaks to needs based support. Ms. Hanna claims she has continued need and says her poor mental and physical health limit her ability to work full-time hours. She argues that she comes within the illness and disability exception under the SSAG and that spousal support should continue indefinitely.

[83] Ms. Hanna first raised stress and coping difficulties as health concerns contributing to her need in 2015, months after this motion to change commenced. At that time, she related her symptoms to the death of her sister in 2013 and her father’s declining health in 2014. She said both impaired her ability to work more than part-time. As noted above, I was not persuaded to reach that conclusion.

[84] More recently, Ms. Hanna blamed her poor psychological health on Mr. Miller. She claims he was a controlling and abusive partner. This allegation was not made in this proceeding until December 18, 2017, the date of Ms. Hanna’s last affidavit. As proof of her health needs, Ms. Hanna relies on Dr. Jackson’s report and additional letters obtained from her family doctors in June and November, 2017. Mr. Miller denies the allegations.

[85] Ms. Hanna put considerable emphasis on the night of September 11, 1999. She claims that Mr. Miller hit her in the face after returning from an evening out. She says he had consumed too much alcohol. Mr. Miller denies the allegation and notes that Ms. Hanna raised this and other claims of abuse with Dr. Weinberger during the custody and access assessment. Dr. Weinberger was not persuaded that Mr. Miller had mistreated or abused Ms. Hanna as alleged. Nevertheless, Dr. Weinberger did not dismiss Ms. Hanna’s discomfort with Mr. Miller and, as he put it, the way in which their different personalities found expression in their marriage. It was Dr. Weinberger’s view that Ms. Hanna was the more emotional and timid of the two and she experienced Mr. Miller as over-confident and over-bearing. He found their ability to communicate as a couple was poor.

[86] In December, 2017, Ms. Hanna produced hospital records from September 11, 1999 confirming her attendance at the emergency room that night. The records state that Ms. Hanna reported pain in her left jaw, was tearful, and said that there had been an argument and/or altercation with her husband. Suspected abuse was noted and follow up calls were made to Ms. Hanna over the next few days. She answered that she did not require anything further, it was a one-time occurrence and that everything was fine. The radiologist’s report from the x-rays taken that evening states that the range of movement in Ms. Hanna’s left jaw was less than the right side. The report states that it was difficult to determine if the cause was pathologic, due to positioning or some muscle “spasm/tenderness” (sic).

[87] The evidence confirms that something happened to Ms. Hanna on September 11, 1999 to cause her pain and prompt her to take herself to the hospital in the middle of the night. Whether it was an assault by Mr. Miller, as alleged, is not established based on the record before me. There is no evidence of ongoing physical consequences from the alleged event.

[88] Dr. Iris Jackson is a clinical psychologist. She was retained in the fall of 2017, almost 3 years after the commencement of this action. She was asked to assess and report on Ms. Hanna’s psychological health and ability to work full-time. Dr. Jackson’s report is dated December 12, 2017.

[89] For purposes of her work, Dr. Jackson interviewed Ms. Hanna and administered a series of tests. She appeared to accept, at face value, Ms. Hanna’s narrative that she had been a physically and verbally abused spouse living with “a hard-hearted man”. Dr. Jackson was also provided with the letters written by Ms. Hanna’s physicians.

[90] Dr. Jackson’s diagnoses corresponded with three of those made by Ms. Hanna’s physicians: Generalized Anxiety Disorder, Depression, and PTSD. Dr. Jackson further diagnosed Ms. Hanna with Dependent Personality Disorder and Obsessive Compulsive Personality Style. She characterized all five diagnoses as moderate. Her report states that Dependent Personality Disorders typically develop in a person’s late teens or early twenties. Here, it is Dr. Jackson’s opinion that Ms. Hanna’s Dependent Personality Disorder likely developed in the early years of the tumultuous marriage and that it likely contributed to her submissiveness and inability to leave the marriage. Dr. Jackson further states that Ms. Hanna likely got worse with the post-separation conflict and opines that her Generalized Anxiety Disorder and Depression developed after her marriage deteriorated. She says that the assault of September 11, 1999 left Ms. Hanna with a deep psychological scar.

[91] It is Dr. Jackson’s opinion that “Ms. Miller (sic) cannot work full-time because of the challenges of her psychological conditions, the pain that she experiences, and her many health related appointments that she undertakes to try to improve her health and ameliorate the intensity of her conditions.” She states that her opinion is consistent with Ms. Hanna’s physicians.

[92] I am not persuaded by Dr. Jackson’s report that Ms. Hanna cannot work full-time or, at the very least, work more hours than she currently performs. Dr. Jackson does not explain how or in what way Ms. Hanna’s psychological symptoms allow her to work part-time but limit her ability to work full-time. Nor does Dr. Jackson consider whether Ms. Hanna could work less than full-time hours but more hours than she currently works or whether she could work as a dental assistant rather than as a hygienist. She simply concludes that Ms. Hanna is unable to work full-time. In addition, Dr. Jackson’s report does not address how Ms. Hanna was able to attend college full-time and complete two diploma courses at the top of her class with one, if not two, children in her primary care while living with the psychological disorders diagnosed. In this regard, I note Dr. Jackson’s opinion that Ms. Hanna likely developed her Dependent Personality Disorder during the marriage while Depression and Generalized Anxiety Disorder likely developed after the marriage deteriorated in 2004.

[93] Dr. Jackson interpreted the letters provided by Dr. Hanna’s family physicians as stating opinions consistent with her own regarding Ms. Hanna’s inability to work full-time. However, each of the doctors stated either that she was “agreeable” to Ms. Hanna working part-time hours or that she “supported” Ms. Hanna working part-time hours only. None of them said that she was unable to work full-time. The statements are not one and the same.

[94] Dr. Jackson also points to the various medical appointments that Ms. Hanna must attend as a factor underlying her conclusion but she does not identify the nature of appointments, their number or frequency, or whether they must occur during her work hours. She simply states her conclusion that they undermine Ms. Hanna’s ability to work full-time.

[95] Dr. Jackson places considerable emphasis on the abuse and degree of conflict alleged by Ms. Hanna, pre and post separation. Her report, however, identifies a number of other traumas and losses reported by Ms. Hanna including a car accident prior to marriage, the loss of a close friend to leukemia when she was 20 and he was 22 years old, the loss of her mother, sister and aunt to cancer, her own high risk of cancer, and her father’s health issues. In this proceeding, Ms. Hanna described the illness and loss of family members as very stressful and creating coping difficulties. There is no indication in Dr. Jackson’s report that these other significant life events were considered in relation to Ms. Hanna’s current mental health diagnoses. The alleged circumstances of the marriage appear to be the only link that Dr. Jackson makes between historical events and her conclusions around Ms. Hanna’s psychological health.

[96] Although not stated to be one of the terms of her retainer, Dr. Jackson opines that Ms. Hanna needs extensive therapy from a psychologist with expertise in trauma, high conflict divorce situations and grief. She estimates the total cost to be approximately $30,000.00 based on weekly appointments with a psychologist over 3 years. Dr. Jackson notes that treatment could be provided by a psychiatrist with background in treating trauma but the waiting lists are long. To date, Ms. Hanna has had counselling from her family physician from time to time. She currently see a counsellor every two weeks. There is no evidence that Ms. Hanna ever sought help from a psychologist or psychiatrist.

[97] Ms. Hanna also blames Mr. Miller for the fact that the children left her care which she describes as a devastating loss that has further impacted her mental health. The evidence from Jayden and Jeffery indicates otherwise. Both boys describe longstanding difficulties in their relationship with their mother – difficulties that were neither caused nor propelled by their father.

[98] Ms. Hanna provides recent evidence of physical ailments. Her family physician prepared a letter in November, 2017 stating that Ms. Hanna was being treated for some recent acute low back pain with medication. In December, 2017, an update was provided to advise that the results of Ms. Hanna’s MRI indicate severe cervical spine stenosis (narrowing) and Grade 1 Retrolisthesis at C5-6 causing pain and limited neck mobility. In her update, the doctor also questioned how much longer Ms. Hanna will be able to work as a hygienist due to the changes in her neck. Further referrals were made and the results are pending.

[99] I consider the evidence regarding Ms. Hanna’s current physical and psychological health in relation to the time that has passed since the marriage breakdown in 2004 and the support that has been paid since then. It was in 2015, 11 years after separation when Ms. Hanna first raised her psychological health as an issue. Her physical health issues are as recent as the fall of 2017. While the medical evidence available indicates that Ms. Hanna’s ability to work as a hygienist in the future may be compromised, there is no evidence that she cannot work in another capacity whether it be in dental health care or otherwise. The Skirda report indicates that Ms. Hanna could reasonably expect to earn $50,000.00 a year as a dental assistant considering her superior qualifications. The report also identifies other potential job opportunities in dental product sales and consulting.

[100] I am satisfied that Ms. Hanna’s needs based entitlement stemming from the marriage breakdown has been met by the support paid since 2004. Her need at that time related to the marital lifestyle and the fact that she was not earning an income. It did not flow from illness or disability. These developments are recent. Not all need will be addressed with spousal support. See Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420, at paragraph 54.

[101] My conclusion that Ms. Hanna can reasonably earn $50,000.00 annually is equally applicable here. I find that Mr. Miller’s obligation to address any remaining need through spousal support should end rather than continue indefinitely.

(iv) Promote the economic self-sufficiency of a former spouse within a reasonable period of time, in so far as practicable

[102] The Order of Smith J. in 2007 provided spousal support that was commensurate with the SSAG. Ms. Hanna has now received $4,200.00 a month for a period of time that is close to maximum duration indicated under SSAG. There have been three material changes since 2007 that are relevant to spousal support. I find the only order that will promote this objective now is an order terminating spousal support.

[103] I decline to end support effective December 1, 2014 as sought by Mr. Miller and order that support continue in the amount of $4,200.00 per month until December 31, 2018. Effective January 1, 2019, the amount shall reduce to $2,000.00 per month and be payable for a further four months until April 30, 2019. With this final payment, Ms. Hanna’s entitlement to spousal support shall terminate. My conclusion is based on a number of factors including Ms. Hanna’s retraining, the amount of support paid, the changes in the custodial arrangements since separation that did not result in a child or spousal support variation, and the fact that by end of April, 2019, support will have been received for almost 15 years after an 8 year relationship, a period that is at the high end of the durational range. Ms. Hanna has had over 3 years since the start of this proceeding to prepare for the potential of support ending. She will now have another 8 months to the make the adjustments necessary to live within her own means.

(iii) If spousal support continues, should the amount be increased to reflect the post-separation rise in Mr. Miller’s income?

[104] My decision to terminate support eliminates the need to address this issue. Had I found otherwise, I would not have exercised my discretion to increase support to reflect the rise in Mr. Miller’s income. A support recipient is not automatically entitled to share in the payor’s higher post-separation earnings by way of increased spousal support. It is a matter within the court’s discretion to be determined on a case by case basis having regard to the general factors and objectives underlying spousal support. Here, the nexus between Ms. Hanna’s contribution to the marriage and to Mr. Miller’s ability to achieve higher and higher earnings post separation is insufficient to ground a claim for support based on his current income. See Thompson v. Thompson, 2013 ONSC 5500.

My Order

[105] For the reasons given, this is my order.

1. Paragraph 4 of Justice R. Smith’s Order dated February 6, and March 7, 2007 is varied to state that Ms. Hanna shall pay child support to Mr. Miller, as follows:

i) Effective January 1, 2015, she shall pay child support for Jayden in the amount of $234.00 each month based on annual income of $28,605.00;

ii) Effective January 1, 2016, she shall pay child support for Jayden in the amount of $193.00 each month based on annual income of $24,176.00;

iii) Effective January 1, 2017, she shall pay child support for Jayden and Jeffery in the amount of $743.00 each month until November 30, 2017 based on income of $50,000.00;

iv) Effective December 1, 2017, she shall pay child support for Jayden and Jeffery in the amount of $755.00 each month based on income of $50,000.00 until August 30, 2018 when support for Jayden shall terminate;

v) Effective September 1, 2018, she shall pay child support for Jeffery in the amount of $461.00 each month based on income of $50,000.00.

2. Ms. Hanna shall pay $32,279.00 to Mr. Miller to reimburse him for his child support overpayment from January 1, 2017 to January 31, 2018.

3. Mr. Miller shall pay retroactive child support to Ms. Hanna for Jeffery as follows:

i) Effective April 1, 2015, he shall pay child support in the amount of $5,557.00 each month based on annual income of $759,244.00;

ii) Effective January 1, 2016, he shall pay child support in the amount of $5,024.00 based on annual income of $658,225.00 each month until December 31, 2016 when support for Jeffrey shall terminate;

iii) Mr. Miller is to be credited with his payments of $2,483.00 each month against the amount owing under (i) and (ii) above.

4. The payments owed by Ms. Hanna to Mr. Miller under paragraph 1 and 2 above, shall be set off against the sum owed by Mr. Miller under paragraph 3 above. The balance remaining shall be paid within 30 days.

5. Mr. Miller shall continue to pay monthly spousal support to Ms. Hanna in the amount of $4,200.00 until December 31, 2018. Effective January 1, 2019, paragraph 12 of Justice R. Smith’s Order dated February 6 and March 7, 2007 is varied to reduce the amount of support payable from $4,200.00 to $2,000.00 per month. Mr. Miller shall continue to pay this amount until April 30, 2019 when spousal support shall terminate.

6. Mr. Miller shall designate Ms. Hanna as the sole beneficiary of insurance on his life in the amount of $25,000.00 as security for his obligation to pay spousal support until April 30, 2019. Paragraph 9 of Justice R. Smith’s Order dated February 6 and March 7, 2007 is varied accordingly.

[106] If the parties are unable to resolve the issue of costs, Mr. Miller shall deliver his costs submissions within 14 days of the release of these reasons and Ms. Hanna shall have 14 days to respond. Mr. Miller will have a 5 day right of reply. Submissions are not to exceed three pages excluding Offers to Settle and Bills of Costs.

Madam Justice D. Summers

Date: August 24, 2018

COURT FILE NO.: FC-04-2829-01 DATE: 2018/08/24

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Diane J. Miller, Applicant -and- Russell W. Miller, Respondent

BEFORE: Madam Justice D. Summers

COUNSEL: Judy Overgaard, for the Applicant Wade Smith, for the Respondent

Reasons for Decision

SUMMERS J.

Released: August 24, 2018