COURT FILE NO.: FS-16-88017 DATE: 2018 10 15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Muhedin Ibrahim, Applicant Sahar Mala, Respondent
BEFORE: Bloom, J.
COUNSEL: Elizabeth Julien-Wilson, for the Moving Party, Applicant Ruslana Korytko, for the Responding Party, Respondent
HEARD: August 22 and October 12, 2018
E N D O R S E M E N T
I. INTRODUCTION
[1] The Moving Party seeks an order varying the consent order of Justice Donohue dated April 25, 2017 by which he was ordered on an interim without prejudice basis to pay the Respondent spousal support in the amount of $1500.00 per month and to pay all of the carrying costs of the matrimonial home on James Austin Drive in Mississauga.
II. ARGUMENTS OF THE PARTIES
[2] The Moving Party argues that he is entitled to the variations he seeks based on undue hardship and material change in the circumstances. Specifically, he argues that his income was eliminated for a four month period from March 28, 2018 by virtue of Canada Revenue Agency action against his employer; that his income has been reduced by his inability to generate business for his employer; and that the Respondent has been hiding from him income from the rental of the matrimonial home, other income, and social assistance. He also relies on his alleged belief when he consented to it, that the order subject of the variation motion would be of short duration.
[3] The Responding Party submits that there has been no satisfaction of the applicable legal test for variations in the order, namely proof of a material change in circumstances. In that connection the Respondent also disputes the allegations of rental income and other income, and of suppression of evidence of social assistance.
III. GOVERNING LEGAL PRINCIPLES
[4] The relevant provisions of the Divorce Act, R.S.C., c. 3 (2nd Supp.) are:
Variation, Rescission or Suspension of Orders
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;
(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.
(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.
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
(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.
[5] The relevant provisions of the Family Law Act, R.S.O. 1990, c. F.3 state:
s. 24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2) .
s. 25 (1) On the application of a person named in an order made under clause 24 (1) (a), (b), (c), (d) or (e) or his or her personal representative, if the court is satisfied that there has been a material change in circumstances, the court may discharge, vary or suspend the order. R.S.O. 1990, c. F.3, s. 25 (1) .
[6] The test to be met for variation to be ordered is set out by the majority of the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. I will set out below the relevant passages from the majority’s reasons. In my view the threshold test for variation articulated applies to the variation sought of both portions of the order.
[7] I note, however, that in a case such as the one before me, where the variation is sought of an interim order, the test has been described in some case law as requiring a “substantial change in circumstances.” See Biddle v. Biddle, [2005] O.J. No. 737 (Ont. S.C.J.).
[8] The Moving Party also relies upon language in Thompson v. Thompson as justifying a variation based on undue hardship. In that case, however, Judge Wolder stated at para. 25, “Even if a material change in circumstances has occurred, such a change in circumstances may not necessarily result in the urgency and undue hardship required to warrant a variation of a final support order on an interim basis.”
[9] Since the Responding Party accepts the test for variation articulated in L.M.P., supra, which test does not raise the bar in the manner suggested in Biddle, supra and stated in Thompson, supra, I will apply the L.M.P. test to both aspects of the variation sought.
[10] The majority reasons in L.M.P. are instructive. Justices Abella and Rothstein discuss the applicable variation principles at paras. 15 to 50 of the majority reasons of the Court which they co-wrote:
[15] Because a separation may result in dramatic life changes and emotional stress, Parliament has decided through the Divorce Act that these circumstances give rise to the possibility that the ability of separating spouses to realistically and objectively assess their current and future needs and preferences can be impaired. It also goes without saying that the economic terms of spousal support agreements can affect third parties, such as the children of the relationship. For these reasons, the Divorce Act authorizes courts to vary the spousal support terms, either on an initial application for support under s. 15.2, or on an application to vary an existing court order under s. 17, whether or not that order incorporates a spousal support agreement.
Section 17 Variation
[21] This brings us to the role of such agreements under s. 17 of the Act. Unlike the question that confronted the Court in Miglin, this appeal concerns an application under s. 17 of the Divorce Act to vary an existing spousal support order where there had been a spousal support agreement prior to the section 15.2 order. Section 17 authorizes a court to vary, rescind or suspend prior orders (s. 17(1)), defines the factors allowing for variation (s. 17(4.1)) and sets out the objectives such a variation should serve (s. 17(7)). These provisions state:
- (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.
(4.1) [Factors for spousal support order] 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.
(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.
[22] While the objectives of the variation order are virtually identical in s. 17 to those in s. 15.2 dealing with an initial support order, the factors to be considered in ss. 17(4.1) and 15.2(4) are significantly different. Section 17(4.1) sets out “a change in the . . . circumstances” of the parties as the sole factor. On initial support orders, on the other hand, the factors are as follows:
15.2 . . .
(4) In making an order under subsection (1) [for spousal support] or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[23] In other words, there are differences between what a court is directed to consider in making an initial support order and on a variation of that order. Notably, unlike on an initial application for spousal support under s. 15.2(4)(c), which specifically directs that a court consider “any order, agreement or arrangement relating to support of either spouse”, s. 17(4.1) makes no reference to agreements and simply requires that a court be satisfied “that a change in the condition, means, needs or other circumstances of either former spouse has occurred” since the making of the prior order or the last variation of that order. Because of these differences in language, it is important to keep the s. 15.2 and s. 17 analyses distinct.
[24] On an application under s. 15.2, the court is expressly concerned with the extent to which the terms of an existing agreement should be incorporated into a first court order for support. On an application under s. 17, on the other hand, the court must determine whether to vary or rescind that support order because of a change in the parties’ circumstances.
[25] Contrary to what our colleague Cromwell J. suggests, the majority in Miglin recognized that the different language employed by Parliament in ss. 15.2 and 17 required a different approach to initial and variation applications. At para. 61, Bastarache and Arbour JJ. state:
We disagree . . . with [the] importation of the “material change” test developed for s. 17 of the Act (see Willick v. Willick, 1994 SCC 28, [1994] 3 S.C.R. 670) into s. 15.2 in respect of pre-existing agreements. As we noted earlier, the statutory language simply does not support this. Whereas s. 17 of the Act directs the court to satisfy itself that a change has occurred, s. 15.2 respecting initial support applications does not. Rather, s. 15.2(4) requires the court to consider the length of cohabitation, the roles of the parties during the marriage, and any orders, agreements or arrangements. This explicit direction cannot be avoided, cast, as it is, in mandatory language.
Where the parties entered into a mutually acceptable agreement, the agreement is not ignored under either s. 15.2 or s. 17. However, its treatment will be different because of the different purposes of each provision.
A. The Threshold for Variation
[29] 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.
[30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, 1994 SCC 28, [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), 1995 SCC 65, [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).
[31] 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.
[32] 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.
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[34] 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.
[35] 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), 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).
[36] 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.)
[37] This does not mean that the incorporated agreement is irrelevant. As Sopinka J. observed in Willick, “Where . . . the agreement is embodied in the judgment of the court, it is necessary to consider what additional effect is to be accorded to this fact” (p. 687).
[39] Parties may either contemplate that a specific type of change will or will not give rise to variation. When a given change is specified in the agreement incorporated into the order as giving rise to, or not giving rise to, variation (either expressly or by necessary implication), the answer to the Willick question may well be found in the terms of the order itself. That is, the parties, through their agreement, which has already received prior judicial approval, have provided the answer to the Willick inquiry required to determine if a material change has occurred under s. 17(4.1). Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.
[42] Ultimately, courts are tasked with determining if a material change of circumstances has occurred so as to justify a variation of a s. 15.2 order under s. 17. The analysis is always grounded in the actual circumstances of the parties and the terms of the s. 15.2 order;
[44] In sum, it bears repeating that the threshold question under s. 17, whether or not there is an agreement, is the one Sopinka J. described in Willick, namely:
In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [p. 688]
[46] The examination of the change in circumstances is exactly the same for an order that does not incorporate a prior spousal support agreement as for one that does....
B. The Appropriate Variation
[47] If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change. As Justice L’Heureux-Dubé, concurring in Willick, observed: “A variation under the Act is neither an appeal of the original order nor a de novo hearing” (p. 739). As earlier stated, as Bastarache and Arbour JJ. said in Miglin, “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order” (para. 62).
[48] Variation involves the application of both s. 17(4.1) and s. 17(7) of the Divorce Act. In Hickey, L’Heureux-Dubé J. described the interplay between them as follows:
On an application for variation of an award of spousal support, the court must first find, under s. 17(4), that there has been a material change in the conditions, means, needs, or circumstances of either spouse (see Moge v. Moge, at pp. 875-76, and Walker v. Walker (1992), 12 B.C.A.C. 137, at pp. 141-42) and in making the order, the court must take into consideration that change. As with the variation of child support orders, this change must be material, and cannot be trivial or insignificant. The factors enumerated give the court considerable discretion in determining whether a variation order is justified: see J. Payne, Payne on Divorce (4th ed. 1996), at p. 321. Once this threshold is passed, the court must consider the four objectives of spousal support enumerated in s. 17(7) of the Divorce Act. [para. 20].
[50] In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), . . . [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey v. Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.
[11] The authors of David M. Steinberg, Craig Perkins, Esther L. Lenkinski, Andrew James, Ontario Family Law Practice 2018 note at page 174 that the onus of proof of the requisites for a variation lies on the party seeking it, and that the standard of proof is the balance of probabilities.
IV. APPLICATION OF GOVERNING PRINCIPLES TO THE CASE AT BAR
[12] Applying the above principles to the evidence before me, I find that the Moving Party has not satisfied his onus to prove the requisites for a variation on a balance of probabilities. I, therefore, dismiss the motion at bar. I will now explain my reasoning.
[13] I have considered the evidence before me. I have had specific regard to the affidavits of the Applicant dated February 12, 2018 and August 9, 2018, as well as the affidavit of the Respondent dated September 14, 2018.
[14] The Applicant in his evidence did not quantify the diminution he has alleged in his income since the order subject of this motion. In his affidavit of August 9, 2018 he simply stated that the CRA’s actions against his employer stopped his income from the employer from on or about March 28, 2018 for about 4 months; and that, additionally, he is unable to generate business for his employer, resulting in business being slow and there being no guarantee of a salary for him.
[15] He has offered no convincing evidence of hiding by the Respondent from him before or after the order subject of this motion, of social assistance payments to her.
[16] As to alleged rental payments to the Respondent from alleged tenants of the matrimonial home and other alleged sources of income to her, the Applicant relies upon the affidavit of Nala Kastali, an exhibit to his own affidavit of August 9, 2018. As noted, the Kastali affidavit was not filed as an affidavit, but rather as an exhibit. Moreover, the credibility of its assertions was attacked vigorously by the affidavit evidence of the Respondent, herself. I am not satisfied that the statements in the Kastali affidavit on the income issue alone or in combination with other evidence prove the receipt by the Respondent of rental or other income.
[17] The order in question was a consent order. I am not satisfied that the Applicant has discharged his onus to prove the threshold requisites set out by the majority in L.M.P. in order to succeed on his motion to vary the order in question. For those reasons I dismiss the motion at bar.
V. COSTS
[18] I will receive written submissions at to costs. The Respondent will serve and file her submissions within 2 weeks of the release of this endorsement. The Applicant will serve and file his submissions within two weeks of service of the Respondent’s submissions. There shall be no reply.
Bloom, J. DATE: October 15, 2018