Court File and Parties

COURT FILE NO.: FC-17-2029 DATE: 2018/11/02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexander H.F. Oderkirk, Applicant -and- Paulette B. Oderkirk, Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Applicant, not appearing David P. Gray, for the Respondent

HEARD: October 15, 2018

Endorsement

Overview

[1] This is a hearing under section 19 of the Divorce Act to confirm the provisional order of Justice Lynch of the Supreme Court of Nova Scotia made on March 23, 2017. The Applicant, Mr. Oderkirk, resides in Nova Scotia. The Respondent, Ms. Oderkirk, resides in Ontario.

[2] The provisional order varies the Supreme Court of Nova Scotia’s Corollary Relief Order dated June 24, 2013 to provide that Mr. Oderkirk’s spousal support obligation of $1,700 per month terminates effective August 1, 2017, being the first day of the month following his 65th birthday.

[3] At the confirmation hearing on October 15, 2018, Ms. Oderkirk requested that the Court refuse to confirm the provisional order. In the alternative, Ms. Oderkirk asked for the provisional order to be varied to require Mr. Oderkirk to pay monthly spousal support of $900 per month, indexed for the cost of living, maintain medical and dental coverage for her, and maintain life insurance coverage in the amount of $180,000 to secure his spousal support obligation.

[4] For the reasons set out below, I confirm the provisional order with variation to reduce the monthly spousal support obligation to $1 per year, rather than to terminate it completely, and provide for ongoing income disclosure between the parties.

Background

[5] The parties were married on June 5, 1976. After 35 years, they separated on February 27, 2012. They had five children. For significant periods during the marriage, Ms. Oderkirk was primarily responsible for the care and upbringing of the children and the home, while Mr. Oderkirk worked outside of the home.

[6] At the time of separation, both parties resided in Nova Scotia. As of October 1, 2012, Mr. Oderkirk was ordered to pay interim spousal support of $1,700 per month, based on his income of approximately $82,000 per year. That support was continued under the final Order dated June 24, 2013.

[7] On December 31, 2013, Mr. Oderkirk retired. He was 61 years of age.

[8] In January of 2014, Mr. Oderkirk brought an application seeking to terminate the spousal support due to his retirement. Justice Boudreau dismissed Mr. Oderkirk’s application, finding that his early retirement did not constitute a material change in circumstances. Justice Boudreau’s reasons include the following:

“I acknowledge that the applicant is 61 years of age, and the time is coming where his retirement will be reasonable, and will then constitute a material change in circumstances….

The respondent would be well advised to recognize that, given the circumstances, she will not likely be able to rely on the spousal support indefinitely, as she might have wished. She has an obligation to seek some measure of economic self-sufficiency and make some efforts to participate in her own future.”

[9] In October of 2016, Mr. Oderkirk brought a second application to terminate the spousal support. This Application was determined by Justice Lynch on March 23, 2017.

[10] Mr. Oderkirk turned 65 on July 10, 2017. He is now 66 years of age, as is Ms. Oderkirk.

[11] On March 23, 2017, Justice Lynch refused Mr. Oderkirk’s request for an earlier termination of spousal support given that he had not shown a material change since the 2014 order. She did accept, however, that when Mr. Oderkirk turned 65 years of age, it was reasonable that he would be retired, and terminated spousal support effective August 1, 2017, on that basis.

[12] Mr. Oderkirk’s current income is approximately $36,800 per year. This is made up of Canada Pension Plan (“CPP”) income of approximately $5,600, Old Age Security (“OAS”) income of approximately $7,200, and investment income from RRIF’s and LIF’s of approximately $24,000. Mr. Oderkirk’s assets are mainly comprised of approximately $167,000 in RRIFs and LIFs, and approximately $35,700 in a TFSA. These total approximately $202,700.

[13] Ms. Oderkirk’s current income is approximately $13,200 per year, excluding spousal support. This is made up of CPP income of approximately $6,000, and OAS income of approximately $7,200. Ms. Oderkirk’s assets are mainly comprised of RRSPs of approximately $177,000, plus other savings of approximately $10,000. These total $187,000.

[14] Ms. Oderkirk has chosen not to draw income from her RRSPs at this time. Her evidence is that she does not want to do so until she has to, which she understands is age 71 under the current legislation.

Ms. Oderkirk’s Position

[15] Ms. Oderkirk argues that due to the length of the marriage, the roles adopted during the marriage, and her current financial circumstances, she continues to be entitled to spousal support based on a compensatory and needs basis.

[16] Ms. Oderkirk argues that Mr. Oderkirk continues to have an ability to pay spousal support, although she does not directly contest the reasonableness of Mr. Oderkirk retirement at age 65.

[17] Ms. Oderkirk’s alternative request for spousal support to be varied to $900 per month is based on calculations under the Spousal Support Advisory Guidelines that calculate ranges for support based on Mr. Oderkirk’s income being $36,800 per year and Ms. Oderkirk’s income being $13,200 per year.

Analysis

[18] The Divorce Act provides for use of a two stage provisional/confirmation order process under sections 18 and 19. Under section 19, the court is required to make an order confirming the provisional order without variation, confirming the provisional order with variation, or refusing confirmation of the provisional order.

[19] Before a court makes a variation order with respect to spousal support, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either 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 (Divorce Act, s.17(4.1)).

[20] The Supreme Court of Canada established the analysis to be applied by the court in considering a variation application in Willick v. Willick, [1994] 3 S.C.R. 670, as follows:

“The approach which a court should take is 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. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.”

[21] I accept Justice Lynch’s finding that it is reasonable for Mr. Oderkirk to retire at age 65, and that this is a material change in circumstances that warrants a variation of spousal support effective August 1, 2017.

[22] However, I find that due to the length of the parties’ relationship (35 years), the economic disadvantage to Ms. Oderkirk of the role she adopted during the marriage, the relatively short duration that spousal support has been paid (five years), and Ms. Oderkirk’s financial circumstances, I find that Ms. Oderkirk continues to be entitled to spousal support on a compensatory and needs basis.

[23] Given the parties’ current respective financial circumstances, I agree with Justice Lynch that it is not appropriate for Mr. Oderkirk to pay any spousal support to Ms. Oderkirk at this time. Ms. Oderkirk has the ability to also draw income from her retirement savings, as Mr. Oderkirk is doing. She has chosen not to. Other than the income from Mr. Oderkirk’s retirement savings, the parties’ incomes are almost exactly the same. Mr. Oderkirk’s retirement savings are not significantly greater than Ms. Oderkirk’s. I do not find that it is appropriate to require Mr. Oderkirk to pay spousal support solely due to the fact that he is drawing income from his retirement savings when Mr. Oderkirk has chosen not to.

[24] However, it is possible that Mr. Oderkirk’s financial circumstances will change either because he returns to employment or due to other circumstances, which may give rise to an obligation to pay increased spousal support in the future. For this reason, I vary the provisional order to require Mr. Oderkirk to pay nominal spousal support to Ms. Oderkirk of $1 per year, subject to variation in the event of a material change in circumstances.

[25] At the hearing before me, Ms. Oderkirk sought an order requiring Mr. Oderkirk to maintain life insurance in the amount of $180,000. The 2013 Order does not include a clause that requires Mr. Oderkirk to maintain life insurance. Mr. Oderkirk’s statement of property, sworn October 3, 2018, lists a Canada Life policy with coverage of $75,000 for which Ms. Oderkirk is the named beneficiary. Ms. Oderkirk’s evidence is that this is a joint first-to-die policy on both of their lives, that Mr. Oderkirk has been paying the premiums, and that the term of this policy will end when they turn 70 years of age.

[26] If Ms. Oderkirk wishes to pursue the issue of life insurance, she will need to bring her own application to vary so that the issue can be determined based on a complete factual background, including Mr. Oderkirk’s ability to obtain life insurance, whether he has any other life insurance available to him, the cost of such insurance, and what his legal obligation may be to maintain that insurance.

Order

[27] Accordingly, I make the following Orders:

[28] The provisional order of Justice Lynch of the Supreme Court of Nova Scotia made on March 23, 2017 is confirmed with variation as follows:

1. Mr. Oderkirk’s obligation to pay spousal support to Ms. Oderkirk in the amount of $1,700 per month pursuant to the Order of July 23, 2014 is varied, effective August 1, 2017, to $1 per year, payable on January 1st of each year commencing January 1, 2018.
2. Each party shall provide the other with a copy of their complete income tax return and notices of assessment and reassessment for 2017 within 60 days of this Order. Thereafter, each party shall provide the other with a copy of their complete income tax return and notices of assessment and reassessment for the previous year on or before June 1st in each year, commencing June 1, 2019.
3. In the event of a material change in circumstances, either party may apply to vary this Order.

[29] There shall be no order for costs.

Justice Pam MacEachern Date: November 2, 2018