COURT FILE NO.: 5388/15

DATE: 2018/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dawn Diane Arthur

Applicant

– and –

Lorne Wayne Arthur

Respondent

Kathleen P.M. Bingham, for the Applicant

Self-Represented

HEARD: September 5, 2018

The Honourable Madam Justice Deborah L. Chappel

JUDGMENT

PART I: INTRODUCTION

1This was the hearing of a Motion to Change Final Order which the Respondent brought to vary the spousal support terms of the order of Pazaratz J. dated November 2, 2016 (“the order”). The Respondent commenced this variation proceeding on February 7, 2017, only three months after the order was made. The order required the Respondent to pay the Applicant spousal support in the amount of $1,750.00 per month, commencing June 1, 2015. This ruling was based in part on the Applicant’s 2015 income of $9,628.00 and the Respondent’s 2015 income of $62,948.00. The Respondent seeks to terminate his obligation to pay the Applicant spousal support altogether. In the alternative, he requests an order that his spousal support obligation be significantly reduced. The Applicant requests that the Motion to Change be dismissed, with costs.

2The issues to be determined are as follows:

1. Has there been a material change in the condition, means, needs or other circumstances of either of the parties since the November 2, 2016 order was made; and

2. If there has been any such change, should the Respondent’s spousal support obligation be either terminated or reduced having regard for the change?

3For the reasons that follow, I have determined that there have not been any material changes in the condition, means, needs or circumstances of either party relevant to the issue of spousal support since the order was made. I am therefore dismissing the Respondent’s Motion to Change Final Order.

PART II: BACKGROUND

I. FAMILY BACKGROUND AND THE PARTIES’ EMPLOYMENT HISTORIES

4I make the factual findings set out below regarding the relevant background in this case based on the evidence adduced at the hearing and the findings which Pazaratz J. set out in his Reasons for Judgment dated November 2, 2016.

5The Applicant was born on December 10, 1957, and is therefore 60 years of age. The Respondent was born on July 15, 1961, and is now 57 years old. The parties were married on July 21, 1979 and had two children together, namely Christopher James Arthur, born March 7, 1985 (“Christopher”) and Alexander Mark Arthur, born March 15, 1987 (“Alexander’). Christopher and Alexander are now 33 years old and 31 years of age respectively and are living independently. The parties separated on March 1, 2014, after a 34.5 year marriage. Both parties continued to reside in the jointly-held matrimonial home until May 31, 2015. They were divorced by order of Pazaratz J. dated August 3, 2016.

6The Respondent was the primary income earner during the parties’ relationship. He worked full-time in a plastics factory from 1980 until 1993. He then worked for another company in the plastics industry from 1993 until 2010, when the company’s factory closed. He was out of work for a short period of time in 2010, but eventually obtained a position at Bericap in Burlington making plastic bottle caps for the food industry. He has continued to work for this company since that time.

7The Respondent’s annual income from 2013 until 2016 was as follows:

2013: $64,250.00

2014: $65,213.00

2015: $62,948.00

2016: $64,017.00

8As noted above, the November 2, 2016 order was based on the Respondent’s 2015 income rather than his total 2016 income.

9The Applicant never graduated from secondary school, as she was one credit short of obtaining her grade 12 certificate. She took a dental assistant course during high school, but did not obtain any formal accreditation to work in this area. She worked for four months in a dental office as a dental assistant/receptionist after finishing the course. However, she would not be able to work in this capacity at this point without obtaining current certification. The Applicant worked for a daycare on a part-time and intermittent basis for a period of 8 months in approximately 1980.

10The Applicant assumed primary responsibility for the maintenance and upkeep of the family home and the care of the children during the parties’ relationship. She returned to work on a part-time basis in approximately 1993, when the children were six and four years of age. She was employed for only one evening each week as a receptionist for a chiropractor until 1999. She subsequently changed jobs to work as a receptionist for another chiropractor. This position entailed 13 hours of work per week and lasted approximately one year.

11The Applicant began to work for Fortinos on a part-time basis in 2001. She continued to work part-time for Fortinos until 2012, when she had to take a leave of absence after sustaining a serious concussion. She was off work for one year due to medical difficulties associated with the concussion. She returned to her position at Fortinos in May 2013, and worked three shifts per week until 2015, when she was offered a fourth shift each week. As of the time of the trial before Pazaratz J., the Applicant was working a total of 20 hours each week at Fortinos, broken down into four shifts. Pazaratz J. found that her work involved a great deal of physical lifting, turning and putting things away. He also found that she had never worked more than 20 hours per week, and that she did not have additional hours available to her at Fortinos.

12The Applicant’s income in 2015 and 2016 was as follows:

2015: $9,628.00 (finding of Pazaratz J.)

2016 $9,754.84 (after deduction of union dues)

13The Applicant’s ability to earn income over the years has been impacted by the role which she assumed during her marriage to the Respondent as well as several health issues which she has experienced. She was diagnosed with epilepsy in her mid-teens and was taking a combination of two medications at the time of the original trial to control her symptoms. She testified during that trial that she had been referred to a hematologist for monitoring. Pazaratz J. found that her epilepsy had been under control for several years, and that she was generally seizure-free provided that she took her medications regularly. However, the Applicant has also suffered from post-concussive syndrome as a result of the concussion which she sustained in April 2012. As of the time of trial before Pazaratz J., she was still experiencing significant problems with headaches, light sensitivity, dizziness, fatigue and impaired concentration. She continued to be monitored by a neurologist at that time due to her ongoing concussion symptoms. In addition, Pazaratz J. found that the Applicant suffered from serious joint pain, for which she had been seeing a physiatrist, as well as osteoporosis and carpal tunnel syndrome.

II. LITIGATION HISTORY

14The parties executed a partial Separation Agreement on November 6, 2015, which resolved all issues except for spousal support. The Applicant subsequently commenced an application in this court to address the spousal support issue. A review of the litigation history and the orders made against the Respondent is necessary because it is relevant to the Respondent’s hardship claim in this proceeding.

15The Applicant brought a motion in her original application on April 8, 2016, seeking a temporary spousal support order. On that date, Lafrenière J. made an order requiring the Respondent to pay the Applicant spousal support in the amount of $1,940.00 per month commencing April 1, 2016, based on the Applicant’s 2015 income of $9,628.00 and the Respondent’s income of $62,837.00. She also ordered the Respondent to pay the Applicant costs in connection with the motion in the amount of $850.00, which she stipulated were on account of support and thus enforceable by the Family Responsibility Office (the “FRO”). The application proceeded to trial before Pazaratz J. on October 29, 2016. On November 2, 2016, Pazaratz J. made a final order upon the following terms:

1. The Respondent was to pay the Applicant spousal support in the amount of $1,750.00 per month commencing June 1, 2015, based on the Applicant’s 2015 income of $9,628.00 and the Respondent’s 2015 income of $62,948.00.

2. The Respondent was to receive credit for payments which he had made to the Applicant for support from June 2015 onward.

3. Arrears of spousal support arising from the terms of the order were to be calculated, and any such arrears were to be paid from the Respondent’s one half share of the net proceeds from the sale of the former matrimonial home. Any arrears that remained outstanding after this payout were to be paid at the rate of $150.00 per month.

4. If any portion of the Respondent’s half of the net proceeds of sale remained after payment of the spousal support arrears owed, those funds were to be held in trust until the issue of costs of the application was determined.

16In his Reasons for Judgment, Pazaratz J. outlined the various factors which led him to make a spousal support award of $1,750.00. These included the following:

1. He found that the Applicant was entitled to support both on compensatory and needs-based grounds. He concluded that her compensatory claim was a very strong one, taking into consideration the length of the marriage and the very traditional roles which the parties had assumed during their relationship.

2. He declined to impute income to the Applicant. In this regard, he concluded that there was no evidence to suggest that the Applicant could find more remunerative work having regard for her skills and employment history. In addition, he accepted the Applicant’s evidence that her health issues were significantly impacting her ability to even carry out the part-time work that she was performing at that time. In short, Pazaratz J. was satisfied that the Applicant was making reasonable efforts to generate as much income as she could.

3. Both parties were living modest lifestyles, and the Applicant had used up a small inheritance which she had received from her mother to support herself.

4. The court noted that the sum of $1,750.00 was actually below the mid-range of support applying the Spousal Support Advisory Guidelines, (Professor Carol Rogerson and Professor Rollie Thompson, Ottawa: Department of Justice Canada, 2008) (the “SSAG”). Pazaratz J. emphasized that in a traditional, long-term marriage with a strong compensatory claim as in this case, a figure in the high range would typically be appropriate. However, taking into account the Respondent’s submissions regarding financial hardship, he concluded that the sum of $1,750.00 struck a fair and reasonable balance between the Applicant’s need and the Respondent’s ability to pay, while leaving both parties with a roughly similar lifestyle.

17On December 1, 2016, Pazaratz J. heard submissions regarding costs in connection with the trial. He made an order on that date requiring the Respondent to pay the Applicant costs in the amount of $6,300.00, inclusive of HST and disbursements, and made this costs award enforceable by the FRO.

18As I have indicated, the Respondent commenced the current Motion to Change Final Order on February 7, 2017, just slightly over three months after the November 2, 2016 order was made. As of March 31, 2017, the Respondent’s arrears of spousal support arising from the order of Pazaratz J. were $17,500.00. In addition, he still owed the Applicant costs in relation to the original proceedings in the amount of $7,150.00. On March 31, 2017, the Respondent paid $16,112.62 towards the spousal support arrears from his share of the net proceeds from the sale of the former matrimonial home. His outstanding spousal support arrears after making this payment were $1,387.38, and his outstanding costs indebtedness to the Applicant was $7,150.00. His total indebtedness to the Applicant following the payout from the net proceeds of sale was therefore $8,537.38.

19A Dispute Resolution Officer (“DRO”) Case Conference was scheduled for June 12, 2017, but it could not proceed because the DRO had a conflict of interest. On that date, Lafrenière J. conducted the case conference as the backup judge, and ordered additional costs against the Respondent in the amount of $200.00, inclusive of HST and disbursements.

20The Respondent brought a motion in the context of this Motion to Change Final Order on July 7, 2017, seeking a temporary order reducing his spousal support obligation to $1,000.00 per month. The Applicant brought a cross motion, seeking an order that the Respondent’s Motion to Change Final Order be stayed until the Respondent paid the costs that had been ordered against him. I heard both motions on July 21, 2017. On that date, I stayed the Motion to Change Final Order until the Respondent paid the Applicant the sum of $4,441.00 towards outstanding costs owed to her as of that time. I also ordered additional costs against the Respondent in relation to the two motions that I had heard in the amount of $1,000.00, inclusive of HST and disbursements, payable by December 29, 2017. The Respondent complied with this order, and on August 24, 2018, Brown J. scheduled the Motion to Change Final Order for a hearing.

21By the time this matter came before me for a hearing on September 5, 2018, the Respondent had paid off all of his arrears of spousal support that remained after his payout on March 31, 2017 from his share of the net proceeds from the sale of the former matrimonial home ($1,387.38). He had also paid the Applicant the costs that had been ordered against him in the original proceedings ($7,150.00), the costs of $200.00 which Lafrenière J. had ordered on June 12, 2017 and the $1,000.00 costs award that I had imposed on him on July 21, 2017. The total amount which he paid from March 31, 2017 until early September 2018 on account of his spousal support arrears and costs was therefore $9,737.38. In addition, he was up to date on his monthly spousal support payments of $1,750.00.

PART III: POSITIONS OF THE PARTIES

I. THE RESPONDENT’S POSITION

22As I have indicated, the Respondent seeks to terminate his spousal support obligation altogether, or in the alternative, to significantly reduce the monthly spousal support amount. The main basis for his claim is that he has suffered significant financial hardship since the November 2, 2016 order was made. His evidence in support of his hardship claim was as follows:

1. He was unable to pay his monthly rent of $975.00 in November 2016. As a result, his landlord issued a notice of eviction on November 4, 2016. He was able to pay the amount due by the date stipulated on the notice, and therefore he narrowly avoided eviction at that time.

2. He was again unable to pay his rent of $975.00 on December 1, 2016, and therefore his landlord issued another eviction notice. On January 6, 2017, the Social Justice Tribunals Ontario gave him notice of an eviction hearing on February 28, 2017 before the Landlord and Tenant Board (“the Board”). He brought his Motion to Change Final Order after receiving notice of the eviction hearing.

3. On February 22, 2017, he received a loan to cover the rent which he owed and a bank debt that he had been unable to pay off. He was therefore able to avoid eviction at that time.

4. In March 2017, the FRO received notice of the significant court costs that had been ordered against him and which were to be enforced by that office. The Respondent submitted that he relied on income tax refunds each year to pay his rent, and that the garnishment of these refunds by the FRO contributed to his inability to pay his rent again.

5. The Respondent was unable to make his full rental payments from October 1, 2017 until December 31, 2017, and his landlord therefore issued another notice of eviction. The total amount which he owed his landlord as of January 31, 2018, inclusive of rent and costs, was $4,186.40. An eviction hearing occurred before the Board on January 9, 2018. On January 29, 2018, the Board postponed the Respondent’s eviction until February 28, 2018, and ordered that he could avoid the eviction upon payment to the landlord of $4,186.40 if made by January 31, 2018, or $5,189.50 if made by February 28, 2018.

6. The Respondent indicated that he was unable to pay the amounts set out above to his landlord by February 28, 2018, and that he was therefore evicted at that time. He indicated at the hearing of this Motion to Change Final Order that he had been living with family members since his eviction.

7. As of July 25, 2018, the Respondent stated that he still owed $4,194.26 to his former landlord, $378.30 to Bell Mobility and $316.19 to Alectra Utilities, which he had no funds to pay.

8. In April 2018, he was approved for homeless priority status with the City of Hamilton Access to Housing program.

23The Respondent’s second argument in favour of either terminating or reducing his spousal support obligation is that the financial stress which he has been experiencing due to the existing spousal support award has been affecting his health. In support of this position, he filed a letter from his family physician, Dr. Goodacre, dated February 28, 2018. This letter indicates that the Respondent suffers from narcolepsy, that he is under significant financial stress which has led to insomnia, and that this stress is making his sleeping disorder worse.

24The Respondent further submitted that a termination or reduction of spousal support is warranted because the Applicant obtained approval for a division of his Canada Pension Plan (“CPP”) credits after the November 2, 2016 order was made and is now receiving CPP benefits in the amount of $322.89 per month. The Respondent relies on the Supreme Court of Canada decision in Boston v. Boston, 2001 SCC 43 in support of this argument. He submitted that the Applicant’s receipt of CPP benefits as a result of the division of his credits has affected his future CPP benefits entitlement, and that this results in the type of “double dipping” problem which the Supreme Court of Canada cautioned against in Boston.

25In further support of his claim, the Respondent suggested that there was an expectation when the November 2, 2016 order was made that the Applicant would make reasonable efforts to increase her income, and that she has failed to do so. He notes that the Applicant’s hours of work have decreased, and alleges that she has not made efforts to seek other more remunerative employment. In addition, he suggests that the Applicant has not pursued all reasonable treatment options for her post-concussive syndrome symptoms. Based on these considerations, the Respondent argued that income should be imputed to the Applicant for the purposes of the spousal support analysis. Finally, in his Factum, he alleges that the Applicant has been involved in a 7 year relationship resembling marriage, which he states commenced prior to the marriage break-up.

II. THE APPLICANT’S POSITION

26The Applicant seeks an order dismissing the Motion to Change Final Order. She emphasized that a party seeking to vary spousal support must demonstrate as a threshold requirement that there has been a material change in either party’s condition, means, needs or other circumstances relevant to the issue of spousal support since the existing order was made. Her position is that the Respondent has not satisfied this threshold test. Her response to the Respondent’s allegation that he has experienced an increase in financial hardship since the November 2, 2016 order was made is as follows:

1. She highlighted that the Respondent has continued to work in the same position since November 2016, and that his annual income has actually increased from his 2015 income of $62,948.00, upon which the order was based.

2. She indicated that the Respondent’s net worth has increased by $10,737.30 since his Financial Statement sworn January 7, 2016.

3. She also emphasized that although the Respondent’s debt load has increased since the order was made, this was largely attributable to the spousal support arrears which arose as a result of the order and the significant costs that he was required to pay as a result of the litigation pertaining to the spousal support issue. In addition, she submitted that it was foreseeable that his debt load would increase if he did not make appropriate adjustments to his expenses after the spousal support order was made.

27The Applicant addressed the comments of Dr. Goodacre in her letter dated February 28, 2018 that the financial stress which the Respondent has been experiencing has aggravated the Respondent’s narcolepsy symptoms. She emphasized that there is no indication in this letter that the Respondent’s health challenges have negatively impacted his ability to work and earn an income equal to at least his 2015 income.

28The Applicant further argued that there have not been any material changes in her condition, means, needs or circumstances which would justify a termination or reduction of spousal support. In this regard, she noted as follows:

1. She indicated that her hours of work at Fortinos have been reduced by one shift since November 2016, through no fault of her own, and that the CPP benefits that she began to receive as a result of the division of the Respondent’s CPP credits have basically offset that loss of income from Fortinos.

2. She asserted that there has been no improvement whatsoever in her medical status since November 2016, and that she remains unable to work full-time due to her health challenges. She submits that there was no expectation when the existing order was made that she would be able to increase her hours of work or her income, and that there is no evidentiary basis for imputing additional income to her.

3. She highlighted that she was living with her son when the order was made, but that she has since moved out on her own and that her housing expenses have therefore increased.

4. Finally, she denied that she has been or is currently living in a spousal-type relationship with anyone, and stressed that there is no evidence to support the Respondent’s allegation that she is involved in such a relationship.

29With respect to the Respondent’s argument relating to the splitting of CPP benefits, the Applicant submitted that the concern respecting double dipping is unfounded. She highlighted that the principles which the Supreme Court of Canada articulated in Boston related to situations where a spousal support claimant receives assets and/or an equalization payment to take into account the capital value of the payor’s future pension income, and then later seeks spousal support from the entire pension income which the payor subsequently draws from the same pension. The court raised concerns about the recipient receiving double recovery in relation to the portion of the pension income that is attributable to the previously equalized portion of the pension. The Applicant submits that the situation in this case is much different, since the CPP credits are not subject to equalization and she never received financial compensation for those credits in the past. She further submits that any such argument would in any event premature, since the Respondent is not yet drawing from his CPP benefits.

30The Applicant argued that even if there has been a material change in circumstances since November 2016, this does not necessarily dictate that spousal support should be either terminated or reduced. She emphasized that Pazaratz J. ordered the amount of $1,750.00.00, which was lower than the mid-range amount generated by the SSAG, despite noting that a figure towards the high range would ordinarily be appropriate on similar facts. She stressed that he did so specifically on the basis of the same arguments respecting financial hardship which the Respondent raised in this proceeding. Accordingly, the Applicant submitted that the existing order already incorporates significant adjustments to take into account the Respondent’s hardship concerns. She noted that the sum of $1,750.00 falls in the low range under the SSAG based on the parties’ respective 2017 and 2018 incomes. She emphasized that she continues to suffer the economic consequences of the role which she adopted during the relationship, and that she remains dependant on spousal support to meet her basic needs.

PART IV: THE LAW

I. STATUTORY PROVISIONS RESPECTING SPOUSAL SUPPORT VARIATION UNDER THE DIVORCE ACT

31The existing order in this case was made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, and therefore the spousal support variation provisions of that Act govern the analysis of the Respondent’s claims. Section 17(1) of the Divorce Act provides that the court may, on application by either or both former spouses, make an order varying, rescinding or suspending prospectively or retroactively a support order or any provision thereof. In making any such order, the court may include a provision that could have been included in the order in respect of which the variation order is sought. This provision must be read in conjunction with section 15.2 of the Act, relating to original spousal support orders. Section 15.2(1) stipulates that a court may on application of either or both spouses make an order requiring a spouse to “secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sum, as the court thinks reasonable for the support of the other spouse.” Section 15.2(3) provides that the court may make a support order for a definite or indefinite period of time, or until a specified event occurs, and may impose “terms, conditions or restrictions in connection with the order as it thinks fit and just.”

32Section 17(4.1) of the Divorce Act establishes that in a spousal support variation application, there is a threshold requirement of establishing a “change in the condition, means, needs or other circumstances” of either spouse since the making of the existing spousal support order. It also directs the court to take that change into consideration in making the variation order. The section reads as follows:

Factors for spousal support order

17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

33In deciding a spousal support variation application, the court must also be guided by the objectives of a spousal support variation order, which are described in section 17(7) of the Divorce Act as follows:

Objectives of variation order varying spousal support order

17(7) A variation order varying a spousal support order should

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

34Section 17(10) of the Divorce Act sets out additional factors which the court must consider when a request is made to vary a time-limited spousal support order.

35The statutory framework outlined above dictates a two-pronged inquiry in a spousal support variation proceeding under the Divorce Act, as follows:

1. First, the court must determine if there has been a change in the condition, means, needs or other circumstances of either spouse since the making of the existing order.

2. Second, if the court concludes that the requisite change has occurred, it must then decide what variation, if any, should be made to the order in light of the change, taking into account the objectives of a spousal support variation order as set out in section 17(7) of the Act, including changes to the quantum and duration of support and the commencement date of any change.

(Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 (S.C.C.), at para. 20; Droit de la famille- 091889, sub nom L.M.P. v. L.S., 2011 CarswellQue 13698, 2011 SCC 64, at para. 31; Punzo v. Punzo, 2016 ONCA 957 (C.A.), at para. 38).

II. THE THRESHOLD TEST

A. General Principles Respecting the Threshold Test

36The onus is on the party seeking to vary a spousal support order to prove the threshold requirement of a change in the condition, means, needs or circumstances of either party since the existing order was made (L.M.P., at para. 31; Droit de la famille- 09668, sub nom R.P. v. R.C., 2011 CarswellQue 13700, 2011 SCC 65, at para. 25). The court must consider the evidence of both parties in determining whether the moving party has met the onus of satisfying the threshold test (Punzo, at para. 26). The change relied upon must be “material” in order to justify a variation of spousal support (B.(G.) v. G.(L.), [1995] S.C.R. 370 (S.C.C.), at paras. 48-49; Hickey, at para. 20; L.M.P., at para. 32; R.P., at para. 25). The concept of a “material change in circumstances” must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made (Brown v. Brown, 2010 NBCA 5 (C.A.)).

37The threshold test ensures that the focus in a variation proceeding remains on developments that have occurred since the existing order was made. The court dealing with a request to vary spousal support should not undertake an analysis of the correctness of the existing order, and it should not depart from that order lightly (L.M.P., at para. 33) Rather, the court must presume that the judge who granted the existing order knew and applied the law, and that the prior order met the objectives of spousal support as articulated in the Divorce Act (L.M.P., at para. 33). Since the analysis of the threshold test starts with the existing order and the factual basis upon which it was made, it is an error to rely on facts that pre-date the existing order to support the threshold test (Gray v. Rizzi, 2016 ONCA 152 (C.A.), at para. 23). To determine whether the requisite change has occurred, the court requires evidence respecting the overall condition, means, needs and circumstances of both parties as of the date of the order. Failing to adduce such evidence will constitute a critical evidentiary gap that will impede the court’s ability to carry out the first stage of the analysis in a variation proceeding (R.P., at para. 33).

38The analysis of the threshold test in a variation proceeding involves consideration of the following three issues:

1. First, does the change which the moving party relies on relate to the “condition, means, needs or other circumstances” of either of the parties?

2. Second, has there actually been a “change” in the condition, means, needs or circumstances of either party since the existing order was made?

3. Finally, if there has been a relevant change, does it meet the test of materiality required to justify a variation of the existing order?

39I turn to the general principles that apply at each stage of this analysis.

B. The Scope of “Condition, Means, Needs or Other Circumstances”

40The change that justifies a spousal support variation under the Divorce Act must relate to a spouse’s “condition, means, needs or other circumstances.” Although this phrase is very broad, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the overall purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] S.C.J. No. 107 (S.C.C.) and are circumscribed by that purpose. As L’Heureux-Dubé J. emphasized in Moge, the overall objective of spousal support is to relieve economic hardship that results from the marriage or its breakdown, and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” (at para. 43; see also Rioux v. Rioux, 2009 ONCA 569 (C.A.), at para. 36). The condition, means, needs and other circumstances relied upon as part of the spousal support analysis must be relevant in some way to this purpose and focus.

41The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependants and their station in life (Menegaldo v. Menegaldo, 2012 ONSC 2915 (S.C.J.), at para. 40; Jackson v. Jackson, 2017 ONSC 1566 (S.C.J.), at para. 286). A spouse’s “means” is to be given an expansive interpretation, and encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits (Strang v. Strang, 1992 55 (SCC), [1992] 2 S.C.R. 112 (S.C.C.) at para. 15; Leskun v. Leskun, 2006 SCC 25, at para. 29; Mason v. Mason, 2016 ONCA 725 (C.A.) at para. 68). The term also encompasses the capacity of a party to earn income from other sources (Hickey v. Princ, 2015 ONSC 5596 (Ont. Div. Ct.), at paras. 62 and 64), and the assets and means that a party is likely to have in the future (Mason, at para. 70). The “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse during the parties’ relationship, subject to the payor’s ability to pay (Moge; Allaire v. Allaire, 2003 CarswellOnt 1002 (Ont. C.A.), at para. 21; Rioux, at para. 42; Schulstad v. Schulstad, 2017 ONCA 95 (C.A.), at para. 57).

C. The Need for a “Change” in a Spouse’s Condition, Means, Needs or Other Circumstances Since the Existing Order

42The element of “change” is key to the analysis of the threshold test in a variation proceeding. The determination of whether a change in the condition, means, needs and circumstances of either party has occurred must commence with an analysis of the actual circumstances of the parties at the time of the order and the terms of the existing order (L.M.P., at para. 42). The question to be asked is whether the alleged change(s) in condition, means, needs or circumstances relied upon by the moving party as meeting the threshold test were contemplated and taken into account in the crafting of the existing order. If the developments relied upon by the moving party were demonstrably contemplated when the order was made, and were factored into the decision-making regarding the support terms, they cannot be relied on to meet the threshold test (B.(G.), at para. 49; L.M.P., at para. 44; Stevenson v. Smit, 2014 ONCA 521 (C.A.); Mason, at para. 72; Schulstad, at para. 31). However, changes which the parties contemplated could transpire in the future, or which as a matter of common sense can be expected to occur later on (such as retirement), but which were not taken into consideration in formulating the spousal support terms may later qualify as a change in circumstances when they materialize (Schulstad, at para. 31; Stones v. Stones, 2004 BCCA 99 (C.A.)). The fact that a change was objectively foreseeable by one or both of the parties does not necessarily mean that it was contemplated by the parties (L.M.P., at para. 67). The threshold test can also be satisfied by evidence that a set of circumstances which the parties anticipated would occur did not in fact materialize. (Fisher v. Fisher, 2008 ONCA 11, 2008 CarswellOnt 43 (Ont. C.A), at para. 71).

D. The Materiality Requirement

43A change in a spouse’s condition, means, needs or circumstances will only meet the threshold test for variation if it is “material” in nature. In order to be material, the change must be such that, if known and factored into the decision when the order was made, it would likely have resulted in different terms to the order (B.(G.), at para. 49; L.M.P., at paras. 32 and 33). In addition, a change will only be considered “material” for the purposes of a variation proceeding if it has a degree of continuity; a temporary set of circumstances will not suffice (L.M.P., at para. 35; Marinangeli v. Marinangeli, 2003 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.), at para. 49). Likewise, trivial or insignificant changes will not justify a variation (Hickey, at para. 20). The sufficiency of the change which the moving party relies upon must always be evaluated in light of the particular facts of each case (Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.) at para. 101).

E. The Terms of the Existing Order and the Threshold Test

44The terms of the existing order should be considered in addressing the question of whether the requisite material change has occurred. This principle applies equally where the existing order was the result of adjudication by the court or where it was the product of an agreement between the parties which was incorporated into an order. If a given change is specified in the order as either giving rise to, or not giving rise to, variation, either expressly or by necessary implication, the answer to the threshold question may be found in the terms of the order itself (L.M.P., at para. 39). Even significant changes may not be material for the purposes of the threshold test in a variation proceeding if they are specifically contemplated, addressed and factored into the terms of the existing order (L.M.P., at para. 39). Consideration of the Reasons for Judgment in relation to the existing order may therefore also be critical to the analysis. In L.M.P., the court noted that the degree of specificity with which the order addresses a specific change “is evidence of whether the parties or the court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances” (at para. 39). It further held that courts should give effect to such intentions, even if they are the result of agreement between the parties, “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” (at para. 39).

F. Failure to Achieve Self-Sufficiency and the Threshold Test

45The Respondent’s claim for a termination or reduction of spousal support in this case is based in part on the argument that the Applicant has failed to improve her financial situation and achieve either increased or full self-sufficiency since the November 2, 2016 order was made. This argument raises the question of whether a failure to make reasonable efforts to become more self-sufficient may constitute a material change in circumstances that satisfies the threshold test in a spousal support variation proceeding. I discussed this issue at length in the case of Menegaldo. As I noted in that decision, the Supreme Court of Canada commented on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge, Leskun and L.M.P. It noted that although one of the objectives of the spousal support provisions of the Divorce Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable.” The Court held that there is no presumed duty on former spouses to achieve financial independence, and that the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) of the Divorce Act reflects a recognition that complete self-sufficiency may not be possible or practicable in some circumstances (see also Remillard v. Remillard, 2014 MBCA 101 (C.A.), at para. 108; Reisman v. Reisman, 2014 ONCA 109 (C.A.), at para. 28; Jendruck v. Jendruck, 2014 BCCA 320 (C.A.), at para. 16).

46Having regard for the principles outlined above, the question of whether a failure to make reasonable efforts to achieve self-sufficiency will constitute a material change that satisfies the threshold test in a spousal support variation proceeding will turn on the particular facts of each case. Specifically, the court must determine whether the parties and/or the court realistically contemplated when the order was made that the recipient would realistically be able to improve their financial situation and progress towards self-sufficiency in the future. This inquiry must be undertaken with an appreciation that self-sufficiency is a relative concept. The Ontario Court of Appeal emphasized in Fisher that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. As the court stated, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation” (at para. 53). The extent to which the court will consider the standard of living during the marriage in setting the standard for self-sufficiency will depend on the particulars of the marital relationship. L’Heureux-Dubé J. made this point in Moge, where she stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution” (at para. 84).

47Keeping these principles in mind, where the evidence indicates that there was no reasonable expectation on the part of the parties when the existing spousal support order was made that the recipient spouse would be able to achieve a reasonable degree of self-sufficiency, the recipient’s failure to take steps to become financially independent will not necessarily, in and of itself, constitute a change in circumstances justifying a spousal support variation (see for example the outcome in L.M.P., at paras. 58-60). By contrast, if the evidence demonstrates that there was a reasonable contemplation on the part of the parties and/or the court that a greater degree of self-sufficiency could be achieved in the future, the threshold test for a variation proceeding may be satisfied.

48Finally, in considering arguments relating to self-sufficiency of the spousal recipient in the context of variation proceedings, the court must take into account the basis upon which the recipient was found to be entitled to support. Failing to do so can result in inappropriately “un-doing” spousal support awards that are intended to compensate a spouse for contributions made to the family, including sacrifices which that spouse made to their career and income-earning potential as a result of caring for children and/or maintaining the home, and advantages which they conferred on the other spouse in terms of their professional advancement (A.A.M. v. R.P.K., 2010 ONSC 930, [2010] O.J. No. 807 (S.C.J.)). In these situations,, the court will need to undertake a global analysis of whether the general circumstances of the parties are such that the compensatory objectives of the existing order have been achieved (Fritsch v. Fritsch, 2008 CarswellOnt 7838 (Ont. S.C.J.)). In such circumstances, increases in the recipient spouse’s financial resources may be relevant, but they will not necessarily be a determinative. By way of example, in Murphy v. Murphy, 2000 CarswellBC 1304 (B.C.S.C.), the court declined to decrease a wife’s spousal support award despite the fact that she had inherited a significant amount of money, having regard for the strong compensatory nature of the wife’s entitlement.

III. THE APPROPRIATE VARIATION ORDER

A. General Principles

49Once the court is satisfied that there has been a material change within the meaning of section 17(4.1) of the Divorce Act since the existing spousal support order was made, it must determine the appropriate variation, if any, that should be made to the existing order (L.M.P., at para. 47). Even if a material change has occurred, it does not necessarily follow that the existing order should be varied. In deciding whether a variation is appropriate, the court must take into account the material change, and should restrict itself to making only the variation that is appropriate having regard for that change, taking into consideration the four objectives of spousal support variation as outlined in section 17(7) of the Divorce Act (Hickey, at para. 20; L.M.P., at paras. 47-48; R.C., at para. 25; Pustai v. Pustai, 2018 ONCA 785 (C.A.), at para. 51). The task on a motion to change support should not be approached as if it were an initial application for support (L.M.P., at para. 50; Pustai, at para. 51).

50The objectives of a variation order as set out in section 17(7) reflect the general principle that the economic consequences of the marriage and of the separation and divorce should be equitably shared between the former spouses (Hickey, at para. 21). Section 17(7)(a) requires the court to take into account economic advantages and disadvantages arising from the marriage or its breakdown. In Hickey, the Supreme Court of Canada emphasized that this provision, in particular, “recognizes the importance, when deciding on spousal support or variation orders, of compensating former spouses for advantages gained and disadvantages suffered as a result of the marriage itself and the decisions the parties made and roles they played within it” (at para. 22). Section 17(7)(c) outlines the important goal of relieving economic hardship arising from the breakdown of the marriage. In considering this objective, the court must examine the changes in the economic situation of the parties caused by the separation, taking into account current needs and means and all other relevant circumstances of the parties (Hickey, at para. 22). The other two objectives set out in s. 17(7), of apportioning child rearing costs over and above the extent reflected in the child support order, and promoting economic self-sufficiency to the extent practicable, are equally important to the formulation of an appropriate order in a variation proceeding. None of the objectives set out in section 17(7) has greater importance than the others (L.M.P., at para. 49). However, as the Supreme Court of Canada emphasized in Miglin v. Miglin, 2003 SCC 24 and L.M.P. at para. 49, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the case before them.

B. Application of the Spousal Support Advisory Guidelines in Variation Proceedings

51Both parties in this case rely on the SSAG to support their respective positions. This raises the question as to whether it is appropriate for the court to refer to the SSAG for guidance and assistance in variation proceedings. The Ontario Court of Appeal’s position regarding the use of the SSAG in spousal support variation proceedings has evolved over time. Initially, in Fisher, the court commented that the SSAG only apply to initial orders for support, and not to variation orders (at para. 96). This conclusion appears to have been based on the comments of the SSAG authors that the guidelines do not apply as a matter or course in variation proceedings. However, in Part 14 of the SSAG, the authors note that the guidelines may be useful in variation proceedings, adding that they should not necessarily be applied as a matter of course. They cautioned that there may be added complexities and entitlement issues in applying the SSAG in certain variation cases which limit the use of the guidelines. The authors reiterate this point in the Spousal Support Advisory Guidelines: The Revised User’s Guide, Professor Carol Rogerson and Professor Rollie Thompson, April 2016, at p. 75 (the “Revised User’s Guide”). In Beninger v. Beninger, 2007 BCCA 619 (C.A.), the British Columbia Court of Appeal accepted the proposition of the SSAG authors that the guidelines can be used in variation proceedings in some situations, provided that caution is exercised to ensure that the use of the guidelines is appropriate taking into account the particular facts of the case before the court (at para. 55). The Ontario Court of Appeal followed suit with this approach in Gray v. Gray, 2014 ONCA 659 (C.A.), in which it emphasized that Fisher was not a variation proceeding and that it was decided before the release of the Final Version of the SSAG. The court confirmed in Gray that the SSAG may apply on variation, but that there may be complicating factors in some cases which must be considered before the court applies the SSAG wholesale (at para. 45; see also Slongo v. Slongo, at para. 105; Schulstad, at para. 52; McKinnon v. McKinnon, 2018 ONCA 596 (C.A.), at para. 24).

52The Ontario Court of Appeal has commented on several occasions on the weight which the court should give to the SSAG in carrying out the spousal support analysis. In Fisher the court held in the context of an original application that although the SSAG are not legislated or binding on the court, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances” (at para. 96). The court subsequently reiterated in Slongo that the SSAG are not binding, but added that they should not be lightly departed from because “without them, it is difficult to establish a principled basis for arriving at a figure for spousal support” (at para. 105). More recently, the court held in McKinnon that “[t]he SSAGs are the presumptive starting point for awarding support. Any departure from them requires adequate explanation” (at para. 24).

IV. INCOME DETERMINATION

A. General Principles Regarding Determination of Income

53The financial means of a spousal support recipient and the payor spouse are critical factors in spousal support variation proceedings for determining whether there has been a material change, assessing ongoing entitlement to support and determining the appropriate quantum and duration of spousal support if the threshold test is met. The income of the parties is one of many factors that are relevant to the condition, means, needs and circumstances of the parties. For the purposes of the SSAG, the determination of income for spousal support purposes begins with the definition of “income” under the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”). The Ontario Court of Appeal accepted this to be the appropriate starting point for determining income in the context of spousal support proceedings in Slongo (at para. 30).

54Sections 15 to 20 of the Guidelines set out the framework for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable. Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal child-related tax benefits and Goods and Services tax credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). Schedule III to the Guidelines must also be carefully considered in determining the parties’ incomes for support purposes, as it sets out a number of adjustments that must be made to income. For the purposes of calculating the Table amount of child support, section 3 of the Schedule provides that any spousal support received from the other spouse and any universal child care benefit that is included to determine the spouse’s total income in the T1 General Tax Form must be deducted. Section 3.1 establishes special rules for the calculation of income for the purpose of determining an amount under section 7 of the Guidelines. Finally, section 4 of Schedule II directs that any amount of social assistance income that is not attributable to the spouse should be deducted.

55The determination of income for the purposes of spousal support and the application of the SSAG differs from the calculation of income for child support cases in two significant ways. First, government child-related benefits and credits, including the Canada Child Benefit and Goods and Services credits, are included in income under the “With Child Support” formula (SSAG, p. 47). Second, social assistance for parents or children of any kind, including Ontario Works benefits and Ontario Disability Support Plan benefits, is not treated as income for the purposes of the SSAG. Canada Pension Plan payments are not social assistance and are considered to be income. This extends to CPP disability payments, whether for the parent or the separate benefit for children (The Revised User’s Guide, at p. 18).

56Section 16 of the Guidelines does not require the court to use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining the quantum of support in the following year. Rather, the intention of section 16 is to direct the court to ascertain the payor’s income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 21778 (ON SC), [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of support is being determined (V. (L.R.) v. V. (A.A.), 2006 BCCA 63 (C.A.); Lavergne v. Lavergne, 2007 ABCA 169 (C.A.); Chalifoux v Chalifoux, 2008 ABCA 70 (C.A.); Vanos v. Vanos, 2010 ONCA 876 (C.A.); Morrissey v. Morrissey, 2015 PECA 16 (C.A.)). One exception to this principle is where the payor’s current income situation is uncertain or speculative, in which case fairness to the payor may require the court to rely on historical income information (Morrissey).

B. Imputation of Income

57As I have indicated, the Respondent submits that the Applicant is able to earn more income, and that the court should therefore impute income to her for the purposes of this spousal support variation proceeding. The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

b) the spouse is exempt from paying federal or provincial income tax;

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

e) the spouse’s property is not reasonably utilized to generate income;

f) the spouse has failed to provide income information when under a legal obligation to do so;

g) the spouse unreasonably deducts expenses from income;

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

58The court’s authority to impute income to a party reinforces that parties must act responsibly when making financial decisions that may affect the level of income available from them for the support of their dependants or themselves (Duffy v. Duffy, 2009 NLCA 48 (NLCA)). The list of circumstances set out in section 19 in which the court may impute income is not exhaustive, and therefore it does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income (Bak v. Dobell, 2007 ONCA 304 (C.A.); Riel v. Holland, 2003 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (C.A.); Korman v. Korman, 2015 ONCA 578 (C.A.), at para 48).

59The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court (Bak, at para. 73; Korman, at para. 49). Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some reasonable basis in the evidence for the amount that the court has chosen to impute (Korwin v. Potworowski 2007 ONCA 739 (C.A.), at para. 5; Korman, at para. 51; Pustai, at paras. 46-50).

PART V: ANALYSIS AND RULINGS

I. ISSUE #1: HAVE THERE BEEN MATERIAL CHANGES IN THE RESPONDENT’S CONDITION, MEANS, NEEDS OR CIRCUMSTANCES SINCE NOVEMBER 2016?

60Applying the principles outlined above, I turn to the threshold issue of whether there has been a material change in the condition, means, needs or circumstances of either party since the November 2, 2016 order was made which would support a variation of the spousal support payable under the order. For the reasons that follow, I find that the threshold test for a variation of the Respondent’s spousal support obligation has not been satisfied.

61The Respondent’s primary argument in support of his variation request is that he has experienced a significant increase in financial hardship since the order was made, to the point that he was evicted from his apartment. The evidence certainly indicates that the Respondent has experienced some financial difficulties since November 2016, and that he has at times failed to meet his financial obligations. However, an increase in financial adversity does not in and of itself satisfy the threshold test in a spousal support variation proceeding. The court must carefully consider the underlying reasons for the increased hardship and whether they are pertinent to the support analysis. In this case, I find that the increase in the Respondent’s financial stress is primarily attributable to the spousal support arrears and costs awards relating to the Family Law proceedings which he had to pay from March 2017 until September 2018, totalling $9,737.38. This is a very significant debt having regard for the Respondent’s income level, and when averaged out over the 18 month period, it represents an additional liability to the Respondent of approximately $540.96 per month. As I have indicated, he has paid this liability off and has also kept up with his monthly spousal support payments of $1,750.00. Increased financial hardship due to the accumulation of support arrears and costs awards associated with the support issue is not a change that supports a variation of spousal support. To conclude otherwise would completely undermine the purposes of the spousal support and costs orders, and reward the payor indirectly for his past support delinquencies and misguided litigation conduct.

62I have been unable to identify any other material changes in the Respondent’s overall condition, means, needs and circumstances which would justify a change in the existing spousal support order. As I have discussed above, Pazaratz J. recognized that the Respondent was experiencing some financial difficulties as of the fall of 2016, and he took this into account in making his order by ordering a lower amount of support than he would have otherwise ordered. With respect to the Respondent’s loss of housing, the evidence indicates that he had experienced difficulty making his lease payments during the period leading up to November 2, 2016. As discussed above, he was almost evicted in November 2016, and his landlord commenced eviction proceedings shortly thereafter in early 2017. With respect to his income, the November 2, 2016 order was based on his 2015 income of $62,945.00. His 2016 income was actually higher, totalling $64,017.00. His income increased again in 2017, to $65,379.00. In his Financial Statement sworn July 25 2018, he indicated that his 2018 income would be in the same range as his 2017 income.

63I have also carefully considered the evidence relating to the Respondent’s debt load since 2016, apart from his support arrears and costs liability relating to the court proceedings. I find that his overall debt relating to other liabilities has actually decreased since that time. In his Financial Statement sworn January 7, 2016, he reported debts totalling $42,217.82, consisting of a car loan of $35,838.71, a TD Canada Trust line of credit balance of $5,908.50 and a TD Canada Trust Mastercard balance of $470.51. A subsequent Financial Statement sworn June 6, 2016 appears to be incomplete, as it shows no debts at all. His Financial Statement sworn February 7, 2017, which he filed with his Motion to Change Final Order, showed total debts of $38,016.97. This again included the car loan, TD Canada Trust line of credit and TD Mastercard that had been noted in his January 7, 2016 Financial Statement. Subsequent Financial Statements sworn June 27, 2017 and July 5, 2017 showed debts totalling $41,041.07. However, his Financial Statement sworn July 25, 2018 indicates that he had been able to decrease his debt load to $35,390.69 by that time.

64A comparison of the Respondent’s monthly cash-flow situation as of November 2016 and more recently further supports my conclusion that the threshold test has not been met in this case. In his January 7, 2016 Financial Statement, the Respondent reported a monthly surplus of $239.61. At that time, he was not paying spousal support. In his June 2016 Financial Statement, his surplus before accounting for spousal support was $723.16 per month. These figures were based on gross income figures of $56,163.23 and $51,508.80 respectively, which were much lower than his actual 2016 income of $64,017.00. His February 7, 2017 Financial Statement reflects a surplus of $842.00 per month before accounting for spousal support. He also under-reported his 2017 income as $53,364.00 in this Financial Statement. As I have noted, his actual 2017 income was $65,379.00. In his Financial Statement sworn June 27, 2017, his monthly surplus before spousal support was $1,274.52. Based on his most recent Financial Statement sworn July 25, 2018, his monthly income exceeded expenses by $2,060.77 before payment of spousal support. By that time, his rental income had decreased significantly because he had lost his apartment. These figures indicate that the Respondent’s cash flow situation has actually improved since 2016.

65Finally, I have undertaken an analysis of the Respondent’s asset base in 2016 as compared to now. In his Financial Statement sworn January 7, 2016, he reported having assets valued at $37,853.43. On June 6, 2017, he reported assets valued at $27,000.00 in his Financial Statement. This does not appear to be accurate, since it did not include his pension. By February 7, 2017, he reported an increased asset base of $42,631.34. His most recent Financial Statement sworn July 25, 2018 showed a further increase in the value of his assets, to $50,492.38.

66The Respondent’s request to either terminate or reduce his spousal support obligation is based in part on his argument that he has begun to suffer health difficulties due to the financial stress that he has been experiencing. However, the evidence before me does not support a finding that the Respondent’s income earning capacity has been impaired due to health issues. The only medical evidence that the Respondent adduced was the letter from his family physician, Dr. Goodacre, dated February 28, 2018. Although the letter indicates that the Respondent suffers from a sleep disorder which has been exacerbated by the financial stress that he is experiencing, there is no indication that this health issue has undermined the Respondent’s ability to earn income. The Respondent’s income information is at odds with the suggestion that his ability to earn income is suffering due to health problems, since his income has actually increased since 2015.

II. ISSUE #2: HAVE THERE BEEN MATERIAL CHANGES IN THE APPLICANT’S CONDITION, MEANS, NEEDS OR CIRCUMSTANCES SINCE 2016?

67I have considered whether there have been any material improvements to the Applicant’s condition, means, needs and circumstances since November 2016 which would satisfy the threshold test for a variation of the spousal support order. I conclude that there have not been. Addressing first the Applicant’s income, the existing spousal support order was based on the Applicant’s 2015 income of $9,626.13. She has continued to work in the same position at Fortinos since that time, and her income has not changed materially. Her total 2016 income, after deducting union dues, was $9,754.84. I accept her evidence that she has had one less shift per week at Fortinos since November 2016, through no fault of her own. In 2017, her total income after deducting union dues dropped to $8,529.87 as a result of her decreased work hours. In January 2018, she started to receive CPP benefits following the division of the Respondent’s CPP credits. Based on the Applicant’s Financial Statement sworn August 8, 2018, I find that her annual income from employment is now approximately $6,894.72, and her annual CPP benefits will be approximately $3,874.89. Her total income for 2018 will therefore be approximately $10,769.40. After deducting union dues of $440.28, her annual income for the purposes of the spousal support analysis will be approximately $10,329.12. This is only $702.99 more than the income upon which the November 2, 2016 spousal support order was based. By contrast, the Respondent’s income has increased by approximately $2,431.00 from the 2015 income upon which the order was based.

68The Respondent argued that there was an expectation when the support order was made that the Applicant would be able to increase her income over time, and that she has failed to make reasonable efforts since November 2016 to do so. I do not accept this line of reasoning. Pazaratz J. clearly indicated in his Reasons for Judgment in relation to the November 2, 2016 order that the Applicant was suffering from numerous significant medical difficulties at the time which had negatively impacted her ability to work generally, and which were rendering it difficult for her to even do the work that she was performing at the time. He found that her post-concussive syndrome symptoms and musculoskeletal problems were “a very real limitation in her daily life” (at para. 20(f)). Pazaratz J. clearly held that it was not realistic to expect that the Applicant would be able to find more remunerative employment through other avenues, including juggling multiple part-time jobs. There is no evidence to suggest that the Applicant’s health challenges have improved since November 2016. On the contrary, the Applicant’s uncontroverted evidence is that there has been no improvement whatsoever in her overall health or her capacity to manage a heavier work load. The Applicant will be 61 years of age as of December 10, 2018. She has not upgraded her skills or training since November 2016, and I find that it would be unreasonable to expect her to have done so having regard for her age and her medical difficulties. She remains under the regular care and monitoring of her family physician, Dr. Goodacre, and her neurologist, Dr. Savelli. I find that her medical challenges and symptoms have not abated at all since the support order was made. In her affidavit sworn August 3, 2018, the Applicant stated that her ongoing symptoms include fatigue, chronic and frequent headaches and difficulty sleeping. She continues to take dilantin to control her epilepsy. I accept the Applicant’s evidence that she can only manage part-time work, and that her symptoms increase if she works more shifts or works too many shifts in a row. Based on all of the evidence, I find that the prospects of her being able to achieve a greater level of self-sufficiency have not changed since November 2016.

69While the Applicant’s income has not changed materially since November 2016, she has experienced an increase in her monthly expenses. In her Financial Statement sworn September 8, 2016, she indicated that her monthly expenses totalled $2,379.31. As of that time, the parties’ son, Christopher Arthur, was living with the Applicant and was contributing approximately $1,500.00 per month towards household expenses. When the Respondent commenced this Motion to Change Final Order, the Applicant was no longer sharing accommodations with Christopher. Based on her Financial Statement sworn March 28, 2017, I find that her monthly expenses had increased to $3,058.31 by that time. As of August 8, 2018, her expenses had increased further, to $3,279.33 per month.

70A comparison of the Applicant’s assets and debts in 2016 as compared to now further supports my conclusion that her overall condition, means, needs and circumstances have not materially improved since November 2016. As of September 8, 2016, when she swore her Financial Statement for the original trial, she had total assets worth approximately $22,899.63, not including her pension, and debts totalling $2,283.12. As of August 8, 2018, the value of her assets had decreased to $19,555.63, not including her pension, whereas her debts had increased to $7,729.28.

71I have considered the Respondent’s argument that the splitting of his CPP credits with the Applicant pursuant to the Canada Pension Plan, R.S.C. 1985, c. C-8, warrants a variation of his spousal support obligation. The Respondent relies on the Supreme Court of Canada’s decision in Boston to argue that this development has resulted in “double dipping” by the Applicant and should be corrected by either terminating or significantly reducing the spousal support award. A review of the principles which the court established in Boston is therefore critical to the analysis in this case. In Boston, the parties had by agreement divided their assets approximately equally, with the vast majority of the husband’s property consisting of his employment pension valued at $333,329.00. The husband had also agreed to pay the wife spousal support of $3,200.00 per month. Several years later, the husband retired and began to receive employment pension and CPP income. He applied to reduce his spousal support obligation, arguing that his retirement, his reduced income and the depletion of the capital amount of his employment pension were material changes in circumstances justifying a decrease in spousal support. The Supreme Court of Canada discussed the concern regarding double recovery, also known as “double dipping,” in circumstances where a portion of a spousal support payor’s pension has been equalized through the property route, and then the entire amount of the pension is later considered as income for spousal support purposes when the pension holder eventually retires. It noted that in such circumstances, the property award takes into account the capital value of the pension holder’s future pension income. Accordingly, if the recipient spouse later shares in the entire pension income through spousal support when the pension comes into pay upon the payor spouse’s retirement, the recipient “can be said to be recovering twice from the pension: first at the time of the equalization of assets and again as support from the pension income” (at para. 34). The court held that to avoid double recovery in these circumstances, the court addressing the issue of spousal support following the payor’s retirement should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets (at para. 64). However, the court emphasized that this is not a hard and fast rule. It concluded that “double recovery” cannot always be avoided, and that a portion of a pension that has already been equalized can in some circumstances also be viewed as income support for spousal support purposes. In particular, it noted that double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized asset in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists” (at para. 65).

72I do not accept the Respondent’s argument that the splitting of his CPP credits with the Applicant is a material change that satisfies the threshold test for a variation of the existing spousal support order. The sharing of these credits does note invoke the concerns relating to double recovery which the Supreme Court of Canada addressed in Boston. Unlike the pension that was in question in Boston, CPP credits are not subject to equalization as property under the Family Law Act, R.S.O. 1990, c. F-3, as amended. Section 4(2)(7) of the Family Law Act stipulates that unadjusted pensionable earnings under the Canada Pension Plan do not form part of a spouse’s net family property. Accordingly, these credits are not considered in determining any equalization payment that may be owed. Rather, the sharing of these credits upon the breakdown of a spousal relationship is addressed independently pursuant to the Canada Pension Plan. Once the benefits are divided, the recipient spouse’s share is included in their income, and the pension holder spouse’s ultimate CPP benefit entitlement is reduced accordingly. The reduced portion of the CPP entitlement which the payor eventually receives will not have been the subject of a prior property award. This outcome is distinguishable from the situation with regular pensions not yet in pay as the one in Boston, where the recipient receives a monetary award for a property settlement rather than a division of the actual pension asset, the pension holder later receives their full pension entitlement as an income source and the recipient attempts to benefit from that source once again through the avenue of spousal support. The legislative scheme respecting division of CPP credits and the operation of section 4(2)(7) of the Family Law Act preclude the possibility of double recovery through the property route and then later through the spousal support channel (Kormendy v. Kormendy, 2018 BCSC 342 (S.C.), at para. 28).

73Finally, I turn to the Respondent’s argument that the spousal support order should be varied based on the Applicant’s involvement with another man in a 7 year relationship resembling marriage, which he alleged had commenced prior to the marriage break-up. This submission is set out in the Respondent’s Factum. The Applicant adamantly denied that she has been cohabiting with a male partner, and the Respondent did not lead any evidence whatsoever to support his allegation. I therefore reject this ground as a basis for establishing the threshold test for variation.

III. CONCLUSIONS

74For the reasons outlined above, I conclude that the Respondent has not satisfied the threshold test for varying the spousal support terms of the November 2, 2016 order. I am therefore dismissing his Motion to Change Final Order. However, I note that even if I had found that the threshold test had been met, I would have concluded that no variation was warranted on the facts of this case. I have carefully considered the objectives of spousal support variation as set out in section 17(7) of the Divorce Act in reaching this conclusion. The parties had a long-term marriage during which the Applicant assumed a very traditional role caring for the children and attending to the home. Her entitlement to spousal support claim was founded on both her needs and strong compensatory grounds. I am satisfied based on the evidence before me that she experienced significant economic disadvantage as a result of the roles which she adopted during the relationship and the breakdown of the marriage, and that the economic impact on her has been long-term in nature. She continues to be in need of financial support, and the discrepancy in the parties’ respective incomes remains substantial. I am not satisfied that the Applicant could have reasonably decreased this considerable income gap since the November 2, 2016 order was made. The compensatory element of her spousal support entitlement has not, in my view, been fulfilled. In this regard, it is important to note that the existing order was based on the Respondent’s 2015 income of $62,948.00. In fact, his income in the year of separation, 2014, was $65,213.00. Accordingly, the November 2, 2016 order took into consideration the decrease in his income in the year following the separation. However, his actual annual income in 2016, when the order was made, had increased to $64,017.00. Using the parties’ actual 2016 incomes, the SSAG suggest an indefinite award, with the following ranges:

Low: $1,696.00 Mid: $1,978.00 High: $2,121.00

75The indefinite duration generated by the SSAG supports my conclusion that the compensatory element of the Applicant’s entitlement has not been fulfilled. Moreover, the SSAG results for the year 2016 based on the parties’ actual incomes for that year indicate that the existing spousal support amount of $1,750.00 per month is only slightly higher than the low range. This is also the case using the parties’ current incomes of $65,379.00 and $10,330.00, which produce the following ranges under the SSAG:

Low: $1,720.00 Mid: $2,007.00 High: $2,146.00

76I agree with Pazaratz J. that an award towards or at the high range would be more appropriate in this type of case, having regard for the length of the parties’ cohabitation, the Applicant’s very strong compensatory claim, her age at the time of separation, her health difficulties and her high need. Accordingly, the order in my view continues to generously accommodate the concerns which the Respondent expressed in 2016 and again during the course of these proceedings regarding financial hardship.

77With respect to costs, the Applicant has been entirely successful in this Motion to Change Final Order, and is therefore presumptively entitled to costs of this proceeding pursuant to Rule 23 of the Family Law Rules. In the event that she seeks costs, I am requiring the parties to engage in concerted efforts to resolve the costs issue without the need for further court intervention, which will simply amplify the expenses that have already been incurred in this case.

PART VI: TERMS OF ORDER TO ISSUE

78Based on the foregoing, a final order shall issue as follows:

1. The Respondent’s Motion to Change Final Order dated February 7, 2017 is dismissed.

2. The parties shall engage in meaningful discussions respecting the issue of costs of this Motion to Change Final Order. In the event that they are unable to resolve the issue of costs, any party seeking costs shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by November 30, 2018. Any responding submissions shall be served and filed by December 7, 2018. Reply submissions shall be served and filed by December 14, 2018. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party.

The Honourable Madam Justice Deborah L. Chappel

Released: November 14, 2018

COURT FILE NO.: 5388/15

DATE: 2018/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dawn Diane Arthur

Applicant

– and –

Lorne Wayne Arthur

Respondent

REASONS FOR JUDGMENT

Chappel J.