Court File and Parties

COURT FILE NO.: 3484/17 DATE: 2019-04-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT COLIN HAYNES, Applicant AND: ANNE LOUISE HAYNES, Respondent

BEFORE: D. Fitzpatrick J.

COUNSEL: Deborah R. Squires, for the Applicant Ryan C. Baker, for the Respondent

HEARD: March 26, 2019

Endorsement

[1] The Applicant, Robert Colin Haynes (the “Applicant”) brought a Motion to Change seeking the termination or reduction of spousal support payable by the Final Order of Justice Herold made September 26, 2006 (the “Final Order”).

[2] The Respondent, Anne-Louise Haynes (the “Respondent”) asks that the Motion to Change be dismissed. Failing that, she seeks an increase in the quantum of spousal support on both a retroactive and ongoing basis.

[3] For the reasons below, I am dismissing the Motion to Change.

Background

[4] Both parties were born in 1957. The parties were married on August 19, 1978 and separated September 30, 2004. They divorced on October 26, 2006.

[5] The Respondent in this Motion, Ms. Haynes previously commenced an Application before the Superior Court to address issues arising from the breakdown of the marriage. The parties resolved that proceeding by way of Minutes of Settlement that formed the basis of the terms in the Final Order.

[6] The Final Order stated the following:

Commencing the first day of April 2006, and continuing on or before the first day of each month thereafter, the Respondent [Robert Colin Haynes] shall pay to the Applicant [Anne Louise Haynes] periodic monthly spousal support in the amount of $3,200 pursuant to the Divorce Act. Commencing in 2007 and continuing thereafter each year for so long as the Respondent is under an obligation to pay support to the Applicant, the parties will provide to the other a true copy of their income tax return and supporting t-slips and schedules and when received, notices of assessment in respect of such taxation year. Such spousal support will terminate upon the death of the Respondent provided the Respondent has in place, at the time of his death, life insurance payable to the Applicant as hereinafter set out. Spousal support may be varied in the event of a material change in circumstances. Spousal support aforesaid shall be increased irrespective of a material change in circumstances and without prejudice to the same each year on the anniversary date of this order, by the indexing factor, commencing May 2007, by the percentage change in the Consumer Price Index for prices of all items since the same month of the previous year as published by Statistics Canada pursuant to Section 34(5) and (6) of the Family Law Act.

[7] The quantum of spousal support set out in the Final Order was based on the Applicant’s then yearly income of $119,000 and the Respondent’s of approximately $18,000.

[8] The Final Order is silent with respect to early retirement, retirement and/or any other termination for the Applicant’s spousal support obligations.

[9] The Final Order also directed Mr. Haynes to pay an equalization of $76,822. This equalization calculation included a sum of $108,324 assigned to the value at separation of Mr. Hayne’s pension.

[10] The Applicant’s income increased significantly following the Final Order. He earned Line 150 income of $243,587, $278,308, $243,587 and $332,528 respectively for the 2014 through to 2017 taxation years. The Respondent earned $30,298, $30,870, $30,508 and $30,011 over the same years.

[11] The Applicant did not disclose these increases in income. He says he was never asked for this information by the Respondent. Regardless, the event driving this Motion is the unilateral decision made by the Applicant to retire early from his employment on July 31, 2017 at age 60.

[12] The Applicant’s evidence is that he did not retire pursuant to any medical reasons. The Applicant’s evidence is also that he could work. The Applicant indicates he decided to retire with consideration to his many years of employment, having observed his mother work to age 65 then pass away within a year following her retirement and his related desire to enjoy the balance of his life.

[13] The Applicant states that he specifically told the Respondent “throughout the marriage and the separation” of his plan to retire early.

[14] Sections 17 and 17.1 of the Divorce Act provide the Court with the authority and framework to make an order varying, rescinding, or suspending a support order on a prospective and retrospective basis.

[15] The Divorce Act at section 17(4.1) requires that before a court makes a variation order in respect of spousal support, the Court must be satisfied that there has been a material change in circumstances with respect to the condition, means, needs or other circumstances of either former spouse.

[16] The Supreme Court of Canada provides useful guidance where it stated that “in deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. That this change, such that, if known at the time, would likely have resulted in different terms…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. (see: Willick v. Willick)

[17] In Bullock v. Bullock, Justice Corbett of the Ontario Superior Court had to decide whether retirement at age 62 qualified as a material change of circumstances. Justice Corbett concluded it was not in the context of an otherwise extant obligation to pay for spousal support. Justice Corbett found that “A support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations.”

[18] In 2015, the Ontario Divisional Court in Hickey v. Princ, relied on Bullock stating “in our view, [Bullock] represents the law in Ontario…a payor is not entitled to write himself a ticket to a life of idle leisure…abdicating his spousal support obligations in the process”. The Court in Hickey found that permitting voluntary retirement, even where the individual qualified for a full pension, in the face of a spousal support obligation would be inconsistent with the provisions of section 17(4.1) of the Divorce Act. The Court’s view was that section 17(4.1) of the Divorce Act required consideration of income earning ability was not restricted to “whatever actual pension income the payor chooses to confine himself to.”

[19] The Applicant’s Motion is doomed by his own evidence, in particular the contents of his Affidavit sworn October 12, 2018. There he tells us that his intention to retire early was known to both him and the Respondent at the time they negotiated and entered into the Minutes forming the Final Order. The point being that he is now seeking to rely upon an event that was known and, by the Applicant’s evidence, intended at the time of the Final Order, namely early retirement, as a material change of circumstances. Clearly, that known and intended event in fact happening subsequent to the Final Order cannot be a material change.

[20] The Applicant, in submissions by his counsel suggested that the reduction in his income flowing from this early retirement could constitute material change. In other words, he says it is not the early retirement but the lower income he earns from his pension following retirement that is the material change needed for this Court to reduce or terminate his spousal support obligation. This is a completely untenable argument. The operative event in this narrative is Mr. Haynes’ retirement. The consequence of that event is the reduced income from the pension he is now drawing post retirement. Mr. Haynes’ reduced income itself cannot be the material change.

[21] In any event, the submission that Mr. Hayne’s reduced income is a material change misses the point. It is not his income but his ability to earn that is the appropriate focus (see: Hickey). I would also dismiss the Motion on the basis that Mr. Haynes did not establish any material change to his ability to earn an income. To the contrary, the Applicant’s evidence was clear that he remains able to work and, in particular, to continue the very employment he chose to retire from. That income has increased significantly since the Final Order and would justify the continuation of his spousal support obligations. The Applicant has simply failed to establish a material change.

[22] The final argument advanced by the Applicant is with reference to that amount of his pension that he previously equalized pursuant to the Final Order. The analysis of this submission requires some context.

[23] Mr. Haynes had his date of separation pension valued at the time the parties were negotiating the Minutes. The valuation suggested three values: $74,472 if he retired at age 65, $100,142 if he retired at age 62 and a midpoint value of $85, 545. A value of $108,324 was assigned to his pension for the purposes of calculating equalization. The Applicant’s submission was that “my retirement, given that my pension was taken into consideration in equalizing our properties, would trigger if not a termination given the passage of time, a reduction in the level of support being paid.” I take him to argue that the higher amount assigned to his pension value for equalization was premised on an agreement with the Respondent that he would thereby be permitted to retire early.

[24] Again, the Applicant’s own evidence defeats this argument. The Applicant states that he is “unsure why” the $108,324 number assigned to his pension value for the purposes of calculating equalization was used. In other words, he has no evidence linking this figure to his then known and intended early retirement. I also note the Respondent had no better knowledge of why the said pension value was used for equalization. Absent this linkage any inference suggesting that the higher value assigned to his pension for equalization was with reference to his intended early retirement is entirely speculative and unsupported. Accordingly, I reject that argument.

[25] Based on all of the above, the Motion to Change is dismissed. Order to go accordingly.

[26] I invite the parties to resolve the issue of costs flowing from this decision. If they cannot then the Respondent may serve and file her cost submissions not to exceed three pages double spaced along with any relevant Offer(s) and Bill of Costs within 15 days of the date of this decision. The Applicant may serve and file his responding cost submissions not to exceed three pages double spaced along with any relevant Offer(s) and Bill of Costs within 25 days of the date of this decision. Any reply by the Respondent shall not exceed two double spaced pages to be served and filed within 30 days of this decision.

D. Fitzpatrick J. Date: April 9, 2019