Court File and Parties

COURT FILE NO.: 5315/08 DATE: 20190610 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Keith Bendall Applicant – and – Arlene Gloria Bendall Respondent

Counsel: Ian Bruce, for the Applicant D. John Kirby, for the Respondent

HEARD: April 1 and 2, 2019

Raikes J.

Endorsement

[1] The Applicant, Richard Bendall (hereafter “Richard”) moves to terminate spousal support payable to the Respondent, Arlene Bendall (hereafter “Arlene”) pursuant to the order of Daudlin J. dated September 25, 1997. Although the motion to change sought to terminate spousal support effective June 1, 2005, at trial Richard asserted that spousal support should end effective January 1, 2018, the day he retired.

[2] Arlene opposes the motion to change and seeks a retroactive increase in spousal support payable for the period 2009 to January 1, 2018. She also asks that spousal support continue to be payable indefinitely. She maintains that he chose to retire early knowing that it would affect his ability to pay spousal support. She is in need and is unable to be self-sufficient despite efforts to do so.

[3] I pause to note that Arlene’s response to the motion to change does not seek a retroactive increase in spousal support; rather, it merely asks that spousal support continue at the amount specified by Daudlin J.. Arlene moves to amend her motion to change but she did so only after the evidence was in and after Richard’s counsel had completed his closing submissions in which he relied on Arlene’s response to the motion to change. For reasons set out below, the oral motion to amend her pleading is denied.

Background

[4] Richard and Arlene married July 14, 1979. They separated for the final time on April 14, 1994. They lived together for roughly 6-12 months before marriage. Thus, their marriage was just shy of 15 years and their period of cohabitation is between 15-16 years.

[5] Richard and Arlene have two children who are now grown and independent. Brian is 35 and Leah is 30. On separation, the children resided with Arlene. Later, Brian left to reside with Richard roughly two weeks before his eighteenth birthday. Leah remained in her mother’s care until August 2007.

[6] The first litigation between the parties was commenced by Arlene under the Family Law Act, 1986, R.S.O. 1990, c.F.3 and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended. On September 25, 1997, Justice Daudlin granted judgment in accordance with minutes of settlement filed. By that judgment, Arlene was granted custody of the children and the terms of access were spelled out. The key provision for the purposes of the matter before me is para. 8 which states:

“THIS COURT ORDERS AND ADJUDGES that the Respondent, Richard Keith Bendall shall pay spousal support to the Applicant, Arlene Gloria Bendall in the amount of $800.00 per month, payment of said support to commence on September 30, 1997.”

[7] No reasons were given as the matter was settled by the parties. There is nothing in the judgment that specified the basis of Arlene’s entitlement to spousal support, nor anything that prescribed when or in what circumstances spousal support would end, if ever.

[8] The judgment also ordered Richard to pay an equalization payment to Arlene in the amount of $8,887 payable in equal monthly instalments of $250. It is undisputed that when the parties resolved equalization, the value of Richard’s pension as at 1997 was taken into account. The valuation date used for Richard’s pension was not the date of separation; rather, they agreed to use the later date in 1997 when matters were resolved.

First Attempt to Terminate Spousal Support

[9] In 2000, Richard brought an application for divorce under the Divorce Act. The trial of that proceeding was heard by Justice Donohue on December 15, 2000. The parties were divorced effective January 15, 2001. Although the judgment of Donohue J. dated December 15, 2000 was made Exhibit 1 at this trial, neither party filed his Reasons, if any.

[10] As part of the divorce litigation, Richard sought to extinguish his obligation to pay spousal support to Arlene pursuant to the judgment of Justice Daudlin.

[11] Justice Donohue denied Richard’s application to vary the judgment of Justice Daudlin as it relates to spousal support. At para. 3, Justice Donohue ordered that Richard’s obligation to pay spousal support to Arlene “shall be reviewed on September 1, 2005”. No appeal was taken from that decision.

Second Attempt to Terminate Spousal Support

[12] In January 2002, Richard moved to vary the order of Donohue J. dated December 15, 2000 so as to terminate both child support payable to Arlene for Brian and spousal support. Child support for Brian was terminated but spousal support remained per the order of Donohue J. dated January 10, 2002.

[13] Again in March 2003, Richard moved to terminate spousal support to Arlene. The matter was adjourned sine die returnable on seven days’ notice by Desotti J. on March 20, 2003.

[14] Notwithstanding that Justice Donohue ordered that spousal support be reviewed on September 1, 2005, neither party took any steps to proceed with the review of spousal support. The September 1, 2005 date passed with nary a whisper.

[15] Instead, on November 4, 2008 – more than three years later - Richard initiated this motion to change both the judgment of Justice Daudlin dated September 25, 1997 and the order of Justice Donohue dated December 15, 2000. He requested, inter alia, that spousal support be terminated effective September 1, 2005 – the same date that Justice Donohue ordered that spousal support be reviewed. He also requested that all spousal support arrears retroactive to September 1, 2005 be deleted.

[16] At trial, Richard was less than clear in his submissions whether this is indeed the review contemplated by the order of Justice Donohue or a fresh motion to change. His counsel took the position that it made no difference how the motion to change was characterized; the test to be applied is the same. Counsel for Arlene contends that this is a “review” as ordered by Justice Donohue, and that characterization has implications for the approach to be taken and relief available.

Incomes and Financial Conditions

a. Richard

[17] Richard swore a financial statement dated October 29, 2008 in which he indicated that his monthly income from employment was $7,868.68 which amounted to $94,424.16 annually before deduction of union dues. He deposed that his disposable income after expenses was $854. He also indicated that he was living with his new wife, Susan Bendall (hereafter “Susan”) who was working at a school in Brantford earning $54,000 per year. Her two children were living with them. He indicated that Susan contributed only $300 per month toward household expenses.

[18] As part of the trial evidence before me, both parties provided proof of their respective annual incomes between 2004 and 2018.

[19] Exhibit 3 is Richard’s income disclosure brief which shows that his annual line 150 income for the tax years 2004 to 2017 was:

2004 -$86,178 2005-$83,742 2006-$90,220 2007-$94,423 2008-$95,025 2009-$106,649 2010-$105,271 2011-$102,512 2012-$102,552* 2013-$117,954 2014-$119,746 2015-$115,050 2016-$109,185 2017-$106,910

*Denotes that in 2012, he provided a paystub which shows his year to date income to January 27, 2012. The above figure for 2012 is an estimated amount based on that paystub.

[20] As mentioned, Richard retired effective January 1, 2018. He was then 59 years old, soon to turn 60. He has been drawing his pension since retirement and is also receiving CPP. Together, his annual income is approximately $59,637 according to his financial statement sworn July 4, 2018.

[21] His July 4, 2018 financial statement also indicates a net worth of $348,700. He owns a home in Sarnia which he estimated had a value of $228,000. He has accounts and investments which then totalled $172,029. He has a mortgage which had a principal balance owing of $64,927. The net worth stated in his financial statement does not include the value of his pension most of which was earned after separation from Arlene.

[22] The order of Justice Donohue dated December 15, 2000 fixed the amount payable for child support based on Richard’s 2000 income of $57,700. The judgment of Justice Daudlin contained no provision requiring that he disclose his annual income to Arlene while support was payable. The order of Justice Donohue is similarly silent. Richard did not disclose the increases in his income post-2000 until after this litigation was commenced in 2008.

[23] Richard testified that he understood that Leah stopped living with Arlene in August 2007. He agreed in cross-examination that his income went up substantially after 2002 and that he did not advise Arlene of those increases. He indicated that he was not aware that he was supposed to do so. He did what he was told he had to do and no more. He had no contact with Arlene between 2002 and 2006.

[24] Richard testified that he was unable to locate Arlene between 2002 and 2006. He hired a lawyer to try to find her without success. Arlene testified that during that period her phone number and address were in the local phone book. I am satisfied that if Richard or his lawyer tried to find Arlene, they did not look very hard. Her location was readily ascertainable.

[25] The evidence establishes that the parties had very little contact with one another after they separated save for their forays in court. Richard remarried but Arlene did not. They lived quite separate lives post-separation. This is not a case where the separated spouses got along well, kept in touch and helped one another from time to time.

b. Arlene

[26] Arlene swore a financial statement dated February 8, 2010 in which she disclosed that her monthly income from all sources was $2,421.75. That figure included $800 received from Richard for spousal support. She had no surplus income and showed a monthly deficit of $362. She was living alone.

[27] Exhibit 13 is Arlene’s income disclosure brief. It covers the period 2002 – 2017. Her annual incomes during that period are:

2002-$35,320 2003-$18,171 2004-$20,233 2005-$19,057 2006-$7,576 (which includes “alimony payments received” of $5184) 2007-$27,578* 2008-$31,692 2009-$25,818 (which includes $12,023 paid by Worker’s Compensation) 2010- $17,718 * 2011-$84,397 (which includes Worker’s Compensation benefits of $71,097) 2012-$28,681 * (which includes Worker’s Compensation of $19,081) 2013-$13,604* 2014-$14,734* 2015-$10,964 * 2016-$12,438* 2017-24,383*

(*Denotes that she received $9,600 by way of spousal support in that year which forms part of her income for that year. It is likely that her 2008 income also includes spousal support paid but that is not reflected in the document produced.)

[28] Arlene’s financial statement sworn July 13, 2018 indicates that she was working part-time as a law clerk for her counsel in this matter, John Kirby. Her monthly income is $2,818 which includes $800 paid for spousal support by Richard. Her anticipated 2018 income was $33,819 which includes $9,600 paid for spousal support. Once again, her monthly expenses exceed the amount which she is receiving from all sources resulting in a deficit of approximately $9,600 annually.

[29] Arlene’s financial statement sworn July 13, 2018 also shows that she is in receipt of ODSP in the amount of $269 per month. That money is to act as a caregiver for her grandniece, Iris. She also receives the monthly child tax benefit of $648.24.

[30] Arlene’s father passed away in 2016. She and her brother each inherited approximately $120 –140,000. She and her brother jointly purchased a house of which they are joint owners. The purchase price was $165,000. They had to do repairs to the roof, chimney and floors. She had approximately $40-$50,000 left after the purchase and repairs of which $40,000 went into investments for her retirement.

[31] Arlene has investments with Sun Life of approximately $40,000 but otherwise has little in the way of investments. Her net worth is approximately $139,095. She has no pension.

Richard’s Employment and Medical History

[32] At the date of separation, Richard was employed at a refinery in Sarnia. The refinery was bought and sold a number of times. The name of the company changed accordingly. Regardless, Richard stayed employed at that refinery until his retirement on January 1, 2018. He was a unit operator for many years, and for the last five years, was a trainer which allowed him to get away from lifting and going up and down stairs and ladders.

[33] On December 8, 1999, Richard was injured in a motor vehicle accident. He suffered spinal, arm and shoulder injuries which continue to affect him to this day. He experiences numbness, unsteadiness in his limbs and continual back pain. Initially, he was off work waiting to be assessed. After the assessment, he was sent to a clinic in Toronto for rehabilitation. The monthly visits to the Toronto clinic lasted approximately five years. He also did physiotherapy locally for many years.

[34] While going to the clinic in Toronto, he started taking monthly nerve block injections in his neck. He stopped the monthly injections after approximately five years because he felt the procedure was dangerous. His pain, numbness and unsteadiness continued.

[35] In 2014, he was referred to a doctor in London for spinal facet injections. He has been taking those injections roughly every six months since 2016. The spinal facet injections are painful but provide some relief. The benefits of the injection gradually abate over time until he gets the next injection. The length of time and degree of relief from pain provided by the injections varies. One of the advantages of the spinal facet injections is that he does not have to take as many drugs.

[36] Richard has spinal stenosis which he described as advanced. He also gets migraines occasionally.

[37] As a result of the injury in the car accident, Richard was restricted at work in terms of what tasks he was capable of doing. He could not climb and could not do heavy lifting. At different points, he could not do any lifting at all. His work restrictions are noted in the employer file (Ex. 6). He testified that these restrictions limited his ability to make extra money working over-time.

[38] As mentioned, Richard moved into training in large part to get away from the physical demands of being a unit operator. He testified that shortly before he retired, his employer wanted all employees to be able to do a greater variety of tasks. Some of the work that he was asked to do was beyond his ability given his physical limitations.

[39] When first asked about his decision to retire, he indicated that it was based on 38 years of working versus going after one or two people who were harassing him at work. In cross-examination, he agreed that he was able to continue working; that his employer always accommodated his workplace limitations. The harassment that he described was from management level employees who were trying to get more out of fewer people – something that applied generally to all employees.

[40] Richard testified that he felt that he was being forced back into being a unit operator because of his expertise. He was to do training as well. He took the matter up with his union and saw an outside lawyer. He got letters from his doctor that allowed him to be off work for a few days at a time which he attributed to the harassment. In the end, he decided to retire.

[41] Richard was eligible to retire with a full pension at age 55. He started working at age 21.

Arlene’s Work and Medical History

[42] Arlene is 60 years old. She testified that when they first started living together, she was working at a Kmart as a cashier in the automotive department. She worked there for approximately two years. After Kmart, she worked for a summer on a part-time basis at Polysar doing mail delivery and errand type work.

[43] Arlene was unable to recall what employment followed Polysar but at some point, she began working as a teacher’s aide for the Rotary helping physically disabled children. She did that job for at least a year. When she was pregnant with Brian, she started driving school buses for the Rotary. After Brian was born in December 1983, she found it hard to get childcare when she was working.

[44] Arlene’s evidence about her early employment was disjointed and, at times, difficult to follow. I attribute her difficulty remembering so far back to the passage of time and the number and short-term duration of much of her employment.

[45] I gather from her testimony that she stopped working as a bus driver and was a stay-at-home mom until approximately seven or eight months after Leah was born in June 1988. The family moved to Corunna when Leah was approximately seven months old.

[46] After the move to Corunna, Arlene got part-time employment at Knechtel’s, a local grocery store, working in the deli department. She believes that she worked there for approximately four – five years. Leah was in school by the time Arlene stopped working at Knechtel’s.

[47] Arlene next worked at a convenience store called Veckers for two years starting in 1999. She did not work between the time she left Knechtel’s and when she started at Veckers. When the parties separated in 1994, she was not working. Thus, Arlene was a stay-at-home mom after she finished working at Knechtel’s to the date of separation and beyond.

[48] Arlene started working at Canadian Waste in 2001. While employed there, she injured the tendons in her left hand and was laid up for approximately three – four months recovering. She indicated that that was a non-compensable injury from which she recovered fully. She remained at Canadian Waste until October, 2002 when she left because she was unable to perform her duties pitching garbage. She injured her right hand through overuse. She was trying to compensate for her left hand. Thus, Arlene injured her left hand in 2001 and her right in 2002 while at Canadian Waste.

[49] Arlene moved to Listowel in 2003 or 2004 looking for work. Leah was then 14 or 15 years old. She worked at an auto parts plant in Palmerston briefly before returning to Sarnia.

[50] Arlene then worked at Gliss, UAP, Waterville and Alea’s Bridal Fashions in various short-term positions. She wore a wrist brace because of her injury at Canadian Waste.

[51] In 2006, Arlene began working at the Shoppers’ Drug Mart on Indian Road in Sarnia. At first, she worked midnights as a shift cashier. When she was not working at the cash register, she was stocking shelves. She held that job from 2006 to 2010 – 2011; that was her longest employer. While there she worked 12 hour shifts, roughly 48 hours per week.

[52] While at Shoppers’, Arlene suffered two separate injuries: the first to her back in 2009 and the second to her left hand/wrist through overuse. Arlene brought WSIB claims for both her back and left hand. She was successful for the back claim and was deemed 19% whole body disabled. She is still awaiting determination of her claim for her left wrist.

[53] In addition, Arlene brought a WSIB claim with respect to her right hand/wrist as against Canadian Waste. That claim was also deemed compensable. She received payment from WSIB in 2011 and 2012 for her right wrist and back.

[54] In January 2012, Arlene returned to school to update for computers. She already had her grade 12 education. She then entered the law clerk program at Lambton College. That is a two-year program. While enrolled there, she was diagnosed with glaucoma at age 42.

[55] She testified that her current employment limitations are:

• she has grip issues with both wrists
• she has glaucoma in her eyes for which she has had eye surgery on her left eye and is expecting to have two more surgeries
• because of her back problems, she has difficulty standing or sitting and cannot lift
• she has Ménière’s disease which results in hearing loss, tinnitus and occasional dizziness.

[56] Arlene is currently employed by Mr. Kirby. She works part-time approximately 20 hours per week. She does phone messages, banking, labelling files and odd jobs for the office. She has difficulty reading. Her eyes get blurry after four hours. She is paid $15 per hour and works four hours a day, five days a week.

[57] Arlene testified that she is unable to work anymore than she currently does because of her various health concerns. These physical limitations are by-products of her employment post-separation and advancing age.

[58] She also testified that she was hospitalized in 1994 for a nervous breakdown. She was under the care of a psychiatrist related to historical issues that went back to her childhood. She now sees a counsellor at the Sexual Assault Centre and has been since May 2009.

Position of Parties

[59] Richard asserts the following positions:

1. This is a motion to change, not a review of spousal support.
2. There has been a material change in circumstances – Richard’s retirement and his injuries from the motor vehicle accident.
3. Spousal support should stop effective January 1, 2018. All payments made since then should be repaid by Arlene.
4. Richard has been paying spousal support for 25 years for a marriage that lasted only 14-15 years. More than enough time has passed to permit Arlene to become self-sufficient.
5. Arlene’s response to the motion to change does not seek any retroactive adjustment to spousal support; rather it seeks only a continuation of spousal support at $800/month indefinitely. She should be held to her pleading.

[60] Arlene asserts the following positions:

1. This is a review as contemplated by the order of Donohue J.. Accordingly, the court may consider de novo the amount properly payable for spousal support for the entire period post-separation.
2. There has been no material change in circumstances. Richard’s retirement was entirely voluntary and without regard to the impact on his obligation to pay support to Arlene.
3. The order of Daudlin J. contemplates spousal support payable for an indefinite duration.
4. Arlene has made reasonable efforts to be self-sufficient but could not for reasons beyond her control. She remains in need.
5. Richard’s income increased significantly post-separation. He never disclosed that fact to Arlene despite the fact that he was paying child support for part of that period. His failure to do so deprived Arlene of the opportunity to seek an increase in spousal support.
6. She should receive a retroactive award for increased spousal support going back to 2009, and ongoing spousal support indefinitely.

Analysis

a. Review vs. Motion to Change

[61] The first issue to be determined is whether this is a review as ordered by Donohue J. or a motion to change under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am.. A review does not require proof of a material change in circumstances but a motion to change does: Leskun v. Leskun, 2006 SCC 25 at para. 37; see also Bergeron v. Bergeron, , [1999] O.J. No. 3167 at para. 12.

[62] In Bergeron, the parties entered into minutes of settlement that were incorporated into a final order. The order expressly provided for periodic spousal support and for a review of that support obligation in 12 months. The order also required the recipient spouse to show on the review that she had made diligent and good faith efforts to seek employment or attend school. At para. 12, Aston J. wrote:

12. If the court makes a support order for a limited term, with nothing further, any variation of that order must be pursuant to section 17 of the Divorce Act and would necessitate proof of a material change in circumstances as a threshold to variation. Furthermore, the additional burden in subsection 17(10) of the Divorce Act would apply if the variation were sought after the expiration of the support; that is to say, the recipient would have to show that further support is necessary “to relieve economic hardship… related to the marriage”. So-called review orders, on the other hand, do not necessitate proof of a material change in circumstances but are, rather, a determination of support in the first instance, under section 15.2 of the Act. Review orders are a particularly useful tool in the fair determination of long-term spousal support obligations in those situations where a dependent spouse will need time to re-educate, upgrade skills or otherwise find suitable employment.

[63] In Zomparelli v. Conforti, 2018 ONSC 610, the applicant husband sought to eliminate spousal support obligations under a final order made by Wood J. after a seven day trial in 2003. In his trial decision, Wood J. stepped down the amount of spousal support payable and provided that either party could seek a review of spousal support without the necessity of proving a material change in circumstances after a specified date (2007). Spousal support was not time-limited. The application to review spousal support came before Dermot J. some 13 – 14 years after the initial trial decision.

[64] In his decision, Dermot J. indicated that he was not prepared to make findings inconsistent with those made by Wood J., nor was he able to do so.( see para. 118). He relied upon the finding made by Justice Wood in 2003 at the trial that the recipient wife was entitled to spousal support on a compensatory basis. The wife asserted a claim for unjust enrichment compensatory support during the review. Dermot J. wrote at para. 134:

134. The present case is, however, a review of spousal support which is being heard 15 and 16 years after the parties separated, and between 13 and 14 years after the original trial. Even though this is seen as a de novo hearing of spousal support, I believe that the time to raise the issue of unjust enrichment compensatory support was at the original trial of these issues. I have no record to determine whether the evidence that was led by the respondent at the trial before Wood J. was similar to that led at this trial by her, which was that she contributed to the applicant’s career and that Mr. Zomparelli would not have obtained his TTC job or advanced in it without her assistance. If that evidence was led before Wood J., the issue of lump-sum support to effectively address the parties’ respective career positions is res judicata as between these parties and should have been addressed by the judgment of Wood J and later by the Court of Appeal. It cannot be addressed now by way of a spousal support review. It is especially inappropriate to entertain these issues some 15 years after the fact, when the evidence is both stale and less reliable. The time to address this type of claim is at the original trial of the issue, and not on a review years after the fact. [Bold added.]

[65] The case before me is distinguishable from Bergeron and Zomparelli where the original order for spousal support contained an express review provision. In this case, Justice Daudlin’s order is silent as to any review and was made under the Family Law Act, not section 15.2 of the Divorce Act. The proceeding before Donohue J. was, however, a motion to vary spousal support under s. 17 of the Divorce Act.

[66] I am mindful that section 17(3) of the Divorce Act permits the court to include in a variation order any provision that under the Act could have been included in the original order in respect of which the variation is sought. Section 15.2(3) permits the court to impose such terms, conditions or restrictions to an order for spousal support as it thinks fit and just. It is open to a court to impose a review provision under s. 15.2. In the 2006 decision in Leskun, the Supreme Court of Canada discouraged the use of review orders unless essential, and then only if the issue to be reviewed is tightly delimited.

[67] It is an open question whether a review order can be made in respect of spousal support under the Family Law Act. The order made by Daudlin J. in 1997 was not made pursuant to s. 15.2 of the Divorce Act. Can s. 17 of the Divorce Act be used to vary a final spousal support order made under the Family Law Act? If so, can that variation attach a review proviso where its availability at first instance is in doubt? I do not know whether these issues were raised before Donohue J.. I have only his order that Richard’s obligation to pay spousal support to Arlene “shall be reviewed on September 1st, 2005”.

[68] Moreover, like Dermot J. in Zomparelli, this matter comes before me 22 years after the parties entered into minutes of settlement and obtained the initial order and 18+ years after the decision of Donohue J. on the first motion to change. I do not have evidence as to why or how the parties came to the terms that they did in 1997. I have little evidence of the responsibilities that each assumed during the marriage and the basis for entitlement to spousal support. I do not have the reasons given by Donohue J. which might shed light on what was intended to be considered by the review of spousal support in September 2005.

[69] The evidence establishes that:

1. Richard was the main breadwinner during their marriage and cohabitation.
2. Arlene worked before they had children and for parts of the time after they had children and were still together.
3. Arlene was also a stay-at-home parent for periods before and after separation.
4. Both children lived with her after separation until Brian moved to live with Richard.
5. Leah moved out of Arlene’s home in August 2007.
6. Arlene’s jobs before separation paid far less than Richard’s job.
7. In 1997, Richard agreed to pay Arlene spousal support.
8. In 1997, Daudlin J. made an order in accordance with minutes of settlement that Richard pay spousal support of $800 per month in addition to child support.
9. The order of Daudlin J. did not have an end date for spousal support; it was of indeterminate duration.
10. The amount paid by Richard to Arlene for equalization was modest even in 1997.
11. Richard tried unsuccessfully to terminate spousal support in 2000, 2002 and 2003.
12. Justice Donohue refused to terminate spousal support following a trial in 2000.
13. Richard and Arlene could have but did not have spousal support reviewed in 2005 as ordered by Justice Donohue.
14. Richard took no further steps to terminate spousal support after 2003 until this motion to change was brought in November 2008.
15. Richard has paid and now seeks to end spousal support effective January 1, 2018 – 21 years plus after he entered into the minutes of settlement and was ordered to pay spousal support. He paid spousal support after separation and before the parties resolved that issue on a final basis.
16. Richard did not disclose increases in his income to Arlene before this motion to change but he was not obliged to do so by any previous order or at common law.
17. Neither party kept in touch with the other. Both were largely ignorant of the other’s life and circumstances post-separation.

[70] I understand that all issues raised in the initial proceeding under the Family Law Act and Children’s Law Reform Act were complete before Richard brought his application for divorce and sought to terminate spousal support. I have grave doubt whether Donohue J. could order a review of spousal support in these circumstances. I note that neither party appealed his order and both sought to rely upon it to some extent before me.

[71] Regardless, the order made is for a review of Richard’s obligation to pay spousal support on September 1, 2005. The order does not contemplate and I do not read it to give a right to a review of spousal support after that date. I do not agree with the submission made by Arlene’s counsel that this proceeding is a review that opens the door to revisit the issues of entitlement and quantum for the entire period after September 1, 2005. That is not what Justice Donohue ordered.

[72] Despite the relief requested in the motion to change before me, Richard no longer seeks to terminate spousal support as at September 1, 2005. I take from his position at trial that he relies upon his retirement as a material change in circumstances and seeks to terminate spousal support effective January 1, 2018. In doing so, he accepts that Arlene was entitled to continue to receive spousal support in the amount agreed upon and ordered as at September 1, 2005.

[73] For her part, Arlene has never sought to review spousal support as at September 1, 2005. Her response to the motion to change was to ask that Richard’s motion be denied and spousal support continue as ordered by Daudlin J.. Even at trial she sought to amend her pleading to go back only to 2009.

[74] Thus, neither party disputes that Richard’s obligation to pay spousal support of $800/month to Arlene should continue as of September 1, 2005. The review is redundant in these circumstances.

[75] I turn now to whether there has been a material change in circumstances – the threshold issue for a motion to change.

b. Material Change in Circumstances

[76] The motion to change brought by Richard seeks to change both the order of Daudlin J. and the order of Donohue J. dated December 15, 2000. Presumably the request to change both orders is because the order of Donohue J. is seen to be a variation of Justice Daudlin’s order.

[77] This raises a jurisdictional question: does s. 17 of the Divorce Act or s. 37 of the Family Law Act apply or both? While there are some differences in the analytic framework applicable to each, in this case the result is the same.

[78] The order for spousal support made by Daudlin J. was made under the Family Law Act. Section 37(2) of that Act gives the court the power to vary a term of an order for spousal support prospectively or retroactively; however, the court must first be satisfied that “there has been a material change in the dependent’s or respondent’s circumstances or that evidence not available on the previous hearing has become available”.

[79] Section 17(4.1) of the Divorce Act requires that before making an order to vary a spousal support order, the court must be satisfied that a change in the condition, means, needs or other circumstances of either spouse has occurred since the making of the spousal support order. The onus of proof rests on the person seeking the variation and the standard of proof is on a balance of probabilities: Willick v. Willick, 2001 SCC 65.

[80] Thus, both Acts require a material change in circumstances and neither Act defines that term.

[81] Fortunately, appellate courts have provided guidance. “Material change” means a change that if known at the time would likely have resulted in different terms in the order: Willick. A material change in circumstances is a change which has some measure of continuity: Marinangeli v. Marinangeli, , [2003] O.J. No. 2819 (Ont. C.A.).

[82] In Smith v. Nicholson, 2016 ONSC 2473, I summarized the law as it relates to a voluntary retirement at para. 92 as follows:

92. With respect to whether retirement constitutes a material change in circumstance to justify a reduction in spousal support, the following principles emerge from the cases provided:

93. Parties cannot avoid support obligations by unilaterally deciding to leave the workforce, whether by retirement or otherwise: Cossette v. Cossette, 2015 ONSC 2678, [2015] O.J. No. 2073 (Div. Ct.) at para 13. See also Bullock v. Bullock, , [2004] O.J. No. 909 (S.C.J.) at para 13 and the cases cited therein;

94. Evidence that a payor voluntarily retired or withdrew from the workforce in order to frustrate the payment of support is an important fact militating against a finding of material change. In that case, the court may impute income to the payor up to the amount he would have earned had he not retired or withdrawn: Hickey v. Princ, 2015 ONSC 5596 (Div. Ct) at para 59, citing Teeple v. Teeple, , [1999] O.J. No. 3565 (C.A.);

95. The absence of evidence that the voluntary withdrawal from the workforce was for the purpose of reducing or avoiding the obligation to pay spousal support does not give rise to an automatic right to vary spousal support: Hickey v. Princ, supra, at para 60;

96. The court must still consider the payor’s ability to pay support, which includes a consideration of his capacity to earn income either from the job he chose to leave or from other employment having regard to his circumstances: Hickey v. Princ, supra, at paras 60 and 64;

97. Where the payor retires considerably earlier than expected and the recipient spouse has good reason to rely upon support being provided for several more years, the payor may well be expected to seek new employment opportunities: Dishman v. Dishman, 2010 ONSC 5239 at para 29;

98. Whether the payor considered the financial circumstances and impact on the recipient spouse is one of the factors which the court will consider on an application to vary spousal support: Roy v. Roy, 2015 ONSC 73 at para 40; Bullock v. Bullock, supra, at para 1;

99. The court should consider the motivation for retirement and whether it is reasonable in light of the ongoing spousal support obligations: Innes v. Innes, 2013 ONSC 2254 at para 30.

[83] Each case must be determined on its own facts and merits. There is no general rule that paying spouses must work to age 65. Likewise, a retirement after the paying spouse becomes eligible to retire with a full pension does not automatically constitute a material change that guarantees a reduction or termination of spousal support payable.

[84] I find that Richard’s retirement was voluntary in that he was not forced to retire by his employer or because of his health. No doubt his health and long-term difficulties managing the ongoing pain from the motor vehicle accident contributed to his decision. However, at the end of the day, his health did not necessitate his retirement.

[85] I accept that Richard was disturbed by the pressure he felt from management to go back to being a unit operator at least some of the time. I note, however, that the notes written by his doctor simply confirmed the same work restrictions that had been in place for years and his employer had respected those restrictions in the past.

[86] The fact is that Richard had been working for 38 years. He could have retired at age 55 with a full pension but kept working for another four years. He had ongoing pain management issues for he was getting injections that provided only partial relief. There was conflict at work. He saw retirement as a well-earned choice.

[87] I also find that Richard did not retire with a view to avoiding or reducing his spousal support obligations to Arlene. There is no evidence that he was motivated to retire for that purpose. This is not a case where the paying spouse has retired at the earliest opportunity, or without a full pension, and with no health issues. Further, there is no evidence that the parties ever discussed or considered when they might each retire for financial planning purposes, either during their time together or during negotiation of the minutes of settlement in 1997.

[88] Arlene argues that there is no material change because Richard’s income at retirement is roughly comparable to that reflected in Justice Donohue’s order of December 15, 2000. His child support in that order was based on income of $57,700. His income in 2018 from his pension and CPP combined is $59,637. His assets are undoubtedly greater than they were in 2000. He has had years of significantly increased income with no corresponding increase in the amount payable to Arlene. Thus, there is no real material change in his means, condition or circumstances.

[89] I disagree. A simple comparison of the amounts earned in 2000 and 2018 ignores the time value of money. A dollar in 2000 is worth more than a dollar 18 years later. The income numbers may be comparable but the value of same is not.

[90] Arlene also relies on his failure to inform her of the increases to his income post-separation. She suggests that he was obliged to do so despite the absence of any order. She argues that had he informed her, she could have sought and would have been entitled to an increase in spousal support.

[91] Again, I disagree. Richard was not obliged by any order to provide updated income disclosure. There was also no evidence that ongoing disclosure of his income was required by their minutes of settlement. Child support issues have been resolved on a final basis.

[92] Further, Arlene has had Richard’s October 29, 2008 financial statement since early in this litigation. She has received subsequent financial statements and disclosure. Despite possession and awareness of same, she did not move to amend her pleading to advance a claim for a change to spousal support until the end of the trial. It is not appropriate to suggest fault on Richard’s part when Arlene has not acted with reasonable dispatch when in possession of the information.

[93] There is no evidence that the parties discussed or contemplated Richard’s retirement when they agreed to spousal support of indefinite duration. Even if it could be said that retirement is a foreseeable event, it was not possible for the parties or Justice Daudlin to know when that retirement would occur or what his financial circumstances would be at retirement 21 years later.

[94] I am satisfied that Richard’s retirement and substantially reduced income starting January 1, 2018 constitute a material change in circumstances. Further, I find that the date of Richard’s retirement and his pension income constitute evidence not available on the date that Justice Daudlin made his order for spousal support.

c. Effect of Material Change

[95] The approach to a variation under s. 37 of the Family Law Act is very similar to an application under s. 17 of the Divorce Act. It is not a re-litigation of the original support order, nor a chance to assert claims that could have been raised then. The objective is one of fairness and equity having regard to the changed circumstances.

[96] Section 17(7) of the Divorce Act states:

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.

[97] No one factor is paramount. The court must take a holistic approach.

[98] In L.M.P. v. L.S., 2011 SCC 64, Justices Abella and Rothstein (for the majority) wrote at para. 47:

[47] If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to made in light of the changed circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change. As Justice L’Heureux-Dube, concurring in Willick, observed: “A variation under the Act is neither an appeal of the original order nor a de novo hearing” (p. 739). As earlier stated, as Bastarache and Arbour JJ. said in Miglin, “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require rescission, rather than a mere variation of the order” (para. 62).

[99] Once a material change in circumstances has been established, the variation order should reflect the material change found and the objectives in s. 17(7): L.M.P. at para. 50.

[100] The minutes of settlement on which Justice Daudlin’s order was based are not part of the evidence in this trial. In the absence of evidence to the contrary, I assume that the order made mirrors the agreement reached between the parties. That order is silent as to the duration of spousal support. It is likewise silent with respect to what conditions are required to end spousal support.

[101] The material change is Richard’s retirement. His physical health is impaired but the evidence does not establish that he is incapable of working altogether. He argues that more than enough time has passed for Arlene to become economically self-sufficient. Any economic disadvantages that might be attributed to her role in the marriage and the effects of the marriage breakdown are now long past. As at January 1, 2018, he had paid spousal support for almost 20 years pursuant to the judgment of Daudlin J. and even longer if spousal support paid before that judgment is taken into account.

[102] Arlene argues that the agreement the parties reached to settle the litigation in 1997 and the order made reflect a recognition that she suffered an economic disadvantage from her role in the marriage. She was a stay-at-home mother. She bore primary responsibility for the children. She had the children with her post-separation. She enabled him to work full-time and because of that, he had a long and successful career.

[103] Arlene also argues that she has made valiant efforts to become self-sufficient. Those efforts have been hampered by injuries and her other health issues. She cannot work full-time even though she would like to. She tried to work full-time and did for some periods until injuries occurred. She went back to school to upgrade and open further doors. She is in need. She depends on the spousal support paid by Richard to make ends meet.

[104] Both counsel filed SSAG calculations. Arlene was 36 years old at separation. The SSAG calculations provided show a range of spousal support for an indefinite period subject to variation and possible review “with a minimum duration of 8.05 years and a maximum duration of 16.1 years from the date of separation. As at January 1, 2018, Richard had paid Arlene spousal support for almost 5 years longer than the estimated maximum duration in the SSAG calculations.

[105] Having regard to the s. 17(7) factors, I find that:

a. The evidence in this case is inadequate to determine the full extent of any economic advantages and disadvantages arising from the marriage or its breakdown. I note that she received an equalization payment that was very modest at the time. I also recognize that her entitlement to spousal support was a matter of agreement between the parties. b. With respect to the financial consequences of child care responsibilities, Arlene took on greater responsibility for the care of the children during the marriage and on separation. I infer that her working career was impacted by that role. By the same token, this is not a case where she gave up a promising career to stay at home or moved away from a job that had reasonable prospects for advancement in order to advance his career. Her work history before and during the marriage was limited and the impacts to her working career were likewise limited both in time and scope. c. Arlene’s inability to achieve self-sufficiency is not tied to her role in the marriage or economic disadvantages resulting from the marriage or its breakdown. Rather, Arlene sought and worked mostly in manual labour jobs where she sustained injuries. She has received compensation from WSIB for some of those injuries and may be entitled to a further award. But for those injuries she would likely have been able to work full-time for reasonable wages. I am mindful that Arlene’s inability to achieve economic self-sufficiency need not be causally connected to the marriage or its breakdown. d. More recently, she has also been diagnosed with glaucoma which is a progressive eye disease. That was entirely unforeseeable by either party but it does impact her ability to work more than part-time at this point. e. She testified to psychological treatment that she has been receiving over many years related to an incident in her childhood. There is insufficient evidence to conclude that she was unable to work or re-train after separation because of the effects of that incident. To the contrary, it appears that she tried to work but could not for other physical health reasons.

[106] This is a case where upon separation, the parties have effected a clean break. They have moved on with their lives independent of one another. The only tether is spousal support. There is no question that Arlene has an ongoing need for spousal support because she is unable to work more than she does. Should Richard be responsible to fill that need when that need derives from post-separation injury and illness and he has paid spousal support for more than 20 years? In my view, he should not. It is unfair to expect that Richard remain Arlene’s economic safety net after so many years.

[107] Arlene has had more than twenty years to become self-sufficient and to overcome any economic hardship from the marriage and its breakdown. Her evidence does not establish any continuing hardship from the marriage or its breakdown. That she has not achieved economic self-sufficiency is tied to injuries and illness all of which occurred post-separation. She has received compensation for some of her injuries and is awaiting the outcome of another.

[108] In the event the test applicable lies under s. 37 of the Family Law Act, the result is the same for substantially the same reasons. Richard has paid spousal support to Arlene for sufficiently long enough to enable her to get on her feet financially and to become economically independent. His retirement gives rise to a significant reduction in his income and he should be entitled to plan and live on the fruits of his past labour.

[109] I find that spousal support should be terminated effective January 1, 2018. Ongoing payments should cease immediately. Any amounts paid on or after January 1, 2018 should be repaid to Richard. If the parties cannot agree on a repayment schedule, they may make written submissions to me for further direction.

[110] I considered whether a step-down order should be made in these circumstances; viz. whether to order reduced spousal support for a period prior to complete termination of support. I decided against doing so because: 1) Arlene has had ample forewarning that spousal support could end, 2) Arlene has been aware since at least July 2018 if not earlier that Richard had retired, and 3) forcing Richard to continue to pay, even at a reduced level, is not warranted in this case.

Oral Motion to Amend

[111] As mentioned, Mr. Kirby asked to amend Arlene’s pleading as part of his closing submissions. In fairness, he indicated briefly in his opening statement that one of the issues for trial was spousal support between 2009 and 2017. He indicated in his closing argument that he had alerted Mr. Bruce to the claim at the settlement conference held in January 2019. Nevertheless, he took no steps to address the amendment before trial or even at the outset of trial.

[112] In my view, the requested amendment comes too late in the proceeding. The motion was made orally, after conclusion of the evidence and after completion of closing submissions for Richard. It is noteworthy that Mr. Bruce relied upon the pleading by Arlene in his closing submissions as a complete defence to her claim for retroactive adjustment. The delay in advancing this claim is manifest. Richard’s increased income has been known to Arlene for several years. This is an 11 year old motion to change.

[113] I find that an amendment at this late stage would prejudice Richard. He and his counsel undoubtedly prepared to meet the case as pleaded. The proposed amendment is a material change to the case he had to meet.

[114] If the parties cannot agree on costs, they may make written submissions not exceeding 3 pages within 15 days hereof.

Justice R. Raikes

Released: June 10, 2019

COURT FILE NO.: 5315/08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Richard Keith Bendall Applicant – and – Arlene Gloria Bendall Respondent REASONS FOR JUDGMENT Raikes, J. SCJ

Released: June 10, 2019