COURT FILE NO.: F1251/16 DATE: December 30, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

BETWEEN:

Kara Louise Johnston, Applicant

• and -

David William Johnston, Respondent

COUNSEL: Stephanie L. Doucet, for the applicant David William Johnston, in person

HEARD: September 23, 24, 25, 26, 27 and December 11, 2019

BEFORE: TOBIN J.

INTRODUCTION

[1] This is the applicant’s motion to change an order by extending the duration and increasing the amount of spousal support to be paid by the respondent to her.

[2] The original order, which gave effect to minutes of settlement entered into by the parties, provided that the respondent pay spousal support to the applicant for five years, ending November 2016. The applicant claims that there has been a material change in circumstances such that spousal support should now be ordered for an indefinite period. In the alternative, she claims that the spousal support provisions of the minutes of settlement upon which the original order was made should be set aside because they were made in unconscionable circumstances and under duress.

[3] The respondent opposes the relief claimed. He argues that there has been no material change in circumstances, nor should the order be set aside on the basis claimed by the applicant. He asks that the applicant’s motion to change be dismissed.

THE TRIAL

[4] The parties’ direct evidence was given by way of affidavit. Both parties were subject to cross-examination.

[5] The respondent’s affidavit contained much argument and reference to jurisprudence. Instead of striking the affidavit and having him give his evidence orally, no weight was given in factual determinations to this argument and to the reference to jurisprudence.

[6] Despite much of the respondent’s 611 paragraph affidavit not being considered for the reasons stated, the use of affidavits to provide direct evidence was helpful. It kept admissible evidence focused and reduced the amount of time required for the trial.

[7] In these reasons, I will refer to the parties by their first names for the sake of clarity and with no disrespect intended. The applicant will be referred to as Kara, and the respondent as David.

THE ISSUES

[8] The issues in this case are:

1. Has there been a material change in circumstances since the original order was granted?
2. If there has been a material change in circumstances: (a) what, if any, spousal support should now be ordered? and (b) should income be imputed to the parties for the purpose of calculating ongoing spousal support?
3. In the alternative, should the original order be set aside on the basis that the spousal support provisions of the minutes of settlement were made in unconscionable circumstances or under duress? If so, what order is appropriate?

FACTS

Background

[9] Kara and David married on December 1, 1990. They are the parents of three adult children. Their two older children live independently and their youngest, who is now 20, lives with David. He did not argue that their youngest child remained entitled to support.

[10] Kara was born March 17, 1967. She is now 52 years of age.

[11] David was born January 27, 1964. He is now 55 years of age.

[12] After a marriage of almost 17 years, the parties separated on July 27, 2007, though they remained together under the same roof in the matrimonial home until it was sold in December 2007.

[13] Following their physical separation, the children remained primarily in Kara’s care.

[14] Both parties described their separation and the ensuing legal proceedings as acrimonious.

[15] In June 2010, the children started living with David. This change in their residence occurred because of health problems Kara was experiencing. Details of these health problems are addressed later in these reasons.

Legal Proceedings

[16] On June 7, 2010, Coats J. granted a final order under the Children's Law Reform Act, R.S.O. 1990, c. C.12 and Family Law Act, R.S.O. 1990, c. F.3, which gave effect to minutes entered into by the parties (the Coats order). This order provided, in part, as follows:

• the parties were to share joint custody of the children;
• the principal residence of the children and their day-to-day care was to be with David;
• Kara was not ordered to pay table child support. David was ordered to pay all of their oldest child’s university expenses;
• David was to pay Kara monthly spousal support in the amount of $4,000 based, in part, on his income of $275,000[^1] and her imputed income of $30,000; and
• issues related to equalization and property were not resolved, instead they were adjourned to a trial management conference.

[17] David lost his employment with Research In Motion on April 14, 2010 and on December 7, 2010 brought a motion to change the amount of spousal support he was ordered to pay under the Coats order.

[18] There were then two cases outstanding: (1) the property and equalization claims in the first case; and (2) David’s motion to change. The two cases proceeded in tandem.

[19] On March 25, 2011, the parties consented, in writing, to withdraw their respective property and equalization claims. The withdrawal was based upon “both parties’ disclosure of correct financial disclosure.”[^2] If either discovered that the other had not been accurate and forthcoming in their disclosure, they could renew their claim for an equalization of net family property. The provision allowing the case to be reopened in the event of incomplete disclosure was grounded in Kara’s suspicion that David was hiding assets, but she was not able to substantiate her suspicions.

[20] By the time the property and equalization claims were withdrawn, the matrimonial home had been sold and the proceeds divided. A payment towards an equalization payment had been made by David to Kara. Kara had purchased a condominium for the children and her but was unable to afford it. It was sold under power of sale. Kara eventually made an assignment in bankruptcy.

[21] A trial management conference within David’s motion to change proceeding was scheduled for November 10, 2011.

[22] On the day the trial management conference was held, the parties entered into minutes of settlement, which were incorporated into the order of Murray J. (the “Murray order” or “original order”). Kara argues that the terms of these minutes of settlement were unconscionable and entered into under duress.

[23] The Murray order contained provisions that had already been provided for in the Coats order:

• the parties shared joint custody;
• the children’s principal residence was with David and the time that the children were to be in the care of both parents was to continue as set out in the Coats order;
• Kara was not required to pay child support; and
• David was to pay spousal support to Kara in the amount of $1,400 per month starting December 1, 2011 and monthly thereafter to November 1, 2016 “at which time spousal support shall forever cease. The quantum of spousal support was non-variable.”

[24] The Murray order did not set out the basis for spousal support. In evidence, which I accept, both parties stated that the spousal support order was based on David having income of $131,000 and Kara having imputed income of $30,000.

[25] Murray J. also granted a divorce order on November 10, 2011.

[26] The motion to change, which is now before the court, was issued on October 13, 2016. It was brought prior to the expiration of the Murray order’s spousal support provision.

Circumstances of the Parties when the Murray Order was Made

[27] In order to understand the circumstances of the parties when the Murray order was made, a review of certain facts and events that occurred both before and after the separation is necessary.

During Cohabitation: Kara

[28] While the parties cohabited, Kara was the children’s primary caregiver and responsible for maintaining their home. David provided financially for the family.

[29] Kara had been in training to be a nurse. She set that aside in her last semester of school when their first child was born. She tried to return the next semester. During this term, when she tried to return, she was required to work 12-hour shifts, including during the evening. David told Kara that he could not be successful in his career – as an accountant – if he had to leave business meetings at 5:30 to take up childcare responsibilities. Kara, therefore, withdrew from nursing school after about a month. She remained at home with their child. Kara and David agreed that his career took precedence because his earning potential was greater, and his professional career was demanding.

[30] After withdrawing from the nursing program, Kara had, what she called, some menial jobs and for a period ran a daycare in her home. Most of the income she earned went into the parties’ joint account. While they cohabited, Kara’s reported employment income was as follows:

Year	Income Reported
1990	none reported
1991	none reported
1992	$9,362 (gross business income)
1993	$6,025
1994	$5,329
1995	none reported
1996	$10,000 from RRSP
1997	none reported
1998	none reported
1999	none reported
2000	none reported
2001	none reported
2002	$1,569
2003	$2,942
2004	$7,201
2005	$2,440
2006	$2,169
2007	$3,925
	none reported

[31] In the mid-1990s, the parties and their children moved to Barbados for several years for David’s career. While in Barbados, Kara did not work outside of the home.

[32] When the family returned to Canada, Kara wanted to re-enroll in nursing school. This did not happen because of the high cost of daycare and David’s career having priority. Instead, Kara operated an in-home daycare for a few years and worked, on occasion, as a part-time server.

David’s Income and Career

[33] David earned his chartered accountancy designation and began working as an accountant in 1988. He was employed at various public accounting firms until 1997. From 1997 onward, he worked as an internal auditor at RBC Financial Group, Bell Canada Enterprises and then Nortel Networks. In 2007, the year the parties separated, he reported income of $232,936.

Kara and David’s Relationship

[34] Kara claims that David was emotionally abusive toward her during the marriage. David denies that he was abusive. On the record before the court, it is not possible to make a blanket finding of abuse, as claimed by Kara. But there is evidence, which I do accept, that David did engage in some behaviour that was emotionally abusive toward Kara.

[35] David secretly made a videotape of Kara and him having sexual relations. He showed this tape to Kristyn McFarlane, then a friend of Kara.

[36] Ms. McFarlane, who testified, also described an incident that occurred in the fall of 2007, where Kara and she returned to Ms. McFarlane’s home after picking up a child from skating. When they returned to Ms. McFarlane’s home, she saw David lurking behind cedar hedges. When he popped out, Ms. McFarlane described David as agitated. Ms. McFarlane’s husband became involved. The police were called. I accept Ms. McFarlane’s evidence as it was detailed and candidly given in response to questions asked of her by Kara’s counsel. Ms. McFarlane’s friendship with Kara ended in 2010. I detected no bias in her evidence, either toward Kara or against David. I also take into account that David chose not to ask Ms. McFarlane any questions about these two incidents.

[37] Kara also gave evidence that David would be mean and demeaning toward her.

[38] I accept that Kara felt that David was emotionally abusive toward her.

Kara’s Health Problems

[39] In 2007, as the marriage was ending, Kara experienced health problems that became more severe following separation.

[40] Kara, then 40 years of age, went to hospital in March 2007 with symptoms of depression, chronic back pain and excessive use of alcohol and cocaine. She was discharged that same day. The treatment recommended was a change in medication and counselling.

[41] Kara’s health deteriorated such that, in June 2010, the children started living with David. Kara was not well enough to care for them. She was sick with “a stage 4 endometrial tumor with bowel complications.” She thought she was dying. She also suffered from mental health problems: she had “emotional disturbances due to the litigation”; she was afraid that David was stalking her – which he denies – felt emotionally abused by him due to irregularly received support payments, and was told by him that he would “get the kids and take the kids away from her.”[^3]

[42] As set out above, the Coats order (made June 7, 2010) provided that David was to pay Kara monthly spousal support in the amount of $4,000.

[43] In September 2010, Kara had surgery and underwent chemotherapy.

Post-Separation Income and Circumstances

[44] From 2008 until 2011, Kara’s and David’s reported income was as follows:

Year	Kara’s Income	David’s Income
2008	$14,521 (RRSP)	$366,604
2009	$28,000 (spousal support)	$364,232
2010	$48,000 (spousal support)	$372,665[^5]
2011	0 – none reported[^4]	$138,165[^6]

Circumstances on the Day the Murray Order was Made

[45] Kara’s significant medical conditions at November 10, 2011 were reported as follows: depression and anxiety, degenerative disc disease, and ADHD.

[46] She felt emotionally disturbed and that she could not work.

[47] At the time the parties attended the trial management conference on November 10, 2011, Kara had previously made an assignment in bankruptcy. Also, as of that date, David was $5,776.22 in arrears of spousal support.[^7] He paid no spousal support in July 2011 and $2,370.63 once in August, three times in September 2011 and two times in October 2011. At this time, spousal support was Kara’s sole source of income.

[48] David was working for the government of Ontario on November 10, 2011. His annual income on the date of the Murray order was $131,000.

[49] Kara was assisted at the trial management conference and the completion of minutes of settlement by a lawyer, whom she met one or two months before. She thought he was there as a friend, who happened to be a lawyer. This lawyer was not called to give evidence at the trial.

[50] Kara was distraught on the day of the trial management conference. She was teary-eyed most of the day.

[51] She felt compelled to agree that day to the terms set out in the minutes of settlement in order to survive financially. That day Kara was of the view her mental and physical health would improve. She expected to achieve self-sufficiency before the time-limited spousal support would end.

[52] At the time the trial management conference was held, Kara had provided medical reports setting out her health problems, including her hospital attendance in March 2007 and a report from Dr. J.M. Fox dated December 22, 2010, which stated that Kara underwent major surgery in September 2010 and was still recovering.

Events Subsequent to the Granting of the Murray Order

Kara

[53] Kara moved to Ireland very shortly after the Murray order was granted. She did so to get away from David and the stress and trauma of the recently concluded litigation.

[54] While in Ireland, Kara expected to receive the spousal support of $1,400 per month on the first day of each month, as was provided for in the order. It did not arrive as expected, rather, it came in two installments during the month coincident with David’s pay and subject to the Family Responsibility Office processing and forwarding the payment to her. As a result of the inconsistent receipt of spousal support, Kara was not able to make monthly rent payments on the first day of each month and therefore could not maintain a secure residence. She had to move several times.

[55] David acknowledged that he “did not properly pay attention to the specific timing of the spousal support payments.”[^8] But he did pay all the support payments that were ordered over the five-year period.

[56] Kara returned to Canada in 2014. She was homeless and reliant on friends and family for accommodation for about 18 months.

[57] Once the spousal support payments ended in November 2016, Kara obtained social assistance through Ontario Works. Kara remains in receipt of social assistance. She continues to struggle financially. She has not filed an application for ODSP, though her psychiatrist is helping her prepare one.

[58] In December 2015, Kara was able to find secure accommodations at a co-op which accepts her rent payments when she is able to make them each month.

Dr. Gupta, Kara’s Psychiatrist

[59] Kara’s health has deteriorated since November 2011.

[60] Dr. Gupta is Kara’s psychiatrist and gave evidence at the trial.

[61] Dr. Gupta is an experienced psychiatrist, having practiced since 1983. A significant part of her practice concerns patients with post-traumatic stress disorder (PTSD). She was qualified to give opinion evidence regarding the diagnoses and treatment of psychiatric illnesses.

[62] Kara started seeing Dr. Gupta in October 2018 and, since then, has met with her 15 times. These meetings are as required (which means when she is in crisis). Kara is able to see Dr. Gupta on short notice. Kara’s last meeting with Dr. Gupta was in early September 2019.

[63] Dr. Gupta’s diagnosis of Kara is that she presents with “complex psychiatric symptoms” as follows:

• features of PTSD, with dissociative symptoms. Kara meets all the criteria for PTSD;
• schizoaffective disorder; and
• she may have a personality disorder, with some cluster B features.

[64] I note that the facts that give rise to the diagnosis made by Dr. Gupta are not disputed except some facts related to David’s behaviour towards Kara. The doctor’s evidence is that she had no reason to disbelieve Kara. There were no discrepancies in Kara’s recounting her history that could not be explained by her mental status. Any discrepancies noted had no bearing in the doctor’s diagnosis.

[65] In her condition, Kara sometimes disassociates. She becomes disturbed and loses boundaries and timelines. Stress is a trigger. Kara is not able to control when she experiences symptoms. She also suffers from mania. When asked about Kara’s day-to-day functioning, the doctor said that there had been a history of decline and that her coping skills have declined significantly. The more stressed Kara becomes, the more pronounced are her psychotic behaviours.

[66] Dr. Gupta stated that Kara may benefit from a course of medications and should access supports in the community and continue her association with the Canadian Mental Health Association. Kara will need to stabilize before she will benefit from any trauma specific therapies.

[67] Kara’s mental health has not been stable since the fall of 2016.[^9] Also, she has been diagnosed with fibromyalgia.[^10]

Christopher Kulbaba, Kara’s Employment Counsellor

[68] Mr. Kulbaba was qualified to give opinion evidence in the area of employment counselling and employability.

[69] As a career employment specialist, Mr. Kulbaba assesses people to help them recognize their interests and aptitudes. He is also able to recommend supports available to assist people in obtaining suitable employment. His experience includes working with people with mental, physical, emotional and psychological disabilities. The facts reported by Kara to Mr. Kulbaba were consistent with the medical information provided by her medical doctors.

[70] In his November 2016 report, Mr. Kulbaba reported that Kara’s prospects for employment even with any “supports or development of … skills is quite limited.” She was not eligible for training through government funded programs. He also observed that Kara was “open and active to suggestions and has been regularly attending appointments and has always been seeking ways to mitigate her circumstances.”

[71] In his May 15, 2017 report, Mr. Kulbaba again noted that Kara continued to work towards mitigating her employment circumstances but without success because of her limitations.

[72] In his report of July 5, 2018, Mr. Kulbaba concluded that “… the local labour market in London is very difficult to find sustainable work within when Kara’s knowledge, skills and abilities are taken into consideration.”

David

[73] David continued his employment as an internal auditor with the government of Ontario until May 2014. He left that employment and then worked as a senior manager providing audit services for the York Catholic District School Board. David was terminated from that employment on March 1, 2018. While David claims the termination was wrongful, he chose not to pursue any legal redress. Since his termination, he has been searching for new employment. David is optimistic that he will obtain new employment.

[74] David provided a list of jobs he applied for in his search for new employment.[^11]

[75] The diligence of David’s job search was put in issue by Kara. As part of her case, she retained Colleen O’Brien to prepare an Employability Assessment Report concerning David.

[76] Ms. O’Brien was offered as an expert, able to give opinion evidence on potential employability and earning capacity of individuals, including a consideration of transferable skills.

[77] A voir dire on the admissibility of her proposed evidence was held. I found that Ms. O’Brien was qualified to provide an opinion as proposed. She has 28 years experience in the vocational field, including employment as a project director for Human Resources Development Canada (HRDC), a vocational specialist, a director of a rehabilitation centre and, since 2005, the president and vocational specialist of her own employability assessment firm called Practical Solutions Vocational Services. Her experience with vocational assessments is extensive.

[78] As part of her information gathering, David participated in an interview with Ms. O’Brien. The information relied upon by her was not significantly challenged by David. It was consistent with the evidence of others provided in this case.

[79] Ms. O’Brien found that David’s job search efforts were wanting. He was asked to provide a list of jobs he had applied for, not a partial list. In his evidence, David called it a partial list. I do not accept his evidence on this point. He was asked to provide a list of his job searches and, as I note above, not a partial list. He knew that a report was being prepared regarding his employability and that his efforts to find new employment would be considered. In the circumstances, it is not believable that David, a sophisticated professional, would choose to give a partial list. Further, after the release of the report, which was provided to him and which contained a negative view of his job search efforts, he did not provide a full list.

[80] According to his job search list, he made two to four online applications and connected with recruiter companies each month. Ninety percent of his searches were online, and ten percent were through networking.

[81] Based on this data, Ms. O’Brien’s opinion is that David’s job search effort was very poor. Standard job search protocols recommend that an effective and active job search could be daily, with the bulk of his search efforts being through networking.

[82] Ms. O’Brien considered the barriers to his re-employment as perceived by David: he had been employed for terms of three to four years in his past employment; his age; he may have peaked with his skills; he may be pigeon-holed as an internal auditor; and he may need to retrain. These perceived barriers were addressed in the report relative to his employability and his less than diligent job search efforts.

[83] Ms. O’Brien’s opinion is that “employment opportunities exist and are expected to continue to be available” in a reasonable geographic area relative to where David now lives.

[84] The report does not contain a lower and upper range of income that David could earn other than David’s “years of experience and expertise support a substantial income potential.” Ms. O’Brien’s opinion is that David’s lack of success in finding employment “may be indicative of allowing his perceived barriers to limit him and clearly, a poorly executed job search.”

[85] In the report, Ms. O’Brien estimated that David could earn $175,000 or more based on what he had earned in the past and having regard to his experience and skills.

Parties’ Incomes Since the Murray Order

[86] The income reported by the parties since 2012 has been as follows:

Year	David’s Income	Kara’s Income
2012	$165,775[^12]	$16,412
2013	$165,918[^13]	$16,412
2014	$182,757[^14]	$16,412
2015	$157,979	$16,412[^15]
2016	$150,378	$19,869[^16]
2017	$158,875	$10,903[^17]
2018	$56,774	$11,025 (social assistance)

[87] In his financial statement sworn March 28, 2019, David deposed that his current expenses, including those for his wife and daughter, are being met by the amount he received from a commuted pension one time, lump-sum of $45,230.84. His net worth is $615,619, which includes savings and real property.

WAS THE SPOUSAL SUPPORT PROVISIONS IN THE MURRAY ORDER MADE UNDER THE DIVORCE ACT OR THE FAMILY LAW ACT?

[88] For the reasons that follow I find that they were made under the Divorce Act.

[89] Both Kara and David take the position that the spousal support provision contained in the Murray Order was made under the Divorce Act.

[90] When requested to make submissions about this issue, counsel on behalf of Kara argued that there is no reference to which Act was relied on when the Murray Order was made. But a Divorce Order was issued at the same time.

[91] In Yu v. Jordan [2012] B.C.J. No 1863 (B.C.C.A.) the Court dealt with the consequences of not specifying in an order which legislation governed corollary relief provisions where both federal and provincial legislation is pleaded. The decision also illustrates how the meaning of an order is determined: not by the parties stated intention made after the fact but by objective indicia. This may include the pleadings, the wording of the order and circumstances when it was made. “In the absence of objective indicia, the doctrine of paramountcy will apply such that the order will be founded in the federal legislation.”: para. 1.

[92] The pleadings in the case that eventually lead to the Coats order contained a request for relief by Kara under the Family Law Act and by David under the Divorce Act. The Coats order which was a final order provided for spousal support. This was granted under the Family Law Act. In the absence of a Divorce Order, spousal support could not have been granted on a final basis: D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231 at paras 91-92. But the Murray order provides for the granting of a Divorce Order along with final corollary relief. This could not be done without a pleading requesting this relief.

[93] The Minutes of Settlement which were the basis for the Murray Order do not make mention of which Act or Acts were being engaged.

[94] The objective indicia are inconclusive. In this circumstance, where the spousal support provisions in the Murray Order could have been made under either Act, it should be assumed to have been made under the Divorce Act: Yu v. Jordon, supra, para 51

[95] If I am incorrect and the spousal support provisions were made under the Family Law Act, the issues in this case would be addressed substantively the same under that Act as under the Divorce Act. The legislation is similar: Family Law Act s.37 and the Divorce Act s.17. The analysis with respect to material change and the result would be essentially the same under both Acts: Bendall v. Bendall 2019 ONSC 3588 at para 77-80 and Burger v. Burger 2013 ONCJ 196, [2013] O.J. No. 1751 (Ont. C.J.) paras 62-64.

VARIATION OF SPOUSAL SUPPORT ORDERS MADE UNDER THE DIVORCE ACT

Legal Considerations: Material Change in Circumstances

[96] The determination of whether a spousal support order made under the Divorce Act may be changed requires a consideration of s. 17 of that Act.

[97] The relevant provisions of s. 17 are as follows:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for spousal support order

(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.

Objectives of variation order varying spousal support order

(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.

Limitation

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

[98] Section 17 provides for a two-part test. The first part, or threshold for variation, requires the court to determine whether there has been a “change in the condition, means or other circumstances” of either party since the original order was made (referred to as a material change in circumstances).

[99] Second, if there has been a material change in circumstances, the court must determine if it is appropriate to vary the existing order and, if so, how. The determination is made having regard to the objectives set out at s. 17(7).

[100] If minutes of settlement are incorporated into a court order, the order is to be varied having regard to s. 17 of the Divorce Act.[^18]

[101] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 the Supreme Court of Canada considered the approach to an application to vary a spousal support order under s. 17(4.1), where the support terms of an agreement have been incorporated into a divorce order.

[102] From L.M.P., I draw the following principles, which are applicable to this case:

a) the change referred to in s. 17(4.1) must have occurred since the making of the spousal support order sought to be changed: para. 29;

b) the onus is on the party seeking the variation to establish the change: para. 31;

c) relying on Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, the court held that the change in circumstances must be a material one that “if known at that time, would likely have resulted in a different term”: paras. 32 and 33;

d) what amounts to a material change will depend on the actual circumstances of the parties when the order in question was made: para. 34;

e) the material change must have some degree of continuity and not merely be a temporary set of circumstances: para. 35;

f) the agreement given effect to by the original order is to be considered: para. 37;

g) the degree of specificity of the terms contained in the order is important to the material change analysis: para. 39; and

h) where an agreement incorporated into an order implies finality, the court’s jurisdiction under s. 17 is not ousted by that agreement: para. 41.

[103] The test for material change is not based on what one party knew or reasonably foresaw. Rather, the test is based on what the parties actually contemplated when they entered into the agreement: Dedes v. Dedes, 2015 BCCA 194, at para. 25. In other words, the change relied upon as being material is one that was not one considered, or taken into account, when the agreement was made. The court is to look back to consider what was previously taken into account.[^19]

[104] A review of the terms of the order will assist in determining what was considered.

[105] The more specific the terms, the more likely the court is to find that the parties, or court, contemplated the situation raised in the variation motion.

Discussion: Has there been a material change in circumstances?

Position of the Parties

[106] The material change relied upon by Kara is the deterioration of her health which, in the result, prevents her from achieving any measure of self-sufficiency. She argued that this circumstance – the deterioration of her health, such that she is prevented from any measure of self-sufficiency – was not considered by the parties when the order was made.

[107] David argues that Kara’s physical and mental health issues were evident and contemplated when the original order was made. As such, Kara’s health cannot be the basis of a material change in circumstances.

Analysis

[108] In 2011, when the original order was made, Kara’s then existing mental and physical health was known, medical reports had been provided and it was a factor that was considered.

[109] The minutes of settlement do not contain any concrete or factual clauses that explain what was contemplated at the time. Neither the endorsement of the court, giving effect to the minutes of settlement, nor the court order, provide an explanation.

[110] The order does contain a provision that once spousal support is paid according to its terms, it was to forever cease. But there is no indication why this general finality clause was included.

[111] In his evidence, David acknowledged that, when the minutes of settlement were entered into and the order made, there was no discussion about the prospect for Kara’s future health or how it might impact her ongoing entitlement to spousal support.

[112] I find that the parties did not discuss and contemplate what would happen after November 2016 if Kara’s health prevented her from achieving a measure of self-sufficiency.

[113] Since the original order was made, Kara has been diagnosed with, and is being followed for, PTSD, fibromyalgia, schizoaffective disorder and a possible personality disorder.

[114] The deterioration of Kara's health is a change in her condition. It has negatively affected her ability to improve her economic prospects.

[115] Her health concerns are a significant and continuing change. Dr. Gupta's evidence is most convincing in this regard.

[116] In these circumstances, I find that there has been a material change in circumstances.

[117] I also find that there has been a material change in circumstances based upon Kara’s unmet expectation of achieving self-sufficiency within the five-year term of spousal support.

[118] The minutes of settlement and order imputed income to Kara in the amount of $30,000 based upon what was known to the parties at that time. Imputing income to Kara was inconsistent with the expectation that her health would deteriorate to such an extent that she would be unable to attain this level of income.

[119] I accept Kara’s evidence that, when she entered into the minutes of settlement, she expected that she would get better. She expected that she would have certainty in the amount of spousal support she would receive for a reasonable period that would allow her to achieve self-sufficiency. This was a reasonable expectation made in the context of the following:

(a) While she would have little, if any, assets at that time the order was made because of her assignment in bankruptcy, she would have a sum certain each month to allow her some stability.

(b) The acrimonious litigation would be at an end and the stress – and effect on her mental health – it caused would be over.

(c) She was an intelligent person, who had achieved some academic success in the past.

[120] I am satisfied that, had the parties known about, or considered the possibility of, the deterioration of Kara’s health at the time the original order was made, it would likely have resulted in different terms.

Does the causal connection requirement[^20] in s. 17(10) apply?

[121] David argues that the provisions of s. 17(10) are applicable.

[122] This subsection provides that, where a spousal support order provides for support for a definite period, a court may not, on a variation application instituted after the expiration of that period, make a variation order that resumes spousal support unless the change is related to the marriage.

[123] The original order provides that the respondent was to pay spousal support to and including November 1, 2016.

[124] Kara’s motion to change was started before that date.

[125] David recognized that the motion to change was brought before the expiration of the support period but argued that, nonetheless, “the spirit and substantive intent” of s. 17(10)(a) should apply.

[126] With respect, I disagree. The plain and unambiguous language of s. 17(10) provides that it has no application until the expiration of the support period has occurred. That is not the case here.

What is the appropriate variation to be made?

Legal Considerations

[127] Once the threshold for variation has been established, the court must determine what, if any, variation order is to be made in light of the material change in circumstances: L.M.P., at para. 47.

[128] The court is required to apply both s. 17(4.1) and (7). A variation order should: (a) reflect the s. 17(7) objectives; (b) take into account the material change in circumstances; and (c) consider the original order. In short, the court is to limit itself to making the variation that is appropriate in light of the change. This is not to be approached as if it were an initial application: L.M.P., at para. 50.

[129] The weight or importance to be accorded to each of the s. 17(7) objectives is a matter of judicial discretion based upon the circumstances of the case before the court.

Discussion

[130] When the original order was made, it is clear that Kara’s entitlement to spousal support was based on both compensatory and needs grounds.

[131] During the marriage, Kara was the primary caregiver to the children. She abandoned her plans to become a nurse in large measure so that David would be able to advance his career, one that was presumed to be more remunerative and with greater potential to provide economic benefits for the family. Their plan worked while they cohabited. David’s career advanced and he earned an income that allowed their family a comfortable standard of living.

[132] Following their separation, David’s work experience allowed him to advance his career and increase his earnings. This same experience gained, while he was supported by the role assumed by Kara, continues to be relied upon by him in his search for new employment.

[133] For the first years following the separation, Kara remained primarily responsible for the care of the children. When her health prevented her from continuing in this role, David assumed this responsibility. When this change happened, the children were then 19, 15 and 10.

[134] Kara has not been able to provide David with child support since the children were in his care. However, in arriving at the support agreement contained in the original order, the parties imputed $30,000 in income to Kara and had regard to the notional child support that she should otherwise have paid David. This calculation had the effect of reducing the spousal support payment David would be required to pay having regard to the Spousal Support Advisory Guidelines (SSAG) calculation.[^21]

[135] The SSAG amount for spousal support without income imputed to Kara, calculated when the original order was made, was between $2,762 and $3,683 per month. The range with $30,000 imputed to Kara was $1,190 to $1,586 per month.

[136] David continued to provide for their children. He has not advanced a claim or evidence that, at this time, any of the three children remain “children of the marriage” as defined under the Divorce Act.

[137] I accept the evidence of Chris Kulbaba that Kara’s medical conditions are a barrier to her retraining and obtaining employment. I also accept the medical evidence that her current medical conditions are a barrier to her obtaining employment and are not likely be removed in the near future.

[138] Kara’s entitlement to spousal support from David continues both on a compensatory and needs basis.

[139] Her health, which deteriorated after the original order was made, prevents her from overcoming the disadvantages she experienced arising from the marriage and its separation and from achieving self-sufficiency.

[140] She also remains in need of financial support from David.

Income Determination

Kara

[141] In determining if and what variation order is appropriate, a consideration of Kara’s current circumstances, including income, is required.

[142] Kara’s income was imputed in the original order. The issue arises whether income should continue to be imputed to her.

[143] The person claiming that income should no longer be imputed to them has the onus of showing why it is no longer appropriate to do so: Trang v. Trang, 2013 ONSC 1980 at paras.51-60.

[144] If a person wants to rely on medical reasons for not being able to work, they need to provide cogent medical evidence in the form of a detailed medical opinion: Cook v. Burton, 2005 1063 (Ont. S.C.J.), at para. 10, and Stoangi v. Johnson, [2006] 24124 (Ont. S.C.J.), at para. 25.

[145] I find that it is no longer appropriate to impute income to Kara. Though the original order does not explain why income was imputed, it is reasonable to infer that it was expected that Kara had, or would in short order have, the capability and capacity to earn this sum. This was her expectation.

[146] The medical evidence provided on behalf of Kara is both clear and convincing in establishing that she is not capable of earning income for the foreseeable future. She has tried to address her health problems but so far without sufficient success to expect any income to be imputed to her.

[147] Her current circumstances cannot be said to be willfully self-induced.

[148] Kara’s sole source of income in 2019 is social assistance. This provides her with $12,108 per year. It is this source and amount of income that should be used in determining the quantum of the spousal support she should receive now. However, as the Revised User’s Guide provides, social assistance should not be treated as income for support purposes.[^22]

David

[149] Kara asks for spousal support starting from January 1, 2017, a date after this motion to change was started. She also asks that, in applying the SSAG, and calculating his spousal support obligation for the past three years, David’s income should be:

Year	Income
2017	$158,876 (actual income)
2018	$56,774 (actual income)
2019 and ongoing	$150,000 (imputed income)

[150] Kara relies upon the evidence of Colleen O’Brien in support of her request that David’s ongoing income be imputed at $150,000 per annum.

[151] In her evidence, Ms. O’Brien stated that, as described in her report, she was required to do two things: (a) assess David’s employability potential and earning capacity as a chartered accountant within the Stoney Creek and Toronto area; and (b) determine his transferable skills.

[152] In her report, Ms. O’Brien expressed the opinion that David is capable of earning, and had earned, in excess of $175,000 since transitioning into the role of internal auditor.

[153] In oral evidence, Ms. O’Brien stated that David could earn $150,000 a year because, as stated in her report, he had often earned in excess of $175,000 since transitioning his role to that of an internal auditor. It was her expectation that he would be able to earn at least $150,000 at this point given his experience and skills.

[154] David argues that income should not be imputed to him. He was fired from his job in March 2018 and has been searching for a new one ever since.

[155] For the reasons that follow, I find that it is not appropriate to reconsider or impute income to David on this motion to change.

[156] As the Supreme Court of Canada stated in L.M.P. at para. 50, the court is not to approach this case as if it was an original application. The court is to take into account the material change in circumstances, reflect the objectives set out in s. 17(7) and consider the existence of the original order and minutes of settlement.

[157] This case was not argued on the basis that David’s increase in income after 2011, nor his loss of employment and new job search efforts, amount to a material change in circumstances. Even if the case had been argued on that basis, the evidence does not support a finding that David’s current employment and income circumstances have the requisite degree of continuity to be considered a material change. He continues to seek employment in his field and is optimistic that he will.

[158] In effect, what Kara asks this court to do is recalculate the quantum of spousal support claimed based upon David’s fluctuating income for the past three years.

[159] The court was not provided with any authority for the proposition that, absent a determination that a change in a payor’s income amounts to a material change in circumstances, spousal support should be recalculated and based upon a spousal support payor’s income fluctuation.

[160] In determining the appropriate variation order in this case, David’s income will remain at $131,000, as it was when the original order was made.

The Spousal Support Advisory Guidelines

[161] The SSAG are useful in determining the appropriate quantum and duration of spousal support on a variation application. However, in some cases, complicating factors must be considered before applying the SSAG wholesale: Gray v. Gray, 2014 ONCA 659, at paras. 42 and 45.

[162] In the Revised User’s Guide (“RUG”)[^23], the authors recognize that illness and disability can be the basis of an exception to the use of the SSAG formulas.

[163] The authors identified different approaches when applying the SSAG in cases involving disability and illness: RUG, at pp. 62 -63.

[164] The approach preferred by the authors in illness and disability cases is to apply the SSAG without exception. “[W]e see spousal support being time limited and terminated in accordance with the formula ranges even though the disability is permanent. This is the approach that was recommended in the SSAG … [this] seems more consistent with the modern limits of spousal support as a remedy.”: RUG, at pp. 63 -64.

[165] This approach is consistent with the spousal support provision contained in the original order: despite the condition of Kara’s health at the time, the quantum and duration were both within the SSAG ranges.

[166] Based on David’s income of $131,000 and Kara’s $12,000 in social assistance, the range of spousal support provided by the SSAG in this case is between $2,784 and $3,712 per month for a duration of 8.5 to 17 years from the date of separation, subject to variation and possibly review.[^24]

[167] In determining the appropriate quantum and duration of spousal support, I take into account the following:

a) When the original order was made based on minutes of settlement, the parties expected certainty as to quantum and finality in duration, having regard to the provisions of the Divorce Act and the SSAG.

b) The original order was based, in part, on David supporting the children, who were in his care. This is no longer the case or a consideration. The SSAG calculation has crossed over to the without child support formula.

c) The material change – the deterioration of Kara’s health and its effect on her ability to provide for herself and to overcome, or relieve, economic hardship – requires that both the quantum and duration of spousal support be varied.

d) David’s parental responsibilities, which continued after November 2011, are a factor in moving the quantum below the midpoint of the range.

e) The likelihood that Kara’s health will affect her income earning ability for some time is a factor in extending the duration of support.

f) David has been obliged to pay spousal support to Kara since the May 2009 temporary order of Coats J. The evidence also discloses that he voluntarily paid spousal support in 2008 of $53,016. He has already paid spousal support for eight years: from 2008 until November 2016.

g) David is confident he will obtain new employment. He continues to look for new employment.

h) The SSAG contemplate restructuring the quantum and duration of spousal support “to meet the circumstances of individual cases while maintaining the benefits of structure and certainty offered by the Guidelines.”: RUG, at p.49. This restructuring would allow the payment of spousal support to extend beyond the SSAG duration range and concurrently lower the monthly amount payable below the quantum range.

[168] I have not taken into account the income Kara would receive or be entitled to should any application for ODSP on her behalf be successful

[169] Kara asked that the spousal support obligation begin January 2017. This is an appropriate start as it is a date after the motion to change was started.

[170] The appropriate variation in this case is to provide that, effective January 1, 2017, David pay Kara spousal support in the amount of $2,100 per month for a period of 13 years ending December 1, 2030. This is a restructuring of the SSAG calculation described above.

[171] This will create immediate arrears as it has taken three years for this case to be tried.

[172] David is to pay the arrears at a rate that takes into account his financial circumstances.

[173] Any arrears arising from this order shall not be enforced until May 1, 2020. This delay in enforcement will give David time to arrange his employment and financial affairs. I take into account that he has responsibilities to his second family.

[174] The arrears outstanding, once enforced, shall be repaid at the rate of $400 per month starting May 1, 2020 and on the first day of each subsequent month. If any arrears are owing at the expiration of the term of the support order, being December 1, 2030, such arrears shall then be paid at the rate of $2,100 per month until paid in full.

UNCONSCIONABILITY AND DURESS

[175] A consent order may be set aside on the same grounds as an agreement giving rise to the order. These grounds go to the formation of the agreement: McCowan v. McCowan, (1995), 1995 1085 (ON CA), 24 O.R. (3d) 707 (Ont. C.A.), at para. 19, and Monarch Construction Ltd. v. Buildevco Ltd., [1988] O.J. No. 332 (C.A.).

[176] In the context of domestic contracts, s. 56(4) of the Family Law Act provides the circumstances where a court can set aside a domestic contract or a provision within it.

[177] Section 56(4) is formulated as follows:

Setting aside domestic contract

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[178] Unconscionability and duress are grounds upon which a domestic contract can be set aside.

Unconscionability

[179] Unconscionability with respect to a domestic contract focusses on the circumstances surrounding the formation of the contract. It is the circumstances at the time of the drafting and signing of the domestic contract that are to be examined. The court is to consider whether there were any circumstances of oppression, pressure or other vulnerabilities and if one party exploited the other’s vulnerabilities during the negotiation process, such that it resulted in an agreement that deviated substantially from the governing legislation.

[180] I accept that Kara was emotionally vulnerable when the minutes of settlement were negotiated at the trial management conference. She was upset most of that day. She had health problems.

[181] David was in arrears of spousal support on the day the agreement was made. This was a source of pressure on Kara. I accept David’s evidence that he was not willfully in arrears. The arrears accrued shortly after he began new employment with the government of Ontario. There was some delay in the Family Responsibility Office acting to divert spousal support from his wages. No support was paid through the Family Responsibility Office on July 1 or August 1, 2011. A partial payment of $2,370.63 was paid on August 19, 2011. Three payments in that same amount were made during the month of September 2011. Two further payments in that amount were made in the month of October 2011.

[182] Kara argues that imputing income to her in the amount of $30,000 was beyond what should have been the reasonable expectations of the parties at the time. She had never earned that much before. However, on June 7, 2010, in the Coats order, spousal support was based upon Kara having gross annual income imputed to her of $30,000. This order provides some context for income being imputed in the Murray order.

[183] I am not able to find on the evidence that David took advantage of, or exploited, Kara’s vulnerabilities that day. Kara was assisted by counsel. This counsel took part in negotiating and drafting settlement terms. The parties exchanged SSAG calculations. I also take into account that the parties were before the court that day at the trial management conference.

[184] In these circumstances, I am not able to conclude that the agreement reached by the parties on November 10, 2011 deviated substantially from a reasonable range of results under the provisions of the Divorce Act and the SSAG.

Duress

[185] Duress involves a coercion of the will of one party or directing pressure to one party so that they have no realistic alternative but to submit to the other: Berdette v. Berdette (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513 (C.A.) at paras. 22 and 24.

[186] The evidence does not support a finding that Kara had no alternative but to sign the minutes of settlement or that David threatened or coerced her into doing so. The lawyer who was present with her that day assisted in the negotiations with David and appeared before the presiding trial management conference justice. The existing spousal support order of $4,000 per month was in force and, though in arrears, semi-monthly payments were being made on account. The parties could have proceeded to trial. The presiding judge could have been made aware of any threats or pressure. This was not a situation where, objectively, Kara was threatened or coerced by David into signing the minutes of settlement.

[187] With respect, the claim of duress has not been made out.

ORDER

[188] For these reasons, an order shall issue as follows:

1. The order of Murray J. dated November 10, 2011 shall be varied by adding the following:

“Commencing on January 1, 2017 and on the first day of each month thereafter to and including December 1, 2030, the respondent, David William Johnston, shall pay to the applicant, Kara Louise Johnston, spousal support under the Divorce Act in the amount of $2,100 per month.”

2. Any arrears arising from this order shall not be enforced until May 1, 2020.

3. The arrears outstanding as of May 1, 2020 shall be repaid at the rate of $400 per month starting May 1, 2020 and on the first day of each month thereafter.

4. If any arrears are owing at the expiration of the term of spousal support as provided in this order, being December 1, 2030, such arrears shall be paid at the rate of $2,100 per month beginning January 1, 2031 and on the first day of each month thereafter until the arrears are paid in full.

[189] If costs are sought, the applicant may do so within 15 days of the release of these reasons and the respondent shall have 15 days thereafter to respond. Written submissions are not to exceed three pages and shall have attached to them any offers to settle and a bill of costs.

“Justice Barry Tobin”

Justice Barry Tobin

Released: December 30, 2019

COURT FILE NO.: F1251/16 DATE: 2019/12/13

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Kara Louise Johnston Applicant

• and -

David William Johnston Respondent

REASONS FOR JUDGMENT

TOBIN J.

Released: December 30, 2019

[^1]: This was the respondent’s base salary while he was employed at Research In Motion. [^2]: Consent of the parties: affidavit of the applicant, Ex. #1, document brief, vol. 1, tab 4, page 3. [^3]: Affidavit of Kara Louise Johnston, Ex. #1, paras. 72 and 74. [^4]: David's income tax return discloses that in 2011 he claimed a deduction for support payments made in the amount of $45,335.67. This was accepted by the Canada Revenue Agency. [^5]: David’s income in 2010 was made up of employment income from RIM of $107,739 and severance of $284,423. [^6]: David’s income in 2011 was made up of employment income of $108,000 and RRSP income of $30,000. [^7]: Director’s Schedule “A” payment history: Ex. #6, tab 43. [^8]: Affidavit of David William Johnston, Ex. #6, para. 347. [^9]: Reference to the medical reports of Dr. Driyadharshini Sabesan at tabs 88 to 93 of the applicant’s document brief. [^10]: Reference to the medical report of Dr. Manfred Harth at tab 97 of the applicant’s document brief. [^11]: Affidavit of the respondent, David William Johnston, Ex. #6, tab 79. [^12]: Includes RRSP income of approximately $30,000. [^13]: Includes RRSP income of approximately $30,000. [^14]: Includes RRSP income of approximately $30,000. [^15]: In the years 2012 to and including 2015, Kara’s sole source of income reported was spousal support. [^16]: Spousal support of $15,400, employment income of $3,246 and social assistance of $1,223. [^17]: Social assistance of $10,126 and employment income of $777. [^18]: The Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303, analysis does not apply in this circumstance. The test provided for in Miglin applies to initial support orders made under s. 15.2 of the Divorce Act. [^19]: Thompson, R., To Vary To Review, Perchance to Change: Changing Spousal Support (2012) 31 C.F.L.Q. 355. [^20]: Spousal Support Advisory Guidelines July 2008, at section 14.1 [^21]: See affidavit of respondent, Ex. #6, paras. 229-236 and documents at tabs 40 and 41. [^22]: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016 (Ottawa, Department of Justice, April 2016), page 3. [^23]: supra note 22. [^24]: The SSAG calculation is attached to these reasons as Appendix A. The crossover to without child support formula was used as child support is no longer an issue.