ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BRIGITTE LAROCHE
Applicant
– and –
MURRAY LYNN
Respondent
Peter Rutland, for the Applicant
William H. Abbott, for the Respondent
HEARD: September 26, 2019
REASONS FOR DECISION
Ellies R.S.J.
OVERVIEW
1Mr. Lynn moves to change a spousal support order made on March 12, 1999. Pursuant to that order, Mr. Lynn has been paying support to Ms. LaRoche in the amount of $700 per month for more than 20 years.
2Mr. Lynn is now 60 years old. He was eligible to retire from his employment in June of this year and he would like to do so. However, Mr. Lynn submits that he cannot afford to retire and continue to pay spousal support. He also submits that Ms. LaRoche is no longer entitled to support, given that she has been receiving it for much longer than their twelve and one-half year marriage.
3Ms. LaRoche resists Mr. Lynn's request on the basis that she is disabled and unable to become self-sufficient. Instead, she asks that the amount of spousal support be increased to account for Mr. Lynn's increased income following the separation.
4For the reasons that follow, I find in favour of Mr. Lynn. Mr. Lynn's retirement constitutes a material change in circumstances that justifies varying the 1999 order. Because Mr. Lynn has paid support for so long and has likely paid more support than the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (the "Guidelines") suggest should be paid, the order should be varied to terminate, rather than merely reduce, the support payable to Ms. LaRoche.
FACTS
Previous Proceedings
5Mr. Lynn and Ms. LaRoche met in Timmins. They were married in June 1984. They had a son 18 months later, in 1985.
6Mr. Lynn and Ms. LaRoche separated in December 1996. Following the separation, Ms. Laroche commenced an application in what was then the Ontario Court (General Division). While that application was outstanding, Mr. Lynn began paying spousal support to Ms. LaRoche. The record is unclear as to how much support he paid.
7Mr. Lynn and Ms. LaRoche agreed to settle their family issues and entered into minutes of settlement, which were incorporated into the 1999 order. Pursuant to that order, Mr. Lynn was required to pay Ms. LaRoche the sum of $20,227.22 to equalize their net family property. Mr. Lynn was awarded custody of their son and Ms. LaRoche was awarded access to him. Ms. LaRoche was not required to pay child support. Pursuant to clause 10 of the 1999 order, Mr. Lynn was required to pay $700 per month in spousal support, effective January 1, 1999, "subject to a review in two (2) years."
8The parties were divorced a short while later, on April 30, 1999.
9Mr. Lynn deposes that the 1999 order was never reviewed in accordance with its terms. However, he did bring an application to vary the 1999 order within a few years of the making of that order. I have very little information about that application. I presume that Mr. Lynn sought to decrease or terminate the spousal support he was ordered to pay in the 1999 order, most likely because Ms. LaRoche began to receive disability benefits, as I will explain. Like the present proceedings, Ms. Lynn brought a counter-application, seeking to increase the support. I have no more information about that application than I have about Mr. Lynn's application.
10In an order dated October 2, 2000, Bolan J. dismissed both applications and ordered that Mr. Lynn continue to pay the $700 in monthly spousal support.
11In 2006, Mr. Lynn's retirement pension was equalized and his Canada Pension Plan ("CPP") credits were divided between the parties at source, based on the length of their marriage.
The Parties' Circumstances at the Time of the 1999 and 2000 Orders
12Ms. LaRoche was 33 years old at the time the parties separated; Mr. Lynn was 37.
13Mr. Lynn was employed at the time by the Department of National Defence (the "DND") as a Rock Maintenance Supervisor at the Underground Complex in North Bay. I have no information with respect to his income at the time, a fact to which I will return later in these reasons.
14Ms. LaRoche was not employed at the time the parties separated. About six months after the birth of their son, Ms. LaRoche began to suffer from mental health issues. She was first admitted to St. Mary's General Hospital in Timmins in 1986, where she was diagnosed as suffering from an acute psychiatric disorder. The parties moved from Timmins to North Bay in 1993. Between 1993 and 2003, Ms. LaRoche was admitted to the North Bay Psychiatric Hospital on 11 occasions. At the time of the 1999 order, she had been diagnosed as suffering from depression and a personality disorder with primarily histrionic features.
15In 1999, Ms. LaRoche applied for CPP disability benefits. Her application was denied because she had not worked long enough to make the necessary contributions to the plan. In that same year, though, she applied for and began to receive Ontario Disability Support Program ("ODSP") benefits through the Ministry of Community and Social Services (the "Ministry") in the amount of $35 per month.
16By the time of the 2000 order, Ms. LaRoche's diagnosis had changed somewhat. In a report dated September 13, 2000, Ms. LaRoche's psychiatrist, Dr. Patricia Achiume, wrote that Ms. LaRoche suffered from depression and a personality disorder with primarily paranoid features. In the report, Dr. Achiume wrote about Ms. LaRoche:
I am absolutely certain that because of her ongoing mental health problems at the present time, she could not possibly hold down a job. While this does not mean that she can never be employed, I feel that for the next two or three years at least, she will remain disabled and unable to work.
17Ms. LaRoche never returned to work.
The Parties' Present Circumstances
18Mr. Lynn is now 60 years old. He is still employed by the DND at the Underground Complex. However, his job has changed. In 2016, he began to work mainly above ground as a Contracts/Rock Maintenance Inspector.
19Mr. Lynn deposes that he has been employed now for 42 consecutive years as a mining engineering technologist, working with rock and steel his entire career. He deposes that he is in constant pain from his long career and that he would like to retire and move to Alberta, where his son resides with his grandchildren. He testified in-chief that he will not be able to afford to pay the current level of support once he does. In cross-examination, he testified that he could not afford to pay any support after retirement. He also testified that, if he retired, he would not be permitted to work even on a part-time basis for his present employer. Nor is he able to transfer to Alberta without retiring.
20Mr. Lynn's line 150 income for 2018 was $83,000. He deposes that, when he retires, his monthly pension income will be $3,426.53, or $41,118.36 per year. It is not clear to me whether this includes monthly CPP payments. According to the documents attached as exhibit "G" to Mr. Lynn's September 18, 2019 affidavit, his monthly pension from employment will decrease by $738 once he begins to receive his monthly CPP payments at age 65. However, Mr. Lynn deposes that he began to receive his CPP payment in the monthly amount of $627.72 in July 2019.
21Mr. Lynn testified that he lives alone. Except for money that he sends occasionally to his son, he has no dependants other than Ms. LaRoche. His financial statement shows that he lives a modestly better lifestyle than Ms. LaRoche. Like Ms. LaRoche, Mr. Lynn pays rent each month and does not own a house. The largest difference between their monthly expenses relates to the fact that Mr. Lynn owns a vehicle.
22Ms. LaRoche is now 56 years old. She continues to receive ODSP benefits, now in the amount of $1,291 per month. She testified that, when she first began to receive the benefits, she was required to assign her monthly spousal support to the Ministry, which would "top up" what Mr. Lynn paid. Now, however, she receives her ODSP in full and remits the spousal support each month to the Ministry. She stated in her affidavit and confirmed in her testimony that she is required to pursue Mr. Lynn for spousal support as a condition for receiving her disability benefits.
23Ms. LaRoche testified that she is not sure if she would receive the same amount each month from the Ministry if Mr. Lynn was not required to pay support. This evidence conflicts with that of Mr. Lynn, who deposes that Ms. LaRoche's ODSP will be unaffected if his request to terminate is granted. Based on Ms. LaRoche's evidence about the way her ODSP is now being paid, I find Mr. Lynn's evidence to be the most likely scenario. In any event, I am sure that information about how her ODSP will be affected by any reduction in spousal support is available to Ms. LaRoche and I find it difficult to accept that she would not know exactly what the effect will be.
24Ms. LaRoche has been under the care of Dr. Achiume for 26 years. In addition to filing copies of a number of Dr. Achiume's previous reports written to various people over the years, Ms. LaRoche attached to her affidavit a copy of a report from Dr. Achiume dated January 8, 2019, addressed to Ms. LaRoche's lawyer. Dr. Achiume writes that Ms. LaRoche was misdiagnosed when she first began to suffer from mental health issues and that her present diagnosis is one of Bipolar I Disorder. She writes that Ms. LaRoche's illness "has stabilized to some degree" in recent years and her admissions to hospital have decreased in frequency and length of stay. In the last paragraph of her letter, Dr. Achiume writes:
However, like most patients suffering a serious chronic mental illness, she has not been able, in spite of great efforts, to reach a level of stability which would allow her to enter the workforce and support herself. She will therefore require ongoing spousal financial support to supplement her ODSP income. I trust that this information will be of assistance when you represent her in Family Court on January 10, 2019.
25Mr. Lynn objects to the admission of this opinion evidence.
ISSUES
26The issues to be decided are:
(1) Is Dr. Achiume's opinion admissible?
(2) Has there been a material change in circumstances?
(3) If so, what variation should be made?
ANALYSIS
Issue 1: Is Dr. Achiume's opinion admissible?
27Mr. Lynn objects to the admission into evidence of the paragraph from Dr. Achiume's report set out above for two reasons: first, it is not in affidavit form and, second, it fails to comply with the provisions of the Family Law Rules, O. Reg. 114/99, governing the content of expert reports. While I have difficulty accepting the first submission, I have no difficulty accepting the second.
Must the report be in affidavit form?
28Counsel for Mr. Lynn relies on a number of cases in which courts have held that an expert's opinion should be introduced in a motion either in the form of an affidavit sworn by the expert which sets out the opinion, or in the form of a report attached to an affidavit sworn by that expert: F. (J.D.) v. F. (J.L.J.), 2009 PESC 28 (S.C., in Chambers); Shum v. Tam, 2014 BCSC 1762; Katz v. Katz, 2014 ONCA 606, 377 D.L.R. (4th) 264; Ceho v. Ceho, 2015 ONSC 5285; LiSanti v. LiSanti (1990), 1990 CanLII 4229 (ON CJ), 24 R.F.L. (3d) 174 (Ont. Prov. Ct.); Bloom v. Bloom, 2017 ONSC 1568. In my view, these cases are distinguishable because none of them deal with expert reports that are admissible under s. 52 of the Evidence Act, R.S.O. 1990, c. E.23.
29Dr. Achiume is a psychiatrist. As a psychiatrist, Dr. Achiume is a member of a "College" as defined in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Pursuant to s. 52 of the Evidence Act, a report signed by a member of a College (a "practitioner" under the Evidence Act) is admissible in evidence in an action, provided sufficient notice is given (as it has in this case) and leave of the court is obtained. This section operates as an exception to the hearsay rule to relieve practitioners from having to testify, except where required to do so by an opposing party. Section 52 does not require that the report be sworn in any way.
30While F. (J.D.) and Shum both dealt with reports that might have been admissible under Ontario's Evidence Act, they were not Ontario cases. There is no mention in either case of any equivalent legislation in Prince Edward Island or British Columbia.
31The only Ontario case cited by counsel for Mr. Lynn in which the issue was the admissibility of a practitioner's report in a motion is Sanzone v. Schecter, 2016 ONCA 566, 402 D.L.R. (4th) 135. However, Sanzone was not a family case. Rather, it was a civil case, governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In Sanzone, the defendant dentists successfully moved for summary judgment dismissing the plaintiff's action against them for negligence. The motion judge had ruled that a letter from a dentist regarding the standard of care that had been attached as an exhibit to the plaintiff's affidavit was not admissible in the motion. The Court of Appeal reversed the motion judge, but agreed with him regarding the letter. The court held that, in a summary judgment motion (at para. 16):
A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, (2014 ONSC 2060 … aff'd 2014 ONCA 887 (Ont. C.A.).
32With respect, I have some difficulty accepting this statement as support for Mr. Lynn's position in light of s. 52 of the Evidence Act. It may be that the Court of Appeal took a restrictive view of s. 52, which speaks only of the admissibility of a letter report "in the action", and not in a motion. However, the Court of Appeal makes no reference to s. 52 in its decision. Moreover, in the paragraph preceding the one set out above, the court in Sazone held that (at para. 15):
The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in rule 20.02(1) of the Rules of Civil Procedure.
33It seems illogical that a party would be required to obtain an affidavit in a paper-based proceeding such as a summary judgment motion, when a simple letter will suffice in a trial. In any event, I believe that the Court of Appeal's statement in Sanzone that all expert evidence in a motion must be introduced via affidavit may be obiter. As I will explain, I believe that the court held that the report was inadmissible because of its substance, rather than its form.
34In agreeing with the motion judge that the dentist's report was inadmissible on the motion, the Court of Appeal referred to r. 53.03 of the Rules of Civil Procedure. Rule 53.03(2.1) requires that every expert report contain the following information:
The expert’s name, address and area of expertise.
The expert’s qualifications and employment and educational experiences in his or her area of expertise.
The instructions provided to the expert in relation to the proceeding.
The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
- An acknowledgement of expert’s duty (Form 53) signed by the expert.
35The Court of Appeal in Sanzone also referred to its decision in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, in which the court differentiated between "litigation" experts and "participation" experts. The former are retained for the purpose of providing an opinion in the litigation. The latter are witnesses who play a role in the unfolding of the relevant facts in the litigation. Participant experts are permitted to give opinion evidence based on their observation of or participation in the events at issue. The Court of Appeal in Westerhof held that the evidence of participation experts need not comply with r. 53.03. In Sanzone, the Court of Appeal held that the dentist was a litigation expert, not a participation expert, and that his report failed to comply with r. 53.03(2.1) in several respects (at para. 17). I believe that this is the reason the Court of Appeal agreed with the motion judge. At para. 17, the court held:
In the present case, Dr. Shafer was not a participant expert, and his letter of July 27, 2014 did not meet the requirements of rule 53.03: it lacked a proper statement of his qualifications; it did not set forth the reasons for his opinion in the depth required by rule 53.03(2.1)(6); nor was it accompanied by an acknowledgement of expert's duty.
36In any event, I need not decide whether Dr. Achiume's report must be in some sworn form because, as the Court of Appeal held in Sanzone, I believe that the impugned paragraph of Dr. Achiume's affidavit is inadmissible for reasons relating to its substance, regardless of its form.
Must the report comply with rule 20.1?
37Rule 20.2 of the Family Law Rules, which came into force on September 1, 2019, incorporates the distinction between litigation and participant expert witnesses recognized in Westerhof. Rule 20.2(1) defines "litigation expert" and "participation expert" as follows:
“litigation expert” means a person engaged for the purposes of litigation to provide expert opinion evidence; (“expert du litige”)
“participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue. (“expert participant”)
38Rule 20.1(2) contains a list of formal requirements for litigation experts' reports that is nearly identical to the requirements of r. 53.03(2.1) of the Rules of Civil Procedure. Rule 20.1(2) does not apply to participation experts. Instead, r. 20.2(14) applies, and sets out much less onerous requirements, none of which are at issue here. Importantly, r. 20.2(15) removes the uncertainty in the jurisprudence to which I referred earlier by specifying that r. 20.2 applies equally to motions, including summary judgment motions, as well as trials.
39On behalf of Mr. Lynn, counsel argues that, while Dr. Achiume is a participant expert in the sense that, although she has been treating Ms. LaRoche for many years, the opinions contained in the impugned paragraph are outside the scope of her evidence as a participant witness. He submits that Dr. Achiume's opinion that Ms. LaRoche is unable to work is given as a litigation expert and that her opinion that Ms. LaRoche requires spousal support goes beyond her expertise as either a participant expert or a litigation expert. I agree with both submissions. I will start with the latter one.
40Dr. Achiume's opinion that Ms. LaRoche requires spousal support is clearly outside of her expertise as a psychiatrist, regardless of whether it is offered as a litigation expert or a participation expert. This is a legal issue, not a medical one.
41Dr. Achiume's opinion concerning Ms. LaRoche's ability to enter the workforce to support herself is different. It is not obviously outside Dr. Achiume's area of expertise. Indeed, at first glance, one might think that her opinion fits squarely within her expertise as a psychiatrist. After all, this is more or less the same opinion that Bolan J. not only found admissible, but relied upon in making the 2000 order.
42However, at the time that Bolan J. was required to make his decision, the line between participant experts and litigation experts had not yet been drawn, or was at least blurred. More importantly, at the time of the 2000 order, the importance of this court's role as the gatekeeper for expert evidence had not emerged in the way it did in the years to follow: see The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008).
43Dr. Achiume's statement that Ms. LaRoche cannot work because of the instability of her mental health is based on two premises. The first is that Ms. LaRoche's mental health is not stable. While that statement is debatable, I believe that it is within Dr. Achiume's expertise as a psychiatrist to make.
44The second premise inherent in Dr. Achiume's statement is that there is no employment which could accommodate Ms. LaRoche's instability. This fact is not obviously within Dr. Achiume's area of expertise. Even if it was, in my view, this part of Dr. Achiume's opinion falls outside the scope of Dr. Achiume's role as a treating psychiatrist.
45It is significant, in my view, that Dr. Achiume's opinion is not restricted to the past, or even the present. Instead, Dr. Achiume is offering an opinion that Ms. LaRoche will not be able to work in the future. In that respect, I believe Dr. Achiume's opinion extends beyond the scope of the evidence of a participant expert and into the area of a litigation expert.
46Moreover, Dr. Achiume's report fails to set out any of the facts she has relied upon relating to the "workforce", such as what areas of employment she has considered in arriving at her conclusion or even whether she has considered the issue of accommodation at all. These facts are the type of thing that r. 20.2(2) requires be included in a litigation expert's report. Because Dr. Achiume's report fails to meet the requirements of r. 20.2(2), her opinion that Ms. LaRoche is unemployable is inadmissible.
47As I will develop, however, even if Dr. Achiume's evidence that Ms. LaRoche is unable to obtain and maintain employment was admissible, it would not change my decision to terminate spousal support.
Issue 2: Has there been a material change in circumstances?
48The 1999 order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended ("the Act"). Variation of the order is governed by s. 17 of the Act. The relevant portions of that section read as follows:
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;
(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.
49In Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, the Supreme Court of Canada held that, in order to serve as the basis for the variation of a support order, a "change of circumstances" must be material such that, "if known at the time, [it] would likely have resulted in different terms" (at p. 688). In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 (sub nom Droit de la famille – 091889) 2011 CarswellQue 13698, the Supreme Court held that this threshold question is the same even where a spousal support order incorporates an agreement (at para. 36).
50Both parties submit that there has been a material change in circumstances, but for different reasons, which they argue require different variations. Ms. LaRoche argues that there has been a material change in circumstances because Mr. Lynn's income has gone up since the 1999 order was made. Mr. Lynn submits that there has been a material change in circumstances because he is now eligible to retire and because Ms. LaRoche has received support for longer than the Guidelines suggest she should.
51During his cross-examination of Ms. LaRoche, counsel for Mr. Lynn raised one other possible material change, based on clause 11 of the 1999 order, which reads:
The parties further agree that any disability pension benefits and/or income earned by the Applicant [Ms. LaRoche] will be deducted from any spousal support payable.
52Although he raised this ground during cross-examination, counsel did not deal with it in his submissions. Nonetheless, as it was raised, I will address this possible reason for a variation and I will address it first.
Mistaken Assumptions about the Interplay between Support and Disability Payments
53Where a court order for spousal support is based on an agreement between the parties, determining whether there has been a material change in circumstances requires the court to consider what was within the contemplation of the parties at the time that it was made. Clearly, if the parties believed at the time they consented to the 1999 order that Mr. Lynn's support obligations would be reduced by whatever disability benefits Ms. LaRoche received, they were wrong. Indeed, the converse is true. In my view, however, this does not constitute a material change in circumstances because of the subsequent proceedings which resulted in the 2000 order.
54Both parties have approached the present proceedings on the basis that the 1999 order is the one that should be varied. However, it is arguable that the order that should be varied is the 2000 order. It might be different if Bolan J. had found that there was no material change in circumstances at the time and left the 1999 order untouched. But that is not what happened. Instead, Bolan J. found that there had been a material change. He found that Ms. LaRoche had gone from being unemployed at the time of the 1999 order to being unemployable. At para. 1 of his reasons, he wrote:
I am satisfied that there has been a material change in circumstances. Whereas Ms. LaRoche was unemployed when the judgment of March 12, 1999 was made in accordance with the minutes of settlement, I find that she is now unemployable.
55Thus, while Bolan J. did not change the amount of support payable under the 1999 order, he did change the basis upon which it was being paid. At para. 3 of his reasons, he wrote:
Ms. LaRoche is young and it would appear that with proper medical treatment, she will become employable and contribute to her own support; however, in the meantime, she will continue to receive spousal support of $700 which is topped up by support programs through the Ministry of Community and Social Services.
56As Mr. Lynn conceded during his cross-examination, the effect of bringing his earlier application to vary was to clarify the nature of the interaction between the support payments and the disability pension that Ms. LaRoche was receiving. As he learned, the spousal support was to be deducted from the ODSP, not the opposite. For this reason, I do not believe that a variation in spousal support can be based on clause 11 of the 1999 order. The amount that Mr. Lynn was required to pay for spousal support following the 2000 order was based on the fact that the support is deducted from the disability benefit, and not the reverse.
57I turn now to the other three grounds upon which the parties rely in support of their argument that there has been a material change, starting with the ground alleged by Ms. LaRoche.
Mr. Lynn's Increased Income since the 1999 Order
58In her reply to the motion to change, Ms. LaRoche seeks to vary the 1999 order based on the fact that Mr. Lynn's income has increased since the order was made. There is no issue that a post-order increase in income on the part of the payor can amount to a material change in circumstances: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241. However, in my view, there are two reasons why Mr. Lynn's increased income does not amount to a material change in this case.
59The first reason relates to the delay in making the request. In L.M.P., the Supreme Court of Canada held that the conduct of the parties subsequent to a change in circumstances is a relevant factor in determining whether they considered the change to be material (at para. 39). Although Mr. Lynn's income was very likely steadily increasing over the years, as most long-term employees' incomes do, Ms. LaRoche has not asked to vary the 1999 order since her application was dismissed by Bolan J. in 2000. Indeed, Ms. LaRoche's present request was made only as a reaction to Mr. Lynn's request to vary. There is no indication that Ms. LaRoche would have made her request at all if it had not been for that of Mr. Lynn. This leads me to conclude that Ms. LaRoche did not view Mr. Lynn's increased income as being material.
60The second reason why Mr. Lynn's increased income is not sufficient to justify a variation is because I have insufficient information as to the amount of that increase. While I accept that Mr. Lynn's income must have gone up over time, I have no information about the amount of income on which either the 1999 or the 2000 orders were made. Therefore, as a basis for finding a material change, this ground must fail.
The Length of Time over which Ms. LaRoche has Received Support
61On Mr. Lynn's behalf, counsel submits that Ms. LaRoche's entitlement to support under the Guidelines has come to an end. He points out that the Guidelines provide a range for the duration of spousal support of between 6 and 12 years for a marriage of 12.5 years. Because Mr. Lynn has been paying support for far longer than that, he submits that Ms. LaRoche is no longer entitled to support. Unfortunately, however, the absence of any income information on which the earlier orders were made makes it difficult to determine with precision whether this is true.
62Although the Guidelines are advisory only and not binding, it is now well-established that they are the presumptive starting point, both for original support orders, and for variations: Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337 at para. 43; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 81 and 105-106; McKinnon v. McKinnon, 2018 ONCA 596, at para. 24. This is true even where the original order was made before the publication of the first version of the Guidelines in 2005, because the Guidelines represent a distillation of existing jurisprudence at the time that they were published: Guidelines, chap. 2; Fisher, para. 98; Choquette v. Choquette, 2019 ONCA 306, 25 R.F.L. (8th) 150, at para. 23.
63It has also been held that the end of Guideline eligibility for support may constitute a material change in circumstances, even where the original order was indefinite: Sharpe v. Sharpe, 2018 ONSC 3673; B.D.P. v. D.W.P., 2019 ONSC 949, at para. 71. As the authors of the Guidelines point out, "indefinite" support does not mean "infinite" support: Guidelines, chap. 13.8. It simply means that the duration is not specified. Support may be terminated when entitlement ceases: Hancock v. Rutherford, 2018 ONSC 556 (Div. Ct.), at para. 9.
64However, the maximum duration set out in the Guidelines is not a hard ceiling. As Professors Rogerson and Thompson make clear in chapter 12 of the Guidelines and in the corresponding chapter in the 2016 Revised User's Guide, in certain cases, including cases involving a disabled spouse, the court may have to consider "restructuring" the Guidelines suggestion. Restructuring consists of determining the minimum and maximum total overall amounts for support that would be payable using the Guidelines and then, if appropriate, adjusting the quantum, the duration, or both, outside of the Guidelines limits, but in such a way that the total amount of support paid over the duration falls within the minimum and maximum overall values. Thus, in some cases, the duration of support may exceed what the Guidelines suggest without exceeding the overall amount of support called for by the Guidelines: Sharpe, at para. 66.
65Because I have no information as to the incomes on which the earlier orders were made, I cannot determine with certainty whether the overall support that Mr. Lynn has paid to date is more than the maximum overall amount that he would have paid under the Guidelines at the time of separation. The best that I can do is to estimate.
66Mr. Lynn has submitted a Guidelines calculation using DivorceMate that shows the range of monthly support payable based on Mr. Lynn's 2018 income, using the parties' ages at separation. It shows that the support would range from a low of $1,035 per month to a high of $1,380 per month. Using these figures and the Guidelines range for duration of six to 12 years for a marriage of 12.5 years, the total minimum payable would be $74,520 and the total maximum payable would be $198,720.
67By my calculation, Mr. Lynn has paid total spousal support since January 1, 1999 in the amount of approximately $169,000. Thus, Mr. Lynn has paid only about $30,000 less than the maximum payable based on his 2018 income of $83,000. As I have said, I am prepared to accept that Mr. Lynn's income has increased over the years, even if I am unable to determine the exact amount. It seems likely that Mr. Lynn's income was significantly lower at the time the 1999 order was made. Therefore, it also seems likely that Mr. Lynn has paid more than the maximum overall amount suggested by the Guidelines. However, without knowing the extent to which that is true, I am reluctant to conclude that this constitutes a material change in circumstances, at least as it relates to quantum.
68Nonetheless, as I will elaborate upon below, I am prepared to accept that Mr. Lynn should not be required to continue paying spousal support given the length of time over which he has paid it.
Mr. Lynn's Eligibility for Retirement
69Mr. Lynn also argues that his eligibility for retirement constitutes a material change in circumstances. With this submission, I agree.
70It is well-settled that the retirement of the payor may constitute a material change in circumstances and justify a variation in spousal support, notwithstanding that the payor's retirement is a foreseeable event: Schulstad v. Schulstad, 2017 ONCA 95, 91 R.F.L. (7th) 84.
71Generally speaking, courts will be reluctant to vary a spousal support order on the basis of the payor's retirement in long marriages (20 years or more), where the payor is retiring early, where support has been paid for less than the length of the marriage, or where the payor is retiring to avoid paying spousal support: Bullock v. Bullock, 2004 CanLII 16949 (ON SC); Cossette v. Cossette, 2015 ONSC 2678 (Div. Ct.); Hickey v. Princ, 2015 ONSC 5596, 127 O.R. (3d) 356 (Div. Ct.).
72None of these things are true here. This was a marriage of medium length. Mr. Lynn is 60 years old and has been employed in the same physical field for 42 years. There is no issue that Mr. Lynn was eligible to retire in June, nor is there any evidence that he is retiring to avoid paying spousal support; he has been paying support for 19 years since the 2000 order.
73With respect to Mr. Lynn's retirement, the more difficult question is not whether it may constitute a material change in circumstances, but whether it justifies a termination of the spousal support payable under the order. I turn to that question now.
Issue 3: What Should the Variation Be?
74Section 17 of the Divorce Act not only governs when a spousal support order may be varied, but also sets out the goals to be achieved by any variation. The relevant sections read:
(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.
(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.
75To determine what variation, if any, should be made, the court must consider the objectives set out in s. 17(7): L.M.P., at paras. 47-48.
Section 17(7)(a)
76Section 17(7)(a) requires the court to recognize any economic advantages or disadvantages to the former spouses “arising from the marriage or its breakdown”. This section recognizes that support may be payable on a compensatory basis: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 878; Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at para. 41. Courts will be reluctant to reduce the amount of support even when the payor's income has decreased where there is a strong compensatory basis for the recipient's claim and where the payor continues to have the means to pay support: Shulstad, at paras. 53-55; Volcko v. Volcko, 2019 NSSC 203.
77Again, that is not this case. The evidence before me leads to the conclusion that the parties agreed to support mainly on a non-compensatory (needs) basis, rather than on a compensatory basis. Clause 10 of the order, based on minutes of settlement, provides that the issue of spousal support will be subject to review in two years. This clause demonstrates that the parties did not intend that Mr. Lynn’s obligations would be indefinite. Although I have found that clause 11 of the 1999 order is not sufficient to justify a variation of the order, it is relevant as additional evidence showing that Ms. LaRoche's claim for support was needs based, rather than compensatory. Otherwise, it would not likely be reduced by the amount of disability income received.
78Bolan J.'s comment about Ms. LaRoche's young age and future employability lead me to conclude that his 2000 order was also based on her needs. This is borne out by the evidence before me. Although Ms. LaRoche did move with Mr. Lynn to North Bay for the purposes of his employment, her own employment was impacted more by her failing mental health than by the requirements of Mr. Lynn's job. She was hospitalized for the first time while the parties were still living in Timmins and was later hospitalized many times in North Bay.
79During cross-examination, Ms. LaRoche testified that her disability was caused by her marriage. I am unable to accept that. It is unsupported by any other sworn evidence. It is also unsupported by the unsworn medical records that Ms. LaRoche has attached to her affidavit. Those records make reference to many potential causes for the onset of Ms. LaRoche's mental health problems which occurred shortly after the birth of her son, including childhood molestation.
Section 17(7)(b)
80Section 17(7)(b) requires the court to apportion any financial consequences arising from the care of a child of the marriage over and above any obligation for the support of the child. Support based on s. 17(7)(b) is also compensatory: Moge, at p. 878.
81Neither side argues that this ground is relevant to this case. However, it is worth pointing out that, through no fault of her own, Ms. LaRoche spent a considerable period of time in the hospital while her son was young.
82Based on the foregoing, I conclude that the 1999 and 2000 support orders were based mainly on needs, and were not significantly compensatory.
Section 17(7)(c)
83Section 17(7)(c) requires the court to relieve any economic hardship of the former spouses arising from the breakdown of the marriage. This section provides for non-compensatory support: Moge, at pp. 878-79.
84On behalf of Ms. LaRoche, Mr. Rutland submits that his client is still in need of support. This fact is conceded by Mr. Lynn. However, need is but one factor. As the authors of the Guidelines point out, the fact that need may continue once entitlement is at an end does not mean that the goals of spousal support have not been fulfilled: Guidelines, chap. 4. As I am attempting to do, the court must also consider the other factors set out in s. 17(7): Bracklow, at para. 53.
Section 17(7)(d)
85Section 17(7)(d) requires the court to make support orders that promote the principle of self-sufficiency, where possible.
86Although he did not press the issue in his submissions, on behalf of Mr. Lynn, Mr. Abbott cross-examined Ms. LaRoche thoroughly on her failure to seek appropriate employment post-separation. He highlighted the sixteen-year gap between the date of the last of the medical records she filed and Dr. Achiume’s January 8, 2019 report. He also highlighted Dr. Achiume’s statement that Ms. LaRoche’s illness “had stabilized to some degree and admissions to hospital have decreased in frequency and length of stay.”
87However, I do not believe that I need to determine whether Ms. LaRoche is capable of supporting herself because, even if she is not, I would terminate the spousal support order.
88As the Guideline authors point out, cases like this one involving a potentially disabled recipient spouse constitute "hard" cases. Counsel for both parties took me to chapter 12.4 of the 2008 Guidelines, where the authors write:
Faced with a recipient with a long-term disability, Canadian courts have responded with one of three approaches, here stated in declining order of frequency.
Lower Amount, Extend Duration: most courts will extend duration, even to be "indefinite", while keeping the amount within the range, at or near the low end;
No Exception: a slightly smaller number of courts will fix an amount in the range, often towards the upper end, and use the maximum duration, even though that means support will end while need continues;
Increase Amount, Extend Duration: a much smaller group of courts will respond to the greater need in disability cases by increasing amount and extending duration. [Emphasis in original.]
89Counsel for Ms. LaRoche urged me to extend the duration of the support based on this excerpt. In support of his argument, counsel submitted a DivorceMate calculation showing a range of $1,171 to $1,561, payable indefinitely under the Guidelines. This calculation is flawed, however.
90While the calculation correctly sets out the length of the marriage at 12.5 years, it is based on Ms. LaRoche being 55 as at the date of separation. Therefore, it engages the "rule of 65" referred to in chapter 7.5.3 of the Guidelines:
The without child support formula provides that indefinite (duration not specified) support will be available even in cases where the marriage is shorter than 20 years if the years of marriage plus the age of the support recipient at the time of separation equals or exceeds 65. In a shorthand expression, we described this as the "rule of 65".
Thus, if a 10 year marriage ends when the recipient is 55, indefinite (duration not specified) support will be available because years of marriage (10) plus age (55) equals 65. Note that this is only a "rule" about duration, as the amount of support would be limited by the length of the marriage, i.e. 1.5 to 2 per cent per year or 15 to 20 per cent of the gross income difference in a 10-year marriage.
In reality, given the ages of the parties in the cases covered by the rule of 65, there will likely be significant changes in the amount of support ordered upon the retirement of one or both of the spouses. This refinement to the formula for duration is intended to respond to the situation of older spouses who were economically dependent during a medium length marriage and who may have difficulty becoming self-sufficient given their age.
The "rule of 65" for indefinite (duration not specified) support is not available in short marriages (under 5 years in length). The assumption in the current law is that short marriages generate only limited support obligations. [Emphasis in original.]
91She was 33 and the parties had only been married 12.5 years. The rule of 65 was not engaged at the time of the separation. Because of this flaw, the DivorceMate calculation cannot be used to support Ms. LaRoche's argument that she should receive support indefinitely.
92In both the Guidelines and the 2016 Revised User’s Guide, the authors express the view that the “no exception” approach referred to above is the one most consistent with the modern limits of spousal support: chap. 12. I agree with this view, at least in this case. Our Court of Appeal has held on numerous occasions that the Guidelines should not be departed from lightly: Slongo, at para. 105; McKinnon, at para. 24. I can see no adequate reason to depart from them here.
93As I have already pointed out in dealing with Mr. Lynn's retirement as a material change, this was a medium-length marriage, Mr. Lynn is not retiring at what I would call a young age, he is not retiring earlier than he might otherwise, he has worked for 42 years in a physical field, and he is not retiring to avoid paying support.
94Further, I do not believe that this is a case where the support should continue at a reduced rate. Although I cannot be sure that Mr. Lynn has paid more than the overall maximum amount of support he would have been required to pay under the Guidelines for the reasons expressed above, I can be sure that he has at least come very close.
95More importantly, in my view, regardless of overall quantum, Mr. Lynn has been paying support for much longer than the Guidelines would suggest. After 20 years, I believe that, if Ms. LaRoche is, indeed, unable to work because of her disability, it is time that she relied on the public assistance that is clearly available to her, rather than on Mr. Lynn.
CONCLUSION
96Mr. Lynn's eligibility to retire at age 60 after working for so long constitutes a change in circumstances material enough to justify varying the 1999 order.
97Given that he has been paying support for much longer than the Guidelines would suggest, and given that, even at the present rate, the support he would pay does nothing but reimburse the Ministry, the 1999 order should be terminated.
98An order shall issue terminating the support payable to Ms. LaRoche under the 1999 and 2000 orders.
COSTS
99If the parties are unable to agree on the issue of costs, they may make written submissions, limited to five typewritten pages, excluding attachments, as follows:
(a) on behalf of Mr. Lynn, within 20 days of the release of these reasons; and
(b) on behalf of Ms. LaRoche, within 20 days of the receipt of Mr. Lynn's submissions.
Ellies R.S.J.
Released: December 5, 2019
