COURT FILE NO.: FD871/08-01

DATE: 2019/02/07

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

B.D.P.

D. Winninger, for the applicant

Applicant

• and -

D.W.P.

M. Villeneuve, for the respondent

Respondent

HEARD: November 21, 22, 23 and December 19, 2018

MITCHELL J.

REASONS FOR JUDGMENT

Overview

[1] This is a motion to change the terms of the final order of Mitrow J. made May 3, 2012 (the “Final Order”). Specifically, the applicant, B.D.P. (“B.D.P.”) seeks to increase spousal support from $700 per month to $1660 per month commencing December 1, 2018 and to continue the payment of spousal support indefinitely. She also seeks to terminate child support.

[2] In response, the respondent, D.W.P. (“D.W.P.”), seeks to terminate spousal support effective October 1, 2018. D.W.P. does not oppose the termination of child support.

Background

[3] B.D.P. is 51 years age and D.W.P. is 56 years of age. The parties began living together in March 1996 and were married on August 31, 1996. They separated on April 8, 2008. Their marriage survived 11 years and eight months. A divorce order issued on July 15, 2010.

[4] The parties’ union produced 2 children both of whom were dependent at the time of the Final Order – P. (“P.”) born […], 1997 and J. born […], 1999. At the date of this motion to change, P. and J. were 21 and 19 years of age, respectively.

[5] Following separation, B.D.P. remained single. D.W.P. remarried; however, that marriage ended. D.W.P. is presently in a new relationship and resides with his partner.

The Final Order

[6] Pursuant to the terms of the Final Order:

(a) D.W.P. and B.D.P. were awarded joint custody of P. and J. (the “children”) with the children having their primary residence with D.W.P.;

(b) D.W.P. was ordered to pay spousal support to B.D.P. of $700 per month commencing January 1, 2012 and to pay child support and spousal support arrears to B.D.P. for the period from the date of separation to the end of 2011 fixed in the amount of $4000. Arrears were payable in semi-annual payments of $1000 each commencing June 1, 2012;

(c) B.D.P. was ordered to pay D.W.P. the sum of $195 per month for the support of the children commencing January 1, 2012 based on imputed income of $15,000 per annum;

(d) Child support was netted against spousal support resulting in a net payment to B.D.P. of $505 monthly.

(e) The support arrears owing by D.W.P. were calculated on the basis of D.W.P. receiving a credit towards the arrears based on his assumption of a GMAC debt of $12,800. If D.W.P. failed to pay this debt in full by December 31, 2015 any balance outstanding was to be paid to B.D.P. as additional support arrears;

(f) For so long as spousal support was payable, B.D.P. was required to advise D.W.P. immediately in writing and provide him with supporting documents on the occurrence of any of the following:

1. B.D.P. obtained any employment;

2. B.D.P. received the decision regarding her application for CPP disability and ODSP; and/or

3. B.D.P. received any further medical diagnosis in relation to her ability to work, in which case B.D.P. was to obtain and provide to D.W.P. at her expense a copy of the medical report from her treating physician verifying the diagnosis.

(g) For so long as spousal support was payable and at D.W.P.’s request, but not more than once in any calendar year, B.D.P. was to provide to D.W.P. at his expense a medical report from her treating physician confirming whether B.D.P. had any medical conditions which affected her ability to work.

(h) For so long as support was payable, D.W.P. and B.D.P. were to provide to each other by May 15th of each year a copy of their respective T1 General Income Tax Return together with all slips and schedules for the immediately preceding calendar year commencing in 2012 and each party was to provide to the other their Notice of Assessment or Notice of Reassessment, if any, for the calendar year immediately upon receipt.

Positions of the Parties

[7] B.D.P. issued this motion to change on May 10, 2017. B.D.P. submits there has been a material change in her needs, means and circumstances justifying a significant increase in spousal support including that:

(a) D.W.P. is no longer supporting the children as they are both now independent;

(b) D.W.P. earns substantially more income than was assessed at the time of the Final Order; and

(c) B.D.P. was determined to be incapable of working and eligible to receive ODSP benefits effective July 23, 2014.

[8] D.W.P. opposes any increase in spousal support and, instead, seeks an order terminating his obligation to pay spousal support. He submits that the length of time he has paid spousal support and the quantum of supposal support paid since the date of separation brings an end to entitlement which constitutes a material change in circumstances justifying termination of his spousal support obligation.

Evidence

[9] The respondent’s request to admit dated October 24, 2018 and request to admit dated October 26, 2018[^1] were filed on consent of the parties as evidence on the motion. Their contents are admitted facts. Both parties testified. An exhibit brief containing 11 documents was filed on consent. Various medical documents were filed and admitted as evidence on the basis of their authenticity but not for the truth of their contents.

(a) Payment of Spousal Support

[10] In accordance with the terms of the Final Order, D.W.P. has made all monthly payments and paid all arrears of child and spousal support to B.D.P. in accordance with the terms of the Final Order. In addition, D.W.P. paid the GMAC loan, in full in February 2013. D.W.P.’s monthly spousal support payment was increased to $603 when P. moved out of D.W.P.’s home. D.W.P.’s monthly spousal support payment increased to $700 in September 2017 after J. turned 18 and began working full-time.

[11] In these proceedings, an interim without prejudice order was made by Justice McArthur on May 9, 2018 increasing D.W.P.’s monthly support obligation from $700 to $1100 commencing June 1, 2018.

(b) Compliance with Disclosure Provisions of the Final Order

[12] Despite the requirement in the Final Order to provide updated income information on an annual basis to B.D.P., D.W.P. did not do so. Until this motion to change was filed, B.D.P. had not requested updated income information from D.W.P.. D.W.P. did not take the initiative to increase his spousal support payments when P. and J. became independent. It was only when he was notified by the Family Responsibility Office (“FRO”), that D.W.P. adjusted the amounts he paid to B.D.P..

[13] D.W.P. testified that at no time did B.D.P. advise him of her employment status. He says he heard second-hand that she had been approved for ODSP. Furthermore, B.D.P. did not advise D.W.P. of any further medical diagnosis. D.W.P. did not request any information regarding changes in B.D.P.’s medical conditions affecting her ability to work and B.D.P. did not provide this information to D.W.P.. D.W.P. explained that he did not provide annual income tax information as required by the Final Order because he believed his wages had not materially increased beyond the standard increase for cost of living. During cross-examination, D.W.P. admitted he should have been diligent and contacted FRO in May 2016 when P. moved out and again in July 2017 when J. moved out, to advise that he was no longer entitled to child support.

[14] It is clear on the evidence that neither party complied with their respective obligation to disclose information to the other party as provided for in the Final Order. In the 6 and ½ years since the Final Order was made, the children have become independent. The children are able to communicate directly with both parties any important events and developments in their lives and have been able to do so for many years. The parties’ respective income and medical information was not exchanged nor was it requested. Both parties were content with the status quo. Neither party brought a motion for contempt for the other party’s failure to abide by the terms of the Final Order. It served the interests of B.D.P. not to disclose the outcome of the first and second ODSP applications to D.W.P. because they were not favourable to her. It served D.W.P.’s interests not to disclose his income information because his income increased since the Final Order.

[15] I find there has been mutual noncompliance with the disclosure provisions of the Final Order. However, compliance with the non-monetary terms of the Final Order has no bearing on the issues before the court on this motion to change.

(c) Financial position of the parties

(i) D.W.P.

[16] D.W.P. is employed as an electrician. In 2017, D.W.P.’s income was $82,906. Based on his year to date income, D.W.P. estimates his income in 2018 to be $81,507. D.W.P.’s income in 2014 was $79,452, in 2015 was $77,418 and in 2016 was $79,062.

[17] In his financial statement sworn September 26, 2018, D.W.P. estimated his monthly expenses to be $5239.95. With respect to his outstanding debts, D.W.P. admitted that he does not make payments on either P.’s student loan or his former spouse’s vehicle loan which he listed in his financial statement as debts. He is a co-signor of these loans and does not have the primary obligation to repay these loans. To the best of his knowledge, neither of these loans is in default. D.W.P.’s common-law spouse earns $30,000 per annum and she contributes $1700 per month to household expenses. D.W.P. testified that his common-law spouse owns the house in which they reside and he pays rent to her in the amount of $1200 per month.

(ii) B.D.P.

[18] In 2017 B.D.P. received $10,072.15 in ODSP support payments. At the time of the motion, B.D.P. was receiving $1210.60 per month in ODSP benefits. Extrapolated for a 12 month period, B.D.P.’s income for 2018 and onward is $14,527. B.D.P. also receives a monthly HST tax credit of $43.

[19] In November 2015 B.D.P. received an OSAP loan in the amount of $8000. She returned to Ontario after spending two months at college in Nova Scotia. B.D.P. did not return any portion of the loan to the Government instead using it to satisfy expenses. She remains obligated to repay the full amount of this loan.

[20] Following a motor vehicle accident on August 31, 2017, B.D.P. retained a lawyer and commenced a tort claim for damages she alleges were suffered in the accident. In that action B.D.P. claims damages for a spinal injury suffered in the accident. B.D.P. applied for and obtained a lump sum loan from Bridgepoint Financial Services Inc. on November 21, 2017. Net of administrative fees associated with the loan, B.D.P. received $10,200. The loan was secured against the proceeds of the litigation. The loan has not been repaid and accrues interest at the rate of 18% per annum.

[21] B.D.P. produced her CIBC bank statements for the period November 21, 2017 through November 21, 2018. The bank statements were filed in an effort to comply with the court order made November 13, 2018 requiring B.D.P. to produce documents relating to the Bridgepoint Financing and evidencing the “manner in which [the] loan amount was utilized and the amount of any balance remaining.”

[22] The bank statements produced by B.D.P. were significantly filtered. The statements reflect only debits to the account made through Internet banking. The bank statements do not reflect any credits to the account, including the initial Bridgepoint loan deposit of $10,200 and B.D.P.’s monthly ODSP payments. The remaining negative balance in the account as at November 21, 2018 was -$98.56. Aside from 3 larger debt repayments totaling $4,212 (all debited from the account on November 23, 2017) and B.D.P.’s testimony that she gave each of P. and J. $200 for Christmas, a proper accounting of the remaining loan proceeds totaling approximately $6000 was not provided to the Court. B.D.P. claims the balance of the loan proceeds were exhausted trying to meet her monthly expenses.

[23] B.D.P. received $1522.60 on February 21, 2017 and $2277.54 on February 21, 2017 representing pension payments from her prior employment with the hospital. She says these amounts have been similarly exhausted for various expenses including costs related to living in Nova Scotia (despite B.D.P. returning to Ontario more than a year prior), the purchase of used tires, and rent arrears repayment to Salvation Army, among others. Although she was permitted to roll these amounts into an RRSP for retirement, she claims she was struggling financially and needed the money to pay expenses.

[24] B.D.P. testified that she lives like “a hermit” and rarely ventures outside due to her physical and emotional limitations. Despite this evidence and her financial position, on August 31, 2018 (3 months before the motion) B.D.P. purchased a 2015 Nissan Sentra motor vehicle for $14,988. Purchase documentation ordered to be produced by the court reveals that B.D.P. obtained financing for the entire[^2] purchase price of the vehicle. The total cost of financing the vehicle is $24,657 and is repayable over 6 years in bi-weekly payments of $158.06 each or approximately $320 per month.

[25] At first, B.D.P. testified that she did not borrow any money to purchase the vehicle and paid for the vehicle using monies reimbursed to her for child support over-payments. After production of the purchase documentation, B.D.P. changed her evidence and explained that she is servicing this debt from “lump sum retroactive FRO payments received in August and October 2018”. Based on this evidence it is unclear the reason why the August 2018 payment was not used as a down-payment for the purchase of the vehicle.

[26] B.D.P. says she received a Government bond which she is unable to utilize for a period of 10 years (age 59 years). She further testified that she was assessed and must repay all child tax credits applied for and received during the years D.W.P. had primary residence of the children totaling $12,000. She says the full amount is outstanding; however, no collection steps have been taken to date.

[27] An updated financial statement dated November 13, 2018 filed by B.D.P. on the motion is incorrect in many respects. Some examples of information admitted by B.D.P. to be incorrect are:

(a) her monthly grocery expense is $40 not $400 as indicated in the financial statement;

(b) she receives a monthly HST credit of $43 which she did not report as income;

(c) her total monthly expenses for utilities, household, health and personal expenses are not as indicated in her statement rather are estimates reflecting her acceptable standard of living not her current standard of living;

(d) her monthly car loan payment is $320 per month not $158 as indicated bringing her total monthly transportation costs for gas, insurance and license, repairs and maintenance, parking and car loan payments to $654; and

(e) her car loan is not listed as a debt.

(d) B.D.P.’s current medical conditions and ability to work

[28] At the date of separation, B.D.P. was self-employed conducting insurance medicals. The trial judge found that B.D.P. had an income of $26,500 in 2008. At the time of trial (November, 2011) more than 3 years following separation, B.D.P. was receiving Ontario Works benefits in the amount of $1132 per month. The trial judge found that B.D.P. had been conducting insurance medicals until March 2011. Despite that factual finding, on the motion B.D.P. testified she stopped conducting insurance medicals in 2010.

[29] The trial judge concluded there was no evidence given during the trial as to any precipitating event in March of 2011 that resulted in B.D.P.’s symptoms causing her to be unable to work. The trial judge found that a report of B.D.P.’s former family physician, Dr. Ellyatt, related only to B.D.P.’s inability to work for a two-month period in 2011 and was provisional in nature.

[30] The trial judge held[^3]:

While B.D.P. does have some medical symptoms as confirmed by Dr. Ellyatt’s reports, which I accept, the evidence at best supports only a finding at this time that B.D.P. has some impairment in doing certain tasks as set out in the “Limitations to Participation” report and a provisional diagnosis of sciatica subject to a more definitive diagnosis when the MRI results are available. The medical evidence does not support that B.D.P. is disabled and unable to work at all but rather that B.D.P. had limitations in what she can do given the current diagnosis.

[31] The trial judge went on to find that B.D.P.’s discomfort did not meet a full disability requirement.

[32] It should be noted that the trial judge was critical of B.D.P.’s testimony and her credibility. The trial judge described B.D.P.’s evidence as to her inability to work as “unreliable” and he ascribed minimal weight to B.D.P.’s evidence unless corroborated by medical evidence. In the result, the trial judge was unable to conclude that B.D.P. was unable to work. Instead, the trial judge found that B.D.P.’s employment history and the evidence as to her earnings history made clear that B.D.P. was able to obtain and retain gainful employment. He went on to find that B.D.P. had been intentionally unemployed and imputed income of $15,000 on the basis of part-time employment.

[33] During the trial, B.D.P.’s family physician, Dr. Ellyatt retired. She has been under the care of Dr. Salim Quraishi since July 2012.

[34] B.D.P. has three college degrees - police services, business and marketing management and medical lab technician. All of her education was acquired prior to separation. After the Final Order, B.D.P. continued to work on a part-time basis as a hospital lab technician until January 2015. B.D.P. testified that she has been unable to work since that time due to her back pain, chronic depression and PTSD. She testified that she was diagnosed with chronic depression about that same time (January 2015).

[35] Following breast reduction surgery in 2015 B.D.P. exhausted her employment insurance and sick benefits. She applied for disability OSAP and received funding for a full-time educational program. She was accepted into a lab technician program at Nova Scotia Community College in Halifax and attended from November 2015 until January 2016. She did not complete the program claiming her PTSD prevented her from sleeping and she found it difficult to focus and retain information. Upon returning to Ontario, B.D.P. resided with her parents for a period of 6 months before moving into an apartment of her own in the summer of 2016.

[36] B.D.P.’s original application for CPP disability and ODSP benefits filed in 2010 were both denied following the Final Order. B.D.P. did not appeal that decision. B.D.P. filed a second application for ODSP benefits in 2012. That application was similarly denied. B.D.P. also did not appeal that decision. A third ODSP application was filed on July 23, 2014 which was denied on December 1, 2014 and again denied on August 25, 2015. The third ODSP application was ultimately approved on June 16, 2016 following an appeal. Upon approval, B.D.P.’s date of qualification for support through ODSP was determined to be retroactive to July 23, 2014, the date of filing.

[37] In an affidavit sworn August 16, 2017, B.D.P. deposed that her mental and physical impairments began in 2010 - two years after separation. B.D.P. claims that she was sexually assaulted and held hostage overnight in her home by a former boyfriend at some point during the course of the trial in 2011. In 2015 B.D.P.’s underwent breast reduction surgery in an attempt to relieve her persistent headaches and back aches. She suffered complications from the surgery and had further surgery in 2018 to address those issues. B.D.P. was involved in two motor vehicle accidents post-separation - a motor vehicle accident in February 2010 and a further motor vehicle accident on August 31, 2017. B.D.P. testified that she suffered “high-speed blunt force trauma from the impact” of the 2017 motor vehicle accident.

[38] B.D.P. testified that she cries “all the time”, has nightmares and trouble sleeping. She suffers from panic attacks and cannot maintain a work schedule. She struggles with fatigue and anxiety. She cannot sit for long periods of time. She cannot manage her emotions when in public and has difficulty remembering things. She is unable to socialize, does not answer the phone and is upset by the smallest of stressors. B.D.P. testified that she has been suffering from chronic depression since 2004.

[39] B.D.P. testified that she has been clinically diagnosed with depression and PTSD although her psychiatry records were not produced on the motion. She testified that PTSD may have been caused by the breakdown of the marriage, constantly fighting with D.W.P. over the kids, the motor vehicle accident in August 2017 and/or the sexual assault. Curiously, during the trial in November 2011 B.D.P. did not claim to be suffering from PTSD.

[40] B.D.P. sees a psychologist, Jennifer Skarscaden, to help her deal with her PTSD and depression. She saw Dr. Kumar, a psychiatrist, in 2014. Neither Dr. Skarscaden nor Dr. Kumar were called as witnesses on the motion. A formal psychiatric diagnosis of major depressive disorder and PTSD was not produced on the motion.

[41] B.D.P. says she takes a number of medications including thyroid medication, migraine medication and medication for her muscle pain, PTSD and depression.

[42] Following the motor vehicle accident in August 2017, B.D.P. attended a total of 51 occupational therapy and physiotherapy sessions at CBI Health Center. B.D.P.’s motor vehicle insurer covers $65,000 of her treatment costs. A tort action was commenced against the driver of the vehicle involved in the motor vehicle accident. B.D.P. has made a claim for a significant amount of damages. This action remains outstanding. B.D.P. admitted that should she recover any damages D.W.P. will not share in any damage award or settlement amount nor will he be repaid any spousal support.

[43] With respect to her present medical conditions, B.D.P. relied on the following documentation to support her claims on this motion:

(a) The report of Dr. Ellyatt dated July 15, 2011 (also before the trial judge) which provides, in part:

An MRI has been ordered, but a scheduled time for completion has not yet been received from the hospital. The application for Ontario Works will likely be approved, but I do not expect that the disability application will move forward as her discomfort does not yet meet a full disability requirement. Once the MRI results are available there will be a more definitive diagnosis, but a (sic) the current time I suspect the radiating low back, hip and leg pain (left side) to be a sciatica. Treatment will be anti-inflammatory medications as already prescribed.

(b) A CT scan of B.D.P.’s spine conducted on February 11, 2014 reported a “degenerative change in B.D.P.’s right apophshyseal joint L4-L5” and no abnormality of the L3-L4 and L5-S1 joints.

(c) On September 9, 2014, B.D.P. was prescribed Furosemide to reduce swelling and lower blood pressure. On that same date, B.D.P. was prescribed Baclofen, a muscle relaxant.

(d) The progress note of Dr. Olanrewaju Okusanya with the Chronic Pain Institute dated September 11, 2014 makes reference to an attendance by B.D.P. 4 weeks prior although the report of that attendance was not filed as evidence on the motion. The progress note indicates that no diagnostic studies were conducted. References are made to B.D.P.’s self-reporting of her then current symptoms, her level of pain and her chief complaints and the manner in which she believes they interfered with and compromised her quality of life at that time. Dr. Okusanya referred B.D.P. for an EMG. Assuming the EMG was conducted, the results of the EMG were not produced.

(e) A medical note of Dr. Kumar dated October 9, 2014 referred to problems at work relating to allegations of B.D.P. receiving inappropriate sexually explicit messages. Dr. Kumar indicates that B.D.P. was also reporting pain in her hand. He noted that B.D.P. was shifting in her chair and exhibiting a lot of pain behaviour. He prescribed medication.

(f) A Disability Verification Form was completed by Dr. Quraishi on September 30, 2015 in support of B.D.P.’s application for OSAP funding to attend college. Dr. Quraishi describes B.D.P.’s disability as chronic mechanical neck and back pain. A mental health disability is not noted. Chronic migraines are not noted.

(g) On May 11, 2017 B.D.P. attended a medical clinic complaining of heavy arms, pain in her left ear and periodic palpitations. She was referred to the ER for cardiac pathology to determine whether her symptoms were indicative of a cardiac-related issue or were neuropathic in nature. B.D.P. did not follow through on the referral for assessment.

(h) An abdominal ultrasound conducted on August 22, 2017 reported that B.D.P.’s gallbladder, spleen, bile duct and kidneys were normal with some issues noted in her liver and pancreas although there were no abnormalities in her liver or her pancreas.

(i) An MR Spine Lumbar was conducted on October 6, 2017 a little over a month following the motor vehicle accident on August 31, 2017. The results indicated:

Annular fissures at the L4 and L5 discs. There is no spinal canal stenosis at these levels though annular fissures themselves are a potential source of back pain. A hollow disc bulge at L4-5 results in moderate right neural foraminal stenosis with abutment of the exiting right L4 nerve root. There is no impingement at this or other levels.

There was no reference to any severe or significant impairment of B.D.P.’ spine.

(j) B.D.P.’s family physician, Dr. Quraishi issued a single page report dated November 14, 2018 addressed to B.D.P.’s legal counsel. It states:

his medical report is being sent as urgent as you requested in your letter dated November 14, 2018.

You are already aware that your client has been totally disabled to work since August 1, 2014 with the following conditions:

• Chronic major depression

• Post-Traumatic Stress Disorder

• Chronic severe mechanical back and neck pains

• Chronic pain in arms and hands

Since the motor vehicle accident of August 31, 2017 these conditions have become exacerbated. She attends a social therapist, physiotherapist and chiropractor. She takes pain and nerve pills as needed.

She remains permanently disabled to do any kind of work.

I trust this report will assist you in pursuing your client’s case.

(k) A form completed by Dr. Quraishi dated November 6, 2018 in support of B.D.P.’s application for the disability tax credit did not contain examples specific to B.D.P. as directed by Canada Revenue Agency be provided. Minimal information was provided with respect to the significant restrictions on B.D.P.’s ability to perform basic activities of daily living in the areas of walking, dressing and mental functions necessary for everyday life.

(e) Child support

[44] P. turned 18 years of age on June 21, 2015 and J. turned 18 years of age on July 16, 2017. Following the Final Order, the primary residence of P. and J. has been with D.W.P..

[45] On the motion, B.D.P. refused to admit that P. moved out of D.W.P.’s home in May of 2016. She claims that P. moved out of D.W.P.’s residence during the summer of 2015 and shortly after she turned 18 years of age. B.D.P. claims she received texts from P. while she was attending college in Nova Scotia which corroborate her recollection of where P. was residing that the time. These text messages were not produced on the motion. B.D.P. testified that she and P. no longer communicate and have not for some time. P. has also refused any financial support from B.D.P..

[46] P. enrolled in the pre-health sciences program at Fanshawe College in September 2016 and completed the program in April 2017. In September 2017 P. began studies in the respiratory therapy program at Fanshawe College. This program is 3.5 years’ in length. As a result of receiving poor grades in the first year of the program, P. enrolled in July 2018 in an online upgrading course. She was expected to complete the upgrading course in November 2018 and to begin her second year in the respiratory therapy program in January 2019. She expects to graduate in the summer of 2021.

[47] P. received OSAP to finance her education and intends to continue to do so for the remaining years of the program. In the request to admit filed by D.W.P., it is an admitted fact on the motion that P. paid the tuition for the online upgrading course herself without D.W.P.’s assistance. It is an admitted fact that P. intends to return to school in January 2019 and reduce her employment to part time hours.

[48] P. is currently employed part-time at Tim Hortons in London where she works approximately 20 hours per week. For the four years prior to being employed at Tim Hortons, P. was employed part-time at a fast food restaurant in London working approximately 8 to 10 hours per week.

[49] On March 30, 2018 P. moved back into D.W.P.’s home when her relationship with her boyfriend ended. She continues to reside with D.W.P. and intends to do so until she completes her education. P. intends to reduce her hours to 8 to 10 hours per week when she returns to full-time studies.

[50] Until March or April 2017, J. lived with the respondent. In March or April 2017 J. began splitting her time between D.W.P.’s home and her boyfriend’s home. J. graduated from high school in June 2017 and turned 18 in July 2017. She did not pursue post-secondary education. Since graduating high school, J. has worked full-time and has not lived with D.W.P..

Analysis

(a) Legislative framework

[51] Section 17(4.1) of the Divorce Act[^4] provides that before making an order to vary the spousal support provisions of a final order, the court must be satisfied that there has been a material change in circumstances since the final order was made.

[52] Section 17(7) of the Act recognizes four objectives of the variation of spousal support, none of which is of greater importance or weight than any of the others. Section 17(7) provides:

(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. (emphasis added.)

(b) Issue #1: Has there been a material change in the means, needs or other circumstances of either B.D.P. or D.W.P. since the Final Order?

[53] A material change is one that would likely have resulted in different terms of an order if it were known at the time the order was made. Once this threshold has been met, the court is limited to making only such variation as is justified by that change.[^5]

[54] On this motion to change, the threshold issue to be answered is whether there has been a material change in circumstances. If there has been no material change, this court is without jurisdiction to vary the Final Order.

(i) Approval of ODSP application in June 2016

[55] The Final Order awarded spousal support at the high end of the range provided by the Federal Support Advisory Guidelines (“Guidelines”) using incomes of $72,000 for D.W.P. and $15,000 for B.D.P. ($547, $638 and $729). Spousal support was not time-limited.

[56] The trial judge noted in his reasons that just prior to trial B.D.P. had applied for CPP disability benefits and also for ODSP payments. The trial judge also noted that no MRI results were available nor were results available regarding the CPP and ODSP applications. He held that whether spousal support should be time-limited was a key issue and ultimately decided, based on a lack of reliable evidence at trial, that:

Having regard to the evidence in the present case, including the uncertainty as to B.D.P.’s final medical diagnosis, and considering the factors and objectives set out in ss. 15.2(4) and (6) of the Divorce Act, this is not an appropriate case for a time-limited order.[^6] (emphasis added)

[57] I infer from the above reasons that the trial judge left open the door to vary spousal support, at least with regards to duration, once B.D.P.’s final medical diagnosis was confirmed including a decision regarding her then-outstanding ODSP application.

[58] At first blush it would appear that the approval of B.D.P.’s third application for ODSP benefits constitutes a material change in circumstances justifying an increase in spousal support arising from the removal of her imputed income of $15,000 from the Guidelines’ calculation. B.D.P. submits that the approval of her ODSP application in 2016 is evidence that she is permanently disabled and therefore unable to work.

[59] The trial judge found that as of May 3, 2012 B.D.P. had the ability to work on a part-time basis. This finding of fact is one the court cannot revisit on this motion. I am not permitted to consider the evidence before the trial judge. I am bound to accept that, as of the date of the Final Order, B.D.P. was able to work part-time.

[60] B.D.P.’s first application for ODSP benefits outstanding at the time of trial was denied after the Final Order was made and B.D.P. did not appeal that decision. The MRI results were not produced on the motion. I infer from their absence that the MRI ordered by Dr. Ellyatt was not completed and, therefore, results do not exist.

[61] B.D.P. testified at length as to the extent and nature of her various medical conditions and the impact of these medical conditions on her daily activities and ability to work. As was acknowledged by the trial judge, I too find that B.D.P. does not possess the qualifications to assess and diagnose her own medical conditions. Furthermore, B.D.P. is not qualified to interpret the medical documentation presented to the court. When faced with medical and scientific evidence, the court requires the assistance of properly qualified experts to assist in understanding and interpreting this evidence. No experts (treating physicians or litigation experts) were called as witnesses to provide evidence relating to B.D.P.’s final medical diagnoses and the impact of any medical conditions on her ability to work.

[62] Dr. Quraishi’s curriculum vitae was not filed as evidence on the motion and he was not called as a witness and made available for cross-examination. His qualifications to diagnose the conditions listed in his November 14, 2018 report are not known. Dr. Quraishi’s report is conclusory. He provides no explanation to support his conclusion that B.D.P. “remains permanently disabled to do any kind of work” and appears to rely on a historical diagnosis, the origin and author of which are not known. Despite Dr. Quraishi’s statement that B.D.P. has been unable to work since summer of 2014, B.D.P. testified that she worked until January 2015. Moreover, the final sentence of Dr. Quraishi’s November 2018 report suggests that he has assumed the role of advocate for his patient. I have concerns with Dr. Quraishi’s objectivity and impartiality with respect to his assessment of B.D.P.’s medical conditions and her ability to work.

[63] To qualify for ODSP B.D.P. was not required to establish that her disabilities were permanent and severe. The correspondence from the Ministry of Community and Social Services dated June 16, 2016 describes her benefits as income support, not income replacement. B.D.P. is required to report to ODSP any earnings received. With respect to working while receiving ODSP income support, B.D.P. was advised by the Ministry that she can work while receiving income support and further that “ODSP employment supports can help you prepare for and find a job - even if you have never worked before or have been out of work for some time.” During cross-examination, B.D.P. agreed that she is able to work while receiving ODSP benefits.

[64] The decision of the Tribunal to pay ODSP benefits retroactive to the date of the third application does not establish that B.D.P. has a disability which prevented her from working from 2014 onward rather it establishes, only, that she has a disability which limits the type of work she can do. Furthermore, approval does not establish that B.D.P. suffers from a permanent disability. At its highest, the approval of the third ODSP application establishes that, as of June 3, 2016, B.D.P. was a “person with a disability” entitling her to receive ODSP benefits.

[65] I find that B.D.P.’s receipt of ODSP benefits is a form of income support. She is not precluded from working and she has not been diagnosed as being permanently disabled. No evidence of a diagnosis of a mental or physical disability precluding B.D.P. from working on a part time basis was produced. I find that B.D.P. remains able to work on a part-time basis. The trial judge arrived at this same conclusion. Therefore, despite the approval and acceptance of B.D.P.’s third ODSP application, there has been no material change in B.D.P.’s circumstances justifying a variation in the spousal support provisions of the Final Order.

[66] I should note that even had B.D.P. been successful in establishing that the approval of the third ODSP application was a material change in circumstances, there would be no basis for varying the Final Order because having regard to the objectives set forth in s. 17(7) of the Act any disability supporting the third ODSP application arose after the Final Order and is unrelated to the marriage or its breakdown.

(ii) Increase in D.W.P.’s Income since the Final Order

[67] D.W.P.’s income has increased since 2012 to its current level with no corresponding increase in payment of spousal support. Unlike child support, quantum of spousal support is not a direct function of the income of the payor. Instead, the Guidelines provide for a range based on a number of factors, including the payor’s income. After considering all of the evidence and the factors and objectives set forth in s. 15.2(4) and (6) of the Act, the trial judge awarded spousal support at the high end of the Guidelines’ range. Annual income disclosure was required to be exchanged by the parties; however, the Final Order did not provide for an automatic annual adjustment to spousal support relative to a change in D.W.P.’s income.

[68] Having regard to the amount of spousal support awarded under the Final Order (spousal support was awarded at the high end of the range) and mindful that the increases in D.W.P.’s income do not materially (or at all) increase B.D.P.’s net disposable income once spousal support is “clawed back” by ODSP, I find that the increase in D.W.P.’s income of approximately $10,000 over a period of 7 years does not constitute a material change in circumstances justifying a variation of the Final Order.

(iii) Passage of Time and Amount Paid

[69] D.W.P. wishes to get on with his life and believes that he has satisfied all obligations to B.D.P. arising from their marriage and its breakdown. He is content to forgo any claim for child support so long as his spousal support obligation is terminated.

[70] I will now consider whether the passage of time and the quantum of spousal support paid since the date of separation constitute a material change in circumstances which justifies terminating spousal support. D.W.P. submits that the end of B.D.P.’s entitlement to spousal support is a material change in the parties’ circumstances justifying the termination of spousal support.

[71] A significant passage of time giving rise to a question of whether the objectives of spousal support have been satisfied is a material change in circumstances.[^7] In particular, the end of entitlement, as reflected in the Guidelines, is a material change that may give rise to an order to vary spousal support.[^8]

[72] The authorities also clarify that an order for indefinite support does not mean permanent support. Moreover, an order for indefinite support does not mean that all support will continue indefinitely at the level set by the Guidelines.[^9]

[73] As earlier noted in these reasons, the trial judge recognized that in May 2012 B.D.P.’s entitlement to spousal support was both compensatory and non-compensatory (needs based) in nature. Calculations made under the Guidelines specific to the parties and their personal circumstances including, number of children, the parties’ ages and the length of the marriage established a duration of entitlement of 6 to 12 years from the date of separation and a quantum of spousal support ranging from a low of $547 to a high of $729 based on income for D.W.P. of $72,000 and imputed income for B.D.P. of $15,000. The trial judge awarded spousal support at the high-end of the range on an indefinite basis.

[74] Although the trial judge was unable to conclude that B.D.P. had a permanent disability (and specifically held she did not), he left open the possibility that the results of MRI testing and her ODSP application might establish a permanent disability and considered the issue of duration within this context.

[75] However, even in cases where one spouse is disabled as a result of illness or injury, the Guidelines should be followed. To deviate from the Guidelines is the exception not the rule. The authors of the Guidelines identified on an initial application for support, three approaches to illness and disability: (i) increase amount, extend duration; (ii) lower amount, extend duration; and (iii) no exception. The authors of the Guidelines support the third approach or the “no exception” approach, reasoning that this approach “seems more consistent with the modern limits of spousal support as a remedy”.[^10]

[76] The trial judge determined that an indefinite award of spousal support rather than a time-limited award was appropriate given the uncertainty of B.D.P.’s medical conditions, her contributions to the household and in particular the care of the children during the marriage and significant disadvantage suffered by B.D.P. on the breakdown of the marriage. In effect, the trial judge took the first approach by awarding spousal support at the high-end of the range for an indefinite period.

[77] I found the decision in Hale v. Hale[^11] helpful in ascertaining the intention of the trial judge regarding a review of his award of spousal support in favour of B.D.P.. In making a spousal support award, the trial judge in Hale assumed that the plaintiff was physically disabled to the extent that she could not earn income to contribute to her support and that because of her disability she would be entitled to receive a CPP disability benefit in a certain amount. The trial judge held that in the event the plaintiff was not entitled to receive the CPP disability benefit because she was not disabled the defendant was entitled to have the award of spousal support reviewed.

[78] Although the trial judge did not specifically provide for a right of review of the Final Order with regard to spousal support, it may be inferred that he intended D.W.P. to have a right of review once the outcome of the ODSP application and B.D.P.’s final medical diagnosis were known.

[79] Between the date of separation, April 8, 2008, and the hearing of this motion in November 2018 D.W.P. had made support payments for approximately 10 ½ years. Including the payments made toward the GMAC debt, D.W.P. has made all spousal support payments as required by the terms of the Final Order as increased from time to time. At the time of the motion, D.W.P. was paying to B.D.P. $1100 per month. To date, D.W.P. has paid to B.D.P., directly or indirectly, spousal support totaling approximately $78,900.

[80] I share the view of the motions judge in deJong to the effect that a payor spouse should not be precluded from bringing the matter back to court for reconsideration simply because there is no provision for a review included as a term of the final order.[^12] The evidence missing from the record at trial is now known - B.D.P. does not have a disability arising during the marriage or from its breakdown. Moreover, D.W.P. has paid spousal support faithfully in accordance with the terms of all court orders for greater than 10 ½ years.

[81] I find that having regard to the outcome of the first ODSP application, the passage of time (10 ½ years) and the quantum of spousal support paid since the date of separation, there has been a material change in circumstances.

(c) Issue #2: What variation order is appropriate in light of the material change in circumstances, if any?

[82] These changes in circumstances require that the court reconsider the issue of duration of spousal support.

[83] The Court of Appeal for Ontario recognized that the Guidelines are the presumptive starting point for awarding support such that any departure from them requires adequate explanation.[^13] The authors of the Guidelines, speak to the issue of duration as follows:

Duration is often forgotten in the [Guidelines] analysis. The formulas generate ranges for amount and duration. Amount cannot be considered alone. Duration is nothing more or less than the end of entitlement. When support stops, there may still be -- and usually is -- an income disparity between the spouses. [Emphasis in original.][^14]

[84] Without question, on the initial application based on the trial judge’s findings B.D.P. was entitled to spousal support on compensatory and non-compensatory grounds. With respect to the change in circumstances since the Final Order was made, the issue becomes whether B.D.P. remains entitled to receive spousal support from D.W.P.?

[85] To determine whether entitlement continues, the objectives set forth in s. 17(7) of the Act must be considered in the context of the change in circumstances. Those objectives are set forth above. The objective in s. 17(7)(a) (recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown i.e., compensatory entitlement) and the objectives in s. 17(1)(c) (d) (relieve any economic hardship of the former spouses arising from the breakdown of the marriage in so far as practicable and promote the economic self-sufficiency of each former spouse within a reasonable period of time i.e., non-compensatory entitlement) will be considered separately. The objective in s. 17(7)(b) has no bearing on the issue of entitlement in this case.

(i) Has entitlement to compensatory support come to an end?

[86] Comparing the Guidelines’ calculation at the time of the Final Order to the length of time and amount of spousal support paid by D.W.P., B.D.P.’s entitlement to compensatory support has come to an end. She was awarded and received the high end of the range for spousal support based on the incomes established by the trial judge. As at the date of the motion, B.D.P. had received all spousal support to which she was entitled for a period of almost 11 years, almost the same length of time she was married to D.W.P. and at the high end of duration established by the Guidelines.

[87] Given the modest duration of the marriage (a finding of the trial judge) and B.D.P.’s employment and education history during the marriage, B.D.P. has been fully compensated for her contributions to the household and any opportunities forgone as a result of being primarily responsible for the care of the children. At the date of separation, she was 41 years of age with arguably 24 years of future employment left to pursue. In addition, since 2010 the primary residence and care of the children has been with D.W.P. freeing up B.D.P. to pursue further education and employment opportunities at least on a part-time basis.

(ii) Has entitlement to non-compensatory support come to an end?

[88] In attempting to determine B.D.P.’s present need, I find that B.D.P. was less than candid. B.D.P.’s sworn financial statement and her testimony was of little assistance to the court. The court was not provided with accurate information as to B.D.P.’s actual monthly expenses which might enable the court to assess her current need. Based on her housing expense ($919 rent) and transportation expense ($654), B.D.P.’s fixed expenses before any discretionary expenses and long term debt repayment, far exceed her monthly ODSP benefits of $1210.60. What is clear from the limited accurate information and the few financial documents produced on the motion is that B.D.P. lives well beyond her means.

[89] As earlier noted in these Reasons, as part of his assessment of “need”, the trial judge was unable to conclude that B.D.P. suffered from a permanent disability because he did not know the outcome of the first ODSP application or know the results of the MRI that had been ordered by Dr. Ellyatt. The trial judge relied, in part, on the absence of this information as the basis for awarding indefinite spousal support.

[90] The results of the initial ODSP application are now known – that application was denied and that decision was not appealed. Furthermore, there are no results of the MRI as the MRI ordered by Dr. Ellyatt was never completed.

[91] In all of the decisions to which I was referred by B.D.P. which involved awards of indefinite spousal support arising in the context of a spouse’s disability, the disability existed at the time of marriage or arose during the course of marriage.[^15]

[92] I share the views of Gorman J. in Peters v. Peters[^16] at para. 54 where she states:

The timing of the onset of the disability is of importance for I believe that if a disability arises out of a pre-existing condition that existed during the marriage or at the time of breakdown of the marriage, there would exist a connection between the disability and the marriage or its breakdown. The provision for which the non- compensatory basis for support relies reads as follows:

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage

There must be some connection between the economic hardship and the breakdown of the marriage.

[93] The denial of the first ODSP application severed any nexus between any disability arising during the marriage or on its breakdown and any disability arising post-separation. The medical conditions supporting the approval of the third ODSP application are unrelated to the marriage or the breakdown of the marriage. That is, B.D.P.’s inability to achieve self-sufficiency over the past 10 ½ years is unrelated to the marriage or its breakdown.

[94] There is admittedly a significant disparity between B.D.P.’s and D.W.P.’s respective incomes and that gap has widened since the Final Order. However, given the passage of time, D.W.P. is no longer responsible to account to B.D.P. for that continuing and growing disparity. Any financial mismanagement by B.D.P. is not the responsibility of D.W.P.. Her current precarious financial position arises from poor decision-making and is unrelated to the breakdown of the marriage.

[95] It is likely B.D.P. will always have a “need” for additional income beyond the ODSP benefits and HST credits she presently receives. However, that responsibility is no longer the responsibility of D.W.P.. The evidence does not establish that B.D.P.’s ongoing “need” is connected to the marriage or its breakdown. D.W.P. has fully satisfied his spousal support obligations owed to B.D.P. both on a compensatory and non-compensatory basis. Having regard to the s. 17(7) factors, I find that B.D.P. is no longer entitled to receive spousal support.

[96] B.D.P. was in receipt of Ontario Works at the time of trial. The payment of spousal support under the Final Order resulted in a “claw-back” dollar for dollar of payments which B.D.P. received pursuant to the Ontario Works program. The same “claw-back” occurs with respect to B.D.P.’s receipt of ODSP benefits. An issue was raised on the motion as to which of D.W.P. or ODSP should bear the burden of B.D.P.’s support. In light of the finding that B.D.P.’s entitlement to spousal support is at an end this issue need not be resolved. However, my view is that, unlike the fact situations in Dingle v. Dingle[^17] and Smith v. Smith,[^18] this is a motion to change not an initial claim for court-ordered spousal support. There is no basis for continuing to place the burden on D.W.P. rather than the Government of Ontario for payment of support where the disabilities entitling B.D.P. to ODSP benefits did not arise during the marriage and were not caused by its breakdown. D.W.P. has been primarily responsible for B.D.P.’s support for 10 ½ years. The responsibility for B.D.P.’s support should now, appropriately, shift to the state.

(d) Issue #4: Should child support terminate?

[97] With regard to the termination of child support, that order is not opposed by D.W.P. and shall issue.

Disposition

[98] The Final Order is hereby varied as follows:

(a) D.W.P.’s obligation to pay spousal support pursuant to paragraph 20 of the Final Order is hereby terminated effective immediately;

(b) B.D.P.’s obligation to pay child support pursuant to paragraph 21 of the Final Order is hereby terminated effective immediately; and

(c) Neither party is entitled to arrears of spousal support or child support, as the case may be.

Costs

[99] It is intended by the terms of this variation order that all ties between the parties be severed and all monetary obligations between the parties be extinguished. Accordingly, this case does not strike me as one where an order for costs is appropriate. However, if the parties are unable to agree on the issue of costs, they may serve and file costs submissions not exceeding 5 pages in length (exclusive of any case law, bill of costs and time dockets). In the event of no agreement, if costs submissions are not received within 30 days, there will be no order as to costs.

“Justice A.K. Mitchell”

Justice A. K. Mitchell

Released: February 7, 2019

[^1]: Pursuant to court order made at the outset of the motion, paragraph 5 was deleted and is not an admitted fact.

[^2]: B.D.P. received a $100 credit on the trade-in of her former vehicle.

[^3]: B.D.P. v. D.W.P., 2012 ONSC 2228 at para. 171.

[^4]: RSC 1985, c. 3. (2nd Supp.) (the “Act”).

[^5]: LMP v. LS, 2011 SCC 64 at paras. 32, 44 and 47.

[^6]: Supra, at para. 220.

[^7]: deJong v. deJong, 2009 CarswellOnt 1304 at para. 16.

[^8]: Sharpe v. Sharpe, 2018 ONSC 3673 at paras. 57, 59, 63, 65 and 68.

[^9]: Hancock v. Rutherford, 2018 ONSC 556 (Div. Ct.) at para. 9.

[^10]: Ibid, at pages 63 and 64.

[^11]: [1998] A.J. No. 923 (Q.B.).

[^12]: Supra, at para. 16.

[^13]: McKinnon v. McKinnon, 2018 ONCA 596 at para. 24.

[^14]: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User's Guide and (Ottawa: Department of Justice Canada, 2016) at page 11.

[^15]: See Rhynold v. Rhynold, [2009] O.J. No. 4339 (S.C.J.); Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420; Robicheau v. Earle, [2004] N.S.J. No. 161; and Dingle v. Dingle, [2010] O.J. No. 6019 (O.C.J.).

[^16]: 2015 O.J. No. 3220 (S.C.J.).

[^17]: 2010 ONCJ 731, [2010] O.J. No. 6029 (O.C.J.).

[^18]: 2008 14894 (ONSC).