KINGSTON COURT FILE NO.: 403/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jan Stephanie Crossley-Chaumont, Applicant
AND
Pierre Michel Royer, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Michael Swindley, for the Applicant
Lesley C. Kendall, for the Respondent
HEARD: September 29, 2020
ENDORSEMENT ON MOTION TO CHANGE (BY RESPONDENT)
MINNEMA, J.
Issue
1This is a Motion to Change (“MTC”) brought by the respondent husband seeking to reduce his spousal support obligation to the applicant wife in stages, decreasing retroactively starting from November 1, 2019 through to the present and then prospectively until April 30, 2022, at which time it would terminate.
Background Facts
2The husband is 56 years old, the wife is 55. They married in 1985. They separated in 2010 after being married for 24 years. The wife was 44 years old and the husband was 45 at the time. They have two children, both girls, born in 1986 and 1988. The husband worked for the Canadian Armed Forces and was the family’s prime income earner. The family moved about eight times prior to separation related to his employment. The wife indicates that she was the primary caregiver for the children. The husband asserts that she overstates her childcare responsibilities and understates his.
3The wife had begun a police foundations course just prior to marriage but did not complete it. In 1997 or 1998, she obtained a legal assistant diploma, but has never worked in that field. She indicates that during the marriage she had various minimum wage jobs. In 2003 she had a good job in Ottawa, which ended when the family moved for the husband’s work.
4In July of 2008 the husband obtained a Certificate from the Canadian Institute of Financial Planning. He has never worked as a financial planner.
5The wife indicates that post-separation she moved to Ottawa and was employed as a dog-groomer.
6Just over two years after separation the parties resolved the spousal support issue on consent, and that agreement was turned into a Final Order by Justice Abrams dated June 15, 2012. A subsequent order by Justice Sheffield dated August 23, 2012 resolved their property issues. They divorced in November 2012.
7The Final Order of June 15, 2012 required that the husband pay $3,500 per month spousal support, and includes the following termination, self-sufficiency, and variation clauses:
8Some of the evidence about the parties’ circumstances at the time of the Final Order was unclear. On my questioning counsel were able to fill in gaps and agreed to the following:
(a) The husband was still employed with the military.
(b) The wife was on Canada Pension Plan (“CPP”) disability benefits. She was also in school and had just started a four-year social work program at Laurentian University in Sudbury. She began living with her current husband Michel Chaumont in 2011.
(c) A Spousal Support Advisory Guideline (“SSAG”) calculation from the time using the DivorceMate software was admitted into evidence on consent. It shows the husband’s income was $109,974 (his military income of $107,136 plus a Land Duty Allowance of $2,838) and the wife’s income was $6,326 from her CPP benefits. It was noted that the wife’s income seemed low as a yearly disability benefit. The wife only qualified for the benefit in February of that year (2011), although her entitlement was retroactive to 2009.
(d) The SSAG ranges on those numbers using the without child support formula (the children were independent) and based on 24 years of cohabitation, were $3,109 per month (low), $3,628 per month (mid), and $4,146 per month (high), for an indefinite (unspecified) duration.
(e) The $3,500 per month in the Final Order was as a negotiated number. As observed by counsel, it fell within the low to mid SSAG range. However, it provided the wife with more than 50 percent of the NDI (Net Disposable Income).
(f) Although not stated on its face, it is acknowledged by the husband that there was a compensatory component to the support order.
9It is clear from the medical evidence that prior to the Final Order the wife had at times struggled with her mental health and had already been diagnosed with major depressive disorder, borderline personality disorder, obsessive-compulsive disorder, and an eating disorder, and she had required hospitalization or treatment admissions.
Events and Incomes After the Final Order of June 15, 2012
10The husband remarried in 2015. His new spouse earned $26,967 in 2018 and $17,763 in 2019 as an independent teacher.
11The wife graduated from her social work program in 2015.
12From 2015 and 2018 the wife obtained two 3-4-month contracts, one with Health Sciences North and one with the Sudbury and District Health Unit. She indicates that she obtained another 3-4-month contract again with the Sudbury and District Health Unit in 2018 but had to leave after one month as her depression and anxiety were crippling.
13The wife’s receipt of CPP disability benefits has continued throughout. She indicates that she has not been giving updates of efforts to find employment every six months as required by paragraph 5 of the Final Order, as she is unable to work and has not been looking. She provides a doctor’s letter from her family physician dated December 11, 2018. It is very short, and only indicates that the doctor had been seeing her for several years, and that the wife has ongoing major depressive/anxiety illness, is on medications, and continues not to be working. It appears that she has not been reassessed by CPP since around the time she qualified. Although there is no up-to-date evidence before me, disclosure has occurred between the parties, and the husband summarized the more recent information from the wife in his Factum as follows:
The Applicant has made no efforts to find employment since 2018. The Applicant’s psychiatrist, Dr. Veluri diagnosed her in August 2019 with Generalized Anxiety Disorder and Borderline Personality Disorder with age-related improvement. In January 2020, Dr. Veluri confirmed the Applicant has been compliant with all treatments. In or about January, 2020, the Applicant discussed with her psychiatrist a return to work and/or pursuing a Masters degree in Social Work but has provided no corroborating medical records to prove this or evidence of her efforts to pursue further employment or education or evidence of an inability to engage in these pursuits since then. No update on her health status has been provided in nine months.
14The wife and Mr. Chaumont married in 2018. His income was approximately $120,000 per year.
15On November 15, 2018 the husband wrote the wife indicating his intention to retire on April 2, 2019 and return to school, and to terminate his spousal support when that time came.
16The parties tried to negotiate but were unsuccessful. On May 1, 2019 the parties agreed to an interim without prejudice variation of the husband’s spousal support payment reducing it to $3,129 per month. The husband issued this MTC on November 19, 2019.
17The husband was eligible to retire and receive a full pension as of December 3, 2018. He extended his retirement date and formally retired from his military job on August 30, 2019 at the age of 55. He indicates that his decision to retire was because of a number of physical ailments and mental conditions. However, the husband indicates that “contrary to medical advice” he accepted a three-year full-time contract with the Army Reserve right after his official retirement. That continues to April 30, 2022, when he will be 57 years old. It pays him $117,051 per year which is 92 percent of his pre-retirement income. For the first year of his contract he also received his Regular Forces pension benefits but was required to forgo that for the last two years of the contract. He indicates that he can terminate the contract on 30 days notice for health reasons, and his employer can terminate as well for various reasons. There is also a possibility that the contract can be renewed. In addition, he works for H&R Block during tax season which provides some minimal additional income.
18As to his health, the husband states:
My health, which has been deteriorating for some time, continues to decline so significantly that it is interfering with my ability to maintain this employment, or pursue education, in the ways I would like. My physicians and psychiatrist/psychologists have advised me that I should not be working. I have been diagnosed with, and I am receiving treatment for …
19He goes on to list a number of the conditions, namely he says he has osteoarthritis in his hip for which he has been prescribed anti-inflammatory medications, that he receives weekly chiropractic treatment and massage therapy as required, is being assessed for similar bone and soft-tissue injuries, and that he has Operational Stress Injury and sees a psychologist bi-weekly. He says he has depression and anxiety and a sleeping disorder and is prescribed medication for both.
20The husband has submitted letters from two doctors to support both his health concerns and his statement that he has been advised that he should not be working. His family doctor provided a brief letter to the husband’s lawyer dated January 23, 2019 as follows:
21The second letter from the family doctor to the husband’s lawyer is dated August 12, 2020, and is considerably longer:
22In addition, there is a short letter to the husband’s lawyer from his treating psychologist dated June 16, 2020 as follows:
23I have included these full excerpts from the letters as they are important to the issues, and much less voluminous than the wife’s health records in evidence.
24In May of 2020, Mr. Chaumont, the wife’s current husband, resigned from his work and retired. He had been off from work since February of that year because of Atrial Fibrillation. He is 61 years old. He will not receive the pension from his most recent employment or his CPP until he turns 65. He currently receives about $43,000 per year from a previous pension.
Issues and Positions
25The husband argues that he has being paying support for 10 years and has adequately compensated the wife for any disadvantage resulting from their 24-year marriage. As noted, he seeks a step-down order with the spousal support decreasing retroactively commencing November 1, 2019 until it terminates on April 30, 2022. He makes the argument that there have been two material changes in circumstances: his retirement and deteriorating health; and the wife now being self-sufficient because of her remarriage, educational achievements, and assets. He argues that these should merit a variation and ultimate termination of his support obligation. In his Factum he indicates that one of the issues is whether income should be imputed to the wife, and he suggests that she should be able to earn $35,000 per year.
26The wife disagrees with all of the husband’s arguments, and her position is simply that the MTC should be dismissed.
The Law – Variation of Spousal Support
27As the parties were married, variation of spousal support is governed by the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, and in particular section 17. Per subsection 17(4.1), before the court can make a variation order it must be satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouse since making the last spousal support order. Once that has been met, the objectives of a variation order are set out in subsection 17(7) which reads as follows:
17(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.
28The four section 17(7) objectives can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown: see Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 at paragraph 78, and Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paragraph 21. Family law can only play a limited role in alleviating those economic consequences (Moge v. Moge at paragraph 76). No one objective has greater weight or importance than another (L.M.P. v. L.S., 2011 SCC 64 at paragraph 49).
29As an overview, the approach to be taken was set out by the Supreme Court of Canada in L.M.P. v. L.S. at paragraph 50 as follows:
- In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), . . . [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.
Change in Circumstances
30The change in circumstances must be material, meaning that if known at the time it would have resulted in different terms: L.M.P. at paragraph 32.
31I would just add here that the husband suggested (in the context of attempting to distinguish the Cossette decision referred to below) that the Final Order calls for a “review” of the support obligation on his retirement. However, to the contrary, it actually says that spousal support “may” be changed “if there is a material change of circumstances” which “may” include any number events, one of which is the husband’s retirement.
32Again, the husband is asserting two changes: his retirement/deteriorating health, and the wife now being self-sufficient, and regarding the latter he makes arguments about imputation, remarriage, and her assets.
The Husband’s Retirement/Health
33The husband retired from one job at age 55. However, he immediately found other related employment that earns him a similar income. I fail to see a material change. This would not have resulted in different terms at the time of the original order.
34The husband’s health evidence does not make the connection between his many physical ailments and an inability to work. The opinions from his family doctor indicate that a physical job would be a problem, but there is no evidence about what the husband does in his current job, or how much physical activity is involved. He has been able to maintain that employment. I fail to see a material change.
35Both the husband’s family doctor and his psychologist indicate that he has mental heath conditions and resulting stress that is triggered in part by his having to pay spousal support. However, his family doctor notes that the issues related to his spousal support were first diagnosed in 2010 (prior to the Final Order) and that his support obligations do not affect his ability to work. In Cossette v. Cossette, 2015 ONSC 2678 at para. 8, the Divisional Court recited with approval a passage from Justice Kershman’s trial decision wherein he described the payor’s being stressed or depressed about paying spousal support as “an unfortunate reality of life” falling short of a material change in circumstances. I fail to see a material change here.
The Wife’s Situation
Imputation
36The wife is and has been receiving CPP disability benefits since before the Final Order. There is no change in circumstances. However, as noted, the husband seeks to impute an annual income to her of $35,000. Such an income would be a material change.
37Although the issue here is spousal support, the approach for determining a spouse’s income, including imputation, is as set out in the Child Support Guidelines (see Halliwell v. Halliwell, 2017 ONCA 349 at para. 90). Section 19(1)(a) of the Child Support Guidelines, SOR/97-175 (“CSG”) as amended, reads as follows:
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
38The caselaw is clear that section 19(1)(a) triggers a three-question analysis: is the spouse intentionally under-employed or unemployed; if so, is the intentional under-employment or unemployment required by virtue of the needs of any child or by the spouse’s reasonable educational or health needs; if not, what income is appropriately imputed?
39Regarding the first question, choosing to earn less than one is capable of earning is intentional under-employment (Drygala v. Pauli, 2002 41868 (ONCA) at paragraph 28). The onus is on the spouse claiming imputation to establish an evidentiary foundation for intentional unemployment or under-employment (Berta v. Berta, 2015 ONCA 918 at paragraph 63). Once established, the burden shifts to the purported unemployed or under-employed spouse to establish that the decision was justified in a compelling way (Riel v. Holland (2003), 2003 3433 (ON CA), 67 O.R. (3d) 417 (Ont. C.A.) at paragraph 23) and was reasonable, thoughtful, and highly practical (Pey v. Pey, [2016] O.J. No. 1994 (S.C.J.) at paragraphs 88 to 91).
40Clearly there is an obligation on the wife per the Final Order to make reasonable efforts to either find a job or become self-employed. The evidence shows that she has pursued further education and found three short term contracts, the last one ending prematurely. The husband’s own summary from his Factum indicates that she has more recently discussed with her psychiatrist returning to work or pursuing further education. In argument, his main complaint was that there has been no update on her health since January of this year (2020). Still, the evidence is that the wife has tried to work but has had limited success and that she is still exploring employment or further education despite qualifying for and continuing to receive disability benefits. Overall, her failure to find meaningful sustainable work or more diligently pursue employment appears reasonable given her long-standing mental health issues.
41The husband relied on the case of Pustai v. Pustai, 2018 ONCA 785 at para. 50 suggesting that it stands for the proposition that it is reasonable to impute a minimum wage income on a MTC to a support recipient wife who has not worked outside the home during the marriage and has little employment training. However, in that case there was evidence that the wife had undisclosed income and that she had provided incomplete disclosure. Neither factor is in play here. More importantly, there was no suggestion in that case that the wife was dealing with mental or other health issues or had qualified for and was in receipt of disability benefits.
42I find that based on her age, limited work experience, and her health issues, it has not been established that the wife is intentionally unemployed at this time. I am not prepared to impute an income to her. As noted, this leaves her in essentially the same position now as she was at the time of the Final Order, namely collecting CPP disability benefits. I fail to see a material change.
Remarriage
43The husband takes the position is that the wife’s marriage to Mr. Chaumont in 2018 is a material change in circumstances. He argued that if she and Mr. Chaumont were to separate, the latter would now have a clear legal obligation to pay her spousal support. However, the Court of Appeal in Bhupal v. Bhupal, 2009 ONCA 521, at paragraph 6, rejected the proposition that a subsequent remarriage to a person with whom the payee had a relationship with at the time of the Final Order was a material change. The husband has suggested that there was no such prior relationship here. He relied on a letter between legal counsel dated August 29, 2011, wherein the wife’s then lawyer argued that as she was not staying with Mr. Chaumont their relationship was irrelevant to the spousal support issue. It is not clear to me that this assertion was correct or that the husband’s lawyer agreed with it, but regardless the wife did begin living with Mr. Chaumont shortly afterwards, sometime in 2011. She was clearly in a relationship with him on June 15, 2012 when the Final Order was made. I am unable to find that her remarriage constitutes a material change in circumstances.
Assets
44The husband argues that the wife’s current net worth per her Financial Statement is in excess of $477,000.00, which is almost double his net worth of approximately $248,000. However, as the wife points out, that latter number ignores the husband’s pension. In looking at the Final Order of Justice Sheffield dated August 23, 2012, his pension at that time was valued at $762,104 less a tax offset of $179,857. As part of the equalization, the husband transferred $220,338.41 of its value to the wife. By my calculations that left him a value of roughly $362,000 after tax. I appreciate that the pension would have grown up to retirement and then contracted when the husband briefly drew on it, but there is no evidence on how that impacted its value. Relying on the last known numbers, his net worth including his pension would be higher than the wife’s, defeating his unfairness argument. However, all of this misses the point.
45If the husband wanted to establish a material change, at a minimum he needed to provide evidence showing changes to the parties’ asset positions since the Final Order, one that favoured the wife. Her Net Family Property (“NFP”) right after equalization was about $417,000 (NFP of $134,742 plus the equalization payment of $282,217) and per her Financial Statement her net worth is about $478,000 now. The husband’s NFP right after equalization was roughly the same (NFP of $699,277 less the equalization payment), however his net worth now is about $610,000 ($248,000 per his Financial Statement plus the $362,000 overlooked pension). His net worth appears to have increased more than the wife’s. In my view, he has not met his onus of establishing a material change in means and/or net worth.
Summary/Conclusions/Decision
46The husband is asking me to rewrite the final consent order in a forward-thinking way, one that will eventually wean the wife off spousal support. His desire to know the path forward is understandable in view of his personality traits. However, I am not able to accede to his request as he has failed to establish a material change in circumstances. The MTC is dismissed.
47As noted, the parties agreed to a slight reduction in support on an interim without prejudice basis. I appreciate that my decision will create some arrears. I trust an arrangement can be worked out between counsel to address those. Although I am not granting the husband the relief he is seeking, I do note that he has come to the court with clean hands, having maintained his support payments throughout.
48As the parties have indicated that they wished to address me on costs, I will accept written submissions as follows:
a. From the wife served and filed within ten days from the release date of this decision of no more than three pages, double spaced, in addition to any relevant offers and draft bills of costs.
b. From the husband served and filed within fifteen days after he is served with the wife’s submissions of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.
c. If required, a reply from the wife of no more than one page double spaced served and filed within five days after she is served with the husband’s submissions.
d. If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves.
Mr. Justice Timothy Minnema
Date: December 3, 2020