COURT FILE NO.: FS-07-6797 (Owen Sound)
DATE: 20210426
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Leslie MacDonald-Hills
Allen Wilford, for the Applicant
Applicant
- and -
Peter Stanley Hills
Christopher J. Unruh, for the Respondent
Respondent
HEARD: April 16 and 19, 2021
REASONS FOR JUDGMENT
Sproat J.
INTRODUCTION
[1] The parties in their written materials referred to each other by their first name and, with their permission, I will do the same.
[2] Peter brought a Motion to Change seeking to discontinue child support for his now adult three children and to terminate spousal support. In her Response Karen has requested that the current order for spousal support be increased. Karen also claims to be entitled to arrears in child support and spousal support dating to 2012.
[3] The parties were married on October 3, 1992 and separated on March 24, 2007. They were divorced January 17, 2011. There are three children: Brittney, who is 27 years old, Kassandra, who is 25 years old and Nolan, who is 22 years old.
[4] In 2009 the parties concluded Minutes of Settlement which provided for child and spousal support, and settled property matters. Peter transferred his interest in the matrimonial home to Karen. Karen paid Peter $25,000 and agreed that she would have no claim to his pension. The final order also provided, for greater certainty, that Karen would have no right to include Peter’s pension income in any calculation of income for support purposes.
[5] Karen had a stroke in 1990. On her evidence she continued to work as a registered nurse until 1996 until she was forced to resign. Karen’s position is that she has been incapable of working since 1996 and that her physical condition continues to deteriorate.
[6] Peter is now 56 and has suffered a series of health problems. He has given notice to his employer that he intends to retire effective July 23, 2021. Peter’s position is that spousal support should end as he will effectively have no income for support purposes.
[7] The court was provided with a Statement of Agreed Facts and both parties provided an affidavit setting out their evidence in-chief.
PETER’S EVIDENCE
Health and Retirement
[8] He has been employed for 29 years as a registered nurse with the mental health program at Grey-Bruce Health Services. Throughout his career he has worked with patients who have severe mental illness.
[9] As one of the senior nurses he has been assigned the more acute cases with patients who are suicidal and/or who have engaged in self-harming behaviour. This has caused him a significant amount of personal emotional strain. In 2015 five of his former patients and one of his current patients died through overdose or suicide which was very difficult for him. The stress of his work since 2018 has resulted in personal health issues.
[10] In November 2018 he was diagnosed with hypertension and prescribed drugs to manage blood pressure issues. He was referred for individual counselling to deal with anxiety, depression and “compassion fatigue”. In 2019 he was prescribed an antidepressant medication. In mid-2019 he took a medical leave for three months to deal with his medical issues. Since returning from his medical leave he says that his hypertension and mental health issues have continued to worsen. He has tried four different hypertension medications.
[11] Peter describes himself as “burnt out” and suffering from worsening anxiety, depression and hypertension. His doctor has recommended that he retire in order to attempt to address and improve his mental and physical health. Peter indicates that if he continues to work, he is concerned he will suffer a complete mental health breakdown. He is also concerned that he will have further complications from his blood pressure and hypertension issues, such as a heart attack or stroke.
[12] Peter had two knee surgeries in 2020 and anticipates that he will require a total knee replacement within five years. His doctor has recommended that he use anti-inflammatory medication daily for his chronic knee pain. It has also been recommended that he cease activities that have high impact on his right knee because if he continues such activity, he will likely require a total knee replacement sooner.
[13] In cross-examination it was suggested that he could do other nursing jobs. He indicated that he was not prepared to work in other nursing fields as he had devoted himself to the mental health field for approximately 27 years.
[14] Peter said that he was prompted to submit his resignation on April 12, 2021 because the co-leader of the therapy group he works with gave her notice of resignation within the last two weeks. Peter said he dreaded the idea of the extra work and stress that would be involved in continuing his employment and having to train a new colleague to help lead the therapy group. By submitting his resignation now, he and his co-leader will both leave in May, 2021.
[15] Peter’s affidavit includes a report from his doctor verifying his health problems and recommending that he retire in order to address and improve his health concerns.
[16] Peter’s affidavit states that prior to separation in 2005, the parties secured additional mortgage financing to build an addition on the home. At that time their mortgage advisor gave them the option of a longer amortization period. Peter states that he and Karen discussed this but decided to maintain the same amortization period so that the mortgage would be mostly paid off by the time he was 55 as he intended to retire then. Karen was given the opportunity to supplement her in-chief affidavit. She did not, and so did not take issue with Peter’s evidence in this regard.
[17] In 2007 – 2008 Peter produced a valuation of his pension and Karen obtained her own valuation of his pension. Both valuations provided calculations based on retirement at age 55 (the earliest time at which Peter could retire with an unreduced pension), age 60 and age 65. This would certainly reinforce Karen’s understanding that Peter might well retire at age 65.
[18] Peter’s affidavit further indicated that his position following separation in 2007 had been that the matrimonial home should be sold, and his pension divided at source. Karen was, however, insistent that she wanted to stay in the matrimonial home.
Child and Spousal Support
[19] On April 15, 2009 the parties consented to a final order whereby Peter was to pay Karen $1,275 per month child support and $750 per month spousal support.
[20] Peter applied to vary the 2009 order, and on April 15, 2011 the court made a further order that Peter pay child support in the amount of $904 per month and that there be “no order as to retroactivity or adjustments to spousal support”. The order provided that the parties should exchange updated income disclosure by May 15 in subsequent years.
[21] Brittney withdrew from a college course in October, 2012. Peter sent a request to FRO that his child support for Brittney terminate, however, Karen disputed that.
[22] Kassandra started to reside primarily with Peter on April 5, 2010. She attended Fanshawe College September, 2015 to April, 2016 and Conestoga College January, 2017 to December, 2018. Kassandra started a BSc. course in nursing in September, 2019. When not at school she has resided with Peter.
[23] Nolan completed high school in April, 2018. He has health issues and receives ODSP. He has, however, recently been able to work six months a year for an irrigation business owned by Brittney’s partner.
[24] In summary, Peter should not have had to pay child support for:
a) Kassandra after April, 2010;
b) Brittney after October, 2012; and
c) Nolan after April, 2018.
[25] In fact, Peter continued to pay $904 per month in child support to Karen for all three children as provided in the 2011 order.
KAREN’S EVIDENCE
[26] As a result of right-side dystonia Karen’s muscles contract painfully, leading to fatigue. As a result, she needs to rely upon using her left arm and hand which has caused rotator cuff issues and carpel tunnel. She is in pain every day.
[27] The stroke also caused a brain injury resulting in memory and word loss. She has trouble dressing and self-care. Overall, her condition is worsening.
[28] She is in agreement that child support for all three children should terminate effective October 1, 2018. She does, however, ask that spousal support continue.
[29] In cross-examination she indicated that following her stroke in 1990 her employer took steps to accommodate her disability. She continued to work as a registered nurse. In 1996, however, she was summoned to a meeting and it was suggested that she could not do her work comfortably or safely. She was asked to resign. She chose not to fight and resigned.
[30] On May 16, 1997 Karen was approved for CPP disability benefits which were made retroactive to June 1996.
[31] Primarily because of her dystonia she has not been able to work since 1996. She has not made any effort to find employment or investigated any job opportunities since 1996.
[32] She estimates that her home is worth approximately $500,000. Taking that into account, her net worth is approximately $416,000. She has approximately $61,000 in retirement savings plans. She has a mortgage, line of credit and car loan on which she makes payments of approximately $1,350 per month.
[33] Her monthly income from CPP and other government programs totals approximately $1,400 per month. Her son Nolan lives with her and pays her $300 - $500 per month. A good portion of that is for food which Nolan consumes. She could charge Nolan more money, however, she wants him to be able to save some money and be able to move out of the house and get on with his life.
SUMMARY AND CONCLUSION
[34] Mr. Unruh submitted detailed calculations of what child and spousal support was actually paid by Peter and what should have been paid, taking into account Peter’s actual income which increased over the years, taking Karen’s annual income at $17,000 and spousal support at the low and mid-range of the SSAG.
[35] Peter overpaid child support and underpaid spousal support as it did not increase as his earnings increased. Mr. Unruh did two calculations. One, based on January, 2012 to present at the SSAG mid-range, indicated that Karen owed Peter $10,876. The other calculation was from October, 2018 (when Peter brought his Motion to Change). This calculation indicated that Karen owes Peter $1,883.
[36] Both parties could have done more to ensure the proper amount was paid every year. Given the passage of time, and the fact that Karen has a modest income and has spent any support amounts paid, I would not require that she pay any amount to Peter.
[37] I find that Peter and Karen did discuss, prior to separation, his intention to retire at or about age 55. In any event, Karen must have understood that if Peter was entitled to retire at age 55 on an unreduced basis, it was possible, if not probable that he would do so.
[38] I agree with the following observations by D.J. Gordon J., in Smith v. Smith, 2013 ONSC 6261, at paragraphs 31, 64 – 67 and 72.
a) a person who meets the pension criteria for an unreduced pension is not taking an “early retirement”;
b) 65 is no longer the presumptive retirement date. Many pension plans use retirement dates based on an 80 factor of years and service;
c) the decision to retire when a person is entitled to an unreduced pension is a foreseeable event that should have been expected by the support recipient; and
d) the fact the parties had discussed the payor’s intention to retire when qualified for a full pension is a relevant consideration.
[39] The law also requires that I respect the 2009 order. In Liberale v. Spadafora, 2008 CanLii 27476 (ON SC) Mazza J. stated:
[23] When parties, who are represented by counsel as in the case before me, enter into minutes of settlement to resolve all issues, it is presumed that those minutes are the result of the parties weighing the strengths of their respective cases against the risks which they face if they should decide to litigate the issues. Those minutes of settlement almost invariably are a reflection of the compromise the parties are willing to make.
[24] When parties sign those minutes, it is a representation to the court that the parties have deliberated over the terms and are committed to complying with those terms. It is only when a party was coerced, a victim of a fraud, or a victim of a mistake known to the opposing party that the minutes of settlement will be set aside.
[40] I find that the settlement Karen made in 2009 contemplated that Peter might retire at age 55 in which case Karen’s spousal support would end. She preferred having 100 percent of the matrimonial home to 50 percent of the value of the matrimonial home and 50 percent of the pension income. And there were aspects of that bargain that were advantageous to her. A pension increases in value incrementally and typically an employee has to pay for about 50 percent of that increase by making contributions. House prices often increase at a faster rate. Pension income is taxable when received. There is no capital gains tax on a principal residence.
[41] I accept that Peter and Karen have both described their medical conditions fairly and accurately. Peter’s medical condition was more contentious so I will comment further. Peter has been seeing the same family doctor throughout. He has evidenced objectively verifiable signs of hypertension such as high blood pressure. He has tried a number of medications. He has provided an explanation of acute stressors in the workplace. I, therefore, conclude and find that it is reasonable for Peter to retire from his current position effective in October.
[42] The question then is whether any income should be imputed to Peter on the basis that he could find lower stress work in another field of nursing or health care. Mr. Wilford also suggested that Peter had in the past demonstrated the ability to do carpentry work and that he could do work such as building decks to make money.
[43] The parties were together for 14.5 years. Peter has now paid support for just over 14 years. In these circumstances I do not think it is reasonable to require Peter to keep working. Peter does agree that it may be reasonable to order, and I do so order, nominal spousal support of $1 a month. Peter is also ordered to advise Karen in writing if he obtains any employment or self-employment prior to age 65.
[44] I will, however, order what Mr. Unruh described as “step down” support to provide some transitional assistance to Karen. Peter has been paying $750 per month spousal support. He shall continue to pay that support to July 31, 2021. He shall then pay $375 per month support from August, 2021 to July, 2023.
[45] Peter shall provide a Costs Outline and brief written submissions within 15 days. Karen shall respond within 10 day of receiving Peter’s submission. Reply, if any, within a further 7 days.
Sproat J.
Released: April 26, 2021
COURT FILE NO.: FS-07-6797
DATE: 20210426
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Leslie MacDonald-Hills
Applicant
- and -
Peter Stanley Hills
Respondent
REASONS FOR JUDGMENT
Sproat J.
Released: April 26, 2021