Court File and Parties

COURT FILE NO.: FC-06-FS038912-0003

DATE: 2021-05-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNETTA ELLEN CRAIG Applicant

– and –

ROBERT BRUCE CRAIG Respondent

COUNSEL:

S. Swaby, for the Applicant

R. Van Buskirk, for the Respondent

HEARD: February 6, 7, 10 (afternoon), 2020, and February 1, 2, 3, 4 and 5 2021

BEFORE: The Honourable Mdm. Justice D. Piccoli

REASONS FOR JUDGMENT

Introduction

[1] At Assignment Court, counsel estimated one to two days for this trial. The trial lasted eight days, which included a mid-trial settlement conference.

[2] The matter was not completed in the February 2020 sittings. As a result of the suspension of normal court operations because of COVID-19, the matter resumed in person at the request of the Applicant (“Ms. Craig”) on February 1, 2021.

[3] This is a Motion to Change dated April 25, 2018, brought by the Respondent (“Mr. Craig”). He seeks to change the Final Order of Gordon J. dated September 17, 2007 (“Final Order”), essentially seeking to terminate spousal support. Ms. Craig answered and sought 19 orders.

[4] The Final Order, was amended by the temporary orders of MacPherson J. dated May 27, 2010, June 11, 2010, and September 28, 2010.

[5] This is the second motion to change brought by Mr. Craig. The first motion to change was brought August 30, 2012. It was dismissed by Campbell J. on January 14, 2013, for non-compliance with the rules regarding financial disclosure.

[6] This trial ultimately concerned only a few narrow issues. However, due to a lack of discussion between counsel ahead of time, a failure to provide the Court with a Statement of Agreed Facts until partway through trial, unnecessary mid-trial motions, and a lack of clarity about the relief being sought, what was anticipated at Assignment Court to be a two day trial became an eight day trial. This is not a reasonable use of court resources.

[7] By closing submissions on February 5, 2021, the remaining issues for me to decide were as follows:

1. Determination of the date of separation of the parties (is it late October 2002, as stated by Mr. Craig or October 26, 2005, as stated by Ms. Craig);
2. The quantum of spousal support payable by Mr. Craig to Ms. Craig for the period February 1, 2024, to July 6, 2025;
3. The amount of life insurance, if any, that Mr. Craig should be required to maintain and whether Ms. Craig should be an irrevocable beneficiary or a co-owner of the life insurance policy;
4. Whether Mr. Craig should be ordered to pay Ms. Craig’s Trillium Drug Program Benefit deductible (“Trillium deductible”) as an incident of spousal support until Ms. Craig turns 65 years of age; and
5. Costs.

[8] Mr. Craig testified. He called as a witness the adult child of the parties’ marriage, namely, Bobbi Ellen Wicklander (“Bobbi”), who is 38 years of age.

[9] Ms. Craig testified. In addition, her other witnesses were Stephanie Wisniewski from Empire Life Insurance, Rhonda McCullough from FaithLife Financial Insurance, and Matthew Hogan from Jones Feed Mill Limited.

Position of the Parties

Mr. Craig’s Position:

[10] Mr. Craig, in his Motion to Change, sought an order terminating spousal support effective April 1, 2018, and in the alternative an order reducing spousal support effective April 1, 2018, to $300 per month and then terminating spousal support as of December 1, 2018. He further sought an order declaring the arrears of spousal support be nil. In addition, although not plead, he requested an order that the life insurance ordered to secure the support be terminated. Mr. Craig states that he has no savings, no pension and owns no property and that despite all of his health issues he has continued to work and pay support. He states that but for the generosity of people such as his daughter Bobbi, his previous girlfriend and some of his employers, he would be living on the streets. He has suffered heart attacks and cannot afford the medication he requires. He requires surgery but he cannot afford to take time off work to have surgery. Mr. Craig states that he brought a simple Motion to Change and that Ms. Craig’s response and her behaviour throughout was unreasonable and protracted these matters.

[11] Mr. Craig defines the material changes in circumstances as:

1. At the time he commenced the Motion to Change he was earning a lower amount per annum than when the Final Order was made.[^1] Mr. Craig agrees that his income at the time the trial commenced was higher than his income at the time the Final Order was made;
2. That he has been paying support, either by making third party payments for the benefit of Ms. Craig or paying formal support, since the end of October 2002 and that the passage of time requires support to be terminated; and
3. That when Ms. Craig turned 60 years of age on December 7, 2018, she was eligible for early Canada Pension Plan benefits,[^2] and that when she turns 65 years of age she will receive OAS and other government benefits including the Guaranteed Income Supplement (GIS).

Ms. Craig’s Position

[12] Ms. Craig opposed Mr. Craig’s Motion to Change by way of Response to Motion to Change dated August 10, 2018. She sought relief, including:

(a) an increase in spousal support to $1,350 per month commencing August 1, 2018 (or $311.61 weekly);

(b) an order that the Order of Reilly J. of November 10, 2011, be stayed indefinitely;

(c) an order seeking leave to enforce all temporary orders that Mr. Craig has not complied with;

(d) an order that the Divorce Order dated February 27, 2015, be amended to reflect the parties’ actual date of separation;

(e) a warrant of committal to be enforced if Mr. Craig fails to pay his spousal support and/or the Trillium Benefit payments within seven days of the first of each and every month, or in the alternative, an order that this order be enforced by the Waterloo Regional Police Service;

(f) an order that spousal support be paid in a lump sum;

(g) an order that Ms. Craig’s address not be disclosed for safety reasons; an order that the court seal Court File No. FC-06-FS038912, and that the contents only be made available to the parties and their respective counsel;

(h) an order prohibiting Mr. Craig from bringing any further motions to change without leave of the court;

(i) an order that all support payments be garnisheed by Mr. Craig’s employer and that Mr. Craig have at least $6,000 held at FRO to avoid any future late payments of support, or alternatively, the imposition of a penalty for any late support;

(j) an order seeking compliance with various orders;

(k) an order that Mr. Craig maintain life insurance of at least $250,000 and that she be named the irrevocable beneficiary;

(l) an order that Mr. Craig pay for Our Family Wizard for the exchange of income information;

(m) an order that costs owing be set-off against each other or that any monies Ms. Craig owes in costs be set-off against monies Mr. Craig owes to Ms. Craig; and

(n) costs.

[13] Ms. Craig states that she is not attempting to relitigate matters but instead is attempting to have the court deal with previous issues that remain unresolved, and future non-compliance, given the history of non-compliance. She states that her health is precarious, and she relies completely on the spousal support and CPP disability payment she receives to survive.

[14] Ms. Craig states that there has been no material change in Mr. Craig’s circumstances but there has been a material change in her circumstances because her financial position has deteriorated since the Final Order. She states that she has continued to need spousal support and that without spousal support she would be unable to survive.

Positions at the Conclusion of the Trial

[15] By the end of the trial, Mr. Craig’s position (which changed between closing submissions on February 4, 2021, and closing submissions on February 5, 2021) was that:

Spousal support continue at $1,200 per month (paid weekly) with the last payment to be for the month of January 2024 at which time spousal support should cease as Ms. Craig will be receiving, in addition to her CPP payment (which will reduce to $515.39 per month), the following additional sums:

Old Age Security (OAS) – $615.37 per month

Guaranteed Income Supplement (GIS) – $919.12 per month

Guaranteed Annual Income System (GAINS) – $83 per month

Total = $2,132.88 per month

[16] Ms. Craig agrees with these figures, save and except she states that she will not receive the GIS until one month after she turns 65 years of age. She also states she is unsure of the amount of GIS she will receive.

[17] Ms. Craig’s position, by the end of the trial (which changed between closing submissions on February 4, 2021 and closing submissions on February 5, 2021) was that:

Spousal support continues at $1,200 per month until the month following Ms. Craig’s 65th birthday, namely with the payment to continue until the month of January 1, 2024 (which is one month following her 65th birthday of December 7, 1958).

That effective February 1, 2024, the spousal support be reduced to $600 per month and that it continue at $600 per month until Mr. Craig’s 65th birthday on July 6, 2025.

Effective July 6, 2025, when Mr. Craig turns 65 years of age, there shall be no further spousal support payable by Mr. Craig to Ms. Craig.

The payments for support to be made on a weekly basis to accord with the Order of MacPherson J. dated June 11, 2010 (Friday of each week).

[18] Ms. Craig’s preference is that she be paid a lump sum amount of support. She did not define for me the lump sum amount of support she sought be paid on an after-tax basis. She states that this lump sum amount can be paid periodically by partial lump sum payments in an undisclosed amount.

[19] I clarified with counsel that, therefore, the only issue I was being asked to address with respect to the payment of spousal support was the quantum of spousal support for the time period February 1, 2024 to July 6, 2025. The dispute between the parties was whether the amount be nil or an amount up to $600 per month for the time period February 1, 2024, to July 6, 2025. To put the issue in perspective, 17 months of support, at $600 per month, amounts to a total gross amount of $10,200.

[20] Although both parties wish to resolve spousal support by the payment of a lump sum, Mr. Craig is in no position to pay lump sum spousal support. He advised during the trial that he was attempting to obtain a loan from his employer. I was never told whether he was able to secure a loan.

Undisputed Facts

[21] Mr. Craig was born on July 6, 1960, and at the commencement of trial was 59 years of age. He is now 60 years of age.

[22] Ms. Craig was born on December 7, 1958, and at the commencement of trial was 61 years of age. She is now 62 years of age.

[23] The parties agree by way of Statement of Agreed Facts dated February 6, 2020, that:

(a) they were married on May 19, 1984;

(b) there are two children of the marriage, namely, Bobbi Ellen Craig, born July 8, 1984 (“Bobbi”), and Zachary John David Craig, born July 26, 1985 (“Zachary”);

(c) they divorced on February 27, 2015;

(d) Ms. Craig is disabled and unable to work;

(e) Ms. Craig is on CPP Disability and has been since October 1997;

(f) Mr. Craig was ordered to pay $1,200 per month in spousal support pursuant to the Order of the Honourable Mr. Justice Gordon dated September 17, 2007;

(g) there has been a split of the CPP credits between the parties, but they do not agree on the date;

(h) Mr. Craig had an RPP plan with his former employer, Jones Feed Mill, for which he received a payout;

(i) Mr. Craig has partially paid an outstanding debt to Heather Gordon with the payout of monies received (presumably from Jones Feed Mill, but the Statement of Agreed Facts does not say this); and

(j) Mr. Craig has been unable to provide proof of the equalization payment and post separation debts to Ms. Craig, as ordered by Justice Braid on October 29, 2018.

Credibility Findings

[24] Although Mr. Craig gave his evidence in a forthright manner, made reasonable concessions when matters were put to him and was generally credible, I find that his frustration with Ms. Craig has clouded his judgment. He has breached orders for disclosure, orders to maintain insurance and has been, at times, very late in making his support payments. It is clear that the separation and subsequent behaviour of Ms. Craig have impacted him financially and personally, his relationship with his previous partner and his employment. He is frustrated with the process and the behaviour of Ms. Craig post-separation and to the date of this trial. The separation has had a profound impact on him and although I accept that in some circumstances his behaviour stemmed from this frustration, the fact remains that he was in non-compliance with court orders which at times led to serious repercussions for Ms. Craig.

[25] I found the parties’ daughter, Bobbi, to be a credible witness. She was forthright and frank in her evidence. Her evidence was sincere and her distress at her mother’s behaviour towards her was evident. It was clear that she preferred not to be part of the process and hoped that this was the last time she would need to be “dragged into” her parents’ separation. Bobbi provided clear, concise answers. Her evidence corroborated and clarified Mr. Craig’s evidence. She did not waiver under cross-examination.

[26] I did not find Ms. Craig credible. Her behaviour in the courtroom was unacceptable. In the pre COVID-19 portion of the trial, she was often passing notes to her lawyer, whispering to her lawyer and otherwise disrupting the trial. In the COVID-19 portion of the trial, Ms. Craig’s behaviour was somewhat modified because of social distancing but her lawyer could not complete sections of the evidence without input from Ms. Craig. When Ms. Craig was cross-examined, she became evasive and overly complex in her answers, would at times not answer the question posed and was at times forced to retract portions of her in-chief testimony. Ms. Craig’s mid-trial changes in position, and her request to exclude her daughter from observing the trial (which her daughter did not wish to observe in any event), were disingenuous. I do not accept her assertion that Mr. Craig abused her either verbally, emotionally or otherwise. The one incident of physical violence that both parties agreed occurred ended in Ms. Craig breaking Mr. Craig’s nose. Ms. Craig indicates this happened in self-defence as Mr. Craig was trying to choke her, but I do not believe her. The police notes requested and produced by Ms. Craig do not substantiate any of her claims in relation to domestic violence. She did not provide the document in which she made the request for the police records, and which might explain why the broken nose incident did not form part of the records. The police notes confirm that Mr. Craig, by her own admission, “has not threatened her with violence or used any violence against her”. It was clear from Mr. Craig’s evidence that he wants nothing to do with Ms. Craig and has no interest in contacting her or knowing where she lives, and I accept his evidence. Ms. Craig also admitted in cross-examination that Mr. Craig did not ever make a direct threat to her. With respect to her daughter, it was again clear that the physical violence was perpetrated by Ms. Craig against her daughter. Ms. Craig admitted in cross-examination that no direct threat was made to her by Bobbi. Despite this, Ms. Craig made a formal allegation that Bobbi had assaulted her.

[27] The other witnesses called by Ms. Craig, namely, Stephanie Wisniewski, from Empire Life Insurance, Rhonda McCullough, from FaithLife Financial Insurance, and Matthew Hogan, from Jones Feed Mill Limited, were all independent and credible. They provided their answers in a straightforward factual manner.

Litigation History

[28] As a result of Ms. Craig’s original request that I find Mr. Craig a vexatious litigant, I asked that counsel provide me with copies of the court orders in this file. As Ms. Craig has now withdrawn that request for relief, I will not detail each order. Suffice it to say that this has been a long drawn out matter with different court file numbers. There are three court files that counsel have drawn to my attention, namely: the original Application and Answer documents, File No. FC-06-FS038912, the Divorce File No. FC-14-FS049611 and the FRO enforcement proceedings file.

[29] From the court orders brief provided by counsel, it appears that there have been 60 orders made in reference to these parties’ separation before this trial. Twenty of those orders were prior to the Final Order. Gordon J. made two further orders connected to the Final Order, namely an order with respect to the costs of the trial and an order amending the dates of the Final Order as it pertains to support payments. Based on the material provided by counsel, there have therefore been 36 orders made between the Final Order and the commencement of this trial.

Orders Provided Subsequent to the Final Order That are Relevant to the Issues

[30] November 13, 2009 – Cavarzan J. issued a warrant of committal. Mr. Craig was required to transfer three RRSPs held by TD Investment Account by November 14, 2009, failing which he was to be incarcerated for 90 days.

[31] May 27, 2010 – MacPherson J. varied the Final Order of Gordon J. to provide that effective immediately the $1,200 per month spousal support payment should be varied to be paid weekly. She also ordered that the Director of the Family Responsibility Office (“FRO”) shall be directed to hold one month’s support as security for the payment of ongoing support.

[32] June 11, 2010 – MacPherson J. made an interim order, among other things, varying the order of May 27, 2010, such that the weekly payment of spousal support was $277 commencing June 25, 2010; that the Respondent provide evidence that he does not have group benefits available to him; that he apply for life insurance with the death benefit of $100,000; for the exchange of 2008 and 2009 income tax returns and notices of assessment; and an annual exchange of income tax returns commencing August 31, 2011.

[33] September 28, 2010 – MacPherson J. made an interim order that Mr. Craig pay to Ms. Craig the sum of $1,647 representing the deductible expenses of the Trillium Drug Program for the years 2008, 2009 and 2010; that he be required to pay the ongoing and future deductible expenses of the Trillium Drug Program upon Ms. Craig providing proof to him that she qualified for the program; and that he take all necessary steps to obtain life insurance with a death benefit of $100,000 naming Ms. Craig as the primary beneficiary, but allowing the Respondent to name his two grandchildren as contingent beneficiaries “in the event that the Applicant has predeceased him or should there no longer be a spousal support obligation”. Mr. Craig was obliged to provide a copy of the life insurance policy to Ms. Craig and pay the premiums for so long as he was required to pay spousal support. Mr. Craig was to yearly provide Ms. Craig confirmation that the policy remains in effect and that she continued to be named as the primary beneficiary, other disclosure orders were made, Mr. Craig was additionally ordered to pay Ms. Craig the amount of $300 in costs payable within 60 days.

[34] November 10, 2011 – Reilly J. dismissed Ms. Craig’s motion for contempt and ordered her to pay $2,500 in costs.

[35] January 14, 2013 – Campbell J. dismissed Mr. Craig’s Motion to Change for non-compliance with rules regarding financial disclosure. Mr. Craig was ordered to pay $400 in costs.

[36] August 19, 2013 – Sloan J. ordered that Mr. Craig produce copies of his 2010 and 2011 income tax returns and notices of assessment, together with all the information he would use to file his 2012 tax return and copies of the last three pay stubs, all by September 15, 2013, failing which his motion was to be dismissed. Mr. Craig was ordered to pay costs to Ms. Craig in the amount of $400.

[37] May 15, 2014 - Campbell J. ordered, among other things, a dismissal of the Applicant’s motion against the Director and a declaration that the Director has the discretion to decline to enforce paragraph 2 of the order of MacPherson J. of May 27, 2010, and paragraph 1 (c) of the order of MacPherson J. of June 11, 2020, as impractical. This is the paragraph that required FRO to hold one month’s support as security for the payment of ongoing support.

[38] June 12, 2014 – Campbell J. enjoined Ms. Craig from bringing any further motions with respect to the order of MacPherson J. dated September 28, 2010, without leave of the court. Ms. Craig’s contempt motion was dismissed, and costs were apportioned.

[39] December 18, 2014 – Campbell J. – The motion Ms. Craig brought seeking seven heads of relief was dismissed, save and except her motion to withdraw from FRO. She was ordered to pay $124 in costs to Mr. Craig.

[40] May 21, 2015 – A case conference was held by Broad J., as a result of the Answer Ms. Craig filed as the Respondent in the divorce proceedings. He found that “the relief sought by the Respondent in her answer is not properly advanced in this proceeding. The relief either consists of enforcement of the Final Order of Gordon J. in file FC-06-FS038912 or is the subject of a possible motion to change that order ….”. He stayed the proceedings.

[41] October 29, 2018 – Braid J. made a temporary order at a case conference for disclosure, including a copy of Mr. Craig’s full life insurance policy.

[42] September 18, 2019 – Broad J., among other things, dismissed Ms. Craig’s motion for contempt and the balance of her motion, ordering disclosure by the Respondent and that Ms. Craig pay to Mr. Craig costs of $750. In his endorsement, Broad J. made it clear that the parties could ill afford continued litigation.

[43] I was also provided with orders in the FRO enforcement file which included:

(1) July 14, 2007 – Caspers J. issued a warrant of committal. If Mr. Craig failed to pay $22,033.92 “forthwith” he was to be incarcerated for 180 days unless the arrears were paid soon. Mr. Craig was arrested, and he states he spent 11 days in jail;

(2) September 30, 2013 (Court File No. 332/07 / FRO File No. 698-10457-06) – Rogers J. ordered that Mr. Craig was to pay the arrears of $8,042.42 by November 1, 2013 or be incarcerated for a period of 60 days.

Date of Cohabitation

[44] I deal with this issue only to explain the inputs in the DivorceMate software.

[45] The parties started living together in September 1982, according to Ms. Craig, and 1983 according to Mr. Craig.

[46] Despite Mr. Craig’s evidence that he was not provided notice of the proceeding that resulted in the Final Order, Gordon J. made a finding that Mr. Craig had notice of his required attendance at Assignment Court and he did not attend. Gordon J. also found that Mr. Craig had notice of the trial date and again he did not attend. Accordingly, evidence was accepted, and orders were made in his absence. Gordon J. accepted the evidence that the parties started living together in September 1982. As this trial is neither an appeal nor rehearing of the uncontested trial, the date of cohabitation is September 1982.

Determination of the Separation Date

[47] The parties separated on October 26, 2005, according to Ms. Craig and late October 2002, according to Mr. Craig.

[48] Regardless of whether the date of separation is 2002 as Mr. Craig asserts, or 2005 as Ms. Craig asserts, the DivorceMate software generates an unspecified duration of spousal support.

[49] The evidence accepted by Gordon J. in making his Final Order was that the parties separated on October 26, 2005. That is the date that was used to establish the determination of each party’s net family property and retroactive spousal support.

[50] On November 21, 2014, Mr. Craig made an application for a simple divorce only and costs. In his application, Mr. Craig stated that the parties started living together in September 1983, were married on May 19, 1984, and separated October 2002.

[51] Ms. Craig answered this application by way of Answer dated February 6, 2015. She sought twenty-six items of relief. She also sought to correct the family history, in that she stated the parties started living together in September 1982 and separated October 26, 2005.

[52] The matter was adjudicated on February 15, 2015 by Campbell J. In the transcript of the proceedings before Campbell J. on February 27, 2015, he granted the divorce and stated, “somehow throughout all of that court process the divorce was never granted and both parties were entitled to a divorce simpliciter from about 2003 November.” The divorce was granted on February 27, 2015, by Campbell J.

[53] Given that two orders have been made by this court on the basis of differing dates of separation, I will determine the issue.

[54] Chappel J., in the decision of Al-Sajee v. Tawfic, 2019 ONSC 3857, 27 R.F.L. (8th) 269, thoroughly reviewed the law with respect to the determination of the date of separation. She noted that there are distinct inquiries to properly address the “separation date” for the purposes of the claims for divorce, spousal support and equalization. At para. 26 of her decision she states:

[26] Ascertaining when spouses begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required. […].

[55] Chappel J. goes on to summarize the applicable law. The following key principals arise from the summary, at paras. 25-26, in Al-Sajee:

1. Only one spouse has to formulate the intention to live separate and apart, there does not have to be a meeting of the minds;
2. Parties can live separate and apart in the same home;
3. Spouses can be found not to live separate and apart despite having two homes;
4. There must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship;
5. A clear statement or unequivocal act by one of the parties to terminate the relationship will be very relevant;
6. True intent as opposed to stated intent on the part of one or both parties needs to be assessed;
7. A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken towards such a goal
8. Intimacy is relevant but not conclusive;
9. Romantic relationships with other people are relevant but not determinative;
10. Whether the parties continued to discuss family issues and problems and communicate about daily issues;
11. Whether there been changes in expectation regarding their accountability to each other for daily activities;
12. Whether the parties vacation together;
13. Whether the parties participate in joint social activities and or celebrate special occasions together;
14. The nature and extent of their continued contact;
15. Whether the parties continue to share and participate in each other’s daily routine as in the past such as eating meals, shopping, laundry or sharing household chores;
16. Whether the parties have purchased or exchanged gifts or other tokens of affection with each other;
17. Whether the parties have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues;
18. The manner in which the parties have referred to each other and held out their relationship to third parties;
19. Documentary evidence regarding their relationship status (tax returns, claiming benefits conditional on their relationship) are important but not determinative. The court should consider explanations given before determining the weight if any to afford this evidence;
20. Whether there have been changes in managing financial affairs and/or whether they have continued to share the use of assets;
21. Whether the parties retained a counsellor or mediator and if so for what purposes;
22. The parties’ behaviour towards each other in the presence of third parties; and
23. Whether the parties have taken legal steps to terminate their relationship and resolve issues relating to their separation.

[56] None of the above factors are determinative of the issue but are to be viewed as a general framework for the analysis of the issue. The determination of the date of separation turns largely on findings of fact.

Parties’ Evidence in Respect of the Date of Separation

[57] Mr. Craig states that the parties’ marriage has always been problematic and that even prior to moving out of the matrimonial home in mid to late October 2002, he and Ms. Craig had been sleeping in separate rooms, had stopped eating together and had stopped having intimate relations. He stayed in the home until mid to late October 2002. He states he remained in the home until mid to late October 2002 as Ms. Craig had threatened that if he left, he would not see his children.

[58] Mr. Craig is adamant that he moved from the matrimonial home in late October 2002 at the behest of their daughter, Bobbi. He states that he moved in with Bobbi and her boyfriend at Old Chicopee Road where they remained for a period of time. Thereafter, he and Bobbi and her boyfriend moved to Brookside apartments in Kitchener where the arrangement was that he was to work as a superintendent in order to reduce the rent. Mr. Craig advises that because Ms. Craig would continually attend Brookside apartments and harass him and his daughter, he was told that he could not be the superintendent. As a result, he, Bobbi and Bobbi’s boyfriend moved to Maple Street where the three of them rented the main floor of a home. They remained there until Bobbi moved to Sudbury, which Mr. Craig believes occurred in early 2006.

[59] Mr. Craig indicated that when he left the matrimonial home in mid to late October 2002, he only took his work clothes, some other clothes and minimal personal items. He indicates that he made numerous attempts to return to the matrimonial home to retrieve other clothes and personal belongings but that every time he stepped foot on the property, Ms. Craig would call the police. He also returned to the matrimonial home to care for the dogs and eventually he was able to take one of the dogs.

[60] Ms. Craig is adamant that the parties separated on October 26, 2005. She states that the parties could not have separated in 2002 as they refinanced the home in 2003.

[61] Ms. Craig also states that in June 2005 a hot tub was purchased and installed at the matrimonial home (in the uncontested trial she indicated this was for her health issues and that she paid the initial deposit of $2,500 with her Mastercard). She also states that she and Mr. Craig went away together for Easter 2005 and that this was the first time they left the children alone. She further states that in June 2005 they hosted a party for Mr. Craig’s father, which resulted in an altercation between Mr. Craig and a relative, which involved the police.

[62] Ms. Craig states that as a result of an argument she had with her son, Zachary, on May 3, 2005, Zachary told her that Mr. Craig had three girlfriends.

[63] Ms. Craig states that she moved into a shelter on October 14, 2005 and returned to the Kitchener home on October 26, 2005. This is the same date she states Mr. Craig called the police to have her removed from the home and the same date that Mr. Craig threatened to take her off his drug plan. As such, she felt like he was trying to kill her.

[64] Ms. Craig states she remained in the Kitchener home until January 3, 2006, when Mr. Craig came to take possessions out of home. From January 3, 2006 to February 2006, she lived at Anselma House and then she moved into subsidized housing.

[65] Other than the documentary evidence set out below, there was little evidence led going to the factors that would assist a court in making a determination regarding the date of separation.

[66] The documentary evidence produced by the parties included prior court documents where Mr. Craig asserted that the date of separation was either October 26, 2005 or December 27, 2005. In his affidavit dated March 9, 2006, Mr. Craig states “I do not dispute that we separated on October 26, 2005.” I accept Mr. Craig’s evidence that he agreed with Ms. Craig at the time to expedite the resolution of matters.

[67] The other documentary evidence provided were the parties’ income tax information for 2002 to 2005. Both parties filed tax returns in 2002 indicating they were separated. They both filed tax returns in 2003 and 2004 indicating they were married. Mr. Craig’s 2003 Notice of Assessment indicates that his address in 2003 was Chicopee Drive.

[68] Ms. Craig explains that her 2002 income tax return noted the parties as separated for tax purposes. She states that she was advised by someone at CRA to do this to avoid paying capital gains as the parties owned two homes at the time and in order to claim each home as a principal residence she should indicate the parties had separated. I do not accept this. CRA representatives do not provide tax or legal advice.

[69] Mr. Craig advises that Ms. Craig completed his tax returns pre- and post-separation, as she was the person who dealt with the paperwork. He states that he did not start filing his own income tax returns until the court required him to produce said returns as part of the litigation. He did not draw my attention to the order he refers to. As Ms. Craig completed his tax returns in 2002, 2003 and 2004 she would have been the person who inserted his marital status.

[70] In sum, not much weight can be placed on the documentary evidence.

[71] On the issue of the date of separation, I accept the evidence of Bobbi.

Bobbi’s Evidence

[72] Bobbi stated that she “keeps getting dragged into things” and hoped this was the last time.

[73] Bobbi described how she would move in and out of her parents’ home because of her turbulent relationship with her mother. By the age of 18 (which she turned in July 2002) she had moved into her own accommodations with her boyfriend as she could no longer tolerate her mother’s behaviour. Before that, and when her mother became overly difficult with her, she would return to her grandparents’ home in Sudbury.

[74] Bobbi stated that Mr. Craig “left for good in 2002”. He came to live with her in late October 2002 with only garbage bags with his clothes in them and nothing else. Bobbi had to find him a bed and dresser. Bobbi clearly recalls celebrating New Year’s Eve in 2002 with her Father living with her and making the remark “out with the old, in with the new”.

[75] Bobbi stated that her Father moved in with her and her boyfriend at 75 Old Chicopee Road in late October 2002, where they remained for one to two years prior to moving to Courtland Avenue. By the end of 2005, Bobbi had moved to Sudbury to be with her maternal grandmother. At that same time, her Father moved in with his girlfriend, Lucy.

[76] Bobbi described that if she went to the house with Mr. Craig to try to obtain anything, including her own hockey memorabilia, Ms. Craig would have a “hissy fit” and call the police.

[77] Bobbi explained that on one occasion when she and her Father returned to the home, all of the hockey memorabilia was gone, including Bobbi’s items. Her mother sold her goalie equipment.

[78] Bobbi’s evidence was not diminished on cross-examination – even when confronted with her Father’s affidavit setting out 2005 as the date of separation. She remained steadfast in her evidence that Mr. Craig moved in with her in late October 2002. She provided a reasonable explanation as to why her own driver’s license listed the Kitchener matrimonial home address.

[79] Bobbi described incidents of family violence perpetrated by Ms. Craig against her, including being forced to eat eggs covered in Sunlight dish soap when her mother did not feel she had properly cleaned up after herself, being dragged down the stairs by her hair and being called insulting names by her mother. She described having PTSD from her childhood – that she does not remember any good times with her mother and that her mother should not have had children. She stated her mother insisted on fighting with everyone and she has cut ties with her. She stated that her mother “puts people through hell and keeps playing the pity party”.

[80] Bobbi explained that she has been in counselling for some time to deal with her mother’s treatment of her. She indicated that she has nightmares at the thought of seeing her mother.

[81] I find that the parties separated in late October 2002.

Spousal Support

Parties’ Positions

[82] Mr. Craig’s position is that there has been a material change in circumstances given the amount of time he has been paying spousal support. He concedes that his income is not lower than it was at the time the Final Order was made. His position is that he has paid support for 19 years and that support should end. He cannot afford anything, including his heart medication. He has been unable to have surgery because he cannot afford to take time off work. He states that he lives in poverty. He has been unable to save, and but for the generosity of others, he would be living on the street.

[83] Ms. Craig’s position is that there has been a material change in circumstances as her financial situation has deteriorated since the Final Order and that her needs have “gone up”. She does not agree that Mr. Craig is able to show there has been a material change in his circumstances. Ms. Craig concedes that on her 65th birthday there will be a material change in circumstances.

[84] As already stated by the end of the trial, the only issue remaining for me to decide regarding spousal support was whether for the time period February 1, 2024 to July 6, 2025, the amount should be nil or $600 or some point in between.

[85] These parties have had a long, protracted and painful history. Mr. Craig has been incarcerated, has suffered health issues and is clearly distraught. Ms. Craig has picketed his workplace and has herself faced poverty. These parties need finality. Had there been any ability for Mr. Craig to pay a lump sum amount of spousal support I would have ordered it.

[86] Both parties have implored me to deal with the issue of spousal support effective one month following Ms. Craig’s 65th birthday so as to avoid further litigation. It is generally not proper for a court to consider a future change unless that change is imminent but given the litigation history and parties’ consent, I will resolve the issue.

Trial That Resulted in the Final Order

[87] A review of the transcripts of the uncontested trial show that little evidence was adduced as to the roles assumed by the parties during the marriage. Gordon J. found that “[f]or health or medical reasons, she has been unable to work since 1996. Her sole source of income has been Canada Pension Disability Pension. It is unlikely for the same reason that she will ever be able to work again. The Respondent has the ability to contribute to the support of the Applicant.”

[88] At the time of the Final Order and based on the transcript of proceedings:

(1) Ms. Craig was in receipt of Canada Pension Disability in the monthly sum of $729.23 per month or $8,748 per annum;

(2) Ms. Craig was paying $249 per month for housing (though she had accumulated arrears of $374). She stated that upon receipt of $1,000 per month in spousal support her rent would increase to $565 a month;

(3) Ms. Craig was paying an average of $975 per month for medicine and drugs;

(4) Ms. Craig had qualified for at least one month of an Ontario Disability Support drug card;

(5) Ms. Craig owed $2,400 to her chiropractor;

(6) Ms. Craig was paying $50 per month towards her Canada Student Loan;

(7) Ms. Craig had been receiving $1,000 per month in spousal support (although not on time) which increased to $1,200 per month as a result of the Final Order;

(8) The Sudbury property vested in Ms. Craig and at that time Ms. Craig thought the property was worth “70,000 give or take” – she indicated the equity for both parties was $23,500 – it is not clear whether this was each or total;

(9) The Kitchener property was subject to two Legal Aid liens: one on behalf of Ms. Craig in the amount of $10,287.25 and one on behalf of Mr. Craig in the amount of $1,478.61;

(10) Ms. Craig received an unequal division of property in her favour, namely $17,083.26 as an EP and $14,210 of tax-free roll over monies from Mr. Craig’s RRSP as an unequal division for the hot tub and post-separation debts she indicated she paid; and

(11) Mr. Craig’s income was found to be $43,221.

[89] At the time of this trial:

(1) Ms. Craig continues to be in receipt of Canada Pension Disability. She receives $909.60 per month or $10,915.20 per annum;

(2) Ms. Craig lives in Woodstock (and has since 2012) and pays rent in the sum of $407.49. As part of her lease she states she pays $4.37 per month in property taxes and $30.97 a month in property insurance, which total $442.83 per month or $5,313.96 per annum;

(3) Ms. Craig states that she lives in a shack in a rural area of Woodstock but would not disclose her address or that part of the lease agreement (which she did not provide). She states that she moved out of Kitchener because of her fear of Mr. Craig;

(4) Ms. Craig spends $150 a month or $1,800 per annum on meals outside the home – which she admits is a sizable expense;

(5) Ms. Craig has transportation expenses of $644.61 per month or $6,563.04 per annum. She travels to Kitchener to pick up prescriptions at the pharmacy, for medical appointments and to visit a woman who she refers to as “mom”;

(6) Ms. Craig spends $386.67 per month or $4,640.04 per annum for utilities which include internet and cable;

(7) Ms. Craig spends $153 per month or $1,836 per annum for storage due to a flood in her rental in January 2020. This expense will end in the spring of 2021;

(8) Ms. Craig removed herself from the waiting list for subsidized housing roughly one year before the trial. She states that she does not want to be in Kitchener because she fears Mr. Craig and Bobbi. She advised that her rent would be $210 per month if she resided in subsidized housing and her only source of income was CPP disability;

(9) Ms. Craig states that four times in the last 15 years she was on life support because she could not buy her medication. She states this is directly related to Mr. Craig not paying his support on time. She advises that if she does not take her medications, then within five to nine days, she dies;

(10) As a result of a lawsuit involving her father, she did not receive any monies from the sale of the Sudbury home;

(11) Ms. Craig has a debt to CRA in the amount of $4,958.57;

(12) Ms. Craig continues to owe money for a student loan but states her payment per month is nil; and

(13) Mr. Craig has no drug plan and cannot afford heart medication. He cannot take time off work to have the surgery he requires because he would not be paid.

Parties’ Income since the Final Order

[90] Since the Final Order, the parties’ respective incomes have been:

Year	Mr. Craig’s Line 150 Income	Ms. Craig’s Income Before Spousal Support
2007	$19,201.00	$ 8,886.00
2008	$33,524.00	$23,325.00
2009	$40,383.00	$ 9,267.00
2010	$47,972.00	$ 9,190.00
2011	$34,948.00	$ 9,600.00
2012	$28,140.00	$ 9,780.00
2013	$39,087.00	$ 9,781.00
2014	$41,611.00	$ 9,869.00
2015	$42,950.30	$10,047.00
2016	$46,903.21	$10,158.00
2017	$49,036.00	$10,310.00
2018	$72,164.03 ($12,835.96 was RRSP withdrawal therefore employment income was 59,328.07) * he worked 3 jobs	$10,464.60
2019	$63,718.15	$10,705.32
2020	$63,302.05 (T4)	$10,91520

[91] In the 2020 part of the trial, Ms. Craig made much of Mr. Craig earning cash working with Bobbi. During Bobbi’s cross-examination, she was not questioned on this issue.

[92] Mr. Craig continues to work at the Roofman Inc. and earns $24.00 per hour.

[93] As a result of his accident in February 2020, Mr. Craig is unable to do any heavy lifting. He has not been able to go to physiotherapy. His employer has been very accommodating and has “switched” his duties with those of a co-worker. The change in duties, coupled with the decline in business, will result in Mr. Craig working 40 hours per week. He will earn $49,920 going forward.

[94] In closing submissions, Ms. Craig indicated that she is not seeking that support be based on any post-separation increase in Mr. Craig’s income. She concedes that support will be based on the Mr. Craig’s income determined in the Final Order namely, $43,221.

Motion to Change and Mr. Craig’s Employment with Jones Feed Mills

[95] Mr. Craig started this Motion to Change in 2018 as he expected his income to be lower. He had quit his job with Jones Feed Mills Limited (“Jones Feed Mill”). He states he quit this job because he was working a large number of hours and moving between two cities. When his employer requested that he relocate to Mitchell, he decided to quit as he did not want to relocate. He worked at Jones Feed Mill from September 19, 2012 or August 25, 2018.

[96] Ms. Craig called as a witness, Matthew Hogan, who is the Human Resource person at Jones Feed Mills. Mr. Hogan’s evidence confirmed that Mr. Craig started his employment on September 19, 2012 and quit his job sometime in the summer of 2018. The last day for which Mr. Craig was paid was August 17, 2018. As Mr. Hogan was not the HR person at the time, he could not elaborate as to the reason Mr. Craig quit his job.

[97] Mr. Hogan advised that at the time he quit his job, Mr. Craig was earning $37,128 per annum ($17.85 per hour). Jones Feed Mill had a group RRSP. Mr. Craig also had an outstanding loan with the company. On August 29, 2018 Mr. Craig received a cheque for $2,268.77, which was the amount agreed upon between him and his employer based on the amount held in the group RRSP less the monies owing by Mr. Craig. The employer agreed to write off $2,669 of the loan owing.

Background of the Roles Assumed During the Marriage and Ms. Craig’s Employment and Schooling

[98] Ms. Craig has a postsecondary diploma from Cambrian College as a cabinet maker.

[99] By the time she was 19 years of age in 1977, she states that she was earning $27.00 per hour.

[100] Until Bobbi was born in 1984, Ms. Craig worked full time.

[101] After Bobbi was born, Ms. Craig took a six-week maternity leave. She advised that women in the trades did not have full maternity leave at that time. She states that after she went back to work, Mr. Craig could not care for Bobbi as he had broken his ankle playing hockey. Accordingly, the maternal grandparents cared for Bobbi while she was at work.

[102] After Zackary was born, Ms. Craig took a six to nine-month maternity leave. When she went back to work the parties hired a nanny. Ms. Craig worked from 11-7. Mr. Craig worked at Bi-Way in Sarnia and therefore was commuting from their home in London. After two nannies were fired, the parties decided that one of them would remain home. Ms. Craig remained at home to care for the children.

[103] In or about 1987, Ms. Craig completed a quality control and machinist course at Fanshaw College.

[104] In 1988, the parties relocated to Sudbury so that Mr. Craig’s parents could assist with the care of the children.

[105] Ms. Craig states that she looked after the children 100% of the time as Mr. Craig worked long hours and if he had a weekend off, he played sports. Mr. Craig does not deny that during the early years, Ms. Craig was the primary care parent, but states he was also very involved with the children.

[106] From 1988-1993, Ms. Craig opened and operated a craft store. This allowed her to be available to be home when the children got off the bus. She states she stopped operating the store in 1993 as she became ill. Her employees carried on, but as she could not work, the store was not operating at a profit. She states that she was ill for some time before she was diagnosed. She states she was not diagnosed with thyroid cancer until 1995. She did not undergo radiation or chemotherapy as her cancer was different in that it attacks the immune system. Ms. Craig stopped working for health reasons. No medical professionals were called as witnesses.

[107] Ms. Craig indicates that after the children were born, she returned to school. A women’s organization paid for her school and a babysitter. She took the following full-time courses:

1992 - 16-week course to obtain her license to install floors;

1993 - 40-week carpentry course;

1994 - cabinet making course.

[108] Ms. Craig admits that she was attending school in person but denies that Mr. Craig cared for the children. She states her parents cared for the children.

[109] In 1997, Ms. Craig started to receive CPP disability. The children received some portion of the CPP.

[110] I agree with Ms. Craig that her claim for spousal support is needs based. Any compensatory claim for spousal support would have long been satisfied.

Support Payments Made by Mr. Craig Since 2002

[111] At the date of separation, the parties owned two homes namely:

(i) 381 Ottawa Street North in Kitchener which was purchased in 2000; and

(ii) 731 Regent Street in Sudbury.

[112] The Sudbury home was managed by Ms. Craig’s father. He secured renters and made the payments from the rental income or otherwise in relation to the Sudbury home.

[113] The Kitchener home sold on March 10, 2006.

[114] Mr. Craig states that post-separation and until January 2006, he was paying the mortgage, property taxes and utilities and other third-party payments in relation to the Kitchener property for the support of Ms. Craig, who resided there. He states the money came directly out of his bank account. Ms. Craig’s sources of income at the time were CPP disability and some money from making crafts.

[115] Ms. Craig initially states that she paid all of the expenses for the Kitchener home post-separation. When it was pointed out to her in cross-examination that her income would make that impossible, she stated that they both, she and Mr. Craig, paid those expenses. Finally, she admits that Mr. Craig paid the mortgage, taxes, utilities and property insurance with respect to the Kitchener home, as she did not have the ability to do so. At the uncontested trial, Ms. Craig estimated the expenses for the home to be $2,000 per month.

[116] The first order for spousal support is that of Flynn J. dated July 27, 2006, which required Mr. Craig to pay $1,000 per month in spousal support retroactive to August 2006. In the uncontested trial, Ms. Craig admitted that she started to receive (albeit not always on time) $1,000 per month in February 2006. The Final Order makes the support retroactive to November 2005.

[117] I find as fact that Mr. Craig has been paying support by either making third party payments for the benefit of Ms. Craig or formal support since the end of October 2002. Accordingly, by the end of the trial in February 2021 he had been paying support for 18 years and 4 months. Their relationship was 20 years in duration.

[118] As the parties were together 20 years, the range in the SSAGs is indefinite. Therefore, regardless of which date of separation I accepted, the duration of spousal support would be indefinite.

Current Financial Circumstances of the Parties

[119] These parties are both in dire financial circumstances.

[120] In January 2021, Ms. Craig had $3.22 in her bank account and owned a vehicle which she states was worth $500. The only other “asset” she had was the money she states is owing to her by Mr. Craig with respect to the equalization payment in the Final Order.

[121] On January 10, 2020, Mr. Craig’s net worth was $662. That figure includes the costs owed to him by Ms. Craig in the sum of $3,343. But for that costs order, his net worth was in the negative.

[122] Ms. Craig’s financial statement, sworn January 13, 2021, sets out Ms. Craig’s expenses which total $2,410.33 per month. I find both the meals outside the home and the storage costs to be unreasonable in light of the income of the parties. I also find that the gas expenses could be reduced by two thirds if Ms. Craig either moved back to Kitchener or had her medical needs taken care of in the place where she resides. For example, there is no need for her to travel to Kitchener to pick up her prescriptions. I do not accept her assertion that she does not live in Kitchener for fear of Mr. Craig.

[123] Ms. Craig’s provided oral evidence of her proposed budget would include special meals because she states she is a diabetic ($450 a month in food), a new used car as she has to travel from Woodstock to Kitchener for her doctors and counselling and pharmacy needles for insulin, toe nail cut to preserve her feet, storage cost for items she moved because of a flood, $1,200 for rent, CPAC machine ($400), proper running shoes ($150), a foot doctor ($60-$70 per visit), a cane (even though the doctor’s recommend a walker which she has), dental care, eyeglasses, bladder pads, and tooth repair. Although many of these expenses are reasonable on their face, her requests are unreasonable in light of the financial circumstances of the parties and the fact that Mr. Craig has no ability to meet his own health needs.

[124] Mr. Craig’s budget is less than Ms. Craig’s budget once his pay deductions and income tax are removed from the budget. Mr. Craig’s health issues include a torn rotator cuff, shoulder problems, numerous heart attacks starting in 2011, losing a left toenail, and a car accident during this trial. He has been unable to afford to attend to his own medical needs.

Actions of the Parties That Have Impacted Their Financial Circumstances

[125] Ms. Craig made a human rights complaint in relation to Zachary (who has been rated the number one goalie in the province), saying he had been abused and as a result he was no longer able to play hockey in Sudbury. As a result, Mr. Craig and Zachary moved to Kitchener in a rented apartment. The parties later purchased the Kitchener home. Ms. Craig and Bobbi joined them in 2000.

[126] Ms. Craig started a lawsuit against the City of Sudbury when she severed her finger on a broken beer bottle while swimming. A four-day trial took place. The lawsuit was dismissed on December 18, 2007. $25,000 in costs was ordered. There is no dispute that Mr. Craig paid these costs.

[127] Ms. Craig did not co-operate in the sale and accounting in relation to the Sudbury property. Her Father started a lawsuit. The lawsuit was finalized in 2007. Ms. Craig did not succeed in the lawsuit and her father was awarded $37,262.36 plus $41,941.86. It appears therefore that she received nothing from the sale of the Sudbury property.

[128] Ms. Craig did not co-operate in the sale of the Kitchener home and as a result the home was sold for less than it could have been had she co-operated.

[129] During a phone call with FRO on May 20, 2008, and while discussing with the FRO representative how he could get his license back, Mr. Craig stated that “might as well shoot the bitch”. On January 13, 2009, Mr. Craig plead guilty to utter threats. Hearn J. found that there was no history of violence in the relationship. He was put on probation for nine months.

[130] In 2008, Mr. Craig went to jail for failure to pay support. He spent 11 days at Maplehurst. He states that as a result, he was not considered for promotions.

[131] Ms. Craig admits that she picketed outside Mr. Craig’s workplace, namely Van Haute Coffee, post-separation. As a result, Mr. Craig states he lost his job.

[132] Ms. Craig was charged with trespassing on property of Lucy Bowers – she went to the home, parked and blocked in Ms. Bowers’ son, who was trying to get to his job as a firefighter. She refused to move the car and was charged with trespassing.

[133] On December 18, 2014, Ms. Craig asked the court to take her outside of FRO. Mr. Craig begged the court not to do this. The end result was that Ms. Craig had to pay monies to obtain bank statements to prove to FRO that he paid $30,628.84 in support to her directly.

[134] Mr. Craig admits there were periods of time when he did not pay the court ordered support. He asserts that he should have brought his Motion to Change earlier.

The Law - Variation of Spousal Support

[135] As 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 s. 17. Per s. 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 s. 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.

[136] The correct approach to these provisions was laid out by Minnema J. in Haworth v. Haworth, 2018 ONSC 159, 5 R.F.L. (8th) 404, at paras. 27-29:

27 As an overview, the approach to be taken was set out by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, at paragraph 50 (citing its decision in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518) 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

28 The law is settled and there is no dispute that any change in circumstances would need to be material. "Material" has been held to mean a change that if known at the time of the making the previous order would likely have resulted in different terms (L.M.P. at para. 32). What amounts to a material change in circumstances will depend on the actual circumstances of the parties at the time of the making of the order (L.M.P. at para. 34) including the arrangement reflected in the terms of the agreement/order sought to be varied (L.M.P. at paragraphs 37 to 46).

Passage of Time

29 The husband argued that he has been paying on a Divorce Judgment for 24 years when the appropriate order at the time, as evidenced by the Spousal Support Advisory Guidelines ("SSAG") calculation he has since produced, would have been a maximum of 17 years. It should therefore simply end. As noted in Slongo v. Slongo, 2017 ONCA 272, also a variation case, the SSAGs "are . . . a very valuable tool for assessing a reasonable range of spousal support and should not be departed from lightly" (paragraph 81). They have been used to help assess the appropriate duration for spousal support in other variation cases: for example, see Bosanac v. Bosanac, 2014 ONSC 7467 (Ont. S.C.J.) at paragraph 56 and Rezansoff v. Rezansoff, 2007 SKQB 32 at paragraph 51.

[137] Mr. Craig relies on the decision of Pitt v. Pitt, 2019 ONSC 949 for his position that the passage of time is, in and of itself, a material change in circumstances. I agree that 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. 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.

[138] I also agree that an order for indefinite support does not mean permanent support.

[139] The difficulty in this case is that the wife became disabled in 1997. Mr. Craig agrees that she is unable to work. Ms. Craig has need for continued support. Other than the passage of time, there has been no material change in circumstances. The other factors advanced by Mr. Craig are no longer applicable. His income is not less than the income on which support was based in making the Final Order, and Ms. Craig is not able to receive her CPP pension division while she is in receipt of CPP disability. Ms. Craig’s financial situation is, to some extent, attributable to her own actions. Mr. Craig himself is in dire financial circumstances. Furthermore, the SSAGs indicate that the range of spousal support is indefinite. In a situation such as this, the passage of time alone will not be generally be sufficient to terminate support: Favero v. Favero, 2013 ONSC 4216, aff’d 2015 ONSC 1264 (Div. Ct.); Lafazanidis v. Lafazanidis, 2019 ONSC 3108, aff’d 2020 ONSC 5496 (Div. Ct.), Hess v. Hamilton, 2018 ONSC 661, 5 R.F.L. (8th) 287. As a result of the parties’ agreement on the issue of ongoing support but for 17 months and the termination of support I need not make a determination as to whether there was a material change in circumstances.

[140] Both parties agree that the current level of support will continue to and including the month of January 2024.

[141] Both parties agree that support will terminate when Ms. Craig turns 65 years of age.

[142] Both parties agree that the support will reduce on February 1, 2024. They have agreed that the spousal support payable thereafter will be no more than $600 per month.

[143] When the DivorceMate calculations are completed based on the following factors:

(a) Length of relationship (cohabitation to separation)

(b) Income of Mr. Craig at $43,221

(c) Income of Ms. Craig as follows:

CPP - $6,185

OAS - $7,384

GIS – $2,683.68,

the calculation ranges are $661 low, $771 mid and $881 high. In arriving at this I have considered both OAS and spousal support as claw backs to income.[^3]

[144] In all of the circumstances as they are understood today, I order that Mr. Craig pay to Ms. Craig the sum of $600 per month or $138.56 weekly commencing on Friday, January 26, 2024 and each Friday thereafter until terminated. This was the ceiling to which they agreed and is below the low end of the ranges. Given Mr. Craig’s own dire circumstances this is a reasonable ceiling.

[145] On consent, spousal support shall terminate on July 6, 2025.

Life Insurance

[146] The Final Order requires Mr. Craig to obtain and maintain life insurance in the amount of $100,000. He is to name Ms. Craig as the irrevocable beneficiary of said policy. There was no requirement that he provide ongoing proof to Ms. Craig that the policy was in place. The Final Order was based on Mr. Craig having life insurance through his employer.

[147] In 2010, MacPherson J. varied the Final Order such that Mr. Craig was to obtain life insurance with a death benefit of $100,000 naming Ms. Craig as the primary beneficiary and allowed Mr. Craig to name his two grandchildren as contingent beneficiaries. Ms. Craig was to receive a copy of the policy each year.

[148] Mr. Craig obtained a Term 10 Life insurance Policy with FaithLife Financial Insurance on September 28, 2010, with a face value of $100,000. His premium was $29.16 per month.

[149] Mr. Craig indicates that the only time he has provided proof was when the parties were represented by counsel, as he had no means of forwarding proof to Ms. Craig.

[150] Ms. Craig indicates that even when counsel was involved, the proof was not forthcoming. She states that Mr. Craig has been in breach of the order.

[151] Originally, Ms. Craig sought an increase in the amount of life insurance to $250,000 and an order that she be the irrevocable beneficiary designate of said life insurance. Although not plead, she seeks to be a co-owner of Mr. Craig’s policy. She states that in the event she is named a co-owner of the policy she will pay 50% of the premiums. By closing submissions, Ms. Craig sought that she be named the irrevocable beneficiary of $61,200 in life insurance calculated as follows: $1,200 a month x 12 months x 3 years = $43,200 and $600 a month x 12 months x 2.5 years = $18,000. She did not provide any DivorceMate calculations in reference to the quantum of life insurance she was seeking.

[152] Mr. Craig seeks a decrease in the amount of life insurance commensurate with whatever order the court makes. He also seeks that the designation be revocable to avoid having to deal with Ms. Craig in the future. Mr. Craig’s position is that Ms. Craig be named the revocable beneficiary of his life insurance policy reduced to $35,000. He did not provide me with any DivorceMate calculations to substantiate his position but instead made submissions regarding Ms. Craig putting the amount into an annuity.

[153] I pointed out to both counsel that the DivorceMate Software has the capability of providing counsel with the calculations.

[154] Given the parties’ consent that Mr. Craig continue to pay $1,200 a month, with the last payment being January 1, 2024 (32 months), his life insurance obligation would be $29,600.

[155] As I accept Ms. Craig’s position that in addition to the above, Mr. Craig pay $600 a month for 17 further months, $7,760 in additional life insurance would be required.

[156] The total of the two amounts is $37,360.

[157] Mr. Craig testified that he cancelled his FaithLife policy one week before he obtained a new policy with Empire Life in March 2020 because someone called FaithLife and advised them he had a health condition and his premium went up substantially. He believes that Ms. Craig is the person that called.

[158] Rhonda McCollough from FaithLife testified that the $100,000 policy named Ms. Craig as irrevocable beneficiary. The FaithLife policy lapsed in December 2019 due to non-payment of the premiums. She had no knowledge of the anonymous phone call. She indicated the increase in premiums to $140.75 per month was a result of the policy renewal.

[159] Stephanie Wisniewski who is the director of retail operations with Empire Life Insurance was a witness in these proceedings. A lawyer from Empire Life, Mr. Kevin Cooke, was also present. Ms. Wisniewski confirmed that Mr. Craig has a life insurance policy in place naming Ms. Craig as the sole revocable beneficiary of $100,000 of life insurance. Mr. Craig pays $52.11 per month. It is a 10-year policy.

[160] Ms. Wisniewski testified that a change in ownership will not result in an increase in fees but may trigger some tax.

[161] Ms. Wisniewski confirmed that if Ms. Craig was made an irrevocable beneficiary her signature would be required in order to make any changes to the policy.

[162] Ms. Wisniewski was also able to confirm that Empire Life would be able to act on a court order in this case (despite not having been given notice) requiring that Ms. Craig be provided with the annual statements, beneficiary information, face amount and that the policy is in good standing. If the policy were to lapse, then only the owner of the policy would be advised.

[163] I agree that Mr. Craig has not been diligent in providing proof of life insurance. I will make an order that Ms. Craig is to be the irrevocable beneficiary. My order will require Ms. Craig to sign the consents necessary to reduce the amount failing which this matter shall return before me without the need for a fresh application. I will also, given Empire Life’s consent, require Empire Life to provide to Ms. Craig, on a yearly basis, a policy summary which would indicate the owner of the policy, the beneficiary designation of the policy and the face amount of the policy and whether the policy is in good standing.

[164] As Mr. Craig had no notice of Ms. Craig’s request to make her a co-owner until closing submissions and was unable to make inquiries regarding the impact of this change, I decline to make an order that Ms. Craig be a co-owner of the policy.

Trillium Benefits

[165] Ms. Craig seeks that Mr. Craig pay for her Trillium Benefits as per the temporary Order of MacPherson J. dated September 28, 2010. This payment was not part of the Final Order. The Final Order appears to be based on the mid point in the Spousal Support Advisory Guidelines.

[166] MacPherson J., in her detailed endorsement of September 28, 2010, found that at the time the Final Order was made, Mr. Craig did not have any health or dental insurance coverage. As a result, she made an interim order that Mr. Craig pay Ms. Craig’s Trillium Drug deductible benefit.

[167] The yearly deductible paid by Ms. Craig in respect of the Trillium Drug Program for the period of August to July each year was: 2011-2012 ($669), 2012-2013 ($489), 2013-2014 ($350), 2014 -2015 ($871), 2015-2016 ($1051), 2016-2017 ($646), 2017-2018 ($714), 2018-2019 ($393), 2019-2020 ($714).

[168] Given Mr. Craig’s agreement to continue to pay $1,200 per month until January 24, 2021, which is more than the high end of the SSAGs, using the same income as was the basis of the Final Order, I decline to make this order.

Orders Made

[169] The date of separation of the parties is the end of October 2002.

[170] Orders made:

1. Effective May 1, 2021, Mr. Craig shall no longer be required to pay Ms. Craig’s Trillium deductible.
2. On consent, Mr. Craig shall continue to pay the sum of $1,200 per month by paying same weekly in the sum of $277 with the final weekly payment to continue until January 24, 2024.
3. Commencing January 31, 2024, Mr. Craig’s spousal support shall be reduced to $600.00 per month, payable weekly in the sum of $138.57 per week. At Mr. Craig’s option he can pay to Ms. Craig $7,760 in lump sum spousal support in lieu of this monthly amount. This is the midpoint between Ms. Craig’s after-tax benefit of $7,956 and Mr. Craig’s after-tax cost of $7,565.
4. On consent, spousal support shall terminate effective July 6, 2025.
5. Mr. Craig shall name Ms. Craig the irrevocable beneficiary of life insurance in the sum of $37,360: (a) On May 1, 2022, the amount of life insurance designated in favour of Ms. Craig shall be reduced to $26,360. (b) On May 1, 2023, the amount of life insurance designated in favour of Ms. Craig shall be reduced to $15,360. (c) On January 24, 2021 the amount of life insurance designated in favour of Ms. Craig shall be reduced to $7,760. (d) Effective July 1, 2025, there shall be no further requirement for Mr. Craig to name Ms. Craig as the beneficiary of any life insurance.
6. Ms. Craig shall promptly co-operate and sign whatever documents are required to reduce and eventually eliminate the amounts as set out in paragraph 5. If she does not do so the matter can be returned before me to deal with the issue without a fresh application.
7. On consent of Empire Life during evidence, Empire Life shall provide to Ms. Craig the annual statements, beneficiary information, and face amount and whether the policy is in good standing. Counsel for Ms. Craig shall ensure a copy of the Order is sent to Empire Life. Counsel for Ms. Craig shall also provide to Empire Life the contact information it requires to send the documentation to Ms. Craig.

Costs

[171] Both parties seek costs. If the parties are unable to resolve the issue of costs, which I encourage them to do, the moving party, Mr. Craig, may file written submissions on costs within 21 days. Ms. Craig may file responding written submissions within 14 days thereafter. Mr. Craig may provide brief reply submissions seven days thereafter. Submissions are not to exceed five pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines without my permission. If a party does not provide submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.

Piccoli, J.

Released: May 5, 2021

[^1]: However, his income at the time he brought the motion to change as per his financial statement dated April 25, 2018, was $44,700, which is similar to the income he earned when the Final Order was made.

[^2]: It was in fact confirmed that Ms. Craig cannot take advantage of the CPP credit split as this would impact her ability to receive CPP disability

[^3]: See generally Government of Canada, “Old Age Security payment amounts” (April 19, 2021), online: www.canada.ca/en/services/benefits/publicpensions/cpp/old-age-security/payments.html