COURT FILE NO.: FS-17-00017392-0000
DATE: 20210507
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cathryn Casier, Applicant
AND:
Mark Casier, Respondent
BEFORE: Howard J.
COUNSEL: Luigi DiPierdomenico, for the Applicant
Larry M. Belowus, for the Respondent
HEARD: November 20, 2020, and December 16, 2020
ENDORSEMENT
Overview
[1] The respondent husband has brought a motion, dated March 3, 2020, initially returnable March 13, 2020 [Continuing Record, Vol. 2, Tab 33], seeking, inter alia, the following relief:
a. An order varying the temporary order of Campbell J. dated August 15, 2017 (the “Campbell Order”), by terminating the spousal support payable by the respondent husband to the applicant wife effective February 1, 2020; or
b. In the alternative, an order varying the Campbell Order, by reducing the quantum of spousal support payable by the respondent husband to the applicant wife effective February 1, 2020.
[2] The applicant wife opposes all relief sought.
[3] The application here was commenced on February 27, 2017 – more than four years ago. It proceeded to a case conference before Campbell J. on June 27, 2017.
[4] By notice of motion dated July 7, 2017, originally returnable July 21, 2017 [Continuing Record, Vol. 1, Tab 11], the applicant wife brought a motion for interim spousal support, seeking an order, inter alia, that the respondent husband pay her interim spousal support of $19,580 per month.
[5] That motion was ultimately heard by Campbell J. on August 4, 2017, and it resulted in the Campbell Order in question.
[6] By para. 1 of the Campbell Order, the court ordered that:
The Respondent Mark Casier shall pay to the Applicant Cathryn Casier, on an interim interim basis, spousal support in the sum of $11,000.00 per month commencing August 15, 2017 and continuing on the 15th day of each month thereafter until further order of this Court. [Emphasis added.]
[7] As was made clear by para. 2 of the Campbell Order, the support order was made on the basis of the respondent husband earning an annual income of $300,000, and the applicant wife having no income.
[8] I note that the Campbell Order was made on an “interim interim basis.” That fact was made clear by, not only the explicit provisions of para. 1 of the Campbell Order, as quoted above, but also the supporting reasons of Campbell J., contained in his endorsement of August 15, 2017, in which the court made it clear that the temporary order was being issued on an “interim interim basis,” as follows:
Both the applicant and respondent served and filed motions for interim relief. Upon return of the motions before me, the only issue argued was the quantum of spousal support to be paid by the respondent to the applicant. The issue of entitlement was conceded for the purpose of the applicant’s interim interim claim. Counsel acknowledge that the order needs to be an interim interim order to allow for the exchange of further financial information and possibly questioning. [Emphasis added.][^1]
[9] A review of the court record indicates that there were no further filings by the parties after August 2018, until March 3, 2020 (when the instant notice of motion was filed), and, as well, there were a series of repeated endorsements made, as reflected in the Endorsement Record, from September 2017 until October 5, 2020.[^2]
[10] I also note that there was no endorsement made after my own endorsement on February 19, 2019, until more than one year later, on March 13, 2020, when the instant motion (and others) were further adjourned.
[11] In other words, nothing much seems to have happened on this file, apparently, from August 2018 until March 2020 – a period of delay of a year-and-a-half – or at least, from February 2019 until March 2020, a period of more than one year’s delay.
[12] In 2019, the respondent husband experienced what one might call a “forced retirement.” When his company, a tool and die shop, lost its major client, the company ceased all production in May 2019. The company’s floor plant employees were terminated effective October 31, 2019, and the business of the company was closed and its assets were liquidated. The respondent husband’s base salary from the company terminated on January 31, 2020.
[13] The loss of the respondent husband’s employment thus prompted the instant motion, as the respondent was no longer earning anything near the $300,000 amount upon which the Campbell Order was based.
[14] As I have said, the instant motion was initially returnable March 13, 2020. Upon the request for an initial adjournment to allow the applicant wife to deliver responding materials, the motion was adjourned to March 20, 2020.
[15] However, on March 15, 2020, the Office of the Chief Justice issued a “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings,” which advised that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice suspended all regular operations, effective Tuesday, March 17, 2020, and until further notice, subject to “urgent and emergency” matters, which would continue to be heard by the court.
[16] As a result of the COVID-19 pandemic, the hearing of the instant motion was delayed until November 20, 2020. The hearing of the motion continued and concluded on December 16, 2020.
[17] In support of his motion, the respondent husband filed an originating affidavit sworn January 30, 2020. The applicant wife delivered a responding affidavit sworn September 28, 2020. The respondent delivered a reply affidavit sworn October 26, 2020. Each party also delivered an updated financial statement. However, neither party conducted any cross-examinations on any of the affidavits.
Factual Background
Overview
[18] The applicant wife was born on November 4, 1961, and is presently 59 years of age. She was 54 years of age at the time of separation.
[19] The respondent husband was born on January 27, 1959, and is presently 62 years of age. He was 57 years of age at the time of separation.
[20] The applicant wife and respondent husband were married on June 27, 1981.
[21] The parties have two adult children: Ryan was born on April 18, 1983, and is currently 38 years old. Erin was born on February 11, 1986, and is currently 35 years old. It is common ground that both adult children have been living independently for quite some time.
[22] The parties agree that they separated in 2016; however, they disagree on the precise date of separation. The applicant wife alleges that the date of separation is June 13, 2016. The respondent husband maintains that the parties separated on September 4, 2016, being the date that he vacated the matrimonial home.
[23] For present purposes, the exact date of separation is not material. In either case, it is clear that this was a marriage of some 35 years’ duration.
[24] The applicant wife continues to reside in the jointly owned matrimonial home, located at 610 East Road 11, R.R. No. 4, Woodslee, Ontario, for the last, almost five years (on the wife’s views) since separation. The respondent husband believes the current value of the matrimonial home exceeds $500,000. (And I note, the husband expressed that view in January 2020, whereas it is well known that the current real estate market in Windsor-Essex has seen a considerable increase in property values since January 2020.) There is no mortgage on the home. The applicant wife is not paying occupation rent.
[25] The respondent husband resides in rental accommodation in the town of Essex, Ontario.
[26] Beyond these basics, the parties disagree, to varying degrees, on most of the remaining factual issues. I do not propose to enumerate all of the areas of the parties’ disagreement, much less attempt to determine them at this interim stage; however, I will address, below, those areas of disagreement that are material to the determination of the issues on this motion.
[27] As well, given the interim nature of this motion, and the sheer number of disputed facts between the parties, I would emphasize to the party litigants that I make no binding findings of fact here at this interim stage, but, rather, I shall review the factual background and make appropriate findings and conclusions only insofar as is necessary to determine the issues on this interim motion, leaving it to the trial judge to determine the ultimate dispute between the parties on a full record of evidence. Any findings of fact or law made by this motion judge on this interim motion do not and should not have any binding effect in the subsequent trial proceeding.[^3]
The respondent husband’s employment history
[28] The respondent husband has worked in the tool and mold industry for some 40 years.
[29] The respondent husband commenced working for Comber Tool & Mold Eng. Inc. (“Comber Tool”) on a full-time basis in or about 1980.
[30] Comber Tool was then owned equally by the father of the respondent husband, Mr. Eugene Casier, and his (considerably younger) partner, Mr. John St. Pierre, through each of their respective holding companies. The holding company owned by Mr. Casier (senior) was 1425320 Ontario Inc. (“142”).
[31] During the early 1980s, the respondent husband worked full-time during the day at Comber Tool and attended St. Clair College for evening classes two evenings per week. He ultimately obtained his mold maker diploma in 1984.
[32] The evidence of the respondent husband is that in August 2000, by way of a written declaration of gift, the father of the respondent husband gifted his shares in 142 to the respondent husband. The evidence of the respondent husband is that it was the wish and requirement of his father that his gifting of the shares of 142 to the respondent husband be excluded from any claim that might be made by a spouse under the Family Law Act.[^4]
[33] The respondent husband became plant manager of Comber Tool in 2005.
[34] To date, 142 remains the one-half owner of Comber Tool through its ownership of preference shares in Comber Tool. In essence, the respondent husband is currently a one-half owner, through his holding company, of Comber Tool, and his business partner, Mr. St. Pierre, remains, through his own holding company, a one-half owner of Comber Tool as well. The respondent husband and Mr. St. Pierre were both responsible for operating the business, and it is said they had equal authority in that regard.
[35] Starting in or about 2012, the respondent husband was paid an annual salary by Comber Tool in the amount of $252,205. His business partner was paid the same salary. The respondent’s salary was significantly less in prior years.
[36] The evidence of the respondent husband is that, commencing about four or five years ago, the business of Comber Tool started to decline and sales decreased considerably. The business continued to decline throughout 2017, 2018, and 2019, and the respondent husband and Mr. St. Pierre provided loans to Comber Tool, through their respective holding companies, in order to keep the business operating.
[37] The evidence of the respondent husband is that, in or about 2019, Comber Tool’s major customer, (then) Fiat Chrysler, pulled all work and contracts from Comber Tool and reassigned that work to U.S. suppliers. The evidence of the respondent husband was that he and his business partner had no choice but to close down Comber Tool and liquidate its assets.
[38] As a result, Comber Tool ceased all production in May 2019. All employees either quit or were laid-off, except for four employees who remained in the plant, cleaning and preparing assets for sale, and two office staff.
[39] The employment of the floor plant employees was terminated effective October 31, 2019.
[40] On November 19, 2019, an auction was held by Infinity Asset Solutions for the sale of all machinery and tooling assets owned by Comber Tool. As a result of the sale of assets, Comber Tool received $1,135,000. 142 is entitled to receive one-half of that amount, being $567,500. That said, Comber Tool continued to use those proceeds to continue paying operating costs, including overhead and office staff. The respondent believes that, as a result, the net amount received will be significantly less.
[41] The building and property that housed the Comber Tool business, located at 6537 Taylor Avenue in Comber, Ontario, is listed for sale. The original listing price was $1,500,000; however, for the first several months that it was listed, they received no offers to purchase. In his reply affidavit sworn October 26, 2020, the respondent husband stated that he and his business partner were expecting that the property should be sold “shortly” for the sum of $1,300,000. After commissions, legal fees and other expenses, the sale of the property is expected to net approximately $1,200,000. The respondent believes that taxes will have to be paid by Comber Tool on this amount, and it is unknown how much, if any, funds from the proceeds of sale of the property will be distributed to the respective holding companies of the respondent and his business partner. The evidence of the respondent husband is that Comber Tool has significant liability and is in a deficit position with respect to earnings/shareholder equity.
[42] For the year ending January 31, 2019, Comber Tool suffered a gross loss in the sum of $344,619 and a net loss of $165,687.
[43] For the year ending January 31, 2020, Comber Tool suffered a gross loss in operations in the sum of $734,240 and a net loss of $1,056,232.
[44] For the year ending October 31, 2019, 142 earned a net income after expenses in the amount of $48,236. The company’s taxable income was $31,543.
[45] (The financial statements of 142 for the year ending October 31, 2020, were not available to the court, as they had not yet been prepared when the respondent husband swore his reply affidavit.)
[46] The respondent husband and his business partner were paid their base salary by Comber Tool until January 31, 2020. At that point, both salaries were terminated, and they have received no further income from Comber Tool since then.
[47] The evidence of the respondent husband is that his total income from all sources, including employment income and dividends, from 2011 through 2019 is as follows:
• 2011: $182,088
• 2012: $251,188
• 2013: $253,888
• 2014: $258,527
• 2015: $809,556 (which includes dividend income of $552,000)
• 2016: $357,474 (which includes dividend income of $101,279)
• 2017: $259,087
• 2018: $259,724
• 2019: $252,269
[48] The evidence of the respondent husband is that his last dividend from 142 was paid in 2016. He has received no dividends from 142 since then.
[49] Following the termination of the respondent’s salary in January 2020, his only income has been from his investments and interest earned on his savings and investments of 142. That is, the respondent husband withdraws funds to support himself from the funds owned by 142. He is presently withdrawing $800 per week, which amounts to $41,600 per annum.
[50] Following the termination of his salary in January 2020, the respondent husband stopped making any spousal support payments to the applicant wife.
The applicant wife’s employment history
[51] The applicant wife did not obtain all of the necessary credits to achieve her secondary school graduation diploma. She left high school in 1979, when she was then just 17 years of age. That is the extent of her education.
[52] The evidence of the applicant wife is that, until 2000, she worked in either part-time or full-time positions throughout the marriage (except for the months following the birth of each child) in order to contribute to the household income.
[53] Commencing in 1989, the applicant wife worked as a cook at a nursing home on a part-time basis. In 2007, her position at the nursing home became full-time.
[54] It is common ground that the applicant wife retired from working at the nursing home in 2012. However, the circumstances surrounding the decision of the applicant wife to retire are very much in dispute. The evidence of the applicant wife is that she and the respondent husband had various discussions in 2012, and they agreed that it was unnecessary for her to continue to work at the nursing home. Indeed, the applicant wife alleges that it was the respondent husband who told her that it was no longer necessary for her to work because of the significant “changes [i.e., increase] in our family’s financial fortunes.”
[55] The applicant wife’s version of events is flatly denied by the respondent husband. He maintains that they never discussed her decision to retire from the nursing home. His evidence is that, “[w]ithout any notice or previous warning to me she decided to quit her employment when she was 50 years old in 2012. She refused to go back to work.” Indeed, the position of the respondent husband is that the applicant wife has made no attempt to become self-supporting or to earn at least some income since the parties’ separation over four years ago, at which time the applicant wife was only 54 years of age.
[56] In any event, the applicant wife has not worked since 2012. She has had no independent source of income (other than very modest investment income) since that date.
[57] The evidence of the applicant wife is that her total income from all sources, including the spousal support received from the respondent husband since the Campbell Order in 2017, for the last three years is as follows:
• 2017: $46,315 (of which $44,000 was spousal support)
• 2018: $134,640 (of which $132,000 was spousal support)
• 2019: $132,485 (of which $132,000 was spousal support)
[58] The financial statement filed by the applicant wife estimates her total amount of annual expenses is $140,880. That amount contemplates annual spending of $7,200 on clothing, $12,000 on entertainment, $12,000 on gifts, and $12,000 on vacations.
Issues
[59] Put broadly, the issues on the motion that require determination are as follows:
a. Has there been a change in circumstances justifying variation?
b. What is the income of the respondent husband for support purposes?
c. What is the income of the applicant wife for support purposes?
d. What, if any, is the appropriate amount of spousal support that should be paid?
Analysis
Has there been a change in circumstances justifying variation?
The nature of interim orders
[60] In my view, at the outset of the analysis, it is instructive for the parties to bear in mind the nature of interim orders.
[61] The nature and purpose of interim orders in family law proceedings were aptly described by Zuber J.A. of the Ontario Court of Appeal in Sypher v. Sypher, where the court observed that:
At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.
At trial, after a full investigation of the facts, a trial judge may well come to the conclusion that a substantially different order should be made. I gather that there is a fear that the interim order may acquire such an aura of propriety that there will be a tendency to repeat the terms after trial. This is not so. The trial judge’s discretion is unfettered and his judgment will be rendered on a full investigation of the facts.[^5]
[62] In a similar vein, the Superior Court of Justice in Brown v. Brown commented on the purpose of interim orders, in the following terms:
Interim orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial. Of necessity, interim orders are susceptible to error – the same evidence is simply not available at that stage as at a trial interim orders or makeshift solutions until the correct answer is discovered at trial.[^6]
[63] More recently, in Wharry v. Wharry, our Court of Appeal quoted with approval from the decision of the British Columbia Court of Appeal in Tedham v. Tedham, where that court observed that:
An interim order is just that – one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.[^7]
[64] As our Court of Appeal said in Wharry, “an interim order is often no more than a rough estimate of a payor’s income.”[^8]
The authority to vary interim orders
[65] It is not in dispute that this court has authority to vary an interim order, such as the Campbell Order, based on its inherent jurisdiction and s. 15.2(2) of the Divorce Act.[^9]
[66] In Damaschin-Zamfirescu v. Damaschin-Zamfirescu, Chappel J. explained the basis for the court’s authority in the following terms:
The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 of the Divorce Act sets out a framework for the variation of support and custody orders, however that section only applies to variation of final spousal support orders made pursuant to section 15.2(1) of the Act.
Despite the lack of specific provisions in the Divorce Act regarding variation of temporary orders, the court does have the authority to make changes to temporary spousal support orders in response to developments in the parties' situations and the availability of more fulsome evidence relevant to the spousal support analysis. The power to vary temporary spousal support orders made under the Act derives from the court's inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is critical to ensuring fairness and justice as between the parties, given that temporary orders are often imperfect solutions based on very limited and usually untested information. As Sachs, J. stated in Chaitas v. Christopoulos, temporary corollary relief orders are intended to provide “a reasonably acceptable solution to a difficult problem until trial.”[^10]
[67] In order to succeed on a motion to vary a temporary spousal support order, the moving party must establish that there has been a substantial change in circumstances since the previous temporary order was made.[^11]
[68] Again, in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, Chappel J. provided an explanation of the nature of the test that I find helpful in the instant circumstances, as follows:
The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties' litigation. The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one.[^12]
[69] In making an order for interim support, the court is required to consider the means, needs and other circumstances of each spouse.[^13]
[70] On the evidence before me, it is clear that the applicant wife is in need of spousal support.
Was the retirement of the respondent husband reasonable?
[71] Much of the argument on the instant motion focussed on the means of the respondent husband and his ability to pay spousal support. “Retirement engages a discussion on the ability to pay.”[^14] In that vein, the question of the respondent husband’s decision to “retire” from Comber Tool in January 2020 was the subject of considerable scrutiny.
[72] Indeed, I did not understand the respondent husband to necessarily dispute the applicant wife’s entitlement to spousal support; rather, he asserts that, on account of his retirement, he no longer has the ability to pay spousal support.
[73] The courts have said that where there is an existing support obligation, retirement must be reasonable and for a valid reason.[^15]
[74] Generally speaking, unemployment or underemployment cannot be deliberately created to avoid a support obligation.[^16]
[75] Was the retirement of the respondent husband here reasonable and for a valid reason? I conclude that it was. In my view, the instant case is not a situation of unemployment, underemployment, early retirement, or voluntary retirement on the part of the respondent husband.
[76] As I have reviewed, the evidence indicates that the business of Comber Tool was in decline for some years. That is corroborated by the corporate financial statements and tax returns. The critical event was the decision of Fiat Chrysler – not the respondent husband or his business partner – to pull all work from Comber Tool and reassign that work to its U.S. suppliers. As a result, Comber Tool ceased all production in May 2019. The respondent husband and his business partner then proceeded to close down Comber Tool and liquidate its assets.
[77] As such, when the respondent husband (and his partner) received his last salary payment in January 2020, he was effectively retired at that point. Indeed, his evidence is that he considered himself retired at that point. And for good reason – his business was gone.
[78] This is not a case of early retirement or voluntary retirement where the primary motivation is to defeat a spousal support obligation. Indeed, there is no evidence here whatsoever that indicates that the decision of the respondent husband to retire from Comber Tool was a function of any specific intent by the respondent husband to escape his support obligations. I acknowledge that in her responding affidavit (at, for e.g., paras. 94, 95, and 99), the applicant wife questions whether it is a mere coincidence that the “purported decline” in the business of Comber Tool coincides with the separation of the parties, the imposition of the support obligation on the respondent husband by the Campbell Order, etc. However, the inference that the applicant wife apparently wishes this court to draw is not supported by any objective evidence, and the musings of the applicant amount to no more than speculation. There is no evidence to support them.
[79] In Smith v. Smith, Gordon J. considered the concept of early retirement and opined that “[t]hat concept applies to premature retirement on a reduced pension for the purpose of defeating a legitimate support claim.”[^17] While the concept of early retirement may mean somewhat different things in different contexts, it usually connotes a situation where the employee has made a voluntary decision to elect premature retirement. That is, the effective decision-maker is the employee. Here, in stark contrast, the effective decision-maker was Fiat Chrysler, whose decision to pull all work from Comber Tool, effectively sealed the fate of the business. In that vein, this is clearly not a case of early retirement.
[80] Neither is this a case of voluntary retirement, as has been considered by the courts in cases like Dillman v. Dillman – a case much replied upon by the applicant wife (although subsequently reversed on other grounds on appeal) – where Harris J. concluded (in the context of a summary judgment motion) that “Mr. Dillman’s voluntary retirement does not trigger a material change of circumstances of a kind which would substantially diminish the weight of the original separation agreement.”[^18]
[81] Voluntary retirement cases like Dillman v. Dillman are distinguishable from the instant case. Again, the effective decision-maker here was not the respondent husband; it was Fiat Chrysler. The real exercise of volition was at the hands of Fiat Chrysler, not the respondent husband. The respondent husband and his partner did not go to Fiat Chrysler and voluntarily surrender Comber Tool’s contracts. They did not suggest that Comber Tool’s work be reassigned to Fiat Chrysler’s U.S. suppliers. They did not explain that they both wanted to take early retirement and close up their business, which had been in existence for more than 40 years, and give up their annual salary of $252,205.
[82] In my view, this was far from a voluntary retirement. Rather, as I signalled at the outset of my reasons, this was very much a forced retirement. Their “decision” to retire from Comber Tool was forced upon them by the cessation of the business of Comber Tool, which was a direct result of the decision of Fiat Chrysler to mover their business elsewhere.
[83] Moreover, the conclusion of the respondent husband that, with the business of Comber Tool having been effectively closed down and sold off, he should simply retire was a reasonable one in the circumstances. As of January 2020, the respondent husband was 61 years old and had been working in the tool and mold industry for some 40 years.
[84] In comparison, I note the circumstances in Smith v. Smith, where the respondent there was just 54 years old at the time of trial in September 2013, and had retired on April 25, 2013. In 2011, after 30 years’ service, he qualified for a full pension but continued his employment for two more years. In considering these circumstances, Gordon J. held that:
It is only fair to observe that 65 is no longer the presumptive retirement date. Nor is 62.5, the suggested age according to Mr. Bushell having regard to SSAG. Rather many, if not most, retirement plans now use retirement dates based on an 80 factor (age plus years of employment) or, as here, years of service.
Mr. Smith's decision to retire was reasonable and for a valid reason, having met the pension plan criteria and taking into account the conditions of his employment and the prior discussions of the parties. Further, the retirement was a foreseeable event and could not be said by Ms. Smith to be unexpected.
[85] I would simply note that, in the instant circumstances, where the respondent husband was 61 years old as of the date of his forced retirement in January 2020 and had served for 40 years in the industry, he well surpassed any consideration of an 80 factor – or, for that matter, an 85, 90, 95, or 100 factor.
[86] Moreover, given her own purely voluntary decision of the applicant wife to retire from her position as a cook at a nursing home in 2012 at merely 50 years of age, and her subsequent and ongoing decision to make no apparent effort to obtain alternative employment since the time of her voluntary retirement, it simply does not lie in the mouth of the applicant wife to suggest that the retirement of the respondent husband was not reasonable in the circumstances.
[87] On all of the evidence before me, I am satisfied that the respondent husband’s retirement was reasonable and for a valid reason,[^19] and that he has met his heavy onus to establish that a variation of the interim Campbell Order before trial is justified in the circumstances of the instant case.
What is the income of the applicant wife for support purposes?
[88] As reviewed above, the applicant wife has essentially no independent income but relies exclusively on the spousal support she receives from the respondent husband.
[89] Self-sufficiency is one of the goals set out in s. 15.2(6) of the Divorce Act, which provides that spousal support orders should “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.”
[90] The Supreme Court of Canada has held that a spouse’s failure to achieve self-sufficiency is not breach of “a duty” but is simply one factor amongst others to be taken into account when considering a claim for spousal support.[^20]
[91] On behalf of the respondent husband, Mr. Belowus forcefully argues that this court should impute at least a minimum wage income to the applicant wife on the basis of her failure or refusal to take any reasonable steps to contribute to her own self-sufficiency.
[92] Respectfully, I reject that argument at this stage.
[93] I agree with Mr. DiPierdomenico on behalf of the applicant wife that the courts have repeatedly held that the objective of encouraging self sufficiency is of less importance on interim motions for spousal support.[^21]
[94] In the same vein, Campbell J. observed in his endorsement of August 15, 2017, that the “factors set out in s. 15.2(4) of the Divorce Act are less instructive [on an interim motion] than when considering a final order.”[^22]
[95] I would also note that Campbell J. did not accept that respondent husband’s argument that an income should be imputed to the applicant wife.[^23]
[96] That said, the applicant wife should take small comfort in my interim decision on point. The issue of whether the applicant wife has taken “some reasonable steps”[^24] – or any – to become self-supporting is not going away. Ultimately, the trial judge will need to determine, inter alia, the reasonableness of the applicant wife’s decision to take voluntary early retirement and whether she has taken reasonable steps to contribute to her own self-sufficiency after hearing full evidence and cross examination on the issue.
[97] In these circumstances, I conclude that, for the purposes of assessing spousal support on an interim basis, no income should be attributed to Ms. Casier.
What is the income of the respondent husband for support purposes?
[98] The applicant wife argues that the court should make an interim lump sum spousal award from the respondent husband to her pending trial. In particular, in para. 118 of her factum, the applicant wife submits that this court should impose a charge or lien on the respondent husband’s marketable securities in order to secure what, she submits, amounts to $121,000 in spousal support arrears (said to have accumulated post January 2020) and that, in addition, this court should make an interim lump sum spousal support award of $300,000 pending trial.
[99] Respectfully, I must reject those submissions. I reject the submission on the arrears, which I do not accept as owing, for the reasons set out below. I reject the latter submission on the lump sum payment, for at least two reasons.
[100] The respondent husband no longer earns an annual salary from Comber Tool. Following his retirement in January 2020, which I have found was reasonable, he no longer earns any employment income.
[101] As a result, in order to fund any lump sum spousal award in the order of $300,000, the respondent husband would be required to deplete his capital assets.
[102] However, the courts have held that, under the Divorce Act, there is no authority to support the transfer of capital assets in the guise of spousal support.[^25] While the court is entitled to take into consideration the means of the parties, including their capital assets, a party should not be required to pay spousal support out of his savings or to deplete his capital assets for that purpose.[^26]
[103] Even the applicant wife acknowledges, in para. 106 of her factum, that our Court of Appeal has said that it “is well accepted – and undisputed – that a lump sum award should not be made in the guise of support for the purpose of redistributing assets … Moreover, the governing legislation does not recognize redistribution of assets as one of the purposes of a spousal support award.”[^27]
[104] Second, if the respondent husband were required to make a lump sum spousal support as contended by the applicant wife, the capital assets that he would need to deplete in order to fund that support obligation would be the capital assets of 142 – which, he argues, were acquired by gift.
[105] By reason of s. 4(2), para. 1 of the Family Law Act, included within the concept of “excluded property” – that is, property that a spouse owns on the valuation date that does not form part of the spouse’s net family property – is “property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.”
[106] As I have said, the evidence of the respondent husband is that in August 2000, by way of a written declaration of gift, the father of the respondent husband gifted his shares in 142 to the respondent husband. I say at the outset that the evidence of the circumstances surrounding this alleged gift is not as developed or complete as one would like. I do have the evidence of the respondent husband. But I have little objective, corroborating evidence. For example, the alleged written declaration of the gift is not in evidence before me.
[107] However, even more incomplete and undeveloped – and utterly unsatisfactory – is the “evidence” allegedly supporting the applicant wife’s denial of the gift. Her only statements challenging the evidence of the respondent husband are found in para. 25 of her responding affidavit, where she states that: “Eugene [the father of the respondent husband] and the Respondent were highly competitive. As a result, Eugene never “gifted” the Respondent any standing at the workplace. The Respondent earned every promotion of job responsibility that the Respondent received at [Comber Tool]. [Emphasis in original.]”
[108] The opinion of the applicant wife as to her subjective view of the characters of her estranged husband and his father, and their allegedly competitive relationship, does not assist me to any appreciable degree. Such self-serving opinions provide very little, if any, compelling or even reliable evidence.
[109] In the same utterly unsatisfactory, utterly unconvincing nature is the claim of the applicant wife that she has a proprietary interest in Comber Tool and 142 by reason of her receiving certain payments from two discretionary family trusts. I give no effect to these arguments whatsoever. The evidence is clear that the two discretionary family trusts were created purely as tax vehicles. They had no proprietary interest in 142 or Comber Tool. The discretionary trusts were created simply as income flow-through vehicles for tax reasons only.
[110] To be clear, however, I make this finding without prejudice to the applicant wife’s right to renew her claim at trial.
[111] As such, while the evidence before me at this stage is not ideal, at least for the purposes of this interim motion, I accept the evidence of the respondent husband that the shares of 142 were gifted to him by his father and thus constitute excluded property for the purpose of s. 4(2) of the Family Law Act.
[112] That finding then brings me to a consideration of the decision of Ducharme J. (as he then was) in Shepley v. Shepley.[^28]
[113] In Shepley – a case that I consider to be quite similar in various material respects to the case at bar – at the date of separation, the applicant husband earned approximately $50,000 per annum as a bank manager. Shortly before the parties’ separation, the husband inherited approximately $900,000 from his parents, comprised primarily of stocks. On the strength of this inheritance from his parents (which the parties agreed was excluded property under s. 4(2) of the Family Law Act), the husband agreed to pay spousal support of $3,000 per month to the respondent wife. However, following separation, the husband incurred a loss of more than $480,000 in his portfolio by reason of a devaluation of his principal stock. Further, when targeted for replacement at his employing bank by a younger employee, the husband accepted a termination package. As a result, the applicant husband’s income from all sources fell to $1,325 per month, comprised of $100 per month in dividends, generated from capital and the remainder in pension income. The husband then brought a motion to terminate his $3,000 spousal support obligation.
[114] In allowing the husband’s application, Ducharme J. reasoned as follows:
Under the Divorce Act, the court in appropriate circumstances may regard the income from capital assets as available for the purpose of determining whether spousal support is payable. In the same way, the court may deem particular assets to be income-producing. But for good or ill the (Ontario) Family Law Act considers inherited property to be exempt from sharing upon the breakdown of the marriage. It is silent on the issue of whether income from such property after breakdown should be exempt. Accordingly, under the provincial legislation, as the cases to which I have referred make clear, such income, as with all other kinds, is to be considered in any child or spousal support matter.[^29]
[115] In the result, Ducharme J. concluded as follows:
Painful as the result must surely be for Mrs. Shepley, I conclude on the facts of this case that Mr. Shepley retired from his employment position for valid reasons, that he made the decision out of concern for his health, not to evade his support obligation, and that as a result of his retirement he no longer has the means or the ability to pay spousal support to Mrs. Shepley from his income and no obligation in law to share in property that Ontario law exempts from sharing at the time of separation. It would be unjust, and, indeed, unconstitutional to share as “support” that which the law has exempted from sharing as property. In other facts and circumstances, where, say, exempt property is intact and generating income — for example, rental property or a family business — the result may well be different.
In all the circumstances, I find that Mr. Shepley had no obligation in law to preserve his exempt property, or to maximize his future income, to ensure an ongoing spousal support obligation.[^30] [Emphasis supplied.]
[116] In my view, for the same reasons given by Ducharme J. in Shepley, the respondent husband here is not required to share with the applicant wife by way of a lump sum interim spousal support award those same capital assets that Ontario law considers to be exempt or excluded property for the purposes of net family property sharing.
[117] That said, the respondent husband here acknowledges that, for spousal support purposes, as the Supreme Court of Canada held in Leskun v. Leskun, a capital asset is part of a support payor’s “means” and, as our court held in Laurain v. Clarke:
The court may therefore base the amount of support which a payor must pay on the income that an asset, such as money in the bank, a pension, trust, or annuity, is capable of generating.
I interpret the Court’s decision in Leskun to mean that a capital asset that a person receives in the form of periodic payments should not itself be treated as income for the purpose of calculating support, but should be treated as part of his means, so that the income which it is reasonably capable of generating should be included in his income for the purpose of calculating his support obligation. [Emphasis added.][^31]
[118] As such, when one considers, as the applicant wife urges (in para. 85 of her factum) that, “[i]t is not his income but his ability to earn [income] that is the appropriate focus,”[^32] the evidence of what the respondent husband can reasonably be expected to earn from his capital assets, I accept that the best reflection of the respondent husband’s ability to earn income is that income which is available to him through 142.
[119] In particular, I accept the submission of Mr. Belowus that, based on the unaudited financial statements from PricewaterhouseCoopers LLP for 142’s fiscal year ending October 31, 2019 (the financials for the 2020 fiscal year-end not being available as of the date of hearing of this motion), the income available to the respondent husband to pay spousal support was $67,935. That amount is the sum of 142’s net income/earnings for the 2019 year ($48,236), plus adding back in the amortization expense ($19,699), for a total of $67,935.
[120] I therefore conclude that, for the purposes of assessing spousal support on an interim basis, the most appropriate determination of Mr. Casier’s income is $67,935 per annum.
[121] I prefer this conclusion over that urged upon this court by counsel for the applicant wife. In my view, the type of exacting, in-depth analysis of the respondent husband’s income essayed by Mr. DiPierdomenico in argument, in keeping with his usual, commendable vigour, is best left to the trial judge, who will be in a better position to asses its merits, informed by a full evidentiary record and assisted by cross-examination of both parties.
[122] In other words, as the British Columbia Supreme Court said in its oft-sited Robles decision, on an interim spousal support motion, “the court does not embark on an in-depth analysis of the parties’ circumstances[,] which is better left to trial. The court achieves rough justice at best[.]”[^33]
What, if any, is the appropriate amount of spousal support that should be paid?
[123] For the reasons set out above, I have concluded that, for the purposes of assessing his spousal support obligation on an interim basis, the most appropriate determination of Mr. Casier’s income is $67,935. I have also concluded that, for the purposes of assessing spousal support on an interim basis, no income should be attributed to Ms. Casier.
[124] On my DivorceMate calculations, the applicable range runs from $2,123 (low) to $2,477 (mid) to $2,700 (high). Considering all the relevant circumstances at this interim stage, I would set the support payable by the respondent husband to the applicant wife in the mid-range level at $2,400 per month.
[125] In my view, a temporary order for the payment of spousal support to the applicant wife in the amount of $2,400 per month based on an income of the respondent husband of $67,935 provides “a reasonably acceptable solution for a problem that will get a full airing at trial.”
[126] The order for spousal support shall be effective commencing February1, 2020. That date corresponds with the date claimed in the prayer for relief in the respondent’s notice of motion and the termination of the respondent husband’s annual salary in January 2020 and his consequent inability to fund the spousal support obligation payable under the Campbell Order after January 2020.
[127] In coming to this conclusion, I have rejected the argument of Mr. DiPierdomenico on behalf of the applicant wife that the failure of the respondent husband to satisfy an outstanding costs award should disentitle the respondent husband to the relief he is seeking. By order dated October 6, 2017, King J. ordered the respondent husband to pay costs of $5,000 to the applicant wife. I am told that payment has not been made.
[128] I decline to exercise my discretion to dismiss the relief sought for failure to comply with the court’s order. I accept the explanation offered by Mr. Belowus on behalf of the respondent husband that there was correspondence between counsel in May 2018 in which it was indicated that the amount could be paid on the division of net family property. It is not clear why the obligation was not retired when the property at 843 Ford Blvd., in Windsor, was sold in October 2018; but apparently both parties agreed that there should be an equal division of proceeds from the sale.
[129] In any event, Mr. Belowus has said that the respondent husband will pay the outstanding costs order within 30 days. If that has not already been done, it should be taken care of by the end of this month.
[130] In the same vein, I am also not prepared to decline the relief sought by the respondent husband on the ground that he has failed to comply with the Campbell Order, in that, the respondent husband ceased making the $11,000 monthly support payment after January 2020.
[131] In my view, to dismiss the motion on this basis would represent an overly harsh and disproportionate exercise of the court’s discretion. One cannot ignore that upon the cessation of his business and the discontinuance of his annual salary in January 2020, the respondent husband no longer had the cash-flow to continue making the payments of $11,000 per month. His motion to terminate the spousal support under the Campbell Order was brought in a timely manner; the respondent’s original supporting affidavit was sworn on January 30, 2020, and the motion was made returnable March 13, 2020. Two days later the court announced the suspension of its regular operations due to the COVID-19 pandemic. This motion would have been heard and determined months ago were it not for the global pandemic. That is not for the account of the respondent husband.
[132] To the extent that the respondent husband arguably engaged in some measure of “self help” and discontinued payment while his motion was outstanding before the court and before it had been determined by the court, and whether such conduct falls within the scope of rule 24(4) of the Family Law Rules,[^34] is something that can be addressed on the issue of costs.
[133] On a final note, I note the order of Leach J. dated April 17, 2020, that the litigants in this case were granted an extension of the administrative dismissal deadline for this case to December 31, 2021.
[134] At this point in time, I would make no further order under rule 41(3) of the Family Law Rules providing for an extension of time beyond December 31, 2021.
[135] As I signalled at the outset of my endorsement, this case was commenced in February 2017, more than four years ago. It needs to move forward towards conclusion at a much faster pace than has transpired in the past. The parties need to make real progress in moving towards the end-date of December 31, 2021.
Conclusion
Support Issues
[136] The respondent husband shall pay to the applicant wife any outstanding amounts owing under the order of King J. dated October 6, 2017, on or before May 31, 2021.
[137] The respondent husband’s motion, in the alternative, for a variation and reduction of the spousal support awarded under the Campbell Order is allowed.
[138] Accordingly, there shall be an order that paragraphs 1 and 2 of the order of the Honourable Mr. Justice Scott K. Campbell dated August 15, 2017, are changed as follows, effective February 1, 2020:
a. The respondent, Mark Casier, shall pay spousal support to the applicant, Cathryn Casier, in the amount of $2,400 per month, based on an annual income of $67,935, commencing February 1, 2020, and continuing on the 1st day of each month that follows until a court orders otherwise.
b. All other terms of the order of the Honourable Mr. Justice Scott K. Campbell dated August 15, 2017, remain in full force and effect.
Costs
[139] Costs should normally follow the event. Subrule 24(1) of the Family Law Rules provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
[140] The respondent husband was successful on the motion and is presumptively entitled to his costs, subject, however, to the provisions of s. 24(4) of the Family Law Rules, which state that:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[141] If the parties are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the formatting standards of rule 4.01 of the Rules of Civil Procedure[^35] and the following schedule:
a. The respondent shall deliver his submissions within thirty (30) days following the release of these reasons;
b. The applicant shall deliver her submissions within twenty (20) days following service of the respondent’s submissions;
c. The respondent shall deliver his reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the applicant’s submissions; and
d. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.
“Electronically signed and released by Howard J.”
J. Paul R. Howard
Justice
Date: May 07, 2021
[^1]: Casier v. Casier, 2017 ONSC 4878 (S.C.J.), at para. 1. [^2]: Our Court of Appeal has held that a motion judge is entitled to take judicial notice of what is in the court file: see Wallbridge v. Brunning, 2018 ONCA 363, 422 D.L.R. (4th) 305, at para. 18. [^3]: See, for example, 2441472 Ontario Inc. v. Collicutt Energy Services, 2017 ONCA 452, at paras. 13-19. [^4]: Family Law Act, R.S.O. 1990, c. F.3. [^5]: Sypher v. Sypher, 1986 CanLII 6337 (ON CA), [1986] O.J. No. 536, 2 R.F.L. (3d) 413 (C.A.), at paras. 2-3, quoted in Simmons v. Simmons, 2011 ONSC 5020 (S.C.J.), at para. 24. [^6]: Brown v. Brown (1999), 1999 CanLII 15074 (ON SC), 45 O.R. (3d) 308 (S.C.J.), at para. 34. See also Feldman v. Ford, 2014 ONSC 7466 (S.C.J.), at para. 10. [^7]: Wharry v. Wharry, 2016 ONCA 930, at para. 60, quoting Tedham v. Tedham, 2003 BCCA 600, at para. 59. See also Oxley v. Oxley, 2010 ONSC 1609, 85 R.F.L. (6th) 435 (S.C.J.). [^8]: Wharry v. Wharry, at para. 62. [^9]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [^10]: Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, [2012] O.J. No. 5586 (S.C.J.), at paras. 18-19. [Citations omitted.] [^11]: Lipson v. Lipson, 1972 CanLII 470 (ON CA), [1972] 3 O.R. 403, 7 R.F.L. 186 (C.A.), at para. 3; and Ladouceur v. Dupuis, 2020 ONSC 8048 (S.C.J.), at paras. 39-40. I note that in paras. 77-89 of the factum of the applicant wife, under the heading “Should the Court accept the voluntary retirement of the Husband as a material change of circumstances since the Support Order or should the Court impute income to the Husband based on ongoing employability?”, there are repeated references to the language of “material change of circumstances” – being the test for variation of a final order. That said, I did not understand counsel for the applicant to take any specific issue with the Lipson v. Lipson formulation of the test or to suggest that the applicable test here is the same for variation of a final order. [^12]: Ibid., at para. 20. [Citations omitted.] [^13]: Casier v. Casier, 2017 ONSC 4878 (S.C.J.), at para. 17 per Campbell J., citing Jackson v. Jackson, 1997 CanLII 12392 (ON SC), [1997] O.J. No. 4790, 35 R.F.L. (4th) 194 (Ont. Ct. (Gen. Div.)), at para. 22 per Pardu J. (as she then was). [^14]: Smith v. Smith, 2013 ONSC 6261 (S.C.J.), at para. 62. [^15]: Ibid., at para. 59. [^16]: Ibid., at para. 60, citing Dishman v. Dishman, 2010 ONSC 5239, 94 R.F.L. (6th) 217 (S.C.J.), and Muirhead v. Muirhead, 1995 CanLII 627 (BC CA), [1995] B.C.J. No. 1088, 6 B.C.L.R. (3d) 229, 14 R.F.L. (4th) 276 (B.C.C.A.). [^17]: Smith v. Smith, at para. 65. [^18]: Dillman v. Dillman, 2019 ONSC 6249 (S.C.J.), at para. 39, reversed in part, 2021 ONSC 326, 51 R.F.L. (8th) 21 (Div. Ct.). [^19]: As I have concluded that the respondent’s retirement was reasonable and for a valid reason, it necessarily follows that I reject the applicant’s argument that I should impute an income to the respondent on the basis of his intentional unemployment or under-employment or otherwise. [^20]: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 27. See also Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 853; and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at paras. 31-32, 35-36 and 43. [^21]: Damaschin-Zamfirescu v. Damaschin-Zamfirescu, at para. 24. See also Robles v. Kuhn, 2009 BCSC 1163, at para. 12. [^22]: Casier v. Casier, at para. 17. [^23]: Ibid., at para. 18. [^24]: Thomas v. Thomas, 2003 CanLII 64346 (ON SC), [2003] O.J. No. 5401, 50 R.F.L. (5th) 416 (S.C.J.), at para. 74. [^25]: Steinfeld v Koenigsberg, 2019 ONSC 5996 (S.C.J.), at para 179. [^26]: Laurain v. Clarke, 2011 ONSC 7195, 16 R.F.L. (7th) 316 (S.C.J.), at 83. [^27]: Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221, 95 R.F.L. (6th) 257, at para. 60, citing Mannarino v. Mannarino, 1992 CanLII 14022 (ON CA), [1992] O.J. No. 2730, 43 R.F.L. (3d) 309 (C.A.); and Willemze-Davidson v. Davidson (1997), 1997 CanLII 1440 (ON CA), 98 O.A.C. 335, [1997] O.J. No. 856 (C.A.), at para. 32. [^28]: Shepley v. Shepley, 2006 CanLII 1924 (ON SC), [2006] O.J. No. 293, 24 R.F.L. (6th) 422 (S.C.J.). [^29]: Ibid., at para. 59. [^30]: Ibid., at paras. 72-73. [^31]: Laurain v. Clarke, 2011 ONSC 7195, 16 R.F.L. (7th) 316 (S.C.J.), at paras. 44-45. [^32]: Haynes v. Haynes, 2019 ONSC 2271 (S.C.J.), at para. 21. [^33]: Robles v. Kuhn, at para. 12. [^34]: Family Law Rules, O. Reg. 114/99. [^35]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.