COURT FILE NO.: FS-91-432-01
DATE: 2021-07-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Vicki Carol Samson
Ms. K. Ralko, for the Responding Party Ms. Samson
Responding Party
- and -
Robert Metail
Mr. D. Fuller, for the Moving Party, Mr. Metail
Moving Party
HEARD: Heard via Zoom on July 12, 2021 at Kenora, Ontario
Madam Justice H. M Pierce
Reasons on Motion to Change
Introduction
[1] Mr. Metail is the moving party and former husband of Ms. Samson. He moves to vary the judgment of Mr. Justice G.F. Kinsman dated September 20, 1993 to terminate spousal support that was capped at $750 per month.
[2] The parties had a 16-year marriage, starting in January 1975, during which time Mr. Metail was the principal breadwinner. He worked 39 years at the local mill, retiring at 57 when the mill closed in 2006. He is now 72 years of age.
[3] During the early years of the marriage, Ms. Samson was a homemaker, caring for the couple’s two children. She found part-time work in 1986, earning minimal wages. Between 1992 and 1994, she completed training to qualify as a teacher’s aide. After being out of the full-time work force for almost 20 years, she was hired by the school board in 1994 where she worked for 18 years. Like Mr. Metail, she retired at age 57. She is now 66 years of age.
[4] The parties separated in 1991. At separation, each parent cared for one child. The children are now grown. Mr. Metail has remarried; Ms. Samson lives alone.
[5] Mr. Metail submits that the spousal support should be terminated or reduced, arguing that Ms. Samson has been self-supporting for many years.
[6] Ms. Samson disputes that she is self-sufficient.
Justice Kinsmen’s Judgment
[7] Justice Kinsman considered Ms. Samson’s need for spousal support in 1993 when she was upgrading her skills. He ordered the husband to pay $7,500, with $5,000 as a lump sum compensatory support to compensate the wife for half of her post-separation debt and $2,500 as a contribution towards her on-going education. In addition, he made the following orders:
Should the wife be successful in obtaining employment generating $25,000.00 gross per annum the payments shall thereafter reduce [from $1,200.00 per month] to $500.00 per month.
Should she be unable to obtain employment which will provide an income of $25,000.00 gross per year, the husband shall pay a monthly sum sufficient to augment her income to that amount, but in no event shall it exceed the sum of $750.00 per month.
Upon the wife obtaining employment she shall immediately notify her husband of the amount of her yearly salary to enable the parties to adjust the support payments according to the above method of evaluation.
In any event the husband shall continue to make spousal support payments in the sum of $500.00 per month even though the wife has received employment generating $25,000.00 per annum until
(1) She remarries;
(2) Death, or
(3) Further order of this Court.
The Parties’ Positions
[8] Mr. Metail is tired of paying spousal support. He submits that his retirement in 2006 constitutes a material change in circumstances. Mr. Metail launched motions to terminate spousal support in 2005 and 2011 but neither motion was adjudicated.
[9] Mr. Metail argues that the Spousal Support Advisory Guidelines (“SSAG”) prescribe payment of spousal support for a range of 8.25 – 16.5 years and he has paid at least 11 years beyond that benchmark, a duration that should overcome any economic disadvantage Ms. Samson suffered from the marriage.
[10] He also argues that by receiving Canada Pension and Old Age Security, Ms. Samson has replaced the spousal support he pays of $500 per month.
[11] Although there is evidence that the parties equalized their assets, Ms. Samson submits that there is no evidence that Mr. Metail’s pension was included in the equalization and thus, the payment of spousal support does not amount to “double dipping.”
[12] She also indicates that since Mr. Metail worked after separation from 1994 to 2006, he had the advantage of peak contributions into his pension plan. As to the parties’ respective net worth, Ms. Samson submits that the bulk of her net worth is tied up in her house, which is now mortgage-free. She states that if she were required to sell her house in order to support herself, her living expenses would increase.
[13] Ms. Samson argues that Mr. Metail has a second income-earner in his house and that he is not running a deficit, indicating that he can afford spousal support. On the other hand, Ms. Samson contends that she is running a deficit: that spousal support has never been indexed and she has had to cash RRSP investments to pay her expenses.
[14] Ms. Samson asks that her monthly support be increased to $750 per month. She notes that when Justice Kinsman’s order was made, it included an additional order for child support of $500 per month. She also submits that because the support order was not indexed, the order for $500 per month finalized in 1994 is worth about $877 in current value.
[15] In reply, Mr. Metail contends that because Ms. Samson became employed after Justice Kinsman’s order, the maximum spousal support payable is $500 per month.
The Parties’ Circumstances
[16] Mr. Metail discloses gross income from all sources for 2019 of $54,534; the principal income is derived from pension income, including Old Age Security and Canada Pension, and other investments. His income for 2020 and 2021 is not disclosed.
[17] Mr. Metail has no debts. After payment of monthly expenses, excepting spousal support, Mr. Metail shows a surplus of $991.78. This does not take account of the second income earner in the home, earning $19,000 in net income. In addition to his mortgage-free home and savings, he discloses two vehicles, a boat and a camping trailer. Mr. Metail’s net worth is $194,000.
[18] Ms. Samson disclosed annual income for 2020 of $32,435.64. of which $6,000 comes from spousal support. Some sources of income that she has received for seven months are divided by 12 months, which minimizes her monthly income: for example, her Old Age Security, Guaranteed Income Supplement and OMERS pension.
[19] Her financial statement sworn August 2020, also disclosed disability payments from the Ontario Teacher’s Insurance Plan, (averaging $491 per month when the total annual benefit is divided by 12) which terminated at age 65. As she is now 66 years of age, I conclude that this income is no longer available to her.
[20] She also earns $100 monthly before expenses from self-employment. At times, she has had to draw on her RRSP to cover her expenses.
[21] Having regard for these adjustments, I conclude that her monthly income without the payment of spousal support is $2,575.03, annualized to $30,900.36. Her monthly expenses are declared at $3,198.86, leaving her with a monthly deficit of $623.83.
[22] Adding spousal support to her income (currently paid at $6,000 per year), Ms. Samson’s annual income is $36,900.36, or $3,075.03 per month. This leaves her with a monthly deficit of $123.83.
[23] Ms. Samson discloses a $300 debt. Her net worth is $238,000.
Discussion
[24] The SSAG calculations submitted by the wife show understated income for 2018 and 2019 and are not in accordance with her sworn financial statement filed in this proceeding in 2020 or her affidavit dated December 28, 2020. Ms. Samson is now entitled to government programs to which she was not qualified at the time of the calculations. Accordingly, the SSAG calculations are not helpful.
[25] I accept that there has been a material change in the circumstances of both parties: each has retired, the children are no longer dependent, and Mr. Metail has remarried a spouse who is able to contribute to household expenses.
[26] Twenty-eight years ago, Justice Kinsman considered gross income of $25,000 as a suitable income for the wife and required the husband to supplement her income with support to reach that amount, with the stipulation that his obligation should not exceed $750 per month.
[27] As Mr. Metail assumed the role of bread winner during marriage and had the advantage of making higher pensionable earnings than Ms. Samson during and after the marriage, he was in a much better position to finance his retirement. She suffered significant economic disadvantage by adopting the role of homemaker, caring for the parties’ children, and then entering the work force late at an income significantly lower than her husband’s. The equalization payment made was modest. Thus, her ability to accumulate retirement savings has been minimal.
[28] I do not agree that the lengthy period of spousal support Mr. Metail has paid is sufficient to overcome Ms. Samson’s economic advantage. It is clear that generally, the spousal support ordered was tied to her on-going need and not to compensatory support.
[29] The objectives of variation of a spousal support order are set out in s. 17(7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.):
(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.
[30] Given the ages of the parties, it is probable that their respective incomes will remain as they are now; so long as Ms. Samson is alone, she is unlikely to achieve economic self-sufficiency in the future.
[31] In my view, Mr. Metail has the ability to continue paying spousal support without hardship and Ms. Samson continues to need it as a result of the economic disadvantage she suffered by assuming the homemaker role during and after marriage. Termination of spousal support in today’s circumstances would impoverish her unnecessarily. Mr. Metail’s motion to vary spousal support is dismissed.
[32] Ms. Samson seeks an increase in spousal support to $750 per month. She also submits that Mr. Metail has been underpaying spousal support for many years. While that may be so, the onus was on her to ask the court to review her support.
[33] I find that Mr. Metail has the ability to pay increased spousal support and having regard for Ms. Samson’s modest expenses and the erosion of the value of the existing support order over nearly 30 years, an increase is warranted. Her spousal support will be subject to payment of income tax, while Mr. Metail will receive a tax deduction for paying it.
[34] The order of Mr. Justice Kinsman dated September 20, 1993 is varied. Mr. Metail is ordered to pay to Ms. Samson spousal support of $750 per month commencing August 1, 2021.
[35] If the parties cannot agree on costs, either may, within thirty days of the release of these reasons, apply to the trial coordinator for an appointment to argue costs, failing which costs will be deemed settled. Costs submissions are not to exceed five pages.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: July 26, 2021
COURT FILE NO.: FS-91-432-01
DATE: 2021-07-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Vicki Carol Samson
Applicant
- and -
Robert Metail
Respondent
REASONS ON MOTION TO CHANGE
Pierce J.
Released: July 26, 2021
/lvp