Court File No.: FS 21-00000033

Date: 2021-08-10

Superior Court of Justice - Ontario

Re: Cara Melissa Sherman, Applicant

And:

Douglas Anthony de Boer, Respondent

Before: M.G. Ellies R.S.J.

Counsel: J. Sénécal, for the Applicant S. Hamilton, for the Respondent

Heard: August 9, 2021

Endorsement

[1] The respondent moves to change a spousal support order made on June 29, 2016 by the Honourable Justice Byers. The order was made on consent and was based on minutes of settlement. Both parties were represented by legal counsel at the time it was made.

[2] Pursuant to paragraph 1 of the order, the respondent is to pay the applicant spousal support in the amount of $1,000.00 per month starting on June 1, 2016, for a period of 83 months. After the final payment is made on May 1, 2023, the order provides that either party may apply to review the amount of spousal support payable regardless of whether there has been a material change in circumstances.

[3] Paragraph 4 of the order provides for a review of the spousal support order prior to the expiry of the 83-month period. It reads:

At no time during the payment period referenced in paragraph 1 shall the spousal support be variable as to quantum unless either party’s income decreases by an amount in excess of $20,000.00 or increases by an amount in excess of $10,000.00. The parties’ incomes informing this Order are $99,894.00 for the Respondent and $20,000.00 (imputed) for the Applicant. After the payment period referenced in paragraph 1 has expired, it will be open to a Court of competent jurisdiction upon a review of the Applicant’s spousal support entitlement, to either terminate the payment of support or vary the amount of support payable depending on the facts and circumstances and applicable law at that time.

[4] The respondent submits that there has been a material change in circumstances as they relate to his income.

[5] The respondent is employed in a unionized position as a sheet metal mechanic foreman and has been with the same employer for approximately 20 years. At the time that the 2016 order was made, his income was $99,894.00. According to the respondent, by the end of 2019, his income had decreased by $19,371.00. After the onset of the COVID-19 pandemic in March 2020, his income decreased by $55,320.55. He deposes that his income is expected to decrease from the 2016 amount by approximately $33,410.00 in 2021.

[6] Notwithstanding the decrease in the respondent’s income over these years, he has continued to pay the spousal support required by the 2016 order.

[7] In this motion, brought on March 1, 2021, the respondent seeks to terminate the spousal support payable under the order, effective April 1, 2020. Alternatively, in the event that this court varies the order, as opposed to terminating it, the respondent seeks a credit for any overpayment made as a result of his decreased income.

[8] The applicant opposes the respondent’s request. On her behalf, counsel submits that there has not been a material change in circumstances sufficient to vary the 2016 order.

[9] I agree.

[10] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances: L.M.P. v. L.S., 2011 SCC 64, [2011], 3 S.C.R. 775, at para. 35. I am not persuaded that the change here is anything other than temporary.

[11] With respect to the 2019 decrease, a letter the respondent submitted in evidence from his employer states that there was a strike in 2019 by the union of which he is a member. A strike is usually a temporary event and it appears to have been just that in this case.

[12] In my view, the 2020-2021 decrease was also temporary. Although he was laid off in March 2020, the respondent returned to work in March 2021. His income for 2021 will be comprised of two months of Employment Insurance (“EI”) benefits and ten months of employment income. While the total decrease in income of $33,410.00 is significant, it appears to be largely due to the difference between the respondent’s employment income and the amount he receives for EI. His financial statement indicates he receives only $2,042 per month in EI benefits. If the respondent is on track to earn approximately $66,484 in total this year, he must be earning approximately $6,240 per month. At this rate, he is earning approximately $74,880 per year. While the decrease is still more than the $20,000 the parties agreed was enough to trigger a review, I am not persuaded that the respondent’s income will stay at that lower level long enough to constitute a material change.

[13] The letter from the respondent’s employer suggests that, while the respondent has been called back to work, he is working fewer hours because of the government-imposed restrictions related to the pandemic. However, the letter is dated May 10, 2021. A great deal has happened with respect to the pandemic since then. Our provincial government has lifted many of the restrictions that were in place at that time: Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, O. Reg. 541/21. Therefore, the evidence suggests that the respondent’s income will be returning to pre-pandemic levels.

[14] Even if I am wrong in my assessment of the respondent’s decrease in income as being temporary, I would still not terminate or vary the 2016 order, for two reasons.

[15] The first relates to the basis upon which the 2016 order was originally made. According to the applicant, the respondent left her with a significant amount of joint debt, which she shouldered after the separation. This, she deposes, was the basis upon which the original consent order was made. It would be unjust to terminate the spousal support order now, as requested by the respondent, where the support order served as a means of equalizing the parties’ debts and liabilities.

[16] The second reason relates to the applicant’s present circumstances. Even where there is a material change in circumstances, any variation of the original order must take into account the circumstances of both spouses, including the ability of each to become self-sufficient: Family Law Act, R.S.O. 1990, c. F.3, ss. 33(9) and 37(2). The applicant suffers from significant physical disabilities, including “incomplete paraplegia”. These disabilities pre-dated the 2016 order, but are becoming worse with age. The applicant is now 65 years old. She was receiving disability benefits in the United States before she met the respondent and moved to Canada to live with him. Although she may qualify for such benefits here, she has never applied for them. However, the fact that the applicant might qualify for disability benefits does not by itself relieve the respondent from contributing to her support: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. In these circumstances, I would not reduce the amount of support being paid by the respondent, even if there has been a material change in those of the respondent.

[17] For these reasons, the motion to change is dismissed.

[18] During the motion, I sought submissions with respect to costs in the event that each of the parties was successful. On behalf of the applicant, counsel indicated that he would seek $1,500.00, all-inclusive. I believe this is a fair and reasonable amount, considering that this matter was the subject of at least one case conference in addition to requiring argument at a hearing.

[19] Accordingly, the respondent shall pay to the applicant the sum of $1,500.00 all-inclusive, for costs. He shall be provided with five months in which to pay the said costs.

M.G. Ellies R.S.J.

Date: August 10, 2021