COURT FILE NO.: FC-18-553

DATE: 2021/11/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rachel Savidge Dunleavy

Applicant

– and –

Paul Comeau

Respondent

Self-Represented Applicant

Eve Thériault, for the Respondent

HEARD: September 27, 28, 29, October 1, 4, 5, 6 and 7. 2021

REASONS FOR judgment

Shelston, J.

[1] The issues for this trial are the quantum and duration of spousal support, the equalization of the net family property, the applicant’s request to be designated the beneficiary of the respondent’s life insurance until he attains 65 years of age, the applicant’s request to be a beneficiary of the respondent’s extended health coverage until January 31, 2024, the applicant’s request to be designated as a one third beneficiary of the respondent’s supplementary death benefit and costs.

Factual Findings

[2] The applicant is 45 years of age. She grew up in the Halifax area, married, had two children and divorced in 2009. Both children are now independent. The applicant completed a Bachelor of Fine Arts with a Major in Photography in 2003 and a Bachelor of Education in 2008. Since 2019, she is pursuing a Masters in Psychotherapy and Spirituality with a specialization in Art Therapy at St. Stephen’s College in Edmonton where she anticipates that she will graduate in November 2023.

[3] The respondent is 48 years of age, joined the Canadian Armed Forces on July 15, 2000 and is currently posted to Ottawa with the rank of major.

[4] After graduating with her degree in education, the applicant planned on teaching full-time. She found substitute teaching opportunities in May and June 2008. In September and October 2008, she was employed as a school photographer and from November 2008 to June 2009, she worked as a substitute teacher. In September 2009, the applicant started working for the Dartmouth Adult Services Centre acting as an instructor for the program with individuals with developmental disabilities on an eight month contract. She was planning to work full time in this position after her contract expired.

[5] The parties’ relationship became more serious and in May 2010, the applicant and her youngest daughter, Naomi, moved to New Brunswick to live with the respondent. The applicant received unemployment insurance benefits for eight months while the respondent pursued his career. In January 2011, the applicant started a six month term position as the Executive Director of the New Brunswick Association of Real Estate Appraisers. Prior to cohabitating with the applicant, the respondent had applied to join a specialized unit located at CFB Trenton. He was successful and on August 8, 2011, the applicant, respondent and Naomi moved to CFB Trenton.

[6] After moving, the applicant received employment insurance benefits. The respondent pursued his career while the applicant was responsible for the domestic functions for the household, caring for Naomi and supporting the respondent in his career. The applicant made preliminary inquiries as to possible employment as a teacher in Belleville, Ontario but none were available. The respondent’s employment placed significant demands on him and the family. While at CFB Gagetown, the respondent was in the field on exercises four months out of the year while in his new position at CFB Trenton, there was a high probability that he would be away a large part of the year. In any event, he was usually away one week per month and at times, for up to four weeks. Further, due to the nature of the specialized unit, all members including the respondent could be deployed on two hour standby notice.

[7] In February 2012, the applicant partook in a federal government program to encourage individuals to start a business. The course provided advice on how to develop a business plan, creating a budget and creating a marketing plan.

[8] The parties married on May 26, 2012.

[9] In June 2012, the applicant opened an art store in a commercial strip mall called “Art for Everyone”. The applicant received a business development grant of $20,000 for the development of this business. The money was paid to the applicant over time, ending in November 2012. After that date, the applicant was expected to support herself from revenue of her new business. The parties took out a joint loan of $18,000 to help finance the new venture. In June 2012, the respondent was elevated to the rank of acting major and was promoted to major in February 10, 2013.

[10] From December 2012 to April 2013, the applicant worked full time at the store but did not earn much income from her business. By April 2013, the applicant decided to terminate the commercial lease and opted to teach art classes on a mobile basis. The applicant pursued the mobile art business one day a week and one evening every second weekend. This was not successful and little income was derived from this venture.

[11] After April 2013, the applicant’s responsibility was caring for Naomi, applying for jobs, conducting mobile art classes and taking French lessons. By 2014, the respondent’s financial position was very difficult resulting in the respondent making a consumer proposal in 2014. The applicant assumed the responsibility of taking the lead on the consumer proposal as well as assuming the usual functions of the domestic responsibilities for the household, caring for Naomi and supporting the respondent’s career. The applicant applied for various jobs but was unsuccessful. By 2014, her business venture officially closed.

[12] In 2015, the respondent was appointed chief of operations for his unit. However, in June 2015, the respondent was removed from his command position due to an incident that took place in Alberta resulting in administrative discipline.

[13] In August 2015, the applicant was hired by Loyalist College to teach art classes starting on September 7, 2015. Unfortunately, on September 4, 2015, the applicant and Naomi were injured in a car accident where they both sustained injuries. As a result of the injuries sustained in the car accident, the applicant was restricted to teaching only one class per week which she eventually gave up after five weeks. From September 2015 onwards, the injuries and subsequent medical appointments restricted the applicant’s ability to work.

[14] In the fall of 2015, the respondent suffered a severe concussion while playing rugby that significantly affected his ability to work. He was diagnosed with moderate depression and a traumatic brain injury resulting from the rugby incident. Eventually, the respondent recovered from the injury. The respondent conceded that after the injury, his relationship with the applicant and Naomi suffered as he dealt with the depression and brain injury.

[15] The respondent and applicant discussed moving from Trenton in late 2015/the winter of 2016, as the respondent wanted to change his career path. In the summer of 2016, the respondent was posted to CFB Kingston. The applicant and Naomi remained at CFB Trenton to allow Naomi to complete her high school education. The respondent returned most weekends back to Trenton to be with the applicant and Naomi. The marriage was not going well and in November 2016, the parties started marriage counselling every second week which continued until October 2017.

[16] At the end of August 2017, the applicant moved to Kingston to live with the respondent while Naomi started her first year of university at Carleton University in Ottawa. The situation with the parties reached a head on November 15, 2017, when the respondent advised the applicant that he did not like her children which was, according to the applicant, the final straw. She drove to Ottawa at 3:00 AM on November 16, 2017 and slept in Naomi’s dormitory room. The parties never reconciled after this date.

[17] As of November 2017, the applicant lived in Ottawa in different locations while the respondent remained in the matrimonial home located at CFB Trenton. In December 2017, the applicant applied for social assistance. Sometime in December 2017, the respondent gave the applicant a cheque in the amount of $4,000 for expenses.

[18] On December 19, 2019, the applicant met her new family doctor, Dr. Wilson who testified that in the initial meeting the applicant presented as having significant motor vehicle accident effects such as headaches, whiplash and post-concussion syndrome. He found that she was susceptible to panic attacks and was taking medication for ADHD. On March 28, 2018, Dr. Wilson completed an Ontario Disability Support Plan application where he diagnosed the applicant as suffering from depression/anxiety, ADHD, chronic lumbar pain with left side sciatica, irritable bowel syndrome, post-concussion symptoms, hypertension and adjustment disorder. In his view, she was unable to work. For some reason, the initial application was not processed. On November 26, 2018, Dr. Wilson completed another application where he reiterated his diagnosis and findings with respect to her ability to work. The applicant was under the care of Dr. Wilson from December 19, 2017 to March 6, 2019.

[19] In January 2018, the respondent started to pay to the applicant’s spousal support of $1,282 per month. This continued up to and including May 2018. The respondent refused to acknowledge any liability to pay child support for Naomi. In February 2018, the applicant received a settlement of $15,000 with respect to the injuries sustained in the motor vehicle accident.

[20] The applicant commenced proceedings in March 2018 seeking a divorce, child support, spousal support, equalization of the net family property and costs. In May 2018, in the respondent’s answer, he conceded the applicant’s entitlement to spousal support, sought an equalization of the net family property and consented to a judgment of divorce. The respondent did not agree to pay child support for the youngest child of the applicant namely, Naomi.

[21] In June 2018, the respondent was posted for three years to a US military base in California. Starting in June 2018, the respondent agreed to pay to the applicant’s spousal support of $1,500 per month and denied any liability to pay child support for Naomi.

[22] In the fall of 2018, the applicant registered at a cost of $3,200 in a yoga teacher training course requiring 200 hours of training, then a trauma sensitive yoga course at a cost of $800 in 2018 and restorative yoga in January 2019 at a cost of $800.

[23] While awaiting the outcome of the Ontario Disability Support Plan application, the applicant considered her options for supporting herself in the future. In January 2019, the applicant decided to pursue further education. She investigated various programs at St. Paul’s University, Concordia University and a school in Toronto. As the applicant only had two undergraduate degrees in psychology, the only university that would accept her was St. Stephen’s College in Edmonton. The other alternative was to take two years to upgrade her credits and then take a two-year program at St. Paul’s University to obtain a Masters in Counselling resulting in a four-year program. The program at St. Stephen’s College was a three-year program plus an additional year for specialization in art therapy. As a result of making a consumer proposal in 2015, the applicant was not entitled to any student loans to attend the program at St. Stephen’s College and would have to fund the four-year program through her own resources.

[24] Except for the week that she travelled to Edmonton in April 2019, from March to May 2019, the applicant worked most days from 8:00 to 4:00 for a local florist in Ottawa. By letter dated May 1, 2019, the applicant’s application for benefits under the Ontario Disability Support Program was denied. The applicant did not appeal the decision because she felt going on disability would be a step backwards. In June 2019, the applicant purchased a recreational vehicle that she drove to Edmonton and lived in the vehicle until November 2019. Since that time, she has lived in rental accommodations.

[25] On June 29, 2019, the parties entered into Partial Minutes of Settlement whereby the respondent made an advance on the equalization payment owing to the applicant by way of a RRSP rollover of $54,324 and the payment of $5,000 in cash. On August 22, 2019, I ordered the respondent to pay to the applicant, on a temporary basis, retroactive to May 1, 2019, spousal support of $3,500 per month, child support for Naomi in the amount of $614 per month and that the respondent designate the applicant as the irrevocable beneficiary of $300,000 of his life insurance.

[26] By letter dated June 9, 2021, Dr. Burgess, the applicant’s doctor in Edmonton, Alberta indicated that the applicant is suffering from mental health issues that are not yet clearly defined but that he had referred her to a new psychiatrist in Alberta with an appointment in December.

[27] In the summer of 2021, the applicant was posted to Ottawa. While in California, the respondent extended his employment with the Canadian Armed Forces to September 15, 2025.

[28] On August 4, 2021, the parties signed a consent to final order where the respondent’s obligation to pay support to Naomi and contribute to her post secondary expenses ended as of August 2021.

[29] As of September 2021, the applicant has been hired as a research assistant for eight months ending in March 2022 providing her with 12 hours a week with an hourly wage of $21.42 an hour.

Divorce Order

[30] I find that the parties separated on November 16, 2017 and there is no chance of reconciliation. I grant a divorce order.

Equalization of the Net Family Property

[31] The applicant’s position is that the respondent owes the applicant an equalization payment of $179,183.97 less $76,869.46 leaving an outstanding balance owing of $102,314.51. The respondent’s position is that he owes the applicant $76,466.13 less an advance on the equalization paid to the applicant of $76,869.45 resulting in the applicant owing the respondent $403.32. The respondent is prepared to waive the payment of $403.32.

[32] In arriving at my findings, I have relied on the jointly prepared net family property comparison worksheet filed Exhibit 19 which lists each parties’ values for debts and liabilities. I will calculate the net family property based on the values agreed by the parties and will make findings with respect to values where the parties are in disagreement. I have also relied upon the testimony of the parties and any documentation filed during this trial where there is a conflict in the valuations. My reasons will only address the values that are in dispute.

[33] Section 4(1) of the Family Law Act (R.S.O. 1990, c. F.3, as am) defines the “net family property” as follows:

“net family property” means the value of all property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of the matrimonial home, calculated as of the date of the marriage.

[34] Section 4(5) of the Family Law Act states that if a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero.

Household goods and furniture of the parties.

[35] The applicant testified that the total contents owned by both parties on the date of separation was $5,200 broken down with the applicant having $200 and the respondent $5,000. The respondent’s evidence is that the contents were worth $30,000 on the date of separation and that each party should have $15,000 allotted in the calculation of the parties’ net family property.

[36] The applicant relies on the respondent’s consumer proposal filed on October 16, 2014, where he indicated that he owned $5,000 worth of furniture and $2,500 worth of vehicles. Further, the applicant testified that she attended at the matrimonial home on December 12, 2017 and removed mostly used furniture being frying pans, a mattress, art supplies, clothes, a kitchen table and two chairs while the respondent retained the remaining contents of the matrimonial home. I accept the applicant’s evidence that she removed very few contents from the matrimonial home and that the respondent gave the applicant the right to remove anything that she wished from the home but he acknowledges that she removed very few items.

[37] I reject the respondent’s evidence that the contents on the date of separation were worth $30,000. Firstly, I accept the evidence of the applicant that most of the furniture was used and that she provided a realistic picture of what actually was in the house and what she removed. Further, the respondent’s position is contradicted by the consumer proposal that he made in 2014 where he indicated that he had $5,000 of contents. There is no evidence that significant contents were purchased by the parties after the date of the consumer proposal to the date of separation. In addition, the contents were not divided equally. The respondent retained most of the contents.

[38] I find that the respondent retained $5,000 worth of contents and the applicant remove $200 of contents on the date of separation.

Respondent’s 2000 Toyota Tundra

[39] The applicant submits that the value of this vehicle was $1,500 on the date of separation while the respondent states the value is $2,000. The applicant submits that the respondent declared that his truck was worth $2,500 in 2014, as set out in his consumer proposal dated October 16, 2014. She argues that after three years, it is a fair and reasonable amount to determine that its value is $1,500.

[40] The respondent testified that he bought the truck in the year 2000 and by separation 17 years later, its fair market value was $2,000. He indicated that he sold it while in California for $1,000. I find that the truck was worth $2,000 in November 2017, the month of separation.

Tools of the parties.

[41] Based on an admission by the respondent during the applicant’s testimony, the parties agreed that on the date of separation the applicant had $550 and the respondent $900 worth of tools.

Respondent’s firearms

[42] The applicant submits that the value of the respondent’s firearms was $6,000 on the date of separation including two handguns, a rifle, a semi-automatic rifle, shotgun, cases/tripods and scopes as well as reloading equipment. The applicant provided various pictures of the weapons and provided a breakdown of the fair market value of said weapons.

[43] The respondent submits that the value of his firearms was $3,000 on the date of separation. Based on the respondent’s testimony of his lifelong involvement with firearms, I accept that he is an experienced purchaser of firearms. I am cognizant of the fact that the respondent has a vested interest in reducing the value of his firearms. However, I find that the respondent’s evidence was very specific and addressed all of the firearms identified by the applicant. I prefer the evidence of the respondent based on that experience and the detailed nature of his evidence with respect to each weapon including the original purchase price/gift and when he acquired each firearm.

[44] I find that the respondent’s firearms on the date of separation had a fair market value of $3,000.

Respondent’s pension

[45] The respondent joined the Canadian Armed Forces on September 15, 2000. On January 25, 2001, the respondent bought back 1044 days of pensionable credits that accrued in the 1990s while serving as a reservist at a cost of $40.01 per month commencing February 2001 to October 2024.

[46] The parties disagree as to the value of the respondent’s pension. By report dated September 12, 2018, Mr. Martel, an actuary retained to value the respondent’s pension, calculated the Family Law Value of the respondent’s pension based on two scenarios. In Scenario 1, Mr. Martel assumed that the elective service purchased was accrued before the marriage based on the date of election. The accumulated value of the arrear payments made during the marriage was $2,687 was added to the Family Law Value of the pension to arrive at a figure of $225,915. In Scenario 2, Mr. Martel assumed that the elective service accrued over time as the cost of the election was being repaid. As such, Mr. Martel included 238 of the 1044 days of past service that were paid for during the marriage in the calculation of the Family Law Value of $249,818.

[47] Mr. Martel indicated that when elective service is purchased, normally it is paid in a lump sum. Mr. Martel indicated that there is no legislation or regulation that deals with this type of issue regarding the buyback of pension credits. Mr. Martel indicated that when the respondent made the election on January 25, 2001, the pension credits were included in the value of his military pension and that the repayment is seen as a loan. In Mr. Martel’s opinion, the respondent’s entitlement to the inclusion of the buyback pension credits was vested in him when he made the election on January 25, 2001. Further, Mr. Martel indicated that if the pension holder died still owing sums on the buyback of past pensionable credits, the payments are insured by the survivor benefit on the pension which would pay out the outstanding balance.

[48] With respect to the disposition costs, Mr. Martel’s report indicated that based on the respondent’s retirement income being attributed to his pension with the retirement at age 60, the Canada Pension Plan retirement pension and the Old Age Security pension age 65, the average income tax rate would be 22.3%. However, Mr. Martel calculated that by assuming that the respondent’s total retirement income was his projected military pension assuming retirement after 25 years, an annual employment income of $100,860, the Canada Pension Plan pension and the Old Age Security pension, the average income tax rate applicable would be 23.8%.

[49] In Cloutier v Francis, 2011 ONSC 5550, the respondent, a member of the Canadian Armed Forces, had purchased seven years and 248 days of her past service with a monthly payment of $81.87 from April 1, 2004 to March 31, 2031, ending after her retirement. At the time of separation, she still owed $15,170.16 based on the election. In this case, each party retained an actuary to value their pensions. Both actuaries testified that there is no actuarial standard for determining how to deal with elected service in the valuation of pension. The court held that the issue as to the valuation of the pension including elected service paid for both prior and during the marriage was a question of law to be determined according to the circumstances of each case and what can be considered fair and appropriate. In the end, the court noted that the husband did not object to the valuation proposed by the wife’s expert and consequently, the court selected the valuation that included the elective service that accrued during the period of cohabitation with a deduction made for the outstanding contributions with respect to that portion of the elected service.

[50] This case is distinguishable from the Cloutier v Francis matter because there is no agreement on how to address the valuation of the respondent’s pension when there is buyback of pensionable credits paid for prior to and during the marriage. The uncontradicted evidence of Mr. Martel is that the elective service was vested in the respondent’s pension on the date of election. All of the pensionable credits that were bought back on January 25, 2001 predated the date of marriage. Based on the circumstances of this case, the evidence provided to the court, I find it fair and appropriate that Scenario 1 is the most appropriate method of valuing the pension. I find that the respondent’s pension is valued at $225,915.

[51] With respect to the disposition costs, I find that the respondent by the time of separation, was dissatisfied with his military career. His disillusionment with the military career was exacerbated by the loss of command in September 2015, resulting in him eventually leaving the special forces and returning to the regular infantry. I note that at the date of separation, the respondent was 44.44 years of age and had 20 years and 13 days of service. I do not find it foreseeable that the respondent would retire at age 60, after 35 years of service. Rather, I find it is foreseeable that the respondent would retire after 25 years of service being September 2025, then obtain employment in the private sector and earn an amount equivalent to his income earned as a major. As such, I find that the amount of 23.8% of notional disposition costs is applicable to his pension.

[52] I conclude by finding that the value of the respondent’s military pension on the date of separation is $225,915 less $53,767.77 representing 23.8% of the notional disposition costs resulting in a net pension of $172,147.23.

Parties RBC joint chequing account

[53] The applicant agreed that each party owned $77 in the joint chequing account.

Applicant’s business

[54] The applicant agreed that her business was worth $1,500 on the date of separation rather than $750 to each party.

Money owed to the parties

[55] The applicant agreed that her brother owes her $500 and not $250 to each party.

Respondent’s household items and vehicles on date of marriage

[56] The applicant submits that on the date of marriage, the respondent owned general household items and vehicles in the amount of $11,500 while the respondent submits that he had items worth $81,650. In her testimony, the applicant indicated that the respondent had $6,000 worth of contents, a Tundra motor vehicle worth $2,500 and a motorcycle worth $3,000 totaling $11,500 on the date of marriage. The respondent testified that he had $81,650 of contents based on an insured value of $75,000 plus firearms, the Tundra motor vehicle and tools to arrive at a final figure of $81,650.

[57] Neither party has provided a detailed list of the contents that the respondent owned on the date of marriage. I reject the respondent’s submission that his contents were worth $75,000 on the date of marriage. In my view, it is incumbent upon the respondent to provide detailed evidence to support the fair market value of all of the contents that existed on the date of marriage. He indicated that he was renting a three-bedroom detached home fully furnished which included firearms, tools, mountain bikes, camping gear and furniture. The respondent admitted that the figure of $75,000 was the insured value and not the fair market value. During his testimony, the respondent indicated that the value of the contents was between $15,000 and $20,000 and that he owned a washer, dryer, fridge, stove and freezer. I have doubts as to that value because in his consumer proposal filed two years after marriage, he indicated he had furniture worth $5,000.

[58] I prefer the evidence of the applicant as she has provided a breakdown of furniture, vehicle and motorcycle. On the other hand, the respondent’s evidence is problematic. Firstly, he is relying on the insured value of $75,000 for the contents. Secondly during his testimony, he stated that the value of the contents was between $15,000 and $20,000. Finally, in the respondent’s consumer proposal made two and a half years after the date of marriage, he stated that the value of his contents was $5,000. I do not find the respondent’s evidence to be credible or reliable and reject same. I find that on the date of marriage, the respondent owned general household items and vehicles in the amount of $11,500.

Respondent’s debts on date of marriage.

[59] The applicant submits that the respondent had debts in the amount of $78,972.80 on the date of marriage. The respondent submits that he had debts of $73,892.65. I find that on the date of marriage, the respondent had debts in the amount of $72,103.92 as follows:

a. CIBC Visa $6872.59

b. CIBC line of credit $43,539.78

c. Pres.’s choice $10,812.10

d. Scotia line of credit $10,879.45

[60] In addition, the applicant has conceded that a Home Depot debt in the amount of $1,788.73 was assumed and paid by the respondent. Based on the above, I find that on the date of marriage, the respondent had debts in the amount of $73,892.65.

Parties bank accounts, savings, securities on date of marriage

[61] The applicant agreed with the respondent that on the date of marriage, she owned $3,619.07 and that the respondent owned $17,565.83 of bank accounts, savings, and securities.

Calculation of the Net Family Property

[62] I calculate the net family property of the parties as follows:

Assets Applicant Respondent

Contents $200 $5000

Toyota Tundra $2000

Motorcycle $2500

Toyota cruiser $27,500

Guitars $100

Entertainment system $300

Jewelry $350

Tools $550 $900

Firearms $3000

RRSP $54,324.10

Pension $225,915

RBC account $77 $77

Business $1500

Account receivable $500

Total $3,177 $321,616.10

Debts

Consumer proposal $12,750 $13,750

Car loan $6,921.02

Contingent taxes RRSP $12,929.13

Contingent taxes on pension $53,767.77

Total $12,750 $87,367.92

Total Net zero $234,248.18

Net value of property and debts on date of marriage

Assets

Household items/vehicles $1,686 $11,500

Bank accounts, savings $3,619.07 $17,565

Business interest $9,964

Total $15,269.07 $29,065

Debts

Debts $78,972.80 $73,892.65

total net value zero zero

Excluded property

Gift $350

Total $350

Net family property zero $234,248.18

Equalization payment $117,124.09

[63] I find that the respondent owes the applicant an equalization payment of $117,124.09, less the sum of $76,869.45 leaving a balance owed by the respondent to the applicant in the amount of $40,254.55. In her submissions, the applicant proposed that any remaining equalization payment be paid over an unspecified period of time while the respondent proposes that any payments be made over a 10 year period. I agree that that the respondent does not have the financial resources to pay the equalization payment at this time. I exercise my discretion under the Family Law Act and order that the respondent pay to the applicant four equal payments of $10,063.63 payable on February 1, 2022, February 1, 2023, February 1, 2024 and February 1, 2025. In the event that any of these payments are not made as ordered, the balance outstanding at the date of default shall be due and payable.

Spousal support

Position of the parties

[64] The applicant’s position is that she seeks spousal support of $3,500 per month from November 2017 to January 31, 2024, totaling six years and three months or 75 months from separation.

[65] The respondent’s position is that spousal support should be varied retroactively without including any of the non-taxable allowances received by the respondent for the period of time he was posted outside of Canada. The respondent submits that the support ordered on August 22, 2019, being above the recommended ranges set out in the Spousal Support Advisory Guidelines (“SSAG”) should be taken into consideration to terminate spousal support as of October 31, 2021, totaling four years or 48 months from separation. In the alternative, the respondent submits that there should be a step-down order terminating with spousal support in October 2022, totaling five years or 60 months from separation.

Legislative and jurisprudential framework

[66] There are three bases for the entitlement to spousal support being compensatory support, non-compensatory support and contractual support. (Bracklow v Bracklow 1999 CanLII 715 (SCC), [1999] 1 SCR 420).

[67] Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunities which the spouse has forgone for the sake of the family or other spouse. Generally, compensatory awards are seen where one spouse has sacrificed career opportunities, has made significant contributions to the household, and where one spouse has made significant contributions to the other spouse’s career. It may also apply where one spouse has received the benefit as result of roles assumed by the other spouse. (Moge v Moge 1992 CanLII 25 (SCC), [1992] 3 SCR 813)

[68] In the Spousal Support Advisory Guidelines: The Revised Users Guide, the authors indicate that “common markers of non-compensatory claims include the length of the relationship, the drop in the standard of living for the claimant after separation, and economic hardship experienced by the claimant”.

[69] The Divorce Act provides that in making an order for spousal support, the court shall consider the following:

15.2 Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited.

(b) the functions performed by each spouse during cohabitation.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.

(b) apportion between the 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.

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Entitlement to spousal support

[70] The parties lived together from May 2010 until November 16, 2017, during which time the applicant moved to CFB Gagetown in May 2010, CFB Trenton in August 2011 and CFB Kingston in August 2017. The respondent concedes that all moves were related to the furtherance of the respondent’s career and that the parties prioritized the respondent’s career over the applicant’s career. The respondent concedes that the applicant has an entitlement to spousal support on a compensatory basis only.

[71] After moving in together in May 2010, the respondent agreed to merge his bank accounts with the applicant and gave the applicant a second Visa card. The respondent admitted that the applicant had no restriction on what she could purchase with his Visa card. From May 2010 until November 16, 2017, the respondent was the main financial provider to the applicant. When they started living together, the applicant advised the respondent that she had at least $40,000-$50,000 of student debt and she was only paying the interest on the debt. I find that at the date of marriage, both parties had significant debts as set out in the calculation of the net family property herein.

[72] At the time of the move to CFB Trenton, the applicant had two university degrees including a degree in education which she was pursuing while living in Nova Scotia. I accept that that the applicant was planning on pursuing full-time employment with the Dartmouth Adult Services Centre which was no longer practical when she moved to New Brunswick. I accept that there was an initial investigation as to possible teaching positions in Belleville but that was not actively pursued. I find that the parties accepted that the respondent would be the primary wage earner and that he would fully support the applicant and her daughter. I find that the parties agreed that the respondent’s career was a priority for the family.

[73] As of November 2010, the respondent registered the applicant and Naomi as beneficiaries under his extended medical plan. By April 2011, the respondent had purchased two life insurance policies, one on the life of the applicant in the amount of $30,000 and a second policy on the life of the respondent in the amount of $400,000, with each party being the beneficiary of the respective life insurance policy. Further, the parties made mutual wills naming each other as the beneficiary of their estate.

[74] I find that the applicant and the respondent jointly decided to pursue the federal program which resulted in the opening of Art for Everyone which unfortunately did not generate sufficient income and resulted in an economic loss for both of them. I accept the applicant’s evidence that after moving to CFB Trenton, she saw a therapist because she was lonely and had difficulty adjusting related to the respondent’s change from the infantry to his new unit. The applicant testified that the demands on the respondent in his new position caused her significant stress. During this period of time, the respondent was promoted to major and eventually as a command position with his unit.

[75] After the closure of Art for Everyone, the applicant continued to seek employment by applying for jobs and going to interviews without success. The respondent supported the applicant’s pursuit of employment but continued to be the economic base of the relationship. After the accident in September 2015 until separation in November 2017, the applicant suffered from the effects of the motor vehicle accident. Despite these injuries, the applicant found random jobs including teaching art classes at an elementary school.

[76] In conclusion, I find that the roles assumed by these parties during their period of cohabitation created an economic dependency by the applicant, resulting in an economic loss that must be compensated by spousal support. On the other hand, the respondent was fully supported by the applicant in his career. Further, I find that the applicant cannot maintain a reasonable standard of living equivalent to that enjoyed during the period of cohabitation since the separation. Based on all these factors, I find that the applicant has an entitlement to both compensatory and non-compensatory spousal support.

Imputation of income to the applicant

[77] The respondent submits that the court should impute an income to the applicant starting in 2019 in the amount of $25,631 and $30,000 starting in the year 2020 going forward. The respondent submits that the minimum wage applicable for the province of Alberta should be imputed to the applicant.

[78] I decline to impute any income to the applicant as requested by the respondent for the reasons set out herein. Firstly, throughout the 7 1/2 years of cohabitation, the respondent never made $30,000 a year. Secondly, Dr. Wilson testified that he diagnosed the applicant as suffering from a series of medical issues including depression/anxiety, ADHD, chronic lumbar pain with left side sciatica, irritable bowel syndrome, post-concussion symptoms, hypertension and adjustment disorder. In his report to the Ontario Disability Support Program, he indicated that he expected these various issues to persist for more than one year. I think it is reasonable to assume that these issues existed prior to the applicant meeting Dr. Wilson for the first time on December 19, 2017. In his letter dated June 9, 2021, the applicant’s Alberta family doctor, Dr. Burgess stated that the applicant was suffering from mental health issues. I accept the evidence of these medical practitioners as well is the evidence of the applicant and conclude that she was not in a position to work in 2018. Thirdly, the applicant is pursuing an educational program on a full-time basis and the evidence is unclear as to her current capacity to work but I note that she worked for three months in the early part of 2019 in Ottawa and since September 2021 is working 12 hours a week as a research assistant in Edmonton. The applicant concedes that in 2021, she anticipates earning $4,450 of employment income and $3,500 related to the redemption of an RRSP.

Commencement date

[79] In the application filed by the applicant, she sought retroactive spousal support amongst other claims. I find that the respondent paid to the applicant $4,000 in December 2017. As such I will make no order for retroactive support for the year 2017.

[80] I find that the respondent paid to the applicant $1,282 for the months of January and February 2018. Further, in February 2018, the applicant received a settlement with the insurance company of $15,000 which she used to pay for her expenses. As such, I will not make a retroactive order prior to the commencement of proceedings in March 2018.

Quantum of spousal support

[81] In determining the quantum of spousal support, I am required to determine the parties’ respective incomes.

Applicant’s income

[82] I find that the applicant has earned the following income:

a. 2014, a negative income of -$10,401.50 related to a business loss.

b. 2015, a negative income of -$3,714.77 comprised of $700 of employment income, $720 of UCC benefit and a business loss of $5,134.

c. 2016, the sum of $360.

d. 2017, the sum of $1,966.

e. 2018, the sum of $16,692 all related to spousal support.

f. 2019, the sum of $55,174.32 comprised of $4,368.76 of employment income, $34,000 of spousal support and $16,805.56 related to the redemption of a RRSP.

g. 2020, the sum of $55,308 comprised of $42,000 of spousal support and $13,308.87 related to the redemption of a RRSP.

h. 2021, the sum of approximately $4,450 based on her employment as a research assistant effective September 2021 and RRSP income of $3,500.

Respondent’s income

[83] The respondent’s income is more problematic. From May 2010 to November 16, 2017, the respondent was never posted outside of Canada. As such, his income was derived from his base pay, a land duty allowance, a miscellaneous allowance, the cashing in of RRSPs and retroactive salary. At no time during the period of cohabitation was the respondent in receipt of any non-taxable allowance. However, after separation, in the summer of 2018 to the summer of 2021, the respondent was posted to a military base in California as a liaison officer where he was in receipt of non-taxable allowances. The issue on whether or not to include the non-taxable allowance as part of the respondent’s income for spousal support purposes is an issue in this trial.

[84] In Andrews v Andrews, 2000 CarswellOnt 4005, the court included the foreign service premium, post differential allowance and a hostility allowance in calculating the payor’s income for child support purposes. In Reynolds v Andrews, 2008 SKQB 352, the court included foreign service premiums, hardship allowances, risk allowances and hardship allowance bonuses to be included in the payor’s income for child support purposes. In both of these cases, the courts stressed the principle that all income should be available for the payment of child support. On consent dated August 4, 2021, the parties agreed that there would be no further obligation by the respondent to pay child support to Naomi. The respondent’s obligations started on May 1, 2019 and ended on July 31, 2019. As such, there is no issue of child support but rather the issue is one of spousal support.

[85] In Onogi v Elguindi, 2005 CanLII 23686, Mesbur J, determined the income of a payor who was employed by the United Nations should include his monthly base salary, a post adjustment and a mobility hardship allowance. She did not include a child allowance nor an amount to cover the additional cost of maintaining a second home for his family. On the issue of the post adjustment and hardship allowance, the court stated at paragraph 77:

[77] … Both the post adjustment, which adjusts his income to cover the higher cost of living in East Timor, and the hardship allowance, which is designed to compensate him for the difficulties of living in a hardship post like East Timor are included in this amount. Obviously, if he no longer receives the amount, support may have to be varied.

[86] In this case, by endorsement dated August 22, 2019, I ordered the respondent to pay temporary spousal support to the applicant in the amount of $3,500 per month and child support in the amount of $669 per month commencing May 1, 2019. I determined that the respondent’s income consisted of his base pay and taxable benefits of $125,020 plus $21,840 in non-taxable allowances being the foreign service premium, the post living allowance in the post specific allowance grossed up for income tax to arrive at a total income of $164,954. In my endorsement, I found that the respondent had provided no evidence to indicate that the cost of living in the United States was more than in Canada and I indicated that the purpose of a temporary order was to last until trial at which time the court would embark upon a fact-specific analysis and have the opportunity to hear the viva voce evidence of the parties.

[87] Further, in my endorsement, I departed from the recommended ranges of spousal support under SSAG being monthly payments of $1,313, $1,532 or $1,750 because I found that the ranges were too low to allow the applicant to meet her basic needs on a temporary basis. My order left the applicant with 32% and the respondent with 68% of the net disposable income of the parties. In the normal course, the trial would have taken place in the year 2020 but unfortunately, on March 17, 2020, the normal operations of the Superior Court were significantly affected as a result of the COVID-19 pandemic resulting in the respondent paying the elevated amount of support from May 2019 to the trial ending in October 2021, a period of 30 months.

[88] During the trial, Sgt. Barrett of the Canadian Armed Forces, testified in her role as a supervisor for the Administrative and Pay section of the Canadian Armed Forces Defence Liaison where she over saw the respondent’s employment file and was his human relations contact person. She provided the following information regarding the non-taxable allowances:

a. The Foreign Service Posting allowance (FSP) is payable to the member who is posted outside of Canada to provide an allowance to offset the rate of the currency exchange.

b. The Post-Living allowance (PLA) is calculated based on the difference in the cost of living for Ottawa and the place of posting. The Canadian Armed Forces use the Canadian Foreign Post index to establish and adjust the post-living allowance paid to Canadian government employees serving outside of Canada. The index is described as “a comparative measurements that numerically express the difference between the retail prices of a representative basket of goods and services at a foreign location with prices for a similar basket of goods and services in Ottawa”. Sgt. Barrett testified that while the respondent was posted to the military base in California, the index fluctuated between 117 to 136. The witness stated that the index of 117 meant that the cost of living where the respondent was posted was 17% higher in Ottawa while the 136 Index meant that the cost of living was 36% higher than the Ottawa.

c. The Post-Specific Allowance (PSA) is designed to assist a member in travelling to and from their post to Canada.

[89] I find that the respondent has earned the following income with and without the non-taxable allowances:

a. 2014, the sum of $160,069.85 including approximately $44,000 related to his payout of his severance pay.

b. 2015, the sum of $126,176.90.

c. 2016, the sum of $125,624.93.

d. 2017, the sum of 136 596.97.

e. 2018, the sum of $141,196 including $8,360 in non-taxable allowances. Without the non-taxable allowances, the respondent’s income was $126,423.98.

f. 2019, the sum of $163,104 including non-taxable allowances of $21,191.88. Without the non-taxable allowances, the respondent’s income was $124,688.58.

g. 2020, the sum of $168,962 including non-taxable allowances of $24,937. Without the non-taxable allowances, the respondent’s income was $123,401.52.

h. 2021, the respondent anticipates receiving a total income of $167,694 including salary of $124,950.44, taxable income of $572.56, retroactive taxable pay of $17,246.56 and $13,645.53 of non-taxable allowances. Without the non-taxable allowance, the respondent’s income is $142,769.56.

i. 2022, the respondent anticipates that a sole source of income will be his base pay of $127,356 as he will not receive the land duty allowance or the miscellaneous allowance.

[90] I find that these allowances are intended to offset the additional costs incurred by the respondent as a result of his posting to the United States where there is a difference in the value of the Canadian dollar versus the American dollar and where according to the Foreign Post Index there is a difference, at times significant, between the cost of living at the posting and the baseline of the city of Ottawa. During the period of time that the respondent was posted in California, the respondent’s cost of living was statistically 22.8% higher than the city of Ottawa. The respondent testified that his posting was a military base in the Mojave Desert more than one hour from the nearest town. The respondent testified that the cost of gasoline and registration of licensing for vehicles was significantly higher as an example of the increased costs. However, the financial statements filed by the respondent do not support a finding that his monthly expenses were significantly higher than when he resided at CFB Kingston. A review of the financial statements discloses the following:

a. In the respondent’s financial statement sworn May 10, 2018, the respondent’s monthly income was derived from base pay of $10,293 plus other sources of income of $125 for a total of $10,418. The respondent’s total monthly expenses including rental cost of $1,628 per month plus spousal support of $1,282 for a total of $10,239.91.

b. In the respondent’s financial statement sworn June 27, 2019, he indicated that his monthly income was $12,088.24 consisting of base pay of $9,840, a post living allowance of $900, a foreign service premium of $614, a post-specific allowance of $946 and a land duty allowance of $380.24. The respondent’s monthly expenses totalled $9,040.84 including rental cost of $811 per month, $1,500 per month as spousal support any posting loan of $948.58 resulting in a monthly surplus of $3,047.40.

c. In the respondent’s financial statement sworn February 10, 2021, he indicated that his monthly income was $12,766 with monthly expenses of $12,825.15. The biggest change in the monthly expenses was the interim spousal support of $3,500, legal fees of $1,000, and child support for Naomi in the amount of $669.

d. In the respondent’s financial statement sworn August 13, 2021, his sole source of income was his base pay of $10,613 with monthly expenses of $14,491.91 including a significant increase in his rental cost plus the spousal support, child support and legal fees.

[91] While I accept that the non-taxable allowances are designed to offset the increase in the cost-of-living of the posting, the first financial statement filed by the respondent while he was in the United States dated June 27, 2019, included a payment of $1,500 per month as spousal support and indicated that the respondent had a monthly surplus over $3,000 a month. The financial statement contradicts the respondent’s testimony that the cost of living was more expensive at the military base in California. Even the respondent’s financial statement, sworn February 10, 2021, indicated that including an increase in his monthly expenses by $5,169 representing the spousal/child support and legal fees, he was running a monthly deficit of less than $100. While I accept that the Foreign Post Index is used to calculate statistically the difference in the cost of living, a court is required to look at the particular circumstances of the parties in the litigation. Upon my review of the evidence, I cannot conclude that the cost of living in the United States was so dramatically different to eliminate allowances in the calculation of the respondent’s income. Financial statements are an integral tool used by trial judges to determine and verify evidence provided by the parties. There is no evidence filed by way of a financial statement that supports a finding that the respondent’s cost of living in California was much different than his expenses in Canada. In fact, his expenses remained constant and, in some instances, they were reduced. For example, the respondent’s housing expenses fell from $1,628 a month in May 2018, to $811 a month by June 2019. As of the summer 2021, the respondent anticipates an increase to approximately $1,800 per month. Sgt. Barrett explained that the housing expenses for members posted outside of Canada are heavily subsidized.

[92] I conclude by finding, that on the facts of this case, the allowances must be included as part of the respondent’s income.

Duration of spousal support

[93] Both parties agree that the SSAG’s recommend that spousal support be payable from 3.75 years (45 months) to 7.5 years (90 months) from the date of separation subject to variation and possible review.

[94] In my view, to determine the appropriate duration of spousal support, I am to consider these circumstances of the applicant including her age, her work history, her education, her medical condition, her entitlement to compensatory and non-compensatory spousal support and any other relevant factor to be able to determine what period of time is appropriate to allow the applicant to transition to some degree of self-sufficiency.

[95] At separation, the applicant was 41 years of age with two university degrees. She was a qualified teacher and was registered with the Ontario Teachers College. She had not worked full time since April 2013, when she relinquished her commercial space for Art for Everyone. From April 2013 to November 2017, the applicant worked periodically and relied on the respondent for her economic well-being. As a result of the motor vehicle accident, as well as or other medical issues, I accept the evidence of Dr. Wilson that in the year 2018, the applicant could not work and by extension could not pursue education.

[96] However, by 2019, she was able to work at a florist in Ottawa. There is no evidence that even though the applicant was registered with the Ontario Teachers College that she pursued any career in teaching in Ottawa. By January 2019, the applicant decided to pursue a further university degree focusing on psychology. The applicant could have taken a two-year program at St. Paul’s University to upgrade her credentials and then take a two-year counselling course. The other option was to pursue a Masters at St. Stephen’s College and then a further one year program. Both of these options were a four-year commitment. While the applicant has the right to make choices as to her future, when she is seeking spousal support, those decisions are subject to review as to their appropriateness. I find that during the period of cohabitation, the applicant did not indicate any intention to pursue further education let alone embark upon a four-year program. I find that the applicant had employable skills and that she failed to pursue any employment opportunities in Ottawa, especially after her application for benefits under the Ontario Disability Support Program were denied. During submissions, the applicant stated that she could not teach as she suffers from anxiety and loses her ability to talk. I cannot make that finding based on the evidence presented. However, I find that once the applicant made up her mind to pursue this program, she was going no matter what. That decision has consequences.

[97] The applicant testified that she did not have a plan when she applied for the educational program at St. Stephen’s College. The applicant’s original plan was to complete the four-year program at St. Stephen’s College by November 2023. She admitted that there could be a delay in the completion related to identifying the subject matter of the thesis and other issues which could extend the course into 2024. During the trial, she indicated she wanted to work with military spouses to allow them to reach out about the parts of them that were hurting. She admitted that she had no real plan but wanted to be in charge. The applicant admitted that when she applied for this program, she did not make any investigation as to what possible employment opportunities were available after she completed her education but testified that she knew that counsellors were very busy. I find that the applicant’s decision to move to Edmonton, start a four-year program where she could not obtain student loans and where she did not investigate possible employment at the end to be a poor choice. In determining duration, the reasonableness of the applicant’s plan for further education is a relevant consideration. I do not find that the applicant’s plan to be reasonable.

[98] In support of claim for spousal support paid to January 1, 2024, the applicant submits that she is disabled and that the disability exception in Chapter 12 of the SSAG applies to her situation. The applicant argues that she is disabled based on her performance during the trial and that her family doctor, Dr. Burgess, confirms that she has mental health issues that will be investigated in December 2021. I do not find that the applicant is disabled for the reasons set out herein. While at times the applicant was quite emotional and required small breaks throughout the trial, I found that she was able to present her evidence, conduct a cross-examination of the various witnesses, made final submissions with reference to jurisprudence and provided detailed financial charts cross-referenced to the exhibits filed during the trial. At no time during the trial did I find that the applicant had any mental health disability preventing her from representing herself. Further, the evidentiary record indicates that the applicant is doing extremely well in her educational pursuits, that she was able to work and contribute to a paper in the summer of 2021 and that she has been hired as a research assistant, as of September 2021. Finally, there is no medical evidence submitted to support a conclusion that the applicant is disabled. The last medical report was from Dr. Wilson in November 2018, more than three years ago. There is no updated medical report to support such a conclusion.

[99] The respondent’s position is the applicant should be entitled to spousal support for five years. The respondent submits that I should not retroactively review the amount of support paid and adjust it accordingly within the recommended ranges in the SSAG. Rather, the respondent submits that based on the respondent paying an elevated amount of spousal support since May 2019, the court should consider that support has been frontloaded and that consequently it is appropriate to terminate spousal support on October 31, 2021. The respondent submits that in this case, the interim order was above the recommended ranges of the SSAG and the payment has lasted for 30 months. As such, the focus should be on shortening the applicable period of spousal support in favour of an early termination date. In the alternative, the respondent submits that a “step down” order may be appropriate, ending spousal support on October 1, 2022.

[100] In the Spousal Support Advisory Guidelines: the Revised Users Guide, Chapter 10 describes restructuring as a method of flexibility to allow awards to be adjusted to meet the circumstances of individual cases while maintaining the benefits of the structure and certainty offered by the guidelines. In this case, the respondent submits that one of the ways where restructuring may be applicable is to front-end load the spousal support award by increasing the amount beyond the formulas range and shortening the duration.

[101] The applicant testified that she has completed all but one course, her practicum and prepare and defend her thesis in order to obtain her degree in Psychology and Spirituality. Despite the trial only starting on September 27, 2021, the applicant suspended pursuing her practicum in the early part of 2021 to get ready for this trial. The record indicates that a notice of change of representation for the applicant was filed in July 2021 and she was able to partake in a research project this year which resulted in her being offered a position as a research assistant starting in September 2021. It appears that the applicant had counsel until the middle of the summer and that she was able to work on projects that she was interested in.

[102] I agree with the respondent, that the spousal support order of $3,500 per month is significantly higher than the recommended range of spousal support under the SSAG. Both parties have provided extensive Divorcemate calculations based on various scenarios for the years in question. Based on those calculations, I find that the SSAG recommend the following amounts of spousal support set out herein:

a. In the year 2019, based on the applicant’s income of $21,174 and the respondent’s income of $163,911 the range of spousal support was $1,338 (low), $1,561(mid) and $1,784 (high).

b. In the year 2020, based on the applicant RRSP income of $13,308 and the respondent’s income of $169,852, the range of monthly spousal support was $1,486 (low), $1,734 (mid) and $1,982 (high).

c. In the year 2021, based on the applicant’s anticipated income of $7,950 and the respondent’s income of $167,694, the range of monthly spousal support is $1,498 (low), $1,747 (mid) and $1,997 (high). I note that since the respondent moved back to Canada, he is no longer entitled to any non-taxable benefits and in his current position, he does not receive any taxable benefits. His only source of income is his base pay.

[103] In determining the appropriate duration of spousal support, I have considered the roles assumed by the parties in their relationship, the parties’ financial position at the date of separation, that the purpose of spousal support in this case is designed to assist the applicant in transitioning to becoming self-sufficient and that the parties cohabitated for 7.5 years as well as the following factors:

a. The range of spousal support recommended by the SSAG’s is between 3.5 years and 7.5 years.

b. At separation, the applicant was 41 years of age and had not worked on a full-time basis since April 2013.

c. The applicant was not in a position to work in 2018 based on her medical issues.

d. The applicant was able to work in 2019 and started studying on a full-time basis in September 2019.

e. The applicant is not disabled.

f. The applicant failed to pursue any employment opportunities as a teacher through the Ontario Teachers College after moving to Ottawa.

g. The applicant’s decision to undertake a third university degree through a four-year program without investigating possible employment opportunities at the completion of the program was a poor decision.

h. The applicant has received spousal support from December 2017, up to October 2021, for a period of 47 months. From May 2019 to October 2021, the applicant has received 30 months of spousal support, at a rate significantly higher than the high range recommended in the SSAG. I have considered that the elevated amount of spousal support paid since May 2019 must be taken into consideration in determining the duration of spousal support. I have decided that I will add 15 months of spousal support paid for May 2019 to October 2021, to recognize the elevated amount of spousal support. Consequently, by October 2021, I find that the applicant has received spousal support for the equivalent of 62 months.

[104] In the year 2022, according to the respondent’s Divorcemate calculation based on the respondent having income of $127,356 (being his base pay) and no income attributed to the applicant, the range of spousal support is $1,194 (low), $1,393 (mid) and $1,592 (high). I acknowledge that the applicant has a position as a research assistant until the end of March 2022, which could provide her with an income of $3,500.

[105] I find that the appropriate duration of spousal support is 5.75 years or 69 months. Considering that I have found that the applicant has received spousal support for 62 months up to October 31, 2021 and that the respondent’s income has been reduced after his posting back the Canada, it is appropriate to reduce the current spousal support to the mid range of $1,393 based on the respondent’s income of $127,356 commencing on November 1, 2021 for a period of 7 months, ending May 1, 2022.

[106] I order that commencing on November 1, 2021, the respondent shall pay to the applicant monthly spousal support in the amount of $1,393 per month up to and including May 1, 2022, at which time spousal support shall terminate.

Extended Health Coverage

[107] The applicant has two positions. Her first position is that the respondent pays to the applicant $3,500 per month in spousal support until January 31, 2024 and that the respondent shall maintain the applicant on his Public Service Health Care plan for so long as there is a spousal obligation. Her second position is that if the respondent pays to the applicant the lump sum payment of $31,308 plus prejudgment interest, then, she seeks an order that the respondent maintain her on his Public Service Health Care plan while she remains a student at St. Stephen’s College or December 31, 2023, whichever is earlier.

[108] The respondent’s position is that his obligation to maintain the applicant as a beneficiary of his extended health coverage should end as of October 31, 2021.

[109] The current extended health benefits available to the respondent through his employment are managed by Sun Life and that according to their policy, once a person is divorced, they no longer qualify as a “spouse”. As such, the applicant’s request is denied because I have granted a judgment of divorce in this proceeding. As such, the applicant no longer qualifies as a “spouse” within the meaning of the Sun Life extended health plan.

Life Insurance and Supplementary Death Benefit

[110] The applicant seeks an order that the respondent maintain the applicant as the irrevocable beneficiary of his SISIP life insurance policy in the amount of $400,000 and that said designation shall remain until the respondent attains 65 years of age. Further, the applicant seeks an order that the respondent maintain the applicant as the irrevocable beneficiary of 33% of his Government of Canada Supplementary Death Benefit and that said designation shall continue after the respondent’s spousal support obligations are met.

[111] The respondent’s position is that the life insurance protection for the applicant’s spousal support should end as of October 31, 2021 and should the applicant refuse to release the irrevocable beneficiary designation in the life insurance policy that the respondent shall have leave to apply for a court order directing the insurer to remove the applicant as a beneficiary of said life insurance policy.

[112] At the time of this trial, the respondent is 48 years of age. The applicant seeks spousal support until January 2024, when the respondent will be 50 years of age. The applicant seeks to have the life insurance in place for 15 years after the termination of spousal support requested by the applicant. The applicant argues that she was the beneficiary during the marriage, that it was a gift to her from the respondent and that she wants the insurance. Life insurance is intended to be a security for spousal support. When spousal support ends, there is no requirement to have any further life insurance in place. I deny this claim.

[113] With respect to the supplemental death benefit, the applicant seeks to be designated a one third beneficiary, basing her contribution to the marriage and the stress of the relationship. I deny this claim for a variety of reasons. Firstly, there is a life insurance policy that exists in the amount of $400,000 which is available as a security for spousal support. The amount of insurance is based on the duration and quantum of the spousal support. Secondly, I see no factual or juridical reason to have the applicant designated as a beneficiary of the supplemental death benefit. Thirdly, the applicant has not provided any evidence that the death benefit beneficiaries can be divided into percentage shares.

[114] Based on my order that the respondent shall pay to the applicant $1,393 per month as spousal support, I order the respondent to designate the applicant as the revocable beneficiary of $9,751 of his SSIP life insurance policy. I order that the amount of life insurance policy shall be reduced automatically by $1,393 per month and that the applicant shall execute any document required by the respondent to remove the applicant as the revocable beneficiary of said life insurance once the spousal support terminates on May 1, 2022. I will remain seized of this matter solely for the issue of dealing with the life insurance designation once spousal support terminates if judicial intervention is required.

Costs

[115] On the issue of costs, my initial observation is that success has been divided and that there should be no order as to costs. However, if the parties are unable to resolve the issue of costs by November 10, 2021, then, the applicant will serve and file her cost submissions no later than November 19, 2021 and the respondent shall serve and file his cost submissions no later than December 3, 2021. These submissions shall not exceed three pages in length and shall include a detailed bill of costs and any offers to settle. There shall be no right to reply.

Released: November 2, 2021