Court File and Parties

COURT FILE NO.: 344/00 DATE: 2022/02/15

ONTARIO

SUPERIOR COURT OF JUSTICE – FAMILY COURT

BETWEEN:

David Kuryluk Petitioner

- and -

Donna Gales Respondent

HEARD: In Chambers The Honourable Justice J. R. Henderson

REASONS FOR DECISION

1This matter came before me, under s.19 of the Divorce Act, for consideration of the provisional order, dated April 24, 2018, of Justice Shergill of the Supreme Court of British Columbia. In that provisional order Justice Shergill terminated the petitioner’s obligation to pay spousal support to the respondent, including all arrears, interest, and default fees, as of August 1, 2016.

THE BACKGROUND HISTORY

2Legal proceedings were commenced between the petitioner and the respondent, pursuant to the Divorce Act, in the Ontario Superior Court of Justice. On March 21, 2002, Justice Matheson made an order that required the petitioner to pay spousal support to the respondent in the amount of $1,250 per month, indexed, retroactive to May 1, 2000, based on imputed income of the petitioner of $45,000 per year. It should be noted that because of the retroactive nature of this order the petitioner was immediately in arrears of spousal support.

3The petitioner moved to British Columbia and obtained work in the Vancouver shipyards in 2002. The petitioner paid regular spousal support, in accordance with the Ontario order, through the British Columbia Family Maintenance Enforcement Program (“FMEP”).

4This round of litigation was commenced by the petitioner in British Columbia by way of a petition that was amended in March 2018. In the amended petition the petitioner requested termination of his spousal support obligation as well as cancellation of all arrears as of August 2016.

5In his supporting material the petitioner deposed that he turned 65 years of age in November 2016 and retired from his work in the shipyards in August 2016. His total income in 2018 from Old Age Security, Canada Pension, and a small union pension was approximately $35,000. He stated that his union pension was being garnished in the amount of approximately $1,700 per month (being the initial support order plus indexing).

6The petitioner also deposed that he was unaware of the respondent’s present financial circumstances. He stated that upon separation the respondent had received the benefit of all of the family assets in Ontario, including the equity in the matrimonial home.

7Further, the petitioner deposed that he had regularly paid his spousal support either directly or through the FMEP garnishment process. He calculated that as of January 2017 he had paid $296,760 in spousal support, and that the total amount of support he should have paid was $298,930. Thus, he deposed that only approximately $2,200 of support remained unpaid. He stated that any other arrears that were shown on the FMEP statements were as a result of interest and default fees.

8The matter came before Justice Shergill in British Columbia on April 24, 2018. Counsel appeared representing the petitioner and made oral submissions. Counsel reviewed the FMEP records that showed the petitioner to be in arrears in the amount of approximately $24,000, but counsel submitted that more than $20,000 of this amount was accounted for by way of interest and default fees. Counsel requested cancellation of the arrears as of April 2016; however, Justice Shergill noted that the pleadings requested cancellation as of August 2016.

9In oral reasons Justice Shergill found that there had been a material change in circumstances. Justice Shergill then made the provisional order, dated April 24, 2018, under s.18 of the Divorce Act. The order stated that all arrears of spousal support and interest were cancelled retroactive to August 1, 2016. Then, the proceeding was sent to the Ontario Superior Court of Justice for consideration under s.19 of the Divorce Act.

10The respondent filed an answer in January 2019. In that answer the respondent indicated that she was agreeable to terminating spousal support as of April 2, 2019, the date on which she turned 65 years of age, but that she disputed the cancellation of all arrears. She acknowledged that in 2002 she had received most of the family assets, but that there were extensive debts and all of the equity in the family assets was used to pay the debts.

11In her answer the respondent calculated that there were arrears owing of approximately $26,567, and she requested payment of these arrears at the rate of $500 per month.

12The respondent’s 2017 tax return shows that her income from employment in that year was $6,189. In her affidavit, she deposed that her annual income was approximately $13,000, most of which was from spousal support paid by the petitioner.

13The matter came before Justice Lococo in the Ontario Superior Court of Justice in March 2019 for a written hearing. Justice Lococo sent the matter back to British Columbia with a request for further evidence.

14Then, the petitioner delivered another affidavit and financial statement sworn in September 2019. In his affidavit the petitioner stated that he was unaware of the particulars of the respondent’s income, but he believed that she had income from Old Age Security and Canada Pension in the approximate amount of $20,000 per year. He reiterated that the shortfall of his spousal support payable as of January 2017 was approximately $2,000, exclusive of interest and fees. His tax returns showed he had taxable income of $35,728 in 2017 and $34,542 in 2018.

15Significantly, in his September 2019 affidavit, the petitioner agreed with the respondent that his obligation to pay spousal support should be terminated effective April 2, 2019, not August 1, 2016. He continued to request that all arrears be cancelled.

16Thereafter, in November 2020 the respondent filed an updated financial statement in which she deposed that her total income had increased when she turned 65 years of age in April 2019. Her current income was $13,174 per year, representing her income from Old Age Security and Canada Pension.

ANALYSIS

17The matter is now before me for consideration of the provisional order of Justice Shergill dated April 24, 2018.

18I accept Justice Shergill’s finding that there have been material changes in circumstances such that the order of March 21, 2002, ought to be varied. In particular, the incomes of both of the parties changed when they turned 65 years of age, respectively in 2016 and 2019.

19Justice Shergill made a finding in 2018 that support should be terminated and all arrears should be cancelled as of August 1, 2016. However, the foundation for that finding has changed since the provisional order was made. Specifically, in 2018 the court was unaware of the respondent’s income, and Justice Shergill did not have the benefit of the respondent’s calculations, showing arrears of approximately $26,000.

20Moreover, as a consequence of the changes in their incomes, the parties appear to agree, through the exchange of affidavits, that the termination of spousal support should be effective April 2, 2019.

21Therefore, I find that the provisional order should be varied to reflect the parties’ agreement, and to take into account the updated evidence as to the incomes of the parties.

22In my view, there are two changes in circumstances. First, the petitioner’s income dropped when he retired in 2016, and second, the respondent’s income increased when she retired in 2019. On these facts, I find that the amount of support should be reduced to a more appropriate figure as of August 1, 2016, and that support should be terminated as of April 2, 2019.

23I find that, based on the reduction in the petitioner’s income in 2016, the amount of spousal support payable by the petitioner to the respondent should be reduced to $1,000 per month as of August 1, 2016. This amount will be payable until the obligation of the petitioner to pay spousal support is terminated as of April 2, 2019.

24Regarding the arrears, I have no solid evidence as to the amount of the arrears. The best evidence was the information from FMEP that was introduced by counsel at the hearing in 2018. However, I do not have any up-to-date information as to what payments, if any, have been made since then. Accordingly, I choose to make no decision as to the calculation of the arrears; rather, I will make an order as to the amount of support that is to be paid for the relevant time. The parties can then advise FMEP of the contents of my order, and FMEP can perform the proper calculations.

25For these reasons, in consideration of the provisional order dated April 24, 2018, I hereby order that the order of March 21, 2002, is varied as follows:

1. The amount of spousal support payable by the petitioner to the respondent is reduced to $1,000 per month as of August 1, 2016; and
2. The petitioner’s obligation to pay spousal support is terminated as of April 2, 2019.

J. R. Henderson J. Released: February 15, 2022