COURT FILE NO.: FC120/99-2

DATE: June 23, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Paula Theresa Meilleur

Applicant

• and -

Lawrence Anthony Aqui

Respondent

B.T. Granger, Q.C. for the applicant

Philip Viater for the respondent

HEARD: April 25, 26, 27, 28, 2022; and May 9, 10, 12, 13, 30, 2022

SAH J.

REASONS FOR JUDGEMENT

(i) Overview

[1] The respondent, Lawrence Anthony Aqui (the “respondent”), seeks to terminate his spousal support obligations set out in the April 6, 2000 order of Vogelsang J. (the “Vogelsang J. Order”). In addition, the respondent seeks the return of overpayment of spousal support made to the applicant, Paula Theresa Meilleur (the “applicant”), following notice provided to her of his intention to terminate spousal support due to his retirement.

[2] The applicant requests that the respondent’s motion to change be dismissed.

[3] For the reasons that follow, I grant the respondent’s motion to terminate spousal support as of December 31, 2016, inclusive.

[4] In the applicant’s response to the motion to change, she seeks lump sum support, besides monthly support, of $156,325, the amount she owed the Canada Revenue Agency resulting from her failure to declare spousal support as taxable income. As set out below, this request shall be dismissed.

(ii) Litigation History

[5] After seventeen and a half years of marriage, the parties separated. The respondent was 44 years old, and the applicant was 42 years old. Their two young daughters resided with the respondent post-separation. Those same children are now 39 and 38 years old.

[6] The parties entered a consent order, the Vogelsang J. Order. That order specified that the applicant was not paying child support “at this time.” The order states that the applicant had no income, save for spousal support. When the applicant secured full-time employment, she was to pay child support.

[7] Relevant portions of the Vogelsang J. Order are:

6. THIS COURT ORDERS that, subject to what is provided in paragraph 10 hereof, commencing March 1, 2000 and on the first day of each month thereafter, the Husband shall pay to the Wife spousal support in the sum of $3,200.00 per month. This sum shall be paid during the joint lives of the spouses. The Husband will remit the spousal support to the Wife by means of electronic deposit into her bank account.

7. THIS COURT ORDERS that paragraph 6 dealing with spousal support is to be a final Order, subject to variation in the future if there is a material change in the circumstances of either party. Without limiting the generality of the term “material change in circumstances”, and without acknowledging that any of the events detailed below will necessarily justify any change in spousal support, the following events shall be deemed to be a material change in circumstances, namely:

a. The Wife remarries;

b. The Wife cohabits with a male person, so as to become that person’s spouse;

c. The Wife dies;

d. The Wife secures full-time employment. This event, if it occurs, shall not be deemed to be a material change in circumstances until the expiry of a six month probationary period;

e. The Husband retires from all and any employment;

f. The Husband’s employment is terminated without cause, and he is unable to secure employment for a period of three months;

g. The Husband dies, and there is sufficient [sic] life insurance in place for the Wife, as set out in paragraph 11 herein;

h. The Husband is no longer legally obliged to provide financial support to the children, or either of them.

8. THIS COURT ORDERS that the spousal support shall be indexed in accordance with the provisions in that regard set out in the Family Law Act of Ontario. Indexing shall be effective from and including March 1^st in each year, beginning March 1, 2001. The indexing calculation prescribed by the Family Law Act shall be over the 12-month period from February of the previous year.

9. THIS COURT ORDERS that the Wife’s uncertain health exposes her to above-average requirements for medication. The Husband shall continue to maintain health care coverage through his employment, for the Wife, for so long as they are married, and for so long as such coverage extends to an ex-spouse. Forthwith upon receiving receipts from the Wife, the Husband will forward them with the properly completed and signed benefits claim form to the benefit’s insurer. Forthwith upon receipt of the funds from the benefit’s insurer, in connection with the claim, the Husband will remit them to the Wife by means of electronic deposit into her bank account.

[8] The parties’ divorce was granted on September 1, 2000.

[9] In April 2018, the respondent commenced his motion to change.

[10] As a result of a motion brought by the respondent, Korpan J. ordered on November 21, 2019 (the “Korpan J. Order”):

1. The Respondent’s Motion to Change is stayed until he pays:

(a) $50,000.00 to the wife; and

(b) $113,981.92 into court or, if counsel can agree, into the wife’s lawyer’s trust account until such time as this court orders its release in part or in full and to whom.

[11] The respondent paid the amounts set out in the Korpan J. Order.

[12] This matter was delayed due to the COVID-19 pandemic. It was eventually called to trial in April 2022.

(iii) Position of the Parties

(a) Respondent, Moving Party

[13] When the Vogelsang J. Order was made, the respondent agreed to support the applicant’s transition into a new career. He submits that the consent spousal support order permitted the then 42-year-old applicant to complete her education and career transition. There was a plan for self-sufficiency.

[14] Despite the inclusion of the words “joint lives” of the spouses in the Vogelsang J. Order, the respondent claims that he never agreed to pay spousal support for life, and that he had always understood that support could be revisited if the applicant sought employment or if he retired.

[15] The respondent submits he paid spousal support for 19 years on a 17.5-years marriage, which is the top end of the range of duration as set out in the Spousal Support Advisory Guidelines (“SSAG”).

[16] The respondent claims that the applicant has failed or refused to provide disclosure regarding her income and employment since the Vogelsang J. Order was made.

[17] The respondent is 67 years of age and retired. He engages in some part-time consulting work, which is not expected to continue. He claims to have fulfilled all obligations under the Vogelsang J. Order. He claims that spousal support should be terminated effective December 31, 2016, after having provided the applicant with notice of his retirement in August 2014.

[18] Given the effective notice date of his retirement, the respondent seeks that the applicant reimburse him the $50,000 overpayment made under the Korpan J. Order.

[19] Further, the respondent requests to be reimbursed all funds held in trust under the Korpan J. Order.

(b) Applicant, Responding Party

[20] The applicant claims that support should be continued to be paid for the parties’ joint lives. She requests that spousal support continue to be indexed under the Vogelsang J. Order.

[21] She claims that the temporal provision of the Vogelsang J. Order is not subject to a variation, although the amount may be subject to a variation if there is a material change in circumstance.

[22] Further, the applicant claims to have relied on alleged representations made by the respondent regarding her requirement to declare the support she received as taxable income. She requests that the respondent pay her a lump sum support, besides monthly support, in the same amount she owes Canada Revenue Agency, which tax liability was incurred due to the applicant’s failure to file income tax returns from 1998 to 2011.

(iv) Issues for Determination

[23] Given the foregoing, the issues to be decided are:

1. Has there been a change in the condition, means, needs or other circumstances of either party since making the Vogelsang J. Order?

2. If so, what order is justified by the material change in circumstance: a variation, as argued by the applicant, or a termination, as argued by the respondent?

3. If a variation is appropriate in this case, what amount of support should be paid, effective which date, and for how long?

4. If a termination is appropriate in this case, what is the effective date?

5. If termination of support is ordered, has there been any overpayment to the applicant? If so, should it be repaid, and how and when should it be repaid?

6. Is the respondent obligated to pay the applicant’s income tax liability resulting from her failure to declare spousal support as taxable income from 1998 to 2011?

(v) Credibility Assessment

[24] The credibility and reliability of the parties are important considerations when a request is made that the court accept one version of events over the others.

[25] Nicholson J. lists tools for assessing credibility in Christakos v. De Caires, 2016 ONSC 702, at para. 10. According to Nicholson J., these include:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness' testimony.

c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution.

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence.

f) There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence.

[Citations omitted.]

[26] I note the following about the evidence of each party.

[27] The respondent’s evidence was straightforward and internally consistent. His evidence followed the documentary evidence presented and was inherently reasonable and probable. He answered all questions, both in-chief and during cross-examination, in a straightforward manner. When he was unsure of an answer, he admitted as much.

[28] He admitted his failure to routinely pay the cost-of-living adjustment (“COLA”) increase since the parties’ separation and readily admitted that he fell into arrears regarding the COLA increases. He was candid about his faults and the error of his ways in violating the Vogelsang J. Order. I accept his undisputed evidence that he promptly paid all COLA increases when asked.

[29] I found the applicant’s evidence to be problematic.

[30] During the trial, the applicant presented herself as a victim of many unfortunate circumstances.

[31] A considerable amount of the applicant’s evidence, both in-chief and on cross-examination, focused on her health and disabilities. The applicant is under the care of many health practitioners, takes a long list prescription medication, and cannot be described as healthy. I find that she strove to present a self-serving narrative.

[32] The applicant was motivated to exaggerate her evidence about her health and disability. In-chief, she remembered details regarding her injuries and ailments with great precision and without hesitation. On cross-examination, the applicant could not directly answer questions regarding if or when her rheumatoid arthritis was in remission. She could not admit there were significant periods of time when her rheumatoid arthritis was in remission, even when presented with medical notes stating as much.

[33] For example, the applicant testified that in 2011 and 2012 she was very ill and her income was correspondingly suppressed. However, medical records from July 13, 2011, and February 21, 2012, revealed that the applicant’s rheumatoid arthritis was in remission. Further, despite testifying that she made less money in 2011 and 2012 due to illness, she admitted in oral questioning that 2011 and 2012 were her highest-earning years as a counselor. Interestingly, the applicant’s 2011 income tax return reveals a net loss of professional/business income.

[34] I do not wish to undermine the nature of the applicant’s health condition and disability. She has not been in good health. She receives CPP disability. She believes she is significantly disabled and that her health conditions have and will continue to deteriorate. However, the evidence set out in her medical records and her inconsistent statements during questioning lead me to conclude that her evidence lacked credibility.

[35] Further, the applicant testified that she declared her spousal support payments on her income tax return, which was contradicted by her 2014 and 2015 income tax returns.

[36] In her evidence-in-chief, the applicant described her October 2015 slip and fall to be a “freak accident” which occurred when she lost footing. While she stated that her arthritis contributed to the injury during the examination-in-chief, on cross-examination she insisted that the slip and fall resulted from arthritis in her feet.

[37] Most troubling was a November 2014 request that the respondent pay a lump sum of support to be deposited in their youngest daughter’s name.

[38] During cross-examination, the applicant testified that she was not sure how much longer she would be alive and that she wanted the money to go to her children. The applicant’s evidence was exaggerated and implausible. Her attempts to justify the request that a lump sum support payment be paid out to her daughter are not accepted.

[39] I agree with the respondent, who submits the request was the applicant’s attempt to hide those funds from the Canada Revenue Agency, given the tax liability she faced. The applicant's explanation is implausible, as she claimed to be under financial constraints and acknowledged that her children knew about her financial situation. Nonetheless, she insisted that she intended to give the money to the children even though it was clear that she needed the money. This substantially discredits the applicant.

[40] Documentary evidence is important, particularly when each party’s credibility is challenged.

[41] Each party has an obligation to produce disclosure in a timely and forthcoming fashion, and in a manner consistent with the Family Law Rules, O. Reg. 114/99. The respondent submits that attempts were made to elicit disclosure, including medical and banking records, from the applicant, without success. The respondent asserts that the applicant failed to comply with undertakings that she provided during her oral questioning. The applicant asserts that she has provided all required disclosure and has complied with undertakings to the best of her ability.

[42] There is a notable absence of evidence from the applicant. Despite her claim she complied with the undertakings, there is a lack of proof. It is appropriate to draw an adverse inference against the applicant for failing to adduce documentary evidence that would have been in her control and could have easily refuted the respondent’s allegation of non-compliance.

[43] I prefer the evidence of the respondent over that of the applicant in areas where the evidence of the two are in conflict.

(vi) Law and Analysis

[44] The parties’ divorce order was issued September 1, 2000.

[45] The respondent moves to change under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (the “Act”).

[46] This court may make an order varying, rescinding or suspending, retroactively or prospectively, a support order or any provision of one, on application by either or both former spouses. See s. 17(1)(a) of the Act.

(a) Material Change in Circumstance

[47] Before making a variation order regarding spousal support, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since making the spousal support order and, in making the variation order, the court shall consider that change. See s. 17(4.1) of the Act.

[48] The following threshold applies to spousal support variations: the “change of circumstances” has to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32.

[49] The court ought not to consider the correctness of the initial order. The focus of the analysis is on the prior order and the circumstances in which it was made. The test is whether any change would likely have resulted in different terms to the order. Deference must be given to the original order: LM.P., at para. 33.

[50] The onus is on the party seeking a variation to establish there has been a change in circumstances since the prior order was made:L.M.P., at para. 31. What amounts to a material change will depend on the actual circumstances of the party during the order: L.M.P., at para. 34.

[51] The threshold variation question remains the same whether or not the spousal support order incorporates an agreement. This does not mean that the incorporated agreement is irrelevant: an agreement embodied in a judgment of the court is necessary to consider, as it may address future circumstances and pre-determine who will bear the risk of any changes that might occur. Specifically, it may provide that a contemplated future event will amount to material change: L.M.P., at paras. 36-38.

[52] In L.M.P., the court stated, at para. 39:

… Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.

[53] An order may incorporate an agreement that includes a general provision stating that it is subject to a variation upon a material change of circumstances. At para. 40 of L.M.P., the court states:

… In such a case, the agreement incorporated into the [Divorce Act] s. 15.2 order does not expressly give the court any additional information as to whether a particular change would have resulted in different terms if known at the time of that order. The presence of such a provision will require a court to examine the terms of the s. 15.2 order and the circumstances of the parties at the time that order was entered into to determine what amounts to a material change.

[54] Even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 of the Act cannot be ousted: L.M.P., at para. 41.

Respondent’s Retirement

[55] Around the time of his retirement, the respondent was getting to the end of his career. His employer, the bank, approached him about retirement. He had been working with the bank for 42 years and was 61 years old on the day of retirement. According to the respondent, the normal retirement age for someone in his position is 63.

[56] The respondent retired effective December 31, 2014.

[57] The respondent wrote the applicant a letter in August 2014 to advise that he was retiring. He sent a copy of the letter he had received regarding his retirement.

[58] In late October 2014, the applicant wrote to the respondent congratulating him on his retirement. Discussions followed regarding spousal support. The parties discussed the applicant’s tax liabilities and the applicant requested that funds be placed in the account of the parties’ daughter, Laura. The respondent alleges this was because she was concerned that if any money was placed in her bank account, the funds would be seized by the Canada Revenue Agency.

[59] On November 19, 2015, the respondent received a letter from the Bank of Nova Scotia (“BNS”). He testified that he was provided with two retirement plan options: he could receive a lump sum or a monthly payment. The respondent picked a lump sum amount, as he thought it would better protect his family.

[60] The respondent did not consider his spousal support obligations when deciding between the two options. His priority was to protect wealth for the future.

[61] The inclusion of para. 7 in the Vogelsang J. Order clearly sets out that support was subject to a variation if the respondent retired.

[62] Paragraph 7 of the Vogelsang J. Order specifically states that the respondent’s retirement constitutes a material change in circumstance. The threshold condition for variation exists, as it is found in the order itself.

[63] The respondent has met the onus of establishing a material change since the Vogelsang J. Order.

“Joint Lives of the Spouses”

[64] Despite the inclusion of a material change in circumstance clause, the applicant maintains that support should be paid for the parties’ joint lives.

[65] The inclusion of the material change in circumstance clause is an agreement embodied within the Vogelsang J. order that ought to have alerted the applicant that the respondent’s retirement could lead to a variation.

[66] The order’s material change in circumstance clause made it abundantly clear that there was a risk to the applicant of a future variation in support payments.

[67] The applicant interpreted the Vogelsang J. Order to mean that she would receive spousal support during her and the respondent’s joint lives and that support would increase every year based on the costs of living.

[68] She testified she knew there was a variation clause. She confirmed reading the minutes of settlement before signing them. She knew that upon obtaining full-time employment, the court could review the spousal support order or there could be renegotiations to change or vary the clause.

[69] The applicant testified that the respondent was always pushing her and questioning her as to the status of her work.

[70] On August 8, 2006, the respondent asked the applicant if she had any luck finding permanent work. The applicant did not reply. The respondent requested an update on her employment situation on November 14, 2006. Two days later the applicant replied and stated “my employment status has not changed. I continue to look for full-time employment.” She then asked the respondent what his intended use was for the financial statements he sought.

[71] Notwithstanding this email, the applicant had a contract position with Baylis & Associates. Starting in 2005, she had a contract with Family Services Thames Valley and a contract position with Wilson Banwell Human Solutions. These contracts were in addition to her own private counselling business – Meilleur Counselling Services.

[72] The applicant did not tell the respondent she had three contracts and that she was running her own business.

[73] The applicant maintained that she was only required to inform the applicant when she was working full-time and that her three contract positions and her own business were not full-time work.

[74] Eight and a half years after the parties separated, the applicant continued to state she was looking for full-time employment. Not once did she state she could not work because of her medical condition/rheumatoid arthritis.

[75] The applicant understood that if she secured full-time employment and a six-month probationary period passed, it would be considered a material change in circumstance.

[76] The evidence supports that the applicant was not always forthcoming when it came to her employment situation. When probed, I find that she carefully chose her words in written correspondence.

[77] However, despite the clear inclusion of the respondent’s retirement at paragraph 7(e) in the Vogelsang J. Order, the applicant maintains that support should be paid during the joint lives of the parties.

[78] While this convenient misinterpretation of the Vogelsang J. order is favourable to her, it is not accepted by this court, nor is it supported in law. The inclusion of a term stating that an order is final does not oust the court’s jurisdiction to vary or even terminate the order under section 17 the Act.

[79] Further, under Chapter 7(d) of the Spousal Support Advisory Guidelines: “The Revised User’s Guide (the “SSAG-RUG”), indefinite support is defined: Carol Rogerson and Rollie Thompson (Department of Justice Canada, 2016), at p. 29. According to the SSAG-RUG,

[i]ndefinite support does not necessarily mean permanent support. It only means that no time limit can be set at the time of the order or agreement. And it certainly does not mean that support will continue indefinitely at the level set by the formula, as such orders are open to variation and review as circumstances change over time… Variation and review may subsequently result in time limits or even termination as a result of changing incomes, retirement, repartnering, or self-sufficiency considerations. [Emphases in original.]

[80] I do not agree with the applicant’s assertion that the temporal provisions of the Vogelsang J. Order are not subject to variation and that only the amount of support may be subject to variation if there is material change in circumstance. In addition to the reasons set out above, I note the following for two reasons.

[81] First, I take the view that para. 7 of the Vogelsang J. Order was drafted to be interpreted liberally and broadly. It expressly does not limit what may or may not be included as a change in circumstance. It does not state that variation is limited to quantum and not duration. It does not state there shall be no termination of support.

[82] In contrast, para. 12 of the Vogelsang J. Order specifically states that, in the event that either child established their primary residence with the applicant, obligating the respondent to pay support, it would constitute a material change in circumstance for the purposes of considering a variation in the quantum of spousal support.

[83] If it was the intention of the parties to limit any future variation or review to quantum, and not duration, para. 7 would have stated as much.

[84] Second, reviewing the order as a whole and having heard the evidence of the parties as set out below, the spousal support agreement considered for the objectives of the Act.

[85] I am of the view that the agreed-upon terms of support took into consideration the promotion of economic self-sufficiency within a reasonable period of time and relieved economic hardships and disadvantages to the applicant arising from the breakdown of the marriage. As further set out below, the applicant had ample time and opportunity to become self sufficient. Any hardship she may have faced as a result of the marriage or its breakdown has been compensated for through support payments made.

(b) Variation vs. Termination

[86] Once the threshold for variation of a spousal support order has been met, the court must determine what variation of the order needs to be made, given the change in circumstances. The court then considers the material change and should limit itself to making only the variation justified by that change: L.M.P., at para. 47.

[87] The variation order should properly reflect the objectives set out in s. 17(7) of the Act and consider the material changes in circumstance. The task should not be approached as if it were the initial application for support under s. 15.2 of the Act: L.M.P., at para. 50.

[88] Variation involves the application of s. 17(7) of the Act. The factors enumerated in s. 17(7) give the court discretion in determining whether a variation is justified. The objectives set out in that section must be given considerable deference: L.M.P., at para. 48.

[89] Under s. 17(7) of the Act, a variation order varying spousal support 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.

Circumstances of the Parties in 2000

[90] This portion of the analysis must be grounded in the actual circumstances of the parties at the time the consent order was entered into.

[91] According to the parties, the elements of their settlement, which led to the Vogelsang J. order, included:

i) Applicant: her health condition, her requirement to re-train/re-educate in pursuit of employment, and the fact that the children were living with the respondent.

ii) Respondent: the applicant’s obligation to become self-sufficient, and his agreement not to accept child support from the applicant.

[92] An analysis of the circumstances is required to determine if the respondent’s retirement is sufficient to bring the support payments to an end or if variation of the quantum is appropriate.

Child Support

[93] In the summer of 1995, the parties moved from Toronto to Grenada for the purpose of the respondent’s employment.

[94] In February 1998, they moved to Trinidad. The applicant and the children returned to Toronto in March 1998 for a brief visit. The parties agree that they separated, with no reasonable prospect of resuming cohabitation on March 23, 1998.

[95] The children attended private school in Toronto until June 1998. They lived with the applicant for a period but then expressed a desire to move with the respondent to Trinidad. The children moved to Trinidad and resided with the respondent in August 1998. Their residency is reflected in para. 2 of the Vogelsang J. Order.

[96] The applicant never paid child support to the respondent. As of the date of separation and as of the date of settlement in 2000, the applicant did not work.

[97] The applicant testified that she agreed to have the children returned to live with the respondent because she thought BNS would pay for their education and that it would be a financially better arrangement for the parties.

[98] The parties’ children attended post-secondary school and their education was paid for by the respondent alone. To the best of the respondent’s knowledge, the applicant did not contribute to the cost of their education. The children are now 39 and 38 years old. One is a high school teacher and the other is a colour editor for film.

[99] Paragraph 5 of the Vogelsang J. Order states that the applicant would not pay any child support at this time. The order specifies that the applicant had no income save spousal support. The order specifies that at such time as the applicant secures full time employment, she shall pay child support.

[100] The order does not state if or when the applicant secures full-time employment; it clearly states at such time. It specifically states that when she secures full-time employment, her child support obligations are triggered. Further, the inclusion of the words “at this time” denotes an understanding between the parties of anticipated transition of her employment status.

[101] The fact that the applicant did not pay child support does not speak directly to the issues before this court except to the extent that the language of para. 5 supports a reasonable conclusion that the parties planned for the applicant’s self-sufficiency.

[102] There is no dispute that while the applicant had a history of employment, she was not working when the parties separated.

[103] As further detailed below, the applicant went back to school full-time following the separation to obtain a Bachelor of Social Work. She commenced her studies in 1998 and, at the time that the 2000 consent/Vogelsang J. Order was made, she was two years into her degree. I accept that there was a plan in place that the applicant complete her schooling and work full-time to promote her self-sufficiency. It is therefore reasonable to conclude that there was an anticipated career transition.

Applicant’s Pursuit of Employment

[104] Five months after separation, and prior to the 2000 consent order, the applicant began studying at King’s University College, University of Western Ontario at the Faculty of Social Work.

[105] She graduated in 2003 and then pursued a Master of Social Work at Wilfrid Laurier University. She earned her Master of Social Work in 2004. Her transcripts revealed that she was a straight A student. She attended the Master program full-time from September 2003 to May 2004.

[106] The respondent testified that the minutes of settlement, which gave rise to the Vogelsang J. Order, provided no indication that the applicant would not work following completion of school.

[107] The applicant testified that when the parties separated, she felt as though she had lost everything: her career, her children, her health. She felt as though she had nothing left.

[108] She testified she was aware that a variation clause was incorporated in the Vogelsang J. Order. She confirmed reading the minutes of settlement before signing them.

[109] The applicant understood the variation clause would come into effect if she obtained full-time employment. She understood that obtaining full-time employment meant that the court could review the spousal support order or there could be a renegotiation to change or vary the clause.

[110] The applicant testified that the respondent was always pushing her and questioning her as to the status of her work.

[111] To her credit, the applicant did well in university. She had not been in university for approximately 30 years. She started off taking two courses in August 1998. In her second year, she attended university full-time.

[112] By her third year of university, the applicant was accepted into the social work program. She completed her third and fourth years of the program on a part-time basis because she could not manage the course load.

[113] She worked briefly with the Children's Aid Society but then looked for work in a different field, including in the community.

[114] Her interest in counseling focused on divorce therapy and her desire to assist those struggling with anxiety, depression, and abuse. According to her transcript, her area of concentration was individuals, families and groups.

[115] She held contract positions at over four different agencies and ran a private counseling service starting in 2005. From 2005 to 2014 she took many additional courses and underwent further training.

[116] Because of her work experience, she completed a two-year Master of Social Work program in a year and a half. She spent approximately $50,000 on her education. She had to renegotiate her mortgage to pay for this.

[117] According to the applicant, full-time social worker status requires one to work over 24 hours per week. To be considered a part-time, one may work a maximum of 24 hours per week.

[118] The applicant testified that she was trying desperately to let the respondent know she did not need his money. She wanted to be out of his control and wanted to get a career so she could survive on her own.

[119] The applicant's educational situation at the time the Vogelsang J. order was made, her continued educational pursuits, and her testimony that she was trying desperately to survive financially on her own, support the conclusion that she understood the concept of self sufficiency and the expectation that support could be revisited later.

[120] The respondent testified that he was committed to assisting the applicant with her career transition, as was clearly contemplated by the Vogelsang J. Order.

[121] The applicant testified that she hoped she would be healthy enough not to need spousal support, but this did not occur.

[122] The evidence supports a finding that at the time the Vogelsang J. Order was made, the parties recognized the economic disadvantage to the applicant arising from the breakdown of the marriage and attempted to relieve any economic hardship of the applicant with a view to promoting her economic self-sufficiency.

Applicant’s Health

[123] A considerable amount of evidence was tendered at trial regarding the applicant's health conditions past, present, and potentially future.

[124] In the fall of 1994, the applicant was diagnosed with rheumatoid arthritis. Before this diagnosis, she described her health to be very good and stated that she was very active.

[125] The applicant described her onset of rheumatoid arthritis to be sudden, testifying that in one week she went from painless mobility to being in excruciating pain and unable to move her left arm. She then described herself to have full-blown rheumatoid arthritis from head to toe.

[126] The applicant testified that she experienced considerable swelling in her limbs. Her shoe size increased from a seven to nine and a half. She claimed that her fingers swelled to the point where she could not wear rings.

[127] The applicant claims that her rheumatoid arthritis prohibited her from opening jars. She had to quit teaching piano. She wore braces in the day, and she was prescribed specific night braces to wear in bed. All the while, the applicant described herself as the children’s caregiver.

[128] The applicant testified that she underwent treatment for her arthritis while living in Grenada. When she returned to Canada every summer, she would see her specialist who would adjust her medication as needed. She stated that she was on a very aggressive form of treatment for her rheumatoid arthritis, receiving the same drugs that cancer patients receive.

[129] The applicant testified that the heat in Granada had a negative effect on her rheumatoid arthritis. The medication she was taking made her sensitive to the sun. She got blisters if she was in the sun for too long and the heat did not help her swelling limbs.

[130] When she first experienced rheumatoid arthritis, the applicant testified she could not walk down stairs: she had to go down on her backside, one step at a time. According to her timeline this would have been in or around 1994 and 1995.

[131] The applicant testified that she experienced bone-on-bone pain in her hands; arthritis from the top of her spine, down her neck, and to her tailbone; and arthritis in her elbows and wrists.

[132] The applicant testified that her rheumatoid arthritis has become progressively worse over time.

[133] In 2006 and 2007, she had both hands operated on and was in a cast. She claims this was the result of arthritis-induced carpal tunnel syndrome.

[134] The applicant described an incident that occurred in October 2015, 17.5 years after her separation from the respondent, and over 15 years after the Vogelsang J. Order was made.

[135] While visiting her sister and walking her dog, the applicant tripped and ruptured her spleen unknowingly. On one hand, she described this accident to be a “freak accident”. On the other, she considers the trip and fall to be the result of arthritis she suffers in her feet. After being taken to hospital the next morning, she had a blood transfusion and was hospitalised for ten days. She subsequently had a gallbladder attack and was re-hospitalised.

[136] The applicant claims that after she recovered from the surgeries, her arthritis went into a full-blown flare-up from head to toe, resulting in her being unable to walk or lift her arms above her head. She claims she could not get out of bed and was completely incapacitated.

[137] She claims she was unable to work full-time after this incident. On cross-examination, she admitted that this incident was why she did not work after October 2015.

[138] After the 2015 trip and fall, the applicant found the medication she was taking was not working for her. She had to find other pain medication. She also takes biological, anti-inflammatory, pain modification, and decreased modification medication.

[139] She was diagnosed with a damaged liver due to the medication she had been taking since her diagnosis in 1994. She had a liver biopsy to rule out possible cancer. She takes thyroid medication and in the last 15 years has had several medical procedures and has seen various doctors.

[140] The applicant has been under the care of doctors as follows: rheumatologist (1999 to present), ophthalmologist (2002 to present), family doctor (2006 to present), gynecologist (2006 to 2013), hand specialist (2008 to 2009), gynecological oncologist (2012 to 2013), gastroenterologist (2013 to 2016), physical medicine and rehabilitation doctor (2013 to 2015), urologist (2015 to 2016), shoulder specialist (2015 to present), hand specialist (2015 to present), dermatologist (2016 to present), cardiologist (2000 to present), and liver specialist (2000 to present).

[141] Shortly after the October 2015 incident, the applicant applied for CPP disability. Her original application was not approved. The applicant denied her application was rejected because of her medical conditions, although her evidence changed on cross-examination following a review of a letter received from Service Canada.

[142] Service Canada concluded that the applicant’s condition did not continuously prevent her from doing some type of work since December 2013.

[143] Service Canada acknowledged that the applicant had limitations due to her medical condition, but the information indicated that she was capable of gainful employment when she last qualified for CPP disability benefits in December 2013.

[144] Service Canada found that the information submitted showed that the applicant’s limitations would not have continuously prevented her from doing some type of work in December 2013.

[145] The applicant filed for a reconsideration on May 18, 2016. In her request for reconsideration, the applicant signed her name above a statement indicating that her condition was severe and prolonged since the minimum qualifying period (being December 2013) and that she cannot maintain regular and gainful employment, full or seasonal job. Her CPP disability application was subsequently approved.

[146] The applicant now believes that her arthritis may be going into her hips and predicts that she may not be mobile in the future.

[147] However, the focus of this analysis must centre around the actual circumstances of the applicant at the time the consent order was entered.

[148] The applicant testified that her health was at the forefront of her mind when settling in 2000. She claims that when she returned to Canada in 1998, she used a cane.

[149] The respondent testified that the applicant’s arthritis did not play a factor in the settlement. He now accepts that the applicant has arthritis but claims that her arthritis was not debilitating when the parties signed their minutes of settlement.

[150] The evidence presented at trial and my previous credibility finding lead me to favour the evidence of the respondent.

[151] Six years passed between the applicant’s rheumatoid arthritis diagnosis and the settlement reached as set out in Vogelsang J. Order. Yet there is no mention of rheumatoid arthritis or of any prolonged or severe health condition in the Vogelsang J. Order.

[152] Approximately three years passed since an injury the Applicant sustained when sailing in Grenada and the settlement reached as set out in Vogelsang J. Order. There is no mention of the possibility that the applicant's medical condition may worsen in the Vogelsang J. Order.

[153] There is no mention that the applicant may not be able to work full-time or secure employment due to her medical condition in the Vogelsang J. Order.

[154] On the contrary, the only reference to the applicant’s health is in para. 9 of the Vogelsang J. Order, which states the applicant’s “uncertain health exposes her to above-average requirements for medication”.

[155] This leads to a conclusion that the applicant’s rheumatoid arthritis and health generally were not circumstances considered or contemplated by the parties in 2000 when settling spousal support.

[156] Having established that the threshold for variation of a spousal support order has been met, having concluded that the applicant’s health conditions were not taken into account at the time the Voelgsang J. Order was made, I must determine what order needs to be made, given the change in circumstances.

[157] In this case, the respondent argues his retirement justifies termination and the applicant seeks ongoing support and potential variation of quantum.

[158] A variation is neither an appeal nor a hearing de novo: L.M.P., at para. 47.

[159] Under section 17 of the Act, I am limited to making the appropriate variation and should not weigh all the factors to make a fresh order unrelated to the existing one.

[160] This is not the applicant’s opportunity to re-litigate or to raise issues that could have been raised in 2000.

[161] I have considered the objectives listed in s. 17(7) of the Act.

[162] With respect to s. 17(7)(a), I find that any disadvantage to the applicant arising from the marriage or its breakdown has been compensated for by the length and amount of support paid.

[163] While the Vogelsang J. Order required the respondent to pay support in the amount of $3,200 per month, this amount increased to approximately $4,200 with the COLA adjustment.

[164] While the applicant currently faces many disadvantages, they do not arise from the marriage or its breakdown. The debt she owes to the Canada Revenue Agency (the “CRA”), as further particularised below, is the result of her failure to file income tax returns and declare her spousal support as income.

[165] While some of her health issues may have predated separation, they are not considered a disadvantage arising from the marriage or its breakdown. Many of her health issues presented themselves following the parties’ separation, for example, the cancer removed from her cheek in 2020, 22 years after the parties separated, and her trip and fall in October 2015, 17.5 years after the parties separated.

[166] With respect to s. 17(7)(b), there are no childcare expenses relevant at this time. The respondent was financially responsible for the children and all childcare responsibilities following the parties’ separation.

[167] With respect to s. 17(7)(c), I take the view that any economic hardship arising from the breakdown of the marriage has been relieved with the passage of time.

[168] The parties’ marriage lasted 17.5 years. The applicant was 42 years old at the time of separation. She was 66 years old at the time of trial and is now 67 years old.

[169] Twenty-four years have passed since the parties’ separation. Within those 24 years, the applicant obtained two post secondary degrees, trained in various courses, and worked with several agencies. She has her own business.

[170] The applicant had the opportunity and means to overcome any economic hardship arising from the breakdown of the marriage.

[171] I recognize that she maintains that she continues to suffer economic hardship. Any hardship she may face is self-created or the result of other circumstances and does not arise from the breakdown of her marriage. For example, her debt owed to the CRA was the result of her misunderstanding and misinformation.

[172] With respect to s. 17(7)(d), I find that the Vogelsang J. Order was designed to promote the applicant’s economic self-sufficiency. This finding is made based on the evidence of both parties and the clear wording of the order itself.

[173] According to the evidence, the applicant spent approximately $50,000 pursuing a Bachelor of Social Work and a Master of Social Work. She completed her education in 2004, just shy of her 49^th birthday. Thereafter, she held several contract positions and ran her own counseling service business.

[174] In the years that followed the completion of her education, the applicant's income tax returns reveal that she reported professional incomes in the range of approximately $5,000- $20,000 annually from 2006 to 2010. She reported net professional income losses from 2011 to 2016. She did not report any professional income from 2016 to 2021.

[175] The applicant testified that she is not self -sufficient at present. If support is terminated, it will create a hardship for the applicant. She testified that she has been living off a line of credit. Once the line of credit has been maxed out, the applicant would need to arrange to sell her home. She testified she owes the CRA approximately $120,000. The applicant testified that she does not expect the same lifestyle as the one she enjoyed while married, however she wishes to have some dignity, at least to not borrow money, and to live a comfortable life.

[176] The applicant finds herself in a very difficult situation at present. However, she does not remain entitled to support from the respondent having regard to the provisions of the Act.

[177] This is an appropriate case for the termination of support.

(c) Effective Date, Overpayment and Repayment Request

[178] The applicant was first notified of the respondent’s impending retirement in August 2014.

[179] The parties corresponded via e-mail in November 2014 on the issue of spousal support.

[180] In December 2015, the applicant received a letter from the respondent’ counsel attempting to resolve matters and putting her on notice that a Motion to Change would be brought to terminate support if the issue could not be resolved out of court.

[181] The respondent’s Motion to Change was issued on April 11, 2018. The respondent sought to terminate his obligations to pay support to the applicant effective December 31, 2016 and asked for an order deleting any accrued arrears under the Vogelsang J. Order.

[182] The respondent stopped making spousal support payments to the applicant after February 2016; however, on September 1, 2017, he paid the applicant the sum of $44,614.50, representing his spousal support obligations from March 2016 to December 2016

[183] Under the Korpan J. Order, the respondent’s Motion to Change was stayed until he paid the $50,000 and the additional sum of $113,981.92 into court, or into the applicant’s lawyer’s trust account, to be held until this court orders its release in part or in full to one of the parties.

[184] The Korpan J. Order was made in response to the applicant’s motion to stay the respondent’s motion to change until he pays outstanding spousal support arrears of more than $150,000, and the respondent’s cross-motion to suspend his obligation to pay spousal support and arrears pending final determination after a trial or, in the alternative, to adjust spousal support in accordance with imputed income to the wife and his current income.

[185] The respondent paid both amounts as ordered and no further payments were made to the applicant. The applicant did not request further periodic support.

[186] According to the endorsement of Mitrow J. dated November 30, 2021, there were submissions made in readiness court by the applicant to at least schedule a time for a half-day hearing of the applicant’s motion to dismiss the respondent’s motion to change for nonpayment of spousal support.

[187] RSJ Thomas’s February 8, 2022 endorsement states: “pretrial motion to be heard by trial judge prior to the start of trial.”

[188] At the start of trial, the applicant moved for an order requiring the respondent to pay all arrears of support within 15 days.

[189] Both parties agreed that the issues involved required a determination of whether a material change in circumstance had occurred that warranted the termination or variation of support sought by the respondent.

[190] The relief sought in the applicant’s notice of motion differed from that contemplated by Mitrow J.

[191] For oral reasons provided at the start of trial, I ruled that the trial would proceed and dismissed the applicant’s motion.

[192] The respondent seeks to terminate spousal support as of December 31, 2016. He also seeks the return of the $50,000 paid under the Korpan J. Order.

[193] The applicant did not provide any submissions with respect to the appropriate termination date.

[194] I take the view that the payments ordered by Korpan J. were measures put in place pending the outcome of the trial. While it does not appear that the respondent’s obligation to pay spousal support and arrears was suspended, the effects of the order are the same.

[195] Given the notice provided to the applicant of the respondent’s retirement and his intention to terminate support, the effective date of termination shall be December 31, 2016.

[196] It is not appropriate to order that the applicant repay the respondent the $50,000 as ordered by Korpan J. Such repayment was not contemplated by the Korpan J. Order and to order as much would cause the applicant hardship.

[197] However, it is appropriate for those funds held in trust to be returned, given the reasons set out above.

[198] I now turn to the request made by the applicant for a lump sum payable by the respondent.

[199] The applicant testified that she relied on representations made by the respondent regarding her requirement to declare spousal support as taxable income. She believed that she was not required to declare her spousal support as taxable income because the respondent was residing outside of Canada.

[200] The respondent denies making any representations. He noted that reference to the tax treatment for support payments was expressly omitted from the Vogelsang J. Order.

[201] I accept the respondent did not make any such representations to the applicant regarding her requirement to declare spousal support as taxable income or requiring her to file income tax returns at all.

[202] In a letter from the respondent to the applicant dated November 28, 2005, he specifically sets out that he had reason to believe she had taken advantage of his non-resident status and, as such, had not paid income taxes relative to the full amount of support payments paid since they separated. The respondent testified that he did not recall receiving a response to this letter. The applicant did not address this letter in her evidence.

[203] From this, I conclude that the applicant knew or ought to have known that she should have been declaring her spousal support payments as taxable income, yet she did not do so.

[204] Not only did the applicant fail to declare her spousal support as taxable income, she also failed to file income tax returns with the CRA from 1998 to 2011.

[205] In 2011, the applicant submitted a voluntary disclosure to the CRA. This resulted in a substantial tax liability. She testified that her current liability amounts to approximately $120,000.

[206] In her Response to Motion to Change, she requests that the respondent pay the lump sum of $156,325. She claims that as a result of relying on advice received from the respondent, she did not declare the spousal support she received as taxable income, resulting in the significant debt.

[207] The applicant’s responsibility to file income tax returns yearly rests with her. Her failure to file income tax returns and declare her spousal support as taxable income is not the respondent’s responsibility. The applicant and the applicant alone is responsible for the debt created. As such, her requested relief shall be dismissed.

(vii) Orders

[208] For the reasons set out above, a final order to issue under the Divorce Act as follows:

1. The spousal support payments ordered to be paid by Vogelsang J. in accordance with paragraph 6 of his order, dated April 6, 2000, shall terminate effective December 31, 2016.

2. The applicant’s claim set out in her Response to Motion to Change shall be dismissed.

3. The $113,981.92, plus any accrued interest, currently held in the applicant’s counsel’s trust account, shall be returned to the respondent forthwith.

(viii) Costs

[209] The parties are encouraged to settle costs.

[210] If they cannot do so and the respondent seeks costs, he shall submit written cost submissions of no more than four pages, not including a Bill of Costs and Offer to Settle, by July 11, 2022.

[211] The applicant shall file responding written cost submissions of no more than four pages, not including a Bill of Costs and Offer to Settle, by August 1, 2022.

[212] Reply cost submissions shall be filed no later than August 15, 2022 and shall be no longer than two pages.

[213] Cost submissions should comply with rr. 24(12.1) and (12.2) of the Family Law Rules. Submissions shall be double spaced, using 12-point font.

[214] If cost submissions are not received under the timeline set out above, costs shall be deemed settled.

“Justice Kiran Sah”

Justice Kiran Sah

Released: June 23, 2022

COURT FILE NO.: FC120/99-2

DATE: June 23, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Paula Theresa Meilleur

Applicant

• and -

Lawrence Anthony Aqui

Respondent

REASONS FOR JUDGMENT

SAH J.

Released: June 23, 2022