Court File and Parties
Court File No.: FS-09-324-0001 Date: 2022-08-12 Superior Court of Justice - Ontario
Re: Sharon Davis, Applicant And: Richard Davis, Respondent
Before: Justice D.A. Broad
Counsel: Maybelline Massey, for the Applicant Mark Feigenbaum, for the Respondent
Heard: July 4 and 5, 2022
Reasons for Decision
[1] The parties married on July 3 1987 and separated after a 21-year marriage on August 17, 2008. The applicant (the “wife”) is 66 years of age and the respondent (the “husband”) at the time of trial was two weeks away from turning 58 years of age.
[2] The husband graduated from high school but received no formal education or training thereafter. The wife’s highest level of education was grade 11.
[3] On June 4, 2010 Justice Cavarzan made a final order (the “final order”) that the husband pay spousal support to the wife in the sum of $1,800 per month commencing May 1, 2009. The spousal support payments were ordered to be adjusted on the anniversary date of the order by the percentage change in the Consumer Price Index for Canada as published by Statistics Canada. The monthly support payments had reached $2,200 when the husband discontinued paying them as described below.
[4] On August 1, 2019 the husband retired at age 55 from his employment as a utility service representative for Enbridge Gas. The retirement was not mandated by Enbridge. The husband earned $99,196 per year in his last full year of employment. Upon his retirement he began drawing on his employment pension in the sum of $30,345.36 per annum.
[5] Shortly before his retirement the husband contacted the Family Responsibility Office (FRO) to advise of the impending reduction in his income for spousal support purposes. However, he did not bring a Motion to Change until February 6, 2000. In his Motion to Change he sought termination of his spousal support obligation pursuant to the final order effective July 31, 2019.
[6] The husband maintained that his retirement was not voluntary but was necessitated by his physical limitations. His employment was physically demanding, and he had a number of painful conditions such that he could no longer work.
[7] The wife disputes the husband’s motion to change, arguing that the husband’s retirement in 2019 was voluntary and there has been no material change in circumstances. The wife points to the absence of medical evidence to support the husband’s position that he was and remains unable to work due to his physical condition.
[8] The wife points out that the marriage was a traditional one in which she assumed the role of primary caregiver for the parties’ children and was entitled to spousal support on both a compensatory and non-compensatory basis. She has only a Grade 11 education and is unable to work due to an injury she sustained to her foot and shoulder. She says that at the time of the final order she expected that the husband would continue to work until age 65.
[9] Moreover, the wife says that the husband does not come to court with clean hands as he discontinued payment of spousal support immediately upon his retirement rather than moving to vary the final order and was not forthcoming with his required financial disclosure in the course of the proceeding.
Guiding Principles on Motions to Vary Spousal Support
[10] As the final order was made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). as am. (the “Act”), variation of the order is governed by section 17 of the Act, the pertinent provisions of which are as follows:
17(1) Variation order
A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(a) a support order or any provision of one, on application by either or both former spouses;
17(3) Conditions of order
The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.
17(4.1) Factors for spousal support order
Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
17(6) Conduct
In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
17(7) Objectives of variation order varying spousal support order
A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[11] The Divisional Court summarized the process and the considerations to be taken into account by the court in determining whether to grant a variation of a spousal support order under the foregoing provisions of the Act in the case of Hickey v Princ, 2015 ONSC 5596 (Div. Ct.) at para. 50 as follows:
This mandates a two-step process, as described in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.) and Droit de la famille - 091889, 2011 SCC 64, [2011] 3 S.C.R. 775 (S.C.C.). First, the court must consider whether the conditions for variation exist, i.e. whether there has been a change in the condition, means, needs or other circumstances of either former spouse since the order was made. The change must be "material", meaning that it must be a change that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The onus of proving a material change is on the party seeking variation. Once the court decides that the threshold for variation has been met, the court must decide on the variation to be made in view of the change, based on the objectives set out in s. 17(7) of the Act.
Issues
[12] The issues for determination in respect of the husband’s motion to change are as follows:
(a) has there been a material change in circumstances by virtue of the husband’s decision to retire on August 1, 2019 due to alleged health limitations?
(b) if there has been a material change in circumstances, should there be any change of the spousal support order made by Justice Cavarzan by termination or reduction of the spousal support order and, if so, on what date should it take effect?
(c) if there should be a change of the spousal support order, are there remaining arrears of spousal support owing to the wife and, if so, what periodic payments should the husband be ordered to pay to retire the arrears?
(a) Issue One – Has there been a material change in circumstances by virtue of the husband’s retirement?
(i) Evidence
[13] The husband testified that he was no longer able to work during the time leading up to his decision to retire due to the ongoing pain that he was experiencing. His work for Enbridge Gas was physically demanding. He stated that he had worked for 30 years “on his knees”. Between 1982 and 1987 he injured his knee which required surgery. He developed sciatica in the mid-1980’s for which he received chiropractic treatment 3 to 4 times per year. The sciatica returned after 2000 which he attributed to the bouncing movement in his work truck. He was off for a time on Workers Compensation. He developed problems with his clavicle bone. He testified that he consulted with his doctor who did not prescribe anything but advised him to quit his employment. He described that for three years he was heavily into Percocets which he purchased on the street without a prescription to attempt to control his pain. He testified that in December 2021 he stopped travelling to Brantford as he had been doing regularly to purchase pills.
[14] The husband testified that his manager provided accommodation to him due to his condition and all of his co-workers were aware of his limitations However, the accommodations which he received on the worksite were not reported to company management. He stated that he “worked through the pain every day” but eventually he could no longer work with the pain he continued to suffer.
[15] Following his retirement, the husband’s sole source of income was his Enbridge pension of approximately $2,500 per month. He resides in a room in Toronto measuring 12 ft x. 12 ft. for which he pays rent of $500 per month.
[16] The husband testified that if he had the ability to work and had received the necessary accommodation from his employer, he would not have retired, and if he could meet his obligations to the wife under the final order he would do so.
[17] He stated that he discussed with the Family Responsibility Office the amount that he should be paying to the wife for support and settled on $300 per month which he has continued to pay. It is evident that this occurred following the Settlement Conference on October 23, 2020 when he was ordered by Justice Skarica to make some arrangement with FRO regarding paying toward spousal support arrears.
[18] On cross-examination the husband acknowledged that Skarica, J. ordered him to obtain a medical report outlining his physical status and to obtain a letter from his former employer outlining the reasons why he had to retire and that he failed to do so within the two months required.
[19] On March 3, 2021 a further Settlement Conference was held before Carpenter-Gunn, J. who ordered the husband to complete the disclosure previously ordered by Skarica, J. by April 5, 2021.
[20] In response to a letter of inquiry from the husband’s counsel, the Associate General Counsel for Enbridge provided a letter dated May 13, 2021 advising that, based upon a review of the Health Services Department’s files and inquiries with Enbridge personnel, it was the company’s belief that the husband retired voluntarily for his own reasons. The letter went on to state that it had no record of any restrictions or medical accommodations in place for the husband at the time he retired and that to the best of the company’s knowledge, he was doing the full scope of his job.
[21] In her examination in chief the wife stated that, at the time of separation, the husband’s health was fine. He had no health problems and worked his full-time position and on-call, even taking on other workers’ on-call duties. On cross-examination she acknowledged that she knew of the husband’s sciatic nerve issues but was not aware of any issues with his clavicle or his knees. She denied that she took him to any doctor’s appointments and is not aware that the husband was seeing a chiropractor. On re-examination she stated that she did not understand the husband to be hurt and that he was able to work when they were together.
(ii) Analysis
[22] Counsel for the wife pointed to the failure of the husband to lead any medical evidence supporting his inability to continue to work at the time of his retirement and submits that the best evidence respecting the husband’s reasons for his retirement is represented by the letter from Enbridge.
[23] It is noted that, at the commencement of the trial, counsel for the wife objected to the admission into evidence of 42 pages of medical records served on her by counsel for the husband one hour before trial. There was a disagreement between counsel as to whether the documents in question had been previously disclosed to counsel for the wife. Counsel for the husband indicated that the documents had been appended to an affidavit of the husband in response to a motion brought by the wife in the spring of 2021. Counsel for the wife responded that, based upon a cursory review within the time permitted, she had previously received two or three pages but that the balance of the documents had not been previously disclosed. In any event, she maintained that there is a difference between appending documents to a previous motion and serving them in advance of trial as documents intended to be relied upon a trial, as provided for in the Trial Scheduling Endorsement Form filed by the parties.
[24] When it became apparent that the court was leaning towards ordering an adjournment of the trial to permit the wife’s counsel to review the medical documents, counsel for the husband advised that he would not be referring to the documents at trial but would rely upon the viva voce testimony of the husband with respect to his health issues at the time of his retirement. Thus, no clinical notes and records were entered into evidence to support the husband’s evidence that he retired due to his physical limitations.
[25] It is apparent from the jurisprudence that although medical evidence of a party’s physical or mental condition is desirable it is not essential. In the case of Leskun v Leskun, 2006 SCC 25 per Binnie, J., writing for the Court, stated as follows at para. 28:
Clearly where incapacity is alleged some independent evidence, including medical evidence would be highly desirable. But it is not essential. Newbury J.A. commented that
[h]aving seen Mrs. Leskun, who appeared on her own behalf, I would have thought she was employable at least on a part-time basis in the banking industry. [para. 62]
The Chambers judge approached the respondent's evidence with a measure of scepticism but at the end of the day she had to reach a conclusion on the evidence before her.
[26] The principle from Leskun was applied by DeWare, J. (as she then was) in the case of Smith v Smith, 2019 NBQB 96 per at paras. 24-25, quoting from the case of W. (G.P.) v. W. (L.), 2017 NBQB 66 (N.B. Q.B.) which in turn relied upon the New Brunswick Court of Appeal decision in Scott v. Scott, 2004 NBCA 99, as follows:
The Respondent suggests that the Court should be suspect of the Applicant's assertion that he is retired for medical reasons given the fact that he failed to produce medical evidence in support of his explanations. However, as pointed out by Justice Walsh in W. (G.P.) v. W. (L.), 2017 NBQB 66 (N.B. Q.B.) at paragraph 56, a lack of medical evidence is not lethal to the Applicant's submissions:
[56] Although there is a paucity of medical evidence to support her claim, there is sufficient evidence overall. The Court accepts that she has back pain that troubles her to the extents she mentioned. There is a documented historical origin and the Court finds her evidence as to her present condition to be credible. It was given without embellishment and fits within a framework of the experience of everyday life as inherently probable. The fact that there was no admissible medical evidence corroborating her present condition was considered by the Court. In the end, the Court took note of the earlier referenced comments in Leskun v Leskun that such evidence is highly desirable but it is not essential. Obviously, it depends on the facts of each case:
While it would certainly have been desirable to have medical opinions supporting the testimony of Ms. Scott regarding her own physical health, the absence of such evidence was no impediment to the findings made by the motions judge. By not calling any medical expert to testify on her behalf, Ms. Scott certainly ran the risk that the motions judge might conclude that she had not overcome the burden of proving the effect of her medical condition on her earning capacity. However, nothing prevented the motions judge from making findings of fact based solely on the credibility of Ms. Scott even in the absence of medical reports and expert opinion.
(Scott v. Scott, 2004 NBCA 99 at para. 57)
[Emphasis that of DeWare, J.]
In the present matter, I accept the Applicant's evidence that he is suffering from the medical difficulties set out in his Supplemental Affidavit and explained in his viva voce testimony.
[27] The court is therefore not precluded in the case at bar from accepting the husband’s evidence that he retired on August 1, 2019 because he was no longer able to cope with the demands of the job due to the pain he was experiencing, in the absence of corroborating medical evidence or expert opinion.
[28] Although the husband was somewhat inarticulate in his testimony, in the words of Justice Walsh in W. (G.P.) v. W. (L.), it was “given without embellishment and fits within a framework of the experience of everyday life as inherently probable” and I found it to be credible.
[29] The husband displayed no resentment or hostility towards the wife and testified that, if he had been able, he would have continued to meet his obligations to her under the final order. It is clear that he worked diligently during his employment with Enbridge, frequently taking on-call assignments in addition to his regular scheduled duties. The wife agreed that while they were together the husband worked hard and was often away from home working, taking on on-call assignments for co-workers. I find that it would be improbable for an individual in the husband’ position to voluntarily and without reason give up remunerative employment earning approximately $100,000 per annum to draw pension benefits of less than one third that level and to adopt a lifestyle that he described, living first in a house requiring extensive repair, which he sold within one year of retirement, and then in a 12’ x 12’ room.
[30] The husband’s testimony that he retired due to his inability to continue to work due to continuing pain and discomfort was not undermined by cross-examination nor by the wife’s testimony that she was not aware of the husband’s physical limitations during the time that they cohabited. In her examination in chief, she professed no knowledge of any physical limitations on the part of the husband, while on cross-examination she acknowledged that he suffered from sciatica while they were together. Moreover, the wife was not in a position to testify to any knowledge of the husband’s condition at the time of his retirement approximately 10 years after they separated.
[31] The letter from the Associate General Counsel for Enbridge, although relevant, was qualified, in that it spoke only to the company’s “belief” respecting the husband’s reasons for retiring based upon its records. The letter did not purport to represent the husband’s subjective reasons for retiring nor did it state that he communicated his reasons to the company. He testified that he was provided with on-the-job accommodations by his manager. He had no control over what information found its way into the company records.
[32] As indicated in the jurisprudence noted above, it would have been desirable to have corroborating medical evidence for the husband’s claim that he retired due to his physical limitations. Notwithstanding this, although it is close to the line, I am satisfied on a balance of probabilities that he did so, and that his retirement was not voluntary. I find that the change was one that, if known at the time of the final order, would likely have resulted in different terms. The evidence indicated that the husband was able to “work through” his pain for a lengthy period of time but by July 2019 it had reached a level such that he could no longer realistically continue.
[33] The husband has therefore satisfied his onus of showing that his retirement on August 1 2019 represented a material change in circumstances.
Issue Two: Should there be any change to the existing spousal support order by termination or reduction and if so, when should it take effect?
[34] It is noted that the most recent Income Tax Return filed by the husband was for 2019 the year of his retirement showing line 150 income in the sum of $85,041. He did not file Income Tax Returns for 2020 or 2021.
[35] The only source of disclosure of the husband’s income after 2019 was set forth in his Financial Statements dated February 4, 2020 and June 24, 2022, each of which showed annual income from his Enbridge pension of $30,345.36.
[36] It is clear that the husband’s financial disclosure was deficient and not in compliance with rule 13 of the Family Law Rules. However, I am not satisfied that there is any basis to impute income to the husband for the years 2020 and 2021 or for the current year in excess of his pension income on that ground.
[37] Based upon the best information available, the husband’s monthly income decreased to $2,528.78 effective August 1, 2019 and has continued at that level to the present, representing an annual income of $30,345.36.
[38] Neither party filed DivorceMate calculations setting forth the husband’s support obligations pursuant to the Spousal Support Advisory Guidelines commencing August 1, 2019 to the present. In submissions, counsel for the husband stated that the mid-range support based upon the parties’ current respective incomes would be $433 per month.
[39] In my view, on the basis that there was a material change in circumstances upon the husband’s retirement effective August 1, 2019, the husband’s spousal support obligation under the final order should be reduced effective on that date to an appropriate level under the SSAG’s to reflect the reduction in his annual income to $30,345.36.
[40] It is noted that counsel did not address in submissions whether the support payments should continue to the indexed to inflation, given that the husband’ sole source of income is derived from his Enbridge pension.
[41] Counsel for the parties are directed to seek to reach an agreement on the appropriate amount of spousal support under the SSAG’s commencing August 1, 2019 to the present and continuing to reflect the findings set forth above. If they are unable to agree they may arrange an appointment before me through the Trial Coordinator to speak to the issue.
[42] If the parties are able to reach agreement on these issues, counsel for the parties are directed to advise the court through the Trial Coordinator accordingly.
Issue Three: Arrears of spousal support and terms for payment
[43] Neither party filed a Statement of Arrears of spousal support payments from FRO and the evidence was imprecise on when the husband began making payments in the sum of $300 per month.
[44] Counsel for the parties are directed to seek to reach an agreement respecting the quantum of the husband’s arrears of spousal support owing to the wife and terms for payment thereof. If they are unable to agree they may arrange an appointment before me through the Trial Coordinator to speak to the issue.
Disposition
[45] The foregoing reasons it is ordered as follows:
(a) spousal support payable by the respondent husband to the applicant wife shall be reduced effective August 1, 2019 to reflect a reduction in the respondent’s annual income to $30,345 and the applicant’s annual income of $16,932;
(b) Counsel for the parties are directed to seek to reach an agreement on the appropriate amount of spousal support under the Spousal Support Advisory Guidelines commencing August 1, 2019 and continuing thereafter in accordance with the foregoing and to advise the court accordingly. If they are unable to agree they may arrange an appointment before me through the Trial Coordinator to speak to the issue.
(c) Counsel for the parties are directed to seek to reach an agreement respecting the quantum of the husband’s arrears of spousal support owing to the wife and terms for payment thereof, based upon the foregoing. If they are unable to agree they may arrange an appointment before me through the Trial Coordinator to speak to the issue.
Costs
[46] Counsel are strongly encouraged to agree on costs of the proceeding through trial. If they are unable to do so, they may deliver written submissions on costs - the respondent within 14 days of the date of release of this Endorsement and the applicant within 10 days of receipt of the respondent’s submissions. The submissions shall not exceed three (3) double-spaced pages, exclusive of Bills of Costs or Costs Outlines and Offers to Settle. All submissions shall be delivered by email to the Trial Coordinator at Brantford at the email address utilized for the release of this Endorsement.
[47] In the event that no costs submissions are received within the timeline set forth above, the parties will be deemed to have settled the issue of costs.
[48] In the event that a party does not intend to make submissions on costs, that party shall advise the court accordingly.
[49] In the event that the parties are unable to agree on the appropriate amount of spousal support commencing August 1, 2019 and the amount of arrears of spousal support owing by the respondent and a further attendance is required to address those issues, further direction may be given by the Court for the delivery of further costs submissions for that step.
D.A. Broad, J.
Date: August 12, 2022