COURT FILE NO.: FS-18-2609-0001
DATE: 20220906
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natalia Prokopovych Applicant
– and –
Rostyslav Prokopovych Respondent
Ruth Richards for the Applicant
Self-Represented
HEARD: August 16, 2022
Shore J.
Reasons for decision
[1] The parties signed a separation agreement in 2018 (“the agreement”). The terms of the agreement were subsequently turned into a final order of this court.[^1] The agreement provides for spousal support in the sum of $1,000 per month, payable by the Respondent to the Applicant for 10years, among other terms. Both parties brought motions to change spousal support. Their motions to change were heard August 16, 2022, with both parties alleging that there has been a material change in circumstance.
[2] The questions this Court must answer are:
Has there been a material change in circumstance?
If yes, then should the spousal support be varied?
If yes, then what quantum of support should be ordered?
[3] There were a lot of materials filed by the parties for this motion. I have read everything. However, I am going to focus only on the evidence that I found compelling and that I find is relevant to the issues that must be determined by this Court. This is not a de novo determination of spousal support (meaning being determined as if for the first time) but a motion to change.
1) Material Change in Circumstance
[4] I find there has been a material change in circumstance as of February 2022, with the breakout of the war in Ukraine and the Applicant’s inability to find employment.
[5] The parties entered into their separation agreement in 2018. The Agreement was incorporated into the final order of Justice Paisley, dated November 28, 2018. Paragraph 22 of the order permits the parties to seek a change in spousal support if there is a material change in circumstance. Both parties are seeking to vary spousal support. Both parties argue that there has been a material change in circumstance, although they both rely on different events.
The basic facts:
[6] When the parties separated and obtained the final order, they were both living in Canada and working. In June 2020, when the parties exchanged their notices of assessment, the Respondent found out that the Applicant moved to the Ukraine sometime after signing the agreement. The Applicant moved to the Ukraine to help her elderly parents. She found a job working in a school. However, in January 2022, the Applicant lost her job, and, in February 2022, Russia invaded Ukraine. The Applicant lived in a bomb shelter for the next several months, until she was able to return to Canada in May 2022.
The Respondent’s position:
[7] The Respondent submits that a material change in circumstance occurred when the Applicant moved from Canada to the Ukraine. He submits that the Applicant could live a very comfortable lifestyle in Ukraine on spousal support of $1,000 per month, whereas in Canada she would have been “barely surviving”. While the Respondent did not provide proper evidence to support his lifestyle analysis, the Applicant acknowledged that between her employment income of $4,000 per year and her spousal support of $1,000 per month, she was able to make ends meet in Ukraine.
[8] The Applicant is now back living in Canada, and is not able to afford the basic necessities, such as food and accommodations. The Respondent submits that there is no longer a change in circumstance and therefore no reason to change the support on an ongoing basis.
The Applicant’s position:
[9] The Applicant submits that the material change in circumstance occurred between January 2022 and February 2022. In January 2022, the Applicant lost her job in Ukraine and, with the commencement of the war in February 2022, she was no longer able to find employment. The Applicant submits that she lost her job because the school she was working in downsized. The school previously catered to grades 1–12 but downsized to just housing grades 1-8. Once the war broke out just a few weeks later, it was impossible to find work. The Applicant lived in a bomb shelter.
[10] Further, she submits that as a result of living in the bomb shelter for four months, she suffers from PTSD and is not able to hold down a job at the moment.
[11] It is the Applicant’s position that her move to the Ukraine was not a material change in circumstance because she was still employed and the move simply allowed her to make ends meet.
Analysis:
[12] I find that the war in the Ukraine, which caused the Applicant’s inability to find work and suffer from PTSD is a material change in circumstance. The Applicant was employed when the agreement was signed, and the order obtained. She continued to be employed in Ukraine. She lost her job and has been unable to find employment due to circumstances outside of her control, being the outbreak of the war in the Ukraine, living in a bomb- shelter for four months and suffering from PTSD. Had the parties known at the time the agreement was signed that the Applicant would not be earning, or able to earn an income due to an outbreak of war, it would have resulted in different terms.
[13] I do not have enough evidence before me to make a finding that her move to the Ukraine would necessarily be a material change in circumstance. The onus was on the Respondent to make his case. He did not do so. In his affidavit, dated December 13, 2021, the Respondent advises that the Applicant may have been residing with a new partner in the Ukraine as early as February 2018, prior to the agreement being signed. He was aware in 2018 that she was seeing someone in Ukraine. It was therefore foreseeable at the time the parties entered into the agreement and consent order that the Applicant may be living in the Ukraine. In any event, the Applicant is now back in Canada. If I were to accept her move as being unforeseeable, I would not find the change in circumstance to be material or necessitate a change in the spousal support provisions.
[14] For the reasons above, I find that there has been a material change in the condition, needs and circumstances of the Applicant that materially affects her ability to meet her financial needs. At the time the agreement was signed, and the order made, neither party could have contemplated that the Applicant would find herself in the middle of a war, living in a bomb shelter and suffering from PTSD. They could not have contemplated her being unable to secure employment. These new circumstances would likely have resulted in different terms had they been known when the order was made.
2) Should the spousal support be varied?
[15] As set out above, I have found the Applicant met the threshold for a variation, being a material change in circumstance. I must now consider what variation should be made to the order, on the basis of that material change. The change in the Applicant’s financial circumstances is sufficient to warrant a change in the quantum of spousal support payable. The order should be adjusted to reflect that the Applicant is unemployed and not able to earn reasonable employment at this time.
3) What quantum should be paid?
[16] The formulas in the Spousal Support Guidelines (“SSAGs”) are the presumptive starting point for determining the quantum of spousal support. The SSAGs are good advisory guidelines for typical cases, although a contextual analysis and some adjustments may still be required.
[17] I do not find any of the exceptions to the SSAGs apply in this case. I have considered the objectives of spousal support, the strength of the Applicant’s compensatory claim, her needs (and means) in light of the material change in circumstance, the Respondent’s means, the parties’ agreement that spousal support would be payable for 10 years, the parties’ ages, their levels of education and work experience, the obligation to become self-sufficient and incentive for the Respondent to work. I have considered the various scenarios under the SSAGs.
[18] The Respondent’s income is approximately $96,000. The Applicant is currently not earning an income. Her financial statement shows that she has expenses of $1,333 per month, net of taxes, without any costs for accommodations. Her proposed budget is $3,399 per month.
[19] The parties started living together in 1995, married in 2005 and separated in 2018. They have one child, born in 1999. The parties were involved in a 23-year relationship. In 2005, the Respondent moved to Canada for employment. The Applicant and child followed in 2009. The Applicant had a managerial position in Ukraine before moving to Canada. She did not and does not speak English with any real fluency. Once moving to Canada, the Applicant was financially dependant on the Respondent. The Applicant has a needs based, and a strong compensatory claim, for spousal support.
[20] The Applicant is asking for spousal support in the sum of $2,700. Using the Respondent’s income of $96,000 and no income to the Applicant, the low range of spousal support is $2,760 per month. The Applicant is asking for $2,700 per month. I find her request to be reasonable in the circumstances. The Respondent was previously paying an amount below the low range of the SSAGs, and therefore the Applicant’s request is consistent. I am not going to order an amount greater than $2,700 because there is no request by the Applicant for a greater amount.
[21] This amount leaves the Respondent with 62.5% of the net disposable income of the parties and the Applicant with 37.5%. The amount will not meet the needs set out in the Applicant’s proposed budget of $3,399 but it comes a lot closer than the $1000 she receives at this time. Further, I expect the Respondent will also have to adjust his own expenses to meet his increased spousal support obligation.
[22] The Applicant was successful on the motion to change and is presumptively entitled to her costs.
Order to go as follows:
Paragraph 3 of the consent order of Justice Paisley, dated November 28, 2018, shall be varied to provide that commencing February 1, 2022, and on the first day of each month thereafter until February 1, 2028, the Respondent shall pay the Applicant spousal support in the sum of $2,700 per month. This amount is taxable to the Applicant and deductible to the Respondent.
If the parties are unable to agree on the quantum of costs payable between the parties within 10 business days of release of this order the Applicant shall serve and file cost submissions, to my attention, within 20 days of release of this order and the Respondent shall serve and file his cost submissions within 30 days of release of this order. The cost submissions shall be no longer than 3 pages, plus any bills of costs and offers to settle.
Shore J.
Released: September 06, 2022
COURT FILE NO.: FS-18-2609-0001
DATE: 20220906
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natalia Prokopovych Applicant
– and –
Rostyslav Prokopovych Respondent
REASONS FOR DECISION
Shore J.
Released: September 06, 2022
[^1]: See the order of Justice Paisley, dated November 28, 2018.