Court File and Parties
Court File No.: FC429/22 Date: November 22, 2022 Superior Court of Justice – Ontario Family Court
Re: Shannon Stoyles, applicant And: Robert Stoyles, respondent
Before: Sah J.
Counsel: W. Doran for the applicant D. MacDonald for the respondent
Heard: November 15, 2022 Appearances: Parties and their counsel
Ruling on Motion
[1] The respondent moves for an interim without prejudice order staying and suspending paragraph five of a final order dated February 14, 2014, effective March 31, 2022.
[2] Further, he seeks that the support deduction order arising from the February 14, 2014 final order be stayed and suspended effective March 31, 2022.
[3] Finally, he seeks an order that there shall be no further enforcement of the support provisions of the order.
[4] The applicant requests that the respondent’s motion be dismissed.
[5] Neither party has requested an interim variation of the amount of support ordered under the 2014 consent order.
[6] The final order in question was made prior to the parties’ divorce, which was granted in 2015. Counsel agree that s. 37 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), applies.
[7] The authority of this Court to vary or suspend a support order made under Part III of the FLA can be found in s. 37. Relative to the spousal support order, the court must be satisfied of a material change in circumstances for either party: FLA, s. 37(2). This applies to both final and temporary orders.
[8] When a party seeks a stay of an order or its enforcement, the order should only be granted if the support payor has demonstrated a prima facie case on the merits of the variation application and has come to court with “clean hands”: Garneau v. Director, Family Responsibility Office, et al, 2010 ONSC 2804, at para. 37.
[9] Many courts have reviewed the test to be applied, including Hayes v. Hayes, 2010 ONSC 3650, Clark v. Vanderhoeven, 2011 ONSC 2286, Berta v. Berta, 2019 ONSC 505, Raaflaub v. Gonosch, 2020 ONSC 1578, and Surdyka v. Surdyka, 2020 ONSC 3366.
[10] I adopt the approach taken by Minnema J, in Brown v. Brown, 2020 ONSC 7085, who at paras. 27 and 28 states:
[27] … the applicable test for an interim variation of a final support order (and by extension a stay of the previous one) requires the moving party to prove:
A strong prima facie case;
A clear case of hardship;
Urgency;
That the moving party has come to court with “clean hands”.
[28] Regarding the first part of the test, the question is not just whether there has been a material change in circumstances, but whether there is a strong prima facie case on the merits of the variation application as a whole. That means being mindful of the original support order and varying it only to the extent required by the change in circumstances: Haworth v. Haworth, 2018 ONCA 1055 at para. 21.
[11] I will review each prong of the test below.
I. A Strong Prima Facie Case
[12] The respondent claims a change will only be considered “material” if it is significant and long-lasting.
[13] The respondent submits that at the time the February 2014 order was made on consent, the parties negotiated the amount of support to be incorporated into the agreement. When the settlement was reached, the respondent was working full-time at 3M. He has been working there for 20 years. The applicant was not working, and she was not in a spousal relationship.
[14] The respondent claims that there have been significant and long-lasting changes for both parties.
The Respondent’s Changes
[15] The respondent’s employment at 3M was terminated as of March 31, 2022. He has not returned to work and attached to his affidavit is a letter from his primary care physician dated June 2022, citing that he suffers from mental health issues, is unable to work, and that his return to work is unknown.
[16] The applicant suggests that this motion is premature. She attaches to her affidavit the respondent’s LinkedIn profile which indicates that he is “open to working”. A further review of the screenshot indicates the respondent is actively applying. Under the heading “experience”, his employment with 3M Canada Company was listed, in most recent position, to be from 2012 to present.
[17] The screenshot of the respondent’s LinkedIn profile is undated. There is no evidence to suggest when the screenshot was captured.
[18] The applicant claims that the respondent will secure new employment earning similar income to what he was earning with 3M after he successfully terminates his spousal support obligations.
[19] I find that the respondent’s employment change is significant. I am not persuaded by the applicant’s efforts to suggest that this change may not be long-lasting. The January 2022 letter from his primary care physician suggest that his return to work is unknown. I place more weight on that evidence than the undated screenshots from the respondent’s LinkedIn profile relied on by the applicant.
The Applicant’s Changes
[20] The respondent also submits that at the time the 2014 consent order was made, the applicant was not in a spousal relationship, and she was unemployed.
[21] According to the respondent, the applicant is employed at Brantford Christian School as a teacher’s assistant. Her financial statement reveals monthly income of $2,262, an annual income of approximately $27,000. The evidence supports that she is not paid in the summer, and she is not paid if she does not work.
[22] The applicant opposes that her employment is part-time, and her hours can and will fluctuate as she is scheduled to work based on her employer’s need.
[23] The applicant alleges that she is unable to work full-time due to her medical conditions and that she has struggled to find employment that is considerate and mindful of her medical issues, specifically in that it could offer flexibility and part-time hours.
[24] The applicant deposes that during their marriage, she was diagnosed with complex post-traumatic stress, dysphagia and fibromyalgia. She claims the respondent was aware of her medical conditions throughout their marriage and following its dissolution, and that these conditions have prevented her from working full-time. There are four letters from medical professionals filed as exhibits to her affidavit, which speak to her health and ability to work.
[25] All four letters from medical professionals relied on by the applicant predate the 2014 final order and they are not as persuasive as the respondent’s evidence, which includes a screenshot of the applicant’s LinkedIn profile that was captured on August 5, 2022.
[26] That screenshot reveals that the applicant was employed on a part-time permanent basis for one year and two months from April 2019 to May 2022, attended Westervelt College on an internship for one year and eight months from September 2022 to April 2022, worked as an educational assistant for six months from October 2021 to March 2022, then as a teaching assistant on a 7-month internship, followed by her current contract part-time position at Brantford Christian School since April 2022.
[27] There is no dispute that the applicant is now employed, and that she was not when the consent order was made. I find that this change is material. I also find the change to be sufficiently long-standing in view of the evidence presented.
[28] The respondent also claims that the applicant is in a supportive spousal relationship with her former high school boyfriend. The respondent claimed that they had been cohabiting for almost four years.
[29] The applicant pays her boyfriend $1,000 per month for her share of household expenses. The respondent claims that the applicant's boyfriend’s income information does not reveal that he reports this as rental income.
[30] The respondent submits that the applicant's relationship is one of permanence, despite what she states in her affidavit indicating that her relationship might end if she relocates closer to her children. According to the respondent, both children live in London, not far from her current residence. The applicant did not refute this fact.
[31] There is no dispute that the applicant is now residing with a partner and that this was not the case when the 2014 consent order was made. There is no dispute that they have been cohabiting for almost four years. I find this change to be significant and long-standing.
[32] I conclude that the respondent met the first branch of the test as both his own and the applicant's changes are significant and longstanding.
II. A Clear Case of Hardship
[33] The respondent suggests that “hardship” can also be found where a matter will not be reached for trial for some time.
[34] A settlement conference is scheduled for January 16, 2023. The trial date is currently unknown, but given the current backlog of cases and the status of the trial sittings at this time, a trial will not take place until late 2023 at best.
[35] The respondent suggests that following the current court order could result in the applicant having to reimburse for overpayment of support and that could cause her hardship. Hebner J. made this finding in Roberts v. Roberts, 2020 ONSC 2935, at para 25.
[36] In Raaflaub v. Gonosch, 2020 ONSC 1578, McDermot J. stated, at para 33,
Caselaw suggests that the court must find hardship or alternatively that the continuation of the existing order would be absurd and incongruous … This latter approach has been defined as being “inappropriate, unreasonable or ridiculous”. [Citations omitted.]
[37] The respondent has continued to pay spousal support in the monthly amount of $1,800. He has been using his line of credit to pay support and is going into debt to meet this support obligation. To the date of the argued motion, the respondent paid $14,400 in support to the applicant despite the changes to their respective circumstances.
[38] He submits it is absurd that he continue to accrue debt while the applicant is working and in a supportive relationship.
[39] He notes that the applicant's financial statement reveals that she is making approximately $27,000 per year and has approximately $33,000 of expenses annually, which include $1,000/month paid to her partner.
[40] The respondent claims that the amount of support paid to date, post termination, covers the extent of her needs for one year, if her financial statement is to be accepted.
[41] The applicant disagrees that there is a clear case of hardship. She submits that, according to his financial statement, the respondent’s expenses amount to $105,000 per year. She claims that the respondent’s income for the 2022 tax year will be $201,478.
[42] The applicant, in referring to the respondent’s financial statement, submits that his annual expenses amount to $105,195. His monthly mortgage expenses are $2,625 but, according to Schedule B of the financial statement, his new spouse earns $65,000 per year and pays for 60% of the household expenses.
[43] The applicant refers the court to the decision of Bullock v Bullock (2004), 2004 16949 (ON SC), 129 A.C.W.S. (3d) 565 (Ont. S.C.), which she argues stands for the proposition that where a party appears to have made the decision to retire and live comfortably on a second spouse’s income, this does not necessarily amount to a material change in circumstance.
[44] However, that case is distinguishable from the case here. The respondent is not retired, he was terminated.
[45] The applicant produced Spousal Support Advisory Guideline (SSAG) calculations applying the respondent’s income of $201,478 and the applicant's income of $20,270. The SSAG suggests low-end support in the amount of $4,643 per month and high-end support in the amount of $6,191.00 per month.
[46] On the face of these figures, the applicant’s argument causes pause but does not convince me that a clear case of hardship does not exist.
[47] First, the SSAG calculations do not address the issue of entitlement, being the threshold issue to be determined in support cases such as this one.
[48] Second, the respondent’s inflated income is the result of severance received from his employer. The applicant is seeking to benefit from the respondent’s termination and severance, when there has not even been a determination as to whether it is appropriate to include the severance in his income for support purposes.
[49] The respondent received a total of $153,252 as severance. From this amount, a total of $50,000 was directed to a RRSP, some of which was used for the purchase of his home, leaving $23,877.90. The remainder was invested in a TFSA, used for repairs to the home his current spouse sold, was applied towards debt required to obtain his mortgage, for repairs to his 15-year-old car, to pay spousal support to the applicant, and to secure the purchase of his new home in Newfoundland.
[50] Currently, the respondent’s only source of income is his monthly pension in the gross amount of $2,756.23, or $2,428.33 net of taxes.
[51] In my view, it would be inappropriate and irrational for him to continue to pay $1,800 per month having regard for his gross monthly pension income.
[52] The respondent further alleges that he suffered a hardship because of his recent purchase of a property in Newfoundland. He had initially believed that bridge financing was available to him and his new spouse for the purpose of the purchase.
[53] It turned out that the pre-approved mortgage was insufficient to complete the purchase of the home. He claims that in order to complete the sale and avoid legal action from the sellers, he had to withdraw money from his severance initially invested into an RRSP and used additional savings from his severance to contribute an additional $45,000.
[54] The applicant submits that she should not bear the burden of the respondent’s poor financial planning or unwise decisions on the purchase of a property. While I agree with the applicant in this regard, it does not change my finding his support payments represent over 65% of his gross income, or 74% of his net income.
[55] I conclude that the respondent has met the second branch of the test.
III. Urgency
[56] According to the respondent, the issue of urgency and hardship are intertwined. He claims that the parties cannot wait until the trial of this action and there is sufficient urgency to warrant the relief requested.
[57] The applicant submits that she does not own property, unlike the respondent, and relies on her support payments to meet her needs. Counsel for the applicant submits that she is fragile, and a suspension of spousal support might affect her employment.
[58] In Roberts v. Roberts, 2020 ONSC 2935, the court held that a refusal to act could result in an injustice to both parties. A refusal to act at an interim stage could result in an injustice to the recipient as she may be faced with a retroactive adjustment that would require a significant reimbursement of support payments. Similarly, a refusal to act could likely cause an injustice to the payor. In that case, the court found that there was sufficient urgency for the spousal support to be adjusted at the interim stage: Roberts, at para. 31.
[59] The respondent’s motion was brought on a timely basis. I have found that the hardship exists. The timing of the final adjudication is uncertain but will not be until late 2023 at the earliest. While the parties wait for their trial, it is more likely than not that there will be an overpayment in spousal support to the applicant.
[60] For all of these reasons, I find that there is sufficient urgency, and the respondent met the branch of the test.
IV. Has the Moving Party come to Court with “Clean Hands”?
[61] The parties did not dispute that the respondent has continued to pay spousal support in the monthly amount of $1,800 in line with the 2014 consent order.
[62] The applicant suggest that the respondent has not come to court with clean hands because he failed to give notice of the change in his employment as required under the 2014 court order. The 2014 court order required the parties to advise one another in writing, within 14 days of any change in their income, employment, or employability.
[63] The respondent first became aware that his position would terminate in September 2021. He was aware that he would continue to be paid under his normal rate until March 31, 2022.
[64] The applicant claims that the respondent first attempted to mediate the issue of child support with the respondent despite being aware in September 2021 of the impending change to his employment situation. She claims that the respondent’s notice was suspect.
[65] The applicant submits that a fundamental principle in family law requires financial information to be shared in a timely fashion so that both parties can plan appropriately.
[66] I do not consider the evidence presented by the applicant to support a finding that the respondent failed to come to court with clean hands.
[67] The respondent is not in arrears of spousal support. He has continued to pay under the consent order for eight months following his termination. He commenced his motion to change promptly. His actions are insufficient to deprive him of the relief sought. The respondent has met this branch of the test.
Conclusion and Orders
[68] I will not grant the respondent’s request for his support obligations to be stayed and suspended effective March 31, 2022.
[69] I exercise my discretion to order the stay and suspension of the respondent’s spousal support obligations prospectively.
[70] I have reached this determination acknowledging that this motion to change is predicated on the respondent’s employment circumstance and the corresponding reduction in his income, and not the change in the applicant’s means or needs to support herself. As the case progresses, there may be the development of an evidentiary foundation that might support the continuation of support payments beyond the respondent’s termination date. I have attempted to balance fairness to both parties. Any overpayment or underpayment can be addressed at trial.
[71] On an interim without prejudice basis, under the FLA, an order shall issue as follows:
Paragraph 8 of the final order of the Honourable Justice Haines, dated February 14, 2014, shall be stayed and suspended effective March 31, 2023;
The support deduction order arising from the final order of the Honourable Justice Haines, dated February 14, 2014, shall be stayed and suspended effective March 31, 2023;
There shall be no further enforcement of the support provisions of the final order of the Honourable Justice Haines, dated February 14, 2014, by the Family Responsibility Office.
Costs
[72] Having reviewed each of the parties’ financial statements during this motion, it is my sincere hope that the issue of costs can be settled. The parties are encouraged to do so.
[73] If they are unable to resolve costs, any party who is seeking costs may deliver brief written submissions, no more than two pages double-spaced, excluding offers to settle and bill of costs, by December 1, 2022.
[74] The responding costs submissions, of no more than 2 pages, double spaced, excluding offers to settle and bill of cost may be delivered by December 9, 2022.
“Justice Kiran Sah”
Justice Kiran Sah
Date: November 22, 2022