CITATION: Nault v. Nault, 2022 ONSC 904

COURT FILE NO.: 2148-07

DATE: 2022-02-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Nault, Applicant

AND:

Tammy Nault, Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: John H. Cunningham, Counsel, for the Applicant

Olayemi Ayoola, Counsel, for the Respondent

HEARD: November 25, 2021

ENDORSEMENT

A. OVERVIEW

[1] This is a Motion to Change the Final Order of MacPherson J. dated August 1, 2013, as commenced by the Respondent, Ms. Nault, in March 2019.

[2] This half-day motion was argued on the basis of written materials alone.

[3] Ms. Nault’s Motion to Change requests:

a. A variation of prospective spousal support payable to her by Mr. Nault;

b. A retroactive adjustment of spousal support from 2007 to present, inclusive, and scheduled payment plan for any underpayment pertaining thereto;[^1]

c. An order that Mr. Nault name Ms. Nault as sole irrevocable beneficiary of his life insurance, pension, and RRSP;[^2]

d. Confirmation of compliance with para. 12 of the Order of Turnbull J., dated May 25, 2009 re: life insurance; and

e. Reinstatement of Mr. Nault’s medical insurance coverage for the benefit of Ms. Nault, or in the alternative an order that Mr. Nault be ordered to purchase a medical insurance policy for Ms. Nault, for so long as he owes a spousal support obligation to Ms. Nault.[^3]

[4] At the outset it is important to identify that Ms. Nault has not brought a motion to set aside any portion of the operative support order of MacPherson J., dated August 1, 2013. The Final Order specifically rescinded any arrears of support effective July 31, 2013. The Order of MacPherson J. is presumptively correct, and this court has no jurisdiction to review any support paid or payable prior to that date.

The Applicant, Mr. Nault, is opposed to any change in the terms of the existing order. He asserts that there has been no material change in circumstances which would warrant either a retroactive or prospective adjustment of the spousal support provisions contained within the Final Order of MacPherson J.

B. BACKGROUND

[5] The parties were married on October 22, 1988 and separated on September 1, 2006.

[6] There were two children born of the marriage, who are both now fully independent adults, aged 30 and 27.

[7] Court proceedings were originally commenced in 2007. Multiple Final Orders pertaining to child support and spousal support have been made since that time. The features of each Final Order are summarized as follows:

Order	Payor Income	Child Support	Spousal Support
Steinberg J. June 2, 2008	$63,500.00	$416.00/month	$524.00/month
Turnbull J. May 25, 2009	$69,000.00	$1,029.00/month	$721.00, indexed annually
Mazza J. July 8, 2011	$72,000.00	$661.00/month	$739.00, indexed annually
MacPherson J. August 1, 2013		Terminated	$1,000.00/month

[8] The Final order of Mazza J. terminated Mr. Nault’s obligation to maintain medical benefits for Ms. Nault through his employer.

[9] The Final Order of MacPherson J. terminated Mr. Nault’s obligation to pay child support, and increased his obligation to pay spousal support. Mr. Nault has been paying $1,000.00 per month in spousal support to Ms. Nault, in accordance with this operative order since that time. All payments are in good standing. The Order of MacPherson J. is silent as to the incomes of each party.

[10] Neither party made request nor effort to exchange their respective Income Tax Returns and Notices of Assessment annually in accordance with the terms of the August 1, 2013 Order. Income disclosure was first made following the commencement of this Motion to Change in 2019.

The parties were divorced pursuant to the Divorce Order of Harper J. dated November 24, 2015, as per a separate simple Application for Divorce filed by Mr. Nault.

C. THE LAW AND ANALYSIS

[11] The supports orders in this matter were not made as corollary issues to a claim for divorce. As such, it is Part III of the Family Law Act, R.S.O. 1990, c. F.3. which governs this motion to change proceeding.

[12] Under the Family Law Act, every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so: s. 30. This basic concept draws the court’s focus to a recipient’s ‘need’ and a payor’s ‘ability to pay.’

[13] The purposes of spousal support are specifically enumerated in s. 33(8) of the Family Law Act such that an order for spousal support should:

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[14] Section 33(9) of the FLA requires that, in determining the amount and duration, if any, of spousal support, the court must consider:

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

Material Change Threshold

[15] Ms. Nault’s Motion to Change is brought under s. 37 of the Family Law Act. When considering an application for variation of a spousal support order, the court may vary a term of the order, prospectively or retroactively, and make any other appropriate order as per the powers of the court available under Part III of the Family Law Act, only if the court is satisfied that there has been a material change in the parties’ circumstances: FLA, s. 37(2). This threshold ‘material change’ issue must be satisfied before any adjustment, whether retroactive, prospective or otherwise, can be made.

[16] This threshold test requires a court to:

1. Determine whether the conditions for variation exist; and if they do:

2. Determine what variation of the existing order ought to be made in light of the change in circumstances: L.M.P. v. L.S., 2011 SCC 64, [2011] S.C.J. No. 64, at para. 31.

[17] In the context of applications to vary the terms of an order for spousal support, it is now well established that:

a. A “material change in circumstance” means a change that – had the circumstance been known at the time of the operative order - it would have resulted in different terms: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 SCR 670, at para. 21.

b. The onus is on the party seeking a variation to establish such a change: L.M.P., at para. 31.

c. The change must be material and cannot be trivial or insignificant: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 14.

d. Deference must be given to the original order: it is presumed that the law was correctly applied in the granting of the previous order, and that the objectives of spousal support were met in the making of same: L.M.P. at para. 33.

e. If the threshold for variation of a spousal support order has been met, the court should limit itself to making only the variation justified by that change: L.M.P., at para. 47, 50.

[18] In this case Ms. Nault appears to claim two grounds upon which she claims a material change in circumstances:

1. An increase in the cost of her expenses (most particularly in relation to her medical needs but also including other day to day living expenses); and

2. An increase in Mr. Nault’s annual income.

[19] Thus, as is commonly the case, Ms. Nault asserts that both her need and Mr. Nault’s ability to pay have increased as the foundation of her claim that a material change in their circumstances has occurred.

1. Material Change #1: Ms. Nault’s Increased Financial Need

[20] Much of the information contained within Ms. Nault’s Affidavit material is directed at the context of negotiations surrounding their previous support orders. This detail is largely irrelevant to the issues that this court must decide.

[21] For ease of reference, the information provided to the court regarding Ms. Nault’s financial circumstances may be divided into two parts: (a) financial circumstances pre-dating the Final Order of MacPherson J., and (b) financial circumstances subsequent to the Final Order of MacPherson J.

(a) Financial Circumstances Pre-Dating the Final Order of MacPherson J.

[22] The Affidavit materials filed describe the following historical financial information:

a. Ms. Nault previously worked at a bank for many years. Save and except for two maternity leaves, Ms. Nault was gainfully employed on a full-time basis throughout the parties’ marriage.

b. Ms. Nault stopped working and received a settlement package from her employer at some point post-separation.[^4]

c. Ms. Nault received a settlement award from the Criminal Injuries Compensation Board on an unknown date following separation.

d. Ms. Nault purchased Mr. Nault’s interest in the matrimonial home in 2007.

e. At some point following separation Ms. Nault began receiving ODSP income.[^5]

f. Ms. Nault describes significant hardship in 2011: “my expenses vastly outweighed my income”, causing her to continuously incur ‘insufficient funds’ charges and to borrow from her mother. Detailed information to this effect was provided in Affidavit form by Ms. Nault in the proceedings which ultimately resulted in the Final Order of Mazza J. dated July 8, 2011.

g. Ms. Nault was receiving ODSP income in 2013 at the time of Final Order of MacPherson J. dated August 1, 2013. Her 2012 T5 statement, as filed in that court proceeding, demonstrates ODSP benefits of $4,921.50 in 2012.

h. Ms. Nault’s mortgage payments in 2013, as evidenced within bank statements filed, totaled $1,581.70 per month.

(b) Financial circumstances subsequent to the Final Order of MacPherson J.:

[23] The Affidavit materials filed describe the following financial situation from August 2013 to present:

a. In August 2013 Ms. Nault sold her home for approximately $340,000.00. Her mortgage of approximately $185,000.00 was paid off, and she received net sale funds of $135,453.08. From this amount she repaid $40,000.00 to her mother for loans advanced and gifted each of her two children $10,000.00.

b. In 2014 Ms. Nault built a new home which she continues to own today.

c. In January 2019 Ms. Nault was receiving ODSP benefits of $1,294.64 per month, however the spousal support payments received by Mr. Nault are clawed-back from payments received and she is repaying an overpayment balance owing to ODSP of over $15,000.00.[^6] Thus, as of 2019 her net monthly receipt from ODSP was $232.14.

d. Notices of Assessment were filed with the court on behalf of Ms. Nault for the following years:

a. 2013: Line 150 Total Income: $20,953.00;

b. 2014: Line 150 Total Income: $12,338.00;[^7]

c. 2015: Line 150 Total Income: $14,517.00;

d. 2016: Line 150 Total Income: $12,645.00;

e. 2017: Line 150 Total Income: $25,870.00;[^8]

f. 2018: Line 150 Total Income: $16,113.00;

g. 2019: Line 150 Total Income: $14,250.00.

e. Ms. Nault advises that she now owes her mother and her family friends $15,125.00.

f. Ms. Nault has filed a letter from her physician which rather emphatically confirms that she is disabled and unable to maintain gainful employment.

g. In her most recent Financial Statement, sworn April 14, 2021, Ms. Nault advises that her home is worth $400,000.00 with a mortgage balance owing of approximately $170,000.00. Her mortgage payments are noted as $1,100.00 per month.

(c) Medical Expenses

[24] Ms. Nault describes a long history of costly health care arising from workplace assaults which occurred in 1989, 1995, and 2000, and a horseback riding accident in 2004. She advises that she suffers from Post-Traumatic Stress Disorder, anxiety, depression, diabetes, and ongoing physical pain. The Affidavit materials reflect the following:

a. In 2011, in the context of the Motion to Change proceeding ultimately disposed of by the Order of Mazza J., Ms. Nault presented evidence to the court which demonstrated that her annual medical expenses totaled $6,289.00. She represented that the portion of her medical expenses that was not covered by her medical benefits provided through Mr. Nault’s employer were $1,777.07.

b. In 2014 Ms. Nault’s medical expenses totaled $1,580.02.

c. Ms. Nault attached dental statements for 2017. The out of pocket costs to Ms. Nault are unclear from the document. She appears to have dental insurance coverage of some form.

d. In 2019 Ms. Nault advised the court that her medication costs $125.00 per month (which totals $1,500.00 per year).

e. In her most current Affidavit she filed a Patient Tax Receipt Report which demonstrates that she paid $432.20 for medication in 2020.

(d) Indexing and Inflation

[25] The spousal support provisions of the Final Orders of June 2008 (Steinberg J.), May 2009 (Turnbull J.), and July 2008 (Mazza J.) were all subject to indexing. The August 2013 Final Order of MacPherson J. was not.

[26] Ms. Nault advises that the cost of maintaining her vehicle has risen from $40.00 per month in 2013 to $90.00 per month in 2019 and that cost-of-living increases generally have resulted in an increase to her monthly expenses of $95.00 per month.

Comparison of Ms. Nault’s Financial Need as at August 1, 2013 and Present Date

[27] I have carefully reviewed the Affidavit material filed by Ms. Nault, and I make the following findings of fact:

a. Ms. Nault was medically unable to work on August 1, 2013 and remains medically unable to work today.

b. Ms. Nault was in receipt of ODSP income on August 1, 2013 and remains in receipt of ODSP income today.

c. Ms. Nault’s sources of income have not changed in any material way since August 1, 2013.

d. The value of real property owned by Ms. Nault is higher today than it was on August 1, 2013.

e. The balance of Ms. Nault’s mortgage obligation is lower today than it was on August 1, 2013.

f. Ms. Nault’s monthly mortgage payments are lower today than they were on August 1, 2013.

g. The personal debts purportedly owing to family members/friends today are lower than they were on August 1, 2013.

h. The evidence provided to this court does not support Ms. Nault’s claim that her out-of-pocket medical expenses are higher today than they were on August 1, 2013.

[28] In short, there is little evidence of actual change in Ms. Nault’s need from 2013 to present on the materials filed. However, the court must also address Ms. Nault’s argument that the cumulative effect of inflation itself, reflected generally in her daily monthly expenses, may constitute a material change justifying a variation in spousal support.

[29] This legal argument has been endorsed by:

a. The Ontario Court of Appeal, in Winsor v. Winsor:

“The motions court judge was of the opinion that the effect of inflation was not sufficient to constitute a material change in circumstances. With respect, we do not agree. In our opinion, considered cumulatively, inflation has had a serious eroding effect on the amount that the wife is receiving for maintenance and does constitute a material or significant change in circumstances”: 1992 CanLII 7742 (ON CA), [1992] 8 O.R. (3d) 433(C.A.) at para. 4, Application for leave to appeal to the Supreme Court of Canada refused with costs November 19, 1992; and

b. The Supreme Court of Canada, in Hickey:

“I agree that the decreased purchasing power that occurs because of the increased costs of living is a material change that affects the real value of the payments received and therefore the needs of the payee spouse. An upward adjustment for an increase in the cost of living also accords with the objectives of variation orders [set out in the federal legislation]. The needs of the disadvantaged spouse occasioned by the marriage breakdown will frequently increase because of the increased cost of living over time, and so, often, will the means of the payor spouse, as they did here. Similarly, continuing to compensate a spouse adequately for disadvantages which arise because of the marriage itself may justify an increase when the value of the amount of support awarded has declined over time in real terms”: at para. 26.

[30] Section 34 of the Family Law Act provides that:

Indexing of support payments

(5) In an order made under clause (1) (a), other than an order for the support of a child, the court may provide that the amount payable shall be increased annually on the order’s anniversary date by the indexing factor, as defined in subsection (6), for November of the previous year.

Definition

(6) The indexing factor for a given month is the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada.

[31] The Consumer Price Index for Canada (CPI) represents changes in prices as experienced by Canadian consumers by measuring and comparing the cost of a fixed basket of goods and services over time. Prior to the final release of the Spousal Support Advisory Guidelines in July 2008, it was more common to see indexing clauses in orders for spousal support. That is, spousal support was routinely adjusted automatically on an annual basis to reflect recognized increases in the cost-of-living as per the CPI.

[32] The Spousal Support Advisory Guidelines were developed with the intended purpose of bringing more certainty and predictability to spousal support determinations. Since 2008, the Spousal Support Advisory Guidelines have been repeatedly endorsed as a useful tool in the determination of spousal support. They incorporate the basic principles of compensation and need that the Supreme Court of Canada has identified as the basis for spousal support and provide a more structured way of implementing those principles through formulas based on income sharing. The Spousal Support Advisory Guidelines suggest a range of both amount and duration of support that reflects the current state of the law. While neither legislated nor binding, the use of Spousal Support Advisory Guidelines calculations in family law proceedings has evolved from a starting point to a range that should not be deviated from lightly: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 98, Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105 and 106, McKinnon v. McKinnon, 2018 ONCA 596 at para. 24.

[33] Notably, the appellate cases of Winsor and Hickey were both decided in the pre-Spousal Support Advisory Guidelines era. Certainly, both cases still stand for the proposition that inflation itself may constitute a material change in circumstances warranting a variation of spousal support. However, this court now has the added advantage of comparing the spousal support provisions made in 2013 as against the ranges of spousal support typically payable today as recommended by the Spousal Support Advisory Guidelines. Put simply, in the context of this case the Spousal Support Advisory Guidelines can assist the court in assessing Ms. Nault’s claim that in today’s financial climate generally, the spousal support awarded to her in 2013 is no longer sufficient to meet her needs. In effect, after consideration of each party’s respective level of income, the Spousal Support Advisory Guidelines may be used to ‘cross-check’ the strength of this claim.

Ms. Nault’s Income

[34] As noted above, Ms. Nault’s income has not changed materially since 2013. Her current entitlement to ODSP income appears to be approximately $15,000.00 per year (reflecting basic needs of $8,000.00, shelter of $6,000.00 and special adjustments for diet, etc. of $1,500.00 per year). However, from this amount, the sum of $12,000.00 per year, reflecting the spousal support payments received from Mr. Nault, are clawed-back from the income provided.

[35] Mr. Nault questions why Ms. Nault, who appears to have been medically unable to work for many years, has not applied for CPP Pension Disability benefits which could provide her with income of approximately $1,400.00 per month, without claw-back for any spousal support payments received. Ms. Nault provided no explanation. I share Mr. Nault’s concern. It is clear from the correspondence provided by Ms. Nault’s physician that he believes her disability to be severe and prolonged (i.e. he opines that she is “legitimately and authentically 100% work disabled”). She is under 65 years of age and contributed to CPP for many years. The court has not been provided with any explanation as to why she would not have made application for this additional stream of income.

[36] In the circumstances, I believe it is reasonable to impute an income to Ms. Nault on the basis that she has not pursued all sources of income potentially available to her in an effort to contribute to her own self-sufficiency. On the evidence before the court, it is reasonable to impute an income of $15,000.00 per year to Ms. Nault in the circumstances.

2. Material Change #2: Mr. Nault’s Purported Increased Ability to Pay

[37] The Affidavit materials filed by Mr. Nault reflect that:

1. Mr. Nault is employed at the same company as he was during the parties’ marriage, however his role with the company has changed since separation.

2. Mr. Nault declared bankruptcy in 2008.

3. 2015 Mr. Nault was promoted to plant manager and became eligible for an incentive bonus.

4. The Income Tax Returns/Notices of Assessment filed with the court on behalf of Mr. Nault reflect the following income levels:

5. 2007: Line 150 Total Income: $64,961.00;

6. 2008: Line 150 Total Income: $31,287.00;

(Pre-Bankruptcy)[^9]

3. 2009: Line 150 Total Income: $69,530.43;

4. 2010: Line 150 Total income: $71,615.00;

5. 2011: Line 150 Total Income: $72,051.00;

6. 2012: T4 Total Remuneration: $74,066.89;

7. 2015: Line 150 Total Income: $86,803.00;

8. 2016: Line 150 Total Income: $97,945.00;

9. 2017: Line 150 Total Income: $99,362.00;

10. 2018: Line 150 Total Income: $96,416.00;

11. 2019: Line 150 Total Income: $95,674.00.

12. Mr. Nault is remarried. His spouse is earning an income of approximately $15,000.00 per year.

13. Mr. Nault owns a home with his wife which he asserts is worth $575,000.00. There is a mortgage owing against the property of approximately $350,000.00.

Post Separation Increases in Income

[38] Mr. Nault argues that Ms. Nault should not be entitled to share in any post-separation increases in his income. He relies on the seminal case of Thompson v. Thompson wherein Chappel J. provided much-needed guidance on how to approach this topic: 2013 ONSC 5500 at para. 103. Notably, Chappel J. updated and refined those principles in the more recent case of Kinsella v. Mills: 2020 ONSC 4785. In Kinsella the court stressed that treatment of this issue is ultimately a matter of judicial discretion, requiring “careful consideration of the unique circumstances and dynamics of each relationship both during the union and following separation”: para. 431. The guiding principles and considerations are outlined as follows (citations omitted):

1. A recipient spouse is not automatically entitled to increased spousal support based on a payor spouse’s post-separation increase in income.

2. The question of whether there should be a sharing of post-separation income increases is not an “all or nothing” matter. Partial sharing of such increases, and/or sharing for a specified period of time, are issues that the court should also consider when the issue arises.

3. The determination of whether there should be any sharing of income increases, and if so the extent of any such sharing, must take place within the framework of the general spousal support objectives and factors set out in the relevant legislation.

4. The basis of a spouse’s entitlement to spousal support is an important consideration. In both compensatory and non-compensatory cases, the court’s assessment of the needs of the recipient and ability of the payor spouse to pay are significant factors that should inform the court’s analysis regarding sharing of post-separation income increases. However, in cases involving non-compensatory claims, the focus tends to be on maintaining a reasonable standard of living as measured by the standard enjoyed during the relationship, and this is a factor which may impact the decision as to whether a recipient should benefit from the payor’s post-separation income increases. Nonetheless, the circumstances of each case must be carefully considered to ensure a just outcome, having regard for all of the objectives and factors outlined in the relevant legislation. The needs of the recipient spouse are always a very important part of the spousal support analysis and may support a sharing of post-separate income increases [in] purely needs-based claims in appropriate circumstances. For instance, a long-term relationship involving financial dependence by the recipient spouse coupled with evidence of significant ongoing need may support sharing of post-separation income increases. Even in shorter or mid-length relationships, a strong non-compensatory claim based on factors such as illness, disability or other considerations may support some sharing of income increases to ease the transition to a new post-separation reality.

5. The existence of a compensatory element to a support claim is an important factor in determining entitlement to share in post-separation increases in income. In addressing this factor, the court must keep in mind the various different indicia of compensatory entitlement and not simply the assumption of child care and home management responsibilities. In these cases, the general strength of the compensatory claim is an important factor. The analysis should therefore include consideration of the length of the relationship, the extent of the recipient’s contributions and sacrifices both during the relationship and post-separation and the duration of time during which those efforts and sacrifices were made.

6. Another important consideration in compensatory situations is whether the recipient’s efforts and contributions during and after the relationship contributed to the payor’s financial advancement during the relationship and post-separation. The court should consider the extent to which the payor ended up in favourable circumstances as a result of the joint enterprise of the relationship. Evidence that the recipient’s sacrifices and contributions during the relationship supported the payor’s financial progression post-separation will typically support a sharing of post-separation income and a higher amount of such sharing. In assessing whether and to what extent the recipient’s efforts contributed to the payor’s ability to advance financially, the court must maintain a broad perspective of the various means by which a spouse’s contributions and sacrifices can support the other spouse’s success both in the short and long-term, including for example assuming primary responsibility for home-management matters, taking on primary child care responsibilities during and/or after the relationship ended, assisting in the establishment and operation of the payor’s business or subordinating their career to that of the payor so that the payor could focus on the development of their skills and career.

7. The fact that the recipient spouse has continued to be a primary caregiver for the children post-separation is a factor that supports a sharing of post-separation income increases, since this often allows the payor to continue to focus on their career advancement. On the other hand, the fact that the payor has primary care or shared care of children post-separation may also be relevant to whether sharing of such increases is appropriate, and the amount of any such sharing.

8. The sharing of post-separation income increases is not necessarily dependent on the recipient spouse having sacrificed their own career advancement during the relationship for the benefit of the payor spouse’s progression in their career. However, evidence that they did so is a further factor that may support a sharing of the increases.

9. In compensatory cases, evidence that the knowledge, skills, expertise, credentials and/or connections that enabled the payor to increase their income following the separation were acquired and developed during the relationship is a factor that will favour sharing of post-separation income increases.

10. The courts often consider the length of time that has passed from the separation until the increase in income occurred. The closer the temporal link, the more likely it is that the court will find that the recipient’s efforts supported the other party’s post-separation financial success.

11. Another important consideration is whether there were any changes in the payor’s career post-separation that explain the increase in income, such as a new job, position or business reorganization. However, in these circumstances, the court must still consider whether the change in position was attributable to the knowledge, skills and experience that the payor had acquired during the relationship with the support of the recipient’s efforts.

12. The courts also consider whether the increase in income is primarily attributable to the payor’s decision following the separation to increase their work effort through means such as working more overtime, accepting work that is more lucrative but involves significant personal sacrifices or taking on extra jobs. These types of circumstances may support no sharing, or only partial sharing, of income increases following the termination of the relationship.

13. Evidence that the increased income was attributable to specific, unusual events following the separation, such as unexpected changes in market conditions, is a factor that may weaken a claim to share in the increase.

14. Evidence that the recipient spouse has not taken reasonable steps towards achieving self-sufficiency is another factor that courts have considered in determining whether there should be a sharing of post-separation income increases, and if so, the extent of any such sharing. In such situations, the shortcomings in the recipient’s self-sufficiency efforts will also be relevant to determining whether income should be imputed to them, but it is not inappropriate to consider the issue from both lines of analysis.

15. Evidence that the payor has also made contributions to the recipient’s career advancement post-separation will also be relevant.

[39] In applying these principles, I note the following:

a. From the date of separation until the 2013 Final Order of MacPherson J., Ms. Nault did share in the increases to Mr. Nault’s income. During this time period, Mr. Nault’s income appears to have increased annually and in small increments, and the spousal support orders which bound the parties were adjusted annually in accordance with the CPI.

b. Following separation Ms. Nault was able to retain and grow her equity in the matrimonial home. By contrast, Mr. Nault was forced to declare bankruptcy shortly after separation. As a result, Mr. Nault’s asset base today reflects little remnant of any shared enterprise between the parties generated during their relationship.

c. In 2015 Mr. Nault changed his role within his company. At that point in time his pay structure changed so as to reflect an incentive component which considered his individual and plant performance. This incentive feature directly reflects efforts made by Mr. Nault in his current position which are generally unrelated to his relationship with Ms. Nault. The standard of living enjoyed by the parties during their relationship did not include any profit-sharing or incentive plan.

d. This was a long-term relationship, involving two children. However, both parties worked on a full-time basis outside of the home throughout. Save and except for a reference within the materials to two maternity leaves taken by Ms. Nault, there is a dearth of information within the Affidavit materials filed regarding any of the following features of their relationship:

1. Roles or responsibilities assumed by either party during the relationship;

2. Caregiving or responsibility for the children during the relationship;

3. Housekeeping, child care or other domestic services performed by either spouse; and

4. Any impact on earning capacity or career development that may be connected to the relationship.

e. The court orders which followed the parties’ separation reflect a division in the provision of care for the children at different times. Financial responsibility for the children was at all times addressed by orders for the payment of child support. No supplementary detail regarding roles assumed in caring for the children post-separation is provided in the Affidavit materials.

f. There is no reference within the evidence before the court as to the standard of living enjoyed by the parties during their relationship, however, the fact of Mr. Nault’s bankruptcy in close proximity to the parties’ separation could suggest that the parties may have been living above their means.

g. Significant time has now passed since the parties’ separation. The 15 years that have now elapsed weakens the temporal link between Mr. Nault’s current income level and his support obligation.

[40] Mr. Nault does not dispute Ms. Nault’s ongoing entitlement to spousal support. He is not seeking to terminate or reduce his support obligation to Ms. Nault. He does however dispute any compensatory basis to this entitlement. After thorough review of the materials filed, the court cannot with confidence conclude that there is any significant compensatory basis to Ms. Nault’s entitlement to spousal support. The support issues before the court are driven primarily by a needs-based non-compensatory entitlement to spousal support.

[41] I am not satisfied, on the specific facts of this case, that Ms. Nault should continue to share in the post-separation increases in income of Mr. Nault. At the time of separation Mr. Nault was generating an income of approximately $65,000.00 per year. That income level had risen to approximately $75,000.00 per year at the time of the making of the operative spousal support order. For purposes of determining or ‘cross-checking’ the appropriate quantum of spousal support payable at this time, in my view it is appropriate to continue to utilize an income of approximately $75,000.00 per year as Mr. Nault’s income for spousal support purposes.

Consideration of the CPI against context of the Spousal Support Advisory Guidelines

[42] In determining that the parties’ respective incomes should be deemed to be $15,000.00 (Ms. Nault) and $75,000.00 (Mr. Nault), the corresponding ranges of spousal support quantum recommended by the Spousal Support Advisory Guidelines are as follow:

a. Low: $1,350.00 per month;

b. Mid: $1,575.00 per month;

c. High: $1,800.00 per month.[^10]

[43] The formula also recommends a payment duration of 9 to 18 years from the date of separation. In Fisher, the Ontario Court of Appeal stressed the importance of the symbiotic relationship between amount and duration of support, and quoted with approval the explanation contained within the Spousal Support Advisory Guidelines on this topic: “Amount and duration are interrelated parts of the formula – they are a package deal. Using one part of the formula without the other would undermine its integrity and coherence”: at para. 109.

[44] The MacPherson J. Final Order was made on consent. The parties did not include a provision for indexing of support at the time. The quantum of support payable, without indexing, was presumptively correct and met the objectives of spousal support.

[45] Today, the quantum of spousal support currently being paid falls below the low range of spousal support suggested by the applicable formula. The duration of spousal support is now moving toward the high end of the suggested duration and this should not be overlooked. While it is tempting to conclude that $350.00 below the low end of the ranges is insignificant, this must be considered in the context of the modest income of Ms. Nault. Monthly income of $350.00 is not immaterial to her.

[46] Recently, the COVID-19 health pandemic has had a notable impact upon supply chain demands and constraints in Canada, and has resulted in the fasted inflation pace seen in Canada the last two decades.[^11] A review of Ms. Nault’s ODSP income from 2013 to present suggests that her ODSP benefits have not kept pace with these changes. By contrast, Mr. Nault’s employment income has. It is therefore not surprising that Ms. Nault is complaining of increased financial strain, more easily felt than specifically identified.

[47] The impact of inflation since 2013 is neither a major change, nor a trivial matter. However, within the constraints of Ms. Nault’s limited budget, it is material. As such, I conclude that the effect of inflation generally since the 2013 Final Order of MacPherson J. constitutes a material change in circumstances which impacts Ms. Nault’s need for spousal support. It is appropriate to vary the terms of the Final Order to reflect a general increase in Ms. Nault’s cost of living since that time. In keeping with the direction provided in L.M.P. the court should limit itself to making only the variation justified by this established change in circumstance. As such, the Final Order of MacPherson J. will be varied to include an indexing clause pursuant to s. 34(5) of the Family Law Act requiring that the spousal support payable shall be increased annually by the indexing factor (CPI) for November of the previous year.

[48] While I acknowledge that increasing the spousal support amount payable in accordance with the indexing factor alone does not bring the quantum of support into the ranges suggested by the Spousal Support Advisory Guidelines, I am satisfied on the specific facts of this case, 15 years post-separation, that a departure from the suggested ranges is warranted. An award of spousal support which rises only in accordance with the CPI meets the objectives of an award of spousal support in the unique circumstances of this case. In particular, this award relieves the financial hardship of Ms. Nault to the extent that she has demonstrated an increased need on the materials filed. The indexing of spousal support is not an obsolete concept. While certainly far less common in the Spousal Support Advisory Guidelines era, the indexing of spousal support remains an available tool for the crafting of spousal support orders. In this ‘without child support’ scenario, where the recipient’s income is unlikely to change and the court has ruled that she is not entitled to share in further significant increases in the payor’s income, application of the indexing factor is the most sensible method of ensuring that the quantum payable continues to meet the objectives of the spousal support award until such time as Ms. Nault’s entitlement to spousal support may end.

Retroactivity of Order

[49] In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada explained at paras. 206-208:

a. Similar considerations to those set out in the context of child support (as per D.B.S. v. S.R.G., 2006 SCC 37) are relevant to deciding the suitability of a retroactive award of spousal support:

b. The factors include:

1. The needs of the recipient;

2. The conduct of the payor;

3. The reason for the delay in seeking support; and

4. Any hardship the retroactive award may occasion upon the payor spouse.

c. The factors may be weighted differently in retroactive child support v. spousal support cases and in particular, concerns regarding notice, delay and misconduct generally carry more weight in relation to claims for retroactive spousal support.

[50] Generally, in assessing claims for retroactive adjustments of spousal support, the default commencement date is the date of effective notice, to a maximum of three years prior to the date of formal notice: Kerr at para. 211. Effective notice is the date that the support recipient “broached” the subject of an increase in support with the payor: see D.B.S. at paras. 118-121. In the case before this court the date of effective notice and the date of formal notice are one and the same: Mr. Nault was served with Ms. Nault’s Motion to Change on April 4, 2019. There is no suggestion that the topic of a variation of the March 2013 Order was ever raised between the parties in the intervening period of time.

[51] In this case, Ms. Nault urges the court to find that Mr. Nault engaged in blameworthy conduct, by failing to disclose his income annually in accordance with the requirements of the 2013 Final Order of MacPherson J. Such a finding would permit the court to vary the support award retroactively to August 1, 2013, in the court’s discretion.

[52] In circumstances wherein a payor is found to have engaged in blameworthy conduct, the “presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially”: D.B.S., at para 124. The blameworthy conduct of payors has again been explored more recently in Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102, and Colucci and Colucci, 2021 SCC 24, [2021] S.C.J. No. 24. Notably, all of these Supreme Court of Canada authorities relate to requests for retroactive adjustment of child support rather than spousal support. In these appellate cases the court explains that, since the advent of the federal and provincial Child Support Guidelines, parents are generally presumed to know about the existence and extent of their support obligations, in accordance with the applicable child support Table. It is therefore logical that any failure to disclose increases in income and to make upward adjustment of support in the amount prescribed by the Guidelines may constitute blameworthy conduct warranting a retroactive adjustment which predates effective or formal notice by the recipient: see Colucci, at para. 44. It is abundantly clear that proactive, fulsome disclosure of income is a fundamental obligation of any payor parent.

[53] However, as explained in Kerr, the obligations of a payor spouse are vastly different than the obligations of a payor parent. In spousal support cases, the quantum of support ordered payable by the court is presumed to be correct until the parties agree or a court orders that the quantum payable is (or was) no longer appropriate: at para 208. There is no presumptive entitlement to increases in spousal support commensurate with a payor’s income, as is the case with child support, because the basis of the entitlement and the needs of the recipient, amongst other things, are also important features of most spousal support claims. In A.E. v. A.E., Chappel J. concluded that, despite the Supreme Court of Canada’s recent revisions made to the law of retroactive child support in Michel and Colucci, reflecting a further acceptance and expansion of the concept of blameworthy conduct, the applicable framework for determination of retroactive spousal support claims remains as set out in Kerr v. Baranow: 2021 ONSC 8189 at para. 479. I agree.

[54] In this case, both Mr. Nault and Ms. Nault had an obligation to exchange their respective Income Tax Returns and Notices of Assessment on an annual basis, commencing in 2014. Neither party complied with this order, and neither party requested compliance with this provision by the other until this litigation was commenced in 2019. This would suggest that both parties were generally satisfied with the spousal support arrangements between them. Mr. Nault received no further information about Ms. Nault’s need, and Ns. Nault received no further information regarding Mr. Nault’s ability to pay. As explained above, this court has ruled that the increases to Mr. Nault’s income, from 2013 to present, do not constitute a material change in circumstance which warrants variation of the operative spousal support order. It was not Mr. Nault’s income which triggered a material change, but rather Ms. Nault’s need arising from a general increase in her cost of living – this was unknown to Mr. Nault. Mr. Nault was entitled to rely upon the certainty of the terms of the operative support order until he was put on notice of Ms. Nault’s desire to seek an increase. He could not budget for retroactive exposure because he had no knowledge of Ms. Nault’s dissatisfaction with the spousal support arrangement until litigation was commenced. To award a retroactive adjustment prior to Mr. Nault’s notice of Ms. Nault’s increased need for support, would cause an unfair hardship to Mr. Nault in the circumstances of this case. I am not satisfied that there is any conduct on the part of Mr. Nault that would justify an adjustment of the spousal support provisions in advance of the notice provided to him. In the circumstances of this case, I am of the view that the appropriate date upon which to adjust the spousal support payments is the first day of the first month following effective and formal notice to Mr. Nault of this litigation.

[55] As such, as it pertains to spousal support, the Final Order of MacPherson J. dated August 1, 2013 shall be varied as follows such that commencing May 1, 2019 the spousal support payable by the Applicant, Mr. Nault, to the Respondent, Ms. Nault, as per para. 3 of the Final Order of MacPherson J. shall be indexed and changed annually according to the indexing factor in subsection 34(6) of the Family Law Act.

Medical Benefits

[56] The Final Order of Turnbull J. dated May 25, 2009 required Mr. Nault to maintain Ms. Nault’s medical benefits coverage available through his employment for her benefit. The Final Order of Mazza J. dated July 8, 2011 specifically terminated that obligation. The parties were divorced in 2015 and Mr. Nault is now remarried. It does not appear that Ms. Nault remains eligible for coverage under the medical benefits plan available to Mr. Nault through his employment.

[57] Ms. Nault provided no information as to whether she has applied for additional assistance with the cost of her prescription drugs (e.g. through the Trillium Drug Program). She provided no explanation for dental insurance payments clearly depicted in her patient ledger report. Finally, she provided no evidence of the cost of obtaining medical insurance coverage on her behalf.

[58] As detailed above, the evidence contained within the Affidavit materials with the court does not support Ms. Nault’s assertion that her medical expenses have increased in a material way since Mr. Nault’s obligation to maintain her benefits coverage was terminated.

[59] For all of these reasons I am not satisfied that Mr. Nault should be obligated to reinstate Ms. Nault on his medical benefits coverage through employment nor am I satisfied that Mr. Nault should be obligated to pay for a new or replacement policy on her behalf. This request is dismissed.

Life Insurance

[60] Paragraph 12 of the Final Order of Turnbull J. dated May 25, 2009 requires Mr. Nault to maintain Ms. Nault as the sole irrevocable beneficiary of his life insurance through his place of employment for so long as he is required to pay spousal support.

[61] Mr. Nault has provided documentation which confirms that he is complying with this provision. The life insurance coverage is 1x his salary with additional coverage in the event of accidental death and dismemberment. This quantum of life insurance is sufficient to secure Mr. Nault’s remaining spousal support obligation to Ms. Nault. There has been no material change which would warrant any adjustment of the life insurance provisions which remain in place to date. No additional security is warranted in the circumstances. Ms. Nault’s request that Mr. Nault name her as beneficiary of his pension and investment portfolios is dismissed.

D. CONCLUSION

[62] In conclusion, this court is satisfied that there a change in circumstances since the Final Order of MacPherson J. dated August 1, 2013 in that Ms. Nault’s income has not kept pace with inflation. This has caused a slow eroding effect on the value of her spousal support payments and has now resulted in a decreased ability to meet her daily needs. This court is satisfied that an order for the indexing of spousal support payments, effective as at the date of notice of this change, is the appropriate remedy on the specific facts of this case. There are no other circumstances of this case which warrant variation of further or other terms of the operative Final Order.

E. ORDER

[63] On the basis of the above, there shall be a Final Order to go as follows:

1. The Final Order of the Honourable Mme. Justice W. MacPherson, dated August 1, 2013 shall be varied such that commencing May 1, 2019 the spousal support payable by the Applicant, Mr. Nault, to the Respondent, Ms. Nault, pursuant to para. 3 of the Final Order, shall be indexed annually, by the indexing factor for November of the previous year.

2. A Support Deduction Order shall issue.

3. All other terms of the Final Order of the Honourable Mme. Justice W. MacPherson, dated August 1, 2013, remain in force and effect.

4. All other claims made in this Motion to Change proceeding are dismissed.

5. If costs are in issue, the parties may make submissions as follows:

a. The party seeking costs shall serve and file written submissions not exceeding two pages in length plus bill of costs on or before March 4, 2022;

b. The party responding to the request for costs shall serve and file responding submissions not exceeding two pages in length plus bill of costs on or before March 18, 2022;

c. Reply submissions, if any, shall be limited to one page in length and shall be served and filed on or before March 30, 2022; and

d. If no cost submissions are filed on or before March 4, 2022, the issue of costs shall be deemed to have been settled.

Bale J.

Date: February 14, 2022

[^1]: The pleadings of Ms. Nault are inconsistent, such that the Motion to Change seeks adjustment of support 2012 to present, but para. 23 of the Change Information Form requests a retroactive adjustment from date of separation or 2007.

[^2]: Again, the relief requested within the Motion to Change and Change Information Form is inconsistent.

[^3]: Again, the relief requested within the Motion to Change and Change Information Form is inconsistent.

[^4]: Mr. Nault’s factum asserts that Ms. Nault stopped working in 2008, two years after the parties’ separation.

[^5]: Mr. Nault’s factum asserts that Ms. Nault’s ODSP income commenced in 2012. Ms. Nault did not object to this representation.

[^6]: Ms. Nault explains that the significant overpayment amount now owing to ODSP results from the Ministry of Community and Social Services’ failure to deduct the spousal support payments received in previous years.

[^7]: The income differential between 2013 and 2014 appears to reflect the Ministry’s failure to deduct spousal support from Ms. Nault’s ODSP income as per above. The total monthly benefit amount reflected on Ms. Nault’s ODSP statement of June 2013 was $1,916.17.

[^8]: Again, it appears that the Ministry failed to deduct spousal support from Ms. Nault’s ODSP income resulting in a further overpayment in 2017.

[^9]: A letter from Mr. Nault’s employer advises that his salary in 2008 was $62,800.00.

[^10]: SSAG Divorcemate Calculations are attached as Schedule A.

[^11]: See Statistics Canada. Table 18-10-0005-01 consumer Price Index, annual average, not seasonally adjusted: https://doi.org/10.25318/1810000501-3ng; Consumer Price Index: Annual Review, 2021.