Court File and Parties

COURT FILE NO.: FC-14-1240 DATE: 2023-May-23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kimberly Vesters, Applicant / Responding Party AND: John Thomas Godin, Respondent / Moving Party

BEFORE: Hooper J.

COUNSEL: Karen Kunopaski-Tsinonis, Counsel for the Applicant/Responding Party M. Peter Sammon, Counsel for the Respondent/Moving Party

HEARD: March 7, 2023

DECISION ON MOTION TO TERMINATE SPOUSAL SUPPORT

[1] The moving party, Mr. Godin, brings a motion for an interim order to terminate spousal support payable to the responding party, Kimberly Vesters. Ms. Vesters argues that the issues require a full hearing and cannot be determined purely on a written record.

[2] For the reasons that follow, this interim motion is dismissed. A full hearing will be required as there is insufficient evidence to determine the appropriate relief.

Background

[3] The parties were in a lengthy relationship. They were married for 18 years and cohabitated prior to marriage. The total period of cohabitation was 24 years.

[4] The parties separated in May 2010. Ms. Vesters was 45 years old at the time of separation. During the marriage, she was the secondary earner, primarily responsible for childcare and domestic duties. The parties have one child, Kaitlynn, born in March 1995. Ms. Vesters also has another daughter from a previous relationship.

[5] The parties entered into a Separation Agreement dated December 10, 2012, under which Mr. Godin agreed to pay spousal support to Ms. Vesters. He continues to do so in the amount of $2,303.99 per month. The parties do not agree on whether spousal support was being paid on a compensatory or needs basis.

[6] Mr. Godin now seeks a complete termination of this spousal support. Ms. Vesters argues that spousal support should be increased or, at minimum, remain the same.

[7] Pursuant to the Separation Agreement, the payment of spousal support was to be indefinite, only definitively terminating in the event of Kim’s death. Insurance was to be put in place in case of John’s death. If no insurance is in place, the agreement specifically required John’s estate to maintain payments. This is consistent with the Spousal Support Advisory Guidelines for a long marriage.

[8] The Separation Agreement includes clauses that allow for spousal support to be varied (which could be interpreted to include termination) if there is a material change. Paragraph 7.7 of the Separation Agreement states the following:

7.7 Spousal support may be changed if there is a material change in circumstances, even if the change was foreseen or foreseeable. The change may be: a) in either party’s financial position b) in either party’s health; c) either party’s retirement, or any other similar change.

[9] Both Mr. Godin’s decision to retire and Ms. Vesters’ health status can therefore constitute a material change in circumstances.

[10] Mr. Godin has been employed by the County of Renfrew as a paramedic for over 35 years, rising to the position of Commander for the Department of Emergency Services. He retired effective March 1, 2023, at the age of 60, and his pensions with OMERS and HOOP are stated to be his only source of income. As a result, his income is considerably lower. His pension income will also be drawn from the same pensions which formed part of the equalization payment made in the Settlement Agreement.

[11] With respect to his decision to retire, Mr. Godin’s affidavit states the following:

Again, as of March 1, 2023, I will be 60 years of age. My job is immensely stressful and my mental and physical health has been negatively affected over the years. Further my parents are elderly (in their 80s) and my father is suffering from dementia and has been diagnosed with cancer. They require, and will require in the future, more and more of my time attending to their care and medical needs.

[12] There is no medical evidence to support Mr. Godin’s decision to retire at age 60.

[13] Prior to separation, Ms. Vesters was diagnosed with multiple sclerosis (MS) and states that, as a result of the progression of that disease, she is no longer able to work in her demanding job as a personal support worker. The Separation Agreement refers to the MS diagnosis.

[14] In her responding material, Ms. Vesters included medical evidence within her affidavit to support her argument that her health is continuing to deteriorate, and she is struggling to work as a PSW even on a part-time basis.

Analysis

Preliminary Issue – Ms. Vesters’ December 2021 motion to change

[15] Ms. Vesters brought her own motion to change in December 2021 seeking an increase of support on the basis that spousal support had been initially calculated based on the custodial payor formula and should have been adjusted once Kaitlynn moved out of her father’s residence. Ms. Vesters did not advance that motion.

[16] Mr. Godin casts this December 2021 motion as a “pre-emptive strike”. He suggests it was only brought in anticipation of his decision to retire. I do not accept this. Mr. Godin only provided Ms. Vesters with his notice of retirement when he served his own motion to change. Until then, the evidence is that Ms. Vesters believed Mr. Godin would work until age 65.

[17] Ms. Vesters has had serious financial struggles over the years. She has had difficulty financing this litigation. That is the reason she did not proceed with the December 2021 motion to change. I do not agree that it was a pre-emptive strike.

Preliminary issue of striking affidavit evidence

[18] When Mr. Godin brought the within motion to change, Ms. Vesters filed a new affidavit that went beyond her health or financial situation. She alleges abusive conduct during the marriage.

[19] Upon receiving this new affidavit, Mr. Godin filed a responding affidavit and also had the daughter, Kaitlynn, swear an affidavit. He further brought a motion to strike Ms. Vesters’ affidavit for containing hearsay evidence and irrelevant information.

[20] As I am ordering this matter to a full hearing, I will not make a determination of what evidence should be before the trial judge. The allegations raised in Ms. Vesters’ January 2023 affidavit and Kaitlynn’s responding affidavit were not a factor in my decision that a full hearing is necessary.

[21] Mr. Godin also seeks to strike portions of Ms. Vesters’ affidavit that attach medical records. Mr. Godin argues that this medical evidence is insufficient and ought not be considered as there is no affidavit from the physician attaching the report. While I agree that there is an evidentiary issue as to the manner in which these medical records were filed on this motion, Ms. Vesters’ medical condition is not contested. MS is a progressive disease. Ms. Vesters is now receiving CPP disability. I do not believe a fair and just result can occur in this case without a trial judge hearing evidence from Ms. Vesters and any medical professionals she wishes to call regarding her ability to work.

The lack of evidence on other critical issues

[22] The record before me is incomplete. Spousal support is an extremely important issue to both parties. In order to justly determine whether spousal support should be varied or terminated, a court will likely need to consider:

a. Medical evidence to support Mr. Godin’s decision to retire b. Evidence of Ms. Vesters’ current earning capacity c. The retirement date used to value the pension at the time of separation d. The increased value of the pension post separation

[23] With respect to (c) and (d) above, I note that Mr. Godin’s primary argument on this motion was that to allow support to continue would constitute double-dipping: Boston v. Boston, 2001 SCC 43. A court will strive to avoid a situation of double-dipping but, as noted in Boston it cannot always be avoided when hardship and need are shown.

[24] The difficulty that arises in this case is that Mr. Godin, as the person suggesting double-dipping, has provided no actuarial evidence as to the value of the pension at the time of the separation and the increase of that value post-separation. His affidavit is silent on whether the retirement age to value the pension was 65, thus reducing the pension’s value when it was split between the parties. These are important pieces of evidence.

[25] Rather than provide that actuarial evidence, in his factum Mr. Godin states the following:

34. … Given his length of pensionable service (35.638 years) when compared to the length of marriage (19.25 years), one might attribute 16.388 years of post-separation service to the current value of his pensions, or 46% to post-separation pension accumulation that was not subject to the division under the Agreement. Based on that percentage, 46% of $63,587.31 annual pension income of the Respondent or $29,250 could be reasonably “focused” upon as income available.

[26] I do not accept that calculations within a factum can replace expert actuarial calculations.

Reduction in spousal support request

[27] Upon a determination that a full hearing is required, the moving party has asked for a reduction in support to be made on an interim basis. I am unwilling to do so at this time as it is clear that Mr. Godin has underpaid spousal support for some time. The support he is currently paying is calculated on the custodial payor formula. It should have been adjusted to the without child formula when Kaitlynn became independent. Kaitlynn is currently 27 and her affidavit states that she has been working as a Registered Practical Nurse for at least five years.

[28] In order to ensure that this ongoing support is not for an inordinate amount of time, I am willing to work with the parties to bring this to trial on an expedited basis. If timelines are required to make this happen, the parties can seek a thirty-minute attendance before me to set those timelines. This attendance can be set for any day I am sitting, commencing at 9:30 a.m. It will be a virtual attendance.

[29] As Ms. Vesters was successful on this motion, cost submissions may be filed by June 15, 2023. Those submissions should be no more than three pages in length not including the bill of costs. Mr. Godin has until June 30, 2023 to reply to these cost submissions.

Justice J. Hooper Date: May 23, 2023