Court File and Parties

COURT FILE NO.: FS-08-30247-0004 DATE: 2024 07 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dawn Marie Blainey a.k.a. Dawn Marie Demeter Self-represented Applicant

- and -

Kevin Ross Blainey J. Miliaris, for the Respondent Respondent

HEARD April 15, 17, 18, 29 and 30, May 1 and June 3, 2024

Reasons for Judgment

C. Chang J.

[1] The respondent, Kevin Ross Blainey, brings this motion to change for an order terminating his obligation to pay spousal support. The consent final orders of Fitzpatrick J. (dated August 16, 2017) and Gibson J. (dated January 4, 2018) require a “fresh look” at the spousal support issue and Mr. Blainey submits that the applicant, Dawn Marie Blainey a.k.a. Dawn Marie Demeter, is unable to prove entitlement. Mr. Blainey further submits that, if the court is not prepared to terminate spousal support, then the amount he is required to pay should be commensurate with the parties’ actual respective incomes.

[2] The applicant, Ms. Demeter, requests that the court-ordered review of spousal support be pushed back, so that she will continue to receive payments in the amount ordered in 2018. She submits that she gave up career advancement opportunities during the marriage to care for the children and to allow Mr. Blainey to advance his own career. In addition, she claims that Mr. Blainey’s violence toward her during the marriage and her cancer diagnosis in 2010 caused her to suffer from post-traumatic stress disorder and a resultant inability to work. Ms. Demeter also seeks child support for one of the children between November 1, 2016 and August 31, 2020 because, she says, that child lived with her during that time.

[3] For the reasons set out below, I find that Mr. Blainey’s spousal support obligation should terminate effective July 7, 2022 (being the date that he commenced this motion to change) and that Ms. Demeter’s claims should be dismissed.

Factual Background

[4] The relevant underlying facts are undisputed and can be summarized as follows.

[5] Ms. Demeter and Mr Blainey married on June 24, 1989 and separated on June 30, 2007. They have two sons, Ryan (currently 28 years old) and Eric (currently 24 years old), both of whom are independent adults and live with Mr. Blainey.

[6] Ms. Demeter was diagnosed with breast cancer in 2010, had a lumpectomy, and received treatment until 2011. The cancer has not returned.

[7] After they separated, Mr. Blainey and Ms. Demeter engaged in litigation and negotiation that resulted in, among other things, a separation agreement, arbitral awards, and various final court orders. Among those final orders are the consent final orders of Fitzpatrick J. and Gibson J. that, among other things:

a. effectively terminated child support for Eric as of November 1, 2016;

b. fixed: the parties’ respective incomes for spousal support purposes; and Mr. Blainey’s spousal support payment starting November 1, 2017; and

c. ordered a review of spousal support on a “fresh look” basis following the earlier of Eric completing one post-secondary degree and January 13, 2021.

[8] Mr. Blainey remains current with his payment of spousal support in accordance with the applicable court orders.

Issues

[9] The issues to be determined on this motion to change are as follows:

a. Should the final order of Gibson J. be varied to push back the review of spousal support?

b. Should Mr. Blainey’s spousal support obligation be terminated?

c. Should the final order of Gibson J. be varied to provide for Mr. Blainey’s payment of child support for Eric?

Analysis

Issue: Should the final order of Gibson J. be varied to push back the review of spousal support?

Parties’ Positions

[10] Ms. Demeter submits that the Gibson J. order should be varied to push back the timing of the spousal support review for five years from the disposition of this motion to change. She says that she remains entitled to spousal support because of her PTSD.

[11] Mr. Blainey submits that Ms. Demeter has failed to prove that there has been a material change in circumstances to warrant the requested variation of the Gibson J. order. Mr. Blainey doesn’t challenge the PTSD diagnosis, but he submits that the evidence of that diagnosis should be given little weight. He also submits that, in any event, there is no evidence that Ms. Demeter’s PTSD has adversely impacted her ability to work.

Decision

[12] I find that the requested variation of the Gibson J. order respecting the timing of the spousal support review must be denied. Ms. Demeter has failed to discharge her burden of proving that there has been a material change in circumstances applicable to that order.

[13] Section 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), sets out the applicable jurisdiction to retroactively or prospectively vary a final order. The exercise of that jurisdiction is predicated on the court being satisfied that there has been a material change in circumstances. In the spousal support context, such a change is one in the condition, means, needs, or other circumstances of either spouse since the making of the spousal support order that is sought to be varied (see: Divorce Act, s. 17(4.1)).

[14] The order sought to be varied must be given appropriate deference and the party seeking the variation bears the burden of proving that the alleged material change in circumstances would likely have resulted in a different order being made (see: L.M.P. v L.S., 2011 SCC 64, at paras. 29-33).

[15] Ms. Demeter adduced no evidence of a material change in her or Mr. Blainey’s condition, means, needs, or other circumstances since the making of the Gibson J. order that would likely have resulted in a different order being made. Indeed, she did not directly claim that there had been any such change. Based on her evidence, I presume Ms. Demeter’s argument to be that her PTSD diagnosis is that change; however, I do not accept that argument.

[16] Although Ms. Demeter was diagnosed with PTSD in 2023, in my view, the bases for that diagnosis were (or, at least, ought reasonably to have been) known to her when the Gibson J. order was made in January 2018. Ms. Demeter claims that her cancer diagnosis and Mr. Blainey’s abusive treatment of her during the marriage caused her PTSD. She was diagnosed with cancer in 2010 and received her final cancer treatment in 2011. The alleged abuse by Mr. Blainey occurred during the marriage, which ended in 2007.

[17] I acknowledge that trauma can have a profound effect on a victim’s cognitive functioning (see: M.A.B. v M.G.C., 2022 ONSC 7207, at para. 178). In addition, the mechanisms of human memory are complex and can result in memories of trauma being repressed. However, Ms. Demeter does not claim that her memories have been repressed or that the trauma she suffered has otherwise affected her cognitive functioning. Moreover, she adduced no evidence that would support such claims.

[18] I therefore find that there has been no material change in circumstances respecting the timing of the spousal support review.

[19] If I am incorrect in my determination that Ms. Demeter has failed to prove a material change in the applicable circumstances, I would still deny the requested variation of the Gibson J. order. Ms. Demeter has failed to establish either an evidentiary or a logical nexus between the circumstances of the case-at bar and her requested five-year extension of the spousal support review. Put another way, she has failed to show why the requested extension would be appropriate in the circumstances.

[20] Ms. Demeter’s request to vary the Gibson J. order to push back the spousal support review must therefore be denied.

Issue: Should Mr. Blainey’s spousal support obligation be terminated?

Parties’ Positions

[21] Mr. Blainey submits that, because the Fitzpatrick J. and Gibson J. orders provide for a “fresh look” review of spousal support, he is not required to prove a material change in circumstances. He argues that it is Ms. Demeter who bears the burden of proving her entitlement to spousal support. Mr. Blainey further submits that Ms. Demeter has failed to discharge that burden and, in any event, she has no entitlement to spousal support. Given the duration of the marriage, the family’s lifestyle and the parties’ conduct during it, the parties’ conduct after separation, and the amount of spousal support that he has already paid, Mr. Blainey argues that Ms. Demeter has no entitlement to spousal support beyond July 7, 2022 (being the date that he commenced this motion to change).

[22] Ms. Demeter did not direct any of her submissions to the issue of what the applicable burden of proof is or which party bears it. However, she submits that the parties’ cohabitation before marriage, the sacrifices she made during the marriage, and her inability to work due to her PTSD all justify her continuing receipt of spousal support in the amount set in the January 4, 2018 Gibson J. consent final order. Ms. Demeter therefore argues that she remains entitled to spousal support in accordance with that order.

Decision

[23] I find that Mr. Blainey’s obligation to pay spousal support should terminate effective July 7, 2022. In my view, Ms. Demeter bears the burden of proving entitlement to spousal support beyond that date and she has failed to discharge that burden.

[24] I agree with Mr. Blainey that the matter before me on the issue of spousal support is a review in accordance with the express provisions of the Fitzpatrick J. and Gibson J. final orders. The relief sought by Mr. Blainey is not a variation of the applicable spousal support order, but a review of the spousal support issue. The former requires a threshold determination that there has been a material change in circumstances; the latter does not (see: Cvetkovic v Cvetkovic-Gorovic, 2021 ONCA 193, at para. 8).

[25] However, the ultimate objectives of both inquiries are the same:

a) recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b) apportionment between the spouses of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) relief against any economic hardship of the spouses arising from the breakdown of the marriage; and

d) in so far as practicable, promotion of economic self-sufficiency of each spouse within a reasonable period of time.

(see: Cvetkovic, at para. 8; Divorce Act, ss. 15.2(6) and 17(7))

[26] In the relevant jurisprudence, these objectives have been reframed into a conceptual framework of three models of entitlement: compensatory support – that primarily reflects objectives (a) and (b) above; non-compensatory support – that primarily reflects objectives (c) and (d) above; and contractual support (see: A.E. v A.E., 2021 ONSC 8189, at para. 462).

[27] In achieving these objectives, I am to consider the length of cohabitation, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to the support of either spouse (see: Divorce Act, s. 15.2(4)).

[28] In my view, Ms. Demeter’s receipt of spousal support to July 7, 2022 is sufficient to: recognize any economic (dis)advantages arising from the marriage or its breakdown; apportion any applicable financial consequences arising from the care of Ryan and Eric; relieve any applicable economic hardship arising from the breakdown of the marriage; and promote Ms. Demeter’s and Mr. Blainey’s economic self-sufficiency within a reasonable period of time.

[29] Turning specifically to the factors set out in s. 15.2(4) of the Divorce Act, I address each in turn.

Length of Cohabitation

[30] In applying this factor to the case-at-bar, I begin by finding the length of cohabitation to be eighteen years.

[31] None of the date of marriage, the date of separation, or the parties’ cohabitation during the marriage is disputed. I do not accept Ms. Demeter’s argument that the parties cohabited for any period of time prior to the date of marriage. The only evidence to support this claim is unparticularized and uncorroborated statements in Ms. Demeter’s and her parents’ trial testimony. I find none of that evidence to be persuasive. Therefore, the length of the parties’ cohabitation is the same as the length of their marriage: eighteen years.

[32] Based on this duration of the parties’ cohabitation, I find that Mr. Blainey’s payment of spousal support until July 7, 2022 achieves the s. 15.2(6) objectives. The applicable Spousal Support Advisory Guidelines calculations show the duration of spousal support to be between nine and eighteen years. Mr. Blainey has paid spousal support for fifteen years and, as set out below, he has overpaid for 2018, 2019, 2020, 2021 and 2023.

[33] In my view, considering my review below of the other s. 15.2(4) factors, fifteen years of spousal support is sufficient to, among other things, recognize any economic (dis)advantages arising from the marriage or its breakdown, relieve any applicable economic hardship arising from the breakdown of the marriage, and promote Ms. Demeter’s and Mr. Blainey’s economic self-sufficiency within a reasonable time.

Parties’ Respective Functions During Relationship

[34] Respecting the functions performed by each spouse during their cohabitation, I do not accept Ms. Demeter’s argument that she gave up career advancement opportunities to attend to childcare or to permit Mr. Blainey to advance his own career. To be clear, this finding is in the context of Ms. Demeter’s claim for spousal support after July 7, 2022; not before.

[35] Ms. Demeter testified that she not only worked full time during the marriage, but also undertook education programs and professional development efforts that allowed her to advance her career. She progressed from an employment services employee at the beginning of the marriage, to a contract mortgage agent during the marriage, to a self-employed mortgage broker shortly following the parties’ separation. Both during and after the marriage, she won professional recognition and awards. She has also developed her mortgage business to a level that will enable her to provide work and clients to Eric when he enters the business. At the same time, Ms. Demeter has also engaged in extensive volunteer work. Her successes have been featured in a number of publications that have recognized her very notable standing in the community.

[36] Ms. Demeter is clearly a highly intelligent and diligent person, whose focus and drive have enabled her to succeed both in business and in community and volunteer work.

[37] Despite this however, she has been unable to achieve economic self-sufficiency more than seventeen years after separating from Mr. Blainey. That inability appears to be the result of her choices to: 1) live a lifestyle that is well beyond her means; and 2) fund that lifestyle through financial mismanagement. She has obtained mortgage, credit card, and other high-interest loans to pay for, among other things, a home that is beyond her needs and means, luxury cars, extensive leisure travel, and internet gambling.

[38] Ms. Demeter has also used the spousal support payments from Mr. Blainey to backstop her ill-advised financial choices and to blunt the adverse consequences of those choices. A review of her bank account statements reveals a consistent pattern of improvident spending that outstrips deposits and puts the accounts at a zero balance or into overdraft until Mr. Blainey makes his $6,600.00 monthly support payments. Once those support payments are received, the imprudent spending resumes.

[39] Furthermore, I do not accept Ms. Demeter’s claim that she has been unable to achieve financial self-sufficiency because of her PTSD. That claim is not supported by the evidence.

[40] Ms. Demeter called two expert witnesses, Dr. Irene Patelis-Siotis and Colleen McKay. Dr. Patelis-Siotis is a Specialist in Psychiatry and a Senior Psychiatric Consultant in Mood Disorders. During the trial, I qualified her as an expert witness in the diagnosis of PTSD. Ms. McKay is a Registered Psychotherapist and Clinical Traumatologist. During the trial, I qualified her as a participant expert witness in the treatment of PTSD.

[41] I am unable to give any weight to Dr. Patelis-Siotis’s or Ms. McKay’s evidence.

[42] Dr. Patelis-Siotis was engaged in September 2023 by Ms. Demeter’s previous counsel. The engagement letter specifically suggested PTSD as a possible diagnosis. After one meeting with Ms. Demeter, Dr. Patelis-Siotis diagnosed her with PTSD.

[43] Of greater concern is the lack of any independent testing conducted by Dr. Patelis-Siotis. She admitted in cross-examination that her PTSD diagnosis was based on Ms. Demeter’s self-reporting and a review of her medical records, but not on any independent testing. I accept the evidence of Mr. Blainey’s critique expert, Dr. Hy Bloom [1], that, where a diagnosis is based only on self-reporting, the patient can endorse the very issue that is being inquired into (in this case, PTSD). That diagnosis is therefore founded on the patient’s preference – whether conscious or not – toward a particular diagnostic result that is unchallenged by any independent metric. Accordingly, the lack of any testing or verification of the patient’s self-reporting undermines the value of the resultant diagnosis.

[44] Put another way, before Dr. Patelis-Siotis was engaged in this matter, PTSD was put to her as a possible diagnosis for Ms. Demeter and PTSD is what Dr. Patelis-Siotis diagnosed Ms. Demeter with. Moreover, that diagnosis was not informed by any independent diagnostic testing. That diagnosis was only informed by the untested and unchallenged self-reporting of Ms. Demeter (whose legal and financial interests would be served by a PTSD diagnosis) and her medical records (which do not reference PTSD except to say that such a diagnosis is not indicated).

[45] Ms. McKay’s evidence also provides no assistance. Ms. McKay was engaged to provide counselling services to Ms. Demeter based on the PTSD diagnosis already made by Dr. Patelis-Siotis. That counselling work is still in its early stages: the sessions thus far have only been observational in nature with a view to creating a treatment plan. That treatment plan has yet to be finalized or implemented. Ms. McKay is not qualified to diagnose PTSD and she proffered no such diagnosis.

[46] Furthermore, and in any event, neither Dr. Patelis-Siotis nor Ms. McKay gave any evidence that Ms. Demeter’s PTSD has adversely impacted her ability to work or otherwise achieve any degree of financial self-sufficiency. Indeed, Dr. Patelis-Siotis’s evidence was that Ms. Demeter is a very intelligent, high functioning, disciplined, and driven person.

[47] Respecting the care of Ryan and Eric, I accept Mr. Blainey’s evidence that he had a significant, if not equivalent, role in parenting. As set out above, Ms. Demeter engaged in full-time work and actively pursued career advancement opportunities during and after the marriage. In addition, after separation, both boys ended up living with Mr. Blainey and they continue to reside with him. In my view, in this family’s circumstances, the proper apportionment of the financial consequences associated with the children’s care was achieved by Mr. Blainey’s payment of spousal support for fifteen years after separation.

[48] I therefore find that any financial disadvantage or hardship currently (or since, at least, the Gibson J. final order) faced by Ms. Demeter does not arise from her marriage to Mr. Blainey and/or the breakdown of it. In addition, Ms. Demeter’s inability to achieve economic self-sufficiency is the result of her poor financial choices and an unreasonable reliance on Mr. Blainey’s spousal support payments to backstop those choices. I also find that the apportionment of any financial consequences associated with the care of Ryan and Eric is best accomplished by the termination of spousal support on July 7, 2022.

Orders, Agreements or Arrangements for Spousal Support

[49] Respecting any orders, agreements or arrangements relating to the support of either spouse, I note that the January 13, 2016 arbitral award of Herschel Fogelman and the subsequent consent orders of Fitzpatrick J. and Gibson J. all contemplate a termination of spousal support that is not tied to Mr. Blainey’s retirement or death. Ms. Demeter was therefore aware as of, at the latest, January 13, 2016 that she would not be entitled to spousal support indefinitely. Indeed, by consenting to the Fitzpatrick J. and Gibson J. orders, Ms. Demeter agreed that spousal support would be subject to review by, at the latest, 2021 and she knew that termination of that support was a live issue.

[50] In addition, those orders also consistently look to the low end of the SSAG range [2] for the applicable amount of spousal support. The amount of spousal support that Mr. Blainey has been paying under the Gibson J. order significantly exceeds that low end. Indeed, since January 1, 2018, Mr. Blainey has been paying spousal support in an amount that is not commensurate with the parties’ respective incomes. He has been paying substantially more.

[51] Since November 1, 2017, Mr. Blainey has been paying $6,600.00 in spousal support based on set incomes of $329,000.00 for himself and $30,000.00 for Ms. Demeter. The parties’ actual respective incomes for the subsequent years are as follows: $288,079.00 and $50,830.00 for 2018; $259,026.00 and $35,377.00 for 2019; $183,969.00 and $47,293.00 for 2020; $214,324.00 and $54,245.00 for 2021; $618,054.00 and $26,220.00 for 2022; and $194,532.00 and unknown for 2023. Mr. Blainey has therefore substantially overpaid his spousal support obligation from January 1, 2018 onward.

[52] In my view, the combination of the consent orders, Mr. Blainey’s fifteen years of spousal support payments (i.e., between the date of separation and July 7, 2022), and his overpayment since January 1, 2018 is more than sufficient to achieve all of the objectives set out in s. 15.2(6) of the Divorce Act.

Conclusion re: Ms. Demeter’s Entitlement to Spousal Support

[53] In the result, I am not persuaded that Ms. Demeter is entitled to spousal support beyond July 7, 2022 (again, being the date that Mr. Blainey commenced this motion to change). Indeed, in the circumstances of this case, I find that the objectives set out in s. 15.2(6) of the Divorce Act would best be served by terminating Mr. Blainey’s spousal support obligation as of that date.

[54] Reframing my analysis in terms of the conceptual framework of the three models of entitlement: as at July 7, 2022, I find Ms. Demeter to have no meritorious compensatory, non-compensatory, or contractual claims. Taking into consideration the parties’ eighteen-year relationship, their respective roles during it, and the consent orders made, Ms. Demeter has failed to prove a meritorious claim to spousal support beyond that date.

[55] In my view therefore, Mr. Blainey’s request to terminate his spousal support obligation as of July 7, 2022 must be granted.

Issue: Should the final order of Gibson J. be varied to provide for Mr. Blainey’s payment of child support for Eric?

Parties’ Positions

[56] Ms. Demeter submits that the Gibson J. final order should be varied to provide for the payment by Mr. Blainey of child support for Eric between November 1, 2016 and August 31, 2020. She argues that there has been a material change in circumstances in that Eric moved in with her on November 1, 2016 and lived primarily with her until August 31, 2020. Ms. Demeter also submits that Eric attended a full time post-secondary education program between September 3, 2019 and August 9, 2020.

[57] Mr. Blainey submits that there is no basis for the variation requested by Ms. Demeter. He argues that there has been no material change in circumstances and, in any event, her claim lacks any credibility. Ms. Demeter only made this claim for the first time in the December 2023 amendment to her pleading.

Decision

[58] I find that the requested variation of the Gibson J. order to provide for Mr. Blainey’s payment of child support for Eric must be denied. Ms. Demeter has failed to discharge her burden of proving that there has been a material change in circumstances.

[59] As with the potential variation of a spousal support order, the potential variation of a child support order requires that I first make a threshold determination that there has been a material change in the applicable circumstances. Specifically, I must decide whether there has been a change in the condition, means, needs or circumstances of the child and/or the parents’ ability to meet those needs that materially affects the child and was not foreseen or could not have reasonably been contemplated by the judge making the initial order (see: Licata v Shure, 2022 ONCA 270, at para. 21).

[60] If the party seeking variation fails to demonstrate that there has been a material change in circumstances, the matter “can go no further” and the request for variation must be denied (see: Litman v Sherman, 2008 ONCA 485, at para 26).

[61] Ms. Demeter failed to adduce sufficient evidence to satisfy me that there has been any material change in circumstances such that the Gibson J. order respecting child support for Eric should be varied. The evidence is insufficient to ground any reasonable finding that there has been a material change in Eric’s condition, means, needs, or circumstances and/or in the parties’ ability to meet them that was neither foreseen nor could have reasonably been contemplated when that order was made.

[62] The Gibson J. order terminated Mr. Blainey’s payment of child support for Eric effective November 1, 2016, as Eric had maintained his primary residence with Mr. Blainey since that date. Having regard for Eric’s condition, means, needs, and other circumstances, together with the parties’ acknowledgment that alternative support arrangements were in place for him, Gibson J. ordered that Ms. Demeter would not pay child support. Ms. Demeter adduced no evidence of a material change in any of those circumstances.

[63] It is noteworthy that Ms. Demeter did not call Eric as a witness at trial. Eric is best positioned to testify as to where he was living and what he was doing during the timeframe for which Ms. Demeter seeks the payment of child support for him. Ms. Demeter had Eric on her witness list until the beginning of the fourth day of trial, when she removed him. Given Ms. Demeter’s burden to prove a material change in circumstances respecting child support for Eric, his removal from her witness list is puzzling. That said, I do not accept Mr. Blainey’s argument that I should make an adverse inference because of Ms. Demeter’s failure to call Eric as a witness. Either party could have called or subpoenaed Eric to testify, but neither did. I note that Eric was also on Mr. Blainey’s witness list before being removed at the beginning of the second day of trial.

[64] The absence of Eric’s evidence highlights the dearth of evidence to support Ms. Demeter’s claim to vary the Gibson J. child support order.

[65] Ms. Demeter’s evidence on this issue is sparse, self-serving, and lacks specificity, particulars, or corroboration. She testified that Eric enrolled in a full time post-secondary education program at Metal Works, but there is no evidence that he actually attended that program or that he lived primarily with Ms. Demeter while doing so. The documentary evidence that Ms. Demeter proffered indicates, at best, that Eric may have used her address in 2018 and 2019 for certain purposes.

[66] The evidence of Ms. Demeter’s parents is no better. They both testified that, after Mr. Blainey and Ms. Demeter separated, they saw Eric at Ms. Demeter’s home and that he had some of his belongings there. However, Ms. Demeter’s parents failed to provide any applicable particulars or details and, under cross-examination, were unable to confirm that their observations of Eric at Ms. Demeter’s home meant that he primarily resided there.

[67] I therefore find that there has been no material change in circumstances respecting child support for Eric. That is the end of the matter.

[68] If I am incorrect in my determination that Ms. Demeter has failed to prove a material change in the applicable circumstances, I would still deny the requested variation of the Gibson J. order. On the evidence, I am not satisfied that Eric was primarily resident with Ms. Demeter for any period(s) of time between November 1, 2016 and August 31, 2020. As outlined above, Ms. Demeter’s proffered evidence on this point is sparse, self-serving, and lacking in specificity, particulars, or corroboration. It, at best, shows only that Eric may have used Ms. Demeter’s address for some purpose(s) in 2018 and 2019.

[69] Ms. Demeter’s request to vary the Gibson J. order respecting child support for Eric must therefore be denied.

Summary & Conclusion

[70] For the reasons set out above, I find that Ms. Demeter’s claims for variation of the Gibson J. order to: 1) push back the review of spousal support; and 2) require Mr. Blainey to pay child support for Eric between November 1, 2016 and August 30, 2020, must be denied. Ms. Demeter has failed to satisfy me that there has been a material change in any of the applicable circumstances. Ms. Demeter’s claims must therefore be dismissed.

[71] I also find that Mr. Blainey’s request to terminate spousal support as of July 7, 2022 must be granted. The burden of proving entitlement to spousal support beyond that date rests on Ms. Demeter and she has failed to discharge that burden. Furthermore and in any event, her receipt of spousal support for fifteen years following the parties’ separation satisfies the objectives set out in s. 15.2(6) of the Divorce Act. Mr. Blainey’s claim must therefore be granted.

Costs

[72] I strongly recommend that the parties resolve the issue of costs. Upon such resolution, they are to advise me in writing through the Milton Administration Office by no later than August 2, 2024. Failing such resolution, the parties are to deliver written submission in accordance with the timetable set out below.

Disposition

[73] I therefore make the following orders:

a. Mr. Blainey’s spousal support obligation is terminated effective July 7, 2022;

b. Ms. Demeter shall repay to Mr. Blainey all spousal support payments made after July 7, 2022;

c. Ms. Demeter’s claims are dismissed; and

d. if the parties are unable to resolve the issue of costs, they shall deliver their written submissions (limited to two pages each plus bills of costs and offers to settle) to me through the Milton Administration Office as follows:

i. Mr. Blainey by no later than August 16, 2024,

ii. Ms. Demeter by no later than August 30, 2024,

iii. there shall be no reply, and

iv. should the parties fail to deliver their submissions in accordance with the above, I will presume that failure to be the result of an informed choice and will determine the issue of costs accordingly.

C. Chang J. Released: July 22, 2024

[1] Dr. Bloom is a licensed medical practitioner with a specialty certification in Psychiatry and a subspecialty certification in Forensic Psychiatry. During the trial, I qualified him as an expert witness in Psychiatry.

[2] The arbitral award and the Fitzpatrick J. order provide for a mid-range SSAG if Eric primarily resides with Ms. Demeter, but this did not occur during the relevant time.