Court File and Parties

COURT FILE NO.: FS-22-34466 DATE: 20240904 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tricia Kelly, Applicant AND: Mike Kelly, Respondent

BEFORE: Shin Doi J.

COUNSEL: Jessica Pugliese, for the Applicant Lisa Baumal, for the Respondent

HEARD: April 30, 2024

Endorsement

1The Respondent brings a motion to change. The Respondent seeks to terminate spousal support and life insurance obligations under the order of Justice Del Frate dated January 3, 2013, effective January 1, 2025 based on his retirement on October 31, 2023. In the alternative the Respondent seeks a reduction of his spousal support obligations.

2The Applicant brings a cross-motion for a retro-active adjustment of spousal support from at least January 1, 2019, or indexing back to January 1, 2013, and retro-active child support back to January 1, 2019, and ongoing child support for the adult disabled child in the Applicant’s care.

3I grant the Respondent’s motion, in part. The Respondent shall continue to pay spousal support in the amount of $7,000 per month until December 31, 2024, as offered by the Respondent during the hearing of the motion. The Respondent shall pay the amount of $1,021.00 per month in spousal support as of January 1, 2025 and shall continue to carry life insurance in the amount of $250,000.00 as offered by the Respondent. Spousal support shall be increased with the cost-of-living indexing adjustment allowance.

4I deny the Applicant’s motion for retro-active adjustment of spousal support and retro-active child support back to January 1, 2019 and ongoing child support for the adult disabled child in the Applicant’s care. The child already receives yearly social assistance (Ontario Disability Support Program and Passport program funding) in the amount of $58,477.00 ($4,873.00 per month) and is financially secure with a pension and assets. The child’s financial circumstances have improved since 2019 and there is no need demonstrated.

Facts

5The Applicant was born on July 21, 1953, and the Respondent was born on December 12, 1952. They are both in their 70s.

6The parties commenced a common law relationship in September 1978 in Windsor, Ontario and were married on June 30, 1979, in Detroit, Michigan. They have two children, a son born on May 8, 1984, and a daughter born on December 15, 1987. The parties separated in November 2007.

7When the parties commenced their relationship, the Respondent was a news reporter/announcer for a radio station. The Applicant was a nurse clinician. In 1982, the Respondent was accepted into law school.

8In 1984, the first child was born and diagnosed with Fragile X Syndrome, Attention Deficit Hyperactivity Disorder, Tic Disorder, and Pervasive Developmental Disorder.

9In 1985, the family moved to Ottawa where the Respondent articled and was called to the bar.

10In 1987, the parties had their second child who was also diagnosed with Fragile X Syndrome.

11Fragile X Syndrome is a genetic link disorder which affects cognition, speech, language, fine motor skills, cognitive ability and causes social delays with communication deficits and behavioural problems.

12From 1991 to 2012, the parties resided in Sault Ste. Marie where the Respondent worked.

13In 2006, the second child left home to live independently.

14The home was then renovated so that the first child could live in a basement apartment of the home. The first child is still dependent on his parent and other third parties to manage his day-to-day living plus all major decisions.

15In 2007, the parties separated.

16In 2012, the Respondent transferred his position to work in Toronto.

17On January 3, 2013, the court ordered spousal support to the Applicant in the amount of $7,000.00 per month based upon the Respondent’s income and spousal support advisory guidelines. The court order, section 14 provided that, “Spousal support and life insurance shall be reviewed by the parties one year prior to the Respondent’s retirement. The parties shall have 30 days from the Respondent notifying the Applicant of his intention to retire, to negotiate a resolution of these issues, failing which, the Respondent shall be at liberty to commence a Motion to Change.”

18The Respondent’s spousal support obligations were secured by a $350,000.00 life insurance policy through his employment. The Respondent no longer has an insurance policy through his employment but has obtained a private life insurance policy in the amount of $250,000.00 and has made the Applicant the beneficiary.

19The Respondent retired from his Crown Attorney position on October 31, 2023. He continued to work on cases that he had been prosecuting and made two further court appearances. He earned $1,750.00 plus HST for the court appearances. He surrendered his licence on January 31, 2024.

20The Respondent was eligible for his full pension at 65 years of age. However, he chose to continue working until December 2023.

21The Respondent submits an actuarial report dated March 21, 2024, which estimates the income available for spousal support for 2025 to be $93,900.00.

22The Respondent also submits an actuarial report dated April 18, 2024, which provides an estimate of the minimum withdrawals that the Applicant will be required to make in 2025 and 2026 from her RRIFs and LIF after compulsorily converting her existing RRSPs and LIRA to these upon attaining the age of 71 in 2024. The estimates are the amount of $45,820.00 in 2025 and the amount of $46,163.00 in 2026. For other sources of income for the Applicant, the actuary assumed that the Applicant would receive the amount of $8,605.17 of OAS and the amount of $6,350.04 of CPP in each of 2024, 2025, and 2026. The total projected 2025 and 2026 income of the Applicant is the sum of $60,775.71 and the sum of $61,118.14. The actuary noted that the Applicant’s 2023 income tax summary shows minimal amounts of dividends and rent income in addition to support payments.

23The Divorcemate calculation for spousal support with adult children formula indicates spousal support in the amount of $1,021.00 per month payable for an annual income in the amount of $93,900.00 for the Respondent and an annual income in the amount of $60,775.21 for the Applicant.

24The Applicant receives Passport funding for the first child. The funding has increased from the amount of $12,500.00 in 2010 to the amount of $23,500.00.

25The first child has assets in the sum of $150,265.97 including a disability savings plan to which he contributes the amount of $150.00 per month and is matched by the government up to a maximum sum of $1,000.00 per year. The first child is one of the beneficiaries of the estates of the Applicant and the Respondent.

26The Respondent has registered the child for the disabled dependant benefits under the Ontario Pension Board.

Issues

Is the Applicant entitled to ongoing spousal support beyond the Respondent’s retirement?

27The Applicant is entitled to ongoing indefinite spousal support beyond the Respondent’s retirement because it was a long marriage, there were two disabled children of the marriage, the Applicant was not able to work and build her career, and the Applicant must still care for one disabled adult child who resides in her home. The Applicant was also economically disadvantaged by the breakdown of the marriage.

28The Respondent shall pay spousal support in the amount of $7,000.00 per month to the Applicant for the year 2024 as offered by the Respondent, and the amount of $1,021.00 per month to the Applicant for the year 2025 and onwards. Spousal support shall be increased with the cost-of-living indexing adjustment allowance.

29The court may vary, rescind, or suspend an order for support pursuant to the Divorce Act, s. 17(1). Subsections 17(4.1) and (6) provide factors and objectives of varying a spousal support order,

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses 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) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

30Retirement by the payor with a reduction in income constitutes a material change. I am satisfied that there is a change in circumstance since the making of the spousal support order pursuant to subsection 17(4.1). Further, it was anticipated that the retirement would be a material change in financial circumstance. The court order of Justice Del Frate states that spousal support and life insurance shall be reviewed by the parties one year prior to the Respondent’s retirement.

31In varying the spousal support order, I continue to recognize the economic disadvantage of the Applicant arising from the breakdown of a long marriage and that the Applicant must still care for the disabled adult child who resides in her home.

32The length of the marriage, the amount of spousal support paid, and the functions performed by each spouse during cohabitation are also factors that can be considered as set out in the caselaw. I find that the Applicant is entitled to ongoing indefinite support based on a strong compensatory and needs based claim.

33The Applicant has a strong claim to compensatory support due to the roles of the parties over the course of the marriage. The Applicant had no choice but to sacrifice her personal and career aspirations to care for the disabled children and she permitted the Respondent to change careers and pursue his profession. The Applicant never had an opportunity to commit to any career development. The Applicant provides care to the child at no cost to the Respondent. Without her efforts through the marriage and since separation, the Respondent would not have had the opportunity to flourish in his profession.

34In addition, the evidence is that the Applicant is still required to purchase special equipment and maintain the home as required by the disabled adult child. The Applicant’s financial information indicates that she has minimal sources of income other than spousal support. I find that the Applicant continues to have some need.

35I conclude that the Applicant remains entitled to support under the Spousal Support Advisory Guidelines in accordance with the Respondent’s income despite his retirement.

36I rely on the expert actuarial reports submitted by the Respondent in calculating the incomes of the parties, and the amount of spousal support payable to the Applicant. In making the reports, the actuary took into account the avoidance of double recovery in the assets that have been equalized (Boston v. Boston, 2011 SCC 43).

Is the Applicant entitled to a retroactive increase in spousal support in accordance with the Respondent’s increases in income and indexing of support?

37The Applicant is not entitled to a retroactive increase in spousal support in accordance with the Respondent’s increases in income and indexing of support.

38On the evidentiary record, the Applicant has also not demonstrated need for the retroactive increase, the conduct of the Respondent has been more than reasonable, and it would cause financial hardship to impose the retroactive award on the Respondent (Kerr v. Baranow, 2011 SCC 10, para. 207). The Applicant has considerable assets including real property, and the Respondent does not (Savage v. Savage, 2019 ONCA 984). The Respondent rents his home. The Applicant’s net worth is approximately three times more than the Respondent’s net worth. The Respondent’s income has decreased and can no longer generate that prior level of income due to his retirement. Notably, the Respondent voluntarily increased his monthly spousal support in the past and has offered to maintain spousal support at that level until the end of 2024.

39The Respondent also voluntarily obtained and pays for private life insurance coverage, naming the Applicant as the beneficiary, as security for his spousal support payments to the Applicant.

40Further, the Respondent would also suffer financial hardship in making a retroactive payment because he would not be able to claim a tax deduction for that lump sum payment.

41Lastly, there has been a significant passage of time (17 years) since separation. The income increases did not take place closer to separation and there has been a delay on the part of the Applicant in making this claim.

Is the Respondent obligated to pay child support permanently for the disabled adult child?

42The Respondent is not obligated to pay child support for the disabled adult child. Further, the Respondent is not required to pay retroactive child support to 2019.

43No request for child support was made. The Applicant argues that in 2017, the ODSP policy directives for income support were updated so that child support payments do not impact a person’s eligibility for the ODSP. However, the child’s financial circumstances have improved since the making of the court order dated January 3, 2013.

44Section 15.1 of the Divorce Act provides that a court may make an order requiring a spouse to pay for the support of a child of the marriage. The presumptive table amount can be displaced if the evidence supports a finding that the table amount is inappropriate. The factors to be considered in determining whether the table amount is inappropriate are the following: the conditions, means, needs and other circumstances of the child, and the financial ability of both parents to contribute.

45An adult child’s receipt of ODSP benefits is sufficient to displace the “one-size-fits-most” approach in section 3(2)(a) of the Guidelines in favour of the “tailor-made” approach in section 3(2)(b) (Daleman v. Daleman, 2021 ONSC 7193, para. 112). “Although parents are expected to support their children in their minor years, when a disabled child becomes an adult, there is a societal obligation to take over the financial support of these adults” (Buzon v. Buzon (1999), 8 R.F.L. (4th) 263 cited in Cossette v. Cossette, para. 7).

46The Respondent should not be required to pay child support because the child’s needs are being met through a combination of social assistance benefits and ad hoc spending by the parties. The amount of social assistance the child receives monthly ($4,873.00) exceeds the child support table amount ($2,116.80). The combination of the OSDP funding, the Passport funding and the tax credits total $58,477.00 per year for the child.

47The child continues to reside in the family home since the separation and enjoys a stable lifestyle. He has income to meet his needs including caregivers, and the parents can contribute financially. He also has assets including a pension which will pay him monies when he turns 60 years of age. I conclude that the Respondent is not required to pay child support based on these facts.

Costs

48If the parties are unable to agree on costs, they may make written submissions on costs up to 5 pages, double-spaced, within 30 days.

Shin Doi, J.