Court File and Parties

COURT FILE NO.: FS-11-7636-00M2 (Owen Sound) DATE: 2024-10-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

W.G. Applicant

-and-

K.G. Respondent

Counsel: E. Treslan, for the applicant E. Samli, for the respondent

Heard: April 9, 2024. Written submissions received on April 23, May 7, & May 8, 2024.

Justice. R. Chown

Corrected Reasons for Decision

[1] The parties married in September 1997 and separated in April 2010. Including a brief period of cohabitation before the marriage, the parties were together for about 13 years. The applicant, W.G., has been paying spousal support to the respondent, K.G., for 14 years. He began paying effective October 1, 2010. He brought this motion to change as he hopes the court will terminate the spousal support he is required to pay to K.G. under the order of Conlan J. dated June 22, 2015.

[2] Conlan J.’s order set spousal support at $1,891 per month for an indefinite duration. He ordered that the parties were to provide updated income disclosure to each other annually, although he did not require the amount payable to be adjusted annually. The parties had agreed, and Conlan J. ordered, that there would be an automatic reduction in the amount if the respondent was granted CPP disability benefits.

[3] In his reasons (2015 ONSC 4010), Conlan J. found that K.G.’s entitlement to spousal support was both needs-based and compensatory. He found that K.G. was unable to work due to disability. Her income at the time was nil.

[4] K.G. had argued that W.G.’s income should be imputed at a higher figure than his actual wages because W.G. had, in 2012, taken a lower paying job. Conlan J. rejected this argument. He determined support based on W.G.’s wages from his employment. He set support at the high end of the SSAG range. He noted that K.G. would lose access to W.G.’s benefits after the divorce, and K.G. had high medical expenses for medications, physiotherapy, and massage therapy.

[5] Conlan J. said:

[88] The within award of spousal support is indefinite. The Guidelines provide for that. Further, the setting of any termination date by the Court at this time would be unreasonable and completely arbitrary, given the mother’s current medical circumstances.

[89] On W.G.’s request for the Court to direct a specific review date, I decline to do so. Review dates are not the norm. Absent a material change in circumstances, the parties cannot afford to come back to Court. Some degree of finality is required for both parties.

[90] I accept that K.G. is improving, gradually. She is better now than she was at the start of this year.

[91] This is not a case, however, where it can be reasonably anticipated that the present state of uncertainty will be resolved any time soon. I accept the evidence of Dr. Tweedie that K.G. is medically disabled from working at all at this time. That factual finding, coupled with the prognosis that it will be quite a while, if ever, before she is well enough to return to work in any capacity, obviates any utility of setting or the need to set a review date. On a material change in circumstances, either party will be at liberty to bring the matter back to Court.

[6] The parties had resolved most of the other issues in their divorce, including child support. The children were then 16 and 13 years old. The $1,891 spousal support award was calculated using the “with child support” formula.

Events After the Trial

[7] W.G. has paid support in accordance with the order. On September 23, 2015, Conlan J. awarded K.G. costs of $54,700. W.G. filed for bankruptcy (I do not have the date of this). On October 15, 2015, Conlan J. ordered that the costs award would be considered as a support order and part of the support deduction order. W.G. paid the costs in full.

[8] Initially, the parties did not exchange their income records on an annual basis as ordered by Conlan J. K.G. qualified for CPP disability in September 2015. Whether she disclosed that at the time is in dispute. W.G. says she did not. K.G. says she disclosed it through her lawyer at the time to W.G.’s lawyer at the time. However, she did not establish this through records, and it would be her onus to do so. With that said, by 2019, W.G. was aware of K.G.’s income and CPP entitlement. Until this motion to change, commenced in December 2022, neither party sought to change the spousal support arrangement. Each had their own incentives for not doing so.

[9] For W.G.:

• His income went up over the years. This potentially increased his exposure to pay increased support.
• The children aged out of child support and the parties agreed to reduced child support as this occurred. When child support fully stopped, K.G. did not ask for an increase in spousal support although she could have. As I will explain, this was a change in circumstances. The formula for determining the amount payable would have changed from the with child support formula to the without child support formula. This would have entitled K.G. to a higher amount for spousal support. W.G. knew this.

[10] For K.G.:

• Her receipt of CPP disability benefits would have permitted W.G. to pay less in spousal support.
• She was earning some income from employment. This may also have reduced W.G.’s spousal support exposure.

[11] Other evidence that the parties were content to “let sleeping dogs lie” is found in Mr. Treslan’s “with prejudice” letter dated September 13, 2019. It says:

We see from your and Mr. Green’s 2018 income tax returns that you are both earning more than what Justice Conlan’s support award was based on. Although Justice Conlan's order provided that your spousal support should be reduced [if] your CPP application was approved, [W.G.] has not sought a reduction because he has enjoyed an increase in his income over the past few years. That being said, we are putting you on notice that [W.G.] does not intend to pay you spousal support indefinitely.

[12] In another letter dated July 28, 2021, Mr. Treslan said:

[W.G.] is not seeking a variation or termination of spousal support at this time, in the hope that you will cooperate with respect to terminating his child support payments…. However, [W.G.] will be entering the 12th year of his paying you spousal support in September of 2021 and is firmly of the view that he should not be paying you spousal support for a duration longer than the duration of your married cohabitation.

The Parties’ Positions

[13] W.G.’s position is that spousal support should terminate effective September 2022. W.G. asserts K.G. now has an ability to earn an income. Regardless, he says, due to the length of time he has been paying support and the passage of time, there has been a change in circumstances. He emphasizes that he has been paying support longer than the duration of the marriage and longer than the maximum duration set out in the SSAG.

[14] K.G.’s position is that there has been no change in circumstances justifying a change in support. She says that her health “has not changed for the better and any income she has generated is not sufficient or sustainable to constitute a material change.” If the court finds there has been a change, she says this “should not necessarily lead to a termination but rather … an adjustment on the quantum and duration of the support.”

Issues

[15] I frame the issues as follows:

1. Has there been a change in circumstances that would justify a change in the spousal support order?
2. If so, is K.G. still entitled to spousal support?
3. If so, in what amount and for what duration?

Global Maximum

[16] Before proceeding, I want to define a phrase I will use later: global maximum. In the frequently cited case Fisher v. Fisher, 2008 ONCA 11, Lang J.A. said that the “global range” of support is a “litmus test of reasonableness”: Fisher, at paras. 112. [1] She also said that when a trial judge makes an order that departs from the guideline range, the judge should explain why the guidelines do not provide an appropriate result: Fisher, at para. 103. By “global range,” she meant the range between the minimum rate times the minimum duration under the guideline, and the maximum rate times the maximum duration. I will use the phrase “global maximum” in this same way.

Issue 1: Has there been a change in circumstances that would justify a change in the spousal support order?

[17] Section 17(4.1) of the Divorce Act applies. Under that section, before I can vary Conlan J.’s order, I must satisfy myself “that a change in the condition, means, needs or other circumstances of either former spouse has occurred,” and I must “take that change into consideration.”

[18] I have concluded that there has been a change in circumstances since Conlan J.’s June 22, 2015 order. I will address the parties’ submissions on this point under five headings.

1. The parties’ incomes increased

[19] Table 1 below sets out the parties’ incomes. The incomes up to and including 2015 come from Conlan J’s reasons at paras. 6, 7, 72 and 74. The figures starting in 2016, including the support calculations, come from K.G.’s SSAG calculations found in her written submissions and in the Respondent’s Document Brief. W.G. does not refute these figures in his reply submissions.

Table 1

Year	Applicant's income	Respondent's income
2010	108,706	54,000
2011	117,502	60,000
2012	130,834	59,000
2013	113,529	59,000
2014	98,791	See note
2015	102,000	0
2016	109,144	13,307
2017	125,549	13,308
2018	137,402	13,953
2019	136,099	14,035
2020	147,192	14,577
2021	150,405	30,914
2022	177,967	18,353
2023	221,719	23,311

Note: I could not find K.G.’s 2014 income but Conlan J.’s reasons indicate that she worked at the local hospice until September 2014, at which time she had knee replacement surgery, and nerve damage arose from that surgery.

[20] K.G.’s income has gone from zero to an amount that is significant. It is a change in her means and needs, and one that supports W.G.’s position.

[21] W.G. did not take the position that his increases in income are post-separation increases that should not be included in the analysis of whether there has been a change in circumstances. For the reasons I explain below, at para. [50], they should be included. W.G.’s income has more than doubled. His income increases are changes in circumstances, but they “do not militate in favour of terminating spousal support”: N.T. v P.T., 2022 ONSC 5263, at paras. 17, 136, 150, and 200. They support K.G.’s alternative claim to increased support.

[22] I have no doubt that if Conlan J. had some way of knowing what the parties’ future incomes would be, this “would likely have resulted in different terms.” [2] Put differently, the increases in income were not “taken into account” in the initial order. [3] I conclude that the income changes are enough to satisfy the s. 17(4.1) requirement of a “change in the … means” of both parties.

2. K.G.’s disability

[23] Conlan J. accepted that K.G. was disabled from working but found that she was improving gradually. W.G.’s written submissions emphasize K.G.’s current ability to earn an income as “the culminating material change” that should justify termination of support. In his written argument, W.G. points to the following evidence to support his position that K.G.’s disability has diminished:

• Between 2017 and 2020, K.G. applied for several full-time and part time jobs. (On this point, K.G. responds that the fact that she applied for work does not mean she had the capacity to do the work. I agree that this is not something that should be counted against her. Such arguments should not be accepted too quickly because doing so would discourage support recipients from trying to re-enter the workforce.)
• In 2020, K.G. applied to take a course to learn how to be a yoga instructor. (On this point, K.G. responded that she hoped to try to do it lightly.)
• In response to being asked what other jobs she had applied for since 2020, K.G. replied: “I’ve been with Mōdere since 2020.” Thereafter, she concentrated her efforts to make money through her online business.
• On January 18, 2022, K.G. advised her physician that: (i) she was “under review with CPP”; that “She is only able to make $6100/yr”; and (iii) that she made that amount of money in two months.
• K.G.’s CPP disability benefits were terminated as of March 2021 because of the extent of income that she reported receiving from her self-employment.
• K.G. earned a trip to the Dominican Republic through her online business in October of 2022. This was not reported as income.
• On January 30, 2023, K.G. advised her physician that she had “lost cpp because she made too much money – wants to try to reinstate CPP”. As a result of this appointment, the physician completed paperwork for CPP indicating that K.G. was no longer able to work as of November 10, 2022. K.G. acknowledged that she suggested this date to her doctor. (K.G. points out that her physician did support her disability, and her CPP disability benefits were reinstated effective December 2022. This implies that CPP has accepted that she has a prolonged and severe disability.)
• In K.G.’s financial statement sworn March 28, 2023, she declared her income from employment at $1,000 per month.
• K.G. incorporated a limited company for the purpose of carrying on her online business. For the corporate year ending June 30, 2023, K.G.’s company reported revenue of $44,232. It reported cost of sales at $22,578. While this seems to imply that her net revenue was $21,654, K.G. explained that under the business model, customers she signs up purchase directly from Mōdere. She does not purchase inventory to sell to her customers. That is, she does not have to buy product, except for her own use. However, as I understand her evidence, she does have to maintain a certain level of sales every month. The $22,578 includes this, and includes product she has purchased for her own use. This $22,578 figure was not adequately explained.
• In arriving at her declared income ($12,663) on her company’s 2023 Income Statement, K.G. also deducted operating expenses of $34,317 including: $7,805 for fuel, $2,966 in vehicle expenses, $6,000 in rent, $3,378 in telephone expenses, $1,756 in utilities, $1,694 in insurance, and office expenses of $5,365.
• In K.G.’s financial statement sworn March 27, 2024, she declared her income from employment at $250 per month.
• K.G. received rent that she did not disclose on her financial statements. However, this was for a relatively short period of time.

[24] The evidence includes a June 30, 2023 letter from K.G.’s physician addressed “To Whom It May Concern.” It says:

[K.G.] states that she cannot stand/sit for more than 1.5 hrs; cannot lift greater than 10 lbs; cannot lift above her head; cannot kneel/squat; cannot type for prolonged periods of time; she finds stairs difficult but can do them. Her latex allergy limits her work environment. [Emphasis added.]

At least in part, the physician is describing K.G.’s subjective concerns. The letter is supportive, but it does not state that K.G. is disabled from working.

[25] The most persuasive evidence showing that K.G.’s disability has changed is her income history, listed above in Table 1. She was not earning any income at the time of the 2015 trial. Conlan J. reasoned, in effect, that K.G. had every incentive to return to work and that she likely would if she could (see para. 30 of his reasons). That logic still applies.

[26] To be sure, K.G. has not returned to earning the level of income she earned in the last few years of the marriage, but she has made some gains towards self-sufficiency. She has done this in the face of her disability and her role as primary caregiver to the children. K.G. submits that her income has not been significant or reliable, and this is, to some extent, born out by her income history; however, she is clearly capable of earning a significant income.

[27] I conclude that K.G.’s health continued to improve after 2015, and she is able to earn an income. However, it remains the case that she is not self-sufficient. Unfortunately, determining the amount she is capable of earning is difficult. Even assessing her net income is not straightforward. For one thing, as indicated, she did not adequately explain her cost of sales. For completeness, I believe I should make an estimate of K.G.’s current income. The estimate is necessarily very uncertain. I note that she had the obligation to establish her income. Based on the uncertainty of the costs of sales, the nature of the claimed expenses, the onus, the potential rent income, and all the evidence pointed to by W.G., I assess K.G.’s income and her current income earning capacity for support purposes at $35,000.

[28] K.G. was disabled and had zero income earning capacity at the time of the 2015 trial. Although Conlan J. found that K.G.’s health was “improving, gradually,” he said, at para. 91, “This is not a case, however, where it can be reasonably anticipated that the present state of uncertainty will be resolved any time soon.” It must again be said that if Conlan J. had some way of knowing when or if K.G. would improve enough to earn a meaningful income, this “would likely have resulted in different terms.” Therefore, the changes are enough to satisfy the s. 17(4.1) requirement of a “change in the condition” of K.G.

3. Termination of child support

[29] The parties resolved child support. The last child support payment was in 2021. As I indicated above, the parties did not adjust spousal support from the with child support formula to the without child support formula. The termination of child support is a change in circumstances: Divorce Act, s. 15.3(3); Goodkey v. Goodkey, 2015 ABCA 394, at para. 21. This change is enough to satisfy the s. 17(4.1) requirement of a “change in the … circumstances” of the parties. Again, however, this is not a change that militates in favour of W.G.’s claim to terminate support. Rather, it was a change that meant he had more capacity to pay support: N.T., at paras. 139 and 200.

4. K.G. began receiving CPP Disability Benefits

[30] W.G. acknowledges that the parties anticipated the possibility that K.G. would qualify for CPP disability benefits, and Conlan J., on consent, dealt with what should occur in the event she did. K.G.’s receipt of CPP disability benefits is not a change of the sort contemplated by s. 17(4.1).

5. Passage of time

[31] W.G. has urged me to find that the passage of time amounts to a change of circumstances. Several appeal-level decisions have held that the mere passage of time cannot amount to a change in circumstances. (For a recent example and a good discussion on this issue, see: Townsend v. Townsend, 2023 SKCA 91.) However, this issue is nuanced and not without controversy. I will mention some of the commentary about this issue below when I address the issue of entitlement, but for purposes of assessing whether there has been a change in circumstances, it is not necessary to wade into this question. For current purposes, my conclusion that there has been a change in circumstances is not grounded in the passage of time.

Issue 2: is K.G. still entitled to spousal support?

The Authors of the SSAG Prefer the No Exceptions Approach

[32] In 2008, the authors of the SSAG, Professors Rogerson and Thompson, noted that cases involving disability are “hard” cases because “need” looms large. “Disability will be an important factor in locating the amount and duration within the ranges in these cases”: SSAG, s. 12.4. They said:

Faced with a recipient with a long-term disability, Canadian courts have responded with one of three approaches, here stated in declining order of frequency.

(i) Lower Amount, Extend Duration: most courts will extend duration, even to be “indefinite”, while keeping the amount within the range, at or near the low end;

(ii) No Exception: a slightly smaller number of courts will fix an amount in the range, often towards the upper end, and use the maximum duration, even though that means support will end while need continues;

(iii) Increase Amount, Extend Duration: a much smaller group of courts will respond to the greater need in disability cases by increasing amount and extending duration.

[33] In the SSAG Revised User’s Guide, 2016, Professors Rogerson and Thompson noted that courts continued to struggle with cases involving the disability of a spouse. They said, at s. 12(d), p. 62:

The law in these cases is particularly uncertain and confused, as the courts have not yet been able to work out a consistent approach. …

Cases involving permanent illness or disability in short and medium length marriages are “hard” cases and they are often litigated because they are difficult to settle. We thus have many reported decisions, but even with some appellate court rulings on the issue no clear approach has developed. … to a large degree the cases involve competing ideas about entitlement that are still being worked out in the courts.

[34] These 2016 remarks continue to be applicable. In the same document, at p. 64, Rogerson and Thompson also said:

Until appellate courts provide further guidance, these divergent approaches towards illness and disability will continue. As for us, we stated in the SSAG, “Our preference would be the … ‘no exception’ approach, which seems more consistent with the modern limits of spousal support as a remedy.” We will have to await further developments in the law. [Emphasis added.]

[35] As I understand it, the authors of the SSAG believe that the ranges of support quantum and duration within the SSAG already address the difficult value judgments involved in these cases. For them, except for in long-term relationships to which the rule of 65 or the 20-year rule apply, a limit to the duration of support is appropriate – even in cases involving a disability of the support recipient. As I understand it, they believe that high end support for maximum duration will generally provide an appropriate amount of support and will be “consistent with the modern limits of spousal support as a remedy.”

Courts Are Mixed on Whether to Accept the No Exceptions Approach

[36] That view has not been universally accepted by judges. Indeed, the jurisprudence reveals a very mixed response to that view. The law remains “uncertain and confused.” I will not attempt to write a full analysis of the jurisprudence. However, to be responsive to the parties’ arguments, I will examine a few of the cases.

[37] W.G. relies heavily on B.D.P. v. D.W.P., 2019 ONSC 949. He says it is strikingly similar to the circumstances here. The age of the support recipient, duration of the relationship, and age of the children were similar. At the time of the application to vary support, the support payor had paid support for longer than the duration of the marriage. However, both Mitrow J. (the judge who ordered support in 2012) and Mitchell J. (the judge who heard the application to vary support in 2019) concluded that the support recipient was able to work part time. Thus, unlike here, there was no change in the condition of the support recipient. The only material change in circumstances found by Mitchell J. was the passage of time and the quantum of spousal support paid since the date of separation. She terminated support. She felt that the support recipient had been fully compensated for her contributions to the household. The evidence did not establish that the support recipient’s ongoing need was connected to the marriage or its breakdown. As the support payor had paid support for longer than the marriage, the responsibility for the support recipient’s support should shift to the state.

[38] In W.G.’s submission, his position is stronger than the position of the support payor in B.D.P. because K.G.’s condition has improved.

[39] In Marthinsen v Marthinsen, 2020 BCSC 619, at para. 48, Weatherill J. cited B.D.P. for the proposition that “The end of spousal support entitlement, as reflected in the SSAG, is a material change that may give rise to a variation order even though there may still be, and usually is, an income disparity between the spouses.” Weatherill J. accepted the “no exceptions” approach favoured by the authors of the SSAG and said that “this appears to be the dominant approach in British Columbia,” citing Powell v. Levesque, 2014 BCCA 33.

[40] In Powell, the British Columbia Court of Appeal terminated spousal support for a recipient who was disabled and receiving CPP disability. After observing that the appellant had paid support for 12 years, even though the SSAG range for duration was 4 to 8 years, Smith J.A. said she was “of the opinion that the appellant’s obligation to pay spousal support has been discharged and the respondent’s entitlement to spousal support is at an end.”

[41] Other cases reject the “no exceptions” approach. In N.T., at para. 200, Finlayson J. said he did not accept that the “no exception approach” is the law when it comes to illness and disability. He pointed to the outcome of L.M.P. He relied on McGuire v. Bator, 2022 ONCA 431. He said that although McGuire was not a motion to vary, it was noteworthy because the Ontario Court of Appeal “treat[ed] illness and disability as an exception to the SSAGs, despite the controversy about this in the case law.” In McGuire, Benotto J.A. had written, at para. 33, that “[t]he SSAGs are an excellent advisory guideline for typical cases. They assist in achieving consistency and predictability. They are not a substitute for judicial analysis, particularly in exceptional cases.” This statement is incompatible with the “no exceptions” approach.

[42] In Townsend, the Saskatchewan Court of Appeal criticized B.D.P. At para. 35, McCreary J.A. accepted that, “even though the duration and quantum of support paid to date exceeded the range set out under the SSAG, this was not a material change in circumstances.” The ratio of Townsend is that the mere passage of time is not a material change in circumstances, even when, due to the passage of time, the support payments total an amount exceeding global maximum.

[43] In the very recent British Columbia Court of Appeal case of Zandbergen v. Craig, 2024 BCCA 278, the support payor had paid support for a period of time equal to the duration of the parties’ relationship. The judge who heard a variation application found that there was no change in circumstances and dismissed the application. The British Columbia Court of Appeal followed Townsend and dismissed an appeal. Zandbergen now calls into question the suggestion that the “no exceptions” approach is favoured in British Columbia.

W.G. Has Not Paid More Than the Global Maximum

[44] W.G. says that he has paid “maximum support” (i.e., support at the high end) “for a period exceeding the maximum duration.” I do not agree because the support he has been paying is based on his 2015 income, but his income has increased substantially. The global maximum should be assessed based on all the available information. In this case, it should be based on the parties’ actual incomes.

[45] An example of a case where the global maximum was considered is LaRoche v. Lynn, 2019 ONSC 6602. At paras. 66 to 67, Ellies R.S.J. determined that the payor had likely paid more than the global maximum. At para. 94, Ellies R.S.J. held that, “regardless of overall quantum,” the payor had been paying support “much longer than the Guidelines would suggest.” He terminated support. One factor that may have influenced the result was that the support recipient did not benefit from the payments, but rather the money was directed towards reimbursing the Ministry of Community and Social Services for ODSP.

[46] Here, Ms. Samli has calculated the global maximum using the parties’ reported incomes since 2016. Table 2 shows the results. There is some unfairness in her calculation because it uses K.G.’s reported income. K.G. is self-employed and can deduct certain expenses, so her income for support purposes would be higher, and the figure for “SSAG-high” would be lower. The exercise is therefore flawed, but it is still helpful.

Table 2

Year	Applicant's income	Respondent's income	SSAG-high	Annual amount payable using SSAG-high	Amount actually paid ($1,891 x 12)
2015	102,000	0	1,891
2016	109,144	13,307	1,450	17,400	22,692
2017	125,549	13,308	2,406	28,872	22,692
2018	137,402	13,953	2,730	32,760	22,692
2019	136,099	14,035	2,691	32,292	22,692
2020	147,192	14,577	3,502	42,024	22,692
2021	150,405	30,914	3,472	41,664	22,692
2022	177,967	18,353	3,591	43,092	22,692
2023*	221,719	23,311	4,464	44,640	18,910

Totals: $282,744 (Annual amount payable using SSAG-high) | $177,754 (Amount actually paid)

*For 2023, this calculation uses 10 months, since the SSAG sets the maximum duration or spousal support at 13.5 years. As the parties separated in April 2010, the maximum duration would end in October 2023.

[47] Calculating support using the parties’ reported incomes reveals that, since 2016, W.G. has paid less than the global maximum. This likely remains true, even accounting for unfairness in K.G.’s income determination.

[48] For completeness, I have calculated the range of support that would be payable under the parties’ current incomes ($291,719 for him and $35,000 for her (see my determination above)). This reveals low-end support of $2,918, midpoint support of $3,404, and high-end support of $3,890. Of course, as the maximum duration of support has been exceeded, these figures are disconnected from the SSAG and have no real utility at this point of this case.

[49] In her written submissions, Ms. Samli stated that, in the last two years alone, W.G. has paid over $40,000 less than the maximums. I want to note that this is not accurate because she used 12 months for 2023, when only 10 months was payable under the SSAG maximum range.

[50] I have considered whether it is appropriate to use the post-separation increases in W.G.’s income in this analysis. It is. While post-separation increases in income do not automatically give rise to an increase in support, in this case Conlan J. found, at para. 67, that K.G.’s “sacrifices … enabled W.G. to enhance his earning potential, pursue his economic goals and thrive in his career.” K.G. worked only part-time through the marriage. She was the primary childcare provider. Conlan J. found that K.G.’s entitlement to support included a compensatory basis. W.G.’s employer has not changed since 2015. The factors listed by Chappel J. in Thompson v. Thompson, 2013 ONSC 5500, at para.103, support the conclusion that the increases should be taken into account.

[51] There is another important factor in this case, and that is the substantial increase in W.G.’s income. W.G.’s income has increased far beyond mere increases based on inflation or the cost of living. As noted above, it has more than doubled. His net disposable income already overwhelms K.G.’s while she faces the termination of spousal support. Continued CPP disability benefits should not be considered a certainty. Unlike in B.D.P., I cannot conclude that K.G. has been fully compensated for her contributions. Again, Conlan J. found that K.G.’s sacrifices enabled W.G. to enhance his earning potential and thrive in his career. The increase in income gives rise to a particularly compelling compensatory claim, and there is no doubt that need is ongoing.

[52] I conclude that, in this case, K.G. remains entitled to spousal support. However, as I will explain, it is appropriate to limit that support.

Issue 3: What amount and duration of support is appropriate?

[53] As the threshold for variation has been established, I must now determine what, if any, variation order is to be made in light of the changed circumstances: L.M.P., at para. 47.

Objectives of Spousal Support

[54] Under s. 17(7) of the Divorce Act, a variation of 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.

[55] I am to apply both s. 17(4.1) and (7). My order should: (a) reflect the s. 17(7) objectives; (b) take into account the changed circumstances; and (c) consider the original order. “In short, the court is to limit itself to making the variation that is appropriate in light of the change. This is not to be approached as if it were an initial application”: Johnston v. Johnston, 2019 ONSC 5946, at para. 127, citing L.M.P., at para. 50.

[56] I am to apply the SSAG. A departure from the SSAG must be justified: Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 81 and 105-106; McKinnon v. McKinnon, 2018 ONCA 596, at para. 24; Fisher, at para. 103. I must be mindful of the global maximum and the guidance from Fisher that the global range is a “litmus test” for reasonableness. The spousal support should reflect the fact that W.G. has paid support for a long time, considering the length of the marriage.

[57] In this case, an extension of the duration of support, but at a reduced amount (although an amount that will exceed the global maximum) is justified by the statutory objectives of spousal support and K.G.’s continued partial disability. Overall, the statutory objectives of spousal support still strongly point towards continuing spousal support. The economic advantages to W.G. during the marriage, and the economic disadvantages to K.G. caused by the breakdown of the marriage, remain apparent. W.G. has not paid the global maximum, so he is not able to advance the argument that was successful in B.D.P., LaRoche and other cases, but not successful in N.T. and Townsend. With that said, I accept that this is a case where it is appropriate to exceed the global maximum.

[58] Promoting self-sufficiency is not the overriding objective here. K.G. has advanced to some degree towards self-sufficiency, but she has not attained it. Given her age and the time she has spent out of nursing, as well as the new career path she has chosen, I would not expect her to ever earn the amount she might now be earning as a nurse, if she had stayed in that profession. “Self-sufficiency … is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation”: Fisher, at para. 53. In longer term relationships, “the parties’ merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained”: Fisher, at para. 55. “[A]ge is a strong indicator of an individual's ability to become self-sufficient”: Fisher, at para. 107.

[59] K.G. continues to be in a situation where she has been disadvantaged by the marriage breakdown, but the case she has advanced for continuing disability is only moderately persuasive. The majority of the evidence that supports disability is her subjective evidence. It is appropriate to step the support down soon and put a time limit on it.

[60] I must also take into account the possibility that K.G. will lose her entitlement to CPP disability benefits.

[61] I have weighed all these factors in developing the spousal support order set out below. Again, I recognize that this award will exceed the global maximum but, in this case, this is justified by:

a. K.G.’s lengthy disability, which manifested as a total disability in 2015 and which is ongoing as a partial disability; and b. the large increase in W.G.’s income, which increase is causally connected to the marriage.

Disposition

[62] This court orders:

Paragraph 2 of the order of Conlan J. dated June 22, 2015 is varied such that W.G. shall pay spousal support:

a. Until December 31, 2024 at $1,891 per month. b. From January 1, 2025 to December 31, 2030, $1,500 per month. c. From January 1, 2031 to December 31, 2035, $750 per month.

Costs

[63] If the parties cannot resolve the question of costs, the parties may address costs through written submissions. I am not sure what makes the most sense for the sequence of submissions, so I will direct that both parties should file submissions of up to three double-spaced pages plus attachments by November 1, 2024 and (if required) a reply of up to one page by November 8, 2024.

Chown J.

Released: October 15, 2024

Corrections: A citation in para. 31 has been corrected. The release date of the original decision has been corrected. The corrections have been integrated into the text.

Corrected decision released: October 30, 2024

[1] Fisher was decided before the SSAG was issued but referred to the 2005 draft SSAG. It was not a variation case but an appeal of a trial decision about spousal support. However, it remains instructive.

[2] I am quoting here from Willick v. Willick, [1994] 3 S.C.R. 670, at p. 687. This was adopted as the appropriate test in L.M.P., at para. 33.

[3] I am quoting here from the SSAG Revised User’s Guide, 2016, s. 13(a), p. 73.