Court File and Parties

COURT FILE NO.: FS-18-00006683-0000 DATE: 20241029 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gilbert Eden Roberts, Applicant AND: Carol Elizabeth Roberts, Respondent

BEFORE: Shin Doi J.

COUNSEL: Nima Amiri, for the Applicant Respondent – Self-Represented

HEARD: September 19, 2024

Endorsement

[1] The Applicant Father brings this motion to change the spousal support ordered by Justice Gray on July 30, 2012 and Justice Donohue on May 23, 2014, and for an order to terminate his spousal support obligation to the Respondent Mother immediately. The Mother opposes the motion and seeks adjustment of spousal support for cost of living or increase in actual income in accordance with the final orders of Justice Gray and Justice Donohue. The Mother also seeks stepped-down spousal support after the Father’s retirement. The Mother further seeks an order that the Father maintains the life insurance policy pursuant to the final order of Justice Gray.

[2] At the outset of the hearing, the Father agreed to pay the Mother annual increases in spousal support in accordance with the cost of living increases or the increases in the Father’s annual salary, whichever is less, pursuant to the Orders of Justice Gray and Justice Donohue. The Father also agreed that if the court did not terminate spousal support immediately, the Father would pay the Mother monthly spousal support until November 1, 2025 when he retires at the age of 67.

[3] Accordingly, I order the Father to pay the Mother the annual increases in spousal support in accordance with the cost of living increases or the increases in the Father’s annual salary, whichever is less, commencing as of June 1, 2014. I further order the Father to pay monthly spousal support until November 1, 2025 when he retires (or the first of the month when he actually retires). I do not grant the Father’s motion for termination of spousal support immediately. I reduce the Father’s obligation to pay spousal support to $0 upon his retirement. The Mother has means. The Mother recently received an inheritance in the approximate amount of $100,000.00, has assets in the approximate sum of $400,000.00, is eligible to start receiving the Canada Pension Plan and may make withdrawals from her RRSP. I order that the Father maintains the life insurance policy which secured the spousal support until the spousal support is reduced to $0.

I. BACKGROUND FACTS

[4] The parties were married on October 8, 1988 and separated on December 31, 2007. The Father was born on November 14, 1958 and is turning 66 years old, and the Mother was born on February 26, 1964 and is 60 years old.

[5] The parties have one child who was born on May 24, 1991 and is an independent adult.

[6] The parties participated in arbitration. On June 22, 2011, Karen A. Thompson made an arbitration award. Ms. Thompson ordered $3,800 per month in spousal support on an estimated income of $123,000 of the Father and $200 income of the Mother. Support was ordered to be payable for 9.5 years and subject to review as of July 2016.

[7] On July 30, 2012, Justice Gray incorporated the arbitral award in his order and ordered in subsections 2(c) and (d),

(c) Spousal support may be varied if there is a material change in circumstances. In any event, there shall be a review of spousal support on or after July 1, 2016.

(d) Spousal support shall be increased annually on July 1st each year, commencing July 1st, 2012 by the cost of living for all items [in] Canada, or the amount of the Husband’s increase in salary, whichever is less.

[8] Section 4 (a) of the order provides,

The Husband shall maintain a policy of life insurance, naming the Wife as the irrevocable beneficiary and Trustee for Amber to age 25, in the amount of $250,000.00 for so long as spousal support is payable by the Husband to the Wife.

[9] In January 2013, the Father brought a motion to vary the quantum of spousal support. The motion was suspended from January 4, 2013 for failure to provide disclosure which was subsequently provided in May 2013. The Father had been terminated from his employment with Lakeside Logistics Inc. on January 6, 2012 and then briefly employed by Wilson Green Logistics from May 18, 2012 until October 17, 2012. The Father remained unemployed until August 26, 2013 when he found a new job with Mighty Expedite, earning a base salary of $65,000 with 10% commission on sales over $5,400/month.

[10] Justice Donohue found that the Father’s income for support purposes since January 2012 was $65,000 per annum and adjusted support to the high end to $2,058 per month. Justice Donohue also ordered the Father to pay the Mother spousal support of $3,800 per month for the five month period from January 2013 to May 2013, inclusive. Justice Donohue then ordered at para. 57 that the Mother’s plans for self-sufficiency be delayed and at para. 58 that the Review Date for Spousal Support be extended from July 2016 to July 2018.

[11] Justice Donohue extended the review date to July 2018 because of the delay in the Father’s disclosure and financial circumstances.

[12] In 2018, the Father brought a motion to change. The parties attended a case conference in June 2019, where an order was made for financial disclosure. The parties attended a settlement conference in 2019. Nothing happened in the court file until February 7, 2023. Justice Shore ordered further disclosure and next procedural steps.

[13] The Father has continued to pay spousal support in the amount of $2,058 per month, based on the Father’s 2012 income of $65,000 per annum.

[14] The Father plans to retire in November 2025 when he will be 67 years old.

[15] The Mother has been unemployed since July 2009. The Mother had returned to college in January 2012 but withdrew from the program for medical reasons. The Mother has a well-documented medical disability.

[16] The Mother has the approximate amount of $400,000.00 in assets including the amount of $393,000.00 in deposit, term and retirement accounts as of March 6, 2023. In September 2024, the Mother received an inheritance cheque for the approximate amount of $100,000.00.

II. ANALYSIS

Should the spousal support payable by the Father be increased as of June 1, 2014?

[17] Spousal support should be retroactively increased from June 1, 2014 pursuant to the Orders of Justice Gray and Donohue.

[18] Justice Gray ordered increases of the spousal support as of July 1, 2012 by the cost of living for all items in Canada, or the amount of the Father’s increase in salary, whichever is less. On May 25, 2014, Justice Donohue varied the quantum of spousal support to the sum of $2,058 from January 1, 2012 based on the Father’s 2012 annual income of $65,000. Justice Donohue ordered that adjustment retroactively, but not for the five months in 2013 when the Father’s application was stayed for lack of disclosure. Justice Donohue then extended the time period for the Mother’s self-sufficiency from July 2016 to July 2018.

[19] The Father’s total annual income has increased as follows:

2012: $60,000 2013: $62,410 2014: $94,847 2015: $92,086 2016: $74,256 2017: $74,568 2018: $72,427 2019: $77,839 2020: $73,614 2021: $91,667 2022: $122,808 2023: $141,680

[20] Both parties generally use the cost of living increases in their calculations of retroactive spousal support payable by the Father. The Father submits that there was no increase in income in 2015, 2016, 2017, and 2018. I find that there was a marginal increase in income in 2017.

[21] The Father submits that he should pay the sum of $27,077 to the Mother from June 1, 2014 based on the increases in the cost of living or increases in income, whichever is less. The Father uses the Bank of Canada Consumer Price Index rate. The Mother argues that the Father should pay retroactive increases in spousal support based on the increases in the cost of living as of 2012. The Mother claims that the Father should pay the sum of $33,675 based on the increases in the cost of living from 2012 to December 2023.

[22] Justice Donohue already adjusted the spousal support payable from January 2012 based on the Father’s income, in her final order dated May 23, 2014. Justice Donohue also ordered spousal support of $3,800 per month for the five month period January to May 2013. Accordingly, the Mother is entitled to an increase in spousal support from June 1, 2014 in accordance with the increases in the Father’s income or increases in the cost of living, whichever is less, pursuant to the court orders. I agree with the Mother that the amount payable for the increases is also subject to applicable interest. The parties may request a case conference with me to review the calculations if they are not able to agree.

Should the spousal support payable by the Father to the Mother terminate?

[23] Spousal support should not terminate. Spousal support should continue until the date of retirement of the Father and then be reduced to $0 upon his retirement. There has been a reasonable period of time to promote economic self-sufficiency for the Mother, the retirement of the Father is a material change in circumstances, and the Mother has access to monies and assets.

[24] A review of spousal support was always contemplated by the court. The Orders of Justice Gray and Donohue contemplated a review of spousal support or variation in the event of a change in material circumstances. The review was to occur in 2018 in accordance with the timeframe for review set out in the Order of Justice Donohue. The review is now happening six years later. The Mother has benefitted from the continuation of spousal support since 2018 without a review.

[25] Section 17 of the Divorce Act permits a court to vary a support order, sets out the factors allowing variation (s. 17(4.1)) and stipulates the objectives of a variation (s. 17(7) (L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775)).

17. (1) A court of competent jurisdiction may make an order varying, rescinding, or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(4.1) [Factors for support order] 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.

(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.

[26] Spousal support has been paid since 2012 which has recognized the economic disadvantage to the Mother arising from the marriage breakdown, relieved economic hardship, and provided time for the Mother to become self-sufficient. Unfortunately, the Mother has a medical disability and health challenges which have prevented her from working and limited her economic self-sufficiency. That limitation warrants the continuation of spousal support until the Father’s retirement rather than termination.

[27] The Father’s retirement at age 67 in November 2025 is reasonable. The Mother argues that in Carey v. Carey, 2021 BCSC 1537 the court found that “an intention to retire does not equate to a material change” and a material change must first have occurred before any changes to spousal support could be made. The Mother further states that the court followed the “well-established principle that a decision to vary or terminate support must not be based on events that may or may not occur.” The Carey decision relies on Schulstad v. Schulstad, 2017 ONCA 95 which held at para. 21,

… prematurity is an issue impacting the threshold question of whether or not there has been a material change in circumstances. It is well-established that any decision to vary must not be made in accordance with events which may or may not occur: Messier v. Delage, [1983] 2 S.C.R. 401, at p. 416. An application to vary will be premature if based on speculative or uncertain changes in circumstances: Dufresne v. Dufresne, 2009 ONCA 682.

[28] In this case, I do not find there is prematurity because the Father has already informed his employer. The Father is eligible to retire now at age 65 (turning 66 years old) but is waiting until next year to retire. The issue of retirement is not speculative. In my view, the Father has met the burden upon him of proving a material change in circumstances upon retirement.

[29] Spousal support is being continued in the full amount until the date of retirement given the length of the marriage, economic hardship, and limited economic self-sufficiency of the Mother. Upon retirement, the Father’s obligation to pay spousal support shall be reduced to $0.

[30] The Mother argues that the court must consider reducing the payor’s obligation rather than terminating it (Schulstad v. Schulstad, 2017 ONCA 95). The Mother argues that there should be stepped down spousal support for five more years until she reaches the age of 65 when she would have retired.

[31] Continuation of spousal support or further spousal support in a stepped down amount after the Father’s retirement is not appropriate because the Mother has means. She recently received a large inheritance and has assets. She can also claim benefits under the Canada Pension Plan. The Mother will also receive spousal support arrears consisting of increases in the monthly spousal support payable since June 1, 2014, based on the increases in the cost of living or increases in the Father’s income, whichever is less, that the Father failed to pay over the years.

Should the Life Insurance policy obligations be reduced or terminated?

[32] Justice Gray ordered that the Husband shall maintain a policy of life insurance, naming the Wife as the irrevocable beneficiary and Trustee for Amber to age 25, in the amount of $250,000.00 for so long as spousal support is payable by the Husband to the Wife.

[33] Since spousal support is being reduced to $0 upon his retirement on November 1, 2025, the Husband shall maintain the life insurance policy until his retirement.

Costs

[34] If the parties are unable to agree on costs, the parties may make written submissions of up to five pages in length, double spaced, within 30 days.

Shin Doi, J. Released: October 29, 2024