Starra v. Starra, 2024 ONSC 6613

COURT FILE NO.: 09-80-1

DATE: 20241206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ronald Starra

Applicant

– and –

Carole Starra

Respondent

Karen Pelletier, for the Applicant Responding party

Joseph Hamon, for the Respondent Moving Party

HEARD: September 20, 2024, and December 2, 2024

RULING ON MOTION TO CHANGE

Justice Hélène C. Desormeau

Overview

[1] Following the demise of their 25-year marriage in 2007, the parties resolved the spousal support issue mid-trial in 2013. Justice de Sousa granted a final order (“Final Order”) dated February 1, 2013, whereby the Husband would pay the Wife spousal support of $15,500.00 per month, as well as an unqualified payment of $100,000.00. The Order included a mutual restraining order prohibiting communication or approaching the other or being within 200 metres of their residences unless there was consent in writing through the Wife’s lawyer. Additionally, the Order provided for the Husband to maintain $1 million of irrevocable life insurance on his life in favour of the Wife. The Order was to be enforced through the FRO.

[2] The Husband, a doctor, has recently given notice of his intention to retire from his place of employment, and is seeking to terminate spousal support. Though he initially commenced the motion to terminate in Quebec, that was the improper jurisdiction.

[3] In the intervening time, the Wife commenced a Motion to Change to readdress and readjust spousal support from January 1, 2014, onward due to her continued declining health.

[4] This motion was argued in both official languages but given that the Moving Party to the Motion to Change was the Wife, and she pled in English, this Ruling is being released in English. The court will provide a translation upon request of either party.

[5] Importantly, I did not consider inadmissible hearsay evidence either party attempted to rely upon, including for instance letters appended to affidavits not in compliance with the Family Law Rules or the rules of evidence.

Background facts

[6] The parties were married from June 19, 1982. They separated on October 22, 2007 and divorced on May 27, 2009.

[7] Together, the parties had 3 children, born in 1985, 1986 and 1989. The children are now fully independent adults. At separation, the youngest child was 17 years old, the oldest 21 years old. At the time the Final Order was granted, the youngest was 23 years old.

[8] The Wife was qualified as a bilingual elementary school teacher and worked one year early in their marriage. Following the birth of the children, she chose to educate their children from home. In 2003, when she stopped teaching the children, she decided not to return to work.

[9] It was not disputed that the Wife supported the Husband’s education and training by making these career sacrifices.

[10] The Husband however argued that from 2003 until 2008 the Wife could work as she was taking care of the billing for his medical practice for which she was remunerated.

[11] It was advanced by the Wife that she was unable to return to work due to physiological and psychological reasons. In support of her argument, she provided letters produced for the 2013 trial from her family physician since the early 1990’s, Dr. Lise Beaubien, accompanied with her Acknowledgement of Expert’s Duty. In 2012, Dr. Beaubien concluded that the Wife’s symptoms of anxiety and depression were related to chronic PTSD, a consequence of chronic physical and emotional abuse. At that time, Dr. Beaubien felt the Wife would never be able to sustain gainful employment due to her ongoing issues.

[12] In 2011, Dr. Bakish of the Ottawa Psychopharmacology Clinic completed an IME at the Husband’s request. Attached to his report was the Acknowledgement of Expert’s Duty. The report noted that the Wife’s father psychologically abused her, and that she may suffer from chronic PTSD due to the childhood abuse. It was determined that the Wife suffers from a major depressive disorder, anxious type which is complicated by a chronic post traumatic stress disorder and has medication hypersensitivity. The Doctor’s report also stated there was a very high probability that the abuse experienced by the Wife prior to the date of marriage may have made it much easier to develop or worsen PTSD with a new stressor. Further, it indicted that as the Wife is hyper aroused, she seemed to be extremely sensitive to the Husband’s alleged behaviour and believed there to be an unquantifiable association. Dr. Bakish indicated that the Wife was at that time unable to work.

[13] Also, pre-dating the original trial dates, Dr. Black, the Wife’s obstetrician, provided a report as to the Wife’s health at the beginning of the marriage by way of letter dated July 29, 2011, along with an Acknowledgement of Expert’s Duty. His evidence can best be summarized as indicating the Wife was of excellent health and she has no other significant medical issues. While the Wife argued this report went unchallenged, it is important to note that the trial was resolved prior to completion. Further, Dr. Black made no specific mention as to the Wife’s mental health, which as an obstetrician, would not have been within his field of expertise.

[14] The Wife maintained that the physical abuse by her father was “not physical abuse such as [she] suffered from [the Husband].” This was a contentious issue.

[15] In 2013, mid-trial, spousal support was resolved on consent of both parties. Both parties agree that the support amount fixed was based on mid-range support and the parties’ 2011 income. There is no comment in the Final Order by Justice de Sousa as to the basis for spousal support entitlement, quantum, or range.

Language Rights

[16] The Wife contended that the Husband “forced” the matter to be heard bilingually, when in the past he proceeded in English, therefore he was “unnecessarily prolonging and complicating this case and trying to hurt [her] once again. It is [her] position that [the Husband] ought to be held responsible for time and costs thrown away regardless of the cause in this continuing of his effort to control and abuse me.”

[17] The Wife attributed the Husband’s attempt to terminate spousal support in Quebec was a calculated move as “he knew I was ill and hope [sic] I would simply not respond”, and as an attempt to deprive her of her legal representation given her lawyer does not speak French.

[18] The Husband articulated his comfort level was greater by pleading his case in French and he commenced the matter in the province in which he resides.

[19] I am not persuaded there was an ulterior motive for the Husband initially commencing the matter in Quebec. Further, pursuant to s.126 of the Courts of Justice Act, the Husband’s language rights are protected by the court. Bilingual proceedings are his right. Therefore, the Wife’s submissions on this issue are rejected.

Participant Expert versus Litigation Expert

[20] In the context of this Motion to Change, both parties relied on evidence from several experts. Most, if not all, at some point in the litigation, complied with the requirement of filing an Acknowledgment of Experts Duty.

[21] The evidence of Dr. Garnham was tendered to be both based on her being a participant expert and a litigation expert. There is a distinction that needs to be drawn about these two types of experts. For reasons set out below, I find that Dr. Garnham’s opinion evidence went beyond the scope of her expertise, and thus evidence outside of her expertise is afforded no weight.

[22] As set out in Westerhof v. Gee Estate, participant experts are defined as:

...a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation [who] may give opinion evidence for the truth of its contents without complying with rule 53.03 (concerning the provision and content of an expert report) where:

the opinion to be given is based on the witness's observation of or participation in the events at issue; and

the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events. See Westerhof v. Gee Estate, 2015 ONCA 206 (Ont. C.A.), at para. 60.

[23] Thus, “participant experts” may give opinion evidence without complying with Rule 53.03 of the Rules of Civil Procedure (and thus Rule 20.1 of the Family Law Rules).

[24] In essence, the distinction between participant and litigation experts turns on the words “engaged by or on behalf of a party.” Participant experts testify to opinions formed during their involvement in a matter. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation. As such, a party does not “engage” an expert “to provide [opinion] evidence in relation to a proceeding” simply by calling the expert to testify about an opinion the expert has already formed.

[25] Similarly, the court noted that if a participant expert also proffers opinion evidence extending beyond the limits described above, they must comply with rule 53.03 RCP [or Rule 20.1 FLR] with respect to the portion of their opinions extending beyond those limits.

[26] Rules 20.1(2) and (3) Family Law Rules specifies that it is the duty of every expert: to:

(2) (a) provide opinion evidence that is fair, objective and non-partisan;

(b) provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) provide such additional assistance as the court may reasonably require to determine a matter in issue.

(3) In the case of a litigation expert, the duty in subrule (2) prevails over any obligation owed by the expert to a party. O. Reg. 250/19, s. 8.

[27] Rule 20.2(2) FLR requires: A party who wishes to call a litigation expert as a witness at trial shall, at least six days before the settlement conference, serve on all other parties and file a report signed by the expert and containing, at a minimum, the following:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise.

3. The nature of the opinion being sought and each issue in the case to which the opinion relates.

4. The instructions provided to the expert in relation to the case.

5. The expert’s opinion on each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research or test conducted by or for the expert, or of any independent observations made by the expert, that led him or her to form the opinion, and, for each test,

A. an explanation of the scientific principles underlying the test and of the meaning of the test results, and

B. a description of any substantial influence a person’s gender, socio-economic status, culture or race had or may have had on the test results or on the expert’s assessment of the test results, and

iii. a description and explanation of every document or other source of information directly relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 20.2) signed by the expert. O. Reg. 250/19, s. 8.

[28] Rule 20.2(14) stipulates that a party who wishes to call a participant expert as a witness at trial shall,

(a) at least six days before the settlement conference,

(i) serve notice of the fact on all other parties, and

(ii) if the party wishes to submit any written opinion prepared by the expert as evidence in the trial, serve the written opinion on all other parties and file it; and

(b) serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide. O. Reg. 250/19, s. 8.

[29] In Westerhof v. Gee Estate, a treating physician was permitted to testify about opinions that arose directly from his treatment of his patient, the plaintiff in the case. The treating physician was not required to comply with Rule 53.03, and his opinion evidence was admitted for the truth of its contents. This was because he formed his opinions relevant to the matters at issue while participating in the events as part of the ordinary exercise of his expertise. Accordingly, rather than being a stranger to the underlying events who gave an opinion based on a review of documents or statements from others concerning what had taken place, the treating physician formed his opinion based on direct knowledge of the underlying facts. He was therefore a participant witness. See Westerhof v. Gee Estate, supra, at para. 70.

[30] The case law informs me that I must first determine if the participant expert’s opinion falls within the scope of what is allowed. Specifically, whether their opinion evidence is based upon their observation of or participation in the events at issue; and if they formed that opinion as “part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.” Then, looking at the court’s gatekeeping function, the court may exclude evidence as inadmissible if it does not meet the criteria applicable to all expert evidence (Mohan factors):

i. The evidence is relevant to some issue in the case;

ii. The evidence is necessary to assist the trier of fact;

iii. The evidence does not contravene an exclusionary rule; and,

iv. The witness is a properly qualified expert;

i. Impartial,

ii. Independent and

iii. Unbiased. See R. v. Mohan, 1994 SCC 80 (S.C.C.); White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23; and R. v. Abbey, 2017 ONCA 640 at para 48.

[31] The party seeking to tender the expert evidence has the evidential and legal burden to satisfy these criteria on a balance of probabilities. See R. c. J. (J.), 2000 SCC 51 (S.C.C.) at para. 50.

[32] The Supreme Court of Canada has recognized that being properly qualified as an expert witness includes being willing and able to fulfil one's duty to the court, which includes a duty of impartiality. The court stated:

Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so. Less fundamental concerns about an expert's independence and impartiality should be taken into account in the broader, overall weighing of the costs and benefits of receiving the evidence. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (S.C.C.) at paras. 2 and 53.

[33] The court in White Burgess Langille Inman v. Abbott and Haliburton Co., opined on long-standing concerns regarding expert witnesses:

There have been long-standing concerns about whether expert witnesses hired by the parties are impartial in the sense that they are expressing their own unbiased professional opinion and whether they are independent in the sense that their opinion is the product of their own, independent conclusions based on their own knowledge and judgment: see, e.g., G. R. Anderson, Expert Evidence (3rd ed. 2014), at p. 509; S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at p. 783. As Sir George Jessel, M.R., put it in the 1870s, “[u]ndoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them”: Lord Abinger v. Ashton (1873), L.R. 17 Eq. 358 (Eng. Rolls Ct.), at p. 374. See White Burgess Langille Inman v. Abbott and Haliburton Co., supra, at para. 11.

[34] The court went on to conclude in White Burgess Langille Inman v. Abbott and Haliburton Co.:

Following what I take to be the dominant view in the Canadian cases, I would hold that an expert's lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted. That approach seems to me to be more in line with the basic structure of our law relating to expert evidence and with the importance our jurisprudence has attached to the gatekeeping role of trial judges. Binnie J. summed up the Canadian approach well in J. (J.-L.): “The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility” (para. 28). See White Burgess Langille Inman v. Abbott and Haliburton Co., supra, at para. 45.

Application to this matter

[35] Unless mentioned herein, the evidence proffered by the experts in this Motion to Change meet the requirements outlined above, and thus their evidence is properly admissible.

[36] Dr. Garnham, the Wife’s psychiatrist, provided letters under the guise of a participant expert and litigation expert. The Family Law Rules provide distinct definitions for participant experts and litigation experts, the latter of which is required to provide an Acknowledgment of Expert’s Duty. This form requires the signatory to acknowledge that their opinion evidence is “fair, objective and non-partisan... and is related to only to matters which are within my area of expertise” and that the duty to the court prevails over any obligation to the party.

[37] The most recent evidence from Dr. Garnham, were her letters (“reports”) dated February 12, 2024, March 12, 2024, and August 4, 2024. In the first letter, Dr. Garnham indicated that she was “providing this letter on behalf of [the Wife] regarding her request for a retroactive increase in spousal support.” … “I have been asked to comment specifically on the reason for her 'delay' in asking for increased spousal support retroactively.” … She opines that “[t]herefore, my medical opinion is that it is not at all surprising that [the Wife] has not brought this issue forward sooner. I have been [the Wife’s] psychiatrist for many years and I have witnessed the psychological damage that has occurred whenever she must deal with her ex-husband.” She also provided an addendum to the report of February 12, 2024, on March 12, 2024, whereby she identified the Wife’s PTSD as being a direct result of the Husband’s “physical, psychological and verbal abuse throughout their marriage.”

[38] In Dr. Garnham’s letter dated April 13, 2023, [B663 in Case Center], she refused to provide the medical file upon which she based her opinion. Rule 20.2(14) FLR states that the participant expert is to serve a copy of any documents supporting the opinion evidence the participant expert plans to provide. In that same letter, Dr. Garnham stated: “[o]ther than Ativan, she is unable to tolerate any traditional western pharmaceuticals due to severe and, at times, life-threatening side-effects. This has made it very difficult to treat her PTSD and Depression/Anxiety as effectively as anti-depressants could.” However, at questioning, the Wife was unable to give any evidence as to any “life-threatening side effects” which undermined this opinion. Additionally, the medical evidence provided does not support the conclusion that the Wife has Sjogren’s Syndrome. Further, in her report of August 4, 2024, Dr. Garnham was asked to comment about the Husband’s affidavit and opined that the Wife “has not fabricated nor attempted to deceive” about her diagnosis of Sjogren’s Syndrome.

[39] Dr. Garnham is the Wife’s psychiatrist, yet I find her opinion evidence went beyond the scope of her expertise. She refused to provide her medical files which form the basis for the opinion, and instead provided a two-page letter. Further, I find that much of her evidence did not meet her duty of impartiality nor was it unbiased. Thus, any evidence that Dr. Garnham provided that went beyond the scope of her expertise as a psychiatrist is afforded no weight.

Financial Experts reports

[40] Both parties sought to rely on their respective experts’ financial reports. The Husband provided a report from Jamie Jocsak (“Jocsak report”) whereas the Wife provided a report from Baker Tilly (“Baker Tilly report”). The parties each argue frailties regarding the other’s reports. Both reports however comply with the FLR, and I find them to be properly in evidence.

Jocsak reports

[41] The Jocsak report, drafted by Jamie Jocsak, an Actuary (F.S.A. / F.C.I.A.), dated June 22, 2023, was commissioned to determine the difference between the Husband’s and Wife’s expected retirement income, based on all assets currently available to them. The calculations in the report were intended to be used to assist in income determination for the purpose of determining post-retirement spousal support payable, if any.

[42] The Jocsak report makes the following assumptions:

a. Assuming that the Husband and Wife will realize monthly income from their registered retirement assets, spread over their expected lifetime, which increases in accordance with the assumed annual increase in inflation.

b. CPP/QPP pension is roughly estimated;

c. OAS is equal to the current OAS maximum pension from age 65.

d. Assuming that the Husband will realize monthly lifetime dividend income from the investments in corporation (i.e., including assumed interest income and principal withdrawals), which increases in accordance with the assumed annual increase in inflation.

e. Assuming that the Husband and Wife will realize monthly income from their non-registered assets, including home/rental equity, (i.e., including assumed interest income and principal withdrawals), spread over their expected lifetime, which increases in accordance with the assumed annual increase in inflation.

[43] The report relies on the parties’ respective financial statements, which included their total RRSP values’ bank account values; total cash / investments for the Husband’s professional corporation; total non-registered investment value for the Wife; total TFSA value and total home/rental equity (market value less mortgage). However, for the Husband, the report used “[e]qual to 50% of the account balance, account joint with the Husband’s current spouse, and equal to 50% of the equity in [the home in] Cantley and [the rental property in] Ottawa, equity split with the Husband’s current spouse (joint owner of both properties).”

[44] The report determined that the total after tax income in retirement for the Husband will be $94,822; for the Wife: $80,621, with a difference of $14,201. The Equivalent total pre-tax (gross) income in retirement for the Husband will be $134,252; for the Wife: $107,964; with a difference of $26,288.

[45] An additional report was dated June 25, 2024, addressing the Wife’s medical expenses, charitable donations and tax rates used.

[46] Regarding the Wife’s medical expenses, the report provided that if the Wife claimed medical expenses of approximately $36,000 per year, based on the analysis in the June 2023 Actuarial Report, she will not pay any income tax (i.e., her net income will increase by $6,099 per year from the amount indicated in the June 2023 Actuarial Report, her projected income tax).

[47] Based on the Wife’s charitable donations from 2010 to 2022, accumulating these amounts with interest based on the average annual interest rates on personal fixed terms deposits results in a cumulative value of $266,921.23 with interest as of July 1, 2023. Based on the same assumptions and methodology detailed in the June 2023 Actuarial Report, these funds are projected to have been sufficient to provide the Wife with an annual after-tax income of $12,000 per year in 2023 dollars for her lifetime which increases by the assumed future annual increase in CPI [consumer price index] each year.

[48] Finally, while the initial report applied the tax rates for an Ontario resident to the Husband, he resides in Quebec. Applying tax rates for a Quebec resident to the Husband’s projected retirement income, based on the analysis in the June 2023 Actuarial Report, the Husband will pay additional income tax of $3,682 per year (i.e., his net income will decrease by $3,682 per year from the amount indicated in the June 2023 Actuarial Report, his projected additional income tax payable as a Quebec resident).

Baker Tilly reports

[49] The Baker Tilly report, who are Chartered Professional Accountants, was commissioned with a view of calculating the income available to the Husband for each of the 2012 to 2022 taxation years, for the purpose of establishing support payments. For this report, they defined "income available for support purposes" as the income available to the Husband, during the time in question, that can reasonably be expected to continue into the foreseeable future. The report relied on sections 16 to 19 of the Child Support Guidelines in calculating the income available to the Husband.

[50] Amongst the considerations detailed in the report were the following:

a. The Husband’s employment income and dividend income from his professional corporation;

b. He earned professional income from an unincorporated medical practice in 2016, 2017, 2020, and 2021;

c. He had 100% ownership of a rental property located [in] Ottawa. All years with the exception of 2017, 2020, and 2021 the CCA claim on the property reduced net rental income to $Nil;

d. He earned one-time Interest income in 2019 due to an adjustment in his 2019 notice of reassessment;

e. He withdrew an RRSP overpayment in 2013 and filed a T3012A election to receive a refund of undeducted RRSP contribution;

f. He received other income from self-employment via a T4A in 2013 and 2014;

g. He elected to file for a split pension amount in 2022; and

h. His corporation provided him with compensation for use of a vehicle and cell phone.

[51] The report considered the professional corporations balance sheets and income statements. The financial statements showed that the professional corporation earned between $450,000 and $550,000 in revenues per year, with one exceptional year in 2014 where it earned $640,000 in revenues; it carried an investment portfolio on its balance sheet and earned a small amount of income related to portfolio investments each year under review; salaries comprise the majority of expenses each year under review, averaging 33-40% of revenues from 2021-2016, and jumping to 63-78% of revenues in subsequent years; dividends were declared each year under review, and capital dividends were declared some of the years under review; and the corporation leased vehicles which the Husband also used for personal purposes.

[52] It reviewed copies of two Experts Reports (the “Pittman Reports”) from the original trial, referencing 2007 to 2011 years and made adjustments in line with s.16 of the Child Support Guidelines for expenses such as meals and home office expenses. It also made adjustments from the 2012 to 2022 calendar years in conformity with Scheduled III of the Guidelines.

[53] It considered the Husband’s pattern of income pursuant to s.17 of the Guidelines, as well as the income he is expected to earn in the future with the following adjustments:

a. They deducted the refund of undeducted RRSP contributions as this is not earned income and it is a non-recurring item;

b. Dividends from owner-managed businesses are, by their nature, distributions of earned surplus. For the purpose of determining income for support purposes, the income available to the shareholder is recognized when the income is earned by the corporation. Recognizing a dividend distributed from corporate surplus would essentially recognize the earned income of the corporation a second time. Accordingly, [they] have deducted all dividends received by [the Husband] between 2012 and 2022 from the [professional corporation] since [they] are attributing to [the Husband] all of the pretax corporate income available from the [professional corporation] during these years. [They] understand that [the Husband] is not the only shareholder of the [professional corporation], but as he holds a majority position and 100% of the voting shares of the [professional corporation] he has de facto control over dividend declarations; and

c. It was recognized that the Husband received capital dividends in addition to taxable dividends. There are not reflected since these capital dividends would be excluded for the same reasons that taxable dividends are excluded.

[54] There was a review of the pre-tax corporate income as per s.18 of the Guidelines and what is available for distribution from the professional corporation from 2012 to 2022.

[55] Thereafter, consideration of imputation of income pursuant to s.19 of the Guidelines. Some amounts were imputed to the Husband to include for instance some of the costs for meals and home office.

[56] The report concluded that the Husband had the following income available to him:

2012: $ 431,900

2013: $ 483,900

2014: $ 596,100

2015: $ 515,700

2016: $ 539,000

2017: $ 535,300

2018: $ 469,500

2019: $ 434,800

2020: $ 493,400

2021: $ 440,900

2022: $ 410,300

[57] The August 14, 2024, updated report of from Baker Tilly provided for the Husband’s 2023 year and concluded that he had $ 425,900 available income. The assumptions and methodology include similar considerations as above, as well as the pension split for 2023.

[58] I note that the evidence does not support a finding that the Husband has 100% ownership of the rental property located in Ottawa.

The Wife’s Argument and Health

[59] The Wife was born September 28, 1961. When this Motion to Change was argued, the Wife was 62 years old, turning 63 in late September 2024. The Husband was born December 19, 1960. At the hearing, the Husband was 63 years old, turning 64 in December 2024.

[60] In her Motion to Change dated August 26, 2022, the Wife sought high-end spousal support retroactive to January 1, 2014. The basis for this change was her deteriorating health and her continued inability to work. At the hearing, she submitted it would be most appropriate to receive a 50/50 NDI split due to the cost of her medical expenses.

[61] In her draft order at the hearing, she requested annual disclosure “deemed necessary by a valuator to determine income for spousal support purposes.” She also sought a finding that the Husband engaged in blameworthy conduct by refusing to provide financial disclosure from 2013 onward, and a finding that the Husband’s income significantly and materially increased from 2013 to 2022 and fixing spousal support arrears at $292,356.00.

[62] Regarding her deteriorating health, in her Motion to Change, she stated:

“… I continue to be unable to work. My chronic fatigue is worse, variation day to day and/or hour to hour; weekly IV supplementation, often 2 pre/post out-of-town trips; vicious debilitating cycle between complex carbohydrate intolerance/malabsorption/leaky gut syndrome causing severe abdominal bloating/chronic rectal issue post-anus scarring in 2012 causing difficulty opening to eliminate stools and back ligamentous instability - severe bloating aggravates back and back out worsens ability to eliminate (chiro twice per week) - needing colonic hydrotherapy once per month (using over 50 gallons of water) for over 2 years to release blockages, undigested foods, inordinate amount of toxins and gas causing walls, also aggravated by need of CPAP machine for sleep apnea (2017); migraines caused by neck issue; very strict and costly medical diet which requires an inordinate amount of time to obtain, prepare and ingest; autoimmune diseases from 2 to 3 (1. Sjogren's disease, 2. gluten enteropathy, 3. Raynaud's syndrome (2019 - fingers/toes turn whitish in mildly cold weather); depression/anxiety/severe PTSD with inability to treat with traditional medications due to extreme and life-threatening allergic reactions (worse triggers: computer/cell use/writing texts), also causing need for custom formulas. I have also become more sensitive to many natural products that I need, and very low dosages and very slow increases are needed at new trials; indoor & outdoor allergies needing customized treatment; post-concussion syndrome; widespread warts; eyes drier, need 2 glasses lenses changes per year since post-PTSD medication trial (2013) and concussion (2019); orthotics needed indoor and outdoor; too risky to receive any vaccines including flu vaccine; to be able to drive to North Bay to visit son and family, I need to stay in motel overnight both ways; recent acupuncture trials with naturopatheo help both with PTSD and digestion to hopefully be able to reintroduce foods. Since February 2022, after trying everything suggested by medical people for yrs and despite exhaustion, I daily go for a slow walk for 15-20 mins just before bed (between 10:30 pm-12:00 am) to try to improve very bad cycle of not being able to physically lie down for sleep and be able to tolerate CPAP mask on before 1:00-1:30 am. All due to abdominal and ocsophegeal [sic] discomfort/pain caused by severe bloating and not able to pass gas from below; and the walking along with abdominal massage helps some air come out by mouth. It also helps calm my system down from PTSD hyperactivity and often improves my sleep quality.

-the continued deterioration in my health has resulted in higher medical and other necessary expenses to me. At the time of trial in 2013, my medical expenses were $27,722.79. My medical expenses have gone up progressively and substantially and to August 25, 2022, they are already $24,281.78 and project to be $40,000 in 2022.”

[63] In her Affidavit in support of the final motion, the Wife advanced continued inability to work, worsening chronic fatigue, regular medial appointments, etc. Since the Final Order, the Wife identified new medical issues such as sleep apnea from 2017; Raynaud’s syndrome from 2019; concussion from 2019; a second concussion in early March 2024; and Pelvic Floor Physiotherapy which started in June 2023.

[64] It was unclear how or if these were related to the breakdown of the relationship. Other ailments were generalized without dates or pre-date the Final Order. In her list of ailments, the Wife included: “too risky to receive any vaccines including flu vaccine; to be able to drive to North Bay to visit my son and my grandchildren, I need to stay in motel overnight both ways” but did not indicate how this was relevant to the threshold test. In her more recent evidence, the Wife suggested her 2024 expenses were to be over $45,000.00.

[65] The Wife was allegedly surprised by the receipt of a medical note from Dr. Karsh, her family doctor, which identified that she did not meet the criteria for Sjogren’s syndrome. The Wife maintained despite same that “as far as I am aware, I think I have Sjogren syndrome among my many health challenges, but I depend on my doctors for that particular diagnosis.”

[66] The Wife argued that the settlement resulting in the Final Order was based on the Husband earning $425,284.00 “with weighted average and personal expenses.”

[67] Her claim was based on a compensatory and non-compensatory support, as she had sacrificed her career, was the primary caregiver for the children and helped put the Husband through his medical training.

[68] The Wife’s psychotherapist concurred with the 2011 report from Dr. Bakish and the 2023 report from Dr. Garnham that she suffers from PTSD, major depressive disorder and major anxiety disorder. She also suffers from post concussion symptoms.

[69] The Wife advanced evidence regarding several incidents of abuse that pre-dated the 2013 Final Order to support her assertion that the Husband was the cause of the PTSD. Despite this, it was conceded that her childhood abuse also played in role in her diagnosis of PTSD.

Retroactive Support

[70] The Wife recognized there was no obligation to exchange financial information. Nevertheless, she argued that she had sent to her Husband, through her counsel or accountant, her Notices of Assessment yearly and has requested same from him. The Husband had apparently refused to provide disclosure, and in 2021 accused the Wife of harassing him with the requests. The Wife submitted that disclosure was outstanding from 2011, and that inevitably the Husband’s income would have increased. She contended, “I think it only fair that [the Husband] be ordered to pay increased spousal support as per the Guidelines from January 1, 2014, as he has an ability to pay for support for my needs on a retroactive basis and going forward.”

[71] The Wife instructed the parties’ mutual accountant, Steve Ernst, on February 1, 2013, to release her Income Tax Returns and Notices of Assessment and/or reassessments to the Husband annually. These have been provided to the Husband since July 30, 2013.

[72] On April 21, 2015, the Wife, by way of correspondence through her lawyer, requested financial disclosure from the Husband, going back to 2012. In that letter, Mr. Hamon indicated to the Husband, “[y]ou have an annual obligation to provide this information under the Child Support Guidelines” (Caselaw has held that there is a similar obligation for spousal support even though the obligation is not strictly rooted under statute law).” Counsel provided the Wife’s 2014 Income Tax Return. The Husband denied being able to find this letter, and at questioning was not in a position to confirm or deny receipt of same.

[73] Other correspondences were sent by Mr. Hamon on September 29, 2015 and December 11, 2015. The Husband confirmed receipt of correspondence from December 11, 2015. The Wife argued the Husband must have received the April 2015 letter as he referenced it in other correspondence.

[74] The evidence established that after the letter of June 30, 2017, there were no further specific requests for financial disclosure until the Wife served the Motion to Change signed August 26, 2022, issued October 13, 2022.

[75] The Wife advanced that the Husband should be “held responsible for causing a condition that prevents [her] from working.” The Husband admitted to having slapped the Wife on three occasions and agreed it had been inappropriate. The Wife meanwhile advanced there were approximately 74 allegations of abuse and accused the Husband of being a pathological liar.

[76] The Wife relied on a report by Dr. Garnham, dated August 4, 2024, as both a participant expert and expert, responding to the Husband’s affidavit. The Acknowledgment of Expert’s Duty was attached. Dr. Garnham indicated that the psychological damage to the Wife is not limited to PSTD symptoms and instead affected her physical health, and being called a hypochondriac is extremely detrimental to a patient with PTSD.

[77] The Wife also attached evidence of other medical diagnoses to support her alternative medical treatment.

[78] Ultimately, the Wife was not opposed to the Husband retiring, but advanced, based on the Jocsak report, which included his pension and other savings income, he should continue to pay support given her desperate need, at high range.

[79] The Wife did not dispute that an income be attributed to her from her savings, but suggested this should only occur as of when she turned 65 years of age, being September 28, 2026. This is also despite no income having been attributed to her in the Final Order and despite the Husband’s admission that she was unable to work due to psychological issues.

[80] The Wife accused the Husband of being a “serial liar” and did not accept that the representation by him of the RAMQ payments as an accurate picture of his financial situation. She based this assertion on her prior involvement in the Husband’s billings with RAMQ and on a release signed in about 2011where she discovered the Husband omitted salient financial information. Further, she argued the financial information was not accurately reflective of his income as he took vacation with their children during the reporting period. This information was only articulated in the Wife’s reply affidavit.

[81] The Wife also submitted that the RAMQ earnings were not the Husband’s only income, as he has received revenue from other sources including those listed below, such as in 2005 and 2007.

i.RAMQ (largest)

ii. Locums, ex. Yellowknife, Magdalen Islands (used to go - 2nd largest)

iii. OHIP patients into Québec

iv. Out-of-province and/or US patients

v. patients without med insurance

vi. Blue Cross

vii. Régie des Rentes du Québec

viii. Conference speaker

ix. Medical students/residents’ supervision

x. Overseeing COPD clinic at hosp

xi. Study income

xii. Honorarium from Centre de santé et de services sociaux de

Gatineau

xiii. Insurance forms

xiv. Medical certificates

xv. Research projects participation

[82] Unfortunately, the Husband was not afforded a right of reply to this evidence as it was raised in reply, but admitted to having spoken at 4 conferences, earning approximately $2,000.00 per conference.

[83] A review of the 2005- and 2007-income sources provided by the Wife show income additional to RAMQ being $11,978 (with $4,940 from study income) and $15,245 (with $13,035 for study income), respectively.

[84] The Wife took issue with the Husband’s argument about the charitable donations as these were religious participation expenses similar to his own. Attached to her evidence was a chart of charitable expenses incurred by the Husband from 2012 to 2022, ranging between $7,605 in 2013 to as high as $15,973 in 2019. She asserted that support should be based on their income rather that their personal choices, apart from her medical expenses, which were as a result of the marriage.

The Husband’s Argument and Health

[85] The Husband argued that the Wife has not demonstrated sufficient evidence of a material change in circumstances which were not foreseeable at the time the Final Order was rendered.

[86] In his Response Motion to Change, as clarified in his Notice of Motion for the hearing, the Husband sought an order that spousal support terminate as of June 1, 2024, or another date to be determined by the court. Alternatively, the Husband sought to impute an annual income of $98,720 to the Wife; that as of January 1, 2024, and until its ultimate termination on December 31, 2024, the Husband pay spousal support of $1,728 per month, that he receive credit for the $15,500 per month already paid by him, with reimbursement of his overpayment. The Husband also sought orders either terminating the requirement to maintain a life insurance policy in favour of the wife or alternatively reducing the amount and termination once support was no longer payable. His originating process sought termination as early as June 2023.

[87] The Final Order was pursuant to the Spousal Support Advisory Guidelines, in a mid-range quantum. The Husband argued there were no material changes in circumstances articulated that would allow for high-range support or 50/50 NDI split. The Final Order contained neither a review clause nor a financial disclosure obligation.

[88] He disputed the Wife’s greater need for support. According to her financial statement of October 13, 2022, the Wife was able to accumulate assets and investments of $1,528,485.00; she had minimal debts such as her mortgage of $45,000.00; and was able to make charitable donations of $1,700.00 per month.

[89] Further, the Wife waited 9 years prior to bringing a Motion to Change, that she has not been placed in any financial hardship during those 9 years despite never having returned to work following separation. Her accumulation of wealth was due to the spousal support paid by the Husband. The Wife only started the proceedings for retroactive support after the Husband requested termination of support in Quebec, where he resides, which was found to be the wrong jurisdiction.

[90] Since separation, the Wife has made no effort to return to the workplace. Her sole source of revenue has been the spousal support he has been paying. Nonetheless, he acknowledged her having some psychological diagnoses which prevent her from being able to work.

[91] An order for retroactive support would cause the Husband financial difficulties. He argued he has a new wife and is the midst of retiring, and as such did not have the means to pay additional support to the Wife, who had no additional needs.

[92] As part of his Response, the Husband set out the following table for the parties’ respective incomes:

Year

Requesting Party’s [Wife] income

Income sources

Responding Party’s [Husband]income

Income sources

2019

$191,108.66

Spousal support, dividends, interest, capital gains

$327,262.78

Employment income, dividends

2020

$189,735.39

Spousal support, dividends, interest, capital gains

$340,003.90

Employment income, dividends

2021

$203,443.58

Spousal support, dividends, interest, capital gains

$320,084.88

Employment income, dividends

[93] The Husband is an internal medicine specialist as well as offering consultation services for the emergency room and intensive care. He has been in the medical field for approximately 38 years. He works out of three different hospitals, principally through the CISSS de l’Outaouais. Over and above his day job, he works on-call, which necessitates him being available 24 hours, for five of the seven days.

[94] The Husband anticipated taking his full retirement as of December 1, 2023, but this was impossible given the current Final Order. As such, he has provided notice of his pre-retirement on April 25, 2024, effective June 1, 2024. While the Husband attempted to rely on a letter provided by Dr. Moleski, the Head of Internal Medicine at the CISSS, that letter was not properly in evidence to permit it to be used as truth of its contents. Nevertheless, the Husband’s move toward retirement was not contested.

[95] The Husband conceded that his decision to retire was voluntary, but was reasonable given his age, health and reduced abilities. He advanced that he has a stressful career rendered even more difficult since the pandemic and has increased anxiety and insomnia and now sees a psychologist. He also noted that he had a complaint made against him which caused him stress and anxiety and made him doubt his competencies. He added that the field of medicine has continued to develop exponentially, and he finds it difficult to keep up. He has difficulties coping with the on-call night shifts, which are part of his practice. He worked between 55 and 58 on-call night shifts per year in the past three years.

[96] It was articulated that his family doctor, Dr. St-Pierre, recommended that he significantly reduce his work hours. He therefore decided and advised on April 25, 2024, of his intention to retire. Prior to fully retiring, he must meet all his patients, ensure continued services for them, stop meeting new patients and stop on-call shifts. He estimated he had six to 12 months to prepare for his retirement and organize his patients. Due to this change in schedule, his income will continue to significantly decrease, particularly as the majority of his salary is from the on-call and consultation services.

[97] The Husband provided evidence of decreased income from his employer, the RAMQ (Régie de l’assurance maladie Québec). As noted above though, the Wife argued that during this time the husband was also on vacation and suggested that it was possible the Husband withheld billings to reflect a modified reality to support his argument.

[98] The Husband estimated that his gross corporate income for 2024 would be between $240,000 to $260,000, and net corporate revenue around $200,000. Nevertheless, he has continued to pay the ordered spousal support of $15,500 per month, drawing down on his savings.

[99] As for anticipated 2025 income, the Husband relied on Jocsak report. Based on this report, the Husband’s projected income at retirement will be $134,252.00 (gross) and $94,822.00 (net), while the Wife’s projected annual income at retirement will be $107,964 (gross) and $80,621.00 (net) without spousal support, which represents difference of only $26,288.00 (gross) and $14,201.00 (net) between their two retirement incomes. The Wife would not have to pay taxes given the level of her medical expenses; thus her net income would increase by $6,099.00 per year and the Husband’s net income would decrease by $3,682.00 as he resides in Quebec. Further, if the Wife had invested her charitable donations made since 2010, she could have received an additional income of $12,000.00 per year, which would result in a higher income than the Husband.

[100] Based on this information, the Husband argued that the support paid by him since 2010 ought to be sufficient to permit the Wife to be financially independent upon the Husband’s retirement. Moreover, he will not have the capacity to pay support upon full retirement due to his income and financial obligations.

Response to Wife’s claims

[101] The Husband took the position that the Wife has made no efforts to become financially independent since separation over 15 years ago. He has paid over $2.1 million dollars in support since 2010. The Wife has very little debt and sufficient investments to permit her to meet her needs without support. He advanced that income ought to be imputed to the Wife based on the withdrawals she can make from her assets, as per the Jocsak report. Her expenses as listed in her then-only financial statement, dated October 22, 2022, were grossly exaggerated.

[102] The Husband admitted that at the beginning of their relationship, he had hit the Wife on three separate occasions. The relationship greatly deteriorated in 2006, and the couple attended counselling in Missouri in an attempt to help their marriage. The Husband asserted that at no time did the Wife accuse him of being an abusive husband and no such conclusions were drawn by the psychologist. As for Dr. Graham who composed a letter dated March 12, 2024, that doctor never met the Husband, and omitted any mention of the Wife having been abused by her father. The letters tendered by the Wife to establish the Husband as being abusive were explained by him to be attempts to reestablish a good relationship with his then Wife, and he attempted to recognize in those letters the Wife’s feelings, as recommended in counselling.

[103] The Husband relied on the transcription of an audio recording from 2003 which was put to the Wife in questioning where the undertaking [Undertaking 16, Exhibit 15] was not responded to by the Wife. In that recording, the Wife spoke very positively of the relationship with her Husband, that the knot in her stomach was gone, that she was safe and cherished, that he was gentle, and her opinions were sought out before anyone else’s. I note that this particular undertaking was not set out in the list of undertakings as uploaded to Case Center.

[104] The Husband argued that based on questioning, the Wife has been self-diagnosing health problems and incurred significant expenses for supplements and naturopathic treatment which were not prescribed or recommended by medical doctors. For instance, in 2022, about $24,000 of the expenses were incurred for non-psychiatric supplements, naturopathic treatments and other treatments.

[105] Additionally, the Wife claimed to suffer from several illnesses, including Sjogren’s Syndrome and having had a cerebral concussion in 2019. However, she was unable to provide proof of these diagnoses. She stated that she suffers from life-threatening allergies but was unable to name them or provide proof as to any instance where she has had a life-threatening allergic reaction. The Wife takes several supplements and participates in several treatments that have been recommended by a naturopath and not prescribed by a physician, some of which were not approved by the Wife’s doctors. The Husband provided evidence that her doctor had advised against continued naturopathic treatment as some could be harmful to her.

[106] As an alternate argument, the Husband argued that income of $98, 720 ought to be imputed to the Wife, and when using the mid-point of the SSAG’s and the Husband’s pre-retirement income of $200,000, support for 2024 should be $1,728 per month, and it should terminate December 31, 2024.

Comparison of the Parties Financial Circumstances

[107] The Wife submitted that the Husband’s new wife ought to have provided full financial disclosure to get an accurate view of the couple’s means. However, as set out in Angulo v. Angulo, 2019 ONSC 1456 at paragraph 57, a former spouse is not entitled to the "full financial picture" of a spouse's new partner by right. Such disclosure would be extensive and intrusive. As Kristjanson J. stated in Politis v. Politis, 2018 ONSC 323 (Ont. S.C.J.) at para. 17:

Compelling the production of personal income, asset and other financial information of new life partners is highly invasive of personal privacy and generally of minimal relevance. The privacy interests of third party new partners must be carefully balanced against the interests of the parties to the family law proceeding, and any production order carefully scrutinized.

[108] In consideration of the parties’ incomes, both sought imputation for the other. Section 19(e) of the Child Support Guidelines permits the imputation of income to a spouse where "the spouse's property is not reasonably utilized to generate income.” It has been held that the method of calculating a spouse’s income pursuant to the Guidelines can be used as an aid in calculating income for the purpose of determining spousal support: Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006 CarswellOnt 6335 at para. 28.

[109] A review of the Wife’s financial statement dated July 25, 2024 [B346] shows she has been unemployed since 2009. Her sole source of income is spousal support of $15,500.00 per month, or $186,000.00 annually. Listed in her expenses are: $20,400.00 annually for charity; $30,000.00 for RRSP purchases; and $45,000.00 for health-related expenses inclusive of dental and eye care. Her net worth is $1,574,592.09, including her home which she estimates to be worth $575,000.00, mortgage free; $948,537 of investments or RRSP’s; and $41,989 in cash or bank accounts. The Wife’s Financial Statement of October 13, 2022 showed her net worth to be $1,475,551.36.

[110] The Wife submitted that based on the Baker Tilly report, a total of $317,640 of income ought to be imputed from 2012 to 2022 to the Husband, based on “unreasonably deducted expenses” in those 10 years. According to her Divorcemate calculation, she argued there has been an underpayment of mid-range spousal support of $295,308 from 2012 to 2023.

[111] The Wife argued that the Husband lives with his new wife in a home he values at $960,600.00 and an income property worth $758,000, totalling $1,718,600, or $859,300 to the Husband. The Husband placed his income property into the joint names of he and his wife for one dollar on October 5, 2010, for tax planning purposes. Nevertheless, despite it being jointly held, the Husband claims 100% of the revenues or expenses. The mortgage and lines of credit result in a net equity of approximately $1,139,715, or $569,857.50 for the Husband. She advanced that rental income property revenue ought to be adjusted as per her chart [B279], which included adjustments for capital cost allowance; insurance, interest, etc. The adjustments take the net revenue of $6,261.34 to either $72,942.40 or in her submission of “bare bones” adjustments, $31,278.59.

[112] Based on the Husband’s financial statement dated July 25, 2024, he estimated his net income from his professional corporation to $200,000.00, and less in 2025 when he would be fully retired. He estimated his total income to be $206,261.40 for 2024 from all income sources. He has $614,000 of assets, of which $573,000 are RRSP’s. The Husband’s net worth is $1,182,799.27.

[113] The Husband also contributes toward charity, ranging post-separation from $11,255 in 2015 to $13,983 in 2016, and $17,362 in 2012.

Legal Framework

[114] This is a conventional case whereby the payor wants to retire and terminate spousal support, and the recipient wants spousal support to continue. The following are considerations the court must apply.

[115] Section 17(1) of the Divorce Act provides that a court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, a support order or any provision of one, on application by either or both former spouses.

[116] Before a spousal support order can be varied, s.17(4.1) of the Divorce Act requires that: “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.”

[117] The Supreme Court of Canada established the analysis to be applied by the court in considering a variation application in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.), at p. 688, as follows:

The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances… [Also see Angulo v. Angulo, 2019 ONSC 1456 at para. 91.]

[118] The Supreme Court of Canada articulated the fundamental principles respecting entitlement of spousal support in the cases of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. There are three conceptual bases for entitlement to spousal support. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. In other words, spouses are entitled to be compensated for the contributions which they made to the marriage and for economic losses which they experienced as a result of the marriage: See Moge v. Moge, supra, at paras. 68-70; also see K. (V.) v. S. (T.) 2011 ONSC 4305, at para. 245.

[119] Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation.(See Bracklaw v. Bracklow, supra. at para. 38.) Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of a spouse. This ground for spousal support establishes that a spouse may be obliged to pay support based on the other spouse's economic need, even if that need does not arise as a result of the roles adopted during the marriage. This basis for spousal support is founded on the view that "marriage is a relationship involving mutual obligations and interdependencies that may be difficult to unravel when the marriage breaks down.”: K. (V.) v. S. (T.) 2011 ONSC 4305, at para. 246.

[120] While the Supreme Court of Canada delineated several fundamental principles and guidelines respecting the issue of spousal support in Moge v. Moge and Bracklow v. Bracklow, it also emphasized in Bracklow that the determination of spousal support claims ultimately remains a highly discretionary and individualized undertaking by the trial judge, who must take into consideration the various factors and objectives set out in the Divorce Act and the particular circumstances of each case: K. (V.) v. S. (T.) 2011 ONSC 4305, at para. 247.

[121] In St-Jean v. Fridgen, Trousdale J. held that a wide variety of factors are considered to determine whether and when a support payor may reduce or terminate support upon retirement:

Whether a support payor spouse may seek a reduction or termination of spousal support upon retirement depends on an examination of the individual facts and circumstances of each case which may include:

(a) The age of each party at the date of separation and at the current date;

(b) The length of the marriage;

(c) Whether there were children born of the marriage;

(d) The role which each party played in the marriage;

(e) The financial circumstances of each party at the date of separation and at the current date including income, expenses, assets and debts;

(f) Whether either party has re-partnered;

(g) The medical situation of each party if relevant, supported by medical evidence;

(h) Whether there has been a material change in circumstances of either party;

(i) Whether the spousal support was needs-based support or compensatory support or contractual support or some combination thereof;

(j) The period of time subsequent to separation and/or the order that the support payor spouse has paid spousal support;

(k) What the intention of the parties was at the date of the order and/or the date of the separation agreement, if ascertainable from the order and/or separation agreement;

(l) Whether the order and/or separation agreement dealt with the issue of retirement or with the issue of age of retirement;

(m) The reasons for retirement including whether the retirement was voluntary or was beyond the control of the support payor spouse;

(n) Whether either party has any economic advantages or disadvantages arising from the marriage or its breakdown;

(o) Whether there are 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;

(p) Whether there is any economic hardship of the former spouses arising from the breakdown of the marriage;

(q) Whether each spouse is or may become economically self-sufficient within a reasonable period of time;

(r) What, if any, is the range of spousal support provided for pursuant to the Spousal Support Advisory Guidelines on the parties' incomes at the current time; and

(s) Any other relevant circumstance.

In my view, there is no hard and fast rule to be applied in every case about when or at what particular age a support payor is entitled to retire and seek a reduction or termination of spousal support. An examination of the facts of each particular case is required and this examination may result in a different conclusion in different cases depending on the specific facts of each case: St. Jean v. Fridgen, 2017 ONSC 7680 at para. 37 and 38; also see Fielding v. Fielding, 2023 ONSC 1819 at para. 88.

[122] As discussed in Haworth v. Howarth, the payor’s substantial decrease in annual income meets the threshold for variation as the original agreement expressly contemplated a salary level far exceeding what the payor would receive in retirement. “As in Schulstad v. Schulstad, 2017 ONCA 95, 91 R.F.L. (7th) 84 (Ont. C.A.), while retirement may have been within the parties' contemplation at the time, the effect of that retirement was not considered in fixing the amount of support. Again, as in Schulstad, it would not have been possible for the parties, or the judge making the original order, to know what the respondent's financial circumstances would be at retirement some 25 years later.” See Haworth v. Haworth, 2018 ONCA 1055 at para. 14. In that case however, the payor was 72 years old when he ultimately retired, and the court found this was not a situation where the payor took early retirement to avoid support obligations: Haworth v. Haworth, supra, at para. 12.

Material Change in Circumstances

The Wife’s claim

[123] In a nutshell, the Wife sought to retroactively adjust spousal support. The Wife argued the Husband had engaged in blameworthy conduct by refusing to disclose his financial statements from 2013 onward, which would have permitted her to make timely requests for a variation of support. She also relied on her medical issues, specifically her PTSD, to explain why she delayed in commencing the motion to vary.

[124] The Husband argued that the Wife’s Motion to Change ought to be rejected as there has not been a material change in circumstances since the Final Order. There were no provisions for review of quantum of support in the Final Order or requiring exchange of financial disclosure. Moreover, the quantum was based on a mid-range point, and there is no justification to vary it to high-range support or 50/50 NDI.

[125] To determine if the conditions for variation exist, the court must be satisfied that there has been a material change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support. The change must be substantial, continuing and not foreseeable at the time of the original order.

[126] Both parties agree the Final Order was made on consent prior to the conclusion of the 2013 trial and reflected mid-range support based the Wife not having any income and the Husband’s 2011 income. There were no determinations made by Justice de Sousa as to whether the Final Order was based on compensatory or non-compensatory support, or both.

[127] At trial, the Wife submitted medical evidence confirming she was unable to work. The Wife argued that the Husband’s abuse was the cause of the Wife’s inability to work. However, there was also an IME report which detailed reports of abuse prior to marriage by the Wife’s father.

[128] It was uncontested that the Wife had stayed at home to raise the children despite her training to be a teacher, following which she assisted the Husband with billings for his medical practice. Given her role in the relationship, the Wife argued that support was clearly compensatory.

[129] The evidence advanced for this Motion to Change was similar to that relied upon by the Wife in 2013. She provided this court with a plethora of medical evidence to support her asserted inability to work. Some of the medical evidence was problematic in that it contained opinion evidence which was not within the scope of the treating doctor and contrary to the Acknowledgement of Expert’s Duty.

[130] Nevertheless, the Husband conceded, and I find, that the Wife continues to suffer from psychological issues and continues to be unable to work. I find that she suffers from PTSD amongst other health issues. I am not prepared to find that the Husband was the sole cause of the PTSD, nor am I persuaded it is necessary to make any findings about the Husband being a “pathological liar”.

[131] The Wife continues to have health issues which necessitate regular use of medication. The cost of the medical expenses in 2013 was approximately $27,722.79. It was advanced at the motion that the cost for her medication, including naturopathy treatment, was estimated to be $45,000.00 in 2024. It was also argued that the Wife’s medication costs did not increase every year, but there was a significant escalation at the time the Motion to Change was commenced. A review of the annual expenses is found at A478.

[132] The Husband disputed the cost of naturopathic treatments as being medical expenses, particularly when unsupported by her medical doctor.

[133] There was sufficient evidence to conclude, on a balance of probabilities, that most of these expenses are accepted as legitimate medical expenses by CRA, address her medical sensitivities, and that they work for her.

[134] The evidence did not however support a finding that the Wife has ever suffered from life-threatening allergies or life-threatening side effects. Further, on a balance, on the evidence before me, I am not persuaded that the Wife suffers from Sjogren’s Syndrome.

[135] Nevertheless, based on the significant increase of her medical expenses, I am persuaded that the Wife has met the threshold to establish there has been a material change of circumstances.

The Husband’s claim

[136] As for his own variation request, the Husband advanced that his retirement and corresponding decrease in income was a material change in circumstance.

[137] Again, the court must be satisfied that there has been a material change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support, such change must be substantial, continuing and not foreseeable at the time of the original order.

[138] The Wife argued that “pre-retirement” did not meet the test of being continuous as it was a temporary adjustment of income. The Husband continues to hold his medical licence and has other sources of income. She relied on L.M.P. v. L.S., 2011 SCC 64 for the proposition that the change in circumstances must have a significant impact on the recipient’s needs for support or payor’s ability to pay. Based on his continued substantial income; rental property and his new wife’s contribution to the household, the Husband’s “pre-retirement” income does not materially diminish his ability to meet his spousal support obligations.

[139] However, and at the Motion, she did not oppose the Husband’s claim of a material change and articulated a desire for a proportional balanced adjustment to the spousal support based on the proper valuation of his income.

[140] I find the Husband, at the age of 62, has given his notice of retirement and has begun winding up his practice. He is no longer seeing new patients and no longer working on-call shifts which included having to be available 24 hours per day. He was experiencing health issues and having difficulty keeping up with medical advancements. It was uncontested that the decision to retire was voluntary.

[141] I find, based on his personal circumstances, and the criteria set out in the relevant jurisprudence, the Husband’s voluntary decision to retire was reasonable. It is evident to me that this decision was not motivated by a desire to avoid paying spousal support.

[142] The Husband advanced that his gross corporate annual income for 2024 was estimated to be between $240,000 to $260,000, and net corporate income to be approximately $200,000.00. Despite this, he has continued to pay full spousal support until ordered otherwise, and thus had relied on his savings to pay his expenses.

[143] As required by the Divorce Act, I am satisfied that a material change has been established for several reasons, including the financial impact due to the Husband’s retirement. Like in Shulstad v. Shulstad, though the Final Order did not contemplate a termination date, there was no evidence that Justice De Sousa was able to assess the impact of retirement: Shulstad v. Shulstad, 2017 ONCA 95, at para. 31.

[144] This warrants a review of spousal support and the corresponding obligation to maintain a $1 million life insurance policy.

The Husband’s claim for termination of spousal support

[145] When the Wife was 45 years old, and the Husband 46 years old, their 25-year relationship ended. The Final Order made by Justice de Sousa in 2013 provided for ongoing spousal support without reference to a termination or review date.

[146] Having determined there has been a material change in circumstances, in accordance with s.17(7) of the Divorce Act, 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.

[147] The evidence as I find it shows that the Wife forwent career opportunities to care for the parties’ children. These actions favoured the Husband’s career and were to the Wife’s detriment. The Wife also assisted the Husband with billings prior to separation.

[148] As a consequence of their relationship and actions taken during same, the lack of personal income from the Wife, the 25-year marriage, and the Wife’s mental health and physical health ailments, I am of the view that the Wife’s entitlement to spousal support is grounded in both compensatory and non-compensatory support.

[149] I must therefore determine whether it is consistent with the objectives of spousal support, on either ground, to terminate, reduce or continue to require the Husband to pay spousal support after retirement.

[150] Both parties agreed that the Final Order was based on mid-range spousal support calculation.

[151] The evidence established that since the Final Order, the Husband has paid over $2.1 million of spousal support.

[152] The parties are now 63 and 62 years old. The Wife accepts that the Husband is permitted to retire. The Husband accepts the Wife is unable to return to work, at least due to her psychological health issues.

[153] As noted above, both parties are seeking to impute income to the other and provided experts reports to support their respective positions.

[154] The Supreme Court of Canada in Boston v. Boston articulated that under a compensatory support order, the recipient has an obligation to use the property equalized between the parties in an income-producing way. Said otherwise, the recipient spousal must use the assets received on equalization to create a "pension" to provide for her future support: Boston v. Boston, 2001 SCC 43 at para. 54. The court went on to state:

This requirement is based on the principle that, as far as it is reasonable, the payee spouse should attempt to generate economic self-sufficiency. Self-sufficiency is only one factor of many that is weighed. It is obvious that in most cases of long-term marriage, the goal of self-sufficiency is decidedly difficult to attain, particularly for spouses who remained at home during the marriage. Self-sufficiency will often not be practicable largely due to the residual effects of being outside the labour market for a protracted period of time. In addition, there are factors to consider such as age, education and parenting responsibilities. Consequently, it is often unreasonable to expect the payee [recipient] spouse to earn an income from employment after separation or divorce.

However, where the payee spouse receives assets on equalization in exchange for a part of her former spouse's pension entitlement, she must use those assets in a reasonable attempt to generate income at least by the time the pension starts to pay out.

The obligation of the payee spouse to generate investment income from the assets that she received on equalization is not an onerous one. It is not predicated upon insensitive standards on how the payee spouse should have managed her finances from the point of separation. Nor does it require investment-savvy decisions, premised upon an extensive knowledge of the marketplace. The obligation on the payee spouse to generate income from her assets would be satisfied by investing in a capital depleting income fund which would provide a regular annual income.

Boston v. Boston, 2001 SCC 43 at paras. 55, 56 and 58

[155] In Campbell v. Vaughan, the New Brunswick Court of Appeal upheld the motion judges’ decision regarding an imputation of income to the spouse in recognition of income that could have been earned on her investments: “[The Wife] cannot sit on assets worth one-half million dollars and not have them generate revenue. Although it is unlikely that she will be employed given that she was out of the labour force for a long time, she still has an obligation to attempt to generate economic self-sufficiency. By not using these resources to produce some income, she is not reasonably utilizing her property to generate income contrary to paragraph 19(1)(e) of the Federal Child Support Guidelines, SOR/97-175.”: Campbell v. Vaughan 2016 NBCA 9, at para. 24.

[156] The Husband relied on K. (V.) v. S. (T.) 2011 ONSC 4305, at para. 254 for the proposition that the court may attribute income to a party when it is determined that the party was not reasonably using its resources or has not been able to reasonably explain the reasons for its failure.

[157] The Wife referenced s. 12.4 of the Spousal Support Advisory Guidelines which addresses illness and disability, to support her claim that her unusually high medical costs can increase support payable. The SSAGs and SSAG Revised Users Guide discussed this notion but notes that this is less frequently applied by the courts and is “the least consistent with Bracklow [v. Bracklow, [1999] 1 S.C.R. 420]]”. The SSAG RUG remark some courts broadening the “illness and disability” exception to be more akin to a “basic social obligation” exception given the recipient’s basic needs go beyond the support formulas. However, “[the authors] believe that the sheer breadth of a basic social obligation exception would undermine the integrity and consistency of any formula or guidelines.”

[158] The Wife also cited Fisher v. Fisher, 2008 ONCA 11 to support her submission that this court move quantum of support from the mid-range to the high range. The Wife also cited Boston v. Boston, 2001 SCC 43 at para. 55 to buttress her argument that she was unable to generate economic self-sufficiency.

[159] After reviewing the evidence and relevant jurisprudence, I find that it would be most equitable for spousal support payments to be reduced through a transition period before they terminate as the Wife’s initial compensatory and needs basis for entitlement to support continue to exist despite the Husband’s retirement.

[160] In terms of her compensatory entitlement, this was a long-term traditional marriage where the Wife made significant sacrifices for the Husband’s career. At the very beginning of their marriage, she worked as a teacher, but forwent that career to raise and educate their children. As the children grew older, she continued to remain at home and instead helped the Husband with his billings. The evidence established the Wife never returned to the workforce as a teacher. The Husband was the main financial provider for the family. In addition, the Wife experienced health issues which continue to prevent her from being able to secure employment.

[161] The Wife’s continuing need for support is measured against the parties’ marital standard of living and the Wife’s limited earning capacity. See Schulstad v. Schulstad, 2017 ONCA 94 at paras. 56 and 57.

[162] However, I must also analyze the Husband’s current ability to pay, which will significantly decrease once he is fully retired.

[163] As noted in Schulstad v. Schulstad, at para. 60, a payor's retirement also has a particular impact on the SSAG analysis. Recognizing this impact, Rogerson and Thompson state the following in s. 19(e) of the Spousal Support Advisory Guidelines: The Revised User's Guide (Ottawa: Department of Justice Canada, 2016):

Eventually, as we get old enough, we all have to "live off our capital", to draw down our capital resources to pay for our current needs, especially those without pensions. RRSPs have to be converted into RRIFs (Registered Retirement Income Funds) or annuities. Businesses and farms have to be sold, Interest from investments becomes insufficient to fund daily needs.

[164] I accept that both parties have the obligation to draw down on their respective capital resources to address their needs, and in the case of the husband, pay support. The Wife conceded this point but only after she turns 65 years old.

[165] A review of the Jocsak Actuarial reports helps guide the court in determining the proper incomes attributable to each spouse. The report suggested the Husband’s total gross income at retirement would be $134,252 (net $94,822) and the Wife’s would be $107,964 (net $80,621). This was arguably as of 2025 for the Husband as he is currently winding down his practice.

[166] The Wife disputed the results of the Jocsak report as there was no consideration of her elevated medical expenses and failed to factor in the assets or income of the Husband’s new wife of 14 years. She argued the new wife’s income and co-ownership of their revenue property was relevant to the calculation of his standard of living in comparison to hers. Further, the report did not factor in the repercussions of the Husband adding the new wife to title on the income property, it now being a jointly owned property. It was submitted by the Husband this was tax planning purposes, but the Husband solely deducts CCA for this rental, which the Wife advanced ought not be excluded for spousal support purposes. For the 2023 net income of the rental property, the Husband claimed $6,261.34, where, based on her evidence, his net rental income with the Wife’s adjustments, should be $72,952.22 [B817] and [B802]. At the very least, the Wife sought an adjustment of $10,954 due to the Husband’s erroneous interest calculation.

[167] Despite the report having been disclosed in 2023, these concerns and the chart were only advanced in the Wife’s reply affidavit, thus the Husband was not afforded an opportunity to respond.

[168] The reality is that the Husband co-owns both his home and rental property with his new wife. The evidence shows that this happened in or around 2010 for at least one of the properties, and therefore I am not prepared to conclude it was to reduce his assets upon retirement. As such, no adjustments will be made based on this submission.

[169] The Wife also contended in her reply that the CPP amount attributed to her did not reflect reality. She provided a statement from September 29, 2020, which estimated her future CPP benefits, indicating $3,727.08 annually as opposed to attribution of $8,238.00 in the report. This results in a difference of $4,510.92.

[170] I find it is appropriate to adjusted for inputs to the Wife’s net income to remove the CPP and OAS given my findings below. I also find it appropriate to adjust for the Husband residing in Quebec (his net income will decrease by $3,682). I note that the Wife could be entitled to CPP of $198.78 [B826] per month as of 60 years of age. The evidence however does not show that she is currently in receipt of CPP or OAS.

[171] Turning to the argument advanced by the Wife that the court ought to adjust the net rental income property revenue from $6,261.34 to either $72,942.40, or a “bare bones” adjustments of $31,278.59. In submissions, she also articulated that the court should attribute $25,017 to account for the rental property.

[172] I accept that the CCA for the rental property ought to be added back into income ($14,062.88) [A608] as per Schedule III of the Child Support Guidelines.

[173] The evidence showed that in 2022, the Husband paid just over $11,000.00 for interest and bank charges regarding the rental property expenses. In 2023, he claimed on his Income Tax Return $22,073.42 for interest and bank charges [A608]. When questioned about the increased interest, the Husband explained the amount claimed in 2022 was his error and was lower as it did not include the interest for the mortgage and the line of credit. This error was thereafter corrected on the 2022 return. As for 2023, the figure provided was fairly accurate according to the Husband, considering the repairs and the increased cost of interest for the bank. On a balance, I accept the Husband’s evidence on this point.

[174] The remainder of the Wife’s suggested adjustments were unsupported assertions without evidence, i.e., the assertion that the rent was “well below market” should be supported by a professional rental appraisal.

[175] The RAMQ billings show that from January 1, 2024, to August 8, 2024, the Husband has received $192,906.28. The Wife argued that a portion of this time was when the Husband was on holidays, therefore it did not accurately reflect his annual earnings. She provided no evidence to support this assertion, which was raised in her reply affidavit. Nevertheless, I find it is reasonable that the Husband be permitted to take some holiday time during the year, and therefore am not persuaded that the chart is an inaccurate reflection of the Husband’s year to date earnings.

[176] Regarding the Wife’s charitable donations, the Husband argued that had the Wife accumulated those amounts, as of July 1, 2023, the cumulative value would be $266,921.23. The Husband provided evidence that this could give the Wife with an annual after-tax income of $12,000.00 for her lifetime. I note the Husband made similar charitable donations. Imputation of income is discretionary. In this case, on these facts, I am not prepared to go back retrospectively to adjust the Wife’s donations in order to impute income to her.

[177] While the evidence supports a finding that the Husband has given his notice of retirement and is currently winding up his involvement with the hospitals, it did not address whether the Husband was giving up his medical licence and whether he would be providing services in any other capacity, such as speaking engagements. However, the uncontested evidence was that the Husband received a complaint which affected him and he was unable to keep up with the medical advancements. As such, I am not prepared to find that he will continue to work in any capacity after he retires. Also, due to a lack of evidentiary foundation, I cannot support the Wife’s argument to impute one quarter of his current gross income, or approximately $106,000.00 (as per her Divorcemate Calculation - B1406). Though she provided a long list of other sources of income he has had in the past, these also not sufficiently quantified to permit the court to adopt the Wife’s rationale.

[178] At its highest, the Wife’s evidence regarding other sources of income included: $8,000.00 for speaking engagements in 2023, for which he was paid $2,000.00 each time. In 2005 he received income from additional sources of $7,038 plus $4,940.00 from “study income”; and in 2007 he had income from additional sources of $2,210 plus $13,035.00 from “study income”. There was no evidence that the Husband would continue to have any “study income” in the future. Removing that possible input, at best the Wife’s argument was between $2,210 to $7,038 additional income, plus any possible speaking income.

[179] Again, the Husband was not provided an opportunity to comment about the additional income sources as this was in reply evidence. His Financial Statement indicated that income from all income sources would be $206,261.40.

[180] A review of the RAMQ billings showed a steady decline of billings from January 2024 of approximately $52,057 to May 2024 of $35,103, to June 2024 of $7,414 and July 2024 of $2,915.

[181] A review of the Divorcemate calculations provided by counsel necessitated the parties to reattend to help determine the proper inputs as the calculations were not comparable. For instance, some calculations provide gross income from the Jocsak report, while others use net income. Some use “self-employment income (net) when another uses “other non-taxable income (auto gross-up)”. It was important to use the same language to achieve the just result.

[182] Having heard submissions and reviewing the evidence provided, including the Divorcemate calculations, taking into consideration the Jocsak report and the adjustments that I accept, for the purpose of determining ongoing spousal support, I find the incomes and imputations found below are appropriate in these circumstances.

[183] Based on the evidence before me, the Husband grossed approximately $192,906.28 from RAMQ. Recognizing that there are reasonable deductions permitted through his corporation, and following the decreasing flow of income consistent with retirement, which I accept, I find it reasonable to impute income for 2024 in the amount of $200,000.00.

[184] Both parties agreed that it was reasonable to use the Husband’s 2023 Income Tax Return [A589] inputs to determine the proper apportionment of income. In 2023, the apportionment reflected 80% as employment income and 20% as “other than eligible” dividend income.

[185] I also find it reasonable to use the 2023 figures for CCA and for net rental expenses.

[186] As for “other” additional sources of income, on this evidence, I am not persuaded it is appropriate to impute an additional income.

[187] Given the evidence was that it would take between six and twelve months to fully wind down his practice, and that he gave his notice in April 2025, based on his continued decline of billings, I accept that the Husband will have to rely on his assets as income as of 2025. As such, I will rely primarily on the Jocsak report as the primary source of income for 2025. Further, from 2025 onward, I have removed the Net Rental Income as that has been considered in the Jocsak report in determining the Husband’s income. Additionally, I will continue to include the CCA as there was no evidence that the rental property was being disposed of in the near future.

[188] I decline to include income to the Wife regarding the charitable donations. I will however impute income to her as of January 1, 2024 based on the Jocsak report, subject to my comments contained herein.

[189] The Wife submitted that her medical expenses ought to be accounted for in Divorcemate as “tax credits” (medical expenses) and “cash flow adjustment (other cash flow amount - decrease NDI)”. The Husband argued, based on the Jocsak report, that there was not actual decrease to NDI as the Wife receives the equivalent tax credits or tax deductions for this amount. I accept the Wife’s argument and therefore I have used these inputs in the calculations. In these circumstances, I decline to increase the Wife’s income by $6,099.00 based on the medical expenses. Instead, I have included that expense the Divorcemate Calculations as a Tax Credit and adjustment to the NDI. I also accept for the purpose of this motion to change the estimate provided of $45,000.00.

[190] As such, I find that Husband’s and Wife’s income ought to be imputed as follows:

2024:

Husband:

• Net employment income: $160,000.00 ($200,000.00 x 80%); (quantified on consent of both parties as “net employment income”)

• Dividend income: $40,000.00;

• Net Rental Income: $6,261.00;

• CCA: $14,062.88 [A608].

Wife:

• Net self-employment income: $80,621.00 (quantified on consent of both parties as “net self- employment income”)

• CPP and OAS would only be claimed as of 65 years of age, when I’ve determined spousal support will terminate. As such, the quantum of net income determined in the Jocsak report necessarily are reduced by $8,238 for CPP and $9,292 for OAS, being a total reduction of $16,530.

• Medical expenses of $45,000 with equivalent adjustment to NDI.

2025:

Husband:

• Net self-employment income: $94,822.00 based on Jocsak report. (Quantified on consent of both parties as “net self- employment income”)

• Given the Husband resides in Quebec, I am prepared to rely on the Jocsak report regarding the retirement income an allow for a reduction of his net income due to $3,682 for additional taxes paid by him.

• Rental income is accounted for in the net income, above.

• CCA: $14,062.88 [A608];

Wife:

• Net self-employment income: $80,621.00

• CPP and OAS reduction of $16,530.

• Medical expenses of $45,000 with equivalent adjustment to NDI.

2026:

Husband:

• Net self-employment income: $94,822.00

• Deduction of $3,682 for additional taxes due to residing in Quebec.

• Rental income is accounted for in the net income, above.

• CCA: $14,062.88.

Wife:

• Net self-employment income: $80,621.00

• CPP and OAS reduction of $16,530.

• Medical expenses of $45,000 with equivalent adjustment to NDI.

Quantum and Duration

[191] At the time of the Final Order, the Husband’s income was approximately $425,284. Based on his pre-retirement and projected income, his situation is now considerably different.

[192] In 2013, the Wife was suffering from health issues which restricted her ability to be employed. This has not changed.

[193] The Husband and Wife both submit that the Final Order reflected mid-range spousal support. While the Wife argued at the motion that the range ought to be shifted to high-range support, or 50/50 NDI split due to her compensatory entitlement and needs, I am not persuaded that would be appropriate in these circumstances. Though I accept that the cost to meet the Wife’s health issues have increased, this is in part due to the treatment plan she chooses to follow. I am not persuaded that the evidence at this motion supports an adjustment of the range support from 2013.

[194] I note that the Husband has paid approximately $2.1 million of spousal support since separation. Currently, the parties’ net worth is similar, with the Wife’s being $1,574,592.09 and the Husband’s being $1,182,799.27.

[195] Pursuant to the Divorce Act, the objectives of spousal support are to recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; 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; relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[196] I am of the view that the Wife continues to be entitled to compensatory support, for a further two-year transitional period, until September 30, 2026. At that point, the Wife will be 65 years old and the Husband 66 years old, and I find that a termination as of September 2026 will have met the objectives of spousal support.

Calculation

[197] I find it reasonable in the circumstances, considering when the Motion to Change was commenced, when the Husband gave notice of his retirement in April 2024 and that his income has experienced a significant drop as of June 2024, that the recalculation of spousal support ought to commence as of June 1, 2024.

[198] I find it appropriate that the Husband pay mid-range spousal support in accordance with the incomes and/or inputs noted above.

[199] Thus, for commencing June 1, 2024, based on mid-range support, the Husband is ordered to pay $5,999.00 per month, until December 31, 2024. As the Husband has continued to pay $15,500.00 per month based on the 2013 Final Order, for which he is commended, this results in an overpayment of $9,501.00 per month since June 1, 2024.

[200] For both 2025 and 2026 years, based on mid-range support, the Husband shall pay $1,423.00 per month, commencing January 1, 2025, and terminating September 30, 2026.

The Wife’s claim to retroactive adjustment of spousal support

[201] The Wife sought an order to retroactively adjust spousal support payable by the Husband and fixing arrears at $292,356.00. She relied on the Baker Tilly Report to support her claim.

[202] She provided evidence that her mental health precluded her from advancing her claims until October 2022, when she commenced her Motion to Change.

[203] The Husband contended that the Wife waited over nine years prior to bringing a retroactive review of support. She has never found herself in a precarious financial position during that time despite never having returned to work. Further, it was unreasonable to advance this claim at this time, given her admission of incurring legal fees annually since 2014 related to starting a review of support based on income tax returns, but had not taken the necessary steps to claim retroactive spousal support prior to fall of 2022.

[204] Colucci established that first, the court must determine if there has been a material change in circumstances. Once that test is established, then the court must look at the date of effective notice for the requested change, failing which the court would look at the date of actual notice. Effective notice for retroactive increase requests by the recipient requires the recipient to broach the topic with the payor. The Wife’s view was that effective notice occurred at the latest, in April 2015 when her lawyer sent a request for financial information to the Husband.

[205] The Husband meanwhile submitted that a claim for retroactive support would cause him financial difficulties as he will soon be fully retired and does not have the means to make such a payment. In this regard he relied on Kerr v. Baranow, 2011 SCC 10, which addressed the S. (D.B.) factors which were equally applicable on the issue of spousal support, namely, the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse: Kerr v. Baranow, 2011 SCC 10, at para. 207.

[206] However, as noted in Kerr, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support: Kerr v. Baranow, 2011 SCC 10, ibid. The court remarked that spousal support has a very different legal basis than child support. There is no presumptive entitlement to spousal support, a spouse is under no obligation to look after the legal interests of their former spouse; and in spousal support there is highly discretionary balancing of means and needs.

[207] The court in Angulo v. Angulo noted, “the court must consider the recipient's needs, the conduct of the payor, any hardship the retroactive award may occasion on the payor, and the reason for the delay in seeking support. (Kerr v. Baranow, 2011 SCC 10 (S.C.C.) at para 207; P. (S.) v. P. (R.), 2011 ONCA 336 (Ont. C.A.)). A consideration of these factors does not favour a retroactive spousal support award.”: See Angulo v. Angulo, 2019 ONSC 1456, at para. 79. In that case, the court was not convinced as to the explanation proffered on the delay in seeking past adjustments, particularly in the face of the payor having complied with his obligations to pay support for 14 years and having retired two years prior. The court found that the recipient’s needs did not justify the retroactive award as she had considerable equity in her home and could continue to earn rental income, coupled with the terms of the separation agreement alluding to the use of each party’s capital for support.

[208] As articulated in Riznek v. Riznek, 2022 BCSC 2068, there are no mandatory disclosure provisions in the SSAG’s. In Riznek, the court cited Arsenault v. Blanchard, 2018 NBQB 14, which was a case where the payor husband sought to vary spousal support and the recipient wife sought to retroactively increase support based on the husband’s increased income since the date of the original order. The court noted there was no requirement for an annual exchange of income information. In Arsenault, the court held that absent such a requirement, the failure to disclose income increases was not blameworthy conduct for the purposes of the retroactive variation analysis: See Riznek v. Riznek, 2022 BCSC 2068, at para. 78.

[209] The court in Riznek went on to find that the comments regarding spousal support from Kerr v. Baranow support the view that there is no free-standing obligation for ongoing and continuous financial and income disclosure in respect to spousal support issues and that failure to disclose will be one of a number of factors that will inform the analysis of ongoing and/or retroactive spousal support: Riznek v. Riznek, 2022 BCSC 2068, at para. 81.

[210] Further, the court in Riznek distinguished Colucci v. Colucci, 2021 SCC 24, which was a child support case, and found that the law does not support the existence of a duty to disclose material increases to income, absent a clear term to that effect in a valid order. The absence of a clear term of annual disclosure in the final order demonstrated that the order was intended to give the parties finality and certainty with respect to spousal support: Riznek v. Riznek, 2022 BCSC 2068, at para. 121.

[211] In support of her argument that the Husband engaged in blameworthy behaviour, the Wife relied on Hevey v. Hevey, 2021 ONCA 740 where the court found the same imperatives as set out in Colucci apply when dealing with issues of retroactive spousal support, namely that courts must encourage proactive financial disclosure and in no way reward those who improperly withhold, hide or misrepresent information they ought to have shared: Hevey v. Hevey, 2021 ONCA 740 at para. 54.

[212] The facts in Colucci are distinguishable, as are those in Hevey. Colucci was a child support case where the payor father was found to be a recalcitrant payor, in arrears of approximately $170,000.00 representing 16 years of child support, seeking a retroactive decrease of support. The law regarding the parental obligations to support their child and provide timely financial disclosure is clear. In Hevey, there was a misrepresentation of disclosure of arguably $21 million leading to a waiver of equalization and support.

[213] On the issue of delay, the Wife relied on Legge v. Legge, 2023 BCCA 365 wherein the court articulated that though there may be delay occasioned by a support recipient, the court should consider along with this factor the excuse proffered for the delay. In that case, it was a lack of financial resources and “her mental resources were taxed by the conflict with her spouse.” Similarly, here, the Wife articulated that her mental health precluded her from advancing her claim in a timelier fashion.

Analysis

[214] I have already determined there has been a material change in circumstances.

[215] The Baker Tilly reports indicated that the Husband has underestimated his income for spousal support in the amount of $317,640.00, inclusive of the 2023 income [see B849].

[216] While the Wife occasioned to have her Income Tax Returns and Notices of Assessment sent to the Husband as of July 2013, I am not persuaded that the Husband would have been aware that these were sent to him for him to reciprocate disclosure.

[217] Though the Wife argued that she was unable to bring this matter back to court prior to 2022 due to her mental health, the evidence established that from 2013 to 2022, she nevertheless incurred legal fees annually, presumably in relation to support as she claimed the expense on her Income Tax Returns [A479]. She articulated: “My lawyer has been asking me to provide him with information to bring a motion to change earlier but my health has simply not allowed for me to do this.” She also provided a letter from her doctor who opined that it was reasonable for her not to pursue the claim due to her PTSD.

[218] I accept that the Wife’s date of effective notice of request for financial disclosure was April 21, 2015.

[219] The Wife acknowledged there was no obligation in the Final Order to exchange financial disclosure.

[220] The jurisprudence confirms there is no presumptive entitlement to spousal support, a spouse is under no obligation to look after the legal interests of their former spouse; and in determinations of spousal support there is highly discretionary balancing of means and needs. There are no mandatory disclosure provisions in the SSAG’s.

[221] The court must consider the recipient's needs, the conduct of the payor, any hardship the retroactive award may occasion on the payor, and the reason for the delay in seeking support.

[222] The Husband made all the required support payments in a timely fashion therefore I am not prepared to find him to be a recalcitrant payor. While the Wife argued the Husband engaged in blameworthy behaviour by not providing financial disclosure, on the facts of this case, I am not prepared to make such a finding. The Final Order imposed no obligation to exchange financial disclosure and it specifically restrained the parties from communicating with each other unless both parties consented to same in writing “as exchanged through [the Wife’s lawyer] or his designate.”

[223] I am not persuaded it is appropriate to award retroactive spousal support. Though the Wife has serious mental and physical health ailments, she was able to seek annual legal advice with her lawyer, who repeatedly asked her to provide evidence in order to pursue the support claim. She waited until 2022, when the Husband was amid arranging his affairs to retire. The Husband has complied with his obligations to pay support for the past 11 years. The Wife’s needs do not justify a retroactive award. The award would create significant hardship for the Husband.

[224] As such, the request for retroactive spousal support is dismissed. Pursuant to this determination, I am not of the view that a finding as to the Husband’s increase of income is necessary.

Life Insurance Policy

[225] The Final Order provided that the Husband maintain a Life Insurance Policy (“LIP”) of $1 million to secure spousal support. In order to do so, he maintained three LIP’s naming the Wife as irrevocable beneficiary, at a cost of $5,529 for 2024. One of the policies decreased annually as of him turning 61 years old. He argued he was no longer in a position to maintain $1 million worth of Life Insurance. He requested termination of this term or alternatively a reduction and eventual termination. Any reduction should reflect the continuing obligation for support.

[226] The Wife agreed that the insurance obligation should be reduced to a reasonable amount as determined by FamilySure insurance or another mutually accepted actuary or insurance company.

[227] The Ontario Court of Appeal in Katz v. Katz found that the power under the Family Law Act to order a spouse to obtain insurance to secure payment of support payments that are binding on the payor's estate also exists under the Divorce Act: Katz v. Katz, 2014 ONCA 606, at para. 73.

[228] However, the court cautioned that “consideration should be given to the amount of insurance that is appropriate. It should not exceed the total amount of support likely to be payable over the duration of the support award. Moreover, the required insurance should generally be somewhat less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout. Further, the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes. The obligation to maintain insurance should end when the support obligation ceases — and provision should be made to allow the payor spouse to deal with the policy at that time. Finally, when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor's estate.” Katz v. Katz, 2014 ONCA 606, at para. 74.

[229] In Hubault Virgili c. Virgili, 2021 NBCA 7, the court found fit in a situation where there was a variation of spousal support to also reduce the amount of life insurance coverage to be maintained to secure it.

[230] I find that it is reasonable in these circumstances to reduce the Life Insurance Policy to $73,299.00, which is representative of spousal support obligations ordered above, terminating on September 30, 2026.

Disposition

[231] Commencing June 1, 2024, and on the first day of each month until December 31, 2024, based on mid-range support, the Husband shall pay to the Wife $5,999.00 per month for mid-range spousal support.

[232] From January 1, 2025, until the termination of spousal support effective September 30, 2026, based on mid-range support, the Husband shall pay to the Wife $1,423.00 per month.

[233] The parties shall quantify the overpayment of spousal support made by the Husband and include the amount in the draft final order. The overpayment shall be repaid by the Wife to the Husband no later that December 6, 2025, unless there is an agreement in writing to afford her more time.

[234] The Wife’s claim to retroactive adjustment of spousal support is dismissed.

[235] The Husband shall maintain a Life Insurance Policy to guarantee his support obligations, naming the Wife as the irrevocable beneficiary, in the amount of $73,299.00 until October 1, 2026, at which time he may terminate that policy. The Wife shall sign any necessary documentation to terminate that irrevocable beneficiary designation upon the Husband making the final payment of spousal support.

[236] The parties are invited to resolve the issue of costs between them. Failing resolution, costs submissions shall be sent to Desormeau J’s attention, both by filing at the Ottawa courthouse and a courtesy copy being sent to my judicial assistant: CornwallJudicialAssistants@ontario.ca. The Husband has 30 days from the release of this ruling, and the Wife has 30 days thereafter. Maximum 3 pages plus bills of costs and (case name, citation, and paragraph number only for caselaw). Should no submissions be received within the timelines outlined above, the costs issue shall be deemed to having been resolved.

The Honourable Justice Hélène C. Desormeau

Released: December 6, 2024