Superior Court of Justice – Ontario

Court File No.: FC-22-1333
Date: 2025/01/08

RE: Andre Bernard Vigneault, Applicant
– and –
Delphine Sandra Anne St. Jacques, Respondent

Counsel:
Richard Bowles, for the Applicant
Self-Represented Respondent

Heard: December 19, 2024

Reasons for Decision
Audet, J.

Introduction

[1] The Applicant, Mr. Vigneault, brings a motion seeking to vary the spousal support provisions of the temporary order of Doyle J. dated April 6, 2023, by reason of his retirement from employment on April 1, 2024. He requests that the court reduce the spousal support award to $1 per month on a temporary basis, and relieve him of the obligation to maintain the Respondent, Ms. St. Jacques, as a beneficiary under a life and health insurance coverage in the amount of $35,000, as ordered by Doyle J.

[2] Ms. St. Jacques brings her own motion seeking to vary the order of Doyle J. by awarding retroactive spousal support for the period of February 2022 to August 2023, and to increase the life insurance coverage that Mr. Vigneault is required to maintain to guarantee his spousal support obligations. In addition, she seeks a temporary order requiring Mr. Vigneault to further secure his spousal support obligations by designating her as the beneficiary of his RRSPs.

Preliminary Issue: Supplementary Affidavit

[3] On January 17 and March 4, 2024, Shelston J. made clear endorsements regarding the parameters of this motion. He imposed timelines for the filing of motion materials, and granted Ms. St. Jacques an extension of time until March 8, 2024, to serve and file her reply affidavit. The parties were permitted to proceed to questioning on their affidavits by no later than March 29, 2024. After the parties’ questioning was completed, Ms. St. Jacques served and filed a supplementary affidavit sworn in May 2024 totalling 215 pages, and in November 2024 she served and filed another supplementary affidavit.

[4] This is after she had already filed a reply affidavit on March 8, 2024, totalling 120 pages.

[5] For oral reasons given, Ms. St. Jacques’ May and November affidavits were struck from the record, and I did not consider either of them, except for the excerpts of the transcripts of Mr. Vigneault’s questioning which were attached to her November affidavit, and which are properly before me for the purpose of this motion.

Variation of Spousal Support

[6] The facts relevant to the issue of interim spousal support are set out in Doyle J.’s endorsement released in April 2023. In her endorsement, Doyle J. ordered Mr. Vigneault to pay interim spousal support to Ms. St. Jacques in the amount of $3,000 per month, commencing on the date of the closing for the sale of the parties’ matrimonial home (which occurred in August 2023).

[7] Her interim spousal support order was based on the following main facts:

• The parties had been married for 30 years, and entitlement was not in dispute;
• Mr. Vigneault was employed on a full-time basis as the executive director of Rideau Family Health Team, earning an annual income of $93,050 in addition to Canadian Pension Plan (“CPP") retirement benefits of $10,404, for a total of $103,500;
• Ms. St. Jacques is a licensed paralegal who had been operating her paralegal and coaching business for over two years. In 2021 she showed a tax loss of $10,000. Her financial statement sworn in December 2022 showed an income of $12,000 per year;
• Recognizing that at the interim stage, the court does not embark on an in-depth analysis of the parties' circumstances, Doyle J. was not prepared to impute income to Ms. St. Jacques for the purpose of making a temporary order; and
• Based on the above, she imposed a monthly spousal support obligation of $3,000, which was somewhere between the low and mid-range suggested by the Spousal Support Advisory Guidelines (acknowledging that Ms. St. Jacques’s support calculations did not include her $12,000 income).

[8] It is important to add that at the time of Doyle J.’s interim order, Mr. Vigneault was 65 years old, and Ms. St. Jacques was 63 years old. They are now 67 and 64, respectively (Ms. St. Jacques will turn 65 in May 2025).

[9] Since Doyle J.’s decision was made, I find that the following material changes in circumstances have occurred:

• On or about September 2022, Mr. Vigneault was diagnosed with colorectal cancer following an unrelated debilitating long illness over the summer of 2022. He underwent surgery in early 2023 at Princess Margaret Cancer Centre in Toronto. His cancer is in remission, and he continues to be followed at Princess Margaret Hospital. While the cancer diagnosis itself was known at the time of the motion before Doyle J., the impact of Mr. Vigneault’s diagnosis and subsequent surgery on his ability to continue to work were not. Mr. Vigneault has been on sick leave without pay since July 2023, but he received short term disability benefits for some time thereafter. As of October 11, 2023, however, Mr. Vigneault was on sick leave without pay;
• Mr. Vigneault ceased to be eligible for disability benefits when he turned 65 in November 2023;
• Mr. Vigneault’s income in 2023 was $71,277 (this is $30,000 less than the income used by Doyle J. to determine his temporary spousal support obligations); and
• On April 1, 2024, Mr. Vigneault retired from his employment. His current income comprises of CPP retirement benefits and Old Age Security (“OAS”), totalling approximately $22,000 per annum. Between October 2023 and April 1, 2024, he had carry-over compensation time for the fall of 2023 that was paid in 2024 (between January and March), in addition to some part time hours that he has been working to help the organization hire and transition to a new Executive Director prior to his retirement. It appears that his total income in 2024 will be in the range of $33,000, comprising of $11,134 in employment income plus $22,000 of OAS and CPP benefits. On a go forward basis, his income will be in the range of $22,000.

[10] This motion was supposed to be heard in September 2024, but had to be adjourned to December for reasons unknown to me. Mr. Vigneault has complied with his obligation to pay spousal support from August 2023 (the date at which the sale of the matrimonial home closed) to September 2024, when he stopped paying. Until September 2024, he had to use his capital assets (savings and his share of the partial proceeds from the sale of the home) to pay his spousal support and remain in compliance with the temporary order in place.

[11] In her September 2024 financial statement, Ms. St. Jacques states that her 2023 income was $19,590. However, her 2023 Statement of Business Income and Expenses shows a total gross income of $13,909, with business expenses totalling $11,705. A look at this document reveals that there are very few “true” business expenses (for instance, she deducts as business expenses meals and entertainment, vehicle expenses, property taxes, utilities, etc., although she does not have an office outside of her home). For the year 2024, Ms. St. Jacques indicates in her financial statement that she earned self-employment income of $15,612 (before tax and business expenses), as well as CPP and OAS income of $5,193. Regardless of what her true income is for support purposes, it appears to be roughly equivalent to Mr. Vigneault’s income at this time.

[12] It is important to note that Ms. St. Jacques is not taking the position that Mr. Vigneault earns undeclared income or that he has access to more income than what he currently earns. Her position is that it was unreasonable for Mr. Vigneault to retire given his ongoing spousal support obligations.

Ms. St. Jacques’ Motion for Retroactive Support

[13] Ms. St. Jacques’s motion for retroactive spousal support for the period of February 2022 to August 2023 has already been decided, on a temporary basis, by Doyle J. in April 2023. She declined making a support order for that period based on her factual conclusion that Mr. Vigneault, during that time, was making significant financial contributions to the maintenance of the matrimonial home in which Ms. St. Jacques (alone) resided. She ordered that the spousal support obligation would commence once the house was sold. Ms. St. Jacques’s attempt to now seek retroactive spousal support for the same period is essentially an appeal in disguise. It is dismissed.

Mr. Vigneault’s Motion to Reduce Spousal Support

[14] In Edisbury v. Edisbury, 2022 ONSC 2407, para 33, Finlayson J. describes the test to vary an interim support order:

(a) whether there is a strong prima facie case that there has been a material change in circumstances since the time of the order in question;
(b) whether there is a clear case of hardship;
(c) whether there is a situation of urgency; and
(d) whether the moving party comes to court with "clean hands".

[15] Mr. Vigneault’s current income is not in dispute. What is in dispute is whether it was reasonable for Mr. Vigneault to retire on April 1, 2024, or whether he should be required to continue to work to support his wife of more than 30 years.

[16] In St-Jean v. Fridgen, 2017 ONSC 7680, Trousdale J. laid out the principles applicable to the determination of whether a support payor’s decision to retire is reasonable:

37 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.

38 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.

39 I note that in Canadian society, age 65 is generally considered to be a customary age of retirement for many people. For example, the Ontario Old Age Security pension is available to Ontario residents once they attain the age of 65 years. The Canada Pension Plan pension is available to those who have contributed to the Plan and who are 65 years of age without deduction. If a person wishes to start receiving the Canada Pension Plan after attaining 60 years of age but prior to age 65, the lifetime pension will be reduced proportionately. If a person defers receiving the Canada Pension Plan to a later date, the lifetime pension will be increased proportionately.

[17] Mr. Vigneault states that at the time of the first motion before Doyle J., he was already planning to retire in the near future, although the precise date was not yet defined.

[18] The motion judge was alive to the possibility that spousal support would need to be varied before the trial was held. This is why she rejected Ms. St. Jacques’s request to include a term in her order that the spousal support would be non-variable for 12 months. At para. 20 of her endorsement, Doyle J. stated: “Spousal support will commence on the date of the closing for the sale of the matrimonial home. I am not inclined to fix spousal support for 12 months as interim support orders should be able to be varied in the event of a material change of circumstances.”

[19] On a temporary basis, I find that Mr. Vigneault’s decision to retire was reasonable considering his age, his serious health issues, and his overall mental health. He has continued to pay spousal support since he went on medical leave in October 2023 with the use of the partial funds received following the sale of the parties’ matrimonial home. Mr. Vigneault acknowledges that he will owe Ms. St. Jacques an equalization payment, and it made sense for him to continue to pay the monthly spousal support with the use of his share of the sale proceeds pending the outcome of this motion. However, the continued obligation to do so until trial (which will take place in November 2025 in accordance with the order I make today), would lead to significant financial hardship for him given his current income comprising of CPP and OAS benefits.

[20] I acknowledge that Ms. St. Jacques is in no better financial position than Mr. Vigneault. However, spousal support, once entitlement is established, is not based solely on a recipient’s needs: the payor’s ability to pay must also be considered. While I acknowledge that Ms. St. Jacques’ entitlement to spousal support is highly compensatory, given the age of the parties when they separated, and their respective financial position, it ought to have been expected that Mr. Vigneault would not be working until his late seventies simply to continue to support Ms. St. Jacques.

[21] At this time, both parties are left to rely on government assistance or government funded retirement benefits, as well as on whatever modest savings they were able to set aside for their retirement over the course of the 30-year marriage, based on the financial decisions they made during their relationship. Unfortunately for them, neither has a pension plan. Much of their life savings is in the matrimonial home they used to own. They are now both required to share housing expenses with another; Ms. St. Jacques with the parties’ adult son (who earns a living as a lawyer), and Mr. Vigneault with his new partner. The court cannot impose spousal support obligations to punish alleged spousal misconduct, or based on a party’s expectation that they will be financially supported well into their old age. The income earned by Mr. Vigneault at this time does not permit him to continue to support Ms. St. Jacques past his reasonable retirement at age 67.

Life Insurance

[22] Ms. St. Jacques’s request to increase the life insurance coverage that Mr. Vigneault is required to maintain is also a re-argument of what has already been decided by Doyle J. She ordered Mr. Vigneault to maintain the life insurance coverage available to him through his employment benefits in the amount of $35,000, to guarantee his spousal support obligations of $3,000 per month.

[23] Given the decision I make today to reduce Mr. Vigneault’s spousal support obligation to $1 pending trial, I see no reason to impose upon him an increased or continued obligation to maintain life insurance coverage to guarantee his future spousal support obligations. Moreover, those benefits are no longer available to him through his employment, given his retirement.

[24] Ms. St. Jacques wishes to keep in force the life insurance policy that the parties own jointly with Manulife on their lives. Mr. Vigneault consents to the immediate transfer of that life insurance policy to her in her sole name, and I so order. Mr. Vigneault’s refusal to continue to pay his share of the monthly premiums since September 2023, and Ms. St. Jacques’ request for the reimbursement of this amount, is an issue that can be canvassed at trial.

[25] During the motion before me, Mr. Vigneault confirmed that he was prepared to pay to Ms. St. Jacques the amount of $39 per month, which is the portion of the monthly premiums payable under the Manulife policy attributable to maintaining $35,000 of life insurance coverage, until a final decision is made on ongoing spousal support at trial. I so order.

Other

[26] Since the commencement of this matter, Ms. St. Jacques has reiterated her intention to bring a motion to have this matter transferred to Barrie. However, after three years of litigation, this has still not been done.

[27] This matter cannot remain before the court forever. Prompt steps must be taken to come to a final settlement or to a final determination of the outstanding issues if a settlement is not possible.

Disposition

[28] As a result, I make the following temporary order:

1. Mr. Vigneault’s spousal support obligations under Doyle J.’s Interim Order dated April 6, 2023, is hereby terminated temporarily until trial, effective September 30, 2024.

2. Beginning on October 1, 2024 and every month thereafter until further order of the Court, Mr. Vigneault shall pay to Ms. St. Jacques the sum of $39 per month representing the portion of the monthly premiums payable under the parties’ joint Manulife policy attributable to maintaining $35,000 of life insurance coverage for the benefit of Ms. St. Jacques.

3. The joint Manulife insurance policy shall be immediately transferred into Ms. St. Jacques’ sole name, and she shall be responsible to pay the monthly premiums associated with same, subject only to the payment referenced in para. 2 above. This order is a final order on consent of the parties.

4. Ms. St. Jacques shall have until February 14, 2025, to serve and file her Notice of Motion and supporting affidavit seeking, exclusively, the transfer of these proceedings to Barrie, if she so chooses. If her motion materials are not served and filed by that date, she shall lose the right to bring such motion in the future, and this proceeding shall remain before the Ottawa Court.

5. Mr. Vigneault shall have 15 days from the day of service of Ms. St. Jacques’ motion materials to serve and file his responding affidavit.

6. Ms. St. Jacques shall have 5 days thereafter to serve and file a brief reply, if any.

7. The parties’ respective affidavit shall not exceed 10 pages each, double-spaced, with relevant exhibits. Ms. St. Jacques’s reply affidavit shall not exceed five pages, double-spaced, with relevant exhibits.

8. The motion shall be set for 45 minutes, with each party having 20 minutes to make their submissions.

9. To the extent that Ms. St. Jacques fails to serve and file her motion materials by February 14, 2025, or if the court dismisses her motion to transfer the proceeding to Barrie, this matter shall be added to the November 2025 Trial List. It shall be the responsibility of the parties to promptly notify the Trial Coordination Office in Ottawa of the need to add this matter to the November 2025 list if the matter remains in Ottawa.

10. The parties shall take timely steps to schedule a settlement conference by no later than the end of August 2025, and a Trial Management Conference by no later than the end of October 2025.

Justice J. Audet
Date: January 08, 2025