Madhoo-Persaud v. Mattson, 2012 ABQB 542

Court of Queen ’ s Bench of Alberta Citation: Madhoo-Persaud v. Mattson, 2012 ABQB 542 Date: 20120830 Docket: 4801 128483 Registry: Calgary Between: Neranjan Madhoo-Persaud Applicant - and - Joyce Lee Mattson, aka Joyce Lee Madhoo-Persaud Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] Neranjan Madhoo-Persaud applies to eliminate or reduce spousal support based on a change in his circumstances.

Joyce Lee Mattson opposes the application. [ 2 ] The matter was initially heard on March 1, 2012. Further submissions were filed by Mr. Madhoo-Persaud on March 23, 2012. Ms. Mattson filed a further response on March 30, 2012. Background

[ 3 ] The parties were married in March, 1989 after having cohabited since January, 1986. They separated in September, 2006 and were divorced in January, 2011. [ 4 ] The divorce judgment orders Mr. Madhoo-Persaud to pay Ms. Mattson $1,500.00 per month indefinitely. [ 5 ] The divorce judgment followed a Matrimonial Settlement Agreement between the parties dated March 5, 2009. The Agreement provides in clause 6 that Mr. Madhoo-Persaud is to pay $1,500.00 per month to Ms. Mattson as spousal support, commencing April 1, 2009.

Paragraph 6.2 provides: The Husband or Wife may make application to vary the amount of spousal support paid to the Wife if a change in the condition, means, needs or circumstances has occurred to either former spouse since entering into this Agreement. [ 6 ] Ms. Mattson received a matrimonial property settlement payment of $152,547.52 in consideration of transferring her interest in the matrimonial home and other assets to Mr. Madhoo-Persaud. He remortgaged the home to raise the necessary payment. [ 7 ] At the time of the Agreement, Mr. Madhoo-Persaud was employed as an aeroplane mechanic.

He had worked for the same employer in that capacity for a number of years. His 2007 income was $99,055 and his 2008 income was $106,598. He earned $89,000 in 2009 and $62,770.79 in 2010 (subsequently reassessed at $47,497.00). His 2011 income is not in evidence. He is currently 46 years old. [ 8 ] Ms. Mattson was unemployed in 2009 and was helping one of her daughters (from a previous relationship) raise her grandson. She was appointed a joint guardian of the grandson by an order which also provided that Mr. Madhoo-Persaud was to have no contact with the boy.

In addition, she was fostering a child from June 2008 until August, 2011 for which she received $24 per day. [ 9 ] The parties have one child together. Ms. Mattson has three children from a previous relationship who lived with the parties. During the course of their relationship, Ms. Mattson worked outside the home infrequently and she alleges that theirs was a “ traditional ” marriage where Mr. Madhoo-Persaud worked outside the home, and she looked after the household and assumed most of the child- raising responsibilities. Ms.

Mattson claims that she cannot now work in any meaningful capacity because of various health issues. Ms. Mattson is currently 57 years old. [ 10 ] Mr. Madhoo-Persaud argues that a number of things have occurred which constitute changes in circumstances allowing for the elimination or reduction of his spousal support obligations: 1. He was injured in a motor vehicle accident on October 3, 2009 and has not worked since; 2. His employment was terminated on February 18, 2011 and his income since the end of August, 2011 has been reduced to $4615.00 per month in disability benefits from Great West Life; 3.

Great West Life notified him in December, 2011 that his monthly payment would be reduced to $3,797.62 in anticipation of him receiving Canada Pension Plan disability benefits of $$817.39 per month; 4. Great West Life notified him in March, 2012 that his disability benefits would be discontinued effective May 23, 2012 because of its determination that he would no longer qualify for benefits because the “ own occupation ” coverage was expiring and he was capable of gainful employment providing at least 60% of his former earnings; 5. His doctor (who is Ms.

Mattson ’ s doctor as well) has indicated that he will not be able to work until January, 2013 at the earliest; 6. He may require surgery; 7. He is unlikely to be able to find similar employment to his former job, as he does not have computer skills or training, and is unfamiliar with newer, computerized technologies, and his age and physical limitations will likely make re-employment difficult. If he is able to find work, he expects that he will earn between $40,000.00 and $50,000.00 per year;

8. Ms. Mattson has not taken any reasonable steps to become self sufficient; 9. Ms. Mattson has an earning capacity of between $20,000.00 and $49,000.00 per year in her former accounting and related clericalwork; and 10. Ms. Mattson should have $35,618.00 per year attributed to her for support purposes. [11] As a result of these factors, Mr. Madhoo-Persaud seeks to have his spousal support obligation eliminated effective the end ofAugust, 2011, or at least reduced to take the above changes in circumstances into account. He alleges that any payment to Ms.

Mattsoncannot be funded out of his income, and if he were to have to continue to make payments to her, they would have to come from his shareof the matrimonial property. That would be “double-dipping” in Ms. Mattson’s favour. [12] He did receive termination pay of $47,490.28 in February, 2011. He continued to pay Ms. Mattson $1,500.00 per month forthe next 6 months. It is unclear when he began to receive disability benefits from Great West Life, but there is a T4 from Great WestLife for approximately $30,000.00 for 2010. [13] He states that when the parties separated in 2006, Ms.

Mattson tested highly for executive secretarial skills, and her intentionwas to pursue further education and enter that field of work. She has done nothing to further that intention. The $1,500.00 per monthspousal support payment was initially ordered by Erb J. on November 5, 2007 on an interim basis. [14] Ms. Mattson responded that she believes that Mr. Madhoo-Persaud is not as badly injured as he claims, and that he is notworking in an attempt to avoid his maintenance obligations. She disputes his inability to work, and claims that her health issues make itimpossible for her to have meaningful employment.

She had to stop fostering a child because of health issues, and while she is helpingraise her grandson, that was with Mr. Madhoo-Persaud’s encouragement before they separated. She notes that Mr. Madhoo-Persaud isable to rent out part of the former matrimonial home, and that he has not fulfilled his obligations to her under the Settlement Agreementto pay her for his tools. She points to her obvious need for funds, and that she has had to move in with one of her children. Law [15] Mr. Madhoo-Persaud refers to: Hartshorne v. Hartshorne, 2004 SCC 22; Miglin v. Miglin, 2003 SCC 24; M.R. v.

J.R., 1984 ABCA 173; Buckley v. Buckley, 2004 ABCA 232; Hunt v. Smolis-Hunt, 2001 ABCA 229; Van Gool v. Van Gool, (B.C.C.A.); Demers v. Moar, 2004 ABCA 380; McCaffrey v. Peleolog, 2011 BCCA 378; Choquette v. Choquette, (Ont. C.A.); and Peterson v. Peterson, 2007 SKQB 316. [16] Ms. Mattson refers to: Abraham v. Abraham, 2010 ABQB 670; King v. King, 2011 ABQB 234; L.M..P. v. L.S., 2011 SCC 64;

R.P. v. R.C., 2011 SCC 65; Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; Baradoy v. Baradoy, 2010 ABCA 33; and Templeton v. Templeton, 2005 ABCA 133. Law [17] S. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2 Supp.) provides:

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or thelast variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration [18] The most recent pronouncements from the Supreme Court of Canada on spousal support variations are in L.M.P. and R.P.(supra). [19] In L.M.P., the Court dealt with a variation application where the terms of a support agreement had been incorporated into thedivorce judgment.

That is the case here. [20] The majority held that the threshold test of a material change in circumstances (following Willick v. Willick) first had to bemet before the Court could consider any variation. The starting presumption is that the existing order was in compliance with theobjectives of the Divorce Act at the time the order was made. [21] If a material change in circumstances could be shown (one which “if known at the time would likely have resulted indifferent terms”)(at para. 32) the court can then address the impact of the change in circumstances.

A change in circumstances does notauthorize the court to embark on a de novo enquiry as to spousal support.

Rather, the court is to determine “what variation of the existingorder ought to be made in light of the change in circumstances” (at para. 31). [22] At para. 40, dealing with incorporated agreements containing provisions allowing variation on a material change incircumstances, the majority stated: Alternatively, an agreement incorporated into an order may include a general provision stating that it is subject to variation upon amaterial change of circumstances, such as the agreement and subsequent order in Hickey v. Hickey, (SCC), [1999] 2S.C.R. 518.

In such a case, the agreement incorporated into the s. 15.2 order does not expressly give the court any additional informationas to whether a particular change would have resulted in different terms if known at the time of that order. The presence of such aprovision will require a court to examine the terms of the s. 15.2 order and the circumstances of the parties at the time that order wasentered into to determine what amounts to a material change. [23] As to imputation of income, the law in Alberta is based on Hunt v.

Smolis-Hunt, supra, wherein the party seeking to haveincome imputed to the other bears the onus of establishing that the other party is deliberately underemployed in an attempt to minimizesupport obligations. This can be established by inference from the proven facts. Analysis [24] The starting place is to determine whether there has been a material change in circumstances, not contemplated by the partieswhen they made the agreement of March 5, 2009 and had it incorporated into the divorce judgment on January 18, 2011.

[ 25 ] The agreement followed a contested chambers application in 2007 following which Mr. Madhoo-Persaud was ordered to pay Ms. Mattson $1,500.00 in spousal support. [ 26 ] The divorce judgment dated January 18, 2011, consented to on behalf of Mr. Madhoo-Persaud, refers to the March 5, 2009 settlement agreement, and orders him to pay $1,500.00 per month indefinitely. Variation is not dealt with in the judgment. [ 27 ] It is not clear why the parties took from March 5, 2009 until January 18, 2011 to complete the divorce judgment.

According to L.M.P. , the order is presumed to have been in compliance with the provisions of the Divorce Act at the time it was made. It is the time of the order, and not the time of the agreement, that is relevant for the purposes of determining the parties ’ circumstances at the applicable time. [ 28 ] What were the parties ’ circumstances in January, 2011? [ 29 ] Mr. Madhoo-Persaud had been injured in the motor vehicle accident, but still had his long-standing employment. He was not working, but was receiving income from his employer or a long-term disability insurer.

He did not appear to object to the level of spousal support which had been agreed to in March, 2009 despite his injuries. He was the sole owner of the matrimonial home, and was either already renting part of it out, or had the ability to do so. He had increased his debt burden to purchase Ms. Mattson ’ s interest in the matrimonial home. [ 30 ] Ms. Mattson was not working. She had received over $150,000 by way of a matrimonial property settlement. She was fostering a child, and was looking after her grandson. She had no source of income other than the spousal support Mr. Madhoo-Persaud was paying her.

She had taken no steps to find employment; she had not taken steps to retrain or pursue further education. By that time, she had not worked in any gainful employment for some time. Changes in Circumstances [ 31 ] Have there been any changes since that time which, if then known, would likely have resulted in different terms and conditions? [ 32 ] The evidence does not disclose any material change in Ms. Mattson ’ s circumstances. While Mr. Madhoo-Persaud may have expected, in 2007, that Ms.

Mattson would be pursuing retraining, further education and employment, by March, 2009 when the agreement between them was made, she had taken no such steps. She was still fostering a child, and looking after a grandson. That was again the situation in January, 2011 when the divorce judgement was granted. [ 33 ] I do not see Ms. Mattson ’ s ongoing failure (whether justified or not) to pursue gainful employment as a change in circumstance. She was not obliged under the agreement or the judgment to pursue work. If she had begun to work and receive income, that would have amounted to a change in circumstances.

But her failure to do so simply perpetuated the status quo as it existed in 2009 and again in January 2011. She was (subject to any other change in material change in circumstances) entitled to receive $1,500.00 per month whether she looked for work, pursued training or education, or not. Only in the event that she actually began to receive income would there be a material change in circumstances. In any event, there is nothing in the evidence to suggest that Ms. Mattson ’ s failure to take steps to become independent are motivated by an intention to maximize her entitlement to ongoing spousal support.

There is ample evidence of health issues making gainful employment unlikely having regard to her multitude of health complaints, Ms. Mattson ’ s age and her lengthy absence from the workforce, together with a pattern of unemployment over the course of the parties ’ relationship. [ 34 ] With respect to Mr. Madhoo-Persaud, since the date of the agreement and in particular January, 2011 when the divorce judgment was granted, he lost his long-term employment in February, 2011.

I do not see that the loss of that employment was something that was within the parties ’ contemplation at the time of the agreement or the divorce judgment. The consequences of his loss of employment have reduced his income significantly and leave him vulnerable to the marketplace. His skills are apparently outdated and he fears that he may have a difficult time getting comparable employment because of his dated skills, age and health issues.

[ 35 ] I am satisfied that as a consequence of his loss of employment, Mr. Madhoo-Persaud ’ s circumstances have changed in a material way, entitling the court to review his spousal support obligations. Consequences of Changes in Circumstances [ 36 ] What change, if any, should be made to his obligations? [ 37 ] There is no question that Ms. Mattson is in need of support. She has limited ability to support herself and is now dependent on her family to assist her. She is continuing to assist with the raising of her grandson so it is clear that she is able to do some things.

She was able to foster a child until August, 2011, although she is now at an age where raising small children is exceptional. [ 38 ] There is also no doubt that Mr. Madhoo-Persaud ’ s ability to pay spousal support has been impacted since August, 2011 and will continue to be impacted until he is able to return to full time work and finds a new job. [ 39 ] If $1,500.00 per month was appropriate in the context of Mr. Madhoo-Persaud having an income of $99,055.00 in 2007, $106,598.00 in 2008 and $89,426.00 in 2009, $47,497.00 in 2010 and a base income of $83,000.00 in 2011, what is appropriate in the context of Mr.

Madhoo-Persaud ’ s present circumstances? [ 40 ] His income at the time of the termination of his employment (coincidentally only a month after the divorce judgement) was $6921.67 per month ($83,060.00 per year). His income had been declining from 2007. There is not a large difference between Mr. Madhoo-Persaud ’ s income for 2009, the year in which the settlement agreement was made, and his income at the time of the divorce judgment in early 2011. $1,500.00 per month on that income, when Ms.

Mattson has no income herself, was not a generous level of support. [ 41 ] Effective the end of August, 2011, his income was reduced to $4,615.00 per month (2/3 of his former income). It was at that time that his termination pay ran out. [ 42 ] Firstly, I reject both party ’ s assertions that the other is malingering or exaggerating their illnesses. Both have provided medical information from their family doctor supporting their claims. If the doctor is correct with respect to one of them, it is highly unlikely that he is incorrect with the other.

He has been their family doctor for some time. [ 43 ] Secondly, I find that neither party has established that the other is deliberately under-employed with the intent of affecting their maintenance obligations or entitlements. Until Hunt v. Smolis-Hunt ceases to be the guiding case with respect to attribution of income, this is a pre-requisite determination before income beyond that which is actually earned can be attributed to a party. Arguments of Parties [ 44 ] Ms. Mattson argues that her needs are such that Mr.

Madhoo-Persaud should be obliged to make the $1500.00 per month payment whether he has the income to pay it from or not. She relies on Abraham v. Abraham , supra , where a husband who took early retirement because of health problems was ordered to continue to pay his ex-wife spousal support in the amount agreed to notwithstanding that it would likely be paid from the husband ’ s pension.

The husband argued that there had been a material change in his circumstances by reason of his early retirement. [ 45 ] Lee J. noted that the husband ’ s health difficulties had begun many years earlier, and that his medical prognosis was excellent. He found as a fact finding that notwithstanding the husband ’ s health issues, he was “ likely to work again in a meaningful capacity and earn a relatively good income ” . (At para. 15).

As a result, he ordered the husband to continue to pay the ex-wife $2000 per month for the next three years. [ 46 ] It can be inferred that Lee J. ’ s decision was predicated on his determination that the husband ’ s early retirement was not necessary, and while it was not motivated by an intention to avoid his support obligations, it was essentially voluntary.

[ 47 ] Here, there is nothing voluntary about Mr. Madhoo-Persaud ’ s situation. His financial situation is the result of an accident and the termination of his employment by his long-term employer. His doctor advises that he is medically not able to work until at least 2013. I do not see that Abraham can be used to oblige Mr. Madhoo-Persaud to pay support to Ms. Mattson by borrowing funds or relying on his half of the matrimonial property when Ms. Mattson has received her half of the property.

Any shortcoming in the matrimonial property settlement should be addressed by enforcing those obligations, and not enforced indirectly through spousal support. [ 48 ] Ms. Mattson further argues that King v. King , supra, supports her position. However, there as in Abraham , Mr. King was relying on early retirement as a change in circumstances to justify a reduction (or elimination) of spousal support obligations. In that case, Shelley J. held that Mr. King had not made out a case to support early retirement.

While he was suffering from stress and his doctor opined that he might benefit from a change in employment, Shelley J. noted that the doctor was not saying that Mr. King should not work. She continued the spousal support with leave to revisit the issue if Ms. King continued with her employment or secured full time employment “ particularly if Mr. King in fact retires ” (at para. 52). [ 49 ] I do not see that King helps Ms. Mattson other than with respect to the uncertainly in Mr. Madhoo-Persaud ’ s income situation.

He had not, as of the date of his various affidavits, actually received less than the $4,615.00 being paid by Great West Life at least to the end of 2011. The status of those payments and his Canada Pension Plan benefits is unclear. It is also not clear as to whether payments from Great West Life have in fact ceased as threatened by them in March, 2012, or whether Mr. Madhoo-Persaud ’ s appeal has been successful. [ 50 ] Ms. Mattson argues that Templeton v. Templeton , supra , should be applied to maintain her level of support despite Mr.

Madhoo-Persaud ’ s change in financial circumstances, as she is in considerable need and Mr. Madhoo-Persaud has assets which would allow him to continue to make the existing payments to her. [ 51 ] In Templeton , which was decided while Miglin v. Miglin , supra, was being applied to variation applications (before L.M.P. ), the Court of Appeal recognized that even where a change in circumstances had been shown, there is still a residual discretion to refuse to vary an earlier award. Here, I recognize that there is a discretion to refuse to vary the January, 2011 award even in the face of Mr.

Madhoo-Persaud ’ s material change in circumstances. However, I do not see that it is fair or appropriate to put him in a position of having to dispose of matrimonial property or borrow funds to make ends meet so that he can continue to pay the full amount of previously ordered support. If the parties were together and his income declined through no fault of his own, they would be living on less. There is no good reason why the loss should not be shared here. [ 52 ] Miglin has since been explained by the Supreme Court in.

L.M.P. as being applicable to the initial review by the court of a settlement agreement, and not with respect to variation applications under s. 17 of the Divorce Act . [ 53 ] I agree with Ms. Mattson that Baradoy v. Baradoy , supra , is applicable to the circumstances here. Although it is a pre- L.M.P decision, Ms. Mattson has explained to some extent her inability to find work and demonstrated an ongoing need entitling her to spousal support on an ongoing basis. [ 54 ] I find, however, that there are no circumstances here to warrant Ms. Mattson double-dipping - having support paid out of Mr.

Madhoo-Persaud ’ s share of the matrimonial property, when she has received her share of the matrimonial property. In that regard, Hartshorne v. Hartshorne , supra , is applicable . [ 55 ] Mr. Madhoo-Persaud argues that the court should take the factors specified in s. 15.2(6) of the Divorce Act :

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the 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 spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 56 ] He cites a number of cases in support of his position, pointing especially to Ms. Mattson ’ s lack of effort to become self sufficient or gain employment of any kind. Those cases, however, are cases dealing with an initial application for spousal support, or the court ’ s first review of a spousal support agreement negotiated between the parties. They do not assist him with respect to this variation application. [ 57 ] M.R. v.

J.R. , supra , was an initial assessment of spousal support, and not a variation application. The considerations applied in M.R. are deemed to have been satisfied by the parties ’ agreement and the divorce judgment dated January, 2011. No fresh approach is warranted here such that Ms. Mattson ’ s failure to take meaningful steps to become self-sufficient does not constitute a material change in circumstances or warrant any reduction in Mr. Madhoo-Persaud ’ s support obligations. [ 58 ] Choquette v.

Choquette , supra, emphasizes the importance of the trial judge considering the factors in s. 15.2(6) of the Divorce Act in making a spousal support order in the first instance. The Court of Appeal noted at para. 5 that “ the non-happening of an anticipated event can constitute a material change in circumstances. ” Here, the “ non-happening ” of events is argued to be the lack of efforts on Ms. Mattson ’ s part to become self sufficient between January, 2011 and the present time.

However, that is not a material change, as she was not making any such efforts at the time of the divorce judgment, or even at the time of the settlement agreement. Nothing has changed since March, 2009. [ 59 ] Peterson v. Peterson , supra , is also a decision dealing with spousal support in the first instance. The issue for the trial judge was whether to make the order indefinite or to impose time limits. Here, the initial order (deemed to be in accordance with the Divorce Act ) was indefinite.

The party seeking a variation must prove that there has been a material change in circumstances, which is not the case with respect to Ms. Mattson. [ 60 ] Buckley v. Buckley, supra, is an appeal from a trial decision setting spousal support in the first instance. As noted above, the considerations are different on an initial or de novo analysis than those on a variation application. The trial judge there imputed income in a logical manner, and rejected hearsay evidence. Here, if Mr. Madhoo-Persaud is objecting to the hearsay nature of Ms.

Mattson ’ s evidence of her illnesses, that argument cuts both ways and would impact on the admissibility of Mr. Madhoo-Persaud ’ s own evidence regarding his illness or disability. The case is not applicable to the situation here. [ 61 ] Van Gool v. Van Gool , supra , which was distinguished by the Court of Appeal in Hunt v. Smolis-Hunt , was a case where the under-employed spouse was found to have been deliberately underemployed to avoid support obligations. The Court of Appeal agreed that this intent can be inferred from the spouse ’ s conduct.

In Van Gool , the Court found that the mother had “ failed to comply with the directions of (the chambers judge) ” (quoted at para. 31 in Hunt v. Smolis-Hunt ). This is not the case here. [ 62 ] Demers v. Moar , supra , referred to Van Gool with approval, but distinguished it on the basis that the evidence in that case did not support an inference of intentional avoidance of support obligations. [ 63 ] There is nothing in the circumstances here leading me to the inference that Ms. Mattson is deliberately unemployed or underemployed to maximize her entitlement to support from Mr.

Madhoo-Persaud. [ 64 ] McCaffrey v. Paleolog , supra , points out the difference between the law in B.C. where “ bad faith ” is not required to impute income, as opposed to the law in Alberta following Hunt v. Smolis-Hunt which requires a finding of an intention to avoid support obligations. While the case recognizes a “ duty to seek work ” (in para. 46), it was a first-instance determination of support obligations under s. 15 and not a review application under s. 17 . Conclusion [ 65 ] I have found that Mr. Madhoo-Persaud ’ s circumstances have changed. Ms. Mattson ’ s have not. Mr.

Madhoo-Persaud ’ s income was reduced from $6,921.67 per month to $4,615.00 per month effective the end of August, when he began to receive disability benefits from Great West Life. His income was reduced by 1/3 at that time.

[ 66 ] As at that date, it is my view that his payment to Ms. Mattson should be reduced by a similar percentage, to $1,000.00 per month. There is no valid basis for any reduction before that date. [ 67 ] It is unclear as to whether his income was actually reduced by $817.39 as threatened by Great West Life in December, 2011, and if so whether Mr. Madhoo-Persaud began to receive the corresponding amount from Canada Pension Plan. It seems likely that if he was not entitled to receive payments from Canada Pension Plan, Great West Life could not reduce their obligation to him.

Unless his total income was less than $4615.00 regardless of the source, his payment obligation to Ms. Mattson should not be reduced further. His actual income for the period needs to be verified. [ 68 ] Mr. Madhoo-Persaud, in his supplemental materials filed March 23, 2012, appended correspondence from Great West Life indicating that his disability payments were to be terminated as of May 22, 2012. Mr. Plumer, on Mr. Madhoo-Persaud ’ s behalf, submitted that while they believed that Great West Life was incorrect in its position, if an appeal was unsuccessful, Mr.

Madhoo- Persaud ’ s income might be reduced to zero, unless he was entitled to unemployment insurance benefits in which case his income is expected to be based on an annual benefit of $21,684. Again, Mr. Madhoo-Persaud ’ s actual income needs to be verified. If Mr. Madhoo- Persaud ceased to receive benefits from Great West Life and began receiving unemployment insurance benefits or a combination of unemployment insurance benefits and Canada Pension Plan benefits, the spousal support payment to Ms.

Mattson should be adjusted according so that it bears the same ratio to the income he had at the time of the divorce (18/83). [ 69 ] I have no information as to whether Mr. Madhoo-Persaud actually appealed Great West Life ’ s position, or what the results of any appeal have been, or whether he has been in receipt of unemployment insurance benefits. [ 70 ] Variation applications are generally to be made after the material change in circumstances has occurred, rather than in anticipation of it.

Exceptions may be made in cases where (for example) a spouse is considering early retirement but wants to ensure that ongoing support obligations will be reduced, although a prospective ruling cannot be counted on. Shelley J. in King considered it appropriate to wait and see if Mr. King actually retired, before ruling on any appropriate variation. [ 71 ] Here, the evidence shows that Mr. Madhoo-Persaud ’ s income was in fact reduced by 1/3 starting in September, 2011. He is entitled to have his support obligation reduced to $1,000.00 as at September 1, 2011.

It should now be known whether he suffered any further loss of income as a result of Great West Life ’ s threatened reduction on account of Canada Pension Plan benefits or whether Canada Pension Plan made the anticipated payment, or if Great West Life changed its position. That can be established by further affidavit. [ 72 ] Similarly, if Great West Life discontinued benefits altogether in May, 2012 as they threatened to do, or if they changed their position or if Mr. Madhoo-Persaud was successful in his appeal, that can be established by further affidavit.

Receipt of any unemployment insurance benefits can also be established by appropriate evidence. Reductions below $1,000.00 per month may be appropriate, but will only be made with appropriate evidence, and after the fact, as opposed to prospectively. [ 73 ] It is my intention that Mr. Madhoo-Persaud ’ s support obligations to Ms.

Mattson be reduced proportionately to his actual income, based on the ratio 15/83 (his support obligation and his income as at the date of the divorce judgment). [ 74 ] I will remain seized with the matter until the issues surrounding Canada Pension Plan, Great West Life and unemployment insurance benefits have been resolved. Heard on the 1 st day of March, 2012. Dated at the City of Calgary, Alberta this 30 th day of August, 2012.

R. A. Graesser J.C.Q.B.A. Appearances: Ben R. Plumer Barrister & Solicitor for the Applicant Henrietta O. Falasinnu Henrietta Law Office for the Respondent