DJ v. SJ, 2013 ABQB 94

Court of Queen ’ s Bench of Alberta Citation: DJ v. SJ, 2013 ABQB 94 Date: 20130211 Docket: 4801 074615 Registry: Calgary Between: D J Plaintiff (Applicant) (Cross Respondent) - and - S J Defendant (Respondent) (Cross Applicant) Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. ______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G.

Park _______________________________________________________ [ 1 ] The Plaintiff (Applicant) (Cross Respondent)(DJ) seeks to terminate his spousal support payable to the Defendant (Respondent) (Cross Applicant) (SJ) effective August 31, 2011. SJ brings a cross motion for an order setting ongoing spousal support

and spousal support arrears. [ 2 ] DJ’s application is based on the ground he retired from full time business employment effective August 31, 2011. He noted his retirement under the executed Minutes of Settlement triggered the termination of his long term ongoing spousal support obligations. He pointed out that he has faithfully met his spousal support obligations since December of 1985 and the time has arrived to allow him reasonably to retire from full time employment in accordance with his employment contract and his present age.

He believes his course of conduct over the years combined with his present circumstances makes it only equitable that spousal support be terminated under the Divorce Act , R.S.C. 1985, c 3 (2 nd Supp.). [ 3 ] SJ alleged DJ is in arrears on his spousal support obligations.

She further noted her present situation based on her assets and other non-spousal support income provides her with inadequate financial support. [ 4 ] Both parties rely on the Minutes of Settlement executed on December 18, 1992 with each receiving independent legal advice and the subsequent Consent Corollary Relief Order granted in this action on May 26, 1993. Evidence and Submissions [ 5 ] The parties married on May 23, 1964. DJ was 22 years of age and SJ was 20 years of age. They are now 71 and 69 years of age respectively. There were two children born issue of the marriage.

The oldest child, (SL), a daughter, was born on [...], 1966 and the second child, a son, (RJ) was born on [...], 1968. The children are now 46 years and 45 years respectively. [ 6 ] Since the date of the marriage DJ has been employed in the television industry in the City of Calgary. In addition he taught broadcast journalism at the Southern Alberta Institute of Technology.

After the separation he taught at Mount Royal College and for a number of years he worked at a Calgary area radio station. [ 7 ] SJ worked very briefly at the beginning of the marriage but basically she has never worked for any extended period of time since. The parties enjoyed a traditional marriage. SJ was the primary care giver and household manager. She achieved a Grade 12 education but has not taken any further education . Further she has not trained herself for any type of vocation and has not sought out any type of employment since the marital separation in November of 1985.

SJ alleges her health condition has been such over the years, that to apply for employment would have been futile, as any potential employer would have been forced to dismiss her for health reasons. Since the separation she has basically lived on the proceeds of DJ’s monthly spousal support payments. [ 8 ] In an Affidavit filed in this application on October 25, 2011 SJ deposed she became seriously ill with a diagnosis of severe clinical depression in 1977. She maintains the condition persists to the present date and she continues to receive treatment for it.

She further deposes she was diagnosed a few years after 1977 with chronic fatigue syndrome, a condition which still continues according to her. She noted at the time of the separation she was in a state of physical and emotional exhaustion and was left to continue to raise her then 19 year old daughter and her 17 year old high school student son. She advised her daughter was diagnosed with depression and was unable to work at that time.

As a result the daughter was receiving treatment for the depression and was living at home with her brother and SJ. [ 9 ] In her Affidavit SJ maintained her daughter currently suffers from depression and as well now suffers from fibromyalgia and chronic fatigue syndrome. Those health issues caused the daughter to withdraw from courses at the Southern Alberta Institute of Technology. SJ advised she consequently supported her daughter who remained ill, unemployed and living at home with her until age 35.

At age 35 the daughter left home. [ 10 ] Respecting her current 45 year old son, SJ deposed he was diagnosed with fibromyalgia and chronic fatigue syndrome while living at home and attending the University of Calgary. He still lives at home with her and is currently unemployed. According to SJ his medical conditions prevent him from working and makes him dependent on her. He has lived with her and been dependent upon her for 17 of the last 27 years.

[ 11 ] SJ advised the two children have had little emotional or economic support from DJ since the 1985 separation. Rather it was she who supported them through the years on DJ’s monthly spousal support payments. [ 12 ] In an Affidavit filed on November 10, 2011 DJ disputes SJ’s claims that she became chronically ill in 1977 and further disputes her claims of any past or present diagnosis of depression, chronic fatigue syndrome or other serious illnesses.

He indicated her medical and Alberta Health Care records do not support any such diagnosis. [ 13 ] Respecting SJ’s allegation that both children did suffer and continue to suffer from poor health, DJ alleged both children were in good health and did not suffer from any disabilities at the time of the separation. He further noted no medical evidence has ever been presented to substantiate SJ’s claims of any poor health and past or present disabilities relating to the children. He stated no claim for child support has ever been made at any time for either of these two adult children.

It was his view SJ discouraged the children from forming any type of relationship with him since the separation. This view was predicated on his allegation that neither the children nor SJ have provided him with any information as to their location or personal circumstances at any time subsequent to the Consent Corollary Relief Order. [ 14 ] SJ acknowledged neither she nor the two adult children have had any real contact with DJ since the divorce. She conceded she did not apprise DJ of her address. [ 15 ] DJ noted from 1985 to the end of 1990 he deposited all of his CFCN earnings into their joint bank account.

Consequently SJ not only had free access to those funds but all of the family’s household and personal expenses were paid from that account. In addition full health and dental insurance coverage was provided to the family by his employer until 1992. [ 16 ] In his Affidavit DJ added he continued to provide SJ with free unlimited access to various credit cards after the separation. He advised he covered all of the credit card payments despite SJ spending in a profligate fashion each month. He alleged her spending habits were such that he was forced to refinance the matrimonial home twice between 1985 and 1990.

However with the substantial rise in interest rates over that period he noted he could not cover all of the matrimonial debts and the matrimonial home eventually went into foreclosure proceedings. This foreclosure caused SJ and the children to move into rental accommodation. SJ continues to rent an apartment with her unemployed son. She alleged she was never able to acquire a new home. [ 17 ] SJ deposed her only current assets consist of a cash pension payment of $25,000 and furniture valued at $5,000. She owes $10,000 to the Canada Revenue Agency and owes $10,000 to her daughter as a result of a loan.

In addition she has an account payable of $30,000 for pending dental work. She deposed her 2011 monthly income consisted of $207.70 from Old Age Security and a CFCN pension payment of $1,427.77 for a total of $1,635.47 or $19,625.64 annually. It is noted her Old Age Security payment was clawed back in 2010 due to her spousal support income putting her over the yearly claw back limit for old age security eligibility. [ 18 ] In 1990 DJ commenced paying SJ spousal support each month.

This state of affairs continued until the Minutes of Settlement were executed by the parties with the advice of legal counsel acting separately for each. The Minutes of Settlement detailed DJ had paid substantial prior marital debts. In addition the Minutes of Settlement required him to pay a further approximate sum of $50,000 in marital debt outstanding at the date of execution.

DJ retired that outstanding debt over following years. [ 19 ] Under the provisions of the Minutes of Settlement DJ paid SJ’s legal fees of $7,500, provided the damage deposit for SJ’s rental apartment and paid some further miscellaneous expenses for SJ. His CFCN employment pension was divided evenly with SJ at that time. In addition SJ received shares of Maclean Hunter in the sum of $15,000 above her entitlement. [ 20 ] By his own reckoning DJ believes he has paid over $1.2 million in spousal support to date. [ 21 ] The Minutes of Settlement set out in para. 8(

c) his obligation to provide spousal support: 8(

c) Spousal Support

The Husband shall pay the Wife the sum of FOUR THOUSAND ONE HUNDRED DOLLARS ($4,100.00) per month for her maintenance and support, such support to continue for so long as the Husband is earning from his employment with CFCN-TV, A Division of CFCN Communications Ltd. (“CFCN”) at a rate equivalent to his CFCN income as at the date of this Agreement. Notwithstanding the foregoing, the parties agree that in the event the Wife earns independent income, the spousal support shall be reduced as follows: (

i) There shall be no reduction in the Wife’s support for any income which she earns up to and including TWENTY THOUSAND DOLLARS ($20,000.00) per year. (ii) In the event the Wife earns more than TWENTY THOUSAND DOLLARS ($20,000.00) per year, her support shall be reduced by FIVE HUNDRED DOLLARS ($500.00) per year for each additional ONE THOUSAND DOLLARS ($1,000.00) she earns by way of income in a given year. (iii) In the event the Husband loses his employment with CFCN or does not earn at a level equivalent to his 1992 CFCN income, the parties themselves shall endeavour to renegotiate the amount of spousal support and, if they are unable to reach agreement, they agree to seek a mediated resolution at their shared expense prior to seeking an order from a court of competent jurisdiction. (iv) The Husband agrees that in the event his CFCN income is increased in any given year, he will increase the spousal support payable to the Wife by an equivalent percentage increase.

Such increase, if any, shall become effective on the first day of the month following the month in which the Husband receives the salary increase. (

v) The Husband shall provide a copy of his renewed CFCN contract to the Wife within one (1) month of receipt of such signed contract by the Husband for as long as he is employed by CFCN. The Husband shall mail the said copy to the Wife at her parents’ address. (vi) Notwithstanding the foregoing, the Wife’s support shall immediately cease upon the occurrence of one or more of the following: (

A) She remarries; (

B) She lives in a common-law relationship for a consecutive period of at least THREE (3) months; (

C) She dies; (

D) The Husband dies; (

E) The Husband is no longer employed by CFCN or earns at a lesser level than his 1992 CFCN income subject to para. 8(c)(iii) herein; (

F) The Husband retires from full-time employment. [ 22 ] On May 26, 1993, approximately 11 months after the Divorce Judgment, a Consent Corollary Relief Order was granted in this Court. It provided for spousal support as follows: 3. Commencing on February 15, 1993, the Petitioner shall pay to the Respondent support in the amount of TWO THOUSAND

DOLLARS ($2,000.00) and, commencing on February 28, 1993, the Petitioner shall pay to the Respondent support in the amount of TWO THOUSAND TWO HUNDRED AND TWENTY FIVE DOLLARS ($2,225.00), with such support payments to continue on the fifteenth and last day of each month thereafter until: (

a) the Respondent remarries; (

b) the Respondent lives in a common-law relationship for a consecutive period of at least THREE (3) months; (

c) the Respondent dies; (

d) the Petitioner dies; or (

e) the Petitioner is no longer employed by CFCN-TV, A Division of CFCN Communications Ltd. (“CFCN”) or earns at a lesser level than his 1992 CFCN income, in which case the Petitioner and Respondent shall renegotiate the amount of spousal support and, if they are unable to reach agreement, they shall seek a mediated resolution at their shared expense prior to seeking an order from the court. 4. Notwithstanding the provisions of para. 3 herein, the spousal support shall be adjusted as follows: (

a) In the event the Respondent earns more that TWENTY THOUSAND DOLLARS (20,000.00) per year, her support shall be reduced by FIVE HUNDRED DOLLARS ($500.00) per year for each additional ONE THOUSAND DOLLARS ($1,000.00) the Respondent earns by way of income in a given year; (

b) In the event the Petitioner’s income with CFCN is increased in any given year the Petitioner shall increase the spousal support payable to the Respondent by an equivalent percentage increase.

Such increase, if any , shall become effective on the first day of the month following the month in which the Petitioner receives the salary increase. [ 23 ] For each year from 1993 until 2010 DJ’s yearly income exceeded his 1992 yearly income. [ 24 ] DJ’s yearly spousal support obligation was to be adjusted on a percentage increase equal to any yearly increase in his annual CFCN income compared to his yearly CFCN income in the previous year. DJ deposed in the Affidavit that such a percentage increase was adjusted annually by the Alberta Maintenance Enforcement Program (MEP).

He caused his employer to send a letter to MEP for each occasion his yearly employment income increased. In turn MEP calculated the adjustment and advised him of his new spousal support obligations. [ 25 ] DJ advised these steps were necessary because he did not know SJ’s location and he had no available means to contact her or her family. DJ paid each and every month his required spousal support payment to MEP as advised by MEP.

He noted SJ never asked for a different amount or differed from the amount MEP calculated until she filed her cross application requesting spousal support arrears. [ 26 ] SJ takes the position DJ continues to be employed on a full time basis with his employer, albeit through a consulting contract entered into between his consulting company incorporated in 2006 and his employer. She noted DJ receives a monthly Canada Pension Plan payment of $844.58 per month, which commenced in 2006 and reached $905.17 per month in 2010.

Further she noted he receives a CFCN monthly pension payment of $3,602.81 per month from his employer. She acknowledged in 2009 she received $41,505.56 as a lump-sum payment of accumulated arrears from the matrimonial division of DJ’s CFCN pension plan. However she argued DJ’s additional monthly pension income from his employer should be subject to his ongoing obligation to provide further spousal support to her. I note the difference between his monthly pension payment and her monthly pension payment from his employer represents DJ’s

continued sole contributions to his pension plan from his yearly income subsequent to the separation and divorce and after the matrimonial division of his employee pension plan. [ 27 ] SJ further alleged DJ’s recent use of a corporation to receive his yearly income from his employer provides him with additional income due to the tax advantage provided via income splitting with his equal co-shareholder and current spouse and secondly due to the use of deductible expenses not allowed with the filing of a personal tax return. [ 28 ] SJ provided in her Affidavit a table wherein she calculated the arrears in spousal support since 2004 owed by DJ based on her calculation of his yearly income from all sources and further on her calculation of a yearly percentage increase of income founded on the base income and spousal support as set out in the Consent Corollary Relief Order. [ 29 ] Finally in her Affidavit SJ deposed she currently leads a frugal lifestyle established on an attached current budget which sets out yearly expenses of $55,252.80 without any income tax installment payments included as an expense.

She alleged a termination of spousal support will place her standard of living well below the poverty line and leave her unable to meet basic necessities of life. [ 30 ] In his Affidavit of November 10, 2011 DJ advised that at age 65 he retired from full time employment with CFCN in accordance with his employment contract. Consequently he no longer received his CFCN salary and he was not eligible for medical or other benefits through his employer. However despite his retirement, he continued to work for CFCN in the same position at the same pay rate on a temporary contact for 4 months until December 31, 2006.

On January 1, 2007 he was employed by his personal corporation which in turn contracted with CFCN on a part time basis. Each year following the temporary contract was renegotiated. [ 31 ] Simultaneously his corporation contracted for part time work in the radio industry from January 2007 to August 2011. He received further income from speaking engagements and public appearances. These employment opportunities provided him with income equivalent to full time employment.

He has continued to pay spousal support to today’s date. [ 32 ] A review of his yearly employment income demonstrated it did not vary appreciably from 2002 to 2010 inclusive whether on a full time permanent basis or a temporary basis through his corporation. The variance ranged from $230,122.66 in 2006 to $196,664.00 in 2010. [ 33 ] Shortly before this application was commenced a contract in the radio industry was not renewed. On Aug 31, 2011 CFCN offered his corporation a contract which has resulted in a reduction of his working hours to a part time casual basis.

CFCN chooses the time and type of work which causes uncertainty respecting his employment. Further this contract is subject to a 30 day cancellation notice. [ 34 ] DJ takes the position in effect he has been retired from full time employment since September 1, 2011. He believes his obligation to pay spousal support to SJ has ended in accordance with the provision in the Minutes of Settlement and the Consent Corollary Relief Order. In addition he believes circumstances have materially changed in that he is now 71 years of age and living on pension income and part time employment income.

He continues to provide care for his current wife to whom he has been married for over 20 years. She presently suffers from a neurological condition which limits her mobility and may impact her lifespan. In addition he continues to support his present wife ’ s son who is afflicted with cerebral palsy and lives with them. [ 35 ] In contrast to SJ’s position DJ in his Affidavit set out a spreadsheet which detailed his belief he has overpaid spousal support in the sum of $66,000 over the last 5 years.

He stressed SJ’s calculations based on her belief there exist arrears in spousal support over that same time frame, wrongfully consider his corporation’s total income; his Canada Pension Plan income; his employment lump sum pension income in 2009; his employment pension income in 2010; rather than only the income earned from CFCN as stated in the Consent Corollary Relief Order. Finally he noted SJ received approximately $41,000 of that 2009 employment pension lump sum income.

He further stressed SJ wrongfully calculated the yearly percentage increase in his income from CFCN on a yearly basis. [ 36 ] DJ detailed his efforts to provide spousal support exceeding $1 million over the last 28 years. He noted he has paid spousal support for 7 years more that the length of the marriage to SJ. Paying his own living expenses left him little excess funds to acquire assets or to save for his own retirement. He now lives with his current wife in her residence. His only significant asset is his CFCN pension which provides him with $3,682.01 per month.

Additionally his Canada Pension Plan payment currently is $921.00 per month. He noted he has tried to pay SJ her share of the latter but to date she has failed or refused to complete an application to the Canada

Pension Plan to receive her approximate share of $221.00 per month. Finally he noted in a similar manner SJ initially refused to cooperate in the processing of his CFCN pension at its August 2006 eligibility date. Her lack of cooperation persisted until 2009 when the lump sum pension funds were finally paid out to him and to her. SJ now receives $1,427.33 monthly from that CFCN pension. [ 37 ] DJ noted in each of the years of 2006, 2007 and 2008 SJ received over $70,000 per year in spousal support. [ 38 ] In 2009 she received $68,780.47 in spousal support.

She reported a lump sum pension payment of $57,831.20 in her 2009 Income Tax Return from his employer and she collected $6,720.48 in Old Age Security payments. Her total income for 2009 was $133,332.15. In addition she claimed her 44 year old son as a common law dependent. He earned $750.00 in that year. Finally it is noted she did not make a claim for a disability tax credit in her 2009 Income Tax Return. [ 39 ] In 2010 she received $68,770.43 in spousal support, $17,349.30 in CFCN pension benefits and $6,222.15 in Old Age Security payments for a total income of $93,719.79.

Because her net income exceeded the allowable limit for Old Age Security eligibility from July 2010 to June of 2012 she only received an Old Age Security monthly cheque for $326.00. The lesser monthly cheque allowed her to repay an overpayment of $4,047.25 of Old Age Security benefits assessed against her. This assessment was based on her collection of Old Age Security benefits when her total 2010 income exceeded the Old Age Security allowable income cap of $66,733.

Again it is noted she did not make a claim for a disability tax credit in her 2010 Income Tax Return [ 40 ] DJ argued SJ’s expenses do not detail a frugal lifestyle. She does not have control of her own income or her expenses. Rather she has turned her financial affairs over to her son. [ 41 ] DJ submitted the evidence discloses SJ has not made any effort to find employment over the last 28 years. Rather she has been content to have him finance her life style through spousal support.

He further argued that life style is one which was not and is not based upon prudent or responsible financial management. [ 42 ] DJ submitted spousal support for SJ should terminate at September 1, 2011 on the date of his retirement from full time employment and as contemplated under the Minutes of Settlement. He noted it was his understanding that spousal support would cease when full time retirement occurred. He believed the Minutes of Settlement reflected with no uncertainly both parties’ intent that spousal support should terminate on the certain and final event of his retirement from full time employment.

He noted the Minutes of Settlement were executed under the advice of independent legal counsel, were not unconscionable and were in compliance with the objectives of spousal support under the Divorce Act . He observed SJ has not been short changed whatsoever in the spousal support benefits she has received over the years. Rather he pointed to his diligent and good faith efforts to provide satisfactory financial support to her in a reasonable manner over the years.

He noted his present retirement from full time employment is not unreasonable bearing in mind his age, his present circumstances and the position proffered by his present and past employers. Further he argued the Consent Corollary Relief Order granted a short time after the Minutes of Settlement were executed was silent on the treatment of spousal support on his retirement from full time employment, and did not negate or vary the Minutes of Settlement on this particular issue.

As a consequence he submitted such specific silence must be noted and the terms of the preceding Minutes of Settlement on this specific issue should be enforced to allow him to rely upon its provisions. [ 43 ] Finally he submitted neither his current financial situation nor that of SJ arise from or are related to the marriage. Rather DJ argued all of the legislative objectives of spousal support have been met and spousal support must be terminated effective September 1, 2011.

Reasons [ 44 ] When the Minutes of Settlement were executed under the instructions of competent and independent legal counsel acting for each party, it was obvious that DJ intended to provide spousal support under the provisions to SJ until the earliest occurrence of one of six events as set out in its para. 8(c)(vi). [ 45 ] None of the events occurred before DJ retired from his full time employment with CFCN at the end of August of 2011. Although DJ reached the age of 65 in August of 2006 and was required to retire under the terms of his employment contract, he

continued to work with his employer on a contractual basis through his consulting company. In essence he continued to provide full time employment services to his employer throughout the ensuing 5 year period until the end of August 2011. In recognition of the spirit of the Minutes of Settlement DJ honoured the Minutes of Settlement and continued to provide generous spousal support to SJ throughout that 5 year period. [ 46 ] On September 1, 2011 DJ’s career reached the point where his current employer only offered him part-time contractual work on an “as- needed” basis.

Accordingly his remuneration level could diminish and is no longer certain. His other employment opportunities have lessened and he finds himself in the position of caring for and supporting his health challenged current wife of over 20 years, and her afflicted son. [ 47 ] The Minutes of Settlement were not unconscionable and have met the objectives of spousal support under the Divorce Act .

In addition not only did the Minutes of Settlement recognize DJ’s legal obligations emanating from a long term marriage to an economically deprived SJ, the Minutes of Settlement recognized SJ’s obligation to become economically self-sufficient in the years following. Para. 8(c)(

i) provided DJ would be allowed an initial exemption of $20,000 for any income she earned in the subsequent years. The Minutes of Settlement went on to state beyond that $20,000 exemption amount, DJ’s spousal support would be reduced by $500 per year for each additional $1000 she earned in income in a given year. [ 48 ] Unfortunately due to her belief that her physical and mental health prevented her from entering any retraining program or engaging in employment, she failed over the following 20 years to find employment.

At this time she is now 69 years of age with bleak employment prospects and a heavy reliance on DJ’s spousal support. [ 49 ] However the Consent Corollary Relief Order did not include any reference to the provision found in the Minutes of Settlement that termination of spousal support would occur upon DJ’s retirement from full time employment. Rather the Order references a termination of spousal support upon DJ no longer being employed at CFCN or DJ earning at a lower level than his 1992 CFCN income.

In the latter two events the Order mandated a negotiated agreement for the quantum of spousal support or failing agreement, a mediated resolution at shared expense before seeking a further court order. [ 50 ] It was agreed by both Counsel in this application that an agreement could not be achieved and mediation would not be a requirement before these applications could be heard and determined. [ 51 ] DJ argued the Order’s omission of any reference to a termination of spousal support upon his full time retirement from CFCN did not impact the parties’ intentional inclusion of such a precise contemplated spousal support termination circumstance as set out in the Minutes of Settlement executed some 6 months earlier.

He submitted the Order did not vary or negate this circumstance and barring any subsequent alteration in this respect to the Minutes of Settlement, the Minutes of Settlement should be enforced and spousal support should be terminated despite SJ’s present financial situation. [ 52 ] The Court’s jurisdiction respecting spousal support is found in s15.2 of the Divorce Act . It states, inter alia : 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for support of the other spouse.

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited;

(

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse.

(7) 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; (

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. [53] The Divorce Act authorizes the Court to vary spousal support under s17.(1). It states, inter alia: 17.

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

a) a support order or any provision thereof on application by either or both former spouses; or (4.1) [Factors for spousal support order] Before the court makes a variation order in respect of a spousal support order, the court shallsatisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making ofthe spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall takethat change into consideration.

(7) A variation order varying a spousal support order should (

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

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. [54] In reaching a decision under s. 17(4.1) the court does not specifically reference any agreements between the parties (unlike ananalysis under s. 15.2(5)(

c) for an initial support order). Rather the court must be satisfied “that a change in the condition, means, needsor other circumstance of either former spouse has occurred” since the making of the prior order. [See para. 23 of L.M.P. v. L.S. (2011)2011 SCC 64 , S.C.J. No. 64] Although the court is not specifically directed to consider any existing agreement or in the case atbar, the Minutes of Settlement, in a s. 17(4.1) application, the court is at the same time not to ignore the agreement or Minutes ofSettlement [see para. 27 of L.M.P. v.

L.S., supra]. [55] In the case at bar I intend to treat DJ’s application as one seeking a variation of the Consent Corollary Relief Order. Ifsuccessful, the variation sought by DJ will terminate his obligation to pay spousal support. Accordingly DJ bears the onus to establish amaterial change under s17(4.1). The Court in L.M.P. v. L.S., supra defined a material change as one that, “if known at the time wouldlikely have resulted in different terms”. As a result I look to the actual circumstances of the parties at the time of the Consent CorollaryRelief Order.

[56] The actual circumstances of the parties in 1993 involved a recognition by DJ that he and SJ had ended a long term marriage.SJ was a traditional wife, mother and homemaker during their 21 years of marriage. SJ was economically disadvantaged as a result of herrole in the marriage and the breakdown of the marriage. DJ in the Minutes of Settlement and the subsequent Consent Corollary ReliefOrder agreed to pay compensatory spousal support to assuage SJ’s economic disadvantage arising out of the role she played during thecourse of the marriage and the subsequent breakdown of the marriage.

He agreed to alleviate SJ’s economic losses as completely aspossibly taking into consideration all of the circumstances involving the marriage. DJ recognized that the divorce left SJ in a state ofeconomic hardship as set out in the Supreme Court of Canada decisions in Moge v. Moge, (SCC), [1992] 3 SCR 813 andBracklow v. Bracklow, (SCC), [1999] 1 SCR 420. SJ had a palpable need for financial support and DJ had thefinancial means to provide it after the breakdown of the marriage. [57] The spousal support obligations were fair and generous and in keeping with the principles of the Divorce Act and caseauthority.

As indicative of that, SJ never applied for an increase in spousal support and never contacted DJ after the divorce to reveal herlocation. Indeed the amount of spousal support and her financial situation as revealed in the evidence adduced on this applicationdemonstrate over the course of years she has received more than adequate financial support and has enjoyed a satisfactory standard ofliving provided by DJ since their separation in 1985. [58] Unfortunately SJ spent to the full extent of her spousal support and made no effort to save any monies out of her incomingfunds.

Further she made no conscientious attempt to educate, retrain or seek employment from the 1985 date of separation to the presentday.

She did not even apply for a job because she believed it would be futile bearing in mind her subjective belief as to her state of health.She claims to have suffered during the course of the marriage and continuing to the present from the conditions of depression,fibromyalgia and chronic fatigue syndrome. [59] There can be no doubt that the parties in the Minutes of Settlement and the subsequent Consent Corollary Relief Ordercontemplated the objective of self-sufficiency as defined in the Divorce Act. [60] They did not give that objective any priority over the other objectives as set out in the Divorce Act.

These objectives equallydetermine entitlement, quantum and duration of spousal support.

Yet the reference to SJ’s ability to earn income in any given year andthe consequent spousal support payment reduction demonstrates a recognition by each that SJ had an obligation after the marriagebreakdown to contribute to her support commensurate with her abilities. [61] It is evident that SJ failed in her obligation to achieve self-sufficiency or some modicum of self-sufficiency in the last 27years. [62] The issue arises as to whether DJ has proved a material change occurred in the condition, means, needs or other circumstancesrelating to him on August 31, 2011 when CFCN offered his corporation a revised employment contract. [63] DJ through his corporation remains employed by CFCN and it is unknown at the time of this application whether the incomeas billed to CFCN through his consulting company will be at a lesser level than his 1992 CFCN income.

As a result para. 3(

e) of theConsent Corollary Relief Order can not apply on the evidence adduced. [64] Because para. 3(

e) cannot apply in this application, I must turn my attention to determine whether there are any other materialchanges which have occurred in the condition, means, needs and other circumstances and which would warrant a variation of the spousalsupport set out in the Consent Corollary Relief Order. In my opinion there are other instances of material changes which if known at thetime of the Consent Corollary Relief Order would have resulted in different terms. [65] An analysis under s. 17(4.1) does not only apply to one spouse. It applies to either spouse.

The conditions, means, needs andcircumstances of SJ have changed since the Consent Corollary Relief Order. When it was granted, she was unemployed and totallyreliant on spousal support as an economically disadvantaged spouse. However DJ since has paid over $1 million dollars in spousalsupport to her. Any economic disadvantage arising from the marriage or the breakdown of the marriage has disappeared when one looksat her actions since the Order and her conduct leading to her current situation.

Her current financial circumstances are of her own makingand now are not related to and do not arise from the marriage in anyway.

[ 66 ] The financial needs of SJ have changed. Her circumstances and her conditions have changed. Are these changes material changes? In my view they are. [ 67 ] SJ’s Affidavit indicates she suffered during the marriage and continues to suffer today from depression, fibromyalgia and chronic fatigue syndrome. DJ denied such diagnoses were made during the marriage. Although SJ did provide medical notes and letters from various health care providers I was unable to find any diagnosis by a health care provider for any of the alleged three medical conditions.

There were references to the three conditions in the documentation but it is important to note the references were made by the health care providers as a result of what would appear to be self reporting of these conditions by SJ. In the evidence provided there were no independent tests or examinations provided by any health care provider which would indicate it was that health care provider’s own opinion that SJ suffered from these medical conditions. All of the opinions would seem to be based on hearsay reports from other health care providers or from SJ.

An example of this can be found in a letter of March 31, 2010 authored by SJ’s herbalist. The herbalist stated: “Her condition had previously been diagnosed as chronic fatigue syndrome by medical doctors.” [ 68 ] More importantly there was no evidence provided from a health care provider which would indicate it was that person’s opinion that SJ’s physical, mental and emotional conditions at any time prevented her from retraining or obtaining employment. As a result I find that SJ has been underemployed since the separation. She has made no efforts whatsoever to obtain any type of employment.

Needless to state, this lack of effort is neither reasonable nor can it be termed a serious effort to find employment. Rather SJ has been content to remain at home while taking various medications and treatments prescribed by medical doctors and chiropractors. Under the advice of her herbalist and her own research she has taken, and still takes herbs and vitamins. I am not satisfied that SJ has been prevented from engaging in any serious and reasonable employment as a result of her state of health since the marital separation.

She has been content to live entirely for many years on the spousal support provided to her. She has not attained any level of self-sufficiency through employment. [ 69 ] SJ’s capacity to work since the Consent Corollary Relief Order has remained unchanged. At the time of the Order she was economically deprived and found herself with no training. But her subsequent health has not prevented her from seeking vocational training or employment over the years. Unlike the facts in L.M.P. v. L.S. ( supra ) the facts and consequent circumstances here are different.

In the case at bar there was no evidence SJ suffered from any type of medical condition which interfered with her capacity to retrain or engage in employment. In 1992 SJ possessed the ability to try to achieve self-sufficiency or at least some level of self- sufficiency through employment. By 2012 through her lack of effort over the ensuing years she had dissipated that ability to become self -sufficient or at least to attain some level of self-sufficiency. This course of conduct exhibited by SJ over the ensuing years established a material change in the circumstances of SJ.

SJ possessed the ability to increase her own means and decrease her needs from spousal support by obtaining employment. It can be inferred from the documentation that some level of self-sufficiency could be achieved by her through employment. Forgoing any employment opportunity has resulted in a material change as to her conditions, means, needs or circumstances.

She is now 69 years of age and her ability to achieve some level of self-sufficiency has certainly decreased to a material extent compared to her ability to achieve some level of self-sufficiency when she was 51 years of age in 1993. [ 70 ] Further, had she obtained some employment over those years she possibly could have accumulated some additional assets which might have contributed to a reduction to her current monthly living expenses or increased her present pension income through a larger Canada Pension Plan monthly payment (caused by her employment contributions) or achieved some form of Registered Retirement Savings Plan pension.

Relinquishing the path to self-sufficiency and the resultant loss of possible asset accumulation or pension accretion in turn results in material changes in her present needs and means as compared to the time of the Consent Corollary Relief Order. [ 71 ] Conversely any type of significant employment obtained by SJ in the ensuing years after the Consent Corollary Relief Order would have represented a material change respecting DJ’s obligation to pay spousal support as recognized in the Consent Corollary Relief Order. [ 72 ] Another area in which I find a material change has occurred encompasses SJ’s financial needs.

In 1993 she received $4,225 per month in spousal support. She was not employed and was fully dependent on support paid by DJ. Her expenses at that time were not detailed in this application and they remain unknown. However SJ presented a current budget in her Affidavit and was thoroughly cross- examined on it. There were many contradiction and inconsistencies revealed as a result. It is evident she is not conversant nor does she exhibit any current knowledge respecting her income, expenses or banking practices. She relies on her son and daughter to pay her expenses and deal with her income.

She could not explain how her living expenses were paid or how her bank accounts were operated. Such conduct demonstrates she has failed to arrange her finances over the last 20 years in a reasonable manner. Not only has she turned

her financial affairs to her son, but since the spousal support commenced she has made no effort to communicate with DJ to cooperate in resolving financial matters of interest to both of them. Examples of such non-cooperation include the application for the CFCN pension (now resolved) and include the application for her share of the Canada Pension Plan. DJ has advised he has collected her share of the Canada Pension Plan payment and despite his entreaties for her to apply, she has not done so. He further advised he will pay her the approximate $9,000 collected to date as a result of her laxity in her application.

I am advised by Counsel that she now will be applying for the Canada Pension Plan. [ 73 ] It is evident SJ’s financial needs have decreased since the date of the Consent Corollary Relief Order. Since 2006 she has received approximately $70,000 each year in spousal support. In 2010 her total income including her share of the CFCN pension payout was $133,332.15.

Her income levels reached the clawback mark for Old Age Security payments in 2011 and 2012 for a single person and will only be restored if and when her income level drops below the clawback level. [ 74 ] It would appear that SJ has sufficient funds that she is able to support her son who is unemployed. She apparently pays the rent on their shared apartment which is registered in her daughter’s name. SJ could not advise whether her son contributes to the rent.

SJ does not physically pay the rent herself and no understandable evidence was produced to demonstrate whether she has repaid her daughter for the rent advanced by the daughter for the 6 month period preceding this application. [ 75 ] SJ does not appear to know what expenses she pays, or who receives the benefit of those expenses. She has little knowledge of a Guaranteed Investment Certificate registered in her name or the amounts of tax arrears owing to the Canada Revenue Agency for the years 2010 and 2011.

A further example of her lack of money management skills is founded on the fact for the last 10 years she has paid over $100,000 to store furniture valued at approximately $5,000. [ 76 ] Her health care expenses are high. Apparently she has been paying Blue Cross premiums despite her eligibility for subsidized coverage as a senior. She listed monthly chiropractor expenses at $340 per month in her budget when the actual fees paid are closer to $150 per month. In addition the chiropractic fees were paid by her daughter but no evidence of reimbursement to the daughter was evident.

SJ allegedly pays $500 monthly for vitamins self prescribed by herself and by her herbalist. Again there was no evidence that she pays the $500 herself. She does provide some vitamin supplements for her son. Although she does not drive a car, she claims $151.75 per month in car expenses. Her son apparently drives her but I note she, as a senior, is eligible for a senior’s transit pass for a current payment of $90 per year. [ 77 ] Finally it is noted she allows her son to manage her bank accounts.

Although she does not understand what steps he takes, large amounts have been transmitted through her bank accounts on a monthly basis. An example, amongst others, is seen in the period between July 12 2007 to August 10 2007 when the amount of $167,296.03 flowed through her bank account. [ 78 ] When her proposed budget is examined, these expenses totalling $1,882.40 can be removed on a monthly basis.

Storage $838.65 Car $151.75 Optometric $ 62.00 (Alberta Health subsidy) Chiropractor $340.00 (Alberta Health subsidy) Vitamins $500.00 Legal Fees $500.00 [ 79 ] Deducting those amounts from her projected expenses, it is evident her monthly expenses more realistically project at $2,750 approximately or $33,000 yearly.

With a projected present living expense budget of $33,000 it is evident her financial needs have experienced a material change since the approximate $50,000 annual spousal support set out in the Consent Corollary Relief Order. [ 80 ] Another area which demonstrated a material change can be observed in her monthly income. At the time of the Consent Corollary Relief Order her only income consisted of her monthly spousal support payments of $4,225. Changes have occurred since. SJ receives $1,427 per month from the CFCN pension payment. She will receive another $207 per month from the Canada Pension Plan.

She will be eligible to receive $546 per month now from the Old Age Security program. She might be eligible for the GuaranteedIncome Supplement from the Government of Canada. Without the latter income she has a minimum income from those three sources of$2,180 per month or $26,160 per year. Her income from sources other than spousal support has increased by $26,160 per annum.

Thatincrease is a change, which if known at the time of the Consent Corollary Relief Order, would likely have resulted in different terms. [81] In my view the s. 17(4.1) of the Divorce Act threshold for variation of a spousal support order has been met in numerousinstances. What variation to the Consent Corollary Relief Order needs to be crafted in these changes in the conditions, means, needs andcircumstances of SJ? A fresh order is not to be made. Neither will the original order be set aside in its entirety.

DJ continues to work andalthough the needs of SJ are diminished, she still requires some spousal support. In determining an appropriate amount of spousalsupport the objectives set out in s. 17(7) of the Divorce Act must be considered. [82] Compensatory compensation is not now applicable to SJ some 28 years after the marriage separation. Spousal support paid byDJ of over one million dollars since the separation has relieved the economic disadvantage arising from the marriage breakdown andeliminated the need for compensatory support.

However non-compensatory support can be awarded in a situation where one party has aneed and the other party has the means to pay. SJ’s lack of total self-sufficiency arises from her own conduct over the last 28 years andwhich conduct has nothing to do with the marriage. SJ’s conduct was rooted in her lack of effort to become self-sufficient. To bepractical, SJ has not taken any positive steps to promote her economic self-sufficiency since the marriage separation despite being ofsufficient health to obtain employment.

She is now 69 years of age and with no vocational training, her chances of obtaining any measureof self-sufficiency from employment remains slim. In any event SJ has no duty to become self-sufficient. (See L.M.P. v. L.S. at para. 59,supra). The Divorce Act only promotes the idea of self-sufficiency. Failure to achieve self-sufficiency is but one factor to be taken intoaccount. The other factors to be taken into account in the case at bar are as follows:

(1) The parties’ current ages;

(2) The differing and lower current financial needs of SJ;

(3) The differing and current financial means and needs of DJ in relation to his current long term marriage and dependent step-son;

(4) The differing and current financial income available to SJ which allows her to attain a certain level of self-sufficiency; and

(5) The provisions in the Minutes of Settlement indicating spousal support terminates upon DJ’s retirement from full-timeemployment; ceasing employment with CFCN or earning at a lesser level than his 1992 CFCN income. [83] I am cognizant that the Minutes of Settlement were not incorporated into the Consent Corollary Relief Order but the Supreme Court of Canada in Bracklow v. Bracklow (1999), (SCC), 169 D.L.R. (4th) 577, indicates in assessing a level of spousalsupport under the non-compensatory basis the Minutes of Settlement can be referenced as a relevant factor. Similarly para. 50 of theL.M.P. v.

L.S. decision, supra, indicates the existence of a separation agreement and its terms can be considered although such aconsideration might only be appropriate if the terms of the separation agreement were incorporated into the original order under s. 15.2of the Divorce Act. [84] In conclusion the circumstances have materially changed and the Consent Corollary Relief Order is varied.. DJ is no longeremployed full time but he is still employed albeit at CFCN’s beck and call. SJ’s financial needs and income have changed. She hasachieved a certain level of self-sufficiency from new income sources and is able to work.

There is no medical evidence indicating herhealth prevents her from holding or seeking employment. She apparently continues to support her 45 year old unemployed son. In myview her current expenses needed to enjoy a enjoy a modest life style amount to an approximate annual sum of $33,000. Her currentincome should generate approximately $26,160 without any contribution from the Guaranteed Income Supplement. There is a shortfallbetween her projected expenses and projected income of approximately $6,840. DJ has the ability to continue to pay spousal support.

Iorder DJ to pay spousal support effective October 1, 2011 in the sum of $900 each and every month until he ceases employment orattains the age of 75 whichever occurs first. There is no indexing based on his level of income. SJ will have to pay income tax buthopefully she can obtain some measure of employment to accommodate payment of any short fall in that aspect. Before any income taxis paid SJ, as a single person, will have an approximate level of income inclusive of spousal support of $37,000.

Spousal Support Arrears [ 85 ] SJ seeks spousal support arrears from 2004 to 2010 inclusive based on DJ’s increase in income with CFCN in any given year under para 4(

b) of the Consent Corollary Relief Order. In 1993 the base amount of monthly spousal support was set at $4,225. [ 86 ] It is obvious any yearly percentage increase in CFCN income shall result in an equivalent yearly spousal support increase. [ 87 ] At Tab 1 of SJ’s brief of February 24, 2012 SJ set out her calculation of DJ’s outstanding spousal support arrears. Her arrears calculation was based on DJ’s yearly income of $125,000 in 1992 as a foundation. She used his total income from all sources for the year 2004.

The ensuing percentage increase was applied to his base amount of monthly spousal support of $4,225 in 1993 to reach an amount calculated to represent what he should have been paying in 2004 on a monthly basis. ($7,659.93). The actual amount of monthly spousal support paid in 2004, ($5,345.40), was deducted from $7,659.93 to determine DJ underpaid by $2,314.40 per month or $27,774.36 on a yearly basis. [ 88 ] Each and every year following SJ used a similar calculation method based on the percentage increase of his yearly total increased income compared to the 1992 foundation of his CFCN salary.

This calculation method resulted in SJ’s claim of $315,079.08 for spousal support arrears from 2004 to 2010 inclusive. [ 89 ] I cannot agree with SJ’s calculation methods. SJ’s calculation started with the year 2004. DJ was paying $5,345.40 spousal support per month in 2004. No figures were provided in Tab 1 to indicate how that monthly amount was increased on an ongoing yearly basis from the foundation year of 1993 when he was paying $4,225 monthly. To determine his yearly percentage increase in spousal support for the year of 2004 one must be given the CFCN income for the year 2003.

That CFCN income was not supplied. As a result the year 2004 must become the base year for CFCN income and the monthly spousal support in order to calculate the spousal support percentage increase. His CFCN income for 2004 was $203,025.56. Tab 1 indicated his monthly spousal support paid to SJ in 2004 was set at $5,345.50.

The latter two figures will be used to calculate any spousal support arrears for the years 2005 to 2010 inclusive. [ 90 ] I further note I disagree with the calculation method employed by SJ wherein she used DJ’s total income from all sources rather then restricting it to his CFCN income as required by para. 4(

b) of the Consent Corollary Relief Order. [ 91 ] In my calculations for the year 2005 DJ’s adjusted monthly and subsequent yearly spousal support should be calculated as follows: 2004 Yearly CFCN Income $203,025.56 2005 Yearly CFCN Income $214,654.58 Yearly Difference $ 11,629.02 Yearly Percentage Difference 5.73% Monthly Spousal Support Paid in 2004 $5,345.40 Monthly Spousal Support Increase in 2005 on a Percentage Increase $ 306.29 2005 Monthly Spousal Support $5,651.69 2005 Actual Monthly Spousal Support Paid $5,887.06 Monthly Overpayment $ 235.37

Yearly Overpayment $2,824.44 [ 92 ] A similar calculation method used for each year from 2006 to 2010 will result in the following amounts: 2006 $4,890.48 Underpayment 2007 $7,797.36 Overpayment 2008 $4,797.00 Overpayment 2009 $3,448.56 Overpayment 2010 $6,001.08 Overpayment [ 93 ] From 2004 to 2010 inclusive DJ overpaid a total of $19,977.96 [ 94 ] In 2011 he continued to pay $5,731.52 per month. [ 95 ] Despite SJ’s argument his income for 2011 should be extrapolated, I decline to follow that argument. His 2011 CFCN income from January to August inclusive was $142,648.

His Affidavit of November 10, 2011 sets out that his CFCN work load was being offered to him on a part time and casual basis since August 2011. To extrapolate as argued, means some speculation on my part. I further note if his 2011 CFCN income was set at $213,972 (being the extrapolation amount for the months of September to December 2011) it would amount to a lower adjusted monthly spousal support payment ($5,634.25) for 2011 then the amount of $5,731.52 being paid by DJ.

As a result I will keep his monthly spousal support payments from January 1, 2011 to August 1, 2011 inclusive at $5,731.52. [ 96 ] There are no total spousal support arrears owing from 2004 to 2010 inclusive when one balances the 5 yearly overpayments against the yearly 2006 underpayment. Further it is noted that SJ did not question the amount of spousal support received nor did she apply to vary spousal support at any time prior to DJ initiating this application to terminate spousal support. Consequently SJ’s application for spousal support arrears is dismissed. [ 97 ] In

summary DJ is to pay SJ the sum of $900 per month in spousal support effective September 1, 2011, and each and every month thereafter until the month following his attaining the age of 75 years or he ceases employment whichever first occurs. I decline to order SJ to reimburse DJ for any spousal support overpayments made since 2005 and I decline to order DJ to reimburse SJ for the spousal support underpayment for the year of 2006. [ 98 ] DJ has been paying monies into his Counsel’s trust account since October 1, 2011 under the Orders of Sullivan J and myself.

The funds in the trust account can be paid out to him after the payments of $900.00 per month from September 2011 to February 2013, inclusive have been paid to SJ and after SJ has been paid the funds due to her for the Canada Pension repayment as detailed in the following two paras. [ 99 ] SJ for some reason elected not to apply to the Canada Pension Plan for her share of DJ’s Canada Pension Plan despite DJ’s entreaties for her to apply. I am given to understand from Counsel’s advice that SJ is entitled to receive approximately $221 per month out of the approximate $905.17 per month which DJ currently receives.

He has received a Canada Pension Plan payment in that approximate amount since the month following his 65 th birthday. Hopefully SJ has now applied to the Canada Pension Plan for her own monthly payment. [ 100 ] Accordingly DJ is ordered to pay to her the amount of $221 per month or such other amount per month as Counsel may agree from September 2006 until the month SJ receives her first Canada Pension Plan cheque for her proportionate share. Further upon the Canada Pension Plan adjusting his monthly payment to not include SJ’s proportionate share, DJ is not obliged to pay SJ any such proportionate share.

The sum of $221 is to be adjusted for any cost of living increases provided in the interim by the Canada Pension Plan. Finally had SJ applied for her Canada Pension Plan payment on time she, perhaps, would have paid income tax on that payment. DJ is entitled to deduct from his payment any monies paid by him for income tax on a yearly basis for the overpayment he received from Canada Pension Plan as a result of SJ’s failure to apply.

[ 101 ] Counsel may make an appointment with me to speak to costs if necessary. Heard on the 15 th day of March, the 14 th day of May and the 14 th day of August, 2012. Dated at the City of Calgary, Alberta this 11 th day of February, 2013. A.G. Park J.C.Q.B.A. Appearances: Robert W. Calvert Q.C. Davis LLP for the Plaintiff (Applicant) (Cross Respondent) Diana L. Foran Walsh Wilkins Creighton LLP for the Defendant (Respondent) (Cross Applicant)