Schmidt v Christie, 2021 ABQB 123

Court of Queen’s Bench of Alberta Citation: Schmidt v Christie, 2021 ABQB 123 Date: 20210218 Docket: 4803 182733 Registry: Edmonton Between: Lorry Anthony Schmidt Plaintiff/Applicant - and - Isla Rhyl Christie Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] The payor of spousal support set by a consent order applies to terminate support and cancel arrears. He first asserts he was coerced into making the agreement.

He then points to various asserted material changes -- the recipient’s post-order receipt of AISH benefits, increased expenses for him of a new partner and her adult son who live with them, and income reductions and periods of unemployment for him -- as warranting the requested termination and cancellation. The payor also seeks severance of the divorce from corollary relief and leave to proceed with a desk divorce.

[2] The recipient opposes on all fronts, asserting that AISH payments do not factor into support, the payor’s spousal-supportobligation trumps any new obligations or commitments to his new family, the payor’s reduced income and periods of unemploymenthave been stage-managed, and severance is premature. [3] I find no coercion, no material change of circumstances, and no basis to cancel arrears. Severance is warranted and granted. B.

Issues [4] The issues are: 1. whether the payor was coerced into the consent order, such that it should be disregarded; 2. if not, what material changes in circumstances, if any, have occurred since the consent support order, as among the recipient’sAISH benefits, the payor’s due-to-second-family incremental expenses, his reduced income, and his periods of unemployment; 3. if one or more material changes has occurred, whether spousal support should be terminated; 4. if not, whether spousal support should be reduced and, if so, to what level and over what period; 5. whether the spousal-support arrears should be cancelled; and 6. whether severance of the divorce from corollary relief is warranted.

C. Analysis 1. Was the payor coerced into the consent order? [5] The payor swears (affidavit sworn November 30, 2020) that: On August 22, 2018, the [recipient] and I entered into the [above-described] Consent Order … At the time I felt pressured to agree,although even then I was concerned I would not be able to make the payments. [emphasis added] [6] He did not detail the source of the pressure (internal versus external) or, if external, who exerted the pressure, how much, inwhat manner, when, or what consequences would or may have ensued if he did not agree.

Neither did he present any corroboratingevidence of the asserted pressure, or even the basis for his asserted concern of being unable to make the agreed-on payments. [7] As noted, both parties were represented by counsel at the time of the order. [8] In Pereira v Pereira[1], Gates J. explored an under-duress-when-signing-divorce-agreement argument: … Ms. Pereira attests to the fact that she was feeling intense pressure from Mr. Pereira to resolve all outstanding matters at the time theparties entered into the Agreement.

She also describes a history of physical and emotional abuse during the course of the marriage. Thegeneral test for duress is set forth in the decision of Browne J in Hamel v Dickieson, 2011 ABQB 202, which in turn relied on thedecision in Roesnisch v Bangs, (AB QB), 138 AR 15. The test involves the following four components: (

i) Whether the person alleged to have been coerced, protested; (ii) Whether, at the time he or she was allegedly coerced into making the contract, he or she had an alternative course open to him suchas an adequate legal remedy; (iii) Whether he or she was independently advised; and (iv) Whether after entering the contract, he or she took steps to avoid it. On the admittedly limited evidence before me, there is no evidence that Ms. Pereira ever protested against the settlement that wasultimately concluded. Indeed, the suggestion that she was feeling “intense pressure” from Mr.

Pereira appears to be raised forthe first time in her affidavit of May 21, 2019, more than seven years after the Agreement was negotiated and signed. She had thebenefit of legal advice from two different legal counsel, including her current counsel of record, before agreeing first to the terms of theAgreement and, some number of months later, to the incorporation of the terms of the Agreement into the Divorce Judgment. Other than a general statement about feeling pressured to conclude an agreement quickly, Ms.

Pereira’s affidavit provides nodetails as to how this pressure impacted her negotiation strategy or may have led her to give up particular rights or entitlements.In her affidavit, she makes no mention of every having raised this concern with her counsel at the time of the negotiation of theAgreement. While she deposes that she received advice that she could seek more spousal support and a “fairer” property division, shemade the decision not to do so in order to sever ties with Mr. Pereira.

Moreover, her affidavit states that she elected not to raise thehistory of abuse with her current counsel at the time of the divorce. In terms of the availability of an adequate alternative remedy, it seems clear that Ms. Pereira could have declined to sign theAgreement and pursue the issue of spousal support and the division of matrimonial property through the court system. She couldalso have revisited the issue at the time of the divorce proceedings. Indeed, in her May 21, 2019 affidavit, she deposes at paragraph 11

that her current counsel “asked me if I wanted to revisit the unfair terms of support and property, but I assured her that I did not want togo back and renegotiate any terms.” As outlined above, Ms. Pereira received legal advice from at least two different lawyers prior tosigning the Agreement and the Divorce Judgment. The final suggested consideration directs the court to consider what steps Ms. Pereira took to avoid the agreement following itsexecution. Based on the evidence before me, it would appear that Ms. Pereira took no steps to avoid the agreement until filing hercross-application on May 22, 2019.

In light of the foregoing analysis, I am unable to find on the evidence before me that Ms. Pereira executed the Agreement underduress. [emphasis added] [9] Same here, for the same reasons. 2. What material change(

s) in circumstances have occurred, if any? Consent order terms [10] The starting point is the consent order, granted by Burrows J. on August 22, 2018, directing spousal support, which features a“material change” clause.

The order states (in part): … UPON THE COURT BEING ADVISED that the parties separated after 18 years of cohabitation including 17 years of marriage; AND UPON THE COURT BEING ADVISED that the [payor’s] 2018 guideline income based on available disclosure is set at$85,000.00; AND UPON THE COURT BEING ADVISED that the [recipient’s] guideline income is set at $0.00; AND UPON THE COURT BEING ADVISED that the parties have considered Low/Middle range of the Spousal Support AdvisoryGuidelines (SSAG) in reaching their agreement; IT IS HEREBY ORDERED THAT: 1.

Effective August 1, 2018 and continuing every month thereafter, the [payor] shall pay monthly spousal support to the [recipient]in the amount of $2,000.00. Such support shall be payable by the [payor] two times a month, $1,000.00 on the first of every month and$1,000.00 on the fifteenth of every month. [Paras 2, 3, and 4 make support tax deductible for the payor and taxable for the recipient, require the annual exchange of tax informationannually, and provide for MEP enforcement.] 5.

Either party may bring an application in court upon [a] material change in circumstances. [emphasis added] Test for changing consent orders for spousal support [11] I start with JP Boyd’s helpful synopsis[2]: A consent order is an order that the parties agree the court should make. Sometimes, judges review the proposed terms and decide forthemselves whether the order is appropriate — such as for divorce orders or orders concerning children.

Other times, where the orderconcerns matters that affect only the two parties consenting — such as property division or spousal support — judges are content tosimply endorse whatever the parties have agreed to themselves. In other words, a consent order is a kind of hybrid, containing elementsboth of private agreement as well as judicial oversight or decision-making. Sometimes the former is more predominant; sometimes thelatter.

As such, there has always been this question: is the test for changing such an order the usual test for changing court ordersgenerally, or is the appropriate test that which the court applies when making an order to replace an agreement? For a time, the second answer appeared to be the correct one.

But in a case called L.M.P v L.S. 2011 SCC 64, the Supreme Court ofCanada decided that, for cases under the Divorce Act at least, the first approach was the right one: Has there been a material change inthe means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would haveresulted in a different order being made? [12] In CMM v PMM[3], Ho J. elaborated on the vary-spousal-support-order test: The Supreme Court of Canada has confirmed that a change in a spouse’s condition, means, needs or other circumstances must be“material” to justify a variation to an existing spousal support order under

section 17: LMP v LS, 2011 SCC 64. Trivial,insignificant or short-lived changes will not justify a variation: Hickey v Hickey, (SCC), [1999] 2 SCR 518. Thesufficiency of the change must be evaluated in light of the particular facts of the case: Willick v Willick, (SCC), [1994] 3SCR 670. In this case, the relevant provisions of the Divorce Act are: 17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change inthe condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support

order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. … When read in light of Supreme Court of Canada authority, these provisions together mean that there are essentially three questions to be considered. First, has there been a material change in the condition, means, needs or other circumstances as required by section 17(4.1) that has resulted in economic hardship? Second, is that material change in condition, means, needs or other circumstances related to the marriage?

Third, if the changed condition, means, needs or other circumstances existed at the time of the prior order, would that likely have resulted in a different order? [emphasis added] [ 13 ] I next examine whether any of the changes identified by the payor here meet this test.

Onset of AISH benefits for recipient [ 14 ] One of the asserted changes is that, post-order, the recipient has started to receive Assured Income for the Severely Handicapped (AISH) benefits ($1,685 monthly). [ 15 ] In Sellers v Sellers [4] , Richardson J. briefly described the AISH scheme: AISH is a financial and health benefits program for people with a permanent medical condition that prevents them from earning a living. … the program is designed so that recipients are entitled to earn a limited amount each month without AISH benefits being affected. [ 16 ] AISH benefits are irrelevant when calculating spousal support .

Section 6.2 of the Spousal Support Advisory Guidelines so reflects: … For spousal support purposes, any social assistance received by the recipient spouse has traditionally not been viewed as income, so that a recipient relying entirely on social assistance would be treated as person with zero income . [FN 58: Lawrence v Lawrence , … 2006 BCSC 167 at para 84] … For purposes of the Advisory Guidelines,

section 4 [Social assistance] of

Schedule III [Adjustments to Income] does not apply. No amount of social assistance should be treated as income, for either the recipient or the payor. [emphasis added] [ 17 ] In the cited passage from Lawrence v Lawrence , C. Ross J. held: … Mr. Lawrence’s counsel provided an alternative [spousal support] calculation. That calculation included the social assistance Ms. Lawrence is currently receiving as income . However, in my view, that is not the correct method since Ms. Lawrence would not be receiving such assistance to the extent that she currently is if she is awarded spousal support.

Thus, the support would not be in addition to her assistance, as assumed in the plaintiff’s calculation, but would be in lieu of it . Accordingly, the appropriate calculation is the one provided by Ms.

Lawrence’s counsel. [emphasis added] [5] [ 18 ] In Spousal Support Advisory Guidelines: The Revised User’s Guide (English Edition) [6] , Professors Rogerson and Thompson confirm this approach: Social assistance is not income for spousal support purposes , whatever its name, even if [it is] called Ontario Works or Ontario Disability Support Program (ODSP) or Alberta’s Assured Income for the Severely Handicapped (AISH) or some other confusing name (SSAG 6.2).

ODSP still appears to fool some lawyers and judges, who erroneously treat it as income for the recipient and thus understate the spousal support range … [cases omitted]. [ 19 ] In SK v MGK [7] , Lee J. correctly noted that potential AISH payments would be offset by ongoing spousal support: The husband’s counsel suggested that perhaps the wife should also apply for the Assured Income for the Severely Handicapped program (“AISH”) of the Alberta Government.

I am not as concerned with respect to this program application given that any AISH benefits payable to the wife will be significantly reduced by way of the spousal support payments that I am continuing to order in this case. [emphasis added] [ 20 ] In Clarke v Clarke [8] , Burrows J. noted such offsetting in action: Ms. Clarke testified that she receives $1178 a month from AISH. That includes $100 for her son. … Such spousal support as Mr. Clarke pays goes to the Crown which claims a subrogation because of its support for Ms.

Clarke through AISH. … [ 21 ] Consistent with these approaches, Henderson J. factored out potential AISH-like payments in Golden v Brown [9] : David argues that if Erin is totally disabled, then some income should be imputed to represent the disability benefits which she could obtain through Government programs such as AISH or Canada Pension Plan disability benefits. … There is no evidence as to whether AISH benefits (or an equivalent program in Saskatchewan) would be available to Erin. Further, no information was put before the Court regarding the impact of spousal support on receipt of any such benefits.

Even if AISH (or the Saskatchewan Assured Income for Disability program (SAID)) were available to Erin, these benefits are not to be included in income for the spousal support calculation (see Spousal Support Advisory Guidelines: Revised User Guide page 18, and cases referred to therein). Therefore, I will not impute any AISH amount in income for the spousal support calculation. [emphasis added]

[ 22 ] In Ideas of Spousal Support Entitlement [10] , Professor Thompson explained the philosophy behind placing the primary obligation on family (or former family) members, versus the community at large: This [is] … a long-standing public policy … The policy dates back to the English Poor Laws of 1601 and even earlier. Spousal support is required where the alternative would mean the impoverished spouse wound up on the public dole. The family has primary responsibility, with state support a last resort . At one point, support obligations were extended to ascending and descending relations, as well as spouses.

Now, as a matter of law, a spouse who seeks social assistance will be required to sue for spousal support, whether or not she or he has any real claim and, of course , any support obtained will be deducted dollar-for-dollar from the assistance obtained . … The public policy was recognised in Moge in its brief reference to non-compensatory support under s. 15.2(6) (

c) of the Divorce Act , that it “may embrace the notion that the primary burden of spousal support should fall on family members not the state ”. … [In Bracklow ], McLachlin J. identified “certain policy ends and social values” for non-compensatory support, including: Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls . [footnotes omitted] [ 23 ] In their comprehensive survey Domestic Violence and Access to Justice: A Mapping of Relevant Laws, Policies and Justice System Components Across Canada [11] , Koshan, Mosher and Wiegers note the primacy of the family support obligation over community support: 3.2.10 Social Assistance Laws … … Alberta’s two main social assistance laws are the Income and Employment Supports Act and the Assured Income for Severely Handicapped Act.

Many of the relevant provisions are similar across the two programs and this

summary will focus on the Income and Employment Supports Act . [p 169] 3.2.10(

b) Reasonable Efforts to Secure Other Sources of Support The Director may refuse to provide assistance, or discontinue, suspend, or reduce the assistance when they believe an applicant or recipient is refusing to make reasonable efforts to pursue compensation, income or financial resources they are entitled to or eligible for ( Income and Employment Supports Act , s 15). … The Act does provide, though, that where a person has a right to apply for and receive support for themselves or their dependent children, the Director may apply for and enforce the support (s 29). [emphasis added] [ 24 ]

Section 29 of the Income and Employment Supports Act [12] indeed empowers Alberta to pursue a subrogated support claim on behalf of a person in receipt of provincial benefits (including AISH): 29(1) Where a person has a right to apply for or receive support under

an Act, order or agreement for that person or that person’s dependent child, and (

a) the person is in receipt of assistance, or (

b) the person has qualified for assistance but is not yet in receipt of the assistance, the Director has the authority set out in subsection … (3) .

(3) For the purposes of subsection (1), the Director has all the rights of a person referred to in subsection (1) and may take any steps to obtain, enforce or vary a support order or support agreement , including (

d) bringing an application for support and arrears, if any [and] (

e) bringing or defending an application for a variation of a support order or support agreement or to reduce arrears [.] [emphasis added] [ 25 ]

Section 31 IESA vests the right to spousal support in the Province, where it has provided or is providing social assistance (including AISH benefits) to a spousal-support claimant: The Government [of Alberta] is entitled to receive any support payments payable under a support agreement or support order made before or after the coming into force of this

section for any period during which the recipient is or was in receipt of any assistance [including AISH benefits] sufficient to enable the Government to recover the full amount or value of the assistance provided. [13] Conclusion on AISH benefits as material change [ 26 ] Accordingly, the payor has it backwards in suggesting that, with AISH benefits in gear for the recipient, he should be relieved of the responsibility to pay spousal support. Where such support is otherwise payable, it must be paid, as the front-line obligation.

If the net result of spousal support payments is that any ongoing AISH payments are reduced or eliminated, that is simply the reality of the latter as back-up support. (Such offsets have already occurred here, as reflected in the Alberta Human Services letter to the recipient dated January 7, 2020 (Exhibit D to the payor’s November 30, 2020 affidavit), with AISH benefits reduced to $1 for periods when spousal support was flowing.)

[ 27 ] Same if any arrears payment (discussed further below) end up being recovered by the Province i.e. for periods where the recipient received AISH benefits.

That would simply represent the Province being repaid for effectively having fronted what was the support payor’s obligation. [ 28 ] As a result, and as confirmed by the above authorities, social-assistance benefits such as AISH are effectively neutral in the spousal-support equation. [14] Whatever spousal support must be paid going forward and should have been paid already will be gauged without any regard for past or present AISH benefits or any consequential adjustments of such benefits. [ 29 ] Accordingly, the onset and ongoing payment of AISH benefits are not material changes here.

Treatment of CPP disability income [ 30 ] The recipient acknowledges receipt of both AISH and CPP disability benefits. The face amount of each benefit is $1,685 and $989 monthly, respectively. The payor asserted that the benefits stack i.e. that both benefits flow full-force, which would translate into an annual income of $32,088. [ 31 ] The recipient’s evidence was that her CPP disability payments do not stack onto her AISH payments, instead are deducted from the latter dollar for dollar. [ 32 ] She is right.

The Alberta Government’s on-line AISH Policy Manual, under AISH Program Policy – Income – Pension Income, states that “pension income [defined to include CPP disability payments] is deducted dollar for dollar [from AISH benefits] because this type of income is intended to cover basic living needs, similar to AISH.” [15] [ 33 ] Accordingly, I proceed on the basis that, on a net basis, the recipient’s monthly income is $1,685, with the CPP stream producing a dollar-for-dollar reduction in AISH benefits. Support of new partner and her adult son [ 34 ] According to the recipient, the payor has a new partner.

She and her adult son apparently now reside with the payor. While the evidence is not clear, it appears that neither the new partner nor her son has any income or contributes to the household expenses.

The payor stated that his new partner is disabled; however, he did not provide any particulars. [ 35 ] The payor’s monthly budget (Exhibit H to his November 30, 2020 affidavit) reflects “housing costs in Edmonton” of $2,300, which covers “rent, utilities, power, insurance, television, cable, internet, etc.” (The payor also claims $625 for rent for premises in Saskatchewan, where he is currently employed.) [ 36 ] I infer from the reported Edmonton housing costs that the payor is renting premises larger than would be needed for himself i.e. living solo. [ 37 ] The payor’s overall monthly budget is $5,512, including various other expenses (household, personal, medical, and transportation items).

Per him, with his current income at approximately $60,000 (i.e. $5,000 gross monthly), he has no ability to pay spousal support. [ 38 ] To the extent the payor points is carrying incremental expenses (e.g. extra housing costs) for his new partner and her (adult) son, such expenses do not take priority over any spousal-support obligations to the recipient.

Here I point to the Spousal Support Advisory Guidelines , which address the impact of a second family (pp 148-151): 14.6 The Payor’s Remarriage or Re-partnering The payor’s remarriage or re-partnering usually is not grounds for a reduction in spousal support under the current law, apart from some exceptional cases. Where there were ability-to-pay limitations upon the support previously ordered, the payor’s remarriage or re-partnering may even improve the payor’s ability to pay, as a result of the sharing of expenses with the new spouse or partner.

There is no need for any formulaic adjustment here . [emphasis added, except for “not” in first line – already bolded] [ 39 ] I also note that, with the new partner’s son being an adult and with no evidence that he is not able to manage on his own in the world, child-support-focused adjustments of the kind contemplated in s. 14.8 of the SSAGs (“Second Families”) are not warranted here. [ 40 ] In Shukalkin v Shukalkin [16] , the ABCA upheld Hunt McDonald J.’s application of what she described as the “first family first” principle: Hunt McDonald J. in chambers] declined to terminate spousal support .

She noted the appellant had a new child but concluded: Based on the [ Fisher v Fisher , 2008 ONCA 11 , 88 OR (3d) 241] case, the court generally recognizes that the first family principle provides that the payor’s obligation to the first family takes priority over any subsequent obligations, although inevitably new obligations to a second family may decrease a payor’s ability to support the first family. This obligation is more serious if there is a child that has been born of the second family unit.

In this case , I’m satisfied that the Husband has the ability to pay continued spousal support i n accordance with the Child View calculations submitted: ARD F5/13-20. [ 41 ] In Fisher v Fisher [cited above], the Ontario Court of Appeal emphasized factors akin to those here (paras 39-41):

In this case, the respondent [spousal-support payor] voluntarily assumed significant responsibility for his second family when he knew, or should have known, of his pre-existing obligation to his first family . He assumed this obligation even though the second family is capable of contributing to its own support provided the respondent's new partner completed her qualifications to practise as a physiotherapist in Ontario. In addition, the second family receives child support from the children's biological father.

This is not a case where the respondent was obliged to support his new family, at least beyond the temporary legal obligation based on their initial immigration status. In any event, there was no evidence that the respondent's obligations to his first family would impoverish his second family.

In these circumstances, the respondent's endorsement of his second wife's preference to remain at home cannot be relied upon to reduce his support obligation to his first family . [footnotes omitted] [emphasis added] [ 42 ] No detailed evidence showed that the payor’s new partner and her adult son, or either of them, is unable to work and thus contribute to household expenses. [ 43 ] As a result of these findings, and applying the approach of these cases, I reject any argument made by the payor, explicitly or implicitly, that the incremental expense associated with his new family is a material change of circumstances.

Periodic unemployment and reductions in payor’s income [ 44 ] The last asserted material changes are the payor’s reduced income and periods of unemployment since the consent order for spousal support in August 2018.

As noted, that order reported his income as $85,000. [ 45 ] The payor reported “line 150” income for 2015-2019 as follows: 2015 $97,130 EI Portion: $14,148 2016 $128,925 EI Portion: $4,919 2017 $103,447 EI Portion: $6,185 2018 $93,965 EI Portion: $13,781 2019 $77,191 EI Portion: $1,906 [ 46 ] He estimates his 2020 income was approximately $60,000. (EI portion: $8,839) (As discussed further below, I do not accept this estimate, instead an adjusted amount of $77,416.) [ 47 ] He emphasized the reductions in 2019 and 2020 incomes i.e. from the $85,000 level reflected in the consent order, as well as periods of unemployment (one shortly after the order was made) as his work projects ebbed and flowed, sometimes featuring EI benefits, sometimes not. (The details are spelled out in paragraph 7 of his concise letter.) Attributing income for periods of unemployment or reduced earnings [ 48 ] The recipient asserted that the payor’s periods of unemployment have been stage-managed somehow i.e. that he could actually have continued working despite ostensible lay-offs.

She also asserted that he has under-reported his income, omitting proceeds from various asserted under-the-table pursuits. Effectively, she asked that I impute income to the payor for unemployment periods and higher income to him for employment periods. [ 49 ] I accept that income can be attributed to a spousal-support payor for periods of unemployment or under-employment where reasonable efforts to obtain or upgrade employment are not made.

See, for example, Jean v Jean [17] , where Greckol J. (as she then was) so held: Evaluation of the “means” factor in s. 15.2(4) of the Divorce Act allows the court to attribute to the payor spouse an amount of income that is based not only on his or her actual income, but his or her earning capacity, regardless of whether he or she is unemployed or underemployed .

This inquiry necessarily involves an assessment of whether the payor spouse’s actions, as they relate to his or her employment situation, are reasonable in the circumstances . [emphasis added] [ 50 ] Accepting this analysis, I turn to whether it applies here. The recipient did not provide any particular evidence to support assertions of stage-managed unemployment or under-the-table earnings.

In affidavits filed November 13, 2018 and March 3, 2020, the recipient asserts that the payor advised in fall 2018 that he had “no intention to be employed for at least another half year” (first affidavit, para 14), that (per questioning responses) he had declined to work at available positions for $32-$34 per hour (insisting on work paying $40 per hour or more) (second affidavit, paras 8, 9 and 11), and that (during periods of unemployment) he earns unreported (“off the books”) income, as much as $8,000 in 2019. [ 51 ] The payor, explicitly or implicitly, refuted these allegations.

In any case, with a track record of earning $65 per hour, I do not fault the payor for (possibly) turning down opportunities paying only half as much.

As it turned out, even with extensive periods of unemployment, the payor was still able to earn substantial amounts i.e. by waiting for higher-paying positions, as reflected in the above income table. [ 52 ] As well, the recipient’s evidence was spare on the details of the asserted other employment opportunities. [ 53 ] As for the asserted off-the-books earnings of the payor, the recipient did not provide any corroboration. [ 54 ] The payor gave evidence of the economic downtown’s impact on his employment opportunities (and same for his age (mid- fifties) in a field where younger workers are “given preference”) and of his job-search efforts while unemployed. [ 55 ] On balance, I find that the payor’s periods of unemployment have not been stage-managed by him (or anyone else) and that his line 150 income reflects his actual earnings.

Impact of periods of unemployment [ 56 ] The question becomes whether the payor’s periods of unemployment are themselves material changes in circumstance. [ 57 ] In PDB v JAB [18] , Sullivan J. recognized that a more-than-temporary interruption in the payor’s income might require an adjustment to spousal support: … with respect to the spousal support …, I am satisfied that the following additional terms should be ordered: (

I) If in any future 12-month period Mr. is unemployed for four or more months, the spousal support arrangement between Mr. and Ms. may be reviewed by a Court to temporarily alleviate hardship on the part of the payor . … [emphasis added] [ 58 ] In Droit de la famille -- 152270 [19] , Kear-Jodoin J. found that the payor had committed to a particular level of spousal support regardless of unemployment . Notably, the payor was unemployed when he committed to the payments.

As well, the agreement contemplated increased payments if the payor earned more than a threshold amount and was silent as to consequences if he earned less than the threshold (paras 64 and 67). [ 59 ] In Kemp v Helfrich [20] , in the context of imputing income, G.P. Smith J. factored in periods of likely unemployment: While I appreciate that the court is entitled to impute income to the father, given his failure to provide proper financial disclosure as ordered, and to draw and adverse inference therefrom, I have reservations about the mother’s projections.

These projections do not allow for or assume any period of layoff or unemployment for the father, which would not be uncommon in his line of work and in this economy. It would be more realistic to project the husband’s income based on 45 weeks of work, resulting in a current annual income of $87,525. [emphasis added] [ 60 ] In Giannias v Fotis [21] , when gauging child support, Tidman J. rejected a proposed “percentage of EI benefits” approach to adjusting such support: Mr.

Gruchy, for the husband, has suggested that the court make an award that, during periods of unemployment, would automatically reduce to 17% of the husband's Unemployment Insurance benefits. The court declines to do so, although realizing it is difficult to budget for periods of unemployment.

The husband's employment income, both present and past, suggests that, even with periods of unemployment, he can pay consistently a reasonable amount towards the maintenance of his children. ... [emphasis added] [ 61 ] In Shingarov v Shingarov [22] , Kane J. accepted unemployment (other than self-induced) as justifying the suspension of spousal (and child) support payments: Unless self-induced, the courts should not ignore unemployment. The arrears accumulated in the present case are extremely high and realistically will not be repaid in the foreseeable future .

The mother does not argue that no forgiveness of debt should be granted. There is no legal or factual justification to impute $60,000 annual income to this applicant [payor] during periods of his past unemployment . I am satisfied on the evidence that there have been several periods of unemployment during which the applicant has not earned income . The applicant’s obligation under the agreement to pay monthly child and spousal support totals of $1,968.

The resulting indebtedness , accruing at the monthly rate of $1,968, is rescinded and cancelled during the following periods of unemployment [periods identified]. [emphasis added] [ 62 ] In ALJ v PNAJ [23] , Morellato J. denied to a request for payment relief for periods of unemployment: I am satisfied that the Father has had to contend with a period where his employment circumstances have been negatively impacted.

Nonetheless, I am also satisfied that the Father has shown himself to be a successful professional who has demonstrated an earning capacity which is significantly and consistently greater than that of the Mother . In addition, the Father has been able to find other contract work when previous contracts have been terminated or reduced in scope. The evidence does not support the conclusion that his reduced level of employment is permanent . I am of the view that the Father’s earning capacity should be imputed at $168,000 annually.

He is capable of earning at least this amount and has in fact done in the past years [authorities omitted] ... . [ 63 ] In Hack v Hack [24] , Diamond J. declined to grant support-payment relief for periods of unemployment found to be voluntary. [ 64 ] In Kennedy v Kennedy [25] , Rogers J. authorized a “material change” departure from agreed-on spousal support where neither the payor’s unemployment nor “drastic reduction” in income were contemplated by the parties. It is the second test in Miglin that requires examination.

The court must consider if the vicissitudes of life have put the parties in circumstances they did not contemplate. The court must then assess whether the enforcement of the agreement still reflects the original intention of the parties and whether the agreement is still in substantial compliance with the objectives of the legislation. Have the new facts in the parties’ lives led to a situation the court cannot condone ? The parties certainly contemplated the applicant returning to work and earning an income. She did as expected and has enhanced her earnings.

What they did not contemplate was the drastic reduction in the respondent’s income.

As the parties have agreed that the child support can be varied, the new amount of child support must be considered as part of the facts in applying the second Miglin test. The court has to consider the overall financial impact on both parties. When considering quantum and duration, the Family Law Act requires the court to consider the ability of the payor to pay . This must be looked at in the context of the purposes of a support order in section 33(8) and all the other criteria in section 33(9).

It is the ability of the respondent to pay that gives this court pause when considering if the objectives of the legislation are still being met. The court finds the agreement cannot withstand the scrutiny of the second part of the Miglin test. The parties had no thought that the husband would encounter such a drastic reduction in income and, indeed, be unemployed for periods of time.

In the lean years, the spousal support as contemplated in the agreement, together with the now ordered child support, far exceeds an amount that would be in keeping with the objectives of the legislation . [emphasis added] [ 65 ] In RDR v KDR [26] , Frame PCJ noted that not every spell of unemployment warrants a variation of support: R.D.R. gave evidence again in June 2015 that his projected annual income would only be $45,000. In fact, it was $61,582.

This is why child support is not necessarily reduced every time a payor encounters a period of unemployment . ... [ 66 ] In PCB v MMB [27] , Preston J. found a three-month period of unemployment for the payor was not a material change: The considerations underlying Dillon, J.’s award of spousal support are long-run considerations . Promoting the Wife’s self-sufficiency was one of the primary objectives of her award. Viewed broadly, little has changed from the time of Dillon, J.s’ reasons for judgment. ...

The Wife is entitled to rely on the spousal support order for the five years that she has to achieve self-sufficiency unless there is a change in circumstances of a significant long-run nature such that the order she made would likely not have been made or have been made in different terms. The Husband’s circumstances have not altered to a degree that he is unable to bear the burden of the order made after the conclusion of the trial. His income has decreased. It was expected that it would fluctuate . ...

His expenses have decreased as a consequence of his remarriage. [emphasis added] [ 67 ] In Cattani v Mihalich [28] , Kurisko DCJ rejected a support variation premised solely on a period of unemployment for the payor, requiring more information to understand its overall impact: I have no difficulty concluding that the husband's extensive periods of unemployment constitute a material change in circumstance. However, his present job pays almost 50 per cent more than he was earning at the time he signed the separation agreement. Prima facie, this increase negates any decrease in the support payments.

Indeed it may very well constitute a material change justifying a claim for increased payments. Were it not for the question as to the duration of his employment I would dismiss the husband's application to vary. I am adjourning the application sine die until there is less uncertainty regarding his employment. Either party may bring the matter back on five days' notice at which time further information relevant to the children moving from Thunder Bay should also be provided.

In the mean time unless otherwise ordered the husband shall continue his payments in accordance with the separation agreement . [emphasis added] [ 68 ] In Stones v Stones [29] , the BC Court of Appeal found an 18-month period of unemployment to be a material change warranting a reduction in monthly spousal support from $3,000 to $1,400. Particularly instructive is the Court’s implicit recognition that not every period of unemployment would have been found to be such a change : The issue in relation to para. 1 of Mr. Justice Oppal's order is that the appellant, Mrs.

Stones, argues that there was no material change of circumstance which would justify and give jurisdiction to the court in relation to the agreed amount of maintenance at $3,000.00 each month. The material change in circumstance wording appears in the Divorce Act and the Family Relations Act and also in the consent order that was made in 1995. Counsel for the appellant argues that that means that the change of circumstances must be material, must be unforeseeable and it must be ongoing.

He argues that in this case the change was such that the parties ought to have had it in contemplation and was foreseeable and therefore not a material change of circumstances. In my opinion, the question of what is a material change of circumstance may vary from one case to another. That is particularly so in relation to foreseeability . There are a group of cases which decide that retirement from employment, even at the retirement age set by the employer, or by collective agreement, can be a material change of circumstances, although clearly it would be foreseeable.

I suppose that the question should really be asked in each case of whether the circumstance in question was one which the parties must have had in contemplation and built into the framing of their agreement. Perhaps it is a change that the parties were prepared to leave out of contemplation in the agreement because of complexity or some other reason, so that when it occurs it is a material change of circumstances, even though the parties knew it must be going to happen at some time or another . In this particular case where Mr.

Stones was self-employed at the time that the agreement was made, with all the vagaries that go with success in a small professional undertaking and with no definite concepts of employment or unemployment or employability after that, it would have been a very complicated and unreliable process to try to set down in advance what would be the kind of change that should be one that the parties did contemplate or should be one which the parties did not contemplate. In my opinion in this particular consent order, the complete lapse of Mr.

Stones into unemployment from mid-2002 for one year until the matter came before the Supreme Court judge and for a further six months since then must be regarded as a material change in circumstances . Accordingly, I would not accede to the first part of the argument on behalf of the appellant. [emphasis added] Conclusion on periodic unemployment as a material change here [ 69 ] I find that the payor’s bouts of unemployment here were not material changes of circumstances. Here I emphasize: • such periods were a common feature of the payor’s work history (occurring every year since at least 2015);

• the payor was actually unemployed (for at least four months -- April to early August, 2018) in the lead-up to the consent order on August 22, 2018, which reported his income at $85,000 and required the $2,000 monthly spousal support payments.

Despite that very recent bout of unemployment, he still signed on to a base income of $85,000 and spousal support of $2,000 monthly; • at the time of the current variation application (heard February 5, 2021) the payor was employed, and had been since April 2020 i.e. as in earlier years (back to 2015, at minimum), he bounced back, from periods of not working, with new employment; • no evidence showed that any given period of unemployment was expected by the payor to become permanent; and • the payor’s project-centered work inherently seems to involve periods of unemployment between projects. [ 70 ] If an onlooker had asked the parties, when they were negotiating the August 2018 consent order, whether they had factored in likely periods of unemployment for the payor, I believe they both would have said “of course ... that is just the nature of my/his work ... and that is the established pattern of my/his work life.” In other words, the fact that the payor became unemployed shortly after agreeing to the consent order (September 2018 to July 2019) and had another bout after that (December 2019 to April 2020) is simply history repeating itself. [ 71 ] The former period was longer than the typical period of unemployment, but it did not shake his annual incomes for either 2018 or 2019 ($93,965 and $77,191, respectively) vastly off track. [ 72 ] Accordingly, the mere occurrence of these bouts of unemployment were not material changes here, being largely on par with the payor’s employment history.

Decrease in annual income as material change [ 73 ] With the fact of periodic unemployment itself not a material change, how about the decrease in the payor’s earnings since the consent order (reciting an income of $85,000) was made?

For ease of reference, I repeat his 2018 ($93,965), 2019 ($77,191) and 2020 ($77,416 -- estimated [30] ) income. [ 74 ] This is in contrast to his income in 2015 ($89,164), 2016 ($128,181), and 2017 ($89,739). [ 75 ] Compared to the preceding three years (2015-2017), the order-reported income of $85,000 looks like a conservative income figure. [ 76 ] From the perspective of 2018-2020, that income looks like a highwater mark. For 2019, the difference between the base ($85,000) figure and the payor’s actual income ($77,191) represents a 9.2 per cent reduction.

For 2020, the decrease (again compared to $85,000) is an 8.9 per cent drop. Cases exploring payor-income decreases as a material change [ 77 ] I accept that fluctuations in income can constitute a material change under the LMP framework. In Jessen v Jessen [31] , the Alberta Court of Appeal emphasized the linkage between the payor’s income and spousal support payable. In that case, the parties had agreed on a percentage-of-income-difference formula for support, reviewable for “material changes.” The payor retired had retired and sought to terminate spousal support.

The chambers reasons correctly characterize the appellant’s loss of employment as a change of circumstances, but do not reasonably reflect the effect that his loss of employment had on his obligation to pay support , and the respondent’s entitlement to support. As noted, under the spousal support formula, spousal support would always lag behind the appellant’s actual income by between six and 18 months. This formula obviously assumes a reasonably steady and continuous income stream …. The appellant’s loss of employment undercut the assumptions lying behind this formula . … ...

Calculating support based on the previous year’s income was reasonable so long as the appellant’s income was continuous and ongoing. Once the appellant’s income stopped, it was unreasonable to continue his obligation to pay support . [emphasis added] [ 78 ] In Brown v Brown (Hannen) [32] , Moreau J. (as she then was) implicitly accepted that payor-income-reduction could be a material change, but not in the circumstances there: While Mr. Brown lost a position he had occupied for 10 years prior to the August 2013 trial, the severance package he received cushioned any immediate blow.

He was able to earn gross income in the last four months of 2013 and first five to six months of 2014 of $175,000 which exceeded his income in 2012, his last full year as an employee. As noted, he elected not to fully disclose his financial circumstances .

I am not satisfied that he has established a change in his income or income-earning capacity meriting a reduction in spousal support. … [emphasis added] [ 79 ] In Reynaud v Reynaud [33] , Burrows J. reduced spousal support payments by half in light of similar-scale reductions to the payor’s net income : To review, the scoio-economic relationship between these parties lasted for 16 years. It ended 10 years ago. Mr. Reynaud has supported Mrs.Reynaud during those 10 years. For the last 7 years the support has amounted to about 40% of his income.

His income has been reduced by his retirement to about half of what it was during those 10 years. Mrs. Reynaud continues to be in need of financial assistance owing to ill-health which is not the result of the marriage or its breakup. There has been no reduction in her need but there has been a significant reduction in his means.

In my view the obligation Mr. Reynaud acquired in the socio-economic partnership of his marriage to Mrs. Reynaud is not, in the circumstances, of indefinite duration. In my view it should come to an end when Mrs. Reynaud reaches 65 years of age which will be on September 15, 2003. By then Mr. Reynaud will have supported Mrs. Reynaud for 13 years following a 16-year relationship. Further, in my view, given the reduction of Mr.

Reynaud’s income, the quantum of the obligation should be reduced to $900 a month starting March 1, 2000 . [emphasis added] [ 80 ] Sanderman J. took a similar approach in Lowe v Lowe [34] . [ 81 ] In Hariram v Harirami [35] , the Ontario Superior Court of Justice (Divisional Court) upheld a 15 per cent reduction in spousal support on account of such a decrease in the payor’s earnings: On September 16, 1999, Mr. Hariram applied for an order to vary the amount of the spousal support that Wilson J. ordered him to pay, on the ground that there had been a change in material circumstances since the order was made.

The application judge, Farley J., considered a number of factors. He concluded that the only factor that constituted a change in material circumstances was a 15 per cent reduction in the appellant's income which occurred in August, 1999.

He gave effect to this change in material circumstances by reducing the monthly amount of spousal support by 15 per cent , from $800 to $680, and ordered that the support be paid each month effective June 1, 2000. [ 82 ] While the reasons for payor-income decreases (job loss due to injury and retirement, respectively) were different than here, in Madhoo-Persaud v Mattson [36] and Norrish v Norrish [37] Graesser J. and Renke J. respectively directed spousal-support reductions proportionate to the payors’ decreased incomes.

In the former, Graesser J. wrote: ... [the payor] 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 [from $83,060 to $55,380] and leave him vulnerable to the marketplace. His skills are apparently outdated and he fears that may have a difficult time getting comparable employment because of his dated skills, age and health issues .

I am satisfied that as a consequence of his loss of employment, [the payor’s] circumstances have changed in a material way, entitling the court to review his spousal support obligations. [emphasis added] [ 83 ] In the latter case, Renke J. held: ... the Original Order makes no mention of retirement. It was premised on a particular level of income [$100,000] and on the continuation of that level of income. The parties did not know and could not know that the Applicant would be terminated in 2009 or that he would be unable to find work thereafter ....

I find that the Applicant has established there has been a significant and permanent reduction in his income [to $23,357], confirmed by [his] decision to retire. Had his current income been known at the time of the Original Order, the Original Order would have had different terms .

I find that the Applicant’s circumstances have changed in a material way since the date of the Original Order. [emphasis added] Conclusion on income decreases as a material change here [ 84 ] Recognizing that we are not here examining income drops due to permanent job loss or retirement, I draw from these cases that material, even if temporary, payor-income decreases can warrant decreases in spousal support. [ 85 ] The key factors here are: • going into the (August 2018) consent order, the payor had earned incomes in excess of the $85,000 level reflected in that order (averaging out at $102,361 i.e. $307,084 ($85,164 (2015) + $128,181 (2016) + $89,739 (2017) divided by 3); • as noted, the payor’s income tailed off (compared to the $85,000 benchmark) 9.2 per cent and 8.9 per cent, respectively, in 2019 and 2020; • these decreases square with the payor’s evidence that he is “ageing out” to a degree in his line of work (now in his mid-50s, with employers preferring young workers for this labour-intensive (e.g. wire-pulling work) and of generally adverse economic conditions (narrowing industrial-project-related employment opportunities); • congruent with the analyses in many of the above cases, I find that the consent order was built on the foundation of an assumed on-running income of $85,000 or thereabouts; • given the preceding three-year average (see above), it is unlikely the parties anticipated that the payor’s income would trail off as it did in both 2019 and 2020; • for 2021, while the year is early, the payor anticipates that his current-project-focused employment will expire at the end of March, with no evidence of a waiting project to shift to; • on the other hand, in 2018 the payor ended up earning more ($93,965) than the order-reflected income ($85,000) i.e. 10.5 per cent more; • the decreases for 2019 and 2020 (9.2 per cent and 8.9 per cent, respectively) are not akin to the sharper decreases seen in the above

cases (where reduced support was approved); • while the payor is pessimistic about what lies ahead (once his current project wraps up at the end of March 2021), his materials reflect similar pessimism about his prospects in previous years; however, he has continued to bounce back from the noted interludes of unemployment.

Here I adopt the analysis of Graesser J. in Madhoo-Persaud v Mattson (cited above): Variation applications are generally to be made after the material change in circumstances has occurred, rather than in anticipation of it ... [para 70]; • as well, as Renke J. noted in Norrish v Norrish : In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances [authority omitted] ... [para 35] [emphasis added] • here, we have one year (2018) featuring about a 10 per cent jump in income (from the order-reflecting base) and two years (2019 and 2020) of roughly comparable-scale decreases (from that base); • no evidence showed that the downswings for 2019 and 2020 represent permanent shifts; • the payor’s income history since 2015 reflects various ups and downs, with no discernible pattern or trend, or at least not one showing or even foreshadowing a now-fixed departure (downwards) from $85,000; • support of $2,000 per month on an income of $85,000 represents 28 per cent of the payor’s gross income.

The same level of support on an income of $77,416 (2020-level) represents 31 percent of that income; • in Salvatore v Etcovitch-Holley [38] , and in the context of child support, Langdon J. accepted the existence of a swing zone in which a payor’s income might move without requiring adjustments in support: Joan has argued that Mark has been guilty of “hiding” increases of income. I do not think “hiding” is the appropriate word. On the facts here, all that Joan can complain of is that Mark did not proffer information of same.

In the context of an indexed order that, by implication, does not address routine changes, upwards or downwards, in the payor’s income, and thus provides certainty to the recipient, the failure to disclose increases of income does not become offensive, unless there is a substantial and somewhat permanent upward swing in the payor’s income of such a magnitude as to make it obvious that the level of child support currently being paid is inappropriate .

Mark’s income will be dealt with later. [emphasis added] • in the same vein, in Farnum v Farnum [39] , Pawagi J held that “[n]ot every post-separation decrease in income results in an increase in spousal support”; • in Kaiser v Kaiser [40] , Hambly J. declined to reduce a payor’s child-support payments, imposed per an income of $66,408, where the payor pointed to his current income of $58,550 (i.e. a 12 per cent reduction) and a predicted-without-any-evidence income of $50,000 for the upcoming year: It is not every change in income that should result in a change in support. There needs to be a material change .

I note that Justice Glithero's order was made pursuant to a settlement . The respondent's new material has not convinced me that he is entitled to the relief that he seeks. [emphasis added] • in line with this decision, I am reminded that the $85,000 figure here was also the product of a settlement (in the form of a consent order) between the parties; • in Raaflaub v Gonosch [41] , McDermot J. examined whether a 16 per cent drop in the payor’s income warranted a corresponding decrease in spousal support.

He answered yes, emphasizing the fixed and ongoing nature of the decrease (due to a narrowing of the payor’s job responsibilities) and the fact the parties had used the SSAGs to determine support, with the Guidelines requiring approximately $500 less support with the lower income: In the present case, it is acknowledged that the Spousal Support Advisory Guidelines (the “ SSAG ”) played an important role in the award of spousal support in the March 11, 2016 order. Using an annual income figure of $101,335 for Mr. Gondosch and $35,000 for Ms.

Raaflaub, the midrange figure under the SSAG for spousal support is $2,225 per month, [7] only $50 per month less than the support amount in that final order. Using the figure of $86,265 per annum for the Respondent, with Ms. Raaflaub still making $35,000 per year, the midrange figure would be $1,741 per month, [8] more than $500 per month less than the amount under March 11 order. Significantly, even at the highest range of spousal support under that scenario, Mr.

Gondosch would only be paying $1,943 per month, and to allow the spousal support to continue at the present range would be clearly outside of the ranges under the SSAG . To say that a $500 per month payment is insignificant would then beg the question as to why either of these parties are expending the legal fees on this argument that they are; if that amount was insignificant to either party, they would not have argued this motion. In the present case, it is common ground that the SSAG were used to set the support amount that Mr. Gondosch had to pay to his wife. If that is the case, and if Mr.

Gondosch’s income had been the amount of $86,000 per annum in 2016, this “would have likely have resulted in different terms” of the award of spousal support: see Gallagher at para. 18 . Based upon this, the reduction in Mr. Gondosch’s income is a change in circumstances sufficient to vary the consent order for spousal support. [emphasis added]; and • the payor here did not give evidence of the centrality (or otherwise) of the SSAGs in their negotiations leading up to the consent order anchoring spousal support on the payor’s income of $85,000.

In any case, the fixed nature of the income decrease (stemming from a redefinition of job responsibilities) in Kaiser makes that case distinguishable.

Conclusion on income decreases in 2019 and 2020 as a material change [ 86 ] I find that, in all the circumstances here, including the upswing in 2018 income, the historical up-and-down pattern of the payor’s income, the relatively short sample period (three years, with one year of increase and two years of decrease), the relative scale of the decreases (less than 10 per cent in both of the “decrease” years, measured from $85,000), the absence of evidence showing that 2021 income will necessarily depart from the $85,000 level in any material way (if at all), the payor’s proven ability to rebound from spells of unemployment (i.e. if any such spells lie in his future), and the absence of evidence that the payor’s age has actually been a limiting factor in finding project work, that the payor has not proven a material change of circumstances based on income changes.

Conclusion on material changes overall [ 87 ] I find that none of the circumstances asserted by the payor are material changes. [ 88 ] Accordingly, the questions of whether spousal support should be terminated or reduced are not engaged. [ 89 ] Accordingly, I lift the payment suspension imposed by Michalyshyn J., which was effective March 1, 2020. Commencing March 1, 2021, the payor shall resume making the twice-a-month $1,000 payments required under the August 22, 2018 consent order. [ 90 ] I will address possible payments from March 2020 to the present further below, as part of the arrears analysis. 3.

Whether the spousal support arrears should be cancelled? Calculation of existing arrears [ 91 ] I first determine the existing arrears. [ 92 ] Support was required, at $2,000 monthly, for five months in 2018 (August-December), twelve months in 2019, and two months in 2020 (with support suspended as of March 1, 2020 per the order of Michalyshyn J., pending the hearing of the special application, which was not heard until February 5, 2021 i.e. support for 19 months i.e. $38,000. [ 93 ] The payor paid $5,000 in support in 2018 (i.e. $5,000 short of the required $10,000).

In 2019, through a combination of earnings and tax-refund garnishments, the payor paid $16,789 against the required $24,000 i.e. short by $7,211. [ 94 ] He did not make any payments in 2020 i.e. he is currently short by $4,000 (January and February). [ 95 ] This adds up to existing arrears of $16,211, contrasted to payments of $21,789. [ 96 ] This is without factoring in any support potentially found to be payable for the ten remaining months of 2020 and now into 2021 (discussed further below). [ 97 ] The payor’s position on arrears is outlined in his concise letter (p 5): [The payor’s] spousal support arrears accrued between September 2018 and March 3, 2020, during a time that he was primarily unemployed. [He] has no savings or other investments from which to draw upon.

His future work prospects are uncertain, given his age, the economy in Alberta, and the effect of the current pandemic on employment.

We submit that [he] will not be able to pay the $13,000 [actually $16,211] in spousal support arrears in the foreseeable future, and request that they be cancelled. [ 98 ] I have already addressed the impact (or non-impact) of the payor’s periods of unemployment, with his earnings in 2018 nevertheless exceeding the $85,000 benchmark and not falling off substantially (i.e. not materially, as discussed above) in 2019 and 2020. [ 99 ] As for predictions for the future, I have also already noted that the payor’s pessimism-flavoured predictions have historically been off-target (too pessimistic).

In any case, he did not provide any, or sufficient, evidence to show that the trajectory of his earnings has curved downwards in any permanent or even likely-to-be-permanent way. [ 100 ] He provided no evidence bearing on the impact (or otherwise) of the pandemic on his current and anticipated earnings. Test for cancelling arrears [ 101 ] In Haisman v Haisman (a.k.a.

RH v MH) [42] , the Alberta Court of Appeal set this test for the cancellation of child-support arrears: I wish to emphasize that the mere accumulation of [child support] arrears, without evidence of a past inability to pay, is neither a change under s. 17(4) of the Divorce Act , nor a special circumstance. A present inability to pay arrears of child support does not by itself justify a variation order. It may justify a suspension of enforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears.

However, in the absence of some special circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilities that he or she can not pay and will not in the future be able to pay the arrears. In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as

to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor can notthen pay, and will not at any time in the future be able to pay, the arrears. [emphasis added] [102] As for spousal-support arrears, the Court of Appeal focused on the narrower issue of asserted delay in enforcement (paras 50and 51): ... At the time when the court granted R.H. a decree nisi of divorce, it ordered M.H. to pay her $200 each month for one year for hermaintenance. This was clearly to enable R.H. to re-establish herself. M.H. did not make any of these payments.

R.H. was forced to acceptsocial assistance. She and her child have been supported almost entirely by social assistance and student loans since the divorce. Herstudent loan debt is approximately $25,000. The arrears of maintenance total only $2,400. There is nothing in the evidence toindicate that this is a "crippling" debt for M.H.. On the contrary the chambers judge found (at 174) that M.H.'s own evidence showedthat he was able to pay all of the arrears of child and spousal support with interest. In these circumstances the rule against hoardingcould not apply.

Again it follows from the above that the chambers judge did not err in refusing to eliminate or reduce the arrears of spousal supportfor the reason that R.H. had not sought to enforce the order for spousal support in a timely fashion. [emphasis added] [103] As noted, the Court of Appeal did factor in ability to pay (whether spousal arrears a “crippling” debt for the payor). [104] The question arises: is the full Haisman test for cancelling child-support arrears (“not able now, and will not be able in thefuture, to pay”) applicable to spousal-support arrears? [105] Per Renke J. in Pickett v Walsh[43], the answer is yes.

He held: ... I am satisfied on a balance of probabilities that effective September 1, 2015, a material change in circumstances beset Mr. Walsh. Hisheart health deteriorated to the point that he had to cease work. He began to receive disability insurance. His income diminished verysignificantly. If establishing a material change in circumstances is necessary (despite the interim nature of the Eidsvik Order and itsreference to “review” of spousal support at trial), Mr. Walsh has established grounds for revisiting the effects of the Eidsvik Order unders. 17(4) of the Divorce Act from and after September 1, 2015.

From the perspective of Haisman [paras 24, 26 and 27 of which Renke J.reproduced earlier] Mr. Walsh has been unable to pay child support at the amount set in the Eidsvik Order or at all since September 1,2015. Mr. Walsh does not have an ability to pay ongoing spousal support, because of his health, employment, and income circumstances. I therefore vacate all spousal support arrears and any associated interest and charges relating to spousal support paymentsaccruing or payable on or after September 1, 2015. I am vacating this portion of support owing because it was not properlypayable by Mr. Walsh.

On my jurisdiction to take these steps, see CAG v SG, 2012 ABQB 529, Jones J at paras 101 – 106. [emphasisadded] [106] In Rasmussen v Rasmussen[44] and RAB v MAB[45], Girgulis J. held that the Haisman test applies to the proposed cancellation of both child and spousal support arrears. L. J. Smith J. held the same in CEM v DMM[46], as did Watson J. (as he then was) in Pigeon v Pigeon[47] and R.P. Fraser J. in Gieck v Gieck[48].

Same for Moen J. in Reith v Reith[49], Veit J. in Weinrauch v Weinrauch[50], Sanderman J. in Beattie v Beattie[51], Perras J. in Miller v Miller[52], and Nash J. in Davey v Davey[53] [107] In JP Boyd on Family Law (cited above at FN2), the author observes (at p 447) that: [t]he power to cancel or reduce [spousal-support] arrears under the Divorce Act is not often pursued, but it does exist [citing the ABCA’sdecision in Haisman v Haisman as well as Earle v Earle, (BCSC]. [108] I agree that the Haisman test applies to a proposed cancellation of spousal-support arrears.

Application of Haisman test here [109] In HGS v JRM[54], I reviewed some of the factors bearing on present and future ability to pay arrears: What is left is Haisman’s other basis for arrears relief: a present inability to pay, as noted by Renke J. in the above excerpt from Brown.On that aspect, I note the following: 1. the Father is relatively young (35); 2. while he experienced health problems before and on his discharge from the military, the record does not contain evidence thatthose problems currently affect him; 3. as reviewed earlier, the Father is currently employed by the Province of New Brunswick, as a forest ranger, on a seasonal basis(May to November each year).

However, he testified at the variation application as follows: I graduated [from the Maritime College of Forest Technology] in 2015 and I was hired by the province of New Brunswick on mygraduation day. I was offered a casual position as a forest ranger for future advance and opportunities. ... Well, anyone that understandsgovernment knows that you sometimes have to get your foot in the door in a casual position. So this year I was promoted to a permanentseasonal position. That’s one away from full-time.

So currently I’m biding my time waiting for a position to open. 4. his variation application noted that he receives Employment Insurance from November to May each year;

5. the Father estimated his 2017 income would be $27,568; 6. if support were still payable by the Father for the child, the Federal Child Support Guidelines would require the payment of $221.33 monthly at that income level; 7. the Father was able to pay support when earning similar amounts : in 2010, on income of $29,065, he paid $2,070 in support; and in 2012, on income of $25,390, he paid $3,787; and 8. the arrears stood at $12,312.28 as of April 3, 2018. [footnote omitted] I find that, given his age, health, current employment, expectation of full-time employment, current income, demonstrated ability to pay support at similar income levels, and the relatively modest extent of the arrears [footnote 23: If the Father paid $200 monthly toward the arrears, and with no interest charged, he would clear them in 62 months i.e. just over five years ], the Father has not shown that he will be unable to pay the arrears at any point in the future.

Accordingly, I dismiss the Father’s application to eliminate or reduce the arrears. [emphasis added] [ 110 ] The payor is older here (mid- to late fifties); however, (per an affidavit in November 2019) he said “I hope to have another 5 years [working]” i.e. through to 2024 or so. [ 111 ] I have already discussed his employment history and up-and-down earnings.

Neither points to a present or future inability to pay the arrears here. [ 112 ] As for quantum, the arrears here stand at $16,211. (Again, this excludes any arrears found to exist since March 1, 2020, when the spousal-support payments were suspended.) [ 113 ] To get an idea of the manageability of arrears payments over the payor’s projected remaining working life, if he were to work until the end of 2024 i.e. 46 more months, clearance of the $16,211 arrears would require monthly payments of $352. [ 114 ] I note that, while the support payments were suspended as of March 1, 2020, nothing barred the payor from chipping away at his arrears since then.

And recall that he has been employed steadily since late April 2020. [ 115 ] If he had paid as little as $500 per month towards his arrears for the last 11 months (when his $2,000 spousal-support payments were suspended), he would have reduced the arrears by $5,500 i.e. 34 per cent of them. [ 116 ] I conclude that, in these circumstances, the payor has not shown that he cannot now pay, and in the future will be unable to pay, the existing arrears. [ 117 ] Accordingly, I dismiss his application to cancel those arrears.

Potential arrears for March 2020 to the present [ 118 ] I next explore the proper treatment of the suspended spousal-support payments from March 2020 to the present. Should the payor be required to pay all or some of those payments now? [ 119 ] The Court has authority, when lifting a support-order suspension, to require payments retroactively, whether back to the start of the suspension or otherwise. In Brown v Brown [55] , Dunlop J. did just that, after finding no material changes: By Order dated June 28, 2018, Mr. Brown’s [i.e. the payor’s] application was adjourned to September 14, 2018, and Mr.

Brown’s spousal support obligation was suspended commencing on September 1, 2018 , pending the hearing of his application. Mr. Brown’s application has now been heard and dismissed . The suspension of his spousal support obligation is hereby lifted, retroactive to September 1, 2018 , which means Mr.

Brown is obligated to pay spousal support of $1,400 on the 1st and 15th of September 2018, and on the 1st and 15th of every month thereafter until further order of this Court. [emphasis added] [ 120 ] In BLF v SMF [56] , Yamauchi J. required a support payor to make payments for a period during which payments had (per a Nation J. order) been suspended. The key factors were that Nation J. had suspended payments in light of the payor’s unemployment but had also required him to notify the recipient immediately if he obtained employment.

He did obtain employment but failed to notify the recipient. [ 121 ] In Burt v Burt [57] , Rasaiah J. ordered support for an earlier suspension period, finding (on the spousal-support front) that no material change had actually occurred. [ 122 ] Retroactive support for a portion of a “payment suspended” period was ordered by Sherr J. in MacLean v Taylor [58] . [ 123 ] In Natha v Cook [59] , the Alberta Court of Appeal noted that the Saskatchewan Court of Queen’s Bench had awarded retroactive support for some or all of a “payments suspended” period. [ 124 ] In Droit de la famille -- 201735 [60] , Vaillancourt J. concluded that retroactive support following the lifting of a payment suspension may or may not be appropriate, depending on the circumstances: As far as retroactivity is concerned, the Court must first determine the effects of the suspension of child support ordered by the Court on June 20, 2017.

If the suspension is lifted, it may not be appropriate nor necessary to discuss retroactivity.

According to the Court of appeal in Droit de la famille – 09439, suspension is justified when the parties’ situation is expected to return to what it was when the previous support order was rendered.[footnote omitted] As appears from the Mandeville Judgment, child support was suspended on the grounds that the Father was receiving E.I. Benefits and that it was possible that he returned to work, hence his obligation to send to the Mother’s lawyer, on a monthly basis, copy of his E.I. Benefits slips "to prove that the child […] support should still be suspended".

The testimonial evidence on this point is contradictory and there is no documentary evidence establishing whether he complied with this order or not. The Court therefore concludes that the Father did not provide the Mother’s lawyer with any of his E.I.

Benefits slips. [paras 21 and 22] [As reflected in paras 24 and 29, Vaillancourt J. concluded that the payor did not earn any employment income during the suspension period and thus did not order retroactive support during that period.] [emphasis added] Application of these principles here [ 125 ] I note that: • the suspension order here (March 1, 2020) was premised (per the third

preamble paragraph) on “the [payor’s] employment [having been] terminated [on December 11, 2019] and on the assumption that the [recipient] will receive full AISH benefits”; • the payor remained unemployed until the end of April 2020; • the recipient has received what I believe both parties regard as “full AISH benefits” since at least March 2020; • the payor’s first employment in 2020 (late April to late September) was paid a relatively modest amount ($3,293 gross monthly), compared to his since-October-2020 employment (approximately $17,520 gross monthly); • the suspension order did not explicitly require the payor to update the recipient of employment changes (though that may have been implicit); • the suspension was granted “pending Special Chambers”, with that application “to be heard as soon as possible”; • the suspension order was granted shortly before the onset of the Covid-19 pandemic, which initially resulted in restricted court hearings and resulting difficulties in scheduling certain matters; and • the recipient did not argue that the payor’s application could, or should, have been heard any earlier than it was (on February 5, 2021). [ 126 ] In these circumstances, I do not find it appropriate to require retroactive support back to March 1, 2020 or for any portion of the suspension period. [ 127 ] In other words, the above-explained lifting of the stay will only have forward effect i.e. from March 1, 2021. 4.

Should the divorce be severed from the corollary relief? [ 128 ] The payor’s last request is for severance. He observes that: ... the parties have been separated for over 3 years. There are no children of the marriage. There is no property to be divided. [ 129 ] The recipient replied that: ... [I am] worried that if he gets his divorce, he will not feel he is accountable ... [I] want to get legal representation [she was self- represented at the application] so I [can be satisfied that] [the payor] is held accountable. [ 130 ] In Hicks v Gazley [61] , I reviewed various pro- and against-severance factors.

In the present case, as far as I can tell, no issues remain outstanding between these parties.

As for the recipient’s concern about “accountability”, both the ongoing and arrears spousal support will continue to be enforceable by the Maintenance Enforcement Program. [ 131 ] I do not see any particular incremental accountability if severance is withheld. [ 132 ] For greater certainty on accountability, I confirm that the order of Burrows J. granted August 22, 2018 will continue in full force and effect, subject only to no support being payable (as directed above) for March 1, 2020 to February 28, 2021. [ 133 ] The payor has satisfied me that severance is warranted here. D.

Conclusion [ 134 ] For the reasons provided, I decline to terminate ongoing spousal support or to reduce the payments required under the August 2018 consent order. I also decline to cancel the existing spousal-support arrears. Finally, I decline to expand the arrears by requiring support to be paid for March 1, 2020 to February 21, 2021. [ 135 ] I would ask the applicant-payor’s counsel to prepare the order, with Rule 9.4(2)(

c) engaged. [ 136 ] In light of the divided success here, each party shall bear

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