Piasecki v. Piasecki, 2012 NSSC 337

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Piasecki v. Piasecki, 2012 NSSC 337 Date: 20121019 Docket: 1201-064095 SFHD067497 Registry: Halifax Between: Jacek Piasecki Petitioner/Applicant v. Krystyna Piasecki Respondent Judge: The Honourable Justice Moira C.

Legere Sers Heard: September 7, 2012 in Halifax, Nova Scotia Counsel: Jacek Piasecki, Self-Represented Colin Campbell, Counsel for Krystyna Piasecki By the Court: [ 1 ] The applicant Jacek Piasecki applied on April 27, 2012 for a retroactive variation of the child and spousal support Corollary Relief Judgement dated September 15, 2011. [ 2 ] This matter was before me earlier by way of a divorce petition resulting in a hearing on March 28, 29, and 30, 2011. A written decision dated April 14, 2011 followed.

[ 3 ] When this matter came before me on September 5, 2012, counsel for the respondent advised me that there were essentially three matters before the Court at that time: (1) the sale of the home: the Court is maintaining a watching brief on the sale; (2) the application of the applicant to vary the child support and spousal support; and (3) the contempt application of the respondent herein which shall be dealt with in a separate decision. [ 4 ] Specifically, the applicant seeks to vary and lower the child support order and terminate spousal support payable to the respondent Krystyna Piasecki. [ 5 ] In February 2012 the applicant ceased paying spousal support entirely and reduced his monthly child support from the required $592 to $571.

The latter change appeared to be unintentional. [ 6 ] The applicant acknowledges the reduction of child support from $592 to $571 was an oversight on his part. He recognizes he is obliged to pay the difference. [ 7 ] However, he maintains that he is unable to pay spousal support in the amount ordered. [ 8 ] His wages have been garnished and as a result he is suffering further from a lack of funds to support his daily needs. [ 9 ] In 2009 the applicant's income for the purpose of child support was $64,974.

In 2010 his income was $68,259.50. [ 10 ] His 2011 T4 income of $69,528 shows a slight increase since the date of the Corollary Relief Judgment. [ 11 ] The child support award as contained in paragraph 25 of the decision resulted in an ongoing child support award of $592 per month commencing May 1, 2011 and continuing thereafter each and every month. [ 12 ] In addition a $1,000 per month spousal support award was ordered up to the date of the sale of the matrimonial home and $1,200 per month thereafter, commencing the month after the sale of the home. [ 13 ] Paragraph 29 of the decision required that the home be immediately listed for sale. [ 14 ] Upon the sale of the home, the applicant was to pay retroactive child support of $3,492 representing an underpayment in child support for the period of July 2009 to April 2011. [ 15 ] In addition, the applicant was ordered to pay an equalization payment as a result of the division of assets and debts in the amount of $18,493 upon the sale of the home.

Basis for Variation [ 16 ] The applicant supports his claim for a variation based on his current financial circumstances and principally based on the fact that the home has not sold and he has not received his share of the proceeds. As a result he is cash-strapped pending sale.

[ 17 ] The applicant argues that the award is onerous and that the respondent has not made diligent efforts to supplement her income. [ 18 ] Finally, he submits that his health has deteriorated significantly and that he will be released from the military shortly. [ 19 ] He claims that he has the child with him close to 40% of the time. Health Issues [ 20 ] In the decision, the applicant's health difficulties were identified in paragraph 130. [ 21 ] At that time the Court had no medical evidence to suggest that either party was unable to work (paragraph 129).

Paragraph 130 identified the following: The petitioner has indicated that he is suffering health difficulties as a result of the stress of the separation. He is currently being treated for insomnia, depression, nosebleeds, eczema and a heart condition. He is on multiple medications and was treated in April 29, 2010 for stroke symptoms at the Dartmouth Hospital. He is listed in a temporary medical category with the military in order that he can have time off to get to his medical appointments.

He believes this will prevent advancement in his rank and prevent his deployment. [ 22 ] The evidence I have with respect to the applicant's health difficulties at this time is as follows (paragraph 13, Affidavit filed April 27, 2012): I am suffering health difficulties back pain and as a result of this situation: depression (3 years on depression pills), insomnia, eczema, heart condition, nose bleeding for which I am currently treated.

I am on medical "T" category. [ 23 ] From the affidavit of the applicant filed for this hearing August 29, 2012, paragraph 5: My health has declined to the level that I cannot continue working with the military and I will be discharged. I am waiting for an official letter from medical doctor explaining the circumstances. Expect to have the letter before the court date. [ 24 ] Attached to this affidavit marked as Exhibit "C" is a letter from the psychologist treating the applicant.

This letter acknowledges that the applicant has been working with a psychologist since 2009. [ 25 ] The applicant was diagnosed by a psychiatrist with an Adjustment Disorder with depressed mood subsequent to the breakdown of his marriage.

He is being treated with a combination of counselling and medication. [ 26 ] He was reassessed in 2010 by the psychiatrist and his diagnosis was varied to Chronic Adjustment Disorder with mixed emotional features including anxiety and dysphoric mood. [ 27 ] This was further supported in a reassessment in 2011. [ 28 ] A subsequent report by another psychiatrist confirmed that the applicant continues to suffer from Chronic Adjustment Disorder and has begun psychotherapy to increase his ability to cope with his situational stressors.

[ 29 ] In his final affidavit filed September 5, 2012, the applicant supports his application with a letter from his military medical doctor about his health and his future with the military. [ 30 ] His treating physician confirms in this letter dated August 30, 2012 that a complete reassessment of the applicant, his medical history, physical examination and military periodic health assessment with the intent of determining his permanent employment limitations is in process. [ 31 ] This is being reviewed by the base surgeon in Halifax and will be sent to the Directorate of Medical Policy (DMedPol) in Ottawa to be awarded final Medical Employment Limitations (MELs). [ 32 ] The matter will then be set for administrative review in Ottawa and the applicant's future with the Canadian Forces will be determined. [ 33 ] The doctor identified in this letter the multiple health concerns regarding the applicant. [ 34 ] The doctor indicates in his final paragraph as follows: Based on my extensive experience (30 years working for Canadian Forces Health Services as a physician) it is a virtual certainty that the MELs DmedPol awards will result an administrative decision to release Cpl Piasecki from the CF due to his being no longer being advantageously employable.

This release will most likely take place sometime in the next several months. [ 35 ] From the affidavit of the applicant filed August 29, 2012, paragraph 15: ... I am suffering medically, financially and will be released from the military. [ 36 ] This evidence supports the probability of a future release from the military which, if true, will no doubt inevitably result in a significant reduction of the child and spousal support awards.

As such, it does not justify an immediate reduction to address the possible release. [ 37 ] However, it is evidence of a serious deterioration in his health and does support the most serious medical issues that have resulted from marital disharmony, the significant and unrelenting impact this has had on his job performance and the continuation of the marital conflict even after the divorce due in some large part to the fact that the home has not sold and the applicant is without means to effectively reestablish himself.

Matrimonial Home [ 38 ] These parties were married on December 25, 1982 in Poland and separated on November 14, 2008. This is a 26-year marriage; only one child remains dependent. [ 39 ] In the divorce, the respondent asked for an unequal division of property. She requested a deferral on the sale of the matrimonial home until the youngest child graduated from high school .

[ 40 ] The respondent has lived in the matrimonial home rent-free since November 2008, the date of separation. [ 41 ] I also noted in my decision that the respondent lived in the home with almost all of the parties' furnishings retained by her and had few other expenses.

Both parties lived frugally. [ 42 ] I declined to order a deferral of the sale of the home. [ 43 ] In the Corollary Relief Judgment dated September 15, 2011 I ordered the immediate sale of the matrimonial home. [ 44 ] Since that time the parties have returned to court due to the respondent's failure to fully cooperate with the listing and sale of the matrimonial home. [ 45 ] The Court has had this issue before it to resolve the issues surrounding sale and to ensure that every effort is made to effect the appropriate sale of this home. [ 46 ] This would allow the parties to realize their equity and to divide whatever balance remains from the sale of this home. [ 47 ] In the meantime, since 2008 the respondent has lived rent-free in this home.

This is a significant benefit to the respondent at the expense of the applicant. It in effect achieves what she could not achieve in the Divorce Petition. It effectively results in an unequal division of property. [ 48 ] A year has gone by since the Corollary Relief Judgment ordering sale. The Court was subsequently advised that home had sold with a closing date subsequent to this decision. This delay has caused hardship, specifically to the applicant. [ 49 ] The applicant has borrowed to pay his legal bills and to purchase a car. This purchase was reasonable.

His line of credit requires a payment of $360 per month and his car payment $290 per month. [ 50 ] He would have been in a position to pay down his debt and reduce his car loan if he had his share of the proceeds from the sale of the matrimonial home. [ 51 ] Because the house has not sold, the applicant advises he is unable to pay his debts and he has no money for himself. [ 52 ] The applicant indicated in his representations to the Court that he wished to have all affidavits flowing from the matrimonial proceeding used in support of his application for variation. [ 53 ] The respondent's counsel has reminded me that his client's affidavits filed in response to, for example the applicant's application dated February 2, 2012, with respect to the failure to keep the home on the market for sale, do not form part of the record on this application to vary.

[ 54 ] Therefore, in addressing the issue of the respondent's failure to act diligently with respect to the sale, I am referring to the applicant's affidavit. [ 55 ] In the applicant's affidavit, he outlines the difficulties he has experienced selling a home in which he does not reside.

These difficulties include agreeing on a realtor, having the respondent fail to respond or respond in less than a timely fashion to the real estate agent's requests; making the home available for open houses, and reducing the price in accordance with the recommendations of the realtor. [ 56 ] The respondent was not historically committed to doing what is necessary to effect a speedy sale. [ 57 ] Attached to the applicant's affidavit is an exhibit marked "A" which outlines the realtor's concerns regarding the sale of the home. [ 58 ] On the totality of the evidence before me, the respondent's early failure to diligently cooperate in the sale of the home has resulted in a significant delay that was not anticipated at the time of the original Corollary Relief Judgment. [ 59 ] This delay has had significantly adverse effects on the applicant's ability to sustain himself day to day.

It has also exacerbated his own finances and his stress and affected his ability to adjust to the significant changes in his professional and personal life. [ 60 ] While the matter was before the court on this occasion, the home was listed for sale; the parties had agreed to a reduced price (reduced from that which was accepted at the divorce hearing); efforts had been made to address the deficiencies noted by the realtor and the matter continued to be monitored at the request of the applicant. [ 61 ] The applicant's inability to access this cash flow to sustain himself is creating significant financial and emotional hardship, not experienced to the same degree by the respondent.

The Respondent's Attempt to Find Employment [ 62 ] In the Corollary Relief Judgment, at paragraph 17, I noted that this was a traditional marriage in which the respondent principally stayed home, providing only supplemental income, while the parties lived in Ottawa.

The applicant was the principal financial provider. [ 63 ] Again, at paragraph 127 I advised and continue to state that this is not a case in which entitlement is an issue; the applicant is 51 years of age and the respondent is 54. [ 64 ] At that time there was a question as to the respondent's "lack of effort looking for a job and moving toward whatever self- sufficiency was attainable at that stage in her life." [ 65 ] I confirmed that I had no medical evidence to suggest that either party was unable to work. [ 66 ] The respondent was educated as a textile worker, sold food, souvenirs and products, was a talented cook and was good at all things domestic (paragraph 131). [ 67 ] She was not formally employed for 20 years although she occasionally had part-time jobs.

[ 68 ] While in Ottawa she had a home-based business preparing and delivering Polish food to Polish delis and private customers. She also worked as a nanny and cleaned houses. [ 69 ] In 1982 she managed a department store's fruit and flower section. She worked from September 1996 to June 1997 as a nanny, providing meals and cleaning. Between May 11, 1998 and July of 1999 she worked as a nanny and she worked from November 1, 1998 to February 2000.

She worked for a parish office in 1999 to 2000 and during the year 2000 she acted as a part-time caregiver for two people. [ 70 ] Not all of her income has been declared. [ 71 ] The respondent advises that she is able to understand English well enough to get by but not fluently or perfectly (paragraph 136). [ 72 ] It was clear then and it is clear now that the respondent thinks her inability to speak English absolutely prohibits her from obtaining employment (paragraph 141). [ 73 ] In paragraph 142 of my decision, I noted there was no indication in the evidence that the respondent has any intention of looking for work.

I had no information as to any efforts she made at that time to become employed or to look at educational opportunities to improve her employability. [ 74 ] As noted in paragraph 143 of the written decision: I have no evidence to support that the respondent is interested in retraining or has looked for jobs in the areas of her expertise in child care, cooking and cleaning. [ 75 ] The respondent registered with a job search agency in Halifax in 2011 and in 2012 registered in Lower Sackville. [ 76 ] The respondent attended the Immigrant Settlement and Integration Services and in February of 2012 took a one-day course entitled "Resume Workshop." [ 77 ] In May 2012 she completed a St.

John's Ambulance Course in food safety training program, level 1 and in June of 2012 she started a 12-week course "English for Working and Living." She had 8 weeks left and will complete it when it is reoffered. [ 78 ] She advises that her search for work is complicated by her lack of experience, age, language and health. [ 79 ] She offers that she has carpal tunnel syndrome, degenerative disc disease and hearing loss. [ 80 ] While some efforts have been made to place herself in a position of being employed, the respondent has been in Canada for 20 years and has only just registered for an English program to improve her ability to speak English in order to become employable.

[ 81 ] The respondent's health difficulties do not appear to be as significant as the applicant's.

Nor do I have evidence that she is unable to work. [ 82 ] Considering that the parties separated in November 2008, that the respondent has been in Canada for 20 years and that the courses to enhance her employability by learning English only started in June of 2012, it would be safe to conclude that the respondent is not in fact making diligent efforts to find work of any sort to supplement her income in any significant way. [ 83 ] It would also be a fair conclusion on the totality of the evidence to suggest that in this traditional marriage where the respondent has been out of the workplace for 20 years, the probability of her finding employment that will place her in a position of self sufficiency is minimal. [ 84 ] However, I have no evidence that would justify a conclusion that she cannot supplement her income and therefore her standard of living. [ 85 ] She speaks of her entitlement by court order.

She is obviously entitled to spousal support; however, this entitlement is precariously dependent on the applicant's employment stability and that is currently threatened not only by his current medical issues but significantly by the stress caused by the ongoing damaging conflict and struggle to finalize the division of property. [ 86 ] The respondent does not appear to have insight into the impact her behaviour (regarding selling the home and supplementing her income) and lack of full cooperation will have on her own financial situation. [ 87 ] There are language difficulties, cultural difficulties and personal difficulties which impede her ability to find work.

Not all of these are outside of her control. [ 88 ] The impeding release of the applicant from the military is likely to have a significant and deleterious financial effect on her standard of living unless she pursues some method of supplementing her income. Time with the Child [ 89 ] The child is 11 years old. [ 90 ] Paragraphs 9 through 23 of the Corollary Relief Judgement identify the extensive parenting

schedule for the father. He has exercised his parenting

schedule and more. [ 91 ] He advises he cannot pay appropriate costs of parenting and continue with a spousal and child support award as set out in the decision of September 15, 2011. [ 92 ] The Corollary Relief Judgment provides that while the respondent is not employed (and she is not), the father shall have parenting time with the child three weekends a month from Friday at 5:00 p.m. to Sunday at 5:00 p.m. and one overnight during the week on Wednesday or such other day as the parents may agree upon. [ 93 ] The father is also entitled to statutory holidays if they fall on his weekend, equal time during Christmas, March Break and Easter and in the summer. [ 94 ] If the father were to be credited for at least six days a month plus another day to account for the three Fridays after school

(roughly one-third) and credited for extra holidays as a result of long weekends, in addition to one-half of Easter, March Break, Christmas and summer, his time with his daughter would amount to 36% to 37% which approaches 40% but is not 40%. [ 95 ] The applicant is a significant influence and parental figure in his daughter's life and there is no doubt that this ought to be recognized and encouraged to continue. [ 96 ] However, I am unable to conclude that he fits within the criteria of having a 40% time factor, which would result in a recalculation of child support. [ 97 ] That in itself does not diminish in any way the significant influence and value that he has in his daughter's life.

Child Support [ 98 ] The Court has little discretion with a child support base amount unless there is an agreement between the parties or an issue of undue hardship. [ 99 ] Therefore, the child support award in these circumstances in this case for 2012, based on the 2011 income of the applicant of $69,528, is now $588 in accordance with the tables in effect December 2011. [ 100 ] It should be noted that the date of the application is April 27, 2012 and the Agreement and Minutes of Settlement indicate that the parties shall exchange their annual income on or before May 1 st of each year in order to adjust child support. [ 101 ] This new child support award shall commence May 1, 2012.

The Applicant and Respondent's Conditions, Means and Circumstances [ 102 ] The Court does have discretion in reviewing spousal support pursuant to

section 15.2 initially and 17(3), (4.1) and (7) for variation purposes. In particular in this circumstance, the Court should: 15.2 6 (

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. Financial Circumstances

[ 103 ] While there has been a slight increase in the applicant's annual income, his financial circumstances have deteriorated because he has not had access to his share of the proceeds from the sale of the matrimonial home.

Sale of Home [ 104 ] Given the parties separated in 2008, it was certainly not anticipated at the time of the divorce that the sale of the home would take this long and that the applicant would not have access to his equity in order to reestablish himself. [ 105 ] The failure to sell the matrimonial home in a timely fashion in the height of the market season is largely but not totally due to the respondent's reluctance to address the preparation and sale in a timely fashion.

To ignore this would be unjust. [ 106 ] In addition, while it was reasonable to conclude at the time of the divorce that the marital discord might have an effect on the applicant's medical circumstances and, as a consequence his career potential, it was not anticipated that he would likely lose his employment. I am aware as I say this that while he has not yet been released, the writing is on the wall.

Loans [ 107 ] Loans taken out by the applicant were done so subsequently to the divorce. [ 108 ] The loan for his legal fees does not take priority over his child support but it does affect his ability to contribute to spousal support. [ 109 ] The car loan in these circumstances is reasonable. The principal income earner needs to be provided transportation in order to access his work site and to sustain his ability to address his medical difficulties. This loan to purchase a car is certainly not unreasonable nor is his payment of $290 per month.

The Applicant's Pay Deductions: Compulsory and Non Compulsory [ 110 ] I have reviewed the applicant's pay statements. There are significant mandatory deductions including a shelter deduction of $720.37. (This will no longer be available to him in the event he is released from the Forces). [ 111 ] The applicant was unable to explain the deduction for "PLD Acquittance Roll." [ 112 ] The applicant is working with an income of $69,528.

I have used his income tax figures to determine his compulsory deductions (which include CPP, EI and tax) at $11,857.35 as of last year, together with the child support and spousal support award of $19,104 per year to conclude that after all his compulsory deductions and his child and spousal support awards are paid, he is left with $29,195.37 annually. This results in a monthly income of $2,432.94. [ 113 ] I recognize that these figures are approximate but they are based on the most reliable figures available to the Court.

[ 114 ] They are some compulsory deductions that would not normally be classified as compulsory deductions for the purposes of determining net disposable income. Specifically, I refer to the PLD Acquittance Roll which is a mandatory deduction by the Forces each pay period. This deduction appears to be outside of the applicant's control. It appears to be an adjustment to the taxable allowance and somewhat of a clawback. [ 115 ] I have reviewed the applicant's Statement of Income and Expenses. The only outstanding loans are his line of credit to pay his lawyer ($360 per month) and his vehicle ($290 per month).

Even with a significant adjustment on his food budget and child access costs, the applicant is working on a deficit. [ 116 ] His legal fees do not come before child support. I may consider his indebtedness and his circumstances after the marriage breakdown to consider his ability, means and circumstances in relation to spousal support and payment of arrears arising subsequent to the Corollary Relief Judgement at a future date. [ 117 ] The applicant has not been able to establish a new residence, continues to live on base (which may end shortly) and has not benefited from a great deal of the household possessions.

Without being able to access his portion of the equity, he is without an ability to address his indebtedness. [ 118 ] I have carefully reviewed his Statement of Expenses.

His rent is more than reasonable. [ 119 ] While his heat and electricity costs may be reduced some what, he will ultimately need to pay these once he lives off base. [ 120 ] It is difficult to find expenses that can be reduced to accommodate spousal support. [ 121 ] His car is a necessity if he is to work, attend access visits and medical appointments in a timely fashion while he continues to earn income. [ 122 ] His loan payment, if unpaid, will simply exacerbate his difficulties. [ 123 ] His net disposable income is in the vicinity of $29,195.

His monthly net income after child support, spousal support, ordinary compulsory deductions (pension, CPP, medical) and deductions that are outside his control (such as the Acquittance Roll), does not cover his necessary expenses. [ 124 ] Reviewing each item of his budget, if I were to reduce his expenditures from $4,803 to $2,936, that would still leave him in a deficit in excess of $500. [ 125 ] In the first pay period in January 2012 after garnishments and deductions, over which he has little control, he received an amount of $501.41 to cover all other necessities other than his shelter charge and his utility charge. [ 126 ] In the second pay in January 2012, he received $523.40, for a total that month of $1,024.81 to cover all other costs other than his shelter charge.

This would include vehicle costs, his property insurance, his food, toiletries, an extremely minimal clothing payment of $35 per month and laundry.

[ 127 ] This would leave unpaid on a monthly basis gas to run the car, any car maintenance, insurance, parking or tolls, any children's allowances and activities, child access costs, any hair grooming and his line of credit. [ 128 ] In August 29, 2012 according to his pay stub, for the first pay in August the applicant received a net of $304.91 and for the second pay $304.91 (a total of $609.82). [ 129 ] This was after Maintenance Enforcement imposed a garnishment on his wages as a result of his failure to pay spousal support for a period of time. [ 130 ] The only personal expenses therefore that he would be able to cover with his pay would be the PMQ utility charge which is a water charge and the PMQ shelter charge which is $760 per month.

He would have no control over all other deductions. [ 131 ] This is an unreasonable state of affairs for the applicant. [ 132 ] The applicant has been attempting to reestablish himself since separation. [ 133 ] The respondent, however, has been residing in the matrimonial home mortgage free and has had the advantage of continuing to reside in it past the anticipated sale date as ordered by the Court in the Divorce Judgement dated September 15, 2011. [ 134 ] The affidavit evidence of the applicant confirms that the respondent has not pursued sale of the home diligently; that she has effectively had the benefit of the applicant's equity in the home at least since the Corollary Relief Judgment and has had the benefit of the only major asset other than the pension here since the date of the separation in 2008. [ 135 ] The applicant's affidavit evidence in this proceeding and in proceedings relating to the sale of the house, all of which the applicant has submitted and referred to in this proceeding, confirms the real estate agent's concern about the condition of the home, the lack of availability of the respondent to the agent and the difficulty in scheduling open houses. [ 136 ] This has had a significant financial impact on the applicant and has seriously exacerbated his anxiety, stress and depression since the separation and divorce. [ 137 ] To be blunt, it is inequitable and unfair that the applicant should be unable to access his equity in the home to pay off his indebtedness to the respondent, pay his line of credit as well as his car loan and have sufficient funds to reestablish himself in an appropriate manner. [ 138 ] The respondent's failure to pursue the sale of the home with due diligence and to be fully cooperative with the sale results in a delay which facilitates her original request in the divorce proceedings for a delay until the youngest child finished her schooling. [ 139 ] There are consequences that flow from this failure to be fully cooperative and to pursue the sale with due diligence and those consequences will be borne by both parties to this proceeding.

The Respondent's Income

[ 140 ] The respondent is in receipt of child tax credit and the benefits accruing as a result of having the child primarily in her care. [ 141 ] She has the significant benefit of living rent-free since 2008. [ 142 ] The respondent does pay the property tax of $150 per month and the property fire insurance is $55 per month. While the applicant is claiming $35 per month for a clothing allowance to keep him in suitable apparel to work, her clothing allowance is listed as $125.

That may include clothing for herself and her child. [ 143 ] The respondent's budget is not unreasonable and her total monthly charges amount to $1,899. [ 144 ] What is not visible in those expenses is a rental payment, which could legitimately bring her very close to his monthly expenses. [ 145 ] Her Statement of Income only reflects the amount of money she receives by way of spousal support and not the $7,104 she is entitled to receive by way of child support. [ 146 ] Her Statement of Income also does not incorporate her Canadian Child Tax Credit ("CCTB") and her GST credit. [ 147 ] The respondent was very vague in recalling what her GST and CCTB credits were.

She did confirm she received the Nova Scotia Affordable Living Tax Credit quarterly. [ 148 ] The applicant provided his estimate of those credits based on online calculations. I recognize they are estimates only. If one tallies the $12,000 the respondent receives in spousal support, the $7,104 tax free she receives in child support, an annual amount no less than $4,206 for CCTB and $972 for GST, her annual income to support herself and her child in the matrimonial home rent-free is $24,282.84. In addition she advises her son provides further monetary assistance to her.

That evidence was not corroborated. [ 149 ] The advantage of having a mortgage-free home is a monetary benefit to the respondent reflecting on her condition and circumstances. [ 150 ] While I now know the sale of the home took place subsequent to the hearing, there can be no doubt that the delay and the lack of active and diligent participation in the sale is a major factor in the current financial and emotional stress which is debilitating the applicant. [ 151 ] The Court is very much aware of the level of frustration experienced by both the applicant and the respondent.

What was a dysfunctional relationship has become significantly more complicated by hostility between the two. [ 152 ] The respondent does not appear to have any insight into the difficulties experienced by the applicant and has not exhibited a clear grasp of the financial crises except as it relates to herself. Her failure to fully participate urgently in the sale of the home and his financial crises will exacerbate her own financial circumstances. [ 153 ] The applicant struggles with the concept that he will likely be paying spousal support for life or at least until retirement given

the long-term nature of this relationship and the traditional roles that this couple have played in the last 28 years. [ 154 ] Separation has taken place in 2008 and the parties continue to be financially connected.

The sale of the home and the release of the equity will at least put these individuals in a position where they can recommence their lives separately. [ 155 ] In conclusion, the change of circumstances that exist in this case results out of what was contemplated in the divorce; that is, the sale of the home, the worsening state of the applicant ’ s health and the lack of cash flow available to the applicant. [ 156 ] There is a marginal increase in the applicant's income but there is a significant financial burden on him resulting from the delay in the sale and his inability to obtain his equity to pay off his indebtedness, to pay his equalization and to reestablish himself without the financial and emotional stress created by the ongoing conflict between the two. [ 157 ] This is not only debilitating, this is a stress that has become very risky to his health. [ 158 ] The child support will be adjusted to reflect his current income at $588 per month, commencing May 1, 2012. [ 159 ] There will be a suspension on collection of arrears arising since the Corollary Relief Judgement. [ 160 ] I will not make a decision on forgiveness or fix the arrears until the matter has concluded, the home is sold and the proceeds are known to me and available for distribution, in order to consider the totality of circumstances since the divorce. [ 161 ] The calculations done at the time of the Corollary Relief Judgment reflected a belief in the value of the home as presented to the Court.

That value has now been reduced. That is also a factor to be considered. [ 162 ] This is a long-term traditional marriage.

Based on the circumstances before me, it is highly likely that the applicant will continue to pay spousal support indefinitely. [ 163 ] While it is probable that the respondent will not be able to be totally self-sufficient, with due diligence she ought to be able to supplement her income in some way according to her traditional skills and abilities. [ 164 ] She has not diligently pursued supplementary income and ought to do so in the future. [ 165 ] For the remaining months during which the applicant continues to be employed, I will suspend any enforcement or garnishment of any arrears that have accumulated from February 2012 forward. [ 166 ] Until I have the final figures on the proceeds of sale, I decline to reduce the spousal support leaving that decision to determine once I have the final evidence on the arrears since the Corollary Relief Judgement and the state of affairs after the sale and disbursement of funds. [ 167 ] I order the applicant to continue to pay $1,000.00 per month pending further court order, resulting in a variation of the anticipated increase in spousal support pending further hearing.

The Court needs further evidence to assess the consequences to the parties' financial circumstances subsequent to this sale. [ 168 ] If there is a significant change in the applicant's income as a result of a forced retirement that obviously will justify an

immediate application to vary. [ 169 ] The parties should immediately address the adjustment in child support and spousal support as a result of any future release of the applicant from the Canadian Forces to reflect his then current income. [ 170 ] It would be appropriate to have an immediate hearing on a reduction in the applicant's pay as a result of any release from the military so as to not further aggravate his financial circumstances. [ 171 ] Immediately upon being advised of his release from the Canadian Forces, the applicant shall provide written notification to the respondent advising of his anticipated income from the release date forward.

The parties shall make every effort to arrive at an appropriate child support award reflecting his then current income. [ 172 ] Counsel for the respondent shall draft the order. Legere Sers, J.