Clyde Drake Applicant And: Susanne Drake Respondent, 2020 NLSC 38

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Drake v. Drake , 2020 NLSC 38 Date : March 04, 2020 Docket : 200606T0123 Between: Clyde Drake Applicant And: Susanne Drake Respondent Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: February 26, 2020

Summary: Clyde Drake applied to vary a spousal support order which this Court made on May 10, 2007 requiring him to pay Susanne Drake $376 a month. Mr. Drake claims that there had been a material change in circumstances since the last order that not only warranted reviewing it but also justified eliminating the obligation altogether. Ms. Drake opposed the application. The Court agreed with Mr. Drake, both that there had been a material change in circumstances and also that he could no longer afford to pay spousal support. It set aside the spousal support order, without costs. Appearances: Jennifer A. McCarthy Appearing on behalf of the Applicant

Marcus A. Evans, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Benson v. Benson (1987), (NL CA), 63 Nfld. & P.E.I.R. 35, 8 R.F.L. (3d) 43(Nfld. S.C. (C.A.)); Winsor v. Winsor, 2002 NFCA 41; Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, 1994CarswellSask 48 STATUTES CONSIDERED: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] Clyde Drake and Susanne Drake married on June 30, 1973 and divorced on May 10, 2007. On their divorce, I ordered Mr. Drake to pay Ms.

Drake $376 a month for spousal support, on the 15th day of each month, starting on May 15, 2007. Mr. Drake appliedby Originating Application on October 16, 2018 to vary the spousal support order. [2] Mr. Drake paid the support I ordered on May 10, 2007, until August 23, 2019 when this Court granted him an interim order,suspending payments pending the outcome of his Originating Application. Mr. Drake wants me to vary the order by eliminating it. Ms.Drake disagrees: She wants me to continue the order, claiming although it is a modest amount, that the money she receives from Mr.Drake is critical to her livelihood.

I heard Mr. Drake’s Originating Application on February 26, 2020 and reserved my judgment untilnow. The Issue [3] Should Mr. Drake continue to pay spousal support of $376 a month, or some other amount, to Ms. Drake or should the spousalsupport he pays to Ms. Drake be ended? The Law [4] The Court may hear an application to vary a spousal support order whenever there is a change in circumstances. Section17(1)(

a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “Act”) provides that the application may be made by either or both formerspouses, and if there is a change in circumstances the Court may make an order varying, rescinding or suspending a spousal supportorder, prospectively or retroactively. [5] Section 17(4.1) of the Act says that it is mandatory for the Court considering a variation application: 17(4.1)...to satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred sincethe making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, thecourt shall take that change into consideration. [6] Conduct that could not have been considered when the original order was made cannot be considered on a variationapplication (section 17(6)). [7] An order varying a spousal support order should: (

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

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time: s. 17(7). Case Law [8] In Benson v. Benson (1987), (NL CA), 63 Nfld. & P.E.I.R. 35, 8 R.F.L. (3d) 43 (Nfld. S.C. (C.A.)), ourCourt of Appeal described an application to vary spousal support as a "two-stage affair". At the "first stage" the trial judge asks"...whether or not there has been a change of circumstances that would warrant a variation" (Benson, paragraph 14). If the judge decides

"...there has been no change of circumstances or that there has been a change of circumstances but of insufficient dimension to warrant areview he or she will deny the application" (Benson, paragraph 14). At the "...second stage the trial judge must determine the quantum orthe extent to which there should be a variation" but the "...second stage occurs only if the application is not denied" (Benson, paragraph15). [9] In Winsor v.

Winsor, 2002 NFCA 41, Steele, J.A. stated that an appellate court reviewing a decision from an applicationto vary spousal support had to ask the “critical question” of: 33. … whether there was sufficient evidence of a material change in circumstances to accommodate and discharge the threshold test of s.17(4) of the Divorce Act. [10] Then Steele, J.A. reframed the question to state what I must decide in this case: 33.

Did the applications judge first satisfy himself that there had been a material change in the condition, means, needs, orcircumstances of either spouse, a change that if known at the time would likely have resulted in different terms? [11] Section 17(4.1) of the Act requires a Court to “...satisfy itself that a change in the condition, means, needs or othercircumstances of either former spouse has occurred since the making of the spousal support order...” beforeit varies a spousal support order.

The Act does not state that the change must be a “material” one, but courts routinely use the adjective todescribe the change that section 17(4.1) contemplates. [12] In Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, 1994 CarswellSask 48 the Supreme Court of Canada statedthese parameters for a “material change”: 22. … This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that ifthe matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. … [13] This is the law I will apply to Mr. Drake's application. I turn now to analyze the issue I stated earlier in these reasons, startingwith the background to it. Analysis Background [14] Mr. Drake was born May 23, 1953 and is 66 years old now; and he will have another birthday shortly. He lives in Epworth, NLand has a common-law partner. Mr. Drake worked as a miner before 1990 when he was diagnosed with cancer and stopped work.

Hebegan receiving CPP disability benefits of $19,400 annually in 1990 and they continued until May 23, 2018 when he turned 65 years old.At that juncture, Mr. Drake’s CPP income dropped to $717.50 a month and he began receiving $585.50 a month as the Old Age Pension.Mr. Drake’s monthly income is $1,303.00 a month, or $15,636 a year. [15] On May 10, 2007, I ordered Mr. Drake to pay spousal support of $376 a month, which he did until this Court suspended the2007 order, pending the outcome of this Originating Application. I also ordered Mr. Drake to pay $159 a month to Ms. Drake for a childof their marriage.

The child, a son, who was born December 21, 1991 is 28 years old now and lives independently of his parents. [16] Mr. Drake says that he applied twice to the Government of Canada for the guaranteed income supplement since he beganreceiving the OAS but was refused both times. Aside from the spousal support Mr. Drake pays to Ms. Drake, he also supports a 17-yearold son from another relationship, to whom he pays $175[1] a month. It does not appear that Mr.

Drake’s income will change in theforeseeable future both because of his age and his poor health: He notes that he experienced a recurrence in 2008 of the cancer thatdisabled him in 1990 and more recently, in 2018, he required open heart surgery to repair damage to his heart. [17] Ms. Drake was born January 18, 1951 and is 69 years old. She lives in Port Hope, ON and is retired. Most recently, Ms. Drakeworked as a night-shift employee with Tim Horton’s, which she did for five years. Ms. Drake lives alone but has a son who lives in thePort Hope area. Unlike, Mr. Drake who supports a minor son, Ms.

Drake has no dependants. [18] Ms. Drake has three sources of income. These are the monthly amounts she receives: $607 from Old Age Security; $279 fromCPP; and $853 as the guaranteed income supplement. The monthly total is $1,739, which extrapolates to $20,868 annually. She alsoreceived $376 a month spousal support from Mr. Drake until this Court halted the payments by the interim order, I referred to earlier inthese reasons. The spousal support added another $4,512 to Ms. Drake’s annual income, giving her a total of $25,380. Ms.

Drake saysshe relies on the spousal support to meet her needs and she wants the support to continue. [19] This is the background to Mr. Drake’s application. I turn now discuss the issues that arise from it, starting with the thresholdquestion of whether the parties’ circumstances have changed materially since I made the order in 2007. Discussion Material Change in Circumstances [20] In Willick, the Supreme Court of Canada said that a “material change in circumstances” is “…a change, such that, if known atthe time, would likely have resulted in different terms”. In the Originating Application Mr.

Drake filed to vary the spousal support hepays to Ms. Drake, by eliminating it, he says, “[t]he only income I receive now is Canada Pension and Old Age Security with a totalincome of $15,685.08”. He offered a confirmation of the benefit amounts he received in a document from Service Canada. It shows hismonthly CPP benefit as $717.50 and his monthly OAS benefit as $589.59, for a total monthly benefit of $1,307.09, or the amount of$15,685.08 that he stated in his Originating Application; and he says he pays $175 a month in child support to the mother of their 17-yearold son.

[ 21 ] Mr. Drake states in his application that his annual income was $19,400 when I made the original order in 2007 and he cites his deteriorating health to support his contention that he is unable to work to supplement his income. He denies Ms. Drake’s claim that he works “for cash” and does not declare the income. Mr. Drake also notes that he applied twice in the last two years for an income supplement from Service Canada but was rejected in both instances.

He says that the government agency lumps his income in with his current common-law partner with the result that he does not qualify for the supplement. [ 22 ] I noted earlier that Mr. Drake’s spousal support was suspended in August 2019 after this Court heard an Interim Application, pending the Originating Application that I heard on February 26, 2020. In his Interim Application, Mr. Drake noted that “I have paid spousal support for 12 years now for a total of $54,144.00 and this should satisfy the compensatory aspect of a spousal support award”.

He also notes, “…for non-compensatory considerations, the Respondent [Ms. Drake] reports that she currently has a higher income than I do at $19,345.20 annually without accounting for spousal support”. He says further that “[a]dding spousal support to her reported income puts her income at $23,587.20, nearly double my income after [child] support is accounted for”. [ 23 ] In the response Ms. Drake filed to Mr. Drake’s Interim Application, Ms. Drake notes that she lives a marginal existence, dictated by her limited finances: “I live my life and have been for the last 12 years according to my means.

If something unexpected comes my way I am forced to take the money needed from somewhere else, (eg), when I had a car my insurance and gas was taken from my food money”. [ 24 ] Ms. Drake reflected on Mr. Drake’s claim that he also has to pay child support: “I understand he has to pay child support (which is not mine) but was conceived while we were married should have no bearing on my spousal support…”. In 2018, Ms. Drake reported income of $19,124, comprised of $7,121 in OAS, $3,275 in CPP and $8,728 in supplements.

She had income from employment of $18,755 in 2017, $26,817 in 2016 and $29,901 in 2015. [ 25 ] I am satisfied that Mr. Drake has met the burden of showing that a material change in circumstances have occurred since I made the current spousal support order in 2007, such that, as stated in Willick , “if known at the time, it would likely have resulted in different terms”. These are the factors I take into account in making that finding: • Mr.

Drake’s deteriorating health, reflected in a recurrence in 2008 of the cancer that first presented itself and disabled him in 1990; coupled with a serious heart condition that occurred in 2018, requiring him to have open heart surgery; • Mr. Drake is deaf: He did not claim this as a disabling factor, but he wore a telephonic headset in court so he could hear the proceedings and this limitation must affect his ability to supplement his income, even if he was able to work; • Mr.

Drake’s limited income: His only means of support now are the OAS ($589.59 a month) and CPP ($717.50 a month) which total $15,685.08 annually. While neither Mr. Drake nor Ms. Drake can live anything but frugal and marginal lives on their incomes, his margins are quite tighter than Ms. Drake’s. Her income (without spousal support) exceeds his by $3,660.12 ($19,345.20-$15,685.08), or $305.01 a month, somewhat less than the $376 a month he now pays in spousal support.

To require him to continue to pay the spousal support would increase her income to $23,857.20 annually ($19,345.20 + $4,512) but reduce his to a penurial $11,173.08 annually ($15,685.08 - $4,512). The effect would be that Ms. Drake’s income with spousal support would be more than 200% of Mr. Drake’s ($23,857.20/$11,173.08 = 211%), which would be unconscionable. • Mr. Drake does not qualify for a supplement to his income. I note, for example, that the annual supplement of $8,728 that Ms. Drake receives is a little more than 45% ($8,728/$19,345.20) of her total income. If the supplement was available to Mr.

Drake his income would increase considerably and exceed Ms. Drake’s income by a clear margin. • Mr. Drake has another legal obligation for support, a 17-year old son from another relationship. I agree with Ms. Drake that the child is Mr. Drake’s responsibility and not hers, but I cannot ignore the inequities here: If Mr.

Drake was to pay her annual spousal support of $4,512 and annual child support of $2,100 ($175 x 12), his income with be further reduced from the penurial amount of $11,173.08 that I noted earlier to $9,073.08 ($11,173.08 - $2,100), or 58% ($9,073.08/$15,685.08) of an already modest amount. [ 26 ] I recognize that neither Mr. Drake nor Ms. Drake live fanciful lives. They are both relegated to living on social welfare benefits and these reasons, if I may employ the vernacular, are largely an exercise in dividing the “widow’s mite”. However, on balance, Mr.

Drake is the poorer of the two of them; and he is poorer by a margin which supports his claim that circumstances have changed materially since the order he wants changed was made in 2007.

Quantum of Spousal Support [ 27 ] As our Court of Appeal noted in Benson , applications for variation of spousal support engage a two stage process: The court must first decide if there has been a change of circumstances to warrant a review of the current spousal support order; and, if so, the court must determine the quantum or the extent to which the order should be varied. [ 28 ] It is self-evident from my reasons for deciding that Mr. Drake has shown a material change in circumstances that he does not have the means to pay any spousal support. Accordingly, I find that Mr.

Drake does not have to pay spousal support to Ms. Drake, and I end the order of May 10, 2007. The order that I make now takes effect from August 23, 2019, the date on which this Court granted the interim order in this matter.

Costs [ 29 ] I make no order as to costs.

Summary and Disposition [ 30 ] Clyde Drake applied to vary a spousal support order which this Court made on May 10, 2007 requiring him to pay Susanne Drake $376 a month. Mr. Drake claims that there had been a material change in circumstances since the last order that not only warranted reviewing it but also justified eliminating the obligation altogether. Ms. Drake opposed the application. [ 31 ] The Court agreed with Mr. Drake, both that there had been a material change in circumstances and also that he could no longer afford to pay spousal support. It set aside the spousal support order, without costs.

Order [ 32 ] In the result, I order that: 1. The spousal support order of May 10, 2007 is ended, effective August 23, 2019. 2. Each party will bear his/her own costs. _____________________________ Garrett A. Handrigan Justice