ERNEST WILLIAM SIMMONS Applicant And: ALVINA GRACE SIMMONS Respondent, 2019 NLSC 225

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Simmons v. Simmons , 2019 NLSC 225 Date : December 16, 2019 Docket : 201102F0312 BETWEEN: ERNEST WILLIAM SIMMONS Applicant And: ALVINA GRACE SIMMONS Respondent Before: Justice Katherine O’Brien Place of Hearing: Clarenville, Newfoundland and Labrador Date(

s) of Hearing: November 5, 7 and 13, 2019 Appearances: Ernest W. Simmons Self-Represented Vanessa M. Laite Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Simmons v. Simmons , 2014 NLTD(F) 10; L.M.P. v. L.S. , 2011 SCC 64 ; Brown v. Brown , 2013 NLTD(G) 167; Leskun v. Leskun , 2006 SCC 25 ; Fisher v. Fisher , 2008 ONCA 11 STATUES CONSIDERED: Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .)

OTHER: Spousal Support Advisory Guidelines REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [ 1 ] Mr. Simmons brought an Originating Application for Variation because he wants to have the amount of spousal support he pays Ms. Simmons reduced. Currently, he pays spousal support of $677.00 a month pursuant to an Order made after trial dated April 24, 2014 (the “Order”). [ 2 ] Mr. Simmons seeks to have the spousal support payment revisited on two grounds.

The first is based on a material change in circumstances and the second is based on the wording of the Order, which states that spousal support will be recalculated annually. [ 3 ] By way of background, Mr. Simmons and Ms. Simmons lived together for more than 30 years and were married for approximately 22 years. They have a son together and Mr. Simmons has two daughters from a previous relationship whom Ms. Simmons helped raise. Following a trial, Ms. Simmons was found to be entitled to spousal support based on her contribution to all of Mr. Simmons’ endeavors. Reasons are reported at Simmons v.

Simmons , 2014 NLTD(F) 10 (“Reasons for Judgment”). [ 4 ] I have found that Ms. Simmons remains entitled to spousal support in the amount of $761.00 a month commencing January 1, 2020. My reasons follow. ISSUES [ 5 ] I must decide the following issues: A. Has there been a material change in circumstances that entitles Mr. Simmons to a variation of spousal support? B. Should spousal support be recalculated pursuant to the terms of the Order? C. What amount of spousal support should be paid?

Has there been a material change in circumstances? [ 6 ] Variation of a spousal support order requires the applicant to demonstrate a material change in circumstances. If no material change in circumstances is established, spousal support will not be revisited. If a material change in circumstances is established, spousal support will be varied to the extent justified by the change. [ 7 ] The test for a “material change”, as confirmed by the Supreme Court of Canada in L.M.P. v.

L.S. , 2011 SCC 64 , is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order”. The test is not whether the change was or was not “foreseeable” by the parties at the time of the previous order but rather as to whether it was “contemplated” or “taken into account” in the initial order. [ 8 ] Mr. Simmons has pointed to two material changes. The first is that he is now paying more for his own medical care: $104.11 every 14 days for a diabetes monitor. The second he asked me to consider is that Ms.

Simmons has recently qualified for the Guaranteed Income Supplement (“GIS”). Mr. Simmons believes that this additional income to Ms. Simmons should relieve him of his spousal support obligation. [ 9 ] I am not satisfied that the increased medical costs is a material change that is substantial, continuing and that “if known at the time, would likely have resulted in a different Order”. [ 10 ] Firstly, I am not satisfied that if these medical costs existed at the time of the Order, that a different amount of spousal support would have been awarded. At the time of the Order, Mr.

Simmons claimed that he was disabled from work due to a debilitating condition in his knees and that he lacked the income to pay support (see: Reasons for Judgment, paragraph 91). The trial judge did not believe that Mr. Simmons could not work and, although Mr. Simmons had qualified for Canada Pension Plan (“CPP”) disability and was not working at that time, the trial judge was confident that Mr. Simmons would return to the income levels that he had historically achieved once the court proceedings had finished (see: Reasons for Judgment, paragraphs 93 and 96). The trial judge thus used Mr.

Simmons’ 2012 reported income for the purpose of the spousal support calculation (see: Reasons for Judgment, paragraph 97). [ 11 ] Also, I am not satisfied that these medical costs are “substantial” and “continuing” such that a variation is merited. In his Originating Application for Variation that initiated the present proceeding, Mr. Simmons did not identify his medical costs as his reason for seeking variation. He sought a termination of spousal support on the basis that he was 65 years old and wanted to retire. He also referenced other changes: his knee replacements, that Ms.

Simmons was now living with a common-law partner, and his own bankruptcy. During his testimony, Mr. Simmons advised of the amount that he paid for his diabetes monitor and showed the court the monitor on his arm. However, he did not present any receipts, any evidence on when payments commenced, any information as to how long the monitoring would continue, nor any evidence on what his medical expenses were at the time the Order was made.

[ 12 ] As for the second change relied upon by Mr. Simmons, Ms. Simmons learned that she had qualified for the GIS the day before the hearing of the present application commenced. She had previously been denied the GIS. Although this change had not happened when Mr. Simmons filed his Originating Application for Variation, a significant change in income for one of the parties that was not anticipated at the time of the original Order can be a material change in circumstances. Ms. Simmons qualified for the GIS because her income dropped when she retired for health reasons after the Order was made.

I am satisfied that a significant change in Ms. Simmons’ income due to her leaving the work force is a material change in circumstances, which allows the spousal support award to be revisited. [ 13 ] I will briefly address the other changes that Mr. Simmons raised in his Originating Application for Variation. [ 14 ] First, was his expressed desire to retire. Retirement of a party, or even imminent contemplated retirement, is often considered a material change in circumstances (see: Brown v. Brown , 2013 NLTD(G) 167 and Spousal Support Advisory Guidelines (“SSAG”) , page 102). Mr.

Simmons did not raise his retirement as a material change in his final submissions. During his testimony, he confirmed that he can still work and that he is still working. He testified that he has reduced his work somewhat noting that he no longer works in the fish plant and that last year he put out 50 lobster pots, not 100, because 50 is what he can handle. He also confirmed that he can still fix up houses and testified that he may build another house. I conclude that Mr.

Simmons has not retired and that plans for future retirement are not sufficiently imminent to be considered a material change in circumstances. [ 15 ] Second, Mr. Simmons raised Ms. Simmons having a new common-law partner. A recipient spouse getting a new spouse or common-law partner can also be a material change in circumstance; however, here the evidence has established that Ms. Simmons is not remarried or living common law with another person. Ms. Simmons acknowledges she is in a relationship with a man but they both keep separate houses and do not share living expenses.

She filed proof of separate power bills to corroborate her evidence on this point and I accept her testimony. [ 16 ] Finally, Mr. Simmons raised his knee problems. Mr. Simmons’ knee problems were known and contemplated at the time the Order was made. As noted above, the trial judge was confident that Mr. Simmons would overcome the disability he was experiencing with his knees, and time has proved the trial judge correct. As will be seen below, following a knee replacement, Mr. Simmons returned to a level of income similar to what he earned prior to his knees qualifying him for CPP disability.

SHOULD SPOUSAL SUPPORT BE RECALCULATED PURSUANT TO THE TERMS OF THE ORDER? [ 17 ] The relevant

section of the Order states: Ernest Simmons pay Alvina Simmons spousal support of $677.00 a month on the first day of each month, starting April 1, 2014 and continuing indefinitely, by paying it to the Support Enforcement Agency. This spousal support will be recalculated annually and is in addition to the interim support Ernest Simmons pays, which effectively ends on March 31, 2014. [ 18 ] The Order does not specify how recalculation is to occur. Although, there are regulations that address the administrative annual recalculation of child support, there is nothing similar for spousal support.

For spousal support, annual recalculation would require the court to revisit the award each year. [ 19 ] This is the first time that the Court has been asked to consider recalculation of the spousal support award. Without express direction in the Order, I look to the Reasons for Judgment to assess what factors were considered by the trial judge and then I look to how things have unfolded since the Order was made. [ 20 ] First, I note that the trial judge did not believe that Mr. Simmons was earning to his true potential.

It is helpful to recite sections of the Reasons for Judgment addressing spousal support, paragraphs 90 to 98: Spousal Support 90 Mr. Simmons opposes any claim for spousal support vehemently. He resisted Ms. Simmons' claim for support from the outset and applied in June 2012 to vary an interim order that I made for her in September 2011. I dismissed Mr. Simmons' application to vary in October 2012 when he did not appear on a scheduled date to prosecute it. I also ordered Mr. Simmons to pay Ms.

Simmons' costs of his application to vary and a further lump sum of $1,000 as additional costs because we could not go ahead with the hearing scheduled for the same time to deal with all issues. 91 Mr. Simmons claims that he is disabled from work and lacks the income to pay spousal support. He says he has a debilitating condition in both knees and requires a double knee replacement. He also notes that he met what he calls the "onerous" test for CPP disability benefits and the Plan advised him in February 2014 that he would receive $678.20 in monthly benefits, or $8,246.40 annually. Mr.

Simmons did not say directly, but he implies that because he has met the eligibility test for CPP disability benefits, I should also accept that he is disabled and find that he cannot pay spousal support because of his limited income. 92 Ms. Simmons is skeptical (to understate her opinion a little) about Mr. Simmons' claim that he cannot work because of knee problems. She points to several factors to underscore her skepticism: Mr. Simmons worked continuously after he claims he injured his legs in work-related accidents 8 to 10 years ago.

Neither Mr. Simmons nor the doctors who wrote the medical reports he relies on to support the claim that he is disabled were cross- examined on the reports. He has not had the surgery on his knees that the medical reports appear to recommend and the seasonal work he did formerly, as a snowplow operator, does not require him to stand for prolonged periods or to climb stairs. He fishes every year, including for at least 6 weeks in 2013. He admits to doing other physically demanding work in recent years: In the summer of 2011 he worked on his cabin. In 2012 he built a shed to store his vehicles.

In September 2013 he took the roof off a house. Mr. Simmons has not provided any probative medical proof that he cannot work because of his physical limitations. 93 I understand Ms. Simmons' skepticism about Mr. Simmons' claim that he cannot work. I am more than skeptical about Mr. Simmons' claim, however; I simply do not believe that Mr. Simmons cannot work. Mr. Simmons has been utterly contemptuous of all aspects of Ms. Simmons' claim throughout these proceedings. He maligned and belittled Ms.

Simmons whenever an opportunity presented and his disdain for her clearly directed how he responded to her application; but in no aspect more clearly did Mr. Simmons' resentfulness show than in his response to Ms. Simmons' claim for spousal support. 94 The parties lived together for more than 30 years and were married for over 20 of those years. They have a son, Michael, for whom Mr. Simmons' contempt is eclipsed only by the scorn with which he treats Ms. Simmons. Ms. Simmons was a mother to Mr. Simmons' daughters from his first marriage, Leanne and Wanda Lee; and Ms. Simmons worked beside Mr.

Simmons in all his endeavours, whether at the inshore fishery, at Lupin Resort, in servicing the bussing contracts or in building or renovating houses and outbuildings. Mr. Simmons profited handsomely by the contribution that Ms. Simmons made to his enterprises and she is entitled to his support as she makes the transition to life as a single person . 95 Ms. Simmons has worked as a cashier at Dollarama in Clarenville since August 2009. She earned $19,775.61 in 2010, $22,774.08 in 2011 and $22,428 in 2012. Mr. Simmons says that Ms.

Simmons cashier's income of $22,428 is quite generous compared to the $8,246.40 that he expects to receive from CPP disability; and he argues twofold, that Ms. Simmons does not need spousal support and that he cannot pay it. 96 Mr. Simmons was working seasonally for the Provincial Department of Transportation & Works as a snow plow operator when the parties separated in 2011. He had been employed as such since 2009; and he reported annual incomes for tax purposes of $48,062 in 2010, $48,089.60 in 2011 and $44,094 in 2012, net of rental and fishing income losses he claimed in 2010 and 2011. Mr.

Simmons will not be content with an annual income of $8,246.40 from CPP disability and will, I am confident, return to the income levels that he achieved in 2010, 2011 and 2012 when these proceedings are finished. 97 Overall, I find that Ms. Simmons is entitled to spousal support; and that Mr. Simmons is able to pay it. I use the parties' 2012 incomes to calculate the amount: $22,428 for Ms. Simmons and $44,094 for Mr. Simmons ; and input them in the DIVORCEmate Software© employing the Spousal Support Advisory Guidelines as a template.

By those Guidelines, which are appropriate to this calculation, I find that Ms. Simmons is entitled to spousal support in the range of $677 to $838 a month (mid-range of $790), of which I choose the lower amount, or $677 a month, for an indefinite duration. I adopt that amount, which is appreciably lower than the interim spousal support of $867 a month I ordered for Ms. Simmons in this matter; but I reduce it because it is not limited in time. 98 I order Mr. Simmons to pay spousal support of $677 a month to Ms.

Simmons, on the first day of each month, starting April 1, 2014 and continuing indefinitely, by paying it to the Support Enforcement Agency. Ms. Simmons requests spousal support for the period February to September 2011 at $867 a month, the amount I ordered Mr. Simmons to pay as interim spousal support.

[emphasis added] [ 21 ] In 2014, when he made the Order, the trial judge found that Ms. Simmons had a strong compensatory entitlement to spousal support. He essentially imputed annual income of $44,094.00 to Mr. Simmons and expressed confidence that Mr. Simmons’ income would again reach levels similar to what he had earned in 2010, 2011 and 2012. [ 22 ] There is nothing that has happened since the Order that would cause me to revisit the spousal support award that the trial judge made until 2019, when I have found that there was a material change in circumstances.

Quite the opposite in fact, because in the years following the making of the Order, matters unfolded much as the trial judge expected. In 2017 Mr. Simmons’ line 150 income was $40,192.00, in 2018 it was $33,517.00 and in 2019 it is in a similar range. Mr. Simmons was indeed able to return to earning within the range that he had historically, as the trial judge predicted. [ 23 ] That is not to say that there were not changes in the circumstances of the parties after the Order was made. These will be reviewed below and, as will be noted, mostly they advantaged Mr. Simmons.

What amount of spousal support should be paid? Governing Principles [ 24 ] Any variation of a spousal support award should be governed by the principles listed in section 17(7) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) (“ Act ”): 17

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

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

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

c) relieve any economic hardship of the 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. Incomes of the Parties [ 25 ] Before applying these principles to the present case, it is helpful to review the relevant facts, beginning with Mr. Simmons’ and Ms. Simmons’ annual incomes for the past three years. The incomes are summarized in the following table: Mr. Simmons' income Ms. Simmons' income Ms.

Simmons' income less spousal support 2016 $ unknown $35,338.00 $27,214.00 2017 $40,192.00 $34,995.00 $26,871.00 2018 $33,517.00 $37,983.72 $29,859.72 [ 26 ] These incomes have been taken from the parties’ line 150 total income from either their Notice of Assessment or Tax Return

Summary, except for Ms. Simmons’ 2018 income which is discussed below. Mr. Simmons’ 2016 income is also discussed further below. [ 27 ] Although tax returns have not yet been filed, both parties adduced evidence of their earnings for 2019, which is the year in which Ms. Simmons’ income dropped significantly due to her leaving the work force. [ 28 ] Mr. Simmons’ 2019 income was established as follows: Golden Shell Fisheries gross earnings $15,135.10 Union dues $

(175.00) Union arrears $

(230.00) CPP (including anticipated payments for Nov, Dec) $ 3,308.94 OAS (including anticipated payments for Nov, Dec) $ 7,271.64 EI $18,598.00 EI anticipated for Nov, Dec $ 2,188.00 TOTAL $46,096.68 [ 29 ] The earnings from Golden Shell Fisheries are the proceeds of Mr. Simmons’ catch, which he sells to that company. This is a gross amount. I was not provided with any information as to related expenses and thus, I cannot determine the amount that should be attributed to Mr. Simmons as income with accuracy. [ 30 ] Ms. Simmons’ daughter-in-law testified that she has seen Mr.

Simmons around Golden Shell Fisheries’ plant on Random Island and she has heard that he does maintenance work for them. Although Ms. Simmons’ counsel did not argue that Mr. Simmons was receiving additional un-reported income from Golden Shell Fisheries, I understood this to be the inference that I was being invited to take from the testimony. Mr. Simmons denied the assertion, and stated that he does not do maintenance for Golden Shell Fisheries. Ms. Simmons’ daughter-in-law’s observations are not sufficient evidence upon which to conclude that Mr.

Simmons is employed doing maintenance for Golden Shell Fisheries and I thus decline to impute any further income to him for 2019. [ 31 ] Ms. Simmons’ 2019 income was established as follows:

Employment Insurance (Ms. Simmons last worked in March 2018) $ 2,590.00 CPP (including anticipated payments for Nov, Dec) $ 2,413.68 OAS (including anticipated payments for Nov, Dec) $ 7,289.52 GIS (approved retroactively) $ 3,681.80 TOTAL WITHOUT SPOUSAL SUPPORT $15,975.00 Spousal Support $ 8,124.00 TOTAL WITH SPOUSAL SUPPORT $ 24,099.00 Bankruptcies and the Economic Effects of the Marriage Breakdown [ 32 ] Both parties have declared bankruptcy. Mr. Simmons filed for bankruptcy in 2016 and Ms. Simmons filed in 2018.

Because section 17(7) of the Act requires that any variation of spousal support recognize any economic advantages or disadvantages to the former spouses arising from their marriage breakdown and relieve any economic hardship arising from the breakdown, it is necessary to review the facts surrounding the bankruptcies in some detail. [ 33 ] The Order required, among other things, that Mr. Simmons make the following payments to Ms.

Simmons: • $4750.00 for occupation rent; • $3000.00 for her interest in a skidoo, pick-up truck and J5 truck; • $1,992.50 for his share of debt on a Kia motor vehicle; • Half the market value of vacant land in the flood zone and the cabin at Deer Harbour and his interest in the land that it sits on; • $5,700.00 for half the value of the cottage rented to tenants and half the rent that he received from them; • Half the value of his fishing enterprise, which includes a non-core licence and boat; and • Costs to be taxed on a party-and-party basis under Column 3 of the Scale of Costs. [ 34 ] Mr.

Simmons did not pay any money to Ms. Simmons on account of the above. Some of the property, such as his fishing enterprise and the cabin, he states has no value. He says he was unable to pay the other amounts because of his bankruptcy and Ms. Simmons received whatever payment was available to her from the Bankruptcy Trustee. [ 35 ] Also pursuant to the Order, Mr. Simmons was responsible for a number of matrimonial debts including a personal line of credit. Mr. Simmons declared bankruptcy prior to some or all of the debts being paid and Ms.

Simmons testified that the bank that granted the line of credit, came after her for payment. Ms. Simmons had her lawyer write the bank to advise them of the Order, which made payment Mr. Simmons’ responsibility, but to no avail. The bank continued to pursue Ms. Simmons. She testified that while she made a few payments on the line of credit, she ultimately could not afford it and this was what caused her to file for bankruptcy in 2018. [ 36 ] Ms.

Simmons did receive some payments she was entitled to under the Order including a payment for her share of the matrimonial home and for half the value of some land that was sold to the provincial government by a company owned by Mr. Simmons. She also received half the value of Mr. Simmons’ pension. The total amounts that Ms. Simmons received are relatively modest and, after payment of legal and accounting fees, the total net payment to her amounted to just over $20,000.00. [ 37 ] Ms.

Simmons presented a Notice of Assessment for 2018 in the name of the Trustee of the Estate of Alvina Grace Simmons, which showed a line 150 total income of $15,835.00. She did not have any information on her pre-bankruptcy tax filing that year, however, she provided all copies of her T4s, including T4A and T4E, and her income for 2018 of $37,983.72 has been calculated based on these. [ 38 ] Ms. Simmons is 67 years old and currently rents a basement apartment and drives a second hand vehicle. She worked at Dollarama until March of 2018 when she left employment primarily due to stress.

She has been diagnosed with a general anxiety disorder. Although she initially planned to take a temporary leave of absence from work, she ultimately found she was unable to return. Given the assets and quality of life that the couple had during their marriage, there is no doubt that Ms. Simmons has been economically disadvantaged by the marriage’s breakdown. Ms. Simmons did not receive the full economic benefits that were awarded to her by the Order. [ 39 ] Mr. Simmons has suffered less economic disadvantage from the marriage breakdown.

He continues to own his own fishing enterprise, including a boat and a non-core licence for capelin, lobster, cod and squid. He lives in what was the matrimonial home. He testified that he borrowed money from Golden Shell Fisheries to enable him to buy out the matrimonial home and although he states that he continues to pay on the mortgage, he testified that he makes the payments in cash and that there are no receipts issued. Notwithstanding that he testified that he does not work for Golden Shell Fisheries doing maintenance or otherwise, Mr.

Simmons stated that he has driven the Golden Shell Fisheries Truck to Lethbridge three times for free because the company gave him the mortgage. He purchased his pick-up truck, car and skidoo back from his Trustee in Bankruptcy and currently lives with his common-law partner with whom he shares some living expenses. [ 40 ] Mr. Simmons continues to own the cabin in Deer Harbour, which he assessed as having a value of $3,500.00 on his bankruptcy filings, but now says has no market value.

Another of his properties, one the parties referred to as the “cottage”, was sold by the Trustee in Bankruptcy to one Mildred Tobin. Mr. Simmons initially testified that he is renovating that property for the people who own it for free. This seemed curious, until it was eventually clarified that Mr. Simmons’ daughters purchased the property from Ms. Tobin.

[ 41 ] Mr. Simmons is also building another house for his daughters. It is not yet complete although the exterior is finished. Mr. Simmons testified that he is providing his labour building the house for free. He says his daughters, who are currently in their 40s, will live in the house when they retire. Upon further questioning, it was revealed that the land that this house is on was transferred by Mr. Simmons by bill of sale to his granddaughter in 2012 (registered in 2014). Mr. Simmons’ granddaughter is currently 13 or 14 years old. [ 42 ] There is yet another piece of land that Mr.

Simmons deeded to his daughters in April 2014, which Mr. Simmons testified he has cleared for a vegetable garden. The lot is a considerable size – very large for a vegetable garden and likely suitable as a building lot. [ 43 ] I note that Mr. Simmons’ daughters are his children from his first relationship. His relationship with the son he shares with Ms. Simmons is strained. [ 44 ] I did not find Mr. Simmons to be very forthcoming in his evidence but after considerable cross-examination, I am satisfied that Mr. Simmons’ is not as economically hard up as he claims.

He transferred some of his assets to his daughters and granddaughter prior to his declaring bankruptcy and he continues to use his labour to increase the value of that estate by clearing land, building and renovating. [ 45 ] In the table above, I have assessed Mr. Simmons’ 2016 income as “unknown”. Mr. Simmons filed a Notice of Assessment for 2016 in the name of the Trustee of the Estate of Ernest W. Simmons. It shows line 150 income of $4,658.00. He did not file any information on his pre-bankruptcy tax filing that year, nor did he file copies of his T4s.

I am not satisfied that the Notice of Assessment reflects all of Mr. Simmons’ income for 2016 and hence I have labelled his 2016 income as “unknown”. Amount of Spousal Support [ 46 ] I have found that a material change in circumstance did not arise until Ms. Simmons’ income changed significantly because she left full-time employment at Dollarama. As Ms. Simmons qualified for Employment Insurance Benefits (“EI”) for all of 2018 and the first couple of months of 2019, this change did not materialize until 2019.

I am thus satisfied that the threshold has been met to consider variation of the spousal support award going forward. [ 47 ] Mr. Simmons submitted that his 2016 income should be used for the purpose of determining the proper amount of spousal support but that, in the alternative, it should be his 2018 income. He selected those years because they were lower income years for him, and he considers that he has been over paying spousal support for some time. Ms. Simmons’ submits that 2019 income should be used as it is the most current information.

I have decided to use the most current information in so far as it can be ascertained. [ 48 ] I have all of Ms. Simmons’ 2019 income information. Although there may be further variations in her income in coming years, given that she only collected EI for two months of 2019 and qualified for the GIS in March, there is no indication of any anticipated significant change. The GIS is a non-taxable benefit and so it must be grossed up for the calculation [1] . The DivorceMate software does the gross up calculation and, using that software, her 2019 income is calculated at $15,986.00. [ 49 ] For Mr.

Simmons, I do not have the information as to the appropriate amount of expenses to deduct from his 2019 gross income from Golden Shell Fisheries. I have thus decided to use an average of his 2017 and 2018 line 150 incomes, which results in income of $36,855.00. Given that his 2019 income is $46,097.00 including a gross catch amount of $15,135.00, the 2017 and 2018 average is reasonable. [ 50 ] For these incomes the DivorceMate SSAG range is $652.00 low, $761.00 mid, and $794.00 high. [ 51 ] The next matter to be determined is where within the SSAG range is appropriate.

The Order used the low end of the range, but that was based on circumstances at the time. I am not bound to use the low end of the range as did the trial judge in that decision. I will be guided by the principles of section 17(7) of the Act and the current circumstances of the parties. [ 52 ] In particular, I consider property division arising out of the breakdown of the marriage gave Mr. Simmons more assets, some of which he has chosen to transfer to his daughters and granddaughter. I also consider the fact that Ms.

Simmons did not receive the full share of property value that she was awarded by the Order and has been economically disadvantaged as a result. This was a relationship of 30 years and Ms. Simmons had a very strong compensatory claim for spousal support in 2014 and that has not changed. Due to her decrease in income in 2019, she also has a non-compensatory claim that is stronger now than it was in 2014 when the Order was made. For these reasons, I choose the mid-range amount of $761.00. Future Review [ 53 ] In Leskun v.

Leskun , 2006 SCC 25 , the Supreme Court of Canada discouraged review orders except where there is “genuine and material uncertainty” at the time of the original order (see: Leskun , paragraphs 36-38 ). Review orders are costly for the parties and, in effect, can turn a final order in to a long-term interim order made after trial (see: Fisher v. Fisher , 2008 ONCA 11 ). That being said, it is anticipated that Mr. Simmons will retire within a few years. He is 67 years old and he has already reduced his work to make it more manageable for his age and health.

Review orders are appropriate when there is a specified uncertainty about a party’s circumstances at the time of the order that will become certain within an identifiable timeframe. As such, I order that spousal support shall be reviewable upon Mr. Simmons’ full retirement from the fishery and all other employment. In the meantime, if there is another change of circumstances that reaches the threshold of a material change in circumstances, spousal support may be varied in the usual course. Disposition [ 54 ] I order that: 1. Commencing January 1, 2020 Mr. Simmons shall pay Ms.

Simmons monthly spousal support in the amount of $761.00; and 2. Spousal support shall be reviewed upon Mr. Simmons’ retiring.

​​​​​​​​​​​​​_____________________________ KATHERINE O’BRIEN Justice