VINCENT ARSENAULT, Petitioner - v. -, 2018 NBQB 14

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON 2018 NBQB 014 FDM/296/1997 BETWEEN: VINCENT ARSENAULT, Petitioner - and - RITA MARIE BLANCHARD, Respondent Before: Madam Justice Tracey K. DeWare Date of Hearing: November 1, 2017 Date of Decision: January 22, 2018

At: Moncton, New Brunswick Appearances: Kenneth W. Martin, solicitor for the petitioner Renée Cormier, solicitor for the respondent DECISION DeWare, J. INTRODUCTION [1.] The present decision responds to the applicant’s request to vary a spousal support order dated June 28, 2001. The respondentcontests the request and asks that the current spousal support order be varied retroactively to account for the applicant’s increasedearnings since the original order was granted.

FACTS PROCEDURAL HISTORY [2.] The applicant, Vincent Arsenault, and the respondent, Rita Marie Arsenault (now Blanchard), were married on August 30,1974, and divorced on June 25, 2001. The applicant paid spousal support to the respondent following their separation in 1998. On June28, 2001, Justice Roger Savoie executed an order for corollary relief which included, inter alia, the following provision for spousalsupport: 2. The Respondent, Vincent Arsenault, shall pay through the Court of Queen’s Bench of New Brunswick, Family Division, 770 MainStreet, P.O.

Box 5001, Moncton, New Brunswick, E1C 8R3, support for the benefit of the Respondent, Rita Marie Arsenault, in the sum of $200.00 per month in advance payable on the 1st day of June 2001.

Commencing on the 1st day of July, 2001, and continuing on the 1st day of each and every month thereafter, the said support payment shall increase to the sum of six hundred dollars ($600.00) permonth with all support payments for the benefit of the Respondent being deducted from the petitioner’s employment pay. [3.] The applicant has paid $600.00 per month in support since July 2001 and continues to honor the spousal support obligationsunder the June 2001 order.

On April 1, 2016, the applicant filed a motion requesting a variance of his spousal support obligations due toa material change of circumstances. [4.] On August 19, 2016, Justice Walsh adjourned the hearing sine die on the grounds that it was premature (Vaughan v. Vaughn,2014 NBCA 6 ). The applicant relied upon the anticipated termination of his employment in November 2016 as grounds for hisrequest to vary spousal support in August 2016. The matter was then scheduled to be heard before me on June 27, 2017.

However, giventhe absence of necessary financial disclosure, the matter was again adjourned and an order for disclosure of financial records was issued.The motion was finally heard on November 1, 2017. PERSONAL HISTORY OF THE PARTIES [5.] The applicant was born on August 31, 1951, and is now 66 years old. The applicant was employed as a survey technician withWSP Global Inc. until November 14, 2016. The applicant was advised of his pending termination of employment in November 2015,effectively providing him with a 12-month working notice period.

[ 6 .] The applicant decided to retire following the termination of his employment with WPS as he was 65 years old. The applicant received employment insurance benefits of $537.00 per week until October 28, 2017. Currently, the applicant’s sources of income are his OAS benefits in the amount of $550.00 and his CPP monthly benefits in the amount of $806.73. The applicant holds RRSPs in the amount of $126,526.00 which he intends to access to supplement his government benefits.

The applicant anticipates drawing approximately $6,500.00 from his RRSPs per year. [ 7 .] The applicant remarried following the parties divorce. The applicant and his initially common-law partner, Danielle Arsenault, purchased the respondent’s interest in the marital home following the divorce. The applicant and Ms. Arsenault subsequently married in 2003 and separated in September 2017. [ 8 .] During the course of his second marriage, the applicant’s income from his employment with WSP Global Inc. was in the vicinity of $58,000.00. The applicant’s former spouse, Ms.

Arsenault, is employed in a management position at the Georges-Dumont hospital. [ 9 .] The respondent was born on December 5, 1953, and is currently 64 years old. The respondent stayed at home and cared for the parties’ children during the course of the marriage. The respondent’s formal education is limited to grade 6. Since the parties’ separation, the respondent has worked in different capacities. The respondent ran her own business for a period of time selling antiques. However, this venture did not prove to be financially viable.

The respondent has also worked for seniors providing in-home personal care and homemaking assistance.

The respondent’s income tax returns for the year 2001 until 2016 reveal the following: 2001 Total income $7,927.00 2002 Total income $16,285.00 2003 Total income $8,100.00 2004 Total income $8,400.00 2005 Total income $9,168.00 2006 Total income $9,168.00 2007 Total income $19,514.00 2008 Total income $13,850.00 2009 Total income $10,015.00 2010 Total income $14,978.00 2011 Total income $12,621.00 2012 Total income $11,512.00 2013 Total income $8,128.00 2014 Total income $14,712.00 2015 Total income $15,135.00 2016 Total income $5,853.31 Included in the respondent’s declared income are the spousal support payments received from the applicant. [ 10 .] The respondent is currently working, providing home care for seniors.

The respondent has two clients she works for on a weekly basis, both are very elderly. One of these clients pays the respondent $40.00 per week and the other client pays the respondent $480.00 per week. The respondent’s sources of income presently are her spousal support, the earnings she receives as a result of her home care work as well as her share of the applicant’s CPP benefits. The respondent has not yet started to draw upon her own CPP and OAS benefits. [ 11 .] The respondent resides in her own home at 426 Dover Road in Dieppe.

The respondent’s home is assessed at $159,100.00 and has a mortgage owing against the property of $101,330.29. The respondent purchased the home with the assistance of her mother who has since passed away. The respondent explained that her home is in need of maintenance work and the property taxes have increased. [ 12 .] The applicant and his second wife built a home in Murray Corner in 2014. This home is currently listed for sale for $375,000.00. My understanding of the applicant’s testimony is that there is a mortgage owing against the property of approximately $274,000.00.

Legal proceedings have been launched in regards to the rupture of the applicant’s second marriage. The applicant began cohabitating with his second wife soon after the parties’ separation in 1998. The applicant and his second wife resided together until their recent separation in September 2017. [ 13 .] The respondent was in a common-law relationship for several years with Gary Rayworth. Mr. Rayworth lived with the respondent at the Dover Road property. The respondent explained that while Mr.

Rayworth contributed to the household bills, she made all of the mortgage payments and it was agreed the home was hers alone. The respondent’s income tax returns indicate that she was in a common-law relationship from 2010 until 2015. [ 14 .] At the time of the parties’ divorce, the marital debts and assets were divided. Included in this division was a division of the applicant’s RRSP held at that time. The applicant’s CPP credits were also divided at the time of the parties’ divorce.

POSITION OF THE PARTIES [ 15 .] The applicant points out that he has paid spousal support now since 1998 and has honored all terms of the 2001 court order. The applicant maintains that his retirement in 2016 at the age of 65 constitutes a material change of circumstances authorizing this Court’s variance of the current spousal support order. The applicant suggests that as he and the respondent now have similar incomes, he should

be relieved of the obligation to pay spousal support. In the alternative, the applicant asked that his spousal support obligation besignificantly reduced given his current financial reality. [16.] The respondent maintains that at all times she has had strong compensatory and non-compensatory claims for spousal supportwhich is supported by the fact that the 2001 order did not include a termination date. The respondent continues to suffer from theeconomic hardship of the breakdown of the marriage and is in need of spousal support.

Further, the respondent maintains that theapplicant failed to disclose his income tax returns since 2001. The respondent requests a retroactive variance of spousal support as theapplicant’s income has significantly exceeded the $31,000.00 referenced in the 2001 order. The respondent points out that the applicantwas able to amass considerable assets following the parties’ separation and enjoy an elevated lifestyle while she has always struggledfinancially.

ISSUES [17.] The issues for the Court to resolve are as follows: 1) Has there been a material change of circumstances since June 28, 2001, allowing for this Court’s variance of the current spousalsupport order? 2) If the current spousal support order may be varied, how should it be varied or terminated? 3) Should the respondent’s entitlement to spousal support be reconsidered on a retroactive basis given the applicant’s actual earnings? LAW AND ANALYSIS HAS THERE BEEN A MATERIAL CHANGE OF CIRCUMSTANCES? [18.] The current matter is brought before the Court pursuant to

section 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Suppl.), sections17(1), 17(4.1), and 17(7), which states as follows: Order for variation, rescission or suspension 17

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

a) a support order or any provision thereof on application by either or both former spouses; or (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. […] Factors for spousal support order

(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 supportorder or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change intoconsideration. […] Objectives of variation order varying spousal support order

(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 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. (Emphasis mine) [19.] In Sangster v. Sangster, 2014 NBCA 14 , the Court of Appeal considered the issue as to whether or not a voluntaryretirement is sufficient to determine that there has been a material change in circumstances. Justice Larlee discusses this issue atparagraphs 6, 7 and 8 of Sangster as follows:

6 The question the motion judge had to answer was whether Mr. Sangster's retirement from the military brought about a materialchange in circumstances. The motion judge finds: There is little documentary evidence of the reasons Mr. Sangster decided to leave his job. He informed the Court he decided to retirebecause he was scheduled for transfer out of New Brunswick. With 35 years in the Forces and at age 56, he elected to take earlyretirement to stay in New Brunswick. Mr.

Sangster provided no proof of his assertions about the notice of transfer, the timing of themove from the Province, or whether he had any options to refuse this order. [para. 7] 7 The motion judge reviews the law with respect to whether voluntary retirement is sufficient to determine if there has been a materialchange in circumstances: LeMoine v. LeMoine (1997), (NB CA), 185 N.B.R. (2d) 173, [1997] N.B.J. No. 31 (C.A.)(QL), para. 10 and Vennels v. Vennels, [1987] B.C.J. No. 2120 (B.C.S.C.) (QL). He concludes: Mr.

Sangster has testified that his purpose in obtaining his early retirement was to avoid a pending transfer from the Province of NewBrunswick. He has alleged this to be the situation and the onus is upon him to establish this as a fact. I am not convinced he has satisfiedthat onus. Indeed, the only evidence proffered in this instance would tend to suggest that, if there was an imminent move, it was not theprimary reason for Mr. Sangster's retirement. [para. 37] 8 The motion judge determined Mr. Sangster failed to establish a material change in circumstances sufficient to justify a variation ofthe consent order.

In reviewing his decision, I do not encounter any errors in principle, or a serious misrepresentation of the evidence. Inshort, I find the motion judge's decision to be free of reversible error. [20.] The applicant’s situation in this case is quite distinguishable from that of the applicant in Sangster. Given the facts of this case, Iaccept that the applicant’s retirement in the fall of 2016 was not unreasonable. The applicant had been terminated from his employment.The applicant was 65 years old and suffers from kidney disease, high blood pressure and high cholesterol.

The applicant takesmedication for his various conditions. This is not a situation where the applicant sought out early retirement or was an age that it wouldbe presumed automatically that he would seek out alternative employment. [21.] The applicant’s retirement and drop in annual income constitute a material change of circumstances pursuant to section 17(1)and 17(4.1) of the Divorce Act, which authorizes this Court to consider a variance of Justice Sirois’s 2011 order. It was not unreasonablefor the applicant to retire at the age of 65.

Further, I accept the applicant’s health is not ideal, which rendered the prospect of retirementin 2016 enticing to him. Perhaps it is worth commenting that at the time the applicant decided to retire, he was not aware that his secondmarriage was about to come to an end. The fact that his wife’s income was higher than his likely factored into his decision to retire.

HOW SHOULD THE PREVIOUS ORDER BE VARIED? [22.] As I have concluded that the applicant has met the threshold to establish there has been a material change of circumstancessince the 2001 order, the question then turns to whether or not the previous order should be varied. The objectives of section 17(7) of theDivorce Act are pertinent to this consideration. In particular, sections 17(7)(a), (c), and (

d) are relevant. (

a) Recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown. [23.] There is no doubt that the respondent suffered an economic disadvantage as a result of the breakdown of the marriage. Therespondent lived in an apartment for many years before purchasing her home on the Dover Road with the assistance of her mother. Therespondent struggled to find employment and is disadvantaged as a result of her limited education.

Despite the respondent’s best efforts,she continues to suffer from economic disadvantages since the breakdown of her long term, traditional marriage with the applicant. [24.] The applicant quickly re-partnered with a spouse whose income exceeded his own. The applicant enjoyed many years of solidemployment at a very good salary, well in excess of the $31,000.00 he was earning at the time the consent order was negotiated.

Theapplicant and his new spouse effected many repairs to the marital home before selling it and building the current home at Murray Beach.There is no doubt that the means and the lifestyle of the applicant have grossly exceeded those of the respondent following thebreakdown of the marriage. (

c) Relieve any economic hardship of the former spouses arising from the breakdown of the marriage. [25.] The original court order providing a spousal support of $600.00 per month was designed to relieve the economic hardshipoccasioned to the respondent as a result of the marriage breakdown. It was recognized that the respondent had compensatory and non-compensatory claims to spousal support as there was no termination point considered in the original order. Since the demise of themarriage, while the respondent’s situation has changed at different times, she does still suffer economic disadvantage.

That said,certainly at times, while residing with Mr. Rayworth and depending on her employment pursuits, she was better able to provide forherself. It goes without saying that economically, times have been challenging for her since the separation and remain so to date. [26.] The difficulty at the present time is assessing the applicant’s current ability to provide for the respondent given his changedcircumstances and his limited financial means as compared to prior to his retirement.

It is necessary to look at the actual financialbreakdown of the parties’ current income streams in order to assess what if any ongoing contribution the applicant can make to ease therespondent’s economic disadvantage. [27.] In his sworn financial statement dated June 24, 2017, the applicant reported annual income of $34,524.00. This income waslargely based upon his EI earnings, which expired in October 2017. Currently, the applicant reports his monthly income as follows: OAS $550.00

CPP $806.73 Annuity from RRSPs $520.83Total $1,877.56 [28.] At the present time, the respondent’s monthly income, according to her oral testimony, includes the $520.00 per week or$2,080.00 per month she earns doing homecare. The respondent is receiving $279.00 from the CPP benefits of the applicant which weresplit following the separation as well as the $600.00 per month in spousal support.

Currently, the respondent reports her monthly incomeas follows: CPP/Applicant’s portion $279.00Spousal support $600.00Homecare earnings $2,080.00Total $2,959.00 [29.] Currently, my appreciation of the evidence is that the respondent’s monthly income both including and excluding her spousalsupport exceeds that of the applicant. The respondent did not disclose her income as a homecare assistant in her affidavit nor in herfinancial statement. In her financial statement dated August 2016, the respondent indicated that her income, exclusive of spousal support,was $2,592.80.

The respondent points out that her current employment is by its nature unreliable given the advanced ages of her clients. [30.] Considering the current annual incomes of the parties, there would be no spousal support payable by the applicant to therespondent pursuant to the Spousal Support Guidelines at this time. There is admittedly some uncertainty in regards to the applicant’sannual income given the recent breakdown of his second marriage. It is certainly feasible that he will be entitled to a division of hiscurrent spouse’s CPP pension as well as her pension with the provincial government.

However, none of this information was madeavailable to the Court in these proceedings. [31.] In another decision wherein there was a request for a variation of spousal support triggered by the payor spouse’s retirement,Flieger v. Adams, 2012 NBCA 39 , the Court of Appeal considered the situation where there remained an ability of the payorspouse to make some payments.

Justice Larlee commented on this issue at paragraph 15 as follows: 15 The motion judge then considered the case law: in particular, the relevant principles as enunciated in the majority opinion in Bostonand the objectives of a spousal support variation order under the Divorce Act. She relied on the concepts found in Gallant v. Gallant,2002 NBQB 180, 250 N.B.R. (2d) 380, per Wooder J.; Meiklejohn v. Meiklejohn, (ON CA), [2001] O.J. No. 3911(C.A.) (QL), per Rosenberg J.A.; and Beninger v. Beninger, 2007 BCCA 619, [2007] B.C.J. No. 2657 (QL), per Prowse J.A.

Isummarize them as follows: where any "economic hardship from the marriage or its breakdown" persists, the award of spousalsupport on a variation application must give effect to the objectives of spousal support in s. 17(7) of the Act; where thesatisfaction of the objectives in s. 17(7) of the Act can only be achieved by "double dipping", then the practice is, and should be,condoned; the spousal support award must include a significant compensatory factor arising from the length of the marriage, thefact that the spouse gave up a career to raise children, and a significant needs-based component, taking into account the relativemeans and needs of the parties.

It should also attempt to adjust to some degree for the disparity in the standards of living of the parties,taking into account the standard which they enjoyed during the marriage. (Emphasis mine) [32.] Under all of the circumstances of this case, it is my opinion that the provisions of the Spousal Support Guidelines to be appliedin this case are not appropriate.

Madam Justice Larlee commented upon the appropriateness of deviating from the Guidelines in Fliegerwhen she commented at paragraph 19 as follows: 19 I agree with the motion judge that it can be argued the economic advantage the husband derives from sharing expenses with hiscurrent partner and the double dipping issue can be addressed by movement within the ranges of the Guidelines.

Nonetheless, in myopinion, the motion judge's first reason, which describes the insufficient evidence to determine the husband's income, and hisentitlement to receive Canada Pension benefits which would add to his income, was sufficient to deviate from the Guidelines andadjust the amount upwards. As Quigg J.A. pointed out in Smith: Although the Guidelines are not law per se, following them can enhance the legitimacy of a spousal support award, as the Guidelinespromote consistency and therefore aid in the avoidance of arbitrary decision-making.

However, while the Guidelines had beenconsidered in over 350 reported decisions nationwide by 2008 (see Rogerson, Carol & Thompson, Rollie, Spousal Support AdvisoryGuidelines: Report on Revisions, July 2008, Department of Justice Canada), they are still a relatively recent development. Constrainingthe discretion conferred upon judges by the Divorce Act with regard to spousal support awards is best left to Parliament. The Guidelines are intended to promote consistency but are not meant to usurp the discretionary powers of trial judges.

Indeed, itis too early to know whether an over-dependence on the Guidelines may present problems. The Guidelines have not been subjected to therigorous debate to which legislation is typically subjected, nor have they been in use by courts long enough to warrant their incorporationinto the common law. [paras. 34-35] (Emphasis mine)

[ 33 .] Given the applicant’s annual earnings throughout 2017 as a result of his employment insurance benefits, he was capable of honoring his spousal support payments of $600.00 per month pursuant to the original order. Commencing in 2018, there is no question but that his financial means are significantly reduced. Presently there would be no support payable to the respondent from the applicant pursuant to the Spousal Support Guidelines .

However, given all of the circumstances of this case, it is in my view reasonable to stray from the Spousal Support Guidelines and maintain some measure of spousal support for the respondent until the end of 2018 when she will be 65 years old. [ 34 .] The facts that lead me to conclude that there is some measure of support payable until the end of 2018 despite the current incomes of the parties, and that it is appropriate to deviate from the Spousal Support Guidelines are as follows: 1) in December of 2018, the respondent will be 65 years old and then will be able to avail herself of her own CPP benefits and OAS benefits; 2) the respondent has consistently worked at many different ventures and jobs since the breakdown of the marriage and has made every effort to become economically self-sufficient despite her limited formal education; 3) the respondent has suffered from economic disadvantages as a result of the breakdown of the marriage and continues to struggle financially; 4) the applicant has enjoyed a far more affluent lifestyle since the parties’ separation and has been capable of amassing assets; 5) the applicant will benefit from the sharing of his second spouse’s CPP and provincial pension benefits which he will be able to start collecting immediately given his age and none of the particulars of these potential benefits are currently before this Court; 6) while the applicant does suffer from some health concerns, there is nothing which would preclude him from seeking part-time employment on a short-term basis to supplement his income if necessary in order to honor his spousal support obligations; and 7) the parties were in a long term traditional marriage where the respondent stayed home to care for the children and is entitled to spousal support on both a compensatory and non-compensatory basis. (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time [ 35 .] A recent decision of the New Brunswick Court of Queen’s Bench in Gaudet v. Mainville , 2014 NBQB 88 , involved parties with circumstances quite similar to those currently before the Court. In considering the issue of a variance of spousal support stemming from a retirement, Justice Robichaud stated at paragraphs 47 and 49 as follows: 47 I am satisfied that the spousal support order established in the 2009 Order recognized that Ms.

Gaudet had suffered economic consequences as a result of the marriage and its breakdown. Further, the 2009 Order is not time limited and does not impose conditions. This, in my view, is consistent with the fact that Ms. Gaudet was financially dependent on Mr. Mainville for all aspects of her living expenses. I am prepared to accept that there was then little or no hope that she would attain any measure of self-sufficiency. There is no evidence that there has been a reversal of fortunes in that regard. […] 49 At this stage in her life, I am satisfied that Ms.

Gaudet continues to suffer economic disadvantages resulting from the marriage and its breakdown. To eliminate the spousal support as suggested by Mr. Mainville's counsel, or indeed to reduce or adjust it substantially, would in my view, impose an inequitable sharing of the disadvantages of the marriage and its breakdown solely upon Ms. Gaudet. (Emphasis mine) [ 36 .] In the present matter, it would appear that at this time that the respondent has secured employment which is generating an approximate annual income of $27,000.00.

Given the respondent’s historical earnings as well as the applicant’s current annual income, it is necessary to pose the question – Is the respondent now economically self-sufficient? The respondent has secured a stable income; however, her earnings history cannot be ignored nor can the vulnerability of her current positions. While I accept that the respondent has strived to achieve economic self-sufficiency since the separation, I also accept that the journey has and remains difficult. Further, I accept that the respondent’s current positions are dependent upon the lifespans of her elderly clients.

In my view, while the respondent’s earnings at this point must be taken into consideration, it remains appropriate to provide her with a bridge in the form of spousal support until she is able to avail herself of the certainty of her CPP and OAS benefits. [ 37 .] In all of the circumstances, the applicant shall pay to the respondent spousal support in the amount of $350.00 per month commencing on February 1, 2018, and continuing every month until and including December 1, 2018. The applicant’s spousal support obligations will terminate following his payment of December 1, 2018.

Given the applicant’s current limited monthly income stream, it may be necessary for him to deplete some of his assets in order to pay spousal support until the end of 2018. The applicant is in a position to do so if necessary. SHOULD SPOUSAL SUPPORT BE VARIED RETROACTIVELY? [ 38 .] The respondent maintains that she should be entitled to a retroactive adjustment of spousal support. The respondent points out that Justice Sirois ’s 2001 order was devised assuming that the applicant’s annual income was $31,000.00. The applicant’s actual income has nearly doubled in the interim period.

However, there was no disclosure of the income tax returns nor was there any adjustment to the

amount of support. [39.] The applicant rightfully points out that the order as signed by Justice Sirois did not require or provide for the annual disclosureof income tax information. The respondent only requested a retroactive review of spousal support once served with the present motion toterminate or vary the spousal support obligation. Despite the fact that the order is silent as to a requirement for financial disclosure, therespondent points out that all parties are aware of an ongoing requirement to provide financial disclosure when there are support ordersoutstanding.

That said, prior to filing a responding document, the respondent never did request the applicant’s income tax returns norrequest any variation of the existing spousal support arrangements. [40.] The respondent refers the Court to paragraph 106 of the Supreme Court of Canada’s decision in D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 SCR 231 wherein the Court stated as follows: 106 Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of aretroactive award.

Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. Iwould characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to anappropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v.

Horner (2004), (ON CA), 72 O.R. (3d) 561, at para. 85, where children’s broad “interests” — rather than their “right to an appropriate amount ofsupport” — were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ supportobligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding largerchild support payments: see Hess v. Hess (1994), (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v.Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.).

A payor parent cannot intimidate a recipient parent in order to dissuadehim/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 , 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when(s)he knows that they are not. (Emphasis mine) [41.] The respondent asks that the applicant be ordered to pay arrears in retroactive spousal support back to 2012 in the amount of$78,600.00 based on his actual income during that period.

The respondent alleges in this case that the applicant is guilty of blameworthyconduct and it is therefore appropriate to consider a retroactive variation of the spousal support.

In her responding brief, the respondentsets out seven factors in support of her suggestion that the applicant in this case is guilty of blameworthy conduct: - The Applicant failed to provide any financial disclosure to the Respondent since the Divorce Judgment in 2001; - Since 2001, the Applicant’s wealth and income has increased significantly; - Knowing this, the Applicant filed a motion to vary without providing the proper financial disclosure to the Respondent; - The Applicant has still not acknowledged that there are arrears owing to the Respondent; - Presently, the Applicant has still not provided the required financial disclosure, as order by the Court in July 2017; - The Applicant is vague as to the circumstances surrounding his loss of employment and the circumstances surrounding hisretirement; and - The Applicant is aware of the Respondent’s continued need for support, which is clearly established in her Affidavit, SupplementaryAffidavit and Financial Statement, submitted to this Court. [42.] Considering the Supreme Court of Canada’s directives in D.B.S. v.

S.R.G. (supra), as well as the allegations of blameworthyconduct suggested by the respondent, the following facts need to be considered: 1) there is no suggestion that the applicant hid his income increases – the evidence confirmed that the applicant was never askedabout his income prior to June 2017; 2) there is no evidence that the applicant has ever intimidated the respondent from pursuing her claims for spousal support; and 3) there is no evidence that the applicant ever misled the respondent in regards to the spousal support she was receiving. [43.] In the present circumstances, it cannot be overlooked that the Applicant has at all times honored his spousal support obligations.The Applicant sought to have a variation of his spousal support obligation as soon as he became aware of his pending layoff in the fall of2016.

There is no indication that the Applicant has ever been in arrears or failed to make any payments. Furthermore, it must be pointedout that the Applicant did approach the situation in a responsible fashion by seeking a variance once he was aware of his new financialreality, although of course, according to the principle set out in our Court of Appeal in Vaughn v. Vaughn (supra), this issue could notbe resolved prior to his actual retirement.

In any event, these actions are not those of an individual seeking to avoid or ignore spousalsupport obligations. [44.] Further, while the Applicant’s standard of living has increased following the breakdown of the marriage and he has enjoyed thesupport of a new spouse, the respondent as various times as well resided with a common-law partner. The applicant did not, at any time,seek to terminate or vary his spousal support obligations before the notice of his retirement. [45.] While it is true that the applicant did not provide financial disclosure, it can also not be overlooked that he had no requirement

to do so given the terms of the order. Further, while the respondent certainly could have requested financial disclosure and/or variance of spousal support given the applicant’s increased financial means, this never occurred. Finally, it cannot be overlooked that the respondent was not forthright in her financial disclosure when responding to the motion.

The respondent failed to disclose either in her financial statement or in the two affidavits she filed on the motion the $520.00 in weekly earnings she is currently making as a result of her work with seniors. [ 46 .] In my view, the facts of this case do not support a finding of blameworthy conduct which would justify a retroactive award of arrears pursuant to the criteria set out in D.B.S. v. S.R.G. as is requested by the respondent. However, it is appropriate to consider a retroactive adjustment of the spousal support back to when the respondent first inquired as to the applicant’s actual income.

The respondent did not seek retroactive spousal support at the time she responded to the applicant’s motion although she was unrepresented at that time. As of June 2017, the respondent was seeking financial disclosure and at that point the applicant would have been on notice that an adjustment to spousal support was being sought. At the time the respondent filed her supplementary affidavit in July 2017, it was clear she was alleging inadequate disclosure of the applicant’s actual earnings since 2001.

Therefore, I would have allowed the claim for retroactive spousal support for the period of July 2017 up to and including December 1, 2017 – the month this motion was actually heard. [ 47 .] The difficulty in awarding arrears of retroactive spousal support for the period of July-December 2017 is that based upon the actual earnings of the parties during that period, the $600.00 per month paid by the applicant would have exceeded the amount payable pursuant to the ranges under the Spousal Support Guidelines .

In my view, in these circumstances, it is not appropriate to reduce the amount of spousal support paid in 2017 and January 2018 for all of the same reasons that the spousal support has been continued up until the end of 2018. CONCLUSION AND DISPOSITION [ 48 .] Given all the aforementioned reasons, it is therefore ordered as follows:

a) The applicant’s request to terminate spousal support is denied;

b) The applicant’s request to vary spousal support pursuant to section 17(1) (

a) of the Divorce Act is granted;

c) The applicant’s spousal support obligations shall be varied pursuant to section 17(4.1) of the Divorce Act to the amount of $350.00 per month commencing on February 1, 2018 and continuing up to and including December 1, 2018;

d) The respondent’s request for a retroactive adjustment of spousal support is denied; and

e) As the parties have enjoyed mixed success, there shall be no order as to costs. DATED this _____ day of January, 2018. ______________________________________ Tracey K. DeWare Justice of the Court of Queen’s Bench of New Brunswick