R.G. v. G.G., 2023 NBKB 060

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Citation: R.G. v. G.G. 2023 NBKB 060 FDM-661-2017 Date: 2023/04/17 BETWEEN: R.G., Applicant, – and – G.G., Respondent. DECISION BEFORE: Madam Justice Brigitte M. Robichaud AT: Moncton, New Brunswick DATE OF HEARING: February 23 and 24, 2023

DATE OF DECISION: April 17, 2023 APPEARANCES: R.G., self-represented G.G., self-represented Robichaud, J. BACKGROUND [ 1 ] The former husband, RG, filed proceedings by way of a Motion to Change to terminate his spousal support obligations effective September 1, 2020 and cancel all existing arrears payable to his former spouse GG. In her Response, GG initially asked that the current level of spousal support ($776 per month) be maintained.

At the beginning of this hearing, she proposed that the current Order be maintained up to February 1, 2023, and that it be reduced to $454 per month commencing March 1, 2023, and payable until she reaches age 65 when she will access additional federal benefits. She also opposes any adjustment to the existing arrears. FACTS [ 2 ] The parties commenced to cohabit in May of 1995 and married on July 16, 2005. After 20 years of cohabitation, they separated on December 1, 2015. There are no children of this marriage. [ 3 ] During the marriage, RG was a long-haul trucker.

He travelled extensively for his work that often kept him away from home. Eventually, he became the owner-operator of his own rig. He says he worked hard to support the family. There is no doubt he was the main breadwinner. [ 4 ] As for GG, she worked for a while as an educational assistant and then as a waitress in seasonal employment until approximately 2010 when she ceased working altogether because of complex mental health issues.

During cohabitation, she was primarily responsible for the care and maintenance of the home, the household chores and raising her two daughters from a previous relationship. [ 5 ] After the separation, RG sold his rig and obtained employment in a truck repair shop in the Moncton area.

He kept this employment until July of 2020 when he decided to quit his job and relocate to British Columbia where he has family. [ 6 ] As for GG, she remained incapable of working after the separation and continued to be under the care of medical professionals including a psychiatrist whom she continues to consult on a monthly basis to this day. In 2017, she was approved for long term disability benefits through the Canada Pension Plan (“CPP”).

Aside from the spousal support she receives from RG, the disability benefits have been her only other source of revenue since the separation. – Procedural history [ 7 ] The initial spousal support Application was filed by GG in 2016 pursuant to the provisions of the Family Services Act S.N.B. 1980, c.F-2.2 . In an Interim Order granted on January 16, 2017 (effective December 5, 2016), RG was ordered to pay GG interim spousal support in the amount of $776 per month commencing on December 1, 2016. This amount was based on the five-year averaging (2011 to 2015) of RG’s income at $39,995.

GG’s income was determined at $7,216 from disability benefits. [ 8 ] In turn, RG filed his Petition for Divorce in 2017 with a joinder for relief under the Marital Property Act , S.N.B. 1980, c.M-1.1 .

GG responded with a claim for continuation of spousal support under the Divorce Act , R.S.C. 1985, c.3 (2 nd Supp .). The final hearing came before the late Justice J. Walsh of this Court in May of 2018. By then, the property matters had been resolved with the remainder of the hearing focusing on GG’s claim for spousal support. [ 9 ] In a written decision released on May 9, 2018, Walsh J. ordered RG to continue paying the amount of $776 per month in accordance with the 2017 Interim Order. This reflected the support order that GG felt RG should pay.

In so ordering, Walsh J. did not make a fresh determination of RG’s income and expressed that $776 fell either within or below the low end of the Spousal Support Advisory Guidelines when averaging RG’s income under various scenarios for the previous two to five years. Walsh J. also estimated GG’s CPP disability income at $10,908 at the time. – The evidence of RG [ 10 ] RG decided in 2020 that his long-held desire to move to Vancouver Island, British Columbia, could finally be realized.

It turns out that his parents who are in their early eighties reside there in the small town of Gold River as does his disabled brother. A sister also resides on the island, south of Gold River, at what is estimated to be a two-hour drive. [ 11 ] RG says in the spring of 2020 he was told his mother was ill with heart issues and he felt he should move to the west coast to be with his family. In preparation for his move, RG undertook $5,000 worth of repairs to his home (the former marital home) before listing it for sale.

He described his windfall at the time: he had money to spare because of a large tax refund and his income had been increasing over the years. He says he also saw his chance to maximize his profits with the prevailing real estate seller’s market at the time. [ 12 ] Ultimately, RG sold the home for $113,000 within two weeks of listing it. He used some of the proceeds to pay off the existing mortgage and other debts.

He then purchased a 2003 Blue Bird school bus for $4,000 and used another sum of $3,700 to convert it to living quarters for his planned move to Gold River. [ 13 ] By July of 2020, RG had quit his employment at the truck repair shop and was in the process of finalizing plans to relocate to British Columbia. Around the same time, RG made a last spousal support payment of $776 through the Office of Support Enforcement (OSE) for the Province of New Brunswick. This covered his August 1 st obligation. [ 14 ] RG did not personally inform GG he was leaving nor of his decision that he was done paying spousal support.

He says he contacted one of GG’s daughters to relay the news through her. When asked why he did not personally give GG a heads up on the move and the termination of the support payments, he answered with emphasis he “did not want any dealings with [GG] at all” and added “I had enough of the woman and did not want anything to do with her”. He summed up he does “not believe in spousal support”. [ 15 ] Near the end of July, RG left with his refurbished bus on a cross-Canada road trip reaching the destination of Gold River after about five to six days.

Once there, he installed the bus under a carport at his parents’ home and connected to their electrical and water lines. The bus thus became RG’s self-contained home save for washroom facilities that he used from within the carport. [ 16 ] RG reasoned that when he left the Moncton area in July of 2020, it was the fulfillment of “wanting to move for years and years” and “get out of here... sooner than later”. He says he stopped paying his spousal support at the suggestion of a lawyer.

He adds he informed the Office of Support Enforcement (“OSE”) that he was leaving the province and he would have no money to send to them. He did not provide any evidence to prove these assertions. [ 17 ] On the contrary, GG testified RG did not let her know directly or indirectly of his plans to leave the province. Neither did he inform OSE of his plans. She described how she contacted OSE personally when the otherwise reliable stream of spousal support ended.

She says OSE was unaware of RG’s whereabouts and they were unable to locate him for enforcement purposes for a while. [ 18 ] Her evidence is corroborated by the statement of account from OSE (Exhibit 1) that shows enforcement was delayed. Also, it shows that while arrears were accumulating, an Information Tracking Fee of $25 was charged on October 23, 2020, all in an attempt to locate RG for enforcement purposes. The statement further documents a federal interception of $277.85 received on the account on December 7, 2020 from the Government of Canada at which time the arrears stood at $2,851.15.

Where the evidence of the parties conflict on the issue of notice to OSE and to GG personally, I believe the evidence of GG.

[ 19 ] In the meantime, RG’s decision to stop paying spousal support caused significant hardship for GG who was struggling to make ends meet. She testified she had to cut back on essential medication and groceries and had difficulty paying rent and related living expenses. Her mental health took a toll. [ 20 ] GG called Beverly Gaudet to testify and corroborate the impact of the financial hardship suffered by her when RG stopped paying spousal support. Ms Gaudet is a registered nurse with Addiction and Mental Health Services. GG has been her client for the last five years.

They meet regularly on average every two weeks. She provides support to GG for cognitive behavior therapy and manages GG’s therapy to address her anxiety and depression. Ms Gaudet is also the link between GG and her psychiatrist. She says she visited GG’s home when the spousal support payments had ceased. On one visit she observed there was no food in the cupboards and on another, GG had run out of medication.

She was concerned GG did not have enough money to cover her basic needs. [ 21 ] Ms Gaudet reported these issues to her superiors and as a result she was, on an exceptional basis, able to obtain some financial assistance for GG. This included rent assistance for a while as well as help to cover the cost of medication, groceries and some personal needs including overdue power bills.

Ms Gaudet explained this financial aid was unusual in nature and it is no longer accessible. – RG’s employment prospects [ 22 ] In his original pleadings filed on December 15, 2020, RG stated: “... as of July 31, 2020 I became unemployed and moved to BC to be with family”. He added: “I have no prospects of work and my only income is CPP”. [ 23 ] RG testified that when he left his employment in the Moncton area, he hoped to work in British Columbia. He says some three weeks after he arrived out west, he knocked on the one door where he thought his experience was a good fit. He never heard back.

He says he did not send any resumé or application anywhere else as he believes there is not much work out there except for what he described as a “fishing place” for which he says he has no experience. He says he has no vehicle to commute for work in neighbouring communities such as Campbell River located 90 kilometers away. The only time he relocates his converted bus is during hunting season; otherwise, it is not used on roads.

He says he has not looked into carpooling to outlying communities as he knows there is no one around he could do this with. [ 24 ] RG testified his only source of income at this time is his CPP that he commenced to receive at age 60 in August of 2019 when he was still employed full time in the Moncton area. Currently, his annual CPP taxable benefit amounts to $7,288. It is currently the object of a federal interception at the rate of $454 per month that is remitted to GG while outstanding arrears continue to accumulate.

The arrears stood at $7,390 as of February 13, 2023. [ 25 ] RG’s income for the last five years is set out in the chart below and includes the two years before his move to British Columbia (2018, 2019), the year of his move (2020), and the years since (2021, 2022). As can be seen, RG’s income continued to increase after the spousal support Order of May 9, 2018 which incorporated the provisions of the January 16, 2017 Order based on an estimated income of $39,995 for RG and CPP disability for GG.

Year Employment CPP TOTAL 2018 Ex 3 62,478 62,478 2019 Ex 4 65,428 1,622 67,050 2020 Tab 11 Record 43,258 6,668 49,926 2021 Tab 12 Record 7,195 7,195 2022 Ex 5 7,288 7,288 ISSUES [ 26 ] The following are the issues before the Court:

a) Has RG proven a change in circumstances warranting a variation of spousal support and the rescission of arrears?

b) Are there ongoing spousal support obligations payable by RG and if so, what is the appropriate quantum? LAW AND ANALYSIS – The position of RG [27] RG is of the view that the unavailability of employment in his new home in British Columbia amounts to a material change incircumstances entitling him to a variation order cancelling his spousal support obligations effective September 1, 2020 when he re-established himself in Gold River as well as a consequential rescission of all arrears accumulated from that date to the present. – The position of GG [28] GG’s position is two-fold.

Firstly she says that RG’s decision to quit his employment and move to BC where he had noemployment are personal choices that do not amount to a change of circumstances sufficient to cancel the spousal support obligations northe rescission of arrears. Secondly, she generously proposes in my view, that the spousal support payment be reduced to $454 per monthprospectively commencing March 1, 2023 and terminating when she reaches age 65 when she will have access to the employment basedCPP benefits, the Old Age Security (OAS) and the Guaranteed Income Supplement (GIS).

Coincidentally, the sum of $454 is the amountOSE is currently garnisheeing against RG’s CPP benefits.

a) Has RG proven a change in circumstances warranting a variation of spousal support and the rescission of arrears? [29] Pursuant to

section 17 of the Divorce Act, the Court has jurisdiction to vary a spousal support order. It consists of a two-stepapproach. Firstly, the Court must find the existence of a material change in circumstances occurring since the last support order, namely,a change that, if known at the time of the order, would likely have resulted in different terms. Secondly, if that threshold has been met,the Court must assess the objectives relating to a variation of a spousal support order in light of the change. (See LMP v LS , [2011] SCC64, Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, and G. (L.) v.

B. (G.), (SCC), [1995] 3 S.C.R. 370). [30] The following are the relevant provisions of the Act: Variation order 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, (

a) a support order or any provision of one, on application by either or both former spouses; (…) Conditions of order

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of whichthe variation order is sought, and the court has the same powers and obligations that it would have when making that order. (…)

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 in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or thelast variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. (…) 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. [31] As set out in subsection 17(4.1), the Court’s authority on this variation hearing is premised upon it finding that a change hasoccurred in the condition, means, needs or other circumstances of either spouse since the making of the May 9, 2018 Order.

As a movingparty, RG has the onus of proving a material change in circumstances, also defined by the Supreme Court of Canada in Willick (supra atpara. 21), as: “… a change, such that, if known at the time, would likely have resulted in different terms.” (See also G.(L.) v. B.(G.) (SCC), [1995] 3 S.C.R. 370 applying the same test to spousal support variations.) [32] In assessing whether a change has occurred, the Court is required to identify the basis upon which the existing spousal supportorder was granted in the first place, namely, was it the compensatory model or the non-compensatory model or both.

At paragraph 11 ofJustice Walsh’s decision in this case (RG v GG [2018] NBQB 90), he concluded as follows: 11 I readily find that the respondent is entitled to spousal support based on financial need as envisioned in Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420. Moreover, for obvious reasons I find that the respondent cannot achieve economic self-sufficiency, certainly not at this time, nor in the foreseeable future (See: Leskun v.

Leskun 2006 SCC 25). (…) [33] The background facts alluded to earlier establish that GG was primarily responsible for maintaining and running the householdduring the cohabitation as well as raising her two daughters from a previous relationship. She had been working at seasonal work as awaitress when in 2010 she stopped working permanently because of complex mental health issues, the severity of which was confirmedwhen she qualified for disability benefits under CPP in 2018. [34] There is no doubt RG was the main breadwinner throughout the 20 years of cohabitation.

It is therefore understandable thatWalsh J. ordered him to pay GG spousal support based on financial need and her inability to become economically self-sufficient. Hermedical condition has persisted since.

[ 35 ] Turning to the change in circumstances required to grant the variation requested, there are two aspects to consider. [ 36 ] Firstly, GG contends that there were no changes in circumstances occurring for the period from September 2020 to March 1, 2023, while RG contends the Order should be rescinded altogether effective September 1, 2020 and the arrears erased. [ 37 ] The evidence establishes RG voluntarily decided to quit his job at the truck repair shop in the Moncton area in July of 2020 because he chose instead to join his parents and siblings out west.

He acknowledges he had no replacement employment waiting for him in British Columbia. He unilaterally decided he was done with paying spousal support. In his testimony he insisted he was “done” with GG and that in any event he never believed in “spousal support”. He was not at all concerned of the impact on GG as he did not even bother to let her know he was leaving and terminating his support payments. [ 38 ] RG testified that once he was settled in British Columbia, he knocked at one door seeking employment. This firm was apparently not hiring due to the COVID-19 pandemic; he heard nothing further from them.

RG acknowledged he did not distribute applications elsewhere as he concluded there was no work to be found. He fell short of proving that latter assumption. [ 39 ] I find on the evidence that RG made a number of unilateral choices along the way in an effort to sidestep his financial responsibilities to GG. He chose to quit his steady job in the Moncton area for which he was highly qualified and abruptly forced GG into financial hardship.

He defaulted on the support order and made his whereabouts unknown leaving a large gap in the usual reliable support enforcement mechanism. [ 40 ] Also, RG knowingly moved to British Columbia knowing full well he had no employment there. Once settled there, he restricted his employment search significantly by limiting his employment application to one employer and by failing to explore employment opportunities elsewhere in BC. There is nothing in the evidence to indicate he has any physical or health-related impediment that would prevent him from finding work.

There is also no evidence that he is underqualified for available work. Also, there is no reason why he cannot relocate to find work even if he decided to remain in British Columbia. [ 41 ] I conclude that in making these decisions, RG willfully and deliberately ignored his support obligations to GG knowing she was in need. In my view RG’s statement that he wanted to be closer to his family in BC because his mother suffered from ill health and that he was also fulfilling a dream of returning to BC to be closer to family are not justifications for ignoring his support obligations.

I find that in doing so, RG prioritized his own interests over the financial needs of GG. I also find that RG’s actions in placing himself in a situation of unemployment since July 2020 cannot be relied upon to create a change in circumstances warranting the variation sought. In

summary, I find RG voluntarily left the workforce without justification. [ 42 ] I therefore conclude RG has failed to prove a material change in circumstances since the making of the May 9, 2018 Order. His request to vary and cancel his spousal support obligations as of September 2020 and rescind all arrears from that date is therefore denied. [ 43 ] I also find that RG has not met the onus of proving any justifiable reduction in income since the making of the last Order.

Recall that the May 9, 2018 Order was simply incorporating the terms of the Interim Order of January 16, 2017 where Justice Hackett of this Court had ordered RG to pay spousal support of $776 based on an average income estimated at $39,995 and GG’s disability income of $7,216. A review of the incomes he actually earned from 2018 until 2020 show increases that are not insignificant. He had earnings of $62,478 in 2018, $67,050 (combined employment of $65,428 and CPP of $1,622) in 2019, and $49,926 (employment of $43,258 for 6 months of work and CPP of $6,668) in 2020.

If RG had actually worked the entire year in 2020 rather than quit his job in July, his employment income would have been around forty percent higher when compared to the income of $39,995 that Hackett J. utilized in 2017 to establish the support obligation of $776 per month. RG’s request to vary spousal support is accordingly denied for the period from September 2020 to March 2023 and so is his request to cancel all arrears accumulated in that period.

b) The ongoing spousal support obligations payable by RG and the appropriate quantum? – RG’s obligation to pay prospective spousal support [ 44 ] Based on the evidence relating to RG’s decision to quit his employment without justification, I am also of the view that he is voluntarily unemployed and capable of continuing to earn at least, if not significantly more, than the level of income ($39,995) he was earning when his spousal support obligations were first set at $776 per month in 2017 and reconfirmed in the Divorce Judgment issued

by Walsh J. on May 9, 2018. In fact, based on RG’s actual earnings from 2018 onward as previously set out, I am satisfied he could be currently earning in the range of $65,000 per year had he remained in the workforce fulltime. – The appropriate level of spousal support payable prospectively [ 45 ] As indicated earlier, GG adjusted her responding claim by proposing a reduction in the amount of spousal support from the court- ordered sum of $776 per month to the sum of $454 per month commencing March 1, 2023 with a final payment on January 1, 2027, the month she reaches age 65.

She was content with proposing this irrespective of the Court’s ruling on RG’s motion. After ensuring that this proposal was being made without undue influence, I allowed GG to adjust her responding claim accordingly.

GG’s proposal was nevertheless rejected by RG who still steadfastly held onto the notion that his obligations should be terminated retroactive to September 2020 with all arrears erased. [ 46 ] Based on the evidence before me, and having concluded that RG has not proven a material change in circumstances to justify a variation of the spousal support Order of May 9, 2018, and further considering the amended proposed by GG, I order that the amount of spousal support payable by RG to GG be reduced to $454 per month commencing March 1, 2023 up to and including a last payment on January 1, 2027 based on RG’s ability to continue to earn income in the range of $65,000 per year and GG’s sole annual income derived from the CPP disability benefit.

COSTS [ 47 ] The parties self-represented. In the circumstances each shall bear his or her own costs. DISPOSITION [ 48 ] The following is the order of the Court:

a) The Motion to Change filed by RG on December 15, 2020 is dismissed.

b) The Order of Walsh J. dated May 9, 2018 setting the spousal support obligations of RG at $776 per month for the benefit of GG is varied effective March 1, 2023 at which time the spousal support obligations of RG shall be reduced to the sum of $454 per month and payable monthly up to and inclusive of January 1, 2027, being the month in which GG attains age 65.

c) The Director of Support Enforcement shall remain responsible to calculate and enforce the arrears owing by RG on the May 9, 2018 Order of Walsh J. subject only to any adjustment commencing March 1, 2023 in accordance with these reasons.

d) Each party shall bear his or her own costs. DATED at Moncton, N.B., this 17 th day of April 2023. _______________________________________ Brigitte M. Robichaud Justice of the Court of King’s Bench of New Brunswick